Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 176364 September 18, 2009

JUANITO R. RIMANDO, Petitioner,

vs.
COMMISSION ON ELECTIONS and NORMA O. MAGNO, Respondents.

DECISION

LEONARDO-DE CASTRO, J.:

Before the Court is a petition for certiorari under Rule 65 of the Rules of Court with prayer for the
issuance of a temporary restraining order and/or writ of preliminary injunction to reverse and set
aside the following issuances of the Commission on Elections (COMELEC) En Banc: 1)
Resolution1 promulgated on October 11, 2005 and 2) Resolution2 promulgated on January 5, 2007 in
Election Offense (E.O.) Case No. 01-130 for Violation of the Omnibus Election Code. The first
assailed Resolution granted private respondent’s Motion for Reconsideration and directed the
COMELEC’s Law Department to file the proper information against petitioner for violation of Article
XXII, Section 261, paragraph (s) of the Omnibus Election Code, while the second Resolution denied
the petitioner’s motion for reconsideration.

The factual antecedents:

On July 13, 2001, herein private respondent lodged a Complaint3 with the COMELEC, Office of the
Provincial Election Supervisor, Santa Cruz Laguna, accusing Jacinto Carag, Jonry Enaya and herein
petitioner Juanito R. Rimando of violating Section 2, paragraph (e) and Section 3, paragraph (d) of
COMELEC Resolution No. 33284 in relation to Section 261, paragraph (s) of the Omnibus Election
Code5 and Section 32 of Republic Act (R.A.) No. 7166.6 The Complaint included the following
narration of facts:7

That on or about February 27, 2001, and/or during the election period from January 2, 2001 to June
13, 2001, in Quezon City and Santa Rosa, Laguna, and within the jurisdiction of this Honorable
Commission, xxx JUANITO R. RIMANDO, being then the President and General Manager of the
Illustrious Security and Investigation Agency, Inc. despite the COMELEC denial on February 19,
2001 of his/its application for a Firearms & Other Deadly Weapons Ban Exemption, in conspiring
with one another, did then and there, willfully and unlawfully, allow, permit and/or sanction his/its
SECURITY GUARDS JACINTO CARAG AND JONRY ENAYA, to work as such as they in fact
unlawfully and willfully did at the Santa Rosa Homes, Santa Rosa, Laguna, using 12 GA with
Firearms License Nos. 0002946J0048708 and 0002946J00478992, knowing fully well that they had
no prior written COMELEC authority to do so under said Section 2, paragraph e and Section 3,
paragraph d COMELEC RESOLUTION 3328; that on February 27, 2001, respondent-Security Guard
JACINTO CARAG, without any justifiable cause, with intent to kill, taking advantage of nighttime,
with treachery and use of firearm, did then there, willfully, feloniously and unlawfully shoot to death
with a shotgun JONATHAN MAGNO, a 19-year old unarmed and defenseless nautical student in his
school uniform… that said respondent-Security Guard CARAG immediately fled from the scene of
the crime and is still at large, and that the fatal weapon though recovered by the afore-named
agency has not yet been surrendered by said respondent RIMANDO to the police authorities, to the
damage and prejudice of the heirs of said victim represented by the undersigned mother. xxx xxx
xxx

In his Counter-Affidavit,8 petitioner denied having violated COMELEC Resolution No. 3328 and
averred that on the day of the shooting incident, security guards Carag and Enaya were within the
vicinity of Sta. Rosa Homes in Santa Rosa, Laguna, where they were assigned to provide security to
the residents thereof and provided with licensed firearms which they never brought outside the
subdivision. Attached to his Counter-Affidavit was Memorandum 31-20009 of the Security Agencies
and Guards Supervision Division, Civil Security Group, PNP, which petitioner contended only
prohibited private security agencies, company security forces, government security forces and their
security guards from bearing guns outside the immediate vicinity of their places of work without
written authority from the COMELEC.

In a Resolution10 dated October 8, 2001, the Provincial Election Supervisor of Santa Cruz, Laguna,
dismissed private respondent’s complaint against petitioner and his security guards based on a
finding that the licensed firearms were carried and used by security guards Enaya and Carag within
their place of work, for which no exemption and/or permit was needed in accordance with Section
2(e) of COMELEC Resolution No. 3328.

Therefrom, private respondent Magno appealed11 to the COMELEC at Intramuros, Manila. Citing
Section 3(d) of COMELEC Resolution No. 3328, she argued that prior written authority from the
COMELEC was necessary before firearms could legally be carried even in the place of assignment
during the election period.

On May 6, 2002, the COMELEC En Banc rendered a Resolution12 affirming the dismissal of the
complaint against security guards Jonry Enaya and Jacinto Carag, but directing its Law Department
to file the proper information against petitioner Juanito Rimando for violation of Article XXII, Section
261, paragraph (s) of the Omnibus Election Code. In said Resolution, the COMELEC En
Banc, noting the "seeming" conflict between Section 2(e) and Section 3(d) of COMELEC Resolution
No. 3328, interpreted Section 261(s) of the Omnibus Election Code as requiring a permit from the
Commission before the security guards of a security agency can bear firearms in their place of
assignment during the election gun ban. Moreover, the COMELEC found that as President and
General Manger of the security agency, it was petitioner’s responsibility to apply for such a permit
from the COMELEC. Thus, the COMELEC ruled in its May 6, 2002 Resolution:13

As President and General Manager, respondent Rimando is aware of this requirement as shown in
the records that he actually applied for an exemption from the Committee on Firearms and Security
Personnel of the Commission. However, said application was denied on the ground that it lacked the
endorsement of the CSG Director as evidenced by the recommendations made by the Law
Department. xxx xxx xxx

We therefore hold respondent Rimando liable for violation of the COMELEC Gun Ban in his capacity
as the President and General Manager of the agency. His liability falls squarely on his failure to
secure a permit from the Commission as provided under the supplementary statement, "Provided
further, That in the last case prior written approval of the Commission shall be obtained." This
supplemental provision explicitly reveals the role of a security agency head in the procurement of
COMELEC permit delineating his responsibility over his subordinates who only perform their duties
as mandated of them by the agency. It would be a mockery of justice if by reason of respondent
Rimando’s failure to secure a permit from the COMELEC all security guards employed in his agency,
inclusive of herein respondents Carag and Jacinto, be charged with violation of the COMELEC Gun
Ban.
This principle on the criminal liability of managers of security agencies and their employees has
been laid down in Cuenca vs. People of the Philippines (G.R. No. L-27586, June 26, 1970). In said
case, the Supreme Court absolved the security guard of the crime of illegal possession of firearms
and instead ordered the prosecution of the security guard’s agency’s manager for his failure to
acquire the necessary permit for the firearms used by his agency. xxx xxx xxx

Petitioner filed a Motion for Reconsideration14 contending that 1) the aforesaid Resolution went
beyond the scope of the law when it held petitioner, as President of the security agency, criminally
liable for an act that was not prohibited under Section 261 (s) of the Omnibus Election Code; 2) there
was no conflict between Sections 2 and 3 of COMELEC Resolution No. 3382 and if ever there was,
the same should be resolved in his favor since penal laws were construed strictly against the State
and in favor of the accused; 3) the application for exemption filed by petitioner’s security agency with
the COMELEC through the PNP-SAGD was for the authority to transport firearms and not to bear
arms inside or within the vicinity of the place of work of petitioner’s security personnel; and 4) since
no election offense was committed, the filing of a criminal case against petitioner was unwarranted
and contrary to law.

In its Resolution15 dated January 30, 2004, the COMELEC En Banc granted petitioner’s motion for
reconsideration and accordingly reversed and set aside its May 6, 2002 Resolution with the following
ratiocination:

"Section 261. Prohibited Acts. – The following shall be guilty of an election offense:

xxx

(s) Wearing of uniforms and bearing arms.- During the campaign period, on the day before and on
election day, any member of x x x [a] privately-owned or operated security, investigative, protective
or intelligence agencies, "who x x x bear arms outside the immediate vicinity of his place of work;
Provided, That this prohibition shall not apply x x x when guarding private residences, buildings or
offices; Provided, further, that in the last case prior written approval of the Commission shall be
obtained. Xxx"

The aforequoted provision lays down the following parameters for its application, to wit:

1. Bearing of firearms beyond the immediate vicinity of one’s place of work is prohibited;

2. One may carry his firearm beyond the immediate vicinity of his place of work when he is
guarding the residence of private persons or private residences or offices provided he has
prior written authority from the Comelec.

The confusion in the interpretation of this proscription lies in the peculiar circumstances under which
security guards perform their duties. There are security guards hired to escort individuals. Since they
are mobile, their place of work cannot be determined with exactitude hence, the need for an
authority from the Comelec for them to carry their firearms. There are also guards hired to secure
the premises of offices, or residences. And because these offices adjoin other offices or that these
residences adjoin other houses, the actual place of work or its immediate vicinity cannot be fixed
with ease, there is also a need for these guards to secure authority from the Comelec. Lastly, there
are guards assigned to secure all the houses in a subdivision, or all offices in one compound, or all
factories within a complex, or all stores within a mall. In this case, the place of work of the guards
therein detailed can be easily determined by the visible boundaries. And because the place of work
can be determined, the Gun Ban exemption is required only when the firearms are brought outside
said subdivision, or compound, or complex, or mall.
The following provisions of Comelec Resolution No. 3328 which is the Rules and regulations
governing the Bearing of Firearms during the election period for the May 2001 elections should
likewise be noted:

"Sec. 2. Prohibitions – During the election period from Jan. 2 to June 13, 2001, it shall be unlawful
for xxx

xxx

(e) Any members of xxx privately owned or operated security, investigative, protective or intelligence
agencies to bear firearms outside the immediate vicinity of his place of work xxx

xxx

"Sec. 3. Exceptions – The provisions in Sec. 2 hereof shall not apply in the following instances:

xxx

(d). Members of x x x privately owned or operated security, investigative, protective or intelligence

agencies in the specific area of their assignment of their duties with prior written authority from the
Commission."

Interpreting the provisions aforequoted in relation to this case, we arrive at the following important
points:

1. One does not need authority from the Commission when the firearm is carried within the
immediate vicinity of his place of work;

2. If his place of work cannot be determined but he has an assignment to carry out in
accordance with his duty, authority from the Commission is required.

In the instant case, the shooting incident happened within the premises of Sta. Rosa Homes, a
subdivision being guarded by the security agency headed by the respondent. It is very clear
therefore that the carrying of firearm was done within the premises of the guards’ place of work.
Under the law, the act is exempted from the Gun Ban rule.

Laws which are penal in nature, like Section 261 of the Omnibus Election Code, should be
interpreted liberally in favor of respondents. xxx While it is our duty to conduct preliminary
investigation for election offenses and that this kind of investigation only requires substantial
evidence, the Commission must carry out this task prudently to the end that persons are not
unnecessarily dragged into court hearings. Furthermore, we have already dismissed the case
against the security guards. In the interest of justice, we also have to dismiss the case against the
head of their security agency. 16

Private respondent filed a motion for reconsideration17 of the January 30, 2004 Resolution. In the
herein first assailed Resolution18 dated October 11, 2005, the COMELEC En Banc rendered
judgment, thus:

WHEREFORE, complainant’s Motion for Reconsideration is hereby GRANTED, and the Resolution
of the Commission promulgated on 30 January 2004 is hereby RECONSIDERED.
The Law department is hereby directed to file the proper information against respondent Ret. Brig.
Gen. JUANITO RIMANDO for violation of Article XXII, Section 261, paragraph (s) of the Omnibus
Election Code. The Law Department is further ORDERED to ensure the effective prosecution
thereof.

SO ORDERED.19

In again changing its disposition of this case, the COMELEC En Banc explained:20

The focal issue involved in the instant case is whether or not respondent Rimando violated the
COMELEC Gun Ban enforced during the 2001 election period.

To settle the issue once and for all, We deem it proper to spell out the elements of the offense
provided for in Section 261 (s) of the Omnibus Election Code, to wit:

(1) The offender is a member of security or police organization of government agencies,

commissions, councils, bureaus, offices or government-owned or controlled corporations, or
privately owned or operated security, investigative, protective or intelligence agencies;

(2) He wears his uniform or uses his insignia, decorations or regalia, or bear arms outside
the immediate vicinity of his place of work;

(3) That he committed the same during the campaign period, on the day before election day,
or on election day;

(4) The offender does not fall under any of these exceptions:

4.1. He is in pursuit of a person who has committed or is committing a crime in the

premises he is guarding;

4.2. He is escorting or providing security for the transport of payrolls, deposits or

other valuables;

4.3. He is guarding the residence of private persons or guarding private residences,

buildings or offices; Provided, that prior written approval of the Commission shall be
obtained.

The situation subject of this case falls within sub-paragraph 4.3. above.

Simply put, one way of committing the offense of violation of the gun ban is when the offender is in
possession of a gun while guarding the residence of private persons, or guarding private residences,
buildings or offices, without the necessary written approval or permission from the Commission.

The above interpretation of the law is consistent with Section 2, paragraph (e) and Section 3,
paragraph (d) of Resolution No. 3328. xxx

There is therefore no question that a violation of the gun ban was indeed committed. The only
remaining issue is whether or not respondent Rimando can be held liable therefor.

There is no dispute that the security agency concerned, as represented by respondent Rimando, is
required by law to secure the necessary permit from the Commission. In fact, the records show that
the said agency represented by respondent Rimando did in fact apply for exemption from the gun
ban, but the same was denied for failure to comply with all the requirements.

Can respondent Rimando be held criminally liable for such failure to secure the necessary
exemption from the gun ban? It is Our studied opinion that the answer is in the affirmative.

In the case of Cuenca vs. People of the Philippines, G.R. No. L-27586, June 26, 1970, the Supreme
Court ruled that

Appellant security guard of the Bataan Veterans Security Agency, which was duly licensed to
operate as such security agency, cannot be held guilty of the crime of illegal possession of firearm
and ammunitions owing to the failure of the owner, manager and/or operator of the said security
agency to comply with his duty to obtain such license before he got said firearm and ammunitions
and delivered the same to his employee, herein appellant.

xxx

The owner, manager and/or operator of the security agency who failed to secure the requisite
license – in the case at bar, Jose Forbes, as the owner and operator of the Bataan Veterans
Security Agency – should be prosecuted for illegal possession of firearms and/or such other crime
as may have been committed in consequence of the breach of the laws and regulations regarding
the operation of a security agency and use and issuance of firearms and ammunitions.

Petitioner moved for reconsideration of the October 11, 2005 Resolution. In its herein second
impugned Resolution21 promulgated on January 5, 2007, the COMELEC En Banc emphasized that
in light of the peculiar circumstances surrounding the case, it was ruling pro hac vice – i.e. its ruling
in the instant case should not be taken as a precedent for future cases of similar nature, but only as
a ruling with regard to the herein case – and denied petitioner’s Motion for Reconsideration, to wit:22 1avv phi 1

WHEREFORE, premises considered, the Commission (en banc) RESOLVED, as it is hereby

RESOLVES, to DENY the instant Motion for Reconsideration for LACK OF MERIT.

ACCORDINGLY, we uphold the October 11, 2005 en banc Resolution as our FINAL Resolution in
the instant case. The Law Department (this Commission) is hereby DIRECTED to file the proper
information against Ret. Brig. Gen. JUANITO R. RIMANDO for violation of Article XXII, Section 261
paragraph (s) of the Omnibus Election Code and other pertinent election laws. The Law Department
(this Commission) is further ORDERED to ensure the effective prosecution thereof.

SO ORDERED.23

Ascribing to public respondent COMELEC En Banc grave abuse of discretion and/or ruling without
or in excess of jurisdiction for rendering the assailed Resolutions dated October 11, 2005 and
January 5, 2007, petitioner has come to us for relief on the following grounds:24

PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OF DISCRETION AND/OR WITHOUT OR

IN EXCESS OF JURISDICTION IN MAKING CRIMINAL AN ACT OF BEARING ARMS WITHIN THE
IMMEDIATE VICINITY OF THE PLACE OF WORK WITHOUT COMELEC AUTHORITY, EVEN
WHEN IT IS CLEARLY NOT MADE SO UNDER SECTION 261(s) OF THE OMNIBUS ELECTION
CODE.
 II

ASSUMING ARGUENDO THAT THE ACT CONSTITUTE AN ELECTION OFFENSE,

NEVERTHELESS, PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OF DISCRETION
AND/OR WITHOUT OR IN EXCESS OF JURISDICTION IN HOLDING PETITIONER CRIMINALLY
LIABLE FOR THE ACTS OF OTHER PERSONS, I.E., THE SECURITY GUARDS WHO WERE THE
ONES WHO PERSONALLY CARRIED THE FIREARMS, JUST BECAUSE PETITIONER WAS
THEN THE HEAD OF THE SECURITY AGENCY CONCERNED, WHEN IT IS NOT CLEARLY
MADE SO UNDER SECTION 261 (s) OF THE OMNIBUS ELECTION CODE.

III

PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OF DISCRETION AND/OR WITHOUT OR

IN EXCESS OF JURISDICTION IN DISREGARDING THE TIME-HONORED DOCTRINE OF
"NULLUM CRIMEN, NULLA POENA SINE LEGE."

In its Comment,25 private respondent averred that the resolutions of the COMELEC En Banc, being
the government office principally charged with the enforcement of the Omnibus Election Code,
should be given full faith and credit.

The petition is impressed with merit.

Public respondent’s interpretation of Section 261 (s) of the Omnibus Election Code – to the effect
that there was a violation of the election gun ban in this case because of the absence of a permit
from the COMELEC to carry firearms within the place of work – was without basis in law.

Section 261 (s) of the Omnibus Election Code reads:

Section 261. Prohibited Acts. – The following shall be guilty of an election offense:

xxxx

(s) Wearing of uniforms and bearing arms.- During the campaign period, on the day before and on
election day, any member of security or police organization of government agencies, commissions,
councils, bureaus, offices or government-owned or controlled corporations or privately-owned or
operated security, investigative, protective or intelligence agencies, who wears his uniform or
uses his insignia, decorations or regalia, or bears arms outside the immediate vicinity of his
place of work; Provided, That this prohibition shall not apply when said member is in pursuit of
a person who has committed or is committing a crime in the premises he is guarding; or when
escorting or providing security for the transport of payrolls, deposits, or other valuables; or
when guarding the residence of private persons or when guarding private residences,
buildings or offices; Provided, further, that in the last case prior written approval of the Commission
shall be obtained. The Commission shall decide all applications for authority under this paragraph
within fifteen days from the date of the filing of such application. (Emphasis ours)

A perusal of Section 261 (s) in its entirety would show that, as a rule, the bearing of arms by a
member of security or police organization of a government office or of a privately owned security
agency outside the immediate vicinity of one’s place of work is prohibited. Implicitly, the bearing of
arms by such person within the immediate vicinity of his place of work is not prohibited and does not
require prior written approval from the Commission. However, Section 261 (s) also lays down
exceptions to this rule and states that the general prohibition shall not apply in three instances: (a)
when any of the persons enumerated therein is in pursuit of another person who has committed or is
committing a crime in the premises the former is guarding; (b) when such person is escorting or
providing security for the transport of payrolls, deposits, or other valuables; and (c) when he is
guarding private residences, buildings or offices. It is only in the case of the third exception that it is
provided that prior written approval from the COMELEC shall be obtained.

In the case at bar, the cause of the confusion appears to be the fact that the security guards who
were being charged with violation of the election gun ban were bearing firearms within the immediate
vicinity of their place of work, but their place of work happened to be a residential subdivision where
they were guarding the residences of private persons.

Indeed, this seeming conflict between the general rule (which allows the bearing of arms within the
immediate vicinity of the security personnel’s place of work) and the exception (which states that
prior written approval from the COMELEC is necessary when security personnel are guarding
private residences or offices) can be harmonized if we interpret the exceptions as pertaining to
instances where the security personnel are outside the immediate vicinity of their place of work or
where the boundaries of their place of work cannot be easily determined. Applying this interpretation
to the case at bar, prior written approval from the COMELEC is only required when a member of a
security agency is guarding private residences outside the immediate vicinity of his place of work, or
where the exact area of his assignment is not readily determinable.

Verily, the correct interpretation of Section 261 (s) is found in the January 30, 2004 Resolution of the
COMELEC En Banc which held:26

[Section 261 (s) of the Omnibus Election Code] lays down the following parameters for its
application, to wit:

1. Bearing of firearms beyond the immediate vicinity of one’s place of work is prohibited;

2. One may carry his firearm beyond the immediate vicinity of his place of work when he is
guarding the residence of private persons or private residences or offices provided he has
prior written authority from the Comelec.

The confusion in the interpretation of this proscription lies in the peculiar circumstances under
which security guards perform their duties. There are security guards hired to escort
individuals. Since they are mobile, their place of work cannot be determined with
exactitude hence, the need for an authority from the Comelec for them to carry their firearms. There
are also guards hired to secure the premises of offices, or residences. And because these offices
adjoin other offices or that these residences adjoin other houses, the actual place of work or
its immediate vicinity cannot be fixed with ease, there is also a need for these guards to
secure authority from the Comelec. Lastly, there are guards assigned to secure all the houses
in a subdivision, or all offices in one compound, or all factories within a complex, or all stores
within a mall. In this case, the place of work of the guards therein detailed can be easily
determined by the visible boundaries. And because the place of work can be determined, the
Gun Ban exemption is required only when the firearms are brought outside said subdivision,
or compound, or complex, or mall. (Emphasis ours)

Indeed, the aforesaid interpretation would also harmonize Sections 2(e) and 3(d) of COMELEC
Resolution No. 3328, which pertinently provide:

Sec. 2. Prohibitions – During the election period from Jan. 2 to June 13, 2001, it shall be unlawful
for:
xxxx

e) Any member of xxx privately owned or operated security, investigative, protective or intelligence
agencies to bear firearms outside the immediate vicinity of his place of work; xxx

xxxx

Sec. 3. Exceptions – The prohibitions in Section 2 hereof shall not apply in the following instances:

xxxx

d). Members of xxx privately owned or operated security, investigative, protective or intelligence
agencies in the specific area of their assignment of their duties with prior written authority from the
Commission.

The exemption also applies to these personnel when:

xxx

3) Guarding private residence, buildings or offices with prior written authority of the Commission; xxx

x x x (Emphasis supplied)

From the foregoing provisions of COMELEC Resolution No. 3328, one of the prohibited acts is for a
member of a privately owned or operated security agency to bear firearms outside the immediate
vicinity of his place of work. Such prohibition shall not apply 1) when the member of the security
agency is in the actual performance of his duty in the specific area of his assignment with prior
written authority from the Commission, and 2) when such member is guarding private residences,
buildings or offices with prior written authority from the Commission. However, these two instances
presuppose that the member of the security agency was undertaking his duties in such a manner
that the boundaries of his place of work cannot be determined with exactitude.

This was the interpretation of COMELEC Resolution No. 3328 adopted in the same January 30,
2004 Resolution of the COMELEC En Banc. To quote:27

1. One does not need authority from the Commission when the firearm is carried within the
immediate vicinity of his place of work;

2. If his place of work cannot be determined but he has an assignment to carry out in
accordance with his duty, authority from the Commission is required.

Here, it is undisputed that security guards Carag and Enaya were bearing licensed firearms while
performing their assigned task as guards inside the subdivision, which was their place of work. That
being the case, there was no need to secure a written authority from the COMELEC under Section
261(s) of the Omnibus Election Code. Hence, there was no violation at all of that particular provision.
We, thus, concur with petitioner that he did not commit an election offense on February 27, 2001, the
day the shooting incident happened within the premises of Sta. Rosa Homes at Santa Rosa,
Laguna.

To begin with, under Section 261(s) of the Omnibus Election Code, the offender is, among others, a
member of a privately owned or operated security, investigative, protective or intelligence
agency, who either (a) wears his uniform or uses his insignia, decorations or regalia, or (b) bears
arms outside the immediate vicinity of his place of work during the election period, except under
certain circumstances or when authorized by the COMELEC to do so. Ineluctably, such
circumstances can only apply to security guards Enaya and Carag but not to petitioner. Petitioner
should not be made responsible for the acts of another, more so, when the law does not make him
expressly so responsible. In United States v. Abad Santos,28 it was explicitly held that:

Courts will not hold one person criminally responsible for the acts of another, committed without his
knowledge or consent, unless there is a statute requiring it so plain in its terms that there is no doubt
of the intention of the Legislature. Criminal statutes are to be strictly construed. No person should be
brought within their terms who is not clearly within them, nor should any act be pronounced criminal
which is not clearly made so by the statute. (Emphasis ours)

We likewise held in People v. Deleverio that:29

It is a basic rule of statutory construction that penal statutes are to be liberally construed in favor of
the accused. Courts must not bring cases within the provision of a law which are not clearly
embraced by it. No act can be pronounced criminal which is not clearly made so by statute; so, too,
no person who is not clearly within the terms of a statute can be brought within them. Any
reasonable doubt must be resolved in favor of the accused. (Emphasis Ours)

It may not be amiss to point out that in order to buttress its ruling regarding petitioner’s liability for
failing to secure a permit, the COMELEC En Banc, in its October 11, 2005 Resolution, found that
petitioner, as the representative of the security agency concerned, was aware that an exemption
from the COMELEC must necessarily be obtained. True, petitioner applied for an exemption from
the gun ban, but as revealed in petitioner’s security agency’s Letter attached to its Application for
Exemption,30 the request for exemption involved the transport and conveyance of licensed firearms
and ammunitions, which were integral to the conduct of the security agency’s business and not for
the bearing of arms within the place of work of the security guards. Evidently, petitioner did not see
the need to apply for an exemption for his security guards, considering that in a memorandum
guideline issued by the Security Agencies and Guards Division, PNP-SAGD, what was prohibited,
among others, was to bear guns outside the immediate vicinity of the place of work. Pertinently,
Memorandum 31-200031 states:

Guidelines Re—COMELEC GUN BAN During Election Period

(December 12, 2000)

1. References:

a. Provisions on Omnibus election code

b. COMELEC Resolution Nos. 3258 dated September 28, 2000 and 3328 dated
November 20, 2000.

2. xxx The following circumstances are prohibited, unless with written authority from COMELEC:

xxx

b. Detailed security personnel of PSAs//CSFs/GSFs and their security

guards/personnel are prohibited to bear guns outside the immediate vicinity of their
place of work.
 xxx

(Emphasis ours)

Even assuming for the sake of argument that Section 261(s) required petitioner’s security agency to
secure prior written approval from the COMELEC for its security guards to bear arms in their place of
work (which was a residential subdivision), the failure of the President or General Manager of the
security agency to secure such approval is not itself defined as an election offense. What is
punished or prohibited under Section 261(s) is merely the bearing of arms by a member of a security
agency outside the immediate vicinity of his place of work without the approval of the COMELEC as
required under particular circumstances.

To put it alternatively, the last proviso in Section 261(s) is not a penal provision. Said proviso reads:

xxx Provided further that in the last case, prior written approval of the Commission shall be
obtained.xxx

A penal law, as defined by this Court, is an act of the legislature that prohibits certain acts and
establishes penalties for its violation. It also defines crime, treats of its nature and provides for its
punishment.32 Here, the abovequoted proviso does not prohibit certain acts or provide penalties for
its violation; neither does it describe the nature of a crime and its punishment. Consequently, the
abovequoted phrase cannot be considered a penal provision. a1f

Moreover, even if we read Section 3(d) of COMELEC Resolution No. 3328 as requiring members of
private security agencies to secure prior written authority from the COMELEC to bear arms even
within the vicinity of their places of work and we assume that the COMELEC may validly do so
despite the fact that such authorization is not required under Section 261(s) of the Omnibus Election
Code, but rather an added regulatory measure, the same is likewise not a penal provision. At most, it
is an administrative requirement to be complied with by the concerned persons.

As aptly opined by Commissioner Romeo A. Brawner in his Dissent to the assailed January 5, 2007
Resolution:33

xxx The requirement to secure the Commission's permit to secure exemption from the gun ban is in
its present formulation no more than an administrative process described in the law. If this
Commission believes that it is necessary to criminalize the failure to secure its approval, then
representation should be made for such purpose. (Emphasis ours)

Lastly, the COMELEC’s reliance on Cuenca v People34 in its October 11, 2005 Resolution to hold
petitioner criminally liable is plainly misplaced. Commissioner Brawner in his Dissent properly
distinguished Cuenca from the present case and we quote:35

One. What is involved in the case of Cuenca was a simple case of illegal possession of
firearm totally unrelated to election while the case at bench is a charge for violation of an
election law.

Two. The operative act constituting the offense found by the Supreme Court was the
omission of the security agency headed by Jose Forbes to secure a license for the firearm
he issued to his security Guard Ernesto Cuenca. While in the present case, there is no
dispute at all that the firearms issued by respondent Rimando to his security guards were
duly licensed.
 Three. The accused in Cuenca was the security guard and not the security agency head
while in this case, the remaining respondent is the head of the security agency. 1avv ph!1

Four. The issue in Cuenca was whether the security guard was in possession of a licensed
firearm or not while the issue in this case is whether the head of the agency who failed to
secure a permit for exemption from the Commission is guilty of an election offense or not.

It may likewise be noted that mere possession of unlicensed firearms is already punishable by
statute as a crime. Hence, the owner, manager or operator of the security agency that obtains
unlicensed firearms and issues the same to security guards in its employ is undeniably criminally
liable. Moreover, the law on illegal possession of firearms has been amended to specifically penalize
the owner, president, manager, director, or other responsible officer of any public or private firm or
entity who knowingly allows the use of unlicensed firearms by his personnel.36

To reiterate, under Section 261 (s) of the Omnibus Election Code, the punishable act is the bearing
of arms outside the immediate vicinity of one’s place of work during the election period and not the
failure of the head or responsible officer of the security agency to obtain prior written COMELEC
approval.

Incidentally, private respondent also asserts that since the incident happened in a street inside a
subdivision, a written authority from the COMELEC should have nonetheless been obtained under
R.A. 7166, Section 32 which in effect modified Section 261 of the Omnibus Election Code.

Suffice it to say that Section 261(s) was not the one modified by Section 32 of R.A. No. 7166, but
Section 261(q). As noted in Los Banos v. Pedro:37

SEC. 261. Prohibited Acts. — The following shall be guilty of an election offense:

xxxx

(q) Carrying firearms outside residence or place of business. — Any person who, although
possessing a permit to carry firearms, carries any firearms outside his residence or place of
business during the election period, unless authorized in writing by the Commission [on Elections]:
Provided, That a motor vehicle, water or air craft shall not be considered residence or place of
business or extension thereof.

This prohibition shall not apply to cashiers and disbursing officers while in the performance of their
duties or to persons who by nature of their official duties, profession, business or occupation
habitually carry large sums of money or valuables.

This section was subsequently amended under Republic Act (R.A.) No. 7166, the Synchronized
Election Law of 1991, to read:

SEC. 32. Who May Bear Firearms. — During the election period, no person shall bear, carry or
transport firearms or other deadly weapons in public places, including any building, street, park,
private vehicle or public conveyance, even if licensed to possess or carry the same, unless
authorized in writing by the Commission. The issuance of firearm licenses shall be suspended during
the election period

In any event, there is likewise nothing in R.A. 7166 that expressly penalizes the mere failure to
secure written authority from the COMELEC as required in Section 32 thereof. Such failure to secure
an authorization must still be accompanied by other operative acts, such as the bearing, carrying or
transporting of firearms in public places during the election period.

All told, petitioner should be absolved of any criminal liability, consistent with the doctrine of nullum
crimen, nulla poena sine lege - there is no crime when there is no law punishing it.38

Thus, the Court finds that respondent COMELEC acted with grave abuse of discretion in issuing the
questioned Resolutions.

WHEREFORE, The Resolutions of the COMELEC En Banc issued on October 11, 2005 and
January 5, 2007 in Election Case No. 01-130 are hereby REVERSED and SET ASIDE.

SO ORDERED.

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

(On official leave)

CONSUELO YNARES-SANTIAGO
LEONARDO A. QUISUMBING*
Associate Justice
Associate Justice

(On official leave)

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

CONCHITA CARPIO MORALES MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice

ARTURO D. BRION DIOSDADO M. PERALTA

Associate Justice Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

ROBERTO A. ABAD
Associate Justice

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

REYNATO S. PUNO
Chief Justice

Footnotes

* On official leave.

1 Rollo, pp. 52-57.

2 Id. at 58-63.

3 Id. at 73-74.

4Entitled RULES AND REGULATIONS ON: (A) BEARING, CARRYING OR

TRANSPORTING FIREARMS OR OTHER DEADLY WEAPONS; (B) SECURITY
PERSONNEL OR BODYGUARDS; (C) BEARING ARMS BY ANY MEMBER OF SECURITY
OR POLICE ORGANIZATION OF GOVERNMENT AGENCIES AND OTHER SIMILAR
ORGANIZATION; (D) ORGANIZATION OR MAINTENANCE OF REACTION FORCES
DURING THE ELECTION PERIOD IN CONNECTION WITH THE MAY 14, 2001 NATIONAL
AND LOCAL ELECTIONS. It was promulgated on November 20, 2000.

5 Approved and became effective on December 3, 1985.

6Entitled AN ACT PROVIDING FOR SYNCHRONIZED NATIONAL AND LOCAL

ELECTIONS AND FOR ELECTORAL REFORMS, AUTHORIZING APPROPRIATIONS
THEREFOR, AND FOR OTHER PURPOSES. This was approved on November 26, 1991.

7 Rollo, p. 73.