ROGELIO Z. BAGABUYO, G.R. No.

176970
Petitioner, December 8, 2008
- versus -

COMMISSION ON ELECTIONS,
Respondent.

Before us is the petition for certiorari, prohibition, and mandamus,[1] with a prayer for the
issuance of a temporary restraining order and a writ of preliminary injunction, filed by Rogelio
Bagabuyo (petitioner) to prevent the Commission on Elections (COMELEC) from implementing
Resolution No. 7837 on the ground that Republic Act No. 9371[2] the law that Resolution No. 7837
implements is unconstitutional.

BACKGROUND FACTS
On October 10, 2006, Cagayan de Oros then Congressman Constantino G. Jaraula filed
and sponsored House Bill No. 5859: An Act Providing for the Apportionment of the Lone
Legislative District of the City of Cagayan De Oro.[3] This law eventually became Republic Act
(R.A.) No. 9371.[4] It increased Cagayan de Oros legislative district from one to two. For the
election of May 2007, Cagayan de Oros voters would be classified as belonging to either the first
or the second district, depending on their place of residence. The constituents of each district would
elect their own representative to Congress as well as eight members of the Sangguniang
Panglungsod.
Section 1 of R.A. No. 9371 apportioned the Citys barangays as follows:
Legislative Districts The lone legislative district of the City of Cagayan De Oro is
hereby apportioned to commence in the next national elections after the effectivity
of this Act. Henceforth, barangays Bonbon, Bayabas, Kauswagan, Carmen, Patag,
Bulua, Iponan, Baikingon, San Simon, Pagatpat, Canitoan, Balulang, Lumbia,
Pagalungan, Tagpangi, Taglimao, Tuburan, Pigsag-an, Tumpagon, Bayanga,
Mambuaya, Dansulihon, Tignapoloan and Bisigan shall comprise the first district
while barangays Macabalan, Puntod, Consolacion, Camaman-an, Nazareth,
Macasandig, Indahag, Lapasan, Gusa, Cugman, FS Catanico, Tablon, Agusan,
Puerto, Bugo, and Balubal and all urban barangays from Barangay 1 to Barangay
40 shall comprise the second district.[5]

On March 13, 2007, the COMELEC en Banc promulgated Resolution No. 7837[6] implementing
R.A. No. 9371.
Petitioner Rogelio Bagabuyo filed the present petition against the COMELEC on March
27, 2007.[7] On 10 April 2008, the petitioner amended the petition to include the following as
respondents: Executive Secretary Eduardo Ermita; the Secretary of the Department of Budget and
Management; the Chairman of the Commission on Audit; the Mayor and the members of
the Sangguniang Panglungsod of Cagayan de Oro City; and its Board of Canvassers.[8]
In asking for the nullification of R.A. No. 9371 and Resolution No. 7837 on constitutional grounds,
the petitioner argued that the COMELEC cannot implement R.A. No. 9371 without providing for
the rules, regulations and guidelines for the conduct of a plebiscite which is indispensable for the
division or conversion of a local government unit. He prayed for the issuance of an order directing
the respondents to cease and desist from implementing R.A. No. 9371 and COMELEC Resolution
No. 7837, and to revert instead to COMELEC Resolution No. 7801 which provided for a single
legislative district for Cagayan de Oro.
Since the Court did not grant the petitioners prayer for a temporary restraining order or writ
of preliminary injunction, the May 14 National and Local Elections proceeded according to R.A.
No. 9371 and Resolution No. 7837.
The respondents Comment on the petition, filed through the Office of the Solicitor General, argued
that: 1) the petitioner did not respect the hierarchy of courts, as the Regional Trial Court (RTC) is
vested with concurrent jurisdiction over cases assailing the constitutionality of a statute; 2) R.A.
No. 9371 merely increased the representation of Cagayan de Oro City in the House of
Representatives and Sangguniang Panglungsod pursuant to Section 5, Article VI of the 1987
Constitution; 3) the criteria established under Section 10, Article X of the 1987 Constitution only
apply when there is a creation, division, merger, abolition or substantial alteration of boundaries
of a province, city, municipality, or barangay; in this case, no such creation, division, merger,
abolition or alteration of boundaries of a local government unit took place; and 4) R.A. No. 9371
did not bring about any change in Cagayan de Oros territory, population and income classification;
hence, no plebiscite is required.
The petitioner argued in his reply that: 1) pursuant to the Courts ruling in Del Mar v.
PAGCOR,[9] the Court may take cognizance of this petition if compelling reasons, or the nature
and importance of the issues raised, warrant the immediate exercise of its jurisdiction; 2) Cagayan
de Oro Citys reapportionment under R.A. No. 9371 falls within the meaning of creation, division,
merger, abolition or substantial alteration of boundaries of cities under Section 10, Article X of
the Constitution; 3) the creation, division, merger, abolition or substantial alteration of boundaries
of local government units involve a common denominator the material change in the political and
economic rights of the local government units directly affected, as well as of the people therein; 4)
a voters sovereign power to decide on who should be elected as the entire citys Congressman was
arbitrarily reduced by at least one half because the questioned law and resolution only allowed him
to vote and be voted for in the district designated by the COMELEC; 5) a voter was also arbitrarily
denied his right to elect the Congressman and the members of the city council for the other
legislative district, and 6) government funds were illegally disbursed without prior approval by the
sovereign electorate of Cagayan De Oro City.[10]

THE ISSUES

The core issues, based on the petition and the parties memoranda, can be limited to the following
contentious points:

1) Did the petitioner violate the hierarchy of courts rule; if so, should the instant petition be
dismissed on this ground?
 2) Does R.A. No. 9371 merely provide for the legislative reapportionment of Cagayan de
Oro City, or does it involve the division and conversion of a local government unit?

3) Does R.A. No. 9371 violate the equality of representation doctrine?

OUR RULING

Except for the issue of the hierarchy of courts rule, we find the petition totally without merit.

The hierarchy of courts principle.

The Supreme Court has original jurisdiction over petitions for certiorari,
prohibition, mandamus, quo warranto, and habeas corpus.[11] It was pursuant to this original
jurisdiction that the petitioner filed the present petition.

While this jurisdiction is shared with the Court of Appeals[12] and the RTCs,[13] a direct
invocation of the Supreme Courts jurisdiction is allowed only when there are special and
important reasons therefor, clearly and especially set out in the petition. Reasons of practicality,
dictated by an increasingly overcrowded docket and the need to prioritize in favor of matters within
our exclusive jurisdiction, justify the existence of this rule otherwise known as the principle of
hierarchy of courts. More generally stated, the principle requires that recourse must first be made
to the lower-ranked court exercising concurrent jurisdiction with a higher court.[14]

Among the cases we have considered sufficiently special and important to be exceptions
to the rule, are petitions for certiorari, prohibition, mandamus and quo warrantoagainst our
nations lawmakers when the validity of their enactments is assailed.[15] The present petition is of
this nature; its subject matter and the nature of the issues raised among them, whether legislative
reapportionment involves a division of Cagayan de Oro City as a local government unit are reasons
enough for considering it an exception to the principle of hierarchy of courts. Additionally, the
petition assails as well a resolution of the COMELEC en banc issued to implement the legislative
apportionment that R.A. No. 9371 decrees. As an action against a COMELEC en banc resolution,
the case falls under Rule 64 of the Rules of Court that in turn requires a review by this Court via a
Rule 65 petition for certiorari.[16] For these reasons, we do not see the principle of hierarchy of
courts to be a stumbling block in our consideration of the present case.

The Plebiscite Requirement.

The petitioner insists that R.A. No. 9371 converts and divides the City of Cagayan de Oro as a
local government unit, and does not merely provide for the Citys legislative apportionment. This
argument essentially proceeds from a misunderstanding of the constitutional concepts of
apportionment of legislative districts and division of local government units.
Legislative apportionment is defined by Blacks Law Dictionary as the determination of the
number of representatives which a State, county or other subdivision may send to a legislative
body.[17] It is the allocation of seats in a legislative body in proportion to the population; the
drawing of voting district lines so as to equalize population and voting power among the
districts.[18] Reapportionment, on the other hand, is the realignment or change in legislative
districts brought about by changes in population and mandated by the constitutional requirement
of equality of representation.[19]

Article VI (entitled Legislative Department) of the 1987 Constitution lays down the rules
on legislative apportionment under its Section 5 which provides:
Sec. 5(1). (1) The House of Representatives shall be composed of not more
than two hundred fifty members unless otherwise fixed by law, who shall be elected
from legislative districts apportioned among the provinces, cities, and the
Metropolitan Manila area in accordance with the number of their respective
inhabitants, and on the basis of a uniform and progressive ratio, and those who, as
provided by law, shall be elected through a party-list system of registered national,
regional and sectoral parties or organizations.

xxx

(3) Each legislative district shall comprise, as far as practicable, continuous,

compact, and adjacent territory. Each city with a population of at least two hundred
fifty thousand, or each province, shall have at least one representative.

(4) Within three years following the return of every census, the Congress
shall make a reapportionment of legislative districts based on the standards
provided in this section.

Separately from the legislative districts that legal apportionment or reapportionment speaks
of, are the local government units (historically and generically referred to as municipal
corporations) that the Constitution itself classified into provinces, cities, municipalities
and barangays.[20] In its strict and proper sense, a municipality has been defined as a body politic
and corporate constituted by the incorporation of the inhabitants of a city or town for the purpose
of local government thereof.[21] The creation, division, merger, abolition or alteration of boundary
of local government units, i.e., of provinces, cities, municipalities, and barangays, are covered by
the Article on Local Government (Article X). Section 10 of this Article provides:

No province, city, municipality, or barangay may be created, divided, merged,

abolished, or its boundary substantially altered, except in accordance with the
criteria established in the local government code and subject to approval by a
majority of the votes cast in a plebiscite in the political unit directly affected.
 Under both Article VI, Section 5, and Article X, Section 10 of the Constitution, the
authority to act has been vested in the Legislature. The Legislature undertakes the apportionment
and reapportionment of legislative districts,[22] and likewise acts on local government units by
setting the standards for their creation, division, merger, abolition and alteration of boundaries and
by actually creating, dividing, merging, abolishing local government units and altering their
boundaries through legislation. Other than this, not much commonality exists between the two
provisions since they are inherently different although they interface and relate with one another.
The concern that leaps from the text of Article VI, Section 5 is political representation and
the means to make a legislative district sufficiently represented so that the people can be effectively
heard. As above stated, the aim of legislative apportionment is to equalize population and voting
power among districts.[23] Hence, emphasis is given to the number of people represented; the
uniform and progressive ratio to be observed among the representative districts; and accessibility
and commonality of interests in terms of each district being, as far as practicable, continuous,
compact and adjacent territory. In terms of the people represented, every city with at least 250,000
people and every province (irrespective of population) is entitled to one representative. In this
sense, legislative districts, on the one hand, and provinces and cities, on the other, relate and
interface with each other. To ensure continued adherence to the required standards of
apportionment, Section 5(4) specifically mandates reapportionment as soon as the given standards
are met.

In contrast with the equal representation objective of Article VI, Section 5, Article X,
Section 10 expressly speaks of how local government units may be created, divided, merged,
abolished, or its boundary substantially altered. Its concern is the commencement, the termination,
and the modification of local government units corporate existence and territorial coverage; and it
speaks of two specific standards that must be observed in implementing this concern, namely, the
criteria established in the local government code and the approval by a majority of the votes cast
in a plebiscite in the political units directly affected. Under the Local Government Code (R.A. No.
7160) passed in 1991, the criteria of income, population and land area are specified as verifiable
indicators of viability and capacity to provide services.[24] The division or merger of existing units
must comply with the same requirements (since a new local government unit will come into being),
provided that a division shall not reduce the income, population, or land area of the unit affected
to less than the minimum requirement prescribed in the Code.[25]

A pronounced distinction between Article VI, Section 5 and, Article X, Section 10 is on

the requirement of a plebiscite. The Constitution and the Local Government Code expressly
require a plebiscite to carry out any creation, division, merger, abolition or alteration of boundary
of a local
government unit.[26] In contrast, no plebiscite requirement exists under the apportionment or
reapportionment provision. In Tobias v. Abalos,[27] a case that arose from the division of the
congressional district formerly covering San Juan and Mandaluyong into separate districts, we
confirmed this distinction and the fact that no plebiscite is needed in a legislative reapportionment.
The plebiscite issue came up because one was ordered and held for Mandaluyong in the course of
its conversion into a highly urbanized city, while none was held for San Juan. In explaining why
this happened, the Court ruled that no plebiscite was necessary for San Juan because the objective
of the plebiscite was the conversion of Mandaluyong into a highly urbanized city as required by
Article X, Section 10 the Local Government Code; the creation of a new legislative district only
followed as a consequence. In other words, the apportionment alone and by itself did not call for
a plebiscite, so that none was needed for San Juan where only a reapportionment took place.

The need for a plebiscite under Article X, Section 10 and the lack of requirement for one under
Article VI, Section 5 can best be appreciated by a consideration of the historical roots of these two
provisions, the nature of the concepts they embody as heretofore discussed, and their areas of
application.

A Bit of History.

In Macias v. COMELEC,[28] we first jurisprudentially acknowledged the American roots of our

apportionment provision, noting its roots from the
[29]
Fourteenth Amendment of the U.S. Constitution and from the constitutions of some American
states. The Philippine Organic Act of 1902 created the Philippine Assembly,[30] the body that acted
as the lower house of the bicameral legislature under the Americans, with the Philippine
Commission acting as the upper house. While the members of the Philippine Commission were
appointed by the U.S. President with the conformity of the U.S. Senate, the members of the
Philippine Assembly were elected by representative districts previously delineated under the
Philippine Organic Act of 1902 pursuant to the mandate to apportion the seats of the Philippine
Assembly among the provinces as nearly as practicable according to population. Thus, legislative
apportionment first started in our country.

The Jones Law or the Philippine Autonomy Act of 1916 maintained the apportionment
provision, dividing the country into 12 senate districts and 90 representative districts electing one
delegate each to the House of Representatives. Section 16 of the Act specifically vested the
Philippine Legislature with the authority to redistrict the Philippine Islands.

Under the 1935 Constitution, Article VI, Section 5 retained the concept of legislative
apportionment together with district as the basic unit of apportionment; the concern was equality
of representation . . . as an essential feature of republican institutions as expressed in the leading
case of Macias v. COMELEC.[31] The case ruled that inequality of representation is a justiciable,
not a political issue, which ruling was reiterated in Montejo v. COMELEC.[32] Notably, no issue
regarding the holding of a plebiscite ever came up in these cases and the others that followed, as
no plebiscite was required.

Article VIII, Section 2 of the 1973 Constitution retained the concept of equal representation in
accordance with the number of their respective inhabitants and on the basis of a uniform and
progressive ratio with each district being, as far as practicable, contiguous, compact and adjacent
territory. This formulation was essentially carried over to the 1987 Constitution, distinguished only
from the previous one by the presence of party-list representatives. In neither Constitution was a
plebiscite required.

The need for a plebiscite in the creation, division, merger, or abolition of local government
units was not constitutionally enshrined until the 1973 Constitution. However, as early as 1959,
R.A. No. 2264[33] required, in the creation of barrios by Provincial Boards, that the creation and
definition of boundaries be upon petition of a majority of the voters in the areas affected. In 1961,
the Charter of the City of Caloocan (R.A. No. 3278) carried this further by requiring that the Act
shall take effect after a majority of voters of the Municipality of Caloocan vote in favor of the
conversion of their municipality into a city in a plebiscite. This was followed up to 1972 by other
legislative enactments requiring a plebiscite as a condition for the creation and conversion of local
government units as well as the transfer of sitios from one legislative unit to another.[34] In 1973,
the plebiscite requirement was accorded constitutional status.

Under these separate historical tracks, it can be seen that the holding of a plebiscite was
never a requirement in legislative apportionment or reapportionment. After it became
constitutionally entrenched, a plebiscite was also always identified with the creation, division,
merger, abolition and alteration of boundaries of local government units, never with the concept
of legislative apportionment.

Nature and Areas of Application.

The legislative district that Article VI, Section 5 speaks of may, in a sense, be called a
political unit because it is the basis for the election of a member of the House of Representatives
and members of the local legislative body. It is not, however, a political subdivision through which
functions of government are carried out. It can more appropriately be described as
a representative unit that may or may not encompass the whole of a city or a province, but unlike
the latter, it is not a corporate unit. Not being a corporate unit, a district does not act for and in
behalf of the people comprising the district; it merely delineates the areas occupied by the people
who will choose a representative in their national affairs. Unlike a province, which has a governor;
a city or a municipality, which has a mayor; and a barangay, which has a punong barangay, a
district does not have its own chief executive. The role of the congressman that it elects is to ensure
that the voice of the people of the district is heard in Congress, not to oversee the affairs of the
legislative district. Not being a corporate unit also signifies that it has no legal personality that
must be created or dissolved and has no capacity to act. Hence, there is no need for any plebiscite
in the creation, dissolution or any other similar action on a legislative district.

The local government units, on the other hand, are political and corporate units. They are
the territorial and political subdivisions of the state.[35] They possess legal personality on the
authority of the Constitution and by action of the Legislature. The Constitution defines them as
entities that Congress can, by law, create, divide, abolish, merge; or whose boundaries can be
altered based on standards again established by both the Constitution and the
Legislature.[36] A local government units corporate existence begins upon the election and
qualification of its chief executive and a majority of the members of its Sanggunian.[37]

As a political subdivision, a local government unit is an instrumentality of the state in

carrying out the functions of government.[38] As a corporate entity with a distinct and separate
juridical personality from the State, it exercises special functions for the sole benefit of its
constituents. It acts as an agency of the community in the administration of local affairs[39] and the
mediums through which the people act in their corporate capacity on local concerns.[40] In light of
these roles, the Constitution saw it fit to expressly secure the consent of the people affected by the
creation, division, merger, abolition or alteration of boundaries of local government units through
a plebiscite.

These considerations clearly show the distinctions between a legislative apportionment or

reapportionment and the division of a local government unit. Historically and by its intrinsic nature,
a legislative apportionment does not mean, and does not even imply, a division of a local
government unit where the apportionment takes place. Thus, the plebiscite requirement that
applies to the division of a province, city, municipality or barangay under the Local Government
Code should not apply to and be a requisite for the validity of a legislative apportionment or
reapportionment.

R.A. No. 9371 and COMELEC Res. No. 7837

R.A. No. 9371 is, on its face, purely and simply a reapportionment legislation passed in
accordance with the authority granted to Congress under Article VI, Section 5(4) of the
Constitution. Its core provision Section 1 provides:

SECTION 1. Legislative Districts. The lone legislative district of the City

of Cagayan de Oro is hereby apportioned to commence in the next national
elections after the effectivity of this Act. Henceforth, barangays Bonbon, Bayabas,
Kauswagan, Carmen, Patag, Bulua, Iponan, Baikingon, San Simon, Pagatpat,
Canitoan, Balulang, Lumbia, Pagalungan, Tagpangi, Taglimao, Tuburan, Pigsag-
an, Tumpagon, Bayanga, Mambuaya, Dansulihon, Tignapoloan and Bisigan shall
comprise the first district while barangays Macabalan, Puntod, Consolacion,
Camaman-an, Nazareth, Macansandig, Indahag, Lapasan, Gusa, Cugman, FS
Catanico, Tablon, Agusan, Puerto, Bugo and Balubal and all urban barangays from
Barangay 1 to Barangay 40 shall comprise the second district.

Under these wordings, no division of Cagayan de Oro City as a political and corporate
entity takes place or is mandated. Cagayan de Oro City politically remains a single unit and its
administration is not divided along territorial lines. Its territory remains completely whole and
intact; there is only the addition of another legislative district and the delineation of the city into
two districts for purposes of representation in the House of Representatives. Thus, Article X,
Section 10 of the Constitution does not come into play and no plebiscite is necessary to validly
apportion Cagayan de Oro City into two districts.

Admittedly, the legislative reapportionment carries effects beyond the creation of another
congressional district in the city by providing, as reflected in COMELEC Resolution No. 7837,
for additional Sangguniang Panglunsod seats to be voted for along the lines of the congressional
apportionment made. The effect on the Sangguniang Panglunsod, however, is not directly
traceable to R.A. No. 9371 but to another law R.A. No. 6636[41] whose Section 3 provides:

SECTION 3. Other Cities. The provision of any law to the contrary notwithstanding
the City of Cebu, City of Davao, and any other city with more than one
representative district shall have eight (8) councilors for each district who shall be
residents thereof to be elected by the qualified voters therein, provided that the
cities of Cagayan de Oro, Zamboanga, Bacolod, Iloilo and other cities comprising
a representative district shall have twelve (12) councilors each and all other cities
shall have ten (10) councilors each to be elected at large by the qualified voters of
the said cities: Provided, That in no case shall the present number of councilors
according to their charters be reduced.

However, neither does this law have the effect of dividing the City of Cagayan de Oro into two
political and corporate units and territories. Rather than divide the city either territorially or as a
corporate entity, the effect is merely to enhance voter representation by giving each city voter more
and greater say, both in Congress and in the Sangguniang Panglunsod.

To illustrate this effect, before the reapportionment, Cagayan de Oro had only one
congressman and 12 city council members citywide for its population of approximately
500,000.[42] By having two legislative districts, each of them with one congressman, Cagayan de
Oro now effectively has two congressmen, each one representing 250,000 of the citys
population. In terms of services for city residents, this easily means better access to their
congressman since each one now services only 250,000 constituents as against the 500,000 he used
to represent. The same goes true for the Sangguniang Panglungsod with its ranks increased from
12 to 16 since each legislative district now has 8 councilors. In representation terms, the fewer
constituents represented translate to a greater voice for each individual city resident in Congress
and in the Sanggunian; each congressman and each councilor represents both a smaller area and
fewer constituents whose fewer numbers are now concentrated in each representative. The City,
for its part, now has twice the number of congressmen speaking for it and voting in the halls of
Congress. Since the total number of congressmen in the country has not increased to the point of
doubling its numbers, the presence of two congressman (instead of one) from the same city cannot
but be a quantitative and proportional improvement in the representation of Cagayan de Oro City
in Congress.

Equality of representation.
The petitioner argues that the distribution of the legislative districts is unequal. District 1
has only 93,719 registered voters while District 2 has 127,071. District 1 is composed mostly of
rural barangays while District 2 is composed mostly of urban barangays.[43] Thus, R.A. No. 9371
violates the principle of equality of representation.

A clarification must be made. The law clearly provides that the basis for districting shall be
the number of the inhabitants of a city or a province, not the number of registered voters therein.
We settled this very same question in Herrera v. COMELEC[44] when we interpreted a provision
in R.A. No. 7166 and COMELEC Resolution No. 2313 that applied to
the Province of Guimaras. We categorically ruled
that the basis for districting is the number of inhabitants of the Province of Guimaras by municip
ality based on theofficial 1995 Census of Population as certified to by Tomas P. Africa, Administ
rator of the National Statistics Office.

The petitioner, unfortunately, did not provide information about the actual population of Cagayan
de Oro City. However, we take judicial notice of the August 2007 census of the National Statistics
Office which shows that barangays comprising Cagayan de Oros first district have a total
population of 254,644, while the second district has 299,322 residents. Undeniably, these figures
show a disparity in the population sizes of the districts.[45] The Constitution, however, does not
require mathematical exactitude or rigid equality as a standard in gauging equality of
representation.[46] In fact, for cities, all it asks is that each city with a population of at least two
hundred fifty thousand shall have one representative, while ensuring representation for every
province regardless of the size of its population. To ensure quality representation through
commonality of interests and ease of access by the representative to the constituents, all that the
Constitution requires is that every legislative district should comprise, as far as
practicable, contiguous, compact, and adjacent territory. Thus, the Constitution leaves the local
government units as they are found and does not require their division, merger or transfer to satisfy
the numerical standard it imposes. Its requirements are satisfied despite some numerical disparity
if the units are contiguous, compact and adjacent as far as practicable.
The petitioners contention that there is a resulting inequality in the division of Cagayan de Oro
City into two districts because the barangays in the first district are mostly rural barangays while
the second district is mostly urban, is largely unsubstantiated. But even if backed up by proper
proof, we cannot question the division on the basis of the difference in the barangays levels of
development or developmental focus as these are not part of the constitutional standards for
legislative apportionment or reapportionment.What the components of the two districts of Cagayan
de Oro would be is a matter for the lawmakers to determine as a matter of policy. In the absence
of any grave abuse of discretion or violation of the established legal parameters, this Court cannot
intrude into the wisdom of these policies.[47]

WHEREFORE, we hereby DISMISS the petition for lack of merit. Costs against the
petitioner.

SO ORDERED.
 G.R. No. 207264 October 22, 2013

REGINA ONGSIAKO REYES, Petitioner,

vs.
COMMISSION ON ELECTIONS and JOSEPH SOCORRO B. TAN, Respondents.

RESOLUTION

PEREZ, J.:

This is a Motion for Reconsideration of the En Bane Resolution of 25 June 2013 which
stated that: IN VIEW OF THE FOREGOING, the instant petition is DISMISSED, finding
no grave abuse of discretion on the part of the Commission on Elections. The 14 May
2013 Resolution of the COMELEC En Banc affirming the 27 March 2013 Resolution of
the COMELEC First Division is upheld."

In her Motion for Reconsideration, petitioner summarizes her submission, thus:

"81. Stated differently, the Petitioner x x x is not asking the Honorable Court to make a
determination as regards her qualifications, she is merely asking the Honorable Court to
affirm the jurisdiction of the HRET to solely and exclusively pass upon such
qualifications and to set aside the COMELEC Resolutions for having denied Petitioner
her right to due process and for unconstitutionally adding a qualification not otherwise
required by the constitution."1(as originally underscored)

The first part of the summary refers to the issue raised in the petition, which is:

"31. Whether or not Respondent Comelec is without jurisdiction over Petitioner who is
duly proclaimed winner and who has already taken her oath of office for the position of
Member of the House of Representatives for the lone congressional district of
Marinduque."2

Tied up and neatened the propositions on the COMELEC-or-HRET jurisdiction go thus:

petitioner is a duly proclaimed winner and having taken her oath of office as member of
the House of Representatives, all questions regarding her qualifications are outside the
jurisdiction of the COMELEC and are within the HRET exclusive jurisdiction.

The averred proclamation is the critical pointer to the correctness of petitioner's

submission. The crucial question is whether or not petitioner could be proclaimed on 18
May 2013. Differently stated, was there basis for the proclamation of petitioner on 18
May 2013?

Dates and events indicate that there was no basis for the proclamation of petitioner on
18 May 2013. Without the proclamation, the petitioner's oath of office is likewise
baseless, and without a precedent oath of office, there can be no valid and effective
assumption of office.
We have clearly stated in our Resolution of 5 June 2013 that:

"More importantly, we cannot disregard a fact basic in this controversy – that before the
proclamation of petitioner on 18 May 2013, the COMELEC En Banc had already finally
disposed of the issue of petitioner's lack of Filipino citizenship and residency via its
Resolution dated 14 May 2013. After 14 May 2013, there was, before the COMELEC,
no longer any pending case on petitioner's qualifications to run for the position of
Member of the House of Representatives. x x x As the point has obviously been missed
by the petitioner who continues to argue on the basis of her due proclamation, the
instant motion gives us the opportunity to highlight the undeniable fact we here repeat
that the proclamation which petitioner secured on 18 May 2013 was WITHOUT ANY
BASIS.

1. Four (4) days BEFORE the 18 May 2013 proclamation, or on 14 May 2013,
the COMELEC En Banc has already denied for lack o merit the petitioner's
motion to reconsider the decision o the COMELEC First Division that
CANCELLED petitioner's certificate of candidacy.

2. On 18 May 2013, there was already a standing and unquestioned cancellation

of petitioner's certificate o candidacy which cancellation is a definite bar to her
proclamation. On 18 May 2003, that bar has not been removed, there was not
even any attempt to remove it.

3. The COMELEC Rules indicate the manner by which the impediment to

proclamation may be removed. Rule 18, Section 13 (b) provides:

"(b) In Special Actions and Special Cases a decision or resolution of the

Commission En Bane shall become final and executory after five (5) days from
its promulgation unless restrained by the Supreme Court."

Within that five (5 days, petitioner had the opportunity to go to the Supreme Court
for a restraining order that will remove the immediate effect of the En Banc
cancellation of her certificate of candidacy. Within the five (5) days the Supreme
Court may remove the barrier to, and thus allow, the proclamation of petitioner.
That did not happen. Petitioner did not move to have it happen.

It is error to argue that the five days should pass before the petitioner is barred
from being proclaimed. Petitioner lost in the COMELEC as of respondent. Her
certificate of candidacy has been ordered cancelled. She could not be
proclaimed because there was a final finding against her by the COMELEC. 3 She
needed a restraining order from the Supreme Court to avoid the final finding.
After the five days when the decision adverse to her became executory, the need
for Supreme Court intervention became even more imperative. She would have
to base her recourse on the position that the COMELEC committed grave abuse
of discretion in cancelling her certificate of candidacy and that a restraining order,
which would allow her proclamation, will have to be based on irreparable injury
 and demonstrated possibility of grave abuse of discretion on the part of the
COMELEC. In this case, before and after the 18 May 2013 proclamation, there
was not even an attempt at the legal remedy, clearly available to her, to permit
her proclamation. What petitioner did was to "take the law into her hands" and
secure a proclamation in complete disregard of the COMELEC En Bane decision
that was final on 14 May 2013 and final and executory five days thereafter.

4. There is a reason why no mention about notice was made in Section 13(b) of
Rule 18 in the provision that the COMELEC En Bane or decision "SHALL
become FINAL AND EXECUTORY after five days from its promulgation unless
restrained by the Supreme Court." On its own the COMELEC En Bane decision,
unrestrained, moves from promulgation into becoming final and executory. This
is so because in Section 5 of Rule 18 it is stated:

Section 5. Promulgation. -The promulgation of a decision or resolutions of the

Commission or a division shall be made on a date previously fixed, of which notice shall
be served in advance upon the parties or their attorneys personally or by registered mail
or by telegram.

5. Apart from the presumed notice of the COMELEC En Bane decision on the
very date of its promulgation on 14 May 2013, petitioner admitted in her petition
before us that she in fact received a copy of the decision on 16 May 20 13. 4 On
that date, she had absolutely no reason why she would disregard the available
legal way to remove the restraint on her proclamation, and, more than that, to in
fact secure a proclamation two days thereafter. The utter disregard of a final
COMELEC En Bane decision and of the Rule stating that her proclamation at
that point MUST be on permission by the Supreme Court is even indicative of
bad faith on the part of the petitioner.

6. The indicant is magnified by the fact that petitioner would use her tainted
proclamation as the very reason to support her argument that she could no
longer be reached by the jurisdiction of the COMELEC; and that it is the HRET
that has exclusive jurisdiction over the issue of her qualifications for office.

7. The suggestions of bad faith aside, petitioner is in error in the conclusion at

which she directs, as well as in her objective quite obvious from such conclusion.
It is with her procured proclamation that petitioner nullifies the COMELEC's
decision, by Division and then En Banc and pre-empts any Supreme Court action
on the COMELEC decision. In other words, petitioner repudiates by her
proclamation all administrative and judicial actions thereon, past and present.
And by her proclamation, she claims as acquired the congressional seat that she
sought to be a candidate for. As already shown, the reasons that lead to the
impermissibility of the objective are clear. She cannot sit as Member of the
House of Representatives by virtue of a baseless proclamation knowingly taken,
with knowledge of the existing legal impediment.
8. Petitioner, therefore, is in error when she posits that at present it is the HRET
which has exclusive jurisdiction over her qualifications as a Member of the House
of Representatives. That the HRET is the sole judge of all contests relating to the
election, returns and qualifications of the Members of the House of
Representatives is a written constitutional provision. It is, however unavailable to
petitioner because she is NOT a Member of the House at present. The
COMELEC never ordered her proclamation as the rightful winner in the election
for such membership.5 Indeed, the action for cancellation of petitioner's certificate
of candidacy, the decision in which is the indispensable determinant of the right
of petitioner to proclamation, was correctly lodged in the COMELEC, was
completely and fully litigated in the COMELEC and was finally decided by the
COMELEC. On and after 14 May 2013, there was nothing left for the COMELEC
to do to decide the case. The decision sealed the proceedings in the COMELEC
regarding petitioner's ineligibility as a candidate for Representative of
Marinduque. The decision erected the bar to petitioner's proclamation. The bar
remained when no restraining order was obtained by petitioner from the Supreme
Court within five days from 14 May 2013.

9. When petitioner finally went to the Supreme Court on 10 June 2013

questioning the COMELEC First Division ruling and the 14 May 2013 COMELEC
En Bane decision, her baseless proclamation on 18 May 2013 did not by that fact
of promulgation alone become valid and legal. A decision favorable to her by the
Supreme Court regarding the decision of the COMELEC En Bane on her
certificate of candidacy was indispensably needed, not to legalize her
proclamation on 18 May 2013 but to authorize a proclamation with the Supreme
Court decision as basis.

10. The recourse taken on 25 June 2013 in the form of an original and special
civil action for a writ of Certiorari through Rule 64 of the Rules of Court is
circumscribed by set rules and principles.

a) The special action before the COMELEC which was a Petition to

Cancel Certificate of Candidacy was a SUMMARY PROCEEDING or one
heard summarily. The nature of the proceedings is best indicated by the
COMELEC Rule on Special Actions, Rule 23, Section 4 of which states
that the Commission may designate any of its officials who are members
of the Philippine Bar to hear the case and to receive evidence. COMELEC
Rule 17 further provides in Section 3 that when the proceedings are
authorized to be summary, in lieu of oral testimonies, the parties may,
after due notice, be required to submit their position paper together with
affidavits, counter-affidavits and other documentary evidence; x x x and
that this provision shall likewise apply to cases where the hearing and
reception of evidence are delegated by the Commission or the Division to
any of its officials x x x.
 b) The special and civil action of Certiorari is defined in the Rules of Court
thus:

When any tribunal, board or officer exercising judicial or quasi-judicial functions has
acted without or in excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy,
and adequate remedy in the ordinary course of law, a person aggrieved thereby may file
a verified petition in the proper court, alleging the facts with certainty and praying that
judgment be rendered annulling or modifying the proceedings of such tribunal, board or
officer, and granting such incidental reliefs as law and justice may require.

The accepted definition of grave abuse of discretion is: a capricious and whimsical
exercise of judgment so patent and gross as to amount to an evasion of a positive duty
or a virtual refusal to perform a duty enjoined by law, as where the power is exercised in
an arbitrary and despotic manner because of passion or hostility.6

It is the category of the special action below providing the procedural leeway in the
exercise of the COMELEC summary jurisdiction over the case, in conjunction with the
limits of the Supreme Court's authority over the FINAL COMELEC ruling that is brought
before it, that defines the way petitioner's submission before the Court should be
adjudicated. Thus further explained, the disposition of 25 June 2013 is here repeated for
affirmation:

Petitioner alleges that the COMELEC gravely abused its discretion when it took
cognizance of "newly-discovered evidence" without the same having been testified on
and offered and admitted in evidence. She assails the admission of the blog article of Eli
Obligacion as hearsay and the photocopy of the Certification from the Bureau of
Immigration. She likewise contends that there was a violation of her right to due process
of law because she was not given the opportunity to question and present controverting
evidence.

Her contentions are incorrect.

It must be emphasized that the COMELEC is not bound to strictly adhere to the
technical rules of procedure in the presentation of evidence. Under Section 2 of Rule I
the COMELEC Rules of Procedure shall be liberally construed in order x x x to achieve
just, expeditious and inexpensive determination and disposition of every action and
proceeding brought before the Commission. In view of the fact that the proceedings in a
petition to deny due course or to cancel certificate of candidacy are summary in nature,
then the newly discovered evidence was properly admitted by respondent COMELEC.

Furthermore, there was no denial of due process in the case at bar as petitioner was
given every opportunity to argue her case before the COMELEC. From 10 October
2012 when Tan's petition was filed up to 27 March 2013 when the First Division
rendered its resolution, petitioner had a period of five (5) months to adduce evidence.
Unfortunately, she did not avail herself of the opportunity given her.
Also, in administrative proceedings, procedural due process only requires that the party
be given the opportunity or right to be heard. As held in the case of Sahali v.
COMELEC:

The petitioners should be reminded that due process does not necessarily mean or
require a hearing, but simply an opportunity or right to be heard. One may be heard, not
solely by verbal presentation but also, and perhaps many times more creditably and
predictable than oral argument, through pleadings. In administrative proceedings
moreover, technical rules of procedure and evidence are not strictly applied;
administrative process cannot be fully equated with due process in its strict judicial
sense. Indeed, deprivation of due process cannot be successfully invoked where a party
was given the chance to be he rd on his motion for reconsideration. (Emphasis
supplied)

As to the ruling that petitioner s ineligible to run for office on the ground of citizenship,
the COMELEC First Division, discoursed as follows:

"x x x for respondent to reacquire her Filipino citizenship and become eligible for public
office the law requires that she must have accomplished the following acts: (1) take the
oath of allegiance to the Republic of the Philippines before the Consul-General of the
Philippine Consulate in the USA; and (2) make a personal and sworn renunciation of
her American citizenship before any public officer authorized to administer an oath.

In the case at bar, there s no showing that respondent complied with the aforesaid
requirements. Early on in the proceeding, respondent hammered on petitioner's lack of
proof regarding her American citizenship, contending that it is petitioner's burden to
present a case. She, however, specifically denied that she has become either a
permanent resident or naturalized citizen of the USA.

Due to petitioner's submission of newly-discovered evidence thru a Manifestation dated

February 7, 2013, however, establishing the fact that respondent is a holder of an
American passport which she continues to use until June 30 2012 petitioner was able to
substantiate his allegations. The burden now shifts to respondent to present substantial
evidence to prove otherwise. This, the respondent utterly failed to do, leading to the
conclusion inevitable that respondent falsely misrepresented in her COC that she is a
natural-born Filipino citizen. Unless and until she can establish that she had availed of
the privileges of RA 9225 by becoming a dual Filipino-American citizen, and thereafter,
made a valid sworn renunciation of her American citizenship, she remains to be an
American citizen and is, therefore, ineligible to run for and hold any elective public office
in the Philippines." (Emphasis in the original.)

Let us look into the events that led to this petition: In moving for the cancellation of
petitioner's COC, respondent submitted records of the Bureau of Immigration showing
that petitioner is a holder of a US passport, and that her status is that of a balikbayan. At
this point, the burden of proof shifted to petitioner, imposing upon her the duty to prove
that she is a natural-born Filipino citizen and has not lost the same, or that she has re-
acquired such status in accordance with the provisions of R.A. No. 9225. Aside from the
bare allegation that she is a natural-born citizen, however, petitioner submitted no proof
to support such contention. Neither did she submit any proof as to the inapplicability of
R.A. No. 9225 to her.

Notably, in her Motion for Reconsideration before the COMELEC En Bane, petitioner
admitted that she is a holder of a US passport, but she averred that she is only a dual
Filipino-American citizen, thus the requirements of R.A. No. 9225 do not apply to her.
Still, attached to the said motion is an Affidavit of Renunciation of Foreign Citizenship
dated 24 September 2012. Petitioner explains that she attached said Affidavit if only to
show her desire and zeal to serve the people and to comply with rules, even as a
superfluity. We cannot, however, subscribe to petitioner's explanation. If petitioner
executed said Affidavit if only to comply with the rules, then it is an admission that R.A.
No. 9225 applies to her. Petitioner cannot claim that she executed it to address the
observations by the COMELEC as the assailed Resolutions were promulgated only in
2013, while the Affidavit was executed in September 2012.1âwphi1

Moreover, in the present petition, petitioner added a footnote to her oath of office as
Provincial Administrator, to this effect: This does not mean that Petitioner did not, prior
to her taking her oath of office as Provincial Administrator, take her oath of allegiance
for purposes of re-acquisition of natural-born Filipino status, which she reserves to
present in the proper proceeding. The reference to the taking of oath of office is in order
to make reference to what is already part of the records and evidence in the present
case and to avoid injecting into the records evidence on matters of fact that was not
previously passed upon by Respondent COMELEC. This statement raises a lot of
questions -Did petitioner execute an oath of allegiance for re-acquisition of natural-born
Filipino status? If she did, why did she not present it at the earliest opportunity before
the COMELEC? And is this an admission that she has indeed lost her natural-born
Filipino status?

To cover-up her apparent lack of an oath of allegiance as required by R.A. No. 9225,
petitioner contends that, since she took her oath of allegiance in connection with her
appointment as Provincial Administrator of Marinduque, she is deemed to have
reacquired her status as a natural-born Filipino citizen.

This contention is misplaced. For one, this issue is being presented for the first time
before this Court, as it was never raised before the COMELEC. For another, said oath
of allegiance cannot be considered compliance with Sec. 3 of R.A. No. 9225 as certain
requirements have to be met as prescribed by Memorandum Circular No. AFF-04-01,
otherwise known as the Rules Governing Philippine Citizenship under R.A. No. 9225
and Memorandum Circular No. AFF-05-002 (Revised Rules) and Administrative Order
No. 91, Series of 2004 issued by the Bureau of Immigration. Thus, petitioner s oath of
office as Provincial Administrator cannot be considered as the oath of allegiance in
compliance with R.A. No. 9225.
These circumstances, taken together, show that a doubt was clearly cast on petitioner s
citizenship. Petitioner, however, failed to clear such doubt. 7

11. It may need pointing out that there is no conflict between the COMELEC and
the HRET insofar as the petitioner s being a Representative of Marinduque is
concerned. The COMELEC covers the matter of petitioner s certificate of
candidacy, and its due course or its cancellation, which are the pivotal
conclusions that determines who can be legally proclaimed. The matter can go to
the Supreme Court but not as a continuation of the proceedings in the
COMELEC, which has in fact ended, but on an original action before the Court
grounded on more than mere error of judgment but on error of jurisdiction for
grave abuse of discretion. At and after the COMELEC En Bane decision, there is
no longer any certificate cancellation matter than can go to the HRET. In that
sense, the HRET s constitutional authority opens, over the qualification of its
MEMBER, who becomes so only upon a duly and legally based proclamation,
the first and unavoidable step towards such membership. The HRET jurisdiction
over the qualification of the Member of the House of Representatives is original
and exclusive, and as such, proceeds de novo unhampered by the proceedings
in the COMELEC which, as just stated has been terminated. The HRET
proceedings is a regular, not summary, proceeding. It will determine who should
be the Member of the House. It must be made clear though, at the risk of
repetitiveness, that no hiatus occurs in the representation of Marinduque in the
House because there is such a representative who shall sit as the HRET
proceedings are had till termination. Such representative is the duly proclaimed
winner resulting from the terminated case of cancellation of certificate of
candidacy of petitioner. The petitioner is not, cannot, be that representative. And
this, all in all, is the crux of the dispute between the parties: who shall sit in the
House in representation of Marinduque, while there is yet no HRET decision on
the qualifications of the Member.

12. As finale, and as explained in the discussion just done, no unwarranted haste
can be attributed, as the dissent does so, to the resolution of this petition
promulgated on 25 June 2013. It was not done to prevent the exercise by the
HRET of its constitutional duty. Quite the contrary, the speedy resolution of the
petition was done to pave the way for the unimpeded performance by the HRET
of its constitutional role. The petitioner can very well invoke the authority of the
HRET, but not as a sitting member of the House of Representatives.8

The inhibition of this ponente was moved for. The reason for the denial of the motion
was contained in a letter to the members of the Court on the understanding that the
matter was internal to the Court. The ponente now seeks the Courts approval to have
the explanation published as it is now appended to this Resolution.

The motion to withdraw petition filed AFTER the Court has acted thereon, is noted. It
may well be in order to remind petitioner that jurisdiction, once acquired, is not lost upon
the instance of the parties, but continues until the case is terminated.9 When petitioner
filed her Petition for Certiorari jurisdiction vested in the Court and, in fact, the Court
exercised such jurisdiction when it acted on the petition. Such jurisdiction cannot be lost
by the unilateral withdrawal of the petition by petitioner.

More importantly, the Resolution dated 25 June 2013, being a valid court issuance,
undoubtedly has legal consequences. Petitioner cannot, by the mere expediency of
withdrawing the petition, negative and nullify the Court's Resolution and its legal effects.
At this point, we counsel petitioner against trifling with court processes. Having sought
the jurisdiction of the Supreme Court, petitioner cannot withdraw her petition to erase
the ruling adverse to her interests. Obviously, she cannot, as she designed below,
subject to her predilections the supremacy of the law.

WHEREFORE, The Motion for Reconsideration is DENIED. The dismissal of the

petition is affirmed. Entry of Judgment is ordered.

SO ORDERED.
BANAT vs Comelec 586 SCRA 210, 592 SCRA 294

Nature: Pursuant to Sec. 11b of R.A. 7941 or the Party-List System Act, a party-list which
garners at least 2% of the total votes cast in the party-list elections shall be entitled to one
seat;

In July and August 2007, the COMELEC, sitting as the National Board of Canvassers,
made a partial proclamation of the winners in the party-list elections which was held in
May 2007.
In proclaiming the winners and apportioning their seats, the COMELEC considered the
following rules:
1. In the lower house, 80% shall comprise the seats for legislative districts, while the
remaining 20% shall come from party-list representatives (Sec. 5, Article VI, 1987
Constitution);
2. Pursuant to Sec. 11b of R.A. 7941 or the Party-List System Act, a party-list which
garners at least 2% of the total votes cast in the party-list elections shall be entitled to one
seat;
3. If a party-list garners at least 4%, then it is entitled to 2 seats; if it garners at least 6%,
then it is entitled to 3 seats – this is pursuant to the 2-4-6 rule or the Panganiban
Formula from the case of Veterans Federation Party vs COMELEC.
4. In no way shall a party be given more than three seats even if if garners more than 6%
of the votes cast for the party-list election (3 seat cap rule, same case).
The Barangay Association for National Advancement and Transparency (BANAT), a
party-list candidate, questioned the proclamation as well as the formula being used.
BANAT averred that the 2% threshold is invalid; Sec. 11 of RA 7941 is void because its
provision that a party-list, to qualify for a congressional seat, must garner at least 2% of
the votes cast in the party-list election, is not supported by the Constitution. Further, the
2% rule creates a mathematical impossibility to meet the 20% party-list seat prescribed
by the Constitution.
BANAT also questions if the 20% rule is a mere ceiling or is it mandatory. If it is mandatory,
then with the 2% qualifying vote, there would be instances when it would be impossible
to fill the prescribed 20% share of party-lists in the lower house. BANAT also proposes a
new computation (which shall be discussed in the “HELD” portion of this digest).
On the other hand, BAYAN MUNA, another party-list candidate, questions the validity of
the 3 seat rule (Section 11a of RA 7941). It also raised the issue of whether or not major
political parties are allowed to participate in the party-list elections or is the said elections
limited to sectoral parties.
ISSUES:
I. How is the 80-20 rule observed in apportioning the seats in the lower house?
II. Whether or not the 20% allocation for party-list representatives mandatory or a mere
ceiling.
III. Whether or not the 2% threshold to qualify for a seat valid.
IV. How are party-list seats allocated?
V. Whether or not major political parties are allowed to participate in the party-list elections.
VI. Whether or not the 3 seat cap rule (3 Seat Limit Rule) is valid.
HELD:
I. The 80-20 rule is observed in the following manner: for every 5 seats allotted for
legislative districts, there shall be one seat allotted for a party-list representative.
Originally, the 1987 Constitution provides that there shall be not more than 250 members
of the lower house. Using the 80-20 rule, 200 of that will be from legislative districts, and
50 would be from party-list representatives. However, the Constitution also allowed
Congress to fix the number of the membership of the lower house as in fact, it can create
additional legislative districts as it may deem appropriate. As can be seen in the May 2007
elections, there were 220 district representatives, hence applying the 80-20 rule or the
5:1 ratio, there should be 55 seats allotted for party-list representatives.
How did the Supreme Court arrive at 55? This is the formula:
(Current Number of Legislative DistrictRepresentatives ÷ 0.80) x (0.20) = Number of
Seats Available to Party-List Representatives
Hence,
(220 ÷ 0.80) x (0.20) = 55

II. The 20% allocation for party-list representatives is merely a ceiling – meaning,
the number of party-list representatives shall not exceed 20% of the total number
of the members of the lower house. However, it is not mandatory that the 20% shall be
filled.

III. No. Section 11b of RA 7941 is unconstitutional. There is no constitutional basis to

allow that only party-lists which garnered 2% of the votes cast a requalified for a seat
and those which garnered less than 2% are disqualified. Further, the 2% threshold
creates a mathematical impossibility to attain the ideal 80-20 apportionment. The
Supreme Court explained:

To illustrate: There are 55 available party-list seats. Suppose there are 50 million votes
cast for the 100 participants in the party list elections. A party that has two percent of the
votes cast, or one million votes, gets a guaranteed seat. Let us further assume that the
first 50 parties all get one million votes. Only 50 parties get a seat despite the availability
of 55 seats. Because of the operation of the two percent threshold, this situation will
repeat itself even if we increase the available party-list seats to 60 seats and even if we
increase the votes cast to 100 million. Thus, even if the maximum number of parties get
two percent of the votes for every party, it is always impossible for the number of occupied
party-list seats to exceed 50 seats as long as the two percent threshold is present.

It is therefore clear that the two percent threshold presents an unwarranted obstacle to
the full implementation of Section 5(2), Article VI of the Constitution and prevents the
attainment of “the broadest possible representation of party, sectoral or group interests in
the House of Representatives.”
IV. Instead, the 2% rule should mean that if a party-list garners 2% of the votes cast, then
it is guaranteed a seat, and not “qualified”. This allows those party-lists garnering less
than 2% to also get a seat.
But how? The Supreme Court laid down the following rules:
RANKING: 1. The parties, organizations, and coalitions shall be ranked from the highest
to the lowest based on the number of votes they garnered during the elections.
2% GUARANTY. 2. The parties, organizations, and coalitions receiving at least two
percent (2%) of the total votes cast for the party-list system shall be entitled to one
guaranteed seat each.
ADDITIONAL SEATS 3. Those garnering sufficient number of votes, according to the
ranking in paragraph 1, shall be entitled to additional seats in proportion to their total
number of votes until all the additional seats are allocated.
LIMITATION. 4. Each party, organization, or coalition shall be entitled to not more than
three (3) seats.

In computing the additional seats, the guaranteed seats shall no longer be included
because they have already been allocated, at one seat each, to every two-percenter.
Thus, the remaining available seats for allocation as “additional seats” are the maximum
seats reserved under the Party List System less the guaranteed seats. Fractional seats
are disregarded in the absence of a provision in R.A. No. 7941 allowing for a rounding off
of fractional seats.
In short, there shall be two rounds in determining the allocation of the seats. In the first
round, all party-lists which garnered at least 2% of the votes cast (called the two-
percenters) are given their one seat each. The total number of seats given to these two-
percenters are then deducted from the total available seats for party-lists. In this case, 17
party-lists were able to garner 2% each. There are a total 55 seats available for party-lists
hence, 55 minus 17 = 38 remaining seats. (Please refer to the full text of the case for the
tabulation).
The number of remaining seats, in this case 38, shall be used in the second round,
particularly, in determining, first, the additional seats for the two-percenters, and second,
in determining seats for the party-lists that did not garner at least 2% of the votes cast,
and in the process filling up the 20% allocation for party-list representatives.
How is this done?
Get the total percentage of votes garnered by the party and multiply it against the
remaining number of seats. The product, which shall not be rounded off, will be the
additional number of seats allotted for the party list – but the 3 seat limit rule shall
still be observed.
Example:
In this case, the BUHAY party-list garnered the highest total vote of 1,169,234 which is
7.33% of the total votes cast for the party-list elections (15,950,900).
Applying the formula above: (Percentage of vote garnered) x (remaining seats) = number
of additional seat
Hence, 7.33% x 38 = 2.79
Rounding off to the next higher number is not allowed so 2.79 remains 2. BUHAY is a
two-percenter which means it has a guaranteed one seat PLUS additional 2 seats or a
total of 3 seats. Now if it so happens that BUHAY got 20% of the votes cast, it will still get
3 seats because the 3 seat limit rule prohibits it from having more than 3 seats.
Now after all the tw0-percenters were given their guaranteed and additional seats, and
there are still unoccupied seats, those seats shall be distributed to the remaining party-
lists and those higher in rank in the voting shall be prioritized until all the seats are
occupied.

V. No. By a vote of 8-7, the Supreme Court continued to disallow major political parties
(the likes of UNIDO, LABAN, etc)from participating in the party-list elections.
Although the ponencia (Justice Carpio) did point out that there is no prohibition either
from the Constitution or from RA 7941 against major political parties from participating in
the party-list elections as the word “party” was not qualified and that even the framers of
the Constitution in their deliberations deliberately allowed major political parties to
participate in the party-list elections provided that they establish a sectoral wing which
represents the marginalized (indirect participation), Justice Puno, in his separate opinion,
concurred by 7 other justices, explained that the will of the people defeats the will of the
framers of the Constitution precisely because it is the people who ultimately ratified the
Constitution – and the will of the people is that only the marginalized sections of the
country shall participate in the party-list elections. Hence, major political parties cannot
participate in the party-list elections, directly or indirectly.

VI. Yes, the 3 seat limit rule is valid. This is one way to ensure that no one party shall
dominate the party-list system.

G.R. No. 205505, September 29, 2015

LICO, v. THE COMMISSION ON ELECTIONS EN BANC D E C I S I O N

The pivotal and interrelated issues before Us in this case involve the
seemingly elementary matter of the Commission on Elections' (COMELEC)
jurisdiction over the expulsion of a sitting party-list representative: from the
House of Representatives, on the one hand; and from his party-list
organization, on the other.

The instant case involves two rival factions of the same party-list
organization, the Adhikaing Tinataguyod ng Kooperatiba (Ating Koop). One
group is headed by petitioner Atty. Isidro Q. Lico (the Lico Group), who
represents the organization in the House of Representatives, and the other
group by Amparo T. Rimas (respondents herein, or the Rimas Group).

THE CASE

Before Us is a Petition for Certiorari under Rule 641 in relation to Rule

65,2 seeking to annul the Resolutions in E.M. No. 12-039 dated 18 July 2012
and 31 January 2013 of the COMELEC.
 THE ANTECEDENT FACTS

Ating Koop is a multi-sectoral party-list organization which was registered on

16 November 2009 under Republic Act (R.A.) No. 7941, also known as the
Party-List System Act (Party-List Law).

Under Ating Koop's Constitution and By-Laws, its highest policymaking body
is the National Convention. The Central Committee, however, takes over
when the National Convention is not in session.3

On 30 November 2009, Ating Koop filed its Manifestation of Intent to

Participate in the Party-List System of Representation for the 10 May 2010
Elections.4 On 6 March 2010, it filed with the COMELEC the list of its
nominees, with petitioner Lico as first nominee and Roberto Mascarina as
second nominee.

On 8 December 2010, COMELEC proclaimed Ating Koop as one of the

winning party-list groups.5 Based on the procedure provided in BANAT Party-
List v. COMELEC,6 Ating Koop earned a seat in the House of Representatives.
Petitioner Lico subsequently took his oath of office on 9 December 2010
before the Secretary-General of the House of Representatives,7 and
thereafter assumed office.

Several months prior to its proclamation as one of the winning party-list

organizations, or on 9 June 2010, Ating Koop issued Central Committee
Resolution 2010-01, which incorporated a term-sharing agreement signed by
its nominees.8 Under the agreement, petitioner Lico was to serve as Party-
list Representative for the first year of the three-year term.9

On 14 May 2011, Ating Koop held its Second National Convention, during
which it introduced amendments to its Constitution and By-laws. Among the
salient changes was the composition of the Central Committee,10 which
would still be composed of 15 representatives but with five each coming
from Luzon, Visayas and Mindanao (5-5-5 equal representation).11 The
amendments likewise mandated the holding of an election of Central
Committee members within six months after the Second National
Convention.12

In effect, the amendments cut short the three-year term of the incumbent
members (referred to hereafter as the Interim Central Committee) of the
Central Committee.13 The Interim Central Committee was dominated by
members of the Rimas Group.

On 5 December 2011, or almost one year after petitioner Lico had assumed
office, the Interim Central Committee expelled him from Ating Koop for
disloyalty.14 Apart from allegations of malversation and graft and corruption,
the Committee cited petitioner Lico's refusal to honor the term-sharing
agreement as factual basis for disloyalty and as cause for his expulsion
under Ating Koop's Amended Constitution and By-laws.15

On 8 December 2011, Congressman Lico filed a Motion for Reconsideration

with the Interim Central Committee,16 which subsequently denied the same
in a Resolution dated 29 December 2011.17

While petitioner Lico's Motion for Reconsideration was pending, the Lico
Group held a special meeting in Cebu City (the Cebu meeting) on 19
December 2011. At the said meeting, new members of the Central
Committee, as well as a new set of officers, were elected.18 The election was
purportedly held for the purpose of implementing the 5-5-5 equal
representation amendment made during the Second National Convention.19

On 21 January 2012, the Rimas Group held a Special National Convention in

Parañaque City20 (the Parañaque convention), at which a new Central
Committee and a new set of officers were constituted.21Members of the
Rimas Group won the election and occupied all the corresponding seats.

PROCEEDINGS BEFORE THE COMELEC

SECOND DIVISION

On 16 March 2012, the Rimas Group, claiming to represent Ating Koop, filed
with COMELEC a Petition against petitioner Lico docketed as E.M. No. 12-
039.22 The said Petition, which was subsequently raffled to the Second
Division, prayed that petitioner Lico be ordered to vacate the office of Ating
Koop in the House of Representatives, and for the succession of the second
nominee, Roberto Mascarina as Ating Koop's representative in the House.

The Rimas Group thereafter filed an Amended Petition with the COMELEC on
14 May 2012, this time impleading not only petitioner Lico but the entire
Lico Group. The Amended Petition also prayed that the COMELEC nullify the
election conducted at the Cebu meeting and recognize the Paranaque
convention.

In both the Petition and the Amended Petition, the Rimas Group alleged that
Ating Koop had expelled Congressman Lico for acts inimical to the party-list
group, such as malversation, graft and corruption, and that he had "boldly
displayed his recalcitrance to honor party commitment to be upright and
consistently honest, thus violating basic principles of the Ating Koop."23 The
Amended Petition stated further that the Cebu meeting held by the Lico
Group violated notice and quorum requirements.24

In a Resolution dated 18 July 2012,25 the COMELEC Second Division upheld

the expulsion of petitioner Lico from Ating Koop and declared Mascarina as
the duly qualified nominee of the party-list group.26 The Second Division
characterized the issue of the validity of the expulsion of petitioner Lico from
Ating Koop as an intra-party leadership dispute, which it could resolve as an
incident of its power to register political parties.27chanroblesvirtuallawlibrary

PROCEEDINGS BEFORE THE COMELEC

EN BANC

Consequently, the Lico Group filed a Motion for Reconsideration from the
Second Division's Resolution, which the COMELEC En Banc denied on 31
January 2013. The dispositive portion of its Resolution
reads:cralawlawlibrary

WHEREFORE, premises considered, the Commission (En Banc) RESOLVES,

as it hereby RESOLVED, to:
a. DISMISS the instant Petition to Expel Respondent Atty. Isidro Q. Lico in
the House of Representatives and to Sanction the Immediate Succession of
the Second Nominee of ATING KOOP Party List, Mr. Roberto C. Mascarina as
its Party Representative, for lack of jurisdiction;ChanRoblesVirtualawlibrary

b. UPHOLD the Expulsion of Respondent Atty. Isidro Lico from ATING KOOP
Party-list Group; [and]

c. UPHOLD the ATING KOOP Party-list Group represented by its President,

Amparo T. Rimas, as the legitimate Party-list Group accredited by the
Commission on Elections, to the exclusion of respondents Atty. Isidro Q.
Lico, Rafael A. Puentespina, Proculo T. Sarmen, Amelito L. Revuelta, William
C. Ybanez, Silverio J. Sanchez, Gloria G. Futalan, Hilario De Guzman, Eugene
M. Pabualan, Rodolfo E. Perez, Hipolito R. Quillan, Mario Arenas, Tirso C.
Buenaventura, Lydia B. Tubella, and Jonathan Dequina.28
chanrobleslaw

In arriving at its Resolution, the COMELEC En Banc held that it had no

jurisdiction to expel Congressman Lico from the House of Representatives,
considering that his expulsion from Ating Koop affected his qualifications as
member of the House, and therefore it was the House of Representatives
Electoral Tribunal (HRET) that had jurisdiction over the Petition.

At the same time, the COMELEC upheld the validity of petitioner Lico's
expulsion from Ating Koop, explaining that when the Interim Central
Committee ousted him from Ating Koop, the said Committee's members
remained in hold-over capacity even after their terms had expired;29 and
that the COMELEC was not in a position to substitute its judgment for that of
Ating Koop with respect to the cause of the expulsion.30

Finally, the COMELEC En Banc recognized the Rimas Group as the legitimate
representative of Ating Koop considering that: 1) it found nothing in the
records to show that the Lico Group made a valid call for the special election
of Central Committee members as required under the Amended Constitution
and By-Laws;31 2) there is nothing on record indicating that a minimum of
100 attended the Cebu meeting;32and 3) the Parañaque convention was in
accordance with Ating Koop's Amended Constitution and By-Laws.33

Hence, this Petition: the Lico Group now comes before Us, praying for a
review of the COMELEC Resolutions.

The Court's Ruling

On the COMELEC's jurisdiction over

the expulsion of a Member of the House
of Representatives from his party-list
organization

We find that while the COMELEC correctly dismissed the Petition to expel
petitioner Lico from the House of Representatives for being beyond its
jurisdiction, it nevertheless proceeded to rule upon the validity of his
expulsion from Ating Koop - a matter beyond its purview.

The COMELEC notably characterized the Petition for expulsion of petitioner

Lico from the House of Representatives and for the succession of the second
nominee as party-list representative as a disqualification case. For this
reason, the COMELEC dismissed the petition for lack of jurisdiction, insofar
as it relates to the question of unseating petitioner Lico from the House of
Representatives.

Section 17, Article VI of the 1987 Constitution34 endows the HRET with
jurisdiction to resolve questions on the qualifications of members of
Congress. In the case of party-list representatives, the HRET acquires
jurisdiction over a disqualification case upon proclamation of the winning
party-list group, oath of the nominee, and assumption of office as member
of the House of Representatives.35 In this case, the COMELEC proclaimed
Ating Koop as a winning party-list group; petitioner Lico took his oath; and
he assumed office in the House of Representatives. Thus, it is the HRET, and
not the COMELEC, that has jurisdiction over the disqualification case.

What We find to be without legal basis, however, is the action of the

COMELEC in upholding the validity of the expulsion of petitioner Lico from
Ating Koop, despite its own ruling that the HRET has jurisdiction over the
disqualification issue. These findings already touch upon the qualification
requiring a party-list nominee to be a bona fide member of the party-list
group sought to be represented.

The COMELEC justified its Resolution on the merits of the expulsion, by

relying on the rule that it can decide intra-party matters as an incident of its
constitutionally granted powers and functions. It cited Lokin v. COMELEC,
where We held that when the resolution of an intra-party controversy is
necessary or incidental to the performance of the constitutionally-granted
functions of the COMELEC, the latter can step in and exercise jurisdiction
over the intra-party matter.36 The Lokin case, however, involved nominees
and not incumbent members of Congress. In the present case, the fact that
petitioner Lico was a member of Congress at the time of his expulsion from
Ating Koop removes the matter from the jurisdiction of the COMELEC.

The rules on intra-party matters and on the jurisdiction of the HRET are not
parallel concepts that do not intersect. Rather, the operation of the rule on
intra-party matters is circumscribed by Section 17 of Article VI of the 1987
Constitution and jurisprudence on the jurisdiction of electoral tribunals. The
jurisdiction of the HRET is exclusive. It is given full authority to hear and
decide the cases on any matter touching on the validity of the title of the
proclaimed winner.37

In the present case, the Petition for petitioner Lico's expulsion from the
House of Representatives is anchored on his expulsion from Ating Koop,
which necessarily affects his title as member of Congress. A party-list
nominee must have been, among others, a bona fide member of the party or
organization for at least ninety (90) days preceding the day of the election.
Needless to say, bona fide membership in the party-list group is
a continuing qualification. We have ruled that qualifications for public
office, whether elective or not, are continuing requirements. They must be
possessed not only at the time of appointment or election, or of assumption
of office, but during the officer's entire tenure.39

This is not the first time that this Court has passed upon the issue of HRET
jurisdiction over the requirements for bona fide membership in a party-list
organization. In Abayon v. HRET,40 it was argued that the petitioners did not
belong to the marginalized and under-represented sectors that they should
represent; as such, they could not be properly considered bona
fide members of their respective party-list organizations. The Court held that
it was for the HRET to interpret the meaning of the requirement of bona
fide membership in a party-list organization. It reasoned that under Section
17, Article VI of the Constitution, the HRET is the sole judge of all
contests when it comes to qualifications of the members of the
House of Representatives.41

Consequently, the COMELEC failed to recognize that the issue on the validity
of petitioner Lico's expulsion from Ating Koop is integral to the issue of his
qualifications to sit in Congress. This is not merely an error of law but an
error of jurisdiction correctible by a writ of certiorari;42 the COMELEC should
not have encroached into the expulsion issue, as it was outside its authority
to do so.

Distinguished from Reyes v. COMELEC

Our ruling here must be distinguished from Regina Ongsiako Reyes v.

Commission on Elections.43 In that case, We upheld the disqualification by
the COMELEC of petitioner Reyes, even as she was already proclaimed
winner in the elections at the time she filed her petition with the High Court.
In doing so, We rejected the argument that the case fell within the exclusive
jurisdiction of the HRET.

In Reyes, the petitioner was proclaimed winner of the 13 May 2013

Elections, and took her oath of office before the Speaker of the House of
Representatives. However, the Court ruled on her qualifications since she
was not yet a member of the House of Representatives: petitioner Reyes
had yet to assume office, the term of which would officially start at noon of
30 June 2013, when she filed a Petition for Certiorariwith Prayer for
Temporary Restraining Order and/or Preliminary Injunction and/or Status
Quo Ante Order dated 7 June 2013 assailing the Resolutions ordering the
cancellation of her Certificate of Candidacy. In the present case, all three
requirements of proclamation, oath of office, and assumption of office were
satisfied.

Moreover, in Reyes, the COMELEC En Banc Resolution disqualifying

petitioner on grounds of lack of Filipino citizenship and residency had
become final and executory when petitioner elevated it to this Court.44 It
should be mentioned that when petitioner Reyes filed her petition with the
Court, the COMELEC En Banc had, as early as 5 June 2013, already issued a
Certificate of Finality over its 14 May 2013 Resolution disqualifying her.
Therefore, there was no longer any pending case on the qualifications of
petitioner Reyes to speak of. Here, the question of whether petitioner Lico
remains a member of the House of Representatives in view of his expulsion
from Ating Koop is a subsisting issue.

Finally, in Reyes, We found the question of jurisdiction of the HRET to be a

non-issue, since the recourse of the petitioner to the Court appeared to be a
mere attempt to prevent the COMELEC from implementing a final and
executory judgment. We said that the petitioner therein took an
inconsistent, if not confusing, stance, considering that she sought remedy
before the Court, and yet asserted that it is the HRET which had jurisdiction
over the case.45 In this case, the question on the validity of petitioner Lico's
expulsion from Ating Koop is a genuine issue that falls within the jurisdiction
of the HRET, as it unmistakably affects his qualifications as party-list
representative.

On which group legitimately represents

Ating Koop

We now pass upon the question of which, between the two contending
groups, is the legitimate leadership of Ating Koop.

At the outset, We reject the Lico Group's argument that the COMELEC has
no jurisdiction to decide which of the feuding groups is to be recognized, and
that it is the Regional Trial Court which has jurisdiction over intra-corporate
controversies. Indeed, the COMELECs jurisdiction to settle the struggle for
leadership within the party is well established. This power to rule upon
questions of party identity and leadership is exercised by the COMELEC as an
incident of its enforcement powers.46

That being said, We find the COMELEC to have committed grave abuse of
discretion in declaring the Rimas Group as the legitimate set of Ating Koop
officers for the simple reason that the amendments to the Constitution and
By-laws of Ating Koop were not registered with the COMELEC. Hence,
neither of the elections held during the Cebu meeting and the Paranaque
conference pursuant to the said amendments, were valid.

Both the Lico Group and the Rimas Group indeed assert that their respective
elections were conducted pursuant to the amendment introduced in the
Second National Convention held on 14 May 2011. In particular, Section 1 of
Article VI of Ating Koop's By-laws called for the conduct of an election of
Central Committee members within six months after the Second National
Convention.47

There is no showing, however, that the amendments were actually filed with
the COMELEC.
A party-list organization owes its existence to the State and the latter's
approval must be obtained through its agent, the COMELEC. In the 2013
case of Dayao v. COMELEC,48 We declared that it is the State, acting through
the COMELEC, that breathes life to a party-list organization. The implication,
therefore, is that the State, through the COMELEC, is a party to the principal
contracts entered into by the party-list organization and its members - the
Constitution and By-laws - such that any amendment to these contracts
would constitute a novation requiring the consent of all the parties involved.
An amendment to the bylaws of a party-list organization should become
effective only upon approval by the COMELEC.

Such a prerequisite is analogous to the requirement of filing of the amended

by-laws and subsequent conformity thereto of the Securities and Exchange
Commission (SEC) under corporation law. Under the Corporation Code, an
amendment to a by-law provision must be filed with the SEC. The
amendment shall be effective only upon the issuance by the SEC of a
certification that it is not inconsistent with the Corporation Code.49

There being no showing that the amendments on the by-laws of Ating Koop
were filed with and subsequently approved by the COMELEC, any election
conducted pursuant thereto may not be considered valid. Without such
requisite proof, neither the Lico Group nor the Rimas Group can claim to be
the legitimate set of officers of Ating Koop.

Even assuming arguendo that the amendment calling for a special election
were effective, this Court still cannot declare any of the feuding groups as
the legitimate set of officers considering that the respective sets of evidence
presented were evenly balanced. With respect to the Lico Group's Cebu
meeting, the COMELEC correctly found - and the records bear out - that the
notices sent were deficient and that there was no sufficient proof of quorum.
Hence, the Cebu meeting was held to be invalid. On the other hand, the
COMELEC failed to appreciate the fact that the Paranaque convention
suffered from the same infirmity, the records of the said convention,
consisting merely of the Minutes thereof, likewise fail to establish due notice
and a quorum.50

Accordingly, as neither group can sufficiently lay claim to legitimacy, the

equipoise doctrine comes into play. This rule provides that when the
evidence in an issue of fact is in equipoise, that is, when the respective sets
of evidence of both parties are evenly balanced, the party having the burden
of proof fails in that issue. Since neither party succeeds in making out a
case, neither side prevails. The courts are left with no other option but to
leave them as they are. The consequence, therefore, is the dismissal of the
complaint/petition.51
The Rimas Group, being the petitioner before the COMELEC, had the burden
of proving that it is the petitioner, and not the Lico Group, that is the
legitimate group. As the evidence of both parties are in equipoise, the Rimas
Group failed to discharge its burden. The COMELEC should have dismissed
the petition of the Rimas Group insofar as it sought to be declared the
legitimate group representing Ating Koop.

Yet, the COMELEC held that the Paranaque convention "appeared to be in

conformity" with Ating Koop's Amended Constitution and By-Laws.52 It
should be stressed that the COMELEC did not even substantiate this
conclusion.53

The Court ordinarily refrains from reviewing the COMELEC s appreciation and
evaluation of the evidence.54 But when the COMELECs assessment of the
evidence is so grossly unreasonable that it turns into an error of jurisdiction,
the Court is compelled to intervene and correct the error.55

As seen in the above discussions, neither of the parties was able to establish
its legitimacy. The evaluation of the evidence by the COMELEC in deciding
the issue of which group legitimately represents Ating Koop was therefore
grossly unreasonable, which amounts to a jurisdictional error that may be
remedied by certiorari under Rule 65.

The final, and most important question to be addressed is: if neither of the
two groups is the legitimate leadership of Ating Koop, then who is?

We find such legitimate leadership to be the Interim Central Committee,

whose members remain as such in a hold-over capacity.

In Seneres v. COMELEC,56 the validity of the Certificate of Nomination filed

by Buhay Party-List through its President, Roger Robles, was questioned on
the ground that his term had expired at the time it was filed. The Court
applied by analogy the default rule in corporation law to the effect that
officers and directors of a corporation hold over after the expiration of their
terms until such time as their successors are elected or
appointed.57Señeres ruled that the hold-over principle applies in the absence
of a provision in the constitution or by-laws of the party-list organization
prohibiting its application.

In the present case, We have gone through the Constitution and Bylaws of
Ating Koop and We do not see any provision forbidding, either expressly or
impliedly, the application of the hold-over rule. Thus, in accordance with
corporation law, the existing Interim Central Committee is still a legitimate
entity with full authority to bind the corporation and to carry out powers
despite the lapse of the term of its members on 14 November 2011, since no
successors had been validly elected at the time, or since.

WHEREFORE, premises considered, the Petition is GRANTED. The

COMELEC En Banc Resolution dated 31 January 2013 and the COMELEC
Second Division Resolution dated 18 July 2012 in E.M. No. 12-039 are
hereby ANNULLED and SET ASIDE insofar as it declares valid the expulsion
of Congressman Lico from Ating Koop and it upholds the ATING KOOP Party-
list Group represented by its President, Amparo T. Rimas, as the legitimate
Party-list Group.

A new one is entered DECLARING that the legitimate Central Committee

and set of officers legitimately representing Ating Koop are the Interim
Central Committee and set of officers prior to the split of Ating Koop.