G.R. No.

190582 April 8, 2010 on Elections (COMELEC) dated November 11, 20092 (the First Assailed
Resolution) and December 16, 20093 (the Second Assailed Resolution) in
ANG LADLAD LGBT PARTY represented herein by its Chair, DANTON SPP No. 09-228 (PL) (collectively, the Assailed Resolutions). The case has
REMOTO, Petitioner, its roots in the COMELEC’s refusal to accredit Ang Ladlad as a party-list
vs. organization under Republic Act (RA) No. 7941, otherwise known as the
COMMISSION ON ELECTIONS Respondent. Party-List System Act.4

DECISION Ang Ladlad is an organization composed of men and women who identify
themselves as lesbians, gays, bisexuals, or trans-gendered individuals
(LGBTs). Incorporated in 2003, Ang Ladlad first applied for registration with
DEL CASTILLO, J.:
the COMELEC in 2006. The application for accreditation was denied on the
ground that the organization had no substantial membership base. On
... [F]reedom to differ is not limited to things that do not matter much. That August 17, 2009, Ang Ladlad again filed a Petition5 for registration with the
would be a mere shadow of freedom. The test of its substance is the right to COMELEC.
differ as to things that touch the heart of the existing order.
Before the COMELEC, petitioner argued that the LGBT community is a
Justice Robert A. Jackson marginalized and under-represented sector that is particularly disadvantaged
because of their sexual orientation and gender identity; that LGBTs are
West Virginia State Board of Education v. Barnette1 victims of exclusion, discrimination, and violence; that because of negative
societal attitudes, LGBTs are constrained to hide their sexual orientation; and
One unavoidable consequence of everyone having the freedom to choose is that Ang Ladlad complied with the 8-point guidelines enunciated by this Court
that others may make different choices – choices we would not make for in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections.6 Ang
ourselves, choices we may disapprove of, even choices that may shock or Ladlad laid out its national membership base consisting of individual
offend or anger us. However, choices are not to be legally prohibited merely members and organizational supporters, and outlined its platform of
because they are different, and the right to disagree and debate about governance.7
important questions of public policy is a core value protected by our Bill of
Rights. Indeed, our democracy is built on genuine recognition of, and respect On November 11, 2009, after admitting the petitioner’s evidence, the
for, diversity and difference in opinion. COMELEC (Second Division) dismissed the Petition on moral grounds,
stating that:
Since ancient times, society has grappled with deep disagreements about
the definitions and demands of morality. In many cases, where moral x x x This Petition is dismissible on moral grounds. Petitioner defines the
convictions are concerned, harmony among those theoretically opposed is Filipino Lesbian, Gay, Bisexual and Transgender (LGBT) Community, thus:
an insurmountable goal. Yet herein lies the paradox – philosophical
justifications about what is moral are indispensable and yet at the same time x x x a marginalized and under-represented sector that is particularly
powerless to create agreement. This Court recognizes, however, that disadvantaged because of their sexual orientation and gender identity.
practical solutions are preferable to ideological stalemates; accommodation
is better than intransigence; reason more worthy than rhetoric. This will allow
persons of diverse viewpoints to live together, if not harmoniously, then, at and proceeded to define sexual orientation as that which:
least, civilly.
x x x refers to a person’s capacity for profound emotional, affectional and
sexual attraction to, and intimate and sexual relations with, individuals of a
Factual Background
different gender, of the same gender, or more than one gender."
This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an
application for a writ of preliminary mandatory injunction, filed by Ang This definition of the LGBT sector makes it crystal clear that petitioner
Ladlad LGBT Party (Ang Ladlad) against the Resolutions of the Commission tolerates immorality which offends religious beliefs. In Romans 1:26, 27, Paul
wrote:
For this cause God gave them up into vile affections, for even their women Art. 201. Immoral doctrines, obscene publications and exhibitions, and
did change the natural use into that which is against nature: And likewise indecent shows. — The penalty of prision mayor or a fine ranging from six
also the men, leaving the natural use of the woman, burned in their lust one thousand to twelve thousand pesos, or both such imprisonment and fine,
toward another; men with men working that which is unseemly, and receiving shall be imposed upon:
in themselves that recompense of their error which was meet.
1. Those who shall publicly expound or proclaim doctrines
In the Koran, the hereunder verses are pertinent: openly contrary to public morals;

For ye practice your lusts on men in preference to women "ye are indeed a 2. (a) The authors of obscene literature, published with their
people transgressing beyond bounds." (7.81) "And we rained down on them knowledge in any form; the editors publishing such literature; and the
a shower (of brimstone): Then see what was the end of those who indulged owners/operators of the establishment selling the same;
in sin and crime!" (7:84) "He said: "O my Lord! Help Thou me against people
who do mischief" (29:30). (b) Those who, in theaters, fairs, cinematographs or any
other place, exhibit indecent or immoral plays, scenes, acts
As correctly pointed out by the Law Department in its Comment dated or shows, it being understood that the obscene literature or
October 2, 2008: indecent or immoral plays, scenes, acts or shows, whether
live or in film, which are prescribed by virtue hereof, shall
The ANG LADLAD apparently advocates sexual immorality as indicated in include those which: (1) glorify criminals or condone crimes;
the Petition’s par. 6F: ‘Consensual partnerships or relationships by gays and (2) serve no other purpose but to satisfy the market for
lesbians who are already of age’. It is further indicated in par. 24 of the violence, lust or pornography; (3) offend any race or religion;
Petition which waves for the record: ‘In 2007, Men Having Sex with Men or (4) tend to abet traffic in and use of prohibited drugs; and (5)
MSMs in the Philippines were estimated as 670,000 (Genesis 19 is the are contrary to law, public order, morals, good
history of Sodom and Gomorrah). customs, established policies, lawful orders, decrees and
edicts.
Laws are deemed incorporated in every contract, permit, license,
relationship, or accreditation. Hence, pertinent provisions of the Civil Code 3. Those who shall sell, give away or exhibit films, prints, engravings,
and the Revised Penal Code are deemed part of the requirement to be sculpture or literature which are offensive to morals.
complied with for accreditation.
Petitioner should likewise be denied accreditation not only for advocating
ANG LADLAD collides with Article 695 of the Civil Code which defines immoral doctrines but likewise for not being truthful when it said that it "or
nuisance as ‘Any act, omission, establishment, business, condition of any of its nominees/party-list representatives have not violated or failed to
property, or anything else which x x x (3) shocks, defies; or comply with laws, rules, or regulations relating to the elections."
disregards decency or morality x x x
Furthermore, should this Commission grant the petition, we will be exposing
It also collides with Article 1306 of the Civil Code: ‘The contracting parties our youth to an environment that does not conform to the teachings of our
may establish such stipulations, clauses, terms and conditions as they may faith. Lehman Strauss, a famous bible teacher and writer in the U.S.A. said in
deem convenient, provided they are not contrary to law, morals, good one article that "older practicing homosexuals are a threat to the youth." As
customs, public order or public policy. Art 1409 of the Civil Code provides an agency of the government, ours too is the State’s avowed duty under
that ‘Contracts whose cause, object or purpose is contrary to law, morals, Section 13, Article II of the Constitution to protect our youth from moral and
good customs, public order or public policy’ are inexistent and void from the spiritual degradation.8
beginning.
When Ang Ladlad sought reconsideration,9 three commissioners voted to
Finally to safeguard the morality of the Filipino community, the Revised Penal overturn the First Assailed Resolution (Commissioners Gregorio Y.
Code, as amended, penalizes ‘Immoral doctrines, obscene publications and Larrazabal, Rene V. Sarmiento, and Armando Velasco), while three
exhibitions and indecent shows’ as follows: commissioners voted to deny Ang Ladlad’s Motion for Reconsideration
(Commissioners Nicodemo T. Ferrer, Lucenito N. Tagle, and Elias R. Thus, even if society’s understanding, tolerance, and acceptance of LGBT’s
Yusoph). The COMELEC Chairman, breaking the tie and speaking for the is elevated, there can be no denying that Ladlad constituencies are still
majority in his Separate Opinion, upheld the First Assailed Resolution, stating males and females, and they will remain either male or female protected by
that: the same Bill of Rights that applies to all citizens alike.

I. The Spirit of Republic Act No. 7941 xxxx

Ladlad is applying for accreditation as a sectoral party in the party-list IV. Public Morals
system. Even assuming that it has properly proven its under-representation
and marginalization, it cannot be said that Ladlad’s expressed sexual x x x There is no question about not imposing on Ladlad Christian or Muslim
orientations per se would benefit the nation as a whole. religious practices. Neither is there any attempt to any particular religious
group’s moral rules on Ladlad. Rather, what are being adopted as moral
Section 2 of the party-list law unequivocally states that the purpose of the parameters and precepts are generally accepted public morals. They are
party-list system of electing congressional representatives is to enable possibly religious-based, but as a society, the Philippines cannot ignore its
Filipino citizens belonging to marginalized and under-represented sectors, more than 500 years of Muslim and Christian upbringing, such that some
organizations and parties, and who lack well-defined political constituencies moral precepts espoused by said religions have sipped [sic] into society and
but who could contribute to the formulation and enactment of appropriate these are not publicly accepted moral norms.
legislation that will benefit the nation as a whole, to become members of the
House of Representatives. V. Legal Provisions

If entry into the party-list system would depend only on the ability of an But above morality and social norms, they have become part of the law of the
organization to represent its constituencies, then all representative land. Article 201 of the Revised Penal Code imposes the penalty of prision
organizations would have found themselves into the party-list race. But that mayor upon "Those who shall publicly expound or proclaim doctrines openly
is not the intention of the framers of the law. The party-list system is not a contrary to public morals." It penalizes "immoral doctrines, obscene
tool to advocate tolerance and acceptance of misunderstood persons or publications and exhibition and indecent shows." "Ang Ladlad" apparently
groups of persons. Rather, the party-list system is a tool for the realization of falls under these legal provisions. This is clear from its Petition’s paragraph
aspirations of marginalized individuals whose interests are also the nation’s – 6F: "Consensual partnerships or relationships by gays and lesbians who are
only that their interests have not been brought to the attention of the nation already of age’ It is further indicated in par. 24 of the Petition which waves for
because of their under representation. Until the time comes when Ladlad is the record: ‘In 2007, Men Having Sex with Men or MSMs in the Philippines
able to justify that having mixed sexual orientations and transgender were estimated as 670,000. Moreoever, Article 694 of the Civil Code defines
identities is beneficial to the nation, its application for accreditation under the "nuisance" as any act, omission x x x or anything else x x x which shocks,
party-list system will remain just that. defies or disregards decency or morality x x x." These are all unlawful. 10

II. No substantial differentiation On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court
annul the Assailed Resolutions and direct the COMELEC to grant Ang
In the United States, whose equal protection doctrine pervades Philippine Ladlad’s application for accreditation. Ang Ladlad also sought the issuance
jurisprudence, courts do not recognize lesbians, gays, homosexuals, and ex parte of a preliminary mandatory injunction against the COMELEC, which
bisexuals (LGBT) as a "special class" of individuals. x x x Significantly, it has had previously announced that it would begin printing the final ballots for the
also been held that homosexuality is not a constitutionally protected May 2010 elections by January 25, 2010.
fundamental right, and that "nothing in the U.S. Constitution discloses a
comparable intent to protect or promote the social or legal equality of On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to
homosexual relations," as in the case of race or religion or belief. file its Comment on behalf of COMELEC not later than 12:00 noon of
January 11, 2010.11 Instead of filing a Comment, however, the OSG filed a
xxxx Motion for Extension, requesting that it be given until January 16, 2010 to
Comment.12 Somewhat surprisingly, the OSG later filed a Comment in
support of petitioner’s application.13 Thus, in order to give COMELEC the its petition when it alleged its national existence contrary to actual verification
opportunity to fully ventilate its position, we required it to file its own reports by COMELEC’s field personnel.
comment.14 The COMELEC, through its Law Department, filed its Comment
on February 2, 2010.15 Our Ruling

In the meantime, due to the urgency of the petition, we issued a temporary We grant the petition.
restraining order on January 12, 2010, effective immediately and continuing
until further orders from this Court, directing the COMELEC to cease and Compliance with the Requirements of the Constitution and Republic Act No.
desist from implementing the Assailed Resolutions.16
7941

Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a The COMELEC denied Ang Ladlad’s application for registration on the
Motion to Intervene or to Appear as Amicus Curiae, attaching thereto its ground that the LGBT sector is neither enumerated in the Constitution and
Comment-in-Intervention.17 The CHR opined that the denial of Ang
RA 7941, nor is it associated with or related to any of the sectors in the
Ladlad’spetition on moral grounds violated the standards and principles of
enumeration.
the Constitution, the Universal Declaration of Human Rights (UDHR), and the
International Covenant on Civil and Political Rights (ICCPR). On January 19,
2010, we granted the CHR’s motion to intervene. Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands
for the proposition that only those sectors specifically enumerated in the law
or related to said sectors (labor, peasant, fisherfolk, urban poor, indigenous
On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to
cultural communities, elderly, handicapped, women, youth, veterans,
Intervene18 which motion was granted on February 2, 2010.19
overseas workers, and professionals) may be registered under the party-list
system. As we explicitly ruled in Ang Bagong Bayani-OFW Labor Party v.
The Parties’ Arguments Commission on Elections,20 "the enumeration of marginalized and under-
represented sectors is not exclusive". The crucial element is not whether a
Ang Ladlad argued that the denial of accreditation, insofar as it justified the sector is specifically enumerated, but whether a particular organization
exclusion by using religious dogma, violated the constitutional guarantees complies with the requirements of the Constitution and RA 7941.
against the establishment of religion. Petitioner also claimed that the
Assailed Resolutions contravened its constitutional rights to privacy, freedom Respondent also argues that Ang Ladlad made untruthful statements in its
of speech and assembly, and equal protection of laws, as well as constituted petition when it alleged that it had nationwide existence through its members
violations of the Philippines’ international obligations against discrimination and affiliate organizations. The COMELEC claims that upon verification by its
based on sexual orientation. field personnel, it was shown that "save for a few isolated places in the
country, petitioner does not exist in almost all provinces in the country."21
The OSG concurred with Ang Ladlad’s petition and argued that the
COMELEC erred in denying petitioner’s application for registration since This argument that "petitioner made untruthful statements in its petition when
there was no basis for COMELEC’s allegations of immorality. It also opined it alleged its national existence" is a new one; previously, the COMELEC
that LGBTs have their own special interests and concerns which should have claimed that petitioner was "not being truthful when it said that it or any of its
been recognized by the COMELEC as a separate classification. However, nominees/party-list representatives have not violated or failed to comply with
insofar as the purported violations of petitioner’s freedom of speech, laws, rules, or regulations relating to the elections." Nowhere was this ground
expression, and assembly were concerned, the OSG maintained that there for denial of petitioner’s accreditation mentioned or even alluded to in the
had been no restrictions on these rights. Assailed Resolutions. This, in itself, is quite curious, considering that the
reports of petitioner’s alleged non-existence were already available to the
In its Comment, the COMELEC reiterated that petitioner does not have a COMELEC prior to the issuance of the First Assailed Resolution. At best, this
concrete and genuine national political agenda to benefit the nation and that is irregular procedure; at worst, a belated afterthought, a change in
the petition was validly dismissed on moral grounds. It also argued for the respondent’s theory, and a serious violation of petitioner’s right to procedural
first time that the LGBT sector is not among the sectors enumerated by the due process.
Constitution and RA 7941, and that petitioner made untruthful statements in
Nonetheless, we find that there has been no misrepresentation. A cursory § LUMINA – Baguio City
perusal of Ang Ladlad’s initial petition shows that it never claimed to exist in
each province of the Philippines. Rather, petitioner alleged that the LGBT § Marikina Gay Association – Metro Manila
community in the Philippines was estimated to constitute at least 670,000
persons; that it had 16,100 affiliates and members around the country, and
§ Metropolitan Community Church (MCC) – Metro Manila
4,044 members in its electronic discussion group.22 Ang Ladlad also
represented itself to be "a national LGBT umbrella organization with affiliates
around the Philippines composed of the following LGBT networks:" § Naga City Gay Association – Naga City

§ Abra Gay Association § ONE BACARDI

§ Aklan Butterfly Brigade (ABB) – Aklan § Order of St. Aelred (OSAe) – Metro Manila

§ Albay Gay Association § PUP LAKAN

§ Arts Center of Cabanatuan City – Nueva Ecija § RADAR PRIDEWEAR

§ Boys Legion – Metro Manila § Rainbow Rights Project (R-Rights), Inc. – Metro Manila

§ Cagayan de Oro People Like Us (CDO PLUS) § San Jose del Monte Gay Association – Bulacan

§ Can’t Live in the Closet, Inc. (CLIC) – Metro Manila § Sining Kayumanggi Royal Family – Rizal

§ Cebu Pride – Cebu City § Society of Transexual Women of the Philippines (STRAP) – Metro
Manila
§ Circle of Friends
§ Soul Jive – Antipolo, Rizal
§ Dipolog Gay Association – Zamboanga del Norte
§ The Link – Davao City
§ Gay, Bisexual, & Transgender Youth Association (GABAY)
§ Tayabas Gay Association – Quezon
§ Gay and Lesbian Activists Network for Gender Equality (GALANG)
– Metro Manila § Women’s Bisexual Network – Metro Manila

§ Gay Men’s Support Group (GMSG) – Metro Manila § Zamboanga Gay Association – Zamboanga City23

§ Gay United for Peace and Solidarity (GUPS) – Lanao del Norte Since the COMELEC only searched for the names ANG LADLAD LGBT
or LADLAD LGBT, it is no surprise that they found that petitioner had no
presence in any of these regions. In fact, if COMELEC’s findings are to be
§ Iloilo City Gay Association – Iloilo City
believed, petitioner does not even exist in Quezon City, which is registered
as Ang Ladlad’s principal place of business.
§ Kabulig Writer’s Group – Camarines Sur
Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated
§ Lesbian Advocates Philippines, Inc. (LEAP) its compliance with the legal requirements for accreditation. Indeed, aside
from COMELEC’s moral objection and the belated allegation of non- progress of human society" and not because the conduct is proscribed by the
existence, nowhere in the records has the respondent ever found/ruled beliefs of one religion or the other. Although admittedly, moral judgments
that Ang Ladlad is not qualified to register as a party-list organization under based on religion might have a compelling influence on those engaged in
any of the requisites under RA 7941 or the guidelines in Ang Bagong Bayani. public deliberations over what actions would be considered a moral
The difference, COMELEC claims, lies in Ang Ladlad’s morality, or lack disapprobation punishable by law. After all, they might also be adherents of a
thereof. religion and thus have religious opinions and moral codes with a compelling
influence on them; the human mind endeavors to regulate the temporal and
Religion as the Basis for Refusal to Accept Ang Ladlad’s Petition for spiritual institutions of society in a uniform manner, harmonizing earth with
Registration heaven. Succinctly put, a law could be religious or Kantian or Aquinian or
utilitarian in its deepest roots, but it must have an articulable and discernible
secular purpose and justification to pass scrutiny of the religion clauses. x x x
Our Constitution provides in Article III, Section 5 that "[n]o law shall be made
Recognizing the religious nature of the Filipinos and the elevating influence
respecting an establishment of religion, or prohibiting the free exercise
of religion in society, however, the Philippine constitution's religion clauses
thereof." At bottom, what our non-establishment clause calls for is
"government neutrality in religious matters."24 Clearly, "governmental reliance prescribe not a strict but a benevolent neutrality. Benevolent neutrality
on religious justification is inconsistent with this policy of neutrality." 25 We recognizes that government must pursue its secular goals and interests but
at the same time strive to uphold religious liberty to the greatest extent
thus find that it was grave violation of the non-establishment clause for the
COMELEC to utilize the Bible and the Koran to justify the exclusion of Ang possible within flexible constitutional limits. Thus, although the morality
Ladlad. contemplated by laws is secular, benevolent neutrality could allow for
accommodation of morality based on religion, provided it does not offend
compelling state interests.27
Rather than relying on religious belief, the legitimacy of the Assailed
Resolutions should depend, instead, on whether the COMELEC is able to
Public Morals as a Ground to Deny Ang Ladlad’s Petition for Registration
advance some justification for its rulings beyond mere conformity to religious
doctrine. Otherwise stated, government must act for secular purposes and in
ways that have primarily secular effects. As we held in Estrada v. Escritor: 26 Respondent suggests that although the moral condemnation of
homosexuality and homosexual conduct may be religion-based, it has long
been transplanted into generally accepted public morals. The COMELEC
x x x The morality referred to in the law is public and necessarily secular, not
argues:
religious as the dissent of Mr. Justice Carpio holds. "Religious teachings as
expressed in public debate may influence the civil public order but public
moral disputes may be resolved only on grounds articulable in secular Petitioner’s accreditation was denied not necessarily because their group
terms." Otherwise, if government relies upon religious beliefs in formulating consists of LGBTs but because of the danger it poses to the people
public policies and morals, the resulting policies and morals would require especially the youth. Once it is recognized by the government, a sector which
conformity to what some might regard as religious programs or agenda. The believes that there is nothing wrong in having sexual relations with
non-believers would therefore be compelled to conform to a standard of individuals of the same gender is a bad example. It will bring down the
conduct buttressed by a religious belief, i.e., to a "compelled religion," standard of morals we cherish in our civilized society. Any society without a
anathema to religious freedom. Likewise, if government based its actions set of moral precepts is in danger of losing its own existence.28
upon religious beliefs, it would tacitly approve or endorse that belief and
thereby also tacitly disapprove contrary religious or non-religious views that We are not blind to the fact that, through the years, homosexual conduct, and
would not support the policy. As a result, government will not provide full perhaps homosexuals themselves, have borne the brunt of societal
religious freedom for all its citizens, or even make it appear that those whose disapproval. It is not difficult to imagine the reasons behind this censure –
beliefs are disapproved are second-class citizens.1avvphi1 religious beliefs, convictions about the preservation of marriage, family, and
procreation, even dislike or distrust of homosexuals themselves and their
In other words, government action, including its proscription of immorality as perceived lifestyle. Nonetheless, we recall that the Philippines has not seen
expressed in criminal law like concubinage, must have a secular purpose. fit to criminalize homosexual conduct. Evidently, therefore, these "generally
That is, the government proscribes this conduct because it is "detrimental (or accepted public morals" have not been convincingly transplanted into the
dangerous) to those conditions upon which depend the existence and realm of law.29
The Assailed Resolutions have not identified any specific overt immoral act any particular morally reprehensible act. It is this selective targeting that
performed by Ang Ladlad. Even the OSG agrees that "there should have implicates our equal protection clause.
been a finding by the COMELEC that the group’s members have committed
or are committing immoral acts."30 The OSG argues: Equal Protection

x x x A person may be sexually attracted to a person of the same gender, of Despite the absolutism of Article III, Section 1 of our Constitution, which
a different gender, or more than one gender, but mere attraction does not provides "nor shall any person be denied equal protection of the laws," courts
translate to immoral acts. There is a great divide between thought and action. have never interpreted the provision as an absolute prohibition on
Reduction ad absurdum. If immoral thoughts could be penalized, COMELEC classification. "Equality," said Aristotle, "consists in the same treatment of
would have its hands full of disqualification cases against both the "straights" similar persons."33 The equal protection clause guarantees that no person or
and the gays." Certainly this is not the intendment of the law.31 class of persons shall be deprived of the same protection of laws which is
enjoyed by other persons or other classes in the same place and in like
Respondent has failed to explain what societal ills are sought to be circumstances.34
prevented, or why special protection is required for the youth. Neither has the
COMELEC condescended to justify its position that petitioner’s admission Recent jurisprudence has affirmed that if a law neither burdens a
into the party-list system would be so harmful as to irreparably damage the fundamental right nor targets a suspect class, we will uphold the
moral fabric of society. We, of course, do not suggest that the state is wholly classification as long as it bears a rational relationship to some legitimate
without authority to regulate matters concerning morality, sexuality, and government end.35 In Central Bank Employees Association, Inc. v. Banko
sexual relations, and we recognize that the government will and should Sentral ng Pilipinas,36 we declared that "[i]n our jurisdiction, the standard of
continue to restrict behavior considered detrimental to society. Nonetheless, analysis of equal protection challenges x x x have followed the ‘rational basis’
we cannot countenance advocates who, undoubtedly with the loftiest of test, coupled with a deferential attitude to legislative classifications and a
intentions, situate morality on one end of an argument or another, without reluctance to invalidate a law unless there is a showing of a clear and
bothering to go through the rigors of legal reasoning and explanation. In this, unequivocal breach of the Constitution."37
the notion of morality is robbed of all value. Clearly then, the bare invocation
of morality will not remove an issue from our scrutiny.
The COMELEC posits that the majority of the Philippine population considers
homosexual conduct as immoral and unacceptable, and this constitutes
We also find the COMELEC’s reference to purported violations of our penal sufficient reason to disqualify the petitioner. Unfortunately for the respondent,
and civil laws flimsy, at best; disingenuous, at worst. Article 694 of the Civil the Philippine electorate has expressed no such belief. No law exists to
Code defines a nuisance as "any act, omission, establishment, condition of criminalize homosexual behavior or expressions or parties about homosexual
property, or anything else which shocks, defies, or disregards decency or behavior. Indeed, even if we were to assume that public opinion is as the
morality," the remedies for which are a prosecution under the Revised Penal COMELEC describes it, the asserted state interest here – that is, moral
Code or any local ordinance, a civil action, or abatement without judicial disapproval of an unpopular minority – is not a legitimate state interest that is
proceedings.32 A violation of Article 201 of the Revised Penal Code, on the sufficient to satisfy rational basis review under the equal protection clause.
other hand, requires proof beyond reasonable doubt to support a criminal The COMELEC’s differentiation, and its unsubstantiated claim that Ang
conviction. It hardly needs to be emphasized that mere allegation of violation Ladlad cannot contribute to the formulation of legislation that would benefit
of laws is not proof, and a mere blanket invocation of public morals cannot the nation, furthers no legitimate state interest other than disapproval of or
replace the institution of civil or criminal proceedings and a judicial dislike for a disfavored group.
determination of liability or culpability.
From the standpoint of the political process, the lesbian, gay, bisexual, and
As such, we hold that moral disapproval, without more, is not a sufficient transgender have the same interest in participating in the party-list system on
governmental interest to justify exclusion of homosexuals from participation the same basis as other political parties similarly situated. State intrusion in
in the party-list system. The denial of Ang Ladlad’s registration on purely this case is equally burdensome. Hence, laws of general application should
moral grounds amounts more to a statement of dislike and disapproval of apply with equal force to LGBTs, and they deserve to participate in the party-
homosexuals, rather than a tool to further any substantial public interest. list system on the same basis as other marginalized and under-represented
Respondent’s blanket justifications give rise to the inevitable conclusion that sectors.
the COMELEC targets homosexuals themselves as a class, not because of
It bears stressing that our finding that COMELEC’s act of differentiating COMELEC is certainly not free to interfere with speech for no better reason
LGBTs from heterosexuals insofar as the party-list system is concerned does than promoting an approved message or discouraging a disfavored one.
not imply that any other law distinguishing between heterosexuals and
homosexuals under different circumstances would similarly fail. We disagree This position gains even more force if one considers that homosexual
with the OSG’s position that homosexuals are a class in themselves for the conduct is not illegal in this country. It follows that both expressions
purposes of the equal protection clause.38 We are not prepared to single out concerning one’s homosexuality and the activity of forming a political
homosexuals as a separate class meriting special or differentiated treatment. association that supports LGBT individuals are protected as well.
We have not received sufficient evidence to this effect, and it is simply
unnecessary to make such a ruling today. Petitioner itself has merely Other jurisdictions have gone so far as to categorically rule that even
demanded that it be recognized under the same basis as all other groups
overwhelming public perception that homosexual conduct violates public
similarly situated, and that the COMELEC made "an unwarranted and
morality does not justify criminalizing same-sex conduct.41 European and
impermissible classification not justified by the circumstances of the case."
United Nations judicial decisions have ruled in favor of gay rights claimants
on both privacy and equality grounds, citing general privacy and equal
Freedom of Expression and Association protection provisions in foreign and international texts.42 To the extent that
there is much to learn from other jurisdictions that have reflected on the
Under our system of laws, every group has the right to promote its agenda issues we face here, such jurisprudence is certainly illuminating. These
and attempt to persuade society of the validity of its position through normal foreign authorities, while not formally binding on Philippine courts, may
democratic means.39 It is in the public square that deeply held convictions nevertheless have persuasive influence on the Court’s analysis.
and differing opinions should be distilled and deliberated upon. As we held in
Estrada v. Escritor:40 In the area of freedom of expression, for instance, United States courts have
ruled that existing free speech doctrines protect gay and lesbian rights to
In a democracy, this common agreement on political and moral ideas is expressive conduct. In order to justify the prohibition of a particular
distilled in the public square. Where citizens are free, every opinion, every expression of opinion, public institutions must show that their actions were
prejudice, every aspiration, and every moral discernment has access to the caused by "something more than a mere desire to avoid the discomfort and
public square where people deliberate the order of their life together. Citizens unpleasantness that always accompany an unpopular viewpoint."43
are the bearers of opinion, including opinion shaped by, or espousing
religious belief, and these citizens have equal access to the public square. In With respect to freedom of association for the advancement of ideas and
this representative democracy, the state is prohibited from determining which beliefs, in Europe, with its vibrant human rights tradition, the European Court
convictions and moral judgments may be proposed for public deliberation. of Human Rights (ECHR) has repeatedly stated that a political party may
Through a constitutionally designed process, the people deliberate and campaign for a change in the law or the constitutional structures of a state if
decide. Majority rule is a necessary principle in this democratic governance. it uses legal and democratic means and the changes it proposes are
Thus, when public deliberation on moral judgments is finally crystallized into consistent with democratic principles. The ECHR has emphasized that
law, the laws will largely reflect the beliefs and preferences of the majority, political ideas that challenge the existing order and whose realization is
i.e., the mainstream or median groups. Nevertheless, in the very act of advocated by peaceful means must be afforded a proper opportunity of
adopting and accepting a constitution and the limits it specifies – including expression through the exercise of the right of association, even if such ideas
protection of religious freedom "not only for a minority, however small – not may seem shocking or unacceptable to the authorities or the majority of the
only for a majority, however large – but for each of us" – the majority population.44 A political group should not be hindered solely because it seeks
imposes upon itself a self-denying ordinance. It promises not to do what it to publicly debate controversial political issues in order to find solutions
otherwise could do: to ride roughshod over the dissenting minorities. capable of satisfying everyone concerned.45 Only if a political party incites
violence or puts forward policies that are incompatible with democracy does
Freedom of expression constitutes one of the essential foundations of a it fall outside the protection of the freedom of association guarantee.46
democratic society, and this freedom applies not only to those that are
favorably received but also to those that offend, shock, or disturb. Any We do not doubt that a number of our citizens may believe that homosexual
restriction imposed in this sphere must be proportionate to the legitimate aim conduct is distasteful, offensive, or even defiant. They are entitled to hold
pursued. Absent any compelling state interest, it is not for the COMELEC or and express that view. On the other hand, LGBTs and their supporters, in all
this Court to impose its views on the populace. Otherwise stated, the
likelihood, believe with equal fervor that relationships between individuals of OSG itself – the moral objection offered by the COMELEC was not a
the same sex are morally equivalent to heterosexual relationships. They, too, limitation imposed by law. To the extent, therefore, that the petitioner has
are entitled to hold and express that view. However, as far as this Court is been precluded, because of COMELEC’s action, from publicly expressing its
concerned, our democracy precludes using the religious or moral views of views as a political party and participating on an equal basis in the political
one part of the community to exclude from consideration the values of other process with other equally-qualified party-list candidates, we find that there
members of the community. has, indeed, been a transgression of petitioner’s fundamental rights.

Of course, none of this suggests the impending arrival of a golden age for Non-Discrimination and International Law
gay rights litigants. It well may be that this Decision will only serve to highlight
the discrepancy between the rigid constitutional analysis of this Court and the In an age that has seen international law evolve geometrically in scope and
more complex moral sentiments of Filipinos. We do not suggest that public promise, international human rights law, in particular, has grown dynamically
opinion, even at its most liberal, reflect a clear-cut strong consensus in its attempt to bring about a more just and humane world order. For
favorable to gay rights claims and we neither attempt nor expect to affect individuals and groups struggling with inadequate structural and
individual perceptions of homosexuality through this Decision. governmental support, international human rights norms are particularly
significant, and should be effectively enforced in domestic legal systems so
The OSG argues that since there has been neither prior restraint nor that such norms may become actual, rather than ideal, standards of conduct.
subsequent punishment imposed on Ang Ladlad, and its members have not
been deprived of their right to voluntarily associate, then there has been no Our Decision today is fully in accord with our international obligations to
restriction on their freedom of expression or association. The OSG argues protect and promote human rights. In particular, we explicitly recognize the
that: principle of non-discrimination as it relates to the right to electoral
participation, enunciated in the UDHR and the ICCPR.
There was no utterance restricted, no publication censored, or any assembly
denied. [COMELEC] simply exercised its authority to review and verify the The principle of non-discrimination is laid out in Article 26 of the ICCPR, as
qualifications of petitioner as a sectoral party applying to participate in the follows:
party-list system. This lawful exercise of duty cannot be said to be a
transgression of Section 4, Article III of the Constitution. Article 26

xxxx All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the law shall
A denial of the petition for registration x x x does not deprive the members of prohibit any discrimination and guarantee to all persons equal and effective
the petitioner to freely take part in the conduct of elections. Their right to vote protection against discrimination on any ground such as race, colour, sex,
will not be hampered by said denial. In fact, the right to vote is a language, religion, political or other opinion, national or social origin,
constitutionally-guaranteed right which cannot be limited. property, birth or other status.

As to its right to be elected in a genuine periodic election, petitioner contends In this context, the principle of non-discrimination requires that laws of
that the denial of Ang Ladlad’s petition has the clear and immediate effect of general application relating to elections be applied equally to all persons,
limiting, if not outrightly nullifying the capacity of its members to fully and regardless of sexual orientation. Although sexual orientation is not
equally participate in public life through engagement in the party list specifically enumerated as a status or ratio for discrimination in Article 26 of
elections. the ICCPR, the ICCPR Human Rights Committee has opined that the
reference to "sex" in Article 26 should be construed to include "sexual
This argument is puerile. The holding of a public office is not a right but a orientation."48Additionally, a variety of United Nations bodies have declared
privilege subject to limitations imposed by law. x x x 47 discrimination on the basis of sexual orientation to be prohibited under
various international agreements.49
The OSG fails to recall that petitioner has, in fact, established its
qualifications to participate in the party-list system, and – as advanced by the The UDHR provides:
Article 21. residence or descent, or by reason of political affiliation. No person should
suffer discrimination or disadvantage of any kind because of that person's
(1) Everyone has the right to take part in the government of his country, candidacy. States parties should indicate and explain the legislative
directly or through freely chosen representatives. provisions which exclude any group or category of persons from elective
office.50
Likewise, the ICCPR states:
We stress, however, that although this Court stands willing to assume the
Article 25 responsibility of giving effect to the Philippines’ international law obligations,
the blanket invocation of international law is not the panacea for all social ills.
We refer now to the petitioner’s invocation of the Yogyakarta Principles (the
Every citizen shall have the right and the opportunity, without any of the Application of International Human Rights Law In Relation to Sexual
distinctions mentioned in article 2 and without unreasonable restrictions: Orientation and Gender Identity),51 which petitioner declares to reflect binding
principles of international law.
(a) To take part in the conduct of public affairs, directly or through
freely chosen representatives; At this time, we are not prepared to declare that these Yogyakarta
Principles contain norms that are obligatory on the Philippines. There are
(b) To vote and to be elected at genuine periodic elections which declarations and obligations outlined in said Principles which are not
shall be by universal and equal suffrage and shall be held by secret reflective of the current state of international law, and do not find basis in any
ballot, guaranteeing the free expression of the will of the electors; of the sources of international law enumerated under Article 38(1) of the
Statute of the International Court of Justice.52 Petitioner has not undertaken
(c) To have access, on general terms of equality, to public service in any objective and rigorous analysis of these alleged principles of
his country. international law to ascertain their true status.

As stated by the CHR in its Comment-in-Intervention, the scope of the right We also hasten to add that not everything that society – or a certain segment
to electoral participation is elaborated by the Human Rights Committee in its of society – wants or demands is automatically a human right. This is not an
General Comment No. 25 (Participation in Public Affairs and the Right to arbitrary human intervention that may be added to or subtracted from at will.
Vote) as follows: It is unfortunate that much of what passes for human rights today is a much
broader context of needs that identifies many social desires as rights in order
1. Article 25 of the Covenant recognizes and protects the right of every to further claims that international law obliges states to sanction these
citizen to take part in the conduct of public affairs, the right to vote and to be innovations. This has the effect of diluting real human rights, and is a result
elected and the right to have access to public service. Whatever form of of the notion that if "wants" are couched in "rights" language, then they are
constitution or government is in force, the Covenant requires States to adopt no longer controversial.1avvphi1
such legislative and other measures as may be necessary to ensure that
citizens have an effective opportunity to enjoy the rights it protects. Article 25 Using even the most liberal of lenses, these Yogyakarta Principles,
lies at the core of democratic government based on the consent of the consisting of a declaration formulated by various international law professors,
people and in conformity with the principles of the Covenant. are – at best – de lege ferenda – and do not constitute binding obligations on
the Philippines. Indeed, so much of contemporary international law is
xxxx characterized by the "soft law" nomenclature, i.e., international law is full of
principles that promote international cooperation, harmony, and respect for
human rights, most of which amount to no more than well-meaning desires,
15. The effective implementation of the right and the opportunity to stand for
without the support of either State practice or opinio juris.53
elective office ensures that persons entitled to vote have a free choice of
candidates. Any restrictions on the right to stand for election, such as
minimum age, must be justifiable on objective and reasonable criteria. As a final note, we cannot help but observe that the social issues presented
Persons who are otherwise eligible to stand for election should not be by this case are emotionally charged, societal attitudes are in flux, even the
excluded by unreasonable or discriminatory requirements such as education, psychiatric and religious communities are divided in opinion. This Court’s role
is not to impose its own view of acceptable behavior. Rather, it is to apply the The Facts
Constitution and laws as best as it can, uninfluenced by public opinion, and
confident in the knowledge that our democracy is resilient enough to Mary Grace Natividad S. Poe-Llamanzares (petitioner) was found abandoned
withstand vigorous debate. as a newborn infant in the Parish Church of Jaro, Iloilo by a certain Edgardo
Militar (Edgardo) on 3 September 1968. Parental care and custody over
WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the petitioner was passed on by Edgardo to his relatives, Emiliano Militar
Commission on Elections dated November 11, 2009 and December 16, 2009 (Emiliano) and his wife. Three days after, 6 September 1968, Emiliano
in SPP No. 09-228 (PL) are hereby SET ASIDE. The Commission on reported and registered petitioner as a foundling with the Office of the Civil
Elections is directed to GRANT petitioner’s application for party-list Registrar of Iloilo City (OCR-Iloilo). In her Foundling Certificate and
accreditation. Certificate of Live Birth, the petitioner was given the name "Mary Grace
Natividad Contreras Militar." 1

When petitioner was five (5) years old, celebrity spouses Ronald Allan Kelley
G.R. No. 221697 Poe (a.k.a. Fenando Poe, Jr.) and Jesusa Sonora Poe (a.k.a. Susan Roces)
filed a petition for her adoption with the Municipal Trial Court (MTC) of San
Juan City. On 13 May 1974, the trial court granted their petition and ordered
MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners, that petitioner's name be changed from "Mary Grace Natividad Contreras
vs. Militar" to "Mary Grace Natividad Sonora Poe." Although necessary notations
COMELEC AND ESTRELLA C. ELAMPARO Respondents.
were made by OCR-Iloilo on petitioner's foundling certificate reflecting the
court decreed adoption,2 the petitioner's adoptive mother discovered only
x-----------------------x sometime in the second half of 2005 that the lawyer who handled petitioner's
adoption failed to secure from the OCR-Iloilo a new Certificate of Live Birth
G.R. No. 221698-700 indicating petitioner's new name and the name of her adoptive
parents. 3 Without delay, petitioner's mother executed an affidavit attesting to
MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners, the lawyer's omission which she submitted to the OCR-Iloilo. On 4 May 2006,
vs. OCR-Iloilo issued a new Certificate of Live Birth in the name of Mary Grace
COMELEC, FRANCISCO S. TATAD, ANTONIO P. CONTRERAS AND Natividad Sonora Poe.4
AMADO D. VALDEZ Respondents.
Having reached the age of eighteen (18) years in 1986, petitioner registered
DECISION as a voter with the local COMELEC Office in San Juan City. On 13
December 1986, she received her COMELEC Voter's Identification Card for
Precinct No. 196 in Greenhills, San Juan, Metro Manila.5
PEREZ, J.:

On 4 April 1988, petitioner applied for and was issued Philippine Passport
Before the Court are two consolidated petitions under Rule 64 in relation to
No. F9272876 by the Department of Foreign Affairs (DFA). Subsequently, on
Rule 65 of the Rules of Court with extremely urgent application for an ex
5 April 1993 and 19 May 1998, she renewed her Philippine passport and
parte issuance of temporary restraining order/status quo ante order and/or
respectively secured Philippine Passport Nos. L881511 and DD156616. 7
writ of preliminary injunction assailing the following: (1) 1 December 2015
Resolution of the Commission on Elections (COMELEC) Second Division; (2)
23 December 2015 Resolution of the COMELEC En Banc, in SPA No. 15- Initially, the petitioner enrolled and pursued a degree in Development Studies
001 (DC); (3) 11 December 2015 Resolution of the COMELEC First Division; at the University of the Philippines8 but she opted to continue her studies
and ( 4) 23 December 2015 Resolution of the COMELEC En Banc, in SPA abroad and left for the United States of America (U.S.) in 1988. Petitioner
No. 15-002 (DC), SPA No. 15-007 (DC) and SPA No. 15-139 (DC) for having graduated in 1991 from Boston College in Chestnuts Hill, Massachusetts
been issued without jurisdiction or with grave abuse of discretion amounting where she earned her Bachelor of Arts degree in Political Studies.9
to lack or excess of jurisdiction.
On 27 July 1991, petitioner married Teodoro Misael Daniel V. Llamanzares The petitioner and her children briefly stayed at her mother's place until she
(Llamanzares), a citizen of both the Philippines and the U.S., at Sanctuario and her husband purchased a condominium unit with a parking slot at One
de San Jose Parish in San Juan City. 10 Desirous of being with her husband Wilson Place Condominium in San Juan City in the second half of
who was then based in the U.S., the couple flew back to the U.S. two days 2005.27 The corresponding Condominium Certificates of Title covering the
after the wedding ceremony or on 29 July 1991. 11 unit and parking slot were issued by the Register of Deeds of San Juan City
to petitioner and her husband on 20 February 2006.28 Meanwhile, her
While in the U.S., the petitioner gave birth to her eldest child Brian Daniel children of school age began attending Philippine private schools.
(Brian) on 16 April 1992.12 Her two daughters Hanna MacKenzie (Hanna)
and Jesusa Anika (Anika) were both born in the Philippines on 10 July 1998 On 14 February 2006, the petitioner made a quick trip to the U.S. to
and 5 June 2004, respectively. 13 supervise the disposal of some of the family's remaining household
belongings.29 She travelled back to the Philippines on 11 March 2006.30
On 18 October 2001, petitioner became a naturalized American
citizen. 14 She obtained U.S. Passport No. 017037793 on 19 December In late March 2006, petitioner's husband officially informed the U.S. Postal
2001. 15 Service of the family's change and abandonment of their address in the
U.S.31 The family home was eventually sold on 27 April 2006.32 Petitioner's
On 8 April 2004, the petitioner came back to the Philippines together with husband resigned from his job in the U.S. in April 2006, arrived in the country
Hanna to support her father's candidacy for President in the May 2004 on 4 May 2006 and started working for a major Philippine company in July
elections. It was during this time that she gave birth to her youngest daughter 2006.33
Anika. She returned to the U.S. with her two daughters on 8 July 2004. 16
In early 2006, petitioner and her husband acquired a 509-square meter lot in
After a few months, specifically on 13 December 2004, petitioner rushed Corinthian Hills, Quezon City where they built their family home34 and to this
back to the Philippines upon learning of her father's deteriorating medical day, is where the couple and their children have been residing.35 A Transfer
condition. 17 Her father slipped into a coma and eventually expired. The Certificate of Title covering said property was issued in the couple's name by
petitioner stayed in the country until 3 February 2005 to take care of her the Register of Deeds of Quezon City on 1June 2006.
father's funeral arrangements as well as to assist in the settlement of his
estate.18 On 7 July 2006, petitioner took her Oath of Allegiance to the Republic of the
Philippines pursuant to Republic Act (R.A.) No. 9225 or the Citizenship
According to the petitioner, the untimely demise of her father was a severe Retention and Re-acquisition Act of 2003.36 Under the same Act, she filed
blow to her entire family. In her earnest desire to be with her grieving mother, with the Bureau of Immigration (BI) a sworn petition to reacquire Philippine
the petitioner and her husband decided to move and reside permanently in citizenship together with petitions for derivative citizenship on behalf of her
the Philippines sometime in the first quarter of 2005.19 The couple began three minor children on 10 July 2006.37 As can be gathered from its 18 July
preparing for their resettlement including notification of their children's 2006 Order, the BI acted favorably on petitioner's petitions and declared that
schools that they will be transferring to Philippine schools for the next she is deemed to have reacquired her Philippine citizenship while her
semester;20coordination with property movers for the relocation of their children are considered as citizens of the Philippines.38 Consequently, the BI
household goods, furniture and cars from the U.S. to the Philippines;21 and issued Identification Certificates (ICs) in petitioner's name and in the names
inquiry with Philippine authorities as to the proper procedure to be followed in of her three (3) children. 39
bringing their pet dog into the country.22 As early as 2004, the petitioner
already quit her job in the U.S.23 Again, petitioner registered as a voter of Barangay Santa Lucia, San Juan
City on 31 August 2006.40 She also secured from the DFA a new Philippine
Finally, petitioner came home to the Philippines on 24 May 200524 and Passport bearing the No. XX4731999.41 This passport was renewed on 18
without delay, secured a Tax Identification Number from the Bureau of March 2014 and she was issued Philippine Passport No. EC0588861 by the
Internal Revenue. Her three (3) children immediately followed25 while her DFA.42
husband was forced to stay in the U.S. to complete pending projects as well
as to arrange the sale of their family home there.26 On 6 October 2010, President Benigno S. Aquino III appointed petitioner as
Chairperson of the Movie and Television Review and Classification Board
(MTRCB).43 Before assuming her post, petitioner executed an "Affidavit of A day after petitioner filed her COC for President, Estrella Elamparo
Renunciation of Allegiance to the United States of America and Renunciation (Elamparo) filed a petition to deny due course or cancel said COC which was
of American Citizenship" before a notary public in Pasig City on 20 October docketed as SPA No. 15-001 (DC) and raffled to the COMELEC Second
2010,44 in satisfaction of the legal requisites stated in Section 5 of R.A. No. Division.59She is convinced that the COMELEC has jurisdiction over her
9225.45 The following day, 21 October 2010 petitioner submitted the said petition.60 Essentially, Elamparo's contention is that petitioner committed
affidavit to the BI46 and took her oath of office as Chairperson of the material misrepresentation when she stated in her COC that she is a natural-
MTRCB.47 From then on, petitioner stopped using her American passport.48 born Filipino citizen and that she is a resident of the Philippines for at least
ten (10) years and eleven (11) months up to the day before the 9 May 2016
On 12 July 2011, the petitioner executed before the Vice Consul of the U.S. Elections.61
Embassy in Manila an "Oath/Affirmation of Renunciation of Nationality of the
United States."49 On that day, she accomplished a sworn questionnaire On the issue of citizenship, Elamparo argued that petitioner cannot be
before the U.S. Vice Consul wherein she stated that she had taken her oath considered as a natural-born Filipino on account of the fact that she was a
as MTRCB Chairperson on 21 October 2010 with the intent, among others, foundling.62 Elamparo claimed that international law does not confer natural-
of relinquishing her American citizenship.50 In the same questionnaire, the born status and Filipino citizenship on foundlings.63 Following this line of
petitioner stated that she had resided outside of the U.S., specifically in the reasoning, petitioner is not qualified to apply for reacquisition of Filipino
Philippines, from 3 September 1968 to 29 July 1991 and from May 2005 to citizenship under R.A. No. 9225 for she is not a natural-born Filipino citizen
present.51 to begin with.64Even assuming arguendo that petitioner was a natural-born
Filipino, she is deemed to have lost that status when she became a
On 9 December 2011, the U.S. Vice Consul issued to petitioner a "Certificate naturalized American citizen.65 According to Elamparo, natural-born
of Loss of Nationality of the United States" effective 21 October 2010.52 citizenship must be continuous from birth.66

On 2 October 2012, the petitioner filed with the COMELEC her Certificate of On the matter of petitioner's residency, Elamparo pointed out that petitioner
Candidacy (COC) for Senator for the 2013 Elections wherein she answered was bound by the sworn declaration she made in her 2012 COC for Senator
"6 years and 6 months" to the question "Period of residence in the wherein she indicated that she had resided in the country for only six ( 6)
Philippines before May 13, 2013."53 Petitioner obtained the highest number years and six ( 6) months as of May 2013 Elections. Elamparo likewise
of votes and was proclaimed Senator on 16 May 2013. 54 insisted that assuming arguendo that petitioner is qualified to regain her
natural-born status under R.A. No. 9225, she still fell short of the ten-year
residency requirement of the Constitution as her residence could only be
On 19 December 2013, petitioner obtained Philippine Diplomatic Passport
No. DE0004530. 55 counted at the earliest from July 2006, when she reacquired Philippine
citizenship under the said Act. Also on the assumption that petitioner is
qualified to reacquire lost Philippine Citizenship, Elamparo is of the belief that
On 15 October 2015, petitioner filed her COC for the Presidency for the May she failed to reestablish her domicile in the Philippines. 67
2016 Elections. 56 In her COC, the petitioner declared that she is a natural-
born citizen and that her residence in the Philippines up to the day before 9
May 2016 would be ten (10) years and eleven (11) months counted from 24 Petitioner seasonably filed her Answer wherein she countered that:
May 2005.57 The petitioner attached to her COC an "Affidavit Affirming
Renunciation of U.S.A. Citizenship" subscribed and sworn to before a notary (1) the COMELEC did not have jurisdiction over Elamparo's petition
public in Quezon City on 14 October 2015. 58 as it was actually a petition for quo warranto which could only be filed
if Grace Poe wins in the Presidential elections, and that the
Petitioner's filing of her COC for President in the upcoming elections Department of Justice (DOJ) has primary jurisdiction to revoke the
triggered the filing of several COMELEC cases against her which were the BI's July 18, 2006 Order;
subject of these consolidated cases.
(2) the petition failed to state a cause of action because it did not
Origin of Petition for Certiorari in G.R. No. 221697 contain allegations which, if hypothetically admitted, would make
false the statement in her COC that she is a natural-born Filipino
 citizen nor was there any allegation that there was a willful or On 1 December 2015, the COMELEC Second Division promulgated a
deliberate intent to misrepresent on her part; Resolution finding that petitioner's COC, filed for the purpose of running for
the President of the Republic of the Philippines in the 9 May 2016 National
(3) she did not make any material misrepresentation in the COC and Local Elections, contained material representations which are false.
regarding her citizenship and residency qualifications for: The fallo of the aforesaid Resolution reads:

a. the 1934 Constitutional Convention deliberations show WHEREFORE, in view of all the foregoing considerations, the instant Petition
that foundlings were considered citizens; to Deny Due Course to or Cancel Certificate of Candidacy is
hereby GRANTED. Accordingly, the Certificate of Candidacy for President of
the Republic of the Philippines in the May 9, 2016 National and Local
b. foundlings are presumed under international law to have
Elections filed by respondent Mary Grace Natividad Sonora Poe
been born of citizens of the place where they are found;
Llamanzares is hereby CANCELLED.69
c. she reacquired her natural-born Philippine citizenship
Motion for Reconsideration of the 1 December 2015 Resolution was filed by
under the provisions of R.A. No. 9225;
petitioner which the COMELEC En Banc resolved in its 23 December 2015
Resolution by denying the same.70
d. she executed a sworn renunciation of her American
citizenship prior to the filing of her COC for President in the
Origin of Petition for Certiorari in G.R. Nos. 221698-700
May 9, 2016 Elections and that the same is in full force and
effect and has not been withdrawn or recanted;
This case stemmed from three (3) separate petitions filed by Francisco S.
Tatad (Tatad), Antonio P. Contreras (Contreras) and Amado D. Valdez
e. the burden was on Elamparo in proving that she did not
possess natural-born status; (Valdez) against petitioner before the COMELEC which were consolidated
and raffled to its First Division.
f. residence is a matter of evidence and that she
In his petition to disqualify petitioner under Rule 25 of the COMELEC Rules
reestablished her domicile in the Philippines as early as May
of Procedure,71 docketed as SPA No. 15-002 (DC), Tatad alleged that
24, 2005;
petitioner lacks the requisite residency and citizenship to qualify her for the
Presidency.72
g. she could reestablish residence even before she
reacquired natural-born citizenship under R.A. No. 9225;
Tatad theorized that since the Philippines adheres to the principle of jus
sanguinis, persons of unknown parentage, particularly foundlings, cannot be
h. statement regarding the period of residence in her 2012 considered natural-born Filipino citizens since blood relationship is
COC for Senator was an honest mistake, not binding and determinative of natural-born status.73 Tatad invoked the rule of statutory
should give way to evidence on her true date of reacquisition construction that what is not included is excluded. He averred that the fact
of domicile; that foundlings were not expressly included in the categories of citizens in the
193 5 Constitution is indicative of the framers' intent to exclude
i. Elamparo's petition is merely an action to usurp the them.74 Therefore, the burden lies on petitioner to prove that she is a natural-
sovereign right of the Filipino people to decide a purely born citizen.75
political question, that is, should she serve as the country's
next leader.68 Neither can petitioner seek refuge under international conventions or treaties
to support her claim that foundlings have a nationality. 76 According to Tatad,
After the parties submitted their respective Memoranda, the petition was international conventions and treaties are not self-executory and that local
deemed submitted for resolution. legislations are necessary in order to give effect to treaty obligations
assumed by the Philippines.77 He also stressed that there is no standard
state practice that automatically confers natural-born status to foundlings.78
Similar to Elamparo's argument, Tatad claimed that petitioner cannot avail of First, Tatad's petition should be dismissed outright for failure to state a cause
the option to reacquire Philippine citizenship under R.A. No. 9225 because it of action. His petition did not invoke grounds proper for a disqualification
only applies to former natural-born citizens and petitioner was not as she was case as enumerated under Sections 12 and 68 of the Omnibus Election
a foundling.79 Code.89 Instead, Tatad completely relied on the alleged lack of residency and
natural-born status of petitioner which are not among the recognized grounds
Referring to petitioner's COC for Senator, Tatad concluded that she did not for the disqualification of a candidate to an elective office.90
comply with the ten (10) year residency requirement.80 Tatad opined that
petitioner acquired her domicile in Quezon City only from the time she Second, the petitions filed against her are basically petitions for quo
renounced her American citizenship which was sometime in 2010 or warranto as they focus on establishing her ineligibility for the Presidency. 91 A
2011.81 Additionally, Tatad questioned petitioner's lack of intention to petition for quo warranto falls within the exclusive jurisdiction of the
abandon her U.S. domicile as evinced by the fact that her husband stayed Presidential Electoral Tribunal (PET) and not the COMELEC.92
thereat and her frequent trips to the U.S.82
Third, the burden to prove that she is not a natural-born Filipino citizen is on
In support of his petition to deny due course or cancel the COC of petitioner, the respondents.93 Otherwise stated, she has a presumption in her favor that
docketed as SPA No. 15-139 (DC), Valdez alleged that her repatriation under she is a natural-born citizen of this country.
R.A. No. 9225 did not bestow upon her the status of a natural-born
citizen.83 He advanced the view that former natural-born citizens who are Fourth, customary international law dictates that foundlings are entitled to a
repatriated under the said Act reacquires only their Philippine citizenship and nationality and are presumed to be citizens of the country where they are
will not revert to their original status as natural-born citizens.84 found.94 Consequently, the petitioner is considered as a natural-born citizen
of the Philippines.95
He further argued that petitioner's own admission in her COC for Senator
that she had only been a resident of the Philippines for at least six (6) years Fifth, she claimed that as a natural-born citizen, she has every right to be
and six (6) months prior to the 13 May 2013 Elections operates against her. repatriated under R.A. No. 9225 or the right to reacquire her natural-born
Valdez rejected petitioner's claim that she could have validly reestablished status.96 Moreover, the official acts of the Philippine Government enjoy the
her domicile in the Philippines prior to her reacquisition of Philippine presumption of regularity, to wit: the issuance of the 18 July 2006 Order of
citizenship. In effect, his position was that petitioner did not meet the ten (10) the BI declaring her as natural-born citizen, her appointment as MTRCB
year residency requirement for President. Chair and the issuance of the decree of adoption of San Juan RTC. 97 She
believed that all these acts reinforced her position that she is a natural-born
Unlike the previous COMELEC cases filed against petitioner, Contreras' citizen of the Philippines.98
petition,85 docketed as SPA No. 15-007 (DC), limited the attack to the
residency issue. He claimed that petitioner's 2015 COC for President should Sixth, she maintained that as early as the first quarter of 2005, she started
be cancelled on the ground that she did not possess the ten-year period of reestablishing her domicile of choice in the Philippines as demonstrated by
residency required for said candidacy and that she made false entry in her her children's resettlement and schooling in the country, purchase of a
COC when she stated that she is a legal resident of the Philippines for ten condominium unit in San Juan City and the construction of their family home
(10) years and eleven (11) months by 9 May 2016.86 Contreras contended in Corinthian Hills.99
that the reckoning period for computing petitioner's residency in the
Philippines should be from 18 July 2006, the date when her petition to Seventh, she insisted that she could legally reestablish her domicile of choice
reacquire Philippine citizenship was approved by the BI.87 He asserted that
in the Philippines even before she renounced her American citizenship as
petitioner's physical presence in the country before 18 July 2006 could not be long as the three determinants for a change of domicile are complied
valid evidence of reacquisition of her Philippine domicile since she was then with.100She reasoned out that there was no requirement that renunciation of
living here as an American citizen and as such, she was governed by the
foreign citizenship is a prerequisite for the acquisition of a new domicile of
Philippine immigration laws.88
choice.101

In her defense, petitioner raised the following arguments: Eighth, she reiterated that the period appearing in the residency portion of
her COC for Senator was a mistake made in good faith.102
In a Resolution103 promulgated on 11 December 2015, the COMELEC First entitled Amado D. Valdez, petitioner, v. Mary Grace Natividad
Division ruled that petitioner is not a natural-born citizen, that she failed to Sonora Poe-Llamanzares, respondent.
complete the ten (10) year residency requirement, and that she committed
material misrepresentation in her COC when she declared therein that she 3. Resolution dated 23 December 2015 of the Commission En Banc,
has been a resident of the Philippines for a period of ten (10) years and upholding the 1 December 2015 Resolution of the Second Division.
eleven (11) months as of the day of the elections on 9 May 2016. The
COMELEC First Division concluded that she is not qualified for the elective
4. Resolution dated 23 December 2015 of the Commission En Banc,
position of President of the Republic of the Philippines. The dispositive upholding the 11 December 2015 Resolution of the First Division.
portion of said Resolution reads:
The procedure and the conclusions from which the questioned Resolutions
WHEREFORE, premises considered, the Commission RESOLVED, as it
emanated are tainted with grave abuse of discretion amounting to lack of
hereby RESOLVES, to GRANT the Petitions and cancel the Certificate of
jurisdiction. The petitioner is a QUALIFIED CANDIDATE for President in the
Candidacy of MARY GRACE NATIVIDAD SONORA POE-
9 May 2016 National Elections.
LLAMANZARES for the elective position of President of the Republic of the
Philippines in connection with the 9 May 2016 Synchronized Local and
National Elections. The issue before the COMELEC is whether or not the COC of petitioner
should be denied due course or cancelled "on the exclusive ground" that she
made in the certificate a false material representation. The exclusivity of the
Petitioner filed a motion for reconsideration seeking a reversal of the ground should hedge in the discretion of the COMELEC and restrain it from
COMELEC First Division's Resolution. On 23 December 2015, the going into the issue of the qualifications of the candidate for the position, if,
COMELEC En Banc issued a Resolution denying petitioner's motion for
as in this case, such issue is yet undecided or undetermined by the proper
reconsideration.
authority. The COMELEC cannot itself, in the same cancellation case, decide
the qualification or lack thereof of the candidate.
Alarmed by the adverse rulings of the COMELEC, petitioner instituted the
present petitions for certiorari with urgent prayer for the issuance of an ex
We rely, first of all, on the Constitution of our Republic, particularly its
parte temporary restraining order/status quo ante order and/or writ of
provisions in Article IX, C, Section 2:
preliminary injunction. On 28 December 2015, temporary restraining orders
were issued by the Court enjoining the COMELEC and its representatives
from implementing the assailed COMELEC Resolutions until further orders Section 2. The Commission on Elections shall exercise the following powers
from the Court. The Court also ordered the consolidation of the two petitions and functions:
filed by petitioner in its Resolution of 12 January 2016. Thereafter, oral
arguments were held in these cases. (1) Enforce and administer all laws and regulations relative
to the conduct of an election, plebiscite, initiative,
The Court GRANTS the petition of Mary Grace Natividad S. Poe- referendum, and recall.
Llamanzares and to ANNUL and SET ASIDE the:
(2) Exercise exclusive original jurisdiction over all contests
1. Resolution dated 1 December 2015 rendered through its Second relating to the elections, returns, and qualifications of all
Division, in SPA No. 15-001 (DC), entitled Estrella C. Elamparo, elective regional, provincial, and city officials, and appellate
petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares. jurisdiction over all contests involving elective municipal
officials decided by trial courts of general jurisdiction, or
involving elective barangay officials decided by trial courts of
2. Resolution dated 11 December 2015, rendered through its First
limited jurisdiction.
Division, in the consolidated cases SPA No. 15-002 (DC)
entitled Francisco S. Tatad, petitioner, vs. Mary Grace Natividad
Sonora Poe-Llamanzares, respondent; SPA No. 15-007 (DC) Decisions, final orders, or rulings of the Commission on
entitled Antonio P. Contreras, petitioner, vs. Mary Grace Natividad election contests involving elective municipal and barangay
Sonora Poe-Llamanzares, respondent; and SPA No. 15-139 (DC) offices shall be final, executory, and not appealable.
(3) Decide, except those involving the right to vote, all (9) Submit to the President and the Congress a
questions affecting elections, including determination of the comprehensive report on the conduct of each election,
number and location of polling places, appointment of plebiscite, initiative, referendum, or recall.
election officials and inspectors, and registration of voters.
Not any one of the enumerated powers approximate the exactitude of the
(4) Deputize, with the concurrence of the President, law provisions of Article VI, Section 17 of the same basic law stating that:
enforcement agencies and instrumentalities of the
Government, including the Armed Forces of the Philippines, The Senate and the House of Representatives shall each have an
for the exclusive purpose of ensuring free, orderly, honest, Electoral Tribunal which shall be the sole judge of all contests
peaceful, and credible elections. relating to the election, returns, and qualifications of their respective
Members. Each Electoral Tribunal shall be composed of nine
(5) Register, after sufficient publication, political parties, Members, three of whom shall be Justices of the Supreme Court to
organizations, or coalitions which, in addition to other be designated by the Chief Justice, and the remaining six shall be
requirements, must present their platform or program of Members of the Senate or the House of Representatives, as the
government; and accredit citizens' arms of the Commission case may be, who shall be chosen on the basis of proportional
on Elections. Religious denominations and sects shall not be representation from the political parties and the parties or
registered. Those which seek to achieve their goals through organizations registered under the party-list system represented
violence or unlawful means, or refuse to uphold and adhere therein. The senior Justice in the Electoral Tribunal shall be its
to this Constitution, or which are supported by any foreign Chairman.
government shall likewise be refused registration.
or of the last paragraph of Article VII, Section 4 which provides that:
Financial contributions from foreign governments and their
agencies to political parties, organizations, coalitions, or The Supreme Court, sitting en banc, shall be the sole judge of all
candidates related to elections constitute interference in contests relating to the election, returns, and qualifications of the
national affairs, and, when accepted, shall be an additional President or Vice-President, and may promulgate its rules for the
ground for the cancellation of their registration with the purpose.
Commission, in addition to other penalties that may be
prescribed by law. The tribunals which have jurisdiction over the question of the qualifications of
the President, the Vice-President, Senators and the Members of the House
(6) File, upon a verified complaint, or on its own initiative, of Representatives was made clear by the Constitution. There is no such
petitions in court for inclusion or exclusion of voters; provision for candidates for these positions.
investigate and, where appropriate, prosecute cases of
violations of election laws, including acts or omissions Can the COMELEC be such judge?
constituting election frauds, offenses, and malpractices.
The opinion of Justice Vicente V. Mendoza in Romualdez-Marcos v.
(7) Recommend to the Congress effective measures to Commission on Elections,104 which was affirmatively cited in the En
minimize election spending, including limitation of places Banc decision in Fermin v. COMELEC105 is our guide. The citation
where propaganda materials shall be posted, and to prevent in Fermin reads:
and penalize all forms of election frauds, offenses,
malpractices, and nuisance candidacies.
Apparently realizing the lack of an authorized proceeding for declaring the
ineligibility of candidates, the COMELEC amended its rules on February 15,
(8) Recommend to the President the removal of any officer
1993 so as to provide in Rule 25 § 1, the following:
or employee it has deputized, or the imposition of any other
disciplinary action, for violation or disregard of, or
disobedience to its directive, order, or decision. Grounds for disqualification. - Any candidate who does not
possess all the qualifications of a candidate as provided for
 by the Constitution or by existing law or who commits any whether an individual should be disqualified as a candidate for acts
act declared by law to be grounds for disqualification may be constituting election offenses (e.g., vote buying, over spending, commission
disqualified from continuing as a candidate. of prohibited acts) is a prejudicial question which should be determined lest
he wins because of the very acts for which his disqualification is being
The lack of provision for declaring the ineligibility of candidates, however, sought. That is why it is provided that if the grounds for disqualification are
cannot be supplied by a mere rule. Such an act is equivalent to the creation established, a candidate will not be voted for; if he has been voted for, the
of a cause of action which is a substantive matter which the COMELEC, in votes in his favor will not be counted; and if for some reason he has been
the exercise of its rule-making power under Art. IX, A, §6 of the Constitution, voted for and he has won, either he will not be proclaimed or his
cannot do it. It is noteworthy that the Constitution withholds from the proclamation will be set aside.
COMELEC even the power to decide cases involving the right to vote, which
essentially involves an inquiry into qualifications based on age, Second is the fact that the determination of a candidates' eligibility, e.g., his
residence and citizenship of voters. [Art. IX, C, §2(3)] citizenship or, as in this case, his domicile, may take a long time to make,
extending beyond the beginning of the term of the office. This is amply
The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility demonstrated in the companion case (G.R. No. 120265, Agapito A. Aquino v.
into grounds for disqualification is contrary to the evident intention of the law. COMELEC) where the determination of Aquino's residence was still pending
For not only in their grounds but also in their consequences are proceedings in the COMELEC even after the elections of May 8, 1995. This is contrary to
for "disqualification" different from those for a declaration of "ineligibility." the summary character proceedings relating to certificates of candidacy. That
"Disqualification" proceedings, as already stated, are based on grounds is why the law makes the receipt of certificates of candidacy a ministerial
specified in § 12 and §68 of the Omnibus Election Code and in §40 of the duty of the COMELEC and its officers. The law is satisfied if candidates state
Local Government Code and are for the purpose of barring an individual in their certificates of candidacy that they are eligible for the position which
from becoming a candidate or from continuing as a candidate for public they seek to fill, leaving the determination of their qualifications to be made
office. In a word, their purpose is to eliminate a candidate from the after the election and only in the event they are elected. Only in cases
race either from the start or during its progress. "Ineligibility," on the other involving charges of false representations made in certificates of candidacy is
hand, refers to the lack of the qualifications prescribed in the Constitution or the COMELEC given jurisdiction.
the statutes for holding public office and the purpose of the proceedings for
declaration of ineligibility is to remove the incumbent from office. Third is the policy underlying the prohibition against pre-proclamation cases
in elections for President, Vice President, Senators and members of the
Consequently, that an individual possesses the qualifications for a public House of Representatives. (R.A. No. 7166, § 15) The purpose is to preserve
office does not imply that he is not disqualified from becoming a candidate or the prerogatives of the House of Representatives Electoral Tribunal and the
continuing as a candidate for a public office and vice versa. We have this sort other Tribunals as "sole judges" under the Constitution of the election,
of dichotomy in our Naturalization Law. (C.A. No. 473) That an alien has the returns and qualifications of members of Congress of the President and Vice
qualifications prescribed in §2 of the Law does not imply that he does not President, as the case may be.106
suffer from any of [the] disqualifications provided in §4.
To be sure, the authoritativeness of the Romualdez pronouncements as
Before we get derailed by the distinction as to grounds and the reiterated in Fermin, led to the amendment through COMELEC Resolution
consequences of the respective proceedings, the importance of the opinion No. 9523, on 25 September 2012 of its Rule 25. This, the 15 February1993
is in its statement that "the lack of provision for declaring the ineligibility of version of Rule 25, which states that:
candidates, however, cannot be supplied by a mere rule". Justice Mendoza
lectured in Romualdez-Marcos that: Grounds for disqualification. -Any candidate who does not possess all the
qualifications of a candidate as provided for by the Constitution or by existing
Three reasons may be cited to explain the absence of an authorized law or who commits any act declared by law to be grounds for disqualification
proceeding for determining before election the qualifications of a candidate. may be disqualified from continuing as a candidate.107

First is the fact that unless a candidate wins and is proclaimed elected, there was in the 2012 rendition, drastically changed to:
is no necessity for determining his eligibility for the office. In contrast,
Grounds. - Any candidate who, in action or protest in which he is a party, is petitioner possesses blood relationship with a Filipino citizen when "it is
declared by final decision of a competent court, guilty of, or found by the certain that such relationship is indemonstrable," proceeded to say that "she
Commission to be suffering from any disqualification provided by law or the now has the burden to present evidence to prove her natural filiation with a
Constitution. Filipino parent."

A Petition to Disqualify a Candidate invoking grounds for a Petition to Deny The fact is that petitioner's blood relationship with a Filipino citizen is
to or Cancel a Certificate of Candidacy or Petition to Declare a Candidate as DEMONSTRABLE.
a Nuisance Candidate, or a combination thereof, shall be summarily
dismissed. At the outset, it must be noted that presumptions regarding paternity is
neither unknown nor unaccepted in Philippine Law. The Family Code of the
Clearly, the amendment done in 2012 is an acceptance of the reality of Philippines has a whole chapter on Paternity and Filiation.110 That said, there
absence of an authorized proceeding for determining before election the is more than sufficient evider1ce that petitioner has Filipino parents and is
qualifications of candidate. Such that, as presently required, to disqualify a therefore a natural-born Filipino. Parenthetically, the burden of proof was on
candidate there must be a declaration by a final judgment of a competent private respondents to show that petitioner is not a Filipino citizen. The
court that the candidate sought to be disqualified "is guilty of or found by the private respondents should have shown that both of petitioner's parents were
Commission to be suffering from any disqualification provided by law or the aliens. Her admission that she is a foundling did not shift the burden to her
Constitution." because such status did not exclude the possibility that her parents were
Filipinos, especially as in this case where there is a high probability, if not
Insofar as the qualification of a candidate is concerned, Rule 25 and Rule 23 certainty, that her parents are Filipinos.
are flipsides of one to the other. Both do not allow, are not authorizations, are
not vestment of jurisdiction, for the COMELEC to determine the qualification The factual issue is not who the parents of petitioner are, as their identities
of a candidate. The facts of qualification must beforehand be established in a are unknown, but whether such parents are Filipinos. Under Section 4, Rule
prior proceeding before an authority properly vested with jurisdiction. The 128:
prior determination of qualification may be by statute, by executive order or
by a judgment of a competent court or tribunal. Sect. 4. Relevancy, collateral matters - Evidence must have such a relation
to the fact in issue as to induce belief in its existence or no-existence.
If a candidate cannot be disqualified without a prior finding that he or she is Evidence on collateral matters shall not be allowed, except when it tends in
suffering from a disqualification "provided by law or the Constitution," neither any reasonable degree to establish the probability of improbability of the fact
can the certificate of candidacy be cancelled or denied due course on in issue.
grounds of false representations regarding his or her qualifications, without a
prior authoritative finding that he or she is not qualified, such prior authority The Solicitor General offered official statistics from the Philippine Statistics
being the necessary measure by which the falsity of the representation can Authority (PSA)111 that from 1965 to 1975, the total number of foreigners
be found. The only exception that can be conceded are self-evident facts of born in the Philippines was 15,986 while the total number of Filipinos born in
unquestioned or unquestionable veracity and judicial confessions. Such are, the country was 10,558,278. The statistical probability that any child born in
anyway, bases equivalent to prior decisions against which the falsity of the Philippines in that decade is natural-born Filipino was 99.83%. For her
representation can be determined. part, petitioner presented census statistics for Iloilo Province for 1960 and
1970, also from the PSA. In 1960, there were 962,532 Filipinos and 4,734
The need for a predicate finding or final pronouncement in a proceeding foreigners in the province; 99.62% of the population were Filipinos. In 1970,
under Rule 23 that deals with, as in this case, alleged false representations the figures were 1,162,669 Filipinos and 5,304 foreigners, or 99.55%. Also
regarding the candidate's citizenship and residence, forced the COMELEC to presented were figures for the child producing ages (15-49). In 1960, there
rule essentially that since foundlings108 are not mentioned in the enumeration were 230,528 female Filipinos as against 730 female foreigners
of citizens under the 1935 Constitution,109 they then cannot be citizens. As or 99.68%. In the same year, there were 210,349 Filipino males and 886
the COMELEC stated in oral arguments, when petitioner admitted that she is male aliens, or 99.58%. In 1970, there were 270,299 Filipino females versus
a foundling, she said it all. This borders on bigotry. Oddly, in an effort at 1, 190 female aliens, or 99.56%. That same year, there were 245,740 Filipino
tolerance, the COMELEC, after saying that it cannot rule that herein males as against only 1,165 male aliens or 99.53%. COMELEC did not
dispute these figures. Notably, Commissioner Arthur Lim admitted, during the We can invite statisticians and social anthropologists to crunch the numbers
oral arguments, that at the time petitioner was found in 1968, the majority of for us, but I am confident that the statistical probability that a child born in the
the population in Iloilo was Filipino.112 Philippines would be a natural born Filipino will not be affected by whether or
not the parents are known. If at all, the likelihood that a foundling would have
Other circumstantial evidence of the nationality of petitioner's parents are the a Filipino parent might even be higher than 99.9%. Filipinos abandon their
fact that she was abandoned as an infant in a Roman Catholic Church in children out of poverty or perhaps, shame. We do not imagine foreigners
Iloilo City.1âwphi1 She also has typical Filipino features: height, flat nasal abandoning their children here in the Philippines thinking those infants would
bridge, straight black hair, almond shaped eyes and an oval face. have better economic opportunities or believing that this country is a tropical
paradise suitable for raising abandoned children. I certainly doubt whether a
foreign couple has ever considered their child excess baggage that is best
There is a disputable presumption that things have happened according to
left behind.
the ordinary course of nature and the ordinary habits of life.113 All of the
foregoing evidence, that a person with typical Filipino features is abandoned
in Catholic Church in a municipality where the population of the Philippines is To deny full Filipino citizenship to all foundlings and render them stateless
overwhelmingly Filipinos such that there would be more than a 99% chance just because there may be a theoretical chance that one among the
that a child born in the province would be a Filipino, would indicate more than thousands of these foundlings might be the child of not just one, but two,
ample probability if not statistical certainty, that petitioner's parents are foreigners is downright discriminatory, irrational, and unjust. It just doesn't
Filipinos. That probability and the evidence on which it is based are make any sense. Given the statistical certainty - 99.9% - that any child born
admissible under Rule 128, Section 4 of the Revised Rules on Evidence. in the Philippines would be a natural born citizen, a decision denying
foundlings such status is effectively a denial of their birthright. There is no
To assume otherwise is to accept the absurd, if not the virtually impossible, reason why this Honorable Court should use an improbable hypothetical to
sacrifice the fundamental political rights of an entire class of human beings.
as the norm. In the words of the Solicitor General:
Your Honor, constitutional interpretation and the use of common sense are
not separate disciplines.
Second. It is contrary to common sense because foreigners do not come to
the Philippines so they can get pregnant and leave their newborn babies
As a matter of law, foundlings are as a class, natural-born citizens. While the
behind. We do not face a situation where the probability is such that every
1935 Constitution's enumeration is silent as to foundlings, there is no
foundling would have a 50% chance of being a Filipino and a 50% chance of
restrictive language which would definitely exclude foundlings either.
being a foreigner. We need to frame our questions properly. What are the
Because of silence and ambiguity in the enumeration with respect to
chances that the parents of anyone born in the Philippines would be
foundlings, there is a need to examine the intent of the framers. In Nitafan v.
foreigners? Almost zero. What are the chances that the parents of anyone
Commissioner of Internal Revenue,114 this Court held that:
born in the Philippines would be Filipinos? 99.9%.

The ascertainment of that intent is but in keeping with the

According to the Philippine Statistics Authority, from 2010 to 2014, on a
fundamental principle of constitutional construction that the intent of
yearly average, there were 1,766,046 children born in the Philippines to
Filipino parents, as opposed to 1,301 children in the Philippines of foreign the framers of the organic law and of the people adopting it should
parents. Thus, for that sample period, the ratio of non-Filipino children to be given effect. The primary task in constitutional construction is to
ascertain and thereafter assure the realization of the purpose of the
natural born Filipino children is 1:1357. This means that the statistical
framers and of the people in the adoption of the Constitution. It may
probability that any child born in the Philippines would be a natural born
also be safely assumed that the people in ratifying the Constitution
Filipino is 99.93%.
were guided mainly by the explanation offered by the framers.115
From 1965 to 1975, the total number of foreigners born in the Philippines is
As pointed out by petitioner as well as the Solicitor General, the deliberations
15,986 while the total number of Filipinos born in the Philippines is
of the 1934 Constitutional Convention show that the framers intended
15,558,278. For this period, the ratio of non-Filipino children is 1:661. This
foundlings to be covered by the enumeration. The following exchange is
means that the statistical probability that any child born in the Philippines on
recorded:
that decade would be a natural born Filipino is 99.83%.
Sr. Rafols: For an amendment. I propose that after subsection 2, the President:
following is inserted: "The natural children of a foreign father and a Filipino Does the gentleman accept the amendment or not?
mother not recognized by the father.
Sr. Rafols:
xxxx I do not accept the amendment because the amendment would exclude the
children of a Filipina with a foreigner who does not recognize the child. Their
President: parentage is not unknown and I think those of overseas Filipino mother and
[We] would like to request a clarification from the proponent of the father [whom the latter] does not recognize, should also be considered as
amendment. The gentleman refers to natural children or to any kind of Filipinos.
illegitimate children?
President:
Sr. Rafols: The question in order is the amendment to the amendment from the
To all kinds of illegitimate children. It also includes natural children of Gentleman from Cebu, Mr. Briones.
unknown parentage, natural or illegitimate children of unknown parents.
Sr. Busion:
Sr. Montinola: Mr. President, don't you think it would be better to leave this matter in the
For clarification. The gentleman said "of unknown parents." Current codes hands of the Legislature?
consider them Filipino, that is, I refer to the Spanish Code wherein all
children of unknown parentage born in Spanish territory are considered Sr. Roxas:
Spaniards, because the presumption is that a child of unknown parentage is Mr. President, my humble opinion is that these cases are few and far in
the son of a Spaniard. This may be applied in the Philippines in that a child of between, that the constitution need [not] refer to them. By international
unknown parentage born in the Philippines is deemed to be Filipino, and law the principle that children or people born in a country of unknown parents
there is no need ... are citizens in this nation is recognized, and it is not necessary to include a
provision on the subject exhaustively.116
Sr. Rafols:
There is a need, because we are relating the conditions that are [required] to Though the Rafols amendment was not carried out, it was not because there
be Filipino. was any objection to the notion that persons of "unknown parentage" are not
citizens but only because their number was not enough to merit specific
Sr. Montinola: mention. Such was the account,117 cited by petitioner, of delegate and
But that is the interpretation of the law, therefore, there is no [more] need for constitution law author Jose Aruego who said:
amendment.
During the debates on this provision, Delegate Rafols presented an
Sr. Rafols: amendment to include as Filipino citizens the illegitimate children
The amendment should read thus: with a foreign father of a mother who was a citizen of the Philippines,
"Natural or illegitimate of a foreign father and a Filipino mother recognized by and also foundlings; but this amendment was defeated primarily
one, or the children of unknown parentage." because the Convention believed that the cases, being too few to
warrant the inclusion of a provision in the Constitution to apply to
Sr. Briones: them, should be governed by statutory legislation. Moreover, it was
believed that the rules of international law were already clear to the
The amendment [should] mean children born in the Philippines of unknown
effect that illegitimate children followed the citizenship of the mother,
parentage.
and that foundlings followed the nationality of the place where they
were found, thereby making unnecessary the inclusion in the
Sr. Rafols: Constitution of the proposed amendment.
The son of a Filipina to a Foreigner, although this [person] does not
recognize the child, is not unknown.
This explanation was likewise the position of the Solicitor General during the XV, Section 3 which requires the State to defend the "right of children to
16 February 2016 Oral Arguments: assistance, including proper care and nutrition, and special protection from
all forms of neglect, abuse, cruelty, exploitation, and other conditions
We all know that the Rafols proposal was rejected. But note that what was prejudicial to their development." Certainly, these provisions contradict an
declined was the proposal for a textual and explicit recognition of foundlings intent to discriminate against foundlings on account of their unfortunate
as Filipinos. And so, the way to explain the constitutional silence is by saying status.
that it was the view of Montinola and Roxas which prevailed that there is no
more need to expressly declare foundlings as Filipinos. Domestic laws on adoption also support the principle that foundlings are
Filipinos. These laws do not provide that adoption confers citizenship upon
Obviously, it doesn't matter whether Montinola's or Roxas' views were legally the adoptee. Rather, the adoptee must be a Filipino in the first place to be
correct. Framers of a constitution can constitutionalize rules based on adopted. The most basic of such laws is Article 15 of the Civil Code which
assumptions that are imperfect or even wrong. They can even overturn provides that "[l]aws relating to family rights, duties, status, conditions, legal
existing rules. This is basic. What matters here is that Montinola and Roxas capacity of persons are binding on citizens of the Philippines even though
were able to convince their colleagues in the convention that there is no living abroad." Adoption deals with status, and a Philippine adoption court will
more need to expressly declare foundlings as Filipinos because they are have jurisdiction only if the adoptee is a Filipino. In Ellis and Ellis v.
already impliedly so recognized. Republic,119 a child left by an unidentified mother was sought to be adopted
by aliens. This Court said:
In other words, the constitutional silence is fully explained in terms of
linguistic efficiency and the avoidance of redundancy. The policy is clear: it is In this connection, it should be noted that this is a proceedings in rem, which
to recognize foundlings, as a class, as Filipinos under Art. IV, Section 1 (3) of no court may entertain unless it has jurisdiction, not only over the subject
the 1935 Constitution. This inclusive policy is carried over into the 1973 and matter of the case and over the parties, but also over the res, which is the
1987 Constitution. It is appropriate to invoke a famous scholar as he was personal status of Baby Rose as well as that of petitioners herein. Our Civil
paraphrased by Chief Justice Fernando: the constitution is not silently silent, Code (Art. 15) adheres to the theory that jurisdiction over the status of a
it is silently vocal. 118 natural person is determined by the latter's nationality. Pursuant to this
theory, we have jurisdiction over the status of Baby Rose, she being a citizen
of the Philippines, but not over the status of the petitioners, who are
The Solicitor General makes the further point that the framers "worked to
foreigners.120 (Underlining supplied)
create a just and humane society," that "they were reasonable patriots and
that it would be unfair to impute upon them a discriminatory intent against
foundlings." He exhorts that, given the grave implications of the argument Recent legislation is more direct. R.A. No. 8043 entitled "An Act Establishing
that foundlings are not natural-born Filipinos, the Court must search the the Rules to Govern the Inter-Country Adoption of Filipino Children and For
records of the 1935, 1973 and 1987 Constitutions "for an express intention to Other Purposes" (otherwise known as the "Inter-Country Adoption Act of
deny foundlings the status of Filipinos. The burden is on those who wish to 1995"), R.A. No. 8552, entitled "An Act Establishing the Rules and Policies
use the constitution to discriminate against foundlings to show that the on the Adoption of Filipino Children and For Other Purposes" (otherwise
constitution really intended to take this path to the dark side and inflict this known as the Domestic Adoption Act of 1998) and this Court's A.M. No. 02-
across the board marginalization." 6-02-SC or the "Rule on Adoption," all expressly refer to "Filipino children"
and include foundlings as among Filipino children who may be adopted.
We find no such intent or language permitting discrimination against
foundlings. On the contrary, all three Constitutions guarantee the basic right It has been argued that the process to determine that the child is a foundling
to equal protection of the laws. All exhort the State to render social justice. Of leading to the issuance of a foundling certificate under these laws and the
special consideration are several provisions in the present charter: Article II, issuance of said certificate are acts to acquire or perfect Philippine
Section 11 which provides that the "State values the dignity of every human citizenship which make the foundling a naturalized Filipino at best. This is
person and guarantees full respect for human rights," Article XIII, Section 1 erroneous. Under Article IV, Section 2 "Natural-born citizens are those who
which mandates Congress to "give highest priority to the enactment of are citizens of the Philippines from birth without having to perform any act to
measures that protect and enhance the right of all the people to human acquire or perfect their Philippine citizenship." In the first place, "having to
dignity, reduce social, economic, and political inequalities x x x" and Article perform an act" means that the act must be personally done by the citizen. In
this instance, the determination of foundling status is done not by the child
but by the authorities.121 Secondly, the object of the process is the Universal Declaration of Human Rights ("UDHR") has been interpreted by
determination of the whereabouts of the parents, not the citizenship of the this Court as part of the generally accepted principles of international law and
child. Lastly, the process is certainly not analogous to naturalization binding on the State.130 Article 15 thereof states:
proceedings to acquire Philippine citizenship, or the election of such
citizenship by one born of an alien father and a Filipino mother under the 1. Everyone has the right to a nationality.
1935 Constitution, which is an act to perfect it.
2. No one shall be arbitrarily deprived of his nationality nor denied
In this instance, such issue is moot because there is no dispute that the right to change his nationality.
petitioner is a foundling, as evidenced by a Foundling Certificate issued in
her favor.122 The Decree of Adoption issued on 13 May 1974, which
The Philippines has also ratified the UN Convention on the Rights of the
approved petitioner's adoption by Jesusa Sonora Poe and Ronald Allan
Child (UNCRC). Article 7 of the UNCRC imposes the following obligations on
Kelley Poe, expressly refers to Emiliano and his wife, Rosario Militar, as her
our country:
"foundling parents," hence effectively affirming petitioner's status as a
foundling.123
Article 7
Foundlings are likewise citizens under international law. Under the 1987
Constitution, an international law can become part of the sphere of domestic 1. The child shall be registered immediately after birth and shall have the
law either by transformation or incorporation. The transformation method right from birth to a name, the right to acquire a nationality and as far as
requires that an international law be transformed into a domestic law through possible, the right to know and be cared for by his or her parents.
a constitutional mechanism such as local legislation.124 On the other hand,
generally accepted principles of international law, by virtue of the 2. States Parties shall ensure the implementation of these rights in
incorporation clause of the Constitution, form part of the laws of the land accordance with their national law and their obligations under the relevant
even if they do not derive from treaty obligations. Generally accepted international instruments in this field, in particular where the child would
principles of international law include international custom as evidence of a otherwise be stateless.
general practice accepted as law, and general principles of law recognized
by civilized nations.125 International customary rules are accepted as binding In 1986, the country also ratified the 1966 International Covenant on Civil
as a result from the combination of two elements: the established, and Political Rights (ICCPR). Article 24 thereof provide for the right of every
widespread, and consistent practice on the part of States; and a child "to acquire a nationality:"
psychological element known as the opinionjuris sive necessitates (opinion
as to law or necessity). Implicit in the latter element is a belief that the Article 24
practice in question is rendered obligatory by the existence of a rule of law
requiring it.126 "General principles of law recognized by civilized nations" are
1. Every child shall have, without any discrimination as to race, colour, sex,
principles "established by a process of reasoning" or judicial logic, based on
language, religion, national or social origin, property or birth, the right, to
principles which are "basic to legal systems generally," 127 such as "general
such measures of protection as are required by his status as a minor, on the
principles of equity, i.e., the general principles of fairness and justice," and
part of his family, society and the State.
the "general principle against discrimination" which is embodied in the
"Universal Declaration of Human Rights, the International Covenant on
Economic, Social and Cultural Rights, the International Convention on the 2. Every child shall be registered immediately after birth and shall have a
Elimination of All Forms of Racial Discrimination, the Convention Against name.
Discrimination in Education, the Convention (No. 111) Concerning
Discrimination in Respect of Employment and Occupation."128 These are the 3. Every child has the right to acquire a nationality.
same core principles which underlie the Philippine Constitution itself, as
embodied in the due process and equal protection clauses of the Bill of The common thread of the UDHR, UNCRC and ICCPR is to obligate the
Rights.129 Philippines to grant nationality from birth and ensure that no child is
stateless. This grant of nationality must be at the time of birth, and it cannot
be accomplished by the application of our present naturalization laws,
Commonwealth Act No. 473, as amended, and R.A. No. 9139, both of which state organs, regional state practice in Latin America, and State Practice in
require the applicant to be at least eighteen (18) years old. the United States.

The principles found in two conventions, while yet unratified by the Another case where the number of ratifying countries was not determinative
Philippines, are generally accepted principles of international law. The first is is Mijares v. Ranada, 134 where only four countries had "either ratified or
Article 14 of the 1930 Hague Convention on Certain Questions Relating to acceded to"135 the 1966 "Convention on the Recognition and Enforcement of
the Conflict of Nationality Laws under which a foundling is presumed to have Foreign Judgments in Civil and Commercial Matters" when the case was
the "nationality of the country of birth," to wit: decided in 2005. The Court also pointed out that that nine member countries
of the European Common Market had acceded to the Judgments
Article 14 Convention. The Court also cited U.S. laws and jurisprudence on recognition
of foreign judgments. In all, only the practices of fourteen countries were
considered and yet, there was pronouncement that recognition of foreign
A child whose parents are both unknown shall have the nationality of the
country of birth. If the child's parentage is established, its nationality shall be judgments was widespread practice.
determined by the rules applicable in cases where the parentage is known.
Our approach in Razon and Mijares effectively takes into account the fact
that "generally accepted principles of international law" are based not only on
A foundling is, until the contrary is proved, presumed to have been born on
international custom, but also on "general principles of law recognized by
the territory of the State in which it was found. (Underlining supplied)
civilized nations," as the phrase is understood in Article 38.1 paragraph (c) of
the ICJ Statute. Justice, fairness, equity and the policy against discrimination,
The second is the principle that a foundling is presumed born of citizens of which are fundamental principles underlying the Bill of Rights and which are
the country where he is found, contained in Article 2 of the 1961 United "basic to legal systems generally,"136 support the notion that the right against
Nations Convention on the Reduction of Statelessness: enforced disappearances and the recognition of foreign judgments, were
correctly considered as "generally accepted principles of international law"
Article 2 under the incorporation clause.

A foundling found in the territory of a Contracting State shall, in the absence Petitioner's evidence137 shows that at least sixty countries in Asia, North and
of proof to the contrary, be considered to have been born within the territory South America, and Europe have passed legislation recognizing foundlings
of parents possessing the nationality of that State. as its citizen. Forty-two (42) of those countries follow the jus
sanguinis regime. Of the sixty, only thirty-three (33) are parties to the 1961
That the Philippines is not a party to the 1930 Hague Convention nor to the Convention on Statelessness; twenty-six (26) are not signatories to the
1961 Convention on the Reduction of Statelessness does not mean that their Convention. Also, the Chief Justice, at the 2 February 2016 Oral Arguments
principles are not binding. While the Philippines is not a party to the 1930 pointed out that in 166 out of 189 countries surveyed (or 87.83%), foundlings
Hague Convention, it is a signatory to the Universal Declaration on Human are recognized as citizens. These circumstances, including the practice of jus
Rights, Article 15(1) ofwhich131effectively affirms Article 14 of the 1930 sanguinis countries, show that it is a generally accepted principle of
Hague Convention. Article 2 of the 1961 "United Nations Convention on the international law to presume foundlings as having been born of nationals of
Reduction of Statelessness" merely "gives effect" to Article 15(1) of the the country in which the foundling is found.
UDHR.132 In Razon v. Tagitis, 133 this Court noted that the Philippines had not
signed or ratified the "International Convention for the Protection of All Current legislation reveals the adherence of the Philippines to this generally
Persons from Enforced Disappearance." Yet, we ruled that the proscription accepted principle of international law. In particular, R.A. No. 8552, R.A. No.
against enforced disappearances in the said convention was nonetheless 8042 and this Court's Rules on Adoption, expressly refer to "Filipino
binding as a "generally accepted principle of international law." Razon v. children." In all of them, foundlings are among the Filipino children who could
Tagitis is likewise notable for declaring the ban as a generally accepted be adopted. Likewise, it has been pointed that the DFA issues passports to
principle of international law although the convention had been ratified by foundlings. Passports are by law, issued only to citizens. This shows that
only sixteen states and had not even come into force and which needed the even the executive department, acting through the DFA, considers foundlings
ratification of a minimum of twenty states. Additionally, as petitioner points as Philippine citizens.
out, the Court was content with the practice of international and regional
Adopting these legal principles from the 1930 Hague Convention and the citizenship. Parreno v. Commission on Audit144 is categorical that "if
1961 Convention on Statelessness is rational and reasonable and consistent petitioner reacquires his Filipino citizenship (under R.A. No. 9225), he will
with the jus sanguinis regime in our Constitution. The presumption of natural- ... recover his natural-born citizenship."
born citizenship of foundlings stems from the presumption that their parents
are nationals of the Philippines. As the empirical data provided by the PSA The COMELEC construed the phrase "from birth" in the definition of natural
show, that presumption is at more than 99% and is a virtual certainty. citizens as implying "that natural-born citizenship must begin at birth and
remain uninterrupted and continuous from birth." R.A. No. 9225 was
In sum, all of the international law conventions and instruments on the matter obviously passed in line with Congress' sole prerogative to determine how
of nationality of foundlings were designed to address the plight of a citizenship may be lost or reacquired. Congress saw it fit to decree that
defenseless class which suffers from a misfortune not of their own making. natural-born citizenship may be reacquired even if it had been once lost. It is
We cannot be restrictive as to their application if we are a country which calls not for the COMELEC to disagree with the Congress' determination.
itself civilized and a member of the community of nations. The Solicitor
General's warning in his opening statement is relevant: More importantly, COMELEC's position that natural-born status must be
continuous was already rejected in Bengson III v. HRET145 where the phrase
.... the total effect of those documents is to signify to this Honorable Court "from birth" was clarified to mean at the time of birth: "A person who at the
that those treaties and conventions were drafted because the world time of his birth, is a citizen of a particular country, is a natural-born citizen
community is concerned that the situation of foundlings renders them legally thereof." Neither is "repatriation" an act to "acquire or perfect" one's
invisible. It would be tragically ironic if this Honorable Court ended up using citizenship. In Bengson III v. HRET, this Court pointed out that there are only
the international instruments which seek to protect and uplift foundlings a tool two types of citizens under the 1987 Constitution: natural-born citizen and
to deny them political status or to accord them second-class citizenship.138 naturalized, and that there is no third category for repatriated citizens:

The COMELEC also ruled139 that petitioner's repatriation in July 2006 under It is apparent from the enumeration of who are citizens under the present
the provisions of R.A. No. 9225 did not result in the reacquisition of natural- Constitution that there are only two classes of citizens: (1) those who are
born citizenship. The COMELEC reasoned that since the applicant must natural-born and (2) those who are naturalized in accordance with law. A
perform an act, what is reacquired is not "natural-born" citizenship but only citizen who is not a naturalized Filipino, ie., did not have to undergo the
plain "Philippine citizenship." process of naturalization to obtain Philippine citizenship, necessarily is a
natural-born Filipino. Noteworthy is the absence in said enumeration of a
The COMELEC's rule arrogantly disregards consistent jurisprudence on the separate category for persons who, after losing Philippine citizenship,
matter of repatriation statutes in general and of R.A. No. 9225 in particular. subsequently reacquire it. The reason therefor is clear: as to such persons,
they would either be natural-born or naturalized depending on the reasons
In the seminal case of Bengson Ill v. HRET, 140 repatriation was explained as for the loss of their citizenship and the mode prescribed by the applicable law
for the reacquisition thereof. As respondent Cruz was not required by law to
follows:
go through naturalization proceedings in order to reacquire his citizenship, he
is perforce a natural-born Filipino. As such, he possessed all the necessary
Moreover, repatriation results in the recovery of the original nationality. This qualifications to be elected as member of the House of Representatives.146
means that a naturalized Filipino who lost his citizenship will be restored to
his prior status as a naturalized Filipino citizen. On the other hand, if he was
The COMELEC cannot reverse a judicial precedent. That is reserved to this
originally a natural-born citizen before he lost his Philippine citizenship, he
Court. And while we may always revisit a doctrine, a new rule reversing
will be restored to his former status as a natural-born Filipino.
standing doctrine cannot be retroactively applied. In Morales v. Court of
Appeals and Jejomar Erwin S. Binay, Jr.,147 where we decreed reversed the
R.A. No. 9225 is a repatriation statute and has been described as such in condonation doctrine, we cautioned that it "should be prospective in
several cases. They include Sobejana-Condon v. COMELEC141 where we application for the reason that judicial decisions applying or interpreting the
described it as an "abbreviated repatriation process that restores one's laws of the Constitution, until reversed, shall form part of the legal system of
Filipino citizenship x x x." Also included is Parreno v. Commission on the Philippines." This Court also said that "while the future may ultimately
Audit,142 which cited Tabasa v. Court of Appeals,143where we said that "[t]he uncover a doctrine's error, it should be, as a general rule, recognized as
repatriation of the former Filipino will allow him to recover his natural-born
good law prior to its abandonment. Consequently, the people's reliance the day before May 09, 2016," she put in "10 years 11 months" which
thereupon should be respected."148 according to her pleadings in these cases corresponds to a beginning date of
25 May 2005 when she returned for good from the U.S.
Lastly, it was repeatedly pointed out during the oral arguments that petitioner
committed a falsehood when she put in the spaces for "born to" in her When petitioner immigrated to the U.S. in 1991, she lost her original
application for repatriation under R.A. No. 9225 the names of her adoptive domicile, which is the Philippines. There are three requisites to acquire a new
parents, and this misled the BI to presume that she was a natural-born domicile: 1. Residence or bodily presence in a new locality; 2. an intention to
Filipino. It has been contended that the data required were the names of her remain there; and 3. an intention to abandon the old domicile.152 To
biological parents which are precisely unknown. successfully effect a change of domicile, one must demonstrate an actual
removal or an actual change of domicile; a bona fide intention of abandoning
This position disregards one important fact - petitioner was legally adopted. the former place of residence and establishing a new one and definite acts
One of the effects of adoption is "to sever all legal ties between the biological which correspond with the purpose. In other words, there must basically
parents and the adoptee, except when the biological parent is the spouse of be animus manendi coupled with animus non revertendi. The purpose to
the adoptee."149 Under R.A. No. 8552, petitioner was also entitled to an remain in or at the domicile of choice must be for an indefinite period of time;
amended birth certificate "attesting to the fact that the adoptee is the child of the change of residence must be voluntary; and the residence at the place
the adopter(s)" and which certificate "shall not bear any notation that it is an chosen for the new domicile must be actual.153
amended issue."150 That law also requires that "[a]ll records, books, and
papers relating to the adoption cases in the files of the court, the Department Petitioner presented voluminous evidence showing that she and her family
[of Social Welfare and Development], or any other agency or institution abandoned their U.S. domicile and relocated to the Philippines for good.
participating in the adoption proceedings shall be kept strictly These evidence include petitioner's former U.S. passport showing her arrival
confidential."151 The law therefore allows petitioner to state that her adoptive on 24 May 2005 and her return to the Philippines every time she travelled
parents were her birth parents as that was what would be stated in her birth abroad; e-mail correspondences starting in March 2005 to September 2006
certificate anyway. And given the policy of strict confidentiality of adoption with a freight company to arrange for the shipment of their household items
records, petitioner was not obligated to disclose that she was an adoptee. weighing about 28,000 pounds to the Philippines; e-mail with the Philippine
Bureau of Animal Industry inquiring how to ship their dog to the Philippines;
Clearly, to avoid a direct ruling on the qualifications of petitioner, which it school records of her children showing enrollment in Philippine schools
cannot make in the same case for cancellation of COC, it resorted to starting June 2005 and for succeeding years; tax identification card for
opinionatedness which is, moreover, erroneous. The whole process petitioner issued on July 2005; titles for condominium and parking slot issued
undertaken by COMELEC is wrapped in grave abuse of discretion. in February 2006 and their corresponding tax declarations issued in April
2006; receipts dated 23 February 2005 from the Salvation Army in the U.S.
On Residence acknowledging donation of items from petitioner's family; March 2006 e-mail
to the U.S. Postal Service confirming request for change of address; final
statement from the First American Title Insurance Company showing sale of
The tainted process was repeated in disposing of the issue of whether or not their U.S. home on 27 April 2006; 12 July 2011 filled-up questionnaire
petitioner committed false material representation when she stated in her submitted to the U.S. Embassy where petitioner indicated that she had been
COC that she has before and until 9 May 2016 been a resident of the a Philippine resident since May 2005; affidavit from Jesusa Sonora Poe
Philippines for ten (10) years and eleven (11) months. (attesting to the return of petitioner on 24 May 2005 and that she and her
family stayed with affiant until the condominium was purchased); and
Petitioner's claim that she will have been a resident for ten (10) years and Affidavit from petitioner's husband (confirming that the spouses jointly
eleven (11) months on the day before the 2016 elections, is true. decided to relocate to the Philippines in 2005 and that he stayed behind in
the U.S. only to finish some work and to sell the family home).
The Constitution requires presidential candidates to have ten (10) years'
residence in the Philippines before the day of the elections. Since the The foregoing evidence were undisputed and the facts were even listed by
forthcoming elections will be held on 9 May 2016, petitioner must have been the COMELEC, particularly in its Resolution in the Tatad, Contreras and
a resident of the Philippines prior to 9 May 2016 for ten (10) years. In answer Valdez cases.
to the requested information of "Period of Residence in the Philippines up to
However, the COMELEC refused to consider that petitioner's domicile had residence here on 24 May 2005 (securing T.I.N, enrolling her children in
been timely changed as of 24 May 2005. At the oral arguments, COMELEC Philippine schools, buying property here, constructing a residence here,
Commissioner Arthur Lim conceded the presence of the first two requisites, returning to the Philippines after all trips abroad, her husband getting
namely, physical presence and animus manendi, but maintained there was employed here). Indeed, coupled with her eventual application to reacquire
no animus non-revertendi.154 The COMELEC disregarded the import of all Philippine citizenship and her family's actual continuous stay in the
the evidence presented by petitioner on the basis of the position that the Philippines over the years, it is clear that when petitioner returned on 24 May
earliest date that petitioner could have started residence in the Philippines 2005 it was for good.
was in July 2006 when her application under R.A. No. 9225 was approved by
the BI. In this regard, COMELEC relied on Coquilla v. COMELEC,155 Japzon In this connection, the COMELEC also took it against petitioner that she had
v. COMELEC156 and Caballero v. COMELEC. 157 During the oral arguments, entered the Philippines visa-free as a balikbayan. A closer look at R.A. No.
the private respondents also added Reyes v. COMELEC.158 Respondents 6768 as amended, otherwise known as the "An Act Instituting a Balikbayan
contend that these cases decree that the stay of an alien former Filipino Program," shows that there is no overriding intent to treat balikbayans as
cannot be counted until he/she obtains a permanent resident visa or temporary visitors who must leave after one year. Included in the law is a
reacquires Philippine citizenship, a visa-free entry under a balikbayan stamp former Filipino who has been naturalized abroad and "comes or returns to
being insufficient. Since petitioner was still an American (without any resident the Philippines." 163 The law institutes a balikbayan program "providing the
visa) until her reacquisition of citizenship under R.A. No. 9225, her stay from opportunity to avail of the necessary training to enable the balikbayan to
24 May 2005 to 7 July 2006 cannot be counted. become economically self-reliant members of society upon their return to the
country"164in line with the government's "reintegration
But as the petitioner pointed out, the facts in these four cases are very program."165 Obviously, balikbayans are not ordinary transients.
different from her situation. In Coquilla v. COMELEC,159 the only evidence
presented was a community tax certificate secured by the candidate and his Given the law's express policy to facilitate the return of a balikbayan and help
declaration that he would be running in the elections. Japzon v. him reintegrate into society, it would be an unduly harsh conclusion to say in
COMELEC160 did not involve a candidate who wanted to count residence absolute terms that the balikbayan must leave after one year. That visa-free
prior to his reacquisition of Philippine citizenship. With the Court decreeing period is obviously granted him to allow him to re-establish his life and
that residence is distinct from citizenship, the issue there was whether the reintegrate himself into the community before he attends to the necessary
candidate's acts after reacquisition sufficed to establish residence. formal and legal requirements of repatriation. And that is exactly what
In Caballero v. COMELEC, 161 the candidate admitted that his place of work petitioner did - she reestablished life here by enrolling her children and
was abroad and that he only visited during his frequent vacations. In Reyes buying property while awaiting the return of her husband and then applying
v. COMELEC,162 the candidate was found to be an American citizen who had for repatriation shortly thereafter.
not even reacquired Philippine citizenship under R.A. No. 9225 or had
renounced her U.S. citizenship. She was disqualified on the citizenship issue. No case similar to petitioner's, where the former Filipino's evidence of
On residence, the only proof she offered was a seven-month stint as
change in domicile is extensive and overwhelming, has as yet been decided
provincial officer. The COMELEC, quoted with approval by this Court, said
by the Court. Petitioner's evidence of residence is unprecedented. There is
that "such fact alone is not sufficient to prove her one-year residency."
no judicial precedent that comes close to the facts of residence of petitioner.
There is no indication in Coquilla v. COMELEC,166 and the other cases cited
It is obvious that because of the sparse evidence on residence in the four by the respondents that the Court intended to have its rulings there apply to a
cases cited by the respondents, the Court had no choice but to hold that situation where the facts are different. Surely, the issue of residence has
residence could be counted only from acquisition of a permanent resident been decided particularly on the facts-of-the case basis.
visa or from reacquisition of Philippine citizenship. In contrast, the evidence
of petitioner is overwhelming and taken together leads to no other conclusion
To avoid the logical conclusion pointed out by the evidence of residence of
that she decided to permanently abandon her U.S. residence (selling the petitioner, the COMELEC ruled that petitioner's claim of residence of ten (10)
house, taking the children from U.S. schools, getting quotes from the freight years and eleven (11) months by 9 May 2016 in her 2015 COC was false
company, notifying the U.S. Post Office of the abandonment of their address
because she put six ( 6) years and six ( 6) months as "period of residence
in the U.S., donating excess items to the Salvation Army, her husband
before May 13, 2013" in her 2012 COC for Senator. Thus, according to the
resigning from U.S. employment right after selling the U.S. house) and
COMELEC, she started being a Philippine resident only in November 2006.
permanently relocate to the Philippines and actually re-established her
In doing so, the COMELEC automatically assumed as true the statement in 2005. When she claimed to have been a resident for ten (10) years and
the 2012 COC and the 2015 COC as false. eleven (11) months, she could do so in good faith.

As explained by petitioner in her verified pleadings, she misunderstood the For another, it could not be said that petitioner was attempting to hide
date required in the 2013 COC as the period of residence as of the day she anything. As already stated, a petition for quo warranto had been filed
submitted that COC in 2012. She said that she reckoned residency from against her with the SET as early as August 2015. The event from which the
April-May 2006 which was the period when the U.S. house was sold and her COMELEC pegged the commencement of residence, petitioner's repatriation
husband returned to the Philippines. In that regard, she was advised by her in July 2006 under R.A. No. 9225, was an established fact to repeat, for
lawyers in 2015 that residence could be counted from 25 May 2005. purposes of her senatorial candidacy.

Petitioner's explanation that she misunderstood the query in 2012 (period of Notably, on the statement of residence of six (6) years and six (6) months in
residence before 13 May 2013) as inquiring about residence as of the time the 2012 COC, petitioner recounted that this was first brought up in the
she submitted the COC, is bolstered by the change which the COMELEC media on 2 June 2015 by Rep. Tobias Tiangco of the United Nationalist
itself introduced in the 2015 COC which is now "period of residence in the Alliance. Petitioner appears to have answered the issue immediately, also in
Philippines up to the day before May 09, 2016." The COMELEC would not the press. Respondents have not disputed petitioner's evidence on this point.
have revised the query if it did not acknowledge that the first version was From that time therefore when Rep. Tiangco discussed it in the media, the
vague. stated period of residence in the 2012 COC and the circumstances that
surrounded the statement were already matters of public record and were not
That petitioner could have reckoned residence from a date earlier than the hidden.
sale of her U.S. house and the return of her husband is plausible given the
evidence that she had returned a year before. Such evidence, to repeat, Petitioner likewise proved that the 2012 COC was also brought up in the SET
would include her passport and the school records of her children. petition for quo warranto. Her Verified Answer, which was filed on 1
September 2015, admitted that she made a mistake in the 2012 COC when
It was grave abuse of discretion for the COMELEC to treat the 2012 COC as she put in six ( 6) years and six ( 6) months as she misunderstood the
a binding and conclusive admission against petitioner. It could be given in question and could have truthfully indicated a longer period. Her answer in
evidence against her, yes, but it was by no means conclusive. There is the SET case was a matter of public record. Therefore, when petitioner
precedent after all where a candidate's mistake as to period of residence accomplished her COC for President on 15 October 2015, she could not be
made in a COC was overcome by evidence. In Romualdez-Marcos v. said to have been attempting to hide her erroneous statement in her 2012
COMELEC,167 the candidate mistakenly put seven (7) months as her period COC for Senator which was expressly mentioned in her Verified Answer.
of residence where the required period was a minimum of one year. We said
that "[i]t is the fact of residence, not a statement in a certificate of candidacy The facts now, if not stretched to distortion, do not show or even hint at an
which ought to be decisive in determining whether or not an individual has intention to hide the 2012 statement and have it covered by the 2015
satisfied the constitutions residency qualification requirement." The representation. Petitioner, moreover, has on her side this Court's
COMELEC ought to have looked at the evidence presented and see if pronouncement that:
petitioner was telling the truth that she was in the Philippines from 24 May
2005. Had the COMELEC done its duty, it would have seen that the 2012 Concededly, a candidate's disqualification to run for public office does not
COC and the 2015 COC both correctly stated the pertinent period of necessarily constitute material misrepresentation which is the sole ground for
residency. denying due course to, and for the cancellation of, a COC. Further, as
already discussed, the candidate's misrepresentation in his COC must not
The COMELEC, by its own admission, disregarded the evidence that only refer to a material fact (eligibility and qualifications for elective office),
petitioner actually and physically returned here on 24 May 2005 not because but should evince a deliberate intent to mislead, misinform or hide a fact
it was false, but only because COMELEC took the position that domicile which would otherwise render a candidate ineligible. It must be made with an
could be established only from petitioner's repatriation under R.A. No. 9225 intention to deceive the electorate as to one's qualifications to run for public
in July 2006. However, it does not take away the fact that in reality, petitioner office.168
had returned from the U.S. and was here to stay permanently, on 24 May
In sum, the COMELEC, with the same posture of infallibilism, virtually in Unit 7F until the construction of their family home in Corinthian Hills was
ignored a good number of evidenced dates all of which can evince animus completed.
manendi to the Philippines and animus non revertedi to the United States of
America. The veracity of the events of coming and staying home was as Sometime in the second half of 2005, [petitioner's] mother discovered that
much as dismissed as inconsequential, the focus having been fixed at the her former lawyer who handled [petitioner's] adoption in 1974 failed to secure
petitioner's "sworn declaration in her COC for Senator" which the COMELEC from the Office of the Civil Registrar of Iloilo a new Certificate of Live Birth
said "amounts to a declaration and therefore an admission that her residence indicating [petitioner's] new name and stating that her parents are "Ronald
in the Philippines only commence sometime in November 2006"; such that Allan K. Poe" and "Jesusa L. Sonora."
"based on this declaration, [petitioner] fails to meet the residency
requirement for President." This conclusion, as already shown, ignores the
In February 2006, [petitioner] travelled briefly to the US in order to supervise
standing jurisprudence that it is the fact of residence, not the statement of the
the disposal of some of the family's remaining household
person that determines residence for purposes of compliance with the belongings.1a\^/phi1 [Petitioner] returned to the Philippines on 11 March
constitutional requirement of residency for election as President. It ignores
2006.
the easily researched matter that cases on questions of residency have been
decided favorably for the candidate on the basis of facts of residence far less
in number, weight and substance than that presented by petitioner. 169 It In late March 2006, [petitioner's] husband informed the United States Postal
ignores, above all else, what we consider as a primary reason why petitioner Service of the family's abandonment of their address in the US.
cannot be bound by her declaration in her COC for Senator which declaration
was not even considered by the SET as an issue against her eligibility for The family home in the US was sole on 27 April 2006.
Senator. When petitioner made the declaration in her COC for Senator that
she has been a resident for a period of six (6) years and six (6) months In April 2006, [petitioner's] husband resigned from his work in the US. He
counted up to the 13 May 2013 Elections, she naturally had as reference the returned to the Philippines on 4 May 2006 and began working for a Philippine
residency requirements for election as Senator which was satisfied by her company in July 2006.
declared years of residence. It was uncontested during the oral arguments
before us that at the time the declaration for Senator was made, petitioner In early 2006, [petitioner] and her husband acquired a vacant lot in Corinthian
did not have as yet any intention to vie for the Presidency in 2016 and that Hills, where they eventually built their family home.170
the general public was never made aware by petitioner, by word or action,
that she would run for President in 2016. Presidential candidacy has a
In light of all these, it was arbitrary for the COMELEC to satisfy its intention to
length-of-residence different from that of a senatorial candidacy. There are
let the case fall under the exclusive ground of false representation, to
facts of residence other than that which was mentioned in the COC for
consider no other date than that mentioned by petitioner in her COC for
Senator. Such other facts of residence have never been proven to be false,
Senator.
and these, to repeat include:
All put together, in the matter of the citizenship and residence of petitioner for
[Petitioner] returned to the Philippines on 24 May 2005. (petitioner's]
her candidacy as President of the Republic, the questioned Resolutions of
husband however stayed in the USA to finish pending projects and arrange
the COMELEC in Division and En Banc are, one and all, deadly diseased
the sale of their family home.
with grave abuse of discretion from root to fruits.
Meanwhile [petitioner] and her children lived with her mother in San Juan
WHEREFORE, the petition is GRANTED. The Resolutions, to wit:
City. [Petitioner] enrolled Brian in Beacon School in Taguig City in 2005 and
Hanna in Assumption College in Makati City in 2005. Anika was enrolled in
Learning Connection in San Juan in 2007, when she was already old enough 1. dated 1 December 2015 rendered through the COMELEC Second
to go to school. Division, in SPA No. 15-001 (DC), entitled Estrella C. Elamparo, petitioner,
vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent, stating that:
In the second half of 2005, [petitioner] and her husband acquired Unit 7F of
One Wilson Place Condominium in San Juan. [Petitioner] and her family lived
[T]he Certificate of Candidacy for President of the Republic of the Philippines G.R. No. 182369 December 18, 2008
in the May 9, 2016 National and Local Elections filed by respondent Mary
Grace Natividad Sonora Poe-Llamanzares is hereby GRANTED. MIKE A. FERMIN, petitioner,
vs.
2. dated 11 December 2015, rendered through the COMELEC First Division, COMMISSION ON ELECTIONS and UMBRA RAMIL BAYAM
in the consolidated cases SPA No. 15-002 (DC) entitled Francisco S. Tatad, DILANGALEN, respondents.
petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares,
respondent; SPA No. 15-007 (DC) entitled Antonio P. Contreras, petitioner, DECISION
vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent; and SPA
No. 15-139 (DC) entitled Amado D. Valdez, petitioner, v. Mary Grace
NACHURA, J.:
Natividad Sonora Poe-Llamanzares, respondent; stating that:
These consolidated petitions provide a welcome avenue for the Court to
WHEREFORE, premises considered, the Commission RESOLVED, as it dichotomize, once and for all, two popular remedies to prevent a candidate
hereby RESOLVES, to GRANT the petitions and cancel the Certificate of
from running for an elective position which are indiscriminately interchanged
Candidacy of MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES
by the Bench and the Bar, adding confusion to the already difficult state of
for the elective position of President of the Republic of the Philippines in
our jurisprudence on election laws.
connection with the 9 May 2016 Synchronized Local and National Elections.
For the Court’s resolution are two petitions for certiorari under Rule 64 in
3. dated 23 December 2015 of the COMELEC En Banc, upholding the 1
relation to Rule 65 of the Rules of Court: (1) G.R. No. 179695, which assails
December 2015 Resolution of the Second Division stating that:
the June 29, 2007 Resolution1 of the Commission on Elections (COMELEC)
2ndDivision in SPA No. 07-372, and the September 20, 2007 Resolution2 of
WHEREFORE, premises considered, the Commission RESOLVED, as it the COMELEC En Banc affirming the said division resolution; and (2) G.R.
hereby RESOLVES, to DENY the Verified Motion for Reconsideration of No. 182369, which challenges the February 14, 2008 Resolution3 of the
SENATOR MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES. COMELEC 1st Division in SPR No. 45-2007, the March 13, 2008 Order4 of
The Resolution dated 11 December 2015 of the Commission First Division is the COMELEC En Banc denying petitioner’s motion for reconsideration, and
AFFIRMED. the March 26, 2008 Entry of Judgment5 issued by the Electoral Contests and
Adjudication Department (ECAD) of the Commission in the said case.
4. dated 23 December 2015 of the COMELEC En Banc, upholding the 11
December 2015 Resolution of the First Division. The relevant facts and proceedings follow.

are hereby ANNULED and SET ASIDE. Petitioner MARY GRACE After the creation of Shariff Kabunsuan,6 the Regional Assembly of the
NATIVIDAD SONORA POE-LLAMANZARES is DECLARED QUALIFIED to Autonomous Region in Muslim Mindanao (ARMM), on November 22, 2006,
be a candidate for President in the National and Local Elections of 9 May passed Autonomy Act No. 2057 creating the Municipality of Northern
2016. Kabuntalan in Shariff Kabunsuan. This new municipality was constituted by
separating Barangays Balong, Damatog, Gayonga, Guiawa, Indatuan,
Kapinpilan, P. Labio, Libungan, Montay, Sabaken and Tumaguinting from the
Municipality of Kabuntalan.8
G.R. No. 179695 December 18, 2008
Mike A. Fermin, the petitioner in both cases, was a registered voter
MIKE A. FERMIN, petitioner, of Barangay Payan, Kabuntalan. On December 13, 2006, claiming that he
vs. had been a resident of Barangay Indatuan for 1 year and 6 months, petitioner
COMMISSION ON ELECTIONS and UMBRA RAMIL BAYAM applied with the COMELEC for the transfer of his registration record to the
DILANGALEN, respondents. said barangay.9 In the meantime, the creation of North Kabuntalan was
ratified in a plebiscite on December 30, 2006,10 formally
making Barangay Indatuan a component of Northern Kabuntalan.
Thereafter, on January 8, 2007, the COMELEC approved petitioner's he has relocated to that municipality a year and six months earlier, or
application for the transfer of his voting record and registration as a voter to on or about June 2005, when in truth and in fact he has never
Precinct 21A of Barangay Indatuan, Northern Kabuntalan.11 On March 29, resided much less domiciled himself in Indatuan or anywhere else in
2007, Fermin filed his Certificate of Candidacy (CoC) for mayor of Northern the Municipality of Northern Kabuntalan earlier than 14 May 2006.
Kabuntalan in the May 14, 2007 National and Local Elections.12
6. THE RESPONDENT perjured himself when he swore to the truth
On April 20, 2007, private respondent Umbra Ramil Bayam Dilangalen, of his statement in his Certificate of Candidacy of being a resident of
another mayoralty candidate, filed a Petition13 for Disqualification [the the Municipality for the last 38 years, when in truth and in fact he has
Dilangalen petition] against Fermin, docketed as SPA (PES) No. A07-003 never resided in the Municipality, but was simply visiting the area
[re-docketed as SPA No. 07-372 before the COMELEC] with the Office of the whenever election is [f]ast approaching.
Provincial Election Supervisor of Shariff Kabunsuan. The petition alleged that
the petitioner did not possess the period of residency required for candidacy WHEREFORE, premises considered, it is most respectfully prayed
and that he perjured himself in his CoC and in his application for transfer of that, [in consideration] of the Respondent not possessing the
voting record. The pertinent portions of the petition follow: residence required for candidacy, and having perjured himself in a
number of times, the Commission disqualify the Respondent.14
1. THE PETITIONER is of legal age, a registered voter, resident and
incumbent Municipal Mayor of the Municipality of Northern Elections were held without any decision being rendered by the COMELEC
Kabuntalan, holding office at Barangay Paulino Labio in the in the said case. After the counting and canvassing of votes, Dilangalen
Municipality of Northern Kabuntalan where he may be served emerged as the victor with 1,849 votes over Fermin’s 1,640.15 The latter
summons and other legal processes. subsequently filed an election protest (Election Case No. 2007-022) with the
Regional Trial Court (RTC), Branch 13 of Cotabato City. 16
2. THE PETITIONER is a candidate for election as Mayor in the
same Municipality of Northern Kabuntalan, being a resident of and G.R. No. 179695
domiciled in the Municipality since birth. The Respondent is also a
candidate for the same office, Mayor in the same Municipality of
On June 29, 2007, the COMELEC 2nd Division, in SPA No. 07-372,
Northern Kabuntalan. He is, however, not a resident of the
disqualified Fermin for not being a resident of Northern Kabuntalan.17 It ruled
Municipality. that, based on his declaration that he is a resident of Barangay Payan as of
April 27, 2006 in his oath of office before Datu Andal Ampatuan, Fermin
3. THE RESPONDENT perjured himself when he swore to the truth could not have been a resident of BarangayIndatuan for at least one year.18
of his statement in his Certificate of Candidacy of being a resident of
the Municipality for the last 38 years, when in truth and in fact he The COMELEC En Banc, on September 20, 2007, affirmed the Division's
simply transferred his registration from the Municipality of
ruling.19
Kabuntalan on 13 December 2006, wherein he stated that he has
relocated to that municipality a year and six months earlier, or no
earlier than June 2005. Thus, petitioner instituted G.R. No. 179695 before this Court raising the
following issues:
4. THE RESPONDENT perjured himself when he swore to the truth
of his statement in his Certificate of Candidacy of being a resident of A.
the Municipality for the last 38 years, when in truth and in fact he has
stayed for at least 33 years in Barangay Payan, Municipality [of] WHETHER OR NOT THE PETITION TO DISQUALIFY PETITIONER
Kabunt[a]lan. FROM SEEKING THE MAYORALTY POST OF THE
MUNICIPALITY OF NORTHERN KABUNTALAN SHOULD BE
5. THE RESPONDENT perjured himself when he swore to the truth DISMISSED FOR HAVING BEEN FILED OUT OF TIME.
of his statement in his Application for Transfer that he is a resident
of Barangay Indatuan on 13 December 2006, wherein he stated that B.
 WHETHER OR NOT THE ONE (1) YEAR RESIDENCY disqualification as a candidate; and this Court, in the abovementioned case,
REQUIREMENT AS PROVIDED BY ART. 56, PAR. NO. 3, RULE did not issue an order restraining the implementation of the assailed
XIII, RULES AND REGULATIONS IMPLEMENTING THE LOCAL COMELEC resolutions.
GOVERNMENT CODE OF THE AUTONOMOUS REGION IN
MUSLIM MINDANAO IS APPLICABLE TO PETITIONER, WHO The RTC, however, denied this motion on September 28, 2007. On motion
TRANSFERRED HIS VOTER'S REGISTRATION RECORD DUE TO for reconsideration, the trial court remained steadfast in its stand that the
CHANGE OF RESIDENCE FROM BARANGAY PAYAN TO election protest was separate and distinct from the COMELEC proceedings,
BARANGAY INDATUAN IN THE SAME MUNICIPALITY OF and that, unless restrained by the proper authority, it would continue hearing
KABUNTALAN.20 the protest.26

Petitioner contends that the Dilangalen petition is a petition to deny due Assailing the RTC’s denial of his motions, Dilangalen filed a Petition for
course to or cancel a CoC under Section 78 of the Omnibus Election Code Certiorari and Prohibition27 docketed as SPR No. 45-2007 with the
(OEC).21 Following Republic Act (R.A.) No. 6646, the same must be filed COMELEC. On February 14, 2008, the COMELEC 1st Division set aside the
within 5 days from the last day for the filing of CoC, which, in this case, is aforesaid orders of the trial court for having been issued with grave abuse of
March 30, 2007, and considering that the said petition was filed by discretion, prohibited the said court from acting on and proceeding with the
Dilangalen only on April 20, 2007, the same was filed out of time. The protest, and ordered it to dismiss the same.28 The COMELEC En Banc, on
COMELEC should have then dismissed SPA No. 07-372 outright.22 March 13, 2008, denied petitioner’s motion for the reconsideration of the
division’s ruling on account of Fermin’s failure to pay the required fees. It
Petitioner further argues that he has been a resident of Barangay Indatuan further directed the issuance of an entry of judgment in the said case. 29 On
long before the creation of Northern Kabuntalan. This change of residence March 26, 2008, the ECAD recorded the finality of the ruling in SPR No. 45-
prompted him to apply for the transfer of his voter’s registration record 2007 in the Book of Entries of Judgments.30
from Barangay Payan to Barangay Indatuan. Moreover, the one year
residency requirement under the law is not applicable to candidates for These developments prompted Fermin to file another certiorari petition
elective office in a newly created municipality, because the length of before this Court, docketed as G.R. No. 182369. In this petition, Fermin
residency of all its inhabitants is reckoned from the effective date of its raises the following issues for our resolution:
creation.23
A.
In his comment, private respondent counters that the petition it filed is one for
disqualification under Section 68 of the OEC which may be filed at any time Whether or not public respondent has departed from the accepted
after the last day for filing of the CoC but not later than the candidate’s
and usual course of its rules of procedure, as to call for an exercise
proclamation should he win in the elections. As he filed the petition on April
of the power of supervision by the Honorable Court.
20, 2007, long before the proclamation of the eventual winning candidate, the
same was filed on time.24
B.
Private respondent likewise posits that petitioner failed to comply with the
one-year residency requirement for him to be able to run for an elective office Whether or not public respondent in taking cognizance of
in Northern Kabuntalan. Petitioner applied for the transfer of his voting record the certiorari and prohibition not in aid of its appellate jurisdiction,
on December 13, 2006, and this was approved only on January 8, 2007. 25 acted without or in excess of jurisdiction, or with grave abuse of
discretion amounting to lack or in (sic) excess [of jurisdiction].
G.R. No. 182369
C.
During the pendency of G.R. No. 179695 with the Court, Dilangalen filed, on
September 27, 2007, with the RTC of Cotabato a motion to dismiss Election Whether or not public respondent, in ordering Judge Ibrahim to
Case No. 07-022 on the ground that Fermin had no legal standing to file the dismiss the election protest case, acted without or in excess of
said protest, the COMELEC En Banc having already affirmed his jurisdiction, or with grave abuse of discretion amounting to lack or in
(sic) excess of jurisdiction.
 D. (3) Whether or not the COMELEC gravely abuse its discretion when it
declared petitioner as not a resident of the locality for at least one year prior
Whether or not public respondent, in not uniformly observing its to the May 14, 2007 elections; and
process in the service of its resolution and/or order, had denied to
petitioner the equal protection of the law. (4) Whether or not the COMELEC gravely abuse its discretion when it
ordered the dismissal of Election Case No. 07-022 on the ground that Fermin
E. had no legal standing to file the protest.

Whether or not the petition for certiorari and prohibition is dismissible Our Ruling
in view of the pendency of another action and whereby the result of
the first action is determinative of the second action in any event and I.
regardless of which party is successful.
Pivotal in the ascertainment of the timeliness of the Dilangalen petition is its
F. proper characterization.

Whether or not there is forum shopping. As aforesaid, petitioner, on the one hand, argues that the Dilangalen petition
was filed pursuant to Section 78 of the OEC; while private respondent
G. counters that the same is based on Section 68 of the Code.

Whether or not the public respondent, acting not in aid of its After studying the said petition in detail, the Court finds that the same is in
appellate jurisdiction, has authority to issue TRO and/or Preliminary the nature of a petition to deny due course to or cancel a CoC under Section
Injunction as ancillary remedy of the original action for certiorari and 7833 of the OEC. The petition contains the essential allegations of a "Section
prohibition. 78" petition, namely: (1) the candidate made a representation in his
certificate; (2) the representation pertains to a material matter which would
affect the substantive rights of the candidate (the right to run for the election
H.
for which he filed his certificate); and (3) the candidate made the false
representation with the intention to deceive the electorate as to his
Whether or not public respondent has jurisdiction to divest the Court qualification for public office or deliberately attempted to mislead, misinform,
of Judge Ibrahim of its jurisdiction on the election protest case.31 or hide a fact which would otherwise render him ineligible.34 It likewise
appropriately raises a question on a candidate’s eligibility for public office, in
The Court, on April 29, 2008, initially dismissed the said petition. 32 Fermin this case, his possession of the one-year residency requirement under the
subsequently filed in succession his motions for reconsideration and for the law.
consolidation of G.R. Nos. 179695 & 182369. Considering that the two
petitions were interrelated, the Court resolved to consolidate them. Lest it be misunderstood, the denial of due course to or the cancellation of
the CoC is not based on the lack of qualifications but on a finding that the
The Issues candidate made a material representation that is false, which may relate to
the qualifications required of the public office he/she is running for. It is noted
The primordial issues in these consolidated cases may be encapsulated, as that the candidate states in his/her CoC that he/she is eligible for the office
follows: he/she seeks. Section 78 of the OEC, therefore, is to be read in relation
to the constitutional35 and statutory36 provisions on qualifications or
(1) Whether or not the Dilangalen petition is one under Section 68 or Section eligibility for public office. If the candidate subsequently states a
78 of the OEC; material representation in the CoC that is false, the COMELEC,
following the law, is empowered to deny due course to or cancel such
certificate.37 Indeed, the Court has already likened a proceeding under
(2) Whether or not it was filed on time;
Section 78 to a quo warranto proceeding under Section 25338 of the OEC
since they both deal with the eligibility or qualification of a candidate,39 with SEC. 12. Disqualifications.–Any person who has been
the distinction mainly in the fact that a "Section 78" petition is filed before declared by competent authority insane or incompetent, or
proclamation, while a petition for quo warranto is filed after proclamation of has been sentenced by final judgment for subversion,
the wining candidate. insurrection, rebellion, or for any offense for which he has
been sentenced to a penalty of more than eighteen months
At this point, we must stress that a "Section 78" petition ought not to be or for a crime involving moral turpitude, shall be disqualified
interchanged or confused with a "Section 68" petition. They are different to be a candidate and to hold any office, unless he has been
remedies, based on different grounds, and resulting in different given plenary pardon or granted amnesty.
eventualities. Private respondent’s insistence, therefore, that the petition it
filed before the COMELEC in SPA No. 07-372 is in the nature of a The disqualifications to be a candidate herein provided shall
disqualification case under Section 68, as it is in fact captioned a "Petition for be deemed removed upon the declaration by competent
Disqualification," does not persuade the Court. authority that said insanity or incompetence had been
removed or after the expiration of a period of five years from
The ground raised in the Dilangalen petition is that Fermin allegedly lacked his service or sentence, unless within the same period he
one of the qualifications to be elected as mayor of Northern Kabuntalan, i.e., again becomes disqualified.
he had not established residence in the said locality for at least one year
immediately preceding the election. Failure to meet the one-year residency Section 40 of the Local Government Code (LGC)40
requirement for the public office is not a ground for the "disqualification" of a
candidate under Section 68. The provision only refers to the commission of SECTION 40. Disqualifications–The following persons are
prohibited acts and the possession of a permanent resident status in a disqualified from running for any elective local position:
foreign country as grounds for disqualification, thus:
(a) Those sentence by final judgment for an offense
SEC. 68. Disqualifications.–Any candidate who, in an action or involving moral turpitude or for an offense
protest in which he is a party is declared by final decision of a punishable by one (1) year or more of imprisonment,
competent court guilty of, or found by the Commission of having (a) within two (2) years after serving sentence;
given money or other material consideration to influence, induce or
corrupt the voters or public officials performing electoral functions;
(b) Those removed from office as a result of an
(b) committed acts of terrorism to enhance his candidacy; (c) spent administrative case;
in his election campaign an amount in excess of that allowed by this
Code; (d) solicited, received or made any contribution prohibited
under Sections 89, 95, 96, 97 and 104; or (e) violated any of (c) Those convicted by final judgment for violating
Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, the oath of allegiance to the Republic;
subparagraph 6, shall be disqualified from continuing as a candidate,
or if he has been elected, from holding the office. Any person who is (d) Those with dual citizenship;
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 (e) Fugitive from justice in criminal or nonpolitical
said person has waived his status as a permanent resident or cases here or abroad;
immigrant of a foreign country in accordance with the residence
requirement provided for in the election laws. (f) Permanent residents in a foreign country or those
who have acquired the right to reside abroad and
Likewise, the other provisions of law referring to "disqualification" do not continue to avail of the same right after the effectivity
include the lack of the one-year residency qualification as a ground therefor, of this Code; and
thus:
(g) The insane or feeble-minded.
Sections 12 of the OEC
Considering that the Dilangalen petition does not state any of these grounds 3) The petition to disqualify a candidate for lack of qualification or
for disqualification, it cannot be categorized as a "Section 68" petition. possessing some grounds for disqualification, shall be filed in ten
(10) legible copies with the concerned office mentioned in Sec. 3
To emphasize, a petition for disqualification, on the one hand, can be hereof, personally or through a duly authorized representative by any
premised on Section 12 or 68 of the OEC, or Section 40 of the LGC. On the person of voting age, or duly registered political party, organization
other hand, a petition to deny due course to or cancel a CoC can only be or coalition of political parties on the grounds that any candidate
grounded on a statement of a material representation in the said certificate does not possess all the qualifications of a candidate as provided for
that is false. The petitions also have different effects. While a person who is by the constitution or by existing law, or who possesses some
disqualified under Section 68 is merely prohibited to continue as a candidate, grounds for disqualification,
the person whose certificate is cancelled or denied due course under Section
78 is not treated as a candidate at all, as if he/she never filed a CoC. Thus, 3.a. Disqualification under existing election laws:
in Miranda v. Abaya,41 this Court made the distinction that a candidate who is
disqualified under Section 68 can validly be substituted under Section 77 of 1. For not being a citizen of the Philippines;
the OEC because he/she remains a candidate until disqualified; but a person
whose CoC has been denied due course or cancelled under Section 78
2. For being a permanent resident of or an immigrant to a
cannot be substituted because he/she is never considered a candidate.42
foreign country;

In support of his claim that he actually filed a "petition for disqualification" and 3. For lack of the required age;
not a "petition to deny due course to or cancel a CoC," Dilangalen takes
refuge in Rule 25 of the COMELEC Rules of Procedure,43 specifically Section
144 thereof, to the extent that it states, "[a]ny candidate who does not 4. For lack of residence;
possess all the qualifications of a candidate as provided for by the
Constitution or by existing law x x x may be disqualified from continuing as a 5. For not being a registered voter;
candidate," and COMELEC Resolution No. 780045 (Rules Delegating to
COMELEC Field Officials the Authority to Hear and Receive Evidence in 6. For not being able to read and write;
Disqualification Cases Filed in Connection with the May 14, 2007 National
and Local Elections), which states in Section 5(C)(1) and (3)(a)(4) that: 7. In case of a party-list nominee, for not being a bona fide
member of the party or organization which he seeks to
Sec. 5. Procedure in filing petitions.–For purposes of the preceding represent for at least ninety (90) days immediately preceding
section, the following procedure shall be observed: the day of the election. [Emphasis supplied.]

xxxx We disagree. A COMELEC rule or resolution cannot supplant or vary the

legislative enactments that distinguish the grounds for disqualification from
C. PETITION TO DISQUALIFY A CANDIDATE PURSUANT TO those of ineligibility, and the appropriate proceedings to raise the said
SEC. 68 OF THE OMNIBUS ELECTION CODE AND PETITION TO grounds. In other words, Rule 25 and COMELEC Resolution No. 7800
DISQUALIFY FOR LACK OF QUALIFICATIONS OR POSSESSING cannot supersede the dissimilar requirements of the law for the filing of a
SOME GROUNDS FOR DISQUALIFICATION petition for disqualification under Section 68, and a petition for the denial of
due course to or cancellation of CoC under Section 78 of the OEC. 46 As aptly
1) A verified petition to disqualify a candidate pursuant to Sec. 68 of observed by the eminent constitutionalist, Supreme Court Justice Vicente V.
the OEC and the verified petition to disqualify a candidate for lack of Mendoza, in his separate opinion in Romualdez-Marcos v. Commission on
qualifications or possessing some grounds for disqualification may Elections:47
be filed on any day after the last day for filing of certificates of
candidacy but not later than the date of proclamation. Apparently realizing the lack of an authorized proceeding for
declaring the ineligibility of candidates, the COMELEC amended its
xxxx
rules on February 15, 1993 so as to provide in Rule 25, §1 the Indeed, provisions for disqualifications on the ground that the
following: candidate is guilty of prohibited election practices or offenses, like
other pre-proclamation remedies, are aimed at the detestable
Grounds for disqualification. – Any candidate who does not practice of "grabbing the proclamation and prolonging the election
possess all the qualifications of a candidate as provided for protest," through the use of "manufactured" election returns or resort
by the Constitution or by existing law or who commits any to other trickery for the purpose of altering the results of the election.
act declared by law to be grounds for disqualification may be This rationale does not apply to cases for determining a candidate’s
disqualified from continuing as a candidate. qualifications for office before the election. To the contrary, it is the
candidate against whom a proceeding for disqualification is brought
The lack of provision for declaring the ineligibility of who could be prejudiced because he could be prevented from
candidates, however, cannot be supplied by a mere rule. Such assuming office even though in the end he prevails.48
an act is equivalent to the creation of a cause of action which is
a substantive matter which the COMELEC, in the exercise of its Furthermore, the procedure laid down in the said Rule 25 of the COMELEC
rule-making power under Art. IX, A, §6 of the Constitution, Rules of Procedure cannot be used in "Section 78" proceedings, precisely
cannot do. It is noteworthy that the Constitution withholds from the because a different rule, Rule 23,49 specifically governs petitions to deny due
COMELEC even the power to decide cases involving the right to course to or cancel CoCs.
vote, which essentially involves an inquiry into qualifications based
on age, residence and citizenship of voters. [Art. IX, C, §2(3)] II.

The assimilation in Rule 25 of the COMELEC rules of grounds Having thus determined that the Dilangalen petition is one under Section 78
for ineligibility into grounds for disqualification is contrary to of the OEC, the Court now declares that the same has to comply with the 25-
the evident intention of the law. For not only in their grounds day statutory period for its filing. Aznar v. Commission on
but also in their consequences are proceedings for Elections50 and Loong v. Commission on Elections51 give ascendancy to the
"disqualification" different from those for a declaration of express mandate of the law that "the petition may be filed at any time not
"ineligibility." "Disqualification" proceedings, as already stated, later than twenty-five days from the time of the filing of the certificate of
are based on grounds specified in §12 and §68 of the Omnibus candidacy." Construed in relation to reglementary periods and the principles
Election Code and in §40 of the Local Government Code and are of prescription, the dismissal of "Section 78" petitions filed beyond the 25-day
for the purpose of barring an individual from becoming a period must come as a matter of course.
candidate or from continuing as a candidate for public office. In
a word, their purpose is to eliminate a candidate from the race We find it necessary to point out that Sections 5 and 7 52 of Republic Act
either from the start or during its progress. "Ineligibility," on the (R.A.) No. 6646,53 contrary to the erroneous arguments of both parties, did
other hand, refers to the lack of the qualifications prescribed in not in any way amend the period for filing "Section 78" petitions. While
the Constitution or the statutes for holding public office and the Section 7 of the said law makes reference to Section 5 on the procedure in
purpose of the proceedings for declaration of ineligibility is to the conduct of cases for the denial of due course to the CoCs of nuisance
remove the incumbent from office. candidates54 (retired Chief Justice Hilario G. Davide, Jr., in his dissenting
opinion in Aquino v. Commission on Elections55 explains that "the ‘procedure
Consequently, that an individual possesses the qualifications hereinabove provided’ mentioned in Section 7 cannot be construed to refer to
for a public office does not imply that he is not disqualified from Section 6 which does not provide for a procedure but for the effects of
becoming a candidate or continuing as a candidate for a public disqualification cases, [but] can only refer to the procedure provided in
office and vice-versa. We have this sort of dichotomy in our Section 5 of the said Act on nuisance candidates x x x."), the same cannot
Naturalization Law. (C.A. No. 473) That an alien has the be taken to mean that the 25-day period for filing "Section 78" petitions under
qualifications prescribed in §2 of the law does not imply that he does the OEC is changed to 5 days counted from the last day for the filing of
not suffer from any of [the] disqualifications provided in §4. CoCs. The clear language of Section 78 certainly cannot be amended or
modified by the mere reference in a subsequent statute to the use of a
procedure specifically intended for another type of action. Cardinal is the rule
in statutory construction that repeals by implication are disfavored and will
not be so declared by the Court unless the intent of the legislators is 15, 2006 and is therefore not qualified or eligible to seek election as
manifest.56In addition, it is noteworthy that Loong,57 which upheld the 25-day mayor in the said municipality.60
period for filing "Section 78" petitions, was decided long after the enactment
of R.A. 6646. In this regard, we therefore find as contrary to the unequivocal Obviously, the COMELEC relied on a single piece of evidence to support its
mandate of the law, Rule 23, Section 2 of the COMELEC Rules of Procedure finding that petitioner was not a resident of Barangay Indatuan, Northern
which states: Kabuntalan, i.e., the oath of office subscribed and sworn to before Governor
Datu Andal Ampatuan, in which petitioner indicated that he was a resident
Sec. 2. Period to File Petition.–The petition must be filed within five of Barangay Payan, Kabuntalan as of April 27, 2006. However, this single
(5) days following the last day for the filing of certificates of piece of evidence does not necessarily support a finding that petitioner was
candidacy. not a resident of Northern Kabuntalan as of May 14, 2006, or one year prior
to the May 14, 2007 elections.61 Petitioner merely admitted that he was a
As the law stands, the petition to deny due course to or cancel a CoC "may resident of another locality as of April 27, 2006, which was more than a year
be filed at any time not later than twenty-five days from the time of the before the elections. It is not inconsistent with his subsequent claim that he
filing of the certificate of candidacy." complied with the residency requirement for the elective office, as petitioner
could have transferred to Barangay Indatuan after April 27, 2006, on or
before May 14, 2006.
Accordingly, it is necessary to determine when Fermin filed his CoC in order
to ascertain whether the Dilangalen petition filed on April 20, 2007 was well
within the restrictive 25-day period. If it was not, then the COMELEC should Neither does this evidence support the allegation that petitioner failed to
have, as discussed above, dismissed the petition outright. comply with the residency requirement for the transfer of his voting record
from Barangay Payan to Barangay Indatuan. Given that a voter is required to
reside in the place wherein he proposes to vote only for six months
The record in these cases reveals that Fermin filed his CoC for mayor of
immediately preceding the election,62 petitioner’s application for transfer on
Northern Kabuntalan for the May 14, 2007 National and Local Elections
on March 29, 2007.58 It is clear therefore that the petition to deny due course December 13, 2006 does not contradict his earlier admission that he was a
resident of Barangay Payan as of April 27, 2006. Be that as it may, the issue
to or cancel Fermin’s CoC was filed by Dilangalen well within the 25-day
involved in the Dilangalen petition is whether or not petitioner made a
reglementary period. The COMELEC therefore did not abuse its discretion,
material representation that is false in his CoC, and not in his application for
much more gravely, when it did not dismiss the petition outright.
the transfer of his registration and voting record.
III.
The foregoing considered, the Court finds that the Dilangalen petition does
not make out a prima facie case. Its dismissal is therefore warranted. We
However, the Court finds the COMELEC to have gravely abused its emphasize that the mere filing of a petition and the convenient allegation
discretion when it precipitately declared that Fermin was not a resident of therein that a candidate does not reside in the locality where he seeks to be
Northern Kabuntalan for at least one year prior to the said elections. elected is insufficient to effect the cancellation of his CoC. Convincing
evidence must substantiate every allegation.63 A litigating party is said to
In its assailed June 29, 2007 Resolution, 59 the COMELEC ruled as follows: have a prima facie case when the evidence in his favor is sufficiently strong
for his opponent to be called on to answer it. A prima facie case, then, is one
In the petitioner’s memorandum, an authenticated copy of the which is established by sufficient evidence and can be overthrown only by
respondent’s oath of office subscribed and sworn to before Datu rebutting evidence adduced on the other side.64
Andal Ampatuan, Governor Maguindanao Province, it was stated
that respondent’s residence is at Barangay Payan, Maguindanao IV.
(sic) as of April 27, 2006. Clearly the respondent is not a resident of
Northern Kabuntalan earlier than 15 May 2006 as his very own oath In light of the foregoing disquisition, the COMELEC’s order for the dismissal
of office would reveal that he is really a resident of Barangay Payan, of Fermin’s election protest is tainted with grave abuse of discretion,
Kabuntalan less than 365 days immediately preceding the May 14, considering that the same is premised on Fermin’s alleged lack of legal
2007 elections. He is a resident of a barangay not a component of standing to file the protest, which, in turn, is based on Fermin’s alleged lack
the local government unit in which he seeks to be elected as of May
of residency qualification. With our disposition herein that the Dilangalen prejudice to the final outcome of Eusebio’s disqualification case. The 11 May
petition should be dismissed, a disquisition that Fermin has no standing as a 2004 Order suspended the proclamation of Eusebio in the event that he
candidate would be reckless and improper. would receive the winning number of votes.

WHEREFORE, premises considered, the petitions Finally, the 20 August 2004 COMELEC En Banc resolution set aside the 5
for certiorari are GRANTED. The assailed issuances of the COMELEC May 2004 Resolution of the COMELEC First Division 7 and nullified the
are ANNULLED and SET ASIDE. corresponding order. The COMELEC En Banc referred the case to the
COMELEC Law Department to determine whether Eusebio actually
committed the acts subject of the petition for disqualification.

The Facts

G.R. No. 164858 November 16, 2006 On 19 March 2004, Henry P. Lanot ("Lanot"), Vener Obispo ("Obispo"),
Roberto Peralta ("Peralta"), Reynaldo dela Paz ("dela Paz"), Edilberto Yamat
HENRY P. LANOT, substituted by MARIO S. RAYMUNDO, Petitioner, ("Yamat"), and Ram Alan Cruz ("Cruz") (collectively, "petitioners"), filed a
CHARMIE Q. BENAVIDES, Petitioner-Intervenor, petition for disqualification8 under Sections 68 and 80 of the Omnibus
vs. Election Code against Eusebio before the COMELEC. Lanot, Obispo, and
COMMISSION ON ELECTIONS and VICENTE P. EUSEBIO, Respondents. Eusebio were candidates for Pasig City Mayor, while Peralta, dela Paz,
Yamat, and Cruz were candidates for Pasig City Councilor in the 10 May
DECISION 2004 elections. The case was docketed as SPA (NCR-RED) No. C04-008.

CARPIO, J.: Petitioners alleged that Eusebio engaged in an election campaign in various
forms on various occasions outside of the designated campaign period, such
as (1) addressing a large group of people during a medical mission
The Case sponsored by the Pasig City government; (2) uttering defamatory statements
against Lanot; (3) causing the publication of a press release predicting his
This is a petition for certiorari1 assailing the Resolution dated 20 August victory; (4) installing billboards, streamers, posters, and stickers printed with
2004,2 the Resolution dated 21 May 20043of the Commission on Elections his surname across Pasig City; and (5) distributing shoes to schoolchildren in
(COMELEC) En Banc, and the Advisory dated 10 May 20044 of COMELEC Pasig public schools to induce their parents to vote for him.
Chairman Benjamin S. Abalos ("Chairman Abalos") in SPA No. 04-288.
In his Answer filed on 29 March 2004,9 Eusebio denied petitioners’
The 10 May 2004 Advisory of Chairman Abalos enjoined Acting National allegations and branded the petition as a harassment case. Eusebio further
Capital Region (NCR) Regional Director Esmeralda Amora-Ladra ("Director stated that petitioners’ evidence are merely fabricated.
Ladra") from implementing the COMELEC First Division’s 5 May 2004
Resolution.5 The 5 May 2004 Resolution ordered (1) the disqualification of Director Ladra conducted hearings on 2, 5 and 7 April 2004 where she
respondent Vicente P. Eusebio ("Eusebio") as a candidate for Pasig City received the parties’ documentary and testimonial evidence. Petitioners
Mayor in the 10 May 2004 elections, (2) the deletion of Eusebio’s name from submitted their memorandum 10 on 15 April 2004, while Eusebio submitted his
the certified list of candidates for Pasig City Mayor, (3) the consideration of memorandum11 on 16 April 2004.
votes for Eusebio as stray, (4) the non-inclusion of votes for Eusebio in the
canvass, and (5) the filing of the necessary information against Eusebio by
The Ruling of the Regional Director
the COMELEC Law Department.

The 21 May 2004 Order of the COMELEC En Banc set aside the 11 May On 4 May 2004, Director Ladra submitted her findings and recommendations
2004 Order of the COMELEC En Banc6and directed the Pasig City Board of to the COMELEC. Director Ladra recommended that:
Canvassers to proclaim the winning candidate for Pasig City Mayor without
WHEREFORE, in view of the foregoing, undersigned respectfully 6. the Law Department through its Director IV, Atty. ALIODEN
recommends that the instant petition be GRANTED. Consequently, pursuant DALAIG to file the necessary information against Vicente P. Eusebio
to Section 68 (a) and (e) of the Omnibus Election Code, before the appropriate court.
respondent VICENTE P. EUSEBIO shall be DISQUALIFIED to run for the
position of Mayor, Pasig City for violation of Section 80 of the Omnibus This Resolution is immediately executory unless restrained by the
Election Code. Commission En Banc.13 (Emphasis in the original)

Further, undersigned respectfully recommends that the instant case be In a Very Urgent Advisory14 dated 8 May 2004, or two days before the
referred to the Law Department for it to conduct a preliminary investigation elections, Chairman Abalos informed the following election officers of the
on the possible violation by the respondent of Sec. 261 (a) of the Omnibus resolution of the COMELEC First Division: Director Ladra; Atty. Romeo
Election Code.12 Alcazar, Acting Election Officer of the First District of Pasig City; Ms. Marina
Gerona, Acting Election Officer of the Second District of Pasig City; and all
The Ruling of the COMELEC Chairmen and Members of the Board of Election Inspectors and City Board
of Canvassers of Pasig City (collectively, "pertinent election officers").
In a resolution dated 5 May 2004, or five days before the elections, the Director Ladra repeated the dispositive portion of the 5 May 2004 resolution
COMELEC First Division adopted the findings and recommendation of in a Memorandum15 which she issued the next day. On 9 May 2004, Eusebio
Director Ladra. The dispositive portion of the resolution read: filed a motion for reconsideration16 of the resolution of the COMELEC First
Division.
WHEREFORE, in view of the foregoing, the Commission (FIRST
DIVISION) RESOLVED as it hereby RESOLVESto ORDER: On election day itself, Chairman Abalos issued the first of the three
questioned COMELEC issuances. In a memorandum, Chairman Abalos
enjoined Director Ladra from implementing the COMELEC First Division’s 5
1. the disqualification of respondent VICENTE P. EUSEBIO from
being a candidate for mayor of Pasig City in the May 10, 2004 May 2004 resolution due to Eusebio’s motion for reconsideration. The 10
elections; May 2004 memorandum stated:

Considering the pendency of a Motion for Reconsideration timely filed by

2. the Election Officers of District I and District II of Pasig City
Respondent, Vicente P. Eusebio[,] with the Commission En Banc, you are
to DELETE and CANCEL the name of respondent VICENTE P.
EUSEBIO from the certified list of candidates for the City Offices of hereby ENJOINED from implementing the Resolution promulgated on May 5,
2004, in the x x x case until further orders from the Commission En
Pasig City for the May 10, 2004 elections;
Banc.17 (Emphasis in the original)
3. the Board of Election Inspectors of all the precincts comprising the
City of Pasig not to count the votes cast for respondent VICENTE On 11 May 2004, the day after the elections, petitioners Lanot, Peralta, dela
EUSEBIO, the same being cast for a disqualified candidate and Paz, Yamat, and Cruz filed before the COMELEC En Banc a motion to
suspend the counting and canvassing of votes and the proclamation of the
therefore must be considered stray;
winning mayoral candidate for Pasig City.18 Without waiting for Eusebio’s
opposition, the COMELEC En Banc partially denied the motion on the same
4. the City Board of Canvassers of Pasig City not to canvass the day. The dispositive portion of the Order declared:
votes erroneously cast for the disqualified candidate respondent
VICENTE P. EUSEBIO, in the event that such votes were recorded
WHEREFORE, in view of the foregoing, the Commission En Banc DENIES
in the election returns[;]
the motion for suspension of the counting of votes and the canvassing of
votes. However, in order not to render moot and academic the issues for final
5. the Regional Director of NCR, and the Election Officers of Pasig disposition by the En Banc and considering that on the basis of the
City to immediately implement the foregoing directives[;] Resolution of the FIRST DIVISION, the evidence of respondent’s guilt is
strong, the Commission En Banc hereby ORDERS to SUSPEND, UNTIL
FURTHER ORDERS OF THE COMMISSION, the proclamation of
respondent in the event he receives the winning number of respondent, is hereby SET ASIDE, and the corresponding ORDER issued
votes.19 (Emphasis in the original) thereunder, ANNULLED. Accordingly, this case is referred to the Law
Department for investigation to finally determine [whether] the acts
On 12 May 2004, Eusebio filed his opposition to petitioners’ motion. complained of were in fact committed by respondent Eusebio.26 (Emphasis in
the original)
On 21 May 2004, the COMELEC En Banc issued the second questioned
issuance. The order quoted from the motion for advisory opinion of the Pasig Hence, this petition.
City Board of Canvassers which reported that 98% of the total returns of
Pasig City had been canvassed and that there were only 32 uncanvassed The Issues
returns involving 6,225 registered voters. Eusebio had 119,693 votes while
Lanot had 108,941 votes. Thus, the remaining returns would not affect Lanot alleged that as the COMELEC’s issuances are not supported by
Eusebio’s lead over Lanot. The COMELEC En Banc stated its "established substantial evidence and are contrary to law and settled jurisprudence, the
policy" to "expedite the canvass of votes and proclamation of winning COMELEC committed grave abuse of discretion amounting to lack of or
candidates to ease the post election tension and without prejudice to [its] excess of jurisdiction. Lanot raised the following issues before this Court:
action in [the] x x x case"20 and resolved to declare Eusebio as Pasig City
Mayor. The dispositive portion of the 21 May 2004 Order read:
A. WHETHER PUBLIC RESPONDENT COMELEC, IN ISSUING [ITS]
RESOLUTION DATED AUGUST 20, 2004, ACTED WITH GRAVE ABUSE
WHEREFORE, this Commission RESOLVED, as it hereby RESOLVES, OF DISCRETION OR LACK OR IN EXCESS OF JURISDICTION
to LIFT AND SET ASIDE the order suspending the proclamation of the
respondent.
1. by setting aside the Resolution of Disqualification promulgated by
its First Division on May 5, 2004 affirming the recommendation of the
FURTHER, the City Board of Canvassers is DIRECTED to complete [the] Regional Election Director (NCR) to disqualify Respondent, and by
canvass and immediately proceed with the proclamation of the winning annulling the order issued thereunder,
candidate for Mayor of Pasig City without prejudice to the final outcome
of the case entitled, "Henry P. Lanot, et al., vs. Vicente Eusebio[,
a) erroneously, whimsically and maliciously ADOPTED and
"] docketed as SPA No. 04-288.21 (Emphasis in the original)
APPLIED Sections 1 and 2 of Rule 2050 to this case,

Eusebio was proclaimed as Pasig City Mayor on 23 May 2004 based on the
b) capriciously VIOLATED COMELEC Resolution 6452 and
21 May 2004 Order.1âwphi1 On 25 June and 6 July 2004, the COMELEC En
Sec. 6, R.A. 6646,
Banc conducted hearings on Eusebio’s motion for reconsideration of the 5
May 2004 COMELEC First Division resolution. On 6 August 2004, Lanot filed
a motion to annul Eusebio’s proclamation and to order his proclamation c) erroneously, whimsically and capriciously ARROGATED
instead.22 unto themselves a quasi-judicial legislation, and

On 20 August 2004, the COMELEC En Banc promulgated the third d) erroneously and maliciously MISAPPLIED the Albaña and
questioned issuance. The COMELEC En Banc invoked Section 1 of Sunga cases to the case at bar;
COMELEC Resolution No. 2050 ("Resolution 2050") and this Court’s rulings
in Albaña v. COMELEC,23 Lonzanida v. COMELEC,24 and Sunga v. 2. by referring the case to the Law Department for investigation, it
COMELEC25 in justifying the annulment of the order to disqualify Eusebio illegally, erroneously and maliciously DISMISSED the electoral
and the referral of the case to the Law Department for preliminary aspect of the case and whimsically VIOLATED Resolution 6452 and
investigation. The dispositive portion stated: Section 6 of RA 6646;

WHEREFORE, PREMISES CONSIDERED, the resolution promulgated by 3. by disregarding the Order of disqualification, it erroneously and
the First Division dated 8 May 2004 on the above-captioned case, affirming whimsically IGNORED and DISREGARDED the inchoate right of
the recommendation of the Regional Director (NCR) to disqualify herein petitioner as the winning party.
B. WHETHER PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OF TO SIT AS MAYOR-ELECT, AND WHETHER THE DOCTRINES IN
DISCRETION OR IN EXCESS OR LACK OF JURISDICTION IN ISSUING TOPACIO, CODILLA, JR., LABO AND OTHERS APPLY IN THIS CASE.27
ITS RESOLUTION DATED MAY 21, 2004
The Ruling of the Court
1. by lifting and setting aside the Order of suspension of
proclamation by winning candidate issued on May 11, 2004, it The petition has no merit.
erroneously and intentionally and whimsically DISREGARDED the
strong evidence of guilt of Respondent to warrant the suspension of Parties to the Present Petition
his proclamation and erroneously and capriciously VIOLATED
Resolution of May 11, 2004.
On 13 April 2005, during the pendency of this case, an unidentified person
shot and killed Lanot in Pasig City. It seemed that, like an endangered
C. WHETHER CHAIRMAN BENJAMIN ABALOS OF THE COMELEC specie, the disqualification case would be extinguished by Lanot’s death.
ACTED WITH GRAVE ABUSE OF POWER, AUTHORITY OR DISCRETION However, on 27 April 2005, Lanot’s counsel manifested, over Eusebio’s
OR LACK OR IN EXCESS OF JURISDICTION
objections, that Mario S. Raymundo ("Raymundo"), a registered voter and
former Mayor of Pasig City, is Lanot’s substitute in this case. Also, on 25
1. by unilaterally enjoining the implementation of the Order of August 2005, Charmie Q. Benavides ("Benavides"), a Pasig City mayoral
Respondent’s disqualification despite the condition therein that it candidate and the third placer in the 10 May 2004 elections, filed a petition-
could only be restrained by the Commission En Banc, and whether in-intervention. Benavides asked whether she could be proclaimed Pasig City
or not he illegally, erroneously and blatantly whimsically grabbed the Mayor because she is the surviving qualified candidate with the highest
exclusive adjudicatory power of the Commission En Banc. number of votes among the remaining candidates.

D. WHETHER RESPONDENT COMELEC COMMITTED GRAVE ABUSE The law and the COMELEC rules have clear pronouncements that the
OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION electoral aspect of a disqualification case is not rendered inutile by the death
IN CAPRICIOUSLY DISREGARDING THE RESOLUTION OF MAY 5, 2004 of petitioner, provided that there is a proper substitution or intervention of
AS ALREADY FINAL AND EXECUTED AND IN FAILING TO ORDER THE parties while there is a pending case. On Raymundo’s substitution, any
PROCLAMATION OF PETITIONER. citizen of voting age is competent to continue the action in Lanot’s
stead.28 On Benavides’ intervention, Section 6 of Republic Act No. 6646, or
E. a) WHETHER THERE ARE PREPONDERANT EVIDENCE TO the Electoral Reforms Law of 1987 ("Electoral Reforms Law of 1987"), allows
WARRANT RESPONDENT EUSEBIO’S DISQUALIFICATION. intervention in proceedings for disqualification even after elections if no final
judgment has been rendered. Although Eusebio was already proclaimed as
b) WHETHER RESPONDENT EUSEBIO SHOULD BE DEEMED Pasig City Mayor, Benavides could still intervene, as there was still no final
DISQUALIFIED WITH FOUR (4) AFFIRMATIVE VOTES OF judgment in the proceedings for disqualification.29
COMMISSIONERS, TWO (2) VOTES FROM COMMISSIONERS
BORRA AND GARCILLANO WHO VOTED FOR THE The case for disqualification exists, and survives, the election and
DISQUALIFICATION IN THE MAY 5, 2004 proclamation of the winning candidate because an outright dismissal will
unduly reward the challenged candidate and may even encourage him to
RESOLUTION (ANNEX "B") AND TWO (2) VOTES FROM employ delaying tactics to impede the resolution of the disqualification case
COMMISSIONERS TUAZON, JR. AND SADAIN WHO VOTED TO until after he has been proclaimed.30 The exception to the rule of retention of
DISQUALIFY HIM IN THEIR DISSENTING OPINION (ANNEX "A-1") jurisdiction after proclamation applies when the challenged candidate
SHOULD REFERRAL OF THE CASE TO THE LAW DEPARTMENT becomes a member of the House of Representatives or of the Senate, where
BY RESPONDENT COMELEC BE DECLARED A PATENT the appropriate electoral tribunal would have jurisdiction. There is no law or
NULLITY. jurisprudence which says that intervention or substitution may only be done
prior to the proclamation of the winning candidate. A substitution is not
F. IN CASE OF DISQUALIFICATION OF RESPONDENT EUSEBIO, barred by prescription because the action was filed on time by the person
WHETHER PETITIONER LANOT CAN BE PROCLAIMED AND ALLOWED
who died and who is being substituted. The same rationale applies to a the votes cast for him shall not be counted." Under Section 13 of the
petition-in-intervention. COMELEC Rules of Procedure, a decision or resolution of a Division in a
special action becomes final and executory after the lapse of fifteen days
COMELEC’s Grave Abuse of Discretion following its promulgation while a decision or resolution of the COMELEC En
Banc becomes final and executory after five days from its promulgation
Propriety of Including Eusebio’s Name in the Pasig City Mayoral Candidates unless restrained by this Court.
and of the Counting of Votes and Canvassing of Election Returns
Propriety of the Lifting of the Suspension of Eusebio’s Proclamation
In its 5 May 2004 resolution, the COMELEC First Division ordered the
pertinent election officials to delete and cancel Eusebio’s name from the In the same 11 May 2004 Resolution, the COMELEC En Banc ordered the
certified list of Pasig City mayoral candidates, not to count votes cast in suspension of Eusebio’s proclamation in the event he would receive the
Eusebio’s favor, and not to include votes cast in Eusebio’s favor in the winning number of votes. Ten days later, the COMELEC En Banc set aside
canvass of election returns. Eusebio filed a motion for reconsideration of the the 11 May 2004 order and directed the Pasig City Board of Canvassers to
resolution on 9 May 2004. Hence, COMELEC Chairman Abalos issued a proclaim Eusebio as the winning candidate for Pasig City Mayor. The
memorandum on 10 May 2004 which enjoined the pertinent election officials COMELEC relied on Resolutions 7128 and 712932 to justify the counting of
from implementing the 5 May 2004 resolution. In a Resolution dated 11 May Eusebio’s votes and quoted from the Resolutions as follows:
2004, the COMELEC En Banc subsequently ratified and adopted Chairman
Abalos’ 10 May 2004 memorandum when it denied Lanot’s motion to Resolution No. 7128 -
suspend the counting of votes and canvassing of election returns.
xxxx
Lanot claims that Chairman Abalos whimsically grabbed the adjudicatory
power of the COMELEC En Banc when he issued the 10 May 2004 NOW THEREFORE, the Commission RESOLVED, as it hereby RESOLVES,
memorandum. Lanot asserts that the last sentence in the dispositive portion to adopt certain policies and to direct all Board of Canvassers, as follows:
of the COMELEC First Division’s 5 May 2004 Resolution, "[t]his Resolution is
immediately executory unless restrained by the Commission En Banc,"
1. to speed up its canvass and proclamation of all winning candidates except
should have prevented Chairman Abalos from acting on his own.
under the following circumstances:

Lanot’s claim has no basis, especially in light of the 11 May 2004 Resolution
a. issuance of an order or resolution suspending the proclamation;
of the COMELEC En Banc. The COMELEC En Banc’s explanation is apt:
b. valid appeal[s] from the rulings of the board in cases where appeal
Suspension of these proceedings is tantamount to an implementation of the is allowed and the subject appeal will affect the results of the
Resolution of the FIRST DIVISION which had not yet become final and elections;
executory by reason of the timely filing of a Motion for Reconsideration
thereof. A disposition that has not yet attained finality cannot be implemented
even through indirect means.31 x x x x.

Moreover, Chairman Abalos’ 10 May 2004 memorandum is merely an Resolution No. 7129
advisory required by the circumstances at the time. Eusebio filed a motion for
reconsideration on 9 May 2004, and there was not enough time to resolve xxxx
the motion for reconsideration before the elections. Therefore, Eusebio was
not yet disqualified by final judgment at the time of the elections. Section 6 of NOW THEREFORE, the Commission on Elections, by virtue of the powers
the Electoral Reforms Law of 1987 provides that "[a] candidate who has vested in it by the Constitution, the Omnibus Election Code and other
been declared by final judgment to be disqualified shall not be voted for, and elections laws, has RESOLVED, as it hereby RESOLVES, to refrain from
granting motions and petitions seeking to postpone proclamations by the
Board of Canvassers and other pleadings with similar purpose unless they
are grounded on compelling reasons, supported by convincing evidence acts complained, the Commission shall order the disqualification of the
and/or violative of the canvassing procedure outlined in Resolution No. 6669. respondent candidate from continuing as such candidate.

We agree with Eusebio that the COMELEC En Banc did not commit grave In case such complaint was not resolved before the election, the
abuse of discretion in issuing its 21 May 2004 order. The COMELEC has the Commission may motu proprio, or on motion of any of the parties, refer
discretion to suspend the proclamation of the winning candidate during the the complaint to the Law Department of the Commission as the
pendency of a disqualification case when evidence of his guilt is instrument of the latter in the exercise of its exclusive power to conduct
strong.33 However, an order suspending the proclamation of a winning a preliminary investigation of all cases involving criminal infractions of
candidate against whom a disqualification case is filed is merely provisional the election laws. Such recourse may be availed of irrespective of
in nature and can be lifted when warranted by the evidence.34 whether the respondent has been elected or has lost in the
election. (Emphasis added)
Propriety of the Dismissal of the
Disqualification Case and of the The COMELEC also quoted from Sunga v. COMELEC to justify its referral of
Referral to the COMELEC the disqualification case to its Law Department.
Law Department
x x x We discern nothing in COMELEC Resolution No. 2050 declaring,
Lanot filed the petition for disqualification on 19 March 2004, a little less than ordering or directing the dismissal of a disqualification case filed before the
two months before the 10 May 2004 elections. Director Ladra conducted election but which remained unresolved after the election. What the
hearings on the petition for disqualification on 2, 5 and 7 April 2004. Director Resolution mandates in such a case is for the Commission to refer the
Ladra submitted her findings and recommendations to the COMELEC on 4 complaint to its Law Department for investigation to determine whether the
May 2004. The COMELEC First Division issued a resolution adopting acts complained of have in fact been committed by the candidate sought to
Director Ladra’s recommendations on 5 May 2004. Chairman Abalos be disqualified. The findings of the Law Department then become the basis
informed the pertinent election officers of the COMELEC First Division’s for disqualifying the erring candidate. This is totally different from the other
resolution through an Advisory dated 8 May 2004. Eusebio filed a Motion for two situations contemplated by Resolution No. 2050, i.e., a disqualification
Reconsideration on 9 May 2004. Chairman Abalos issued a memorandum to case filed after the election but before the proclamation of winners and that
Director Ladra on election day, 10 May 2004, and enjoined her from filed after the election and the proclamation of winners, wherein it was
implementing the 5 May 2004 COMELEC First Division resolution. The specifically directed by the same Resolution to be dismissed as a
petition for disqualification was not yet finally resolved at the time of the disqualification case.35
elections. Eusebio’s votes were counted and canvassed, after which Eusebio
was proclaimed as the winning candidate for Pasig City Mayor. On 20 August For his part, Eusebio asserts that the COMELEC has the prerogative to refer
2004, the COMELEC En Banc set aside the COMELEC First Division’s order the disqualification case to its Law Department. Thus, no grave abuse of
and referred the case to the COMELEC Law Department. discretion can be imputed to the COMELEC. Moreover, the pendency of a
case before the Law Department for purposes of preliminary investigation
In its 20 August 2004 resolution, the COMELEC En Banc relied heavily on should be considered as continuation of the COMELEC’s deliberations.
the timing of the filing of the petition. The COMELEC En Banc invoked
Section 1 of Resolution No. 2050, which states: However, contrary to the COMELEC En Banc’s reliance on Resolution No.
2050 in its 20 August 2004 resolution, the prevailing law on the matter is
1. Any complaint for the disqualification of a duly registered candidate based Section 6 of the Electoral Reforms Law of 1987. Any rule or action by the
upon any of the grounds specifically enumerated under Section 68 of the COMELEC should be in accordance with the prevailing law. Section 6 of the
Omnibus Election Code, filed directly with the Commission before an election Electoral Reforms Law of 1987 provides:
in which the respondent is a candidate, shall be inquired into by the
Commission for the purpose of determining whether the acts complained of Section 6. Effect of Disqualification Case. — Any candidate who has been
have in fact been committed. Where the inquiry by the Commission results in declared by final judgment to be disqualified shall not be voted for, and the
a finding before election, that the respondent candidate did in fact commit the votes cast for him shall not be counted. If for any reason a candidate is not
declared by final judgment before an election to be disqualified and he
is voted for and receives the winning number of votes in such election, should be disqualified from being a candidate or from holding office.
the Court or Commission shall continue with the trial and hearing of the Proceedings are summary in character and require only clear preponderance
action, inquiry or protest and, upon motion of the complainant or any of evidence. An erring candidate may be disqualified even without prior
intervenor, may during the pendency thereof order the suspension of the determination of probable cause in a preliminary investigation. The electoral
proclamation of such candidate whenever the evidence of his guilt is strong. aspect may proceed independently of the criminal aspect, and vice-versa.
(Emphasis added)
The criminal aspect of a disqualification case determines whether there is
Moreover, this Court’s ruling in Sunga was further explained in Bagatsing v. probable cause to charge a candidate for an election offense. The prosecutor
COMELEC,36 thus: is the COMELEC, through its Law Department, which determines whether
probable cause exists.37 If there is probable cause, the COMELEC, through
The COMELEC in Sunga obviously misapplied Resolution No. 2050 in its Law Department, files the criminal information before the proper court.
dismissing the disqualification case therein simply because it remained Proceedings before the proper court demand a full-blown hearing and require
unresolved before the election and, in lieu thereof, referring it to its Law proof beyond reasonable doubt to convict.38 A criminal conviction shall result
Department for possible criminal prosecution of the respondent for violation in the disqualification of the offender, which may even include disqualification
of the election laws. Notably, there is nothing in paragraph 1 of Resolution from holding a future public office.39
No. 2050 which directs the dismissal of the disqualification case not resolved
before the election. It says the COMELEC "may motu prop[r]io or on motion The two aspects account for the variance of the rules on disposition and
of any of the parties, refer the complaint to the Law Department of the resolution of disqualification cases filed before or after an election. When the
Commission as an instrument of the latter in the exercise of its exclusive disqualification case is filed before the elections, the question of
power to conduct a preliminary investigation of all cases involving criminal disqualification is raised before the voting public. If the candidate is
infractions of the election laws." The referral to the Law Department is disqualified after the election, those who voted for him assume the risk that
discretionary on the part of the COMELEC and in no way may it be their votes may be declared stray or invalid. There is no such risk if the
interpreted that the COMELEC will dismiss the disqualification case or will no petition is filed after the elections.40 The COMELEC En Banc erred when it
longer continue with the hearing of the same. The reason for this is that a ignored the electoral aspect of the disqualification case by setting aside the
disqualification case may have two (2) aspects, the administrative, which COMELEC First Division’s resolution and referring the entire case to the
requires only a preponderance of evidence to prove disqualification, and the COMELEC Law Department for the criminal aspect.
criminal, which necessitates proof beyond reasonable doubt to convict.
Where in the opinion of the COMELEC, the acts which are grounds for Moreover, the COMELEC En Banc’s act and Eusebio’s assertions lose sight
disqualification also constitute a criminal offense or offenses, referral of the of the provisions of Resolution No. 6452 ("Resolution 6452"), "Rules
case to the Law Department is proper. Delegating to COMELEC Field Officials the Hearing and Reception of
Evidence of Disqualification Cases Filed in Connection with the May 10,
xxxx 2004 National and Local Elections; Motu ProprioActions and Disposition of
Disqualification Cases," promulgated on 10 December 2003. The pertinent
It bears stressing that the Court in Sunga recognized the difference between portions of Resolution 6452 provide:
a disqualification case filed before and after an election when, as earlier
mentioned, it stated that the referral of the complaint for disqualification Section 1. Delegation of reception of evidence. — The Commission hereby
where the case is filed before election "is totally different from the other two designates its field officials who are members of the Philippine Bar to hear
situations contemplated by Resolution No. 2050, i.e., a disqualification case and receive evidence in the following petitions:
filed after the election but before the proclamation of winners and that filed
after the election and the proclamation of winners, wherein it was specifically xxx
directed by the same Resolution to be dismissed as a disqualification case."
c. Petition to disqualify a candidate pursuant to Sec. 68 of the
Indeed, the 20 August 2004 resolution of the COMELEC En Banc betrayed Omnibus Election Code and disqualify a candidate for lack of
its misunderstanding of the two aspects of a disqualification case. The qualifications or possessing same grounds for disqualification;
electoral aspect of a disqualification case determines whether the offender
 xxx the concerned office mentioned in Sec. 3 personally or through a
duly authorized representative by any citizen of voting age, or duly
Sec. 2. Suspension of the Comelec Rules of Procedure. — In the interest of registered political party, organization or coalition of political parties
justice and in order to attain speedy disposition of cases, the Comelec Rules against any candidate who, in an action or protest in which he is a
of Procedure or any portion thereof inconsistent herewith is hereby party, is declared by final decision of a competent court guilty of, or
suspended. found by the Commission of:

Sec. 3. Where to file petitions. — The petitions shall be filed with the 2.a having given money or other material consideration to
following offices of the Commission: influence, induce or corrupt the voters or public officials
performing electoral functions; or
xxx
xxx
b. For x x x local positions including highly-urbanized cities, in the
National Capital Region, with the Regional Election Director of said 2.d having solicited, received or made any contribution
region; prohibited under Sections 89, 95, 96, 97 and 104 of the
Omnibus Elections Code; or
xxx
2.e having violated any of Sections 80, 83, 85, 86 and 261,
paragraphs d, e, k, v and cc sub-paragraph 6 of the
PROVIDED, in cases of highly-urbanized cities the filing of petitions for
Omnibus Election Code, shall be disqualified from continuing
disqualification shall be with the Office of the Regional Election Directors. x x
as a candidate, or if he has been elected, from holding the
x
office.
xxxx
xxxx
The Regional Election Directors concerned shall hear and receive evidence
strictly in accordance with the procedure and timeliness herein provided. Indeed, what the COMELEC did in its 20 August 2004 resolution was
contrary to "the interest of justice and x x x speedy disposition of cases."
Resolution No. 2050 referring the electoral aspect to the Law Department is
Sec. 5. Procedure in filing petitions. — For purposes of the preceding procedurally inconsistent with Resolution 6452 delegating reception of
section, the following procedure shall be observed: evidence of the electoral aspect to the Regional Election Director. The
investigation by the Law Department under Resolution No. 2050 produces
xxxx the same result as the investigation under Resolution 6452 by the Regional
Election Director. Commissioner Tuason’s dissent underscored the
C. PETITION TO DISQUALIFY A CANDIDATE PURSUANT TO SEC. 68 OF inconsistency between the avowed purpose of Resolution 6452 and the
THE OMNIBUS ELECTION CODE AND PETITION TO DISQUALIFY FOR COMELEC En Banc’s 20 August 2004 resolution:
LACK OF QUALIFICATIONS OR POSSESSING SAME GROUNDS FOR
DISQUALIFICATION x x x [T]he preliminary investigation for purposes of finding sufficient ground
for [Eusebio’s] disqualification, has already been accomplished by the RED-
1. The verified petition to disqualify a candidate pursuant to Sec. 68 NCR prior to the election. There also appears no doubt in my mind, that such
of the Omnibus Election Code x x x may be filed any day after the recommendation of the investigating officer, RED-NCR, was substantive and
last day [of] filing of certificates of candidacy but not later than the legally sound. The First Division agreed with the result of the
date of proclamation. investigation/recommendation, with the facts of the case clearly distilled in
the assailed resolution. This, I likewise found to be in accord with our very
2. The petition to disqualify a candidate pursuant to Sec. 68 of the own rules and the jurisprudential doctrines aforestated. There could be no
Omnibus Election Code shall be filed in ten (10) legible copies with rhyme and reason then to dismiss the electoral aspect of the case (i.e.,
disqualification) and refer the same to the Law Department for preliminary xxxx
investigation. As held in Sunga, clearly, the legislative intent is that the
COMELEC should continue the trial and hearing of the disqualification case 3) He caused to be published in leading newspapers about a
to its conclusion, i.e., until judgment is rendered thereon. The criminal aspect survey allegedly done by Survey Specialist, Inc. showing him to
of the case is an altogether different issue. be leading in the mayoralty race in Pasig City.

Sunga said the reason is obvious: A candidate guilty of election offenses xxxx
would be undeservedly rewarded, instead of punished, by the dismissal of
the disqualification case against him simply because the investigating body 4) He paid a political advertisement in the Philippine Free Press
was unable, for any reason caused upon it, to determine before the election if in the amount of ₱193,660.00 as published in its issue dated
the offenses were indeed committed by the candidate sought to be February 7, 2004.
disqualified. All that the erring aspirant would need to do is to employ
delaying tactics so that the disqualification case based on the commission of
election offenses would not be decided before the election. This scenario is xxxx
productive of more fraud which certainly is not the main intent and purpose of
the law.41 5) The display of billboards containing the words "Serbisyo
Eusebio" and "ST" which means "Serbisyong Totoo" before the
We agree with Lanot that the COMELEC committed grave abuse of start of the campaign period.
discretion when it ordered the dismissal of the disqualification case pending
preliminary investigation of the COMELEC Law Department. A review of the xxxx
COMELEC First Division’s 5 May 2004 resolution on Eusebio’s
disqualification is in order, in view of the grave abuse of discretion committed 6) Posters showing the respondent and his running mate
by the COMELEC En Banc in its 20 August 2004 resolution. Yoyong Martirez as well those showing the name "KA ENTENG
EUSEBIO" and "BOBBY EUSEBIO" in connection with the
Rightful Pasig City Mayor dengue project were posted everywhere even before the start of
the campaign period.
Eusebio’s Questioned Acts
xxxx
We quote the findings and recommendations of Director Ladra as adopted by
the COMELEC First Division: 7) Streamers bearing the words "Pasig City is for PEACE" were
likewise displayed with the two letters "E" prominently written.
The questioned acts of [Eusebio] are as follows:
xxxx
1) The speech uttered on February 14, 2004 during the meeting
dubbed as "Lingap sa Barangay" in Barangay San Miguel, Pasig 8) Stickers of [Eusebio] were likewise pasted all over the city
City wherein [Eusebio] allegedly asked the people to vote for before the start of the campaign period.
him and solicited for their support x x x:
xxxx
xxxx
9) [Eusebio] engaged in vote-buying by distributing shoes to
2) Another speech given on March 17, 2004 in ROTC St., the students while telling the parents that by way of gratitude,
Rosario, Pasig City wherein [Eusebio] again allegedly uttered they should vote for him.
defamatory statements against co-[candidate] Lanot and
campaigned for his (respondent’s) and his group’s candidacy. x x x x (Emphasis in the original)42
Eusebio argues that: (1) Lanot is in estoppel for participating in the (b) The term "election campaign" or "partisan political activity" refers
proceedings before the COMELEC Law Department; (2) Lanot abandoned to an act designed to promote the election or defeat of a particular
the present petition also because of his participation in the proceedings candidate or candidates to a public office which shall include:
before the COMELEC Law Department; and (3) Lanot is guilty of forum-
shopping. These arguments fail for lack of understanding of the two aspects (1) Forming organizations, associations, clubs, committees
of disqualification cases. The proceedings before the COMELEC Law or other groups of persons for the purpose of soliciting votes
Department concern the criminal aspect, while the proceedings before this and/or undertaking any campaign for or against a candidate;
Court concern the electoral aspect, of disqualification cases. The
proceedings in one may proceed independently of the other. (2) Holding political caucuses, conferences, meetings,
rallies, parades, or other similar assemblies, for the purpose
Eusebio is correct when he asserts that this Court is not a trier of facts. What of soliciting votes and/or undertaking any campaign or
he overlooks, however, is that this Court may review the factual findings of propaganda for or against a candidate;
the COMELEC when there is grave abuse of discretion and a showing of
arbitrariness in the COMELEC’s decision, order or resolution.43 We find that (3) Making speeches, announcements or commentaries, or
the COMELEC committed grave abuse of discretion in issuing its 20 August
holding interviews for or against the election of any
2004 resolution.
candidate for public office;

Our review of the factual findings of the COMELEC, as well as the law (4) Publishing or distributing campaign literature or materials
applicable to this case, shows that there is no basis to disqualify Eusebio. designed to support or oppose the election of any candidate;
Director Ladra recommended the disqualification of Eusebio "for violation of
or
Section 80 of the Omnibus Election Code." The COMELEC First Division
approved Director Ladra’s recommendation and disqualified Eusebio.
Section 80 of the Omnibus Election Code provides: (5) Directly or indirectly soliciting votes, pledges or support
for or against a candidate.
SECTION 80. Election campaign or partisan political activity outside
campaign period. — It shall be unlawful for any person, whether or not a The foregoing enumerated acts if performed for the purpose of enhancing the
voter or candidate, or for any party, or association of persons, to engage in chances of aspirants for nomination for candidacy to a public office by a
an election campaign or partisan political activity except during the campaign political party, aggroupment, or coalition of parties shall not be considered as
period: Provided, That political parties may hold political conventions or election campaign or partisan election activity.
meetings to nominate their official candidates within thirty days before the
commencement of the campaign period and forty-five days for Presidential Public expressions or opinions or discussions of probable issues in a
and Vice-Presidential election. (Emphasis supplied) forthcoming election or on attributes of or criticisms against probable
candidates proposed to be nominated in a forthcoming political party
What Section 80 of the Omnibus Election Code prohibits is "an election convention shall not be construed as part of any election campaign or
campaign or partisan political activity" by a "candidate" "outside" of the partisan political activity contemplated under this Article.
campaign period. Section 79 of the same Code defines "candidate," "election
campaign" and "partisan political activity" as follows: Thus, the essential elements for violation of Section 80 of the Omnibus
Election Code are: (1) a person engages in an election campaign or partisan
SECTION 79. Definitions. — As used in this Code: political activity; (2) the act is designed to promote the election or defeat of a
particular candidate or candidates; (3) the act is done outside the campaign
period.
(a) The term "candidate" refers to any person aspiring for or seeking
an elective public office, who has filed a certificate of candidacy by
himself or through an accredited political party, aggroupment, or The second element requires the existence of a "candidate." Under Section
coalition of parties; 79(a), a candidate is one who "has filed a certificate of candidacy" to an
elective public office. Unless one has filed his certificate of candidacy, he is
not a "candidate." The third element requires that the campaign period has
not started when the election campaign or partisan political activity is For this purpose, the deadline for the filing of certificate of
committed. candidacy/petition for registration/manifestation to participate in the
election shall not be later than one hundred twenty (120) days before
Assuming that all candidates to a public office file their certificates of the elections: Provided, That, any elective official, whether national or local,
candidacy on the last day, which under Section 75 of the Omnibus Election running for any office other than the one which he/she is holding in a
Code is the day before the start of the campaign period, then no one can be permanent capacity, except for president and vice-president, shall be
prosecuted for violation of Section 80 for acts done prior to such last day. deemed resigned only upon the start of the campaign period corresponding
Before such last day, there is no "particular candidate or candidates" to to the position for which he/she is running: Provided, further, That, unlawful
campaign for or against. On the day immediately after the last day of filing, acts or omissions applicable to a candidate shall take effect upon the start of
the campaign period starts and Section 80 ceases to apply since Section 80 the aforesaid campaign period: Provided, finally, That, for purposes of the
covers only acts done "outside" the campaign period. 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
Thus, if all candidates file their certificates of candidacy on the last day,
Section 80 may only apply to acts done on such last day, which is before the to participate in the party-list system shall be on February 9, 1998 while the
start of the campaign period and after at least one candidate has filed his deadline for the filing of certificate of candidacy for other positions shall be on
March 27, 1998.
certificate of candidacy. This is perhaps the reason why those running for
elective public office usually file their certificates of candidacy on the last day
or close to the last day. 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
There is no dispute that Eusebio’s acts of election campaigning or partisan printers under proper security measures which the Commission shall adopt.
The Commission may contract the services of private printers upon
political activities were committed outside of the campaign period. The only
certification by the National Printing Office/Bangko Sentral ng Pilipinas that it
question is whether Eusebio, who filed his certificate of candidacy on 29
cannot meet the printing requirements. Accredited political parties and
December 2003, was a "candidate" when he committed those acts before the
deputized citizens’ arms of the Commission may assign watchers in the
start of the campaign period on 24 March 2004.
printing, storage and distribution of official ballots.
Section 11 of Republic Act No. 8436 ("RA 8436") moved the deadline for the
To prevent the use of fake ballots, the Commission through the Committee
filing of certificates of candidacy to 120 days before election day. Thus, the
shall ensure that the serial number on the ballot stub shall be printed in
original deadline was moved from 23 March 2004 to 2 January 2004, or 81
days earlier. The crucial question is: did this change in the deadline for filing magnetic ink that shall be easily detectable by inexpensive hardware and
the certificate of candidacy make one who filed his certificate of candidacy shall be impossible to reproduce on a photocopying machine, and that
identification marks, magnetic strips, bar codes and other technical and
before 2 January 2004 immediately liable for violation of Section 80 if he
security markings, are provided on the ballot.
engaged in election campaign or partisan political activities prior to the start
of the campaign period on 24 March 2004?
The official ballots shall be printed and distributed to each city/municipality at
Section 11 of RA 8436 provides: the rate of one (1) ballot for every registered voter with a provision of
additional four (4) ballots per precinct.44 (Emphasis added)
SECTION 11. Official Ballot. – The Commission shall prescribe the size and
Under Section 11 of RA 8436, the only purpose for the early filing of
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 certificates of candidacy is to give ample time for the printing of official
plebiscite. Under each position, the names of candidates shall be arranged ballots. This is clear from the following deliberations of the Bicameral
Conference Committee:
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. SENATOR GONZALES. Okay. Then, how about the campaign period, would
it be the same[,] uniform for local and national officials?
Both sides of the ballots may be used when necessary.
THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree to retaining THE CHAIRMAN (REP. TANJUATCO). That’s right.
it at the present periods.
THE ACTING CHAIRMAN (SEN. FERNAN). Okay.
SENATOR GONZALES. But the moment one files a certificate of candidacy,
he’s already a candidate, and there are many prohibited acts on the part of THE CHAIRMAN (REP. TANJUATCO). In other words, actually, there would
candidate. be no conflict anymore because we are talking about the 120-day period
before election as the last day of filing a certificate of candidacy, election
THE CHAIRMAN (REP. TANJUATCO). Unless we. . . . period starts 120 days also. So that is election period already. But he will still
not be considered as a candidate.45(Emphasis added)
SENATOR GONZALES. And you cannot say that the campaign period has
not yet began [sic]. Thus, because of the early deadline of 2 January 2004 for purposes of
printing of official ballots, Eusebio filed his certificate of candidacy on 29
THE CHAIRMAN (REP. TANJUATCO). If we don’t provide that the filing of December 2003. Congress, however, never intended the filing of a certificate
the certificate will not bring about one’s being a candidate. of candidacy before 2 January 2004 to make the person filing to become
immediately a "candidate" for purposes other than the printing of ballots. This
SENATOR GONZALES. If that’s a fact, the law cannot change a fact. legislative intent prevents the immediate application of Section 80 of the
Omnibus Election Code to those filing to meet the early deadline. The clear
intention of Congress was to preserve the "election periods as x x x fixed by
THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide that the existing law" prior to RA 8436 and that one who files to meet the early
filing of the certificate of candidacy will not result in that official vacating his deadline "will still not be considered as a candidate."
position, we can also provide that insofar he is concerned, election period or
his being a candidate will not yet commence. Because here, the reason why
we are doing an early filing is to afford enough time to prepare this machine Under Section 3(b) of the Omnibus Election Code, the applicable law prior to
readable ballots. RA 8436, the campaign period for local officials commences 45 days before
election day. For the 2004 local elections, this puts the start of the campaign
period on 24 March 2004. This also puts the last day for the filing of
So, with the manifestations from the Commission on Elections, Mr. certificate of candidacy, under the law prior to RA 8436, on 23 March 2004.
Chairman, the House Panel will withdraw its proposal and will agree to the Eusebio is deemed to have filed his certificate of candidacy on
120-day period provided in the Senate version.
this date for purposes other than the printing of ballots because this is the
THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr. Chairman. interpretation of Section 80 of the Omnibus Election Code most favorable to
one charged of its violation. Since Section 80 defines a criminal offense, 46 its
xxxx provisions must be construed liberally in favor of one charged of its violation.
Thus, Eusebio became a "candidate" only on 23 March 2004 for purposes
SENATOR GONZALES. How about prohibition against campaigning or doing other than the printing of ballots.
partisan acts which apply immediately upon being a candidate?
Acts committed by Eusebio prior to his being a "candidate" on 23 March
THE CHAIRMAN (REP. TANJUATCO). Again, since the intention of this 2004, even if constituting election campaigning or partisan political activities,
provision is just to afford the Comelec enough time to print the ballots, this are not punishable under Section 80 of the Omnibus Election Code. Such
provision does not intend to change the campaign acts are protected as part of freedom of expression of a citizen before he
becomes a candidate for elective public office. Acts committed by Eusebio on
periods as presently, or rather election periods as presently fixed by existing or after 24 March 2004, or during the campaign period, are not covered by
law. Section 80 which punishes only acts outside the campaign period.

THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be subject to the We now examine the specific questioned acts of Eusebio whether they
other prohibition. violate Section 80 of the Omnibus Election Code.
We begin with the 14 February 2004 and the 17 March 2004 speeches of 4) He paid a political advertisement in the Philippine Free Press in the
Eusebio: amount of ₱193,660.00 as published in its issue dated February 7,
2004.49 (Emphasis in the original)
1) The speech uttered on February 14, 2004 during the meeting
dubbed as "Lingap sa Barangay" in Barangay San Miguel, Pasig The display of Eusebio’s billboards, posters, stickers, and streamers, as well
City wherein [Eusebio] allegedly asked the people to vote for as his distribution of free shoes, all happened also before Eusebio became a
him and solicited for their support x x x: candidate on 23 March 2004. Thus:

2) Another speech given on March 17, 2004 in ROTC St., 5) The display of billboards containing the words "Serbisyo Eusebio"
Rosario, Pasig City wherein [Eusebio] again allegedly uttered and "ST" which means "Serbisyong Totoo" before the start of the
defamatory statements against co-[candidate] Lanot and campaign period.
campaigned for his (respondent’s) and his group’s
candidacy.47 (Emphasis in the original) xxxx

The 14 February 2004 and 17 March 2004 speeches happened before the 6) Posters showing the respondent and his running mate Yoyong
date Eusebio is deemed to have filed his certificate of candidacy on 23 Martinez as well those showing the name "KA ENTENG EUSEBIO" and
March 2004 for purposes other than the printing of ballots. Eusebio, not "BOBBY EUSEBIO" in connection with the dengue project were posted
being a candidate then, is not liable for speeches on 14 February 2004 and everywhere even before the start of the campaign period.
17 March 2004 asking the people to vote for him.
xxxx
The survey showing Eusebio leading in the mayoralty race was published
before Eusebio was deemed to have filed his certificate of candidacy on 23 Petitioners’ witnesses Alfonso Cordova and Alfredo Lacsamana as well as
March 2004. Thus: Hermogenes Garcia stated in their respective affidavits marked as Exhs. "L"
and "L-1" that the pictures were taken on March 3, 7 & 8, 2004.
3) He caused to be published in leading newspapers about a survey
allegedly done by Survey Specialist, Inc. showing him to be leading in
xxxx
the mayoralty race in Pasig City.
7) Streamers bearing the words "Pasig City is for PEACE" were likewise
xxxx displayed with the two letters "E" prominently written.

They also presented Certification issued by Mr. Diego Cagahastian, News xxxx
Editor of Manila Bulletin dated 10 March 2004 and Mr. Isaac G. Belmonte,
Editor-in-Chief of Philippine Star dated March 2, 2004 to the effect that the
articles in question came from the camp of [Eusebio].48 (Emphasis in the Said streamers were among those captured by the camera of the petitioners’
original) witnesses Hermogenes Garcia and Nelia Sarmiento before the start of the
campaign period.
Eusebio is not liable for this publication which was made before he became a
candidate on 23 March 2004. 8) Stickers of [Eusebio] were likewise pasted all over the city before the
start of the campaign period.
The political advertisement in the Philippine Free Press issue of 7 February
2004 was also made before Eusebio became a candidate on 23 March 2004. xxxx
Thus:
9) [Eusebio] engaged in vote-buying by distributing shoes to the
students while telling the parents that by way of gratitude, they should
vote for him.
The affidavits of Ceferino Tantay marked as Exh. "M" and Flor Montefalcon, By definition, the election offense in Section 80 of the Omnibus Election
Norie Altiche and Myrna Verdillo marked as Exh. "O" are uncontroverted. Code cannot be committed during the campaign period. On the other hand,
Their statement that free shoes were given to the students of Rizal High under Eusebio’s theory, unlawful acts applicable to a candidate cannot be
School was corroborated by the Manila Bulletin issue of February 6, 2004 committed outside of the campaign period. The net result is to make the
which showed the picture of the respondent delivering his speech before a election offense in Section 80 physically impossible to commit at any time.
group of students. We shall leave this issue for some other case in the future since the present
case can be resolved without applying the proviso in Section 11 of RA 8436.
x x x x50 (Emphasis in the original)
Effect of Eusebio’s Possible
Based on the findings of Director Ladra, the questioned acts attributed to Disqualification
Eusebio all occurred before the start of the campaign period on 24 March
2004. Indeed, Director Ladra applied Section 80 of the Omnibus Election As second placer, Lanot prayed that he be proclaimed as the rightful Pasig
Code against Eusebio precisely because Eusebio committed these acts City Mayor in the event of Eusebio’s disqualification. As third placer,
"outside" of the campaign period. However, Director Ladra erroneously Benavides, on the other hand, prays that she be proclaimed as the rightful
assumed that Eusebio became a "candidate," for purposes of Section 80, Pasig City Mayor in the event of Eusebio’s disqualification and in view of
when Eusebio filed his certificate of candidacy on 29 December 2003. Lanot’s death. Even if we assume Eusebio’s disqualification as fact, we
cannot grant either prayer.
Under Section 11 of RA 8436, Eusebio became a "candidate," for purposes
of Section 80 of the Omnibus Election Code, only on 23 March 2004, the last The disqualification of the elected candidate does not entitle the candidate
day for filing certificates of candidacy. Applying the facts - as found by who obtained the second highest number of votes to occupy the office
Director Ladra and affirmed by the COMELEC First Division - to Section 11 vacated because of the disqualification.51 Votes cast in favor of a candidate
of RA 8436, Eusebio clearly did not violate Section 80 of the Omnibus who obtained the highest number of votes, against whom a petition for
Election Code which requires the existence of a "candidate," one who has disqualification was filed before the election, are presumed to have been cast
filed his certificate of candidacy, during the commission of the questioned in the belief that he was qualified. For this reason, the second placer cannot
acts. be declared elected.52

Eusebio asserts that Section 11 of RA 8436 exculpates him from any liability The exception to this rule rests on two assumptions. First, the one who
for the questioned acts.1âwphi1 Eusebio points out that Section 11 contains obtained the highest number of votes is disqualified. Second, the voters are
the following proviso: so fully aware in fact and in law of a candidate’s disqualification to bring such
awareness within the realm of notoriety but nonetheless the voters still cast
Provided, further, That, unlawful acts or omissions applicable to a candidate their votes in favor of the ineligible candidate.53 Lanot and Benavides failed to
shall take effect upon the start of the aforesaid campaign period: x x x prove that the exception applies in the present case. Thus, assuming for the
sake of argument that Eusebio is disqualified, the rule on succession
Eusebio theorizes that since the questioned acts admittedly took place provides that the duly elected Vice-Mayor of Pasig City shall succeed in
Eusebio’s place.54
before the start of the campaign period, such acts are not "unlawful acts or
omissions applicable to a candidate."
WHEREFORE, we DISMISS the petition. We find no grave abuse of
We find no necessity to apply in the present case this proviso in Section 11 discretion in the 10 May 2004 Advisory of Chairman Benjamin S. Abalos and
of RA 8436. Eusebio’s theory legalizes election campaigning or partisan in the 21 May 2004 Order of the Commission on Elections En Banc. We SET
ASIDE the 20 August 2004 Resolution of the Commission En Banc since
political activities before the campaign period even if a person has already
respondent Vicente P. Eusebio did not commit any act which would disqualify
filed his certificate of candidacy based on the election periods under existing
him as a candidate in the 10 May 2004 elections.
laws prior to RA 8436. Under Eusebio’s theory, Section 11 of RA 8436
punishes unlawful acts applicable to a candidate only if committed during the
campaign period.
G.R. No. 181613 November 25, 2009 succeeding proviso in the same third paragraph states that "unlawful acts or
omissions applicable to a candidate shall take effect only upon the start of
ROSALINDA A. PENERA, Petitioner, the aforesaid campaign period." These two provisions determine the
vs. resolution of this case.
COMMISSION ON ELECTIONS and EDGAR T. ANDANAR, Respondents.
The Decision states that "[w]hen the campaign period starts and [the person
RESOLUTION who filed his certificate of candidacy] proceeds with his/her candidacy,
his/her intent turning into actuality, we can already consider his/her acts, after
CARPIO, J.: the filing of his/her COC and prior to the campaign period, as the promotion
of his/her election as a candidate, hence, constituting premature
campaigning, for which he/she may be disqualified."1
We grant Rosalinda A. Penera’s (Penera) motion for reconsideration of this
Court’s Decision of 11 September 2009 (Decision).
Under the Decision, a candidate may already be liable for premature
campaigning after the filing of the certificate of candidacy but even before the
The assailed Decision dismissed Penera’s petition and affirmed the start of the campaign period. From the filing of the certificate of candidacy,
Resolution dated 30 July 2008 of the COMELEC En Banc as well as the even long before the start of the campaign period, the Decision considers the
Resolution dated 24 July 2007 of the COMELEC Second Division. The partisan political acts of a person so filing a certificate of candidacy "as the
Decision disqualified Penera from running for the office of Mayor in Sta. promotion of his/her election as a candidate." Thus, such person can be
Monica, Surigao del Norte and declared that the Vice-Mayor should succeed disqualified for premature campaigning for acts done before the start of the
Penera. campaign period. In short, the Decision considers a person who files a
certificate of candidacy already a "candidate" even before the start of the
In support of her motion for reconsideration, Penera submits the following campaign period. lawphil
arguments:
The assailed Decision is contrary to the clear intent and letter of the law.
1. Penera was not yet a candidate at the time of the incident under
Section 11 of RA 8436 as amended by Section 13 of RA 9369. The Decision reverses Lanot v. COMELEC,2 which held that a person who
files a certificate of candidacy is not a candidate until the start of the
2. The petition for disqualification failed to submit convincing and campaign period. In Lanot, this Court explained:
substantial evidence against Penera for violation of Section 80 of the
Omnibus Election Code. Thus, the essential elements for violation of Section 80 of the Omnibus
Election Code are: (1) a person engages in an election campaign or partisan
3. Penera never admitted the allegations of the petition for political activity; (2) the act is designed to promote the election or defeat of a
disqualification and has consistently disputed the charge of particular candidate or candidates; (3) the act is done outside the campaign
premature campaigning. period.

4. The admission that Penera participated in a motorcade is not the The second element requires the existence of a "candidate." Under Section
same as admitting she engaged in premature election campaigning. 79(a), a candidate is one who "has filed a certificate of candidacy" to an
elective public office. Unless one has filed his certificate of candidacy, he is
Section 79(a) of the Omnibus Election Code defines a "candidate" as "any not a "candidate." The third element requires that the campaign period has
person aspiring for or seeking an elective public office, who has filed a not started when the election campaign or partisan political activity is
certificate of candidacy x x x." The second sentence, third paragraph, committed.
Section 15 of RA 8436, as amended by Section 13 of RA 9369, provides that
"[a]ny person who files his certificate of candidacy within [the period for Assuming that all candidates to a public office file their certificates of
filing] shall only be considered as a candidate at the start of the campaign candidacy on the last day, which under Section 75 of the Omnibus Election
period for which he filed his certificate of candidacy." The immediately Code is the day before the start of the campaign period, then no one can be
prosecuted for violation of Section 80 for acts done prior to such last day. president and vice-president, shall be deemed resigned only upon the start of
Before such last day, there is no "particular candidate or candidates" to the campaign period corresponding to the position for which he/she is
campaign for or against. On the day immediately after the last day of filing, running: Provided, further, That, unlawful acts or omissions applicable to a
the campaign period starts and Section 80 ceases to apply since Section 80 candidate shall take effect upon the start of the aforesaid campaign period:
covers only acts done "outside" the 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,
Thus, if all candidates file their certificates of candidacy on the last day, Vice-President, Senators and candidates under the party-list system as well
Section 80 may only apply to acts done on such last day, which is before the as petitions for registration and/or manifestation to participate in the party-list
start of the campaign period and after at least one candidate has filed his system shall be on February 9, 1998 while the deadline for the filing of
certificate of candidacy. This is perhaps the reason why those running for certificate of candidacy for other positions shall be on March 27, 1998.
elective public office usually file their certificates of candidacy on the last day
or close to the last day. 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
There is no dispute that Eusebio’s acts of election campaigning or partisan printers under proper security measures which the Commission shall adopt.
political activities were committed outside of the campaign period. The only The Commission may contract the services of private printers upon
question is whether Eusebio, who filed his certificate of candidacy on 29 certification by the National Printing Office/Bangko Sentral ng Pilipinas that it
December 2003, was a "candidate" when he committed those acts before the cannot meet the printing requirements. Accredited political parties and
start of the campaign period on 24 March 2004. deputized citizens’ arms of the Commission may assign watchers in the
printing, storage and distribution of official ballots.
Section 11 of Republic Act No. 8436 ("RA 8436") moved the deadline for the
filing of certificates of candidacy to 120 days before election day. Thus, the To prevent the use of fake ballots, the Commission through the Committee
original deadline was moved from 23 March 2004 to 2 January 2004, or 81 shall ensure that the serial number on the ballot stub shall be printed in
days earlier. The crucial question is: did this change in the deadline for filing magnetic ink that shall be easily detectable by inexpensive hardware and
the certificate of candidacy make one who filed his certificate of candidacy shall be impossible to reproduce on a photocopying machine, and that
before 2 January 2004 immediately liable for violation of Section 80 if he identification marks, magnetic strips, bar codes and other technical and
engaged in election campaign or partisan political activities prior to the start security markings, are provided on the ballot.
of the campaign period on 24 March 2004?
The official ballots shall be printed and distributed to each city/municipality at
Section 11 of RA 8436 provides: the rate of one (1) ballot for every registered voter with a provision of
additional four (4) ballots per precinct.
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 Under Section 11 of RA 8436, the only purpose for the early filing of
filled and/or the propositions to be voted upon in an initiative, referendum or certificates of candidacy is to give ample time for the printing of official
plebiscite. Under each position, the names of candidates shall be arranged ballots. This is clear from the following deliberations of the Bicameral
alphabetically by surname and uniformly printed using the same type size. A Conference Committee:
fixed space where the chairman of the Board of Election Inspectors shall affix
his/her signature to authenticate the official ballot shall be provided. SENATOR GONZALES. Okay. Then, how about the campaign period, would
it be the same[,] uniform for local and national officials?
Both sides of the ballots may be used when necessary.
THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree to retaining
For this purpose, the deadline for the filing of certificate of candidacy/petition it at the present periods.
for registration/ manifestation to participate in the election shall not be later
than one hundred twenty (120) days before the elections: Provided, That, SENATOR GONZALES. But the moment one files a certificate of candidacy,
any elective official, whether national or local, running for any office other he’s already a candidate, and there are many prohibited acts on the part of
than the one which he/she is holding in a permanent capacity, except for candidate.
THE CHAIRMAN (REP. TANJUATCO). Unless we. . . . period starts 120 days also. So that is election period already. But he will still
not be considered as a candidate.
SENATOR GONZALES. And you cannot say that the campaign period has
not yet began (sic). Thus, because of the early deadline of 2 January 2004 for purposes of
printing of official ballots, Eusebio filed his certificate of candidacy on 29
THE CHAIRMAN (REP. TANJUATCO). If we don’t provide that the filing of December 2003. Congress, however, never intended the filing of a certificate
the certificate will not bring about one’s being a candidate. of candidacy before 2 January 2004 to make the person filing to become
immediately a "candidate" for purposes other than the printing of ballots. This
legislative intent prevents the immediate application of Section 80 of the
SENATOR GONZALES. If that’s a fact, the law cannot change a fact.
Omnibus Election Code to those filing to meet the early deadline. The clear
intention of Congress was to preserve the "election periods as x x x fixed by
THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide that the existing law" prior to RA 8436 and that one who files to meet the early
filing of the certificate of candidacy will not result in that official vacating his deadline "will still not be considered as a candidate."3 (Emphasis in the
position, we can also provide that insofar he is concerned, election period or original)
his being a candidate will not yet commence. Because here, the reason why
we are doing an early filing is to afford enough time to prepare this machine
Lanot was decided on the ground that one who files a certificate of candidacy
readable ballots.
is not a candidate until the start of the campaign period. This ground was
based on the deliberations of the legislators who explained the intent of the
So, with the manifestations from the Commission on Elections, Mr. provisions of RA 8436, which laid the legal framework for an automated
Chairman, the House Panel will withdraw its proposal and will agree to the election system. There was no express provision in the original RA 8436
120-day period provided in the Senate version. stating that one who files a certificate of candidacy is not a candidate until the
start of the campaign period.
THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr. Chairman.
When Congress amended RA 8436, Congress decided to expressly
xxxx incorporate the Lanot doctrine into law, realizing that Lanot merely relied on
the deliberations of Congress in holding that —
SENATOR GONZALES. How about prohibition against campaigning or doing
partisan acts which apply immediately upon being a candidate? The clear intention of Congress was to preserve the "election periods as x x
x fixed by existing law" prior to RA 8436 and that one who files to meet the
THE CHAIRMAN (REP. TANJUATCO). Again, since the intention of this early deadline "will still not be considered as a candidate."4 (Emphasis
provision is just to afford the Comelec enough time to print the ballots, this supplied)
provision does not intend to change the campaign periods as presently, or
rather election periods as presently fixed by existing law. Congress wanted to insure that no person filing a certificate of candidacy
under the early deadline required by the automated election system would be
THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be subject to the disqualified or penalized for any partisan political act done before the start of
other prohibition. the campaign period. Thus, in enacting RA 9369, Congress expressly wrote
the Lanot doctrine into the second sentence, third paragraph of the amended
THE CHAIRMAN (REP. TANJUATCO). That’s right. Section 15 of RA 8436, thus:

THE ACTING CHAIRMAN (SEN. FERNAN). Okay. xxx

THE CHAIRMAN (REP. TANJUATCO). In other words, actually, there would For this purpose, the Commission shall set the deadline for the filing of
be no conflict anymore because we are talking about the 120-day period certificate of candidacy/petition for registration/manifestation to participate in
before election as the last day of filing a certificate of candidacy, election 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 When the applicable provisions of RA 8436, as amended by RA 9369, are
acts or omissions applicable to a candidate shall take effect only upon the read together, these provisions of law do not consider Penera a candidate for
start of the aforesaid campaign period: Provided, finally, That any person purposes other than the printing of ballots, until the start of the campaign
holding a public appointive office or position, including active members of the period. There is absolutely no room for any other interpretation.
armed forces, and officers and employees in government-owned or -
controlled corporations, shall be considered ipso facto resigned from his/her We quote with approval the Dissenting Opinion of Justice Antonio T. Carpio:
office and must vacate the same at the start of the day of the filing of his/her
certificate of candidacy. (Boldfacing and underlining supplied) x x x The definition of a "candidate" in Section 79(a) of the Omnibus Election
Code should be read together with the amended Section 15 of RA 8436. A
Congress elevated the Lanot doctrine into a statute by specifically inserting it "‘candidate’ refers to any person aspiring for or seeking an elective public
as the second sentence of the third paragraph of the amended Section 15 of office, who has filed a certificate of candidacy by himself or through an
RA 8436, which cannot be annulled by this Court except on the sole ground accredited political party, aggroupment or coalition of parties." However, it is
of its unconstitutionality. The Decision cannot reverse Lanot without no longer enough to merely file a certificate of candidacy for a person to be
repealing this second sentence, because to reverse Lanot would mean considered a candidate because "any person who files his certificate of
repealing this second sentence. candidacy within [the filing] period shall only be considered a candidate at the
start of the campaign period for which he filed his certificate of candidacy."
The assailed Decision, however, in reversing Lanot does not claim that this Any person may thus file a certificate of candidacy on any day within the
second sentence or any portion of Section 15 of RA 8436, as amended by prescribed period for filing a certificate of candidacy yet that person shall be
RA 9369, is unconstitutional. In fact, the Decision considers the entire considered a candidate, for purposes of determining one’s possible violations
Section 15 good law. Thus, the Decision is self-contradictory — reversing of election laws, only during the campaign period. Indeed, there is no
Lanot but maintaining the constitutionality of the second sentence, which "election campaign" or "partisan political activity" designed to promote the
embodies the Lanot doctrine. In so doing, the Decision is irreconcilably in election or defeat of a particular candidate or candidates to public office
conflict with the clear intent and letter of the second sentence, third simply because there is no "candidate" to speak of prior to the start of the
paragraph, Section 15 of RA 8436, as amended by RA 9369. campaign period. Therefore, despite the filing of her certificate of candidacy,
the law does not consider Penera a candidate at the time of the questioned
In enacting RA 9369, Congress even further clarified the first proviso in the motorcade which was conducted a day before the start of the campaign
third paragraph of Section 15 of RA 8436. The original provision in RA 8436 period. x x x
states —
The campaign period for local officials began on 30 March 2007 and ended
x x x Provided, further, That, unlawful acts or omissions applicable to a on 12 May 2007. Penera filed her certificate of candidacy on 29 March 2007.
candidate shall take effect upon the start of the aforesaid campaign period, x Penera was thus a candidate on 29 March 2009 only for purposes of printing
x x. the ballots. On 29 March 2007, the law still did not consider Penera a
candidate for purposes other than the printing of ballots. Acts committed by
In RA 9369, Congress inserted the word "only" so that the first proviso now Penera prior to 30 March 2007, the date when she became a "candidate,"
reads — even if constituting election campaigning or partisan political activities, are
not punishable under Section 80 of the Omnibus Election Code. Such acts
are within the realm of a citizen’s protected freedom of expression. Acts
x x x Provided, That, unlawful acts or omissions applicable to a candidate committed by Penera within the campaign period are not covered by Section
shall take effect only upon the start of the aforesaid campaign period x x x. 80 as Section 80 punishes only acts outside the campaign period.5
(Emphasis supplied)
The assailed Decision gives a specious reason in explaining away the first
Thus, Congress not only reiterated but also strengthened its mandatory proviso in the third paragraph, the amended Section 15 of RA 8436 that
directive that election offenses can be committed by a candidate "only" upon election offenses applicable to candidates take effect only upon the start of
the start of the campaign period. This clearly means that before the start of the campaign period. The Decision states that:
the campaign period, such election offenses cannot be so committed.
x x x [T]he line in Section 15 of Republic Act No. 8436, as amended, which The Decision rationalizes that a candidate who commits premature
provides that "any unlawful act or omission applicable to a candidate shall campaigning can be disqualified or prosecuted only after the start of the
take effect only upon the start of the campaign period," does not mean that campaign period. This is not what the law says. What the law says is "any
the acts constituting premature campaigning can only be committed, for unlawful act or omission applicable to a candidate shall take effect only upon
which the offender may be disqualified, during the campaign period. Contrary the start of the campaign period." The plain meaning of this provision is that
to the pronouncement in the dissent, nowhere in said proviso was it stated the effective date when partisan political acts become unlawful as to a
that campaigning before the start of the campaign period is lawful, such that candidate is when the campaign period starts. Before the start of the
the offender may freely carry out the same with impunity. campaign period, the same partisan political acts are lawful.

As previously established, a person, after filing his/her COC but prior to The law does not state, as the assailed Decision asserts, that partisan
his/her becoming a candidate (thus, prior to the start of the campaign period), political acts done by a candidate before the campaign period are unlawful,
can already commit the acts described under Section 79(b) of the Omnibus but may be prosecuted only upon the start of the campaign period. Neither
Election Code as election campaign or partisan political activity, However, does the law state that partisan political acts done by a candidate before the
only after said person officially becomes a candidate, at the beginning of the campaign period are temporarily lawful, but becomes unlawful upon the start
campaign period, can said acts be given effect as premature campaigning of the campaign period. This is clearly not the language of the law. Besides,
under Section 80 of the Omnibus Election Code. Only after said person such a law as envisioned in the Decision, which defines a criminal act and
officially becomes a candidate, at the start of the campaign period, can curtails freedom of expression and speech, would be void for vagueness.
his/her disqualification be sought for acts constituting premature
campaigning. Obviously, it is only at the start of the campaign period, when Congress has laid down the law — a candidate is liable for election offenses
the person officially becomes a candidate, that the undue and iniquitous only upon the start of the campaign period. This Court has no power to
advantages of his/her prior acts, constituting premature campaigning, shall ignore the clear and express mandate of the law that "any person who files
accrue to his/her benefit. Compared to the other candidates who are only his certificate of candidacy within [the filing] period shall only be considered a
about to begin their election campaign, a candidate who had previously candidate at the start of the campaign period for which he filed his certificate
engaged in premature campaigning already enjoys an unfair headstart in of candidacy." Neither can this Court turn a blind eye to the express and
promoting his/her candidacy.6(Emphasis supplied) clear language of the law that "any unlawful act or omission applicable to a
candidate shall take effect only upon the start of the campaign period."
It is a basic principle of law that any act is lawful unless expressly declared
unlawful by law. This is specially true to expression or speech, which The forum for examining the wisdom of the law, and enacting remedial
Congress cannot outlaw except on very narrow grounds involving clear, measures, is not this Court but the Legislature. This Court has no recourse
present and imminent danger to the State. The mere fact that the law does but to apply a law that is as clear, concise and express as the second
not declare an act unlawful ipso facto means that the act is lawful. Thus, sentence, and its immediately succeeding proviso, as written in the third
there is no need for Congress to declare in Section 15 of RA 8436, as paragraph of Section 15 of RA 8436, as amended by RA 9369.
amended by RA 9369, that political partisan activities before the start of the
campaign period are lawful. It is sufficient for Congress to state that "any
WHEREFORE, we GRANT petitioner Rosalinda A. Penera’s Motion for
unlawful act or omission applicable to a candidate shall take effect only upon Reconsideration. We SET ASIDE the Decision of this Court in G.R. No.
the start of the campaign period." The only inescapable and logical result is 181613 promulgated on 11 September 2009, as well as the Resolutions
that the same acts, if done before the start of the campaign period, are
dated 24 July 2007 and 30 January 2008 of the COMELEC Second Division
lawful.
and the COMELEC En Banc, respectively, in SPA No. 07-224. Rosalinda A.
Penera shall continue as Mayor of Sta. Monica, Surigao del Norte.
In layman’s language, this means that a candidate is liable for an election
offense only for acts done during the campaign period, not before. The law is
clear as daylight — any election offense that may be committed by a
candidate under any election law cannot be committed before the start of the
campaign period. In ruling that Penera is liable for premature campaigning
for partisan political acts before the start of the campaigning, the assailed
Decision ignores the clear and express provision of the law. G.R. No. 181613 September 11, 2009
ROSALINDA A. PENERA, Petitioner, which dispersed soon after the completion of such filing. In fact, Penera
vs. claimed, in the motorcade held by her political party, no person made any
COMMISSION ON ELECTIONS and EDGAR T. ANDANAR, Respondents. 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
DECISION hands of the candidates in the motorcade." Finally, Penera cited Barroso v.
Ampig8 in her defense, wherein the Court supposedly ruled that a motorcade
CHICO-NAZARIO, J.: held by candidates during the filing of their COCs was not a form of political
campaigning.
This Petition for Certiorari with Prayer for the Issuance of a Writ of
Also on 19 April 2007, Andanar and Penera appeared with their counsels
Preliminary Injunction and/or Temporary Restraining Order 1 under Rule 65,
before the ORED-Region XIII, where they agreed to submit their position
in relation to Rule 64 of the Rules of Court, seeks the nullification of the
papers and other evidence in support of their allegations.9
Resolution2 dated 30 January 2008 of the Commission on Elections
(COMELEC) en banc. Said Resolution denied the Motion for Reconsideration
of the earlier Resolution3 dated 24 July 2007 of the COMELEC Second After the parties filed their respective Position Papers, the records of the
Division in SPA No. 07-224, ordering the disqualification of herein petitioner case were transmitted to the COMELEC main office in Manila for
Rosalinda A. Penera (Penera) as a candidate for the position of mayor of the adjudication. It was subsequently raffled to the COMELEC Second
Municipality of Sta. Monica, Surigao del Norte (Sta. Monica) in the 2007 Division.1avvphi1
Synchronized National and Local Elections.
While SPA No. 07-224 was pending before the COMELEC Second Division,
The antecedents of the case, both factual and procedural, are set forth the 14 May 2007 elections took place and, as a result thereof, Penera was
hereunder: proclaimed the duly elected Mayor of Sta. Monica. Penera soon assumed
office on 2 July 2002.
Penera and private respondent Edgar T. Andanar (Andanar) were mayoralty
candidates in Sta. Monica during the 14 May 2007 elections. 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.
On 2 April 2007, Andanar filed before the Office of the Regional Election
Monica, for engaging in premature campaigning, in violation of Sections 80
Director (ORED), Caraga Region (Region XIII), a Petition for
Disqualification4 against Penera, as well as the candidates for Vice-Mayor and 68 of the Omnibus Election Code.
and Sangguniang Bayan who belonged to her political party, 5 for unlawfully
engaging in election campaigning and partisan political activity prior to the The COMELEC Second Division found that:
commencement of the campaign period. The petition was docketed as SPA
No. 07-224. 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
Andanar claimed that on 29 March 2007 – a day before the start of the campaign period for the May 14, 2007 elections – [some of the members of
authorized campaign period on 30 March 2007 – Penera and her partymates the political party Partido Padajon Surigao], headed by their mayoralty
went around the different barangays in Sta. Monica, announcing their candidate "Datty" Penera, filed their respective Certificates of Candidacy
candidacies and requesting the people to vote for them on the day of the before the Municipal Election Officer of Sta. Monica, Surigao del Norte.
elections. Attached to the Petition were the Affidavits of individuals 6 who
witnessed the said incident. 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
Penera alone filed an Answer7 to the Petition on 19 April 2007, averring that undetermined number of motorcycles, laden with balloons ad [sic]
the charge of premature campaigning was not true. Although Penera posters/banners containing names and pictures and the municipal positions
admitted that a motorcade did take place, she explained that it was simply in for which they were seeking election. Installed with [sic] one of the trucks was
accordance with the usual practice in nearby cities and provinces, where the a public speaker sound subsystem which broadcast [sic] the intent the [sic]
filing of certificates of candidacy (COCs) was preceded by a motorcade, 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 Commissioner Florentino A. Tuason, Jr. (Tuason) wrote a Separate
candidate for the position of Board Member,] was proudly seen at the Opinion12 on the 24 July 2007 Resolution. Although Commissioner Tuason
vehicle’s side. The group proceeded to motorcade until the barangays of concurred with the ponente, he stressed that, indeed, Penera should be
Bailan, Libertad and as afar [sic] as Mabini almost nine (9) kilometers from made accountable for her actions after the filing of her COC on 29 March
Sta. Monica. [Penera and her partymates] were seen aboard the vehicles 2007. Prior thereto, there was no candidate yet whose candidacy would have
and throwing candies to the residents and onlookers. been enhanced by the premature campaigning.

Various affidavits and pictures were submitted elucidating the above- It was the third member of the COMELEC Second Division, Commissioner
mentioned facts. The above facts were also admitted in the Answer, the Rene V. Sarmiento (Sarmiento) who put forth a Dissenting Opinion13 on the
Position Paper and during the hearings conducted for this case, the only 24 July 2007 Resolution. Commissioner Sarmiento believed that the pieces
defense propounded by [Penera] is that such acts allegedly do not constitute of evidence submitted by Andanar did not sufficiently establish probable
campaigning and is therefore not proscribed by the pertinent election laws. cause that Penera engaged in premature campaigning, in violation of
Sections 80 and 68 of the Omnibus Election Code. The two photocopied
xxxx 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
What we however find disturbing is [Penera’s] reference to the Ampig Case
and the same person because they had similar sentence construction and
as the justification for the acts committed by [her]. There is really no
form, and they were sworn to before the same attesting officer.
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 Penera filed before the COMELEC en banc a Motion for Reconsideration14 of
against non-forum [sic] shopping should result to the immediate dismissal of the 24 July 2007 Resolution of the COMELEC Second Division, maintaining
the election cases filed in that case. There is nothing in said case justifying a that she did not make any admission on the factual matters stated in the
motorcade during the filing of certificates of candidacy. [Penera’s] reliance appealed resolution. Penera also contended that the pictures and Affidavits
thereon is therefore misplaced and of no potency at all. 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
xxxx
always make them incomplete and inaccurate. Subsequently, Penera filed a
Supplemental Motion for Reconsideration,15 explaining that supporters
However, the photos submitted by [Andanar] only identified [Penera] and did spontaneously accompanied Penera and her fellow candidates in filing their
not have any notation identifying or indicating any of the other [candidates COCs, and the motorcade that took place after the filing was actually part of
from Penera’s party]. It cannot be conclusively proven that the other the dispersal of said supporters and their transportation back to their
[candidates from Penera’s party] were indeed with Penera during the respective barangays.
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 Penera’s party], as In the Resolution dated 30 January 2008, the COMELEC en banc denied
even the petition failed to mention particularly the participation of the other Penera’s Motion for Reconsideration, disposing thus:
individual [party members].10
WHEREFORE, this Commission RESOLVES to DENY the instant Motion for
Reconsideration filed by [Penera] for UTTER LACK OF MERIT.16
The afore-quoted findings of fact led the COMELEC Second Division to
decree:
The COMELEC en banc ruled that Penera could no longer advance the
arguments set forth in her Motion for Reconsideration and Supplemental
PREMISES CONSIDERED, this Commission resolves to disqualify [Penera]
Motion for Reconsideration, given that she failed to first express and
but absolves the other [candidates from Penera’s party] from violation of
elucidate on the same in her Answer and Position Paper. Penera did not
section 80 and 68 of the Omnibus Elections [sic] Code.11
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 Admit Reply,23 which we treated as a Motion for Reconsideration of the
propounded by Andanar in his Petition for Disqualification and Position Resolution dated 14 October 2008. On 11 November 2008, we issued
Paper. Therefore, these material averments should be considered admitted. another Resolution reinstating Penera’s Petition.24
Although the COMELEC en banc agreed that no undue importance should
be given to sworn statements or affidavits submitted as evidence, this did not Penera presents the following issues for our consideration:
mean that such affidavits should not be given any evidentiary weight at all.
Since Penera neither refuted the material averments in Andanar’s Petition
I.
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 Whether or not [Penera] has engaged in an election campaign or partisan
submitted by Andanar as evidence would have been unreliable, but only if political activity outside the campaign period.
they were presented by their lonesome. However, said pictures, together with
Penera’s admissions and the Affidavits of Andanar’s witnesses, constituted II.
sufficient evidence to establish Penera’s violation of the rule against
premature campaigning. Lastly, the COMELEC en banc accused Penera of Whether the contents of the complaint are deemed admitted for failure of
deliberately trying to mislead the Commission by citing Barroso, given that [Penera] to specifically deny the same.
the said case was not even remotely applicable to the case at bar.
III.
Consistent with his previous stand, Commissioner Sarmiento again
dissented17 from the 30 January 2008 Resolution of the COMELEC en banc. Whether or not [Andanar] has presented competent and substantial evidence
He still believed that Andanar was not able to adduce substantial evidence to justify a conclusion that [Penera] violated Section 80 and 68 of the
that would support the claim of violation of election laws. Particularly, Omnibus Election Code.
Commissioner Sarmiento accepted Penera’s explanation that the motorcade
conducted after the filing by Penera and the other candidates of their COCs
IV.
was merely part of the dispersal of the spontaneous gathering of their
supporters. The incident was only in accord with normal human social
experience. 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
Still undeterred, Penera filed the instant Petition before us, praying that the
candidacy constitutes premature campaigning.
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 V.
excess of jurisdiction.
Whether or not [the COMELEC] committed grave abuse of discretion
In a Resolution18 dated 4 March 2008, we issued a Temporary Restraining amounting to lack of or in excess of jurisdiction when it resolves [sic] to
Order (TRO), enjoining the COMELEC from implementing the assailed disqualify [Penera] despite the failure of [Andanar] to present competent,
Resolutions, on the condition that Penera post a bond in the amount of admissible and substantial evidence to prove [the] violation of Section 68 and
₱5,000.00. We also directed COMELEC and Andanar to comment on the 80 of the Omnibus Election Code.
instant Petition.
Penera claims that the COMELEC exercised its discretion despotically,
After the COMELEC, through the Office of the Solicitor General (OSG), and arbitrarily and whimsically in disqualifying her as a mayoralty candidate in
Andanar filed their respective Comments19 on the Petition at bar, we required Sta. Monica on the ground that she engaged in premature campaigning. She
Penera, in a Resolution20 dated 17 June 2008, to file a Reply. However, as asserts that the evidence adduced by Andanar was grossly insufficient to
no Reply was filed in due time, we dismissed Penera’s Petition in a warrant the ruling of the COMELEC.
Resolution21 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
Penera insists that the COMELEC Second Division erred in its findings of Grave abuse of discretion is such capricious and whimsical exercise of
fact, basically adopting Andanar’s allegations which, contrary to the belief of judgment equivalent to lack of jurisdiction. Mere abuse of discretion is not
the COMELEC Second Division, Penera never admitted. Penera maintains enough. It must be grave, as when it is exercised arbitrarily or despotically by
that the motorcade was spontaneous and unplanned, and the supporters reason of passion or personal hostility. The abuse must be so patent and so
merely joined Penera and the other candidates from her party along the way gross as to amount to an evasion of a positive duty or to a virtual refusal to
to, as well as within the premises of, the office of the COMELEC Municipal perform the duty enjoined or to act at all in contemplation of law.27
Election Officer. Andanar’s averments – that after Penera and the other
candidates from her party filed their COCs, they held a motorcade in the We find no grave abuse of discretion amounting to lack or excess of
different barangays of Sta. Monica, waived their hands to the public and jurisdiction on the part of the COMELEC Second Division in disqualifying
threw candies to the onlookers – were not supported by competent Penera as a mayoralty candidate in Sta. Monica in the Resolution dated 24
substantial evidence. Echoing Commissioner Sarmiento’s dissent from the July 2007; and also on the part of the COMELEC en banc in denying
assailed COMELEC Resolutions, Penera argues that too much weight and Penera’s Motion for Reconsideration on the Resolution dated 30 January
credence were given to the pictures and Affidavits submitted by Andanar. 2008. Said Resolutions are sufficiently supported by substantial evidence,
The declaration by the COMELEC that it was Penera in the pictures is meaning, such evidence as a reasonable mind might accept as adequate to
tenuous and erroneous, as the COMELEC has no personal knowledge of support a conclusion.28
Penera’s 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
The prohibited act of premature campaigning is defined under Section 80 of
Affidavits of Andanar’s known supporters, executed almost a month after
the Omnibus Election Code, to wit:
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 SECTION 80. Election campaign or partisan political activity outside
form, and were even sworn to before the same attesting officer on the same campaign period. — It shall be unlawful for any person, whether or not a
date. 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
We find no merit in the instant Petition. political conventions or meetings to nominate their official candidates within
thirty days before the commencement of the campaign period and forty-five
The questions of fact days for Presidential and Vice-Presidential election. (Emphasis ours.)

Crystal clear from the above arguments is that Penera is raising only If the commission of the prohibited act of premature campaigning is duly
questions of fact in her Petition presently before us. We do not find any proven, the consequence of the violation is clearly spelled out in Section 68
reason to pass upon the same, as this Court is not a trier of facts. It is not the of the said Code, which reads:
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
SECTION. 68. Disqualifications. - Any candidate who, in an action or protest
event. 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
The sole function of a writ of certiorari is to address issues of want of Sections80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph
jurisdiction or grave abuse of discretion, and it does not include a review of 6, shall be disqualified from continuing as a candidate, or if he has
the tribunal’s evaluation of the evidence.25 Because of its fact-finding facilities been elected, from holding the office. Any person who is a permanent
and its knowledge derived from actual experience, the COMELEC is in a resident of or an immigrant to a foreign country shall not be qualified to run
peculiarly advantageous position to evaluate, appreciate and decide on for any elective office under this Code, unless said person has waived his
factual questions before it. Factual findings of the COMELEC, based on its status as permanent resident or immigrant of a foreign country in accordance
own assessments and duly supported by evidence, are conclusive on this with the residence requirement provided for in the election laws. (Emphases
Court, more so in the absence of a grave abuse of discretion, arbitrariness, ours.)
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
In the case at bar, it had been sufficiently established, not just by Andanar’s 79(b)(2) of the Omnibus Election Code, on "[h]olding political caucuses,
evidence, but also those of Penera herself, that Penera and her partymates, conferences, meetings, rallies, parades, or other similar assemblies, for the
after filing their COCs on 29 March 2007, participated in a motorcade which purpose of soliciting votes and/or undertaking any campaign or propaganda
passed through the different barangays of Sta. Monica, waived their hands to for or against a candidate[.]" A motorcade is a procession or parade of
the public, and threw candies to the onlookers. 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
Indeed, Penera expressly admitted in her Position Paper that: belabored due to its widespread and pervasive practice. The obvious
purpose of the conduct of motorcades is to introduce the candidates and the
Respondents actually had a motorcade of only two (2) jeppneys [sic] and ten 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
(10) motorcycles after filing their Certificate of Candidacy at 3:00 P.M., March
names in the minds of the voters come election time. Unmistakably,
29, 2007 without any speeches made and only one streamer of a board
motorcades are undertaken for no other purpose than to promote the election
member Candidate and multi-colored balloons attached to the jeppneys [sic]
of a particular candidate or candidates.
and motorcycles.29 (Emphasis ours.)

In the instant Petition, Penera never denied that she took part in the conduct
Additionally, the Joint Affidavit of Marcial Dolar, Allan Llatona, and Renante
of the motorcade after she filed her COC on the day before the start of the
Platil, attached to Penera’s Position Paper, gave an even more
campaign period. She merely claimed that the same was not undertaken for
straightforward account of the events, thus:
campaign purposes. Penera proffered the excuse that the motorcade was
already part of the dispersal of the supporters who spontaneously
1. That on March 29, 2007 at 3:00 P.M. at Sta. Monica, Surigao del accompanied Penera and her partymates in filing their COCs. The said
Norte, Mayoralty Candidates Rosalinda CA. Penera [sic] and her supporters were already being transported back to their respective
parties of four (4) kagawads filed their certificate of candidacy at the barangays after the COC filing. Penera stressed that no speech was made
COMELEC Office; 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
2. That their [sic] was a motorcade consisting of two jeppneys [sic] motorcade.
and 10 motorcycles after actual registration with the COMELEC with
jeeps decorated with balloons and a streamer of Margarito Longos, We are not convinced.
Board Member Candidate;
As we previously noted, Penera and her witnesses admitted that the
3. That the motorcade proceeded to three (3) barangays out of the vehicles, consisting of two jeepneys and ten motorcycles, were festooned
11 barangays while supporters were throwing sweet candies to the with multi-colored balloons; the motorcade went around three barangays in
crowd; Sta. Monica; and Penera and her partymates waved their hands and threw
sweet candies to the crowd. With vehicles, balloons, and even candies on
4. That there was merriment and marching music without mention of hand, Penera can hardly persuade us that the motorcade was spontaneous
any name of the candidates more particularly lead-candidate and unplanned.
Rosalinda CA. Penera [sic];
For violating Section 80 of the Omnibus Election Code, proscribing election
5. That we were in the motorcade on that afternoon only riding in one campaign or partisan political activity outside the campaign period, Penera
of the jeepneys.30 (Emphases ours.) must be disqualified from holding the office of Mayor of Sta. Monica.

In view of the foregoing admissions by Penera and her witnesses, Penera The questions of law
cannot now be allowed to adopt a conflicting position.
The dissenting opinion, however, raises the legal issue that Section 15 of
More importantly, the conduct of a motorcade is a form of election campaign Republic Act No. 8436, as amended by Republic Act No. 9369, provides a
or partisan political activity, falling squarely within the ambit of Section
new definition of the term "candidate," as a result of which, premature On 10 February 2007, Republic Act No. 936933 took effect. Section 13 of
campaigning may no longer be committed. 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
Under Section 79(a) of the Omnibus Election Code, a candidate is "any pertinent portions of Section 15 of Republic Act No. 8436, as amended by
person aspiring for or seeking an elective public office, who has filed a Republic Act No. 9369, now read:
certificate of candidacy by himself or through an accredited political party,
aggroupment, or coalition of parties." 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
Republic Act No. 8436,32 enacted on 22 December 1997, authorized the shall contain the titles of the position to be filled and/or the proposition to be
COMELEC to use an automated election system for the process of voting, voted upon in an initiative, referendum or plebiscite. Where practicable,
counting of votes, and canvassing/consolidating the results of the national electronic displays must be constructed to present the names of all
and local elections. The statute also mandated the COMELEC to acquire candidates for the same position in the same page or screen, otherwise, the
automated counting machines, computer equipment, devices and materials; electronic displays must be constructed to present the entire ballot to the
and to adopt new electoral forms and printing materials. In particular, Section voter, in a series of sequential pages, and to ensure that the voter sees all of
11 of Republic Act No. 8436 provided for the specifications of the official the ballot options on all pages before completing his or her vote and to allow
ballots to be used in the automated election system and the guidelines for the voter to review and change all ballot choices prior to completing and
the printing thereof, the relevant portions of which state: casting his or her ballot. Under each position to be filled, the names of
candidates shall be arranged alphabetically by surname and uniformly
SECTION 11. Official ballot. - The Commission shall prescribe the size and indicated using the same type size. The maiden or married name shall be
form of the official ballot which shall contain the titles of the positions to 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
filled and/or the propositions to be voted upon in an initiative, referendum or
the same font and size.
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 A fixed space where the chairman of the board of election inspector shall
his/her signature to authenticate the official ballot shall be provided. affix her/her signature to authenticate the official ballot shall be provided.

Both sides of the ballots may be used when necessary. For this purpose, the Commission shall set the deadline for the filing of
certificate of candidacy/petition of registration/manifestation to participate in
For this purpose, the deadline for the filing of certificate of candidacy/petition 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
for registration/manifestation to participate in the election shall not be later
period for which he filed his certificate of candidacy: Provided, That, unlawful
than one hundred twenty (120) days before the elections: Provided, That,
acts or omissions applicable to a candidate shall effect only upon the start of
any elective official, whether national or local, running for any office other
the aforesaid campaign period: Provided, finally, That any person holding a
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 public appointive office or position, including active members of the armed
the campaign period corresponding to the position for which he/she is forces, and officers, and employees in government-owned or-controlled
corporations, shall be considered ipso factor resigned from his/her office and
running: Provided, further, That, unlawful acts or omissions applicable to a
must vacate the same at the start of the day of the filing of his/her
candidate shall take effect upon the start of the aforesaid campaign period:
certification of candidacy. (Emphases ours.)
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 In view of the third paragraph of Section 15 of Republic Act No. 8436, as
as petitions for registration and/or manifestation to participate in the Party- amended, the Dissenting Opinion argues that Section 80 of the Omnibus
List System shall be on February 9, 1998 while the deadline for the filing of Election Code can not be applied to the present case since, as the Court
certificate of candidacy for other positions shall be on March 27, 1998. held in Lanot v. Commission on Elections,34 the election campaign or
(Emphases ours.) 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 Omnibus Election Code is not even one of the specific provisions of the said
shall not be considered a candidate until the start of the campaign period. code that were expressly amended by Republic Act No. 9369.
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 Additionally, Section 46,37 the repealing clause of Republic Act No. 9369,
defeat of a particular candidate to public office because there is no candidate states that:
to speak of.
Sec. 46. Repealing Clause. – All laws, presidential decrees, executive
According to the Dissenting Opinion, even if Penera’s acts before the start of orders, rules and regulations or parts thereof inconsistent with the provisions
the campaign period constitute election campaigning or partisan political of this Act are hereby repealed or modified accordingly.
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,
Section 46 of Republic Act No. 9369 is a general repealing clause. It is a
Penera’s acts, if committed within the campaign period, when she was
clause which predicates the intended repeal under the condition that a
already a candidate, are likewise not covered by Section 80 as this provision substantial conflict must be found in existing and prior acts. The failure to add
punishes only acts outside the campaign period. a specific repealing clause indicates that the intent was not to repeal any
existing law, unless an irreconcilable inconsistency and repugnancy exist in
The Dissenting Opinion ultimately concludes that because of Section 15 of the terms of the new and old laws. This latter situation falls under the
Republic Act No. 8436, as amended, the prohibited act of premature category of an implied repeal.38
campaigning in Section 80 of the Omnibus Election Code, is practically
impossible to commit at any time. 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
We disagree. Section 80 of the Omnibus Election Code remains relevant and so irreconcilably inconsistent and repugnant with the existing law that they
applicable despite Section 15 of Republic Act No. 8436, as amended. 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
A close reading of the entire Republic Act No. 9369, which amended inconsistency is never presumed. There must be a showing of repugnance
Republic Act No. 8436, would readily reveal that that it did not contain an clear and convincing in character. The language used in the later statute
express repeal of Section 80 of the Omnibus Election Code. An express must be such as to render it irreconcilable with what had been formerly
repeal is one wherein a statute declares, usually in its repealing clause, that enacted. An inconsistency that falls short of that standard does not suffice. 39
a particular and specific law, identified by its number or title, is
repealed.35 Absent this specific requirement, an express repeal may not be Courts of justice, when confronted with apparently conflicting statutes, should
presumed. 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
Although the title of Republic Act No. 9369 particularly mentioned the for the judge to harmonize them if this is possible, bearing in mind that they
amendment of Batas Pambansa Blg. 881, or the Omnibus Election Code, to are equally the handiwork of the same legislature, and so give effect to both
wit: while at the same time also according due respect to a coordinate
department of the government.40
An Act Amending Republic Act No. 8436, Entitled "An Act Authorizing the
Commission on Elections to Use an Automated Election System x x To our mind, there is no absolute and irreconcilable incompatibility between
x, Amending for the Purpose Batas Pambansa Blg. 881, As Amended x Section 15 of Republic Act No. 8436, as amended, and Section 80 of the
x x. (Emphasis ours.), Omnibus Election Code, which defines the prohibited act of premature
campaigning. It is possible to harmonize and reconcile these two provisions
said title explicitly mentions, not the repeal, but the amendment of Batas and, thus, give effect to both.
Pambansa Blg. 881. Such fact is indeed very material. Repeal of a law
means its complete abrogation by the enactment of a subsequent statute, The following points are explanatory:
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
First, Section 80 of the Omnibus Election Code, on premature campaigning, person is not yet officially considered a candidate. Nevertheless, a person,
explicitly provides that "[i]t shall be unlawful for any person, whether or not a upon the filing of his/her COC, already explicitly declares his/her intention to
voter or candidate, or for any party, or association of persons, to engage in run as a candidate in the coming elections. The commission by such a
an election campaign or partisan political activity, except during the person of any of the acts enumerated under Section 79(b) of the Omnibus
campaign period." Very simply, premature campaigning may be committed Election Code (i.e., holding rallies or parades, making speeches, etc.) can,
even by a person who is not a candidate. thus, be logically and reasonably construed as for the purpose of promoting
his/her intended candidacy.
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 When the campaign period starts and said person proceeds with his/her
activity’ by a ‘candidate’ ‘outside’ of the campaign period,"41 is clearly candidacy, his/her intent turning into actuality, we can already consider
erroneous. 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
Second, Section 79(b) of the Omnibus Election Code defines election premature campaigning, for which he/she may be disqualified. Also,
campaign or partisan political activity in the following manner: 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
SECTION 79. Definitions. - As used in this Code:
latter case, there can be no premature campaigning as there is no candidate,
whose disqualification may be sought, to begin with. 42
xxxx
Third, in connection with the preceding discussion, the line in Section 15 of
(b) The term "election campaign" or "partisan political activity" refers to an act Republic Act No. 8436, as amended, which provides that "any unlawful act or
designed to promote the election or defeat of a particular candidate or omission applicable to a candidate shall take effect only upon the start of the
candidates to a public office which shall include: campaign period," does not mean that the acts constituting premature
campaigning can only be committed, for which the offender may be
(1) Forming organizations, associations, clubs, committees or other disqualified, during the campaign period. Contrary to the pronouncement in
groups of persons for the purpose of soliciting votes and/or the dissent, nowhere in the said proviso was it stated that campaigning
undertaking any campaign for or against a candidate; before the start of the campaign period is lawful, such that the offender may
freely carry out the same with impunity.
(2) Holding political caucuses, conferences, meetings, rallies,
parades, or other similar assemblies, for the purpose of soliciting As previously established, a person, after filing his/her COC but prior to
votes and/or undertaking any campaign or propaganda for or against his/her becoming a candidate (thus, prior to the start of the campaign period),
a candidate; can already commit the acts described under Section 79(b) of the Omnibus
Election Code as election campaign or partisan political activity. However,
(3) Making speeches, announcements or commentaries, or holding only after said person officially becomes a candidate, at the beginning of the
interviews for or against the election of any candidate for public campaign period, can said acts be given effect as premature campaigning
office; under Section 80 of the Omnibus Election Code. Only after said person
officially becomes a candidate, at the start of the campaign period, can
(4) Publishing or distributing campaign literature or materials his/her disqualification be sought for acts constituting premature
designed to support or oppose the election of any candidate; or 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
(5) Directly or indirectly soliciting votes, pledges or support for or
accrue to his/her benefit. Compared to the other candidates who are only
against a candidate.
about to begin their election campaign, a candidate who had previously
engaged in premature campaigning already enjoys an unfair headstart in
True, that pursuant to Section 15 of Republic Act No. 8436, as amended, promoting his/her candidacy.
even after the filing of the COC but before the start of the campaign period, a
As can be gleaned from the foregoing disquisition, harmony in the provisions meaningless, inoperative, or nugatory.45 Indeed, not only will the prohibited
of Sections 80 and 79 of the Omnibus Election Code, as well as Section 15 act of premature campaigning be officially decriminalized, the value and
of Republic Act No. 8436, as amended, is not only very possible, but in fact significance of having a campaign period before the conduct of elections
desirable, necessary and consistent with the legislative intent and policy of would also be utterly negated. Any unscrupulous individual with the deepest
the law. 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
The laudable and exemplary intention behind the prohibition against that the law seeks to prevent. Our lawmakers could not have intended to
premature campaigning, as declared in Chavez v. Commission on cause such an absurd situation.
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, The Dissenting Opinion attempts to brush aside our preceding arguments by
and lesser-known or poorer candidates, on the other, by preventing the contending that there is no room for statutory construction in the present
former from enjoying undue advantage in exposure and publicity on account case since Section 15 of Republic Act No. 8436,46 as amended by Section 13
of their resources and popularity. The intention for prohibiting premature of Republic Act No. 9369,47 is crystal clear in its meaning. We disagree.
campaigning, as explained in Chavez, could not have been significantly There would only be no need for statutory construction if there is a provision
altered or affected by Republic Act No. 8436, as amended by Republic Act in Republic Act No. 8436 or Republic Act No. 9369 that explicitly states that
No. 9369, the avowed purpose of which is to carry-on the automation of the there shall be no more premature campaigning. But absent the same, our
election system. Whether the election would be held under the manual or the position herein, as well as that of the Dissenting Opinion, necessarily rest on
automated system, the need for prohibiting premature campaigning – to level our respective construction of the legal provisions involved in this case.
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 Notably, while faulting us for resorting to statutory construction to resolve the
campaign only within the same limited period – remains. instant case, the Dissenting Opinion itself cites a rule of statutory
construction, particularly, that penal laws should be liberally construed in
We cannot stress strongly enough that premature campaigning is a favor of the offender. The Dissenting Opinion asserts that because of the
pernicious act that is continuously threatening to undermine the conduct of third paragraph in Section 15 of Republic Act No. 8436, as amended, the
fair and credible elections in our country, no matter how great or small the election offense described in Section 80 of the Omnibus Election Code is
acts constituting the same are. The choice as to who among the candidates practically impossible to commit at any time and that this flaw in the law,
will the voting public bestow the privilege of holding public office should not which defines a criminal act, must be construed in favor of Penera, the
be swayed by the shrewd conduct, verging on bad faith, of some individuals offender in the instant case.
who are able to spend resources to promote their candidacies in advance of
the period slated for campaign activities. 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,
Verily, the consequences provided for in Section 6844 of the Omnibus criminal.49 The instant case concerns only the electoral aspect of the
Election Code for the commission of the prohibited act of premature disqualification case. Any discussion herein on the matter of Penera’s
campaigning are severe: the candidate who is declared guilty of committing criminal liability for premature campaigning would be nothing more than
the offense shall be disqualified from continuing as a candidate, or, if he/she obiter dictum. More importantly, as heretofore already elaborated upon,
has been elected, from holding office. Not to mention that said candidate also Section 15 of Republic Act No. 8436, as amended, did not expressly or even
faces criminal prosecution for an election offense under Section 262 of the impliedly repeal Section 80 of the Omnibus Election Code, and these two
same Code. provisions, based on legislative intent and policy, can be harmoniously
interpreted and given effect. Thus, there is no flaw created in the law, arising
The Dissenting Opinion, therefore, should not be too quick to pronounce the from Section 15 of Republic Act No. 8436, as amended, which needed to be
ineffectiveness or repeal of Section 80 of the Omnibus Election Code just construed in Penera’s favor.
because of a change in the meaning of candidate by Section 15 of Republic
Act No. 8436, as amended, primarily, for administrative purposes. An The Dissenting Opinion further expresses the fear that pursuant to our
interpretation should be avoided under which a statute or provision being "theory," all the politicians with "infomercials" prior to the filing of their COCs
construed is defeated, or as otherwise expressed, nullified, destroyed, would be subject to disqualification, and this would involve practically all the
emasculated, repealed, explained away, or rendered insignificant, 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 Nonetheless, the questions of fact raised by Penera and questions of law
through which he/she explicitly declares his/her intention to run as a raised by the Dissenting Opinion must all be resolved against Penera.
candidate in the coming elections. It is such declaration which would color Penera should be disqualified from holding office as Mayor of Sta. Monica for
the subsequent acts of said person to be election campaigning or partisan having committed premature campaigning when, right after she filed her
political activities as described under Section 79(b) of the Omnibus Election COC, but still a day before the start of the campaign period, she took part in
Code. It bears to point out that, at this point, no politician has yet submitted a motorcade, which consisted of two jeepneys and ten motorcycles laden
his/her COC. Also, the plain solution to this rather misplaced apprehension is with multi-colored balloons that went around several barangays of Sta.
for the politicians themselves to adhere to the letter and intent of the law and Monica, and gave away candies to the crowd.
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 Succession
them to take is to wait for the designated start of the campaign period before
they commence their election campaign or partisan political activities.
Despite the disqualification of Penera, we cannot grant Andanar’s prayer to
Indeed, such is the only way for them to avoid disqualification on the ground
be allowed to assume the position of Mayor of Sta. Monica. The well-
of premature campaigning. It is not for us to carve out exceptions to the law, established principle is that the ineligibility of a candidate receiving majority
much more to decree away the repeal thereof, in order to accommodate any votes does not entitle the candidate receiving the next highest number of
class of individuals, where no such exception or repeal is warranted.
votes to be declared elected.51

Lastly, as we have observed at the beginning, Penera’s Petition is essentially

In this case, the rules on succession under the Local Government Code shall
grounded on questions of fact. Penera’s defense against her disqualification, apply, to wit:
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 SECTION 44. Permanent Vacancies in the Offices of the Governor, Vice-
political party when they filed their certificates of candidacy; that the alleged Governor, Mayor, and Vice-Mayor. – If a permanent vacancy occurs in the
motorcade was actually the dispersal of the supporters of Penera and the office of the xxx mayor, the x x x vice-mayor concerned shall become the x x
other candidates from her party as said supporters were dropped off at their x mayor.
respective barangays; and that Andanar was not able to present competent,
admissible, and substantial evidence to prove that Penera committed xxxx
premature campaigning. Penera herself never raised the argument that she
can no longer be disqualified for premature campaigning under Section 80, in For purposes of this Chapter, a permanent vacancy arises when an elective
relation to Section 68, of the Omnibus Election Code, since the said local official fills a higher vacant office, refuses to assume office, fails to
provisions have already been, in the words of the Dissenting Opinion, qualify or is removed from office, voluntarily resigns, or is otherwise
rendered "inapplicable," "repealed," and "done away with" by Section 15 of permanently incapacitated to discharge the functions of his office.
Republic Act No. 8436, as amended. This legal argument was wholly raised (Emphases ours.)
by the Dissenting Opinion.
Considering Penera’s disqualification from holding office as Mayor of Sta.
As a rule, a party who deliberately adopts a certain theory upon which the Monica, the proclaimed Vice-Mayor shall then succeed as Mayor.
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 WHEREFORE, premises considered, the instant Petition for Certiorari is
to the attention of the lower court need not be, and ordinarily will not be, hereby DISMISSED. The Resolutions dated 24 July 2007 and 30 January
considered by a reviewing court, as these cannot be raised for the first time 2008 of the COMELEC Second Division and en banc, respectively, in SPA
at such late stage. Basic considerations of due process underlie this rule. 50 If No. 07-224 are hereby AFFIRMED. In view of the disqualification of petitioner
we do not allow and consider the change in theory of a case by a party on Rosalinda A. Penera from running for the office of Mayor of Sta. Monica,
appeal, should we not also refrain from motu proprio adopting a theory which Surigao del Norte, and the resulting permanent vacancy therein, it is hereby
none of the parties even raised before us? 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.
 According to petitioner, the Comelec failed to perform its mandatory function
under Sec. 7, RA 7166 which states that if a candidate has been disqualified,
G.R. No. 105323 July 3, 1992 it shall be the duty of the Commission to instruct without delay the deletion of
the name of said candidate.
FRANCISCO I. CHAVEZ, petitioner,
vs. Thus, the name of Melchor Chavez remained undeleted in the list of qualified
COMMISSION ON ELECTIONS, respondent. candidates on election day.

RESOLUTION Confusion arose, allegedly nationwide, as the "Chavez" votes were either
declared stray or invalidated by the Boards of Election Inspectors (BEIs).

On May 11, 1992, Commissioner Rama of respondent Comelec issued a

directive over radio and TV ordering all "Chavez" votes to be credited in favor
BIDIN, J.: of petitioner. Petitioner contends that the radio and TV announcements did
not reach the BEI at the 170,354 precincts nationwide. As a result, "Chavez"
This case was originally an urgent petition ad cautelam praying, among votes were not credited in favor of petitioner.
others, for the issuance of a temporary restraining order enjoining
respondent Commission on Elections (Comelec) from proclaiming the 24th On May 12, 1992, Comelec issued another Resolution directing all municipal
highest senatorial candidate. and city election registrars throughout the country to examine the minutes of
voting submitted by the BEIs and to credit all the "Chavez" votes, which have
The antecedents facts are as follows: been declared stray or invalidated by the BEIs, in favor of petitioner.

On May 5, 1992, this Court issued a Resolution in G.R. No. 104704, entitled Petitioner maintains that the said resolution proved futile because it did not
"Francisco Chavez v. Comelec, et al.," disqualifying Melchor Chavez, private reach all the various BEIs of the 170,354 election precincts throughout the
respondent therein, from running for the Office of Senator in the May 11, country on time for implementation and that the minutes of voting did not
1992 elections. indicate the number of "Chavez" votes which were declared stray or
invalidated.
The above-mentioned resolution was received by respondent Comelec on
May 6, 1992. On the same day, petitioner filed an urgent motion with the On May 14, 1992, petitioner sent a letter to the Comelec requesting the latter
Comelec praying that it (1) disseminate through the fastest available means to devise ways and means in crediting "Chavez" votes in his favor but the
this Court's Resolution dated May 5, 1992 to all regional election directors, respondent Commission failed to act on said letter/complaint.
provincial election supervisors, city and municipal election registrars, boards
of election inspectors, the six (6) accredited political parties and the general On May 23, 1992, petitioner filed an urgent petition before the respondent
public; and (2) order said election officials to delete the name of Melchor Comelec praying the latter to (1) implement its May 12, 1992 resolution with
Chavez as printed in the certified list of candidates tally sheets, election costs de officio; (2) to re-open the ballot boxes in 13 provinces including the
returns and "to count all votes cast for the disqualified Melchor Chavez in National Capital Region involving some 80,348 precincts (p. 9 of petition) and
favor of Francisco I. Chavez . . . ." to scan for the "Chavez" votes for purposes of crediting the same in his favor;
(3) make the appropriate entries in the election returns/certificates of
On May 8, 1992, the Comelec issued Res. No. 92-1322 which resolved to canvass; and (4) to suspend the proclamation of the 24 winning candidates.
delete the name of Melchor Chavez from the list of qualified candidates.
However, it failed to order the crediting of all "Chavez" votes in favor of Dissatisfied with the failure of respondent Comelec to act on his petition,
petitioner as well as the cancellation of Melchor Chavez' name in the list of petitioner filed, as aforesaid, this urgent petition for prohibition
qualified candidates. and mandamus, with prayer for the issuance of a temporary restraining
order, enjoining the Comelec from proclaiming the 24th highest senatorial
candidate, without first implementing respondent Comelec's resolution of
May 12, 1992 and acting upon petitioner's letter/complaint dated May 14, arising from the exercise of its administrative functions. Respondent
1992 and urgent petition dated May 22, 1992. Commission's alleged failure to implement its own resolution is undoubtedly
administrative in nature, hence, beyond judicial interference (See Filipinas
It is the submission of petitioner that assuming only ten (10) "Chavez" votes Engineering Co. v. Ferrer, 135 SCRA 25 [1985]; Aratuc v. Commission on
were invalidated per precinct, he would have lost at least 1.7 million votes Elections, 88 SCRA 251 [1979]; see also Pungutan v. Abubakar, 43 SCRA 1
(considering that there are more than 170,000 precincts nationwide); the [1972]). As aptly observed by the Solicitor General, respondent Comelec can
result of which will affect the 24 ranking senatorial candidates. administratively undo what it has administratively left undone(Manifestation,
p. 2). Moreover, respondent Comelec has in fact, on May 6, 1992 to be
Petitioner alleges that respondent Comelec acted capriciously and exact, ordered the deletion of Melchor Chavez's name not only on the official
list of candidates, but also on the election returns, tally sheet and certificate
whimsically and with grave abuse of discretion and therefore prays that the
of canvass (Comment, p. 7). Hence, petitioner's allegation that respondent
Comelec be enjoined from proclaiming the 24th winning senatorial candidate
Comelec failed to implement Res. No. 92-132 does not hold water.
until after his petition before the Commission is resolved.

On June 4, 1992, the Court issued a Temporary Restraining Order enjoining Be that as it may, there are other compelling reasons why the instant petition
is bound to fail.
respondent Comelec from proclaiming the 24th winning senatorial candidate
and set the case for hearing on June 9, 1992.
A simple reading of the petition would readily show that petitioner has no
On the same day (June 4, 1992), petitioner filed a manifestation stating that cause of action, the controversy presented being one in the nature of a
pre-proclamation. **
on May 30, 1992, his urgent petition dated May 22, 1992 was dismissed by
respondent Comelec and prayed that the petition ad cautelam at bar be
considered a regular petition. While the Commission has exclusive jurisdiction over pre-proclamation
controversies involving local elective officials (Sec. 242, Omnibus Election
On June 8, 1992, Senator Agapito Aquino ** filed a Motion for Leave to Code), nevertheless, pre-proclamation cases are not allowed in elections for
Intervene with Comment in Intervention praying for the dismissal of the President, Vice-President, Senator and Member of the House of
Representatives.
instant petition on the ground that the law does not allow pre-proclamation
controversy involving the election of members of the Senate.
Sec. 15 of Republic Act 7166 provides:
After hearing the arguments of the parties on June 9, 1992, the Court
resolved to lift the temporary restraining order in the afternoon of the same Sec. 15. Pre-proclamation Cases Not Allowed in Elections
day (June 9, 1992). for President, Vice-President, Senator, and Member of the
House of Representatives. — For purposes of the elections
Coming now to the merits, We find the petition devoid of any. for President,
Vice-President, Senator and Member of the House of
Representatives, no pre-proclamation cases shall be allowed
As stated earlier, petitioner's urgent petition dated May 22, 1992 was on matters relating to the preparation, transmission, receipt,
dismissed by respondent Comelec on May 30, 1992. Had it not been prayed custody and appreciation of the election returns or the
that the proclamation of the 24th winning senatorial candidate be suspended, certificate of canvass, as the case may be. However, this
which this Court granted on June 4, 1992, the instant petition would have does not preclude the authority of the appropriate
been dismissed outright for having become moot and academic. But even canvassing body motu proprio or upon written complaint of
then, this Court could not have acted favorably on petitioner's plaint. an interested person to correct manifest errors in
the certificate of canvass or election returns before it.
The alleged inaction of respondent Comelec in ordering the deletion of (emphasis supplied)
Melchor Chavez's name in the list of qualified candidates does not call for the
exercise of the Court's function of judicial review. This Court can review the xxx xxx xxx
decisions or orders of the Comelec only in cases of grave abuse of discretion
committed by it in the discharge of its quasi-judicial powers and not those
 Any objection on the election returns before the city or petitioner involving, as it does, contest relating to the election of a member of
municipal board of canvassers, or on the municipal the Senate. As aforesaid, petitioner's proper recourse is to file a regular
certificates of canvass before the provincial boards of election protest before the Senate Electoral Tribunal after the winning
canvassers or district board of canvassers in Metro Manila senatorial candidates have been proclaimed.
Area, shall be specifically noted in the minutes of their
respective proceedings. Petitioner argues, on the other hand, that a recount before the Senate
Electoral Tribunal where he would be forced to shell out the expenses
It is clear from the above-quoted provision of the law that imposes not only a property requirement for the enjoyment of the right to be
"pre-proclamation cases (are) not allowed in elections for President, voted upon but also a price on the right of suffrage which would ultimately
Vice-President, Senator and Member of the House of Representatives.'' stifle the sovereign will.
What is allowed is the correction of "manifest errors in the certificate of
canvass or election returns." To be manifest, the errors must appear on the The argument, however, is beside the point. The law is very clear on the
face of the certificates of canvass or election returns sought to be corrected matter and it is not right for petitioner to ask this Court to abandon settled
and/or objections thereto must have been made before the board of jurisprudence, engage in judicial legislation, amend the Constitution and alter
canvassers and specifically noted in the minutes of their respective the Omnibus Election Code. The mandatory procedures laid down by the
proceedings. existing law in cases like the one at bar must be faithfully followed lest we
allow anarchy to reign. The proper recourse is for petitioner to ask not this
In the case at bar, however, petitioner prays not only for a restraining order Court but the Legislature to enact remedial measures.
enjoining "the proclamation of the 24th highest ranking senatorial candidate
without first acting upon petitioner's letter/complaint dated May 14, 1992 and Finally, the instant petition falls squarely with the case of Sanchez v.
urgent petition dated May 22, 1992" but also prays that judgment be Commission on Elections (153 SCRA 67 [1987]) and the disposition arrived
rendered requiring the Comelec to re-open the ballot boxes in 80,348 therein finds application in the case at bar, mutatis mutandis:
precincts in 13 provinces therein enumerated (Petition, p. 9) including Metro
Manila, scan the ballots for "Chavez" votes which were invalidated or Sanchez anchors his petition for recount and/or
declared stray and credit said scanned "Chavez" votes in favor of petitioner.
reappreciation on Section 243, paragraph (b) of the Omnibus
Election Code in relation to Section 234 thereof with regard
It is quite obvious that petitioner's prayer does not call for the correction of to material defects in canvassed election returns. He
"manifest errors in the certificates of canvass or election returns" before the contends that the canvassed returns discarding "Sanchez"
Comelec but for the re-opening of the ballot boxes and appreciation of the votes as stray were "incomplete" and therefore warrant a
ballots contained therein. Indeed, petitioner has not even pointed to any recount or reappreciation of the ballots under Section 234.
"manifest error" in the certificates of canvass or election returns he desires to
be rectified. There being none, petitioner's proper recourse is to file a regular
xxx xxx xxx
election protest which, under the Constitution and the Omnibus Election
Code, exclusively pertains to the Senate Electoral Tribunal.
. . . The fact that some votes written solely as "Sanchez"
were declared stray votes because of the inspectors'
Thus, Sec. 17, Art. VI of the Constitution provides that "(t)he Senate and the erroneous belief that Gil Sanchez had not been disqualified
House of Representatives shall each have an Electoral Tribunal which shall as a candidate, involves an erroneous appreciation of the
be the sole judge of all contests relating to the election, returns, and
ballots. It is established by the law as well as jurisprudence .
qualifications of their respective Members. . . ." (emphasis supplied). The . . that errors in the appreciation of ballots by the board of
word "sole" underscores the exclusivity of the Tribunals' jurisdiction over inspectors are proper subject for election protest and not for
election contests relating to their respective Members (Co v. Electoral recount or reappreciation of ballots.
Tribunal of the House of Representatives, 199 SCRA 692 [1991]; Lazatin v.
House of Representatives Electoral Tribunal, 168 SCRA 391 [1988]; Angara
v. Electoral Commission, 63 Phil. 139 [1936]). It is therefore crystal clear that 2. The appreciation of the ballots cast in the precincts is not
this Court has no jurisdiction to entertain the instant petition. It is the Senate a "proceeding of the board of canvassers" for purposes of
Electoral Tribunal which has exclusive jurisdiction to act on the complaint of pre-proclamation proceedings under Section 241, Omnibus
 Election Code, but of the boards of election inspectors who canvassing the same and proclamation of the winning candidates (Sanchez
are called upon to count and appreciate the votes in v. Comelec, supra).
accordance with the rules of appreciation provided in Section
211, Omnibus Election Code. Otherwise stated, the Premises considered, the Court Resolved to DISMISS the instant petition for
appreciation of ballots is not part of the proceedings of the lack of merit.
board of canvassers. The function of ballots appreciation is
performed by the boards of election inspectors at the
precinct level. (Emphasis supplied)

3. The scope of pre-proclamation controversy is limited to G.R. No. L-52463 September 4, 1980
the issues enumerated under Sec. 243 of the Omnibus
Election Code. The enumeration therein of the issues that JESUS L. VILLEGAS, petitioner,
may be raised in pre-proclamation controversy is restrictive vs.
and exclusive. In the absence of any clear showing or proof COMMISSION ON ELECTIONS, LORENZO G. TEVES and the
that the election returns canvassed are incomplete or PROVINCIAL BOARD OF CANVASSERS OF NEGROS
contain material defects (sec. 234), appear to have been ORIENTAL, respondents.
tampered with, falsified or prepared under duress (sec. 235)
and/or contain discrepancies in the votes credited to any
candidate, the difference of which affects the result of the
election (sec. 236), which are the only instances where a FERNANDO, C.J.:
pre-proclamation recount may be resorted to, granted the
preservation of the integrity of the ballot box and its contents,
A novel provision in the present Constitution is that empowering the
Sanchez' petition must fail. The complete election returns
Commission on Elections to be "the sole judge of all contests relating to the
whose authenticity is not in question, must be prima
elections, returns, and qualifications of all Members of the National Assembly
facie considered valid for the purpose of canvassing the
and elective provincial and city officials." 1 Thus, its competence is greater
same and proclamation of the winning candidates.
than that formerly found in the 1935 Constitution which is limited to the
"enforcement and administration of all laws relative to the conduct of
xxx xxx xxx elections." 2Where before it was the Electoral Tribunal and the judiciary that
inquired into and passed upon election contests affecting legislative
7. The ground for recount relied upon by Sanchez is clearly members and provincial and city officials, respectively, a distinction being
not among the issues that may be raised in pre-proclamation made between those involving legislative members and provincial and city
controversy. His allegation of invalidation of "Sanchez" votes officials, now it is the Commission on Elections that does so. Its authority to
intended for him bear no relation to the correctness and decide pre-proclamation controversies is still one of its functions. 3 The
authenticity of the election returns canvassed. Neither the question in this case arose from the fact that during the pendency of such a
Constitution nor statute has granted the Comelec or the proceeding before respondent Commission, an election protest was filed by
board of canvassers the power in the canvass of election petitioner against private respondent Lorenzo G. Teves, who was duly-
returns to look beyond the face thereof, once satisfied of proclaimed provincial governor of Negros Oriental by the Board of
their authenticity (Abes v. Comelec, 21 SCRA 1252, 1256). Canvassers, having obtained 160,592 votes as against 65,204 votes of
petitioner. 4It is undoubted that the law affords a remedy to one who has lost
In the case at bar, petitioner's allegation that "Chavez" votes were either in an election, if in the conduct thereof, there has been a violation of the
invalidated or declared stray has no relation to the correctness or authenticity Election Code. The specific question is whether under the particular
of the election returns canvassed. Otherwise stated, petitioner has not circumstances of this controversy, it should be through a protest and not
demonstrated any manifest error in the certificates of canvass or election through a pre-proclamation suit.
returns before the Comelec which would warrant their correction. As the
authenticity of the certificates of canvass or election returns are not Our answer is that it should be the former. Accordingly, this certiorari and
questioned, they must be prima facie considered valid for purposes of prohibition proceeding aimed at compelling respondent Commission to order
the Provincial Board of Canvassers of Negros Oriental to suspend the Both comments were considered as answers and the case submitted for
canvass of votes for governor and to consider the certificate of candidacy of decision. As set forth at the outset, the petition cannot prosper.
respondent Teves cancelled is dismissed. It is quite evident that at this stage,
no useful purpose would be served. On the face of the urgent petition before respondent Commission on
Elections, which was dismissed in the assailed resolution of February 2,
The relevant facts are not in dispute. There was filed with respondent 1980, the grounds in the pre-proclamation controversy are that respondent
Commission on February 1, 1980 by petitioner, an Urgent Petition to Teves committed acts violative of certain sections of the 1978 Election
Suspend the Canvass of Votes and the Proclamation and Cancellation of the Code, 13 specifically referred to as giving money or other material
Certificate of Candidacy of respondent Teves. 5 On February, 2, 1980, a inducements to influence, induce, or corrupt the voters; committing acts of
resolution in the above petition was promulgated by respondent Commission terrorism to enhance his candidacy; attaching or displaying billboards on
stating that inasmuch as "specific violations of the Election Code on tricycles or other motor vehicles in announcing or advertising his candidacy,
prohibited acts, such as illegal election propaganda, massive vote buying, during the prohibited period of campaigning, and on election day; showing or
terrorism, etc.; considering that the grounds alleged are proper grounds for displaying publicly advertisement or propaganda in favor of his candidacy by
an election protest or criminal action, [it resolved] to deny the aforementioned means of cinematography; giving free of charge, directly or indirectly,
petition." 6 It was not until February 5, 1980 that petitioner elevated the transportation, food, or drinks or things of value during a public meeting in
matter to this Court. As noted earlier, as far back as February 2, 1980, the favor of several candidates not only during the three hours before and after
Provincial Board of Canvassers had proclaimed respondent Teves as the such meetings, but also on the day preceding the election and on the day of
provincial governor-elect of Negros Oriental with the majority of over 95,000 the election; engaging in massive vote buying; using public funds under any
votes. At the time, therefore, that the urgent petition was filed with this Court, guise whatsoever, directly or indirectly, for an election campaign; using
there had already been a proclamation. It is regrettable that counsel, in his government equipment and vehicle for any election campaign or for partisan
petition, did not so inform this Tribunal. Upon being required to comment, political activity; availing himself of any scheme to discover the contents of
respondent Teves pointed out that he had on March 1, 1980 taken his oath of the ballot of a voter who has just voted; transferring the location of a voting
office, duly assumed the position and thereafter exercised the functions of center without proper authority; violating the integrity of official ballots by
governor of Negros Oriental. 7 In addition, the comment pointed out that adding false ones to the genuine ones, and altering results in electoral
there was pending an election protest before respondent Commission with precincts counting of votes; altering certified list of voters to confuse voters or
petitioner Jesus L. Villegas and the other candidates of his party for the for the purpose of discouraging voters from casting his vote resulting in the
positions of vice-governor as well as members of the Sangguniang disenfranchisement of 20% of the entire voting population of the province
Panlalawigan 8contesting his election and that of his partymates. A copy of and registering new and qualified voters on election day and allowing them to
the protest was likewise included which indicated that it was filed with vote; allowing or inducing flying voters to vote more than once in the same
respondent Commission on February 9, 1980 and that the grounds alleged in election; using of ballots other than the one given by the election committee
the pre-proclamation controversy were the same grounds on which the to alter results of counting votes; distributing sample ballots inside voting
protest was based. 9 Moreover, respondent Teves had filed on March 4, centers; and holding in some precincts, elections a day prior to January 30,
1980 his answer with a counterclaim. 1980. 14
10 It is thus clear that the election protest is still pending with the respondent

Commission. The prayer was for the dismissal of the petition. As noted in the comment of respondent Teves, those are the very same
grounds in the election protest filed with respondent Commission on
Solicitor General Estelito P. Mendoza, 11 in his comment likewise sought its February 9, 1980. It becomes quite apparent then as to why this petition
dismissal. As was therein pointed out: "Considering, however, that should be dismissed. No harm whatsoever could be caused petitioner
respondent Lorenzo G. Teves had already been proclaimed as the winner in Villegas. The opportunity for him to prove such a wholesale allegation of
the gubernatorial elections in Negros Oriental, that he had already taken his massive fraud and violations of the Election Code is still there. The election
oath and that he had already assumed the office of the governor of said protest which he himself had filed with respondent Commission three days
province, the instant petition has become moot and academic; 3. after this urgent petition for certiorari and prohibition was submitted to this
Furthermore, as correctly observed or ruled by the COMELEC, in its Tribunal is an even more appropriate vehicle for that purpose. Nor should it
resolution of February 2, 1980 ... the grounds relied upon by petitioner in PP be lost sight of that the election protest was not even made ex abundanti
No. 63 which are the same grounds alleged by him in this instant petition are cautelo. It appears to be a deliberate choice on his part to rely on such a
proper grounds for an election protest or criminal action." 12 proceeding. If, therefore, dismissal of his petition becomes unavoidable, he
should be aware on whose shoulder the responsibility falls. Then, too, it On May 22, 2004, the reconstituted Provincial Board of Canvassers (PBC)
would be a time consuming effort if the pre-proclamation controversy at this excluded from canvass the contested COCVs and used instead the 4 th and
stage would have to be sent back to the Commission on Elections for a full- 7th copies of the COCVs.5 Based on the results, Miranda garnered the
dress hearing. That is essential in the task of adjudication, being one of the highest number of votes for the position of Congressman.
cardinal requirements of procedural due process. The election protest,
however, would serve just as well, if not better. Moreover, it would be in On appeal with the COMELEC,6 petitioner asserted that the PBC acted
keeping with the letter and spirit of the Constitution, granting as it did the without jurisdiction7 when it heard Miranda’s Petition for Exclusion. Even
additional competence to respondent Commission to be "the sole judge of all assuming that the PBC had jurisdiction over the petition, it still erred in
contests relating to the elections, returns, and qualifications of all Members of excluding the contested COCVs as they appeared regular and properly
the National Assembly and elective provincial and city officials. 15 authenticated.8

WHEREFORE, this petition is dismissed without pronouncement as to costs. On June 6, 2004, private respondent filed a Very Urgent Motion for
Proclamation9 which was opposed10 by petitioner who contended that the
pendency of his appeal with the COMELEC Second Division is a bar to
Miranda’s proclamation.
G.R. No. 163756 January 26, 2005
In a Memorandum dated June 8, 2004, Commissioner Mehol K. Sadain,
GEORGIDI B. AGGABAO, petitioner, commissioner in-charge for Regions II and III, approved the proclamation of
vs. the remaining winning candidates for the province of Isabela.11
THE COMMISSION ON ELECTIONS, the PROVINCIAL BOARD of
CANVASSERS of ISABELA, and ANTHONY MIRANDA, respondents. On June 9, 2004, the COMELEC En Banc issued Resolution No. 7233
likewise directing the proclamation of the remaining winning candidates in
DECISION Isabela.12 On the same day, petitioner filed with the COMELEC an Urgent
Motion to Set Aside the Notice of Proclamation with Prayer for the Issuance
of a Temporary Restraining Order.13
YNARES-SANTIAGO, J.:
On June 14, 2004, Miranda was proclaimed as the duly elected
This Petition for Certiorari1 seeks to annul and set aside as having been Congressman for the 4th District of Isabela.14
issued with grave abuse of discretion Resolution No. 7233 of the COMELEC
En Banc and the proclamation of private respondent Anthony Miranda as
Congressman for the 4th District of Isabela.2 Two days after the proclamation, Aggabao filed this petition assailing
Resolution No. 7233. He claimed that the COMELEC En Banc acted without
jurisdiction when it ordered Miranda’s proclamation considering that the
Petitioner Georgidi B. Aggabao and private respondent Anthony Miranda Second Division has not yet resolved the appeal.
were rival congressional candidates for the 4th District of Isabela during the
May 10, 2004 elections. During the canvassing of the certificates of canvass
of votes (COCV) for the municipalities of Cordon and San Agustin, Miranda In his Comment,15 Miranda moved for the dismissal of the petition
moved for the exclusion of the 1st copy of the COCV on grounds that it was considering that the issue raised by Aggabao is best addressed to the House
tampered with; prepared under duress; differed from other authentic copies of Representatives Electoral Tribunal (HRET).16
and contained manifest errors.3
On August 27, 2004, the petitioner filed a Consolidated Motion for Early
Aggabao objected arguing that the grounds raised by Miranda are proper Resolution; Manifestation that the COMELEC Second Division Issued a
only for a pre-proclamation controversy which is not allowed in elections for Resolution Sustaining the Appeal of the Petitioner; and Reply to the
Members of the House of Representatives.4 Comment.17 He manifested that on August 16, 2004, the COMELEC Second
Division gave due course to his pending appeal.18 At the same time, he
bewailed the failure of the COMELEC Second Division to annul the
proclamation.19
The basic issue for resolution is whether we can take cognizance of this It is undisputed that Miranda has already been proclaimed, taken his oath
petition. and assumed office on June 14, 2004. As such, petitioner’s recourse would
have been to file an electoral protest before the HRET. His remedy is not this
Certiorari as a special civil action can be availed of only if there is petition for certiorari. Thus:
concurrence of the essential requisites, to wit: (a) the tribunal, board or
officer exercising judicial functions has acted without or in excess of Finally, the private respondent Feliciano Belmonte, Jr. has already been
jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction, proclaimed as the winner in the congressional elections in the fourth district
and (b) there is no appeal, nor any plain, speedy and adequate remedy in the of Quezon City. He has taken his oath of office and assumed his duties as
ordinary course of law for the purpose of annulling or modifying the representative; hence, the remedy open to the petitioner was to have filed an
proceeding. There must be capricious, arbitrary and whimsical exercise of electoral protest with the Electoral Tribunal of the House of
power for it to prosper.20 Representatives.23

Article VI, Section 17 of the 1987 Constitution provides: The allegation that Miranda’s proclamation is null and void ab initio does not
divest the HRET of its jurisdiction. Thus:
Sec. 17. The Senate and the House of Representatives shall each have an
Electoral Tribunal which shall be the sole judge of all contests relating to the (I)n an electoral contest where the validity of the proclamation of a winning
election, returns, and qualifications of their respective Members. Each candidate who has taken his oath of office and assumed his post as
Electoral Tribunal shall be composed of nine Members, three of whom shall Congressman is raised, that issue is best addressed to the HRET. The
be Justices of the Supreme Court to be designated by the Chief Justice, and reason for this ruling is self-evident, for it avoids duplicity of proceedings and
the remaining six shall be Members of the Senate or the House of a clash of jurisdiction between constitutional bodies, with due regard to the
Representatives, as the case may be, who shall be chosen on the basis of people’s mandate.24
proportional representation from the political parties and the parties or
organization registered under the party-list system represented therein. The In Lazatin v. Commission on Elections25 we ruled that, upon proclamation of
senior Justice in the Electoral Tribunal shall be its Chairman. the winning candidate and despite its alleged invalidity, the COMELEC is
divested of its jurisdiction to hear the protest. Thus:
In Pangilinan v. Commission on Elections21 we ruled that:
The petition is impressed with merit because the petitioner has been
The Senate and the House of Representatives now have their respective proclaimed winner of the Congressional elections in the first district of
Electoral Tribunals which are the "sole judge of all contests relating to the Pampanga, has taken his oath of office as such, and assumed his duties as
election, returns, and qualifications of their respective Members, thereby Congressman. For this Court to take cognizance of the electoral protest
divesting the Commission on Elections of its jurisdiction under the 1973 against him would be to usurp the functions of the House Electoral
Constitution over election cases pertaining to the election of the Members of Tribunal.l^[Link] The alleged invalidity of the proclamation (which has
the Batasang Pambansa (Congress). It follows that the COMELEC is now been previously ordered by the COMELEC itself) despite alleged
bereft of jurisdiction to hear and decide pre-proclamation controversies irregularities in connection therewith, and despite the pendency of the
against members of the House of Representatives as well as of the Senate. protests of the rival candidates, is a matter that is also addressed,
considering the premises, to the sound judgment of the Electoral Tribunal.
The HRET has sole and exclusive jurisdiction over all contests relative to the
election, returns, and qualifications of members of the House of In this case, certiorari will not lie considering that there is an available and
Representatives. Thus, once a winning candidate has been proclaimed, adequate remedy in the ordinary course of law for the purpose of annulling or
taken his oath, and assumed office as a Member of the House of modifying the proceedings before the COMELEC. After the proclamation,
Representatives, COMELEC’s jurisdiction over election contests relating to petitioner’s remedy was an electoral protest before the HRET. The resolution
his election, returns, and qualifications ends, and the HRET’s own jurisdiction of the issues presented in this petition is best addressed to the sound
begins.22 judgment and discretion of the electoral tribunal.
WHEREFORE, in view of the foregoing, the instant Petition for Certiorari is
DISMISSED for lack of merit. No pronouncement as to costs.