EN BANC violation of mandatory provisions of law relating to or governing

elections ...." in that more than 200 voters were registered per precinct
contrary to the provision limiting such number of 200 only and that no
G.R. No. L-29333 February 27, 1969
publication of the list of voters for each precinct was made up to the
election day itself, enabling persons who under the law could not vote
MARIANO LL. BADELLES, protestant-appellant, being allowed to do so. As a result of such alleged "flagrant violations
vs. of the laws relation to or governing elections" around 8,300 individuals
CAMILO P. CABILI, protegee-appellee. were allowed to vote illegally.

-------------------------- It was likewise asserted that not less than 8,000 qualified voters were
unable to exercise their right of suffrage in view of their failure, without
any fault on their part, to have the proper identification cards or the
G.R. No. L-29334 February 27, 1969
non-listing of their names in the list of voters. It was stated further that
even in the case of those individuals provided with identification cards
BONIFACIO P. LEGASPI and CECILlO T. BARAZON protestants- with their names included in the list of voters, they could not avail
appellants, themselves of their right of suffrage as their applications for registration
vs. could not be found. Mention was also made of the fact that the final
FELIX Z. ACTUB, PROVIDENCIO P. ABRAGAN, MANUEL F. lists of voters and the applications for registration were delivered to
CELDRAN, CASIMERO P. CABIGON and BENITO ONG, protestees- their respective precincts late on election day itself thus preventing
appellees. them from voting. Moreover, confusion, so it was alleged, was caused
by the excessive number of voters being listed and many having been
assigned to precincts other than the correct ones.
Bonifacio P. Legaspi for and in his own behalf.
Camilo P. Cabili. Gerardo B. Padilla and Ignacio Español and Voltaire
I. Roviro for protestees-appellees. What was thus objected to is the fact that illegal votes were cast by
those not qualified to do so, numbering 8,300 or more and that an
approximately equal number, who were duly registered with the
FERNANDO, J.: Commission on Elections, Iligan City, were unable to vote due to the
above circumstances. The proclamation then could not have reflected
Two election protests against the duly proclaimed Mayor and the true will of the electorate as to who was the mayor elected, as the
Councilors of Iligan City, after the Nov. 14, 1967 elections, based on majority of protestee Cabili over the protestant consisted of only 2,344
the allegations of flagrant violations of certain mandatory provisions of votes.
the Election Code, to be more specifically set forth hereafter, were
dismissed in a single order by the Court of First Instance of Lanao del The prayer was among others for the proclamation of protestee as well
Norte, the Honorable Teodulo C. Tandayag presiding. The cases are as other candidates for elective positions in the City of Iligan being set
now before us on appeal. aside and declared null and void, protestant pleading further that he be
granted other such relief as may be warranted in law and equity.
In one of them, 1 the election of Honorable Camilo P. Cabili to the
Office of City Mayor of Iligan City, was contested by protestant, now The protest of the candidates for councilor Legaspi and Barazon in the
appellant, Mariano Badelles. In the other, 2 the protestants are the now other case against protestees 4 was in substance similarly worded. The
appellants, Bonifacio P. Legaspi and Cecilia T. Barazon who along prayer was for the setting aside and declaring null and void the
with the five protestees 3 were among those who were registered proclamation of protestees with protestants seeking such other relief
candidates voted for in such election for councilors in the City of Iligan, which should be theirs according to law and to equity.
with the protestees being credited with the five highest number of
votes, with protestants Legaspi and Barazon obtaining sixth and
seventh places, respectively. In the first case, protestee Cabili moved to dismiss the petition on the
following grounds: "1. That the protest was filed beyond the
reglementary period allowed by the Revised Election Code; 2. That
In such order of dismissal, it was admitted that while irregularities as [the lower court] has no jurisdiction over the subject matter of the
well as misconduct on the part of election officers were alleged in the present case, the Commission on Elections being the proper body to
election protests filed, there was however an absence of an allegation hear the same; 3. That the complaint states no cause of action." 5 This
that they would change the result of the election in favor of the very same grounds were relied upon in a motion to dismiss by
protestants and against the protestees, that such irregularities would protestees Actub and Cabigon, filed in the other suit.
destroy the secrecy and integrity of the ballots cast, or that the
protestees knew of or participated in the commission thereof. For the
lower court then, the lack of a cause of action was rather evident. As above noted, in a single order of March 23, 1968, the two above
election protests were dismissed, the lower court being of the opinion
that neither petition alleged a cause of action "to justify [it] to try the
Hence the order of dismissal of March 23, 1968, which was sought to same." The first ground of the motion to dismiss to the effect that the
be fortified by the invocation of the doctrines that voters should not be protests in both cases were filed beyond the reglementary period was
deprived of their right to vote occasioned by the failure of the election rejected. The claim as to lack of jurisdiction was likewise held to be
officials to comply with the formal prerequisites to the exercise of the without merit. The single order of dismissal in both cases as indicated
right of suffrage and that the rules and regulations for the conduct of was based on the lack of a cause of action.
elections while mandatory before the voting should be considered
directory thereafter. The validity of such order of dismissal is now to be
inquired into by us in this appeal. The reasoning followed by the lower court in reaching the above
conclusion that there was no cause of action, proceeded along these
lines: "Mere irregularities or misconduct on the part of election officers
In the petition of protestant Badelles, dated December 8, 1967, and which do not tend to affect the result of the elections are not of
marked as received the next day by the Clerk of Court of the Court of themselves either ground for contest or for proper matters of inquiry...
First Instance of Lanao del Norte, 15th Judicial District, it was stated There is no allegation in the protest that the alleged irregularities
that both he and protestee Camilo P. Cabili were the duly registered committed by the election officers would tend to change the result of
candidates for the Office of City Mayor of Iligan City, both having filed the election in favor of the protestants and against the protestees.
their respective certificates of candidacy in accordance with law and as There is no allegation in the petition that the 8,000 voters who failed to
such candidates voted for in the November 14, 1967 election. It was vote were all voters of protestants and the 8,300 illegal voters who
then alleged that the Board of Canvassers, on November 25, 1967, voted were for the protestees. There is, therefore, no legal and
proclaimed as elected protestee for having obtained 11,310 votes practical justification for the court to inquire into the irregularities
while protestant was credited with 8,966 votes. Protestant would committed by the election officials, as alleged in the petition, for it
impugn the election of Cabili on the ground that there were "flagrant
would not give any benefit in favor of the protestants to the end that prosper; it was dismissed. The remedy, we held, lay not with the
they will be declared the duly elected mayor and councilors, Commission on Elections but with the courts of justice in an election
respectively, of this City." 6 protest.

It was further stated in such order of dismissal: "There is no allegation In the language of Justice Sanchez: "The boundaries of the forbidden
in the petition that the irregularities committed by the election officials area into which Comelec may not tread are also marked by
have destroyed the secrecy and integrity of the ballots cast. There is jurisprudence. That Comelec is not the proper forum to seek
no allegation in the petition that the non-compliance of the election annulment of an election based on terrorism, frauds and other illegal
officials of the provisions of the election laws regarding the registration practices, is a principle emphasized in decisions of this Court." For as
of voters were intentional on their part for the purpose of committing announced in Nacionalista Party v. Commission on
frauds for the benefit of the protestees. There is no allegation in the Elections, 9 assuming that there be a failure to conduct an election in a
petition that because of the alleged irregularities committed by the free, orderly and honest manner, "the duty to cure or remedy the
election officials in not following the provisions of the election laws resulting evil" did not rest with the Commission on Elections but in
regarding the registration of voters and the distribution of the precincts, "some other agencies of the Government." More specifically, with
that all the votes cast during said elections are illegal, nor is there an reference to provincial and municipal officials, election contests "are
allegation in the protests that the irregularities committed by the entrusted to the courts." Then came this express affirmation: "The
election officials would affect the election in favor of the protestees." 7 power to decide election contests necessarily includes the power to
determine the validity or nullity of the votes questioned by either of the
contestants." .
A greater regard for the cause of accuracy ought to have admonished
the lower court from asserting in an uncompromising tone the absence
of an allegation that the protestants in both cases failed to allege that if As so emphatically observed in the Abes opinion, "there has been
the facts pleaded by them were proved the result would not have been neither deviation nor retreat from the foregoing pronouncement." After
different. It is true the complaints could have been more explicitly which came the following: "The ratiocination advanced that there was
worded, but as they stood, the absence of such a claim could not be so failure of election due to rampancy of terrorism, frauds, and other
confidently asserted. irregularities, before and during elections, such that allegedly about
51% of the registered voters were not able to vote, will not carry the
day for petitioners. For, in the first place, this is grounded upon bare
To repeat, both protests were dismissed. We do not discount a certain
assertions. Respondents contest the correctness thereof. And in the
degree of plausibility attaching to the line of reasoning thus pursued by
answer of respondents Amoranto, Mathay and others, they aver that
the lower court. We are not unaware of the undeniable fact that both
out of 162,457 registered voters in Quezon City, 100,382 voters
petitions were not distinguished by skill in their drafting or precision in
actually cast their votes — about 62% of the registered voters. But
their terminology. Nonetheless the seriousness and gravity of the
above all, as pointed out in City Board of Canvassers vs. Moscoso,
imputed failure to have the elections conducted freely and honestly,
[the] nullity of an election for municipal officials should be determined
with such irregularities alleged, give rise to doubts, rational and honest,
in a petition contesting the election of municipal officers-elect to be
as to who were the duly elected officials. Such allegations, it is to be
filed before the Court of First Instance."
stressed, would have to be accepted at their face value for the purpose
of determining whether there is a cause of action, a motion to dismiss
amounting to a hypothetical admission of facts thus pleaded. We Why an election protest is more fitly and appropriately the procedure
cannot in law and in conscience then sustain the order of dismissal. for determining whether irregularities or serious violations of the
electoral law vitiated the conduct of elections was clearly and
succinctly explained in the Moscoso decision above cited, the opinion
Without the lower court having so intended, the dismissal would
coming from Justice Makalintal. 10 Thus: "The question of whether or
amount to judicial abnegation of a sworn duty to inquire into and pass
not there had been terrorism, vote-buying and other irregularities in the
upon in an appropriate proceeding allegations of misconduct and
1959 elections in Tacloban City should be ventilated in a regular
misdeeds of such character. Accordingly, we reverse.
election protest, pursuant to section 174 of the Election Code, and not
in a petition to enjoin the city board of canvassers from canvassing the
Abes v. Commission on Elections 8 points the way, but the lower court election returns and proclaiming the winning candidates for municipal
was apparently impervious to its teaching. It may not be controlling, but offices."
it furnishes more than a hint. It would seem, though, that for the court
below, its message did not ring out loud and clear.
It would follow then that if the grievance relied upon is the widespread
irregularities and the flagrant violations of the election law, the proper
The opinion in the Abes case, penned by Justice Sanchez, starts thus: remedy is the one availed of here, the protest.
"Petitioner's cry for relief, so their petition avers, is planted upon the
constitutional mandate of free, orderly, and honest elections.
That such should be the case should occasion no surprise. Time and
Specifically, they list a number of repressible acts." Among those
time again, 11 we have stressed the importance of preserving inviolate
mentioned were that blank official registration forms were taken from
the right of suffrage. If that right be disregarded or frittered away, then
the office of the Quezon City Comelec Register several weeks before
popular sovereignty becomes a myth.
election day, November 14, 1967; that active campaigning within the
polling places by Nacionalista leaders or sympathizers of Nacionalista
candidates were allowed; that voters were permitted to vote on mere As Justice Laurel correctly pointed out: "As long as popular
mimeographed notices of certain Nacionalista candidates; that voters government is an end to be achieved and safeguarded, suffrage,
were compelled to fill their official ballots on open tables, desks and in whatever may be the modality and form devised, must continue to be
many precincts outside the polling places; that thousands of voters the means by which the great reservoir of power must be emptied into
sympathetic to the Nacionalista candidates were allowed to vote the receptacular agencies wrought by the people through their
beyond the hours for voting allowed by law; that identification cards Constitution in the interest of good government and the common weal.
were delivered by partisan leaders of respondents Nacionalista Republicanism, in so far as it implies the adoption of a representative
candidates, and those who did not signify their preference for type of government, necessarily points to the enfranchised citizen as a
Nacionalista candidates were not given such cards; that the precinct particle of popular sovereignty and as the ultimate source of the
books of voters were not sealed within the deadline fixed by law; and established authority." 12
that the resulting effect of irregularities was to prevent full fifty-one per
cent of the registered voters from voting.
A republic then to be true to its name requires that the government
rests on the consent of the people, consent freely given, intelligently
One of the issues raised on the above facts is whether or not the arrived at, honestly recorded, and thereafter counted. Only thus can
Commission on Elections could annul the aforesaid election in Quezon they be really looked upon as the ultimate sources of established
City on the above allegations of fraud, terrorism and other illegal authority. It is their undeniable right to have officials of their unfettered
practices committed before and during the election. The petition did not choice. The election law has no justification except as a means for
assuring a free, honest and orderly expression of their views. It is of
the essence that corruption and irregularities should not be permitted
to taint the electoral process.

It may not always be thus unfortunately. That should be the ideal

however. If there be a failure to observe the mandates of the Election
Code, the aggrieved parties should not be left remediless. Under the
law as it stands, it is precisely an election protest that fitly serves that
purpose.lawphi1.nêt

It was sought to be thus utilized in these two cases, perhaps in a rather

awkward and far from entirely satisfactory manner. Than itself is no
reason for the courts to slam the door against any opportunity for
redress. Yet, that is what would happen if the order of dismissal
complained of were not set aside.

Hence the inevitability of its reversal. The scope of our decision must
not be misinterpreted however. All that it directs is that the protetees in
both cases be required to answer. Thereafter, if, as is not unlikely,
there be a denial of the serious imputations made as to the alleged
irregularities, the lower court could properly inquire into what actually
transpired. After the facts are thus ascertained in accordance with the
accepted procedural rules, then the appropriate law could be applied.

It must be clearly emphasized that we do not at this stage intimate any

view as to the merit, or lack of it, of either protest. That would be
premature to say the least. All we do is to set aside the order of
dismissal.

WHEREFORE, the order of dismissal of March 23, 1968, is reversed

and the two cases remanded to the lower court for proceeding and trial
in accordance with this opinion and the law. Without costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez,

Castro, Capistrano and Teehankee, JJ., concur.
 EN BANC
twelve (12) Senators shall serve for a term of six (6) years and the
[ G.R. No. 148334, January 21, 2004 ]
thirteenth (13th) Senator shall serve the unexpired term of three (3)
ARTURO M. TOLENTINO AND ARTURO C. MOJICA, PETITIONERS,
VS. COMMISSION ON ELECTIONS, SENATOR RALPH G. RECTO years of Senator Teofisto T. Guingona, Jr. who was appointed Vice-
AND SENATOR GREGORIO B. HONASAN, RESPONDENTS.
President.”[3] Respondents Ralph Recto (“Recto”) and Gregorio
DECISION
Honasan (“Honasan”) ranked 12th and 13th, respectively, in Resolution
CARPIO, J.:
No. 01-005.
The Case

On 20 June 2001, petitioners Arturo Tolentino and Arturo Mojica

This is a petition for prohibition to set aside Resolution No. NBC 01-
(“petitioners”), as voters and taxpayers, filed the instant petition for
005 dated 5 June 2001 (“Resolution No. 01-005”) and Resolution No.
prohibition, impleading only COMELEC as respondent. Petitioners
NBC 01-006 dated 20 July 2001 (“Resolution No. 01-006”) of
sought to enjoin COMELEC from proclaiming with finality the candidate
respondent Commission on Elections (“COMELEC”). Resolution No.
for Senator receiving the 13th highest number of votes as the winner in
01-005 proclaimed the 13 candidates elected as Senators in the 14
the special election for a single three-year term seat. Accordingly,
May 2001 elections while Resolution No. 01-006 declared “official and
petitioners prayed for the nullification of Resolution No. 01-005 in so far
final” the ranking of the 13 Senators proclaimed in Resolution No. 01-
as it makes a proclamation to such effect.
005.

Petitioners contend that COMELEC issued Resolution No. 01-005

The Facts
without jurisdiction because: (1) it failed to notify the electorate of the

position to be filled in the special election as required under Section 2

Shortly after her succession to the Presidency in January 2001,
of Republic Act No. 6645 (“R.A. No. 6645”);[4] (2) it failed to require
President Gloria Macapagal-Arroyo nominated then Senator Teofisto
senatorial candidates to indicate in their certificates of candidacy
T. Guingona, Jr. (“Senator Guingona”) as Vice-President. Congress
whether they seek election under the special or regular elections as
confirmed the nomination of Senator Guingona who took his oath as
allegedly required under Section 73 of Batas Pambansa Blg.
Vice-President on 9 February 2001.
881;[5] and, consequently, (3) it failed to specify in the Voters

Information Sheet the candidates seeking election under the special

Following Senator Guingona’s confirmation, the Senate on 8 February
or regular senatorial elections as purportedly required under Section 4,
2001 passed Resolution No. 84 (“Resolution No. 84”) certifying to the
paragraph 4 of Republic Act No. 6646 (“R.A. No. 6646”).[6] Petitioners
existence of a vacancy in the Senate. Resolution No. 84 called on
add that because of these omissions, COMELEC canvassed all the
COMELEC to fill the vacancy through a special election to be held
votes cast for the senatorial candidates in the 14 May 2001 elections
simultaneously with the regular elections on 14 May 2001. Twelve
without distinction such that “there were no two separate Senate
Senators, with a 6-year term each, were due to be elected in that
elections held simultaneously but just a single election for thirteen
election.[1] Resolution No. 84 further provided that the “Senatorial
seats, irrespective of term.”[7]
candidate garnering the 13th highest number of votes shall serve only

for the unexpired term of former Senator Teofisto T. Guingona, Jr.,”

Stated otherwise, petitioners claim that if held simultaneously, a
which ends on 30 June 2004.[2]
special and a regular election must be distinguished in the

documentation as well as in the canvassing of their results. To support

On 5 June 2001, after COMELEC had canvassed the election results
their claim, petitioners cite the special elections simultaneously held
from all the provinces but one (Lanao del Norte), COMELEC issued
with the regular elections of 13 November 1951 and 8 November 1955
Resolution No. 01-005 provisionally proclaiming 13 candidates as the
to fill the seats vacated by Senators Fernando Lopez and Carlos P.
elected Senators. Resolution No. 01-005 also provided that “the first
Garcia, respectively, who became Vice-Presidents during their tenures
in the Senate.[8] Petitioners point out that in those elections, COMELEC

separately canvassed the votes cast for the senatorial candidates (1) Procedurally –

running under the regular elections from the votes cast for the (a) whether the petition is in fact a petition for quo warranto over which

candidates running under the special elections. COMELEC also the Senate Electoral Tribunal is the sole judge;

separately proclaimed the winners in each of those elections. [9]

(b) whether the petition is moot; and

Petitioners sought the issuance of a temporary restraining order during

the pendency of their petition. (c) whether petitioners have standing to litigate.

(2) On the merits, whether a special election to fill a vacant three-year

Without issuing any restraining order, we required COMELEC to term Senate seat was validly held on 14 May 2001.

Comment on the petition.

The Ruling of the Court

On 20 July 2001, after COMELEC had canvassed the results from all

the provinces, it issued Resolution No. 01-006 declaring “official and The petition has no merit.

final” the ranking of the 13 Senators proclaimed in Resolution No. 01-

On the Preliminary Matters
005. The 13 Senators took their oaths of office on 23 July 2001.

The Nature of the Petition and the Court’s Jurisdiction

In view of the issuance of Resolution No. 01-006, the Court required

petitioners to file an amended petition impleading Recto and Honasan

A quo warranto proceeding is, among others, one to determine the
as additional respondents. Petitioners accordingly filed an amended
right of a public officer in the exercise of his office and to oust him from
petition in which they reiterated the contentions raised in their original
its enjoyment if his claim is not well-founded.[10] Under Section 17,
petition and, in addition, sought the nullification of Resolution No. 01-
Article VI of the Constitution, the Senate Electoral Tribunal is the sole
006.
judge of all contests relating to the qualifications of the members of the

Senate.
In their Comments, COMELEC, Honasan, and Recto all claim that a

special election to fill the seat vacated by Senator Guingona was

A perusal of the allegations contained in the instant petition shows,
validly held on 14 May 2001. COMELEC and Honasan further raise
however, that what petitioners are questioning is the validity of the
preliminary issues on the mootness of the petition and on petitioners’
special election on 14 May 2001 in which Honasan was elected.
standing to litigate. Honasan also claims that the petition, which seeks
Petitioners’ various prayers are, namely: (1) a “declaration” that no
the nullity of his proclamation as Senator, is actually a quo
special election was held simultaneously with the general elections on
warranto petition and the Court should dismiss the same for lack of
14 May 2001; (2) to enjoin COMELEC from declaring anyone as
jurisdiction. For his part, Recto, as the 12th ranking Senator, contends
having won in the special election; and (3) to annul Resolution Nos.
he is not a proper party to this case because the petition only involves
01-005 and 01-006 in so far as these Resolutions proclaim Honasan
the validity of the proclamation of the 13th placer in the 14 May 2001
as the winner in the special election. Petitioners anchor their prayers
senatorial elections.
on COMELEC’s alleged failure to comply with certain requirements

The Issues pertaining to the conduct of that special election. Clearly then, the

petition does not seek to determine Honasan’s right in the exercise of

The following are the issues presented for resolution: his office as Senator. Petitioners’ prayer for the annulment of

Honasan’s proclamation and, ultimately, election is merely incidental to

petitioners’ cause of action. Consequently, the Court can properly interest in a case such that the party has sustained or will sustain

exercise jurisdiction over the instant petition. direct injury because of the challenged governmental act.[15] The

requirement of standing, which necessarily “sharpens the presentation

On the Mootness of the Petition of issues,”[16] relates to the constitutional mandate that this Court settle

only actual cases or controversies.[17] Thus, generally, a party will be

COMELEC contends that its proclamation on 5 June 2001 of the 13 allowed to litigate only when (1) he can show that he has personally

Senators and its subsequent confirmation on 20 July 2001 of the suffered some actual or threatened injury because of the allegedly

ranking of the 13 Senators render the instant petition to set aside illegal conduct of the government; (2) the injury is fairly traceable to the

Resolutions Nos. 01-005 and 01-006 moot and academic. challenged action; and (3) the injury is likely to be redressed by a

favorable action.[18]

Admittedly, the office of the writ of prohibition is to command a tribunal

or board to desist from committing an act threatened to be done Applied strictly, the doctrine of standing to litigate will indeed bar the

without jurisdiction or with grave abuse of discretion amounting to lack instant petition. In questioning, in their capacity as voters, the validity of
[11]
or excess of jurisdiction. Consequently, the writ will not lie to enjoin the special election on 14 May 2001, petitioners assert a harm

acts already done.[12] However, as an exception to the rule on classified as a “generalized grievance.” This generalized grievance is

mootness, courts will decide a question otherwise moot if it is capable shared in substantially equal measure by a large class of voters, if not

of repetition yet evading review.[13]Thus, in Alunan III v. Mirasol,[14] we all the voters, who voted in that election.[19] Neither have petitioners

took cognizance of a petition to set aside an order canceling the alleged, in their capacity as taxpayers, that the Court should give due

general elections for the Sangguniang Kabataan (“SK”) on 4 December course to the petition because in the special election held on 14 May

1992 despite that at the time the petition was filed, the SK election had 2001 “tax money [was] ‘x x x extracted and spent in violation of specific

already taken place. We noted in Alunan that since the question of the constitutional protections against abuses of legislative power’ or that

validity of the order sought to be annulled “is likely to arise in every SK there [was] misapplication of such funds by COMELEC or that public

elections and yet the question may not be decided before the date of money [was] deflected to any improper purpose.”[20]

such elections,” the mootness of the petition is no bar to its resolution.

This observation squarely applies to the instant case. The question of On the other hand, we have relaxed the requirement on standing and

the validity of a special election to fill a vacancy in the Senate in exercised our discretion to give due course to voters’ suits involving

relation to COMELEC’s failure to comply with requirements on the the right of suffrage.[21] Also, in the recent case of Integrated Bar of

conduct of such special election is likely to arise in every such the Philippines v. Zamora,[22] we gave the same liberal treatment to a

election. Such question, however, may not be decided before the date petition filed by the Integrated Bar of the Philippines (“IBP”). The IBP

of the election. questioned the validity of a Presidential directive deploying elements of

the Philippine National Police and the Philippine Marines in Metro

On Petitioners’ Standing Manila to conduct patrols even though the IBP presented “too general

an interest.” We held:

Honasan questions petitioners’ standing to bring the instant petition as [T]he IBP primarily anchors its standing on its alleged responsibility to

taxpayers and voters because petitioners do not claim that COMELEC uphold the rule of law and the Constitution. Apart from this declaration,

illegally disbursed public funds. Neither do petitioners claim that they however, the IBP asserts no other basis in support of its locus standi.

sustained personal injury because of the issuance of Resolution Nos. The mere invocation by the IBP of its duty to preserve the rule of law

01-005 and 01-006. and nothing more, while undoubtedly true, is not sufficient to clothe it

with standing in this case. This is too general an interest which is

“Legal standing” or locus standi refers to a personal and substantial shared by other groups and the whole citizenry x x x.
 the House of Representatives, as the case may be, certifying to the

Having stated the foregoing, this Court has the discretion to take existence of such vacancy and calling for a special election, shall hold

cognizance of a suit which does not satisfy the requirement of legal a special election to fill such vacancy. If Congress is in recess, an

standing when paramount interest is involved. In not a few cases, the official communication on the existence of the vacancy and call for a

court has adopted a liberal attitude on the locus standi of a petitioner special election by the President of the Senate or by the Speaker of

where the petitioner is able to craft an issue of transcendental the House of Representatives, as the case may be, shall be sufficient

significance to the people. Thus, when the issues raised are of for such purpose. The Senator or Member of the House of

paramount importance to the public, the Court may brush aside Representatives thus elected shall serve only for the unexpired term.

technicalities of procedure. In this case, a reading of the petition

shows that the IBP has advanced constitutional issues which deserve SECTION 2. The Commission on Elections shall fix the date of the

the attention of this Court in view of their seriousness, novelty and special election, which shall not be earlier than forty-five (45) days nor

weight as precedents. Moreover, because peace and order are under later than ninety (90) days from the date of such resolution or

constant threat and lawless violence occurs in increasing tempo, communication, stating among other things the office or offices to be

undoubtedly aggravated by the Mindanao insurgency problem, the voted for: Provided, however, That if within the said period a general

legal controversy raised in the petition almost certainly will not go election is scheduled to be held, the special election shall be held

away. It will stare us in the face again. It, therefore, behooves the simultaneously with such general election. (Emphasis supplied)

Court to relax the rules on standing and to resolve the issue now, Section 4 of Republic Act No. 7166 subsequently amended Section 2
[23]
rather than later. (Emphasis supplied) of R.A. No. 6645, as follows:

We accord the same treatment to petitioners in the instant case in their Postponement, Failure of Election and Special Elections. – x x x In

capacity as voters since they raise important issues involving their right case a permanent vacancy shall occur in the Senate or House of

of suffrage, considering that the issue raised in this petition is likely to Representatives at least one (1) year before the expiration of the term,

arise again. the Commission shall call and hold a special election to fill the vacancy

not earlier than sixty (60) days nor longer than ninety (90) days after

Whether a Special Election for a Single, Three-Year Term the occurrence of the vacancy. However, in case of such vacancy in

Senatorial Seat was Validly Held on 14 May 2001 the Senate, the special election shall be held simultaneously with the

next succeeding regular election. (Emphasis supplied)

Under Section 9, Article VI of the Constitution, a special election may Thus, in case a vacancy arises in Congress at least one year before

be called to fill any vacancy in the Senate and the House of the expiration of the term, Section 2 of R.A. No. 6645, as amended,

Representatives “in the manner prescribed by law,” thus: requires COMELEC: (1) to call a special election by fixing the date of

In case of vacancy in the Senate or in the House of Representatives, a the special election, which shall not be earlier than sixty (60) days nor

special election may be called to fill such vacancy in the manner later than ninety (90) after the occurrence of the vacancy but in case of

prescribed by law, but the Senator or Member of the House of a vacancy in the Senate, the special election shall be held

Representatives thus elected shall serve only for the unexpired term. simultaneously with the next succeeding regular election; and (2) to

(Emphasis supplied) give notice to the voters of, among other things, the office or offices to

To implement this provision of the Constitution, Congress passed R.A. be voted for.

No. 6645, which provides in pertinent parts:

SECTION 1. In case a vacancy arises in the Senate at least eighteen Did COMELEC, in conducting the special senatorial election

(18) months or in the House of Representatives at least one (1) year simultaneously with the 14 May 2001 regular elections, comply with the

before the next regular election for Members of Congress, the requirements in Section 2 of R.A. No. 6645?

Commission on Elections, upon receipt of a resolution of the Senate or

A survey of COMELEC’s resolutions relating to the conduct of the 14 emanate from the statute and not from any call for the election by

May 2001 elections reveals that they contain nothing which would some authority[29] and the law thus charges voters with knowledge of

amount to a compliance, either strict or substantial, with the the time and place of the election.[30]

requirements in Section 2 of R.A. No. 6645, as amended. Thus,

nowhere in its resolutions[24] or even in its press releases[25] did Conversely, where the law does not fix the time and place for holding a

COMELEC state that it would hold a special election for a single three- special election but empowers some authority to fix the time and place

year term Senate seat simultaneously with the regular elections on 14 after the happening of a condition precedent, the statutory provision on

May 2001. Nor did COMELEC give formal notice that it would proclaim the giving of notice is considered mandatory, and failure to do so will

as winner the senatorial candidate receiving the 13th highest number render the election a nullity.[31]

of votes in the special election.

In the instant case, Section 2 of R.A. No. 6645 itself provides that in

The controversy thus turns on whether COMELEC’s failure, assuming case of vacancy in the Senate, the special election to fill such vacancy

it did fail, to comply with the requirements in Section 2 of R.A. No. shall be held simultaneously with the next succeeding regular election.

6645, as amended, invalidated the conduct of the special senatorial Accordingly, the special election to fill the vacancy in the Senate

election on 14 May 2001 and accordingly rendered Honasan’s arising from Senator Guingona’s appointment as Vice-President in

proclamation as the winner in that special election void. More February 2001 could not be held at any other time but must be held

precisely, the question is whether the special election is invalid for lack simultaneously with the next succeeding regular elections on 14 May

of a “call” for such election and for lack of notice as to the office to be 2001. The law charges the voters with knowledge of this statutory

filled and the manner by which the winner in the special election is to notice and COMELEC’s failure to give the additional notice did not

be determined. For reasons stated below, the Court answers in the negate the calling of such special election, much less invalidate it.

negative.

Our conclusion might be different had the present case involved a

COMELEC’s Failure to Give Notice special election to fill a vacancy in the House of Representatives. In

of the Time of the Special Election Did Not such a case, the holding of the special election is subject to a condition

Negate the Calling of such Election precedent, that is, the vacancy should take place at least one year

before the expiration of the term. The time of the election is left to the

The calling of an election, that is, the giving notice of the time and discretion of COMELEC subject only to the limitation that it holds the

place of its occurrence, whether made by the legislature directly or by special election within the range of time provided in Section 2 of R.A.

the body with the duty to give such call, is indispensable to the No. 6645, as amended. This makes mandatory the requirement in

election’s validity. [26]

In a general election, where the law fixes the date Section 2 of R.A. No. 6645, as amended, for COMELEC to “call x x x a

of the election, the election is valid without any call by the body special election x x x not earlier than 60 days nor longer than 90 days

charged to administer the election. [27]

after the occurrence of the vacancy” and give notice of the office to be

filled. The COMELEC’s failure to so call and give notice will nullify any

In a special election to fill a vacancy, the rule is that a statute that attempt to hold a special election to fill the vacancy. Indeed, it will be

expressly provides that an election to fill a vacancy shall be held at the well-nigh impossible for the voters in the congressional district involved

next general elections fixes the date at which the special election is to to know the time and place of the special election and the office to be

be held and operates as the call for that election. Consequently, an filled unless the COMELEC so notifies them.

election held at the time thus prescribed is not invalidated by the fact

that the body charged by law with the duty of calling the election failed No Proof that COMELEC’s
[28]
to do so. This is because the right and duty to hold the election Failure to Give Notice of the Office
to be Filled and the Manner of proof that COMELEC’s omission prejudiced voters in the exercise of

Determining the Winner in the Special their right of suffrage so as to negate the holding of the special

Election Misled Voters election. Indeed, this Court is loathe to annul elections and will only do

so when it is “impossible to distinguish what votes are lawful and what

The test in determining the validity of a special election in relation to are unlawful, or to arrive at any certain result whatever, or that the

the failure to give notice of the special election is whether the want of great body of the voters have been prevented by violence, intimidation,

notice has resulted in misleading a sufficient number of voters as and threats from exercising their franchise.”[34]

would change the result of the special election. If the lack of official

notice misled a substantial number of voters who wrongly believed that Otherwise, the consistent rule has been to respect the electorate’s will

there was no special election to fill a vacancy, a choice by a small and let the results of the election stand, despite irregularities that may

percentage of voters would be void.[32] have attended the conduct of the elections.[35] This is but to

acknowledge the purpose and role of elections in a democratic

The required notice to the voters in the 14 May 2001 special senatorial society such as ours, which is:

election covers two matters. First, that COMELEC will hold a special to give the voters a direct participation in the affairs of their

election to fill a vacant single three-year term Senate seat government, either in determining who shall be their public officials or

simultaneously with the regular elections scheduled on the same date. in deciding some question of public interest; and for that purpose all of

Second, that COMELEC will proclaim as winner the senatorial the legal voters should be permitted, unhampered and unmolested, to
th
candidate receiving the 13 highest number of votes in the special cast their ballot. When that is done and no frauds have been

election. Petitioners have neither claimed nor proved that COMELEC’s committed, the ballots should be counted and the election should not

failure to give this required notice misled a sufficient number of voters be declared null. Innocent voters should not be deprived of their

as would change the result of the special senatorial election or led participation in the affairs of their government for mere irregularities on

them to believe that there was no such special election. the part of the election officers, for which they are in no way

responsible. A different rule would make the manner and method of

Instead, what petitioners did is conclude that since COMELEC failed to performing a public duty of greater importance than

give such notice, no special election took place. This bare assertion the duty itself.[36] (Emphasis in the original)

carries no value. Section 2 of R.A. No. 6645, as amended, charged Separate Documentation and Canvassing

those who voted in the elections of 14 May 2001 with the knowledge not Required under Section 2 of R.A. No. 6645,

that the vacancy in the Senate arising from Senator Guingona’s

appointment as Vice-President in February 2001 was to be filled in the Neither is there basis in petitioners’ claim that the manner by which

next succeeding regular election of 14 May 2001. Similarly, the COMELEC conducted the special senatorial election on 14 May 2001

absence of formal notice from COMELEC does not preclude the is a nullity because COMELEC failed to document separately the

possibility that the voters had actual notice of the special election, the candidates and to canvass separately the votes cast for the special

office to be voted in that election, and the manner by which COMELEC election. No such requirements exist in our election laws. What is

would determine the winner. Such actual notice could come from mandatory under Section 2 of R.A. No. 6645 is that COMELEC “fix the

many sources, such as media reports of the enactment of R.A. No. date of the election,” if necessary, and “state, among others, the office

6645 and election propaganda during the campaign. [33]

or offices to be voted for.” Similarly, petitioners’ reliance on Section 73

of B.P. Blg. 881 on the filing of certificates of candidacy, and on

More than 10 million voters cast their votes in favor of Honasan, the Section 4(4) of R.A. No. 6646 on the printing of election returns and

party who stands most prejudiced by the instant petition. We simply tally sheets, to support their claim is misplaced. These provisions

cannot disenfranchise those who voted for Honasan, in the absence of govern elections in general and in no way require separate
documentation of candidates or separate canvass of votes in a jointly the Philippines;

held regular and special elections.

WHEREAS, the nomination of Senator Guingona has been confirmed

Significantly, the method adopted by COMELEC in conducting the by a majority vote of all the members of both House of Congress,

special election on 14 May 2001 merely implemented the procedure voting separately;

specified by the Senate in Resolution No. 84. Initially, the original draft

of Resolution No. 84 as introduced by Senator Francisco Tatad WHEREAS, Senator Guingona will take his Oath of Office as Vice-

(“Senator Tatad”) made no mention of the manner by which the seat President of the Philippines on February 9, 2001;

vacated by former Senator Guingona would be filled. However, upon

the suggestion of Senator Raul Roco (“Senator Roco”), the Senate WHEREAS, Republic Act No. 7166 provides that the election for

agreed to amend Resolution No. 84 by providing, as it now appears, twelve (12) Senators, all elective Members of the House of

that “the senatorial candidate garnering the thirteenth (13 ) highest

th
Representatives, and all elective provincial city and municipal officials

number of votes shall serve only for the unexpired term of former shall be held on the second Monday and every three years thereafter;

Senator Teofisto T. Guingona, Jr.” Senator Roco introduced the Now, therefore, be it

amendment to spare COMELEC and the candidates needless

expenditures and the voters further inconvenience, thus: RESOLVED by the Senate, as it is hereby resolved, to certify, as it

S[ENATOR] T[ATAD]. Mr. President, I move that we now consider hereby certifies, the existence of a vacancy in the Senate and calling

Proposed Senate Resolution No. 934 [later converted to Resolution the Commission on Elections (COMELEC) to fill up such vacancy

No. 84]. through election to be held simultaneously with the regular election on

May 14, 2001 and the Senator thus elected to serve only for the

T[HE] P[RESIDENT]. Is there any objection? [Silence] There being unexpired term.

none, the motion is approved.

Adopted,

Consideration of Proposed Senate Resolution No. 934 is now in order.

(Sgd.) FRANCISCO S. TATAD
With the permission of the Body, the Secretary will read only the title
Senator
and text of the resolution.

S[ENATOR] T[ATAD]. Mr. President, I move for the adoption of this

T[HE] S[ECRETARY]. Proposed Senate Resolution No. 934 entitled
resolution.
RESOLUTION CERTIFYING TO THE EXISTENCE OF A VACANCY

IN THE SENATE AND CALLING ON THE COMMISSION ON

S[ENATOR] O[SMEÑA] (J). Mr. President.
ELECTIONS (COMELEC) TO FILL UP SUCH VACANCY THROUGH

ELECTION TO BE HELD SIMULTANEOUSLY WITH THE REGULAR

T[HE] P[RESIDENT]. Sen. John H. Osmeña is recognized.
ELECTION ON MAY 14, 2001 AND THE SENATOR THUS ELECTED

TO SERVE ONLY FOR THE UNEXPIRED TERM

S[ENATOR] O[SMEÑA] (J). Thank you, Mr. President. Will the
WHEREAS, the Honorable Teofisto T. Guingona, Jr. was elected
distinguished Majority Leader, Chairman of the Committee on Rules,
Senator of the Philippines in 1998 for a term which will expire on June
author of this resolution, yield for a few questions?
30, 2004;

S[ENATOR] T[ATAD]. With trepidation, Mr. President. [Laughter]

WHEREAS, on February 6, 2001, Her Excellency President Gloria

Macapagal Arroyo nominated Senator Guingona as Vice-President of

S[ENATOR] O[SMEÑA] (J). What a way of flattery. [Laughter] vacancy created, in this particular case, by the appointment of our

colleague, Senator Guingona, as Vice President.

Mr. President, I think I recall that sometime in 1951 or 1953, there was

a special election for a vacant seat in the Senate. As a matter of fact, It can be managed in the Commission on Elections so that a slot for

the one who was elected in that special election was then the particular candidate to fill up would be that reserved for Mr.

Congressman, later Senator Feli[s]berto Verano. Guingona’s unexpired term. In other words, it can be arranged in

such a manner.

In that election, Mr. President, the candidates contested the seat. In

other words, the electorate had to cast a vote for a ninth senator – xxxx

because at that time there were only eight – to elect a member or

rather, a candidate to that particular seat. S[ENATOR] R[OCO]. Mr. President.

Then I remember, Mr. President, that when we ran after the EDSA T[HE] P[RESIDENT]. Sen. Raul S. Roco is recognized.

revolution, twice there were 24 candidates and the first 12 were

elected to a six-year term and the next 12 were elected to a three-year S[ENATOR] R[OCO]. May we suggest, subject to a one-minute

term. caucus, wordings to the effect that in the simultaneous elections, the

13th placer be therefore deemed to be the special election for this

My question therefore is, how is this going to be done in this election? purpose. So we just nominate 13 and it is good for our colleagues. It

Is the candidate with the 13th largest number of votes going to be the is better for the candidates. It is also less expensive because the

one to take a three-year term? Or is there going to be an election for a ballot will be printed and there will be less disfranchisement.

position of senator for the unexpired term of Sen. Teofisto Guingona?

T[HE] P[RESIDENT]. That is right.

S[ENATOR] T[ATAD]. Mr. President, in this resolution, we are leaving

the mechanics to the Commission on Elections. But personally, I S[ENATOR] R[OCO]. If we can just deem it therefore under this

would like to suggest that probably, the candidate obtaining the resolution to be such a special election, maybe, we satisfy the
th
13 largest number of votes be declared as elected to fill up the requirement of the law.

unexpired term of Senator Guingona.

T[HE] P[RESIDENT]. Yes. In other words, this shall be a guidance for

S[ENATOR] O[SMEÑA] (J). Is there a law that would allow the the Comelec.

Comelec to conduct such an election? Is it not the case that the

vacancy is for a specific office? I am really at a loss. I am rising here S[ENATOR] R[OCO]. Yes.

because I think it is something that we should consider. I do not know

if we can… No, this is not a Concurrent Resolution. T[HE] P[RESIDENT]. – to implement.

S[ENATOR] T[ATAD]. May we solicit the legal wisdom of the Senate S[ENATOR] R[OCO]. Yes. The Comelec will not have the flexibility.

President.

T[HE] P[RESIDENT]. That is right.

T[HE] P[RESIDENT]. May I share this information that under Republic

Act No. 6645, what is needed is a resolution of this Chamber calling S[ENATOR] R[OCO]. We will already consider the 13th placer of the

attention to the need for the holding of a special election to fill up the forthcoming elections that will be held simultaneously as a special
election under this law as we understand it. there any objection? [Silence] There being none, the motion is

approved.[37]

T[HE] P[RESIDENT]. Yes. That will be a good compromise, Senator Evidently, COMELEC, in the exercise of its discretion to use means

Roco. and methods to conduct the special election within the confines of

R.A. No. 6645, merely chose to adopt the Senate’s proposal, as

S[ENATOR] R[OCO]. Yes. So if the sponsor can introduce that later, embodied in Resolution No. 84. This Court has consistently

maybe it will be better, Mr. President. acknowledged and affirmed COMELEC’s wide latitude of discretion in

adopting means to carry out its mandate of ensuring free, orderly, and

T[HE] P[RESIDENT]. What does the sponsor say? honest elections subject only to the limitation that the means so

adopted are not illegal or do not constitute grave abuse of

S[ENATOR] T[ATAD]. Mr. President, that is a most satisfactory discretion.[38] COMELEC’s decision to abandon the means it employed

proposal because I do not believe that there will be anyone running in the 13 November 1951 and 8 November 1955 special elections and

specifically – adopt the method embodied in Resolution No. 84 is but a legitimate

exercise of its discretion. Conversely, this Court will not interfere

T[HE] P[RESIDENT]. Correct. should COMELEC, in subsequent special senatorial elections, choose

to revert to the means it followed in the 13 November 1951 and 8

S[ENATOR] T[ATAD]. – to fill up this position for three years and November 1955 elections. That COMELEC adopts means that are

campaigning nationwide. novel or even disagreeable is no reason to adjudge it liable for grave

abuse of discretion. As we have earlier noted:

T[HE] P[RESIDENT]. Actually, I think what is going to happen is the The Commission on Elections is a constitutional body. It is intended to

13th candidate will be running with specific groups. play a distinct and important part in our scheme of government. In the

discharge of its functions, it should not be hampered with restrictions

S[ENATOR] T[ATAD]. Yes. Whoever gets No. 13. that would be fully warranted in the case of a less responsible

organization. The Commission may err, so may this Court also. It

T[HE] P[RESIDENT]. I think we can specifically define that as the should be allowed considerable latitude in devising means and

intent of this resolution. methods that will insure the accomplishment of the great objective for

which it was created — free, orderly and honest elections. We may

S[ENATOR] T[ATAD]. Subject to style, we accept that amendment not agree fully with its choice of means, but unless these are clearly

and if there will be no other amendment, I move for the adoption of this illegal or constitute gross abuse of discretion, this court should not

resolution. interfere.[39]

A Word to COMELEC

xxxx

The calling of a special election, if necessary, and the giving of notice

ADOPTION OF S. RES. NO. 934 to the electorate of necessary information regarding a special election,

are central to an informed exercise of the right of suffrage. While the

If there are no other proposed amendments, I move that we adopt this circumstances attendant to the present case have led us to conclude

resolution. that COMELEC’s failure to so call and give notice did not invalidate

the special senatorial election held on 14 May 2001, COMELEC

T[HE] P[RESIDENT]. There is a motion to adopt this resolution. Is should not take chances in future elections. We remind COMELEC to

comply strictly with all the requirements under applicable laws relative
to the conduct of regular elections in general and special elections in candidates as the duly elected Senators of the Philippines in the May

particular. 14, 2001 elections. Based on the Certificates of Canvass finally

tabulated, the first twelve (12) Senators shall serve for a term of

WHEREFORE, we DISMISS the petition for lack of merit. six (6) years and the thirteenth (13th) Senator shall serve the

unexpired term of three (3) years of Senator Teofisto T. Guingona,

SO ORDERED. Jr., who was appointed Vice-President of the Philippines pursuant

to Section 9, Article VII of the Constitution, in relation to Section 9,

DISSENTING OPINION
Article VI thereof, as implemented under Republic Act No. 6645.
PUNO, J.:
(emphasis supplied)
On June 21, 2001, petitioners filed with the Court their petition for
The case at bar transcends the political fortunes of respondent Senator
prohibition to stop respondent COMELEC from proclaiming any
Gregorio B. Honasan. At issue is the right of the people to elect their
senatorial candidate in the May 14, 2001 election as having been
representatives on the basis and only on the basis of an informed
elected for the lone senate seat for a three-year term. Copies of the
judgment. The issue strikes at the heart of democracy and
petition were served on respondent COMELEC twice, first on June 20,
representative government for without this right, the sovereignty of the
2001 by registered mail, and second on June 21, 2001, by personal
people is a mere chimera and the rule of the majority will be no more
delivery of petitioner Mojica. On June 26, 2001 the Court issued a
than mobocracy. To clarify and sharpen the issue, 1 shall first unfurl
Resolution requiring respondent COMELEC to comment within ten
the facts.
days from notice. Even before filing its comment, respondent
COMELEC issued Resolution No. NBC-01-006 on July 20, 2001, the
dispositive portion of which reads, viz:
I. Facts
NOW, THEREFORE, by virtue of the powers vested in it under the
The facts are undisputed. In February 2001, a Senate seat for a term
expiring on June 30, 2004 was vacated with the appointment of then Constitution, Omnibus Election Code and other election laws, the
Senator Teofisto Guingona, Jr. as Vice-President of the Philippines.
The Senate adopted Resolution No. 84 certifying “the existence of a Commission on Elections sitting as the National Board of Canvassers
vacancy in the Senate and calling the Commission on Elections
(COMELEC) to fill up such vacancy through election to be held hereby DECLARES official and final the above ranking of the
simultaneously with the regular election on May 14, 2001, and the
senatorial candidate garnering the thirteenth (13th) highest number of proclaimed 13 Senators of the Philippines in relation to NBC
votes shall serve only for the unexpired term of former Senator
Teofisto T. Guingona, Jr.” In the deliberations of the Senate on the Resolution No. 01-005 promulgated June 5, 2001.
resolution, the body agreed that the procedure it adopted for Resolution No. NBC-01-006 indicates the following ranking of the 13
determining the winner in the special election was for the “guidance” Senators with the corresponding votes they garnered as of June 20,
and “implementation” of the COMELEC. The COMELEC had no 2001:
discretion to alter the procedure.
1. De Castro, - 16,237,386
Nobody filed a certificate of candidacy to fill the position of senator to Noli L.
serve the unexpired three-year term in the special election. All the
senatorial candidates filed the certificates of candidacy for the twelve 2. Flavier, Juan - 11,735,897
regular Senate seats to be vacated on June 30, 2001 with a six-year M.
term expiring on June 30, 2007. COMELEC distributed nationwide 3. Osmeña, - 11,593,389
official documents such as the Voter Information Sheet, List of Sergio II R.
Candidates and Sample Ballot. TheList of Candidates did
not indicate a separate list of candidates for the special election. 4. Drilon, Franklin - 11,301,700
The Sample Ballot and the official ballots did not provide two M.
different categories of Senate seats to be voted, namely the twelve 5. Arroyo, Joker - 11,262,402
regular six-year term seats and the single three-year term seat. Nor P.
did the ballots provide a separate space for the candidate to be voted
6. Magsaysay, - 11,250,677
in the special election and instead provided thirteen spaces for thirteen
Ramon Jr. B.
senatorial seats.
7. Villar, Manuel - 11,187,375
Without any COMELEC resolution or notice on the time, place and Jr. B.
manner of conduct of the special election, the special election for 8. Pangilinan, - 10,971,896
senator was held on the scheduled May 14, 2001 regular elections. Francis N.
A single canvass of votes for a single list of senatorial candidates was
done. On June 5, 2001, respondent COMELEC promulgated 9. Angara, - 10,805,177
COMELEC Resolution No. NBC01-005, the dispositive portion of which Edgardo J.
reads, viz: 10. Lacson, - 10,535,559
Panfilo M.
NOW, THEREFORE, by virtue of the powers vested in it under the 11. Ejercito- - 10,524,130
Estrada, Luisa P.
Constitution, Omnibus Election Code and other election laws, the 12. Recto, Ralph - 10,498,940
Commission on Elections sitting En Banc as the National Board of
13. Honasan, - 10,454,527
Canvassers hereby proclaims the above-named thirteen (13) Gregorio
On the day of its promulgation, respondent COMELEC forwarded
Resolution No. NBC-01-006 to the President of the Senate. On July candidates for the Senate seat with a two-year term were
23, 2001, the thirteen senators, inclusive of respondents Honasan and
Recto, took their oaths of office before the Senate President. separately tallied from the votes for the candidates for the eight

With the turn of events after the filing of the petition on June 20, 2001, Senate seats with six-year term...[1] (emphases supplied)
the Court ordered petitioners on March 5, 2002 and September 17, Petitioners thus pray that the Court declare the following:
2002 to amend their petition. In their amended petition, petitioners
assailed the manner by which the special election was conducted (a) that no special election was conducted by respondent COMELEC
citing as precedents the 1951 and 1955 special senatorial elections for the single Senate seat with a three year term in the 14 May
for a two-year term which were held simultaneously with the regular 2001 election.
general elections for senators with six year terms, viz:

(b) null and void respondent COMELEC’s Resolutions No. NBC01-005

(a) A vacancy in the Senate was created by the election of Senator dated 5 June 2001 and NBC01-006 dated 20 July 2001 for having
been promulgated without any legal authority at all insofar as said
Fernando Lopez as Vice-President in the 1949 elections. A special resolutions proclaim the Senatorial candidate who obtained the
thirteenth highest number of votes canvassed during the 14 May
election was held in November 1951 to elect his successor to the 2001 election as a duly elected Senator.[2]
Respondents filed their respective comments averring the following
vacated Senate position for a term to expire on 30 December 1953.
procedural flaws: (1) the Court has no jurisdiction over the petition
for quo warranto; (2) the petition is moot; and (3) the petitioners have
Said special election was held simultaneously with the regular election
no standing to litigate. On the merits, they all defend the validity of the
of 1951. A separate space in the official ballot was provided for special election on the ground that the COMELEC had discretion to
determine the manner by which the special election should be
Senatorial candidates for the two year term; moreover, the conducted and that the electorate was aware of the method the
COMELEC had adopted. Moreover, they dismiss the deviations from
candidates for the single Senate term for two years filed the election laws with respect to the filing of certificates of candidacy
for the special elections and the failure to provide in the official ballot a
certificates of candidacy separate and distinct from those space for the special election vote separate from the twelve spaces for
the regular senatorial election votes as inconsequential. They claim
certificates of candidacy filed by the group of Senatorial that these laws are merely directory after the election.

candidates for the six yearterm.

II. Issues

(...the votes for the twenty (20) candidates who filed certificates of The issues for resolution are procedural and substantive. I shall limit
my humble opinion to the substantive issue of whether a special
candidacy for the eight Senate seats with six year terms were election for the single Senate seat with a three-year term was validly
held simultaneous with the general elections on May 14, 2001.
tallied and canvassed separately from the votes for the five

candidates who filed certificates of candidacy for the single

Senate seat with a two year term...) III. Laws on the Calling of Special Elections

Section 9, Article VI of the 1987 Constitution provides for the filling of a

vacancy in the Senate and House of Representatives, viz:
xxx xxx xxx

Sec. 9. In case of vacancy in the Senate or in the House of

(b) Again, a vacancy was created in the Senate by the election of then Representatives, a special election may be called to fill such vacancy

Senator Carlos P. Garcia to the Vice Presidency in the 1953 in the manner prescribed by law, but the Senator or Member of the

presidential elections. A special election was held in November 1955 to House of Representatives thus elected shall serve only for the

elect his successor to the vacated Senatorial position for a two year unexpired term.
Congress passed R.A. No. 6645, “An Act Prescribing the Manner of
term expiring on 30 December 1957. Filling a Vacancy in the Congress of the Philippines,” to implement this
constitutional provision. The law provides, viz:

Said special election for one senator to fill the vacancy left by the SECTION 1. In case a vacancy arises in the Senate at least eighteen

Honorable Carlos Garcia was held in November 1955 simultaneously (18) months or in the House of Representatives at least one (1) year

with the regular election for eight Senate seats with a six year term. before the next regular election for Members of Congress, the

Here, separate spaces were provided for in the official ballot for Commission on Elections, upon receipt of a resolution of the Senate or

the single Senate seat for the two year term as differentiated from the House of Representatives, as the case may be, certifying to the

the eight Senate seats with six year terms. The results as existence of such vacancy and calling for a special election, shall hold

recorded by Senate official files show that votes for the a special election to fill such vacancy. If the Congress is in recess, an
 of first impression, however, the distance between existing
official communication on the existence of the vacancy and call for a jurisprudence and the resolution of the issue presented to the Court
cannot be negotiated through a straight and direct line of reasoning.
special election by the President of the Senate or by the Speaker of Rather, it is necessary to journey through a meandering path and
unearth the root principles of democracy, republicanism, elections,
the House of Representatives, as the case may be, shall be sufficient suffrage, and freedom of information and discourse in an open society.
As a first step in this indispensable journey, we should traverse the
for such purpose. The Senator or Member of the House of democratic and republican landscape to appreciate the importance
of informed judgment in elections.
Representatives thus elected shall serve only for the unexpired term.

A. Evolution of Democracy from Plato to Locke

SECTION 2. The Commission on Elections shall fix the date of the

special election, which shall not be earlier than forty-five (45) days nor
to Jefferson and Contemporary United States of America
later than ninety (90) days from the date of such resolution or
In the ancient days, democracy was dismissed by thoughtful
communication, stating among other things, the office or offices to be thinkers. Plato deprecated democracy as rule by the masses. He
warned that if all the people were allowed to rule, those of low quality
voted for: Provided, however, That if within the said period a general would dominate the state by mere numerical superiority. He feared that
the more numerous masses would govern with meanness and bring
election is scheduled to be held, the special election shall be held about a “tyranny of the majority.” Plato predicted that democracies
would be short-lived as the mob would inevitably surrender its power to
simultaneously with such general election. a single tyrant, and put an end to popular government. Less jaundiced
than Plato was Aristotle’s view towards democracy. Aristotle agreed
that under certain conditions, the will of the many could be equal to or
even wiser than the judgment of the few. When the many governed for
SECTION 3. The Commission on Elections shall send copies of
the good of all, Aristotle admitted that democracy is a good form of
the resolution, in number sufficient for due distribution and government. But still and all, Aristotle preferred a rule of the upper
class as against the rule of the lower class. He believed that the upper
publication, to the Provincial or City Treasurer of each province class could best govern for they represent people of the greatest
refinement and quality.
or city concerned, who in turn shall publish it in their respective
In the Middle Ages, Europe plunged when the Roman Empire
localities by posting at least three copies thereof in as many perished. Europe re-emerged from this catastrophe largely through
reliance on the scientific method which ultimately ushered the
conspicuous places in each of their election precincts, and a Industrial Revolution. Material success became the engine which drove
the people to search for solutions to their social, political and economic
copy in each of the polling places and public markets, and in the problems. Using the scythe of science and reason, the thinkers of the
time entertained an exaggerated notion of individualism. They
municipal buildings. (emphasis supplied) bannered the idea that all people were equal; no one had a greater
R.A. No. 6645 was amended in 1991 by R.A. No. 7166 which provides right to rule than another. Dynastical monarchy was taboo. As all were
in Section 4, viz: essentially equal, no one enjoyed the moral right to govern
another without the consent of the governed. The people therefore
were the source of legitimate legal and political authority. This theory
SECTION 4. Postponement, Failure of Election and Special Election. - of popular sovereignty revived an interest in democracy in the
seventeenth century. The refinements of the grant of power by the
The postponement, declaration of failure of election and the calling of people to the government led to the social contract theory:that is, the
social contract is the act of people exercising their sovereignty
special elections as provided in Sections 5, 6, and 7 of the Omnibus and creating a government to which they consent.[3]

Election Code shall be decided by the Commission sitting en Among the great political philosophers who spurred the evolution of
democratic thought was John Locke (1632-1704). In 1688, the
banc by a majority vote of its members... English revolted against the “Catholic tyranny” of James II, causing him
to flee to France. ThisGlorious Revolution, called such because it
was almost bloodless, put to rest the long struggle between King and
Parliament in England. The revolution reshaped the English
In case a permanent vacancy shall occur in the Senate or House of government and ultimately brought about democracy in England.

Representatives at least one (1) year before the expiration of the John Locke provided the philosophical phalanx to the Glorious
Revolution. For this purpose, he wrote his Second Treatise of
term, the Commission shall call and hold a special election to fill Government, his work with the most political impact. In his
monumental treatise, Locke asserted that the basis of political society
the vacancy not earlier than sixty (60) days nor longer than ninety (90) is a contract whereby individuals consent to be bound by the laws of a
common authority known as civil government. The objective of this
days after the occurrence of the vacancy. However, in case of social contract is the protection of the individual’s natural rights to life,
liberty and property which are inviolable and enjoyed by them in the
suchvacancy in the Senate, the special election shall be held state of nature before the formation of all social and political
arrangements.[4] Locke thus argues that legitimate political power
simultaneously with the next succeeding regular election. amounts to a form of trust, a contract among members of
society anchored on their own consent, and seeks to preserve their
(emphases supplied) lives, liberty and property. This trust or social contract makes
government legitimate and clearly defines the functions of government
IV. Democracy and Republicanism
as concerned, above all, with the preservation of the rights of the
governed.
The shortest distance between two points is a straight line. In this case
Even then, Locke believed that the people should be governed by a after the Declaration of Independence from Spain on June 12, 1898.
parliament elected by citizens who owned property. Although he Article 4 of the Constitution declared the Philippines a Republic, viz:
argued that the people were sovereign, he submitted that they should
not rule directly. Members of parliament represent their constituents
and should vote as their constituents wanted. The government’s sole Art. 4. The government of the Republic is popular,representative,
reason for being was to serve the individual by protecting his rights
and liberties. Although Locke’s ideas were liberal, they fell short of alternative, and responsible and is exercised by three distinct powers,
the ideals of democracy. He spoke of a “middle-class revolution” at a
time when the British government was controlled by the aristocracy. which are denominated legislative, executive and judicial...
While he claimed that all people were equally possessed of natural Shortly after the promulgation of the Malolos Constitution, the
rights, he advocated that political power be devolved only to Philippines fell under American rule. The Americans adopted the
embrace the middle class by giving Parliament, which was controlled policy of gradually increasing the autonomy of the Filipinos before
through the House of Commons, the right to limit the monarchical granting their independence.[13] In 1934, the U.S. Congress passed the
power. He denied political power to the poor; they were bereft of Tydings-McDuffie Law “xxx the last of the constitutional landmarks
the right to elect members of Parliament. studding the period of constitutional development of the Filipino people
under the American regime before the final grant of Philippine
Locke influenced Thomas Jefferson, the eminent statesman and independence.”[14] Under this law, the American government
philosopher of the (American) revolution and of the first constitutional authorized the Filipino people to draft a constitution in 1934 with
order which free men were permitted to establish.”[5] But although the requirement that the “constitution formulated and drafted shall
Jefferson espoused Locke’s version of the social contract and natural be republican in form.” In conformity with this requirement,[15] Article
law, he had respect for the common people and participatory II, Section 1 of the 1935 Philippine Constitution was adopted, viz:
government. Jefferson believed that the people, including the
ordinary folk, were the only competent guardians of their own
liberties, and should thus control their government. Discussing the role Sec. 1. The Philippines is a republican state. Sovereignty resides in
of the people in a republic, Jefferson wrote to Madison from France in
1787 that “they are the only sure reliance for the preservation of our the people and all government authority emanates from them.
liberties.”[6] The delegates to the Constitutional Convention understood this form of
government to be that defined by James Madison, viz:
The wave of liberalism from Europe notwithstanding, a much more
conservative, less democratic, and more paternalistic system of
government was originally adopted in the United States. The nation’s We may define a republic to be a government which derives all its
founders created a government in which power was much more
centralized than it had been under the Articles of Confederation and power directly or indirectly from the great body of the people; and
they severely restricted popular control over the
government.[7] Many of the delegates to the Constitutional Convention is administered by persons holding offices during pleasure, for a limited
of 1787 adhered to Alexander Hamilton’s view that democracy was
little more than legitimized mob rule, a constant threat to personal period, or during good behavior. It is essential to such a government
security, liberty and property. Thus, the framers sought to establish a
constitutional republic, in which public policy would be made by elected that it be derived from the great body of the society, not from an
representatives but individual rights were protected from the tyranny of
inconsiderable proportion, or a favored class of it. It is sufficient for
transient majorities. With its several elitist elements and many
limitations on majority rule, the framers’ Constitution had undemocratic
such government that the person administering it be appointed
strands.
either directly or indirectly, by the people; and that they hold their
The next two centuries, however, saw the further democratization
of the federal Constitution.[8] The Bill of Rights was added to the appointments by either of the tenures just specified.[16] (emphases
American Constitution and since its passage, America had gone
through a series of liberalizing eras that slowly relaxed the restraints supplied)
imposed on the people by the new political order. The changing social The 1973 Constitution adopted verbatim Article II, Section 1 of the
and economic milieu mothered by industrialization required political 1935 Constitution. So did the 1987 Constitution. The delegates to the
democratization.[9] In 1787, property qualifications for voting existed 1986 Constitutional Commission well understood the meaning of a
and suffrage was granted only to white males. At the onset of republican government. They adopted the explanation by Jose P.
Jacksonion democracy in the 1830s, property requirements quickly Laurel in his book, Bread and Freedom, The Essentials of Popular
diminished and virtually became a thing of the past by the time of the Government, viz:
Civil War. In 1870, the Fifteenth Amendment theoretically extended the
franchise to African-Americans, although it took another century of
struggle for the Amendment to become a reality. In 1920, the When we refer to popular government or republican government or
Nineteenth Amendment removed sex as a qualification for voting. The
Progressive Era also saw the Seventeenth Amendment of the representative government, we refer to some system of popular
Constitution to provide for direct election of United States
senators[10] and established procedures for initiative, referendum and representation where the powers of government are entrusted to
recall (otherwise known as direct democracy) in many states. [11] Poll
taxes were abolished as prerequisites for voting in federal elections those representatives chosen directly or indirectly by the people
through the Twenty-Fourth Amendment in 1964. Finally, the voting
age was lowered to eighteen with the ratification of the Twenty-Sixth in their sovereign capacity.[17] (emphasis supplied)
Amendment in 1971.[12] An outstanding feature of the 1987 Constitution is the expansion
of the democratic space giving the people greater power to
exercise their sovereignty. Thus, under the 1987 Constitution, the
people can directly exercise their sovereign authority through the
following modes, namely: (1) elections; (2) plebiscite; (3) initiative; (4)
B. Constitutional History of Democracy recall; and (5) referendum. Through elections, the people choose the
representatives to whom they will entrust the exercise of powers of
government.[18] In a plebiscite, the people ratify any amendment to or
revision of the Constitution and may introduce amendments to the
and Republicanism in the Philippines constitution.[19] Indeed, the Constitution mandates Congress to “provide
for a system of initiative and referendum, and the exceptions
The Malolos Constitution was promulgated on January 21, 1899 by therefrom, whereby the people can directly propose and enact laws or
the short-lived Revolutionary Government headed by Emilio Aguinaldo approve or reject any law or part thereof passed by the Congress or
local legislative body. . .” It also directs Congress to “enact a local In other portions of the Records, Commissioner Nolledo explains the
government code which shall provide for effective mechanisms of significance of the word “democratic”, viz:
recall, initiative, and referendum.”[20] Pursuant to this mandate,
Congress enacted the Local Government Code of 1991 which defines
local initiative as the “legal process whereby the registered voters of a MR. NOLLEDO. I am putting the word “democratic” because of the
local government unit may directly propose, enact, or amend any
ordinance through an election called for the purpose.” Recall is a provisions that we are now adopting which are covering consultations
method of removing a local official from office before the expiration of
his term because of loss of confidence.[21]In a referendum, the people with the people. For example, we have provisions on recall, initiative,
can approve or reject a law or an issue of national
importance.[22] Section 126 of the Local Government Code of 1991 the right of the people even to participate in lawmaking and other
defines a local referendum as “the legal process whereby the
registered voters of the local government units may approve, amend or instances that recognize the validity of interference by the people
reject any ordinance enacted by the sanggunian.”
through people’s organizations . . .[25]
These Constitutional provisions on recall, initiative, and referendum
institutionalized the people’s might made palpable in the 1986 People
Power Revolution.[23] To capture the spirit of People Power and to
make it a principle upon which Philippine society may be founded, the xxx xxx xxx
Constitutional Commission enunciated as a first principle in the
Declaration of Principles and State Policies under Section 1, Article II
of the 1987 Constitution that the Philippines is not only a republican but
also a democratic state. MR. OPLE. The Committee added the word “democratic” to

“republican,” and, therefore, the first sentence states: “The Philippines

The following excerpts from the Records of the Constitutional
Commission show the intent of the Commissioners in emphasizing
is a republican and democratic state.”
“democratic” in Section 1, Article II, in light of the provisions of the
Constitution on initiative, recall, referendum and people’s
organizations:
May I know from the committee the reason for adding the word
MR. SUAREZ. . . . May I call attention to Section 1. I wonder who “democratic” to “republican”? The constitutional framers of the 1935
among the members of the committee would like to clarify this question and 1973 Constitutions were content with “republican.” Was this done
regarding the use of the word “democratic” in addition to the word merely lor the sake of emphasis?
“republican.” Can the honorable members of the committee give us the

reason or reasons for introducing this additional expression? Would MR. NOLLEDO. Madam President, that question has been asked
the committee not be satisfied with the use of the word “republican”? several times, but being the proponent of this amendment, I would like
What prompted it to include the word “democratic”? the Commissioner to know that “democratic” was added because of

the need to emphasize people power and the many provisions in the
xxx xxx xxx Constitution that we have approved related to recall, people’s

organizations, initiative and the like, which recognize the participation

MR. NOLLEDO. Madam President, I think as a lawyer, the of the people in policy-making in certain circumstances.”
Commissioner knows that one of the manifestations of republicanism is

the existence of the Bill of Rights and periodic elections, which already MR. OPLE. I thank the Commissioner. That is a very clear answer and
indicates that we are a democratic state. Therefore, the addition of I think it does meet a need. . .
“democratic” is what we call “pardonable redundancy” the purpose

being to emphasize that our country is republican and democratic at xxx xxx xxx
the same time. . . In the 1935 and 1973 Constitutions, “democratic”

does not appear. I hope the Commissioner has no objection to that MR. NOLLEDO. According to Commissioner Rosario Braid,
word. “democracy” here is understood as participatory

democracy.[26] (emphasis supplied)

The following exchange between Commissioners Sarmiento and
MR. SUAREZ. No, I would not die for that. If it is redundant in Azcuna is of the same import:
character but it is for emphasis of the people’s rights, I would have
MR. SARMIENTO. When we speak of republican democratic state, are
no objection. I am only trying to clarify the matter. [24] (emphasis
we referring to representative democracy?
supplied)
 individual may, in accordance with law, have a voice in the form of his
government and in the choice of the people who will run that
government for him.[37] The U.S. Supreme Court recognized in Yick
MR. AZCUNA. That is right. Wo v. Hopkins[38] that voting is a “fundamental political right, because
[it is] preservative of all rights.” In Wesberry v. Sanders,[39] the U.S.
Supreme Court held that “no right is more precious in a free country
than that of having a voice in the election of those who make the laws,
MR. SARMIENTO. So, why do we not retain the old formulation under under which, as good citizens, we must live. Other rights, even the
most basic, are illusory if the right to vote is undermined.” Voting
the 1973 and 1935 Constitutions which used the words “republican makes government more responsive to community and individual
needs and desires. Especially for those who feel disempowered and
state” because “republican state” would refer to a democratic state marginalized or that government is not responsive to them, meaningful
access to the ballot box can be one of the few counterbalances in their
where people choose their representatives? arsenal.[40]

Thus, elections are substantially regulated for them to be fair and

honest, for order rather than chaos to accompany the democratic
MR. AZCUNA. We wanted to emphasize the participation of the processes.[41] This Court has consistently ruled from as early as the oft-
cited 1914 case of Gardiner v. Romulo[42] that the purpose of election
people in government.
laws is to safeguard the will of the people, the purity of elections being
one of the most important and fundamental requisites of popular
government. We have consistently made it clear that we frown upon
any interpretation of the law or the rules that would hinder in any way
MR. SARMIENTO. But even in the concept “republican state,” we are
not only the free and intelligent casting of the votes in an
election but also the correct ascertainment of the results.[43] To
stressing the participation of the people. . . So the word “republican”
preserve the purity of elections, comprehensive and sometimes
will suffice to cover popular representation. complex election codes are enacted, each provision of which - whether
it governs the registration and qualifications of voters, the selection and
eligibility of candidates, or the voting process itself - inevitably affects
the individual’s right to vote.[44] As the right to vote in a free and
MR. AZCUNA. Yes, the Commissioner is right. However, the unimpaired manner is preservative of other basic civil and political
rights, Chief Justice Warren, speaking for the U.S. Supreme Court
committee felt that in view of the introduction of the aspects of direct in Reynolds v. Sims[45] cautioned that any alleged infringement of
the right of citizens to vote must be carefully and meticulously
democracy such as initiative, referendum or recall, it was necessary to scrutinized. It was to promote free, orderly and honest elections and
to preserve the sanctity of the right to vote that the Commission on
emphasize the democratic portion of republicanism, of representative Elections was created.[46] The 1987 Constitution mandates the
COMELEC to ensure “free, orderly, honest, peaceful, and credible
democracy as well. So, we want to add the word “democratic” to elections.”[47]

emphasize that in this new Constitution there are instances where the

people would act directly, and not through their B. History of Suffrage in the Philippines

representatives.[27] (emphasis supplied) In primitive times, the choice of who will govern the people was not
based on democratic principles. Even then, birth or strength was not
V. Elections and the Right to Vote the only basis for choosing the chief of the tribe. When an old chief has
failed his office or committed wrong or has aged and can no longer
function, the members of the tribe could replace him and choose
another leader.[48] Among the Muslims, a council or ruma
A. Theory bechara chooses the sultan. An old sultan may appoint his successor,
but his decision is not absolute. Among the criteria for choosing a
The electoral process is one of the linchpins of a democratic and sultan were age, blood, wealth, fidelity to Islamic faith and exemplary
republican framework because it is through the act of voting that character or personality.[49] In times of crises, the community may
government by consent is secured.[28] Through the ballot, people choose its leader voluntarily, irrespective of social status. By
express their will on the defining issues of the day and they are able to consensus of the community, a serf or slave may be voted the chief on
choose their leaders[29] in accordance with the fundamental principle of account of his ability.
representative democracy that the people should elect whom they
please to govern them.[30] Voting has an important instrumental value As far back as the Spanish regime, the Filipinos did not have a general
in preserving the viability of constitutional democracy.[31] It has right of suffrage.[50] It was only in the Malolos Constitution of 1899 that
traditionally been taken as a prime indicator of democratic the right of suffrage was recognized;[51] it was a by-product of the
participation.[32] Filipinos’ struggle against the Spanish colonial government and an
offshoot of Western liberal ideas on civil government and individual
The right to vote or of suffrage is “an important political right rights.[52] The life of the Malolos Constitution was, however, cut short
appertaining to citizenship. Each individual qualified to vote is a particle by the onset of the American regime in the Philippines. But the right of
of popular sovereignty.”[33] In People v. Corral,[34] we held that “(t)he suffrage was reiterated in the Philippine Bill of 1902.[53] The first
modern conception of suffrage is that voting is a function of general elections were held in 1907[54] under the first Philippine
government. The right to vote is not a natural right but it is a right Election Law, Aci No. 1582, which took effect on January 15, 1907.
created by law. Suffrage is a privilege granted by the State to such This law was elitist and discriminatory against women. The right of
persons as are most likely to exercise it for the public good.” The suffrage was carried into the Jones Law of 1916.[55] Whereas
existence of the right of suffrage is a threshold for the previously, the right was granted only by the Philippine Legislature and
preservation and enjoyment of all other rights that it ought to be thus subject to its control, the 1935 Constitution elevated suffrage to a
considered as one of the most sacred parts of the constitutional right.[56] It also provided for a plebiscite on the issue of
constitution.[35] In Geronimo v. Ramos, et al.,[36] we held that the right whether the right of suffrage should be extended to women. On April
is among the most important and sacred of the freedoms inherent in a 30, 1937, the plebiscite was held and the people voted affirmatively. In
democratic society and one which must be most vigilantly guarded if a the 1973 Constitution,[57] suffrage was recognized not only as a right,
people desires to maintain through self-government for themselves but was imposed as a duty to broaden the electoral base and make
and their posterity a genuinely functioning democracy in which the democracy a reality through increased popular participation in
government. The voting age was lowered, the literacy requirement supports this proposition. The First Amendment’s jealous protection of
abolished, and absentee voting was legalized. [58] The 1987 free expression is largely based on the ideas that free and open
Constitution likewise enshrines the right of suffrage in Article V, but debate will generate truth and that only an informed electorate
unlike the 1973 Constitution, it is now no longer imposed as a can create an effective democracy.[68]
duty.[59] The 1948 Universal Declaration of Human Rights[60] and the
1976 Covenant on Civil and Political Rights[61] also protect the right of The First Amendment reflects the Framers’ belief that public
suffrage. participation in government is inherently positive. An informed
citizenry is a prerequisite to meaningful participation in
government. Thus, the U.S. Congress embraced this principle more
concretely with the passage of the Freedom of Information Act of 1966
(FO1A).[69]The law enhanced public access to and understanding of
VI. Voter Information: the operation of federal agencies with respect to both the information
held by them and the formulation of public policy.[70] In the leading case
on the FOIA,Environmental Protection Agency v. Mink,[71] Justice
Douglas, in his dissent, emphasized that the philosophy of the statute
Prerequisite to a Meaningful Vole in a Genuinely Free, is the citizens’ right to be informed about “what their government is
up to.”[72] In Department of Air Force v. Rose,[73] the U.S. Supreme
Court acknowledged that the basic purpose of the FOIA is “to open
agency action to the light of public scrutiny. These rulings were
Orderly and Honest Elections in a Working Democracy reiterated in the 1994 case of Department of Defense, et al. v.
Federal Labor Relations Authority, et al.[74] Be that as it may, the
U.S. Supreme Court characterized this freedom of information as a
statutory and not a constitutional right in Houchins v. KQED, Inc., et
A. Democracy, information and discourse on public matters al.,[75] viz: “there is no constitutional right to have access to particular
government information, or to require openness from the bureaucracy.
. . The Constitution itself is neither a Freedom of Information Act nor an
Official Secrets Act.”[76]Neither the courts nor Congress has recognized
1. U.S. jurisdiction
an affirmative constitutional obligation to disclose information
concerning governmental affairs; the U.S. Constitution itself contains
For the right of suffrage to have a value, the electorate must be no language from which the duty could be readily
informed about public matters so that when they speak through the inferred.[77] Nevertheless, the U.S. federal government, the fifty states
ballot, the knowledgeable voice and not the ignorant noise of the and the District of Columbia have shown their commitment to public
majority would prevail.Jefferson admonished Americans to be
access to government-held information. All have statutes that allow
informed rather than enslaved by ignorance, saying that “(i)f a nation
varying degrees of access to government records.[78]
expects to be ignorant and free in a state of civilization, it expects
what never was and never will be.”[62]Jefferson emphasized the
While the right of access to government information or the “right to
importance of discourse in a democracy, viz: know” is characterized as a statutory right, theright to receive
information[79] was first identified by the U.S. Supreme Court as a
constitutional right in the 1936 case of Grosjean v. American Press
In every country where man is free to think and to speak, differences of
Company. [80] The Court also stated that the First Amendment protects
the natural right of members of an organized society, united for their
opinion arise from difference of perception, and the imperfection of
common good, to impart and acquire information about their common
interests. Citing Judge Cooley, the Court held that free and general
reason; but these differences when permitted, as in this happy country,
discussion of public matters is essential to prepare the people for
to purify themselves by discussion, are but as passing clouds an intelligent exercise of their rights as citizens.[81] The Court also
noted that an informed public opinion is the most potent of all restraints
overspreading our land transiently and leaving our horizon more bright upon misgovernment. Many considerVirginia State Board of
Pharmacy v. Virginia Citizens Consumer Council[82] the seminal
and serene.[63] “right to receive” case.[83] In this 1976 decision, the Court struck down a
Other noted political philosophers like John Stuart Mill conceived of Virginia statute forbidding pharmacists from advertising the prices of
the “marketplace of ideas” as a necessary means of testing the validity prescription drugs. Writing for the majority, Justice Blackmun held that
of ideas, viz: the free flow of information about commercial matters was necessary
to ensure informed public decision-making. He reasoned that the
protection of the First Amendment extends not only to the speaker, but
(N)o one’s opinions deserve the name of knowledge, except so far as to the recipient of the communication. Although the case dealt with
commercial speech, the majority opinion made it clear that the
he has either had forced upon him by others, or gone through of constitutional protection for receipt of information would apply
with even more force when more directly related to self-
himself, the same mental process which could have been required of government and public policy.[84]

him in carrying on an active controversy with opponents.[64] In 1982, the U.S. Supreme Court highlighted the connection between
In the same vein, political philosopher Alexander Meiklejohn, in his self-government and the right to receive information in Board of
article “Free Speech Is An Absolute,” stressed that, “(s)elf-government Education v. Pico.[85] This case involved a school board-ordered
can exist only insofar as the voters acquire the intelligence, integrity, removal of books from secondary school libraries after the board
sensitivity, and generous devotion to the general welfare that, in classified the book as “anti-American, anti-Christian, anti-Semitic, and
theory, casting a ballot is assumed to express.”[65] To vote intelligently, just plain filthy”.[86] Justice Brennan, writing for a three-justice plurality,
citizens need information about their government.[66] Even during the emphasized the First Amendment’s role in assuring widespread
diaper days of U.S. democracy, the Framers of the U.S. Constitution dissemination of ideas and information. Citing Griswold v.
postulated that self-governing people should be well-informed about Connecticut,[87] the Court held that “(t)he State may not, consistently
the workings of government to make intelligent political choices. In with the spirit of the First Amendment, contract the spectrum of
discussing the First Amendment, James Madisonsaid: “The right of available knowledge.” The Court noted that “the right to receive
freely examining public characters and measures, and of free ideas is a necessary predicate to the recipient’smeaningful
communication thereon, is the only effectual guardian of every other exercise of his own rights of speech, press, and political
right....”[67] Thus, the United States, a representative democracy, has freedom.” It then cited Madison’s admonition that, “(a) popular
generally subscribed to the notion that public information and Government, without popular information, or the means of
participation are requirements for a representative democracy where acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps
the electorate make informed choices. The First Amendment to the both. Knowledge will forever govern ignorance: And a people who
U.S. Constitution, which establishes freedom of the press and speech mean to be their own Governors, must arm themselves with the
power which knowledge gives.”[88] change through public discussion. In Mills v. State of Alabama,[98] it
ruled that there may be differences about interpretations of the First
The U.S. Supreme Court has reiterated, in various contexts, the idea Amendment, but there is practically universal agreement that a major
that “the Constitution protects the right to receive information and purpose of the Amendment was to protect the free discussion of
ideas.”[89] Kleindienst v. Mandel[90] acknowledged a First Amendment governmental affairs. This of course includes discussions of
right to receive information but deferring to Congress’ plenary power to candidates, structures and forms of government, the manner in
exclude aliens. Lamont v. Postmaster General[91]invalidated a which government is operated or should be operated, all such
statutory requirement that foreign mailings of “communist political matters relating to political processes.[99] Justice William J. Brennan
propaganda” be delivered only upon request by the addressee. Martin summarized the principle succinctly in his opinion for the Court in
v. City of Struthers[92] invalidated a municipal ordinance forbidding Garrison v. Louisiana, viz: “...speech concerning public affairs is more
door-to-door distribution of handbills as violative if the First than self-expression; it is the essence of self-government. (emphasis
Amendment rights of both the recipients and the distributors. [93] supplied)”[100]

Whether the “right to know” is based on a statutory right provided by

the FOIA or a constitutional right covered by the First Amendment, the
underlying premise is that an informed people is necessary for a 2. Philippine jurisdiction
sensible exercise of the freedom of speech, which in turn, is
necessary to a meaningful exercise of the right to vote in a The electorate’s right to information on public matters occupies a
working democracy. In 1927, Justice Louis Brandeis gave the higher legal tier in the Philippines compared to the United
principle behind the First Amendment its classic formulation, viz: States. While the right to information in U.S. jurisdiction is merely a
statutory right, it enjoys constitutional status in Philippine jurisdiction.
The 1987 Constitution not only enlarged the democratic space with
Those who won our independence believed that the final end of the provisions on the electorate’s direct exercise of sovereignty, but also
highlighted the right of the people to information on matters of
state was to make men free to develop their faculties, and that in its public interest as a predicate to good governance and a working
democracy. The Bill of Rights sanctifies the right of the people to
government the deliberative forces should prevail over the information under Section 7, Article III of the 1987 Constitution, viz:
arbitrary. They valued liberty both as an end and as a means. They
Sec. 7. The right of the people to information on matters of public
believed liberty to be the secret of happiness and courage to be the
concern shall be recognized. Access to official records, and to
secret of liberty. They believed that freedom to think as you will and
documents, and papers pertaining to official acts, transactions, or
to speak as you think are means indispensable to the discovery
decisions, as well as to government research data used as basis for
and spread of political truth; that without free speech and assembly
policy development, shall be afforded the citizen, subject to such
discussion would be futile; that with them, discussion affords ordinarily
limitations as may be provided by law. (emphasis supplied)
adequate protection against the dissemination of noxious doctrine; that This provision on the right to information sans the phrase “as well as to
government research data” made its maiden appearance in the Bill of
the greatest menace to freedom is an inert people; that public
Rights of the 1973 Constitution. The original draft of the provision
presented to the 1971 Constitutional Convention merely said that
discussion is a political duty; and that this should be a
access to official records and the right to information “shall be afforded
fundamental principle of the American government. They the citizens as may be provided by law.” Delegate De la Serna pointed
out, however, that the provision did not grant a self-executory right to
recognized the risks to which all human institutions are subject. But citizens. He thus proposed the rewording of the provision to grant the
right but subject to statutory limitations.[101] The 1973 Constitution thus
they knew that order cannot be secured merely through fear of provided in Section 6, Article IV, viz:

punishment for its infraction; that it is hazardous to discourage thought,

Sec. 6. The right of the people to information on matters of public
hope and imagination; that fear breeds repression; that repression
concern shall be recognized. Access to official records, and to
breeds hate; that hate menaces stable government; that the path of
documents and papers pertaining to official acts, transactions, or
safety lies in the opportunity to discuss freely supposed
decisions, shall be afforded the citizen subject to such limitations as
grievances and proposed remedies; and that the fitting remedy
may be provided by law.
for evil counsels is good ones. Believing in the power of reason The change in phraseology was important as in the pre-1973 case
of Subido v. Ozaeta,[102] this Court held that freedom of information or
as applied through public discussion, they eschewed silence freedom to obtain information for publication is not guaranteed by the
constitution. In that case, the issue before the Court was whether the
coerced by law-the argument of force in its worst form. Recognizing press and the public had a constitutional right to demand the
examination of the public land records. The Court ruled in the negative
the occasional tyrannies of governing majorities, they amended the but held that the press had a statutory right to examine the records of
the Register of Deeds because the interest of the press was real and
Constitution so that free speech and assembly should be adequate.

guaranteed.[94] As worded in the 1973 and 1987 Constitution, the right to information is
The U.S. Supreme Court also held in Stromberg v. California[95] that self-executory. It is a public right where the real parties in interest are
the First Amendment provides “the opportunity for free political the people. Thus, every citizen has “standing” to challenge any
discussion to the end that government may be responsive to the will of violation of the right and may seek its enforcement.[103] The right to
the people and that changes may be obtained by lawful information, free speech and press and of assembly and petition and
means...”[96] The Amendment is “the repository of...self-governing association which are all enshrined in the Bill of Rights are cognate
powers”[97] as it provides a peaceful means for political and social rights for they all commonly rest on the premise that ultimately it is an
informed and critical public opinion which alone can protect and
uphold the values of democratic government.[104] case, corresponding to this right of the people is precisely the

In “splendid symmetry” [105]

with the right to information in the Bill of duty of the State to make available whatever information there
Rights are other provisions of the 1987 Constitution highlighting the
principle of transparency in government. Included among the State may be needed that is of public concern. Section 6 is very broadly
Policies under Article II of the 1987 Constitution is the following
provision, viz: stated so that it covers anything that is of public concern. It would

seem also that the advantage of Section 6 is that it challenges citizens

Sec. 28. Subject to reasonable conditions prescribed by law, the State
to be active in seeking information rather than being dependent on
adopts and implements a policy of full public disclosure of all its
whatever the State may release to them.
transactions involving public interest. (emphasis supplied)
Related to the above provision is Section 21 of Article XI, National
Economy and Patrimony, which provides, viz:
xxx xxx xxx

Sec. 21. Foreign loans may be incurred in accordance with law and the

regulation of the monetary authority.Information on foreign laws MR. RAMA. There is a difference between the provisions under the

obtained or guaranteed by the Government shall be made Declaration of Principles and the provision under the Bill of Rights. The

available to the public. (emphasis supplied) basic difference is that the Bill of Rights contemplates coalition (sic)
The indispensability of access to information involving public interest
and government transparency in Philippine democracy is clearly (collision?) between the rights of the citizens and the State. Therefore,
recognized in the deliberations of the 1987 Constitutional
Commission, viz: it is the right of the citizen to demand information. While under the

Declaration of Principles, the State must have a policy, even without

MR. OPLE. Mr. Presiding Officer, this amendment is proposed jointly
being demanded, by the citizens, without being sued by the
by Commissioners Ople, Rama, Trenas, Romulo, Regalado and
citizen, to disclose information and transactions. So there is a
Rosario Braid. It reads as follows: “SECTION 24. THE STATE SHALL
basic difference here because of the very nature of the Bill of Rights
ADOPT AND IMPLEMENT A POLICY OF FULL PUBLIC
and the nature of the Declaration of Principles.[107](emphases supplied)
DISCLOSURE OF ALL ITS TRANSACTIONS SUBJECT TO The importance of information in a democratic framework is also
recognized in Section 24, Article II, viz:
REASONABLE SAFEGUARDS ON NATIONAL INTEREST AS MAY

BE PROVIDED BY LAW.” Sec. 24. The State recognizes the vital role of communication

and information in nation-building. (emphasis supplied).

Section 10 of Article XVI, General Provisions is a related provision. It
xxx xxx xxx states, viz:

Sec. 10. The State shall provide the policy environment for the full
In the United States, President Aquino has made much of the point
development of Filipino capability and theemergence of
that the government should be open and accessible to the public. This
communication structures suitable to the needs and aspirations
amendment is by way of providing an umbrella statement in the
of the nation and the balanced flow of information into, out of, and
Declaration of Principles for all these safeguards for an open and
across the country, in accordance with a policy that respects the
honest government distributed all over the draft Constitution. It
freedom of speech and of the press. (emphasis supplied)
establishes a concrete, ethical principle for the conduct of public
The sponsorship speech of Commissioner Braid expounds on the
rationale of these provisions on information and communication, viz:
affairs in a genuinely open democracy, with the people’s right to

know as the centerpiece.[106] (emphasis supplied)

MS. ROSARIO BRAID. We cannot talk of the functions of
Commissioners Bernas and Rama made the following observations on
the principle of government transparency and the public’s right to
communication unless we have a philosophy of communication, unless
information:
we have a vision of society. Here we have a preferred vision where
FR. BERNAS. Just one observation, Mr. Presiding Officer. I want to opportunities are provided for participation by as many people, where
comment that Section 6 (referring to Section 7, Article III on the right to there is unity even in cultural diversity, for there is freedom to have
information) talks about the right of the people to information, and options in a pluralistic society. Communication and information
corresponding to every right is a duty. In this particular provide the leverage for power. They enable the people to act, to
make decisions, to share consciousness in the mobilization of the open in continuing dialogue or process of communication between the
[108]
nation. (emphasis supplied) government, and the people. It is in the interest of the State that the
In Valmonte v. Belmonte,[109] the Court had occasion to rule on the
right to information of a lawyer, members of the media and plain channels for free political discussion be maintained to the end that the
citizens who sought from the Government Service Insurance System a
“list of the names of the Batasang Pambansa members belonging to government may perceive and be responsive to the people’s will. Yet,
the UNIDO and PDP-Laban who were able to secure clean loans
immediately before the February 7 election thru the this open dialogue can be effective only to the extent that the
intercession/marginal note of the then First Lady Imelda Marcos.”[110] In
upholding the petitioners’ right, the Court explained the rationale of the citizenry is informed and thus able to formulate its will
right to information in a democracy, viz:
intelligently. Only when the participants in a discussion are aware

This is not the first time that the Court is confronted wth a controversy of the issues and have access to information relating thereto can

directly involving the constitutional right to information. In Tañada v. such bear fruit.

Tuvera, G.R. No. 63915, April 2 , 1985, 136 SCRA 27 (involving the

need for adequate notice to the public of the various laws which The right to information is an essential premise of a meaningful right to

are to regulate the actions and conduct of citizens) and in the speech and expression. But this is not to say that the right to

recent case of Legaspi v. Civil Service Commission, G.R. No. information is merely an adjunct of and therefore restricted in

72119, May 29, 1987, 150 SCRA 530 (involving the concern of application by the exercise of the freedoms of speech and of the press.

citizens to ensure that government positions requiring civil Far from it. The right to information goes hand-in-hand with the

service eligibility are occupied only by persons who are eligibles), constitutional policies of full public disclosure (footnote omitted)

the Court upheld the people’s constitutional right to be informed and honesty in the public service (footnote omitted). It is meant to

of matters of public interest and ordered the government agencies enhance the widening role of the citizenry in governmental

concerned to act as prayed for by the petitioners. decision-making as well as in checking abuse in
[111]
government. (emphases supplied)
The Court made a similar ruling in Gonzales v. Narvasa[112] which
xxx xxx xxx involved the petitioner’s request addressed to respondent Executive
Secretary Ronaldo B. Zamora for the “names of the executive officials
holding multiple positions in government, copies of their appointments,
and a list of the recipients of luxury vehicles seized by the Bureau of
An informed citizenry with access to the diverse currents in Customs and turned over to Malacañang.”[113] The respondent was
ordered to furnish the petitioner the information requested. The Court
political, moral and artistic thought and data relative to them, and held, viz:

the free exchange of ideas and discussion of issues thereon is

Under both the 1973 (footnote omitted) and 1987 Constitution, this (the
vital to the democratic government envisioned under our
right to information) is a self-executory provision which can be invoked
Constitution. The cornerstone of this republican system of
by any citizen before the courts...
government is delegation of power by the people to the State. In this

system, governmental agencies and institutions operate within the

Elaborating on the significance of the right to information, the Court
limits of the authority conferred by the people. Denied access to
said in Baldoza v. Dimaano (71 SCRA 14 [1976]...) that “[t]he
information on the inner workings of government, the citizenry can
incorporation of this right in the Constitution is a recognition of the
become prey to the whims and caprices of those to whom the power
fundamental role of free exchange of information in a democracy.
had been delegated...
There can be no realistic perception by the public of the nation’s

problems, nor a meaningful democratic decision-making if they

xxx xxx xxx
are denied access to information of general interest. Information

is needed to enable the members of society to cope with the

...The right of access to information ensures that these freedoms are
exigencies of the times.”[114] (emphases supplied)
not rendered nugatory by the government’s monopolizing pertinent The importance of an informed citizenry in a working democracy was
again emphasized in Chavez v. Public Estates Authority and Amari
information. For an essential element of these freedoms is to keep Coastal Bay Development Corporation[115] where we held, viz:
 September 11, 1944 election, there was no provision made for the
The State policy of full transparency in all transactions involving public selection of a County Treasurer to fill the vacancy for the unexpired
term. The name of the office did not appear on the ballot. Petitioner
interest reinforces the people’s right to information on matters of public Duquette, however, claims that he was elected County Treasurer in the
special election because in the City of Biddeford, the largest city in
concern. York County, 1,309 voters either wrote in the title of the office and his
name thereunder, or used a “sticker” of the same import and voted for
him. At the September 11, 1944 biennial election, there were
approximately 22,000 ballots cast, but none included the name of the
xxx xxx xxx petitioner except for the 1,309 in Biddeford. In holding that the special
election was void, the Maine Supreme Judicial Court made the
following pronouncements, the first paragraph of which was cited by
These twin provisions (on right to information under Section 7, Article the ponencia in the case at bar,viz:

III and the policy of full public disclosure under Section 28, Article II) of
Although there is not unanimity of judicial opinion as to the requirement
the Constitution seek to promote transparency in policy-making and in
of official notice, if the vacancy is to be filled at the time of a general
the operations of the government, as well as provide the people
election, yet it appears to be almost universally held that if the
sufficient information to exercise effectively other constitutional rights.
great body of the electors are misled by the want of such notice
These twin provisions are essential to the exercise of freedom of
and are instead led to believe that no such election is in fact to be
expression. If the government does not disclose its official acts,
held, an attempted choice by a small percentage of the voters is
transactions and decisions to citizens, whatever citizens may say,
void. Wilson v. Brown, 109 Ky 229, 139 Ky 397, 58 SW 595; Wooton
even if expressed without any restraint, will be speculative and
v. Wheeler, 149 Ky 62, 147 SW 914; Secord v. Foutch, 44 Mich 89, 6
amount to nothing. These twin provisions are also essential to hold
NW 110; Bolton v. Good, 41 NJL 296 (other citations omitted).
public officials “at all times x x x accountable to the people,” (footnote

omitted) for unless citizens have the proper information, they cannot
Notice to the electors that a vacancy exists and that an election is
hold public officials accountable for anything. Armed with the right
to be held to fill it for the unexpired term, is essential to give
information, citizens can participate in public discussions leading
validity to the meeting of an electoral body to discharge that
to the formulation of government policies and their effective
particular duty, and is also an essential and characteristic
implementation. An informed citizenry is essential to the
element of a popular election. Public policy requires that it should be
existence and proper functioning of any democracy.[116] (emphases
given in such form as to reach the body of the electorate. Here there
supplied)
had been no nominations to fill the vacancy, either by the holding
B. Elections and the voters’ right to information on the elections
of a special primary election, or by nomination by county political

conventions or party committees. The designation of the office to

1. U.S. Jurisdiction
be filled was not upon the official ballot. As before noted, except for
An informed citizenry’s opinions and preferences have the most impact
and are most clearly expressed in elections which lie at the foundation the vacancy, it would have no place there, as the term of office of the
of a representative democracy. The electorate’s true will, however,
can only be intelligently expressed if they are well informed about the incumbent, if living, would not expire until January 1,
time, place, manner of conduct of the elections and the candidates
therein. Without this information, democracy will be a mere shibboleth 1947.[119] (emphases supplied)
for voters will not be able to express their true will through the ballot. As early as the 1897 case of People ex rel. Dix v.
Kerwin,[120] the requirement of notice in an election has been
In Duquette v. Merrill,[117] which the ponencia cites by reference to 26 recognized, viz:
American Jurisprudence 2d §292,[118] a vacancy in the office of Country
Treasurer in York County occurred on July 24, 1944 upon the death of
the incumbent Maynard A. Hobbs. The vacancy was filled in ... We are not prepared to hold that this statute (requiring the giving of
accordance with the law providing that the governor may appoint a
resident of the county who shall be treasurer until the 1st day of notice) is, under all circumstances and at all times, so far mandatory
January following the next biennial election, at which said election a
treasurer shall be chosen for the remainder of the term, if any. The that a failure to observe its requirements will defeat an election
next biennial election was held on September 11, 1944. In the June
1944 primary election (prior to the death of Hobbs) where nominations otherwise regularly holden. There are many cases which hold that
of candidates for the upcoming biennial elections were made, there
was no nomination for the office of County Treasurer as Hobbes’ term elections regularly held and persons regularly voted for on nominations
was yet to expire on January 1947. Neither was a special primary
election ordered by proclamation of the Governor after Hobbes’ death. made where there has been failure to observe some specific statutory
Nor were other legal modes of nominating candidates such as through
requirement will not thereby be necessarily defeated and the direction
nomination of a political party, convention of delegates or appropriate
caucus resorted to. Consequently, in the official ballot of the
may, because of the excusing circumstances, be held directory rather of the votes cast, such election is valid, even though no notice

than mandatory. We do not believe the circumstances of the present thereof was published in a manner provided by the statute. It

case, as they are now exhibited, bring it all within this rule. The theory would be hypertechnical and unreasonable to hold that a failure to

of elections is that there shall be due notice given to the voters, comply literally with the statute in such case would avoid the

and that they must be advised either by a direct notice published election.[123] (emphasis supplied)
In Duquette, Kerwin and Griffith, as in a great majority of cases on
by the clerk, as provided by statute, or by proceedings taken by the state level, the mere fact that the election to fill a vacancy
occasioned by death, resignation, removal, or the like is held at the
the voters and the people generally in such a way as that it may time of a general election in accordance with a constitutional or
statutory provision, is not regarded as sufficient in itself to validate
be fairly inferred that it was generally and thoroughly well the election if no notice of the election was given; it has been held
that in such a case, it must be shown that a sufficient part of the
understood that a particular office was to be filled at the election, electors have actual notice that the vacancy is to be filled. The
fact that a great percentage of voters cast their votes despite the
so that the voters should act understandingly and intelligently in failure of giving proper notice of the elections appears to be the
most decisive single factor to hold that sufficient actual notice
casting their ballots. was given.[124] These doctrines were reiterated in Lisle, et al. v. C.L.
Schooler[125] where it was held that mere allegation that “many” voters
were informed that a special election to fill a vacancy was being held
was unsatisfactory proof of sufficient notice.
xxx xxx xxx

Since there was no notice published according to the statute, we may 2. Philippine jurisdiction
not assume that the nomination was regularly made, or that the voters In our jurisdiction, it is also the rule that the exercise of the right of
suffrage should be an enlightened one, hence, based on relevant facts,
were duly notified that the office was to be filled at that general data and information. It is for this reason that the choice of
representatives in a democracy cannot be based on lottery or any form
election, nine days afterwards. It has been generally held that some
of chance. The choice must be based on enlightened judgment for
democracy cannot endure the rule and reign of ignorance. This
notice, regular in its form, and pursuant to the requirements of
principle was stressed by the Court in Tolentino v. Commission on
Elections.[126] The issue before the Court was whether the
law, must be given as a safeguard to popular elections, that the
Constitutional Convention of 1971 had the power to call for a plebiscite
people may be informed for what officers they are to vote. Of for the ratification by the people of a partial constitutional amendment.
The amendment was the proposal to lower the voting age to 18 but
course, it might easily be true, as has already been suggested, with the caveat that “(t)his partial amendment, which refers only to age
qualification for the exercise of suffrage shall be without prejudice to
that, if nominations had been made for an office, certificates other amendments that will be proposed in the future by the 1971
Constitutional Convention on other portions of the amended Section or
regularly filed, and tickets regularly printed, even though the clerk on other portions of the entire Constitution.” The Court ruled in the
negative, emphasizing the necessity for the voter to be afforded
had failed to publish his notice, there would be no presumption sufficient time and information to appraise the amendment, viz:

that the body of the voters were uninformed as to their rights and
. . .No one knows what changes in the fundamental principles of the
as to the positions which were to be filled. People v. Porter, 6 Cal.
constitution the Convention will be minded to approve. To be more
26; Secord v. Foutch, 44 Mich 89, 6 N.W. 110; Adsit v. Osmun, 84
specific, we do not have any means of foreseeing whether the right to
Mich. 420, 48 N.W. 31; Allen v. Glynn, 17 Colo. 338, 29 Pac. 670;
vote would be of any significant value at all. Who can say whether or
Stephens v. People, 89 111. 337.[121] (emphases supplied)
Similarly, in Griffith v. Mercer County Court, et al.,[122] it was not later on the Convention may decide to provide for varying types of
held, viz:
voters for each level of the political units it may divide the country into.

There is a clear distinction between the case of a vacancy which is to The root of the difficulty in other words, lies in that the Convention is

be filled at a special election to be held at a time and place to be precisely on the verge of introducing substantial changes, if not radical

appointed by some officer or tribunal, authorized by statute to call it, ones, in almost every part and aspect of the existing social and political

and a case where the statute itself provides for filling a vacancy at order enshrined in the present Constitution. How can a voter in the

the next general election after it occurs. In such case nearly all proposed plebiscite intelligently determine the effect of the

the authorities hold that if the body of electors do in fact know the reduction of the voting age upon the different institutions which

vacancy exists, and candidates are regularly nominated by the the Convention may establish and of which presently he is not

various political parties to fill it, and the candidates receive most given any idea?
 the exercise of suffrage. It is for this obvious reason that minors and
the insane are not allowed to vote. Likewise, the literacy test for the
right to vote was abolished because as explained by the Committee on
We are certain no one can deny that in order that a plebiscite for Suffrage and Electoral Reforms of the 1971 Constitutional Convention,
“the requirement to read and write was written into our constitution at a
the ratification of an amendment to the Constitution may be time when the only medium of information was the printed word and
even the public meetings were not as large and successful because of
validly held, it must provide the voter not only sufficient time but the absence of amplifying equipment. It is a fact that today the vast
majority of the population learn about national matters much more from
ample basis for an intelligent appraisal of the nature of the the audio-visual media, namely, radio and television, and public
meetings have become much more effective since the advent of
amendment per se as well as its relation to the other parts of the amplifying equipment.” Again, the necessity of information relevant to
an election is highlighted. Similarly, in the 1986 Constitutional
Constitution with which it has to form a harmonious whole. In the Commission, Commissioner Bernas, in justifying enfranchisement of
the illiterates, spoke of their access to information relevant to
present state of things, where the Convention has hardly started elections, viz:
considering the merits of hundreds, if not thousands, of proposals to
If we look at...the communication situation in the Philippines now, the
amend the existing Constitution, to present to the people any single
means of communication that has the farthest reach is AM radio.
proposal or a few of them cannot comply with this
People get their information not from reading newspapers but from AM
requirement.[127] (emphasis supplied)
The need for the voter to be informed about matters which have a radio - farmers while plowing, and vendors while selling things listen to
bearing on his vote was again emphasized by the Court in UNIDO v.
Commission on Elections.[128] This case involved the amendments to the radio. Without knowing how to read and write, they are adequately
the 1973 Constitution proposed by the Batasang Pambansa in 1981.
The Court reiterated that the more people are adequately informed informed about many things happening in the country.[131]
about the proposed amendments, their exact meaning, Several election cases, albeit not involving an issue similar to the case
implications and nuances, the better. We held, viz: at bar, affirm the necessity of an informed electorate in holding
free, intelligent and clean elections. In Blo Umpar Adiong v.
Commission on Elections[132]where this Court nullified a portion of a
To begin with, we cannot agree with the restrictive literal interpretation COMELEC Resolution prohibiting the posting of candidates’ decals
and stickers on “mobile” places and limiting their location to authorized
the Solicitor General would want to give to the “free, orderly and posting areas, we held, viz:
honest elections” clause of Section 5, Article X1I-C above-quoted.
We have adopted the principle that debate on public issues should be
Government Counsel posits that the said clause refers exclusively to
uninhibited, robust, and wide open and that it may well include
the manner in which the elections are conducted, that is to say, with
vehement, caustic and sometimes unpleasantly sharp attacks on
the manner in which the voters are supposed to be allowed to vote.
government and public officials. (New York Times Co. v. Sullivan, 376
Perhaps, such a theory may hold insofar as ordinary elections of
U.S. 254, 11 L.Ed. 686 [1964]...) Too many restrictions will deny to
officials are concerned. But the Court views the provision as applicable
people the robust, uninhibited, and wide open debate, the
also to plebiscites, particularly one relative to constitutional
generating of interest essential if our elections will truly be free,
amendments. Be it borne in mind that it has been one of the most
clean and honest.
steadfast rulings of this Court in connection with such plebiscites

that it is indispensable that they be properly characterized to be

We have also ruled that the preferred freedom of expression calls all
fair submission - by which is meant that the voters must of
the more for the utmost respect when what may be curtailed is
necessity have had adequate opportunity, in the light of
the dissemination of information to make more meaningful the
conventional wisdom, to cast their votes with sufficient
equally vital right of suffrage. (Mutuc v. Commission on Elections,
understanding of what they are voting on. We are of the firm
36 SCRA 228 [1970]).
conviction that the charter’s reference to honest elections connotes fair

submission in a plebiscite. (emphasis supplied)

Similarly, the Court ruled in Sanidad v. COMELEC[129] that plebiscite xxx xxx xxx
issues are matters of public concern and importance. The people’s
right to be informed and to be able to freely and intelligently make a
decision would be better served by access to an unabridged
discussion of the issues, including the forum. When faced with border line situations where freedom to speak by a
It cannot be overemphasized that an informed electorate is candidate or party and freedom to know on the part of the electorate
necessary for a truly free, fair and intelligent election. The voting
age was lowered from 21 years to 18 years because the youth of 18 to are invoked against actions intended for maintaining clean and free
21 years did not differ in political maturity,[130] implying that political
maturity or the capacity to discern political information is necessary for elections, the police, local officials and COMELEC should lean in favor
 of Congressmen should be by district or province also evince a clear
of freedom. For in the ultimate analysis, the freedom of the citizen and concern for intelligent voting, viz:

the State’s power to regulate are not antagonistic. There can be no

SR. TAN. Mr. Presiding Officer, I think one of the drawbacks of our
free and honest elections if in the efforts to maintain them, the
political system, especially in the campaign, is that many of us vote by
freedom to speak and the right to know are unduly curtailed.
personality rather than by issue. So I am inclined to believe that in the

xxx xxx xxx elections by district, that would be lessened because we get to know

the persons running more intimately. So we know their motivation, their

...we have to consider the fact that in the posting of decals and stickers excesses, their weaknesses and there would be less chance for the

on cars and other moving vehicles, the candidate needs the consent of people to vote by personality. I was wondering whether the

the owner of the vehicle. In such a case, the prohibition would not only Commission shares the same observation.

deprive the owner who consents to such posting of the decals and

stickers the use of his property but more important, in the process, it MR. DAVIDE. Mr. Presiding Officer, if it would be by province, the vote

would deprive the citizen of his right to free speech and information: would no longer be personalities but more on issues, because the

Freedom to distribute information to every citizen wherever he relationship is not really very personal. Whereas, if it would be by

desires to receive it is so clearly vital to the preservation of a free district, the vote on personality would be most impressive and

society that, putting aside reasonable police and health regulations of dominant.

time and manner of distribution, it must be fully preserved. (Martin v.

City of Struthers, Ohio, 319 U.S. 141; 87 L. ed. 1313 [1943]). [133] SR. TAN. I cannot quite believe that. It would be like a superstar
To facilitate the people’s right to information on election matters, this
Court, in Telecommunications and Broadcast Attorneys of the running around.
Philippines, Inc., et al. v. COMELEC[134] upheld the validity of
COMELEC’s procurement of print space and airtime for allocation to
candidates, viz:
MR. DAVIDE. For instance, we have a district consisting of two

With the prohibition on media advertising by candidates themselves, municipalities. The vote would be more on personalities. It is a

the COMELEC Time and COMELEC Space are about the only means question of attachment; you are the godson or the sponsor of a

through which candidates can advertise their qualifications and baptism, like that. But if you will be voted by province, it’s your merit

programs of government. More than merely depriving candidates of that will be counted by all others outside your own area. In short, the

time for their ads, the failure of broadcast stations to provide more capable you are, the more chance you have of winning

airtime unless paid by the government would clearly deprive the provincewide.[136]
Several provisions of our election laws also manifest a clear
people of their right to know. Art. III, § 7 of the Constitution intent to facilitate the voters’ acquisition of information pertaining
to elections to the end that their vote would truly reflect their
provides that ‘the right of the people to information on matters of will. Section 52(j) of Article VII of B.P. Blg. 881 or the Omnibus
Election Code gives the COMELEC the following power and duty:
public concern shall be recognized...’[135] (emphasis supplied)
The importance of the people’s acquisition of information can be
gleaned from several provisions of the Constitution under Article (j) Carry out a continuing and systematic campaign through
IX (C), The Commission on Elections. Section 4 provides that the
COMELEC is given the power to “supervise or regulate the enjoyment newspapers of general circulation, radios and other media forms
or utilization of all franchises or permits for the operation of
transportation and other public utilities, media of communication or to educate the public and fully inform the electorate about
information, all grants, special privileges or concession granted by the
election laws, procedures, decisions, and other matters relative to
Government... Such supervision or regulation shall aim to ensure equal
opportunity, time, and space and the right to reply, including
the work and duties of the Commission and the necessity of clean,
reasonable, equal rates therefor, for public information campaigns and
forums among candidates in connection with the objective of holding
free, orderly and honest electoral processes. (Sec. 185(k), 1978 EC)
free, orderly, honest, peaceful and credible elections. Section 6
provides that, “(a) free and open party system shall be allowed to
evolve according to the free choice of the people”. Section 2(5) of the
same article requires political parties, organizations and coalitions to (k) Enlist non-partisan groups or organizations of citizens from the
present their platform or program of government before these can be
registered. In the robust and wide open debate of the electorate, these civic, youth, professional, educational, business or labor sectors known
programs of government are important matters for discussion.
for their probity, impartiality and integrity...Such groups or
The deliberations of the Constitutional Commission on whether voting
organizations...shall perform the following specific functions and duties: employment of press, radio and television facilities insofar as the

A. Before Election Day: placement of political advertisements is concerned to ensure that

1. Undertake an information campaign on salient features of this candidates are given equal opportunities under equal circumstances to

Code and help in the dissemination of the orders, decisions make known their qualifications and their stand on public

and resolutions of the Commission relative to the forthcoming issueswithin the limits set forth in the Omnibus Election Code and

election. (emphasis supplied) Republic Act No. 7166 on election spending. (emphasis supplied)
Section 87 of Article X of B.P. Blg. 881 also provides, viz: The Omnibus Election Code also provides for procedures and
requirements that make the election process clear and orderly to avoid
voter confusion. Article IX of the Code provides, viz:
Section 87. xxx

Section 73. Certificate of candidacy.- No person shall be eligible for

Public Forum. - The Commission shall encourage non-political, non- any elective public office unless he files a sworn certificate of

partisan private or civic organizations to initiate and hold in every city candidacy within the period fixed herein.

and municipality, public for at which all registered candidates for the

same office may simultaneously and personally participate to xxx xxx xxx

present, explain, and/or debate on their campaign platforms and

programs and other like issues... (emphasis supplied) No person shall be eligible for more than one office to be filled in
Section 93 of the same Article provides, viz:
the same election, and if he files his certificate of candidacy for more

Section 93. Comelec information bulletin. - The Commission shall than one office, he shall not be eligible for any of them...

cause the printing, and supervise the dissemination of bulletins to be

known as “Comelec Bulletin” which shall be of such size as to xxx xxx xxx

adequatelycontain the picture, bio-data and program of

government of every candidate. Said bulletin shall be Certificates of Candidacy; Certified List of Candidates. -...

disseminated to the voters or displayed in such places as to give

due prominence thereto. (emphasis supplied) ...the Commission shall cause to be printed certified lists of
Of the same import is Section 25 of R.A. No. 8436, “An Act Authorizing
the Commission on Elections to Use an Automated Election System in candidates containing the names of all registered candidates for
the May 11, 1998 Elections and Subsequent Electoral Exercises”
which provides,viz: each office to be voted for in each province, city or municipality

immediately followed by the nickname or stage name of each

Section 25. Voters’ Education. - The Commission together with and in
candidate duly registered in his certificate of candidacy and his political
support of accredited citizens’ arms shall cany out a continuing and
affiliation, if any. Said list shall be posted inside each voting booth
systematic campaign though newspapers of general circulation, radio
during the voting period.
and other media forms, as well as through seminars, symposia, fora

and other nontraditional means to educate the public and fully

xxx xxx xxx
inform the electorate about the automated election system and

inculcate values on honest, peaceful and orderly elections. (emphasis

The names of all registered candidates immediately followed by the
supplied)
Similarly, R.A. No. 9006, “An Act to Enhance the Holding of Free, nickname or stage name shall also beprinted in the election returns
Orderly, Honest, Peaceful and Credible Elections through Fair Election
Practices,” approved a few months before the May 2001 elections or and tally sheets (R.A. No. 6646, Sec. 4)
on February 12, 2001 provides in Section 6.4, viz:

Sec. 6.4. xxx xxx xxx Section. 74. Contents of certificate of candidacy. The certificate of

candidacy shall state that the person filing it is announcing his

In all instances, the COMELEC shall supervise the use and

 elections was set on May 27, 1995 but the Board of Election Inspectors
candidacy for the office stated therein and that he is eligible for said failed to report for duty due to the threats of violence. The Monitoring
Supervising Team of the COMELEC reset the special elections to May
office;... 29, 1995 in a school 15 kilometers away from the designated polling
Article XVI, Section 181, also provides, viz: places. In ruling that the May 29 special elections was invalid, the
Court ruled, viz:

Section 181. Official ballots. -

We cannot agree with the COMELEC that petitioner, his followers or

the constituents must be charged with notice of the special elections to

xxx xxx xxx
be held because of the failure of the two (2) previous elections. To

require the voters to come to the polls on such short notice was highly
(b) The official ballot shall also contain the names of all the officers to
impracticable. In a place marred by violence, it was necessary for the
be voted for in the election, allowingopposite the name of each
voters to be given sufficient time to be notified of the changes and
office, sufficient space or spaces with horizontal lines where the
prepare themselves for the eventuality.
voter may write the name or names of individual candidates voted

for by him.
In the case of special elections, the need for notice and It is essential to the validity of the election that the voters have
information is unmistakable under Section 7 of the Omnibus Election
Code of the Philippines, as amended by R.A. No. 7166, which notice in some form, either actual or constructive of the time,
provides, viz:
place and purpose thereof. (Furste v. Gray, 240 Ky 604, 42 SW 2d

Sec. 7. Call for special election. - In case a permanent vacancy shall 889; State ex. rel. Stipp v. Colliver (MO) 243 SW 2d 344.) The time for

occur in the Senate or House of Representatives at least one (1) year holding it must be authoritatively designated in advance. The

before the expiration of the term, the Commission shall call and hold a requirement of notice even becomes stricter in cases of special

special election to fill the vacancy not earlier than sixty (60) days nor elections where it was called by some authority after the happening of

longer than ninety (90) after the occurrence of the vacancy. However, a condition precedent, or at least there must be a substantial

in case of such vacancy in the Senate, the special election shall be compliance therewith so that it may fairly and reasonably be said that

held simultaneously with the succeeding regular election. (R.A. No. the purpose of the statute has been carried into effect. (State ex. rel.

7166, Sec. 4) Stipp v. Colliver, supra). The sufficiency of notice is determined on

whether the voters generally have knowledge of the time, place

The postponement, declaration of failure of election and the calling of and purpose of the elections so as to give them full opportunity to

special elections as provided in Sections 5, 6, and 7 of the Omnibus attend the polls and express their will or on the other hand,

Election Code shall be decided by the Commission sitting en banc by a whether the omission resulted in depriving a sufficient number of

majority vote of its members. The causes for the declaration of a failure the qualified electors of the opportunity of exercising their

of election may occur before or after the casting of votes or on the day franchise so as to change the result of the election. (Housing

of the election. (R.A. No. 7166, Sec. 4) Authority of County of Kings v. Peden, 212 Cal App 2d 276, 28 Cal

Rptr, other citations omitted)

The Commission shall send sufficient copies of its resolution for

xxx xxx xxx
the holding of the election to its provincial election supervisors

and election registrars for dissemination, who shall post copies

...even in highly urbanized areas, the dissemination of notices poses to
thereof in at least three conspicuous places preferably where
be a problem. In the absence of proof that actual notice of the
public meetings are held in each city or municipality
special elections has reached a great number of voters, we are
affected. (1978 EC, Sec. 8) (emphasis supplied)
In Hassan v. COMELEC, et al.,[137] we ruled that constituents could constrained to consider the May 29 elections as
not be charged with notice of a second special elections held only two
days after the failure of the special election. This case involved the invalid...(emphases supplied)
May 8, 1995 regular local elections in Madalum, Lanao del Sur. Due to Although this case did not involve a special election held
the threats of violence and terrorism in the area, there was a failure of simultaneously with a general election by mandate of law as in the
election in six out of twenty-four precincts in Madalum. A special case bar, the doctrine that can be derived from this case is that the
electorate must be informed of the special election as proved by official
or actual notice. The ponencia justifies its position on the lack of call or notice of the
time and place of the special election by holding that the law charges
voters with knowledge of R.A. No. 7166 which provides that in case of
a vacancy in the Senate, the special election to fill such vacancy shall
be held simultaneously with the next succeeding election, that is, the
VII. Application of the Principles of Democracy, Republicanism May 14, 2001 election. The ponencia’s argument is that the provisions
of R.A. No. 7166 stating that the special election would be held
simultaneously with the regular election operated as a call for the
election so that the absence of a call by the COMELEC did not taint
Freedom of Information and Discourse to the Case at Bar the validity of the special election. With due respect, this is not the
intention of R.A. No. 7166 for despite its paragraph 1, Section 7 that “in
The 1987 Constitution, with its declaration that the Philippines is not case of such vacancy in the Senate, the special election shall be held
only a republican but also a democratic state, and its various simultaneously with the succeeding regular election”, the law
provisions broadening the space for direct democracy unmistakably nevertheless required in paragraph 3 of the same section that “(t)he
show the framers’ intent to give the Filipino people a greater say in Commission shall send sufficient copies of its resolution for the
government. The heart of democracy lies in the majoritarian rule but holding of the election to its provincial election supervisors and
the majoritarian rule is not a mere game of dominant numbers. The election registrars for dissemination, who shall post copies
majority can rule and rule effectively only if its judgment is an informed thereof in at least three conspicuous places preferably where
one. With an informed electorate, a healthy collision of ideas is public meetings are held in each city or municipality affected.”
assured that will generate sparks to fan the flames of democracy. Rule
by the ignorant majority is a sham democracy - a mobocracy -for The Duquette case cited by the ponencia does not lend support to its
in the words of Jefferson, a nation cannot be both free and thesis that statutory notice suffices. InDuquette, it was held that in the
ignorant. If there is anything that democracy cannot survive, it is the absence of an official notice of the special election mandated by
virus of ignorance. law to be held simultaneously with the general election, there
should be actual notice of the electorate. Actual notice may be
Elections serve as a crevice in the democratic field where voters, for proved by the voting of a significant percentage of the electorate for
themselves and the public good, plant the seeds of their ideals and the position in the special election or by other acts which manifest
freedoms. Yick Wo is emphatic that voting is a fundamental right that awareness of the holding of a special election such as nomination of
preserves and cultivates all other rights. In a republic undergirded by candidates. In the case at bar, however, the number of votes cast
a social contract, the threshold consent of equal people to form a for the special election cannot be determined as the ballot did not
government that will rule them is renewed in every election where indicate separately the votes for the special election. In fact,
people exercise their fundamental right to vote to the end that whether or not the electorate had notice of the special election, a
their chosen representatives will protect their natural rights to candidate would just the same fall as the 13th placer because more
life, liberty and property. It is this sacred contract which makes than twelve candidates ran for the regular senatorial elections. Nobody
legitimate the government’s exercise of its powers and the was nominated to vie specifically for the senatorial seat in the special
chosen representatives’ performance of their duties and election nor was there a certificate of candidacy filed for that position.
functions. The electoral exercise should be nothing less than a pure In the absence of official notice of the time, place and manner of
moment of informed judgment where the electorate speaks its mind on conduct of the special election, actual notice is a matter of proof.
the issues of the day and choose the men and women of the hour who Respondents and the ponencia cannot point to any proof of actual
are seeking their mandate. notice.

The importance of information and discourse cannot be With respect to the lack of notice of the manner by which the special
overemphasized in a democratic and republican setting. Our election would be conducted, i.e., that the 13th placer would be
constitutional provisions and cases highlighting the people’s right to declared winner in the special election, there can be no debate that
information and the duty of the State to provide information statutory notice will not operate as notice to the electorate as there
unmistakably recognize the indispensable need of properly informing is no law providing that a special election held simultaneously with a
the citizenry so they can genuinely participate in and contribute to a general election could be conducted in the manner adopted by the
functioning democracy. As elections lie at the foundation of Senate and the COMELEC. Instead, theponencia buttresses its
representative democracy, there should be no quarrel over the holding by stating that the petitioner has not claimed nor proved that
proposition that electoral information should also be disseminated to the failure of notice misled a sufficient number of voters as would
the electorate as a predicate to an informed judgment. change the result of the special senatorial election. It relies on “actual
notice from many sources, such as media reports of the enactment of
The ponencia concedes that a survey of COMELEC’s resolutions R.A. No. 6645 and election propaganda during the campaign” but
relating to the conduct of the May 14, 2001 elections would reveal that without even identifying these media reports and election propaganda.
they “contain nothing which would amount to a compliance, either strict Suffice to state that before the ponencia can require proof that a
or substantial, with the requirements in Section 2 of R.A. No. 6645, as sufficient number of voters was misled during the May 14, 2001
amended.” Nowhere in its resolutions or even its press releases did elections, it must first be shown that in the absence of official notice of
COMELEC state that it would hold a special election for a single the procedure for the special election, there was nevertheless actual
Senate seat with a three-year term simultaneously with the regular notice of the electorate so that the special election could be presumed
elections on May 14, 2001. Nor did COMELEC give official notice of to be valid. Only then will the duty arise to show proof that a sufficient
the manner by which the special election would be conducted, i.e., that number of voters was misled to rebut the presumption of validity.
the senatorial candidate receiving the 13th highest number of votes in
the election would be declared winner in the special election. Still, I respectfully submit that the electorate should have been informed of
the ponencia upheld the holding of the May 14, 2001 special election the time, place and manner of conduct of the May 14, 2001 special
despite “the lack of ‘call’ for such election and ... lack of notice as to the election for the single senatorial seat for the unexpired term of former
office to be filled and the manner by which the winner in the special Senator Teofisto Guingona, Jr. Tolentino, UNIDO, Blo Umpar
election is to be determined.” Adiong and Hassan all deepened the doctrine that a meaningful
exercise of the right of suffrage in a genuinely free, orderly and honest
With all due respect, I cannot subscribe to election is predicated upon an electorate informed on the issues of the
the ponencia’s position for it leaves the purity of elections and day, the programs of government laid out before them, the candidates
the ascertainment of the will of the electorate to chance, running in the election and the time, place and manner of conduct of
conjecture and speculation. Considering that elections lie at the the election. It is for this reason that the Omnibus Election Code is
heart of the democratic process because it is through the act of voting studded with processes, procedures and requirements that ensure
that consent to government is secured, I choose to take a position that voter information.
would ensure, to the greatest extent possible, an electorate that is
informed, a vote that is not devalued by ignorance and an election Bince and Benito further teach us that free and intelligent vote is not
where the consent of the governed is clear and unequivocal. enough; correct ascertainment of the will of the people is equally
necessary. The procedure adopted in the case at bar for holding the
May 14, 2001 special senatorial election utterly failed to ascertain the T[HE] P[RESIDENT]. May I share this information that under Republic
people’s choice in the special election. Section 2 of R.A. No. 7166
provides that the “special election shall be held simultaneously with Act No. 6645, what is needed is a resolution of this Chamber calling
such general election.” It does not contemplate, however, the
integration of the special senatorial election into the regular attention to the need for the holding of a special election to fill up the
senatorial election whereby candidates who filed certificates of
candidacy for the regular elections also automatically stand as vacancy created, in this particular case, by the appointment of our
candidates in the special election. The Omnibus Election Code is
crystal clear that a candidate can run for only one position in an colleague, Senator Guingona, as Vice President.
election. Consequently, there were no candidates in the special
election to vote for. Separate sets of candidates for the special election
and the regular elections are decisive of the election results. Each
independent-minded voter could have a variety of reasons for choosing It can be managed in the Commission on Elections so that a slot for
a candidate to serve for only the unexpired term of three years instead
of the regular term of six years or not choosing a candidate at all. A the particular candidate to fill up would be that reserved for Mr.
voter might choose a neophyte to serve the three-year term as a
shorter trial period. Another might be minded to choose an old timer to Guingona’s unexpired term. In other words, it can be arranged in such
compel him to hasten the completion of his projects in a shorter period
of three years. Still another might want to afford a second termer who a manner.
has not performed too satisfactorily a second chance to prove himself
but not for too long a period of six years. In not allowing the voter to
separately indicate the candidate he voted for the three-year
xxx xxx xxx
senatorial term, the voter was deprived of his right to make an
informed judgment based on his own reasons and
valuations. Consequently, his true will in the special election was not
ascertained. As a particle of sovereignty, it is the thinking voter who S[ENATOR] R[OCO]. Mr. President.
must determine who should win in the special election and not the
unthinking machine that will mechanically ascertain the 13th placer in
the general election by mathematical computations.
T[HE] P[RESIDENT]. Sen Raul S. Roco is recognized.
The models to follow in the conduct of special elections mandated by
law to be held simultaneously with a general elections are the special
elections of November 13, 1951 and November 8, 1955 to fill the seats
vacated by then Senators Fernando Lopez and Carlos P. Garcia, S[ENATOR] R[OCO]. May we suggest, subject to a one-minute
respectively. In these special senatorial elections, election
activities prior (i.e., filing of certificate of candidacies), during (i.e., the caucus, wordings to the effect that in the simultaneous elections, the
act of voting for a special election candidate distinct from the
candidates for the regular election) and after the election (i.e., tallying 13th placer be therefore deemed to be the special election for this
and canvassing of results) were conducted simultaneously with,
but distinctly from the regular senatorial elections. This procedure purpose. So we just nominate 13 and it is good for our colleagues. It is
minimized voter confusion and allowed the voter to freely and
accurately speak his mind and have his will truly ascertained. better for the candidates. It is also less expensive because the ballot
Regrettably, this objective appears to have been lost in the calling of
the May 14, 2001 special election as can be gleaned from the Senate will be printed and there will be less disenfranchisement.
deliberations on the resolution calling for that election, viz:

S[ENATOR] T[ATAD]. Mr. President, in this resolution, we are leaving T[HE] P[PRESIDENT]. That is right.

the mechanics to the Commission on Elections. But personally, I would

like to suggest that probably, the candidate obtaining the 13th largest S[ENATOR] R[OCO]. If we can just deem it therefore under this

number of votes be declared as elected to fill up the unexpired term of resolution to be such a special election, maybe, we satisfy the

Senator Guingona. requirement of the law.

S[ENATOR] O[SMEÑA]. (J). Is there a law that would allow the T[HE] P[RESIDENT]. Yes. In other words, this shall be a guidance

Comelec to conduct such an election? Is it not the case that the for the Comelec.

vacancy is for a specific office? I am really at a loss. I am rising here

because I think it is something that we should consider. I do not know if S[ENATOR] R[OCO]. Yes.

we can...No, this is not a Concurrent Resolution.

T[HE] P[RESIDENT]. - to implement.

S[ENATOR] T[ATAD]. May we solicit the legal wisdom of the Senate

President. S[ENATOR] R[OCO]. Yes. The Comelec will not have the

flexibility.
T[HE] P[RESIDENT]. That is right. T[HE] P[RESIDENT]. There is a motion to adopt this resolution. Is

there any objection? [Silence] There being none, the motion is

S[ENATOR] R[OCO]. We will already consider the 13th placer of the approved.[138] (emphases supplied)
The Senate’s observation that the procedure for the special election
forthcoming elections that will be held simultaneously a? a special that it adopted would be less costly for the government as the ballots
need not be printed again to separately indicate the candidate voted
election under this law as we understand it.
for the special election does not also lend justification for the manner of
conduct of the May 14, 2001 special election. We cannot bargain the
electorate’s fundamental right to vote intelligently with the coin of
T[HE] P[RESIDENT]. Yes. That will be a good compromise, Senator convenience. Even with the Senate stance, the regular ballot had to be
modified to include a thirteenth space in the list of senatorial seats to
Roco. be voted for. At any rate, reliance on R.A. No. 6645 is erroneous. This
law provides that when a vacancy arises in the Senate, the Senate, by
resolution, certifies to the existence of the vacancy and calls for a
S[ENATOR] R[OCO]. Yes. So if the sponsor can introduce that later, special election. Upon receipt of the resolution, the COMELEC
holds the special election. R.A. No. 6645 was amended in 1991 by
maybe it will be better, Mr. President. R.A. No. 7166. The latter law provides that when a permanent vacancy
occurs in the Senate at least one year before the expiration of the
term, “the Commission (on Elections) shall call and hold a special
T[HE P[RESIDENT]. What does the sponsor say? election to fill the vacancy...” Since under R.A. No. 7166, it is the power
and duty of the COMELEC, and not the Senate, to call and hold the
election, the Senate cannot, by mere resolution, impose upon the
COMELEC the procedure for the special election that it intended such
S[ENATOR] [T]ATAD. Mr. President, that is a most satisfactory
that “Comelec will not have the flexibility” to deviate therefrom. As a
proposal because I do not believe that there will be anyone constitutional body created to ensure “free, orderly, honest, peaceful,
and credible elections”, it was the duty of the COMELEC to give to the
running specifically - electorate notice of the time, place and manner of conduct of the
special elections and to adopt only those mechanisms and procedures
that would ascertain the true will of the people.
T[HE] P[RESIDENT]. Correct.
In sum, I submit that the ruling of the ponencia would result not just to
a step back in an age of information, but would constitute a fall in the
nation’s rise to democracy begun as early as the Malolos Constitution
S[ENATOR] T[ATAD]. - to fill up this position for three years and and begun anew in the 1987 Constitution after the 1986 People Power
Revolution. Informing the electorate on the issues and conduct of an
campaigning nationwide.
election is a prerequisite to a “free, orderly, honest, peaceful, and
credible elections.” Free elections does not only mean that the
voter is not physically restrained from going to the polling booth,
T[HE] P[RESIDENT]. Actually, I think what is going to happen is but also that the voter is unrestrained by the bondage of
ignorance. We should be resolute in affirming the right of the
the 13th candidate will be running with specific groups.
electorate to proper information. The Court should not forfeit its
role as gatekeeper of our democratic government run by an
informed majority. Let us not open the door to ignorance.
S[ENATOR] T[ATAD]. Yes. Whoever gets No. 13.
I vote to grant the petition.

T[HE] P[RESIDENT]. I think we can specifically define that as the

intent of this resolution.

S[ENATOR] T[ATAD]. Subject to style, we accept that amendment and

if there will be no other amendment, I move for the adoption of this

resolution.

ADOPTION OF S. RES. NO. 934

If there are not other proposed amendments, I move that we adopt this

resolution.
 EN BANC Commander of the 1st PC Zone in Camp Olivas, San
Fernando, Pampanga solely for the purpose of retrieving
therefrom the corresponding election returns, copies for the
G.R. No. L-25467 April 27, 1967
ballot box, in all the precincts of said municipalities.

LUCAS V. CAUTON, petitioner,

Pursuant to the instructions of respondent Commission, contained in
vs.
the resolution of December 22, 1965, the ballot boxes from all the
COMMISSION ON ELECTIONS and PABLO SANIDAD, respondents.
precincts in the municipalities of Candon, Sta. Cruz and Santiago were
opened by the Chief of the Law Enforcement Division of the
Antonio Barredo for petitioner. Commission, Atty. Fernando Gorospe, Jr., in the presence of
Ramon Barrios for respondent Commission on Elections. witnesses, and the envelopes containing the election returns found
Pablo C. Sanidad and F. D. Villanueva and Associates for respondent inside the ballot boxes were taken and brought to Manila on December
Sanidad. 23, 1965.

ZALDIVAR, J.: On the same date, December 23, 1965, herein petitioner, Lucas V.
Cauton, filed before this Court a petition for certiorari and prohibition
with preliminary injunction, praying that the resolution of the
In the national elections held on November 9, 1965, petitioner Lucas V. respondent Commission on Elections dated December 22, 1965
Cauton and respondent Pablo Sanidad, along with Godofredo S. ordering the opening of the ballot boxes used in all the precincts of
Reyes, were candidates for the office of Representative in the second
Candon, Sta. Cruz and Santiago in the elections of November 9, 1965
congressional district of Ilocos Sur. be annulled and set aside. The petition further prays that the
Commission on Elections be restrained from opening, the envelopes
During the canvass by the Provincial Board of Canvassers of Ilocos containing the election returns found in the afore-mentioned ballot
Sur of the votes cast for the candidates for Representative in the boxes and be ordered to return the said envelopes to the
second congressional district of Ilocos Sur, and particularly after the corresponding ballot boxes. In his petition, petitioner alleges that the
Board had opened the envelopes containing the copies of the election respondent Commission on Elections acted without or in excess of its
returns from each of the election precincts in the municipalities of jurisdiction in issuing the resolution of December 22, 1965. This Court
Candon, Santiago and Sta. Cruz that were presented by the Provincial gave due course to the petition, but did not issue the writ of preliminary
Treasurer of Ilocos Sur to the Board, respondent Sanidad brought to injunction prayed for. This petition is now the case before Us.
the attention of the Board the fact that the entries of votes for the
candidates for Representative in those copies of the election returns Upon instructions by respondent Commission on Elections, on
that came from the envelopes presented by the provincial treasurer December 28, 1966, the envelopes that were taken from the ballot
differed from the entries appearing in the copies of the returns from the boxes were opened and the election returns were taken out and their
same election precincts that were in the possession of the Liberal contents examined and recorded by a committee appointed by the
Party.1äwphï1.ñët Commission. This was done in a formal hearing with notice to the
parties concerned.
Respondent Sanidad filed a petition with the Commission on Elections
praying for the opening of the ballot boxes in all the precincts of Respondent Pablo C. Sanidad filed his answer to instant petition on
Candon, Santiago and Sta. Cruz, in order to retrieve the election January 5, 1966, admitting some of the allegations and denying others,
returns deposited therein so that those election returns might be used
and maintaining that the Commission on Elections had acted well
in the canvass of the votes for the candidates for Representative in the within the bounds of its authority in issuing the order of December 22,
second district of Ilocos Sur, and that in the meantime the Provincial 1965. Respondent Commission on Elections also filed its answer on
Board of Canvassers of Ilocos Sur be ordered to refrain from
January 5, 1966, maintaining that it has authority under the law to
proclaiming the winning candidate for the office of Representative in order the opening of the ballot boxes as stated in its resolution of
said district. The Commission on Elections issued the restraining order December 22, 1965.
prayed for by respondent Sanidad and set his petition for hearing.

In the meantime, on the basis of the discrepancies in the entries of the

After hearing, the Commission on Elections found "that it had been votes for the candidates for Representative, between the election
clearly established that the copies of the election returns for the
returns taken out of the ballot boxes that were opened by order of the
Municipal Treasurer, for the Commission on Elections and for the Commission of Elections and the election returns submitted by the
Provincial Treasurer for the municipality of Santa Cruz have uniform Provincial Treasurer of Ilocos Sur to the Provincial Board of
alterations in the entries of the votes cast for representative showing
Canvassers of Ilocos Sur, respondent Pablo C. Sanidad filed a petition
different number of votes compared with the Liberal Party copies, while with the Court of First Instance of Ilocos Sur, docketed as Election
the copies of the election returns for the Commission on Elections and Case No. 16-N, for a recount of the votes in all the precincts of
the Provincial Treasurer for the municipalities of Candon and Santiago
Candon, Sta. Cruz and Santiago, pursuant to the provisions of Section
have likewise uniform alterations and showing different numbers 163 of the Revised Election Code.
compared with the Liberal Party copies ...."1The copies of the election
returns that were furnished the municipal treasurers of Candon and
Santiago were never verified because the municipal treasurers of On February 14, 1966, petitioner filed before this Court in urgent
those two municipalities did not comply with the subpoena duces motion, in this case, praying for the issuance of an order enjoining the
tecum issued by the Commission on Elections directing them to bring Court of First Instance of Ilocos Sur (Branch II-Narvacan) from further
to the Commission the copies of the election returns of the precincts in proceeding with Election Case No. 16-N, abovementioned, pending
their respective municipalities that were in their possession. final decision of the instance case, upon the ground that the recount of
the ballots in that case in the court below would render the instant case
moot and academic. This motion was denied by this Court in a
On December 22, 1965, respondent Commission on Elections issued resolution dated February 17, 1966.
an order providing, among others, that

The principal issue in the present case revolves on the of the

... to enable the aggrieved party to establish discrepancy resolution of the respondent Commission of Elections, dated
between copies of the election returns provided by law in the December 22, 1965, which orders the opening of the ballot boxes used
aforementioned precincts for the purpose of obtaining
in all the precincts in the municipalities of Candon, Sta. Cruz and
judicial remedy under the provisions of Section 163 of the Santiago, Ilocos Sur, during the elections of November 9, 1965 for the
Revised Election Code, the Commission Resolved ... to purpose of retrieving therefrom the corresponding election returns,
direct immediately the opening of the ballot boxes of the
copies for the ballot box, "to enable the aggrieved party to establish
municipalities of Candon, Sta. Cruz and Santiago which are discrepancy between copies of the election returns provided by law in
now impounded and under the custody of the Zone
the aforementioned precincts for the purpose of obtaining judicial The election law requires the board of inspectors to prepare four
remedy under the provisions of Section 163 of the Revised Election copies of the election return in each precinct — one to be deposited in
Code." the ballot box, one to be delivered to the municipal treasurer, one to be
sent to the provincial treasurer, and one to be sent to the Commission
on Elections. In the case of the canvass of the election returns for
It is the stand of the petitioner that respondent Commission on
candidates for provincial or national offices, the election returns
Elections is without jurisdiction to issue, or has acted in excess of
received by the provincial treasurer from the boards of inspectors are
jurisdiction in issuing, the resolution in question, so that said resolution
used. It is the duty of the provincial treasurer to turn over to the
is null and void and should not be given legal force and effect. The
provincial board of canvassers the election returns received by him
petitioner contends that under Section 157 of the Revised Election
from the boards of inspectors. If the Commission on Elections is duly
Code the Commission on Elections has authority to order the opening
informed and it so finds, in appropriate proceedings, that the election
of the ballot boxes "only in connection with an investigation conducted
returns in the hands of the provincial treasurer are tampered, then the
for the purpose of helping the prosecution of any violation of the
Commission should afford the candidate adversely affected by the
election laws or for the purely administrative purpose but not when the
tampering an opportunity to show that there exist authentic copies of
sole purpose is, as in this case, to assist a party in trying to win the
the same election returns which are not tampered. A recourse may be
election ...." The petitioner further, contends that "the mere fact that the
had to the copies received by the Commission on Elections and to the
copies of the returns in the precincts in question in the possession of
copies received by the municipal treasurer. If it is shown, that the
the Liberal Party do not tally with the returns involving the same
copies in the hands of the Commission on Elections and of the
precincts in the possession of the Provincial Treasurer, the
municipal treasurer are similarly tampered as the copies in the hands
Commission of Elections and the Nacionalista Party as well does not
of the provincial treasurer, then it becomes evident that all the three
legally support the validity of the resolution of the respondent
copies of the election returns outside the ballot box do not constitute a
Commission in question ...."2
reliable basis for a canvass. The only copies left to be checked,
whether they are also tampered or not, are the ones inside the ballot
We cannot sustain the stand of the petitioner. We believe that in boxes. Certainly, the Commission on Elections, in the exercise of its
issuing the resolution in question the Commission on Elections simply power to administer and enforce the laws relative to the conduct of
performed a function as authorized by the Constitution, that is, to "have elections, may order the opening of the ballot boxes to ascertain
exclusive charge of the enforcement and administration of all laws whether the copy inside each ballot box is also tampered like the three
relative to the conduct of elections and ... exercise all other functions copies outside the ballot box, corresponding to each precinct. The
which may be conferred upon it by law." The Commission has the Commission on Elections may do this on its own initiative, or upon
power to decide all administrative questions affecting elections, except petition by the proper party. Once it is found that the copy of the
the question involving the right to vote.3 election return inside the ballot box is untampered, the Commission on
Elections would then have accomplished two things, namely: (1)
secured a basis for the prosecution for the violation of the laws relative
This Court in a line of decisions has ruled that the Commission on
to elections, and (2) afforded the party aggrieved by the alteration of
Election has the power to investigate and act on the propriety or the election returns outside the ballot box a basis for a judicial recount
legality of the canvass of election returns made by the board of of the votes as provided for in Section 163 of the Revised Election
canvassers. In the case of Albano vs. Arranz, L-19260, January 31,
Code. Thus, the Commission on Elections has thereby made available
1962, this Court, through Mr. Justice J.B.L. Reyes, held as follows: the proper and reliable basis for the canvass of the votes that will lead
to the proclamation by the board of canvassers of the true winner in
The suspension of the proclamation of the winning candidate the elections. In so doing the Commission on Elections, as we have
pending an inquiry into irregularities brought to the attention said, had performed its constitutional duty of administering and
of the Commission on Elections was well within its enforcing the laws relative to the conduct of elections with a view to
administrative jurisdiction, in view of the exclusive authority promoting clean and honest elections — the very purpose for which
conferred upon it by the Constitution (Art. X ) for the the Commission on Elections was created by constitutional mandate.
administration and enforcement of all laws relative to
elections. The Commission certainly had the right to inquire
In the case now before Us, the Commission on Elections issued the
whether or not discrepancies existed between the various questioned resolution "after hearing the arguments of the petitioner
copies of election returns for the precincts in question, and and the opposition thereto and considering that it has been clearly
suspend the canvass all the meantime so the parties could
established that the copies of the election returns for the Municipal
ask for a recount in case of variance ....' Treasurer, for the Commission on Elections and for the Provincial
Treasurer for the municipality of Sta. Cruz have uniform alteration in
What the respondent Commission on Elections did in the case now the entries of the votes cast for representative showing different
before Us is just what is contemplated in the abovequoted ruling of this number of votes compared with the Liberal Party copies, while the
Court. The power of the Commission on Elections in this respect is copies of the election returns for the Commission of Elections and the
simply administrative and supervisory — intended to secure the Provincial Treasurer for the municipalities of Candon and Santiago
proclamation of the winning candidate based on the true count of the have likewise uniform alterations and showing different numbers
votes cast. When the Commission on Elections exercises this power compared with the Liberal Party copies ..."5Indeed, in the face of this
the purpose is not for the Commission to help a candidate win the finding by the Commission on Elections, which indicates a clear
election but to bring about the canvass of the true results of the violation of the election law, and which indicates an attempt to procure
elections as certified by the boards of election inspectors in every the proclamation of the winner in the elections for Representative in
precinct. The object of the canvass is to determine the result of the the second congressional district of Ilocos Sur by the use of tampered
elections based on the official election returns. In order that the result election returns, can the Commission on Elections be remiss in the
of the canvass would reflect the true expression of the people's will in performance of its duties as a constitutional body committed with the
the choice of their elective officials, the canvass must be based on exclusive charge of the enforcement and administration of all laws
true, genuine, correct, nay untampered, election returns. It is in this relative to the conduct of elections? The Revised Election Code gives
proceedings that the Commission on Elections exercises its to the Commission on Elections the direct and immediate supervision
supervisory and administrative power in the enforcement of laws over provincial, municipal and city officials designated by law to
relative to the conduct of elections, by seeing to it that the canvass is perform duties relative to the conduct of elections — and included
based on the election returns as actually certified by the members of among these officials are members of the provincial board of
the board of inspectors. Once the Commission on Elections is canvassers.6The provincial board of canvassers is enjoined by law to
convinced that the elections returns in the hands of the board of canvass all the votes cast for Representatives on the basis of the
canvassers do not constitute the proper basis in ascertaining the true election returns produced by the provincial treasurer.7The Commission
result of the elections, it should be its concern, nay its duty, to order on Elections has a duty to enforce this law and it has the duty to see to
the taking of such steps as may be necessary in order that the proper it that the election returns to be used for canvassing must be genuine
basis for the canvass is obtained or made available. and authentic, not falsified or tampered with. Where the election
returns produced by the provincial treasurer have been shown to have
been tampered, and all the other copies outside the ballot boxes have
also been shown to have been tampered or falsified, it is certainly by a competent court or other competent authority.13The "competent
within the power of the Commission on Elections to issue such order authority" must include the Commission on Elections which is charged
as would ascertain the existence of the genuine, authentic and with the administration and enforcement of the laws relative to the
untampered election returns, and thus open the way for the summary conduct of elections. In the instant case the Commission on Elections
recount of the votes, in accordance with law, for the purposes only of found that it has been clearly established that the election returns
the canvass of the votes and the proclamation of the candidate found outside the ballot boxes, in all the precincts in the municipalities of
to have obtained the highest number of votes. In the case now before Candon, Santiago and Sta. Cruz, have been tampered with. It is within
Us, it is found by the Commission on Elections that no other copies the power of the Commission to order the investigation of that apparent
can be had except those deposited in the ballot boxes. Hence, the anomaly that has connection with the conduct of elections. The
necessity for the Commission to order the retrieving of the copies of investigation may be in connection with the prosecution for the
the election returns from the ballot boxes. An order to this effect does violations of the election laws and at the same time to ascertain the
not affect the right to vote or the validity of any vote cast, so that it is condition of the election returns inside the ballot boxes as compared
perfectly within the power of the Commission on Elections to issue with the election returns outside the ballot boxes, for the same
such an order in the exercise of its exclusive power to administer and precincts. The opening of the ballot boxes may, therefore, be prayed
enforce the laws relative to the conduct of elections. It would indeed be for by a candidate who is prejudiced by the apparent falsification of the
absurd to say that the Commission on Elections has a legal duty to election returns outside the ballot boxes, and in ordering the opening of
perform and at the same time it is denied the necessary means to the ballot boxes the purpose of the Commission is not to help a
perform said duty. particular candidate win an election but to properly administer and
enforce the laws relative to the conduct of elections.
The purpose of the Revised Election Code is to protect the integrity of
elections and to suppress all evils that may violate its purity and defeat From what has been said We hold that the order of December 22,
the will of the voters.8The purity of the elections is one of the most 1965, being questioned by the petitioner in the present case, was
fundamental requisites of popular government.9The Commission on perfectly within the power of the Commission on Elections to issue.
Elections, by constitutional mandate, must do everything in its power to
secure a fair and honest canvass of the votes cast in the elections. In
Wherefore, the petition for certiorari and prohibition in the present case
the performance of its duties, the Commission must be given a
is dismissed, with costs against the petitioner. It is so ordered.
considerable latitude in adopting means and methods that will insure
the accomplishment of the great objective for which it was created —
to promote free, orderly, and honest elections. The choice of means
taken by the Commission on Elections, unless they are clearly illegal or
constitute grave abuse of discretion, should not be interfered
with.10Technicalities, which are not conducive to free, orderly and
honest elections, but on the contrary may defeat the will of the
sovereign people as expressed in their votes, should not be allowed to
hamper the Commission on Elections in the performance of its duties.
To sustain the petitioner in the present case is to deny the Commission
on Elections the power to retrieve the copies of the election returns
from the ballot boxes in order that the true number of votes cast for a
candidate may be known and thus permit a canvass on the basis of
election returns that are patently falsified. We cannot, and We must
not, sanction the stand of petitioner.

As We have adverted to, the Commission on Elections has the power

to inquire whether there exist discrepancies among the various copies
of the election returns.11Of all the copies prepared by the board of
inspectors the copy least susceptible to being tampered with is the one
deposited in the ballot box. Where the three copies outside the ballot
boxes appear to have been uniformly altered, there is no plausible
reason why the copy deposited in the ballot box may not be used to
determine whether discrepancies exist in the various copies. Inasmuch
as the Commission on Elections has the right to determine whether
said discrepancies exist, it must also have the right to consult said
returns, which cannot be done unless the ballot boxes are opened. It is
noteworthy that the Revised Election Code does not provide that it is
the courts that have the power to order the opening of the ballot box in
a situation like this.

Section 157 of the Revised Election Code, on which petitioner herein

relies in support of his stand in the present case, authorizes the
opening of the ballot box whenever it is the subject of an official
investigation. It provides:

The municipal treasurer shall keep the boxes unopened in

his possession in a secure place and under his responsibility
for three months, unless they are the subject of an official
investigation, or a component court or tribunal shall demand
them sooner, or the competent authority shall order their
preservation for a longer time in connection with any pending
contest or investigation.

Under this section the ballot boxes may be opened in case there is an
election contest. They may also be opened even if there is no election
contest when their contents have to be used as evidence in the
prosecution of election frauds.12Moreover, they may be opened when
they are the subject of any official investigation which may be ordered
 EN BANC precincts, but denied that said erasures were due to tampering or
falsification.
G.R. No. L-22335 December 31, 1965
After a preliminary hearing on the motions to dismiss, the Court of First
Instance, on December 27, dismissed the petition for recount. And on
AMANTE P. PURISIMA, petitioner,
December 28, Cordero filed in the Commission on Elections a motion
vs.
for resumption of the canvass.
HON. ANGELINO C. SALANGA, Judge of the Court of First
Instance of Ilocos Sur. THE PROVINCIAL BOARD OF
CANVASSERS, THE COMMISSION ON ELECTIONS and Purisima, on January 2, 1964, moved for reconsideration of the Court
GREGORIO CORDERO, respondents. of First Instance's order of dismissal. In the same case, he also filed,
on January 8, a petition for preliminary injunction to restrain the holding
of another canvass. Annexed to said petition were certified photostatic
Jose W. Diokno for petitioner.
copies of the Comelec's copies of the returns from the 41 precincts in
Provincial Fiscal Juvenal K. Guerrero for respondent Provincial Board
question. Furthermore, Purisima filed with the Commission on
of Canvassers
Elections, on January 11, an opposition to the resumption of the
Antonio Barredo for respondents Judge Salanga and Gregorio Cordero
canvass.
Ramon Barrios for respondent Commission on Elections.

Alleging that the Commission on Elections was about to order the

BENGZON, J.P., J.:
canvass resumed, Purisima came to this Court, on January 17, 1964,
by petition for certiorari with preliminary injunction. Petitioner asked
In the election of November 12, 1963, Amante Purisima and Gregorio that the lower court's order dismissing his petition for recount be set
Cordero were among the candidates for any of the three offices of aside and that the Commission on Elections be enjoined from ordering
Provincial Board Member of Ilocos Sur. After the election or on resumption of the canvass until after the judicial recount.
November 25, 1963 the provincial board of canvassers met and started
canvassing the returns for said office.
On January 22, 1964 we ordered respondents to answer, and allowed
preliminary injunction to be issued as prayed for upon the posting of a
Purisima noted during the canvass that the returns from some bond of P500.00. After respondents filed their answer the case was
precincts, forty-one (41) in all, showed on their face that the words and heard and submitted for decision.
figures for Cordero's votes had been "obviously and manifestly erased"
and superimposed with other words and figures. For purposes of
The requisites for judicial recount are set forth in Section 163 of the
comparison, the Nacionalista Party copies of the returns for the
Revised Election Code:
aforesaid precincts were submitted to the board. A discrepancy of
5,042 votes in favor of Cordero was thereby found, thus:
When statements of precinct are contradictory. — In case it
appears to the provincial board of canvassers that another
Provincial Treasurer's copy: 7,277 votes for Cordero copy or other authentic copies of the statement from an
election precinct submitted to the board give to a candidate a
Nacionalista Party's copy 2,235 votes for Cordero different number of votes and the difference affects the result
of the election, the Court of First Instance of the province,
upon motion of the board or of any candidate affected, may
A request for suspension of the canvass was thereupon made by proceed to recount the votes cast in the precinct for the sole
Purisima. The board of canvassers denied said request upon the purpose of determining which is the true statement or which
ground that it was not yet ascertainable if the discrepancies would is the true result of the count of the votes cast in said
materially affect the result. Canvass proceeded. precinct for the office in question. Notice of such proceeding
shall be given to all candidates affected.

After the returns had all been read, the result for the office of third (and
last) member of the Provincial Board was the following: In dismissing the petition for recount, respondent Judge stated that
some of the requisites were not present, namely: first, that it appears to
the provincial board of canvassers that a discrepancy exists; second,
Cordero 41,229 votes that said discrepancy is between the copy submitted to the board and
another authentic copy thereof; third, that said authentic copy must
also be submitted to the board.
Purisima 39,372 votes.

Difference 1,857 votes First of all, it is not disputed that a candidate affected can file the
petition for recount, even if he does so alone, without the concurrence
of the provincial board of canvassers (Cawa v. Del Rosario, L-16837-
Purisima again called attention to the erasures and discrepancies and 40, May 30,1960). From the fact, therefore, that the provincial board of
asked for suspension of canvass — for him to have recourse to judicial canvassers has not petitioned for a recount it cannot be inferred that
remedy. Denying said request, the board of canvassers finished the they were not convinced a discrepancy existed.
canvass and proclaimed Cordero the winner, on November 28.
In fact, when Purisima first called attention to the discrepancy between
On November 29, Purisima filed a petition in the Commission on the Nacionalista Party copies and the Provincial Treasurer's copies,
Elections to annul the canvass and proclamation above-mentioned. the board of canvassers admitted the discrepancy but stated that it
The Commission on Elections issued a resolution on November 30, was not yet ascertainable whether the discrepancy would amount to
annulling the canvass and proclamation, as regards Cordero and enough votes as to affect the result. There is no more question now
Purisima. that the number of votes involved in said discrepancy is more than
enough to alter the result.

Purisima, on December 10, filed in the Court of First Instance a petition

for recount under Section 163 of the Revised Election Code. Finally, in the motion to dismiss filed by the board of canvassers, the
Subsequently, motions to dismiss the same were filed by the board of existence of the discrepancy is not disputed, and the board merely
canvassers and by Cordero. In his motion to dismiss, Cordero admitted raises the defense that the recount is up to the court and not to said
the erasures and discrepancies on the face of the returns from 41 board (Annex D, Petition).
Passing on to the next point, the basis of the petition for recount was
not merely a discrepancy between the Nacionalista Party copies and
the Provincial Treasurer's copies of the returns. Paragraph 8 of said
petition shows that, in addition, the Commission on Elections' copies
were relied upon:

That as a result of the aforesaid erasures, tampering and

apparent falsifications, there exist discrepancies between the
Provincial Treasurer's copies (the basis of the canvass) of
the election returns in the precincts in question, on one
hand, and the copies pertaining to the Nacionalista Party
and those pertaining to the Commission on Elections, on the
other, and that said discrepancies materially affect the result
of the election as between herein petitioner and respondent
Gregorio Cordero;

Accordingly, even assuming for the nonce — a point we do not here

decide — that the Nacionalista Party copies are not copies that may be
the basis of a petition for recount, the fact remains that the
Commission on Elections' copies were said to reflect the same
discrepancy with the Provincial Treasurer's copies. It is settled that the
Commission on Elections' copies are authentic copies within the
meaning of Section 163 of the Revised Election Code (Laws in v.
Escalona, L-22540, July 31, 1964; Matanog v. Alejandro, L-22502-08,
June 30, 1964.)

The trial court. however, ruled that the Commission on Elections'

copies had no application to the petition for recount because they were
not submitted to the board of canvassers. The record definitely shows
that the reason why Purisima was not able to submit to the board said
Commission on Elections' copies was because the board declined to
suspend the canvass and proclamation.

It is the duty of the board of canvassers to suspend the canvass in

case of patent irregularity in the election returns. In the present case,
there were patent erasures and superimpositions, in words and figures
on the face of the election returns submitted to the board of
canvassers. It was therefore imperative for the board to stop the
canvass so as to allow time for verification of authentic copies and
recourse to the courts (Javier v. Commission on Elections, L-22248,
January 30, 1965). A canvass or proclamation made notwithstanding
such patent defects, without awaiting proper remedies, is null and void
(Ibid.). In fact, as stated, the Commission on Elections declared the
canvass and proclamation, made by respondent provincial board of
canvassers, null and void.

Since the board of canvassers prevented Purisima from securing the

Commission on Elections' copies of the returns to establish a
discrepancy between them and the Provincial Treasurer's copies, the
failure to submit the Commission on Elections' copies to said board
should not prejudice Purisima's right to petition for recount before the
court. It was therefore grave abuse of discretion for respondent court to
refuse to consider the Commission on Elections' copies, regardless of
the patent and admitted irregularities on the face of the Provincial
Treasurer's copies and the alleged discrepancy amounting to
thousands of votes sufficient to affect the results.

Interpretation of election laws should give effect to the expressed will

of the electorate. Patent erasures and superimpositions in words and
figures of the votes stated in the election returns strike at the reliability
of said returns as basis for canvass and proclamation. A comparison
with the other copies, and, in case of discrepancy, a recount, is the
only way to remove grave doubts as to the correctness of said returns
as well as of ascertaining that they reflect the will of the people.

WHEREFORE, the dismissal of the petition for recount is set aside,

respondent Judge is ordered to proceed with the petition for recount,
and respondents Commission on Elections and Provincial Board of
Canvassers are enjoined, until after the termination of proceedings in
the petition for recount, from ordering or holding another canvass and
proclamation as between petitioner Purisima and respondent Cordero.
 EN BANC On July 29, 2009, the Court heard the principal parties in oral
arguments which was followed by the submission of their and the
resource persons' instructive, albeit clashing, memoranda. The Senate,
[G.R. NO. 188456 : September 10, 2009]
through the Senate President, would later join the fray via a Motion for
Leave to Intervene. In a Resolution of August 25, 2009, the Court
H. HARRY L. ROQUE, JR., JOEL R. BUTUYAN, ROMEL R. admitted the Senate's comment-in-intervention.
BAGARES, ALLAN JONES F. LARDIZABAL, GILBERT T. ANDRES,
IMMACULADA D. GARCIA, ERLINDA T. MERCADO, FRANCISCO
From the petition, the separate comments thereon, with their
A. ALCUAZ, MA. AZUCENA P. MACEDA, and ALVIN A.
respective annexes, and other pleadings, as well as from admissions
PETERS, Petitioners, v. COMMISSION ON ELECTIONS,
during the oral arguments, the Court gathers the following facts:
Represented by HON. CHAIRMAN JOSE MELO, COMELEC
SPECIAL BIDS and AWARDS COMMITTEE, represented by its
CHAIRMAN HON. FERDINAND RAFANAN, DEPARTMENT OF On December 22, 1997, Congress enacted Republic Act No. (RA)
BUDGET and MANAGEMENT, represented by HON. ROLANDO 8436 authorizing the adoption of an automated election system (AES)
ANDAYA, TOTAL INFORMATION MANAGEMENT CORPORATION in the May 11, 1998 national and local elections and onwards. The
and SMARTMATIC INTERNATIONAL 1998, 2001, and 2004 national and local polls, however, came and
CORPORATION, Respondents. went but purely manual elections were still the order of the day. On
January 23, 2007, the amendatory RA 93694 was passed authorizing
anew the Comelec to use an AES. Of particular relevance are Sections
PETE QUIRINO-QUADRA, Petitioner-in-Intervention.
6 and 10 of RA 9369 originally Secs. 5 and 8, respectively of RA 8436,
as amended each defining Comelec's specific mandates insofar as
SENATE OF THE PHILIPPINES, represented by its President, automated elections are concerned. The AES was not utilized in the
JUAN PONCE ENRILE, Movant-Intervenor. May 10, 2000 elections, as funds were not appropriated for that
purpose by Congress and due to time constraints.
DECISION
RA 9369 calls for the creation of the Comelec Advisory
Council5 (CAC). CAC is to recommend, among other functions, the
VELASCO, JR., J.:
most appropriate, applicable and cost-effective technology to be
applied to the AES.6 To be created by Comelec too is the Technical
In a democratic system of government, the people's voice is sovereign. Evaluation Committee (TEC)7 which is tasked to certify, through an
Corollarily, choosing through the ballots the men and women who are established international certification committee, not later than three
to govern the country is perhaps the highest exercise of democracy. It months before the elections, by categorically stating that the AES,
is thus the interest of the state to insure honest, credible and peaceful inclusive of its hardware and software components, is operating
elections, where the sanctity of the votes and the secrecy of the ballots properly and accurately based on defined and documented standards.8
are safeguarded, where the will of the electorate is not frustrated or
undermined. For when the popular will itself is subverted by election In August 2008, Comelec managed to automate the regional polls in
irregularities, then the insidious seeds of doubt are sown and the ideal the Autonomous Region of Muslim Mindanao9 (ARMM), using direct
of a peaceful and smooth transition of power is placed in jeopardy. To
recording electronics (DRE) technology10 in the province of
automate, thus breaking away from a manual system of election, has Maguindanao; and the optical mark reader/recording (OMR) system,
been viewed as a significant step towards clean and credible elections, particularly the Central Count Optical Scan (CCOS),11 in the rest of
unfettered by the travails of the long wait and cheating that have
ARMM.12 What scores hailed as successful automated ARMM 2008
marked many of our electoral exercises. elections paved the way for Comelec, with some prodding from
senators,13 to prepare for a nationwide computerized run for the 2010
The Commission on Elections (Comelec), private respondents, the national/local polls, with the many lessons learned from the ARMM
National Computer Center and other computer wizards are confident experience influencing, according to the NCC, the technology selection
that nationwide automated elections can be successfully implemented. for the 2010 automated elections.14
Petitioners and some skeptics in the information technology (IT)
industry have, however, their reservations, which is quite Accordingly, in early March 2009, the Comelec released the Request
understandable. To them, the automated election system and the for Proposal (RFP), also known as Terms of Reference (TOR), for the
untested technology Comelec has chosen and set in motion are
nationwide automation of the voting, counting, transmission,
pregnant with risks and could lead to a disastrous failure of elections. consolidation and canvassing of votes for the May 10, 2010
Comelec, they allege, would not be up to the challenge. Cheating on a Synchronized National and Local Elections. What is referred to also in
massive scale, but this time facilitated by a machine, is perceived to be
the RFP and other contract documents as the 2010 Elections
a real possibility. Automation Project (Automation Project) consists of three elaborate
components, as follows:
In this Petition for Certiorari, prohibition and mandamus with prayer for
a restraining order and/or preliminary injunction, petitioners H. Harry L. Component 1: Paper-Based AES.15 1-A. Election Management
Roque, Jr., et al., suing as taxpayers and concerned citizens, seek to System (EMS); 1-B Precinct-Count Optic Scan (PCOS) 16 System and
nullify respondent Comelec's award of the 2010 Elections Automation
1-C. Consolidation/Canvassing System (CCS);
Project (automation project) to the joint venture of Total Information
Management Corporation (TIM) and Smartmatic International
Corporation (Smartmatic)1 and to permanently prohibit the Comelec, Component 2: Provision for Electronic Transmission of Election
TIM and Smartmatic from signing and/or implementing the Results using Public Telecommunications Network; andcralawlibrary
corresponding contract-award.
Component 3: Overall Project Management
By Resolution2 of July 14, 2009, the Court directed the respondents as
well as the University of the Philippines (UP) Computer Center,
And obviously to address the possibility of systems failure, the RFP
National Computer Center (NCC) and Information Technology
required interested bidders to submit, among other things: a continuity
Foundation of the Philippines (Infotech, hereinafter) to submit their
plan17 and a back-up plan.18
collective or separate comments to the petition on or before July 24,
2009. Before any of the comments could actually be filed, Atty. Pete
Quirino-Quadra sought leave to intervene. In another resolution, the Under the two-envelope system designed under the RFP,19 each
Court allowed the intervention and admitted the corresponding petition- participating bidder shall submit, as part of its bid, an Eligibility
in-intervention.3 Envelope20 that should inter alia establish the bidder's eligibility to bid.
On the other hand, the second envelope, or the Bid Envelope itself,
shall contain two envelopes that, in turn, shall contain the technical and/or progress is made in accordance [with pre-set] Schedule of
proposal and the financial proposal, respectively. 21 Payments."35 On the same date, a Notice to Proceed36 was sent to,
and received by, Smartmatic TIM Corporation.
Subsequently, the Comelec Special Bids and Awards Committee
(SBAC), earlier constituted purposely for the aforesaid project, caused Meanwhile, or on July 9, 2009, petitioners interposed the instant
the publication in different newspapers of the Invitation to Apply for recourse which, for all intents and purposes, impugns the validity and
Eligibility and to Bid22 for the procurement of goods and services to be seeks to nullify the July 10, 2009 Comelec-Smartmatic-TIM
used in the automation project.23 Meanwhile, Congress enacted RA Corporation automation contract adverted to. Among others,
9525 appropriating some PhP 11.3 billion as supplemental budget for petitioners pray that respondents be permanently enjoined from
the May 10, 2010 automated national and local elections. implementing the automation project on the submission that:

Of the ten (10) invitation-responding consortia which obtained the bid PUBLIC RESPONDENTS COMELEC AND COMELEC-SBAC
documents, only seven (7) submitted sealed applications for eligibility COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO
and bids24 which, per Bid Bulletin No. 24, were to be opened on a pre- LACK OR EXCESS OF JURISDICTION IN AWARDING THE 2010
set date, following the convening of the pre-bid conference. Under the ELECTIONS AUTOMATION PROJECT TO PRIVATE
RFP, among those eligible to participate in the bidding are RESPONDENTS TIM AND SMARTMATIC FOR THE FOLLOWING
manufacturers, suppliers and/or distributors forming themselves into a REASONS:
joint venture. A joint venture is defined as a group of two or more
manufacturers, suppliers and/or distributors that intend to be jointly and
x x x COMELEC DID NOT CONDUCT ANY PILOT TESTING OF THE
severally responsible or liable for a particular contract.25
x x x PCOS MACHINES OFFERED BY PRIVATE RESPONDENTS
SMARTMATIC AND TIM, IN VIOLATION OF [RA] 8436 (AS
Among the submitted bids was that of the joint venture (JV) of TIM and AMENDED BY [RA] 9369)
Smartmatic, the former incorporated under the Corporation Code of the
Philippines. Smartmatic, on the other hand, was organized under the
THE [PCOS] MACHINES [THUS] OFFERED BY PRIVATE
laws of Barbados.26 For a stated amount, said JV proposed to
RESPONDENTS x x x DO NOT SATISFY THE MINIMUM SYSTEM
undertake the whole automation project, inclusive of the delivery of
CAPABILITIES SET BY [RA] NO. 8436 (AS AMENDED BY [RA]
82,200 PCOS machines. After the conclusion of the eligibility
9369).
evaluation process, only three consortia27 were found and thus
declared as eligible. Further on, following the opening of the passing
bidders' Bid Envelope and evaluating the technical and financial PRIVATE RESPONDENTS x x x DID NOT SUBMIT THE REQUIRED
proposals therein contained, the SBAC, per its Res. No. 09-001, s.- DOCUMENTS DURING THE BIDDING PROCESS THAT SHOULD
2009, declared the above-stated bid of the JV of TIM-Smartmatic as ESTABLISH THE DUE EXISTENCE, COMPOSITION, AND SCOPE
the single complying calculated bid.28 As required by the RFP, the bid OF THEIR JOINT VENTURE, IN VIOLATION OF THE SUPREME
envelope contained an outline of the joint venture's back-up and COURT'S HOLDING IN INFORMATION TECHNOLOGY
continuity or contingency plans,29 in case of a systems breakdown or FOUNDATION OF THE PHILIPPINES, v. COMELEC (G.R. No.
any such eventuality which shall result in the delay, obstruction or 159139, Jan. 13, 2004).
nonperformance of the electoral process.
THERE WAS NO VALID JOINT VENTURE AGREEMENT [JVA]
After declaring TIM-Smartmatic as the best complying bidder, the BETWEEN PRIVATE RESPONDENTS SMARTMATIC AND
SBAC then directed the joint venture to undertake post-qualification TIM DURING THE BIDDING, IN VIOLATION OF THE SUPREME
screening, and its PCOS prototype machinesthe Smarmatic Auditable COURT'S HOLDING IN INFORMATION TECHNOLOGY
Electronic System (SAES) 1800 to undergo end-to-end30 testing to FOUNDATION OF THE PHILIPPINES v. COMELEC x x x WHICH
determine compliance with the pre-set criteria. REQUIRES A JOINT VENTURE TO INCLUDE A COPY OF ITS [JVA]
DURING THE BIDDING.
In its Memorandum of June 01, 2009, on the Subject: Systems
Evaluation Consolidated Report and Status Report on the Post- THE ALLEGED JOINT VENTURE COMPOSED OF PRIVATE
Qualification Evaluation Procedures, the SBAC Technical Working RESPONDENTS SMARTMATIC AND TIM, DOES NOT SATISFY THE
Group (TWG) stated that it was undertaking a 4-day (May 27 to May SUPREME COURT'S DEFINITION OF A "JOINT VENTURE"
30, 2009) test evaluation of TIM and Smartmatic's proposed PCOS ININFORMATION TECHNOLOGY FOUNDATION OF THE
project machines. Its conclusion: "The demo systems presented PHILIPPINES v. COMELEC x x x WHICH "REQUIRES A
PASSED all tests as required in the 26-item criteria specified in the COMMUNITY OF INTEREST IN THE PERFORMANCE OF THE
[RFP]" with 100% accuracy rating.31 The TWG also validated the SUBJECT MATTER."
eligibility, and technical and financial qualifications of the TIM-
Smartmatic joint venture.
Filed as it was before contract signing, the petition understandably did
not implead Smartmatic TIM Corporation, doubtless an indispensable
On June 9, 2009, Comelec, upon the recommendation of its SBAC, the party to these proceedings, an incident that did not escape Comelec's
CAC and other stakeholders, issued Resolution No. (Res.) notice.37
860832 authorizing the SBAC to issue, subject to well-defined
conditions, the notice of award and notice to proceed in favor of the
winning joint venture. As a preliminary counterpoint, either or both public and private
respondents question the legal standing or locus standi of petitioners,
noting in this regard that the petition did not even raise an issue of
Soon after, TIM wrote Comelec expressing its desire to quit the JV transcendental importance, let alone a constitutional question.
partnership. In time, however, the parties were able to patch up what
TIM earlier described as irreconcilable differences between partners.
As an additional point, respondents also urge the dismissal of the
petition on the ground of prematurity, petitioners having failed to avail
What followed was that TIM and Smartmatic, pursuant to the Joint themselves of the otherwise mandatory built-in grievance mechanism
Venture Agreement (JVA),33 caused the incorporation of a joint venture under Sec. 55 in relation to Sec. 58 of RA 9184, also known as
corporation (JVC) that would enter into a contract with the Comelec. the Government Procurement Reform Act, as shall be discussed
On July 8, 2009, the Securities and Exchange Commission issued a shortly.
certificate of incorporation in favor of Smartmatic TIM Corporation. Two
days after, or on July 10, 2009, Comelec and Smartmatic TIM
Corporation, as provider, executed a contract34 for the lease of goods PROCEDURAL GROUNDS
and services under the contract for the contract amount of PhP
7,191,484,739.48, payable as the "Goods and Services are delivered
The Court is not disposed to dismiss the petition on procedural and 58 of the procurement law (RA 9184) and the counterpart
grounds advanced by respondents. provisions found in its Implementing Rules and Regulations (IRR)-A
before seeking judicial remedy. Insofar as relevant, Sec. 55 of RA
9184 provides that decisions of the bids and awards committee (BAC)
Locus Standi and Prematurity
in all stages of procurement may be protested, via a "verified position
paper," to the head of the procuring agency. On the other hand, the
It is true, as postulated, that to have standing, one must, as a rule, succeeding Sec. 58 states that court action may be resorted to only
establish having suffered some actual or threatened injury as a result after the protest contemplated in Sec. 55 shall have been completed.
of the alleged illegal government conduct; that the injury is fairly Petitioners except. As argued, the requirement to comply with the
traceable to the challenged action; and that the injury is likely to be protest mechanism, contrary to what may have been suggested in
redressed by a favorable action.38 The prescription on standing, Infotech, is imposed on the bidders.50
however, is a matter of procedure. Hence, it may be relaxed, as the
Court has often relaxed the rule for non-traditional plaintiffs, like
Petitioners' position is correct. As a matter of common sense, only a
ordinary citizens and taxpayers, when the public interest so requires,
bidder is entitled to receive a notice of the protested BAC action. Only
such as when the matter is of transcendental importance, of
a losing bidder would be aggrieved by, and ergo would have the
overarching significance to society, or of paramount public
personality to challenge, such action. This conclusion finds adequate
interest.39 As we wrote in Chavez v. PCGG,40 where issues of public
support from the ensuing provisions of the aforesaid IRR-A:
importance are presented, there is no necessity to show that the suitor
has experienced or is in actual danger of suffering direct and personal
injury as the requisite injury is assumed. 55.2. The verified position paper shall contain the following documents:

Petitioners' counsel, when queried, hedged on what specific a) The name of bidder;
constitutional proscriptions or concepts had been infringed by the
award of the subject automation project to Smartmatic TIM
b) The office address of the bidder x x x.
Corporation, although he was heard to say that "our objection to the
system is anchored on the Constitution itself a violation [sic] of secrecy
of voting and the sanctity of the ballot."41Petitioners also depicted the SUBSTANTIVE ISSUES
covering automation contract as constituting an abdication by the
Comelec of its election-related mandate under the Constitution, which
We now turn to the central issues tendered in the petition which, in
is to enforce and administer all laws relative to the conduct of
elections. Worse still, according to the petitioners, the abdication, with terms of subject matter, revolved around two concerns, viz: (1) the
its anti-dummy dimension, is in favor of a foreign corporation that will Joint Venture Agreement (JVA) of Smartmatic and TIM; and (2) the
be providing the hardware and software requirements.42 And when PCOS machines to be used. Petitioners veritably introduced another
pressed further, petitioners came out with the observation that, owing issue during the oral arguments, as amplified in their memorandum,
in part to the sheer length of the ballot, the PCOS would not comply i.e. the constitutionality and statutory flaw of the automation contract
with Art. V, Sec. 2 of the Constitution43 prescribing secrecy of voting itself. The petition-in-intervention confined itself to certain features of
and sanctity of the ballot.44 the PCOS machines.

The Joint Venture Agreement: Its Existence and Submission

There is no doubt in our mind, however, about the compelling
significance and the transcending public importance of the one issue
underpinning this petition: the successand the far-reaching grim The issue respecting the existence and submission of the TIM-
implications of the failure of the nationwide automation project that will Smartmatic JVA does not require an extended disquisition, as repairing
be implemented via the challenged automation contract. to the records would readily provide a satisfactory answer. We note in
fact that the petitioners do not appear to be earnestly pressing the said
The doctrinal formulation may vary, but the bottom line is that the Court issue anymore, as demonstrated by their counsel's practically cavalier
may except a particular case from the operations of its rules when the discussion thereof during the oral argument. When reminded, for
instance, of private respondents' insistence on having in fact submitted
demands of justice so require.45 Put a bit differently, rules of procedure
are merely tools designed to facilitate the attainment of their JVA dated April 23, 2009, petitioners' counsel responded as
justice.46 Accordingly, technicalities and procedural barriers should not follows: "We knew your honor that there was, in fact, a joint venture
agreement filed. However, because of the belated discovery that
be allowed to stand in the way, if the ends of justice would not be
subserved by a rigid adherence to the rules of procedure.47 This [there] were irreconcilable differences, we then made a view that this
postulate on procedural technicalities applies to matters of locus joint venture agreement was a sham, at best pro forma because it did
not contain all the required stipulations in order to evidence unity of
standi and the presently invoked principle of hierarchy of courts, which
discourages direct resort to the Court if the desired redress is within interest x x x."51
the competence of lower courts to grant. The policy on the hierarchy of
courts, which petitioners indeed failed to observe, is not an iron-clad Indeed, the records belie petitioners' initial posture that TIM and
rule. For indeed the Court has full discretionary power to take Smartmatic, as joint venture partners, did not include in their submitted
cognizance and assume jurisdiction of special civil actions eligibility envelope a copy of their JVA. The SBAC's Post Qualification
for certiorari andmandamus filed directly with it for exceptionally Evaluation Report (Eligibility) on TIM-Smartmatic, on page 10, shows
compelling reasons48 or if warranted by the nature of the issues clearly the following entry: "Valid Joint Venture Agreement, stating among
and specifically raised in the petition.49 things, that the members are jointly and severally liable for the whole
obligation, in case of joint venture - Documents verified compliance."52
The exceptions that justify a deviation from the policy on hierarchy
appear to obtain under the premises. The Court will for the nonce thus Contrary to what the petitioners posit, the duly notarized JVA, as
turn a blind eye to the judicial structure intended, first and foremost, to couched, explained the nature and the limited purpose53 of the joint
provide an orderly dispensation of justice. venture and expressly defined, among other things, the composition,
scope, and the 60-40 capital structure of the aggroupment.54 The JVA
also contains provisions on the management55 and division of
Hierarchy of Courts
profits.56 Article 357 of the JVA delineates the respective participations
and responsibilities of the joint venture partners in the automation
At this stage, we shall dispose of another peripheral issue before project.
plunging into the core substantive issues tendered in this petition.
Given the foregoing perspective, the Court is at a loss to understand
Respondents contend that petitioners should have availed themselves how petitioners can assert that the Smartmatic-TIM consortium has
of the otherwise mandatory protest mechanism set forth in Sections 55 failed to prove its joint venture existence and/or to submit evidence as
would enable the Comelec to know such items as who it is dealing which it can hold solidary liable under the automation contract, should
with, which between the partners has control over the decision-making there be contract violation. Secondly, there is no requirement under
process, the amount of investment to be contributed by each partner, either RA 8436, as amended, or the RFP, that all the suppliers,
the parties' shares in the profits and like details. Had petitioners only manufacturers or distributors involved in the transaction should be part
bothered to undertake the usual due diligence that comes with good of the joint venture. On the contrary, the Instruction to Biddersas
judgment and examined the eligibility envelope of the Smartmatic-TIM petitioners themselves admit60 allows the bidder to subcontract
joint venture, they would have discovered that their challenge to and portions of the goods or services under the automation project.61
arguments against the joint venture and its JVA have really no factual
basis.
To digress a bit, petitioners have insisted on the non-existence of a
bona fide JVA between TIM and Smarmatic. Failing to gain traction for
It may be, as petitioners observed, that the TIM-Smartmatic joint their indefensible posture, they would thrust on the Court the notion of
venture remained an unincorporated aggroupment during the bid- an invalid joint venture due to the non-inclusion of more companies in
opening and evaluation stages. It ought to be stressed, however, that the existing TIM-Smartmatic joint venture. The irony is not lost on the
the fact of non-incorporation was without a vitiating effect on the Court.
validity of the tender offers. For the bidding ground rules, as spelled
out primarily in the RFP and the clarificatory bid bulletins, does not
This brings us to the twin technical issues tendered herein bearing on
require, for bidding purposes, that there be an incorporation of the
the PCOS machines of Smartmatic.
bidding joint ventures or consortiums. In fact, Bid Bulletin Nos. 19 and
20 recognize the existence and the acceptability of proposals of
unincorporated joint ventures. In response to a poser, for example, At its most basic, the petition ascribes grave abuse of discretion to the
regarding the 60% Filipino ownership requirement in a joint venture Comelec for, among other things, awarding the automation project in
arrangement, the SBAC, in its Bid Bulletin No. 22, stated: "In violation of RA 8436, as amended. Following their line, no pilot test of
an unincorporated joint venture, determination of the required the PCOS technology Smartmatic-TIM offered has been undertaken;
Filipino participation may be made by examining the terms and hence, the Comelec cannot conduct a nationwide automation of the
conditions of the [JVA] and other supporting financial documents 2010 polls using the machines thus offered. Hence, the contract award
submitted by the joint venture." (Emphasis ours.) Petitioners, to be to Smartmatic-TIM with their untested PCOS machines violated RA
sure, have not shown that incorporation is part of the pass/fail criteria 8436, as amended by RA 9369, which mandates that with respect to
used in determining eligibility. the May 2010 elections and onwards, the system procured must have
been piloted in at least 12 areas referred to in Sec. 6 of RA 8436, as
amended. What is more, petitioners assert, private respondents' PCOS
Petitioners have made much of the Court's ruling in Information
machines do not satisfy the minimum system capabilities set by the
Technology Foundation of the Philippines [Infotech] v.
same law envisaged to ensure transparent and credible voting,
Comelec,58 arguing in relation thereto that the partnership of
counting and canvassing of votes. And as earlier narrated, petitioners
Smartmatic and TIM does not meet the Court's definition of a joint
would subsequently add the abdication angle in their bid to nullify the
venture which requires "community of interest in the performance of
automation contract.
the subject matter."

Pilot Testing Not Necessary

Petitioners' invocation of Infotech is utterly misplaced. Albeit Infotech
and this case are both about modernizing the election process and
bidding joint ventures, the relevant parallelism ends there. Cast as they Disagreeing, as to be expected, private respondents maintain that
are against dissimilar factual milieu, one cannot plausibly there is nothing in the applicable law requiring, as a pre-requisite for
set Infotech side with and contextually apply to this case the ratio of the 2010 election automation project award, that the prevailing bidder's
Infotech. Suffice it to delve on the most glaring of differences. In automation system, the PCOS in this case, be subjected to pilot
Infotech, the winning bid pertained to the consortium of Mega Pacific, a testing. Comelec echoes its co-respondents' stance on pilot testing,
purported joint venture. Extant records, however, do not show the with the added observation that nowhere in the statutory provision
formation of such joint venture, let alone its composition. To borrow relied upon are the words "pilot testing" used.62 The Senate's position
from the ponencia of then Justice, later Chief Justice, Artemio and its supporting arguments match those of private respondents.
Panganiban, "there is no sign whatsoever of any [JVA], consortium
agreement [or] memorandum agreement x x x executed among the
The respondents' thesis on pilot testing and the logic holding it together
members of the purported consortium."59 There was in fine no
evidence to show that the alleged joint venture partners agreed to are well taken. There can be no argument about the phrase "pilot test"
constitute themselves into a single entity solidarily responsible for the not being found in the law. But does it necessarily follow that a pilot
test is absolutely not contemplated in the law? We repair to the
entirety of the automation contract. Unlike the purported Mega Pacific
consortium inInfotech, the existence in this case of the bidding joint statutory provision petitioners cited as requiring a pilot run, referring to
venture of Smarmatic and TIM is properly documented and spread all Sec. 6 of RA 8436, as amended by RA 9369, reading as follows:
over the bid documents. And to stress, TIM and Smartmatic, in their
JVA, unequivocally agreed between themselves to perform their Sec. 5. Authority to use an Automated Election System. - To carry out
respective undertakings. And over and beyond their commitments to the above stated-policy, the [Comelec], x x x is hereby authorized to
each other, they undertook to incorporate, if called for by the bidding use an automated election system or systems in the same election in
results, a JVC that shall be solidarily liable with them for any actionable different provinces, whether paper-based or a direct recording
breach of the automation contract. electronic election system as it may deem appropriate and practical for
the process of voting, counting of votes and canvassing/consolidation
In Infotech, the Court chastised the Comelec for dealing with an entity, and transmittal of results of electoral exercises: Provided, that for the
the full identity of which the poll body knew nothing about. Taking a regular national and local elections, which shall be held immediately
after the effectivity of this Act,the AES shall be used in at least two
cue from this holding, petitioners tag the TIM-Smartmatic JVA as
flawed and as one that would leave the Comelec "hanging" for the non- highly urbanized cities and two provinces each in Luzon, Visayas, and
inclusion, as members of the joint venture, of three IT providers. The Mindanao to be chosen by the [Comelec]: Provided, further, That local
government units whose officials have been the subject of
three referred to are Jarltech International, Inc. (Jarltech), a subsidiary
of Smartmatic that manufactures the Smartmatic voting machines; administrative charges within sixteen (16) month prior to the May 14,
Dominion Voting Systems (Domino), the inventor of said PCOS 2007 elections shall not be chosen. Provided, finally, That no area
shall be chosen without the consent of the Sanggunian of the local
machines; and 2GO Transportation System Corporation (2GO), the
subcontractor responsible for the distribution of the PCOS machines government unit concerned. The term local government unit as used in
throughout the country. this provision shall refer to a highly urbanized city or province. In
succeeding regular national or local elections, the AES shall be
implemented. (Emphasis and underscoring added.)
Petitioners' beef against the TIM-Smartmatic JVA is untenable. First
off, the Comelec knows the very entities whom they are dealing with,
RA 9369, which envisages an AES, be it paper-based or direct- deduced from these definitions is that PCOS is merely one of several
recording electronic, took effect in the second week of February 2007 automated voting, counting or canvassing technologies coming within
or thereabout.63 The "regular national and local elections" referred to the term AES, implying in turn that the automated election system or
after the "effectivity of this Act" can be no other than the May 2007 technology that the Comelec shall adopt in future elections need not,
regular elections, during which time the AES shall, as the law is as a matter of mandatory arrangement, be piloted in the adverted two
worded, be used in at least two highly urbanized cities and provinces in highly urbanized cities and provinces.
Luzon, Visayas and Mindanao. The Court takes judicial notice that the
May 2007 elections did not deploy AES, evidently due to the mix of
In perspective, what may be taken as mandatory prerequisite for the
time and funding constraints.
full automation of the 2010 regular national/ local elections is that the
system to be procured for that exercise be a technology tested either
To the petitioners, the underscored portion of the aforequoted Sec. 6 of here or abroad. The ensuing Section 8 of RA 8436, as amended, says
RA 8436 is the pilot-testing provision that Comelec failed to observe. so.

We are not persuaded. SEC 12. Procurement of Equipment and Materials. - To achieve the
purpose of this Act, the Commission is authorized to procure, xxx, by
purchase, lease, rent or other forms of acquisition, supplies,
From the practical viewpoint, the pilot testing of the technology in
equipment, materials, software, facilities, and other services, from local
question in an actual, scheduled electoral exercise under harsh
or foreign sources xxx. With respect to the May 10, 2010 elections and
conditions would have been the ideal norm in computerized system
succeeding electoral exercises, the system procured must have
implementation. The underscored proviso of Sec. 6 of RA 8436 is not,
demonstrated capability and been successfully used in prior electoral
however, an authority for the proposition that the pilot testing of the
exercise here or abroad. Participation in the 2007 pilot exercise shall
PCOS in the 2007 national elections in the areas thus specified is an
not be conclusive of the system's fitness. (Emphasis supplied).
absolute must for the machines' use in the 2010 national/local
elections. The Court can concede that said proviso, with respect to the
May 2007 elections, commands the Comelec to automate in at least 12 While the underscored portion makes reference to a "2007 pilot
defined areas of the country. But the bottom line is that the required exercise," what it really exacts is that, for the automation of the May
2007 automation, be it viewed in the concept of a pilot test or not, is 2010 and subsequent elections, the PCOS or any AES to be procured
not a mandatory requirement for the choice of system in, or a must have demonstrated its capability and success in either a local or
prerequisite for, the full automation of the May 2010 elections. a foreign electoral exercise. And as expressly declared by the
provision, participation in the 2007 electoral exercise is not a
guarantee nor is it conclusive of the system's fitness. In this regard, the
As may be noted, Sec. 6 of RA 8436 may be broken into three
Court is inclined to agree with private respondents' interpretation of the
essential parts, the first partaking of the nature of a general policy
underscored portion in question: "The provision clearly conveys that
declaration: that Comelec is authorized to automate the entire
the [AES] to be used in the 2010 elections need not have been used in
elections. The second part states that for the regular national and local
the 2007 elections, and that the demonstration of its capability need
elections that shall be held in May 2007, Comelec shall use the AES,
not be in a previous Philippine election. Demonstration of the success
with an option, however, to undertake automation, regardless of the
and capability of the PCOS may be in an electoral exercise in a foreign
technology to be selected, in a limited area or, to be more precise, in at
jurisdiction."66 As determined by the Comelec, the PCOS system had
least two highly urbanized cities and two provinces each in Luzon,
been successfully deployed in previous electoral exercises in foreign
Visayas, and Mindanao to be chosen by the Comelec. On the other
countries, such as Ontario, Canada; and New York, USA,67 albeit
hand, the last part, phrased sans reference to the May 2007 elections,
Smartmatic was not necessarily the system provider. But then, RA
commands thus: "[I]n succeeding regular national or local elections,
9369 does not call for the winning bidder of the 2010 automation
the [automated election system] shall be implemented." Taken in its
project and the deploying entity/provider in the foreign electoral
proper context, the last part is indicative of the legislative intent for the
exercise to be one and the same entity. Neither does the law
May 2010 electoral exercise to be fully automated, regardless of
incidentally require that the system be first used in an archipelagic
whether or not pilot testing was run in the 2007 polls.
country or with a topography or a voting population similar to or
approximating that of the Philippines.
To argue that pilot testing is a condition precedent to a full automation
in 2010 would doubtless undermine the purpose of RA 9369. For, as
At any event, any lingering doubt on the issue of whether or not full
aptly observed during the oral arguments, if there was no political
automation of the 2010 regular elections can validly proceed without a
exercise in May 2007, the country would theoretically be barred forever
pilot run of the AES should be put to rest with the enactment in March
from having full automation.
2009 of RA 9525,68 in which Congress appropriated PhP 11.301 billion
to automate the 2010 elections, subject to compliance with the
Sec. 6 of the amended RA 8436, as couched, therefore, unmistakably transparency and accuracy requirements in selecting the relevant
conveys the idea of unconditional full automation in the 2010 elections. technology of the machines, thus:
A construal making pilot testing of the AES a prerequisite or condition
sine qua non to putting the system in operation in the 2010 elections is
Sec. 2. Use of Funds. - x x x Provided, however, That disbursement of
tantamount to reading into said section something beyond the clear
the amounts herein appropriated or any part thereof shall be
intention of Congress, as expressed in the provision itself. We
authorized only in strict compliance with the Constitution, the
reproduce with approval the following excerpts from the comment of
provisions of [RA] No. 9369and other election laws incorporated in
the Senate itself:
said Act as to ensure the conduct of a free, orderly, clean, honest and
credible election and shall adopt such measures that will guaranty
The plain wordings of RA 9369 (that amended RA 8436) commands transparency and accuracy in the selection of the relevant technology
that the 2010 elections shall be fully automated, and such full of the machines to be used on May 10, 2010 automated national and
automation is not conditioned on "pilot testing" in the May 2007 local elections. (Emphasis added.)
elections. Congress merely gave COMELEC the flexibility to partially
use the AES in some parts of the country for the May 2007 elections. 64
It may safely be assumed that Congress approved the bill that
eventually became RA 9525, fully aware that the system using the
Lest it be overlooked, an AES is not synonymous to and ought not to PCOS machines were not piloted in the 2007 electoral exercise. The
be confused with the PCOS. Sec. 2(a) of RA 8436, as amended, enactment of RA 9525 is to us a compelling indication that it was never
defines an AES as "a system using appropriate technology which has Congress' intent to make the pilot testing of a particular automated
been demonstrated in the voting, counting, consolidating, canvassing election system in the 2007 elections a condition precedent to its use
and transmission of election results, and other electoral processes." or award of the 2010 Automation Project. The comment-in-intervention
On the other hand, PCOS refers to a technology wherein an optical of the Senate says as much.
ballot scanner, into which optical scan paper ballots marked by hand
by the voter are inserted to be counted.65 What may reasonably be
Further, the highly charged issue of whether or not the 2008 ARMM (e) Provision for voter verified paper audit trail;
electionscovering, as NCC observed, three conflict-ridden island
provincesmay be treated as substantial compliance with the "pilot test"
(f) System auditability which provides supporting documentation for
requirement must be answered in the affirmative. No less than Senator
verifying the correctness of reported election results;
Richard J. Gordon himself, the author of the law, said that "the system
has been tried and tested in the ARMM elections last year, so we have
to proceed with the total implementation of the law."69 (g) An election management system for preparing ballots and
programs for use in the casting and counting of votes and to
consolidate, report and display election result in the shortest time
We note, though, the conflicting views of the NCC70 and ITFP71 on the
possible;
matter. Suffice it to state at this juncture that the system used in the
2008 ARMM election exercise bears, as petitioners to an extent
grudgingly admit, 72 a similarity with the PCOS. The following, lifted (h) Accessibility to illiterates and disabled voters;
from the Comelec's comment, is to us a fair description of how the two
systems (PCOS and CCOS) work and where the difference lies:
(i) Vote tabulating program for election, referendum or plebiscite;

xxx the elections in the [ARMM] utilized the Counting Center Optical
(j) Accurate ballot counters;
Scan (CCOS), a system which uses the Optical Mark Reader (OMR),
the same technology as the PCOS.
(k) Data retention provision;
Under the CCOS, the voters cast their votes by shading or marking the
circles in the paper ballots which corresponded to the names of their (l) Provide for the safekeeping, storing and archiving of physical or
chosen candidates [like in PCOS]. Thereafter, the ballot boxes were paper resource used in the election process;
brought to the counting centers where they were scanned, counted
and canvassed.
(m) Utilize or generate official ballots as herein defined;

xxx Under the PCOS, the counting, consolidation and canvassing of

the votes are done at the precinct level. The election results at the (a) Provide the voter a system of verification to find out whether or not
precincts are then electronically transmitted to the next level, and so the machine has registered his choice; and
on. xxx PCOS dispenses with the physical transportation of ballot
boxes from the precincts to the counting centers. 73 (o) Configure access control for sensitive system data and function.

Moreover, it has been proposed that a partial automation be In the procurement of this system, the Commission shall develop and
implemented for the May 2010 elections in accordance with Section 5 adopt an evaluation system to ascertain that the above minimum
of RA 8436, as amended by RA 9369 instead of full automation. The system capabilities are met. The evaluation system shall be developed
Court cannot agree as such proposition has no basis in law. Section 5, with the assistance of an advisory council.
as worded, does not allow for partial automation. In fact, Section 5
clearly states that "the AES shall be implemented nationwide."74 It
behooves this Court to follow the letter and intent of the law for full From the records before us, the Court is fairly satisfied that the
automation in the May 2010 elections. Comelec has adopted a rigid technical evaluation mechanism, a set of
26-item/check list criteria, as will be enumerated shortly, to ensure
compliance with the above minimum systems capabilities.
PCOS Meets Minimum Capabilities Standards
The SBAC Memorandum77 of June 03, 2009, as approved by Comelec
As another ground for the nullification of the automation contract, Res. 8608,78 categorically stated that the SBAC-TWG submitted its
petitioners posit the view that the PCOS machines do not satisfy the report that TIM/Smartmatic's proposed systems and machines
minimum system capabilities prescribed by RA 8436, as amended. To PASSED all the end-to-end demo tests using the aforementioned 26-
a specific point, they suggest that the PCOS system offered and item criteria, inclusive of the accuracy rating test of at least 99.955%.
accepted lacks the features that would assure accuracy in the As appearing in the SBAC-TWG report, the corresponding
recording and reading of votes, as well as in the tabulation, answers/remarks to each of the 26 individual items are as herein
consolidation/canvassing, electronic transmission, storage results and indicated:79
accurate ballot counting.75 In this particular regard, petitioners allege
that, based on Smartmatic's website, the PCOS has a margin of error
of from 2% to 10%, way beyond that of the required 99.99% accuracy
in the counting of votes.76 ITEM REQUIREMENT REMARK/DESCRIPTION

The minimum system capabilities provision cited is Sec. 7 of RA 8436, 1 Does the system allow Yes. The proposed PCOS
as amended, and the missing features referred to by petitioners are manual feeding of a ballot machine accepted the test
pars. (b) and (j). In full, Sec. 7 of RA 8436, as amended, reads: into the PCOS machine? ballots which were manually
fed one at a time.
SEC. 6. Minimum System Capabilities. - The automated election
system must at least have the following functional capabilities:
2 Does the system scan a Yes. A 30-inch ballot was
ballot sheet at the speed used in this test. Scanning
(a) Adequate security against unauthorized access; of at least 2.75 inches per the 30-inch ballot took 2.7
second? seconds, which translated to
(b) Accuracy in recording and reading of votes as well as in the 11.11inches per second.
tabulation, consolidation/canvassing, electronic transmission, and
storage of results;
3 Is the system able to Yes the system captured the
capture and store in an images of the 1,000 ballots
(c) Error recovery in case of non-catastrophic failure of device; encrypted format the in encrypted format. Each of
digital images of the ballot the 1,000 images files
(d) System integrity which ensures physical stability and functioning of for at least 2,000 ballot contained the images of the
the vote recording and counting process;
 sides (1,000 ballots, with front and back sides of the to, the use of error rejected by the machine and
back to back printing)? ballot, totaling to 2,000 ballot prompts and other related gives instructions to the
side. instructions? voter on what to do next, or
when there was a ballot jam
error.
To verify the captured ballot
images, decrypted copies of
the encrypted files were also 10 Does the system count Yes. The two rounds of tests
provided. The same were the voter's vote as marked were conducted for this test
found to be digitized
on the ballot with an using only valid
representations of the accuracy rating of at least marks/shades on the ballots.
ballots cast. 99.995%? 20,000 marks were required
to complete this test, with
only one (1) allowable
4 Is the system a fully Yes. The proposed PCOS is
reading error.
integrated single device a fully integrated single
as described in item no. 4 device, with built-in printer
of Component 1-B? and built-in data 625 ballots with 32 marks
communications ports each were used for this test.
(Ethernet and USB). During the comparison of
the PCOS-generated results
with the manually
5 Does the system have a Yes. A portion of a filled up prepared/predetermined
scanning resolution of at marked oval was blown up results, it was found out that
least 200 dpi? using image editor software there were seven (7) marks
to reveal the number of dots which were inadvertently
per inch. The sample image missed out during ballot
showed 200 dpi. preparation by the TWG.
Although the PCOS-
generated results turned out
File properties of the
to be 100% accurate, the
decrypted image file also
20,000-mark was not met
revealed 200 dpi.
thereby requiring the test to
be repeated.
6 Does the system scan in Yes. 30 shades of gray were
grayscale? scanned in the test PCOS To prepare for other
machine, 20 of which were possible missed out
required, exceeding the marks,650 ballots with
required 4-bit/16 levels of (20,800 marks) were used
gray as specified in the Bid for the next round of test,
Bulletin No. 19. which also yielded 100%
accuracy.

7 Does the system require Yes. The system required

authorization and the use of a security key 11 Does the system detect Yes. This test made use of
authentication of all with different sets of and reject fake or one (1) photocopied ballot
operators, such as, but passwords/PINs for spurious, and previously and one (1) "re-created"
not limited to, usernames Administrator and Operator scanned ballots? ballot. Both were rejected by
and passwords, with users. the PCOS.
multiple user access
levels?
12 Does the system scan Yes. Four (4) ballots with
both sides of a ballot and valid marks were fed into the
8 Does the system have an Yes. The PCOS machine in any orientation in one PCOS machine in the four
electronic display? makes use of an LCD pass? (4) portrait orientations
display to show information: specified in Bid Bulletin No.
4 (either back or front,
upside down or right side
 if a ballot may be up), and all were accurately
inserted into the captured.
machine;
 if a ballot is being
processed; if a 13 Does the system have Yes. The system was able to
ballot is being necessary safeguards to recognize if the security
rejected; determine the authenticity features on the ballot are
 on other of a ballot, such as, but "missing".
instructions and not limited to, the use of
information to the bar codes, holograms,
Aside from the test on the
voter/operator. color shifting ink, micro
fake or spurious ballots
printing, to be provided on
(Item No. 11), three (3) test
the ballot, which can be
ballots with tampered bar
recognized by the
codes and timing marks
system?
9 Does the system employ Yes. The PCOS showed were used and were all
error handling procedures, error messages on its rejected by the PCOS
including, but not limited screen whenever a ballot is
 machine. These partial shade marks
were all recognized by the
PCOS machine
The photocopied ballot in
the test for Item No. 11 was
not able to replicate the UV 18 Does the system Yes. One (1) test ballot with
ink pattern on top portion of
recognize check (ü)marks one check (ü) mark, using a
the ballot causing the on the appropriate space pencil, was used for this
rejection of the ballot. on the ballot opposite the test.
name of the candidate to
be voted for?
14 Are the names of the Yes. The Two sample test The mark was recognized
candidates pre-printed on ballots of different lengths successfully.
the ballot? were provided: one (1) was
14 inches long while the
other was 30 inches long. 19 Does the system Yes. One (1) test ballot with
Both were 8.5 inches wide. recognize x marks on the one x mark, using a pencil,
appropriate space on the was used for this test.
ballot opposite the name
The first showed 108 pre- of the candidate to be
printed candidate names for The mark was recognized
voted for?
the fourteen (14) successfully.
contests/positions, including
two (2) survey questions on
gender and age group, and 20 Does the system Yes. The 1000 ballots used
a plebiscite question. recognize both pencil and in the accuracy test (Item
ink marks on the ballot? No. 10) were marked using
the proposed marking pen
The other showed 609 pre- by the bidder.
printed candidate names,
also for fourteen (14)
positions including three (3) A separate ballot with one
survey questions. (1) pencil mark was also
tested. This mark was also
recognized by the PCOS
15 Does each side of the Yes. The 30-inch ballot, machine. Moreover, the
ballot sheet accommodate which was used to test Item tests for Items No. 17, 18
at least 300 names of No. 2, contained 309 names and 19 were made using
candidates with a for the national positions and pencil marks on the ballots.
minimum font size of 10, 300 names for local
in addition to other positions. The total pre-
mandatory information printed names on the ballot 21 In a simulation of a Yes. Five (5) ballots were
required by law? totaled 609. system shut down, does used in this test. The power
the system have error cord was pulled from the
recovery features? PCOS while the 3rd ballot
This type of test ballot was was in the middle of the
also used for test voting by scanning procedure, such
the public, including that it was left "hanging" in
members of the media. the ballot reader.

Arial Narrow, font size 10, After resumption of regular

was used in the printing of power supply, the PCOS
the candidate names. machine was able to restart
successfully with notification
to the operator that there
16 Does the system Yes. The ballots used for the were two (2) ballots already
recognize full shade accuracy test (Item No. 10),
cast in the machine. The
marks on the appropriate which made use of full "hanging" 3rd ballot was
space on the ballot shade marks, were also returned to the operator and
opposite the name of the used in this test and were
was able to be re-fed into
candidate to be voted for? accurately recognized by the the PCOS machine. The
PCOS machine. marks on all five (5) were all
accurately recognized.
17 Does the system Yes. Four (4) test ballots
recognize partial shade were used with one (1) mark 22 Does the system have Yes. The PCOS was able to
marks on the appropriate each per ballot showing the transmission and transmit to the CCS during
space on the ballot following pencil marks:
consolidation/canvassing the end-to-end
opposite the name of the capabilities? demonstration using GLOBE
candidate to be voted for?
 top half shade; prepaid Internet kit.
 bottom half shade;
 left half shade; 23 Does the system generate Yes. The PCOS saves a
and a backup copy of the backup copy of the ERs,
 right half shade generated reports, in a ballot images, statistical
removable data storage report and audit log into a
device? Compact Flash (CF) Card.
24 Does the system have Yes. A 12 bolt 18AH battery transmittal results by the
alternative power sources, lead acid was used in this central server from the
which will enable it to fully test. The initial test had to be PCOS.
operate for at least 12 repeated due to a short
hours? circuit, after seven (7) hours
from start-up without ballot
scanning. This was Given the foregoing and absent empirical evidence to the contrary, the
explained by TIM- Court, presuming regularity in the performance of regular duties, takes
Smartmatic to be caused by the demo-testing thus conducted by SBAC-TWG as a reflection of the
non-compatible wiring of the capability of the PCOS machines, although the tests, as Comelec
battery to the PCOS. A admits,80 were done literally in the Palacio del Governador building,
smaller wire than what is where a room therein simulated a town, the adjoining room a city, etc.
required was inadvertently Perusing the RFP, however, the real worth of the PCOS system and
used, likening the situation the machines will of course come after they shall have been subjected
to incorrect wiring of a car to the gamut of acceptance tests expressly specified in the RFP,
battery. Two (2) COMELEC namely, the lab test, field test, mock election test, transmission test
electricians were called to and, lastly, the final test and sealing procedure of all PCOS and CCS
confirm TIM-Smartmatic's units using the actual Election Day machine
explanation. The PCOS configuration.81 ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
machine was connected to
regular power and started Apropos the counting-accuracy feature of the PCOS machines,
successfully. The following petitioners no less impliedly admit that the web page they appended to
day, the "re-test" was their petition, showing a 2% to 10% failing rate, is no longer
completed in 12 hours and current.82 And if they bothered to examine the current website of
40 minutes xxx 984 ballots Smartmatic specifically dealing with its SAES 1800, the PCOS system
were fed into the machine. it offered, they would have readily seen that the advertised accuracy
The ER, as generated by the rating is over "99.99999%."83 Moreover, a careful scrutiny of the old
PCOS was compared with webpage of Smarmatic reveals that the 2% to 10% failure rate applied
predetermined result, to "optical scanners" and not to SAES. Yet the same page discloses
showed 100% accuracy. that the SAES has "100%" accuracy. Clearly, the alleged 2% to 10%
failing rate is now irrelevant and the Court need not belabor this and
the equally irrelevant estoppel principle petitioners impose on us.
25 Is the system capable of Yes. The PCOS prints
generating and printing reports via its built-in printer
reports? which includes: Intervenor Cuadra's concern relates to the auditability of the election
results. In this regard, it may suffice to point out that PCOS, being a
paper-based technology, affords audit since the voter would be able, if
1. Initialization Report; 2. need be, to verify if the machine had scanned, recorded and counted
Election Returns (ER); 3. his vote properly. Moreover, it should also be noted that the PCOS
PCOS Statistical Report; 4. machine contains an LCD screen, one that can be programmed or
Audit Log. configured to display to the voter his votes as read by the machine. 84

26 Did the bidder Yes. An end-to-end No Abdication of Comelec's Mandate and Responsibilty
successfully demonstrate demonstration of all
EMS, voting counting, proposed systems was
As a final main point, petitioners would have the Comelec-Smartmatic-
consolidation/canvassing presented covering:
TIM Corporation automation contract nullified since, in violation of the
and transmission? importing of election data
Constitution, it constitutes a wholesale abdication of the poll body's
into the EMS; creation of
constitutional mandate for election law enforcement. On top of this
election configuration data
perceived aberration, the mechanism of the PCOS machines would
for the PCOS and the CCS
infringe the constitutional right of the people to the secrecy of the ballot
using EMS; creation of ballot
which, according to the petitioners, is provided in Sec. 2, Art. V of the
faces using EMS;
Constitution.85
configuring the PCOS and
the CCS using the EMS-
generated election The above contention is not well taken.
configuration file;
initialization, operation,
The first function of the Comelec under the Constitution86 and the
generation of reports and
Omnibus Election Code for that matter relates to the enforcement and
backup using the PCOS;
administration of all laws and regulations relating to the conduct of
electronic transmission of
elections to public office to ensure a free, orderly and honest electoral
results to the: [1] from the
exercise. And how did petitioners come to their conclusion about their
PCOS to city/municipal CCS
abdication theory? By acceding to Art. 3.3 of the automation contract,
and the central server. [2]
Comelec relinquished, so petitioners claim, supervision and control of
from the city/municipal CCS
the system to be used for the automated elections. To a more specific
to the provincial CCS. [3]
point, the loss of control, as may be deduced from the ensuing
from the provincial CCS to
exchanges, arose from the fact that Comelec would not be holding
the national CCS; receipt
possession of what in IT jargon are the public and private keys pair.
and canvass of transmitted
results: [1] by the
city/municipal CCS from the CHIEF JUSTICE: Well, more specifically are you saying that the main
PCOS. [2] by the provincial course of this lost of control is the fact that SMARTMATIC holds the
CCS from the city/municipal public and private keys to the sanctity of this system?cralawred
CCS. [3] by the national
CCS from the provincial
CCS; receipt of the ATTY. ROQUE: Yes, Your Honor, as well as the fact that they control
the program embedded in the key cost that will read their votes by
which the electorate may verify that their votes were counted.
CHIEF JUSTICE: You are saying that SMARTMATIC and not its different fields to bring about the success of the 2010 automated
partner TIM who hold these public and private keys?cralawred elections.

ATTY. ROQUE: Yes, Your Honor. Public respondent COMELEC will partner with Smartmatic TIM
Corporation for the training and hiring of the IT personnel as well as for
the massive voter-education campaign. There is in fact a budget
The Court is not convinced. There is to us nothing in Art 3.3 of the
allocation x x x for these undertakings. x x x
automation contract, even if read separately from other stipulations
and the provisions of the bid documents and the Constitution itself, to
support the simplistic conclusion of abdication of control pressed on As regards the requirement of RA 9369 that IT-capable personnel shall
the Court. Insofar as pertinent, Art 3.3 reads: be deputized as a member of the BEI and that another IT-capable
person shall assist the BOC, public respondent COMELEC shall
partner with DOST and other agencies and instrumentalities of the
3.3 The PROVIDER shall be liable for all its obligations under this
government.
Project and the performance of portions thereof by other persons or
entities not parties to this Contract shall not relieve the PROVIDER of
said obligations and concomitant liabilities. In not so many words during the oral arguments and in their respective
Memoranda, public and private respondents categorically rejected
outright allegations of abdication by the Comelec of its constitutional
SMARTMATIC, as the joint venture partner with the greater track
duty. The petitioners, to stress, are strangers to the automation
record in automated elections, shall be in charge of the technical
contract. Not one participated in the bidding conference or the bidding
aspects of the counting and canvassing software and hardware,
proper or even perhaps examined the bidding documents and,
including transmission configuration and system integration.
therefore, none really knows the real intention of the parties. As case
SMARTMATIC shall also be primarily responsible for preventing and
law tells us, the court has to ferret out the real intent of the parties.
troubleshooting technical problems that may arise during the elections.
What is fairly clear in this case, however, is that petitioners who are not
(Emphasis added.)
even privy to the bidding process foist upon the Court their own view
on the stipulations of the automation contract and present to the Court
The proviso designating Smartmatic as the joint venture partner in what they think are the parties' true intention. It is a study of outsiders
charge of the technical aspect of the counting and canvassing wares appearing to know more than the parties do, but actually speculating
does not to us translate, without more, to ceding control of the electoral what the parties intended. The following is self-explanatory:
process to Smartmatic. It bears to stress that the aforesaid designation
of Smartmatic was not plucked from thin air, as it was in fact an
CHIEF JUSTICE: Why did you say that it did not, did you talk with the
eligibility requirement imposed, should the bidder be a joint venture.
Chairman and Commissioners of COMELEC that they failed to perform
Part 5, par. 5.4 (e) of the Instruction to Bidders on the subject Eligible
this duty, they did not exercise this power of control?cralawred
Bidders, whence the second paragraph of aforequoted Art. 3.3 came
from, reads:
ATTY. ROQUE : Your Honor, I based it on the fact that it was the
COMELEC in fact that entered into this contract '.
5.4 A JV of two or more firms as partners shall comply with the
following requirements.
CHIEF JUSTICE : Yes, but my question is - did you confront the
COMELEC officials that they forfeited their power of control in over our
xxx
election process?cralawred

(e) The JV member with a greater track record in automated elections,

ATTY. ROQUE : We did not confront, your Honor. We impugned their
shall be in-charge of the technical aspects of the counting and
acts, Your Honor.92
canvassing software and hardware, including transmission
configuration and system integration
Just as they do on the issue of control over the electoral process,
petitioners also anchor on speculative reasoning their claim that
And lest it be overlooked, the RFP, which forms an integral part of the
Smartmatic has possession and control over the public and private
automation contract,87 has put all prospective bidders on notice of
keys pair that will operate the PCOS machines. Consider: Petitioners'
Comelec's intent to automate and to accept bids that would meet
counsel was at the start cocksure about Smartmatic's control of these
several needs, among which is "a complete solutions provider' which
keys and, with its control, of the electoral process. 93
can provide' effective overall nationwide project management service'
under COMELEC supervision and control, to ensure effective and
successful implementation of the [automation] Several questions later, his answers had a qualifying tone:
Project."88 Complementing this RFP advisory as to control of the
election process is Art. 6.7 of the automation contract, providing:
JUSTICE NACHURA: And can COMELEC under the contract not
demand that it have access, that it be given access to and in fact
6.7 Subject to the provisions of the General Instructions to be issued generate its own keys independently with SMARTMATIC so that it
by the Commission En Banc, the entire processes of voting, counting, would be COMELEC and not SMARTMATIC that would have full
transmission, consolidation and canvassing of votes shall be control of the technology insofar as the keys are concerned
conducted by COMELEC's personnel and officials, and their xxx?cralawred
performance, completion and final results according to specifications
and within the specified periods shall be the shared responsibility of
ATTY. ROQUE: I do not know if COMELEC will be in a position to
COMELEC and the PROVIDER. (Emphasis added.)
generate these keys, xxx.94

But not one to let an opportunity to score points pass by, petitioners
And subsequently, the speculative nature of petitioners' position as to
rhetorically ask: "Where does Public Respondent Comelec intend to
who would have possession and control of the keys became apparent.
get this large number of professionals, many of whom are already
gainfully employed abroad?"89 The Comelec, citing Sec. 390 and Sec. 5
of RA 8436,91as amended, aptly answered this poser in the following CHIEF JUSTICE: Yes, but did you check with the COMELEC who will
wise: be holding these two keys x x x did you check with COMELEC whether
this system is correct?cralawred
x x x [P]ublic respondent COMELEC, in the implementation of the
automated project, will forge partnerships with various entities in ATTY.ROQUE: We have not had occasion to do so, x x x Your Honor.
 xxx bidder, TIM-Smartmatic joint venture, has Smartmatic, a foreign
corporation, owning 40% of the equity in, first, the joint venture
partnership, and then in Smartmatic TIM Corporation.
CHIEF JUSTICE: Why do you make that poor conclusion against the
COMELEC x x x May not the COMELEC hire the services of experts in
order for the institution to be able to discharge its constitutional The Anti-Dummy Law97 pertinently states:
functions?cralawred
Section 1. Penalty. In all cases in which any constitutional or legal
ATTY. ROQUE: That is true, but x x x there is too much reliance on provision requires Philippine or any other specific citizenship as a
individuals who do not have the same kind of accountability as public requisite for the exercise or enjoyment of a right, franchise or privilege,
officers x x x any citizen of the Philippines or of any other specific country who
allows his name or citizenship to be used for the purpose of evading
such provision, and any alien or foreigner profiting thereby, shall be
CHIEF JUSTICE: Are you saying that the COMELEC did not consult
punished by imprisonment xxx and by a fine xxx. crvll
with available I.T. experts in the country before it made the bidding
rules before it conducted the bidding and make the other policy
judgments?cralawred SECTION 2. Simulation of minimum capital stock - In all cases in
which a constitutional or legal provision requires that a corporation or
association may exercise or enjoy a right, franchise or privilege, not
ATTY. ROQUE: Your Honor, what I am sure is that they did not confer
less than a certain per centum of its capital must be owned by citizens
with the I.T. Foundation x x x.
of the Philippines or any other specific country, it shall be unlawful to
falsely simulate the existence of such minimum stock or capital as
CHIEF JUSTICE: But is that foundation the only expert, does it have a owned by such citizen for the purpose of evading such provision. xxx
monopoly of knowledge?95
SECTION 2-A. Unlawful use, Exploitation or Enjoyment. Any person,
The Court, to be sure, recognizes the importance of the vote-security corporation, or association which, having in its name or under its
issue revolving around the issuance of the public and private keys pair control, a right, franchise, privilege, property or business, the exercise
to the Board of Election Inspectors, including the digital signatures. or enjoyment of which is expressly reserved by the Constitution or the
The NCC comment on the matter deserves mention, appearing to hew laws to citizens of the Philippines or of any other specific country, or to
as it does to what appear on the records. The NCC wrote: corporations or associations at least sixty per centum of the capital of
which is owned by such citizens, permits or allows the use, exploitation
or enjoyment thereof by a person, corporation, or association not
The RFP/TOR used in the recent bidding for the AES to be used in the possessing the requisites prescribed by the Constitution or the laws of
2010 elections specifically mandated the use of public key the Philippines; or leases, or in any other way, transfers or conveys
cryptography. However, it was left to the discretion of the bidder to said right, franchise, privilege, property or business to a person,
propose an acceptable manner of utilization for approval/acceptance of corporation or association not otherwise qualified under the
the Comelec. Nowhere in the RFP/TOR was it indicated that Constitution xxx shall be punished by imprisonment xxx (Emphasis
COMELEC would delegate to the winning bidder the full discretion, added.)
supervision and control over the manner of PKI [Public Key
Infrastructure] utilization.
The Anti-Dummy Law has been enacted to limit the enjoyment of
certain economic activities to Filipino citizens or corporations. For
With the view we take of the automation contract, the role of
liability for violation of the law to attach, it must be established that
Smartmatic TIM Corporation is basically to supply the goods necessary there is a law limiting or reserving the enjoyment or exercise of a right,
for the automation project, such as but not limited to the PCOS franchise, privilege, or business to citizens of the Philippines or to
machines, PCs, electronic transmission devices and related
corporations or associations at least 60 per centum of the capital of
equipment, both hardware and software, and the technical services which is owned by such citizens. In the case at bench, the Court is not
pertaining to their operation. As lessees of the goods and the back-up aware of any constitutional or statutory provision classifying as a
equipment, the corporation and its operators would provide assistance
nationalized activity the lease or provision of goods and technical
with respect to the machines to be used by the Comelec which, at the services for the automation of an election. In fact, Sec. 8 of RA 8436,
end of the day, will be conducting the election thru its personnel and as amended, vests the Comelec with specific authority to acquire AES
whoever it deputizes.
from foreign sources, thus:

And if only to emphasize a point, Comelec's contract is with SEC 12. Procurement of Equipment and Materials. - To achieve the
Smartmatic TIM Corporation of which Smartmatic is a 40% minority
purpose of this Act, the Commission is authorized to procure, xxx, by
owner, per the JVA of TIM and Smartmatic and the Articles of purchase, lease, rent or other forms of acquisition, supplies,
Incorporation of Smartmatic TIM Corporation. Accordingly, any equipment, materials, software, facilities, and other services, from local
decision on the part or on behalf of Smartmatic will not be binding on
or foreign sources xxx. (Emphasis added.)
Comelec. As a necessary corollary, the board room voting
arrangement that Smartmatic and TIM may have agreed upon as joint
venture partners, inclusive of the veto vote that one may have power Petitioners cite Executive Order No. (EO) 584,98 Series of 2006,
over the other, should really be the least concern of the Comelec. purportedly limiting "contracts for the supply of materials, goods and
commodities to government-owned or controlled corporation,
company, agency or municipal corporation" to corporations that are
Parenthetically, the contention that the PCOS would infringe on the
60% Filipino. We do not quite see the governing relevance of EO 584.
secrecy and sanctity of the ballot because, as petitioners would put it, For let alone the fact that RA 9369 is, in relation to EO 584, a
the voter would be confronted with a "three feet" long ballot, 96 does not subsequent enactment and, therefore, enjoys primacy over the
commend itself for concurrence. Surely, the Comelec can put up such
executive issuance, the Comelec does fall under the category of a
infrastructure as to insure that the voter can write his preference in government-owned and controlled corporation, an agency or a
relative privacy. And as demonstrated during the oral arguments, the municipal corporation contemplated in the executive order.
voter himself will personally feed the ballot into the machine. A voter, if
so minded to preserve the secrecy of his ballot, will always devise a
way to do so. By the same token, one with least regard for secrecy will A view has been advanced regarding the susceptibility of the AES to
likewise have a way to make his vote known. hacking, just like the voting machines used in certain precincts in
Florida, USA in the Gore-Bush presidential contests. However, an
analysis of post-election reports on the voting system thus used in the
During the oral arguments, the notion of a possible violation of the Anti- US during the period material and the AES to be utilized in the 2010
Dummy Law cropped up, given the RFP requirement of a joint venture
automation project seems to suggest stark differences between the
bidder to be at least be 60% Filipino. On the other hand, the winning two systems. The first relates to the Source Code, defined in RA 9369
as "human readable instructions that define what the computer that disaster is just waiting to happen, that PCOS would not work on
equipment will do."99 The Source Code for the 2010 AES shall be election day.
available and opened for review by political parties, candidates and the
citizens' arms or their representatives;100 whereas in the US precincts
Congress has chosen the May 2010 elections to be the maiden run for
aforementioned, the Source Code was alleged to have been kept
full automation. And judging from what the Court has heard and read in
secret by the machine manufacture company, thus keeping the
the course of these proceedings, the choice of PCOS by Comelec was
American public in the dark as to how exactly the machines counted
not a spur-of-moment affair, but the product of honest-to-goodness
their votes. And secondly, in the AES, the PCOS machines found in
studies, consultations with CAC, and lessons learned from the ARMM
the precincts will also be the same device that would tabulate and
2008 automated elections. With the backing of Congress by way of
canvass the votes; whereas in the US, the machines in the precincts
budgetary support, the poll body has taken this historic, if not
did not count the votes. Instead the votes cast appeared to have been
ambitious, first step. It started with the preparation of the RFP/TOR,
stored in a memory card that was brought to a counting center at the
with a list of voluminous annexes embodying in specific detail the
end of the day. As a result, the hacking and cheating may have
bidding rules and expectations from the bidders. And after a hotly
possibly occurred at the counting center.
contested and, by most accounts, a highly transparent public bidding
exercise, the joint venture of a Filipino and foreign corporation won
Additionally, with the AES, the possibility of system hacking is very and, after its machine hurdled the end-to-end demonstration test, was
slim. The PCOS machines are only online when they transmit the eventually awarded the contract to undertake the automation project.
results, which would only take around one to two minutes. In order to Not one of the losing or disqualified bidders questioned, at least not
hack the system during this tiny span of vulnerability, a super computer before the courts, the bona fides of the bidding procedures and the
would be required. Noteworthy also is the fact that the memory card to outcome of the bidding itself.
be used during the elections is encrypted and read-only meaning no
illicit program can be executed or introduced into the memory card.
Assayed against the provisions of the Constitution, the enabling
automation law, RA 8436, as amended by RA 9369, the RFP and even
Therefore, even though the AES has its flaws, Comelec and the Anti-Dummy Law, which petitioners invoked as an afterthought, the
Smartmatic have seen to it that the system is well-protected with Court finds the project award to have complied with legal prescriptions,
sufficient security measures in order to ensure honest elections. and the terms and conditions of the corresponding automation contract
in question to be valid. No grave abuse of discretion, therefore, can be
laid on the doorsteps of respondent Comelec. And surely, the winning
And as indicated earlier, the joint venture provider has formulated and
joint venture should not be faulted for having a foreign company as
put in place a continuity and back-up plans that would address the
partner.
understandable apprehension of a failure of elections in case the
machines falter during the actual election. This over-all fall-back
strategy includes the provisions for 2,000 spare PCOS machines on The Comelec is an independent constitutional body with a distinct and
top of the 80,000 units assigned to an equal number precincts pivotal role in our scheme of government. In the discharge of its
throughout the country. The continuity and back-up plans seek to awesome functions as overseer of fair elections, administrator and
address the following eventualities:(1) The PCOS fails to scan lead implementor of laws relative to the conduct of elections, it should
ballots; (2) The PCOS scans the ballots, but fails to print election not be stymied with restrictions that would perhaps be justified in the
returns (ERs); and/or (3) The PCOS prints but fails to transmit the ERs. case of an organization of lesser responsibility.103 It should be afforded
In the event item #1 occurs, a spare PCOS, if available, will be brought ample elbow room and enough wherewithal in devising means and
in or, if not available, the PCOS of another precinct (PCOS 2 for initiatives that would enable it to accomplish the great objective for
clarity), after observing certain defined requirements,101 shall be used. which it was created to promote free, orderly, honest and peaceful
Should all the PCOS machines in the entire municipality/city fail, elections. This is as it should be for, too often, Comelec has to make
manual counting of the paper ballots and the manual accomplishment decisions under difficult conditions to address unforeseen events to
of ERs shall be resorted to in accordance with Comelec promulgated preserve the integrity of the election and in the process the voice of the
rules on appreciation of automated ballots.102 In the event item #2 people. Thus, in the past, the Court has steered away from interfering
occurs where the PCOS machines fail to print ERs, the use of spare with the Comelec's exercise of its power which, by law and by the
PCOS and the transfer of PCOS-2 shall be effected. Manual counting nature of its office properly pertain to it. Absent, therefore, a clear
of ERs shall be resorted to also if all PCOS fails in the entire showing of grave abuse of discretion on Comelec's part, as here, the
municipality. And should eventuality #3 transpire, the following back-up Court should refrain from utilizing the corrective hand of certiorari to
options, among others, may be availed of: bringing PCOS-1 to the review, let alone nullify, the acts of that body. This gem, while not on all
nearest precinct or polling center which has a functioning transmission fours with, is lifted from, the Court's holding in an old but oft-cited case:
facility; inserting transmission cable of functioning transmission line to
PCOS-1 and transmitting stored data from PCOS-1 using functioning
x x x We may not agree fully with [the Comelec's] choice of means, but
transmission facility.
unless these are clearly illegal or constitute gross abuse of discretion,
this court should not interfere. Politics is a practical matter, and political
The disruption of the election process due to machine breakdown or questions must be dealt with realistically not from the standpoint of
malfunction may be limited to a precinct only or could affect an entire pure theory [or speculation]. x x x
municipal/city. The worst case scenario of course would be the
wholesale breakdown of the 82,000 PCOS machines. Nonetheless,
xxx
even in this most extreme case, failure of all the machines would not
necessarily translate into failure of elections. Manual count tabulation
and transmission, as earlier stated, can be done, PCOS being a paper- There are no ready-made formulas for solving public problems. Time
ballot technology. If the machine fails for whatever reason, the paper and experience are necessary to evolve patterns that will serve the
ballots would still be there for the hand counting of the votes, manual ends of good government. In the matter of the administration of the
tabulation and transmission of the ERs. Failure of elections laws relative to the conduct of elections, x x x we must not by any
consequent to voting machines failure would, in fine, be a very remote excessive zeal take away from the [Comelec] the initiative which by
possibility. constitutional and legal mandates properly belongs to it. Due regard to
the independent character of the Commission x x x requires that the
power of this court to review the acts of that body should, as a general
A final consideration.
proposition, be used sparingly, but firmly in appropriate cases. 104 x x x

The first step is always difficult. Hardly anything works, let alone ends
The Court, however, will not indulge in the presumption that nothing
up perfectly the first time around. As has often been said, if one looks
would go wrong, that a successful automation election unmarred by
hard enough, he will in all likelihood find a glitch in any new system. It
fraud, violence, and like irregularities would be the order of the moment
is no wonder some IT specialists and practitioners have considered the
on May 10, 2010. Neither will it guarantee, as it cannot guarantee, the
PCOS as unsafe, not the most appropriate technology for Philippine
effectiveness of the voting machines and the integrity of the counting
elections, and "easily hackable," even. And the worst fear expressed is
and consolidation software embedded in them. That task belongs at The COMELEC, however, was not able to implement the AES for the
the first instance to Comelec, as part of its mandate to ensure clean positions of President, Vice President, senators and parties,
and peaceful elections. This independent constitutional commission, it organizations or coalitions participating under the party-list system
is true, possesses extraordinary powers and enjoys a considerable throughout the entire country, as provided in RA 8436. The automation
latitude in the discharge of its functions. The road, however, towards was limited to the provinces of Lanao del Sur, Maguindanao, Sulu, and
successful 2010 automation elections would certainly be rough and Tawi-tawi due to lack of material time and funding.
bumpy. The Comelec is laboring under very tight timelines. It would
accordingly need the help of all advocates of orderly and honest
The COMELEC was not also able to implement an AES in the May
elections, of all men and women of goodwill, to smoothen the way and
2001 elections due to time constraints. But on October 29, 2002, the
assist Comelec personnel address the fears expressed about the
COMELEC adopted Resolution 02-0170, which resolved to conduct
integrity of the system. Like anyone else, the Court would like and wish
biddings for the three phases of the AES: Phase I, voter registration
automated elections to succeed, credibly.
and validation system; Phase II, automated counting and canvassing
system; and Phase III, electronic transmission. The COMELEC
WHEREFORE, the instant petition is hereby DENIED. awarded Phase II for the provision of the ACMs to the Mega Pacific
Consortium (MP Consortium). The Information Technology Foundation
of the Philippines (ITFP), among others, petitioned this Court to
SO ORDERED.
declare null and void the award of the contract to the MP Consortium.
In Information Technology Foundation of the Philippines v.
COMELEC,3 this Court held that the contract was void for failure to
establish the identity, existence and eligibility of the alleged consortium
as a bidder; the ACM's failure to pass the tests of the Department of
Science and Technology (DOST); and the ACM's failure to meet the
SEPARATE CONCURRING OPINION required accuracy rating as well as safeguards for the prevention of
double counting of precinct results.
PUNO, C.J.:
On January 23, 2007, Congress passed Republic Act No. 9369 (RA
9369), amending RA 8436. It specified the modes of implementing the
Prefatory Statement AES, i.e., either paper-based or a direct recording electronic (DRE)
system, for the process of voting, counting of votes and
The broad power to determine whether there has been a grave abuse canvassing/consolidation and transmittal of results of electoral
of discretion amounting to lack or excess of jurisdiction on the part of exercises. It also provided that for the next election, the AES shall be
any branch or instrumentality of the government1 is exercised with full used in at least two highly urbanized cities and two provinces each in
appreciation by the judiciary of the proper limits of its role in our Luzon, Visayas and Mindanao.4 In addition, it provided that with
tripartite form of government. We should take care that this expanded respect to the May 10, 2010 elections and succeeding electoral
power is not used as a license for courts to intervene in cases involving exercises, the system procured must have demonstrated capability
matters of policy woven with constitutional and legal questions. Since and been successfully used in a prior electoral exercise here or
time immemorial, courts have deferred to the wisdom or logic of abroad. However, participation in the 2007 pilot exercise shall not be
legislative choices and technical determinations. It is as it should be. conclusive of the system's fitness.5

By this paradigm, we do not abdicate our fundamental responsibility in Again, the AES was not implemented in the May 2007 elections due to
annulling an act of grave abuse of discretion in the guise of judicial lack of funds and time constraints. But the AES was used in the August
restraint, but neither do we permit the overarching use of judicial power 11, 2008 ARMM elections, where both DRE and the paper-based
as to amount to judicial tyranny. Central Count Optical Scan (CCOS) machines were used.

A. The Case On March 5, 2009, Republic Act No. 9525 (RA 9525)6 was passed by
the House of Representatives and the Senate, appropriating the sum
of Eleven Billion Three Hundred One Million Seven Hundred Ninety
The petitioners brought this case for Certiorari, Prohibition and Thousand Pesos (P11,301,790,000.00) for an AES to be used in the
Mandamus to declare that public respondents Commission on May 10, 2010 automated national and local elections.
Elections (COMELEC), and the COMELEC-Special Bids and Awards
Committee (COMELEC-SBAC), committed grave abuse of discretion
amounting to lack or excess of jurisdiction when it awarded the 2010 From March 13 to 16, 2009, the COMELEC published and posted an
Automated Elections Project to private respondents Total Information invitation for vendors to apply for eligibility and to bid for the
Management, Inc. (TIM) and Smartmatic International, Inc. procurement of counting machines, including the supply of ballot
(Smartmatic). Petitioners ask the Court to strike down as null and void paper; electronic transmission services using public
the July 10, 2009 contract between public respondent COMELEC and telecommunications networks; training; technical support;
private respondents for being contrary to the Constitution, statutes, and warehousing; deployment; installation; pull-out; systems integration;
established jurisprudence. and overall project management to be used in the automation of the
counting, transmission and canvassing of the votes for the May 10,
2010 synchronized national and local elections.
On June 7, 1995, Congress passed Republic Act No. 8046 adopting an
Automated Election System (AES) in the Philippines. RA 8046
authorized COMELEC to conduct a nationwide demonstration of a On March 18, 2009, the COMELEC issued the Terms of
computerized election system and allowed the poll body to pilot-test Reference/Request for Proposal for Solutions, Terms & Conditions for
the system in the March 1996 elections in the Autonomous Region in the Automation of the May 10, 2010 Synchronized National and Local
Muslim Mindanao (ARMM). Elections (TOR/RFP), as promulgated in COMELEC Resolution 8591,
dated March 11, 2009, with the following components:
On December 22, 1997, Congress enacted Republic Act No.
84362 (RA 8436), otherwise known as the "Election Modernization Act" A. Component 1: Paper-Based Automated Election System
authorizing COMELEC to use an AES for the process of voting,
counting votes and canvassing or consolidating the results of the 1-A. Election Management System (EMS)
national and local elections. It also mandated the poll body to acquire
automated counting machines (ACMs), computer equipment, devices
and materials, and adopt new electoral forms and printing materials. 1-B. Precinct-Count Optical Scan (PCOS) System

1-C. Consolidated/Canvassing System (CCS)

b. Component 2: Provision for Electronic Transmission of Electronic awarding the contract for the automation of the elections on May 10,
Results using Public Telecommunications Networks 2010 to the joint venture.

c. Component 3: Overall Project Management On June 10, 2009, the COMELEC awarded the contract to
Smartmatic-TIM to supply 82,000 Precinct Count Optical Scan (PCOS)
machines to be used in the 2010 elections. Subsequently, Jose Mari
On March 19, 2009, eleven prospective bidders obtained bid
Antuñez, the President of TIM, informed COMELEC Chairperson Jose
documents from the COMELEC for the automation of the 2010
Melo that TIM was withdrawing from the partnership with Smartmatic,
elections.
due to irreconcilable differences and loss of confidence. The scheduled
signing on June 30, 2009 of the Automation Contract between
On March 23, 2009, RA 9525 was signed by President Gloria COMELEC, Smartmatic and TIM did not take place. Following a series
Macapagal-Arroyo appropriatingP11,301,790,000.00 as supplemental of discussions, Smartmatic and TIM were able to settle their internal
appropriation for an automated elections system and other purposes. dispute.

On March 27, 2009, the COMELEC conducted a Pre-Bid Conference Smartmatic and TIM then caused the incorporation of their joint
for the automation of the counting, transmission and canvassing of venture, pursuant to the JVA. On July 8, 2009, the Securities and
votes for the May 10, 2010 elections. Exchange Commission (SEC) issued a Certificate of Incorporation to
Smartmatic TIM Corporation.
On April 23, 2009, TIM and Smartmatic entered into a Joint Venture
Agreement (JVA) to form the joint venture known as Smartmatic TIM On July 10, 2009, the Smartmatic TIM Corporation entered into the
Corporation. Automation Contract with the COMELEC. The contract price
was P7,191,484,739.48.
On May 4, 2009, seven suppliers submitted their formal bids. The
COMELEC-SBAC declared all the seven bidders ineligible for failure to The petition at bar raises the following - -
comply with the pass/fail criteria of the COMELEC. Upon motion for
reconsideration of the suppliers, three consortiums were reconsidered
B. Issues
by the COMELEC-SBAC, namely Indra Consortium, Smartmatic-TIM,
AMA-ESS and the Gilat Consortium. After evaluation of their technical
proposals, the COMELEC-SBAC declared Indra Consortium and 1. Whether RA 8436, as amended by RA 9369, requires the conduct of
Smartmatic-TIM to have passed. a pilot exercise as a condition precedent to the full nationwide
automation of the election.
The COMELEC-SBAC then proceeded with the opening of the
financial proposals. The Technical Working Group (TWG) evaluated 2. Whether RA 9525 has impliedly repealed the pilot testing
and reviewed the financial proposals of Indra Consortium and requirement.
Smartmatic-TIM. On June 3, 2009, the COMELEC-SBAC
recommended to the COMELEC en banc the award of the Contract for
3. Whether Smartmatic and TIM entered into a valid joint venture
the Provision of an Automated Election System for the May 10, 2010
agreement.
Synchronized National and Local Elections (Automation Contract) to
the joint venture of Smartmatic-TIM. Smartmatic-TIM was found to
have the lowest calculated responsive bid (LCRB); and to have passed 4. Whether any nationality requirement is applicable.
all the eligibility, technical, and financial requirements. The COMELEC-
SBAC noted that Smartmatic-TIM's machines passed all the tests and
systems evaluation with an accuracy rating of 100%. This finding was 5. Whether the AES chosen by the COMELEC complies with the "prior
successful use" qualification set forth in Section 12 of RA 8436, as
verified and validated in the post-qualification proceedings. The total
bid of Smartmatic-TIM amounting to Seven Billion One Hundred amended.
Ninety-one Million Four Hundred Eighty-four Thousand Seven Hundred
Thirty-nine and 48/100 Philippine pesos (P7,191,484,739.48) was 6. Whether the PCOS machines offered by the Smartmatic-TIM
found by the COMELEC to be within the approved budget for the Consortium satisfy the minimum system capabilities mandated by
contract of Eleven Billion Two Hundred Twenty-three Million Six Section 6 of RA 8436, as amended.
Hundred Eighteen Thousand Four Hundred and 0/100 Philippine
pesos (P11,223,618,400.00).7
C. Discussion
8
On June 8, 2009, the COMELEC Advisory Council submitted its
observations on the procurement proceedings of the SBAC, with the A touchstone of our Constitution is that critical public policy judgments
conclusion that these were transparent and in conformity with the law belong to the legislative branch, and the Court must not unduly intrude
and the TOR/RFP. It noted that Smartmatic-TIM had a 100% accuracy into this exclusive domain.
rating. The Advisory Council has the mandate to participate as non-
voting members of the COMELEC-SBAC in the conduct of the bidding In enacting RA 8436 (Election Modernization Act) on December 22,
process for the AES. 1997, the legislature has clearly chosen the policy that an AES shall be
used by the COMELEC for the process of voting, counting of votes and
On the same date, June 8, 2009, the Office of the Ombudsman, which canvassing/consolidation of results of the national and local
had previously created Task Force "Poll Automation",9 submitted its elections.10 It decided to put an end to the manual conduct of our
"Process Audit Observation Report." The Ombudsman Task Force elections that has frustrated the honest casting of votes by our
also found the above proceedings and systems to be consonant with sovereign people.
the Constitution, procurement laws, and RA 9369.
In the pursuit of its objective, the legislature defined what it considered
The Parish Pastoral Council for Responsible Voting (PPCRV) an AES and provided the standards for its implementation. It further
representative likewise submitted a report, which concurred with the determined the minimum functional capabilities of the system and
final report of the COMELEC-SBAC. delegated to the COMELEC the development and adoption of a
system of evaluation to ascertain that the minimum system capabilities
would be met.
On June 9, 2009, the COMELEC en banc promulgated Resolution No.
8608, confirming Smartmatic-TIM as the bidder with the LCRB and
The policy decision of Congress to adopt an AES is not under Part 4: That no area shall be chosen without the consent of the
question. It is the manner the COMELEC is implementing the AES that Sanggunian of the local government unit concerned. The term local
is assailed by the petitioners. The first issue is whether the conduct of government unit as used in this provision shall refer to a highly
an AES in at least two highly urbanized cities and two provinces each urbanized city or province.
in Luzon, Visayas and Mindanao is a condition precedent to the
nationwide implementation of the AES.
Part 5: In succeeding regular national or local elections, the AES shall
be implemented nationwide.14
c.1 The conduct of the pilot exercise of the AES is a condition
precedent to its nationwide implementation
In this light, Section 5 should be interpreted to mean that the
COMELEC is authorized to use an AES as long as the following
Whether the conduct of the pilot exercise of the AES is a condition requisites are complied with: (1) for the regular national and local
precedent to its nationwide implementation involves the correct elections, which shall be held immediately after the effectivity of the
interpretation of Section 5 of RA 8436. The interpretation of Section 5, Act, the AES shall be used in at least two highly urbanized cities and
RA 8436, as amended, is nothing less than a brain twister. It appears two provinces each in Luzon, Visayas and Mindanao; (2) that local
like a Rorschach inkblot test, in which petitioners and respondents government units whose officials have been the subject of
assign meaning to certain words as though they were deciphering administrative charges within sixteen months prior to the May 14, 2007
images formed by inkblots. Using the same word of the law, they arrive elections shall not be chosen; and (3) that no area shall be chosen
at different conclusions. without the consent of the Sanggunian of the local government unit
concerned. And, when the above conditions are complied with, the
AES shall be implemented nationwide in succeeding regular national
Thus, the petitioners interpret the word shall in the first proviso of
and local elections.
Section 5, RA 8436, as amended, to support their thesis that the pilot
exercise of the AES is a condition precedent prior to its full
implementation. The proviso states that "the [automated election The last sentence of the provision which provides that "[i]n succeeding
system] shall be used in at least two highly urbanized cities and two regular national or local elections, the AES shall be implemented
provinces each in Luzon, Visayas and Mindanao."11 nationwide" may appear as not connected to the enumeration of
requirements for the use of an AES. But this does not mean that it can
be read in isolation and independently from the rest of the provision.
Similarly, the respondents interpret the word shall in the last sentence
Section 5 expressly declares that the COMELEC's authority to use the
of the provision, which states that "in succeeding regular national or
AES on a nationwide scale is contingent on the prior conduct of partial
local elections, the [automated election system] shall be implemented
automation in two provinces and two highly urbanized cities each in
nationwide,"12 and submit that the pilot exercise of the AES is not a
Luzon, Visayas and Mindanao.
condition precedent. Further, they contend that the use of the AES in
at least two provinces and two highly urbanized cities each in Luzon,
Visayas and Mindanao refers only to the national and local elections Likewise, the word "pilot testing" may not have been used in the
immediately following the passage of RA 9369, i.e., the May 2007 provision, but the intent to test the use of an AES is evident in its text.
national and local elections. They argue that this was just an The mandatory nature of the initial conduct of an automated election in
acknowledgment by Congress that there was not enough time or funds two provinces and two highly urbanized cities each in Luzon, Visayas
to conduct a full nationwide automation of the May 2007 election. and Mindanao is highlighted by the use of the word shall. That this is a
condition precedent before a full nationwide automated election can be
used in the succeeding elections is buttressed by the use of the words
The respondents' reading of Section 5 disregards the tenor of the
provided, that. Thus, the COMELEC is authorized to use an AES,
entire provision. A rational reading of the entire provision will show that
provided that the AES is first used in two provinces and two highly
the different parts isolated and then interpreted by the respondents are
urbanized cities each in Luzon, Visayas and Mindanao, after which, in
connected by the conjunctions provided, that and provided, further that
the following regular national and local elections, the AES shall be
and provided, finally that. These conjunctions signify that the clauses
implemented nationwide.
that follow the conjunction are a pre-requisite or a condition to the
fulfillment of the previous clause. The words provided, that mean the
same as "as long as," "in order that," and "if only." Thus, the provision Pushing to the limit their argument that pilot testing is not a condition
should be read and understood as follows: precedent to the conduct of an AES, the respondents rely on Section
12 of RA 8436, as amended, which provides thus:
Part 1: To carry out the above-stated policy, the Commission on
Elections, herein referred to as the Commission, is hereby authorized SEC. 12. Procurement of Equipment and Materials. - To achieve the
to use an automated election system or systems in the same election purpose of this Act, the Commission is authorized to procure, in
in different provinces, whether paper-based or a direct recording accordance with existing laws, by purchase, lease, rent or other forms
electronic election system as it may deem appropriate and practical for of acquisition, supplies, equipment, materials, software, facilities and
the process of voting, counting of votes and canvassing/consolidation other services, from local or foreign sources free from taxes and import
and transmittal of results of electoral exercises: 13 duties, subject to accounting and auditing rules and regulations. With
respect to the May 10, 2010 elections and succeeding electoral
exercises, the system procured must have demonstrated capability
Provided, That
and been successfully used in a prior electoral exercise here or
abroad. Participation in the 2007 pilot exercise shall not be conclusive
Part 2: for the regular national and local elections, which shall be held of the system's fitness. (Emphasis supplied)cralawlibrary
immediately after the effectivity of this Act, the AES shall be used in at
least two highly urbanized cities and two provinces each in Luzon,
The respondents press the point that Section 12, supra, indicates that
Visayas and Mindanao, to be chosen by the Commission:
pilot testing in the May 2007 elections is not a mandatory requirement
for the choice of an AES to be used in the May 2010 elections, nor is it
Provided, further, a prerequisite for the full automation of the May 2010 elections, since
the system's capability may have been used in an electoral exercise
abroad. Respondents also contend that since participation in the 2007
Part 3: That local government units whose officials have been the pilot exercise is expressly declared as inconclusive of the system's
subject of administrative charges within sixteen (16) months prior to fitness, then the non-use of the PCOS machines in the 2007 electoral
the May 14, 2007 elections shall not be chosen:
exercise is not a bar to the implementation of a full nationwide
automation in the 2010 elections.
Provided finally,
With due respect, the respondents have a murky understanding of the
last sentence of Section 12. It merely states that "[p]articipation in the
2007 pilot exercise shall not be conclusive of the system's fitness." It Richard J. Gordon (Senator Gordon) and Senator Manuel A. Roxas II
does not say that participation of the procured system in the 2007 pilot (Senator Roxas) over an amendment to Section 5 of RA 8436,
exercise is not a condition precedent to the full nationwide proposed by the latter. Senator Roxas proposed to add the words "on
implementation of the AES. The section says in unadorned language a test basis" to refer to the use of an AES. The amendment is as
that as long as the system procured 'presumably for the May 2007 follows:
elections - has been shown to have demonstrated capability and has
been successfully used in a prior electoral exercise here in the
Section 5. Authority to Use an Automated Election System. - To carry
Philippines or abroad, the system may also be used in the May 2010
out the above-stated policy, the Commission on Elections, herein
and succeeding elections. In fine, the subject of the section is the
referred to as the COMELEC is hereby authorized to use ON A TEST
fitness of the system procured for the May 2007 automated pilot
BASIS AN automated election system x x x.18 (capitalization in the
exercise; it has no relation to the issue of whether the pilot exercise is
original.)
a condition precedent to the implementation of full nationwide
automated elections.
Senator Roxas wanted to use the word "test," so that after a "test" of
the AES in the 2007 elections, Congress would know whether the
The deliberations of the Joint Congressional Oversight Committee on
implementation of the 2007 national and local AES was successful.
[the] Automated Election System (Joint Committee on AES)15 should
Thereafter, Congress would decide whether the AES - as a mode of
further enlighten us on the purpose of the last sentence in Section 12
conducting elections - should still be used for the successive elections.
of RA 8436, as amended: that "[p]articipation in the 2007 pilot exercise
This is clear from the following exchange of remarks between Senator
shall not be conclusive of the system's fitness." They reveal that the
Roxas and Senator Gordon:
purpose is simply to avoid a situation in which the choices of machines
and the kind of AES to be used in the 2010 elections would be limited
to those that were piloted in the 2007 elections. SENATOR ROXAS. In any event, Mr. President, I would like now to go
to line 18 and read into the Record the proposed amendment. Again,
as I said earlier, so as not to confuse those who are following the
Thus, Senator Richard Gordon explained that the purpose behind the
language, I will deliberately not read the word "test" subject to
statement that participation in the 2007 pilot exercises was not
whatever happens to that word in subsequent debate and dialogue.
conclusive of the system's fitness was to ensure that newly developed
technology may still be considered for the 2010 elections, even though
it was not tested in the 2007 pilot exercise. Representative Teodoro The proposed amendment reads:
Locsin concurred in the same view. Thus:
THE FURTHER IMPLEMENTATION OF AN AES OR AES
THE CHAIRMAN (SEN. GORDON). Precisely that was placed there so TECHNOLOGY SHALL BE DECIDED UPON BY CONGRESS,
that you can get newly discovered machines or newly invented THROUGH A JOINT RESOLOUTION, UPON RECOMMENDATION
machines that can be utilized so that in the 2010 elections it would OF THE OVERSIGHT COMMITTEE. FOR THIS PURPOSE, THE
have been tried in an example here in our country. OVERSIGHT COMMITTEE SHALL CONDUCT COMPREHENSIVE
EVALUATION PERFORMANCE OF SAID AES OR AES
TECHNOLOGY DURING INITIAL IMPLEMENTATION OF RESULTS
THE CHAIRMAN (REP. LOCSIN). I think the purpose of this was any
WITH MANUAL TABULATION. IT SHALL THEN MAKE
bidder who can prove and who has already carried out an electoral
APPROPRIATE RECOMMENDATIONS TO CONGRESS ON
exercise - sure, of course, he has a leg up of all other but that's not
WHETHER ANY FURTHER IMPLEMENTATION SHALL BE
conclusive which assumes that others who have not the same
CONDUCTED OR OTHERWISE. IN CASE OF FURTHER
experience will be allowed to also bid. (Emphasis supplied.)16
IMPLEMENTATION AND THE INCREMENTAL COVERAGE BY ALL
AES SHALL NOT BE MORE THAN TEN PERCENT (10%) OF THE
Representative Locsin elucidated that participation in the pilot-exercise TOTAL COVERAGE IN TERMS OF NUMBER OF DISTRICTS.
was not conclusive of the system's fitness, because pilots were easier
to do than national exercises. This was also to emphasize that those
That is the proposed amendment, Mr. President. The proposed
who participated in the pilot exercise were not to be preferred over
amendment, first, from a comprehensive perspective seeks to revert
those who were not able to participate in the pilot exercise. Thus:
back to Congress the judgment whether the implementation of the AES
in 2007 national and local elections was successful or not.
THE CHAIRMAN (REP. LOCSIN). Although this is a detail, if I may 'no,
I think you are just doing your best that you just read what it says. It
As envisaged in the bill, Mr. President, we are leaving to the Comelec
simply says that, I think, everyone is entitled to put their bid. Your (sic)
the decision to choose the appropriate technology that will be
have the discretion to decide whether or not they have the capability. A
implemented. There will be a series of advisory or a number of
company may have had many exercises in Latin America but for this
advisory and TAHEC bodies that will hopefully inform that decision.
particular exercise they may not be prepared to deploy the best then
we just forget it. But when it says "participation in 2007 pilot exercise
shall not be conclusive," that does not mean to exclude anyone who x x x
did not participate in 2007. It was only meant to say our fear is that
somebody may be so good in the pilot but then he ll say, "Hey, I won
SENATOR GORDON. I thank the distinguished gentleman from Capiz,
the pilot therefore you have to give me the national election." That's all
it meant because pilots are always easier to do than national Mr. President. I know he tried to amend this with sincerity, but I also
exercises. (Emphasis supplied.)17 would like to maintain that this is not a test, first and foremost, because
he speaks of a test, and I know he has already stated what word to
use. As I pointed out, the words to be used should be: The Automated
The respondents also have an erroneous reading of the use of the Election System will be implemented in the province he has already
word "pilot exercise" instead of "pilot testing." They claim that the use spoken about.
of the word "pilot exercise" instead of "pilot testing" is indicative of the
intention to only initially use or employ the AES in the 2007 elections
rather than make it a condition precedent. Again, this submission is not But, upon the other hand, I am concerned about "shall be decided
upon by Congress through a joint resolution," referring to line 18, - -
sustained by the deliberations of the Senate. "Pilot-exercise" was used
in the law instead of "pilot-test" to avoid the notion that a test must first before the implementation of an AES. I am removing the word "test", - -
be passed in the 2007 elections in order to continue with the use of the "before the implementation of AES technology shall be decided upon
by Congress."
AES as a mode of conducting the succeeding elections. The
lawmakers wanted to avoid the use of the word "test," so that in case
the AES to be used in the 2007 elections did not well perform as Mr. President, that line speaks volumes. The mother bill that we are
planned, still, the automation of the elections in the next elections amending which is enacted in 1987 decided a policy that we are going
would proceed. This intent is reflected in the debate between Senator to go on an automated election. In other words, if we follow the logic
here, we are practically saying: "Well, we may be changing our mind. x x x
Maybe we are not in automation mode again." This very line suggests
and clearly states that: "Hey, it is going to go back to Congress." And,
Now, the sample is only two provinces and two cities, Mr. President, so
in fact, through a joint resolution, which I think cannot even be done
that we would be able to get a gauge. x x x (Emphasis supplied)22
because Congress amends even without this suggestion. It can amend
even without these lines. It can amend the law if it chooses to do so.
Which means that after the Automated Election System, if we feel that x x x So, it is really an automated system that we advocate and,
we no longer want to have an automated election system, Congress obviously, the two provinces and two cities for Luzon, Visayas and
cannot at anytime say: "No, we are no longer in that mode." Mindanao will be the initial approach towards this effort. So that when
we go and expand in the next elections in 2010, based on the
Oversight Committee and based on the Congress itself, if we want to
What our bill provides is that we are already on this heuristic notion, if I
amend it again, we can do so. (Emphasis supplied)23
may use a word I learned in school a long time ago, which is a
trajectory that is headed towards a particular direction aimed at
modernizing the election by way of AES. And we have put in the In sum, both from the words of RA 8436, as amended by RA 9369, and
safeguards the minimum requirements and by so doing, after the its legislative intent, it is clear that an AES shall be conducted; and that
election has been conducted, the Comelec which is the agency, the COMELEC is authorized to implement the AES, provided that it is
whether we like it or not, that has been mandated by the Constitution initially piloted in two highly urbanized cities and two provinces each in
to run our elections simply goes on and says: "All right, we will expand Luzon, Visayas and Mindanao.
upon the recommendation of the AES, along with the oversight
committee."
c.2 Be that as it may, the enactment of RA 9525 has impliedly repealed
the Pilot Exercise Requirement
Now, if that is the case, Mr. President, there is no need to go back to
Congress. But if Congress sees it fit, as I pointed out, we are not
obviating that possibility. If Congress sees it fit, they can amend it. In a shift in stance, it is argued by the respondents that RA 8436,
which requires that a piloting of the AES be used in at least two
provinces and two highly urbanized cities each in Luzon, Visayas and
But as far as I am concerned, I think the rule should be that we are on Mindanao before a full nationwide automation of the elections can be
an automated rule should be that we are on an automated election conducted, has been impliedly repealed by the enactment of a later
mode and we should not say continue on with it. law, RA 9525. They proffer the view that RA
9525,24 appropriating P11,301,790,000.00 for the conduct of an AES in
the May 10, 2010, is for the full implementation of automated elections
But as far as I am concerned, I think the rule should be that we are on
in 2010. They argue that when RA 9525 was enacted on March 5,
an automated election mode and we are on an automated election
2009, Congress was aware that there was no pilot exercise conducted
more and we should continue on with it. But we should not say after
in two highly urbanized cities and two provinces each in Luzon,
the exercise, parang lumalabas na test, we will now go back and
Visayas and Mindanao; and despite this failure, Congress still
decide whether we are still on an automated election mode and say we
appropriated the entire amount of P11,301,790,000.00 for the full
might be going back to manual. x x x We have debated on the
nationwide implementation of the AES in the May 2010 elections. By
automated, we passed this on the past period of debate and we have
the enactment of the P11,301,790,000.00 supplemental appropriation,
already decided that we are continuing with the trajectory of automated
the respondents claim that Congress conveyed the intention to
election. I would not want to go back again to a situation where
proceed with full nationwide automation and do away with the
Congress will say, "We are changing his (sic) mind." Although, it is
requirement of conducting a pilot exercise. The respondents also rely
within its prerogative anyway at any time. (Emphasis supplied;
on the deliberations of the Senate and the House of Representatives to
capitalization in the original.) 19
support their thesis.

Senator Roxas' amendment which contained the word "test," was

On the other hand, the petitioners counter that there was no implied
rejected. The reason is not because the partial use of the AES in the
repeal of the requirement of pilot testing of the AES in two provinces
2007 election was not considered as a condition precedent to its full
and two highly urbanized cities each in Luzon, Visayas and Mindanao.
implementation in the 2010 elections. Rather, it was because the use
They cite Section 2 of RA 9525, viz.:
of the word "test" would have implied that Congress would still have to
decide whether the conduct of the AES had passed its requirements;
whether an AES should still be continued in the succeeding elections; Section 2. Use of Funds. - The amounts herein appropriated shall be
or whether, based on the "test," the conduct of the elections should used for the purposes indicated and subject to: (i) the relevant special
revert to manual. and general provisions of Republic Act No. 9498, or the FY 2008
General Appropriations Act, as reenacted, and subsequent General
Appropriations Acts, and (ii) the applicable provisions of Republic Act
Senator Gordon further made it clear that the reason why the AES
No. 8436, entitled: "An Act Authorizing the Commission on Elections to
should first be implemented in certain parts of the country - and not
Use an Automated Election System in the May 11, 1998 National or
immediately throughout the entire country - was that "a big bite must
Local Elections and in subsequent National and Local Electoral
not be taken right away."20 The implementation of the system must be
Exercises, Providing Funds Therefor and for Other Purposes", as
done in phases: first, it must be piloted in parts of the Philippines, and
amended by Republic Act No. 9369: Provided,however, That
only then can it be implemented nationwide. This is reflected in the
disbursement of the amounts herein appropriated or any part thereof
following statement of Senator Gordon:
shall be authorized only in strict compliance with the Constitution, the
provisions of Republic Act No. 9369 and other election laws
SENATOR GORDON. x x x x incorporated in said Act so as to ensure the conduct of a free, orderly,
clean, honest and credible election and shall adopt such measures that
will guaranty transparency and accuracy in the selection of the relevant
Mr. President, this is precisely why we are starting the automation in
technology of the machines to be used on May 10, 2010 automated
two provinces and two cities so that we do not take a big bite right
national and local election. (Emphasis supplied.)
away. And I accepted the amendment of the Minority Leader precisely
because we want to make sure that the bite is sufficiently enough for
us to be able to run the automation. x x x We trust the Comelec but we The petitioners stress that Section 2 provides that the amount
verify the system because we are hamstrung by the constitutional appropriated shall be used for the implementation of the May 2010
provision that the Comelec is the one that is principally in charge of automated elections, subject to the applicable provisions of RA 8436,
running the elections, but at the same time, we have an Advisory as amended. They further emphasize that Section 2 states that the
Council, composed of our experts, to guide them. (Emphasis disbursement of the amount appropriated or any part thereof shall be
supplied) 21 done only in strict compliance with the Constitution, and the provisions
of RA 9369 and other election laws. Thus, the petitioners conclude that
the mandatory requirement of pilot testing was not repealed but noted that some of the operating expenses, the transmission costs,
reiterated by Congress in said section. would be carried by public TELCOS. (Emphasis supplied.) x x x

The petitioners further argue that implied repeals are not favored, and x x x
two laws must be absolutely incompatible before an inference of
implied repeal may be drawn. They contend that RA 9525 is not totally
REP. CUA. Yes, Mr. Speaker, after consulting with the technical
inconsistent with the requirement of pilot testing in Section 5 of RA
people of the commission, I understand that the Lady is correct that
8436, as amended, such that the provisions of RA 9525 must be
what was originally allocated for operating cost or transmission cost
interpreted and brought into accord with the old law.
was 50 million. But after reevaluating the cost breakdown, they have
increased this to 200 million, Mr. Speaker, Your Honor. Yes, 200
To resolve this issue of implied repeal, the Court must first determine million, Mr. Speaker.26 (Emphasis supplied)cralawlibrary
whether it was the intent of Congress to push through with full
nationwide automation of the elections in May 2010. RA 9525 is
HB 5715 was approved on the third reading, with 193 members of the
unclear whether Congress appropriated P11,301,790,000.00 for the
House of Representatives voting in the affirmative, one voting in the
conduct of full or partial automated elections, or whether it intended the
negative, and one abstention.
automated elections to be conducted nationwide or only in the pilot
areas. To clear this uncertainty, the Court should resort to the
deliberations of the Senate and the House of Representatives, as well We have also examined the deliberations of the Senate which
as the hearings of the Joint Committee on AES. constituted itself into a Committee of the Whole to consider HB 5715.
The debates confirmed that the senators were also of the
understanding that the appropriation of P11.3 billion was for the full
Let us first look at the deliberations of the House of Representatives
nationwide automation of the May 2010 elections.
when it considered House Bill 5715 (HB 5715), entitled "An Act
Appropriating the Sum of Eleven Billion, Three Hundred One Million,
Seven Hundred Ninety Thousand Pesos as Supplemental In the same vein, the members of the Joint Committee on AES took it
Appropriations for an Automated Election System and for Other as a given that the May 2010 elections would be implemented
Purposes. From the deliberations, the assumption of the members of throughout the entire country. The September 1, 2008 hearing of the
the House of Representatives who engaged in the debate was that the Joint Committee on AES took up the COMELEC evaluation report on
appropriation was for a full nationwide implementation of the AES in the automated elections held in the ARMM. Senator Loren Legarda
the May 2010 elections. asked the Chairperson of the COMELEC Advisory Council, Mr. Ray
Anthony Roxas-Chua III, regarding the cleansing of the list of voters; in
the process of doing so, she assumed that the 2010 elections were to
Thus, in the sponsorship speech of Representative Junie Cua of the
be full automated. Thus:
Lone District of Quirino, he stated that the appropriation was for the full
nationwide automation of the May 2010 elections, viz.:
SEN. LEGARDA. x x x x
REP. CUA. x x x x
So therefore, if I understand correctly, the cleansing of the voters list
through the enactment of a new law and the funding from Congress is
For your consideration, my dear esteemed colleagues, I have the
essential because it is a partner towards the automation, complete
privilege of submitting the budget of the Commission on Elections for
automation, by 2010. Is that correct? (Emphasis supplied.)27
the automation of the 2010 national and local elections.

Representative Edcel Lagman held the same assumption, as he asked

Out of the budget proposal of P11.3B, the COMELEC is proposing to
the following question:
spend about P8.2B for the lease of election automation equipment.
This will cover the cost of 80,000 Precinct Count Optical Scanners or
PCOS that will be deployed throughout the country. These devices will REP. LAGMAN. Mr. Chairman, how many machines and allied
count hand-marked ballots that will be printed on ballot paper costing a equipment do you need for the nationwide implementation of the
total of P1B. We will be spending about P78B on ballot boxes. Once automation by 2010? (Emphasis supplied.)28
the ballots are so counted, the results will then be electronically
transmitted to the public quicker than any quick count in our election
During the September 9, 2008 hearing of the Joint Committee on AES,
history and for this, we need P400M.
Senator Edgardo Angara had an exchange with Chairman Melo. It was
unmistakable from the exchange that not only did the Congress
And finally P1.7B, more or less, will then be spent to ensure that contemplate a full nationwide automation of the May 2010 elections,
everything goes smoothly through the strong project management and but also that the approval of a budget ofP11.3 billion was meant for the
associated services that the COMELEC will put in place. (Emphasis conduct of a full nationwide automation of the 2010 elections, and not
supplied.)25 a partial or a pilot of the AES in selected areas.

x x x SEN. ANGARA. Mr. Chairman, yesterday the Finance Committee of

the Senate started the budget hearing. So, in the Senate we are
already beginning to do that.
As AKBAYAN Party-list Representative Risa Hontiveros-Baraquel
(Representative Hontiveros-Baraquel) was asking clarificatory
questions to Representative Junie Cua, she also stated that the Now let me just ask before I say something more. Has the budget of
appropriation was for the conduct of the automated elections of the the Comelec been heard in the House?cralawred
entire country and not merely a region therein, viz.:
MR. MELO. Not yet.
REP. HONTIVEROS-BARAQUEL. x x x x
SEN. ANGARA. Good! Good, good, because that is your window of
In the budget breakdown presented by the COMELEC in our opportunity. You ve got to catch the House hearing on the budget
committee hearing, the amount for operating expenses was P50 because it's better that your proposed budget for the elections of 2010
million, which is only equal to the operating expenses for the ARMM are incorporated in the House itself. Of course, we can supplement it in
elections. And, since this would be a national elections, not just in one the Senate but, as you know, the Senate cannot tap the President's
region of our country, I asked then, "Shouldn't the amount be more in Budget. So it's better that we negotiate it in the House.
the vicinity of one or one-and-a-half billion pesos?" There is - part of
the response was in the remarks column of the COMELEC, where they
The presentation yesterday by the Budget Secretary is you will have THE CHAIRMAN (SEN. ESCUDERO). And as final point, Mr. Chair, I
about 3.8B for 2010. And the 3.8B, billion (sic), also includes would like to make of record what we discussed. Kindly also look into
registration, etcetera, etcetera so it does not exclusively And when we the possibility, Mr. Chairman, fully automated tayo, OMR kayo, as you
asked, "Is this enough for full automation?" Secretary Andaya was proposed, but in addition to electronic transmission, can't we have an
frank enough. "No, no. This is the figure that they submitted to us four OMR at the provincial level to count the ERs to be produced by our
years ago and we are really expecting a submission of a revised cost OMRs at the precinct or collapsed precinct level either OMR that can
of computerization." count ER or OMR that can count an encrypted CD from the PCOS
located in the collapsed precinct so that you will have a hard copy of
the ER at the provincial level which you can easily adopt once you go
This is why I think you must seize the opportunity. And I would suggest
to the site? x x x32 (Emphasis supplied.)
very strongly that the advisory committee sit down with potential
bidders and really go over every single figure in that costing because
it's going to be unfortunate that this will not push through. Automation So it was during the February 2, 2009 hearing of the Senate
will not push through simply because it's so expensive that there ll be Committee on Finance for the appropriation ofP11.3 Billion for the May
such a huge public outcry against it. Whereas, you and I know that this 10, 2010 AES, viz.:
may be one good way to have clean elections and speedier results
announced in our country. That's why I think it's very important that you
MR. ROXAS-CHUA. Your Honor, Your Honor, the basis for this is
bargain hard and I hope that the suppliers will see also the public
really the ARMM election because we used similar structure. It was
service element in this experiment; that I hope they won't even cut a
also a lease with an option to purchase and this is where we came up
profit out of this transaction because if you are successful, I think this
with the 70 percent price for the lease with the option to purchase. That
will be one of the biggest use of their technology at 45 million or 35
is the structure that we used and there was successful bidder so we
million voters. I don't know if there's any other country who has that
used that as a basis, as the cost structure for this next election.
number of voters using this particular technology.

THE CHAIRMAN.33 Hindi. Siyempre doon sa ARMM,

So, in terms of selling point, this will be one of their strongest selling
kinocompartmentalized (compartmentalize) ninyo per province. O,
points. So I urge the representatives of the vendors to consider that
Maguindanao, you will use DRE. The rest we will use COS. Oo. So,
very strongly even if they have to donate a substantial portion of that
localized. Ito nationwide ito.34
cost for the sake of democracy, 'di ba?29 (Emphasis supplied.)

The Comment-in-Intervention of the Senate of the Philippines also

Indeed, several times during the hearings of the Joint Committee on
affirmed the congressional intention to implement a full nationwide
AES, the members pointed out that full nationwide elections would be
automation of the elections this May 10, 2010. It categorically stated
conducted on May 10, 2010, viz.:
that the approval of the supplemental budget of P11.3 billion for the
upcoming May 10, 2010 elections was not merely for a pilot test, but
MR. TOLENTINO.30 Yes, Sir. for a full nationwide implementation of the AES.

The costing here would be the purchased (sic) price. And if we base it In the case at bar therefore, there is unmistakable evidence of the
on the rate that we sued for the ARMM elections, the lease cost would legislative intent to implement a full nationwide automation of the May
be 70 percent of the total budget. 2010 elections. It is impossible to give effect to this intent and at the
same time comply with the condition precedent of conducting pilot
exercises in selected areas. The irreconcilability between Section 5 of
THE CHAIRMAN (SEN. GORDON). Well, I got thrown off because
RA 8436, as amended, and Section 2 of RA 9525 is apparent for
there is an allegation made by Mr. Dizon that says that they can make
Congress could not have maintained the requirement of a pilot
it for 14 to P18 billion, is that correct?cralawred
exercise as a condition precedent to full automation when it had made
it absolutely clear that it wanted to push through with a full nationwide
MR. DIZON. Yes, Mr. Chairman. AES this May 2010.

THE CHAIRMAN (SEN. GORDON). 'DRE machines' Laws of Congress have equal intrinsic dignity and effect; and the
implied repeal of a prior by a subsequent law of that body must depend
upon its intention and purpose in enacting the subsequent law.35 What
MR. DIZON. Yes, Mr. Chairman.
is necessary is a manifest indication of a legislative purpose to repeal.
Repeal by implication proceeds from the premise that where a statute
THE CHAIRMAN (SEN. GORDON). 'for the entire country, of a later date clearly reveals an intention on the part of the legislature
right?cralawred to abrogate a prior act on the subject, that intention must be given
effect.
MR. DIZON. Yes, Mr. Chairman. That's approximately 37 million
voters.31 (Emphasis supplied.) c.3 COMELEC's Award of the Automation Contract to the Smartmatic-
TIM Consortium Not Attended by Grave Abuse of Discretion
In the March 4, 2009 hearing:
The petitioners attribute grave abuse of discretion amounting to lack or
excess of jurisdiction to the COMELEC for awarding the 2010
THE CHAIRMAN (SEN. ESCUDERO). The only thing I am raising this Elections Automation Project to Smartmatic TIM Corporation, on four
(sic), Mr. Chairman, is without violating inter-chamber courtesies, we grounds, viz.:
are talking here of 40, nearly 50 million voters and you are transmitting
a vote located thousands of kilometers away in an area we are not
even sure if there is signal, dahil kung wala ibababa ho physically 1. Private Respondents Smartmatic and TIM allegedly did not execute
iyong balota mula duon sa presinto para dalhin o maglalagay kayo ng and submit a valid joint venture agreement evidencing the existence,
satellite, hindi ko ho alam kung ano ang gagawin ninyo, wala pa ho composition and scope of their joint venture, in violation of the
tayo doon. x x x So, please, bear with us as your Oversight Committee COMELEC's own bidding requirements and this Court's ruling in
attempts to sift through all of these various inputs and information and Information Technology of the Philippines, et al. v. COMELEC, et al.;36
try to find some rhyme or reason into it and justify perhaps our action
of the proposed full automation for the 2010 elections. x x x (Emphasis 2. Even granting that such an agreement was submitted, the joint
supplied.)
venture is nevertheless illegal for having been constituted in violation
of the nationality requirement, i.e., 60%-40% Filipino-foreign equity
x x x ceiling;
3. The AES chosen by the COMELEC does not comply with the "prior either through a joint venture corporation (JVC) or an unincorporated
successful use" qualification set forth in Section 12 of RA 8436, as joint venture (UJV). Bid Bulletin No. 19 provides, in relevant part:
amended; andcralawlibrary
[Question/Issue:] If the bidding will be made through an unincorporated
4. The PCOS machines offered by the Smartmatic-TIM Consortium do joint venture (UJV), and the UJV wins the bid, can the UJV partners
not satisfy the minimum system capabilities mandated by Section 7 of subsequently assign the contract, after its award, to a newly-formed
RA 8436, as amended. joint venture corporation (JVC) registered with the Securities and
Exchange Commission? The registered JVC will assume all rights and
obligations of the UJV. Does Comelec have any requirements for
Preliminarily, it should be underscored that RA 8436, as amended by
allowing such assignment to the JVC?cralawred
RA 9369, does not mandate the use of any specific voting equipment.
Instead, the law gave COMELEC the sole power to prescribe the
adoption of the most suitable technology of demonstrated [Answer/Clarification:] Under the General Conditions of Contract, Sec.
capability37 as it may deem appropriate and practical,38 taking into 26.1, "The supplier shall not assign his rights or obligations under this
account the situation prevailing in the area and the funds available for contract in whole or in part except with the Procuring entity's prior
the purpose.39 Absent any capricious and whimsical exercise of written consent." x x x
judgment on the part of the COMELEC, its determination of the
appropriate election technology, as well as the procedure for its
x x x
procurement, should be respected. Our judicial function is merely to
check and not to supplant the judgment of the COMELEC; to ascertain
merely whether it has gone beyond the limits prescribed by law, and [Question/Issue:] If the bid will be made through a joint venture (JV)
not to exercise the power vested in it or to determine the wisdom of its (either a UJV or a JVC), is the JV required also to submit a Tax
act.40 Identification No. and Value Added Tax (VAT) registration?cralawred

c.4 Valid JVA was duly submitted [Answer/Clarification:] Please see Bid Bulletin No. 13. (Emphasis
supplied.)
The petitioners claim that private respondents Smartmatic and TIM
submitted a "sham" joint venture agreement during the bidding Likewise, Bid Bulletin No. 22 states as follows:
process. The claim is premised on the following allegations: (i) that
although Smartmatic and TIM were awarded the Automation Contract
by the COMELEC on June 9, 2009, it was only on July 6, 2009 (or [Question/Issue:] How does Joint Venture apply to our group in order
twenty-seven days later) that they were able to "thresh out their serious to follow the requirement that Filipino ownership thereof shall be at
differences," sign and thereafter submit their incorporation papers to least sixty percent (60%)?cralawred
the Securities and Exchange Commission; and (ii) that the provisions
of the JVA do not sufficiently establish the due existence, composition [Answer/Clarification:] The 60% Filipino participation refers to capital
and scope of the Smartmatic-TIM joint venture. ownership or the Filipino contribution in the pool of financial resources
required to undertake a government project. In an unincorporated joint
venture, determination of the required Filipino participation may be
As to the first allegation, it should be noted that the TOR/RFP made by
the COMELEC does not require that a joint venture bidder be made by examining the terms and conditions of the joint venture
incorporated upon the submission of its bid. Section 2.2.4 of Part IX (B) agreement and other supporting financial documents submitted by the
joint venture. (Emphasis supplied.)
of the TOR/RFP declares "[m]anufacturers, suppliers and/or
distributors forming themselves into a joint venture [...]" as eligible to
participate in the bidding for the 2010 Automation Project, without any The only restriction imposed on a UJV bidder (vis - à-vis a JVC bidder)
incorporated v. unincorporated dichotomy. That the TOR/RFP does not by the TOR/RFP and the Bid Bulletins is that the COMELEC should
specifically call for incorporation at the time of the bidding is significant, consent before the UJV could assign its rights to the Automation
because Philippine law admits of a distinction between simple joint Contract to the newly formed JVC. The records show that Smartmatic
ventures and ordinary corporations.41 In Aurbach, et al. v. Sanitary and TIM complied with the consent requirement. After emerging as the
Wares Manufacturing Corporation, et al.,42 a joint venture was likened winning bidder, they incorporated the Smartmatic TIM Corporation, the
by this Court to a partnership, thus: corporate vehicle through which the joint venture is to be carried
out.45 COMELEC acquiesced to this arrangement, for it subsequently
The legal concept of a joint venture is of common law origin. It has no entered into a contract with this JVC for the Automation Project.
precise legal definition, but it has been generally understood to mean
an organization formed for some temporary purpose. It is hardly The petitioners next assert that the JVA does not sufficiently establish
distinguishable from the partnership, since their elements are similar - the due existence, composition and scope of the Smartmatic-TIM joint
community of interest in the business, sharing of profits and losses, venture, in violation of our ruling in Information Technology of the
and a mutual right of control. The main distinction cited by most Philippines, et al. v. COMELEC, et al.:46 that "in the absence of definite
opinions in common law jurisdiction is that the partnership indicators as to the amount of investments to be contributed by each
contemplates a general business with some degree of continuity, while party, disbursements for expenses, the parties' respective shares in
the joint venture is formed for the execution of a single transaction, and the profits and the like, it seems to the Court that this situation could
is thus of a temporary nature. This observation is not entirely accurate readily give rise to all kinds of misunderstandings and disagreements
in this jurisdiction, since under the Civil Code, a partnership may be over money matters"; and that "[u]nder such a scenario, it will be
particular or universal, and a particular partnership may have for its extremely difficult for Comelec to enforce the supposed joint and
object a specific undertaking. It would seem therefore that under several liabilities of the members of the 'consortium.' " According to the
Philippine law, a joint venture is a form of partnership and should thus petitioners, Smartmatic and TIM did not submit documents to show
be governed by the law of partnerships. The Supreme Court has "the full identity of the entity it is dealing with," and "who controls the
however recognized a distinction between these two business forms, money, how much did each of these entities invest to (sic) the alleged
and has held that although a corporation cannot enter into a joint venture, and who has control over the decision[-]making process
partnership contract, it may however engage in a joint venture with of the alleged joint venture."
others. (Citations omitted.)
A cursory glance at the JVA belies the petitioners' posture. The
But any remaining doubt as to the need for incorporation is dispelled agreement indicates in a thorough and comprehensive manner the
by Bid Bulletin No. 1943 and Bid Bulletin No. 22,44 issued by the identity, rights, duties, commitments and covenants of the parties, as
COMELEC-SBAC to provide clarifications to prospective bidders. Both well as the purpose, capitalization, and other pertinent details in
documents acknowledge that a bid by a joint venture may be made respect of the joint venture, thus:
1. Smartmatic and TIM are the members of the joint venture. 47 notwithstanding, the COMELEC awarded the contract to the
"consortium." And the Court pointedly ruled:
2. The purpose of the JVC is to carry out and perform jointly, severally
and solidarily the obligations of TIM and Smartmatic arising from being The March 7, 2003 letter, signed by only one signatory - "Willy U. Yu,
declared the winning bidder in the public bidding for the Automation President, Mega Pacific eSolutions, Inc., (Lead Company/Proponent)
Project, which obligations are spelled out in the [TOR/RFP] released For: Mega Pacific Consortium" - and without any further proof, does
by the COMELEC.48 not by itself prove the existence of the consortium. It does not show
that MPEI or its president have been duly pre-authorized by the other
members of the putative consortium to represent them, to bid on their
3. The authorized capital stock of the JVC is one billion, three hundred
collective behalf and, more important, to commit them jointly and
million Philippine pesos (P1,300,000,000.00), divided into one billion,
severally to the bid undertakings. The letter is purely self-serving and
three hundred million common shares at one peso (P1.00) par
uncorroborated.
value.49 The capital contribution of TIM is equivalent to sixty percent
(60%) of the shares to be issued by the JVC, with Smartmatic
contributing the residual forty percent (40%).50 To assure itself properly of the due existence (as well as eligibility and
qualification) of the putative consortium, Comelec's BAC should have
examined the bidding documents submitted on behalf of MPC. They
4. The contributions51 of the parties are as follows:
would have easily discovered the following fatal flaws.

A. TIM - (i) the value-added services pertaining or related to

x x x
canvassing units, systems integration, transmission and such other
services as required by the Automation Project and as indicated in the
[TOR/RFP]; (ii) services pertaining or related to logistics, deployment, In the case of a consortium or joint venture desirous of participating in
and manpower; (iii) hardware, software, ballot paper, consumables and the bidding, it goes without saying that the Eligibility Envelope would
such other services as may be requested by Smartmatic; and (iv) local necessarily have to include a copy of the joint venture agreement, the
support staff as may be required under the circumstances. consortium agreement or memorandum of agreement - or a business
plan or some other instrument of similar import - establishing the due
existence, composition and scope of such aggrupation. Otherwise,
b. Smartmatic - (i) the development, manufacture and/or supply of
how would Comelec know who it was dealing with, and whether these
[electronic voting machines], other machines and equipment, software,
parties are qualified and capable of delivering the products and
technology and systems; (ii) overall project management as required
services being offered for bidding?cralawred
by the Automation Project and as indicated in the [TOR/RFP]52; and (iii)
any other activity not expressly written in the JVA or assigned to TIM.
In the instant case, no such instrument was submitted to Comelec
during the bidding process. This fact can be conclusively ascertained
c. Both parties - (i) technical services and/or assistance to carry out the
by scrutinizing the two-inch thick "Eligibility Requirements" file
purpose of the JVC; (ii) financial assistance to the JVC; and (iii)
submitted by Comelec last October 9, 2003, in partial compliance with
additional capital contributions, as may be requested by the Board of
this Court's instructions given during the Oral Argument. This file
Directors.
purports to replicate the eligibility documents originally submitted to
Comelec by MPEI allegedly on behalf of MPC, in connection with the
5. TIM shall be entitled to nominate and elect 60%, and Smartmatic bidding conducted in March 2003. Included in the file are the
shall be entitled to nominate and elect 40%, of the Board of Directors incorporation papers and financial statements of the members of the
of the JVC.53 supposed consortium and certain certificates, licenses and permits
issued to them.
6. The EXCOM shall consist of at least three (3) Directors, two of
whom must be Directors nominated by TIM, with the other nominated However, there is no sign whatsoever of any joint venture agreement,
by Smartmatic.54 consortium agreement, memorandum of agreement, or business plan
executed among the members of the purported consortium.
7. Profits are to be distributed to TIM and Smartmatic as may be
determined by the Board of Directors under Article 4.5 or by the The only logical conclusion is that no such agreement was ever
Shareholders under Article 5.3 of the JVA, taking into account the submitted to the Comelec for its consideration, as part of the bidding
financial requirements of the JVC with respect to working capital. 55 process.

8. Any dispute or disagreement that may arise between the parties in It thus follows that, prior the award of the Contract, there was no
connection with the JVA shall first be settled through mutual documentary or other basis for Comelec to conclude that a consortium
cooperation and consultation in good faith. Any dispute or had actually been formed amongst MPEI, SK C&C and WeSolv, along
disagreement that cannot be amicably settled between the parties shall with Election.com and ePLDT. Neither was there anything to indicate
be submitted to arbitration in Singapore, in accordance with the the exact relationships between and among these firms; their diverse
commercial arbitration rules of the Singapore Chamber of Commerce, roles, undertakings and prestations, if any, relative to the prosecution
the accompanying expenses in either case to be equally shared by of the project, the extent of their respective investments (if any) in the
both parties.56 supposed consortium or in the project; and the precise nature and
extent of their respective liabilities with respect to the contract being
offered for bidding. And apart from the self-serving letter of March 7,
9. TIM and Smartmatic are jointly and severally liable to the COMELEC
2003, there was not even any indication that MPEI was the lead
for the obligations of each of TIM and Smartmatic under the TOR/RFP, company duly authorized to act on behalf of the others.
should they be awarded the contract for the Automation Project. 57

So, it necessarily follows that, during the bidding process, Comelec

Trapped in their own "Catch-22," petitioners' invocation of Information had no basis at all for determining that the alleged consortium really
Technology is misplaced. The facts of that case are entirely different. existed and was eligible and qualified; and that the arrangements
In the main, no JVA or document of similar import was submitted
among the members were satisfactory and sufficient to ensure delivery
during the bidding process to the COMELEC in Information on the Contract and to protect the government's interest.
Technology. The only "evidence" as to the existence of the alleged
joint venture was a self-serving letter expressing that Mega Pacific
eSolutions, Inc., Election.com, Ltd., WeSolv Open Computing, Inc., SK x x x
C&C, and ePLDT and Oracle System (Philippines), Inc. had agreed to
form a consortium to bid for the Automation Project. This
At this juncture, one might ask: What, then, if there are four MOAs Petitioners cannot rely on Executive Order No. 584 (EO 584),
instead of one or none at all? Isn't it enough that there are these containing the Seventh Regular Foreign Investment Negative List,
corporations coming together to carry out the automation project? Isn't which cites "contracts for the supply of materials, goods and
it true, as respondent aver, that nowhere in the RFP issued by commodities to [a] government-owned or controlled corporation,
Comelec is it required that the members of the joint venture execute a company, agency or municipal corporation" as limited to forty percent
single written agreement to prove the existence of a joint venture. (40%) foreign equity. The reliance cannot be countenanced in light of
Indeed, the intention to be jointly and severally liable may be two basic principles of statutory construction.
evidenced not only by a single joint venture agreement, but also by
supplementary documents executed by the parties signifying such
First, leges posteriores priores contrarias abrogant. In case of an
intention. What then is the big deal?cralawred
irreconcilable conflict between two laws of different vintages, the later
enactment prevails.61 The rationale is simple: a later law repeals an
The problem is not that there are four agreements instead of only earlier one because it is the later legislative will. 62 RA 9369, which
one. The problem is that Comelec never bothered to check. It never allows the COMELEC to procure AES supplies and equipment from
based its decision on documents or other proof that would concretely foreign sources, became law in 2007, whereas EO 584 is an executive
establish the existence of the claimed consortium or joint venture or issuance in 2006.
agglomeration. It relied merely on the self-serving representation in an
uncorroborated letter signed by only one individual, claiming that his
Second, lex specialis derogat generali. General legislation must give
company represented a "consortium" of several different corporations.
way to special legislation on the same subject, and generally is so
It concluded forthwith that a consortium indeed existed, composed of
interpreted as to embrace only cases in which the special provisions
such and such members, and thereafter declared that the entity was
are not applicable.63 In other words, where two statutes are of equal
eligible to bid.
theoretical application to a particular case, the one specially designed
therefor should prevail.64 RA 9369 specifically covers a well-defined
x x x subject (i.e., procurement for election automation), whereas EO 584
has a more universal scope.
In brief, despite the absence of competent proof as to the existence
and eligibility of the alleged consortium (MPC), its capacity to deliver In sum, there is no constitutional or statutory Filipino-foreign equity
on the Contract, and the members' joint and several liability therefor, ceiling to speak of, and the Anti-Dummy Law does not find application
Comelec nevertheless assumed that such consortium existed and was to the case at bar.
eligible. It then went ahead and considered the bid of MPC, to which
the Contract was eventually awarded, in gross violation of the former's
Nonetheless, I wish to clarify certain matters.
own bidding rules and procedures contained in its RFP. Therein lies
Comelec's grave abuse of discretion. (Emphasis and underscoring
supplied.)58 It appears that in preparing the bidder eligibility requirements, the
COMELEC, exercising the discretion granted by Section 12 of RA
8436, as amended by RA 9369, adopted the guidelines that were set
To make matters worse, the COMELEC in Information Technology
forth in the Implementing Rules and Regulations of RA 9184 (The
awarded the bid to the "consortium" despite some failed marks during
Government Procurement Reform Act). Thus, in Sections 2.2.1 to 2.2.4
the technical evaluation.59 In the case at bar, the Smartmatic-TIM
of Part IX (B) of the TOR/RFP, the COMELEC invited the following to
Consortium passed the technical evaluation.
bid for the Automation Project:

It is thus readily apparent that the joint venture of Smartmatic and TIM
(1) Duly licensed Filipino citizens/proprietorships;
is not attended by any of the deficiencies of the MP "consortium," as
the agreement in the instant case states with precision the "exact
nature and scope of the parties' respective undertakings, (2) Partnerships duly organized under the laws of the Philippines and
commitments, deliverables and covenants."60 The petitioners' repeated of which at least sixty percent (60%) of the interest belongs to citizens
recourse to Information Technology betrays a highly myopic and of the Philippines;
constricted view.
(3) Corporations duly organized under the laws of the Philippines, and
c.5 No nationality requirement is violated of which at least sixty percent (60%) of the outstanding capital stock
belongs to citizens of the Philippines;
Petitioners also contend that the joint venture agreement of TIM and
Smartmatic violates the Filipino-foreign equity ceiling, the Anti-Dummy (4) Manufacturers, suppliers and/or distributors forming themselves
Law and COMELEC's own bidding requirements. into a joint venture, i.e., a group of two (2) or more manufacturers,
suppliers and/or distributors, that intend to be jointly and severally
responsible or liable for a particular contract, provided that Filipino
I concur fully with the ponencia of Mr. Justice Velasco on this point.
ownership thereof shall be at least sixty percent (60%);
There is no constitutional or statutory provision classifying the lease or
andcralawlibrary
provision of goods and technical services for the automation of an
election as a nationalized activity. To be sure, Section 12 of RA 8436,
as amended by RA 9369, explicitly authorizes the COMELEC to (5) Cooperatives duly registered with the Cooperatives Development
procure supplies, equipment, materials, software, facilities, and other Authority.
services from foreign sources, as follows:
But for a few innocuous stylistic changes, this enumeration is an exact
SEC. 12. Procurement of Equipment and Materials. - To achieve the reproduction of Section 23.11.165 of the Implementing Rules and
purpose of this Act, the Commission is authorized to procure, in Regulations of RA 9184.
accordance with existing laws, by purchase, lease, rent or other forms
of acquisition, supplies, equipment, materials, software, facilities and
other services, from local or foreign sources free from taxes and import Per Smartmatic TIM Corporation's Articles of Incorporation, there is no
question that the JVC complied with the 60-40 equity ceiling provided
duties, subject to accounting and auditing rules and regulations. With
respect to the May 10, 2010 elections and succeeding electoral under the TOR/RFP. Out of a total paid-up capital
exercises, the system procured must have demonstrated capability of P1,130,000,000.00, TIM contributed sixty percent (60%) thereof
(equivalent to P678,000,000.00), while Smartmatic paid the remaining
and been successfully used in a prior electoral exercise here or
abroad. Participation in the 2007 pilot exercise shall not be conclusive forty percent (40%) (equivalent to P452,000,000.00).
of the system's fitness. (Emphasis supplied.)
The petitioners, however, allege that the sixty percent (60%) interest of abroad. I don't want amateurs, you know, trying to prove yes, the
TIM in the JVC was merely simulated. They point to certain provisions Filipino can.
in the JVA as denoting that effective control over Smartmatic TIM
Corporation was given to Smartmatic. Specifically, petitioners assail
MR. MELO. Yes, Your Honor, precisely. This is speaking my mind
the following:
alound (sic). Let us say, a foreign company goes into a partnership
who (sic) are co-venture (sic) in system with a Philippine company.
(1) The mandatory presence of at least one of the nominated Directors The Philippine company is usually taken for its expertise in the
of Smartmatic to establish a quorum of the Board of Directors, dispersal of the machines because [the foreign company] does not
pursuant to Article 4.366 of the JVA; need another technical company expert in computers.

(2) The veto power in the Board of Directors granted by TIM to THE CHAIRMAN (REP. LOCSIN). It's the deployment of the machines.
Smartmatic to authorize certain important financial and technical
actions, pursuant to Article 4.567 of the JVA;
MR. MELO. Deployment. x x x (Emphasis supplied)73

(3) The mandatory presence of the Director representing Smartmatic to

***
establish a quorum of the Executive Committee (EXECOM), pursuant
to Article 4.768 of the JVA; andcralawlibrary
THE CHAIRMAN (SEN. ESCUDERO). x x x What legal methodology,
memorandum or agreement will you be requiring to make sure that it's
(4) The sole right of Smartmatic to nominate the (a) Chairman of the
the foreigner who knows how to run it, who will actually run the [show]
Board, (b) the Treasurer, and (c) the Corporate Secretary, and TIM's
and not be outvoted each time within the company, 60-40? I mean [the
corresponding duty to elect said nominees, pursuant to Articles
Filipino company] can promise that, "Hindi ho, sila ang nakakaintindi,
4.1069 and 4.1170 of the JVA.
sila bahala, kami roll-out lang." But what assurance do we have and
what legal document do you intend to require insofar as this is
But far from establishing the tyranny of the minority, these provisions concerned? (Emphasis supplied)74
may be viewed as legitimate minority protection devices. Through
them, Smartmatic sought to protect its huge investment in the
***
Automation Project. Without these protective provisions, Smartmatic
would be helplessly exposed to the risk of being outvoted on significant
corporate activities and decisions - including decisions on technical THE CHAIRMAN (REP. LOCSIN). x x x As I said, one of the most
matters falling within its field of expertise, for which it is primarily compelling arguments for the big guys to win, the foreigners, is that
responsible (as against TIM) under the express terms of the they have a reputation to defend. No Filipino has a reputation to
COMELEC's bidding rules71 and the Automation Contract72 itself. If that defend in IT. In IT, there's none. The problem here is, as Senator
would come to pass, Smartmatic could not perform its part of the Escudero said, a 60 percent joint venture partner. Are there any
Contract and the end result would be the ruin of its investment. provisions you have made that would prevent them from interfering in
the technical aspects of the electronic elections? What if you have the
majority partners dictating how it will be done?
To be sure, our lawmakers wanted the foreign joint venture to be
autonomous in carrying out its technical functions, and intended to
protect it from the whims and caprices of the non-expert majority. This x x x
can be gleaned from the April 20, 2009 hearing of the Joint Committee
on AES, during which the following exchanges were made:
THE CHAIRMAN (REP. LOCSIN). You will have to put really strict
sanctions on any interference by the majority partner in the judgment
MR. MELO. Here is a scenario, Your Honor. Scantron, for instance and of the minority partner in implementing the majority project. I don't
a Philippine Company, they have an agreement, an agreement, joint know how that's done though. (Emphasis supplied)75
venture agreement.
***
THE CHAIRMAN (REP. LOCSIN). And the one who carries it out will
[be] Scantron even if it's 40 percent?cralawred
THE CHAIRMAN (REP. LOCSIN). The question we were asking - Our
apprehension here, Senator Escudero and myself, is that, will the 60
MR. MELO. Scantron, let us say, wins. After they win, after Scantron percent which has no track record and is Filipino and may have
wins, now, the two, they form a company. political affiliations, would they be in a position to influence the 40
percent minority that is the expert in electronic elections? Would the 60
percent be able to compromise the integrity of the 40
THE CHAIRMAN (REP. LOCSIN). Yes. But do you - will you check
percent?cralawred
that the ones who will carry out the project will be, in the case of
Smartmatic, the guys who actually conduct elections in Venezuela and
not some local boys who are just, you know, dreaming that they can do MR. RAFANAN.76 Do you say, sir, bidder with political
it?cralawred connections?cralawred

MR. MELO. But the contract will now be awarded in favor of the new THE CHAIRMAN (REP. LOCSIN). That's just an example. What we re
company?cralawred saying is that a 40 percent track record - the track record of the 40
percent partner, say, Sequoia or whatever. I mean, no question. They
re qualified but they re always in a minority position in the joint venture
THE CHAIRMAN (REP. LOCSIN). Yes. But who will implement
company. What if the majority Filipino tells them to compromise the
it?cralawred
integrity? What measures do you take? (Emphasis supplied)77

MR. MELO. Yes, we will make them jointly and severally liable.
***

THE CHAIRMAN (REP. LOCSIN). I m not really worried nor do (sic)

THE CHAIRMAN (SEN. ESCUDERO). x x x So, ang tanong ko[,] you
am I concerned about punishing them up after the failure of elections. I
re awarding [the contract to] a company with a track record although
would just really want to make sure that the guys who will run this will
may minority, minority lang siya. How sure are you na hindi siya
not be the local boys but the foreign boys who have actually done it
didiktahan nung 60 percent na walang track record, walang
experience, so useless yung requirement natin na may track record ka
hindi naman siya ang masusunod, ang masusunod yung may-ari ng 60 machines which will have exclusive say. And so the dispersal or the
percent na Filipino na walang track record at walang kaalam-alam deployment of the machines will be another matter. (Emphasis
presumably. supplied.)78

x x x The petitioners find particularly repugnant Smartmatic's veto power in

the Board of Directors in respect of certain key financial and technical
actions. In my view, however, this is but a fair and reasonable check
THE CHAIRMAN (REP. LOCSIN). Senator Enrile, our worry is that the
against possible abuses by the majority stockholder. As Smartmatic is
60 percent may dictate on the expert 40 percent. Would a joint venture
the joint venture partner having the greater experience in automated
contract be able to provide some autonomy to the 40 percent expert so
elections, it deemed it necessary to reserve to itself the veto power on
that they cannot be interfered with?cralawred
these important financial matters so as not to compromise the
technical aspects of the Automation Project. As far as matters other
THE SENATE PRESIDENT. x x x [A] joint venture is a matter of than those provided in Article 4.5 are concerned, Smartmatic does not
contract. You have to - apart from the legal requirement, you have to have any veto right. This is clear from Article 4.4, which provides as
embed into the joint venture contract the obligation of each of the joint follows:
venturer.
4.4 Resolution on matters other than those set forth in Article 4.5 below
THE CHAIRMAN (SEN. ESCUDERO). So, essentially... shall be adopted by the vote of the majority of the Directors present
and constituting a quorum, except as otherwise provided by law.
THE SENATE PRESIDENT. Including their voice in the joint venture.
The same conclusion may be obtained from the deliberations of the
Senate Committee on Constitutional Amendments, Revision of Codes
THE CHAIRMAN (SEN. ESCUDERO). So, essentially nga ho[,] we are
and Laws. The following exchanges from their June 23, 2009
bound and doomed to award this contract to a company majority of hearing79 are illuminating on this point:
which will be owned by individuals or another company that has no
track record to speak of? Kasi yung obligasyon na nating i-award iyang
60/40 sa Filipino company, we are obligated by law, that's what you re THE CHAIRMAN. I went through your JVA and I found some
saying, to award it to a company majority of which will be owned by a provisions peculiar and interesting. In your JVA[, it] states that no
company or individuals without any track record whatsoever?cralawred board resolution shall be passed - in the first place, three members of
the board will belong to TIM, local, two members of the board will
belong to Smartmatic, foreign, so 60-40 naman talaga iyon. My
THE CHAIRMAN (REP. LOCSIN). But Senator Enrile, can the question is, under your JVA[,] it says no resolution shall be passed
Comelec require a particular joint venture contract that would specify unless TIM with three votes, presumably majority already, can secure
the particular obligations of the parties and in some cases that the vote of Smartmatic, vice versa. But vice versa is expected because
obligation would be - would protect the minority's integrity in conducting you only have two votes. If TIM needs to secure one more vote from
the election? you before they can do anything, number one, there is a potential for a
deadlock. Number two, is that not effective control or veto power over
x x x the company that essentially overrides or circumvents the 60-40
requirement?cralawred
THE CHAIRMAN (SEN. ESCUDERO). x x x [F]or you to require or
impose a requirement saying that the 40 will control the 60 is a MR. FLORES. No, sir. That's a standard practice to protect minority
circumvention, if at all, of the 60/40 rule as well. investors and it only relates to certain key decisions not to the whole
development of the project.
THE CHAIRMAN (REP. LOCSIN). But would it not be a circumvention,
say, for voting purposes for control of the corporation but not for the THE CHAIRMAN. Major decisions?cralawred
purely technical aspect of conducting an electronic election to protect
the integrity of that undertaking?cralawred
MR. FLORES. Yes, sir.

THE CHAIRMAN (SEN. ESCUDERO). Without arguing that point, I THE CHAIRMAN. We discussed this before[,] Chairman Melo,
may tend to agree with that point but the fact is, legally the question is
remember?cralawred
how will you be able to overcome it?cralawred

MR. MELO. Yes, Your Honor. Precisely at that time it was the
THE CHAIRMAN (REP. LOCSIN). Can you require that in your terms
suggestion of the committee, the Oversight Committee that major
of reference?cralawred decisions or decisions concerning technical matters, concerning the
machines will have to be made by Smartmatic. They cannot be
MR. MELO. I suppose, Your Honor. You re the expert here, Manong controlled by the local partner because, otherwise, baka ho hindi
Johnny. But in the joint venture, can it not be provided that the foreign naman expert 'yung local partner sa ano - so we follow that.
company shall have exclusive say on the technical aspect?cralawred
x x x
THE SENATE PRESIDENT. Puwede iyon.
THE CHAIRMAN. But my question is, still there is a 60-40 requirement.
MR. MELO. Iyon. What if ayaw pumayag ng Smartmatic? So does the local company
have effective control over the joint venture company? x x x
THE SENATE PRESIDENT. You can insist [on] that.
MR. RAFANAN.80 Sir, concerning decisions that will pertain to
technical problems or trouble-shooting problems in the election, we are
MR. MELO. Yes. providing in the contract that these matters will be entrusted to the
foreign corporation which is Smartmatic International.
THE SENATE PRESIDENT. The Comelec can impose that.
THE SENATE PRESIDENT. I assume that this provision in their
MR. MELO. Yes, insofar as the technical aspect is concerned, it's only agreement, between the joint venturers[,] is a function of trust between
- it's the foreign company, the supplier of the computers, of the them. I suppose they have just met in this particular venture and so
they do not know each other very well, so the foreign company will in an oval or by drawing a straight line to connect two parts of an
naturally protect - want to protect itself that it will not be ousted from arrow.86 The ballots are counted by scanners, which may be located
the venture in case of - You know, you are dealing here with a certain either at the precinct (in "precinct-count" systems) or at some central
magnitude of financial benefits. So I suppose that is intended to protect location ("central-count" systems).87 If ballots are counted at the polling
themselves. place, voters put the ballots into the tabulation equipment, which scans
and tallies the votes.88 These tallies can be captured in removable
storage media, which are transported to a central tally location or are
x x x
electronically transmitted from the polling place to the central tally
location.89 If ballots are centrally counted, voters drop ballots into
THE CHAIRMAN. Sir, I ll give you an example. sealed boxes; and, after the polls close, election officials transfer the
sealed boxes to the central location where they run the ballots through
the tabulation equipment.90
THE SENATE PRESIDENT. As collectivity ha.

The central-count system (via the CCOS machines) was used during
THE CHAIRMAN. This is what they will on requiring [Smartmatic's] one the 2008 elections in all the provinces of the ARMM except in
vote even if TIM, the local company, already has three votes. Approval Maguindanao. The COMELEC Advisory Council - created by RA 9369
of operating capital expenditures and budgets for the year; approval of
to recommend to the COMELEC the "appropriate, secure, applicable,
financial statements; election or removal of corporate officers - [We and cost-effective technology" to be used in the automation of
are] not talking technical here yet. x x x Approval of financial plans; elections - deployed various monitors from the DOST, PPCRV and
borrowing, etcetera. Entering into or terminating an agreement
Consortium on Electoral Reforms to observe the usability of the
involving technology transfer; delegation of powers to directors, officers technologies used in the ARMM elections as well as to observe the
and delegation of powers to committees. x x x electoral process in general.91 The CCOS machines were assessed
before and during the actual elections, and the COMELEC Advisory
x x x Council eventually determined that these machines sufficiently
complied with the minimum systems configuration specified in Section
6 of RA 9369.92
THE CHAIRMAN. Financial, appointing of officials.

In light of this background, the question is whether the central-count

THE SENATE PRESIDENT. Yes, if they can be removed, if they do system used in 2008 may be considered as substantial compliance
not have that veto power, the 60 percent can kick them out after they with the "prior successful use" qualification set forth in Section 12 of
get the contract. RA 8436, as amended.

x x x With due respect, I answer in the affirmative. It is obvious that the

PCOS and CCOS machines are based on the same optical scan
THE CHAIRMAN. But wherever it is coming from... technology. The sole difference is that the PCOS machines dispense
with the physical transportation of the ballots to the designated
counting centers, since the votes will be counted in the precinct itself
THE SENATE PRESIDENT. As a lawyer, from my experience, we and the results electronically transmitted to the municipal, provincial
have done that before in many cases in order to protect, to be fair, to and national Board of Canvassers. Tellingly, but for their sweeping and
be equitable to the people who are coming here for the first time or convenient conclusion that "[e]ven if a PCOS [machine] is an OMR
who are dealing with people that they do not know very [Optical Mark Reader] [machine], nevertheless[,] it is totally different
well.81 (Emphasis supplied.) from a CCOS [machine]," the petitioners were silent on this point. 93

Petitioners also find objectionable Smartmatic's sole right to nominate In any event, the AES procured by COMELEC for the 2010 elections
the Treasurer, Corporate Secretary and the Chairman of the Board, has been successfully used in prior electoral exercises in (i) New
and TIM's corresponding duty to elect said nominees. However, the Brunswick, Canada; (ii) Ontario, Canada; and (iii) New York; the United
objection conveniently disregards the fact that, to maintain the balance States of America. The petitioners nevertheless question the
of power, TIM in turn has the sole right to nominate the President and certifications submitted to this effect, arguing that these were issued
Chief Executive Officer and the Assistant Corporate Secretary of the not to the Smartmatic-TIM joint venture, but to a third party - Dominion
joint venture corporation.82 Pursuant to Article 4.11 of the JVA, Voting Systems.
Smartmatic is in fact obliged to cause its Directors to vote for the
officers chosen by TIM. Moreover, as an added means to protect their
respective interests in the joint venture, Smartmatic and TIM further I find this argument meritless, for it foists unto the law an imaginary
agreed that for the validity of the resolutions contained therein, all requirement. As the COMELEC correctly observed, what the law
certifications to be issued must bear the signatures of both the requires is that the system must have been successfully utilized in a
Corporate Secretary and the Assistant Corporate Secretary.83 prior electoral exercise, not that the provider (i.e., Smartmatic TIM
Corporation) should have been the one that previously used or
employed the system. Considering that the system subject of the
In fine, the provisions assailed by Petitioners are reasonable under the certifications is the same one procured by the COMELEC for the 2010
circumstances and should be upheld as legitimate minority protection elections, the prior successful use requirement has been adequately
devices. met. At any rate, the clear terms of the Licensing Agreement between
Smartmatic and Dominion Voting Systems indicate that the former is
c.6 "Prior Successful Use" qualification has been complied with the entity licensed exclusively by the latter to use the system in the
Philippines.
The petitioners postulate that the PCOS machines offered by the
Smartmatic TIM Corporation have not been successfully used in an c.7 COMELEC's determination as to minimum systems capabilities of
electoral exercise in the Philippines or abroad, as required by Section the PCOS machines must be respected
12 of RA 8436, as amended.84 A quick overview of the optical scan
technology is in order. This Court is neither constitutionally permitted nor institutionally
outfitted to conduct a cost-benefit analysis of the system or of the
Optical scan or "Marksense" technology has been used for decades for nuances of the available technology. It is ill-equipped to deal with the
standardized tests such as the Scholastic Aptitude Test (SAT). 85 The complex and difficult problems of election administration. This
optical scan ballot is a paper-based technology that relies on inordinately difficult undertaking requires expertise, planning, and the
computers in the counting and canvassing process. Voters make their commitment of resources, all of which are peculiarly within the
choices by using a pencil or a pen to mark the ballot, typically by filling province of the legislative and the executive branches of government.
The petitioners contend that the PCOS machines do not comply with
the minimum system capabilities94 set forth by Section 6 of RA 8436, File properties of the
as amended. Then, in an entirely speculative exercise, they conjure a decrypted image file also
perturbing series of doomsday scenarios that would allegedly result revealed 200 dpi.
from using this particular technology: 'unaddressed logistical
nightmares,' 'failure of elections,' and 'massive disenfranchisement.'
6 Does the system scan in Yes. 30 shades of gray
grayscale? were scanned in the test
Let me preface my discussion of this issue by accentuating once more PCOS machine, 20 of which
the core of RA 8346, as amended: the COMELEC, an independent were recognized, exceeding
Constitutional Commission armed with specialized knowledge born of the required 4-bit/16 levels
years of experience in the conduct of elections, has the sole of gray as specified in Bid
prerogative to choose which AES to utilize.95 In carrying out this Bulletin No. 19.
mandate, Section 6 of the same law directs the COMELEC to develop
and adopt, with the assistance of the COMELEC Advisory Council, an
evaluation system to ascertain that the minimum system capabilities 7 Does the system require Yes. The system required
are met. authorization and the use of a security key
authentication of all with different sets of
The COMELEC did in fact adopt a rigid technical evaluation system operators, such as, but passwords/PINs for
composed of twenty-six criteria, against which the procured AES was not limited to, usernames Administrator and Operator
benchmarked by the TWG to determine its viability and concomitant and passwords, with users.
security.96 In this regard, the TWG ascertained that the PCOS multiple user access
machines "PASSED all tests as required in the 26-item criteria,"97 as levels?
follows:

8 Does the system have an Yes. The PCOS machine

electronic display? makes use of an LCD
ITEM98 REQUIREMENT REMARK / DESCRIPTION display to show information:

1 Does the system allow Yes. The proposed PCOS  if a ballot may be
manual feeding of a machine accepted the test inserted into the
ballot into the PCOS ballots which were manually machine;
machine? fed one at a time.  if a ballot is being
processed;
 if a ballot is being
2 Does the system scan a Yes. A 30-inch ballot was rejected;
ballot sheet at the speed used in this test. Scanning
of at least 2.75 inches the 30-inch ballot took 2.7  on other
per second? seconds, which translated instructions and
to 11.11 inches per second. information to the
voter/operator.

3 Is the system able to Yes. The system captured

capture and store in an the images of 1,000 test
encrypted format the ballots in encrypted format. 9 Does the system employ Yes. The PCOS showed
digital images of the Each of the 1,000 image error handling error messages on its
ballot for at least 2,000 files contained the images procedures, including, screen whenever a ballot is
ballot sides (1,000 of the front and back sides but not limited to, the use rejected by the machine and
ballots, with back to back of the ballot, totaling 2,000 of error prompts and gives instructions to the
printing)? ballot sides. other related voter on what to do next, or
instructions? when there was a ballot jam
To verify the captured ballot error.
images, decrypted copies of
the encrypted files were
also provided. The same 10 Does the system count Yes. Two rounds of tests
were found to be digitalized the voter's vote as were conducted for this test
representations of the marked on the ballot with using only valid
ballots cast. an accuracy rating of at marks/shades on the
least 99.995 %? ballots. 20,000 marks were
required to complete this
4 Is the system a fully Yes. The proposed PCOS is test, with only one (1)
integrated single device a fully integrated single allowable reading error.
as described in item no. device, with built-in printer
4 of Component 1-B? and built-in data 625 ballots with 32 marks
communication ports each were used for this test.
(Ethernet and USB). During the comparison of
the PCOS-generated results
with the manually
5 Does the system have a Yes. A portion of a filled[-]up prepared/predetermined
scanning resolution of at marked oval was blown up results, it was found out that
least 200 dpi? using image editor software there were seven (7) marks
to reveal the number of dots which were inadvertently
per inch. The sample image missed out during ballot
showed 200 dpi. preparation by the TWG.
Although the PCOS-
 generated results turned out survey questions on gender
to be 100% accurate, the and age group, and a
20,000-mark [requirement] plebiscite question.
was not met thereby
requiring the test to be
The other showed 609 pre-
repeated.
printed candidate names,
also for fourteen (14)
To prepare for other positions, including three (3)
possible missed out marks, survey questions.
650 ballots (with 20,800
marks) were used for the
next round of test, which 15 Does each side of the Yes. The 30-inch ballot,
also yielded 100% ballot sheet which was used to test Item
accuracy. accommodate at least No. 2, contained 309 names
300 names of candidates for the national positions
with a minimum font size and 300 names for local
11 Does the system detect Yes. This test made use of of 10, in addition to other positions. The total pre-
and reject fake or one (1) photocopied ballot mandatory information printed names on the ballot
spurious, and and one (1) "re-created" required by law? totaled 609.
previously'scanned ballot. Both were rejected
ballots? by the PCOS.
This type of test ballot was
also used for test voting by
The test for the rejection of the public, including
previously-scanned (sic) members of the media.
ballots was done during the
end-to-end demonstration.
Arial Narrow, font size 10,
was used in the printing of
12 Does the system scan Yes. Four (4) ballots with the candidate names.
both sides of a ballot and valid marks were fed into
in any orientation in one the PCOS machine in the
16 Does the system Yes. The ballots used for
pass? four (4) portrait orientations
recognize full shade the accuracy test (Item No.
specified in Bid Bulletin No.
marks on the appropriate 10), which made use of full
4 (either back or front,
space on the ballot shade marks, were also
upside down or right side
opposite the name of the used in this test and were
up), and all were accurately
candidate to be voted accurately recognized by
captured.
for? the PCOS machine.

13 Does the system have Yes. The system was able

17 Does the system Yes. Four (4) test ballots
necessary safeguards to to recognize if the security
recognize partial shade were used with one (1)
determine the features on the ballot are
marks on the appropriate mark each per ballot
authenticity of a ballot, "missing".
space on the ballot showing the following pencil
such as, but not limited
opposite the name of the marks:
to, the use of bar codes,
Aside from the test on the candidate to be voted
holograms, color shifting
fake or spurious ballots for?
ink, micro printing, to be
(Item No. 11), three (3) test  top half shade;
provided on the ballot,
which can be recognized
ballots with tampered bar  bottom half
codes and timing marks shade;
by the system?
were used and were all  left half shade;
rejected by the PCOS and
machine.
 right half shade[.]

The photocopied ballot in

the test for Item No. 11 was These partial shade marks
not able to replicate the UV were all recognized by the
ink pattern on the top PCOS machine.
portion of the ballot[,]
causing the rejection of the
ballot. 18 Does the system Yes. One (1) test ballot with
recognize check marks one check mark, using a
on the appropriate space pencil, was used for this
14 Are the names of the Yes. Two sample test on the ballot opposite the test. The mark was
candidates pre-printed ballots of different lengths name of the candidate to recognized successfully.
on the ballot? were provided: one (1) was be voted for?
14 inches long while the
other was 30 inches long.
Both were 8.5 inches wide. 19 Does the system Yes. One (1) yes ballot with
recognize x marks on the one x mark, using a pencil,
appropriate space on the was used for this test. The
The first showed 108 pre- ballot opposite the name mark was recognized
printed candidate names for of the candidate to be successfully.
fourteen (14) contests / voted for?
positions, including two (2)
20 Does the system Yes. The 1000 ballots used were called to confirm TIM-
recognize both pencil in the accuracy test (Item Smartmatic's explanation.
and ink marks on the No. 10) were marked using
ballot? the proposed marking pen
The PCOS machine was
by the bidder.
connected to regular power
and started up successfully.
A separate ballot with one
(1) pencil mark was also
The following day, the "re-
tested. This mark was also
test" was completed in 12
recognized by the PCOS
hours and 40 minutes,
machine. Moreover, the
starting from the
tests for Items No. 17, 18
initialization to the printing
and 19 were made using
of the reports. 984 ballots
pencil marks on the ballots.
were fed into the machine.
The ER, as generated by
21 In a simulation of a Yes. Five (5) ballots were the PCOS[,] was compared
system shut down, does used in this test. The power with the predetermined
result, showing 100%
the system have error cord was pulled from the
recovery features? PCOS while the 3rd ballot accuracy.
was in the middle of the
scanning procedure, such
25 Is the system capable of Yes. The PCOS prints
that it was left "hanging" in
generating and printing reports via its built-in
the ballot reader.
reports? printer[,] which [reports]
include:
After resumption of the
regular power supply, the
1. Initialization Report
PCOS machine was able to
restart successfully with
notification to the operator 2. Election Returns (ER)
that there were two (2)
ballots already cast in the
machine. The "hanging" 3rd 3. PCOS Statistical Report
ballot was returned to the
operator and was able to be 4. Audit Log
re-fed into the PCOS
machine. The marks on all
five (5) were all accurately 26 Did the bidder Yes. An end-to-end
recognized. successfully demonstrate demonstration of all
EMS, voting, counting, proposed systems was
consolidation/canvassing presented, covering:
22 Does the system have Yes. The PCOS was able to and transmission? (see
transmission and transmit to the CCS during B. Demo model)
consolidation/canvassing the end-to-end  importing of
capabilities? demonstration using [a] election data into
Globe prepaid [i]nternet kit. the EMS;
 creation of
election
23 Does the system Yes. The PCOS saves a configuration data
generate a backup copy backup copy of the ERs, for the PCOS and
of the generated reports, ballot images, statistical the CCS using
in a removable data report and audit log into a EMS;
storage device? Compact Flash (CF) card.
 creation of ballot
faces using EMS;
24 Does the system have Yes. A 12-volt 18AH battery  configuring the
alternative power lead acid was used in this PCOS and the
sources, which will test. CCS using the
enable it to fully operate EMS-generated
for at least 12 hours? election
The initial test had to be configuration file;
repeated due to a short
circuit, after seven (7) hours
 initialization,
operation,
from start-up without ballot
scanning. This was generation of
reports and
explained by TIM-
backup using the
Smartmatic to be (sic)
caused by non-computable PCOS;
wiring of the battery to the  electronic
PCOS. A smaller wire than transmission of
what is required was results ... :
inadvertently used, likening
the situation to incorrect o from the PCOS
wiring of a car battery. Two to city/municipal
(2) COMELEC electricians CCS and to the
 experience in dealing with political controversies, is in a peculiarly
central server; advantageous position to decide complex political questions.

o from the x x x
city/municipal
CCS to the
There are no ready-made formulas for solving public problems. Time
provincial CCS;
and experience are necessary to evolve patterns that will serve the
ends of good government. In the matter of the administration of the
o from the laws relative to the conduct of elections, ..., we must not by any
provincial CCS to excessive zeal take away from the Commission on Elections the
the national CCS; initiative which by constitutional and legal mandates properly belongs
to it. Due regard to the independent character of the Commission, as
ordained in the Constitution, requires that the power of this Court to
 receipt and review the acts of that body should, as a general proposition, be used
canvass of sparingly, but firmly in appropriate cases. We are not satisfied that the
transmitted present suit is one of such cases. (Emphasis supplied.)
results:
As the ultimate guardian of the Constitution, we have the distinguished
o by the but delicate duty of determining and defining constitutional meaning,
city/municipal divining constitutional intent, and deciding constitutional
CCS from the disputes.102Nonetheless, this power does not spell judicial superiority
PCOS; (for the judiciary is co-equal with the other branches) or judicial tyranny
(for it is supposed to be the least dangerous branch).103 Thus,
o by the provincial whenever the Court exercises its function of checking the excesses of
CCS from the any branch of government, it is also duty-bound to check itself.104 The
city/municipal system of divided and interlocking powers of the branches of
CCS; government are carefully blended so as to produce a complex system
of checks and balances that preserve the autonomy of each branch,
without which independence can become supremacy.
o by the national
CCS from the
provincial CCS; Petitioners disparage the technical test and end-to-end demonstration
conducted by the COMELEC for having been done merely for media
mileage. This baseless accusation is easily dismissed by repairing to
 receipt of the presumption of regularity of official acts. As we ruled in The
transmitted Province of Agusan del Norte v. Commission on Elections, et al.:
results by the
central server Appropriately, the Constitution invests the COMELEC with broad
from the PCOS power to enforce and administer all laws and regulations relative to the
conduct of an election, plebiscite and other electoral exercises. In the
discharge of its legal duties, the COMELEC is provided by the law with
tools, ample wherewithal, and considerable latitude in adopting means
that will ensure the accomplishment of the great objectives for which it
We cannot close our eyes to the fact that the TWG's technical was created - to promote free, orderly and honest
evaluation of the AES was corroborated by knowledgeable and elections.105 Conceived by the charter as the effective instrument to
impartial third parties: the law-mandated Official Observers. In their preserve the sanctity of popular suffrage, endowed with independence
respective reports to the COMELEC, the PPCRV and the Office of the and all the needed concomitant powers, COMELEC deserves to be
Ombudsman found the system procured and the attendant COMELEC accorded by the Court the greatest measure of presumption of
proceedings to be consistent, transparent, and in consonance with the regularity in its course of action and choice of means in performing its
relevant laws, jurisprudence and the terms of reference. 99 duties, to the end that it may achieve its designed place in the
democratic fabric of our government.106 (Emphasis supplied.)
Accordingly, I do not find any grave abuse of discretion on the part of
the COMELEC in awarding the Automation Contract to the Smartmatic The COMELEC is a constitutional body, mandated to play a distinct
TIM Corporation. It has approved the PCOS system, and we are bereft and important role in the governmental scheme. In the performance of
of the right to supplant its judgment. Hoary is the principle that the its constitutional duties, it must be given a range of authority and
courts will not interfere in matters that are addressed to the sound flexibility, for the art of good government requires cooperation and
discretion of government agencies entrusted with the regulation of harmony among the branches. We may not agree fully with the choices
activities coming under their special technical knowledge and and decisions that the COMELEC makes, but absent any constitutional
training.100 Our disquisition in the seminal case Sumulong v. assault, statutory breach or grave abuse of discretion, we should never
COMELEC101again finds cogent application: substitute our judgment for its own.

The Commission on Elections is a constitutional body. It is intended to c.8 No abdication by the COMELEC of its duty to enforce election laws
play a distinct and important part in our scheme of government. In the
discharge of its functions, it should not be hampered with restrictions
that would be fully warranted in the case of a less responsible The petitioners assert that the COMELEC abdicated its constitutional
organization. The Commission may err, so this court may also. It duty to enforce and administer all laws relative to the conduct of
should be allowed considerable latitude in devising means and elections, and to decide all questions affecting elections when it
methods that will insure the accomplishment of the greater objective entered into the Automation Contract with Smartmatic TIM
for which it was created - free, orderly and honest elections. We may Corporation.
not fully agree with its choice of means but unless these are clearly
illegal or constitute gross abuse of discretion, this court should not Article 3.3 of the contract for the 2010 Elections Automation Project
interfere. Politics is a practical matter, and political questions must be provides:
dealt with realistically - not from the standpoint of pure theory. The
Commission on Elections, because of its fact-finding facilities, its
contacts with political strategists, and its knowledge derive from actual Article 3.3 The PROVIDER shall be liable for all its obligations under
this Project, and the performance of portions thereof by other persons
or entities not parties to this Contract shall not relieve the PROVIDER Amendments and Revision of Codes and Laws. This is reflected in the
of said obligations and concomitant liabilities. following exchange between Senator Francis Escudero and
COMELEC Executive Director Jose Tolentino, thus:
SMARTMATIC, as the joint venture partner with the greater track
record in automated elections, shall be in charge of the technical "THE CHAIRMAN. Will you deputize the workforce of the winning
aspects of the counting and canvassing software and hardware, bidder? Or are you going to deputize by way of additional technological
including transmission configuration and system integration. support the students?cralawred
SMARTMATIC shall also be primarily responsible for preventing and
troubleshooting technical problems that may arise during the election.
MR. TOLENTINO. It would be the students, Mr. Chairman, whom we
will deputize.
The PROVIDER must provide to SMARTMATIC at all times the
support required to perform the above responsibilities. (Emphasis
With respect to the providers (sic) technical support, we consider them
supplied.)
as partners. So, there is really no need for us to deputize them
because the supervision and control over the counting center would be
Petitioners claim that under this Article 3.3, the COMELEC has solely on the part of the Comelec.
surrendered to Smartmatic the supervision and control of the system to
be used for the AES in violation of section 26 of RA 8436.
THE CHAIRMAN. Pero pwede ho nilang pakialaman 'yung makina,
hindi po ba? Puwede nilang kalikutin 'yon, galawin 'yon, kasi nga -
The petitioners also refer to COMELEC Bid Bulletin No. 10, 107 which kung may palpak, di ba?cralawred
was made an integral part of the Automation Contract by virtue of
Articles 21.1 and 21.4 of the contract.108 Bid Bulletin No. 10 provides
So they re employees of Smartmatic without any counterpart
that the "digital signature shall be assigned by the winning bidder to all
authorization or deputization from Comelec. So, anyone can just walk
members of the Board of Election Inspectors (BOI) and the city,
in [and] say, "I am an employee of Smartmatic. Something is wrong
municipal, provincial or district Board of Canvassers (BOC)." Since
with the machine. I ll check it."
Smartmatic would have access to the digital signatures and would
have the authority to assign the access keys to the BEI and BOC, the
petitioners readily conclude that the COMELEC has abdicated its MR. TOLENTINO. No. It doesn't work that way, Mr. Chairman.
constitutional mandate to enforce election laws. What the petitioners
failed to consider is that, although the digital signature shall be
assigned by the winning bidder, Bid Bulletin No. 10 further provides First of all, aside from our EO who would be going around all over the
that the certificate of authority for the digital signatures must still be municipality to check on the polling centers, Comelec aside from our
approved by the COMELEC. Thus, the COMELEC retains control over Information Technology Department personnel, would also be going
the process of generation and distribution of the digital signatures. around to determine the status of the machines on election day.

Abdication denotes a relinquishment or surrender of authority, which And I am even sure that the watchers of the political parties and the
has not been done by the COMELEC. Part II of the TOR/RFP candidates will [not] allow anyone to touch a machine if he is not a
member of the Board of Election Inspector (sic).
provides:

The Commission on Elections (COMELEC), through its Bids and THE CHAIRMAN. But sir, the workforce of on-site technicians are not
allowed to touch the machines? Something is wrong with the machine,
Awards Committee (BAC), is currently accepting bids for the lease,
with an option to purchase, of an automated election system (AES) who is authorized to...
that will meet the following needs:
MR. TOLENTINO. Yes, sir. Only when there is a problem with the
x x x machine.

THE CHAIRMAN. Precisely my point, sir. So, then these people be at

6. A complete solutions provider, and not just a vendor, which can
provide experienced and effective overall nationwide project least known to Comelec.
management service and total customer support (covering all areas of
project implementation including technical support, training, information MR. TOLENTINO. Yes, Mr. Chairman. In fact, they ll be given
campaign support, civil and electrical works service, warehousing, appropriate identification cards...
deployment, installation and pullout, contingency planning, etc.), under
COMELEC supervision and control, to ensure effective and successful
implementation of the Project. (Emphasis supplied.) THE CHAIRMAN. From Comelec.

The COMELEC identified the type of technology, specifications and MR. TOLENTINO. Yes, Mr. Chairman.
capabilities of the system to be used in the 2010 elections; and the
bidders were required to submit their bids in accordance with the THE CHAIRMAN. That was my question, sir. Because you said a while
COMELEC's stipulations. All the choices made by the winning bidder ago, they re employees only of Smartmatic and you have BEI, anyway.
were to be subject to approval by the COMELEC, and "the final design
and functionality of the system shall still be subject to [its] final
customization requirements."109 So, ... under the control and supervision din sila ng Comelec.

It is clear that the COMELEC has not abdicated its constitutional and MR. TOLENTINO. Yes, Mr. Chairman.
legal mandate to control and supervise the elections. Smartmatic and
TIM are merely service providers or lessors of goods and services to THE CHAIRMAN. Yes." (Emphasis supplied.)110
the Commission. Indeed, Article 6.7 of the Automation Contract,
provides that "the entire process of voting, counting, transmission,
consolidation and canvassing of votes shall be conducted by Finally, the power and duty of the COMELEC to administer election
COMELEC's personnel and officials." laws and to have control and supervision over the automated elections
is not incompatible with the decision to subcontract services that may
be better performed by those who are well-equipped to handle
This control and supervision by the COMELEC was assured in the complex technological matters with respect to the implementation of
June 23, 2009 hearing of the Senate Committee on Constitutional
the AES. The subcontractor cannot act independently of the Petitioners Roque, et al. are again before the Court on a motion for
COMELEC. reconsideration, as supplemented, praying, as they did earlier, that the
contract award be declared null and void on the stated ground that it
was made in violation of the Constitution, statutes, and
D. Conclusion
jurisprudence.1 Intervening petitioner also interposed a similar motion,
but only to pray that the Board of Election Inspectors be ordered to
We are not unaware of the many doomsday scenarios peddled by manually count the ballots after the printing and electronic transmission
doubting Thomases if the coming May 2010 elections will be fully of the election returns.
automated. To downgrade these scenarios, let it be emphasized that
the PCOS System procured by COMELEC is a paper-based system. It
To both motions, private respondents TIM and Smartmatic, on the one
has a provision for system auditability and a voter-verified paper trail.
hand, and public respondents Commission on Elections (Comelec), et
The official ballots may be compared with their digital images stored in
al., on the other, have interposed their separate comments and/or
the memory cards. All actions done on the machine are stored and can
oppositions.
be printed out by the BEI chairperson as an audit log, which includes
time stamps. And in the event of problems arising from non-functioning
PCOS machines, the official ballots cast in the precincts, which have As may be recalled, the underlying petition for certiorari, etc. on its face
previously been fed into the locked ballot box, could be used for a assailed the award by Comelec of the poll automation project to the
manual recount. With these safeguards, the fear of automation failure TIM-Smartmatic joint venture, the challenge basically predicated on the
should not overwhelm us. non-compliance of the contract award with the pilot-testing
requirements of RA 9369 and the minimum system capabilities of the
chosen automated election system (AES), referring to the Precinct
We have been bedevilled in the past by elections that are not free, fair
Count Optical Scan (PCOS) system. The non-submission of
and honest. These elections have made a mockery of our democracy
documents to show the existence and scope of a valid joint venture
for they frustrated the sovereign right of the people to choose who
agreement between TIM and Smartmatic was also raised as a
ought to rule them. These elections have also resulted in instability of
nullifying ground, albeit later abandoned or at least not earnestly
governments whose legitimacy has been placed in doubt. All these
pursued.
elections were conducted manually. For the first time, we shall be
conducting our May 2010 elections through full automation. To be
sure, full automation will not completely cleanse the dirt in our electoral The Court, in its September 10, 2009 Decision, dismissed the petition
system. But it is a big forward step which can lead us to the gateway of and the petition-in-intervention on the following main grounds: (1) RA
real democracy where the vote of the people is sacred and supreme. 8436, as amended, does not require that the AES procured or, to be
used for the 2010 nationwide fully automated elections must, as a
condition sine qua non, have been pilot-tested in the 2007 Philippine
Accordingly, I vote to DISMISS the petition.
election, it being sufficient that the capability of the chosen AES has
been demonstrated in an electoral exercise in a foreign jurisdiction; (2)
Motion for reconsideration Comelec has adopted a rigid technical evaluation mechanism to
ensure compliance of the PCOS with the minimum capabilities
standards prescribed by RA 8436, as amended, and its determination
EN BANC in this regard must be respected absent grave abuse of discretion; (3)
Comelec retains under the automation arrangement its supervision,
oversight, and control mandate to ensure a free, orderly, and honest
G.R. No. 188456 February 10, 2010
electoral exercise; it did not, by entering into the assailed automation
project contract, abdicate its duty to enforce and administer all laws
H. HARRY L. ROQUE, JR., JOEL R. BUTUYAN, ROMEL R. relative to the conduct of elections and decide, at the first instance, all
BAGARES, ALLAN JONES F. LARDIZABAL, GILBERT T. ANDRES, questions affecting elections; and (4) in accordance with contract
IMMACULADA D. GARCIA, ERLINDA T. MERCADO, FRANCISCO documents, continuity and back-up plans are in place to be activated in
A. ALCUAZ, MA. AZUCENA P. MACEDA, and ALVIN A. case the PCOS machines falter during the actual election exercise.
PETERS, Petitioners,
vs.
Petitioners Roque, et al., as movants herein, seek a reconsideration of
COMMISSION ON ELECTIONS, Represented by HON. CHAIRMAN
the September 10, 2009 Decision on the following issues or grounds:
JOSE MELO, COMELEC SPECIAL BIDS and AWARDS
COMMITTEE, represented by its CHAIRMAN HON. FERDINAND
RAFANAN, DEPARTMENT OF BUDGET and MANAGEMENT, 1. The Comelec’s public pronouncements show that there is
represented by HON. ROLANDO ANDAYA, TOTAL INFORMATION a "high probability" that there will be failure of automated
MANAGEMENT CORPORATION and SMARTMATIC elections;
INTERNATIONAL CORPORATION, Respondents.
PETE QUIRINO-QUADRA, Petitioner-in-Intervention.
2. Comelec abdicated its constitutional functions in favor of
SENATE OF THE PHILIPPINES, represented by its President,
Smartmatic;
JUAN PONCE ENRILE, Movant-Intervenor.

3. There is no legal framework to guide the Comelec in

RESOLUTION
appreciating automated ballots in case the PCOS machines
fail;
VELASCO, JR., J.:
4. Respondents cannot comply with the requirements of RA
By Decision dated September 10, 2009, the Court denied the petition 8436 for a source code review;
of H. Harry L. Roque, Jr., et al. for certiorari, prohibition, and
mandamus to nullify the contract-award of the 2010 Election
5. Certifications submitted by private respondents as to the
Automation Project to the joint venture of Total Information
successful use of the machines in elections abroad do not
Management Corporation (TIM) and Smartmatic International
fulfill the requirement of Sec. 12 of RA 8436;
Corporation (Smartmatic). The Court also denied the petition-in-
intervention of Pete Q. Quadra, praying that the respondents be
directed to implement the minimum requirements provided under pars. 6. Private respondents will not be able to provide
(f) and (g), Section 6 of Republic Act No. (RA) 8436, or the Election telecommunications facilities that will assure 100%
Modernization Act, as amended by RA 9369. communications coverage at all times during the conduct of
the 2010 elections; and
 7. Subcontracting the manufacture of PCOS machines to but we have standby units for this and we also have preparations for
Quisdi violates the Comelec’s bidding rules. manual elections," he said.8 (Emphasis added.)

Both public and private respondents, upon the other hand, insist that Petitioners next maintain that the Comelec abdicated its constitutional
petitioners’ motion for reconsideration should be held devoid of merit, mandate9 to decide all questions affecting elections when, under
because the motion, for the most part, either advances issues or Article 3.310 of the poll automation contract, it surrendered control of
theories not raised in the petition for certiorari, prohibition, and the system and technical aspects of the 2010 automated elections to
mandamus, and argues along speculative and conjectural lines. Smartmatic in violation of Sec. 2611 of RA 8436. Comelec, so
petitioners suggest, should have stipulated that its Information
Technology (IT) Department shall have charge of the technical aspects
Upon taking a second hard look into the issues in the case at bar and
of the elections.
the arguments earnestly pressed in the instant motions, the Court
cannot grant the desired reconsideration.
Petitioners’ above contention, as well as the arguments, citations, and
premises holding it together, is a rehash of their previous position
Petitioners’ threshold argument delves on possibilities, on matters that
articulated in their memorandum12 in support of their petition. They
may or may not occur. The conjectural and speculative nature of the
have been considered, squarely addressed, and found to be without
first issue raised is reflected in the very manner of its formulation and
merit in the Decision subject hereof. The Court is not inclined to
by statements, such as "the public pronouncements of public
embark on another extended discussion of the same issue again.
respondent COMELEC2 x x x clearly show that there is a high
Suffice it to state that, under the automation contract, Smartmatic is
probability that there will be automated failure of elections"; 3 "there is a
given a specific and limited technical task to assist the Comelec in
high probability that the use of PCOS machines in the May 2010
implementing the AES. But at the end of the day, the Smarmatic-TIM
elections will result in failure of elections";4 "the unaddressed logistical
joint venture is merely a service provider and lessor of goods and
nightmares—and the lack of contingency plans that should have been
services to the Comelec, which shall have exclusive supervision and
crafted as a result of a pilot test—make an automated failure of
control of the electoral process. Art. 6.7 of the automation contract
elections very probable";5 and "COMELEC committed grave abuse of
could not have been more clear:
discretion when it signed x x x the contract for full automation x x x
despite the likelihood of a failure of elections."6
6.7 Subject to the provisions of the General Instructions to be issued
by the Commission En Banc, the entire process of voting, counting,
Speculations and conjectures are not equivalent to proof; they have
transmission, consolidation and canvassing of votes shall [still] be
little, if any, probative value and, surely, cannot be the basis of a sound
conducted by COMELEC’s personnel and officials and their
judgment.
performance, completion and final results according to specifications
and within specified periods shall be the shared responsibility of
Petitioners, to support their speculative venture vis-à-vis the possibility COMELEC and the PROVIDER. (Emphasis added.)
of Comelec going manual, have attributed certain statements to
respondent Comelec Chairman Melo, citing for the purpose a news
The aforequoted provision doubtless preserves Comelec’s
item on Inquirer.net, posted September 16, 2009.7
constitutional and statutory responsibilities. But at the same time, it
realistically recognizes the complexity and the highly technical nature
Reacting to the attribution, however, respondents TIM and Smartmatic, of the automation project and addresses the contingencies that the
in their comment, described the Melo pronouncements as made in the novelty of election automation brings.
context of Comelec’s contingency plan. Petitioners, however, the same
respondents added, put a misleading spin to the Melo pronouncements
Petitioners’ posture anent the third issue, i.e, there no is legal
by reproducing part of the news item, but omitting to make reference to
framework to guide Comelec in the appreciation of automated ballots
his succeeding statements to arrive at a clearer and true picture.
or to govern manual count should PCOS machines fail, cannot be
accorded cogency. First, it glosses over the continuity and back-up
Private respondents’ observation is well-taken. Indeed, it is easy to plans that would be implemented in case the PCOS machines falter
selectively cite portions of what has been said, sometimes out of their during the 2010 elections.13 The overall fallback strategy and options to
proper context, in order to assert a misleading conclusion. The effect address even the worst-case scenario—the wholesale breakdown of
can be dangerous. Improper meaning may be deliberately attached to the 80,000 needed machines nationwide and of the 2,000 reserved
innocent views or even occasional crude comments by the simple units—have been discussed in some detail in the Decision subject of
expediency of lifting them out of context from any publication. At any this recourse. The Court need not belabor them again.
event, the Court took it upon itself to visit the website, whence
petitioners deduced their position on the possible failure of automated
While a motion for reconsideration may tend to dwell on issues already
elections in problem areas and found the following items:
resolved in the decision sought to be reconsidered—and this should
not be an obstacle for a reconsideration—the hard reality is that
Allaying fears of failure of elections in 2010, the x x x [Comelec] said it petitioners have failed to raise matters substantially plausible or
will prepare for manual balloting, especially for areas with problems in compellingly persuasive to warrant the desired course of action.
electricity and telecommunications network coverage. x x x
Second, petitioners’ position presupposes that the Comelec is, in the
"Aside from preparations for poll automation, Comelec is also meanwhile, standing idly by, totally unconcerned with that grim
preparing for manual elections sa mga liblib na lugar [in remote places] eventuality and the scenarios petitioners envision and depict. Comelec,
x x x, provinces with no electricity and would have issues in electronic to reiterate, is the constitutional body tasked to enforce and administer
transmission. We are ready for manual polls in at least 30 percent or all laws and regulations relative to the conduct of an election. In the
50 percent of the country as a last contingency measure in case the discharge of this responsibility, Comelec has been afforded enough
contingency plans for automation are difficult to implement," said Melo. latitude in devising means and methods that would enable it to
accomplish the great objective for which it was created. In the matter of
the administration of laws relative to the conduct of elections, the
The poll chief was reacting to statements expressing the
Court—or petitioners for that matter—must not, by any preemptive
possibility of failure of elections due to the novelty of poll
move or any excessive zeal, take away from Comelec the initiative that
automation.
by law pertains to it.14 It should not be stymied with restrictions that
would perhaps be justified in the case of an organization of lesser
"The occurrence of nationwide failure of elections as alleged by responsibility.15
doomsayers is impossible. Under the laws of probability, all 80,000
PCOS machines nationwide cannot breakdown. Maybe several would
Significantly, petitioners, in support of their position on the lack-of-
legal-framework issue, invoke the opinion of Associate, later Chief,
Justice Artemio Panganiban in Loong v. Comelec,16 where he made Petitioners have obviously inserted, at this stage of the case, an
the following observations: "Resort to manual appreciation of the entirely new factual dimension to their cause. This we cannot allow for
ballots is precluded by the basic features of the automated election compelling reasons. For starters, the Court cannot plausibly validate
system,"17 and "the rules laid down in the Omnibus Election Code this factual assertion of petitioners. As it is, private respondents have
(OEC) for the appreciation and counting of ballots cast in a manual even questioned the reliability of the website24 whence petitioners base
election x x x are inappropriate, if not downright useless, to the proper their assertion, albeit the former, citing the same website, state that the
appreciation and reading of the ballots used in the automated Image Cast Precinct tabulation device refers to the Dominion’s PCOS
system."18 Without delving on its wisdom and validity, the view of machines.
Justice Panganiban thus cited came by way of a dissenting opinion. As
such, it is without binding effect, a dissenting opinion being a mere
Moreover, as a matter of sound established practice, points of law,
expression of the individual view of a member of the Court or other
theories, issues, and arguments not raised in the original proceedings
collegial adjudicating body, while disagreeing with the conclusion held
cannot be brought out on review. Basic considerations of fair play
by the majority.19
impel this rule. The imperatives of orderly, if not speedy, justice frown
on a piecemeal presentation of evidence25 and on the practice of
Petitioners insist next that public respondents cannot comply with the parties of going to trial haphazardly.26
requirement of a source code20 review as mandated by Sec. 14 of RA
8436, as amended, which provides:
Moving still to another issue, petitioners claim that "there are very
strong indications that Private Respondents will not be able to provide
SEC. 14. Examination and Testing of Equipment or Device of the AES for telecommunication facilities for areas without these facilities."27 This
and Opening of the Source Code of Review.—Once an AES argument, being again highly speculative, is without evidentiary value
Technology is selected for implementation, the Commission shall and hardly provides a ground for the Court to nullify the automation
promptly make the source code of that technology available and open contract. Surely, a possible breach of a contractual stipulation is not a
to any interested political party or groups which may conduct their own legal reason to prematurely rescind, much less annul, the
review thereof. contract.1avvphi1

Pursuing the point, after citing a commentary of an IT expert on the Finally, petitioners argue that, based on news reports,28 the TIM-
importance of a source code review, petitioners state the observation Smartmatic joint venture has entered into a new contract with Quisdi, a
that "there are strong indications of [the inability] to comply x x x since Shanghai-based company, to manufacture on its behalf the needed
the source code, which runs the PCOS machines, will effectively be PCOS machines to fully automate the 2010 elections.29 This
kept secret from the people."21 arrangement, petitioners aver, violates the bid rules proscribing sub-
contracting of significant components of the automation project.
Again, petitioners engage in an entirely speculative exercise, second-
guessing what the Comelec can and will probably do, or what it cannot The argument is untenable, based as it is again on news reports.
and probably will not do, with respect to the implementation of a Surely, petitioners cannot expect the Court to act on unverified reports
statutory provision. The fact that a source code review is not expressly foisted on it. And, of course, the Court is at a loss to understand how
included in the Comelec schedule of activities is not an indication, as the sub-contract would, in the scheme of things, constitute grave
petitioners suggest, that Comelec will not implement such review. abuse of discretion on the part of Comelec so as to nullify the contract
Comelec, in its Comment on the Motion for Reconsideration, manifests award of the automation project. As petitioners themselves
its intention to make available and open the source code to all political acknowledge, again citing news reports, "Smartmatic has unilaterally
and interested parties, but under a controlled environment to obviate made the new subcontract to the Chinese company."30 Petitioners
replication and tampering of the source code, thus protecting, in the admit too, albeit with qualification, that RA 9184 allows subcontracting
process, the intellectual proprietary right of Smartmatic to the source of a portion of the automation project.31
code. Absent compelling proof to the contrary, the Court accords the
Comelec, which enjoys the presumption of good faith in the
The motion of intervenor Quadra deals with the auditability of the
performance of its duties in the first place, the benefit of the doubt.
results of the automated elections. His concern has already been
addressed by the Court in its Decision. As we have said, the AES
And going to another but recycled issue, petitioners would have the procured by the Comelec is a paper-based system, which has a
Court invalidate the automation contract on the ground that the provision for system auditability, since the voter would be able, if
certifications submitted by Smartmatic during the bidding, showing that needed, to verify if the PCOS machine has scanned, recorded, and
the PCOS technology has been used in elections abroad, do not counted his vote properly. All actions done on the machine can be
comply with Sec. 1222 of RA 8436. printed out by the Board of Election Inspectors Chairperson as an audit
log.32
We are not convinced.
On the basis of the arguments, past and present, presented by the
petitioners and intervenor, the Court does not find any grave abuse of
As stressed in our September 10, 2009 Decision, the AES chosen by
discretion on the part of the Comelec in awarding the automation
Comelec for the 2010 elections has been successfully deployed in
contract to the joint venture of private respondents.
previous electoral exercises in foreign countries, such as Ontario,
Canada and New York, USA,23 albeit Smartmatic was not necessarily
the system provider. In closing, the Court harks back to its parting message embodied in its
September 10, 2009 Decision, but this time even more mindful of
warnings and apprehensions of well-meaning sectors of society,
Roque, et al., in their petition, had questioned the certifications to this
including some members of the Court, about the possibility of failure of
effect, arguing that these certifications were not issued to respondent
elections. The Court, to repeat, will not venture to say that nothing
TIM-Smartmatic, but to a third party, Dominion Voting Systems.
could go wrong in the conduct of the 2010 nationwide automated
Resolving the challenge, the Court, in effect, said that the system
elections. Neither will it guarantee, as it is not even equipped with the
subject of the certifications was the same one procured by Comelec for
necessary expertise to guarantee, the effectiveness of the voting
the 2010 elections. And besides, the Licensing Agreement between
machines and the integrity of the counting and consolidation software
Smartmatic and the Dominion Voting Systems indicates that the former
embedded in them. That difficult and complex undertaking belongs at
is the entity licensed by the latter to use the system in the Philippines.
the first instance to the Comelec as part of its mandate to insure
orderly and peaceful elections. The Comelec, as it were, is laboring
Presently, petitioners assert that the system certified as having been under a very tight timeline. It would accordingly need the help of all
used in New York was the Dominion Image Cast, a ballot marking advocates of orderly and honest elections, all men and women of
device. goodwill, to assist Comelec personnel in addressing the fears
expressed about the integrity of the system. After all, peaceful, fair,
honest, and credible elections is everyone’s concern.

WHEREFORE, the instant separate motions for reconsideration of the

main and intervening petitioners are DENIED.

SO ORDERED.
 EN BANC Manipulation Cases"2 dated August 15, 2011; (3) Rules of Procedure
on the Conduct of Preliminary Investigation on the Alleged Election
Fraud in the 2004 and 2007 National Elections (Joint Committee Rules
G.R. No. 199082 September 18, 2012
of Procedure)3 dated August 23, 2011; and (4) Initial Report of the
Fact-Finding Team dated October 20, 2011.4 The consolidated
JOSE MIGUEL T. ARROYO, Petitioner, petitions and supplemental petitions likewise assail the validity of the
vs. proceedings undertaken pursuant to the aforesaid issuances.
DEPARTMENT OF JUSTICE; COMMISSION ON ELECTIONS; HON.
LEILA DE LIMA, in her capacity as Secretary of the Department of
The Antecedents
Justice; HON. SIXTO BRILLANTES, .JR., in his capacity as
Chairperson of the Commission on Elections; and the JOINT DOJ-
COMELEC PRELIMINARY INVESTIGATION COMMITTEE and Acting on the discovery of alleged new evidence and the surfacing of
FACT-FINDING TEAM, Respondents. new witnesses indicating the occurrence of massive electoral fraud
and manipulation of election results in the 2004 and 2007 National
Elections, on August 2, 2011, the Comelec issued Resolution No. 9266
x-----------------------x
approving the creation of a committee jointly with the Department of
Justice (DOJ), which shall conduct preliminary investigation on the
G.R. No. 199085 alleged election offenses and anomalies committed during the 2004
and 2007 elections.5
BENJAMIN S. ABALOS, SR., Petitioner,
vs. On August 4, 2011, the Secretary of Justice issued Department Order
HON. LEILA DE LIMA, in her capacity as Secretary of Justice; No. 6406 naming three (3) of its prosecutors to the Joint Committee.
HON. SIXTO S. BRILLANTES, JR., in his capacity as COMELEC
Chairperson; RENE V. SARMIENTO, LUCENITO N. TAGLE,
On August 15, 2011, the Comelec and the DOJ issued Joint Order No.
ARMANDO V. VELASCO, ELIAS R. YUSOPH, CHRISTIAN ROBERT
001-2011 creating and constituting a Joint Committee and Fact-Finding
S. LIM AND AUGUSTO C. LAGMAN, in their capacity as COMELEC
Team on the 2004 and 2007 National Elections electoral fraud and
COMMISSIONERS; CLARO A. ARELLANO, GEOUGE C. DEE,
manipulation cases. The Joint Committee and the Fact-Finding Team
JACINTO G. ANG, ROMEO B. FORTES AND MICHAEL D.
are composed of officials from the DOJ and the Comelec. Section 2 of
VILLARET, in their capacity as CHAIRPERSON AND MEMBERS,
the Joint Order lays down the mandate of the Joint Committee, to wit:
RESPECTIVELY, OF THE JOINT DOJ-COMELEC PRELIMINARY
INVESTIGATION COMMITEE ON THE 2004 AND 2007 ELECTION
FRAUD,Respondents. Section 2. Mandate. – The Committee shall conduct the necessary
preliminary investigation on the basis of the evidence gathered and the
charges recommended by the Fact-Finding Team created and referred
x-----------------------x
to in Section 4 hereof. Resolutions finding probable cause for election
offenses, defined and penalized under the Omnibus Election Code and
G.R. No.199118 other election laws shall be approved by the Comelec in accordance
with the Comelec Rules of Procedure. For other offenses, or those not
covered by the Omnibus Election Code and other election laws, the
GLORIA MACAPAGAL-ARROYO, Petitioner,
corresponding criminal information may be filed directly with the
vs. appropriate courts.7
COMMISSION ON ELECTIONS, represented by Chairperson Sixto
S. Brillantes, Jr., DEPARTMENT OF JUSTICE, represented by
Secretary Leila M. De Lima, JOINT DOJ-COMELEC PRELIMINARY The Fact-Finding Team,8 on the other hand, was created for the
INVESTIGATION COMMITTEE, SENATOR AQUILINO M. PIMENTEL purpose of gathering real, documentary, and testimonial evidence
III, and DOJ-COMELEC FACT FINDING TEAM, Respondents. which can be utilized in the preliminary investigation to be conducted
by the Joint Committee. Its specific duties and functions as
enumerated in Section 4 of the Joint Order are as follows:
DECISION

a) Gather and document reports, intelligence information,

PERALTA, J.:
and investigative leads from official as well as unofficial
sources and informants;
The Court is vested with the constitutional mandate to resolve
justiciable controversies by applying the rule of law with due deference b) Conduct interviews, record testimonies, take affidavits of
to the right to due process, irrespective of the standing in society of the
witnesses, and collate material and relevant documentary
parties involved. It is an assurance that in this jurisdiction, the wheels evidence, such as, but not limited to, election documents
of justice turn unimpeded by public opinion or clamor, but only for the used in the 2004 and 2007 national elections. For security
ultimate end of giving each and every member of society his just due
reasons, or to protect the identities of informants, the Fact-
without distinction. Finding Team may conduct interviews or document
testimonies discreetly;
Before the Court are three (3) consolidated petitions and supplemental
petitions for Certiorari and Prohibition under Rule 65 of the Rules of c) Assess and evaluate affidavits already executed and other
Court filed by Jose Miguel T. Arroyo (Mike Arroyo) in G.R. No. 199082, documentary evidence submitted or may be submitted to the
Benjamin S. Abalos, Sr. (Abalos) in G.R. No. 199085 and Gloria
Fact-Finding Team and/or Committee;
Macapagal

d) Identify the offenders, their offenses and the manner of

Arroyo (GMA) in G.R. No. 199118 assailing the following: (1)
their commission, individually or in conspiracy, and the
Commission on Elections (Comelec) Resolution No. 9266 "In the provisions of election and general criminal laws violated,
Matter of the Commission on Elections and Department of Justice Joint establish evidence for individual criminal and administrative
Investigation on the Alleged Election Offenses Committed during the
liability and prosecution, and prepare the necessary
2004 and 2007 Elections Pursuant to Law"1 dated August 2, 2011; (2) documentation, such as complaints and charge sheets for
Joint Order No. 001-2011 (Joint Order) "Creating and Constituting a the initiation of preliminary investigation proceedings against
Joint DOJ-Comelec Preliminary Investigation Committee [Joint
said individuals to be conducted by the Committee;
Committee] and Fact-Finding Team on the 2004 and 2007 National
Elections Electoral Fraud and
 e) Regularly submit to the Committee, the Secretary of On November 16, 2011, the Joint Committee promulgated a Joint
Justice and the Chairman of the Comelec periodic reports Resolution which was later indorsed to the Comelec.31 On November
and recommendations, supported by real, testimonial and 18, 2011, after conducting a special session, the Comelec en banc
documentary evidence, which may then serve as the issued a Resolution32approving and adopting the Joint Resolution
Committee’s basis for immediately commencing appropriate subject to modifications. The dispositive portion of the Comelec
preliminary investigation proceedings, as provided under Resolution reads:
Section 6 of this Joint Order; and
WHEREFORE, premises considered, the Resolution of the Joint DOJ-
f) Upon the termination of its investigation, make a full and COMELEC Preliminary Investigation Committee in DOJ-COMELEC
final report to the Committee, the Secretary of Justice, and Case No. 001-2011 and DOJ-COMELEC Case No. 002-2011, upon
the Chairman of the Comelec.9 the recommendation of the COMELEC’s own representatives in the
Committee, is hereby APPROVED and ADOPTED, subject to the
following MODIFICATIONS:
Pursuant to Section 710 of the Joint Order, on August 23, 2011, the
Joint Committee promulgated its Rules of Procedure.
1. That information/s for the crime of ELECTORAL
SABOTAGE under Section 42 (b) of R.A. 9369, amending
The members of the Fact-Finding Team unanimously agreed that the
Section 27 (b) of R.A. 6646, be filed against GLORIA
subject of the Initial Report would be the electoral fraud and
MACAPAGAL-ARROYO, BENJAMIN ABALOS, SR.,
manipulation of election results allegedly committed during the May 14,
LINTANG H. BEDOL, DATU ANDAL AMPATUAN, SR. and
2007 elections. Thus, in its Initial Report11 dated October 20, 2011, the
PETER REYES;
Fact-Finding Team concluded that manipulation of the results in the
May 14, 2007 senatorial elections in the provinces of North and South
Cotabato and Maguindanao were indeed perpetrated.12 The Fact- 2. That the charges against MICHAEL C. ABAS,
Finding Team recommended that petitioner Abalos and ten (10) NICODEMO FERRER, REUBEN BASIAO, JAIME PAZ and
others13 be subjected to preliminary investigation for electoral sabotage NORIE K. UNAS be subjected to further investigation;
for conspiring to manipulate the election results in North and South
Cotabato. Twenty-six (26)14 persons, including petitioners GMA and
3. That the charges against JOSE MIGUEL T. ARROYO,
Abalos, were likewise recommended for preliminary investigation for
BONG SERRANO, ALBERTO AGRA, ANDREI BON
electoral sabotage for manipulating the election results in
TAGUM, GABBY CLAUDIO, ROMY DAYDAY, JEREMY
Maguindanao.15 Several persons were also recommended to be
JAVIER, JOHN DOE a.k.a BUTCH, be DISMISSED for
charged administratively, while others,16 including petitioner Mike
insufficiency of evidence to establish probable cause;
Arroyo, were recommended to be subjected to further
investigation.17 The case resulting from the investigation of the Fact-
Finding Team was docketed as DOJ-Comelec Case No. 001-2011. 4. That the recommendation that ESTELITA B. ORBASE,
ELIZA A. GASMIN, ELSA Z. ATINEN, SALIAO S. AMBA,
MAGSAYSAY B. MOHAMAD, SALONGA K. EDZELA,
Meanwhile, on October 17, 2011, Senator Aquilino Pimentel III
RAGAH D. AYUNAN, SUSAN U. CANANBAN, RUSSAM H.
(Senator Pimentel) filed a Complaint-Affidavit18 for Electoral Sabotage
MABANG, ASUNCION CORAZON P. RENIEDO, NENA A.
against petitioners and twelve others19 and several John Does and
ALID, MA. SUSAN L. ALBANO, ROHAIDA T. KHALID,
Jane Does. The case was docketed as DOJ-Comelec Case No. 002-
ARAW M. CAO, JEEHAN S. NUR, ALICE A. LIM,
2011.
NORIJEAN P. HANGKAL, CHRISTINA ROAN M. DALOPE,
and MACEDA L. ABO be administratively charged be
On October 24, 2011, the Joint Committee issued two subpoenas subjected to further review by this Commission to determine
against petitioners in DOJ-Comelec Case Nos. 001-2011 and 002- the appropriate charge/s that may be filed against them;
2011.20 On November 3, 2011, petitioners, through counsel, appeared
before the Joint Committee.21 On that preliminary hearing, the Joint
5. That the findings of lack of probable cause against LILIAN
Committee consolidated the two DOJ-Comelec cases. Respondents
S. SUAN-RADAM and YOGIE G. MARTIRIZAR be
therein were likewise ordered to submit their Counter-Affidavits by
REJECTED by reason of the pendency of their respective
November 14, 2011.22
cases before the Regional Trial Court of Pasay (Branch 114)
and this Commission for the same offense under
Thereafter, petitioners filed before the Court separate Petitions for consideration.
Certiorari and Prohibition with Prayer for the Issuance of a Temporary
Restraining Order (TRO) and/or Writ of Preliminary Injunction assailing
In the higher interest of justice and by reason of manifest attempts to
the creation of the Joint Panel.23 The petitions were eventually
frustrate the government’s right to prosecute and to obtain speedy
consolidated.
disposition of the present case pending before the Commission, the
Law Department and/or any COMELEC legal officers as may be
On November 14, 2011, petitioner Mike Arroyo filed a Motion to Defer authorized by this Commission is hereby ORDERED to IMMEDIATELY
Proceedings24 before the Joint Committee, in view of the pendency of PREPARE and FILE the necessary Information/s before the
his petition before the Court. On the same day, petitioner GMA filed appropriate court/s
before the Joint Committee an Omnibus Motion Ad Cautelam25 to
require Senator Pimentel to furnish her with documents referred to in
SO ORDERED.33 (Emphasis supplied.)
his complaint-affidavit and for the production of election documents as
basis for the charge of electoral sabotage. GMA contended that for the
crime of electoral sabotage to be established, there is a need to On even date, pursuant to the above Resolution, the Comelec’s Law
present election documents allegedly tampered which resulted in the Department filed with the Regional Trial Court (RTC), Pasay City, an
increase or decrease in the number of votes of local and national Information against petitioner GMA, Governor Andal Ampatuan, Sr.,
candidates.26 GMA prayed that she be allowed to file her counter- and Atty. Lintang H. Bedol, for violation of Section 42 (b)(3) of Republic
affidavit within ten (10) days from receipt of the requested Act (R.A.) No. 9369, amending Section 27 (b) of R.A. No. 6646,
documents.27 Petitioner Abalos, for his part, filed a Motion to Suspend docketed as Criminal Case No. RPSY-11-04432-CR.34 The case was
Proceedings (Ex Abundante Ad Cautelam),28 in view of the pendency raffled to Branch 112 and the corresponding Warrant of Arrest was
of his petition brought before the Court. issued which was served on GMA on the same day.35

In an Order29 dated November 15, 2011, the Joint Committee denied On November 18, 2011, petitioner GMA filed with the RTC an Urgent
the aforesaid motions of petitioners. GMA subsequently filed a motion Omnibus Motion Ad Cautelam36 with leave to allow the Joint Committee
for reconsideration.30 to resolve the motion for reconsideration filed by GMA, to defer
issuance of a warrant of arrest and a Hold Departure Order, and to
proceed to judicial determination of probable cause. She, likewise, filed PETITIONER’S CONSTITUTIONAL RIGHT TO DUE
with the Comelec a Motion to Vacate Ad Cautelam 37 praying that its PROCESS OF LAW?
Resolution be vacated for being null and void. The RTC nonetheless
issued a warrant for her arrest which was duly served. GMA thereafter
III.
filed a Motion for Bail which was granted.

DID THE DOJ AND COMELEC VIOLATE THE PRINCIPLE

Issues
OF SEPARATION OF POWERS BY CREATING THE
JOINT DOJ-COMELEC FACT-FINDING TEAM AND
In G.R. No. 199082, petitioner Arroyo relies on the following grounds: PRELIMINARY INVESTIGATION COMMITTEE WHICH
ENCROACHED UPON THE POWERS OF THE
LEGISLATURE AND THE REGIONAL TRIAL COURT?
A. THE CREATION OF THE JOINT COMMITTEE VIA THE
JOINT ORDER IS AT WAR WITH THE DUE PROCESS
AND EQUAL PROTECTION CLAUSE OF THE IV.
CONSTITUTION, HAVING BEEN CREATED WITH THE
SOLE END IN VIEW OF INVESTIGATING AND
DOES THE JOINT DOJ-COMELEC FACT-FINDING TEAM
PROSECUTING CERTAIN PERSONS AND INCIDENTS
AND PRELIMINARY INVESTIGATION COMMITTEE HAVE
ONLY, SPECIFICALLY THOSE INVOLVING THE 2004 AND
THE POWER AND LEGAL AUTHORITY TO CONDUCT A
2007 ELECTIONS TO THE EXCLUSION OF OTHERS, IN
PRELIMINARY INVESTIGATION OF THE SAME
VIOLATION OF THE DOCTRINE IN BIRAOGO V. TRUTH
ELECTORAL SABOTAGE CASES WHICH THE COMELEC
COMMISSION AND COMPANION CASE.
HAD ALREADY TAKEN COGNIZANCE OF?39

B. NO LAW OR RULE AUTHORIZES THE JOINT

In G.R. No. 199118, petitioner GMA anchors her petition on the
COMMITTEE TO CONDUCT PRELIMINARY
following grounds:
INVESTIGATION.

I. THE EXECUTIVE DEPARTMENT, THROUGH THE DOJ,

C. THE CREATION OF THE JOINT COMMITTEE, WHICH
OSTENSIBLY ACTING "JOINTLY" WITH THE COMELEC,
FUSES THE COMMISSION ON ELECTIONS - A
HAS ACTED BEYOND THE LIMITS OF THE
CONSTITUTIONALLY INDEPENDENT BODY - WITH THE
CONSTITUTION, IN THAT IT HAS COMPROMISED THE
DEPARTMENT OF JUSTICE – A POLITICAL AGENT OF
INDEPENDENCE OF THE COMELEC.
THE EXECUTIVE – DEMOLISHES THE INDEPENDENCE
OF THE COMMISSION ON ELECTIONS AS PROVIDED IN
ARTICLE IX(A), SECTIONS 1 AND 2 AND IX(C) OF THE II. THE COMELEC HAS EFFECTIVELY ABDICATED ITS
CONSTITUTION. CONSTITUTIONAL MANDATE "TO INVESTIGATE AND,
WHERE APPROPRIATE, PROSECUTE CASES OF
VIOLATIONS OF ELECTION LAWS, INCLUDING ACTS OR
D. IN VIEW OF THE NUMEROUS AND PERSISTENT
OMISSIONS CONSTITUTING ELECTION FRAUDS,
PUBLIC PRONOUNCEMENTS OF THE PRESIDENT, HIS
OFFENSES, AND MALPRACTICES" (ARTICLE IX-C,
SPOKESPERSONS, THE HEADS OF THE DOJ AND THE
SECTION 26, 1987 CONSTITUTION OF THE REPUBLIC
COMELEC, AND MEMBERS OF THE JOINT COMMITTEE
OF THE PHILIPPINES) IN FAVOR OF THE EXECUTIVE
THAT CASES SHOULD BE FILED AGAINST PETITIONER
DEPARTMENT, ACTING THROUGH RESPONDENT
AND HIS FAMILY AND ALLEGED ASSOCIATES BY THE
JUSTICE SECRETARY DE LIMA.
END OF 2011, THE PROCEEDINGS THEREOF SHOULD
BE ENJOINED FOR BEING PERSECUTORY, PURSUANT
TO ALLADO V. DIOKNO AND RELATED CASES. III. DOJ-COMELEC JOINT ORDER NO. 001-2011 AND THE
JOINT COMMITTEE RULES HAVE NOT BEEN
PUBLISHED PURSUANT TO TAÑADA V. TUVERA, G.R.
E. THE CREATION AND CONSTITUTION OF THE JOINT
No. L-63915 (29 DECEMBER 1986). AFTER ALL, AS THE
COMMITTEE TRAMPLES UPON PETITIONER’S RIGHT
HONORABLE COURT LIKEWISE DECLARED IN
TO A FAIR PROCEEDING BY AN INDEPENDENT AND
REPUBLIC V. PILIPINAS SHELL PETROLEUM
IMPARTIAL TRIBUNAL.
CORPORATION, G.R. No. 173918 (08 APRIL 2008), (SIC)40

F. THE COMELEC, AND SUBSEQUENTLY, THE RTC OF

We deferred the resolution of petitioners’ Motion for the Issuance of a
PASAY CITY, HAVE ASSUMED JURISDICTION OVER
TRO and, instead, required the respondents to comment on the
THE SUBJECT MATTER SOUGHT TO BE INVESTIGATED
petitions.41
BY THE JOINT COMMITTEE, TO THE EXCLUSION OF
ANY BODY, INCLUDING THE JOINT COMMITTEE.38
We likewise scheduled the consolidated cases for oral argument for
which the parties were directed to limit their respective discussions to
In G.R. No. 199085, petitioner Abalos raises the following issues:
the following issues:

I.
I. Whether or not Joint Order No. 001-2011 "Creating and Constituting
a Joint DOJ-COMELEC Preliminary Investigation Committee and Fact-
DOES JOINT ORDER NO. 001-2011, CREATING THE Finding Team on the 2004 and 2007 National Elections Electoral Fraud
JOINT DOJ-COMELEC FACT-FINDING TEAM AND and Manipulation Cases" is constitutional in light of the following:
PRELIMINARY INVESTIGATON COMMITTEE VIOLATE
PETITIONER’S CONSTITUTIONAL RIGHT TO EQUAL
A. The due process clause of the 1987 Constitution
PROTECTION OF THE LAW?

B. The equal protection clause of the 1987 Constitution

II.

C. The principle of separation of powers

DID THE CONDUCT AND PROCEEDINGS OF THE JOINT
DOJ-COMELEC FACT-FINDING TEAM AND
PRELIMINARY INVESTIGATION COMMITTEE VIOLATE D. The independence of the COMELEC as a constitutional
body
II. Whether or not the COMELEC has jurisdiction under the law to Committee’s respective mandates have not been fulfilled and they are,
conduct preliminary investigation jointly with the DOJ. therefore, bound to continue discharging their duties set forth in the
assailed Joint Order. Moreover, petitioners question the validity of the
proceedings undertaken by the Fact-Finding Team and the Joint
A. Whether or not due process was observed by the Joint DOJ-
Committee leading to the filing of information, on constitutional
COMELEC Fact-Finding Team and Preliminary Investigation
grounds. We are not, therefore, barred from deciding on the petitions
Committee, and the COMELEC in the conduct of the preliminary
simply by the occurrence of the supervening events of filing an
investigation and approval of the Joint Panel’s Resolution.42
information and dismissal of the charges.

The Court, thereafter, required the parties to submit their respective

Jurisdiction over the validity of the
Memoranda.43
conduct of the preliminary investigation

The Court’s Ruling

This is not the first time that the Court is confronted with the issue of
jurisdiction to conduct preliminary investigation and at the same time
Procedural Issues with the propriety of the conduct of preliminary investigation. In
Cojuangco, Jr. v. Presidential Commission on Good Government
(PCGG),54 the Court resolved two issues, namely: (1) whether or not
Respondents claim that Mike Arroyo’s petition is moot and that of GMA the PCGG has the power to conduct a preliminary investigation of the
is moot and academic. They explain that the Mike Arroyo petition anti-graft and corruption cases filed by the Solicitor General against
presents no actual controversy that necessitates the exercise by the
Eduardo Conjuangco, Jr. and other respondents for the alleged misuse
Court of its power of judicial review, considering that he was not of coconut levy funds; and (2) on the assumption that it has jurisdiction
among those indicted for electoral sabotage in the 2007 national to conduct such a preliminary investigation, whether or not its conduct
elections as the Comelec dismissed the case against him for
constitutes a violation of petitioner’s right to due process and equal
insufficiency of evidence.44 Anent the 2004 national elections, the Fact- protection of the law.55 The Court decided these issues notwithstanding
Finding Team is yet to complete its investigation so Mike Arroyo’s the fact that Informations had already been filed with the trial court.
apprehensions are merely speculative and anticipatory. 45 As to the
GMA petition, respondents aver that any judgment of the Court will
have no practical legal effect because an Information has already been In Allado v. Diokno,56 in a petition for certiorari assailing the propriety of
filed against her in Branch 112, RTC of Pasay City.46 With the filing of the issuance of a warrant of arrest, the Court could not ignore the
the Information, the RTC has already acquired jurisdiction over the undue haste in the filing of the information and the inordinate interest
case, including all issues relating to the constitutionality or legality of of the government in filing the same. Thus, this Court took time to
her preliminary investigation.47 Respondents also claim that the issues determine whether or not there was, indeed, probable cause to warrant
relating to the constitutionality and validity of the conduct of the the filing of information. This, notwithstanding the fact that information
preliminary investigation of GMA are best left to the trial court, had been filed and a warrant of arrest had been issued. Petitioners
considering that it involves questions of fact.48 Respondents add that therein came directly to this Court and sought relief to rectify the
considering that the RTC has concurrent jurisdiction to determine a injustice that they suffered.
constitutional issue, it will be practical for the Court to allow the RTC to
determine the constitutional issues in this case.49
Hierarchy of courts

We do not agree.
Neither can the petitions be dismissed solely because of violation of
the principle of hierarchy of courts. This principle requires that recourse
Mootness must first be made to the lower-ranked court exercising concurrent
jurisdiction with a higher court.57 The Supreme Court has original
jurisdiction over petitions for certiorari, prohibition, mandamus, quo
It cannot be gainsaid that for a court to exercise its power of warranto, and habeas corpus. While this jurisdiction is shared with the
adjudication, there must be an actual case or controversy, that is, one Court of Appeals and the RTC, a direct invocation of this Court’s
which involves a conflict of legal rights, an assertion of opposite legal
jurisdiction is allowed when there are special and important reasons
claims susceptible of judicial resolution.50 The case must not be moot therefor, clearly and especially set out in the petition, as in the present
or academic or based on extra-legal or other similar considerations not case.58 In the consolidated petitions, petitioners invoke exemption from
cognizable by a court of justice.51
the observance of the rule on hierarchy of courts in keeping with the
Court’s duty to determine whether or not the other branches of
A case becomes moot and academic when it ceases to present a government have kept themselves within the limits of the Constitution
justiciable controversy so that a declaration on the issue would be of and the laws, and that they have not abused the discretion given to
no practical use or value.52 However, a case should not be dismissed them.59
simply because one of the issues raised therein had become moot and
academic by the onset of a supervening event, whether intended or
It is noteworthy that the consolidated petitions assail the
incidental, if there are other causes which need to be resolved after constitutionality of issuances and resolutions of the DOJ and the
trial.53 Comelec. The general rule is that this Court shall exercise only
appellate jurisdiction over cases involving the constitutionality of a
Here, the consolidated cases are not rendered moot and academic by statute, treaty or regulation.
the promulgation of the Joint Resolution by the Joint Committee and
the approval thereof by the Comelec. It must be recalled that the main
However, such rule is subject to exception, that is, in circumstances
issues in the three petitions before us are the constitutionality and where the Court believes that resolving the issue of constitutionality of
legality of the creation of the Joint Committee and the Fact-Finding a law or regulation at the first instance is of paramount importance and
Team as well as the proceedings undertaken pursuant thereto. The
immediately affects the social, economic, and moral well-being of the
assailed Joint Order specifically provides that the Joint Committee was people.60
created for purposes of investigating the alleged massive electoral
fraud during the 2004 and 2007 national elections. However, in the
Fact-Finding Team’s Initial Report, the team specifically agreed that This case falls within the exception. An expeditious resolution of the
the report would focus on the irregularities during the 2007 elections. issues raised in the petitions is necessary. Besides, the Court has
Also, in its November 18, 2011 Resolution, the Comelec, while entertained a direct resort to the Court without the requisite motion for
directing the filing of information against petitioners Abalos and GMA, reconsideration filed below or without exhaustion of administrative
ordered that further investigations be conducted against the other remedies where there is an urgent necessity for the resolution of the
respondents therein. Apparently, the Fact-Finding Team’s and Joint question and any further delay would prejudice the interests of the
government or of the petitioners and when there is an alleged violation
of due process, as in the present case.61 We apply the same relaxation
of the Rules in the present case and, thus, entertain direct resort to this Moreover, as we acknowledged in People v. Basilla,69 the prompt and
Court. fair investigation and prosecution of election offenses committed
before or in the course of nationwide elections would simply not be
possible without the assistance of provincial and city fiscals
Substantive Issues
prosecutors and their assistants and staff members, and of the state
Bases for the Creation of the
prosecutors of the DOJ.70
Fact-Finding Team and Joint Committee

Section 265 of the Omnibus Election Code was amended by Section

Section 2, Article IX-C of the 1987 Constitution enumerates the powers
43 of R.A. No. 9369,71 which reads:
and functions of the Comelec. Paragraph (6) thereof vests in the
Comelec the power to:
Section 43. Section 265 of Batas Pambansa Blg. 881 is hereby
amended to read as follows:
(6) File, upon a verified complaint, or on its own initiative, petitions in
court for inclusion or exclusion of voters; investigate and, where
appropriate, prosecute cases of violations of election laws, including SEC. 265. Prosecution. – The Commission shall, through its duly
acts or omissions constituting election frauds, offenses, and authorized legal officers, have the power, concurrent with the other
malpractices. prosecuting arms of the government, to conduct preliminary
investigation of all election offenses punishable under this Code, and
to prosecute the same.72
This was an important innovation introduced by the 1987 Constitution,
because the above-quoted provision was not in the 1935 and 1973
Constitutions.62 As clearly set forth above, instead of a mere delegated authority, the
other prosecuting arms of the government, such as the DOJ, now
exercise concurrent jurisdiction with the Comelec to conduct
The grant to the Comelec of the power to investigate and prosecute
preliminary investigation of all election offenses and to prosecute the
election offenses as an adjunct to the enforcement and administration
same.
of all election laws is intended to enable the Comelec to effectively
insure to the people the free, orderly, and honest conduct of elections.
The failure of the Comelec to exercise this power could result in the It is, therefore, not only the power but the duty of both the Comelec
frustration of the true will of the people and make a mere idle and the DOJ to perform any act necessary to ensure the prompt and
ceremony of the sacred right and duty of every qualified citizen to fair investigation and prosecution of election offenses. Pursuant to the
vote.63 above constitutional and statutory provisions, and as will be explained
further below, we find no impediment for the Comelec and the DOJ to
create the Joint Committee and Fact-Finding Team for the purpose of
The constitutional grant of prosecutorial power in the Comelec was
conducting a thorough investigation of the alleged massive electoral
reflected in Section 265 of Batas Pambansa Blg. 881, otherwise known
fraud and the manipulation of election results in the 2004 and 2007
as the Omnibus Election Code, to wit:
national elections relating in particular to the presidential and senatorial
elections.73
Section 265. Prosecution. The Commission shall, through its duly
authorized legal officers, have the exclusive power to conduct
Constitutionality of Joint-Order No. 001-2011
preliminary investigation of all election offenses punishable under this
Code, and to prosecute the same. The Commission may avail of the
assistance of other prosecuting arms of the government: Provided, A. Equal Protection Clause
however, That in the event that the Commission fails to act on any
complaint within four months from his filing, the complainant may file
Petitioners claim that the creation of the Joint Committee and Fact-
the complaint with the office of the fiscal [public prosecutor], or with the
Finding Team is in violation of the equal protection clause of the
Ministry Department of Justice for proper investigation and
Constitution because its sole purpose is the investigation and
prosecution, if warranted.
prosecution of certain persons and incidents. They argue that there is
no substantial distinction between the allegations of massive electoral
Under the above provision of law, the power to conduct preliminary fraud in 2004 and 2007, on the one hand, and previous and
investigation is vested exclusively with the Comelec. The latter, subsequent national elections, on the other hand; and no substantial
however, was given by the same provision of law the authority to avail distinction between petitioners and the other persons or public officials
itself of the assistance of other prosecuting arms of the who might have been involved in previous election offenses. They
government.64 Thus, under Section 2,65 Rule 34 of the Comelec Rules insist that the Joint Panel was created to target only the Arroyo
of Procedure, provincial and city prosecutors and their assistants are Administration as well as public officials linked to the Arroyo
given continuing authority as deputies to conduct preliminary Administration. To bolster their claim, petitioners explain that Joint
investigation of complaints involving election offenses under election Order No. 001-2011 is similar to Executive Order No. 1 (creating the
laws and to prosecute the same. The complaints may be filed directly Philippine Truth Commission) which this Court had already nullified for
with them or may be indorsed to them by the petitioner or its duly being
authorized representatives.66
violative of the equal protection clause.
Thus, under the Omnibus Election Code, while the exclusive
jurisdiction to conduct preliminary investigation had been lodged with
Respondents, however, refute the above contentions and argue that
the Comelec, the prosecutors had been conducting preliminary
the wide array of the possible election offenses and broad spectrum of
investigations pursuant to the continuing delegated authority given by
individuals who may have committed them, if any, immediately negate
the Comelec. The reason for this delegation of authority has been
the assertion that the assailed orders are aimed only at the officials of
explained in Commission on Elections v. Español:67
the Arroyo Administration.

The deputation of the Provincial and City Prosecutors is necessitated

We agree with the respondents.
by the need for prompt investigation and dispensation of election cases
as an indispensable part of the task of securing fine, orderly, honest,
peaceful and credible elections. Enfeebled by lack of funds and the The equal protection clause is enshrined in Section 1, Article III of the
magnitude of its workload, the petitioner does not have a sufficient Constitution which reads:
number of legal officers to conduct such investigation and to prosecute
such cases.68
Section 1. No person shall be deprived of life, liberty, or property different guidelines in order to ensure that the rules are updated to
without due process of law, nor shall any person be denied the equal respond to existing circumstances.
protection of the laws.74
Moreover, as has been practiced in the past, complaints for violations
The concept of equal protection has been laid down in Biraogo v. of election laws may be filed either with the Comelec or with the DOJ.
Philippine Truth Commission of 2010:75 The Comelec may even initiate, motu proprio, complaints for election
offenses.82
One of the basic principles on which this government was founded is
that of the equality of right which is embodied in Section 1, Article III of Pursuant to law and the Comelec’s own Rules, investigations may be
the 1987 Constitution. The equal protection of the laws is embraced in conducted either by the Comelec itself through its law department or
the concept of due process, as every unfair discrimination offends the through the prosecutors of the DOJ. These varying procedures and
requirements of justice and fair play. It has been embodied in a treatment do not, however, mean that respondents are not treated
separate clause, however, to provide for a more specific guaranty alike. Thus, petitioners’ insistence of infringement of their constitutional
against any form of undue favoritism or hostility from the government. right to equal protection of the law is misplaced.
Arbitrariness in general may be challenged on the basis of the due
process clause. But if the particular act assailed partakes of an
B. Due Process
unwarranted partiality or prejudice, the sharper weapon to cut it down
is the equal protection clause.
Petitioners claim that the Joint Panel does not possess the required
cold neutrality of an impartial judge because it is all at once the
According to a long line of decisions, equal protection simply requires
evidence-gatherer, prosecutor and judge. They explain that since the
that all persons or things similarly situated should be treated alike, both
Fact-Finding Team has found probable cause to subject them to
as to rights conferred and responsibilities imposed. It requires public
preliminary investigation, it is impossible for the Joint Committee to
bodies and institutions to treat similarly-situated individuals in a similar
arrive at an opposite conclusion. Petitioners likewise express doubts of
manner. The purpose of the equal protection clause is to secure every
any possibility that the Joint Committee will be fair and impartial to
person within a state's jurisdiction against intentional and arbitrary
them as Secretary De Lima and Chairman Brillantes had repeatedly
discrimination, whether occasioned by the express terms of a statute
expressed prejudgment against petitioners through their statements
or by its improper execution through the state's duly-constituted
captured by the media.
authorities. In other words, the concept of equal justice under the law
requires the state to govern impartially, and it may not draw distinctions
between individuals solely on differences that are irrelevant to a For their part, respondents contend that petitioners failed to present
legitimate governmental objective.76 proof that the President of the Philippines, Secretary of Justice, and
Chairman of the Comelec actually made the statements allegedly
prejudging their case and in the context in which they interpreted them.
Unlike the matter addressed by the Court’s ruling in Biraogo v.
They likewise contend that assuming that said statements were made,
Philippine Truth Commission of 2010, Joint Order No. 001-2011 cannot
there was no showing that Secretary De Lima had tried to intervene in
be nullified on the ground that it singles out the officials of the Arroyo
the investigation to influence its outcome nor was it proven that the
Administration and, therefore, it infringes the equal protection clause.
Joint Committee itself had prejudged the case. Lastly, they point out
The Philippine Truth Commission of 2010 was expressly created for
that Joint Order No. 001-2011 created two bodies, the Fact-Finding
the purpose of investigating alleged graft and corruption during the
Team and the Joint Committee, with their respective mandates. Hence,
Arroyo Administration since Executive Order No. 177 specifically
they cannot be considered as one.
referred to the "previous administration"; while the Joint Committee
was created for the purpose of conducting preliminary investigation of
election offenses during the 2004 and 2007 elections. While GMA and We find for respondents.
Mike Arroyo were among those subjected to preliminary investigation,
not all respondents therein were linked to GMA as there were public
officers who were investigated upon in connection with their acts in the It is settled that the conduct of preliminary investigation is, like court
proceedings, subject to the requirements of both substantive and
performance of their official duties. Private individuals were also
subjected to the investigation by the Joint Committee. procedural due process.83 Preliminary investigation is considered as a
judicial proceeding wherein the prosecutor or investigating officer, by
the nature of his functions, acts as a quasi-judicial officer.84 The
The equal protection guarantee exists to prevent undue favor or authority of a prosecutor or investigating officer duly empowered to
privilege. It is intended to eliminate discrimination and oppression preside over or to conduct a preliminary investigation is no less than
based on inequality. Recognizing the existence of real differences that of a municipal judge or even an RTC Judge.85 Thus, as
among men, it does not demand absolute equality. It merely requires emphasized by the Court in Ladlad v. Velasco:86
that all persons under like circumstances and conditions shall be
treated alike both as to privileges conferred and liabilities enforced. 78
x x x We cannot emphasize too strongly that prosecutors should not
allow, and should avoid, giving the impression that their noble office is
We once held that the Office of the Ombudsman is granted virtually being used or prostituted, wittingly or unwittingly, for political ends, or
plenary investigatory powers by the Constitution and by law and thus other purposes alien to, or subversive of, the basic and fundamental
may, for every particular investigation, whether commenced by objective of serving the interest of justice evenhandedly, without fear or
complaint or on its own initiative, decide how best to pursue each favor to any and all litigants alike, whether rich or poor, weak or strong,
investigation. Since the Office of the Ombudsman is granted such powerless or mighty. Only by strict adherence to the established
latitude, its varying treatment of similarly situated investigations cannot procedure may public's perception of the impartiality of the prosecutor
by itself be considered a violation of any of the parties’ rights to the be enhanced.87
equal protection of the laws.79 This same doctrine should likewise apply
in the present case.
In this case, as correctly pointed out by respondents, there was no
showing that the statements claimed to have prejudged the case
Thus, as the constitutional body granted with the broad power of against petitioners were made by Secretary De Lima and Chairman
enforcing and administering all laws and regulations relative to the Brillantes or were in the prejudicial context in which petitioners claimed
conduct of an election, plebiscite, initiative, referendum and the statements were made. A reading of the statements allegedly
recall,80 and tasked to ensure free, orderly, honest, peaceful, and made by them reveals that they were just responding to hypothetical
credible elections,81 the Comelec has the authority to determine how questions in the event that probable cause would eventually be found
best to perform such constitutional mandate. Pursuant to this authority, by the Joint Committee.
the Comelec issues various resolutions prior to every local or national
elections setting forth the guidelines to be observed in the conduct of
the elections. This shows that every election is distinct and requires More importantly, there was no proof or even an allegation that the
Joint Committee itself, tasked to conduct the requisite preliminary
investigation against petitioners, made biased statements that would where appropriate, to prosecute cases of violation of election laws
convey to the public that the members were favoring a particular party. including acts or omissions constituting election frauds, offenses, and
Neither did the petitioners show that the President of the Philippines, malpractices in favor of the Executive Department acting through the
the Secretary of Justice or the Chairman of the Comelec intervened in DOJ Secretary. Under the set- up, the Comelec personnel is placed
the conduct of the preliminary investigation or exerted undue pressure under the supervision and control of the DOJ. The chairperson is a
on their subordinates to tailor their decision with their public DOJ official. Thus, the Comelec has willingly surrendered its
declarations and adhere to a pre-determined result.88 Moreover, insofar independence to the DOJ and has acceded to share its exercise of
as the Comelec is concerned, it must be emphasized that the judgment and discretion with the Executive Branch.
constitutional body is collegial. The act of the head of a collegial body
cannot be considered as that of the entire body itself. 89 In equating the
We do not agree.
alleged bias of the above-named officials with that of the Joint
Committee, there would be no arm of the government credible enough
to conduct a preliminary investigation.90 Section 1,95 Article IX-A of the 1987 Constitution expressly describes all
the Constitutional Commissions as independent. Although essentially
executive in nature, they are not under the control of the President of
It must also be emphasized that Joint Order No. 001-2011 created two
the Philippines in the discharge of their respective functions.96 The
bodies, namely: (1) the Fact-Finding Team tasked to gather real,
Constitution envisions a truly independent Comelec committed to
documentary and testimonial evidence which can be utilized in the
ensure free, orderly, honest, peaceful, and credible elections and to
preliminary investigation to be conducted by the Joint Committee; and
serve as the guardian of the people’s sacred right of suffrage – the
(2) the Joint Committee mandated to conduct preliminary investigation.
citizenry’s vital weapon in effecting a peaceful change of government
It is, therefore, inaccurate to say that there is only one body which
and in achieving and promoting political stability.97
acted as evidence-gatherer, prosecutor and judge.

Prior to the amendment of Section 265 of the Omnibus Election Code,

C. Separation of powers
the Comelec had the exclusive authority to investigate and prosecute
election offenses. In the discharge of this exclusive power, the
Petitioners claim that the Joint Panel is a new public office as shown Comelec was given the right to avail and, in fact, availed of the
by its composition, the creation of its own Rules of Procedure, and the assistance of other prosecuting arms of the government such as the
source of funding for its operation. It is their position that the power of prosecutors of the DOJ. By virtue of this continuing authority, the state
the DOJ to investigate the commission of crimes and the Comelec’s prosecutors and the provincial or city prosecutors were authorized to
constitutional mandate to investigate and prosecute violations of receive the complaint for election offense and delegate the conduct of
election laws do not include the power to create a new public office in investigation to any of their assistants. The investigating prosecutor, in
the guise of a joint committee. Thus, in creating the Joint Panel, the turn, would make a recommendation either to dismiss the complaint or
DOJ and the Comelec encroached upon the power of the Legislature to file the information. This recommendation is subject to the approval
to create public office. of the state, provincial or city prosecutor, who himself may file the
information with the proper court if he finds sufficient cause to do so,
subject, however, to the accused’s right to appeal to the Comelec.98
Respondents dispute this and contend that the Joint Committee and
Fact-Finding Team are not new public offices, but merely
collaborations between two existing government agencies sharing Moreover, during the past national and local elections, the Comelec
concurrent jurisdiction. This is shown by the fact that the members of issued Resolutions99 requesting the Secretary of Justice to assign
the Joint Panel are existing officers of the DOJ and the Comelec who prosecutors as members of Special Task Forces to assist the Comelec
exercise duties and functions that are already vested in them. in the investigation and prosecution of election offenses. These Special
Task Forces were created because of the need for additional lawyers
to handle the investigation and prosecution of election offenses.
Again, we agree with respondents.

Clearly, the Comelec recognizes the need to delegate to the

As clearly explained above, the Comelec is granted the power to
prosecutors the power to conduct preliminary investigation. Otherwise,
investigate, and where appropriate, prosecute cases of election
the prompt resolution of alleged election offenses will not be attained.
offenses. This is necessary in ensuring free, orderly, honest, peaceful
This delegation of power, otherwise known as deputation, has long
and credible elections. On the other hand, the DOJ is mandated to
been recognized and, in fact, been utilized as an effective means of
administer the criminal justice system in accordance with the accepted
disposing of various election offense cases. Apparently, as mere
processes thereof consisting in the investigation of the crimes,
deputies, the prosecutors played a vital role in the conduct of
prosecution of offenders and administration of the correctional
preliminary investigation, in the resolution of complaints filed before
system.91 It is specifically empowered to "investigate the commission of
them, and in the filing of the informations with the proper court.
crimes, prosecute offenders and administer the probation and
correction system."92 Also, the provincial or city prosecutors and their
assistants, as well as the national and regional state prosecutors, are As pointed out by the Court in Barangay Association for National
specifically named as the officers authorized to conduct preliminary Advancement and Transparency (BANAT) Party-List v. Commission on
investigation.93Recently, the Comelec, through its duly authorized legal Elections,100 the grant of exclusive power to investigate and prosecute
offices, is given the power, concurrent with the other prosecuting arms cases of election offenses to the Comelec was not by virtue of the
of the government such as the DOJ, to conduct preliminary Constitution but by the Omnibus Election Code which was eventually
investigation of all election offenses.94 amended by Section 43 of R.A. 9369. Thus, the DOJ now conducts
preliminary investigation of election offenses concurrently with the
Comelec and no longer as mere deputies. If the prosecutors had been
Undoubtedly, it is the Constitution, statutes, and the Rules of Court and
allowed to conduct preliminary investigation and file the necessary
not the assailed Joint Order which give the DOJ and the Comelec the
information by virtue only of a delegated authority, they now have
power to conduct preliminary investigation. No new power is given to
better grounds to perform such function by virtue of the statutory grant
them by virtue of the assailed order. As to the members of the Joint
of authority. If deputation was justified because of lack of funds and
Committee and Fact-Finding Team, they perform such functions that
legal officers to ensure prompt and fair investigation and prosecution of
they already perform by virtue of their current positions as prosecutors
election offenses, the same justification should be cited to justify the
of the DOJ and legal officers of the Comelec. Thus, in no way can we
grant to the other prosecuting arms of the government of such
consider the Joint Committee as a new public office.
concurrent jurisdiction.

D. Independence of the Comelec

In view of the foregoing disquisition, we find no impediment for the
creation of a Joint Committee. While the composition of the Joint
Petitioners claim that in creating the Joint Panel, the Comelec has Committee and Fact-Finding Team is dominated by DOJ officials, it
effectively abdicated its constitutional mandate to investigate and, does not necessarily follow that the Comelec is inferior. Under the Joint
Order, resolutions of the Joint Committee finding probable cause for Citing the principle of concurrent jurisdiction, petitioners insist that the
election offenses shall still be approved by the Comelec in accordance investigation conducted by the Comelec involving Radam and
with the Comelec Rules of Procedure. This shows that the Comelec, Martirizar bars the creation of the Joint Committee for purposes of
though it acts jointly with the DOJ, remains in control of the conducting another preliminary investigation. In short, they claim that
proceedings. In no way can we say that the Comelec has thereby the exercise by the Comelec of its jurisdiction to investigate excludes
abdicated its independence to the executive department. other bodies such as the DOJ and the Joint Committee from taking
cognizance of the case. Petitioners add that the investigation should
have been conducted also by the Comelec as the 2007 cases of
The text and intent of the constitutional provision granting the Comelec
Radam and Martirizar include several John Does and Jane Does.
the authority to investigate and prosecute election offenses is to give
the Comelec all the necessary and incidental powers for it to achieve
the objective of holding free, orderly, honest, peaceful, and credible We do not agree.
elections.101 The Comelec should be allowed considerable latitude in
devising means and methods that will insure the accomplishment of
While the Comelec conducted the preliminary investigation against
the great objective for which it was created.102We may not agree fully
Radam, Martirizar and other unidentified persons, it only pertains to
with its choice of means, but unless these are clearly illegal or
election offenses allegedly committed in North and South Cotabato. On
constitute gross abuse of discretion, this Court should not
the other hand, the preliminary investigation conducted by the Joint
interfere.103 Thus, Comelec Resolution No. 9266, approving the
Committee (involving GMA) pertains to election offenses supposedly
creation of the Joint Committee and Fact-Finding Team, should be
committed in Maguindanao. More importantly, considering the broad
viewed not as an abdication of the constitutional body’s independence
power of the Comelec to choose the means of fulfilling its duty of
but as a means to fulfill its duty of ensuring the prompt investigation
ensuring the prompt investigation and prosecution of election offenses
and prosecution of election offenses as an adjunct of its mandate of
as discussed earlier, there is nothing wrong if the Comelec chooses to
ensuring a free, orderly, honest, peaceful and credible elections.
work jointly with the DOJ in the conduct of said investigation. To
reiterate, in no way can we consider this as an act abdicating the
Although it belongs to the executive department, as the agency tasked independence of the Comelec.
to investigate crimes, prosecute offenders, and administer the
correctional system, the DOJ is likewise not barred from acting jointly
Publication Requirement
with the Comelec. It must be emphasized that the DOJ and the
Comelec exercise concurrent jurisdiction in conducting preliminary
investigation of election offenses. The doctrine of concurrent In the conduct of preliminary investigation, the DOJ is governed by the
jurisdiction means equal jurisdiction to deal with the same subject Rules of Court, while the Comelec is governed by the 1993 Comelec
matter.104 Contrary to the contention of the petitioners, there is no Rules of Procedure. There is, therefore, no need to promulgate new
prohibition on simultaneous exercise of power between two coordinate Rules as may be complementary to the DOJ and Comelec Rules.
bodies. What is prohibited is the situation where one files a complaint
against a respondent initially with one office (such as the Comelec) for
preliminary investigation which was immediately acted upon by said As earlier discussed, considering that Joint Order No. 001-2011 only
office and the re-filing of substantially the same complaint with another enables the Comelec and the DOJ to exercise powers which are
already vested in them by the Constitution and other existing laws, it
office (such as the DOJ). The subsequent assumption of jurisdiction by
the second office over the cases filed will not be allowed. Indeed, it is a need not be published for it to be valid and effective. A close
settled rule that the body or agency that first takes cognizance of the examination of the Joint Committee’s Rules of Procedure, however,
would show that its provisions affect the public. Specifically, the
complaint shall exercise jurisdiction to the exclusion of the others. 105 As
cogently held by the Court in Department of Justice v. Hon. Liwag: 106 following provisions of the Rules either restrict the rights of or provide
remedies to the affected parties, to wit: (1) Section 1 provides that "the
Joint Committee will no longer entertain complaints from the public as
To allow the same complaint to be filed successively before two or soon as the Fact-Finding Team submits its final report, except for such
more investigative bodies would promote multiplicity of proceedings. It complaints involving offenses mentioned in the Fact-Finding Team’s
would also cause undue difficulties to the respondent who would have Final Report"; (2) Section 2 states that "the Joint Committee shall not
to appear and defend his position before every agency or body where entertain a Motion to Dismiss"; and (3) Section 5 provides that a
the same complaint was filed. This would lead hapless litigants at a Motion for Reconsideration may be availed of by the aggrieved parties
loss as to where to appear and plead their cause or defense. against the Joint Committee’s Resolution. Consequently, publication of
the Rules is necessary.
There is yet another undesirable consequence. There is the distinct
possibility that the two bodies exercising jurisdiction at the same time The publication requirement covers not only statutes but administrative
would come up with conflicting resolutions regarding the guilt of the regulations and issuances, as clearly outlined in Tañada v.
respondents. Tuvera:108 effectivity, which shall begin fifteen days after publication
unless a different effectivity date is fixed by the legislature. Covered by
this rule are presidential decrees and executive orders promulgated by
Finally, the second investigation would entail an unnecessary
the President in the exercise of legislative powers whenever the same
expenditure of public funds, and the use of valuable and limited
are validly delegated by the legislature or, at present, directly conferred
resources of Government, in a duplication of proceedings already
by the Constitution. Administrative rules and regulations must also be
started with the Ombudsman.107
published if their purpose is to enforce or implement existing law
pursuant also to a valid delegation. Interpretative regulations and those
None of these problems would likely arise in the present case. The merely internal in nature, that is, regulating only the personnel of the
Comelec and the DOJ themselves agreed that they would exercise administrative agency and not the public, need not be published.
their concurrent jurisdiction jointly. Although the preliminary Neither is publication required of the so called letters of instructions
investigation was conducted on the basis of two complaints – the initial issued by administrative superiors concerning the rules or guidelines to
report of the Fact-Finding Team and the complaint of Senator Pimentel be followed by their subordinates in the performance of their duties.109
– both complaints were filed with the Joint Committee. Consequently,
the complaints were filed with and the preliminary investigation was
As opposed to Honasan II v. The Panel of Investigating Prosecutors of
conducted by only one investigative body. Thus, we find no reason to
the Department of Justice,110 where the Court held that OMB-DOJ Joint
disallow the exercise of concurrent jurisdiction jointly by those given
Circular No. 95-001 is only an internal arrangement between the DOJ
such authority. This is especially true in this case given the magnitude
and the Office of the Ombudsman outlining the authority and
of the crimes allegedly committed by petitioners. The joint preliminary
responsibilities among prosecutors of both offices in the conduct of
investigation also serves to maximize the resources and manpower of
preliminary investigation, the assailed Joint Committee’s Rules of
both the Comelec and the DOJ for the prompt disposition of the cases.
Procedure regulate not only the prosecutors of the DOJ and the
Comelec but also the conduct and rights of persons, or the public in
general. The publication requirement should, therefore, not be ignored.
Publication is a necessary component of procedural due process to Indeed, petitioner GMA filed a Supplemental Petition before the Court,
give as wide publicity as possible so that all persons having an interest an Urgent Omnibus Motion Ad Cautelam before the RTC, and a Motion
in the proceedings may be notified thereof.111 The requirement of to Vacate Ad Cautelam before the Comelec, emphasizing the
publication is intended to satisfy the basic requirements of due unbelievable haste committed by the Joint Committee and the
process. It is imperative for it will be the height of injustice to punish or Comelec in disposing of the cases before them. However, a plain
otherwise burden a citizen for the transgressions of a law or rule of reading of the allegations in GMA’s motion before the RTC would show
which he had no notice whatsoever.112 that GMA raised the issue of undue haste in issuing the Joint
Resolution only in support of her prayer for the trial court to hold in
abeyance the issuance of the warrant of arrest, considering that her
Nevertheless, even if the Joint Committee’s Rules of Procedure is
motion for reconsideration of the denial of her motion to be furnished
ineffective for lack of publication, the proceedings undertaken by the
copies of documents was not yet acted upon by the Joint Committee. If
Joint Committee are not rendered null and void for that reason,
at all the constitutional issue of violation of due process was raised, it
because the preliminary investigation was conducted by the Joint
was merely incidental. More importantly, GMA raised in her motion
Committee pursuant to the procedures laid down in Rule 112 of the
with the RTC the finding of probable cause as she sought the judicial
Rules on Criminal Procedure and the 1993 Comelec Rules of
determination of probable cause which is not an issue in the petitions
Procedure.
before us. GMA’s ultimate prayer is actually for the court to defer the
issuance of the warrant of arrest. Clearly, the reliefs sought in the RTC
Validity of the Conduct of are different from the reliefs sought in this case. Thus, there is no
Preliminary Investigation forum shopping.

In her Supplemental Petition,113 GMA outlines the incidents that took With respect to the Motion to Vacate Ad Cautelam filed with the
place after the filing of the instant petition, specifically the issuance by Comelec, while the issues raised therein are substantially similar to the
the Joint Committee of the Joint Resolution, the approval with issues in the supplemental petition which, therefore, strictly speaking,
modification of such resolution by the Comelec and the filing of warrants outright dismissal on the ground of forum shopping, we
information and the issuance of a warrant of arrest by the RTC. With cannot do so in this case in light of the due process issues raised by
these supervening events, GMA further assails the validity of the GMA.118 It is worthy to note that the main issues in the present petitions
proceedings that took place based on the following additional grounds: are the constitutionality of the creation of the Joint Panel and the
(1) the undue and unbelievable haste attending the Joint Committee’s validity of the proceedings undertaken pursuant thereto for alleged
conduct of the preliminary investigation, its resolution of the case, and violation of the constitutional right to due process. In questioning the
its referral to and approval by the Comelec, taken in conjunction with propriety of the conduct of the preliminary investigation in her
the statements from the Office of the President, demonstrate a Supplemental Petition, GMA only raises her continuing objection to the
deliberate and reprehensible pattern of abuse of inalienable rights and exercise of jurisdiction of the Joint Committee and the Comelec. There
a blatant disregard of the envisioned integrity and independence of the is, therefore, no impediment for the Court to rule on the validity of the
Comelec; (2) as it stands, the creation of the Joint Committee was for conduct of preliminary investigation.
the singular purpose of railroading the proceedings in the prosecution
of the petitioner and in flagrant violation of her right to due process and
In Uy v. Office of the Ombudsman,119 the Court explained the nature of
equal protection of the laws; (3) the proceedings of the Joint
preliminary investigation, to wit:
Committee cannot be considered impartial and fair, considering that
respondents have acted as law enforcers, who conducted the criminal
investigation, gathered evidence and thereafter ordered the filing of A preliminary investigation is held before an accused is placed on trial
complaints, and at the same time authorized preliminary investigation to secure the innocent against hasty, malicious, and oppressive
based on the complaints they caused to be filed; (4) the Comelec prosecution; to protect him from an open and public accusation of a
became an instrument of oppression when it hastily approved the crime, as well as from the trouble, expenses, and anxiety of a public
resolution of the Joint Committee even if two of its members were in no trial. It is also intended to protect the state from having to conduct
position to cast their votes as they admitted to not having yet read the useless and expensive trials. While the right is statutory rather than
voluminous records of the cases; and (5) flagrant and repeated constitutional, it is a component of due process in administering
violations of her right to due process at every stage of the proceedings criminal justice. The right to have a preliminary investigation conducted
demonstrate a deliberate attempt to single out petitioner through the before being bound for trial and before being exposed to the risk of
creation of the Joint Committee.114 incarceration and penalty is not a mere formal or technical right; it is a
substantive right. To deny the accused's claim to a preliminary
investigation is to deprive him of the full measure of his right to due
In their Supplement to the Consolidated Comment,115 respondents
process.120
accuse petitioners of violating the rule against forum shopping. They
contend that in filing the Supplemental Petition before the Court, the
Urgent Omnibus Motion Ad Cautelam with the RTC, and the Motion to A preliminary investigation is the crucial sieve in the criminal justice
Vacate Ad Cautelam with the Comelec, GMA raises the common issue system which spells for an individual the difference between months if
of whether or not the proceedings before the Joint Committee and the not years of agonizing trial and possibly jail term, on the one hand, and
Comelec are null and void for violating the Constitution. Respondents peace of mind and liberty, on the other hand. Thus, we have
likewise claim that the issues raised in the supplemental petition are characterized the right to a preliminary investigation as not a mere
factual which is beyond the power of this Court to decide. formal or technical right but a substantive one, forming part of due
process in criminal justice.121
We cannot dismiss the cases before us on the ground of forum
shopping. In a preliminary investigation, the Rules of Court guarantee the
petitioners basic due process rights such as the right to be furnished a
copy of the complaint, the affidavits, and other supporting documents,
Forum shopping is the act of a party against whom an adverse
and the right to submit counter-affidavits, and other supporting
judgment has been rendered in one forum, of seeking another and
documents in her defense.122 Admittedly, GMA received the notice
possibly favorable opinion in another forum other than by appeal or the
requiring her to submit her counter-affidavit. Yet, she did not comply,
special civil action of certiorari.116There can also be forum shopping
allegedly because she could not prepare her counter-affidavit. She
when a party institutes two or more suits in different courts, either
claimed that she was not furnished by Senator Pimentel pertinent
simultaneously or successively, in order to ask the courts to rule on the
documents that she needed to adequately prepare her counter-
same and related causes and/or to grant the same or substantially the
affidavit.
same reliefs on the supposition that one or the other court would make
a favorable disposition or increase a party’s chances of obtaining a
favorable decision or action.117 In her Omnibus Motion Ad Cautelam123 to require Senator Pimentel to
furnish her with documents referred to in his complaint-affidavit and for
production of election documents as basis for the charge of electoral
sabotage, GMA prayed that the Joint Committee issue an Order
directing the Fact-Finding Team and Senator Pimentel to furnish her Objects as evidence need not be furnished a party but shall be made
with copies of the following documents: available for examination, copying or photographing at the expense of
the requesting party.126
a. Complaint-affidavit and other relevant documents of
Senator Aquilino Pimentel III filed before the Commission on Section 6 (a), Rule 34 of the Comelec Rules of Procedure also grants
Elections against Attys. Lilia Suan-Radam and Yogie the respondent such right of examination, to wit:
Martirizar, as well as the Informations filed in the Regional
Trial Court of Pasay City, Branch 114 in Criminal Case Nos.
Sec. 6. Conduct of preliminary investigation. – (a) If on the basis of the
R-PSU-11-03190-CR to R-PSU-11-03200-CR.
complaint, affidavits and other supporting evidence, the investigating
officer finds no ground to continue with the inquiry, he shall
b. Records in the petitions filed by complainant Pimentel recommend the dismissal of the complaint and shall follow the
before the National Board of Canvassers, specifically in NBC procedure prescribed in Sec. 8 (c) of this Rule. Otherwise, he shall
Case Nos. 07-162, 07-168, 07-157, 07-159, 07-161 and 07- issue a subpoena to the respondent, attaching thereto a copy of the
163. complaint, affidavits and other supporting documents giving said
respondent ten (10) days from receipt within which to submit counter-
affidavits and other supporting documents. The respondent shall have
c. Documents which served as basis in the allegations of
the right to examine all other evidence submitted by the
"Significant findings specific to the protested municipalities in
complainant.127
the Province of Maguindanao."

Clearly from the above-quoted provisions, the subpoena issued

d. Documents which served as basis in the allegations of
against respondent therein should be accompanied by a copy of the
"Significant findings specific to the protested municipalities in
complaint and the supporting affidavits and documents. GMA also has
the Province of Lanao del Norte."
the right to examine documents but such right of examination is limited
only to the documents or evidence submitted by the complainants
e. Documents which served as basis in the allegations of (Senator Pimentel and the Fact-Finding Team) which she may not
"Significant findings specific to the protested municipalities in have been furnished and to copy them at her expense.
the Province of Shariff Kabunsuan."
While it is true that Senator Pimentel referred to certain election
f. Documents which served as basis in the allegations of documents which served as bases in the allegations of significant
"Significant findings specific to the protested municipalities in findings specific to the protested municipalities involved, there were no
the Province of Lanao del Sur." annexes or attachments to the complaint filed.128 As stated in the Joint
Committee’s Order dated November 15, 2011 denying GMA’s
Omnibus Motion Ad Cautelam, Senator Pimentel was ordered to
g. Documents which served as basis in the allegations of furnish petitioners with all the supporting evidence129 However, Senator
"Significant findings specific to the protested municipalities in Pimentel manifested that he was adopting all the affidavits attached to
the Province of Sulu." the Fact-Finding Team’s Initial Report.130Therefore, when GMA was
furnished with the documents attached to the Initial Report, she was
h. Documents which served as basis in the allegations of already granted the right to examine as guaranteed by the Comelec
"Significant findings specific to the protested municipalities in Rules of Procedure and the Rules on Criminal Procedure. Those were
the Province of Basilan." the only documents submitted by the complainants to the Committee. If
there are other documents that were referred to in Senator Pimentel’s
complaint but were not submitted to the Joint Committee, the latter
i. Documents which served as basis in the allegations of considered those documents unnecessary at that point (without
"Significant findings specific to the protested municipalities in foreclosing the relevance of other evidence that may later be
the Province of Sultan Kudarat."124 presented during the trial)131 as the evidence submitted before it were
considered adequate to find probable cause against her. 132Anyway, the
GMA likewise requested the production of election documents used in failure of the complainant to submit documents supporting his
the Provinces of South and North Cotabato and Maguindanao.125 allegations in the complaint may only weaken his claims and eventually
works for the benefit of the respondent as these merely are allegations
unsupported by independent evidence.
The Joint Committee, however, denied GMA’s motion which carried
with it the denial to extend the filing of her counter-affidavit.
Consequently, the cases were submitted for resolution sans GMA’s We must, however, emphasize at this point that during the preliminary
and the other petitioners’ counter-affidavits. This, according to GMA, investigation, the complainants are not obliged to prove their cause
violates her right to due process of law. beyond reasonable doubt. It would be unfair to expect them to present
the entire evidence needed to secure the conviction of the accused
prior to the filing of information.133 A preliminary investigation is not the
We do not agree. occasion for the full and exhaustive display of the parties’ respective
evidence but the presentation only of such evidence as may engender
GMA’s insistence of her right to be furnished the above-enumerated a well-grounded belief that an offense has been committed and that
documents is based on Section 3 (b), Rule 112 of the Rules on the accused is probably guilty thereof and should be held for
Criminal Procedure, which reads: trial.134 Precisely there is a trial to allow the reception of evidence for
the prosecution in support of the charge.135
(b) x x x
With the denial of GMA’s motion to be furnished with and examine the
documents referred to in Senator Pimentel’s complaint, GMA’s motion
The respondent shall have the right to examine the evidence submitted to extend the filing of her counter-affidavit and countervailing evidence
by the complainant which he may not have been furnished and to copy was consequently denied. Indeed, considering the nature of the crime
them at his expense. If the evidence is voluminous, the complainant for which GMA was subjected to preliminary investigation and the
may be required to specify those which he intends to present against documents attached to the complaint, it is incumbent upon the Joint
the respondent, and these shall be made available for examination or Committee to afford her ample time to examine the documents
copying by the respondent at his expense, submitted to the Joint Committee in order that she would be able to
prepare her counter-affidavit. She cannot, however, insist to examine
documents not in the possession and custody of the Joint Committee
nor submitted by the complainants. Otherwise, it might cause undue
and unnecessary delay in the disposition of the cases. This undue
delay might result in the violation of the right to a speedy disposition of were given the opportunity to present countervailing evidence. Instead
cases as enshrined in Section 16, Article III of the Constitution which of complying with the Joint Committee’s directive, several motions
states that "all persons shall have the right to a speedy disposition of were filed but were denied by the Joint Committee. Consequently,
their cases before all judicial, quasi-judicial, or administrative bodies." petitioners’ right to submit counter-affidavit and countervailing evidence
The constitutional right to speedy disposition of cases is not limited to was forfeited. Taking into account the constitutional right to speedy
the accused in criminal proceedings but extends to all parties in all disposition of cases and following the procedures set forth in the Rules
cases, including civil and administrative cases, and in all proceedings, on Criminal Procedure and the Comelec Rules of Procedure, the Joint
including judicial and quasi-judicial hearings.136 Any party to a case has Committee finally reached its conclusion and referred the case to the
the right to demand on all officials tasked with the administration of Comelec. The latter, in turn, performed its task and filed the
justice to expedite its disposition.137 Society has a particular interest in information in court. Indeed, petitioners were given the opportunity to
bringing swift prosecutions, and the society’s representatives are the be heard. They even actively participated in the proceedings and in
ones who should protect that interest.138 fact filed several motions before the Joint Committee. Consistent with
the constitutional mandate of speedy disposition of cases,
unnecessary delays should be avoided.
Even assuming for the sake of argument that the denial of GMA’s
motion to be furnished with and examine the documents referred to in
Senator Pimentel’s complaint carried with it the denial to extend the Finally, we take judicial notice that on February 23, 2012, GMA was
filing of her counter-affidavit and other countervailing evidence already arraigned and entered a plea of "not guilty" to the charge
rendering the preliminary investigation irregular, such irregularity would against her and thereafter filed a Motion for Bail which has been
not divest the RTC of jurisdiction over the case and would not nullify granted. Considering that the constitutionality of the creation of the
the warrant of arrest issued in connection therewith, considering that Joint Panel is sustained, the actions of the Joint Committee and Fact-
Informations had already been filed against petitioners, except Mike Finding Team are valid and effective. As the information was filed by
Arroyo. This would only compel us to suspend the proceedings in the the Commission authorized to do so, its validity is sustained. Thus, we
RTC and remand the case to the Joint Committee so that GMA could consider said entry of plea and the Petition for Bail waiver on the part
submit her counter-affidavit and other countervailing evidence if she of GMA of her right to submit counter-affidavit and countervailing
still opts to. However, to do so would hold back the progress of the evidence before the Joint Committee, and recognition of the validity of
case which is anathema to the accused’s right to speedy disposition of the information against her. Her act indicates that she opts to avail of
cases. judicial remedies instead of the executive remedy of going back to the
Joint Committee for the submission of the counter-affidavit and
countervailing evidence. Besides, as discussed earlier, the absence or
It is well settled that the absence or irregularity of preliminary
irregularity of preliminary investigation does not affect the court’s
investigation does not affect the court’s jurisdiction over the case. Nor
jurisdiction over the case nor does it impair the validity of the criminal
does it impair the validity of the criminal information or render it
information or render it defective.
defective. Dismissal is not the remedy.139Neither is it a ground to quash
the information or nullify the order of arrest issued against the accused
or justify the release of the accused from detention. 140 The proper It must be stressed, however, that this supervening event does not
course of action that should be taken is to hold in abeyance the render the cases before the Court moot and academic as the main
proceedings upon such information and to remand the case for the issues raised by petitioners are the constitutionality of the creation of
conduct of preliminary investigation.141 the Joint Committee and the Fact-Finding Team and the validity of the
proceedings undertaken pursuant to their respective mandates.
In the landmark cases of Cojuangco, Jr. v. Presidential Commission on
Good Government (PCGG)142 and Allado v. Diokno,143 we dismissed The Court notes that the Joint Committee and the Comelec have not
the criminal cases and set aside the informations and warrants of disposed of the cases of the other respondents subjects of the
arrest. In Cojuangco, we dismissed the criminal case because the preliminary investigation as some of them were subjected to further
information was filed by the PCGG which we declared to be investigation. In order to remove the cloud of doubt that pervades that
unauthorized to conduct the preliminary investigation and, petitioners are being singled out, it is to the best interest of all the
consequently, file the information as it did not possess the cold parties concerned that the Joint Committee and the Comelec terminate
neutrality of an impartial judge. In Allado, we set aside the warrant of the proceedings as to the other respondents therein and not make a
arrest issued against petitioners therein and enjoined the trial court piecemeal disposition of the cases.
from proceeding further for lack of probable cause. For one, there was
serious doubt on the reported death of the victim in that case since the
A peripheral issue which nonetheless deserves our attention is the
corpus delicti had not been established nor had his remains been
question about the credibility of the Comelec brought about by the
recovered;and based on the evidence submitted, there was nothing to
alleged professional relationship between Comelec Chairman
incriminate petitioners therein. In this case, we cannot reach the same
Brillantes on one hand and the complainant Senator Pimentel and
conclusion because the Information filed before the RTC of Pasay City
Fernando Poe, Jr. (FPJ), GMA’s rival in the 2004 elections, on the
was filed by the Comelec en banc which had the authority to file the
other hand; and by the other Commissioners’147 reasons for their partial
information for electoral sabotage and because the presence or
inhibition. To be sure, Chairman Brillantes’ relationship with FPJ and
absence of probable cause is not an issue herein. As can be gleaned
Senator Pimentel is not one of the grounds for the mandatory
from their assignment of errors/issues, petitioners did not question the
disqualification of a Commissioner. At its most expansive, it may be
finding of probable cause in any of their supplemental petitions. It was
considered a ground for voluntary inhibition which is indeed
only in GMA’s memorandum where she belatedly included a
discretionary as the same was primarily a matter of conscience and
discussion on the "insufficiency" of the evidence supporting the finding
sound discretion on the part of the Commissioner judge based on his
of probable cause for the filing of the Information for electoral sabotage
or her rational and logical assessment of the case.148 Bare allegations
against her.144 A closer look at her arguments, however, would show
of bias and prejudice are not enough in the absence of clear and
that they were included only to highlight the necessity of examining the
convincing evidence to overcome the presumption that a judge will
election documents GMA requested to see before she could file her
undertake his noble role to dispense justice according to law and
counter-affidavit. At any rate, since GMA failed to submit her counter-
evidence without fear or favor.149 It being discretionary and since
affidavit and other countervailing evidence within the period required
Commissioner Brillantes was in the best position to determine whether
by the Joint Committee, we cannot excuse her from non-compliance.
or not there was a need to inhibit from the case, his decision to
participate in the proceedings, in view of higher interest of justice,
There might have been overzealousness on the part of the Joint equity and public interest, should be respected. While a party has the
Committee in terminating the investigation, endorsing the Joint right to seek the inhibition or disqualification of a judge (or prosecutor
Resolution to the Comelec for approval, and in filing the information in or Commissioner) who does not appear to be wholly free,
court. However, speed in the conduct of proceedings by a judicial or disinterested, impartial, and independent in handling the case, this
quasi-judicial officer cannot per se be instantly attributed to an right must be weighed with his duty to decide cases without fear of
injudicious performance of functions.145 The orderly administration of repression.150
justice remains the paramount consideration with particular regard to
the peculiar circumstances of each case.146 To be sure, petitioners
Indeed, in Javier v. Comelec,151 the Court set aside the Comelec’s publication requirement. Consequently, Rule 112 of the Rules on
decision against Javier when it was disclosed that one of the Criminal Procedure and the 1993 Comelec Rules of Procedure govern.
Commissioners who had decided the case was a law partner of
Javier’s opponent and who had refused to excuse himself from hearing
Fifth, petitioners were given the opportunity to be heard. They were
the case. Javier, however, is not applicable in this case. First, the cited
furnished a copy of the complaint, the affidavits, and other supporting
case involves the Comelec’s exercise of its adjudicatory function as it
documents submitted to the Joint Committee and they were required to
was called upon to resolve the propriety of the proclamation of the
submit their counter-affidavit and countervailing evidence. As to
winner in the May 1984 elections for Batasang Pambansa of Antique.
petitioners Mike Arroyo and Abalos, the pendency of the cases before
Clearly, the grounds for inhibition/disqualification were applicable.
the Court does not automatically suspend the proceedings before the
Second, the case arose at the time where the purity of suffrage has
Joint Committee nor excuse them from their failure to file the required
been defiled and the popular will scorned through the confabulation of
counter-affidavits. With the foregoing disquisitions, we find no reason
those in authority.152 In other words, the controversy arose at the time
to nullify the proceedings undertaken by the Joint Committee and the
when the public confidence in the Comelec was practically nil because
Comelec in the electoral sabotage cases against petitioners.
of its transparent bias in favor of the administration.153Lastly, in
determining the propriety of the decision rendered by the Comelec, the
Court took into consideration not only the relationship (being former WHEREFORE, premises considered, the petitions and supplemental
partners in the law firm) between private respondents therein, Arturo F. petitions are DISMISSED. Comelec Resolution No. 9266 dated August
Pacificador, and then Comelec Commissioner Jaime Opinion 2, 2011, Joint Order No. 001-2011 dated August 15, 2011, and the
(Commissioner Opinion) but also the general attitude of the Comelec Fact-Finding Team’s Initial Report dated October 20, 2011, are
toward the party in power at that time. Moreover, the questioned declared VALID. However, the Rules of Procedure on the Conduct of
Comelec decision was rendered only by a division of the Comelec. The Preliminary Investigation on the Alleged Election Fraud in the 2004 and
Court thus concluded in Javier that Commissioner Opinion’s refusal to 2007 National Elections is declared INEFFECTIVE for lack of
inhibit himself divested the Comelec’s Second Division of the publication.
necessary vote for the questioned decision and rendered the
proceedings null and void.154
In view of the constitutionality of the Joint Panel and the proceedings
having been conducted in accordance with Rule 112 of the Rules on
On the contrary, the present case involves only the conduct of Criminal Procedure and Rule 34 of the Comelec Rules of Procedure,
preliminary investigation and the questioned resolution is an act of the the conduct of the preliminary investigation is hereby declared VALID.
Comelec En Banc where all the Commissioners participated and more
than a majority (even if Chairman Brillantes is excluded) voted in favor
of the assailed Comelec resolution. Unlike in 1986, public confidence Let the proceedings in the Regional Trial Court of Pasay City, Branch
in the Comelec remains. The Commissioners have already taken their 112, where the criminal cases for electoral sabotage against
positions in light of the claim of "bias and partiality" and the causes of petitioners GMA and Abalos are pending, proceed with dispatch.
their partial inhibition. Their positions should be respected confident
that in doing so, they had the end in view of ensuring that the credibility SO ORDERED.
of the Commission is not seriously affected.

To recapitulate, we find and so hold that petitioners failed to establish

any constitutional or legal impediment to the creation of the Joint DOJ-
Comelec Preliminary Investigation Committee and Fact-Finding Team.

First, while GMA and Mike Arroyo were among those subjected to
preliminary investigation, not all respondents therein were linked to
GMA; thus, Joint Order No. 001-2011 does not violate the equal
protection clause of the Constitution.

Second, the due process clause is likewise not infringed upon by the
alleged prejudgment of the case as petitioners failed to prove that the
Joint Panel itself showed such bias and partiality against them. Neither
was it shown that the Justice Secretary herself actually intervened in
the conduct of the preliminary investigation. More importantly,
considering that the Comelec is a collegial body, the perceived
prejudgment of Chairman Brillantes as head of the Comelec cannot be
considered an act of the body itself.

Third, the assailed Joint Order did not create new offices because the
Joint Committee and Fact-Finding Team perform functions that they
already perform by virtue of the Constitution, the statutes, and the
Rules of Court.1âwphi1

Fourth, in acting jointly with the DOJ, the Comelec cannot be

considered to have abdicated its independence in favor of the
executive branch of government. Resolution No. 9266 was validly
issued by the Comelec as a means to fulfill its duty of ensuring the
prompt investigation and prosecution of election offenses as an adjunct
of its mandate of ensuring a free, orderly, honest, peaceful, and
credible elections. The role of the DOJ in the conduct of preliminary
investigation of election offenses has long been recognized by the
Comelec because of its lack of funds and legal officers to conduct
investigations and to prosecute such cases on its own. This is
especially true after R.A. No. 9369 vested in the Comelec and the DOJ
the concurrent jurisdiction to conduct preliminary investigation of all
election offenses. While we uphold the validity of Comelec Resolution
No. 9266 and Joint Order No. 001-2011, we declare the Joint
Committee’s Rules of Procedure infirm for failure to comply with the
 EN BANC investigation to be conducted by the Joint Committee. Pursuant to
Section 74 of the Joint Order, on August 23, 2011, the Joint Committee
promulgated its Rules of Procedure.
G.R. No. 199082 July 23, 2013

In its Initial Report5 dated October 20, 2011, the Fact-Finding Team
JOSE MIGUEL T. ARROYO, Petitioner,
concluded that manipulation of the results in the May 14, 2007
vs.
senatorial elections in the provinces of North and South Cotabato, and
DEPARTMENT OF JUSTICE; COMMISSION ON ELECTIONS; HON.
Maguindanao was indeed perpetrated.6 The Fact-Finding Team
LEILA DE LIMA, in her capacity as Secretary of the Department of
recommended, among others, that petitioner Benjamin S. Abalos, Sr.
Justice; HON. SIXTO BRILLANTES, JR., in his capacity as
(Abalos) be subjected to preliminary investigation for electoral
Chairperson of the Commission on Elections; and the JOINT DOJ-
sabotage for conspiring to manipulate the election results in North and
COMELEC PRELIMINARY INVESTIGATION COMMITTEE and
South Cotabato; that GMA and Abalos be subjected to another
FACT-FINDING TEAM, Respondents.
preliminary investigation for manipulating the election results in
Maguindanao;7 and, that Mike Arroyo be subjected to further
x-----------------------x investigation.8 The case was docketed as DOJ-Comelec Case No.
001-2011.
G.R. No. 199085
Meanwhile, on October 17, 2011, Senator Pimentel filed a
ComplaintAffidavit9 for Electoral Sabotage against petitioners and
BENJAMIN S. ABALOS, SR., Petitioner,
twelve others, and several John Does and Jane Does. The case was
vs. docketed as DOJ-Comelec Case No. 002-2011.
HON. LEILA DE LIMA, in capacity as Secretary of Justice; HON.
SIXTO S. BRILLANTES, JR., in his capacity as COMELEC
Chairperson; RENE V. SARMIENTO, LUCENITO N. TAGLE, On October 24, 2011, the Joint Committee issued two subpoenas
ARMANDO V. VELASCO, ELIAS R. YUSOPH, CHRISTIAN ROBERT against petitioners in DOJ-Comelec Case Nos. 001-2011 and 002-
S. LIM AND AUGUSTO C. LAGMAN, in their capacity as COMELEC 2011.10 On November 3, 2011, petitioners, through counsel, appeared
COMMISSIONERS; CLARO A. ARELLANO, GEORGE C. DEE, before the Joint Committee11 and respondents therein were ordered to
JACINTO G. ANG, ROMEO B. FORTES AND MICHAEL D. submit their Counter-Affidavits by November 14, 2011.12
VILLARET, in their capacity as CHAIRPERSON AND MEMBERS,
RESPECTIVELY, OF THE JOINT DOJ-COMELEC PRELIMINARY
Thereafter, petitioners filed before the Court separate Petitions for
INVESTIGATION COMMITTEE ON THE 2004 AND 2007 ELECTION
Certiorari and Prohibition with Prayer for the Issuance of a Temporary
FRAUD,Respondents.
Restraining Order (TRO) and/or Writ of Preliminary Injunction assailing
the creation of the Joint Panel.13 The petitions were eventually
x-----------------------x consolidated.

G.R. No. 199118 On November 14, 2011, Mike Arroyo filed a Motion to Defer
Proceedings14 before the Joint Committee, in view of the pendency of
his petition before the Court. On the same day, GMA filed before the
GLORIA MACAPAGAL-ARROYO, Petitioner,
Joint Committee an Omnibus Motion Ad Cautelam 15 to require Senator
vs. Pimentel to furnish her with documents referred to in his complaint-
COMMISSION ON ELECTIONS, represented by Chairperson Sixto
affidavit and for the production of election documents as basis for the
S. Brillantes, Jr., DEPARTMENT OF JUSTICE, represented by
charge of electoral sabotage. GMA prayed that she be allowed to file
Secretary Leila M. De Lima, JOINT DOJ-COMELEC PRELIMINARY
her counter-affidavit within ten (10) days from receipt of the requested
INVESTIGATION COMMITTEE, SENATOR AQUILINO M. PIMENTEL
documents.16Petitioner Abalos, for his part, filed a Motion to Suspend
III, and DOJ-COMELEC FACT FINDING TEAM, Respondents.
Proceedings (Ex Abundante Ad Cautelam),17 in view of the pendency
of his petition brought before the Court.
RESOLUTION
In an Order18 dated November 15, 2011, the Joint Committee denied
PERALTA, J.: the aforesaid motions of petitioners. GMA, subsequently, filed a motion
for reconsideration.19
For resolution are the separate motions for reconsideration filed by
movants Gloria Macapagal Arroyo (GMA)1 in G.R. No. 199118 and On November 16, 2011, the Joint Committee promulgated a Joint
Jose Miguel T. Arroyo (Mike Arroyo )2 in G.R. No. 199082 praying that Resolution which was later indorsed to the Comelec.20 On November
the Court take a second look at our September 18, 2012 18, 2011, the Comelec en banc issued a Resolution21 approving and
Decision3 dismissing their petitions and supplemental petitions against adopting the Joint Resolution subject to modifications. The Comelec
respondents Commission on Elections (Comelec), the Department of resolved, among others, that an information for electoral sabotage be
Justice (DOJ), Senator Aquilino M. Pimentel III (Senator Pimentel), filed against GMA and Abalos, while the charges against Mike Arroyo
Joint DOJ-Comelec Preliminary Investigation Committee (Joint be dismissed for insufficiency of evidence.
Committee) and DOJ-Comelec Fact-Finding Team (Fact-Finding
Team), et al. On even date, pursuant to the above Resolution, the Comelec’s Law
Department filed with the Regional Trial Court (RTC), Pasay City, an
For a better perspective, we briefly state the relevant factual and Information against petitioner GMA, Governor Andal Ampatuan, Sr.,
procedural antecedents as found by the Court in the assailed decision, and Atty. Lintang H. Bedol, for violation of Section 42(b)(3) of Republic
to wit: Act (RA) No. 9369, amending Section 27 (b) of RA 6646, docketed as
Criminal Case No. RPSY-11-04432-CR.22 The case was raffled to
Branch 112 and the corresponding Warrant of Arrest was issued which
On August 15, 2011, the Comelec and the DOJ issued Joint Order No. was served on GMA on the same day.23
001-2011 creating and constituting a Joint Committee and Fact-Finding
Team (referred to as Joint Panel) on the 2004 and 2007 National
Elections electoral fraud and manipulation cases. The Joint Committee On November 18, 2011, GMA filed with the RTC an Urgent Omnibus
was mandated to conduct the necessary preliminary investigation on Motion Ad Cautelam24 with leave to allow the Joint Committee to
the basis of the evidence gathered and the charges recommended by resolve the motion for reconsideration filed by GMA, to defer issuance
the Fact-Finding Team. The Fact-Finding Team, on the other hand, of a warrant of arrest and a hold departure order, and to proceed to
was created for the purpose of gathering real, documentary, and judicial determination of probable cause. She, likewise, filed with the
testimonial evidence which can be utilized in the preliminary Comelec a Motion to Vacate Ad Cautelam 25 praying that its Resolution
be vacated for being null and void. The RTC, nonetheless, issued a remedial measures as "delaying tactics" employed to thwart the
Warrant for her arrest which was duly served. GMA was later arraigned investigation of charges against her by the Joint Committee.37
and she entered a plea of "not guilty." She was, for some time, on
hospital arrest but was able to obtain temporary liberty when her
The Court’s Ruling
motion for bail was granted. At present, she is again on hospital arrest
by virtue of a warrant issued in another criminal case.
Clearly from the above discussion, movants raise issues that have
been thoroughly explained by the Court in the assailed decision. The
On September 18, 2012, the Court rendered the assailed Decision, the
issues were all addressed and the explanation was exhaustive, thus,
dispositive portion of which reads:
we find no reason to disturb the Court’s conclusions.

WHEREFORE, premises considered, the petitions and supplemental

At any rate, if only to address the motions of the movants herein and to
petitions are DISMISSED. Comelec Resolution No. 9266 dated August
put an end to the questions attached to the creation of the Joint Panel
2, 2011, Joint Order No. 001-2011 dated August 15, 2011, and the
and, consequently, to the performance of their assigned tasks, we
Fact- Finding Team’s Initial Report dated October 20, 2011, are
hereby reiterate our findings and conclusions made in the assailed
declared VALID. However, the Rules of Procedure on the Conduct of
decision.
Preliminary Investigation on the Alleged Election Fraud in the 2004 and
2007 National Elections is declared INEFFECTIVE for lack of
publication. This is not the first time that the Court is confronted with the issue of
whether the Comelec has the exclusive power to investigate and
prosecute cases of violations of election laws. In Barangay Association
In view of the constitutionality of the Joint Panel and the proceedings
for National Advancement and Transparency (BANAT) Party-List v.
having been conducted in accordance with Rule 112 of the Rules on
Commission on Elections,38 the constitutionality of Section 4339 of RA
Criminal Procedure and Rule 34 of the Comelec Rules of Procedure,
936940 had already been raised by petitioners therein and addressed
the conduct of the preliminary investigation is hereby declared VALID.
by the Court. While recognizing the Comelec’s exclusive power to
investigate and prosecute cases under Batas Pambansa Bilang 881 or
Let the proceedings in the Regional Trial Court of Pasay City, Branch the Omnibus Election Code, the Court pointed out that the framers of
112, where the criminal cases for electoral sabotage against the 1987 Constitution did not have such intention. This exclusivity is
petitioners GMA and Abalos are pending, proceed with dispatch. thus a legislative enactment that can very well be amended by Section
43 of RA 9369. Therefore, under the present law, the Comelec and
other prosecuting arms of the government, such as the DOJ, now
SO ORDERED.26
exercise concurrent jurisdiction in the investigation and prosecution of
election offenses.
Hence, these motions for reconsideration.
Indeed, as aptly pointed out by GMA, there is a discrepancy between
Issues Comelec Resolution No. 346741 dated January 12, 2001 and Joint
Order No. 001-2011, dated August 15, 2011, creating and constituting
a Joint Committee and Fact-Finding Team on the 2004 and 2007
Mike Arroyo reiterates his arguments on the independence of the
National Elections electoral fraud and manipulation cases. However,
Comelec as basis in nullifying the subject joint DOJ-Comelec GMA seemed to miss the date when these two resolutions were
resolutions. Echoing Justice Arturo Brion in his Dissenting and promulgated by the Comelec. It is noteworthy that Comelec Resolution
Concurring Opinion,27 Mike Arroyo insists that the creation of the Joint
No. 3467 was issued when Section 265 of the Omnibus Election Code
Panel undermines the decisional independence of the Comelec.28 was still effective, while Joint Order No. 001-2011 as well as Comelec
Resolution Nos. 873342 and 905743 mentioned in the assailed decision
Mike Arroyo also maintains that the DOJ should conduct preliminary but missed out by GMA in her motion, were issued during the
investigation only when deputized by the Comelec but not exercise effectivity of Section 43 of RA 9369, giving the Comelec and other
concurrent jurisdiction.29 Finally, as has been repeatedly pointed out in prosecuting arms of the government the concurrent jurisdiction to
his earlier pleadings before the Court, Mike Arroyo claims that the investigate and prosecute election offenses. This amendment paved
proceedings involving the electoral sabotage case were rushed the way for the discrepancy. In Comelec Resolution No. 3467, the
because of pressures from the executive branch of the government.30 Comelec maintained the continuing deputation of prosecutors and the
Comelec Law Department was tasked to supervise the investigatory
and prosecutory functions of the task force pursuant to the mandate of
For her part, GMA claims that in availing of the procedural remedies the Omnibus Election Code. However, with the amendment, the
available, she merely exercised her earnest efforts to defend herself Comelec likewise changed the tenor of the later resolutions to reflect
and should not have been deemed by the Court as acts which the new mandate of the Comelec and other prosecuting arms of the
purportedly tend to demonstrate that she either waived or forfeited her government now exercising concurrent jurisdiction. Thus, the Comelec
right to submit her counter-affidavit and countervailing Law Department and the Office of the Chief State Prosecutor of the
evidence.31 Citing several cases decided by the Court, she likewise DOJ were tasked to jointly supervise the investigatory and prosecutory
faults the Court in not upholding her right to ask for additional time functions of the Comelec-DOJ Task Force. Considering, therefore, that
within which to submit her counter-affidavit and countervailing the later resolutions, including Joint Order No. 001-2011, were issued
evidence.32 GMA highlights that the subject Comelec Resolution pursuant to Section 43 of RA 9369 amending Section 265 of BP 881
creating the Joint Panel is different from the previous Comelec which was declared "constitutional" in Banat, there is no reason for us
resolutions requesting the DOJ Secretary to assign prosecutors to to declare otherwise. To maintain the previous role of other
assist the Comelec, as the latter emphasize the role of the DOJ as prosecuting arms of the government as mere deputies despite the
deputized agency in the conduct of preliminary investigation. She amendment would mean challenging Section 43 of RA 9369 anew
maintains that it is the Comelec and not the Joint Committee that has which has already been settled in Banat.
the primary, if not exclusive, authority to conduct preliminary
investigation of election cases.33
To be sure, the creation of a Joint Committee is not repugnant to the
34
concept of "concurrent jurisdiction" authorized by the amendatory law.
In their Consolidated Comment, respondents defend the creation of As we explained in our September 18, 2012 Decision:
the Joint Committee and argue that it does not undermine the
independence of the Comelec as a constitutional body because it is
still the Comelec that ultimately determines probable cause.35 As to the x x x The doctrine of concurrent jurisdiction means equal jurisdiction to
conduct of the preliminary investigation, respondents maintain that no deal with the same subject matter. Contrary to the contention of the
rights were violated as GMA was afforded the opportunity to defend petitioners, there is no prohibition on simultaneous exercise of power
herself, submit her counter-affidavit and other countervailing between two coordinate bodies. What is prohibited is the situation
evidence.36 They, thus, consider GMA’s claim of availing of the where one files a complaint against a respondent initially with one
office (such as the Comelec) for preliminary investigation which was Neither was GMA’s right violated when her motion for extension of time
immediately acted upon by said office and the re-filing of substantially within which to submit her counter-affidavit and countervailing
the same complaint with another office (such as the DOJ). The evidence was consequently denied. The Rules use the term "shall" in
subsequent assumption of jurisdiction by the second office over the requiring the respondent to submit counter-affidavit and other
cases filed will not be allowed. Indeed, it is a settled rule that the body countervailing evidence within ten (10) days from receipt of the
or agency that first takes cognizance of the complaint shall exercise subpoena. It is settled that the use of the word "shall" which is a word
jurisdiction to the exclusion of the others. of command, underscores the mandatory character of the rule.50 As in
any other rule, though, liberality in the application may be allowed
provided that the party is able to present a compelling justification for
xxxx
the non-observance of the mandatory rules. In the 2008 Revised
Manual for Prosecutors, investigating prosecutors allow or grant
None of these problems would likely arise in the present case. The motions or requests for extension of time to submit counter-affidavits
Comelec and the DOJ themselves agreed that they would exercise when the interest of justice demands that respondent be given
their concurrent jurisdiction jointly. Although the preliminary reasonable time or sufficient opportunity to engage the services of
investigation was conducted on the basis of two complaints – the initial counsel; examine voluminous records submitted in support of the
report of the Fact-Finding Team and the complaint of Senator Pimentel complaint or undertake research on novel, complicated or technical
– both complaints were filed with the Joint Committee. Consequently, questions or issues of law and facts of the case.51
the complaints were filed with and the preliminary investigation was
conducted by only one investigative body. Thus, we find no reason to
In this case, GMA claimed that she could not submit her
disallow the exercise of concurrent jurisdiction jointly by those given
counteraffidavit within the prescribed period because she needed to
such authority. This is especially true in this case given the magnitude
examine documents mentioned in Senator Pimentel’s complaint-
of the crimes allegedly committed by petitioners. The joint preliminary
affidavit. It appeared, however, that said documents were not
investigation also serves to maximize the resources and manpower of
submitted to the Joint Committee and the only supporting documents
both the Comelec and the DOJ for the prompt disposition of the
available were those attached to the Initial Report of the Fact-Finding
cases.44
Team. Admittedly, GMA was furnished those documents. Thus, at the
time she asked for the extension of time within which to file her
Notwithstanding the grant of concurrent jurisdiction, the Comelec and counter-affidavit, she very well knew that the documents she was
the DOJ nevertheless included a provision in the assailed Joint Order asking were not in the record of the case. Obviously, she was not
whereby the resolutions of the Joint Committee finding probable cause furnished those documents because they were not submitted to the
for election offenses shall still be approved by the Comelec in Joint Committee. Logically, she has no right to examine said
accordance with the Comelec Rules of Procedure. 45 With more reason, documents. We cannot, therefore, fault the Joint Committee in
therefore, that we cannot consider the creation of the Joint Committee consequently denying her motion for extension to file counter-affidavit
as an abdication of the Comelec’s independence enshrined in the 1987 as there was no compelling justification for the non-observance of the
Constitution. period she was earlier required to follow.

Finally, we focus on the validity of the preliminary investigation And as we held in the assailed decision:
conducted by the Joint Committee.
There might have been overzealousness on the part of the Joint
The procedure in conducting the preliminary investigation is governed Committee in terminating the investigation, endorsing the Joint
by Rule 112 of the Revised Rules on Criminal Procedure and Rule 34 Resolution to the Comelec for approval, and in filing the information in
of the Comelec Rules of Procedure. Under both Rules, 46 the court.
respondent shall submit his counter-affidavit and that of his witnesses
and other supporting documents relied upon for his defense, within ten
However, speed in the conduct of proceedings by a judicial or
(10) days from receipt of the subpoena, with the complaint and
quasijudicial officer cannot per se be instantly attributed to an
supporting affidavits and documents.47Also in both Rules, respondent
injudicious performance of functions. The orderly administration of
is given the right to examine evidence, but such right of examination is
justice remains the paramount consideration with particular regard to
limited only to the documents or evidence submitted by complainants
the peculiar circumstances of each case. To be sure, petitioners were
which she may not have been furnished and to copy them at her
given the opportunity to present countervailing evidence. Instead of
expense.48
complying with the Joint Committee’s directive, several motions were
filed but were denied by the Joint Committee. Consequently,
As to the alleged denial of GMA’s right to examine documents, we petitioners’ right to submit counter-affidavit and countervailing evidence
maintain that no right was violated in view of the limitation of such right was forfeited. Taking into account the constitutional right to speedy
as set forth above. We reiterate our explanation in the assailed disposition of cases and following the procedures set forth in the Rules
decision, to wit: on Criminal Procedure and the Comelec Rules of Procedure, the Joint
Committee finally reached its conclusion and referred the case to the
Comelec. The latter, in turn, performed its task and filed the
While it is true that Senator Pimentel referred to certain election information in court. Indeed, petitioners were given the opportunity to
documents which served as bases in the allegations of significant
be heard. They even actively participated in the proceedings and in
findings specific to the protested municipalities involved, there were no fact filed several motions before the Joint Committee. Consistent with
annexes or attachments to the complaint filed. As stated in the Joint the constitutional mandate of speedy disposition of cases,
Committee’s Order dated November 15, 2011 denying GMA’s
unnecessary delays should be avoided.52
Omnibus Motion Ad Cautelam, Senator Pimentel was ordered to
furnish petitioners with all the supporting evidence. However, Senator
Pimentel manifested that he was adopting all the affidavits attached to Finally, in our assailed decision, we already took judicial notice that not
the Fact-Finding Team’s Initial Report. Therefore, when GMA was only did GMA enter a plea of "not guilty," she also filed a Motion for
furnished with the documents attached to the Initial Report, she was Bail and after due hearing, it was granted. Apparently, she benefited
already granted the right to examine as guaranteed by the Comelec from the RTC Order giving her temporary liberty. In filing the motion
Rules of Procedure and the Rules on Criminal Procedure. Those were before the RTC and actively participating therein, she has chosen to
the only documents submitted by the complainants to the Committee. If seek judicial remedy before the RTC where the electoral sabotage
there are other documents that were referred to in Senator Pimentel’s case is pending instead of the executive remedy of going back to the
complaint but were not submitted to the Joint Committee, the latter Joint Committee for the submission of her counter-affidavit and
considered those documents unnecessary at that point (without countervailing evidence. Besides, as thoroughly discussed in the
foreclosing the relevance of other evidence that may later be assailed decision, the irregularity or even the absence of preliminary
presented during the trial) as the evidence submitted before it were investigation does not impair the validity of the information filed against
considered adequate to find probable cause against her. x x her.
x491âwphi1
WHEREFORE, premises considered, the Motions for Reconsideration
are DENIED for lack of merit.

SO ORDERED.
 EN BANC The COMELEC First Division found that, contrary to the declarations
that she made in her COC, petitioner is not a citizen of the Philippines
because of her failure to comply with the requirements of Republic Act
G.R. No. 207264 June 25, 2013
(R.A.) No. 9225 or the Citizenship Retention and Re-acquisition Act of
2003, namely: (1) to take an oath of allegiance to the Republic of the
REGINA ONGSIAKO REYES, Petitioner, Philippines; and (2) to make a personal and sworn renunciation of her
vs. American citizenship before any public officer authorized to administer
COMMISSION ON ELECTIONS and JOSEPH SOCORRO B. an oath. In addition, the COMELEC First Division ruled that she did not
TAN, Respondents. have the oneyear residency requirement under Section 6, Article VI of
the 1987 Constitution.13 Thus, she is ineligible to run for the position of
Representative for the lone district of Marinduque.
RESOLUTION

Not agreeing with the Resolution of the COMELEC First Division,

PEREZ, J.:
petitioner filed a Motion for Reconsideration14 on 8 April 2013 claiming
that she is a natural-born Filipino citizen and that she has not lost such
Before the Court is a Petition for Certiorari with Prayer for Temporary status by simply obtaining and using an American passport.
Restraining Order and/or Preliminary Injunction and/or Status Quo Additionally, petitioner surmised that the COMELEC First Division
Ante Order dated 7 June 2013 filed by petitioner Regina Ongsiako relied on the fact of her marriage to an American citizen in concluding
Reyes, assailing the Resolutions dated 27 March 2013 and 14 May that she is a naturalized American citizen. Petitioner averred, however,
2013 issued by public respondent Commission on Elections that such marriage only resulted into dual citizenship, thus there is no
(COMELEC) in SPA No. 13-053. The assailed Resolutions ordered the need for her to fulfill the twin requirements under R.A. No. 9225. Still,
cancellation of the Certificate of Candidacy of petitioner for the position petitioner attached an Affidavit of Renunciation of Foreign Citizenship
of Representative of the lone district of Marinduque. sworn to before a Notary Public on 24 September 2012. As to her
alleged lack of the one-year residency requirement prescribed by the
Constitution, she averred that, as she never became a naturalized
On 31 October 2012, respondent Joseph Socorro Tan, a registered citizen, she never lost her domicile of origin, which is Boac,
voter and resident of the Municipality of Torrijos, Marinduque, filed Marinduque.
before the COMELEC an Amended Petition to Deny Due Course or to
Cancel the Certificate of Candidacy (COC) of petitioner on the ground
that it contained material misrepresentations, specifically: (1) that she On 14 May 2013, the COMELEC En Banc, promulgated a
is single when she is married to Congressman Herminaldo I. Resolution15 denying petitioner’s Motion for Reconsideration for lack of
Mandanas of Batangas;1 (2) that she is a resident of Brgy. Lupac, merit.
Boac, Marinduque when she is a resident of Bauan, Batangas which is
the residence of her husband, and at the same time, when she is also Four days thereafter or on 18 May 2013, petitioner was proclaimed
a resident of 135 J.P. Rizal, Brgy. Milagrosa, Quezon City as admitted winner of the 13 May 2013 Elections.
in the Directory of Congressional Spouses of the House of
Representatives;2 (3) that her date of birth is 3 July 1964 when other
documents show that her birthdate is either 8 July 1959 or 3 July On 5 June 2013, the COMELEC En Banc issued a Certificate of
1960;3 (4) that she is not a permanent resident of another country Finality16 declaring the 14 May 2013 Resolution of the COMELEC En
when she is a permanent resident or an immigrant4 of the United Banc final and executory, considering that more than twenty-one (21)
States of America;5 and (5) that she is a Filipino citizen when she is, in days have elapsed from the date of promulgation with no order issued
fact, an American citizen.6 by this Court restraining its execution.17

In her Answer, petitioner countered that, while she is publicly known to On same day, petitioner took her oath of office18 before Feliciano R.
be the wife of Congressman Herminaldo I. Mandanas (Congressman Belmonte Jr., Speaker of the House of Representatives.
Mandanas), there is no valid and binding marriage between them.
According to petitioner, although her marriage with Congressman
Petitioner has yet to assume office, the term of which officially starts at
Mandanas was solemnized in a religious rite, it did not comply with
noon of 30 June 2013.
certain formal requirements prescribed by the Family Code, rendering
it void ab initio.7 Consequently, petitioner argues that as she is not
duty-bound to live with Congressman Mandanas, then his residence In the present Petition for Certiorari with Prayer for Temporary
cannot be attributed to her.8 As to her date of birth, the Certificate of Restraining Order and/or Preliminary Injunction and/or Status Quo
Live Birth issued by the National Statistics Office shows that it was on Ante Order, petitioner raises the following issues:19
3 July 1964.9 Lastly, petitioner notes that the allegation that she is a
permanent resident and/or a citizen of the United States of America is
31) Whether or not Respondent Comelec is without
not supported by evidence.10
jurisdiction over Petitioner who is a duly proclaimed winner
and who has already taken her oath of office for the position
During the course of the proceedings, on 8 February 2013, respondent of Member of the House of Representatives for the lone
filed a "Manifestation with Motion to Admit Newly Discovered Evidence congressional district of Marinduque.
and Amended List of Exhibits"11 consisting of, among others: (1) a
copy of an article published on the internet on 8 January 2013 entitled
32) Whether or not Respondent Comelec committed grave
"Seeking and Finding the Truth about Regina O. Reyes" with an
abuse of discretion amounting to lack or excess of
Affidavit of Identification and Authenticity of Document executed by its
jurisdiction when it took cognizance of Respondent Tan’s
author Eliseo J. Obligacion, which provides a database record of the
alleged "newly-discovered evidence" without the same
Bureau of Immigration indicating that petitioner is an American citizen
having been testified on and offered and admitted in
and a holder of a U.S. passport; (2) a Certification of Travel Records of
evidence which became the basis for its Resolution of the
petitioner, issued by Simeon Sanchez, Acting Chief, Verification and
case without giving the petitioner the opportunity to question
Certification Unit of the Bureau of Immigration which indicates that
and present controverting evidence, in violation of
petitioner used a U.S. Passport in her various travels abroad.
Petitioner’s right to due process of law.

On 27 March 2013, the COMELEC First Division issued a

33) Whether or not Respondent Comelec committed grave
Resolution12 cancelling petitioner’s COC, to wit:
abuse of discretion amounting to lack or excess of
jurisdiction when it declared that Petitioner is not a Filipino
WHEREFORE, in view of the foregoing, the instant Petition is citizen and did not meet the residency requirement for the
GRANTED. Accordingly, the Certificate of Candidacy of respondent position of Member of the House of Representatives.
REGINA ONGSIAKO REYES is hereby CANCELLED.
 34) Whether or not Respondent Commission on Elections The Court has invariably held that once a winning candidate has been
committed grave abuse of discretion amounting to lack or proclaimed, taken his oath, and assumed office as a Member of the
excess of jurisdiction when, by enforcing the provisions of House of Representatives, the COMELEC’s jurisdiction over election
Republic Act No. 9225, it imposed additional qualifications to contests relating to his election, returns, and qualifications ends, and
the qualifications of a Member of the House of the HRET’s own jurisdiction begins. (Emphasis supplied.)
Representatives as enumerated in Section 6 of Article VI of
the 1987 Constitution of the Philippines.
This pronouncement was reiterated in the case of Limkaichong v.
COMELEC,25 wherein the Court, referring to the jurisdiction of the
The petition must fail. COMELEC vis-a-vis the HRET, held that:

At the outset, it is observed that the issue of jurisdiction of respondent The Court has invariably held that once a winning candidate has been
COMELEC vis-a-vis that of House of Representatives Electoral proclaimed, taken his oath, and assumed office as a Member of the
Tribunal (HRET) appears to be a non-issue. Petitioner is taking an House of Representatives, the COMELEC's jurisdiction over election
inconsistent, if not confusing, stance for while she seeks remedy contests relating to his election, returns, and qualifications ends, and
before this Court, she is asserting that it is the HRET which has the HRET's own jurisdiction begins. (Emphasis supplied.)
jurisdiction over her. Thus, she posits that the issue on her eligibility
and qualifications to be a Member of the House of Representatives is
This was again affirmed in Gonzalez v. COMELEC,26 to wit:
best discussed in another tribunal of competent jurisdiction. It appears
then that petitioner’s recourse to this Court was made only in an
attempt to enjoin the COMELEC from implementing its final and After proclamation, taking of oath and assumption of office by
executory judgment in SPA No. 13-053. Gonzalez, jurisdiction over the matter of his qualifications, as well as
questions regarding the conduct of election and contested returns –
were transferred to the HRET as the constitutional body created to
Nevertheless, we pay due regard to the petition, and consider each of
pass upon the same. (Emphasis supplied.)
the issues raised by petitioner. The need to do so, and at once, was
highlighted during the discussion En Banc on 25 June 2013 where and
when it was emphasized that the term of office of the Members of the From the foregoing, it is then clear that to be considered a Member of
House of Representatives begins on the thirtieth day of June next the House of Representatives, there must be a concurrence of the
following their election. following requisites: (1) a valid proclamation, (2) a proper oath, and (3)
assumption of office.
According to petitioner, the COMELEC was ousted of its jurisdiction
when she was duly proclaimed20 because pursuant to Section 17, Indeed, in some cases, this Court has made the pronouncement that
Article VI of the 1987 Constitution, the HRET has the exclusive once a proclamation has been made, COMELEC’s jurisdiction is
jurisdiction to be the "sole judge of all contests relating to the election, already lost and, thus, its jurisdiction over contests relating to elections,
returns and qualifications" of the Members of the House of returns, and qualifications ends, and the HRET’s own jurisdiction
Representatives. begins. However, it must be noted that in these cases, the doctrinal
pronouncement was made in the context of a proclaimed candidate
who had not only taken an oath of office, but who had also assumed
Contrary to petitioner’s claim, however, the COMELEC retains
office.
jurisdiction for the following reasons:

For instance, in the case of Dimaporo v. COMELEC,27 the Court

First, the HRET does not acquire jurisdiction over the issue of
upheld the jurisdiction of the HRET against that of the COMELEC only
petitioner’s qualifications, as well as over the assailed COMELEC
after the candidate had been proclaimed, taken his oath of office
Resolutions, unless a petition is duly filed with said tribunal. Petitioner
before the Speaker of the House, and assumed the duties of a
has not averred that she has filed such action.
Congressman on 26 September 2007, or after the start of his term on
30 June 2007, to wit:
Second, the jurisdiction of the HRET begins only after the candidate is
considered a Member of the House of Representatives, as stated in
On October 8, 2007, private respondent Belmonte filed his comment in
Section 17, Article VI of the 1987 Constitution:
which he brought to Our attention that on September 26, 2007, even
before the issuance of the status quo ante order of the Court, he had
Section 17. The Senate and the House of Representatives shall each already been proclaimed by the PBOC as the duly elected Member of
have an Electoral Tribunal which shall be the sole judge of all contests the House of Representatives of the First Congressional District of
relating to the election, returns, and qualifications of their respective Lanao del Norte. On that very same day, he had taken his oath before
Members. x x x Speaker of the House Jose de Venecia, Jr. and assumed his duties
accordingly.
As held in Marcos v. COMELEC,21 the HRET does not have jurisdiction
over a candidate who is not a member of the House of In light of this development, jurisdiction over this case has already
Representatives, to wit: been transferred to the House of Representatives Electoral Tribunal
(HRET). (Emphasis supplied.)
As to the House of Representatives Electoral Tribunal’s supposed
assumption of jurisdiction over the issue of petitioner’s qualifications Apparently, the earlier cases were decided after the questioned
after the May 8, 1995 elections, suffice it to say that HRET’s candidate had already assumed office, and hence, was already
jurisdiction as the sole judge of all contests relating to the elections, considered a Member of the House of Representatives, unlike in the
returns and qualifications of members of Congress begins only after a present case.
candidate has become a member of the House of Representatives.
Petitioner not being a member of the House of Representatives, it is
Here, the petitioner cannot be considered a Member of the House of
obvious that the HRET at this point has no jurisdiction over the
Representatives because, primarily, she has not yet assumed office.
question. (Emphasis supplied.)
To repeat what has earlier been said, the term of office of a Member of
the House of Representatives begins only "at noon on the thirtieth day
The next inquiry, then, is when is a candidate considered a Member of of June next following their election."28 Thus, until such time, the
the House of Representatives? COMELEC retains jurisdiction.

In Vinzons-Chato v. COMELEC,22 citing Aggabao v. COMELEC23 and In her attempt to comply with the second requirement, petitioner
Guerrero v. COMELEC,24 the Court ruled that: attached a purported Oath Of Office taken before Hon. Feliciano
Belmonte Jr. on 5 June 2013. However, this is not the oath of office Procedure "shall be liberally construed in order x xx to achieve just,
which confers membership to the House of Representatives. 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
Section 6, Rule II (Membership) of the Rules of the House of
certificate of candidacy are summary in nature, then the "newly
Representatives provides:
discovered evidence" was properly admitted by respondent
COMELEC.
Section 6. Oath or Affirmation of Members. – Members shall take their
oath or affirmation either collectively or individually before the Speaker
Furthermore, there was no denial of due process in the case at bar as
in open session.
petitioner was given every opportunity to argue her case before the
COMELEC. From 10 October 2012 when Tan’s petition was filed up to
Consequently, before there is a valid or official taking of the oath it 27 March 2013 when the First Division rendered its resolution,
must be made (1) before the Speaker of the House of Representatives, petitioner had a period of five (5) months to adduce evidence.
and (2) in open session. Here, although she made the oath before Unfortunately, she did not avail herself of the opportunity given her.
Speaker Belmonte, there is no indication that it was made during
plenary or in open session and, thus, it remains unclear whether the
Also, in administrative proceedings, procedural due process only
required oath of office was indeed complied with.
requires that the party be given the opportunity or right to be heard. As
held in the case of Sahali v. COMELEC:31
More importantly, we cannot disregard a fact basic in this controversy
– that before the proclamation of petitioner on 18 May 2013, the
The petitioners should be reminded that due process does not
COMELEC En Banc had already finally disposed of the issue of
necessarily mean or require a hearing, but simply an opportunity or
petitioner’s lack of Filipino citizenship and residency via its Resolution
right to be heard. One may be heard, not solely by verbal presentation
dated 14 May 2013. After 14 May 2013, there was, before the
but also, and perhaps many times more creditably and predictable than
COMELEC, no longer any pending case on petitioner’s qualifications to
oral argument, through pleadings. In administrative proceedings
run for the position of Member of the House of Representative. We will
moreover, technical rules of procedure and evidence are not strictly
inexcusably disregard this fact if we accept the argument of the
applied; administrative process cannot be fully equated with due
petitioner that the COMELEC was ousted of jurisdiction when she was
process in its strict judicial sense. Indeed, deprivation of due process
proclaimed, which was four days after the COMELEC En Banc
cannot be successfully invoked where a party was given the chance to
decision. The Board of Canvasser which proclaimed petitioner cannot
be heard on his motion for reconsideration. (Emphasis supplied)
by such act be allowed to render nugatory a decision of the COMELEC
En Banc which affirmed a decision of the COMELEC First Division.
As to the ruling that petitioner is ineligible to run for office on the
ground of citizenship, the COMELEC First Division, discoursed as
Indeed, the assailed Resolution of the COMELEC First Division which
follows:
was promulgated on 27 March 2013, and the assailed Resolution of
the COMELEC En Banc which was promulgated on 14 May 2013,
became final and executory on 19 May 2013 based on Section 3, Rule "x x x for respondent to reacquire her Filipino citizenship and become
37 of the COMELEC Rules of Procedure which provides: 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
Section 3. Decisions Final after five days. Decisions in pre-
Consulate in the USA; and (2) make a personal and sworn
proclamation cases and petitions to deny due course to or cancel
renunciation of her American citizenship before any public officer
certificates of candidacy, to declare nuisance candidate or to disqualify
authorized to administer an oath.
a candidate, and to postpone or suspend elections shall become final
and executory after the lapse of five (5) days from their promulgation
unless restrained by the Supreme Court. In the case at bar, there is 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
To prevent the assailed Resolution dated 14 May 2013 from becoming
citizenship, contending that it is petitioner’s burden to present a case.
final and executory, petitioner should have availed herself of Section 1,
She, however, specifically denied that she has become either a
Rule 3729 of the COMELEC Rules of Procedure or Rule 6430 of the
permanent resident or naturalized citizen of the USA.
Rules of Court by filing a petition before this Court within the 5-day
period, but she failed to do so. She would file the present last hour
petition on 10 June 2013. Hence, on 5 June 2013, respondent Due to petitioner’s submission of newly-discovered evidence thru a
COMELEC rightly issued a Certificate of Finality. 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
As to the issue of whether petitioner failed to prove her Filipino
substantiate his allegations. The burden now shifts to respondent to
citizenship, as well as her one-year residency in Marinduque, suffice it
present substantial evidence to prove otherwise. This, the respondent
to say that the COMELEC committed no grave abuse of discretion in
utterly failed to do, leading to the conclusion inevitable that respondent
finding her ineligible for the position of Member of the House of
falsely misrepresented in her COC that she is a natural-born Filipino
Representatives.
citizen. Unless and until she can establish that she had availed of the
privileges of RA 9225 by becoming a dual Filipino-American citizen,
Petitioner alleges that the COMELEC gravely abused its discretion and thereafter, made a valid sworn renunciation of her American
when it took cognizance of "newly-discovered evidence" without the citizenship, she remains to be an American citizen and is, therefore,
same having been testified on and offered and admitted in evidence. ineligible to run for and hold any elective public office in the
She assails the admission of the blog article of Eli Obligacion as Philippines."32(Emphasis supplied.)
hearsay and the photocopy of the Certification from the Bureau of
Immigration. She likewise contends that there was a violation of her
Let us look into the events that led to this petition: In moving for the
right to due process of law because she was not given the opportunity
cancellation of petitioner’s COC, respondent submitted records of the
to question and present controverting evidence.
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
Her contentions are incorrect. 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 reacquired such status in accordance with the
It must be emphasized that the COMELEC is not bound to strictly provisions of R.A. No. 9225. Aside from the bare allegation that she is
adhere to the technical rules of procedure in the presentation of
a natural-born citizen, however, petitioner submitted no proof to
evidence. Under Section 2 of Rule I, the COMELEC Rules of
support such contention. Neither did she submit any proof as to the The only proof presented by petitioner to show that she has met the
inapplicability of R.A. No. 9225 to her. one-year residency requirement of the law and never abandoned her
domicile of origin in Boac, Marinduque is her claim that she served as
Provincial Administrator of the province from January 18, 2011 to July
Notably, in her Motion for Reconsideration before the COMELEC En
13, 2011. But such fact alone is not sufficient to prove her one-year
Banc, petitioner admitted that she is a holder of a US passport, but she
residency. For, petitioner has never regained her domicile in
averred that she is only a dual Filipino-American citizen, thus the
Marinduque as she remains to be an American citizen. No amount of
requirements of R.A. No. 9225 do not apply to her.33 Still, attached to
her stay in the said locality can substitute the fact that she has not
the said motion is an Affidavit of Renunciation of Foreign Citizenship
abandoned her domicile of choice in the USA."37 (Emphasis supplied.)
dated 24 September 2012.34 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."35 We cannot, however, All in all, considering that the petition for denial and cancellation of the
subscribe to petitioner’s explanation. If petitioner executed said COC is summary in nature, the COMELEC is given much discretion in
Affidavit "if only to comply with the rules," then it is an admission that the evaluation and admission of evidence pursuant to its principal
R.A. No. 9225 applies to her. Petitioner cannot claim that she executed objective of determining of whether or not the COC should be
it to address the observations by the COMELEC as the assailed cancelled. We held in Mastura v. COMELEC:38
Resolutions were promulgated only in 2013, while the Affidavit was
executed in September 2012.
The rule that factual findings of administrative bodies will not be
disturbed by courts of justice except when there is absolutely no
Moreover, in the present petition, petitioner added a footnote to her evidence or no substantial evidence in support of such findings should
oath of office as Provincial Administrator, to this effect: "This does not be applied with greater force when it concerns the COMELEC, as the
mean that Petitioner did not, prior to her taking her oath of office as framers of the Constitution intended to place the COMELEC — created
Provincial Administrator, take her oath of allegiance for purposes of and explicitly made independent by the Constitution itself — on a level
reacquisition of natural-born Filipino status, which she reserves to higher than statutory administrative organs. The COMELEC has broad
present in the proper proceeding. The reference to the taking of oath of powers to ascertain the true results of the election by means available
office is in order to make reference to what is already part of the to it. For the attainment of that end, it is not strictly bound by the rules
records and evidence in the present case and to avoid injecting into of evidence.1âwphi1
the records evidence on matters of fact that was not previously passed
upon by Respondent COMELEC."36 This statement raises a lot of
Time and again, We emphasize that the "grave abuse of discretion"
questions – Did petitioner execute an oath of allegiance for re-
which warrants this Court’s exercise of certiorari jurisdiction has a
acquisition of natural-born Filipino status? If she did, why did she not
welldefined meaning. Guidance is found in Beluso v. Commission on
present it at the earliest opportunity before the COMELEC? And is this
Elections39 where the Court held:
an admission that she has indeed lost her natural-born Filipino status?

x x x A petition for certiorari will prosper only if grave abuse of

To cover-up her apparent lack of an oath of allegiance as required by
discretion is alleged and proved to exist. "Grave abuse of discretion,"
R.A. No. 9225, petitioner contends that, since she took her oath of
under Rule 65, has a specific meaning. It is the arbitrary or despotic
allegiance in connection with her appointment as Provincial
exercise of power due to passion, prejudice or personal hostility; or the
Administrator of Marinduque, she is deemed to have reacquired her
whimsical, arbitrary, or capricious exercise of power that amounts to an
status as a natural-born Filipino citizen.
evasion or refusal to perform a positive duty enjoined by law or to act
at all in contemplation of law. For an act to be struck down as having
This contention is misplaced. For one, this issue is being presented for been done with grave abuse of discretion, the abuse of discretion must
the first time before this Court, as it was never raised before the be patent and gross. (Emphasis supplied.)
COMELEC. For another, said oath of allegiance cannot be considered
compliance with Sec. 3 of R.A. No. 9225 as certain requirements have
Here, this Court finds that petitioner failed to adequately and
to be met as prescribed by Memorandum Circular No. AFF-04-01,
substantially show that grave abuse of discretion exists.
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 Lastly, anent the proposition of petitioner that the act of the COMELEC
Bureau of Immigration. Thus, petitioner’s oath of office as Provincial in enforcing the provisions of R.A. No. 9225, insofar as it adds to the
Administrator cannot be considered as the oath of allegiance in qualifications of Members of the House of Representatives other than
compliance with R.A. No. 9225. those enumerated in the Constitution, is unconstitutional, We find the
same meritless.
These circumstances, taken together, show that a doubt was clearly
cast on petitioner’s citizenship. Petitioner, however, failed to clear such The COMELEC did not impose additional qualifications on candidates
doubt. for the House of Representatives who have acquired foreign
citizenship. It merely applied the qualifications prescribed by Section 6,
Article VI of the 1987 Constitution that the candidate must be a natural-
As to the issue of residency, proceeding from the finding that petitioner
born citizen of the Philippines and must have one-year residency prior
has lost her natural-born status, we quote with approval the ruling of
to the date of elections. Such being the case, the COMELEC did not
the COMELEC First Division that petitioner cannot be considered a
err when it inquired into the compliance by petitioner of Sections 3 and
resident of Marinduque:
5 of R.A. No. 9225 to determine if she reacquired her status as a
natural-born Filipino citizen. It simply applied the constitutional
"Thus, a Filipino citizen who becomes naturalized elsewhere effectively provision and nothing more.
abandons his domicile of origin. Upon re-acquisition of Filipino
citizenship pursuant to RA 9225, he must still show that he chose to
IN VIEW OF THE FOREGOING, the instant petition is DISMISSED,
establish his domicile in the Philippines through positive acts, and the
finding no grave abuse of discretion on the part of the Commission on
period of his residency shall be counted from the time he made it his
Elections. The 14 May 2013 Resolution of the COMELEC En Bane
domicile of choice.
affirming the 27 March 2013 Resolution of the COMELEC First Division
is upheld.
In this case, there is no showing whatsoever that petitioner had already
re-acquired her Filipino citizenship pursuant to RA 9225 so as to
SO ORDERED.
conclude that she has regained her domicile in the Philippines. There
being no proof that petitioner had renounced her American citizenship,
it follows that she has not abandoned her domicile of choice in the
USA.
 EN BANC 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
G.R. No. 207264 October 22, 2013
the decision o the COMELEC First Division that
CANCELLED petitioner's certificate of candidacy.
REGINA ONGSIAKO REYES, Petitioner,
vs.
2. On 18 May 2013, there was already a standing and
COMMISSION ON ELECTIONS and JOSEPH SOCORRO B.
unquestioned cancellation of petitioner's certificate o
TAN, Respondents.
candidacy which cancellation is a definite bar to her
proclamation. On 18 May 2003, that bar has not been
RESOLUTION removed, there was not even any attempt to remove it.

PEREZ, J.: 3. The COMELEC Rules indicate the manner by which the
impediment to proclamation may be removed. Rule 18,
Section 13 (b) provides:
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 "(b) In Special Actions and Special Cases a decision or
the part of the Commission on Elections. The 14 May 2013 Resolution resolution of the Commission En Bane shall become final
of the COMELEC En Banc affirming the 27 March 2013 Resolution of and executory after five (5) days from its promulgation
the COMELEC First Division is upheld." unless restrained by the Supreme Court."

In her Motion for Reconsideration, petitioner summarizes her Within that five (5 days, petitioner had the opportunity to go
submission, thus: 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
"81. Stated differently, the Petitioner x x x is not asking the Honorable
Court may remove the barrier to, and thus allow, the
Court to make a determination as regards her qualifications, she is proclamation of petitioner. That did not happen. Petitioner
merely asking the Honorable Court to affirm the jurisdiction of the did not move to have it happen.
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 It is error to argue that the five days should pass before the
otherwise required by the constitution."1 (as originally underscored) 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
The first part of the summary refers to the issue raised in the petition, because there was a final finding against her by the
which is: COMELEC.3 She needed a restraining order from the
Supreme Court to avoid the final finding. After the five days
"31. Whether or not Respondent Comelec is without jurisdiction over when the decision adverse to her became executory, the
Petitioner who is duly proclaimed winner and who has already taken need for Supreme Court intervention became even more
her oath of office for the position of Member of the House of imperative. She would have to base her recourse on the
Representatives for the lone congressional district of Marinduque." 2 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
Tied up and neatened the propositions on the COMELEC-or-HRET have to be based on irreparable injury and demonstrated
jurisdiction go thus: petitioner is a duly proclaimed winner and having possibility of grave abuse of discretion on the part of the
taken her oath of office as member of the House of Representatives, COMELEC. In this case, before and after the 18 May 2013
all questions regarding her qualifications are outside the jurisdiction of proclamation, there was not even an attempt at the legal
the COMELEC and are within the HRET exclusive jurisdiction. remedy, clearly available to her, to permit her proclamation.
What petitioner did was to "take the law into her hands" and
The averred proclamation is the critical pointer to the correctness of secure a proclamation in complete disregard of the
petitioner's submission. The crucial question is whether or not COMELEC En Bane decision that was final on 14 May 2013
petitioner could be proclaimed on 18 May 2013. Differently stated, was and final and executory five days thereafter.
there basis for the proclamation of petitioner on 18 May 2013?
4. There is a reason why no mention about notice was made
Dates and events indicate that there was no basis for the proclamation in Section 13(b) of Rule 18 in the provision that the
of petitioner on 18 May 2013. Without the proclamation, the petitioner's COMELEC En Bane or decision "SHALL become FINAL
oath of office is likewise baseless, and without a precedent oath of AND EXECUTORY after five days from its promulgation
office, there can be no valid and effective assumption of office. 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
We have clearly stated in our Resolution of 5 June 2013 that: because in Section 5 of Rule 18 it is stated:

"More importantly, we cannot disregard a fact basic in this controversy Section 5. Promulgation. -The promulgation of a decision or resolutions
– that before the proclamation of petitioner on 18 May 2013, the of the Commission or a division shall be made on a date previously
COMELEC En Banc had already finally disposed of the issue of fixed, of which notice shall be served in advance upon the parties or
petitioner's lack of Filipino citizenship and residency via its Resolution their attorneys personally or by registered mail or by telegram.
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 5. Apart from the presumed notice of the COMELEC En
As the point has obviously been missed by the petitioner who Bane decision on the very date of its promulgation on 14
continues to argue on the basis of her due proclamation, the instant May 2013, petitioner admitted in her petition before us that
motion gives us the opportunity to highlight the undeniable fact we she in fact received a copy of the decision on 16 May 20
here repeat that the proclamation which petitioner secured on 18 May 13.4 On that date, she had absolutely no reason why she
2013 was WITHOUT ANY BASIS. 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 who are members of the Philippine Bar to hear the
Rule stating that her proclamation at that point MUST be on case and to receive evidence. COMELEC Rule 17
permission by the Supreme Court is even indicative of bad further provides in Section 3 that when the
faith on the part of the petitioner. proceedings are authorized to be summary, in lieu
of oral testimonies, the parties may, after due
notice, be required to submit their position paper
6. The indicant is magnified by the fact that petitioner would
together with affidavits, counter-affidavits and
use her tainted proclamation as the very reason to support
other documentary evidence; x x x and that this
her argument that she could no longer be reached by the
provision shall likewise apply to cases where the
jurisdiction of the COMELEC; and that it is the HRET that
hearing and reception of evidence are delegated
has exclusive jurisdiction over the issue of her qualifications
by the Commission or the Division to any of its
for office.
officials x x x.

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

b) The special and civil action of Certiorari is
the conclusion at which she directs, as well as in her
defined in the Rules of Court thus:
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 When any tribunal, board or officer exercising judicial or quasi-judicial
pre-empts any Supreme Court action on the COMELEC functions has acted without or in excess of its or his jurisdiction, or with
decision. In other words, petitioner repudiates by her grave abuse of discretion amounting to lack or excess of jurisdiction,
proclamation all administrative and judicial actions thereon, and there is no appeal, or any plain, speedy, and adequate remedy in
past and present. And by her proclamation, she claims as the ordinary course of law, a person aggrieved thereby may file a
acquired the congressional seat that she sought to be a verified petition in the proper court, alleging the facts with certainty and
candidate for. As already shown, the reasons that lead to the praying that judgment be rendered annulling or modifying the
impermissibility of the objective are clear. She cannot sit as proceedings of such tribunal, board or officer, and granting such
Member of the House of Representatives by virtue of a incidental reliefs as law and justice may require.
baseless proclamation knowingly taken, with knowledge of
the existing legal impediment.
The accepted definition of grave abuse of discretion is: a capricious
and whimsical exercise of judgment so patent and gross as to amount
8. Petitioner, therefore, is in error when she posits that at to an evasion of a positive duty or a virtual refusal to perform a duty
present it is the HRET which has exclusive jurisdiction over enjoined by law, as where the power is exercised in an arbitrary and
her qualifications as a Member of the House of despotic manner because of passion or hostility.6
Representatives. That the HRET is the sole judge of all
contests relating to the election, returns and qualifications of
It is the category of the special action below providing the procedural
the Members of the House of Representatives is a written
leeway in the exercise of the COMELEC summary jurisdiction over the
constitutional provision. It is, however unavailable to
case, in conjunction with the limits of the Supreme Court's authority
petitioner because she is NOT a Member of the House at
over the FINAL COMELEC ruling that is brought before it, that defines
present. The COMELEC never ordered her proclamation as
the way petitioner's submission before the Court should be
the rightful winner in the election for such
adjudicated. Thus further explained, the disposition of 25 June 2013 is
membership.5 Indeed, the action for cancellation of
here repeated for affirmation:
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 Petitioner alleges that the COMELEC gravely abused its discretion
completely and fully litigated in the COMELEC and was when it took cognizance of "newly-discovered evidence" without the
finally decided by the COMELEC. On and after 14 May same having been testified on and offered and admitted in evidence.
2013, there was nothing left for the COMELEC to do to She assails the admission of the blog article of Eli Obligacion as
decide the case. The decision sealed the proceedings in the hearsay and the photocopy of the Certification from the Bureau of
COMELEC regarding petitioner's ineligibility as a candidate Immigration. She likewise contends that there was a violation of her
for Representative of Marinduque. The decision erected the right to due process of law because she was not given the opportunity
bar to petitioner's proclamation. The bar remained when no to question and present controverting evidence.
restraining order was obtained by petitioner from the
Supreme Court within five days from 14 May 2013.
Her contentions are incorrect.

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

June 2013 questioning the COMELEC First Division ruling It must be emphasized that the COMELEC is not bound to strictly
adhere to the technical rules of procedure in the presentation of
and the 14 May 2013 COMELEC En Bane decision, her
baseless proclamation on 18 May 2013 did not by that fact of evidence. Under Section 2 of Rule I the COMELEC Rules of Procedure
promulgation alone become valid and legal. A decision shall be liberally construed in order x x x to achieve just, expeditious
and inexpensive determination and disposition of every action and
favorable to her by the Supreme Court regarding the
decision of the COMELEC En Bane on her certificate of proceeding brought before the Commission. In view of the fact that the
candidacy was indispensably needed, not to legalize her proceedings in a petition to deny due course or to cancel certificate of
candidacy are summary in nature, then the newly discovered evidence
proclamation on 18 May 2013 but to authorize a
proclamation with the Supreme Court decision as basis. was properly admitted by respondent COMELEC.

Furthermore, there was no denial of due process in the case at bar as

10. The recourse taken on 25 June 2013 in the form of an
original and special civil action for a writ of Certiorari through petitioner was given every opportunity to argue her case before the
Rule 64 of the Rules of Court is circumscribed by set rules COMELEC. From 10 October 2012 when Tan's petition was filed up to
27 March 2013 when the First Division rendered its resolution,
and principles.
petitioner had a period of five (5) months to adduce evidence.
Unfortunately, she did not avail herself of the opportunity given her.
a) The special action before the COMELEC which
was a Petition to Cancel Certificate of Candidacy
was a SUMMARY PROCEEDING or one heard Also, in administrative proceedings, procedural due process only
summarily. The nature of the proceedings is best requires that the party be given the opportunity or right to be heard. As
held in the case of Sahali v. COMELEC:
indicated by the COMELEC Rule on Special
Actions, Rule 23, Section 4 of which states that
the Commission may designate any of its officials
The petitioners should be reminded that due process does not Provincial Administrator, take her oath of allegiance for purposes of re-
necessarily mean or require a hearing, but simply an opportunity or acquisition of natural-born Filipino status, which she reserves to
right to be heard. One may be heard, not solely by verbal presentation present in the proper proceeding. The reference to the taking of oath of
but also, and perhaps many times more creditably and predictable than office is in order to make reference to what is already part of the
oral argument, through pleadings. In administrative proceedings records and evidence in the present case and to avoid injecting into
moreover, technical rules of procedure and evidence are not strictly the records evidence on matters of fact that was not previously passed
applied; administrative process cannot be fully equated with due upon by Respondent COMELEC. This statement raises a lot of
process in its strict judicial sense. Indeed, deprivation of due process questions -Did petitioner execute an oath of allegiance for re-
cannot be successfully invoked where a party was given the chance to acquisition of natural-born Filipino status? If she did, why did she not
be he rd on his motion for reconsideration. (Emphasis supplied) present it at the earliest opportunity before the COMELEC? And is this
an admission that she has indeed lost her natural-born Filipino status?
As to the ruling that petitioner s ineligible to run for office on the ground
of citizenship, the COMELEC First Division, discoursed as follows: 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
"x x x for respondent to reacquire her Filipino citizenship and become
Administrator of Marinduque, she is deemed to have reacquired her
eligible for public office the law requires that she must have
status as a natural-born Filipino citizen.
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 This contention is misplaced. For one, this issue is being presented for
renunciation of her American citizenship before any public officer the first time before this Court, as it was never raised before the
authorized to administer an oath. 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,
In the case at bar, there s no showing that respondent complied with
otherwise known as the Rules Governing Philippine Citizenship under
the aforesaid requirements. Early on in the proceeding, respondent
R.A. No. 9225 and Memorandum Circular No. AFF-05-002 (Revised
hammered on petitioner's lack of proof regarding her American
Rules) and Administrative Order No. 91, Series of 2004 issued by the
citizenship, contending that it is petitioner's burden to present a case.
Bureau of Immigration. Thus, petitioner s oath of office as Provincial
She, however, specifically denied that she has become either a
Administrator cannot be considered as the oath of allegiance in
permanent resident or naturalized citizen of the USA.
compliance with R.A. No. 9225.

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

These circumstances, taken together, show that a doubt was clearly
Manifestation dated February 7, 2013, however, establishing the fact
cast on petitioner s citizenship. Petitioner, however, failed to clear such
that respondent is a holder of an American passport which she
doubt.7
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 11. It may need pointing out that there is no conflict between
failed to do, leading to the conclusion inevitable that respondent falsely the COMELEC and the HRET insofar as the petitioner s
misrepresented in her COC that she is a natural-born Filipino citizen. being a Representative of Marinduque is concerned. The
Unless and until she can establish that she had availed of the COMELEC covers the matter of petitioner s certificate of
privileges of RA 9225 by becoming a dual Filipino-American citizen, candidacy, and its due course or its cancellation, which are
and thereafter, made a valid sworn renunciation of her American the pivotal conclusions that determines who can be legally
citizenship, she remains to be an American citizen and is, therefore, proclaimed. The matter can go to the Supreme Court but not
ineligible to run for and hold any elective public office in the as a continuation of the proceedings in the COMELEC,
Philippines." (Emphasis in the original.) 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
Let us look into the events that led to this petition: In moving for the
the COMELEC En Bane decision, there is no longer any
cancellation of petitioner's COC, respondent submitted records of the
certificate cancellation matter than can go to the HRET. In
Bureau of Immigration showing that petitioner is a holder of a US
that sense, the HRET s constitutional authority opens, over
passport, and that her status is that of a balikbayan. At this point, the
the qualification of its MEMBER, who becomes so only upon
burden of proof shifted to petitioner, imposing upon her the duty to
a duly and legally based proclamation, the first and
prove that she is a natural-born Filipino citizen and has not lost the
unavoidable step towards such membership. The HRET
same, or that she has re-acquired such status in accordance with the
jurisdiction over the qualification of the Member of the House
provisions of R.A. No. 9225. Aside from the bare allegation that she is
of Representatives is original and exclusive, and as such,
a natural-born citizen, however, petitioner submitted no proof to
proceeds de novo unhampered by the proceedings in the
support such contention. Neither did she submit any proof as to the
COMELEC which, as just stated has been terminated. The
inapplicability of R.A. No. 9225 to her.
HRET proceedings is a regular, not summary, proceeding. It
will determine who should be the Member of the House. It
Notably, in her Motion for Reconsideration before the COMELEC En must be made clear though, at the risk of repetitiveness, that
Bane, petitioner admitted that she is a holder of a US passport, but she no hiatus occurs in the representation of Marinduque in the
averred that she is only a dual Filipino-American citizen, thus the House because there is such a representative who shall sit
requirements of R.A. No. 9225 do not apply to her. Still, attached to the as the HRET proceedings are had till termination. Such
said motion is an Affidavit of Renunciation of Foreign Citizenship dated representative is the duly proclaimed winner resulting from
24 September 2012. Petitioner explains that she attached said Affidavit the terminated case of cancellation of certificate of
if only to show her desire and zeal to serve the people and to comply candidacy of petitioner. The petitioner is not, cannot, be that
with rules, even as a superfluity. We cannot, however, subscribe to representative. And this, all in all, is the crux of the dispute
petitioner's explanation. If petitioner executed said Affidavit if only to between the parties: who shall sit in the House in
comply with the rules, then it is an admission that R.A. No. 9225 representation of Marinduque, while there is yet no HRET
applies to her. Petitioner cannot claim that she executed it to address decision on the qualifications of the Member.
the observations by the COMELEC as the assailed Resolutions were
promulgated only in 2013, while the Affidavit was executed in
12. As finale, and as explained in the discussion just done,
September 2012.1âwphi1
no unwarranted haste can be attributed, as the dissent does
so, to the resolution of this petition promulgated on 25 June
Moreover, in the present petition, petitioner added a footnote to her 2013. It was not done to prevent the exercise by the HRET
oath of office as Provincial Administrator, to this effect: This does not of its constitutional duty. Quite the contrary, the speedy
mean that Petitioner did not, prior to her taking her oath of office as 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.
 EN BANC representation).11 The amendments likewise mandated the holding of
an election of Central Committee members within six months after the
Second National Convention.12
G.R. No. 205505, September 29, 2015
In effect, the amendments cut short the three-year term of the
ATTY. ISIDRO Q. LICO, RAFAEL A. PUENTESPINA, PROCULO T. incumbent members (referred to hereafter as the Interim Central
SARMEN, AMELITO L. REVUELTA, WILLIAM C. YBANEZ, Committee) of the Central Committee.13 The Interim Central Committee
SILVERIO J. SANCHEZ, GLORIA G. FUTALAN, HILARIO DE was dominated by members of the Rimas Group.
GUZMAN, EUGENE M. PABUALAN, RODOLFO E. PEREZ,
HIPOLITO R. QUILLAN, MARIO ARENAS, TIRSO C. On 5 December 2011, or almost one year after petitioner Lico had
BUENAVENTURA, LYDIA B. TUBELLA, REYNALDO C. GOLO& assumed office, the Interim Central Committee expelled him from Ating
JONATHAN DEQUINA IN THEIR INDIVIDUAL CAPACITIES, AND Koop for disloyalty.14 Apart from allegations of malversation and graft
AS LEGITIMATE MEMBERS AND OFFICERS OF ADHIKAING and corruption, the Committee cited petitioner Lico's refusal to honor
TINATAGUYOD NG KOOPERATIBA (ATING KOOP PARTY the term-sharing agreement as factual basis for disloyalty and as
LIST), Petitioners, v. THE COMMISSION ON ELECTIONS EN BANC cause for his expulsion under Ating Koop's Amended Constitution and
AND THE SELF-STYLED SHAM ATING KOOP PARTYLIST By-laws.15
REPRESENTED BY AMPARO T. RIMAS, Respondents.
On 8 December 2011, Congressman Lico filed a Motion for
Reconsideration with the Interim Central Committee,16 which
DECISION
subsequently denied the same in a Resolution dated 29 December
2011.17
SERENO, C.J.:
While petitioner Lico's Motion for Reconsideration was pending, the
Lico Group held a special meeting in Cebu City (the Cebu meeting) on
The pivotal and interrelated issues before Us in this case involve the 19 December 2011. At the said meeting, new members of the Central
seemingly elementary matter of the Commission on Elections' Committee, as well as a new set of officers, were elected.18 The
(COMELEC) jurisdiction over the expulsion of a sitting party-list election was purportedly held for the purpose of implementing the 5-5-
representative: from the House of Representatives, on the one hand; 5 equal representation amendment made during the Second National
and from his party-list organization, on the other. Convention.19
The instant case involves two rival factions of the same party-list On 21 January 2012, the Rimas Group held a Special National
organization, the Adhikaing Tinataguyod ng Kooperatiba (Ating Koop). Convention in Parañaque City20 (the Parañaque convention), at which
One group is headed by petitioner Atty. Isidro Q. Lico (the Lico Group), a new Central Committee and a new set of officers were
who represents the organization in the House of Representatives, and constituted.21 Members of the Rimas Group won the election and
the other group by Amparo T. Rimas (respondents herein, or the occupied all the corresponding seats.
Rimas Group).
PROCEEDINGS BEFORE THE COMELEC
THE CASE SECOND DIVISION
Before Us is a Petition for Certiorari under Rule 641 in relation to Rule On 16 March 2012, the Rimas Group, claiming to represent Ating
65,2 seeking to annul the Resolutions in E.M. No. 12-039 dated 18 July Koop, filed with COMELEC a Petition against petitioner Lico docketed
2012 and 31 January 2013 of the COMELEC. 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
THE ANTECEDENT FACTS vacate the office of Ating Koop in the House of Representatives, and
for the succession of the second nominee, Roberto Mascarina as Ating
Ating Koop is a multi-sectoral party-list organization which was Koop's representative in the House.
registered on 16 November 2009 under Republic Act (R.A.) No. 7941,
also known as the Party-List System Act (Party-List Law). The Rimas Group thereafter filed an Amended Petition with the
COMELEC on 14 May 2012, this time impleading not only petitioner
Under Ating Koop's Constitution and By-Laws, its highest policymaking Lico but the entire Lico Group. The Amended Petition also prayed that
body is the National Convention. The Central Committee, however, the COMELEC nullify the election conducted at the Cebu meeting and
takes over when the National Convention is not in session.3 recognize the Paranaque convention.

On 30 November 2009, Ating Koop filed its Manifestation of Intent to In both the Petition and the Amended Petition, the Rimas Group
Participate in the Party-List System of Representation for the 10 May alleged that Ating Koop had expelled Congressman Lico for acts
2010 Elections.4 On 6 March 2010, it filed with the COMELEC the list inimical to the party-list group, such as malversation, graft and
of its nominees, with petitioner Lico as first nominee and Roberto corruption, and that he had "boldly displayed his recalcitrance to honor
Mascarina as second nominee. party commitment to be upright and consistently honest, thus violating
basic principles of the Ating Koop."23 The Amended Petition stated
On 8 December 2010, COMELEC proclaimed Ating Koop as one of the further that the Cebu meeting held by the Lico Group violated notice
winning party-list groups.5Based on the procedure provided in BANAT and quorum requirements.24
Party-List v. COMELEC,6 Ating Koop earned a seat in the House of
Representatives. Petitioner Lico subsequently took his oath of office on In a Resolution dated 18 July 2012,25 the COMELEC Second Division
9 December 2010 before the Secretary-General of the House of upheld the expulsion of petitioner Lico from Ating Koop and declared
Representatives,7 and thereafter assumed office. Mascarina as the duly qualified nominee of the party-list group.26The
Second Division characterized the issue of the validity of the expulsion
Several months prior to its proclamation as one of the winning party-list of petitioner Lico from Ating Koop as an intra-party leadership dispute,
organizations, or on 9 June 2010, Ating Koop issued Central which it could resolve as an incident of its power to register political
Committee Resolution 2010-01, which incorporated a term-sharing parties.27chanroblesvirtuallawlibrary
agreement signed by its nominees.8 Under the agreement, petitioner
Lico was to serve as Party-list Representative for the first year of the PROCEEDINGS BEFORE THE COMELEC
three-year term.9 EN BANC
On 14 May 2011, Ating Koop held its Second National Convention, Consequently, the Lico Group filed a Motion for Reconsideration from
during which it introduced amendments to its Constitution and By-laws. the Second Division's Resolution, which the COMELEC En
Among the salient changes was the composition of the Central Banc denied on 31 January 2013. The dispositive portion of its
Committee,10 which would still be composed of 15 representatives but Resolution reads:cralawlawlibrary
with five each coming from Luzon, Visayas and Mindanao (5-5-5 equal
WHEREFORE, premises considered, the Commission (En has jurisdiction over the disqualification case.
Banc) RESOLVES, as it herebyRESOLVED, to:
a. DISMISS the instant Petition to Expel Respondent Atty. Isidro Q. What We find to be without legal basis, however, is the action of the
Lico in the House of Representatives and to Sanction the Immediate COMELEC in upholding the validity of the expulsion of petitioner Lico
Succession of the Second Nominee of ATING KOOP Party List, Mr. from Ating Koop, despite its own ruling that the HRET has jurisdiction
Roberto C. Mascarina as its Party Representative, for lack of over the disqualification issue. These findings already touch upon the
jurisdiction;ChanRoblesVirtualawlibrary qualification requiring a party-list nominee to be a bona fide member of
the party-list group sought to be represented.
b. UPHOLD the Expulsion of Respondent Atty. Isidro Lico from ATING
KOOP Party-list Group; [and] 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
c. UPHOLD the ATING KOOP Party-list Group represented by its incident of its constitutionally granted powers and functions. It
President, Amparo T. Rimas, as the legitimate Party-list Group citedLokin v. COMELEC, where We held that when the resolution of an
accredited by the Commission on Elections, to the exclusion of intra-party controversy is necessary or incidental to the performance of
respondents Atty. Isidro Q. Lico, Rafael A. Puentespina, Proculo T. the constitutionally-granted functions of the COMELEC, the latter can
Sarmen, Amelito L. Revuelta, William C. Ybanez, Silverio J. Sanchez, step in and exercise jurisdiction over the intra-party matter.36 The Lokin
Gloria G. Futalan, Hilario De Guzman, Eugene M. Pabualan, Rodolfo case, however, involved nominees and not incumbent members of
E. Perez, Hipolito R. Quillan, Mario Arenas, Tirso C. Buenaventura, Congress. In the present case, the fact that petitioner Lico was a
Lydia B. Tubella, and Jonathan Dequina.28 member of Congress at the time of his expulsion from Ating Koop
chanrobleslaw removes the matter from the jurisdiction of the COMELEC.

In arriving at its Resolution, the COMELEC En Banc held that it had no The rules on intra-party matters and on the jurisdiction of the HRET are
jurisdiction to expel Congressman Lico from the House of not parallel concepts that do not intersect. Rather, the operation of the
Representatives, considering that his expulsion from Ating Koop rule on intra-party matters is circumscribed by Section 17 of Article VI
affected his qualifications as member of the House, and therefore it of the 1987 Constitution and jurisprudence on the jurisdiction of
was the House of Representatives Electoral Tribunal (HRET) that had electoral tribunals. The jurisdiction of the HRET is exclusive. It is given
jurisdiction over the Petition. full authority to hear and decide the cases on any matter touching on
the validity of the title of the proclaimed winner.37
At the same time, the COMELEC upheld the validity of petitioner Lico's
expulsion from Ating Koop, explaining that when the Interim Central In the present case, the Petition for petitioner Lico's expulsion from the
Committee ousted him from Ating Koop, the said Committee's House of Representatives is anchored on his expulsion from Ating
members remained in hold-over capacity even after their terms had Koop, which necessarily affects his title as member of Congress. A
expired;29 and that the COMELEC was not in a position to substitute its party-list nominee must have been, among others, a bona fide member
judgment for that of Ating Koop with respect to the cause of the of the party or organization for at least ninety (90) days preceding the
expulsion.30 day of the election. Needless to say, bona fide membership in the
party-list group is a continuing qualification. We have ruled that
Finally, the COMELEC En Banc recognized the Rimas Group as the qualifications for public office, whether elective or not, are continuing
legitimate representative of Ating Koop considering that: 1) it found requirements. They must be possessed not only at the time of
nothing in the records to show that the Lico Group made a valid call for appointment or election, or of assumption of office, but during the
the special election of Central Committee members as required under officer's entire tenure.39
the Amended Constitution and By-Laws;31 2) there is nothing on record
indicating that a minimum of 100 attended the Cebu meeting;32 and 3) This is not the first time that this Court has passed upon the issue of
the Parañaque convention was in accordance with Ating Koop's HRET jurisdiction over the requirements for bona fide membership in a
Amended Constitution and By-Laws.33 party-list organization. In Abayon v. HRET,40 it was argued that the
petitioners did not belong to the marginalized and under-represented
Hence, this Petition: the Lico Group now comes before Us, praying for sectors that they should represent; as such, they could not be properly
a review of the COMELEC Resolutions. considered bona fide members of their respective party-list
organizations. The Court held that it was for the HRET to interpret the
The Court's Ruling 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
On the COMELEC's jurisdiction over comes to qualifications of the members of the House of
the expulsion of a Member of the House Representatives.41
of Representatives from his party-list
organization Consequently, the COMELEC failed to recognize that the issue on the
validity of petitioner Lico's expulsion from Ating Koop is integral to the
We find that while the COMELEC correctly dismissed the Petition to issue of his qualifications to sit in Congress. This is not merely an error
expel petitioner Lico from the House of Representatives for being of law but an error of jurisdiction correctible by a writ of certiorari; 42 the
beyond its jurisdiction, it nevertheless proceeded to rule upon the COMELEC should not have encroached into the expulsion issue, as it
validity of his expulsion from Ating Koop - a matter beyond its purview. was outside its authority to do so.

The COMELEC notably characterized the Petition for expulsion of Distinguished from Reyes v. COMELEC
petitioner Lico from the House of Representatives and for the
succession of the second nominee as party-list representative as a Our ruling here must be distinguished from Regina Ongsiako Reyes v.
disqualification case. For this reason, the COMELEC dismissed the Commission on Elections.43 In that case, We upheld the disqualification
petition for lack of jurisdiction, insofar as it relates to the question of by the COMELEC of petitioner Reyes, even as she was already
unseating petitioner Lico from the House of Representatives. 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
Section 17, Article VI of the 1987 Constitution34 endows the HRET with fell within the exclusive jurisdiction of the HRET.
jurisdiction to resolve questions on the qualifications of members of
Congress. In the case of party-list representatives, the HRET acquires In Reyes, the petitioner was proclaimed winner of the 13 May 2013
jurisdiction over a disqualification case upon proclamation of the Elections, and took her oath of office before the Speaker of the House
winning party-list group, oath of the nominee, and assumption of office of Representatives. However, the Court ruled on her qualifications
as member of the House of Representatives.35In this case, the since she was not yet a member of the House of Representatives:
COMELEC proclaimed Ating Koop as a winning party-list group; petitioner Reyes had yet to assume office, the term of which would
petitioner Lico took his oath; and he assumed office in the House of officially start at noon of 30 June 2013, when she filed a Petition
Representatives. Thus, it is the HRET, and not the COMELEC, that for Certiorari with 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 Corporation Code.49
Certificate of Candidacy. In the present case, all three requirements of
proclamation, oath of office, and assumption of office were satisfied. There being no showing that the amendments on the by-laws of Ating
Koop were filed with and subsequently approved by the COMELEC,
Moreover, in Reyes, the COMELEC En Banc Resolution disqualifying any election conducted pursuant thereto may not be considered valid.
petitioner on grounds of lack of Filipino citizenship and residency had Without such requisite proof, neither the Lico Group nor the Rimas
become final and executory when petitioner elevated it to this Group can claim to be the legitimate set of officers of Ating Koop.
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 Even assuming arguendo that the amendment calling for a special
June 2013, already issued a Certificate of Finality over its 14 May 2013 election were effective, this Court still cannot declare any of the
Resolution disqualifying her. Therefore, there was no longer any feuding groups as the legitimate set of officers considering that the
pending case on the qualifications of petitioner Reyes to speak of. respective sets of evidence presented were evenly balanced. With
Here, the question of whether petitioner Lico remains a member of the respect to the Lico Group's Cebu meeting, the COMELEC correctly
House of Representatives in view of his expulsion from Ating Koop is a found - and the records bear out - that the notices sent were deficient
subsisting issue. and that there was no sufficient proof of quorum. Hence, the Cebu
meeting was held to be invalid. On the other hand, the COMELEC
Finally, in Reyes, We found the question of jurisdiction of the HRET to failed to appreciate the fact that the Paranaque convention suffered
be a non-issue, since the recourse of the petitioner to the Court from the same infirmity, the records of the said convention, consisting
appeared to be a mere attempt to prevent the COMELEC from merely of the Minutes thereof, likewise fail to establish due notice and
implementing a final and executory judgment. We said that the a quorum.50
petitioner therein took an inconsistent, if not confusing, stance,
considering that she sought remedy before the Court, and yet asserted Accordingly, as neither group can sufficiently lay claim to legitimacy,
that it is the HRET which had jurisdiction over the case.45 In this case, the equipoise doctrine comes into play. This rule provides that when
the question on the validity of petitioner Lico's expulsion from Ating the evidence in an issue of fact is in equipoise, that is, when the
Koop is a genuine issue that falls within the jurisdiction of the HRET, respective sets of evidence of both parties are evenly balanced, the
as it unmistakably affects his qualifications as party-list representative. 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
On which group legitimately represents left with no other option but to leave them as they are. The
Ating Koop consequence, therefore, is the dismissal of the complaint/petition. 51

We now pass upon the question of which, between the two contending The Rimas Group, being the petitioner before the COMELEC, had the
groups, is the legitimate leadership of Ating Koop. 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
At the outset, We reject the Lico Group's argument that the COMELEC equipoise, the Rimas Group failed to discharge its burden. The
has no jurisdiction to decide which of the feuding groups is to be COMELEC should have dismissed the petition of the Rimas Group
recognized, and that it is the Regional Trial Court which has jurisdiction insofar as it sought to be declared the legitimate group representing
over intra-corporate controversies. Indeed, the COMELECs jurisdiction Ating Koop.
to settle the struggle for leadership within the party is well established.
This power to rule upon questions of party identity and leadership is Yet, the COMELEC held that the Paranaque convention "appeared to
exercised by the COMELEC as an incident of its enforcement be in conformity" with Ating Koop's Amended Constitution and By-
powers.46 Laws.52 It should be stressed that the COMELEC did not even
substantiate this conclusion.53
That being said, We find the COMELEC to have committed grave
abuse of discretion in declaring the Rimas Group as the legitimate set The Court ordinarily refrains from reviewing the COMELEC s
of Ating Koop officers for the simple reason that the amendments to appreciation and evaluation of the evidence.54 But when the
the Constitution and By-laws of Ating Koop were not registered with COMELECs assessment of the evidence is so grossly unreasonable
the COMELEC. Hence, neither of the elections held during the Cebu that it turns into an error of jurisdiction, the Court is compelled to
meeting and the Paranaque conference pursuant to the said intervene and correct the error.55
amendments, were valid.
As seen in the above discussions, neither of the parties was able to
Both the Lico Group and the Rimas Group indeed assert that their establish its legitimacy. The evaluation of the evidence by the
respective elections were conducted pursuant to the amendment COMELEC in deciding the issue of which group legitimately represents
introduced in the Second National Convention held on 14 May 2011. In Ating Koop was therefore grossly unreasonable, which amounts to a
particular, Section 1 of Article VI of Ating Koop's By-laws called for the jurisdictional error that may be remedied by certiorari under Rule 65.
conduct of an election of Central Committee members within six
months after the Second National Convention.47 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?
There is no showing, however, that the amendments were actually filed
with the COMELEC. We find such legitimate leadership to be the Interim Central
Committee, whose members remain as such in a hold-over capacity.
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 In Seneres v. COMELEC,56 the validity of the Certificate of Nomination
2013 case of Dayao v. COMELEC,48 We declared that it is the State, filed by Buhay Party-List through its President, Roger Robles, was
acting through the COMELEC, that breathes life to a party-list questioned on the ground that his term had expired at the time it was
organization. The implication, therefore, is that the State, through the filed. The Court applied by analogy the default rule in corporation law
COMELEC, is a party to the principal contracts entered into by the to the effect that officers and directors of a corporation hold over after
party-list organization and its members - the Constitution and By-laws - the expiration of their terms until such time as their successors are
such that any amendment to these contracts would constitute a elected or appointed.57Señeres ruled that the hold-over principle
novation requiring the consent of all the parties involved. An applies in the absence of a provision in the constitution or by-laws of
amendment to the bylaws of a party-list organization should become the party-list organization prohibiting its application.
effective only upon approval by the COMELEC.
In the present case, We have gone through the Constitution and By-
Such a prerequisite is analogous to the requirement of filing of the laws of Ating Koop and We do not see any provision forbidding, either
amended by-laws and subsequent conformity thereto of the Securities expressly or impliedly, the application of the hold-over rule. Thus, in
and Exchange Commission (SEC) under corporation law. Under the accordance with corporation law, the existing Interim Central
Corporation Code, an amendment to a by-law provision must be filed Committee is still a legitimate entity with full authority to bind the
with the SEC. The amendment shall be effective only upon the corporation and to carry out powers despite the lapse of the term of its
issuance by the SEC of a certification that it is not inconsistent with the 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.

SO ORDERED
 EN BANC and other documents she submitted were unauthorized by the party
and therefore invalid; and that it was Villanueva who was duly
authorized to file the Certificate of Nomination on its behalf.11
G.R. No. 193808 June 26, 2012

In the Resolution dated 5 July 2010, the COMELEC First Division

LUISK. LOKIN, JR. and TERESITA F. PLANAS, Petitioners,
granted the Petition, ordered the Certificate filed by Derla to be
vs.
expunged from the records, and declared respondents’ faction as the
COMMISSION ON ELECTIONS (COMELEC), CITIZENS’ BATTLE
true nominees of CIBAC.12Upon Motion for Reconsideration separately
AGAINST CORRUPTION PARTY LIST represented by VIRGINIA S.
filed by the adverse parties, the COMELEC en banc affirmed the
JOSE SHERWIN N. TUGNA, and CINCHONA CRUZ-
Division’s findings. In a per curiam Resolution dated 31 August
GONZALES, Respondents,
2010,13 the Commission reiterated that Pia Derla was unable to prove
her authority to file the said Certificate, whereas respondents
DECISION presented overwhelming evidence that Villanueva deputized CIBAC
Secretary General Virginia Jose to submit the Certificate of Nomination
pursuant to CIBAC’s Constitution and bylaws.
SERENO, J.:

Petitioners now seek recourse with this Court in accordance with Rules
The present petition having been flied beyond the reglementary period, 64 and 65 of the Rules of Court, raising these issues: I) Whether the
Rule 64 of the Rules of Court compels a dismissal on this basis alone. authority of Secretary General Virginia Jose to file the party’s
Despite petitioner's inexplicable disregard of basic concepts, this Court
Certificate of Nomination is an intra-corporate matter, exclusively
deems it appropriate to reiterate the specific procedure for the review cognizable by special commercial courts, and over which the
of judgments made by the Commission on Elections (COMELEC) as COMELEC has no jurisdiction; and II) Whether the COMELEC erred in
laid down in Rule 64, and how it is differentiated from the more general
granting the Petition for Disqualification and recognizing respondents
remedy afforded by Rule 65. as the properly authorized nominees of CIBAC party-list.

On 5 July 2010, the COMELEC First Division issued a

As earlier stated, this Court denies the petition for being filed outside
Resolution1 expunging the Certificate of Nomination which included the requisite period. The review by this Court of judgments and final
herein petitioners as representatives of the party-list group known as orders of the COMELEC is governed specifically by Rule 64 of the
Citizens’ Battle Against Corruption (CIBAC). The COMELEC en
Rules of Court, which states:
banc affirmed the said Resolution, prompting Luis Lokin, Jr. and
Teresita F. Planas to file the present Petition for Certiorari. Petitioners
allege grave abuse of discretion on the part of the COMELEC in Sec. 1. Scope. This rule shall govern the review of judgments and final
issuing both Resolutions, praying that they be recognized as the orders or resolutions of the Commission on Elections and the
legitimate nominees of CIBAC party-list, and that petitioner Lokin, Jr. Commission on Audit.
be proclaimed as the CIBAC party-list representative to the House of
Representatives.
Sec. 2. Mode of review. A judgment or final order or resolution of the
Commission on Elections and the Commission on Audit may be
2
Respondent CIBAC party-list is a multi-sectoral party registered under brought by the aggrieved party to the Supreme Court on certiorari
Republic Act No. (R.A.) 7941, otherwise known as the Party- List under Rule 65, except as hereinafter provided.
System Act. As stated in its constitution and bylaws, the platform of
CIBAC is to fight graft and corruption and to promote ethical conduct in
The exception referred to in Section 2 of this Rule refers precisely to
the country’s public service.3 Under the leadership of the National
the immediately succeeding provision, Section 3 thereof,14 which
Council, its highest policymaking and governing body, the party
provides for the allowable period within which to file petitions for
participated in the 2001, 2004, and 2007 elections.4 On 20 November
certiorari from judgments of both the COMELEC and the Commission
2009, two different entities, both purporting to represent CIBAC,
on Audit. Thus, while Rule 64 refers to the same remedy of certiorari
submitted to the COMELEC a "Manifestation of Intent to Participate in
as the general rule in Rule 65, they cannot be equated, as they provide
the Party-List System of Representation in the May 10, 2010
for different reglementary periods.15 Rule 65 provides for a period of 60
Elections." The first Manifestation5 was signed by a certain Pia B.
days from notice of judgment sought to be assailed in the Supreme
Derla, who claimed to be the party’s acting secretary-general. At 1:30
Court, while Section 3 expressly provides for only 30 days, viz:
p.m. of the same day, another Manifestation6 was submitted by herein
respondents Cinchona Cruz-Gonzales and Virginia Jose as the party’s
vice-president and secretary-general, respectively. SEC. 3. Time to file petition.—The petition shall be filed within thirty
(30) days from notice of the judgment or final order or resolution
sought to be reviewed. The filing of a motion for new trial or
On 15 January 2010, the COMELEC issued Resolution No.
reconsideration of said judgment or final order or resolution, if allowed
87447 giving due course to CIBAC’s Manifestation, "WITHOUT
under the procedural rules of the Commission concerned, shall
PREJUDICE …TO the determination which of the two factions of the
interrupt the period herein fixed. If the motion is denied, the aggrieved
registered party-list/coalitions/sectoral organizations which filed two (2)
party may file the petition within the remaining period, but which shall
manifestations of intent to participate is the official representative of
not be less than five (5) days in any event, reckoned from notice of
said party-list/coalitions/sectoral organizations xxx."8
denial.

On 19 January 2010, respondents, led by President and Chairperson

Petitioner received a copy of the first assailed Resolution on 12 July
Emmanuel Joel J. Villanueva, submitted the Certificate of
2010. Upon the Motion for Reconsideration filed by petitioners on 15
Nomination9 of CIBAC to the COMELEC Law Department. The
July 2010, the COMELEC en banc issued the second assailed
nomination was certified by Villanueva and Virginia S. Jose. On 26
Resolution on 31 August 2010. This per curiam Resolution was
March 2010, Pia Derla submitted a second Certificate of
received by petitioners on 1 September 2010.16 Thus, pursuant to
Nomination,10 which included petitioners Luis Lokin, Jr. and Teresita
Section 3 above, deducting the three days it took petitioners to file the
Planas as party-list nominees. Derla affixed to the certification her
Motion for Reconsideration, they had a remaining period of 27 days or
signature as "acting secretary-general" of CIBAC.
until 28 September 2010 within which to file the Petition for Certiorari
with this Court.
Claiming that the nomination of petitioners Lokin, Jr. and Planas was
unauthorized, respondents filed with the COMELEC a "Petition to
However, petitioners filed the present Petition only on 1 October 2010,
Expunge From The Records And/Or For Disqualification," seeking to
clearly outside the required period. In Pates v. Commission on
nullify the Certificate filed by Derla. Respondents contended that Derla
Elections and Domingo v. Commission on Elections,17 we have
had misrepresented herself as "acting secretary-general," when she
established that the fresh-period rule used in Rule 65 does not similarly
was not even a member of CIBAC; that the Certificate of Nomination
apply to the timeliness of petitions under Rule 64. In Pates, this Court Even as petitioners insisted on the purely intra-corporate nature of the
dismissed the conflict between "CIBAC Foundation" and the CIBAC Sectoral Party,
they submitted their Certificate of Nomination and Manifestation of
Intent to participate in the party-list elections. Precisely, petitioners
Petition for Certiorari on the sole ground that it was belatedly filed,
were seeking the COMELEC’s approval of their eligibility to participate
reasoning thus:
in the upcoming party-list elections. In effect, they invoke its authority
under the Party-List System Act.23 Contrary to their stance that the
x x x. While it is true that a litigation is not a game of technicalities, it is present dispute stemmed from an intra-corporate matter, their
equally true that every case must be prosecuted in accordance with submissions even recognize the COMELEC’s constitutional power to
the prescribed procedure to ensure an orderly and speedy enforce and administer all laws relative to the conduct of an election,
administration of justice. There have been some instances wherein this plebiscite, initiative, referendum, and recall.24 More specifically, as one
Court allowed a relaxation in the application of the rules, but this of its constitutional functions, the COMELEC is also tasked to "register,
flexibility was "never intended to forge a bastion for erring litigants to after sufficient publication, political parties, organizations, or coalitions
violate the rules with impunity." which, in addition to other requirements, must present their platform or
program of government."25
xxx xxx xxx
In any case, the COMELEC’s jurisdiction to settle the struggle for
leadership within the party is well established. This singular power to
Under this unique nature of the exceptions, a party asking for the rule upon questions of party identity and leadership is exercised by the
suspension of the Rules of Court comes to us with the heavy burden of
COMELEC as an incident to its enforcement powers. In Laban ng
proving that he deserves to be accorded exceptional treatment. Every Demokratikong Pilipino v. Commission on Elections,26 the Court held:
plea for a liberal construction of the Rules must at least be
accompanied by an explanation of why the party-litigant failed to
comply with the rules and by a justification for the requested liberal x x x. Corollary to the right of a political party "to identify the people
construction. who constitute the association and to select a standard bearer who
best represents the party’s ideologies and preference" is the right to
exclude persons in its association and to not lend its name and
xxx xxx xxx prestige to those which it deems undeserving to represent its ideals. A
certificate of candidacy makes known to the COMELEC that the
x x x. Section 3, Article IX-C of the Constitution expressly requires that person therein mentioned has been nominated by a duly authorized
the COMELEC’s rules of procedure should expedite the disposition of political group empowered to act and that it reflects accurately the
election cases. This Court labors under the same command, as our sentiment of the nominating body. A candidate’s political party
proceedings are in fact the constitutional extension of cases that start affiliation is also printed followed by his or her name in the certified list
with the COMELEC. of candidates. A candidate misrepresenting himself or herself to be a
party’s candidate, therefore, not only misappropriates the party’s name
and prestige but foists a deception upon the electorate, who may
Based on these considerations, we do not find convenience and unwittingly cast its ballot for him or her on the mistaken belief that he or
uniformity to be reasons sufficiently compelling to modify the required she stands for the party’s principles. To prevent this occurrence, the
period for the filing of petitions for certiorari under Rule 64. While the COMELEC has the power and the duty to step in and enforce the law
petitioner is correct in his historical data about the Court’s treatment of not only to protect the party but, more importantly, the electorate, in
the periods for the filing of the different modes of review, he misses out line with the Commission’s broad constitutional mandate to ensure
on the reason why the period under Section 3, Rule 64 has been orderly elections.27 (Emphasis supplied.)
retained. The reason, as made clear above, is constitutionally-based
and is no less than the importance our Constitution accords to the
prompt determination of election results.18 x x x. (Emphasis supplied, Similar to the present case, Laban delved into the issue of leadership
footnotes omitted.) for the purpose of determining which officer or member was the duly
authorized representative tasked with filing the Certificate of
Nomination, pursuant to its Constitution and bylaws, to wit:
In this case, petitioners do not even attempt to explain why the Petition
was filed out of time. Clearly, they are aware of the applicable period
for filing, as they themselves invoke the remedy under Rule 64 in The only issue in this case, as defined by the COMELEC itself, is who
conjunction with Rule 65. Hence, there is no acceptable reason for as between the Party Chairman and the Secretary General has the
their failure to comply with the proper procedure. But even if this Court authority to sign certificates of candidacy of the official candidates of
were to apply liberality and take cognizance of the late Petition, the the party. Indeed, the petitioners’ Manifestation and Petition before the
arguments therein are flawed. The COMELEC has jurisdiction over
cases pertaining to party leadership and the nomination of party- COMELEC merely asked the Commission to recognize only those
list representatives. certificates of candidacy signed by petitioner Sen. Angara or his
authorized representative, and no other.28
Petitioners contend that the COMELEC never should have taken
cognizance of respondents’ Petition to Expunge and/or for In the 2010 case Atienza v. Commission on Elections,29 it was
Disqualification. They have reached this conclusion by characterizing
expressly settled that the COMELEC possessed the authority to
the present matter as an intra-corporate dispute and, thus, cognizable resolve intra-party disputes as a necessary tributary of its
only by special commercial courts, particularly the designated constitutionally mandated power to enforce election laws and register
commercial court in this case, the Regional Trial Court in Pasig
political parties. The Court therein cited Kalaw v. Commission on
City.19 Pia Derla purportedly filed the Certificate of Nomination pursuant Elections and Palmares v. Commission on Elections, which uniformly
to the authority granted by the Board of Trustees of the "CIBAC upheld the COMELEC’s jurisdiction over intra-party disputes:
Foundation, Inc.," the non-stock entity that is registered with the
Securities and Exchange Commission (SEC).20
The COMELEC’s jurisdiction over intra-party leadership disputes has
already been settled by the Court. The Court ruled in Kalaw v.
Thus, petitioners insist that the group that participated in the party-list
Commission on Elections that the COMELEC’s powers and functions
system in the 2004 and 2007 elections was the SEC-registered entity, under Section 2, Article IX-C of the Constitution, "include the
and not the National Council, which had allegedly become defunct ascertainment of the identity of the political party and its legitimate
since 2003. That was the year when CIBAC Foundation, Inc. was
officers responsible for its acts." The Court also declared in another
established and registered with the SEC.21 On the other hand, case that the COMELEC’s power to register political parties
respondents counter that the foundation was established solely for the necessarily involved the determination of the persons who must act on
purpose of acting as CIBAC’s legal and financial arm, as provided by
its behalf. Thus, the COMELEC may resolve an intra-party leadership
the party’s Constitution and bylaws. It was never intended to substitute
for, or oust CIBAC, the party-list itself.22
dispute, in a proper case brought before it, as an incident of its power The Law Department shall require party-list group and nominees to
to register political parties.30 submit the foregoing documentary evidence if not complied with prior
to the effectivity of this resolution not later than three (3) days from the
last day of filing of the list of nominees.
Furthermore, matters regarding the nomination of party-list
representatives, as well as their individual qualifications, are outlined in
the Party-List System Law. Sections 8 and 9 thereof state: Sec. 8. Contrary to petitioners’ stance, no grave abuse of discretion is
Nomination of Party-List Representatives. Each registered party, attributable to the COMELEC First Division and the COMELEC en
organization or coalition shall submit to the COMELEC not later than banc.1âwphi1 The tribunal correctly found that Pia Derla’s alleged
forty-five (45) days before the election a list of names, not less than authority as "acting secretary-general" was an unsubstantiated
five (5), from which party-list representatives shall be chosen in case it allegation devoid of any supporting evidence. Petitioners did not
obtains the required number of votes. submit any documentary evidence that Derla was a member of CIBAC,
let alone the representative authorized by the party to submit its
Certificate of Nomination.32 The COMELEC ruled:
A person may be nominated in one (1) list only. Only persons who
have given their consent in writing may be named in the list. The list
shall not include any candidate for any elective office or a person who A careful perusal of the records readily shows that Pia B. Derla, who
has lost his bid for an elective office in the immediately preceding has signed and submitted, as the purported Acting Secretary General
election. No change of names or alteration of the order of nominees of CIBAC, the Certificates of Nomination of Respondents, has no
shall be allowed after the same shall have been submitted to the authority to do so. Despite Respondents’ repeated claim that Ms. Derla
COMELEC except in cases where the nominee dies, or withdraws in is a member and officer of CIBAC, they have not presented any proof
writing his nomination, becomes incapacitated in which case the name in support of the same. We are at a loss as to the manner by which
of the substitute nominee shall be placed last in the list. Incumbent Ms. Derla has assumed the post, and We see nothing but
sectoral representatives in the House of Representatives who are Respondents’ claims and writings/certifications by Ms. Derla herself
nominated in the party-list system shall not be considered resigned. that point to that alleged fact. Surely, We cannot rely on these
submissions, as they are the very definition of self-serving
declarations.
Sec. 9. Qualifications of Party-List Nominees. No person shall be
nominated as party-list representative unless he is a natural-born
citizen of the Philippines, a registered voter, a resident of the On the other hand…We cannot help but be convinced that it was
Philippines for a period of not less than one (1)year immediately Emmanuel Joel J. Villanueva, as the Party President and Chairman,
preceding the day of the election, able to read and write, a bona fide who had been given the sole authority, at least for the 10 May 2010
member of the party or organization which he seeks to represent for at Elections, to submit the list of nominees for the Party. The records
least ninety (90) days preceding the day of the election, and is at least would show that, in accordance with the Party’s Constitution and by-
twenty-five (25) years of age on the day of the election. laws, its National Council, the highest policymaking and governing
body of the Party, met on 12 November 2009 and there being a
quorum, then proceeded to elect its new set of officers, which included
By virtue of the aforesaid mandate of the Party-List Law vesting the
Mr. Villanueva as both Party President and Party Chairman, and
COMELEC with jurisdiction over the nomination of party-list
Virginia S. Jose as Party Secretary General. During the same meeting,
representatives and prescribing the qualifications of each nominee, the
the Party’s New Electoral Congress, which as per the CIBAC’s
COMELEC promulgated its "Rules on Disqualification Cases Against
Constitution and By-Laws, was also composed of the National Council
Nominees of Party-List Groups/ Organizations Participating in the 10
Members and had the task of choosing the nominees for the Party in
May 2010 Automated National and Local Elections."31 Adopting the
the Party-List Elections, unanimously ruled to delegate to the Party
same qualifications of party-list nominees listed above, Section 6 of
President such latter function. This set of facts, which had not been
these Rules also required that:
belied by concrete contrary evidence, weighed heavily against
Respondents and favorably for Petitioner.33
The party-list group and the nominees must submit documentary
evidence in consonance with the Constitution, R.A. 7941 and other
Pia Derla, who is not even a member of CIBAC, is thus a virtual
laws to duly prove that the nominees truly belong to the marginalized
stranger to the party-list, and clearly not qualified to attest to petitioners
and underrepresented sector/s, the sectoral party, organization,
as CIBAC nominees, or certify their nomination to the COMELEC.
political party or coalition they seek to represent, which may include
Petitioners cannot use their registration with the SEC as a substitute
but not limited to the following:
for the evidentiary requirement to show that the nominees, including
Derla, are bona fide members of the party. Petitioners Planas and
a. Track record of the party-list group/organization showing Lokin, Jr. have not even presented evidence proving the affiliation of
active participation of the nominee/s in the undertakings of the so-called Board of Trustees to the CIBAC Sectoral Party that is
the party-list group/organization for the advancement of the registered with COMELEC.
marginalized and underrepresented sector/s, the sectoral
party, organization, political party or coalition they seek to
Petitioners cannot draw authority from the Board of Trustees of the
represent;
SEC-registered entity, because the Constitution of CIBAC expressly
mandates that it is the National Council, as the governing body of
b. Proofs that the nominee/s truly adheres to the advocacies CIBAC, that has the power to formulate the policies, plans, and
of the party-list group/organizations (prior declarations, programs of the Party, and to issue decisions and resolutions binding
speeches, written articles, and such other positive actions on on party members and officers.34 Contrary to petitioners’ allegations,
the part of the nominee/s showing his/her adherence to the the National Council of CIBAC has not become defunct, and has
advocacies of the party-list group/organizations); certainly not been replaced by the Board of Trustees of the SEC-
registered entity. The COMELEC carefully perused the documents of
the organization and outlined the process followed by the National
c. Certification that the nominee/s is/are a bona fide member Council before it complied with its task of choosing the party’s
of the party-list group/ organization for at least ninety (90) nominees.This was based on the "Minutes of Meeting of CIBAC Party-
days prior to the election; and
List National Council" held on 12 November 2009, which respondents
attached to their Memorandum.35
d. In case of a party-list group/organization seeking
representation of the marginalized and underrepresented
For its part, the COMELEC en banc also enumerated the documentary
sector/s, proof that the nominee/s is not only an advocate of evidence that further bolstered respondents’ claim that it is Chairman
the party-list/organization but is/are also a bona fide Villanueva and Secretary General Virginia Jose who were duly
member/s of said marginalized and underrepresented
authorized to submit the Certificate of Nomination to the
sector. COMELEC.36 These include:
 a. The Joint Affidavit of Resolutions of the CIBAC National
Council and the National Electoral Congress of CIBAC dated
12 November 2009;

b. Certificate of Deputization and Delegation of Authority

issued to CIBAC Secretary-General Virginia S. Jose by the
CIBAC President;

c. Constitution and By-Laws of CIBAC as annexed to its

Petition for Registration as Sectoral Organization Under the
Party-List System filed by CIBAC on 13 November 2000;
and

d. Manifestation dated 8 January 2010 by CIBAC’s Secretary

General Virginia S. Jose providing the official list of officers
of CIBAC.37

WHEREFORE , finding no grave abuse of discretion on the part of the

COMELEC in issuing the assailed Resolutions, the instant Petition is
DISMISSED. This Court AFFIRMS the judgment of the COMELEC
expunging from its records the Certificate of Nomination filed on 26
March 2010 by Pia B. Derla. The nominees, as listed in the Certificate
of Nomination filed on 19 January 2010 by Emmanuel Joel J.
Villanueva, President and Chairman of Citizens’ Battle Against
Corruption (CIBAC) Party List, are recognized as the legitimate
nominees of the said party.

SO ORDERED.
 EN BANC Section 5. Quorum; Votes Required. – (a) When sitting en banc, four
(4) Members of the Commission shall constitute a quorum for the
purpose of transacting business. The concurrence of a majority of the
G.R. No. 160465 May 27, 2004
Members of the Commission shall be necessary for the
pronouncement of a decision, resolution, order or ruling.
ROMEO M. ESTRELLA, petitioner,
vs.
WHEREFORE, the instant petition is GRANTED. The Status Quo
COMMISSION ON ELECTIONS, HON. COMMISSIONER RALPH C.
Ante Order dated November 5, 2003 issued by the COMELEC En
LANTION and ROLANDO F. SALVADOR,respondents.
Banc is hereby NULLIFIED. This Resolution is IMMEDIATELY
EXECUTORY. (Emphasis and underscoring supplied)
RESOLUTION
In seeking a reconsideration of the above-quoted Resolution, private
CARPIO MORALES, J.: respondent cites Cua v. Commission on Elections3 wherein this Court
ruled:
From this Court’s Resolution of April 28, 2004, private respondent
Rolando F. Salvador seeks a reconsideration. After considering the issues and the arguments raised by the parties,
the Court holds that the 2-1 decision rendered by the First Division was
a valid decision under Article IX-A, section 7 of the Constitution.
In his petition for certiorari filed before this Court, petitioner Romeo M. Furthermore, the three members who voted to affirm the First Division
Estrella sought the nullification of the November 5, 2003 Status Quo
constituted a majority of the five members who deliberated and voted
Ante Order1 issued by the Commission on Elections (COMELEC) En thereon en banc and their decision is also valid under the aforecited
Banc in EAC No. A-10-2002, "Romeo M. Estrella v. Rolando F.
constitutional provision. x x x (Italics in the original; emphasis supplied)
Salvador," directing the "parties to maintain the status quo ante order,
which is the condition prevailing before the issuance" by the Regional
Trial Court of Malolos of a writ of execution for the enforcement of said Private respondent argues that "[f]ollowing the doctrine laid out in Cua,
court’s decision declaring petitioner as the duly elected mayor of three (3) votes would have been sufficient to constitute a majority to
Baliwag, Bulacan. carry the decision of the COMELEC En Banc as provided by the
Constitution and the appropriate rules."4
In the issuance of the questioned COMELEC En Banc Status Quo
Ante Order, five (5) of the then incumbentseven (7) members of the Section 5(a) of the COMELEC Rules of Procedure was lifted from
COMELEC participated: Commissioners Benjamin Abalos, Sr., Section 7, Article IX-A of the Constitution which provides:
Luzviminda Tangcangco, Rufino S.B. Javier, Ressureccion Z. Borra
and Ralph C. Lantion.
SECTION 7. Each Commission shall decide by a majority vote of all its
members any case or matter brought before it within sixty days from
Commissioners Abalos, Tangcangco, Javier and Lantion voted for the the date of its submission for decision or resolution. x x x (Emphasis
issuance of said order, while Commissioner Borra dissented. and underscoring supplied)

Commissioner Lantion previously inhibited in SPR No. 21-2002, a case The provision of the Constitution is clear that it should be the majority
pending before the COMELEC Second Division involving the same vote of all its members and not only those who participated and took
parties, thus necessitating the issuance of an order designating part in the deliberations. Under the rules of statutory construction, it is
Commissioner Borra as his substitute. The substitution order was to be assumed that the words in which constitutional provisions are
subsequently adopted in EAC No. A-10-2002. Parenthetically, couched express the objective sought to be attained.5 Since the above-
petitioner had previously filed a Motion for Inhibition of Commissioner quoted constitutional provision states "all of its members," without any
Lantion before the Second Division in SPR No. 21-2002 which was qualification, it should be interpreted as such.
denied, albeit on Motion for Reconsideration the Second Division, in its
Resolution of May 7, 2002, noted that "Com[missioner] Lantion
In the case at bar, following the clear provision of the Constitution,
indicated for the record that he is no longer taking part in the
counting out Commissioner Lantion’s vote from the questioned
proceedings in this case."
COMELEC En Banc resolution would leave just three (3) votes out of
"all" seven (7) members of the COMELEC.
In the COMELEC En Banc Status Quo Ante Order, Commissioner
Lantion stated in his handwriting that "his previous voluntary inhibition
Even former Constitutional Commissioner Fr. Joaquin Bernas, SJ,
is only in the SPR cases and not in the EAC" and that "as further
questions the Cua ruling in light of Section 7, which says "majority of all
agreed in the Second Division, [he] will not participate in the Division
the Members." He thus concludes that "[t]hree is not the majority of
deliberations but will vote when the case is elevated [to the]en banc."
seven."6

In this Court’s Resolution2 of April 28, 2004 now the subject of private
Had the framers intended that it should be the majority of the members
respondent’s Motion for Reconsideration, it was held that:
who participated or deliberated, it would have clearly phrased it that
way as it did with respect to the Supreme Court in Section 4(2), Article
Commissioner Lantion’s voluntary piecemeal inhibition cannot be VIII of the Constitution:
countenanced. Nowhere in the COMELEC Rules does it allow a
Commissioner to voluntarily inhibit with reservation. To allow him to
SECTION 4(2) x x x all other cases which under the Rules of Court are
participate in the En Bancproceedings when he previously inhibited
required to be heard en banc, x x x shall be decided with the
himself in the Division is, absent any satisfactory justification, not only
concurrence of a majority of the members who actually took part in the
judicially unethical but legally improper and absurd.
deliberations on the issues in the case and voted thereon. (Italics in the
original; emphasis and underscoring supplied).
Since Commissioner Lantion could not participate and vote in the
issuance of the questioned order, thus leaving three (3) members
For the foregoing reasons then, this Court hereby abandons the
concurring therewith, the necessary votes of four (4) or majority of the
doctrine laid down in Cua and holds that the COMELEC En Banc shall
members of the COMELEC was not attained. The order thus failed to
decide a case or matter brought before it by a majority vote of "all
comply with the number of votes necessary for the pronouncement of a
its members," and NOT majority of the members who deliberated
decision or order, as required under Rule 3, Section 5(a) of the
and voted thereon.
COMELEC Rules of Procedure which provides:
WHEREFORE, private respondent’s motion for reconsideration is
hereby DENIED.

SO ORDERED.
 EN BANC The Comelec en banc, by a vote of 3-3,8 affirmed the Comelec Second
Division’s ruling in its October 6, 2012 Resolution whose dispositive
portion reads:
G.R. No. 203833 March 19, 2013

WHEREFORE, premises considered, the Motion for Reconsideration is

MAMERTO T. SEVILLA, JR. Petitioner,
hereby DENIED for lack of merit. Respondent judge is directed to
vs.
conduct another revision of the contested ballots in Election Protest
COMMISSION ON ELECTIONS and RENATO R. SO, Respondents.
Case No. SP-6719 with dispatch.9

RESOLUTION
It ruled that where the dismissal was capricious, certiorari lies as the
petition challenges not the correctness but the validity of the order of
BRION, J.: dismissal. The Comelec en banc emphasized that procedural
technicalities should be disregarded for the immediate and final
resolution of election cases inasmuch as ballots should be read and
Before this Court is the petition for certiorari, with prayer for the appreciated with utmost liberality so that the will of the electorate in the
issuance of a Writ of Preliminary Injunction and/or Status Quo Ante choice of public officials may not be defeated by technical infirmities.
Order,1 filed by petitioner Mamerto T. Sevilla, Jr., to nullify the May 14,
2012 Resolution2 of the Commission on Elections (Comelec) Second
Division and the October 6, 2012 Resolution3 of the Comelec en It found that the MeTC Judge committed grave abuse of discretion
banc in SPR (BRGY-SK) No. 70-2011. These assailed Resolutions amounting to lack of jurisdiction when she did not comply with the
reversed and set aside the May 4, 2011 Order of the Muntinlupa City mandatory requirements of Section 2(d), Rule 14 of A.M. No. 07-4-15-
Metropolitan Trial Court, Branch 80 SC on the form of the decision in election protests involving pairs or
groups of ballots written by two persons. It noted that based on the
general and repetitive phraseology of the Order, the MeTC Judge’s
(MeTC), dismissing respondent Renato R. So’s election protest against findings were "copy-pasted" into the decision and ran counter to the
Sevilla. mandate of the aforementioned rule. Also, the MeTC Judge failed to
mention in her appreciation of the ballots that she examined the
The Facts Minutes of Voting and Counting to ascertain whether there were
illiterate voters or assisted voters in the protested precincts. 10
Sevilla and So were candidates for the position of Punong Barangay of
Barangay Sucat, Muntinlupa City during the October 25, 2010 Commissioner Lim’s Dissent 11
Barangay and Sangguniang Kabataan Elections. On October 26, 2010,
the Board of Election Tellers proclaimed Sevilla as the winner with a The dissent posited that So’s petition should be dismissed outright as it
total of 7,354 votes or a winning margin of 628 votes over So’s 6,726 was mired in procedural errors. First, So should have filed an appeal
total votes. On November 4, 2010, So filed an election protest with the within five (5) days from receipt of the MeTC’s Order; a motion for
MeTC on the ground that Sevilla committed electoral fraud, anomalies reconsideration was improper as the Order amounted to the final
and irregularities in all the protested precincts. So pinpointed twenty disposition of the protest. Second, So should not have filed the motion
percent (20%) of the total number of the protested precincts. He also
for reconsideration even if he believed that the Order was interlocutory
prayed for a manual revision of the ballots.4 since a motion for reconsideration is a prohibited pleading. Also, he
could have simply filed the petition for certiorari without the necessity
Following the recount of the ballots in the pilot protested precincts, the of filing the motion for reconsideration. Third, the petition for certiorari
MeTC issued an Order dated May 4, 2011 dismissing the election cannot be a substitute for the lost appeal. The Comelec could not even
protest. On May 9, 2011, So filed a motion for reconsideration from the treat the certiorari as an appeal since the petition was filed 25 days
dismissal order instead of a notice of appeal; he also failed to pay the after So received the assailed Order; thus, the Order already attained
appeal fee within the reglementary period. On May 17, 2011, the finality. Finally, procedural rules should not be lightly shunned in favor
MeTC denied the motion for reconsideration on the ground that it was of liberality when, as in this case, So did not give a valid excuse for his
a prohibited pleading pursuant to Section 1, Rule 6 of A.M. No. 07-04- errors.
15-SC.5
The Petition
In response, So filed a petition for certiorari on May 31, 2011 with the
Comelec, alleging grave abuse of discretion on the part of the MeTC The Comelec gravely abused its discretion when it gave due course to
Judge. So faults the MeTC for its non-observance of the rule that in the the petition for certiorari
appreciation of ballots, there should be a clear and distinct
presentation of the specific details of how and why a certain group of
ballots should be considered as having been written by one or two Sevilla argues that the Comelec gravely abused its discretion when it
persons.6 entertained So’s petition despite its loss of jurisdiction to entertain the
petition after the court a quo’s dismissal order became final and
executory due to So’s wrong choice of remedy. Instead of filing an
The Comelec Second Division Ruling
appeal within five (5) days from receipt of the Order and paying the
required appeal fee, So filed a motion for reconsideration – a
In its May 14, 2012 Resolution, the Comelec Second Division granted prohibited pleading that did not stop the running of the prescriptive
So’s petition. The Comelec Second Division held that certiorari can be period to file an appeal. Sevilla also emphasizes that So’s petition for
granted despite the availability of appeals when the questioned order certiorari should not have been given due course since it is not a
amounts to an oppressive exercise of judicial authority, as in the case substitute for an appeal and may only be allowed if there is no appeal,
before it. It also ruled that the assailed Order was fraught with nor any plain, speedy and adequate remedy in the ordinary course of
infirmities and irregularities in the appreciation of the ballots, and was law.12
couched in general terms: "these are not written by one person
observing the different strokes, slant, spacing, size and indentation of The dismissal of the election protest was proper
handwriting and the variance in writing."7

Sevilla also contends that the dismissal was not tainted with grave
The Comelec En Banc Ruling
abuse of discretion since the MeTC Judge complied with the rules; she
made clear, specific and detailed explanations pertaining to the
specific strokes, figures or letters showing that the ballots had been
written by one person. Granting that the decision was tainted with
errors, certiorari would still not lie because a mere error of judgment is
not synonymous with grave abuse of discretion. Lastly, a liberal the basis of the three dissenting votes by Chairman Brillantes,
application of the rules cannot be made to a petition which offers no Commissioner Sarmiento and Commissioner Lim, as either side was
explanation for the non-observance of the rules.13 short of one (1) vote to obtain a majority decision. Recall that under
Section 7, Article IX-A of the Constitution, a majority vote of all the
members of the Commission en banc is necessary to arrive at a ruling.
On November 13, 2012,14 the Court resolved to require the Comelec
In other words, the vote of four (4) members must always be attained
and the respondent to comment on the petition and to observe the
in order to decide, irrespective of the number of Commissioners in
status quo prevailing before the issuance of the assailed Comelec
attendance. Thus, for all intents and purposes, the assailed October 6,
Second Division’s Resolution of May 14, 2012 and the Comelec en
2012 Resolution of the Comelec en banc had no legal effect
banc’s Resolution of October 6, 2012.15
whatsoever except to convey that the Comelec failed to reach a
decision and that further action is required.
In his Comment, the respondent contends that the petition was filed
prematurely. He emphasizes that the October 6, 2012 Resolution of
The October 6, 2012 Comelec en banc’s Resolution must be reheard
the Comelec en banc was not a majority decision considering that
pursuant to the Comelec Rules of Procedure
three Commissioners voted for the denial of the motion for
reconsideration and the three others voted to grant the same. So notes
that the assailed October 6, 2012 Resolution was deliberated upon To break the legal stalemate in case the opinion is equally divided
only by six (6) Commissioners because the 7th among the members of the Comelec en banc, Section 6, Rule 18 of
the Comelec Rules of Procedure mandates a rehearing where parties
are given the opportunity anew to strengthen their respective positions
Commissioner had not yet been appointed by the President at that
or arguments and convince the members of the Comelec en banc of
time. Considering that the October 6, 2012 Resolution was not a
the merit of their case.19 Section 6, Rule 18 of the Comelec Rules of
majority decision by the Comelec en banc, So prays for the dismissal
Procedure reads:
of the petition so that it can be remanded to the Comelec for a
rehearing by a full and complete Commission.16
Section 6. Procedure if Opinion is Equally Divided. - When the
Commission en banc is equally divided in opinion, or the necessary
The Court’s Ruling
majority cannot be had, the case shall be reheard, and if on rehearing
no decision is reached, the action or proceeding shall be dismissed if
We resolve to DISMISS the petition for having been prematurely filed originally commenced in the Commission; in appealed cases, the
with this Court, and remand the case to the COMELEC for its judgment or order appealed from shall stand affirmed; and in all
appropriate action. incidental matters, the petition or motion shall be denied. [emphasis
ours; italics supplied]
The October 6, 2012 Comelec en banc’s Resolution lacks legal effect
as it is not a majority decision required by the Constitution and by the In Juliano v. Commission on Elections,20 only three members of the
Comelec Rules of Procedure Comelec en banc voted in favor of granting Estrelita Juliano’s motion
for reconsideration (from the Decision of the Comelec Second Division
dismissing her petition for annulment of proclamation of Muslimin
Section 7, Article IX-A of the Constitution requires that "each
Sema as the duly elected Mayor of Cotabato City), three members
Commission shall decide by a majority vote of all its members, any dissented, and one member took no part. In ruling that the Comelec
case or matter brought before it within sixty days from the date of its acted with grave abuse of discretion when it failed to order a rehearing
submission for decision or resolution."17 Pursuant to this Constitutional
required by the Comelec Rules of Procedure, the Court ruled:
mandate, the Comelec provided in Section 5(a), Rule 3 of the Comelec
Rules of Procedure the votes required for the pronouncement of a
decision, resolution, order or ruling when the Comelec sits en banc, Section 6, Rule 18 of the Comelec Rules of Procedure specifically
viz.: states that if the opinion of the Comelec En Banc is equally divided, the
case shall be reheard. The Court notes, however, that the Order of the
Comelec En Banc dated February 10, 2005 clearly stated that what
Section 5. Quorum; Votes Required. - (a) When sitting en banc, four
was conducted was a mere "re-consultation."
(4) Members of the Commission shall constitute a quorum for the
purpose of transacting business. The concurrence of a majority of the
Members of the Commission shall be necessary for the A "re-consultation" is definitely not the same as a "rehearing."
pronouncement of a decision, resolution, order or ruling. [italics
supplied; emphasis ours]
A consultation is a "deliberation of persons on some subject;" hence, a
re-consultation means a second deliberation of persons on some
We have previously ruled that a majority vote requires a vote of four subject.
members of the Comelec en banc. In Marcoleta v. Commission on
Elections,18 we declared "that Section 5(a) of Rule 3 of the Comelec
Rehearing is defined as a "second consideration of cause for purpose
Rules of Procedure and Section 7 of Article IX-A of the Constitution
of calling to court’s or administrative board’s attention any error,
require that a majority vote of all the members of the Comelec en banc,
omission, or oversight in first consideration. A retrial of issues
and not only those who participated and took part in the deliberations,
presumes notice to parties entitled thereto and opportunity for them to
is necessary for the pronouncement of a decision, resolution, order or
be heard." (italics supplied). But as held in Samalio v. Court of
ruling."
Appeals,

In the present case, while the October 6, 2012 Resolution of the

A formal or trial-type hearing is not at all times and in all instances
Comelec en banc appears to have affirmed the Comelec Second
essential.1âwphi1 The requirements are satisfied where the parties are
Division’s Resolution and, in effect, denied Sevilla’s motion for
afforded fair and reasonable opportunity to explain their side of the
reconsideration, the equally divided voting between three
controversy at hand.
Commissioners concurring and three Commissioners dissenting is not
the majority vote that the Constitution and the Comelec Rules of
Procedure require for a valid pronouncement of the assailed October Thus, a rehearing clearly presupposes the participation of the opposing
6, 2012 Resolution of the Comelec en banc. parties for the purpose of presenting additional evidence, if any, and
further clarifying and amplifying their arguments; whereas, a re-
consultation involves a re-evaluation of the issues and arguments
In essence, based on the 3-3 voting, the Comelec en banc did not
already on hand only by the members of the tribunal, without the
sustain the Comelec Second Division’s findings on the basis of the
participation of the parties.
three concurring votes by Commissioners Tagle, Velasco and Yusoph;
conversely, it also did not overturn the Comelec Second Division on
In Belac v. Comelec, when the voting of the Comelec En Banc on
therein petitioner’s motion for reconsideration was equally divided, the
Comelec En Banc first issued an order setting the case for hearing and
allowed the parties to submit their respective memoranda before voting
anew on therein petitioner’s motion for reconsideration. This should
have been the proper way for the Comelec En Banc to act on herein
petitioner’s motion for reconsideration when the first voting was equally
divided. Its own Rules of Procedure calls for a rehearing where the
parties would have the opportunity to strengthen their respective
positions or arguments and convince the members of the Comelec En
Banc of the merit of their case. Thus, when the Comelec En Banc
failed to give petitioner the rehearing required by the Comelec Rules of
Procedure, said body acted with grave abuse of discretion. 21 (italics
supplied; emphases ours)

To the same effect, in Marcoleta v. Commission on Elections,22 the

Court ruled that the Comelec en banc did not gravely abuse its
discretion when it ordered a rehearing of its November 6, 2007
Resolution for failing to muster the required majority voting. The Court
held:

The Comelec, despite the obvious inclination of three commissioners

to affirm the Resolution of the First Division, cannot do away with a
rehearing since its Rules clearly provide for such a proceeding for the
body to have a solicitous review of the controversy before it. A
rehearing clearly presupposes the participation of the opposing parties
for the purpose of presenting additional evidence, if any, and further
clarifying and amplifying their arguments.

To reiterate, neither the assenters nor dissenters can claim a majority

in the En Banc Resolution of November 6, 2007. The Resolution
served no more than a record of voters, lacking in legal effect despite
its pronouncement of reversal of the First Division Resolution.
According, the Comelec did not commit any grave abuse of discretion
in ordering a rehearing.23 (italics supplied; citation omitted)

In the present case, it appears from the records that the Comelec en
banc did not issue an Order for a rehearing of the case in view of the
filing in the interim of the present petition for certiorari by Sevilla. In
both the cases of Juliano and Marcoleta, cited above, we remanded
the cases to the Comelec en banc for the conduct of the required
rehearing pursuant to the Comelec Rules of Procedure. Based on
these considerations, we thus find that a remand of this case is
necessary for the Comelec en banc to comply with the rehearing
requirement of Section 6, Rule 18 of the Comelec Rules of Procedure.

WHEREFORE, we hereby DISMISS the petition and REMAND SPR

(BR GY-SK) No. 70-2011 to the Comelec en bane for the conduct of
the required rehearing under the Comelec Rules of Procedure. The
Comelec en bane is hereby ORDERED to proceed with the rehearing
with utmost dispatch.

No costs.

SO ORDERED.
 EN BANC the candidates who filed the Petition/Opposition were permanent
residents and were domiciled at the place where they sought to be
elected.
G.R. No. 192289 January 8, 2013

The COMELEC en banc denied the Petition/Opposition through the

KAMARUDIN K. IBRAHIM, Petitioner,
herein assailed Resolution dated May 6, 2010. The COMELEC
vs.
declared that the Resolution dated December 22, 2009 was anchored
COMMISSION ON ELECTIONS and ROLAN G.
on the certification, which was issued by Buagas and Acting Provincial
BUAGAS, Respondents.
Election Supervisor of Maguindanao, Estelita B. Orbase, stating that
Ibrahim, among other candidates, were not registered voters of Datu
DECISION Unsay, Maguindanao. The certification was issued in the performance
of official duty, hence, the presumption of regularity attached to it in the
absence of contrary evidence. Ibrahim and company failed to adduce
REYES, J.:
evidence proving their allegations of registration and residence.

Before us is a Petition for Certiorari and Prohibition with Prayer for the In the May 10, 2010 elections, during which time the Resolution dated
Issuance of a Writ of Preliminary Injunction and/or Temporary
May 6, 2010 had not yet attained finality, Ibrahim obtained 446 votes,
Restraining Order1 filed under Rule 64 of the Rules of Court assailing the highest number cast for the Vice-Mayoralty race in Datu
the following resolutions of the public respondent Commission on Unsay.9 However, the Municipal Board of Canvassers (MBOC), which
Elections (COMELEC):
was then chaired by Buagas, suspended Ibrahim’s proclamation on the
basis of Section 5, Rule 2510 of the COMELEC Rules of Procedure.11
(a) Minute Resolution No. 09-09462 (December 22, 2009
Resolution), dated December 22, 2009, disqualifying the
Issue
petitioner herein, Kamarudin K. Ibrahim (Ibrahim), from the
2010 Vice-Mayoralty race in Datu Unsay, Maguindanao for
supposedly not being a registered voter of the said Whether or not the COMELEC en banc acted with grave abuse of
municipality; and discretion amounting to lack or excess of jurisdiction when it issued the
Resolutions dated December 22, 2009 and May 6, 2010.
(b) Resolution3 (May 6, 2010 Resolution) issued on May 6,
2010, relative to SPA Case No. 10-002 (MP) LOCAL, Arguments in Support of the Instant Petition
denying Ibrahim’s opposition4 to Resolution No. 09-0946.
Ibrahim posits that the MBOC is a ministerial body created merely "to
Antecedent Facts take the returns as made from the different voting precincts, add them
up and declare the result."12 As long as the returns are on their face
genuine and are signed by the proper officers, sans indications of
On December 1, 2009, Ibrahim filed his certificate of candidacy to run being spurious and forged, they cannot be rejected on the ground of
as Vice-Mayor of Datu-Unsay in the May 10, 2010 elections. alleged questions on the qualifications of voters and the existence of
Thereafter, respondent Rolan G. Buagas (Buagas), then Acting electoral frauds and irregularities. Further, since Ibrahim received the
Election Officer in the said municipality, forwarded to the COMELEC’s highest number of votes for Vice-Mayor, all possible doubts should be
Law Department (Law Department) the names of 20 candidates who resolved in favor of his eligibility, lest the will of the electorate, which
were not registered voters therein. The list5 included Ibrahim’s name,
should be the paramount consideration, be defeated.13
along with those of two candidates for mayor, one for vice-mayor and
16 for councilor.
In its Manifestation and Motion in Lieu of Comment,14 the Office of the
Solicitor General (OSG) proposes for the instant Petition to be granted.
In a Memorandum6 dated December 10, 2009, the Law Department The OSG points out that in Cipriano v. Commission on Elections,15 this
brought to the attention of the COMELEC en banc the names of 56 court nullified, for lack of proper proceedings before their issuance, the
candidates running for various posts in Maguindanao and Davao del
resolutions issued by the COMELEC relative to the cancellation of a
Sur who were not registered voters of the municipalities where they certificate of candidacy. The OSG emphasizes that similarly, Ibrahim
sought to be elected. The Law Department recommended the retention was disqualified as a candidate without prior notice and hearing and he
of the said names in the Certified List of Candidates, but for the
was given the chance to file an opposition only after the issuance of
COMELEC to motu propio institute actions against them for the Resolution dated December 22, 2009.
disqualification and for violation of election laws. Thereafter, the
COMELEC en banc issued the herein assailed December 22, 2009
Resolution approving, but with modification, the Law Further citing Bautista v. Comelec,16 the OSG argues that jurisdiction
over petitions to cancel a certificate of candidacy pertains to the
COMELEC sitting in division and not to the COMELEC en banc. The
Department’s recommendation in the following wise:
COMELEC en banc can only take cognizance of petitions to cancel a
certificate of candidacy when the required number of votes for a
1. to disqualify the foregoing candidates for not being division to reach a decision, ruling, order or resolution is not obtained,
registered voters of the respective municipalities where they or when motions for reconsideration are filed to assail the said
seek to be elected without prejudice to their filing of an issuances of a division.
opposition within two (2) days from publication hereof; and
The OSG likewise refers to Section 4(B)(3)17 of Resolution No.
2. to file election offense cases against said candidates for 869618 to stress that generally, the COMELEC cannot motu propio file
violation of Sec. 74 in relation to Sec. 262 of the Omnibus petitions for disqualification against candidates. Section 519 of the
Election Code.7 (Italics ours) same resolution, however, provides the only exception to the
foregoing, to wit, that certificates of candidacy of those running for the
positions of President, Vice-President, Senator and Party-List maybe
On January 8, 2010, Ibrahim and 50 other candidates filed a denied due course and canceled motu propio by the COMELEC based
Petition/Opposition8 to assail the Resolution dated December 22, 2009. on grounds enumerated therein. While there was a Petition for
In the Petition/Opposition, which was docketed as SPA 10-002 (MP) Disqualification20filed by Bai Reshal S. Ampatuan against Ibrahim and
LOCAL, it was stressed that some of those affected by the Resolution company, it was not the basis for the COMELEC en banc’s issuance of
dated December 22, 2009 had participated as candidates in the 2004 the Resolutions dated December 22, 2009 and May 6, 2010. Instead,
and 2007 elections. If indeed they were not registered voters, they the certification issued by Buagas was the basis for the subsequent
should have been disqualified then. Further, it was emphasized that
actions of the Law Department and the COMELEC en banc leading to Ibrahim properly resorted to the instant Petition filed under Rule 64 of
the issuance of the herein assailed resolutions. the Rules of Court to assail the Resolutions dated December 22, 2009
and May 6, 2010 of the COMELEC en banc.
The OSG also invokes Section 1621 of COMELEC Resolution No.
867822 to assert that the MBOC had no authority to order the The COMELEC seeks the dismissal of the instant Petition on the basis
suspension of Ibrahim’s proclamation. Upon motion, the suspension of of a technical ground, to wit, that Ibrahim’s resort to a petition for
a winning candidate’s proclamation can be ordered during the certiorari filed under Rule 64 of the Rules of Court to challenge the
pendency of a disqualification case before the COMELEC. However, Resolutions dated December 22, 2009 and May 6, 2010 is improper.
only the COMELEC, as a tribunal, has the authority to issue orders Ibrahim should have instead filed before the COMELEC a pre-
relative to cases pending before it. The MBOC cannot substitute its proclamation controversy to allow the latter to correct the MBOC’s
own judgment for that of the COMELEC’s. The MBOC can suspend a ruling if it was indeed erroneous.
winning candidate’s proclamation only when an actual issue within the
Board’s jurisdiction arises in the course of conducting a canvass. The
The claim fails to persuade.
aforementioned issues include the commission of violent and terrorist
acts or the occurrence of a calamity at the canvassing site. Absent any
determination of irregularity in the election returns, as well as an order Section 7, Article IX of the 1987 Constitution in part substantially
enjoining the canvassing and proclamation of the winner, it is a provides that any decision, order or ruling of any of the Constitutional
mandatory and ministerial duty of the MBOC concerned to count the Commissions may be brought for review to the Supreme Court on
votes based on such returns and declare the result. 23 certiorari within 30 days from receipt of a copy thereof. The orders,
ruling and decisions rendered or issued by the COMELEC en banc
must be final and made in the exercise of its adjudicatory or quasi-
It is also the OSG’s position that Section 5, Rule 2524 of the COMELEC
judicial power.30 Further, Section 1, Rule 64 of the Rules of Court
Rules of Procedure was irregularly worded for using the word "shall"
states that it shall govern the review of final judgments and orders or
when Section 625 of Republic Act (R.A.) No. 6646,26 which the rules
resolutions of the COMELEC and the Commission on Audit.
seek to implement, merely employed the word "may". The use of the
word "may" indicates that the suspension of a proclamation is merely
directory and permissive in nature and operates to confer discretion. 27 A pre-proclamation controversy is defined in Section 241 of the OEC
as referring to "any question pertaining to or affecting the proceedings
of the board of canvassers which may be raised by any candidate or
The COMELEC’s Contentions
by any registered political party or coalition of parties before the board
or directly with the Commission, or any matter raised under Sections
In the Compliance28 filed with the court, the COMELEC assails as 233,31 234,32 23533 and 23634 in relation to the preparation,
improper Ibrahim’s immediate resort to the instant Petition for Certiorari transmission, receipt, custody and appreciation of the election returns."
under Rule 64 of the Rules of Court. Despite the issuance of the herein Section 243 of the OEC restrictively enumerates as follows the issues
assailed resolutions, Ibrahim’s name was not stricken off from the which can be raised in a pre-proclamation controversy:
certified list of candidates during the May 10, 2010 elections and the
votes cast for him were counted. Hence, no actual prejudice was
(a) Illegal composition or proceedings of the board of
caused upon him as the COMELEC did not even direct the MBOC to
canvassers;
suspend his proclamation. It was the MBOC’s ruling which resulted to
the suspension of his proclamation. Such being the case, Ibrahim
should have instead filed a pre-proclamation controversy before the (b) The canvassed election returns are incomplete, contain
COMELEC anchored on the supposed illegality of the MBOC’s material defects, appear to be tampered with or falsified, or
proceedings. Section 241 of Batas Pambansa Blg. 881 (BP 881), contain discrepancies in the same returns or in other
otherwise known as the Omnibus Election Code (OEC), defines pre- authentic copies thereof as mentioned in Sections 233, 234,
proclamation controversies as referring to any questions "pertaining to 235 and 236 of this Code;
or affecting the proceedings of the board of canvassers which may be
raised by any candidate or by any registered political party or coalition
(c) The election returns were prepared under duress,
of political parties before the board or directly with the Commission, or
any matter raised xxx in relation to the preparation, transmission, threats, coercion, or intimidation, or they are obviously
receipt, custody and appreciation of the election returns." Had Ibrahim manufactured or not authentic; and
instituted instead a pre-proclamation controversy, the COMELEC could
have corrected the MBOC’s ruling, if indeed, it was erroneous. (d) When substitute or fraudulent returns in controverted
polling places were canvassed, the results of which
materially affected the standing of the aggrieved candidate
The COMELEC further argues that Ibrahim was not denied due
process as he and the other candidates referred to in the Resolutions or candidates.
dated December 22, 2009 and May 6, 2010 were given the opportunity
to file their opposition. Ibrahim did file his Petition/Opposition and The illegality of the proceedings of the board of canvassers is the first
sought reliefs from the COMELEC en banc. Now, he should not be issue which may be raised in a pre-proclamation controversy. To
allowed to repudiate the proceedings merely because the result was illustrate, the proceedings are to be considered as illegal when the
adverse to him. Moreover, the OSG’s invocation of the doctrines board is constituted not in accordance with law, or is composed of
enunciated in Bautista v. Comelec29 is misplaced because in the said members not enumerated therein, or when business is transacted sans
case, there was a total absence of notice and hearing. a quorum.

The COMELEC emphasizes that Ibrahim was undeniably not a In the case at bar, the now assailed Resolutions dated December 22,
registered voter in Datu Unsay when he ran as Vice-Mayor in the May 2009 and May 6, 2010 were issued with finality by the COMELEC en
10, 2010 elections. He cannot possess any mandate to serve as an banc. Under the Constitution and the Rules of Court, the said
elected official as by his act and willful misrepresentations, he had resolutions can be reviewed by way of filing before us a petition for
deceived the electorate. certiorari. Besides, the issues raised do not at all relate to alleged
irregularities in the preparation, transmission, receipt, custody and
Our Ruling appreciation of the election returns or to the composition and
proceedings of the board of canvassers. What the instant Petition
challenges is the authority of the MBOC to suspend Ibrahim’s
We grant the instant Petition. proclamation and of the COMELEC en banc to issue the assailed
resolutions. The crux of the instant Petition does not qualify as one
which can be raised as a pre-proclamation controversy.
Before resolving the merits of the petition, the court shall first dispose
of the procedural issue raised by the COMELEC.
The COMELEC en banc is devoid of authority to disqualify Ibrahim as In the case at bar, the COMELEC en banc, through the herein assailed
a candidate for the position of Vice-Mayor of Datu Unsay. resolutions, ordered Ibrahim’s disqualification even when no complaint
or petition was filed against him yet. Let it be stressed that if filed
before the conduct of the elections, a petition to deny due course or
Section 3(C), Article IX of the 1987 Constitution explicitly provides:
cancel a certificate of candidacy under Section 78 of the OEC is the
appropriate petition which should have been instituted against Ibrahim
Sec. 3. The Commission on Elections may sit en banc or in two considering that his allegedly being an unregistered voter of Datu
divisions, and shall promulgate its rules of procedure in order to Unsay disqualified him from running as Vice-Mayor. His supposed
expedite disposition of election cases, including pre-proclamation misrepresentation as an eligible candidate was an act falling within the
controversies. All such election cases shall be heard and decided in purview of Section 78 of the OEC. Moreover, even if we were to
division, provided that motions for reconsideration of decisions shall be assume that a proper petition had been filed, the COMELEC en banc
decided by the Commission en banc. (Italics ours) still acted with grave abuse of discretion when it took cognizance of a
matter, which by both constitutional prescription and jurisprudential
declaration, instead aptly pertains to one of its divisions.
Further, the circumstances obtaining in Bautista v. Comelec35 cited by
the OSG in its Manifestation are similar to those attendant to the
instant Petition. In Bautista, the election officer reported to the Law Ibrahim is not estopped from challenging the COMELEC en banc’s
Department that Bautista was ineligible to run as a candidate by jurisdiction to issue the assailed resolutions.
reason of his being an unregistered voter. The Law Department
recommended to the COMELEC en banc to deny due course or cancel
In Republic v. Bantigue Point Development Corporation,37 we stated:
Bautista’s certificate of candidacy. The COMELEC en banc adopted
the recommendation and consequently issued a resolution. In the said
case, this Court discussed the COMELEC en banc’s jurisdiction over The rule is settled that lack of jurisdiction over the subject matter may
petitions for disqualification, for denial of due course, or cancellation of be raised at any stage of the proceedings. Jurisdiction over the subject
certificates of candidacy in the following wise: matter is conferred only by the Constitution or the law. It cannot be
acquired through a waiver or enlarged by the omission of the parties or
conferred by the acquiescence of the court. Consequently, questions
In Garvida v. Sales, Jr., the Court held that it is the COMELEC sitting
of jurisdiction may be cognizable even if raised for the first time on
in division and not the COMELEC en banc which has jurisdiction over
appeal.
petitions to cancel a certificate of candidacy. The Court held:

The ruling of the Court of Appeals that "a party may be estopped from
The Omnibus Election Code, in Section 78, Article IX, governs the
raising such jurisdictional question if he has actively taken part in the
procedure to deny due course to or cancel a certificate of candidacy,
very proceeding which he questions, belatedly objecting to the court’s
viz:
jurisdiction in the event that the judgment or order subsequently
rendered is adverse to him" is based on the doctrine of estoppel by
"Sec.78. Petition to deny due course to or cancel a certificate of laches. We are aware of that doctrine first enunciated by this Court in
candidacy.1âwphi1  A verified petition seeking to deny due course or Tijam v. Sibonghanoy. In Tijam, the party-litigant actively participated
to cancel a certificate of candidacy may be filed by any person in the proceedings before the lower court and filed pleadings therein.
exclusively on the ground that any material representation contained Only 15 years thereafter, and after receiving an adverse Decision on
therein as required under Section 74 hereof is false. The petition may the merits from the appellate court, did the party-litigant question the
be filed at any time not later than twenty-five days from the time of lower court’s jurisdiction. Considering the unique facts in that case, we
filing of the certificate of candidacy and shall be decided, after due held that estoppel by laches had already precluded the party-litigant
notice and hearing, not later than fifteen days before election." from raising the question of lack of jurisdiction on appeal. In Figueroa
v. People, we cautioned that Tijam must be construed as an exception
to the general rule and applied only in the most exceptional cases
In relation thereto, Rule 23 of the COMELEC Rules of Procedure whose factual milieu is similar to that in the latter case.38 (Citations
provides that a petition to deny due course to or cancel a certificate of omitted and italics ours)
candidacy for an elective office may be filed with the Law Department
of the COMELEC on the ground that the candidate has made a false
material representation in his certificate. The petition may be heard As enunciated above, estoppel by laches can only be invoked in
and evidence received by any official designated by the COMELEC exceptional cases with factual circumstances similar to those in
after which the case shall be decided by the COMELEC itself. Tijam.39 In the case now before us, the assailed resolutions were
issued on December 22, 2009 and May 6, 2010. The instant Petition,
which now raises, among others, the issue of the COMELEC en banc’s
Under the same Rules of Procedure, jurisdiction over a petition to jurisdiction, was filed on June 3, 2010. With the prompt filing of the
cancel a certificate of candidacy lies with the COMELEC sitting in instant Petition, Ibrahim can hardly be considered as guilty of laches.
Division, not en banc. Cases before a Division may only be entertained
by the COMELEC en banc when the required number of votes to reach
a decision, resolution, order or ruling is not obtained in the Division. Ibrahim was not denied due process.
Moreover, only motions to reconsider decisions, resolutions, orders or
rulings of the COMELEC in Division are resolved by the COMELEC en Interminably, we have declared that deprivation of due process cannot
banc. be successfully invoked where a party was given the chance to be
heard on his motion for reconsideration.40
xxxx
In the case before us, Ibrahim was afforded the chance to file an
Under Section 3, Rule 23 of the 1993 COMELEC Rules of Procedure, opposition to the assailed resolutions. Nonetheless, even if due
a petition for the denial or cancellation of a certificate of candidacy process was substantially observed, the assailed resolutions remain
must be heard summarily after due notice. It is thus clear that null and void for want of authority on the part of the COMELEC en
cancellation proceedings involve the exercise of the quasi-judicial banc to take cognizance of a matter which should have instead been
functions of the COMELEC which the COMELEC in division should referred to one of its divisions.
first decide. More so in this case where the cancellation proceedings
originated not from a petition but from a report of the election officer The MBOC has no authority to suspend Ibrahim’s proclamation
regarding the lack of qualification of the candidate in the barangay especially since the herein assailed resolutions, upon which the
election. The COMELEC en banc cannot short cut the proceedings by suspension was anchored, were issued by the COMELEC en banc
acting on the case without a prior action by a division because it denies outside the ambit of its jurisdiction.
due process to the candidate.36 (Citation omitted and italics ours)

Mastura v. COMELEC41 is emphatic that:

(T)he board of canvassers is a ministerial body. It is enjoined by law to
canvass all votes on election returns submitted to it in due form. It has
been said, and properly, that its powers are limited generally to the
mechanical or mathematical function of ascertaining and declaring the
apparent result of the election by adding or compiling the votes cast for
each candidate as shown on the face of the returns before them, and
then declaring or certifying the result so ascertained. x x x.42 (Italics
ours)

The simple purpose and duty of the canvassing board is to ascertain

and declare the apparent result of the voting while all other questions
are to be tried before the court or other tribunal for contesting elections
or in quo warranto proceedings.43

In the case at bar, the MBOC motu propio suspended Ibrahim’s

proclamation when the issue of the latter’s eligibility is a matter which
the board has no authority to resolve. Further, under Section 644 of
R.A. 6646, the COMELEC and not the MBOC has the authority to
order the suspension of a winning candidates’s proclamation. Such
suspension can only be ordered upon the motion of a complainant or
intervenor relative to a case for disqualification, or a petition to deny
due course or cancel a certificate of candidacy pending before the
COMELEC, and only when the evidence of the winning candidate’s
guilt is strong. Besides, the COMELEC en banc itself could not have
properly ordered Ibrahim’s disqualification because in taking
cognizance of the matter, it had already exceeded its jurisdiction.

WHEREFORE, IN VIEW OF THE FOREGOING, the instant petition is

GRANTED. The December 22, 2009 and May 6, 2010 Resolutions
issued by the COMELEC en banc is ANNULLED and SET ASIDE.
Consequently, the suspension by the MBOC of Ibrahim’s proclamation
on the basis of the herein assailed resolutions is likewise ANNULLED
and SET ASIDE. In the absence of a judgment, order or resolution
relative to another action or petition finally disqualifying Ibrahim,
denying due course or cancelling his certificate of candidacy, the
MBOC of Datu Unsay is directed to convene within ten (10) days from
receipt hereof and to proclaim Ibrahim as the duly-elected Vice-Mayor
of the said municipality.

SO ORDERED.
 EN BANC On June 13, 2001, respondent Suyat filed before the COMELEC en
banc an Urgent Motion for Issuance of Order to Reconvene,3 which the
latter treated as a Petition for Correction of Manifest Error. Petitioner
G. R. No. 155717 - October 23, 2003
countered in his Answer4 that said petition should be dismissed for
having been filed out of time and for lack of the required certification of
ALBERTO JARAMILLA, Petitioner, vs. COMMISSION ON non-forum shopping.
ELECTIONS, ANTONIO SUYAT, MUNICIPAL BOARD OF
CANVASSERS OF STA. CRUZ, ILOCOS SUR, THE NEW
On October 24, 2002, COMELEC en banc issued the assailed
MUNICIPAL BOARD OF CANVASSERS (COMELEC), AND IRENEO
resolution, the dispositive portion of which reads:5cräläwvirtualibräry
CORTEZ, Respondents.

WHEREFORE, premises considered, the Motion/Petition is hereby

DECISION
GRANTED. The proclamation of Respondent ALBERTO J.
JARAMILLA [herein petitioner] is ANNULLED. A New Municipal Board
AZCUNA, J.: of Canvassers is hereby created composed of the following:

For review before the Court is the instant petition for certiorari1 with Atty. NELIA AUREUS Chairman
prayer for temporary restraining order and preliminary injunction
ascribing grave abuse of discretion to public respondent Commission
Atty. MICHAEL D. DIONEDA Vice Chairman
on Elections (COMELEC) in issuing its en banc resolution dated
October 24, 2002.
Atty. ALLEN FRANCIS F. ABAYA Member
The antecedent facts, as summarized in the COMELEC
resolution,2 are as follows: The New Board is hereby directed to immediately convene at the
Comelec Session Hall, Intramuros, Manila, after due notice to parties
and effect a correction in the entry in the Statement of Votes by
[Respondent] Antonio Suyat and [petitioner] Alberto J. Jaramilla both
Precinct particularly the votes for Respondent Alberto Jaramilla [herein
ran for the position of Member of the Sangguniang Bayan in the
petitioner], who should be credited with twenty three (23) votes only.
Municipality of Sta. Cruz, Ilocos Sur in the May 14, 2001 elections.
Thereafter, the New Board shall prepare a corrected Certificate of
Canvass and Proclamation on the basis of the New Statement of Votes
On May 16, 2001, the Municipal Board of Canvassers of Sta. Cruz, and proclaim the Petitioner [herein private respondent Suyat] as the
proclaimed the winning candidates for the offices of Mayor, Vice-Mayor eighth (8th) Board Member of Sta. Cruz, Ilocos Sur. Mr. Ireneo Habon
and eight (8) members of the Sangguniang Bayan. The Certificate of Cortez shall be declared the 7th Municipal Board Member. The New
Canvass of Votes and Proclamation shows the following results and Board shall use the Comelec copies of the election returns and
ranking with respect to the members of the Sangguniang Bayan, to wit: Statement of Votes pertaining to the instant case.

SO ORDERED.
Name of Candidates Total Votes Obtained

1. RAGUCOS, Ma. Luisa Laxamana 6,324 Hence the present recourse by petitioner anchored on the following
grounds:
2. ABAYA, Juan Jr., Andaquig 6,013

3. GINES, Fidel Cudiamat 5,789 I. THAT THE COMMISSION ON ELECTION ERRED IN NOT
DISMISSING THE CASE CONSIDERING THAT THE PETITION
4. QUILOP, Renato Avila 5,227 FILED BEFORE THE COMELEC WAS FILED BEYOND THE
PRESCRIPTIVE PERIOD AS SET FORTH IN THE COMELEC RULES
5. BILIGAN, Osias Depdepen 5,130
OF PROCEDURE.
6. RUIZ, Agustin Turgano 4,972
II. THAT THE COMMISSION ON ELECTION ERRED IN GIVING DUE
7. JARAMILLA, Alberto Jimeno 4,815 COURSE TO THE PETITION INSTEAD OF DISMISSING IT
8. CORTEZ, Ireneo Habon 4,807 CONSIDERING THAT THE PETITION LACKED A CERTIFICATION
AGAINST FORUM-SHOPPING.

In the tabulated results issued by the Election Officer and Chairperson III. THAT THE COMMISSION ON ELECTION ERRED IN NOT
of the Municipal Board of Canvassers of Sta. Cruz, it is shown that DISMISSING THE CASE FOR FAILURE TO PAY THE DOCKET OR
[respondent Suyat] obtained Four thousand seven hundred seventy FILING FEE ON TIME.6
nine (4,779) votes and was ranked no. 9.
Before discussing the merits, although not raised in the petition, the
Upon review by [respondent Suyat], he discovered that [petitioner] was Court deems it appropriate to discuss the jurisdiction of the
credited with only twenty three (23) votes per Election Return from COMELEC en banc in election cases. Article IX-C of the Constitution
Precinct No. 34A1. However, when the figures were forwarded to the states in part that:
Statement of Votes by Precinct, [petitioner] was credited with seventy
three (73) votes for Precinct No. 34A1 or fifty (50) votes more than
what he actually obtained. If the entry were to be corrected, the Sec. 3. The Commission on Elections may sit en banc or in two
affected candidates would be ranked as follows: divisions, and shall promulgate its rules of procedure in order to
expedite disposition of election cases, including pre-proclamation
controversies. All such election cases shall be heard and decided in
7. CORTEZ, Ireneo Habon 4,807 division, provided that motions for reconsideration of decisions shall be
decided by the Commission en banc.7cräläwvirtualibräry
8. SUYAT, Antonio 4,779

9. JARAMILLA, Alberto 4,765 As stated in the provision, and in line with the Courts recent
pronouncement in Milla v. Balmores-Laxa,8 election cases including
pre-proclamation controversies should first be heard and decided by a
division of the COMELEC, and then by the commission en banc if a votes in his favor. The COMELECs unquestioned findings of fact are
motion for reconsideration of the division is filed. therefore sustained. The Court reiterates that factual findings of the
COMELEC based on its own assessments and duly supported by
evidence, are given conclusive weight in the absence of arbitrariness
It must be noted however that this provision applies only in cases
or grave abuse of discretion.19cräläwvirtualibräry
where the COMELEC exercises its adjudicatory or quasi-judicial
powers, and not when it merely exercises purely administrative
functions. This doctrine was laid out in Castromayor v. Laws governing election contests must be liberally construed to the
COMELEC,9 and reiterated in subsequent cases.10 Accordingly, when end that the will of the people in the choice of public officials may not
the case demands only the exercise by the COMELEC of its be defeated by mere technical objections.20 Adherence to technicality
administrative functions, such as the correction of a manifest mistake that would put a stamp on a palpably void proclamation, with the
in the addition of votes or an erroneous tabulation in the statement of inevitable result of frustrating the peoples will, can never be
votes, the COMELEC en banc can directly act on it in the exercise of countenanced.21cräläwvirtualibräry
its constitutional function to decide questions affecting
elections.11cräläwvirtualibräry
WHEREFORE, finding no grave abuse of discretion committed by
public respondent COMELEC, its Resolution en banc dated October
The Petition for Correction of Manifest Errors in the case at bar alleges 24, 2002 is AFFIRMED. The petition is DISMISSED.
an erroneous copying of figures from the election return to the
Statement of Votes by Precinct. Such an error in the tabulation of the
No pronouncement as to costs.
results, which merely requires a clerical correction without the
necessity of opening ballot boxes or examining ballots, demands only
the exercise of the administrative power of the COMELEC. Hence, the SO ORDERED.
Commissionen banc properly assumed original jurisdiction over the
aforesaid petition.

Now we proceed to the merits of the case.

Petitioner bewails the fact that the COMELEC took cognizance of

respondent Suyats petition for correction despite its having been filed
beyond the 5-day reglementary period fixed in the COMELEC Rules of
Procedure and its lack of certification against forum-
shopping.12cräläwvirtualibräry

Petitioner overlooks the fact that the COMELEC has the discretion to
suspend its rules or any portion thereof in the interest of justice.
Section 4, Rule 1 of the COMELEC Rules expressly provides that:

SEC. 4. Suspension of the Rules In the interest of justice and in order

to obtain speedy disposition of all matters pending before the
commission, these rules or any portion thereof may be suspended by
the Commission.

The COMELEC therefore has authority to suspend the reglementary

periods provided by the rules, or the requirement of certification of non-
forum shopping for that matter, in the interest of justice and speedy
resolution of the cases before it.13cräläwvirtualibräry

Petitioner next points out respondent Suyats omission to pay the

prescribed filing fees.

As correctly pointed out by the Office of the Solicitor General, the

COMELEC is not constrained to dismiss a case before it by reason of
non-payment of filing fees.14 Section 18, Rule 40 the COMELEC Rules
of Procedure states:

SEC 18. Nonpayment of Prescribed Fees If the fees above prescribed

are not paid, the Commission may refuse to take action thereon until
they are paid and may dismiss the action or the
proceeding.15cräläwvirtualibräry

The use of the word "may" in the aforecited provision readily shows
that the COMELEC is conferred the discretion whether to entertain the
petition or not in case of non-payment of legal fees.16 And even if it
were not afforded such discretion, as discussed above, it is authorized
to suspend its rules or any portion thereof in the interest of
justice.17cräläwvirtualibräry

It is noteworthy that petitioner only raised issues on the foregoing

technicalities, without questioning the COMELECs finding of manifest
error in the tabulation of votes. Even at the COMELEC stage, his
denial in his Answer18 was unsubstantiated by any rebuttal evidence to
disprove the submitted photocopies of the election returns and
statement of votes, which clearly showed the erroneous addition of 50
 EN BANC 2013.2 R.A. No. 10360 was published in the Philippine Star and the
Manila Bulletin only on 21 January 2013. Considering that R.A. No.
10360 shall take effect 15 days after its publication in at least two
G.R. No. 209185 October 25, 2013
newspapers of general and local circulation,3COMELEC, therefore,
only had until 6 April 2013 to conduct the plebiscite.4
MARC DOUGLAS IV C. CAGAS, Petitioner,
vs.
As early as 27 November 2012, prior to the effectivity of R.A. No.
COMMISSION ON ELECTIONS represented by its CHAIRMAN
10360, the COMELEC suspended the conduct of all plebiscites as a
ATTY. SIXTO BRILLANTES JR. and the PROVINCIAL ELECTION
matter of policy and in view of the preparations for the 13 May 2013
OFFICER OF DAVAO DEL SUR, represented by ATTY. MA. FEBES
National and Local Elections.5 On 9 July 2013, the COMELEC
BARLAAN,Respondents.
extended

RESOLUTION
the policy on suspension of the holding of plebiscites by resolving to
defer action on the holding of all plebiscites until after the 28 October
CARPIO, J.: 2013 Barangay Elections.6 During a meeting held on 31 July 2013, the
COMELEC decided to hold the plebiscite for the creation of Davao
Occidental simultaneously with the 28 October 2013 Barangay
This Resolution resolves the Petition for Prohibition,1 filed by Marc Elections to save on expenses7 . The COMELEC, in Minute Resolution
Douglas IV C. Cagas (Cagas), in his capacity as taxpayer, to prohibit No. 13-0926, approved the conduct of the Concept of Execution for the
the Commission on Elections (COMELEC) from conducting a plebiscite
conduct of the plebiscite on 6 August 2013.8 On 14 August 2013,
for the creation of the province of Davao Occidental simultaneously Bartolome J. Sinocruz, Jr., the Deputy Executive Director for
with the 28 October 2013 Barangay Elections within the whole Operations of the COMELEC, issued a memorandum furnishing a copy
province of Davao del Sur, except in Davao City.
of Minute Resolution No. 13-0926 to Atty. Remlane M. Tambuang,
Regional Election Director of Region XI; Atty. Ma. Febes M. Barlaan,
Cagas, while he was representative of the first legislative district of Provincial Election Supervisor of Davao del Sur; and to all election
Davao del Sur, filed with Hon. Franklin Bautista, then representative of officers of Davao del Sur. On 6 September 2013, the COMELEC
the second legislative district of the same province, House Bill No. promulgated Resolution Nos. 97719 and 9772.10Resolution No. 9771
4451 (H.B. No. 4451), a bill creating the province of Davao Occidental. provided for the following calendar of activities:
H.B. No. 4451 was signed into law as Republic Act No. 10360 (R.A.
No. 10360), the Charter of the Province of Davao Occidental.
DATE/PERIOD ACTIVITIES
Sections 2 and 7 of R.A. No. 10360 provide for the composition of the
SEPT. 09, 2013 (MON) Last day to constitute the Plebiscite Board of
new provinces of Davao Occidental and Davao del Sur:
Canvassers

Sec. 2. Province of Davao Occidental. – There is hereby created a new SEPT. 28, 2013 (SAT) PLEBISCITE PERIOD Bearing
province from the present Province of Davao del Sur to be known as – NOV. 12, 2013 deadly
the Province of Davao Occidental, consisting of the municipalities of (TUE) (30 DAYS building
Sta. Maria, Malita, Don Marcelino, Jose Abad Santos and Sarangani. BEFORE THE DATE convey
The territorial jurisdiction of the Province of Davao Occidental shall be OF PLEBISCITE AND carry th
within the present metes and bounds of all the municipalities that 15 DAYS the Com
comprise the Province of Davao Occidental. THEREAFTER amend

Suspen
xxxx (x), OE
the civi
Sec. 7. Legislative District. – The Province of Davao Occidental shall
have its own legislative district to commence in the next national and Alterati
local elections after the effectivity of this Charter. Henceforth, the establis
municipalities of Sta. Maria, Malita, Don Marcelino, Jose Abad Santos 8189)
and Sarangani shall comprise the Lone Legislative District of the
Province of Davao Occidental while the City of Digos and the Organiz
municipalities of Malalag, Sulop, Kiblawan, Padada, Hagonoy, Sta. similar
Cruz, Matanao, Bansalan and Magsaysay shall comprise the Lone
Legislative District of the Province of Davao del Sur. Illegal r

Use of
xxxx candida
regular
Section 46 of R.A. No. 10360 provides for the date of the holding of a Nationa
plebiscite. Philippi
(Sec. 2
7166);
Sec. 46. Plebiscite. – The Province of Davao Occidental shall be
created, as provided for in this Charter, upon approval by the majority
of the votes cast by the voters of the affected areas in a plebiscite to 1
be conducted and supervised by the Commission on Elections
(COMELEC) within sixty (60) days from the date of the effectivity of Releas
this Charter. funds (
works,
issuanc
The amount necessary for the conduct of the plebiscite shall be borne for a fu
by the COMELEC. funds (

R.A. No. 10360 was passed by the House of Representatives on 28 SEPTEMBER 28, 2013 INFORMATIONCAMPAIGN PERIOD Making
November 2012, and by the Senate on 5 December 2012. President (SAT) to OCTOBER (Sec. 1
Benigno S. Aquino III approved R.A. No. 10360 on 14 January 26, 2013 (SAT) craft. (S
 1. The 1987 Constitution does not fix the period to hold a
special policemen, special/ for
plebiscite confidential agents
the creation or government unit;
of a local
the like. (Sec. 261 (m), OEC);

SEPTEMBER 28, 2013 2. There was

Issuance of appointments, logisticalcreation
promotions, and financial
of impossibility for the
(SAT) to OCTOBER new positions, or COMELEC to hold
giving of salary a plebiscite at a mere two months’ notice;
increases.
28, 2013 (MON)
3. Legislative intent is for R.A. No. 10360 to be implemented;
OCTOBER 27, 2013 EVE OF PLEBISCITE DAY Campaigning (Sec. 3, OEC);
(SUN)
4. Public interest demands that the plebiscite be conducted;
Giving, acceptingand
free transportation, foods,
drinks, and things of value (Sec. 89, OEC);

Selling, furnishing, 5. offering,

The COMELEC did not abuse
buying, serving or its discretion in issuing the
16
questioned Resolutions.
taking intoxicating liquor (Sec. 261 (dd), (1),
OEC).(NOTE: Acts mentioned in the three (3)
preceding paragraphs
In this Resolution, arewe
prohibited
simplify until election
the issues raised by the parties, thus:
day.) Did the COMELEC act without or in excess of its jurisdiction or with
grave abuse of discretion amounting to lack or excess of jurisdiction
OCTOBER 28, 2013 PLEBISCITE DAYCasting of votes- (from Vote-buying
when and vote selling
it resolved (Sec.
to hold the 261 (a), for the creation of the Province
plebiscite
(MON) 7:00 a.m. to 3:00 p.m. simultaneous with the OEC);Voting
of Davao more than onceonor28
Occidental in October
substitution
2013,of simultaneous with the
voting for the Barangay and SK anotherBarangay
(Sec. 261Elections?
(z) (2) and (3),
Elections)Counting of votes shall be after the OEC);Campaigning (Sec. 3, OEC);Soliciting votes
counting of votes for Barangay and SK or undertaking any propaganda for or against any
Elections)Convening of the City Plebiscite We or
candidate answer in the negative.
any political party within the polling
Board of Canvassers – (6:00 p.m.) place or within thirty (30) meters thereof (Sec.
261 (cc)The(6),COMELEC’s
OEC);Selling, furnishing,
power offering,elections
to administer
buying, serving or taking intoxicating liquor, etc.
(Sec. 261 (dd) (1), OEC);Opening of booths or
includes
stalls for the sale,theetc.,
power to conduct
of wares, a plebiscite
merchandise or beyond the schedule
refreshments, within thirty (30) meters radius from
the polling place. (Sec.
prescribed by law.261 (dd) (2) OEC);Giving
and/or accepting free transportation, food, drinks
and things of value (Sec. 89, OEC);Holding of
The conduct
fairs, cockfights, of a plebiscite
boxing, horse races is necessary
or similar for the creation of a province.
sports. Sections
(Sec. 26110(dd) and(3),
11 OEC).
of Article X of the Constitution provide that:

Sec. 10. No province, city, municipality, or barangay may be created,

Resolution No. 9772, on the other hand, provided that copies of R.A. divided, merged, abolished, or its boundary substantially altered,
No. 10360 be posted11 and that information campaigns be conducted except in accordance with the criteria established in the local
prior to the plebiscite.12 government code and subject to approval by a majority of the votes
cast in a plebiscite in the political units directly affected.
On 9 October 2013, Cagas filed the present petition for prohibition.
Cagas cites three causes of action: Sec. 11. The Congress may, by law, create special metropolitan
political subdivisions, subject to a plebiscite as set forth in Section 10
1. COMELEC is without authority or legal basis to AMEND or MODIFY hereof. The component cities and municipalities shall retain their basic
Section 46 of Republic Act No. 10360 by mere MINUTE RESOLUTION autonomy and shall be entitled to their own local executive and
because it is only CONGRESS who can validly amend, repel [sic] or legislative assemblies. The jurisdiction of the metropolitan authority
modify existing laws, thus COMELEC [sic] act in suspending the that will thereby be created shall be limited to basic services requiring
holding of a plebiscite is unconstitutional;13 coordination. Section 10, Article X of the Constitution emphasizes the
direct exercise by the people of their sovereignty. After the legislative
branch’s enactment of a law to create, divide, merge or alter the
2. COMELEC is without authority or legal basis to hold a plebiscite this boundaries of a local government unit or units, the people in the local
coming October 28, 2013 for the creation of the Province of Davao government unit or units directly affected vote in a plebiscite to register
Occidental because Section 46 of Republic Act No. 10360 has already their approval or disapproval of the change.17
lapsed;14 and
The Constitution does not specify a date as to when plebiscites should
3. Petitioner has no other adequate remedy to prevent the COMELEC be held. This is in contrast with its provisions for the election of
from holding the Plebiscite on October 28, 2013 for the creation of the members of the legislature in Section 8, Article VI18 and of the
Province of Davao Occidental except through the issuance of President and Vice-President in Section 4, Article VII.19 The
Temporary Restraining Order and Preliminary Injunction because Constitution recognizes that the power to fix the date of elections is
COMELEC had already commenced the preparation for holding of the legislative in nature, which is shown by the exceptions in previously
Plebiscite for the creation of the Province of Davao Occidental mentioned Constitutional provisions, as well as in the election of local
synchronizing it with that of the Barangay and SK elections this coming government officials.20
October 28, 2013.15
Section 10 of R.A. No. 7160 furnishes the general rule as to when a
On 17 October 2013, we issued a Resolution requiring respondents plebiscite may be held:
COMELEC, represented by its Chairperson, Hon. Sixto Brillantes, Jr.,
and the Provincial Election Officer of Davao del Sur, represented by
Atty. Ma. Febes Barlaan, to file their comment to Cagas’ petition not Sec. 10. Plebiscite Requirement. – No creation, division, merger,
later than 21 October 2013. abolition, or substantial alteration of boundaries of local government
units shall take effect unless approved by a majority of the votes cast
in a plebiscite called for the purpose in the political unit or units directly
The respondents, through the Office of the Solicitor General (OSG), affected. Said plebiscite shall be conducted by the Commission on
filed their comment on 21 October 2013. The OSG raises the following Elections (COMELEC) within one hundred twenty (120) days from the
arguments:
date of effectivity of the law or ordinance effecting such action, unless To be sure, at the time R.A. No. 10360 was approved, the COMELEC
said law or ordinance fixed another date. had to deliver and accomplish the following, among many others, for
the May 2013 National and Local Elections:
Section 46 of R.A. No. 10360, however, specifically provides that the
plebiscite for the creation of the province of Davao Occidental be held 1. Preparation of the Project of Precincts indicating the total
within 60 days from the effectivity of R.A. No. 10360, or until 6 April number of established precincts and the number of
2013.21 Cagas claims that R.A. No. 10360 "did not confer express or registered voters per precincts [sic] in a city or municipality.
implied power to COMELEC to exercise discretion when the plebiscite
for the creation of the Province of Davao Occidental will be held. On
2. Constitution of the Board of Election Inspectors including
the contrary, said law provides a specific period when the COMELEC
the precincts where they will be assigned and the barangay
should conduct a plebiscite."22 Cagas views the period "60 days from
where the precinct is located.
the effectivity" in R.A. No. 10360 as absolute and mandatory; thus,
COMELEC has no legal basis to hold a plebiscite on 28 October 2013.
3. Inspection, verification and sealing of the Book of Voters
containing the approved voter registration records of
The Constitution, however, grants the COMELEC the power to
registered voters in the particular precinct which must be
"enforce and administer all laws and regulations relative to the conduct
inspected, verified, and sealed.
of an election, plebiscite, initiative, referendum and recall."23 The
COMELEC has "exclusive charge of the enforcement and
administration of all laws relative to the conduct of elections for the 4. Finalization and printing of the computerized voters list for
purpose of ensuring free, orderly and honest elections."24 The text and use on election day.
intent of Section 2(1) of Article IX(C) is to give COMELEC "all the
necessary and incidental powers for it to achieve the objective of
5. The preparation, bidding, printing and distribution of the
holding free, orderly, honest, peaceful and credible elections."25
voters’ information.

Sections 5 and 6 of Batas Pambansa Blg. 881 (B.P. Blg. 881) the
6. Configuration, testing, and demonstration of the PCOS
Omnibus Election Code, provide the COMELEC the power to set
elections to another date. machines and their distribution to the different precincts.

To comply with the 60-day period to conduct the plebiscite then, as

Sec. 5. Postponement of election.- When for any serious cause such
as violence, terrorism, loss or destruction of election paraphernalia or insisted, petitioner would have the COMELEC hold off all of its above
records, force majeure, and other analogous causes of such a nature tasks. If COMELEC abandoned any of its tasks or did not strictly follow
that the holding of a free, orderly and honest election should become the timetable for the accomplishment of these tasks then it could have
impossible in any political subdivision, the Commission, motu proprio put in serious jeopardy the conduct of the May 2013 National and
or upon a verified petition by any interested party, and after due notice Local Elections. The COMELEC had to focus all its attention and
and hearing, whereby all interested parties are afforded equal concentrate all its manpower and other resources on its preparation for
opportunity to be heard, shall postpone the election therein to a date the May 2013 National and Local Elections, and to ensure that it would
not be derailed, it had to defer the conduct of all plebiscites including
which should be reasonably close to the date of the election not held,
suspended or which resulted in a failure to elect but not later than thirty that of R.A. No. 10360.
days after the cessation of the cause for such postponement or
suspension of the election or failure to elect. Parenthetically, for the COMELEC to hold the plebiscite for the
ratification of R.A. No. 10360 within the fixed period, it would have to
Sec. 6. Failure of election. - If, on account of force majeure, violence, reconfigure for said purpose some of the PCOS machines that were
already configured for the May 2013 National and Local Elections; or in
terrorism, fraud, or other analogous causes the election in any polling
place has not been held on the date fixed, or had been suspended the alternative, conduct the plebiscite manually.
before the hour fixed by law for the closing of the voting, or after the
voting and during the preparation and the transmission of the election However, conducting the plebiscite manually would require another set
returns or in the custody or canvass thereof, such election results in a of ballots and other election paraphernalia. Besides, another set of
failure to elect, and in any of such cases the failure or suspension of election materials would also require additional logistics for printing,
election would affect the result of the election, the Commission shall, checking, packing, and deployment thereof. Lest it be forgotten, that all
on the basis of a verified petition by any interested party and after due of these things should undergo public bidding.
notice and hearing, call for the holding or continuation of the election
not held, suspended or which resulted in a failure to elect on a date
reasonably close to the date of the election not held, suspended or Since the plebiscite would be a separate undertaking, the COMELEC
which resulted in a failure to elect but not later than thirty days after the would have to appoint separate sets of boards of election inspectors,
cessation of the cause of such postponement or suspension of the tellers, and other personnel to canvass the result of the plebiscite – all
election or failure to elect. of which would have entailed further cost for the COMELEC whose
budget had already been overly stretched to cover the May 2013
National and Local Elections.
The tight time frame in the enactment, signing into law, and effectivity
of R.A. No. 10360 on 5 February 2013, coupled with the subsequent
conduct of the National and Local Elections on 13 May 2013 as More importantly, it bears stressing that the COMELEC was not given
mandated by the Constitution, rendered impossible the holding of a a special budget to defray the cost of the plebiscite. In fact, the
plebiscite for the creation of the province of Davao Occidental on or COMELEC had to take ₱11 million from its savings and from the
before 6 April 2013 as scheduled in R.A. No. 10360. We also take Barangay Elections budget to finance the plebiscite to ratify R.A. No.
judicial notice of the COMELEC’s burden in the accreditation and 10360 on October 28, 2013.
registration of candidates for the Party-List Elections.26 The logistic and
financial impossibility of holding a plebiscite so close to the National The COMELEC’s questioned Resolution then directing the holding of
and Local Elections is unforeseen and unexpected, a cause analogous the plebiscite for the ratification of R.A. No. 10360 simultaneously with
to force majeure and administrative mishaps covered in Section 5 of the Barangay Elections was not an abuse of its discretion, as alleged,
B.P. Blg. 881. The COMELEC is justified, and did not act with grave but simply an exercise of prudence, because as the COMELEC itself
abuse of discretion, in postponing the holding of the plebiscite for the noted, doing so "will entail less expense than holding it separately." [p.
creation of the province of Davao Occidental to 28 October 2013 to 9, Resolution No. 13-0926, Annex B, Petition.]
synchronize it with the Barangay Elections.
The determination of the feasibility of holding a plebiscite on a given
The OSG illustrated the COMELEC’s predicament in this manner: date is within the competence and discretion of the COMELEC.
Petitioner cannot therefore simply insist that the COMELEC should x x x is to protect the integrity of elections to suppress all evils that may
have complied with the period specified in the law when doing so violate its purity and defeat the will of the voters. The purity of the
would be virtually impossible under the circumstances.27 elections is one of the most fundamental requisites of popular
government. The Commission on Elections, by constitutional mandate,
must do everything in its power to secure a fair and honest canvass of
This Court has rejected a too literal interpretation of election laws in
the votes cast in the elections. In the performance of its duties, the
favor of holding free, orderly, honest, peaceful and credible elections.
Commission must be given a considerable latitude in adopting means
and methods that will insure the accomplishment of the great objective
In Pangandaman v. COMELEC,28 Lining Pangandaman for which it was created — to promote free, orderly, and honest
(Pangandaman) filed a petition for certiorari and prohibition with prayer elections. The choice of means taken by the Commission on Elections,
for temporary restraining order and preliminary injunction to challenge unless they are clearly illegal or constitute grave abuse of discretion,
the Omnibus Order of the COMELEC En Banc. The COMELEC En should not be interfered with.
Banc ordered the conduct of special elections in certain municipalities
in Lanao del Sur on 18 and 25 July 1998, or more than 30 days after
Guided by the above-quoted pronouncement, the legal compass from
the failure of elections on 11 May 1998. Like Cagas, Pangandaman
which the COMELEC should take its bearings in acting upon election
insisted on a strict compliance with the schedule of the holding of
controversies is the principle that " clean elections control the
special elections. Pangandaman asserted that COMELEC’s authority
appropriateness of the remedy."
to call a special election was limited by the 30-day period and that
Congress had the power to call a special election after the 30th day.
We admonished Pangandaman against a too literal interpretation of In fixing the date for special elections the COMELEC should see to it
the law, and protected COMELEC’s powers against the straitjacketing that: 1.] it should not be later than thirty (30) days after the cessation of
by procedural rules. the cause of the postponement or suspension of the election or the
failure to elect; and, 2.] it should be reasonably close to the date of the
election not held, suspended or which resulted in the failure to
It is a basic precept in statutory construction that a statute should be
elect.1avvphi1 The first involves a question of fact. The second must
interpreted in harmony with the Constitution and that the spirit, rather
be determined in the light of the peculiar circumstances of a case.
than the letter of the law determines its construction; for that reason, a
Thus, the holding of elections within the next few months from the
statute must be read according to its spirit and intent. Thus, a too literal
cessation of the cause of the postponement, suspension or failure to
interpretation of the law that would lead to absurdity prompted this
elect may still be considered "reasonably close to the date of the
Court to —
election not held."

x x x admonish against a too-literal reading of the law as this is apt to

In this case, the COMELEC can hardly be faulted for tardiness. The
constrict rather than fulfill its purpose and defeat the intention of its
dates set for the special elections were actually the nearest dates from
authors. That intention is usually found not in ‘the letter that killeth but
the time total/partial failure of elections was determined, which date fell
in the spirit that vivifieth’ x x x
on July 14, 1998, the date of promulgation of the challenged Omnibus
Order. Needless to state, July 18 and 25, the dates chosen by the
Section 2(1) of Article IX(C) of the Constitution gives the COMELEC COMELEC for the holding of special elections were only a few days
the broad power to "enforce and administer all laws and regulations away from the time a total/partial failure of elections was declared and,
relative to the conduct of an election, plebiscite, initiative, referendum thus, these were "dates reasonably close" thereto, given the prevailing
and recall." There can hardly be any doubt that the text and intent of facts herein. Furthermore, it bears stressing that in the exercise of the
this constitutional provision is to give COMELEC all the necessary and plenitude of its powers to protect the integrity of elections, the
incidental powers for it to achieve the objective of holding free, orderly, COMELEC should not and must not be straitjacketed by procedural
honest, peaceful and credible elections. rules in the exercise of its discretion to resolve election disputes. 29

Pursuant to this intent, this Court has been liberal in defining the In Sambarani v. COMELEC,30 petitioners were candidates for punong
parameters of the COMELEC’s powers in conducting elections. As barangay in different barangays in Lanao del Sur. There was a failure
stated in the old but nevertheless still very much applicable case of of elections in the 15 July 2002 Synchronized Barangay and
Sumulong v. COMELEC: Sangguniang Kabataan (SK) Elections, and special elections were set
on 13 August 2002 in the affected barangays. No special elections
were held on 13 August 2002, so petitioners asked the COMELEC to
Politics is a practical matter, and political questions must be dealt with declare a failure of elections in their barangays and to hold another
realistically — not from the standpoint of pure theory. The Commission special election. The COMELEC, however, directed the Department of
on Elections, because of its fact-finding facilities, its contacts with
Interior and Local Government to appoint the Barangay Captains,
political strategists, and its knowledge derived from actual experience Barangay Kagawads, SK Chairmen, and SK
in dealing with political controversies, is in a peculiarly advantageous
position to decide complex political questions x x x. There are no ready
made formulas for solving public problems. Time and experience are Kagawads in the affected barangays. The COMELEC stated that it is
necessary to evolve patterns that will serve the ends of good no longer in a position to call for another special election since Section
government. In the matter of the administration of laws relative to the 6 of the Omnibus Election Code provides that "special elections shall
conduct of election x x x we must not by any excessive zeal take away be held on a date reasonably close to the date of the election not held,
from the Commission on Elections that initiative which by constitutional but not later than thirty days after cessation of the cause of such
and legal mandates properly belongs to it. postponement."

More pointedly, this Court recently stated in Tupay Loong v. We directed the COMELEC to conduct special elections and stated
COMELEC, et al., that "Our elections are not conducted under that the deadline cannot defeat the right of suffrage of the people.
laboratory conditions. In running for public offices, candidates do not
follow the rules of Emily Post. Too often, COMELEC has to make snap
The prohibition on conducting special elections after thirty days from
judgments to meet unforeseen circumstances that threaten to subvert
the cessation of the cause of the failure of elections is not
the will of our voters. In the process, the actions of COMELEC may not
absolute.1âwphi1 It is directory, not mandatory, and the COMELEC
be impeccable, indeed, may even be debatable. We cannot, however,
possesses residual power to conduct special elections even beyond
engage in a swivel chair criticism of these actions often taken under
the deadline prescribed by law. The deadline in Section 6 cannot
very difficult circumstances."
defeat the right of suffrage of the people as guaranteed by the
Constitution. The COMELEC erroneously perceived that the deadline
The purpose of the governing statutes on the conduct of elections — in Section 6 is absolute. The COMELEC has broad power or authority
to fix other dates for special elections to enable the people to exercise
their right of suffrage. The COMELEC may fix other dates for the
conduct of special elections when the same cannot be reasonably held
within the period prescribed by law.31

It is thus not novel for this Court to uphold the COMELEC’s broad
power or authority to fix other dates for a plebiscite, as in special
elections, to enable the people to exercise their right of suffrage. The
COMELEC thus has residual power to conduct a plebiscite even
beyond the deadline prescribed by law. The date 28 October 2013 is
reasonably close to 6 April 2013, and there is no reason why the
plebiscite should not proceed as scheduled by the COMELEC. The
OSG points out that public interest demands that the plebiscite be
conducted.

At this point, there is nothing more for the COMELEC to do except to

hold the plebiscite as scheduled on October 18, [sic] 2013. In fact, the
COMELEC already scheduled the shipment and deployment of the
election paraphernalia to all the precincts in Davao del Sur, except
Davao City.

The COMELEC had put so much work and effort in its preparation for
the conduct of the plebiscite. A substantial amount of funds have also
been defrayed for the following election undertakings:

1 Bidding for election paraphernalia;

2 Cleansing of voters registration list;

3 Preparation, bidding, printing and distribution of the voters

information;

4 Preparation and completion of the projects of precincts;

5 Printing of ballots;

6 Constitution of the Board of Election Inspectors;

7 Training and assignment of personnel; and

8 Information dissemination campaign.

To demand now that the COMELEC desist from holding the plebiscite
would be an utter waste of time, effort and resources, not to mention its
detriment to public interest given that public funds are involved.32

In election law, the right of suffrage should prevail over mere

scheduling mishaps in holding elections or plebiscites. Indeed, Cagas
insistence that only Congress can cure the alleged legal infirmity in the
date of holding the plebiscite for the creation of the Province of Davao
Occidental fails in light of the absence of abuse of discretion of the
COMELEC. Finally, this Court finds it unacceptable to utilize more of
our taxpayers time and money by preventing the COMELEC from
holding the plebiscite as now scheduled.

WHEREFORE, we DISMISS the petition for lack of merit.

SO ORDERED.
 EN BANC In the absence of such prior finding of a competent tribunal, the
Commission has no basis to disqualify Respondent. That said, the
case must be dismissed.
G.R. No. 230249, April 24, 2018
WHEREFORE, premises considered, the instant Petition
ATTY. PABLO B. FRANCISCO, Petitioner, v. COMMISSION ON is DISMISSED.
ELECTIONS AND ATTY. JOHNIELLE KEITH P.
NIETO, Respondents. SO ORDERED.5
The COMELEC Second Division anchored its ruling on the Court's
landmark decision in Poe-Llamanzares v. COMELEC6 (Poe) wherein
DECISION
the Court enunciated thusly:
Clearly, the amendment done in 2012 is an acceptance of the reality of
VELASCO JR., J.: absence of an authorized proceeding for determining before
election the qualifications of candidate. Such that, as presently
required, to disqualify a candidate there must be a declaration by
Nature of the Case a final judgment of a competent court that the candidate sought
to be disqualified "is guilty of or found by the Commission to be
This treats of the petition for certiorari under Rule 64, in relation to Rule suffering from any disqualification provided by law or the
65, of the Rules of Court filed by Atty. Pablo B. Francisco (Francisco), Constitution."
which seeks to nullify the February 2, 2017 Resolution1 of the public
respondent Commission on Elections (COMELEC) En Banc. The Insofar as the qualification of a candidate is concerned, Rule 25 and
assailed ruling dismissed Francisco's Petition for Disqualification Rule 23 are flipsides of one to the other. Both do not allow, are not
against private respondent Atty. Johnielle Keith P. Nieto (Nieto). authorizations, are not vestment of jurisdiction, for the COMELEC
to determine the qualification of a candidate. The facts of
The Facts qualification must beforehand be established in a prior
proceeding before an authority properly vested with
Francisco is a registered voter in Cainta, Rizal, while Nieto was elected jurisdiction. The prior determination of qualification may be by statute,
as mayor of the same municipality in 2013. Nieto filed a certificate of by executive order or by a judgment of a competent court or tribunal.
candidacy (COC) to signify his bid for re-election for the 2016 National (emphasis added)
and Local Elections. On September 8, 2016, petitioner moved for reconsideration from the
COMELEC Second Division's Resolution before the COMELEC En
On April 8, 2016, Francisco filed before the COMELEC a Petition for Banc, arguing in the main that there need not be a final judgment by a
Disqualification against Nieto, docketed as SPA 16-062(DC), alleging competent court that the candidate sought to be disqualified is guilty of
that on April 1-2, 2016, respondent made financial contributions out of or is suffering from any disqualification. He also stressed that since the
the government coffers for the asphalt-paving of the road entrance act complained of can only be committed within forty-five (45) days
along Imelda Avenue of Cainta Green Park Village. This, according to before the election, it would be impossible to secure a conviction prior
petitioner, amounted to the expending of public funds within forty-five to initiating the disqualification proceedings.
(45) days before the 2016 polls and to illegal contributions for road
repairs, respectively punishable under Sees. 261(v)2 and 1043 of Batas Despite these strong asseverations, however, the COMELEC En
Pambansa Blg. 881, otherwise known as the Omnibus Election Code Banc found no reason to disturb the ruling of the Second Division.
(OEC). Petitioner further claimed that the said asphalt paving was one Instead, the seven-person Commission echoed the pronouncement
of the accomplishments that respondent reported on his Facebook that for a petition for disqualification to prosper, there must be "a
page. declaration by a final judgment of a competent court that the candidate
sought to be disqualified is guilty of or found by the Commission to be
In his Answer filed on April 22, 2016, Nieto countered that the suffering from any disqualification provided by law or the Constitution."
questioned asphalting project was subjected to public bidding on The COMELEC En Bancthen deemed that the denial of the petition is
March 15, 2016, with a Notice of Award issued on March 21, 2016. the only course of action it could take under the premises. Thus, in its
Thus, the asphalting project falls within the excepted public works assailed February 2, 2017 Resolution, the electoral tribunal held:
mentioned in Sec. 261(v)(l)(b) of the OEC. Although the ruling enunciated by the Supreme Court in [Poe] has
effectively emasculated the Commission's power under COMELEC
During the preliminary conference on May 5, 2016, the counsels for the Resolution No. 9523 to disqualify a candidate, it cannot decline to
parties marked their respective pieces of evidence. Thereafter, an apply such ruling in view of the principle that "judicial decisions
Order was issued giving them ten (10) days to file their respective applying or interpreting the laws or the Constitution shall form a part of
memoranda. The COMELEC would receive copies of the memoranda the legal system of the Philippines."
on May 16, 2016 and, thereafter, the case was deemed submitted for
resolution. In the interim, Nieto would be re-elected as municipal mayor As such, Petitioner's reliance on the cases cited in the Motion for
of Cainta, Rizal, having garnered the plurality of votes upon the Reconsideration is misplaced, considering that the Poe case is now
conclusion of the 2016 polls. the controlling doctrine on the matter having been decided in 2016 and
thus supersedes any previous ruling on the matter.
Ruling of the COMELEC
xxxx
On August 16, 2016, the COMELEC Second Division promulgated a
Resolution4 dismissing the Petition for Disqualification against Nieto, Consequently, having no leg to stand on, the instant Motion for
and ruled in the following wise: Reconsideration is DENIED and the Resolution of the Commission
From the foregoing, it is clear that a candidate cannot be disqualified (Second Division) is herebyAFFIRMED.7
without a prior finding that he or she is suffering from a disqualification Hence, the instant recourse.
provided by law or the Constitution. To be sure, in order to disqualify a
candidate there must be a declaration by a final judgment of a The Issues
competent court that the candidate sought to be disqualified is guilty of
or found by the Commission to be suffering from any disqualification The issues to be resolved by this Court can be condensed to the
provided by law or the Constitution. following:

In the instant case, this Commission (Second Division) finds no such

prior declaration by a final judgment of a competent court or of a I. Whether or not the COMELEC acted in grave abuse of
finding of the Commission that Respondent is guilty of the acts discretion in ruling that a petition for disqualification under
complained of Whether or not the Respondent is guilty of the alleged Sec. 68 of the OEC cannot prosper without a prior judgment
acts is a prejudicial question which should be determined first in a finding the respondent guilty of an election offense.
proper proceedings (sic) before a tribunal with competent jurisdiction.
 II. Whether or not petitioner sufficiently established by In the case at bar, petitioner failed to indicate when he received a copy
substantial evidence that respondent violated Secs. 261(v) of the August 16, 2016 Resolution of the COMELEC Second Division,
and 104 of the OEC. from which he moved for reconsideration on September 8, 2016. The
Court is then unable to determine how many days should be deducted
from his period for filing a Rule 64 petition and, consequently, if the
Petitioner bewails that the COMELEC abruptly dismissed the
instant recourse had been filed on time. The particular date of receipt
disqualification case. According to petitioner, the situation ushered in
is of utmost significance in this case since petitioner cannot deny that
by the COMELEC ruling would render toothless Section 68 of the OEC
he availed of the full 30-day period from February 20, 2017 to March
against election irregularities because of the virtual impossibility of
22, 2017. This means that unless petitioner filed his motion for
compliance with the prior ruling requirement. He also asserts
reconsideration on the very same day he received the COMELEC's
that Poe does not apply to candidates for local posts.
August 16, 2016 Resolution, the instant petition had been filed out of
time. In any case, non-compliance with the material date rule, in itself,
In his Comment, respondent Nieto cited the Poe ruling and averred
is already a ground for dismissal.11
that since there was no prior declaration by a final judgment of a
competent court or of a finding of the Commission that he is guilty of
Revisiting Poe and strengthening the jurisdiction of the
the acts complained of, the COMELEC Second Division had no basis
COMELEC
to disqualify him. Nieto likens the requirement of a prior ruling to a
prejudicial question that must first be determined in a proper
Public respondent COMELEC relied heavily on the Court's
proceeding before a tribunal with competent jurisdiction.
pronouncement in Poe when it dismissed the election controversy. The
Court, however, takes this opportunity to rectify Our position
Moreover, Nieto reiterated the defense that the asphalting project is
in Poe and to uphold the jurisdiction of the COMELEC as strengthened
outside the ambit of the ban against the expenditure of public funds
under the present Constitution.
since it was contracted prior to the 45-day period before the scheduled
elections. It was, thus, an infrastructure activity lawfully entered into by
For perspective, the COMELEC was never part of the original version
the local government unit of Cainta. In addition, no public funds were
of the 1935 Constitution. Prior to its creation, it was the then
disbursed for the project during the ban since all expenses were for the
Department of Interior, through an Executive Bureau then directly, that
account of the winning bidder, Franzcor Trading and Construction.
superintended the conduct of elections.12 The Courts were charged
with resolving questions affecting the right to vote as well as contested
The Office of the Solicitor General (OSG), representing the
elections of local elective officials, while the Secretary of Interior was
government, in its Comment took a stance different from that of the
vested with the authority to enforce the election laws and assign local
COMELEC. The OSG argued that Article IX-C, Section 2(2) and (3) of
authorities to perform ministerial duties relative thereto.
the Constitution granted the COMELEC the quasi-judicial power to
decide all questions affecting elections, except those involving the right
The close official relationship between the President and the Secretary
to vote. This power further finds legal mooring in the dual aspect of the
of Interior, however, aroused suspicion that the latter had been
prohibited acts constituting the grounds for disqualification under
administering election statutes not for the purpose of securing honest
Section 68 of the OEC. Lastly, the OSG posited that the context of
and free elections, but to serve the political interest of the party in
the Poe ruling bars its application to local elective officials since the
power to which they belonged. They were never entirely free from
discussions were aptly made within the confines of a national
suspicion of acting with partisan bias. And this general dissatisfaction
candidate for the presidency.
and distrust over the manner the elections were conducted at that time
impelled the National Assembly to propose the creation of the
The Court's Ruling COMELEC by constitutional amendment.13

Petitioner is correct in his contention that a prior judgment is not a Through a plebiscite held on June 17, 1940, several amendments were
precondition to filing a Petition for Disqualification. Nevertheless, the introduced to the 1935 Constitution: modifying the term of office of the
petition must necessarily fail for lack of substantial evidence to President and the Vice-President from six (6) years to four (4) years,
establish that private respondent committed an election offense. but with re-election for another term establishing a bicameral Congress
composed of the Senate as the upper house and the House of
Petitioner failed to comply with the material date rule Representatives as the lower house; and creating an independent
COMELEC.
Before We discuss the merits of the case, the Court observes that
petitioner failed to state the material dates to establish that the instant Since its creation, the COMELEC's power had been increased in each
recourse was timely interposed. The petitioner merely stated that he incarnation of the Constitution to reflect the country's awareness of the
received a copy of the COMELEC's Resolution denying his motion for need to provide greater regulation and protection to our electoral
reconsideration on February 20, 2017, and that he was filing this processes and to ensure their integrity.14 To demonstrate, Article X,
petition within thirty (30) days from the said date on March 22, 2017. 8 Section 2 of the 1935 Constitution, as amended, declares the power of
the electoral commission thusly:
The allegation is not sufficient. Rule 64, Section 3 of the Rules of Court Section 2. The Commission on Elections shall have exclusive charge
prescribes the period for elevating the COMELEC's ruling to this Court of the enforcement and administration of all laws relative to the
thusly: conduct of elections and shall exercise all other functions which may
Section 3. Time to file petition. - The petition shall be filed within thirty be conferred upon it by law. It shall decide, save those involving the
(30) days from notice of the judgment or final order or resolution right to vote, all administrative questions affecting elections,
sought to be reviewed. The filing of a motion for new trial or including the determination of the number and location of polling
reconsideration of said judgment or final order or resolution, if allowed places, and the appointment of election inspectors and of other
under the procedural rules of the Commission concerned, shall election officials. All law enforcement agencies and instrumentalities of
interrupt the period herein fixed. If the motion is denied, the aggrieved the Government, when so required by the Commission, shall act as its
party may file the petition within the remaining period, but which shall deputies for the purpose of insuring free, orderly, and honest election.
not be less than five (5) days in any event, reckoned from notice of The decisions, orders, and rulings of the Commission shall be subject
denial. to review by the Supreme Court.
Clear from the provision is that the intervening period petitioner utilized
in moving for reconsideration before the COMELEC must be deducted No pardon, parole. or suspension of sentence for the violation of any
from the thirty (30)-day period for resorting to a Rule 64 petition. As election law may be granted without the favorable recommendation of
held in Pates v. COMELEC,9 the fresh period rule in Neypes v. Court of the Commission. (emphasis added)
Appeals10 that resets the period of the fi1ing of an appeal from the date Thus, the administrative control over the conduct of elections erstwhile
of receipt of the ruling on reconsideration is applicable only in civil exercised by the Secretary of Interior was shifted to the COMELEC.
cases, not in election controversies. Filing a motion for reconsideration Under its constitutional mandate, it was tasked with "the enforcement
before the COMELEC then almost guarantees that the full 30-day and administration of all laws relative to the conduct of elections" and
period could not be availed of. bestowed the power to "decide save those involving the right to vole,
all administrative questions affecting elections." But since its authority
to decide was circumscribed to administrative questions, the courts likewise be refused registration.
retained their original powers over local election contests.
Financial contributions from foreign governments and their agencies to
It was not until the enactment of the 1973 Constitution when the power political parties, organizations, coalitions, or candidates related to
of the COMELEC to resolve election controversies was elections constitute interference in national affairs, and, when
institutionalized. Through Article XII (C), Section 2 of the 1973 accepted, shall be an additional ground for the cancellation of their
Constitution. the powers of the COMELEC were expanded to the registration with the Commission, in addition to other penalties that
following: may be prescribed by law.
SEC. 2. The Commission on Elections shall have the following powers
and functions: (6) File, upon a verified complaint, or on its own initiative, petitions in
court for inclusion or exclusion of voters; investigate and, where
(1) Enforce and administer all laws relative to the conduct of elections. appropriate, prosecute cases of violations of election laws, including
acts or omissions constituting election frauds, offenses, and
(2) Be the sole judge of all contests relating to the elections, malpractices.
returns, and qualifications of all Members of the Batasang
Pambansa and elective provincial and city officials. (7) Recommend to the Congress effective measures to minimize
election spending, including limitation of places where propaganda
(3) Decide, save those involving the right to vote, administrative materials shall be posted, and to prevent and penalize all forms of
questions affecting elections, including the determination of the election frauds, offenses, malpractices, and nuisance candidacies.
number and location of polling places, the appointment of election
officials and inspectors, and the registration of voters. (8) Recommend to the President the removal of any officer or
employee it has deputized, or the imposition of any other disciplinary
(4) Deputize, with the consent or at the instance of the President, law action, for violation or disregard of, or disobedience to its directive,
enforcement agencies and instrumentalities of the Government, order, or decision.
including the armed forces of the Philippines, for the purpose of
ensuring free, orderly, and honest elections. (9) Submit to the President and the Congress a com prehensive report
on the conduct of each election, plebiscite, initiative, referendum, or
(5) Register and accredit political parties subject to the provisions of recall. (emphasis added)
Section eight hereof Significantly, the present Constitution clarifies that the COMELEC
retains its character as an administrative agency notwithstanding its
(6) Recommend to the Batasang Pambansa effective measures to authority to resolve election contests. As held in Mendoza:
minimize election expenses and prohibit all forms of election frauds As will be seen on close examination, the 1973 Constitution used the
and malpractices, political opportunism, guest or nuisance candidacy, unique wording that the COMELEC shall be the sole judge of all
or other similar acts. contests, thus giving the appearance that judicial power had been
conferred. This phraseology, however, was changed in the 1987
(7) Submit to the President, the Prime Minister, and the Batasang Constitution to give the COMELEC exclusive jurisdiction over all
Pambansa a report on the conduct and manner of each election. contests, thus removing any vestige of exercising its adjudicatory
power as a court and correctly aligning it with what it is a quasi-judicial
(8) Perform such other functions as may be provided by law. body.16
(emphasis added) As enunciated, the COMELEC's adjudicative function over election
As aptly observed in Mendoza v. COMELEC (Mendoza),15 these contests is quasi-judicial in character since the COMELEC is a
powers of the COMELEC have been enhanced in scope and details governmental body, other than a court, that is vested with jurisdiction
under the 1987 Constitution. Article X (C), Section 2 of the Constitution to decide the specific class of controversies it Is charged with
embodies the myriad of powers bestowed upon the polling body, viz: resolving. In adjudicating the rights of persons before it, the COMELEC
SECTION 2. The Commission on Elections shall exercise the following is not just empowered but is in fact required to investigate facts or
powers and functions: ascertain the existence of facts, hold hearings, weigh evidence, and
draw conclusions from them as basis for their official action and
(1) Enforce and administer all laws and regulations relative to the exercise of discretion in a judicial nature.17 This is simply in
conduct of an election, plebiscite, initiative, referendum, and recall. congruence with the concept of due process that all administrative
adjudicatory bodies are enjoined to observe.
(2) Exercise exclusive original jurisdiction over all contests relating
to the elections, returns, and qualifications of all elective regional, The COMELEC is, thus, fully-clothed with authority to make factual
provincial, and city officials, and appellate jurisdiction over all contests determinations in relation to the election contests before it. This has
involving elective municipal officials decided by trial courts of general been the thrust of the decades worth of constitutional revisions that
jurisdiction, or involving elective barangay officials decided by trial transformed the COMELEC from a purely administrative body, whose
courts of limited jurisdiction. scope of decision making is limited to those incidental to its duty to
enforce election laws, to a polling commission that also exercises
Decisions, final orders, or rulings of the Commission on election original and exclusive, as well as appellate, jurisdiction over election
contests involving elective municipal and barangay offices shall be contests.
final, executory, and not appealable.
Considering the historical evolution of the COMELEC, the Court now
(3) Decide, except those involving the right to vote, all questions declares that the polling body has full adjudicatory powers to resolve
affecting elections, including determination of the number and location election contests outside the jurisdiction of the electoral tribunals. To
of polling places, appointment of election officials and inspectors, and rule otherwise would be an act of regression, contrary to the intent
registration of voters. behind the constitutional innovations creating and further strengthening
the Commission. There is no novelty in this pronouncement, but
(4) Deputize, with the concurrence of the President, law enforcement merely a reinstatement of Our consistent jurisprudence prior to Poe.
agencies and instrumentalities of the Government, including the Armed
Forces of the Philippines, for the exclusive purpose of ensuring free, In the landmark case of Aratea v. COMELEC,18 for instance, the COC
orderly, honest, peaceful, and credible elections. of Romeo D. Lonzanida was cancelled and declared void ab
initio because of his misrepresentation as to his eligibility. He knew
(5) Register, after sufficient publication, political parties, organizations, fully well that he had been elected, and had served, as mayor of San
or coalitions which, in addition to other requirements, must present Antonio, Zambales for more than three consecutive terms yet he still
their platform or program of government and accredit citizens' arms of certified that he was eligible to run for mayor for the next succeeding
the Commission on Elections. Religious denominations and sects shall term, thus constituting false material representation. No prior judgment
not be registered. Those which seek to achieve their goals through recognizing Lonzanida's service for three terms was necessary to
violence or unlawful means, or refuse to uphold and adhere to this effect the cancellation of his COC.
Constitution, or which are supported by any foreign government shall
In Maquiling v. COMELEC,19 Linog G. Balua, through a petitiOn treated from the time of the filing of the certificate of candidacy and shall be
as one for cancellation and/or denial of due course of COC, contended decided, after due notice and hearing, not later than fifteen days before
that Rommel Arnado is not a resident of Kauswagan, Lanao del Norte the election. (emphasis added)
and that the latter is a foreigner based on a certification by the Bureau The essence of a disqualification proceeding that invokes Sec. 68 of
of Immigration indicating that Amado is American. The Court did not the OEC is to bar an individual from becoming a candidate or from
find issue in the COMELEC's authority to make a factual determination continuing as a candidate for public office based not on the candidate's
as to Amado's citizenship and residence, though We eventually lack of qualification, but on his possession of a disqualification as
reversed the COMELEC En Banc's ruling and reinstated that of its First declared by a final decision of a competent court, or as found by the
Division based on Our own appreciation of the evidence on record. Commission.24 The jurisdiction of the COMELEC to disqualify
candidates is limited to those enumerated in Section 68 of the OEC. All
And in Cerafica v. COMELEC (Cerafica),20 the Court reversed the other election offenses are beyond the ambit of COMELEC
COMELEC's mling not because of any alleged lack of authority to jurisdiction.25
make factual determinations as to the eligibility of a candidate, but,
quite the contrary, because it did not make use of the same authority. Meanwhile, for a Petition to Deny Due Course or to Cancel COC under
Sec. 78 of the OEC to prosper, the candidate must have made a
To reiterate, the COMELEC, as an adjunct to its adjudicatory power. material misrepresentation involving his eligibility or qualification for the
may investigate facts or ascertain the existence of facts, hold hearings. office to which he seeks election, such as the requisite residency, age,
weigh evidence, and draw conclusions from them as basis for their citizenship or any other legal qualification necessary to run for elective
official action. As held in Cerafica:21 office26 enumerated under Sec. 74 of the OEC.27Moreover, the false
The determination of whether a candidate is eligible for the position he representation under Sec. 78 must consist of a deliberate attempt to
is seeking involves a determination of fact where parties must be mislead, misinform, or hide a fact which would otherwise render a
allowed to adduce evidence in support of their contentions. We thus candidate ineligible.28 The relief is granted not because of the
caution the Comelec against its practice of impetuous cancellation of candidate's lack of eligibility per se, but because of his or her false
COCs via minute resolutions adopting the recommendations of its Law misrepresentation of possessing the statutory qualifications.
Department when the situation properly calls for the case's referral to a
Division for summary hearing. The doctrine in Poe was never meant to apply to Petitions for
It may be true that the sole ground for Petitions to Deny Due Course or Disqualification. A prior court judgment is not required before the
to Cancel COC is false material representation compounded by intent remedy under Sec. 68 of the OEC can prosper. This is highlighted
to deceive on the part of the candidate and that the intent to deceive or by the provision itself, which contemplates of two scenarios: first,
mislead will be difficult, if not impossible, to ascertain absent an there is a final decision by a competent court that the candidate is
established fact that the candidate deviated from. Contrary to Poe, the guilty of an election offense and second, it is the Commission
Court categorical1y rules herein that the COMELEC can be the itself that found that the candidate committed any of the
proper body to make the pronouncement against which the truth or enumerated prohibited acts. Noteworthy is that in the second
falsity of a material representation in a COC can be measured. But lest scenario, it is not required that there be a prior final judgment; it
it be misunderstood, these disquisitions will not by any means alter the is sufficient that the Commission itself made the determination.
outcome of Poe, for even if We dispense the requirement of a The conjunction "or" separating "competent court" and "the
predicate judgment therein and uphold the jurisdiction of the Commission" could only mean that the legislative intent was for
COMELEC, the Court's conclusion would still find mooring on the bot/1 bodies to be clothed with authority to ascertain whether or
factual findings on Poe's Filipino blood relation and residency.22 not there is evidence that the respondent candidate ought to be
disqualified.
A predicate judgment is not required in Petitions for
Disqualification Furthermore, the quantum of proof necessary in election cases is, as in
all administrative cases, substantial evidence. This is defined as such
Moreover, the Commission gravely abused its discretion when it failed relevant evidence as a reasonable mind will accept as adequate to
to appreciate the characteristics that distinguish Poe from the case at support a conclusion.29 To impose prior conviction of an election
bar. It must be stressed that there is a world of difference between the offense as a conditionsine qua non before a Petition for Disqualification
remedies availed of in Poe and in the instant case. What is involved can be launched would be tantamount to requiring proof beyond
herein is a Petition for Disqualification under Sec. 68 of the OEC, reasonable doubt, which is significantly beyond what our laws require.
whereas Poe was initiated by multiple Petitions to Deny Due Course or
Cancel COC under Sec. 78 of the OEC.23 Jurisprudence is rife with teachings on the separability of the criminal
prosecution for election offenses or even t he determination for
The statutory bases for the two distinct remedies read: probable cause to criminally charge a candidate for any election
Sec. 68. Disqualifications. - Any candidate who, in an action or violation, from the administrative proceeding for disqualification. The
protest in which he is a party is declared by final decision of a Court even elucidated on the concept of this twin aspect in the case
competent court guilty of, or found by the Commission of having of Ejercito v. COMELEC,30 viz:
x x x It has been repeatedly underscored that an election offense has
xxxx its criminal and electoral aspects. While its criminal aspect to
determine the guilt or innocence of the accused cannot be the subject
of summary hearing, its electoral aspect to ascertain whether the
d. solicited, received or made any contribution prohibited under offender should be disqualified from office can be determined in an
Sections 89, 95, 96, 97 and 104; or administrative proceeding that is summary in character. This Court
said in Sunga [v. COMELEC]:

It is worth to note that an election offense has criminal as well as

e. violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e,
electoral aspects. Its criminal aspect involves the ascertainment of the
k, v, and cc, subparagraph 6, shall be disqualified from continuing
guilt or innocence of the accused candidate. Like in any other criminal
as a candidate, or if he has been elected, from holding the office.
case, it usually entails a full-blown hearing and the quantum of proof
xxx
required to secure a conviction is beyond reasonable doubt. Its
electoral aspect, on the other hand, is a determination of whether the
xxxx offender should be disqualified from office. This is done through an
administrative proceeding which is summary in character and requires
Sec. 78. Petition to deny due course to or cancel a certificate of only a clear preponderance of evidence. Thus, under Sec. 4 of the
candidacy. - A verified petition seeking to deny due course or to COMELEC Rules of Procedure, petitions for disqualification "shall be
cancel a certificate of candidacy may be filed by the heard summarily after due notice." It is the electoral aspect that we
person exclusively on the ground that any material representation are more concerned with, under which an erring candidate may
contained therein as required under Section 74 hereof is false. be disqualified even without prior criminal conviction.
The petition may be filed at any time not later than twenty-five days
and equally in Lanot [v. COMELEC]:
 election offense under Section 262 of the same code.
x x x The electoral aspect of a disqualification case determines
whether the offender should be disqualified from being a candidate or Neither a prior conviction nor even a determination of probable cause
from holding office. Proceedings are summary in character and is then a requirement before a Petition for Disqualification can be
require only clear preponderance of evidence. An erring lodged. Credit must be given to petitioner for his apt observation that to
candidate may be disqualified even without prior determination of rule otherwise would render inutile the remedy under Section 68 of the
probable cause in a preliminary investigation. The electoral aspect OEC insofar as the specific ground raised herein is concerned.
may proceed independently of the criminal aspect, and vice-versa. Pertinently, Section 261(v) of the OEC and Rule 25, Section 3 of the
COMELEC Rules of Procedure read:
The criminal aspect of a disqualification case determines whether there Section 261. Prohibited Acts. - The following shall be guilty of an
is probable cause to charge a candidate for an election offense. The election offense:
prosecutor is the COMELEC, through its Law Department, which
determines whether probable cause exists. If there is probable cause, xxxx
the COMELEC, through its Law Department, files the criminal
information before the proper court. Proceedings before the proper (v) Prohibition against release, disbursement or expenditure of public
court demand a full-blown hearing and require proof beyond funds. - Any public official or employee including barangay officials and
reasonable doubt to convict. A criminal conviction shall result in the those of government-owned or controlled corporations and their
disqualification of the offender, which may even include disqualification subsidiaries, who, during forty-five days before a regular election
from holding a future public office. and thirty days before a special election, releases, disburses or
The Court's disquisitions in Sunga v. COMELEC31 and Lanot v. expends any public funds x x x (emphasis added)
COMELEC32 centered on whether or not the polling body has the
discretion to proceed with disqualification cases even after the Rule 25 - Disqualification of Candidates
elections had been concluded.
xxxx
In Sunga, petitioner Manuel C. Sunga was a mayoralty candidate in
the Municipality of Iguig, Cagayan in the May 1995 Elections. He filed Section 3. Period to File Petition. - The Petition shall be filed any day
a complaint accusing respondent, then incumbent mayor Ferdinand B. after the last day for filing of certificates of candidacy, but not later
Trinidad, of using threats, intimidation, terrorism or other forms of than the date of proclamation. (emphasis added)
coercion, in violation of the OEC. The COMELEC denied the Clearly, the particular election offense and ground for disqualification
complaint, ruling that petitions for disqualification filed after the conduct imputed on respondent must necessarily be committed within forty-five
of the elections ought to be dismissed. In reversing the ruling of the (45) days before a regular election and within thirty (30) days before a
tribunal, the Court held that neither the conclusion of the elections nor special election. Meanwhile, the window for filing a Petition for
Trinidad's proclamation and assumption of office divested the Disqualification raising the same ground is between the day after the
COMELEC of authority and jurisdiction to decide the disqualification filing of a certificate of candidacy until the date of proclamation, which
case. in the advent of automated elections could only take less than a week
for local posts. Through its ruling, the COMELEC then effectively
Meanwhile, in Lanot, therein petitioners led by Henry P. Lanot filed a required petitioner to secure against Nieto a final judgment of guilt
Petition for Disqualification against then incumbent Pasig City Mayor within the very limited timeframe, an almost impossible feat under the
Vicente P. Eusebio for allegedly violating Section 261(a) of the OEC on normal course of legal procedure.
the prohibition against vote-buying. The COMELEC First Division
granted the petition, prompting Eusebio to move for reconsideration. At We are, therefore, constrained to rule that the COMELEC erred when,
the time of the elections, the disqualification case was not yet resolved relying on Poe, it imposed the requirement of a prior court judgment
with finality. Thus, Eusebio's votes were still counted and canvassed, before resolving the current controversy.
and he was proclaimed city mayor of Pasig. Thereafter, the
COMELEC En Banc annulled the COMELEC First Division's The records are bereft of evidence to hold that respondent
disqualification order and referred the case to the COMELEC Law violated Secs. 261(v) and 104 of the Omnibus Election Code
Department for preliminary investigation.
Notwithstanding the COMELEC's error in applying Poe, the petition
The Court agreed with Lanot that the COMELEC En Banc gravely must nevertheless fail. Though the COMELEC can properly take
abused its discretion when it ordered the dismissal of the cognizance of the Petition for Disqualification without issue, petitioner
disqualification case because of Eusebio's proclamation as city mayor miserably failed to tender evidence that respondent committed the
and at the same time allowed the criminal aspect to proceed with election offenses imputed.
preliminary investigation. Lanot highlighted the inconsistency by citing
the teaching in Sunga that: The quantum of proof necessary in election cases is substantial
A candidate guilty of election offenses would be undeservedly evidence, or such relevant evidence as a reasonable mind will accept
rewarded, instead of punished, by the dismissal of the disqualification as adequate to support a conclusion.34 Corollarily, the rule is that he
case against him simply because the investigating body was unable, who alleges must prove.35 Thus, the burden is on Francisco to
for any reason caused upon it, to determine before the election if the establish through substantial evidence that Nieto unlawfully disbursed
offenses were indeed committed by the candidate sought to be government funds during the election ban, a burden that Francisco
disqualified. All that the erring aspirant would need to do is to employ failed to discharge.
delaying tactics so that the disqualification case based on the
commission of election offenses would not be decided before the There is simply a dearth of evidence to support petitioner's claim that
election. This scenario is productive of more fraud which certainly is respondent violated Sec. 261(v) of the OEC. To be sure, petitioner
not the main intent and purpose of the law.33 merely submitted the following to support his allegations:
To then avoid the above-illustrated deleterious scenario, the Court
instructed that the COMELEC should continue the trial and hearing of
the disqualification case until judgment is rendered thereon, and to 1. Pictures of the asphalt-paving along Imelda Avenue of
treat the criminal aspect of the case as a separate issue altogether. Cainta Green Park Village, Barangay San Isidro, Cainta,
Rizal;
The distinction between the electoral aspect from the criminal one was
further amplified in Ejercito. There, the Court rebuked therein 2. Picture of the Facebook page of the respondent
petitioner's assertion that the conduct of preliminary investigation to acknowledging the project as one of the accomplishments of
determine whether the acts enumerated under Section 68 of the OEC his administration; and
were indeed committed is a requirement prior to actual disqualification.
Resultantly, the Court upheld the COMELEC's disqualification of 3. Picture of a tarpaulin banner expressing gratitude for the
petitioner Emilio Ramon Ejercito even though there has yet to be any asphalt-paving.
finding of probable cause, let alone guilt, that he spent more than the
threshold amount prescribed under Sections I00-103 of the OEC, an
The photographs36 petitioner presented depicting the construction and 5. A certification41 from the Election Officer of the COMELEC
works done on the asphalting project would only prove the fact of Region IV-A office acknowledging receipt of the letter.
paving, which is not even contested. They do not, however, establish
that respondent expended public funds or made financial contributions
To cast doubt on the sufficiency of respondent Nieto's evidence,
during the election prohibition.
petitioner Francisco points out that the followin g were never offered in
evidence: (a) an ordinance enacted by the Sangguniang Bayan of
On the other hand, respondent Nieto sufficiently parried the alleged
Cainta authorizing the P6,000,000.00 expenditure for the project, (b) a
commission of the election offenses by proving that the asphalting
certification from the proper accounting official that there is an
project squarely falls under the exception in Sec. 261 (v)(l)(b). The
appropriation by law of such am ou nt and that the fund is available,
provision states:
and (c) an affidavit from the editor or publisher of a newspaper of
v. Prohibition against release, disbursement or expenditure of general circulation that the Invitation to Bid had been published.
public funds. - Any public official or employee including However, petitioner is not excused from shifting the burden of proof to
barangay officials and those of government-owned or private respondent, especially since the latter has the presumption of
controlled corporations and their subsidiaries, who,during regularity in his favor.42 bolstered by evidence proving that the project
forty-five days before a regular election and thirty days was contracted outside the period of prohibition.
before a special election, releases, disburses or expends
any public funds for: There being substantial evidence to support Nieto's defense that the
construction procurement for t he project was aboveboard, there is
then no reason to disturb public respondent's rulings. No abuse of
discretion, let alone one that is grave, can be attributed to the
1. Any and all kinds of public works, except the COMELEC Second Division in dismissing the Petition for
following: Disqualification, nor to the COMELEC En Banc in denying petitioner's
motion for reconsideration.

xxxx WHEREFORE, premises considered, the instant petition

is DISMISSED for lack of merit. The Court declares that in a Petition
for Disqualification under Section 68 of the Omnibus Election
Code, a prior judgment by a competent court that the candidate is
b. Work undertaken by contract guilty of an election offense is not required before the said
through public bidding held, or by petition can be entertained or given due course by the
negotiated contract awarded, Commission on Elections.
before the forty-five day period
before election: Provided, That SO ORDERED.
work for the purpose of this section
undertaken under the so-called
"takay" or "paquiao" system shall not
be considered as work by contract;
(emphasis added)

The Court is in concurrence with the observations of Commissioners

Luie Tito F. Guia and Ma. Rowena Amelia V. Guanzon that the
evidence on record sufficiently proved that the expenditure for the road
repair is exempted from the prohibition under Sec. 261(v) of the OEC.
Private respondent Nieto was able to show with competent evidence
that the bidding for and the award of the subject project were regular
and done consistent with existing laws. The charge for illegal
contribution under Sec. 104 of the OEC has even less leg to stand on.
There was no contribution to speak of since it was established that the
asphalting work was a government project and not a contribution.

Notably, private respondent adduced the following pieces of evidence

to support his contention:

1. A copy of the posting of the project in the Philippine

Government Electronic Procurement System (PHILGEPS)
website.37 This indicates that the Bid Notice Abstract and
Invitation to Bid for the subject project were posted on the
website on February 25, 2016;

2. A certified true copy of the Abstract of Bids38 attested by the

members of the Bids and Awards Committee, indicating that
the bidding for the asphalting project was held on March 15,
2016;

3. A certified true copy of the Notice of Award39 stating that, on

March 21, 2016, the project was awarded in favor of the
winning bidder, contractor Franzcor Trading and
Construction;

4. A letter40 dated March 21, 2016 filed by respondent Nieto

with the Acting Regional Election Director of COMELEC in
Region IV-A submitting to the Commission the list of the
infrastructure projects bid out, including the asphalting
project, which were awarded before March 25, 2016, the
reckoning date of the forty-five day prohibition period and
The Omnibus Election Code

Section 118. Disqualifications. - The following shall be disqualified

from voting:

(a) Any person who has been sentenced by final judgment to

suffer imprisonment for not less than one year, such
disability not having been removed by plenary pardon or
granted amnesty: Provided, however, That any person
disqualified to vote under this paragraph shall automatically
reacquire the right to vote upon expiration of five years after
service of sentence.

(b) Any person who has been adjudged by final judgment by

competent court or tribunal of having committed any crime
involving disloyalty to the duly constituted government such
as rebellion, sedition, violation of the anti-subversion and
firearms laws, or any crime against national security, unless
restored to his full civil and political rights in accordance with
law: Provided, That he shall regain his right to vote
automatically upon expiration of five years after service of
sentence.

(c) Insane or incompetent persons as declared by competent

authority.

ABSENTEE VOTING LAW

Sec. 12. Section 169 of Batas Pambansa Blg. 881 shall remain in
force and effect, and shall continue to govern the voting privilege
of members of the board of election inspectors. All laws, orders,
issuances, rules and regulations or parts thereof inconsistent
with this Executive Order are hereby repealed or modified
accordingly.
EXECUTIVE ORDER NO. 157 March 30, 1987 Sec. 8. The voters who cast absentee votes shall vote one week
before election day. They shall do so by delivering to the Commission
on Elections Regional Director, or the Provincial Election Supervisor or
PROVIDING FOR ABSENTEE VOTING BY OFFICERS AND
the City or Municipal Election Registrar of the place of their assignment
EMPLOYEES OF GOVERNMENT WHO ARE AWAY FROM THE
ballot within two security envelopes, the one containing the absentee
PLACE OF THEIR REGISTRATION BY REASON OF OFFICIAL
ballots indicating only that it is an envelope of the Commission on
FUNCTIONS ON ELECTION DAY
Elections, and the other envelope indicating the name of the absentee
voter and his/her affidavit number.
WHEREAS, under the electoral law now in force the rule is that a
person has to be physically present in the polling place whereof he is a
Sec. 9. The Commission on Elections official concerned to whom the
registered voter in order to be able to vote;
absentee vote is delivered shall immediately transmit by the fastest
means available to the Commission on Elections the special
WHEREAS, the only exception is that established by Section 169 of Commission on Elections absentee ballot within two security
Batas Pambansa Blg. 881, which allows members of the board of envelopes so that the same are in the central office of the Commission
election inspectors to vote in the polling place where they are assigned one day before the elections.
on election day, under certain conditions;
The transmittal letter shall indicate the names of the persons who cast
WHEREAS, there are other persons who, by reason of public functions the absentee votes, their voters' affidavit numbers and their certificates
and duties, are assigned on election day in places other than their of eligibility to vote absentee.
place of registration, and under existing rules, are thus unable to vote;
Sec. 10. The Commission on Elections shall canvass the votes cast by
WHEREAS, the democratic principle requires the broadest absentee voters and shall add the results of the same to the votes
participation in electoral and similar exercises by persons who have all reported throughout the country.
the qualifications and none of the disqualifications to vote;
Sec. 11. The Commission shall promulgate the necessary rules and
WHEREAS, government officials and employees who are assigned to regulations to implement this Executive Order.
places other than their place of registration must not be deprived of
their right to participate in electoral exercises;
Sec. 12. Section 169 of Batas Pambansa Blg. 881 shall remain in force
and effect, and shall continue to govern the voting privilege of
NOW, THEREFORE, I, CORAZON C. AQUINO, President of the members of the Board of Election Inspectors. All laws, orders,
Philippines, do hereby order: issuances, rules and regulations or parts thereof inconsistent with this
Executive Order are hereby repealed or modified
accordingly. lawphi1.net
Sec. 1. Any person who by reason of public functions and duties, is not
in his/her place of registration on election day, may vote in the
city/municipality where he/she is assigned on election day: Provided, Sec. 13. This Executive Order shall take effect immediately.
That he/she is a duly registered voter.

Sec. 2. Thirty (30) days before the election, the appropriate head of
office shall submit to the Commission on Elections a list of officers and
employees of the office who are registered voters, and who, by reason
of their duties and functions, will be in places other than their place of
registration, and who desire to exercise their right to vote, with the
request that said officers and employees be provided with application
forms to cast absentee ballots in their place of assignment.

The list and the request shall be under oath.

Sec. 3. Upon verification by the Commission on Elections that the

persons included in the list are qualified voters, it shall transmit the
exact number of application forms to the head of the office making the
request.

Sec. 4. The application forms shall be returned only accomplished to

the Commission on Elections not later than April 25, 1987.

Sec. 5. Upon verification of the applications, the Commission shall

transmit the exact number of absentee ballots to the appropriate head
of the government office for distribution to the applicants.

Sec. 6. The head of the office shall prepare a sworn report on the
manner of distribution of the absentee ballots, indicating therein the
number of ballots transmitted to each province, the names of the
persons to whom the absentee ballots are delivered, and the serial
numbers of ballots. It shall be accompanied by a certificate of eligibility
to vote absentee for each particular voter.

Sec. 7. For the purpose of the 1987 congressional election, the

absentee voters shall vote only for candidates for senator.
REPUBLIC ACT No. 10380

AN ACT PROVIDING FOR LOCAL ABSENTEE VOTING FOR

MEDIA

Be it enacted by the Senate and House of Representatives of the

Philippines in Congress assembled:

Section 1. Declaration of Policy. – The State shall ensure the free

exercise of the right of suffrage by all citizens of the Philippines not
otherwise disqualified by law.

Section 2. Local Absentee Voting for Members of Media. – The

Commission on Elections shall extend the right to vote under the local
absentee voting system provided under existing laws and executive
orders to members of media, media practitioners, including the
technical and support staff, who are duly registered voters and who, on
election day, may not be able to vote due to the performance of their
functions in covering and reporting on the elections: Provided, That
they shall be allowed to vote only for the positions of President, Vice
President, Senators and Party-List Representative.

Section 3. Implementing Rules and Regulations. – The Commission

on Elections shall, within thirty (30) days from the effectivity of this Act,
promulgate the implementing rules and regulations which shall include
a system of accreditation and verification of the members of media,
media practitioners, the technical and support staff, who are qualified
to avail of local absentee voting.

Section 4. Appropriations. – The initial funding of this Act shall be

charged against the current year’s appropriations or from any available
savings of the Commission on Elections. Thereafter, such amount as
may be necessary for the continued implementation of this Act shall be
included in the annual General Appropriations Act.

Section 5. Separability Clause. – If any part or provision of this Act

shall be declared unconstitutional or invalid, other provisions hereof
which are not affected thereby shall continue to be in full force and
effect.

Section 6. Repealing Clause. – All laws, presidential decrees,

executive orders, resolutions, rules and regulations, other issuances,
and parts thereof, which are inconsistent with the provisions of this Act,
are hereby repealed or modified accordingly.

Section 7. Effectivity. – This Act shall take effect fifteen (15) days
following its publication in at least two (2) newspapers of general
circulation.

Approved
Republic Act No. 9189 February 13, 2003 defined under Article 137 of the Revised Penal Code, such
disability not having been removed by plenary pardon or
amnesty; Provided, however, That any person disqualified to
AN ACT PROVIDING FOR A SYSTEM OF OVERSEAS ABSENTEE
vote under this subsection shall automatically acquire the
VOTING BY QUALIFIED CITIZENS OF THE PHILIPPINES ABROAD,
right to vote upon expiration of five (5) years after service of
APPROPRIATING FUNDS THEREFOR, AND FOR OTHER
sentence; Provided, further, That the Commission may take
PURPOSES
cognizance of final judgments issued by foreign courts or
tribunals only on the basis of reciprocity and subject to the
Be it enacted by the Senate and House of Representatives of the formalities and processes prescribed by the Rules of Court
Philippine Congress Assembled: on execution of judgments;

Section 1. Short Title. – This Act shall be known as "The Overseas 4. An immigrant or a permanent resident who is recognized
Absentee Voting Act of 2003." as such in the host country, unless he/she executes, upon
registration, an affidavit prepared for the purpose by the
Commission declaring that he/she shall resume actual
Sec. 2. Declaration of Policy. – It is the prime duty of the State to
physical permanent residence in the Philippines not later
provide a system of honest and orderly overseas absentee voting that
than three (3) years from approval of his/her registration
upholds the secrecy and sanctity of the ballot. Towards this end, the under this Act. Such affidavit shall also state that he/she has
State ensures equal opportunity to all qualified citizens of the not applied for citizenship in another country. Failure to
Philippines abroad in the exercise of this fundamental right.
return shall be the cause for the removal of the name of the
immigrant or permanent resident from the National Registry
Sec. 3. Definition of Terms. – For purposes of this Act: of Absentee Voters and his/her permanent disqualification to
vote in absentia.
a. "Absentee Voting" refers to the process by which qualified
citizens of the Philippines abroad exercise their right to vote; 5. Any citizen of the Philippines abroad previously declared
insane or incompetent by competent authority in the
Philippines or abroad, as verified by the Philippine
b. "Commission" refers to the Commission on Elections; embassies, consulates or foreign service establishments
concerned, unless such competent authority subsequently
c. "Certified List of Overseas Absentee Voters" refers to the certifies that such person is no longer insane or incompetent.
list of registered overseas absentee voters whose
applications to vote in absentia have been approved by the Sec. 6. Personal Overseas Absentee Registration. – Registration as
Commission, said list to be prepared by the Committee on an overseas absentee voter shall be done in person.
Absentee Voting of the Commission, on a country-by-country
basis. This list shall be approved by the Commission in an
en banc resolution; Qualified citizens of the Philippines abroad who failed to register under
Republic Act No. 8189, otherwise known as the "The Voters
Registration Act of 1996", may personally apply for registration with the
d. "Day of Election" refers to the actual date of elections in Election Registration Board of the city or municipality where they were
the Philippines; domiciled immediately prior to their departure from the Philippines, or
with the representative of the Commission at the Philippine embassies,
e. "National Registry of Absentee Voters" refers to the consulates and other foreign service establishments that have
consolidated list prepared, approved and maintained by the jurisdiction over the locality where they temporarily reside. Subject to
Commission, of overseas absentee voters whose the specific guidelines herein provided, the Commission is hereby
applications for registration as absentee voters, including authorized to prescribe additional procedures for overseas absentee
those registered voters who have applied to be certified as registration pursuant to the provisions of Republic Act No. 8189,
absentee voters, have been approved by the Election whenever applicable, taking into strict consideration the time zones
Registered Board; and the various periods and processes herein provided for the proper
implementation of this Act. The embassies, consulates and other
foreign service establishments shall transmit within (5) days from
f. "Overseas Absentee Voter" refers to a citizen of the receipt the accomplished registration forms to the Commission, after
Philippines who is qualified to register and vote under this which the Commission shall coordinate with the Election Officer of the
Act, not otherwise disqualified by law, who is abroad on the city or municipality of the applicant’s stated residence for verification,
day of elections. hearing and annotation in the permanent list of voters.

Sec. 4. Coverage. – All citizens of the Philippines abroad, who are not All applications for the May, 2004 elections shall be filed with the
otherwise disqualified by law, at least eighteen (18) years of age on the Commission not later than two hundred eighty (280) calendar days
day of elections, may vote for president, vice-president, senators and before the day of elections. For succeeding elections, the Commission
party-list representatives. shall provide for the period within which applications to register must
be filed.
Sec. 5. Disqualifications. – The following shall be disqualified from
voting under this Act: In the case of seafarers, the Commission shall provide a special
mechanism for the time and manner of personal registration taking into
1. Those who have lost their Filipino citizenship in consideration the nature of their work.
accordance with Philippine laws;
6.1. Upon receipt of the application for registration, the
2. Those who have expressly renounced their Philippine Election Officer shall immediately set the application for
citizenship and who have pledged allegiance to a foreign hearing, the notice of which shall be posted in a conspicuous
country; place in the premises of the city or municipal building of the
applicant’s stated residence for at least one (1) week before
the date of the hearing. The Election Officer shall
3. Those who have committed and are convicted in a final immediately furnish a copy of the application to the
judgment by a court or tribunal of an offense punishable by designated representatives of political parties and other
imprisonment of not less than one (1) year, including those accredited groups.
who have committed and been found guilty of Disloyalty as
 6.2. If no verified objection to the application is filed, the a. A valid Philippine passport. In the absence of a valid
Election Officer shall immediately forward the application to passport, a certification of the Department of Foreign Affairs
the Election Registration Board, which shall decide on the that it has reviewed the appropriate documents submitted by
application within one (1) week from the date of hearing the applicant and found them sufficient to warrant the
without waiting for the quarterly meeting of the Board. The issuance of a passport, or that the applicant is a holder of a
applicant shall be notified of the approval or disapproval of valid passport but is unable to produce the same for a valid
his/her application by registered mail. reason;

6.3. In the event that an objection to the application is filed b. Accomplished registration form prescribed by the
prior to or on the date of hearing, the Election Officer shall Commission containing the following mandatory information:
notify the applicant of said objection by registered mail,
enclosing therein copies of affidavits or documents
i. Last known residence of the applicant in the
submitted in support of the objection filed with the said
Philippines before leaving for abroad;
Election Officer, if any. The applicant shall have the right to
file his counter-affidavit by registered mail, clearly stating
therein facts and defenses sworn before any officer in the ii. Address of applicant abroad, or forwarding
host country authorized to administer oaths. address in the case of seafarers;

6.4. The application shall be approved or disapproved based iii. Where voting by mail is allowed, the applicant’s
on the merits of the objection, counter-affidavit and mailing address outside the Philippines where the
documents submitted by the party objecting and those of the ballot for absentee voters will be sent, in proper
applicant. cases; and;

6.5 A Certificate of Registration as an overseas absentee iv. Name and address of applicant’s authorized
voter shall be issued by the Commission to all applicants representative in the Philippines for purposes of
whose applications have been approved, including those Section 6.7 and Section 12 hereof.
certified as registered voters. The Commission shall include
the approved applications in the National Registry of
c. In the case of immigrants and permanent residents not
Absentee Voters.
otherwise disqualified to vote under this Act, an affidavit
declaring the intention to resume actual physical permanent
6.6. If the application has been approved, any interested residence in the Philippines not later than three (3) years
party may file a petition for exclusion not later than two after approval of his/her registration as an overseas
hundred ten (210) days before the day of elections with the absentee voter under this Act. Such affidavit shall also state
proper municipal or metropolitan trial court. The petition shall that he/she has not applied for citizenship in another country.
be decided within fifteen (15) days after its filing on the basis
of the documents submitted in connection therewith. Should
The Commission may also require additional data to facilitate
the court fail to render a decision within the prescribed
period, the ruling of the Election Registration Board shall be registration and recording. No information other than those necessary
considered affirmed. to establish the identity and qualification of the applicant shall be
required.

6.7. If the application has been disapproved, the applicant or

Sec. 9. National Registry of Overseas Absentee Voters. – The
his authorized representative shall, within a period of five (5)
Commission shall maintain a National Registry of Overseas Absentee
days from receipt of the notice of disapproval, have the right
to file a petition for inclusion with the proper municipal or Voters. Approved applications of overseas absentee registrants shall
metropolitan trial court. The petition shall be decided within also be included in the permanent list of voters of the city or
municipality where the registrant is domiciled, with the corresponding
five (5) days after its filing on the basis of documents
submitted in connection therewith. annotation that such person has been registered or will be voting as an
overseas absentee voter. The registry shall also include those
registered under Republic Act No. 8189 and who have been issued
Qualified citizens of the Philippines abroad, who have previously certifications as overseas absentee voters. The entries in the National
registered as voters pursuant to Republic Act No. 8189 shall apply for Registry of Overseas Absentee Voters and the annotations as
certification as absentee voters and for inclusion in the National overseas absentee voters in the Certified Voters’ List shall be
Registry of Overseas Absentee Voters, with a corresponding permanent, and cannot be cancelled or amended except in any of the
annotation in the Certified Voters’ List. following cases:

Sec. 7. System of Continuing Registration. – The Commission shall 9.1. When the overseas absentee voter files a letter under
ensure that the benefits of the system of continuing registration are oath addressed to the Commission that he/she wishes to be
extended to qualified overseas absentee voters. Towards this end, the removed from the Registry of Overseas Absentee Voters, or
Commission shall optimize the use of existing facilities, personnel and that his/her name be transferred to the regular registry of
mechanisms of the various government agencies for purposes of data voters; or,
gathering, data validation, information dissemination and facilitation of
the registration process.
9.2. When an overseas absentee voter’s name was ordered
removed by the Commission from the Registry of Overseas
Pre-departure programs, services and mechanisms offered and Absentee Voters for his/her failure to exercise his/her right to
administered by the Department of Foreign Affairs, Department of vote under this Act for two (2) consecutive national elections.
Labor and Employment, Philippine Overseas Employment
Administration, Overseas Workers’ Welfare Administration,
Sec. 10. Notice of Registration and Election. – The Commission shall,
Commission on Filipinos Overseas and other appropriate agencies of
the government shall be utilized for purposes of supporting the through the embassies, consulates and other foreign service
overseas absentee registration and voting processes, subject to establishments, cause the publication in a newspaper of general
circulation of the place, date and time of the holding of a regular or
limitations imposed by law.
special national election and the requirements for the participation of
qualified citizens of the Philippines abroad, at least six (6) months
Sec. 8. Requirements for Registration. – Every Filipino registrant shall before the date set for the filing of applications for registration.
be required to furnish the following documents:
The Commission shall determine the countries where publication shall 14.2. The Commission shall present to the authorized
be made, and the frequency thereof, taking into consideration the representatives of the Department of Foreign Affairs and the
number of overseas Filipinos present in such countries. Likewise, the accredited major political parties the ballots for overseas
Commission and the Department of Foreign Affairs shall post the same absentee voters, voting instructions, election forms and other
in their respective websites. election paraphernalia for scrutiny and inspection prior to
their transmittal to the embassies, consulates and other
foreign service establishments concerned.
Sec. 11. Procedure for Application to Vote in Absentia. –

14.3. The Commission shall, not later than seventy-five (75)

11.1. Every qualified citizen of the Philippines abroad whose
days before the day of elections, transmit by special pouch
application for registration has been approved, including
to the embassies, consulates and other foreign service
those previously registered under Republic Act No. 8189,
establishments, the exact number of ballots for overseas
shall, in every national election, file with the officer of the
absentee voters corresponding to the number of approved
embassy, consulate or other foreign service establishment
applications, along with such materials and election
authorized by the Commission, a sworn written application to
paraphernalia necessary to ensure the secrecy and integrity
vote in a form prescribed by the Commission. The
of the election.
authorized officer of such embassy, consulate or other
foreign service establishment shall transmit to the
Commission the said application to vote within five (5) days 14.4. The authorized representatives of accredited major
from receipt thereof. The application form shall be political parties shall have the right to be present in all
accomplished in triplicate and submitted together with the phases of printing, transmittal, and casting of ballots abroad.
photocopy of his/her overseas absentee voter certificate of Unclaimed ballots properly marked as such, shall be
registration. cancelled and shipped to the Commission by the least costly
method.
11.2. Every application to vote in absentia may be done
personally at, or by mail to, the embassy, consulate or Sec. 15. Regulation on Campaigning Abroad. – The use of campaign
foreign service establishment, which has jurisdiction over the materials, as well as the limits on campaign spending shall be
country where he/she has indicated his/her address for governed by the laws and regulations applicable in the Philippines.
purposes of the elections.
Sec. 16. Casting and Submission of Ballots. –
11.3. Consular and diplomatic services rendered in
connection with the overseas absentee voting processes
16.1. Upon receipt by the designated officer of the embassy,
shall be made available at no cost to the overseas absentee
consulate and other foreign service establishments of the
voter.
ballots for overseas absentee voters, voting instructions,
election forms and other paraphernalia, he/she shall make
Sec. 12. Verification and Approval of Application to Vote. – All them available on the premises to the qualified overseas
applications shall be acted upon by the Commission upon receipt absentee voters in their respective jurisdictions during the
thereof, but in no case later than one hundred fifty (150) days before thirty (30) days before the day of elections when overseas
the day of elections. In the event of disapproval of the application, the absentee voters may cast their vote. Immediately upon
voter or his authorized representative may file a Motion for receiving it, the overseas absentee voter must fill-out his/her
Reconsideration with the Commission personally, or by registered mail, ballot personally, in secret, without leaving the premises of
within ten (10) days from receipt of the notice of disapproval. The the embassies, consulates and other foreign service
Commission shall act within five (5) days from receipt of such Motion establishments concerned.
for Reconsideration and shall immediately notify the voter of its
decision. The decision of the Commission shall be final and executory.
16.2. The overseas absentee voter shall personally
accomplish his/her ballot at the embassy, consulate or other
The Commission shall issue an overseas absentee voter identification foreign service establishment that has jurisdiction over the
card to those whose applications to vote have been approved. country where he/she temporarily resides or at any polling
place designated and accredited by the Commission.
Sec. 13. Preparation and Posting of Certified List of Overseas
Absentee Voters. – The Commission shall prepare the Certified List of 16.3. The overseas absentee voter shall cast his ballot, upon
Overseas Absentee Voters within one hundred twenty (120) days presentation of the absentee voter identification card issued
before every election, and furnish within the same period copies by the Commission, within thirty (30) days before the day of
thereof to the appropriate embassies, consulates and other foreign elections. In the case of seafarers, they shall cast their
service establishments, which shall post the same in their bulletin ballots anytime within sixty (60) days before the day of
boards within ten (10) days from receipt thereof. elections as prescribed in the Implementing Rules and
Guidelines.
Subject to reasonable regulation and the payment of fees in such
amounts as may be fixed by the Commission, the candidates, political 16.4. All accomplished ballots received shall be placed
parties, accredited citizens’ arms, interested persons and all unopened inside sealed containers and kept in a secure
embassies, consulates and other foreign service establishments shall place designated by the Commission.
be furnished copies thereof.
16.5. The embassies, consulates and other foreign service
Sec. 14. Printing and Transmittal of Ballots, Voting Instructions, establishments concerned shall keep a complete record of
Election Forms and Paraphernalia. – the ballots for overseas absentee voters, specifically
indicating the number of ballots they actually received, and
in cases where voting by mail is allowed under Section 17
14.1. The Commission shall cause the printing of ballots for
hereof, the names and addresses of the voters to whom
overseas absentee voters, voting instructions, and election
these ballots were sent, including proof of receipt thereof. In
forms in such number as may be necessary, but in no case
addition, the embassies, consulates and other foreign
shall it exceed the total number of approved applications.
service establishments shall submit a formal report to the
Security markings shall be used in the printing of ballots for
Commission and the Joint Congressional Oversight
overseas absentee voters.
Committee created under this Act within thirty (30) days from
the day of elections. Such report shall contain data on the
 number of ballots cast and received by the offices, the 17.2. The overseas absentee voters shall send his/her
number of invalid and unclaimed ballots and other pertinent accomplished ballot to the corresponding embassy, consular
data. or other foreign service establishment that has jurisdiction
over the country where he/she temporarily resides. He/She
shall be entitled to cast his/her ballot at any time upon
16.6. The overseas absentee voter shall be instructed that
his/her receipt thereof, provided that the same Is received
his/her ballot shall not be counted if it is not inside the
before the close of voting on the day of elections. The
special envelope furnished him/her when it is cast.
overseas absentee voter shall be instructed that his/her
ballot shall not be counted if not transmitted in the special
16.7. Ballots not claimed by the overseas absentee voters at envelope furnished him/her.
the embassies, consulates and other foreign service
establishments, in case of personal voting, and ballots
17.3. Only mailed ballots received by the Philippine
returned to the embassies, consulates and other foreign
embassy, consulate and other foreign service
service establishments concerned, in the case of voting by
establishments before the close of voting on the day of
mail, shall be cancelled and shipped to the Commission by
elections shall be counted in accordance with Section 18
the least costly method within six (6) months from the day of
hereof. All envelopes containing the ballots received by the
elections.
embassies, consulates and other foreign service
establishments after the prescribed period shall not be
16.8. Only ballots cast, and mailed ballots received by the opened, and shall be cancelled and disposed of
Philippine embassies, consulates and other foreign service appropriately, with a corresponding report thereon submitted
establishments concerned in accordance with Section 17 to the Commission not later than thirty (30) days from the
hereof before the close of voting on the day of elections shall day of elections.
be counted in accordance with Section 18 hereof. All
envelopes containing the ballots received by the embassies,
Sec. 18. On-Site Counting and Canvassing. –
consulates and other foreign service establishments after the
prescribed period shall not be opened, and shall be
cancelled and shipped to the Commission by the least costly 18.1. The counting and canvassing of votes shall be
method within six (6) months from the day of elections. conducted on site in the country where the votes were
actually cast. The opening of the specially-marked
envelopes containing the ballots and the counting and
16.9. A Special Ballot Reception and Custody Group
canvassing of votes shall be conducted within the premises
composed of three (3) members shall be constituted by the
of the embassies, consulates and other foreign service
Commission from among the staff of the embassies,
establishments or in such other places as may be
consulates and other foreign service establishments
designated by the Commission pursuant to the Implementing
concerned, including their attached agencies, and citizens of
Rules and Regulations. The Commission shall ensure that
the Philippines abroad, who will be deputized to receive
the start of counting in all polling places abroad shall be
ballots and take custody of the same preparatory to their
synchronized with the start of counting in the Philippines.
transmittal to the Special Boards of Election Inspectors.

18.2. For these purposes, the Commission shall constitute

16.10. During this phase of the election process, the
as many Special Boards of Election Inspectors as may be
authorized representatives of the political parties,
necessary to conduct and supervise the counting of votes as
candidates, and accredited citizens’ arms of the Commission
provided in Section 18.2 hereof. The Special Boards of
shall be notified in writing thereof and shall have the right to
Election Inspectors to be constituted herein shall be
witness the proceedings.
composed of a Chairman and two (2) members, one (1) of
whom shall be designated as poll clerk. The ambassador or
16.11. The Commission shall study the use of electronic consul-general, or any career public officer posted abroad
mail, Internet, or other secured networks in the casting of designated by the Commission, as the case may be, shall
votes, and submit a report thereon to the Joint act as the chairman; in the absence of other government
Congressional Oversight Committee. officers, the two (2) other members shall be citizens of the
Philippines who are qualified to vote under this act and
deputized by the Commission not later than sixty (60) days
Sec. 17. Voting by Mail. –
before the day of elections. All resolutions of the Special
Board of Election Inspectors on issues brought before it
17.1. For the May, 2004 elections, the Commission shall during the conduct of its proceedings shall be valid only
authorize voting by mail in not more than three (3) countries, when they carry the approval of the chairman.
subject to the approval of the Congressional Oversight
Committee. Voting by mail may be allowed in countries that Immediately upon the completion of the counting, the
satisfy the following conditions: Special Boards of Election Inspectors shall transmit via
facsimile and/or electronic mail the results to the
a. Where the mailing system is fairly well- Commission in Manila and the accredited major political
developed and secure to prevent the occasion of parties.
fraud;
18.3. Only ballots cast on, or received by the embassies,
b. Where there exists a technically established consulates and other foreign service establishments before
identification system that would preclude multiple the close of voting on the day of elections shall be included
or proxy voting; and, in the counting of votes. Those received afterwards shall not
be counted.
c. Where the system of reception and custody of
mailed ballots in the embassies, consulates and 18.4. A Special Board of Canvassers composed of a lawyer
other foreign service establishments concerned preferably of the Commission as chairman, a senior career
are adequate and well-secured. officer from any of the government agencies maintaining a
post abroad and, in the absence of another government
officer, a citizen of the Philippines qualified to vote under this
Thereafter, voting by mail in any country shall be allowed Act deputized by the Commission, as vice-chairman and
only upon review and approval of the Joint Congressional member-secretary, respectively, shall be constituted to
Oversight Committee.
 canvass the election returns submitted to it by the Special Commission on Filipinos Overseas. The Commission may deputize
Boards of Election Inspectors. Immediately upon the Filipino organizations/associations overseas for the same purpose:
completion of the canvass, the chairman of the Special Provided, That any such deputized organization/association shall be
Board of Canvassers shall transmit via facsimile, electronic prohibited from participating in the elections by campaigning for or
mail, or any other means of transmission equally safe and fielding candidates; Provided, further, That if any such deputized
reliable the Certificates of Canvass and the Statements of organization/association is discovered to have a member who is not a
Votes to the Commission, and shall cause to preserve the qualified overseas absentee voter as herein defined, such deputized
same immediately after the conclusion of the canvass, and organization/association shall be banned from participating in any
make it available upon instructions of the Commission. The manner, and at any stage, in the Philippine political process abroad.
Special Board of Canvassers shall also furnish the
accredited major political parties and accredited citizens’
Such information campaign shall educate the Filipino public, within and
arms with copies thereof via facsimile, electronic mail and
outside the Philippines, on the rights of overseas absentee voters,
any other means of transmission equally safe, secure and
absentee voting processes and other related concerns. Information
reliable.
materials shall be developed by the Commission for distribution,
through the said government agencies and private organizations. No
The Certificates of Canvass and the accompanying government agency or accredited private organizations shall prepare,
Statements of Votes as transmitted via facsimile, electronic print, distribute or post in websites any information material without the
mail and any other means of transmission equally safe, prior approval of the Commission.
secure and reliable shall be the primary basis for the national
canvass.
Sec. 21. Access to Official Records and Documents. – Subject to the
pertinent provisions of this Act, any person shall have the right to
18.5. The canvass of votes shall not cause the delay of the access and/or copy at his expense all registration records, voters lists
proclamation of a winning candidate if the outcome of the and other official records and documents, subject to reasonable
election will not be affected by the results thereof. regulations as may be imposed by the Commission.
Notwithstanding the foregoing, the Commission is
empowered to order the proclamation of winning candidates
Sec. 22. Assistance from Government Agencies. – All government
despite the fact that the scheduled election has not taken
officers, particularly from the Department of Foreign Affairs,
place in a particular country or countries, if the holding of
Department of Labor and Employment, Department of Transportation
elections therein has been rendered impossible by events,
and Communications, Philippine Postal Corporation, Philippine
factors and circumstances peculiar to such country or
Overseas Employment Administration, Overseas Workers’ Welfare
countries, and which events, factors and circumstances are
Administration, Commission on Filipinos Overseas and other
beyond the control or influence of the Commission.
government offices concerned with the welfare of the Filipinos
overseas shall, to the extent compatible with their primary
18.6. In the preparation of the final tally of votes on the responsibilities, assist the Commission in carrying out the provisions of
results of the national elections, the Commission shall this Act. All such agencies or officers thereof shall take reasonable
ensure that the votes canvassed by each and every country measures to expedite all election activities, which the Commission
shall be reflected as a separate item from the tally of national shall require of them. When necessary, the Commission may send
votes. For purposes of this Act, the returns of every election supervisory teams headed by career officers to assist the embassies,
for president and vice-president prepared by the Special consulates and other foreign service establishment concerned.
Board of Canvassers shall be deemed a certificate of
canvass of a city or province.
Sec. 23. Security Measures to Safeguard the Secrecy and Sanctity of
Ballots. – At all stages of the electoral process, the Commission shall
18.7. Where feasible, the counting and canvassing of votes ensure that the secrecy and integrity of the ballots are preserved. The
shall be automated. Towards this end, the Commission is Committee on Absentee Voting of the Commission shall be
hereby authorized to borrow, rent, lease or acquire responsible for ensuring the secrecy and sanctity of the absentee
automated voting machines for purposes of canvassing and voting process. In the interest of transparency, all necessary and
counting of votes pursuant to the provisions of this Act, and practicable measures shall be adopted to allow representation of the
in accordance with the Implementing Rules and Regulations candidates, accredited major political parties, accredited citizens’ arms
promulgated by the Commission. and non-government organizations to assist, and intervene in
appropriate cases, in all stages of the electoral exercise and to prevent
any and all forms of fraud and coercion.
Sec. 19. Authority of the Commission to Promulgate Rules. – The
Commission shall issue the necessary rules and regulations to
effectively implement the provisions of this Act within sixty (60) days No officer or member of the foreign service corps, including those
from the effectivity of this Act. The Implementing Rules and belonging to attached agencies shall be transferred, promoted,
Regulations shall be submitted to the Joint Congressional Oversight extended, recalled or otherwise moved from his current post or position
Committee created by virtue of this Act for prior approval. one (1) year before and three (3) months after the day of elections,
except upon the approval of the Commission.
In the formulation of the rules and regulations, the Commission shall
coordinate with the Department of Foreign Affairs, Department of Sec. 24. Prohibited Acts. – In addition to the prohibited acts provided
Labor and Employment, Philippine Overseas and Employment by law, it shall be unlawful:
Administration, Overseas Workers’ Welfare Administration and the
Commission on Filipinos Overseas. Non-government organizations
24.1. For any officer or employee of the Philippine
and accredited Filipino organizations or associations abroad shall be
government to influence or attempt to influence any person
consulted.
covered by this Act to vote, or not to vote, for a particular
candidate. Nothing in this Act shall be deemed to prohibit
Sec. 20. Information Campaign. – The Commission, in coordination free discussion regarding politics or candidates for public
with agencies concerned, shall undertake an information campaign to office.
educate the public on the manner of absentee voting for qualified
overseas absentee voters. It may require the support and assistance of
24.2. For any person to deprive any person of any right
the Department of Foreign Affairs, through the embassies, consulates
secured in this Act, or to give false information as to his/her
and other foreign service establishments, Department of Labor and
name, address, or period of residence for the purposes of
employment, Department of Transportation and Communications,
establishing his/her eligibility or ineligibility to register or vote
Philippine Postal Corporation, Philippine Overseas Employment
under this Act; or to conspire with another person for the
Administration, Overseas Workers’ Welfare Administration and the
purpose of encouraging the giving of false information in
 order to establish the eligibility or ineligibility of any individual House Committee on Suffrage and Electoral Reforms, and seven (7)
to register or vote under this Act; or, to pay, or offer to pay, other Members of the House of Representatives designated by the
or to accept payment either for application to vote in Speaker of the House of Representatives: Provided, That, of the seven
absentia or for voting; (7) members to be designated by each House of Congress, four (4)
should come from the majority and the remaining three (3) from the
minority.
24.3. For any person to tamper with the ballot, the mail
containing the ballots for overseas absentee voters, the
election returns, including the destruction, mutilation and The Joint Congressional Oversight Committee shall have the power to
manipulation thereof; monitor and evaluate the implementation of this Act. It shall review,
revise, amend and approve the Implementing Rules and Regulations
promulgated by the Commission.
24.4. For any person to steal, destroy, conceal, mutilate or
alter any record, document or paper as required for
purposes of this Act; Sec. 26. Applicability of Other Election Laws. – The pertinent
provisions of the Omnibus Election Code, as amended, and other
election laws, which are not in conflict with the provisions of this Act
24.5. For any deputized agent to refuse without justifiable
shall remain in full force and shall have suppletory application to this
ground, to serve or continue serving, or to comply with
Act.
his/her sworn duties after acceptance of his/her
appointment;
Sec. 27. Enforcement and Administration by the Commission. – The
Commission shall, for the purpose of ensuring honest, orderly,
24.6. For any public officer or employee who shall cause the
peaceful and free elections abroad, have exclusive charge of the
preparation, printing, distribution of information material, or
enforcement, administration and implementation of this Act.
post the same in websites without the prior approval of the
Commission;
Sec. 28. Mandatory Review. – Congress shall complete a mandatory
review of this Act within two (2) years following the May, 2004 elections
24.7. For any public officer or employee to cause the
for the purpose of amending it to expand or restrict its coverage, scope
transfer, promotion, extension, recall of any member of the
and application, as well as improve its procedures and institute
foreign service corps, including members of the attached
measures and safeguards, taking into account the experience of the
agencies, or otherwise cause the movement of any such
previous election, technological advances and structural political
member from his current post or position one (1) year before
changes.
and three (3) months after the day of elections, without
securing the prior approval of the Commission;
Sec. 29. Appropriations. – The amount necessary to carry out the
provisions of this Act shall be provided in a supplemental budget or
24.8. For any person who, after being deputized by the
included in the General Appropriations Act of the year of its enactment
Commission to undertake activities in connection with the
into law. Thereafter, the expenses for its continued implementation
implementation of this Act, shall campaign for or assist, in
shall be included in the subsequent General Appropriations Act.
whatever manner, candidates in the elections;

Sec. 30. Separability Clause. – If any part or provision of this Act shall
24.9. For any person who is not a citizen of the Philippines to
be declared unconstitutional or invalid, other provisions hereof which
participate, by word or deed, directly or indirectly through
are not affected thereby shall continue to be in full force and effect.
qualified organizations/associations, in any manner and at
any stage of the Philippine political process abroad,
including participation in the campaign and elections. Sec. 31. Repealing Clause. – All laws, presidential decrees, executive
orders, rules and regulations, other issuances, and parts thereof, which
are inconsistent with the provisions of this Act, are hereby repealed or
The provision of existing laws to the contrary notwithstanding, and with
modified accordingly.
due regard to the Principle of Double Criminality, the prohibited acts
described in this section are electoral offenses and punishable in the
Philippines. Sec. 32. Effectivity. – This Act shall take effect fifteen (15) days
following its publication in three (3) newspapers of general circulation.
The penalties imposed under Section 264 of the Omnibus Election
Code, as amended, shall be imposed on any person found guilty of
committing any of the prohibited acts as defined in this section:
Provided, That the penalty of prision mayor in its minimum period shall
be imposed upon any person found guilty of Section 24.3 hereof
without the benefit of the operation of the Indeterminate Sentence Law.
If the offender is a public officer or a candidate, the penalty shall be
prision mayor in its maximum period. In addition, the offender shall be
sentenced to suffer perpetual disqualification to hold public office and
deprivation of the right to vote.

Immigrants and permanent residents who do not resume residence in

the Philippines as stipulated in their affidavit under Section 5(d) within
three (3) years after approval of his/her registration under this Act and
yet vote in the next elections contrary to the said section, shall be
penalized by imprisonment of not less than one (1) year, and shall be
deemed disqualified as provided in Section 5(c) of this Act. His/her
passport shall be stamped "not allowed to vote".

Sec. 25. Joint Congressional Oversight Committee. – A Joint

Congressional Oversight Committee is hereby created, composed of
the Chairman of the Senate Committee on Constitutional
Amendments, Revision of Codes and Laws, and seven (7) other
Senators designated by the Senate President, and the Chairman of the
REPUBLIC ACT No. 10590 voters, have been approved by the Election
Registration Board and/or resident Election
Registration Board.
AN ACT AMENDING REPUBLIC ACT NO. 9189, ENTITLED "AN
ACT PROVIDING FOR A SYSTEM OF OVERSEAS ABSENTEE
VOTING BY QUALIFIED CITIZENS OF THE PHILIPPINES ABROAD, "(h) National Registry of Overseas Voters
APPROPRIATING FUNDS THEREFOR AND FOR OTHER (NROV) refers to the consolidated list prepared,
PURPOSES" approved and maintained by the Commission of
overseas voters whose applications for registration
as overseas voters, including those registered
Be it enacted by the Senate and House of Representatives of the
voters under Republic Act No. 8189 who have
Philippines in Congress assembled:
applied to be certified as overseas voters, have
been approved by the resident Election
Section 1. Section 1 of Republic Act No. 9189 is hereby amended to Registration Board, indicating the post where the
read as follows: overseas voter is registered.

"SECTION 1. Short Title. - This Act shall be known as 'The "(i) Office for Overseas Voting (OFOV) refers to
Overseas Voting Act of 2013′." the Office of the Commission tasked to oversee
and supervise the effective implementation of the
Overseas Voting Act.
Section 2. Section 3 of Republic Act No. 9189 is hereby amended to
read as follows:
"(j) Overseas Voter refers to a citizen of the
Philippines who is qualified to register and vote
"SEC. 3. Definition of Terms. - For purposes of this Act:
under this Act, not otherwise disqualified by law,
who is abroad on the day of elections.
"(a) Certified List of Overseas Voters
(CLOV) refers to the list of registered overseas
"(k) Overseas Voting refers to the process by
voters whose applications to vote overseas have which qualified citizens of the Philippines abroad
been approved by the Commission, said list to be exercise their right to vote.
prepared by the Office for Overseas Voting of the
Commission, on a country-by-country and post-by-
post basis. The list shall be approved by the "(l) Posts refer to the Philippine embassies,
Commission in an en banc resolution. consulates, foreign service establishments and
other Philippine government agencies maintaining
offices abroad and having jurisdiction over the
"(b) Commission refers to the Commission on places where the overseas voters reside.
Elections.

"(m) Resident Election Registration Board

"(c) Day of Election refers to the actual date of (RERB) refers to the in-house Election
elections in the Philippines. Registration Board in every post and in the OFOV,
which processes, approves or disapproves all
"(d) Department of Foreign Affairs Overseas applications for registration and/or certification as
Voting Secretariat (DFA-OVS) refers to the overseas voters, including the deactivation,
secretariat based at the Department of Foreign reactivation and cancellation of registration
Affairs (DFA) home office tasked to assist the records.
Office for Overseas Voting (OFOV) under the
Commission, and to direct, coordinate and "(n) Seafarers refer to ship officers and ratings
oversee the participation of the DFA in the
manning ships, including offshore workers, service
implementation of the Overseas Voting Act. providers and fishermen, as denned in the revised
rules on the issuance of seafarer's identification
"(e) Field Registration refers to the conduct of and record book of the Maritime Industry Authority.
registration of overseas voters at predetermined
locations, either in the Philippines, as may be "(o) Special Ballot Reception and Custody Group
determined by the Commission, or outside the
(SBRCG) refers to the group constituted by the
posts, upon the favorable recommendation of the Commission to receive and take custody of all
DFA-OVS, both being of limited duration and accountable and other election forms, supplies
based on the guidelines prescribed by the
and paraphernalia from the OFOV for transmittal
Commission for that exclusive purpose; the to the Special Board of Election Inspectors and
government shall not collect fees for the same. Special Board of Canvassers.

"(f) Mobile Registration refers to the conduct of "(p) Special Board of Canvassers (SBOC) refers to
registration of overseas voters at various locations the body deputized by the Commission to canvass
outside the posts, other than at field registrations,
the overseas voting election returns submitted to it
undertaken as part of the posts' mobile consular by the Special Board of Election Inspectors.
and outreach activities to Filipinos within their
jurisdictions.
"(q) Special Board of Election Inspectors
(SBEI) refers to the body deputized by the
"(g) Municipal/City/District Registry of Overseas Commission to conduct the voting and counting of
Voters (ROV) refers to the consolidated list
votes.
prepared, approved and maintained by the
Commission for every municipality/city/district of
overseas voters whose applications for registration "(r) Voting Period refers to a continuous thirty (30)-
as such, including those registered voters under day period, the last day of which is the day of
Republic Act No. 8189, 'Voter's Registration Act of election, inclusive of established holidays in the
1996′, who applied for certification as overseas
 Philippines and of such other holidays in the host Section 6. A new Section 7 of the same Act is hereby inserted to read
countries." as follows:

Section 3. Section 4 of the same Act is hereby amended to read as "SEC. 7. Resident Election Registration Board (RERB);
follows: Composition, Appointment, Disqualification and
Compensation. - The RERB shall be composed of the
following:
"SEC. 4. Coverage. - All citizens of the Philippines abroad,
who are not otherwise disqualified by law, at least eighteen
(18) years of age on the day of elections, may vote for "(a) A career official of the DFA, as Chairperson;
President, Vice-President, Senators and Party-List
Representatives, as well as in all national referenda and
"(b) The most senior officer from the Department
plebiscites."
of Labor and Employment (DOLE) or any
government agency of the Philippines maintaining
Section 4. Section 5 of the same Act is hereby amended to read as offices abroad, as member: Provided, That in case
follows: of disqualification or nonavailability of the most
senior officer from the DOLE or any government
agency of the Philippines maintaining offices
"SEC. 5. Disqualifications. - The following shall be
abroad, the Commission shall designate a career
disqualified from registering and voting under this Act:
official from the embassy or consulate concerned;
and
"(a) Those who have lost their Filipino citizenship
in accordance with Philippine laws;
"(c) A registered overseas voter of known probity,
as member.
"(b) Those who have expressly renounced their
Philippine citizenship and who have pledged
"The Commission shall appoint the members of the RERB
allegiance to a foreign country, except those who
upon the recommendation of the DFA-OVS.
have reacquired or retained their Philippine
citizenship under Republic Act No. 9225,
otherwise known as the 'Citizenship Retention and "The RERB in the OFOV shall be based in the main office of
Reacquisition Act of 2003′; the Commission and shall be composed of a senior official of
the Commission as the Chairperson and one (1) member
each from the DFA and the DOLE, whose rank shall not be
"(c) Those who have committed and are convicted
lower than a division chief or its equivalent.
in a final judgment by a Philippine court or tribunal
of an offense punishable by imprisonment of not
less than one (1) year, such disability not having "No member of the RERB shall be related to each other or to
been removed by plenary pardon or an incumbent President, Vice-President, Senator or Member
amnesty: Provided, however, That any person of the House of Representatives representing the party-list
disqualified to vote under this subsection shall system of representation, within the fourth civil degree of
automatically acquire the right to vote upon the consanguinity or affinity.
expiration of five (5) years after service of
sentence; and
"Each member of the RERB shall be entitled to an
honorarium at the rates approved by the Department of
"(d) Any citizen of the Philippines abroad Budget and Management (DBM)."
previously declared insane or incompetent by
competent authority in the Philippines or abroad,
Section 7. A new Section 8 of the same Act is hereby inserted to read
as verified by the Philippine embassies,
as follows:
consulates or foreign service establishments
concerned, unless such competent authority
subsequently certifies that such person is no "SEC. 8. Duties and Functions of the RERB. - The RERB
longer insane or incompetent." shall have the following duties and functions:

Section 5. Section 6 of the same Act is hereby amended to read as "(a) Post in the bulletin boards of the embassy or
follows: consulates or at the OFOV, as the case may be,
and in their respective websites, the names of the
applicants and the dates when their applications
"SEC. 6. Personal Overseas Registration and/or
shall be heard, as well as the place where the
Certification. - Registration and/or certification as an
RERB will hold its hearing;
overseas voter shall be done in person at any post abroad or
at designated registration centers outside the post or in the
Philippines approved by the Commission. "(b) Notify, through the OFOV, all political parties
and other parties concerned of the pending
applications through a weekly updated publication
"Field and mobile registration centers shall be set up by the
in the website of the Commission;
posts concerned to ensure accessibility by the overseas
voters.
"(c) Act on all applications received;
"All applicants shall submit themselves for live capture of
their biometrics. "(d) Notify all applicants, whose applications have
been disapproved, stating the reasons for such
disapproval;
"The Commission shall issue an overseas voter identification
card to those whose applications to vote have been
approved." "(e) Prepare a list of all approved applications
during each hearing and post the same at the
bulletin boards of the embassy or consulates or at
 the OFOV, as the case may be, and in their the OFOV, through its Chairperson, at least one hundred
respective websites; eighty (180) days prior to the start of the overseas voting
period: Provided, That those who would eventually vote in
the Philippines should register within the time frame provided
"(f) Deactivate the registration records of overseas
for local registration in the municipality, city or district where
voters; and
they intend to vote: Provided, further, That those who have
registered in the municipality, city or district where they
"(g) Perform such other duties as may be resided prior to their departure abroad need not register
consistent with its functions as provided under this anew: Provided, finally, That transferees shall notify the
Act." OFOV, through its Chairperson, of their transfer back to the
Philippines at least one hundred eighty (180) days prior to
the next national elections for purposes of cancelling their
Section 8. A new Section 9 of the same Act is hereby inserted to read
names from the CLOV and of removing their overseas
as follows:
voter's registration from the book of voters."

"SEC. 9. Petition for Exclusion, Motion for Reconsideration, Section 10. Section 7 of the same Act is hereby renumbered as
Petition for Inclusion. -
Section 11 and is amended to read as follows:

"9.1. Petition for Exclusion. - If the application has been "SEC. 11. System of Continuing Registration. - The
approved, any interested party may file a petition for
Commission shall ensure that the benefits of the system of
exclusion not later than one hundred eighty (180) days continuing registration are extended to qualified overseas
before the start of the overseas voting period with the proper voters. Registration shall commence not later than six (6)
Municipal/Metropolitan Trial Court in the City of Manila or
months after the conduct of the last national elections.
where the overseas voter resides in the Philippines, at the Towards this end, the Commission shall be authorized to
option of the petitioner. utilize and optimize the use of existing facilities, personnel
and mechanisms of the various government agencies for
"The petition shall be decided on the basis of the documents purposes of data gathering and validation, information
submitted within fifteen (15) days from its filing, but not later dissemination and facilitation of the registration process.
than one hundred twenty (120) days before the start of the
overseas voting period. Should the Court fail to render a "Pre-departure Orientation Seminars (PDOS), services and
decision within the prescribed period, the ruling of the RERB mechanisms offered and administered by the DFA, the
shall be considered affirmed. DOLE, the Philippine Overseas Employment Administration
(POEA), the Overseas Workers' Welfare Administration
"9.2. Motion for Reconsideration. - If the application has (OWWA), the Commission on Filipinos Overseas and by
been disapproved, the applicant or the authorized other appropriate agencies of the government and private
representative shall have the right to file a motion for agencies providing the same services shall include the
reconsideration before the RERB within a period of five (5) salient features of this Act and shall be utilized for purposes
days from receipt of the notice of disapproval. The motion of supporting the overseas registration and voting
shall be decided within five (5) days after its filing on the processes.
basis of documents submitted but not later than one hundred
twenty (120) days before the start of the overseas voting "All employment contracts processed and approved by the
period. The resolution of the RERB shall be immediately POEA shall state the right of migrant workers to exercise
executory, unless reversed or set aside by the Court.
their constitutional right of suffrage within the limits provided
for by this Act."
"9.3. Petition for Inclusion. - Within ten (10) days from receipt
of notice denying the motion for reconsideration, the Section 11. Section 8 of the same Act is hereby renumbered as
applicant may file a petition for inclusion with the proper Section 12 and is amended to read as follows:
Municipal/Metropolitan Trial Court in the City of Manila or
where the overseas voter resides in the Philippines, at the
option of the petitioner. "SEC. 12. Requirements for Registration. - Every Filipino
registrant shall be required to furnish the following
documents:
"The petition shall be decided on the basis of the documents
submitted within fifteen (15) days from filing, but not later
than one hundred twenty (120) days before the start of the "(a) A valid Philippine passport. In the absence of
overseas voting period. Should the Court fail to render a a valid passport, a certification of the DFA that it
decision within the, prescribed period, the RERB ruling shall has reviewed the appropriate documents
be considered affirmed. submitted by the applicant and has found them
sufficient to warrant the issuance of a passport, or
that the applicant is a holder of a valid passport
"Qualified Philippine citizens abroad who have previously but is unable to produce the same for a valid
registered as voters pursuant to Republic Act No. 8189, reason;
otherwise known as the 'Voter's Registration Act of 1996′,
shall apply for certification as overseas voters and for
inclusion in the NROV. In case of approval, the Election "(b) Accomplished registration form prescribed by
Officer concerned shall annotate the fact of the Commission; and
registration/certification as overseas voter before the voter's
name as appearing in the certified voters' list and in the
"(c) Applicants who availed themselves of the
voter's registration records."
'Citizen Retention and Reacquisition Act' (Republic
Act No. 9225) shall present the original or certified
Section 9. A new Section 10 of the same Act is hereby inserted to true copy of the order of approval of their
read as follows: application to retain or reacquire their Filipino
citizenship issued by the post or their identification
certificate issued by the Bureau of Immigration.
"SEC. 10. Transfer of Registration Record. - In the event of
change of voting venue, an application for transfer of
registration record must be filed by the overseas voter with
 "The Commission may also require, additional data to and the requirements for the participation of qualified citizens
facilitate registration and recording.1âwphi1 No information of the Philippines abroad, at least six (6) months before the
other than those necessary to establish the identity and date set for the filing of applications for registration.
qualification of the applicant shall be required.
"The Commission shall determine the countries where
"All applications for registration and/or certification as an publication shall be made, and the frequency thereof, taking
overseas voter shall be considered as applications to vote into consideration the number of overseas Filipinos present
overseas. An overseas voter is presumed to be abroad until in such countries. Likewise, the Commission and the DFA
she/he applies for transfer of her/his registration records or shall post the same in their respective websites."
requests that her/his name be cancelled from the NROV."
Section 15. Sections 11 and 12 of the same Act are hereby deleted.
Section 12. Section 9 of the same Act is hereby renumbered as
Section 13 and is amended to read as follows:
Section 16. A new Section 16 of the same Act is hereby inserted to
read as follows:
"SEC. 13. National Registry of Overseas Voters (NROV). -
The Commission shall maintain a National Registry of
"SEC. 16. Reactivation of Registration. - Any overseas voter
Overseas Voters or NROV containing the names of
whose registration has been deactivated pursuant to the
registered overseas voters and the posts where they are
preceding section may file with the RERB at any time, but
registered.
not later than one hundred twenty (120) days before the start
of the overseas voting period, a sworn application for
"Likewise, the Commission shall maintain a registry of voters reactivation of registration stating that the grounds for the
(ROV) per municipality, city or district containing the names deactivation no longer exist."
of registered overseas voters domiciled therein. The
Commission shall provide each and every municipality, city
Section 17. A new Section 17 of the same Act is hereby inserted to
or district with a copy of their respective ROVS for their
read as follows:
reference."

"SEC 17. Cancellation of Registration. - The RERB shall

Section 13. A new Section 14 of the same Act is hereby inserted to
cancel the registration records of those who have died, as
read as follows:
certified by either the posts or by the local civil registrar, and
those who have been proven to have lost their Filipino
"SEC. 14. Deactivation of Registration. - The RERB shall citizenship."
deactivate and remove the registration records of the
following persons from the corresponding book of voters and
Section 18. A new Section 18 of the same Act is hereby inserted to
place the same, properly marked and dated, in the inactive
read as follows:
file after entering any of the following causes of deactivation:

"SEC. 18. Voters Excluded from the NROV Through

"(a) Any person who has been sentenced by final
Inadvertence. - Any registered overseas voter whose name
judgment by a Philippine court or tribunal to suffer
has been inadvertently omitted from the NROV may,
imprisonment for not less than one (1) year, such
personally or through an authorized representative, file with
disability not having been removed by plenary
the RERB through the OFOV or the post exercising
pardon or amnesty: Provided, however, That any
jurisdiction over the voter's residence, an application under
person disqualified to vote under this paragraph
oath for reinstatement not later than one hundred twenty
shall automatically reacquire the right to vote upon
(120) days before the start of the voting period.
the expiration of five (5) years after service of
sentence, as certified by the Clerks of Courts of
the Municipal, Municipal Circuit, Metropolitan, "The RERB shall resolve the application within one (1)
Regional Trial Courts or the Sandiganbayan; month from receipt thereof, otherwise the application shall
be deemed approved."
"(b) Any person declared by competent authority
to be insane or incompetent, unless such Section 19. A new Section 19 of the same Act is hereby inserted to
disqualification has been subsequently removed read as follows:
by a declaration of a proper authority that such
person is no longer insane or incompetent;
"SEC. 19. Application for Correction of Entries and Change
of Name. - Any registered overseas voter who intends to
"(c) Any person who did not vote in two (2) change her/his name by reason of marriage, death of
consecutive national elections as shown by voting husband, or final court judgment; or to correct a mispelled
records; and name or any erroneous entry in the NROV, CLOV and
voter's identification card may, personally or through an
authorized representative, file an application under oath for
"(d) Any person whose registration has been
change of name or correction of entries with the RERB
ordered excluded by the courts.
through the OFOV or the post exercising jurisdiction over the
voter's residence not later than ninety (90) days before the
"The fact of deactivation shall be annotated in the NROV and start of the voting period.
the corresponding ROV."
"The RERB shall resolve the application within one (1)
Section 14. Section 10 of the same Act is hereby renumbered as month from receipt thereof, otherwise the application shall
Section 15. be deemed approved."

"SEC. 15. Notice of Registration and Election. - The Section 20. Section 13 of the same Act is hereby renumbered as
Commission shall, through the posts cause the publication in Section 20 and is amended to read as follows:
a newspaper of general circulation of the place, date and
time of the holding of a regular or special national election
 "SEC. 20. Preparation and Posting of Certified List of "The OFOV, in consultation with the DFA-OVS, shall
Overseas Voters. - The Commission shall prepare the determine the countries where voting shall be done by any
Certified List of Overseas Voters or CLOV not later than specific mode, taking into consideration the minimum criteria
ninety (90) days before the start of the overseas voting enumerated under this Act which shall include the number of
period, and furnish within the same period electronic and registered voters, accessibility of the posts, efficiency of the
hard copies thereof to the appropriate posts, which shall post host country's applied system and such other circumstances
the same in their bulletin boards and/or websites within ten that may affect the conduct of voting.
(10) days from receipt thereof.
"The Commission shall announce the specific mode of voting
"Subject to reasonable regulation and the payment of fees in per country/post at least one hundred twenty (120) days
such amounts as may be fixed by the Commission, the before the start of the voting period."
candidates, political parties, accredited citizens' arms, and all
other interested persons shall be furnished copies
Section 24. Section 16 of the same Act is hereby renumbered as
thereof: Provided, That nongovernmental organizations and
Section 24 and is amended to read as follows:
other civil society organizations accredited by and working
with the Commission as partners on overseas voters'
education and participation shall be exempt from the "SEC. 24. Casting and Submission of Ballots. -
payment of fees."
"24.1. Upon receipt by the SBEI of the ballots for overseas
Section 21. Section 14 of the same Act is hereby renumbered as voters, voting instructions, election forms and other
Section 21 and is amended to read as follows: paraphernalia, they shall make these available on the
premises to the qualified overseas voters in their respective
jurisdictions during the thirty (30) days before the day of
"SEC. 21. Printing and Transmittal of Ballots, Voting
elections when overseas voters may cast their vote.
Instructions, Election Forms and Paraphernalia. -
Immediately upon receiving it, the overseas voter must fill-
out her/his ballot personally, in secret, without leaving the
"21.1. The Commission shall cause the printing of ballots for premises of the posts concerned.
overseas voters, and all other accountable election forms in
such number as may be necessary, but in no case shall
"24.2. The overseas voter shall personally accomplish
these exceed the total number of approved applications.
her/his ballot at the post that has jurisdiction over the country
Security markings shall be used in the printing of ballots for
where she/he temporarily resides or at any polling place
overseas voters.
designated and accredited by the Commission.

"21.2. The Commission shall present to the authorized

"24.3. The overseas voter shall cast her/his ballot, upon
representatives of the DFA and of the accredited major
presentation of the voter identification card issued by the
political parties the ballots for overseas voters, voting
Commission or such other documents deemed by the SBEI
instructions, election forms and other election paraphernalia
at the post as sufficient to establish the voter's identity.
for scrutiny and inspection prior to their transmittal to the
posts.
"24.4. x x x
"21.3. The Commission shall transmit, as far as practicable,
but not later than forty-five (45) days before the day of "24.5. The posts concerned shall keep a complete record of
elections, by special pouch to all posts the exact number of the ballots for overseas voters, specifically indicating the
ballots for overseas voters corresponding to the number of number of ballots they actually received, and in cases where
approved applications, along with such accountable forms voting by mail is allowed under Section 25 hereof, the names
necessary to ensure the secrecy and integrity of the election. and addresses of the voters to whom these ballots were
sent, including proof of receipt thereof. In addition, the posts
shall submit a formal report to the Commission and the Joint
"21.4. The authorized representatives of accredited major
Congressional Oversight Committee created under this Act
political parties shall have the right to be present in all
within thirty (30) days from the day of elections. Such report
phases of printing, transmittal, and casting of mailed ballots
shall contain data on the number of ballots cast and received
abroad. Unclaimed ballots properly marked as such, shall be
by the offices, the number of invalid and unclaimed ballots
cancelled and shipped to the Commission by the least costly
and other pertinent data.
method."

"24.6. Ballots not claimed by the overseas voters at the

Section 22. Section 15 of the same Act is hereby renumbered as
posts, in case of personal voting, and ballots returned to the
Section 22 and is amended to read as follows:
posts concerned, in the case of voting by mail, shall be
cancelled and shipped to the Commission by the least costly
"SEC. 22. Regulation on Campaigning Abroad. - Personal method within six (6) months from the day of elections.
campaigning, the use of campaign materials, as well as the
limits on campaign spending shall be governed by the laws
"24.7. Only ballots cast, and mailed ballots received by the
and regulations applicable in the Philippines: Provided, That
posts concerned in accordance with Section 25 hereof
all forms of campaigning abroad within the thirty (30)-day
before the close of voting on the day of elections shall be
overseas voting period shall be prohibited."
counted in accordance with Section 27 hereof. All envelopes
containing the ballots received by the posts after the
Section 23. A new Section 23 of the same Act is hereby inserted to prescribed period shall not be opened, and shall be
read as follows: cancelled and shipped to the Commission by the least costly
method within six (6) months from the day of elections.
"SEC. 23. Voting. - Voting may be done either personally, by
mail or by any other means as may be determined by the "24.8. A special ballot Reception and Custody Group
Commission. For this purpose, the Commission shall issue composed of three (3) members shall be constituted by the
the necessary guidelines on the manner and procedures of Commission from among the staff of the posts concerned,
voting. including their attached agencies, and citizens of the
Philippines abroad, who will be deputized to receive ballots
 and take custody of the same preparatory to their transmittal issues brought before it during the conduct of its
to the SBEI. proceedings shall be valid only when they carry the approval
of the Chairman.
"24.9. x x x
"Immediately upon the completion of the counting, the SBEIs
shall transmit via facsimile and/or electronic mail the results
"24.10. x x x."
to the Commission in Manila and the accredited major
political parties.
Section 25. Section 17 of the same Act is hereby renumbered as
Section 25 and is amended to read as follows:
"x x x

"SEC. 25. Voting by Mail. -

"27.3. x x x

"25.1. x x x
"27.4. The SBOC composed of the highest ranking officer of
the post as Chairperson, a senior career officer from any of
"(a) x x x; the government agencies maintaining a post abroad and, in
the absence of another government officer, a citizen of the
Philippines qualified to vote under this Act and deputized by
"(b) x x x; and the Commission, as vice chairperson and member-secretary,
respectively, shall be constituted to canvass the election
"(c) x x x. returns submitted to it by the SBEIs. Immediately upon the
completion of the canvass, the chairperson of the SBOC
shall transmit via facsimile, electronic mail, or any other
"25.2. The overseas voter shall send her/his accomplished means of transmission equally safe and reliable the
ballot to the corresponding post that has jurisdiction over the Certificates of Canvass and the Statements of Votes to the
country where she/he temporarily resides. She/He shall be Commission, and shall cause to preserve the same
entitled to cast her/his ballot at any time upon her/his receipt immediately after the conclusion of the canvass, and make it
thereof: Provided, That the same is received before the available upon instructions of the Commission. The SBOC
close of voting on the day of elections. The overseas shall also furnish the accredited major political parties and
absentee voter shall be instructed that her/his ballot shall not accredited citizens' arms with copies thereof via facsimile,
be counted if not transmitted in the special envelope electronic mail and any other means of transmission equally
furnished her/him. safe, secure and reliable.

"25.3. Only mailed ballots received by the post before the "x x x
close of voting on the day of elections shall be counted in
accordance with Section 27 hereof. All envelopes containing
the ballots received by the posts after the prescribed period "27.5. x x x
shall not be opened, and shall be cancelled and disposed of
appropriately, with a corresponding report thereon submitted "27.6. x x x. For purposes of this Act, the returns of every
to the Commission not later than thirty (30) days from the election for President and Vice-President prepared by the
day of elections."
SBOCs shall be deemed a certificate of canvass of a city or
a province.
Section 26. A new Section 26 of the same Act is hereby inserted to
read as follows:
"27.7. x x x."

"SEC. 26. Voting Privilege of Members of the SBEI, SBRCG Section 28. A new Section 28 of the same Act is hereby inserted to
and SBOC. - Government employees posted abroad who
read as follows:
will perform election duties as members of the SBEI,
SBCRG and SBOC shall be allowed to vote in their
respective posts: Provided, That they are registered either in "SEC. 28. Authority to Explore Other Modes or Systems
the Philippines or as overseas voters." Using Automated Election System. - Notwithstanding current
procedures and systems herein provided, for the proper
implementation of this Act and in view of the peculiarities
Section 27. Section 18 of the same Act is hereby renumbered as
attendant to the overseas voting process, the Commission
Section 27 and is amended to read as follows: may explore other more efficient, reliable and secure modes
or systems, ensuring the secrecy and sanctity of the entire
"SEC. 27. On-Site Counting and Canvassing. - process, whether paper-based, electronic-based or internet-
based technology or such other latest technology available,
for onsite and remote registration and elections and submit
"27.1. x x x reports and/or recommendations to the Joint Congressional
Oversight Committee."
"27.2. For these purposes, the Commission shall constitute
as many SBEIs as may be necessary to conduct and Section 29. A new Section 29 of the same Act is hereby inserted to
supervise the counting of votes as provided in Section 27.2 read as follows:
hereof. The SBEIs to be constituted herein shall be
composed of a Chairman and two (2) members, one (1) of
whom shall be designated as poll clerk. The ambassador or "SEC. 29. Procurement of Facilities, Equipment, Materials,
consul-general, or any career public officer posted abroad Supplies or Services. - To achieve the purpose of this Act,
designated by the Commission, as the case may be, shall the Commission may, likewise, procure from local or foreign
act as the Chairman; in the absence of other government sources, through purchase, lease, rent or other forms of
officers, the two (2) other members shall be citizens of the acquisition, hardware or software, facilities, equipment,
Philippines who are qualified to vote under this Act and materials, supplies or services in accordance with existing
deputized by the Commission not later than sixty (60) days laws, free from taxes and import duties, subject to
before the day of elections. All resolutions of the SBEIs on government procurement rules and regulations."
Section 30. A new Section 30 of the same Act is hereby inserted to "SEC. 35. Security Measures to Safeguard the Secrecy and
read as follows: Sanctity of Ballots. - At all stages of the electoral process,
the Commission shall ensure that the secrecy and integrity
of the ballots are preserved. The OFOV of the Commission
"SEC. 30. Establishment of an Office for Overseas Voting
shall be responsible for ensuring the secrecy and sanctity of
(OFOV) Under the Commission. - The Commission is hereby
the overseas voting process. In the interest of transparency,
authorized to establish an OFOV tasked specifically to
all necessary and practicable measures shall be adopted to
oversee and supervise the effective implementation of the
allow representation of the candidates, accredited major
Overseas Voting Act: Provided, That its secretariat shall
political parties, accredited citizens' arms and
come from the existing secretariat personnel of the
nongovernment organizations to assist, and intervene in
Commission on Elections."
appropriate cases, in all stages of the electoral exercise and
to prevent any and all forms of fraud and coercion.
Section 31. A new Section 31 of the same Act is hereby inserted to
read as follows:
"No officer or member of the foreign service corps, including
those belonging to attached agencies shall be transferred,
"SEC. 31. Creation of the Department of Foreign Affairs promoted, extended, recalled or otherwise moved from his
Overseas Voting Secretariat (DFA-OVS). - A secretariat current post or position one (1) year before and three (3)
based in the DFA home office is hereby created to assist the months after the day of elections, except upon the approval
OFOV, and to direct, coordinate and oversee the of the Commission."
participation of the DFA in the implementation of the
Overseas Voting Act: Provided, That its secretariat shall
Section 37. Section 24 of the same Act is hereby renumbered as
come from the existing secretariat personnel of the DFA."
Section 36 and is amended to read as follows:

Section 32. Section 19 of the same Act is hereby deleted.

"SEC. 36. Prohibited Acts. - In addition to the prohibited acts
provided by law, it shall be unlawful:
Section 33. Section 20 of the same Act is hereby renumbered as
Section 32 and is amended to read as follows:
"36.1. For any officer or employee of the Philippine
government to influence or attempt to influence
"SEC. 32. Information Campaign. - The Commission, in any person covered by this Act to vote, or not to
coordination with agencies concerned, shall undertake an vote, for a particular candidate. Nothing in this Act
information campaign to educate the public on the manner of shall be deemed to prohibit free discussion
overseas voting for qualified overseas voters. It may require regarding politics or candidates for public office;
the support and assistance of the DFA, through the posts,
the DOLE, the Department of Transportation and
"36.2. For any person to deprive another of any
Communications (DOTC), the Philippine Postal Corporation
right secured in this Act, or to give false
(PPC), the POEA, the OWWA and the Commission on
information as to one's name, address, or period
Filipinos Overseas.
of residence for the purposes of establishing the
eligibility or ineligibility to register or vote under
Such information campaign shall educate the Filipino public, this Act; or to conspire with another person for the
within and outside the Philippines, on the Philippine Electoral purpose of encouraging the giving of false
System, the rights of overseas voters, overseas voting information in order to establish the eligibility or
processes and other related concerns. Information materials ineligibility of any individual to register or vote
shall be developed by the Commission for distribution, under this Act; or, to pay, or offer to pay, or to
through the said government agencies and private accept payment either for application for
organizations. No government agency shall prepare, print, registration, or for voting;
distribute or post any information material without the prior
approval of the Commission."
"36.3. For any person to steal, conceal, alter,
destroy, mutilate, manipulate, or in any way
Section 34. Section 21 of the same Act is hereby renumbered as tamper with the mail containing the ballots for
Section 33. overseas voters, the ballot, the election returns, or
any record, document or paper required for
purposes of this Act;
Section 35. Section 22 of the same Act is hereby renumbered as
Section 34 and is amended to read as follows:
"36.4. For any deputized agent to refuse without
justifiable ground, to serve or continue serving, or
"SEC. 34. Assistance from Government Agencies. - All to comply with one's sworn duties after
government officers, particularly from the DFA, the DOLE, acceptance of the deputization;
the DOTC, the PPC, the POEA, the OWWA, the
Commission on Filipinos Overseas and other government
offices concerned with the welfare of the Filipinos overseas "36.5. For any public officer or employee or
shall, to the extent compatible with their primary accredited or deputized organization or
responsibilities, assist the Commission in carrying out the association to cause the preparation, printing,
provisions of this Act. All such agencies or officers thereof distribution or posting of information or material,
shall take reasonable measures to expedite all election without the prior approval of the Commission;
activities, which the Commission shall require of them. When
necessary, the Commission may send supervisory teams
"36.6. For any public officer or employee to cause
headed by career officers to assist the posts.
the transfer, promotion, extension, recall of any
member of the foreign service corps, including
"Likewise, consular and diplomatic services rendered in members of the attached agencies, or otherwise
connection with the overseas voting processes shall be cause the movement of any such member from
made available at no cost to the overseas voters." the current post or position one (1) year before
and three (3) months after the day of elections,
without securing the prior approval of the
Section 36. Section 23 of the same Act is hereby renumbered as
Commission;
Section 35 and is amended to read as follows:
 "36.7. For any person who, after being deputized Section 41. Implementing Rules and Regulations. - The Commission
by the Commission to undertake activities in shall promulgate rules and regulations for the implementation and
connection with the implementation of this Act, enforcement of the provisions of this Act within sixty (60) days from the
shall campaign for or assist, in whatever manner, effectivity thereof.
candidates in the elections;
In the formulation of the rules and regulations, the Commission shall
"36.8. For any person to engage in partisan coordinate with the DFA, the DOLE, the POEA, the OWWA and the
political activity abroad during the thirty (30)-day Commission on Filipinos Overseas. Nongovernment organizations and
overseas voting period; accredited Filipino organizations or associations abroad shall be
consulted.
"36.9. For any person who is not a citizen of the
Philippines to participate, by word or deed, directly Section 42. Amending Clause. - Consistent with the amendments
or indirectly through qualified introduced by this Act, Section 2 of Republic Act No. 9189, on the
organizations/associations, in any manner and at declaration of policy, is, hereby amended to read as follows:
any stage of the Philippine political process
abroad, including participation in the campaign
"SEC. 2. Declaration of Policy. - It is the prime duty of the
and elections.
State to provide a system of honest and orderly overseas
voting that upholds the secrecy and sanctity of the ballot.
"The provision of existing laws to the contrary Towards this end, the State ensures equal opportunity to all
notwithstanding, and with due regard to the qualified citizens of the Philippines abroad in the exercise of
Principle of Double Criminality, the prohibited acts this fundamental right."
described in this section are electoral offenses and
shall be punishable in the Philippines.
Section 43. Separability Clause. - If any part or provision of this Act
shall be declared unconstitutional or invalid, the other provisions hereof
"The penalties imposed under Section 264 of the which are not affected thereby shall continue to be in full force and
Omnibus Election Code, as amended, shall be effect.
imposed on any person found guilty of committing
any of the prohibited acts as defined in this
Section 44. Repealing Clause. - All laws, presidential decrees,
section:Provided, That the penalty of prision
executive orders, rules and regulations, other issuances and parts
mayor in its minimum period shall be imposed
thereof which are inconsistent with the provisions of this Act are hereby
upon any person found guilty under Section 36.3
repealed or modified accordingly.
hereof without the benefit of the operation of the
Indeterminate Sentence Law. If the offender is a
public officer or a candidate, the penalty shall Section 45. Effectivity Clause. - This Act shall take effect fifteen (15)
be prision mayor in its maximum period. In days after its publication in the Official Gazette or in at least two (2)
addition, the offender shall be sentenced to suffer newspapers of general circulation.
perpetual disqualification to hold public office and
deprivation of the right to vote."

Section 38. Section 25 of the same Act is hereby renumbered as

Section 37 and is amended to read as follows:

"SEC. 37. Joint Congressional Oversight Committee. -

A Joint Congressional Oversight Committee is hereby
created, composed of the Chairperson of the Senate
Committee on Constitutional Amendments, Revision of
Codes and Laws, and seven (7) other Senators designated
by the Senate President, and the Chairperson of the House
Committee on Suffrage and Electoral Reforms, and seven
(7) other Members of the House of Representatives
designated by the Speaker of the House of
Representatives: Provided, That, of the seven (7) members
to be designated by each House of Congress, four (4)
should come from the majority to include the chair of the
Committee on Foreign Affairs and the remaining three (3)
from the minority.

"The Joint Congressional Oversight Committee shall have

the power to monitor and evaluate the implementation of this
Act."

Section 39. Sections 26, 27 and 28 of the same Act are hereby
renumbered as Sections 38, 39 and 40, respectively.

Section 40. Section 29 of the same Act is hereby renumbered as

Section 41 and is amended to read as follows:

"SEC. 41. Appropriations. - The amount necessary to carry

out the provisions of this Act shall be included in the budgets
of the Commission on Elections and the DFA in the annual
General Appropriations Act."
 EN BANC constitutional mandate to decide."cralaw virtua1aw library

[G.R. No. 157013. July 10, 2003.] In another case of paramount impact to the Filipino people, it has been
expressed that it is illogical to await the adverse consequences of the
ATTY. ROMULO B. MACALINTAL, Petitioner, v. COMMISSION ON law in order to consider the controversy actual and ripe for judicial
ELECTIONS, HON. ALBERTO ROMULO, in his official capacity as resolution. 8 In yet another case, the Court said that:chanrob1es virtual
Executive Secretary, and HON. EMILIA T. BONCODIN, Secretary 1aw library
of the Department of Budget and Management, Respondents.
. . . despite the inhibitions pressing upon the Court when confronted
DECISION with constitutional issues, it will not hesitate to declare a law or act
invalid when it is convinced that this must be done. In arriving at this
conclusion, its only criterion will be the Constitution and God as its
AUSTRIA-MARTINEZ, J.: conscience gives it in the light to probe its meaning and discover its
purpose. Personal motives and political considerations are
irrelevancies that cannot influence its decisions. Blandishment is as
Before the Court is a petition for certiorari and prohibition filed by ineffectual as intimidation, for all the awesome power of the Congress
Romulo B. Macalintal, a member of the Philippine Bar, seeking a and Executive, the Court will not hesitate "to make the hammer fall
declaration that certain provisions of Republic Act No. 9189 (The heavily," where the acts of these departments, or of any official, betray
Overseas Absentee Voting Act of 2003) 1 suffer from constitutional the people’s will as expressed in the Constitution . . . 9
infirmity. Claiming that he has actual and material legal interest in the
subject matter of this case in seeing to it that public funds are properly The need to consider the constitutional issues raised before the Court
and lawfully used and appropriated, petitioner filed the instant petition is further buttressed by the fact that it is now more than fifteen years
as a taxpayer and as a lawyer.chanrob1es virtua1 1aw 1ibrary since the ratification of the 1987 Constitution requiring Congress to
provide a system for absentee voting by qualified Filipinos abroad.
The Court upholds the right of petitioner to file the present petition. Thus, strong reasons of public policy demand that the Court resolves
the instant petition 10 and determine whether Congress has acted
R.A. No. 9189, entitled, "An Act Providing for A System of Overseas within the limits of the Constitution or if it had gravely abused the
Absentee Voting by Qualified Citizens of the Philippines Abroad, discretion entrusted to it. 11
Appropriating Funds Therefor, and for Other Purposes," appropriates
funds under Section 29 thereof which provides that a supplemental The petitioner raises three principal questions:chanrob1es virtual 1aw
budget on the General Appropriations Act of the year of its enactment library
into law shall provide for the necessary amount to carry out its
provisions. Taxpayers, such as herein petitioner, have the right to A. Does Section 5(d) of Rep. Act No. 9189 allowing the registration of
restrain officials from wasting public funds through the enforcement of voters who are immigrants or permanent residents in other countries
an unconstitutional statute. 2 The Court has held that they may assail by their mere act of executing an affidavit expressing their intention to
the validity of a law appropriating public funds 3 because expenditure return to the Philippines, violate the residency requirement in Section 1
of public funds by an officer of the State for the purpose of executing of Article V of the Constitution?
an unconstitutional act constitutes a misapplication of such funds. 4
B. Does Section 18.5 of the same law empowering the COMELEC to
The challenged provision of law involves a public right that affects a proclaim the winning candidates for national offices and party list
great number of citizens. The Court has adopted the policy of taking representatives including the President and the Vice-President violate
jurisdiction over cases whenever the petitioner has seriously and the constitutional mandate under Section 4, Article VII of the
convincingly presented an issue of transcendental significance to the Constitution that the winning candidates for President and the Vice-
Filipino people. This has been explicitly pronounced in Kapatiran ng President shall be proclaimed as winners by Congress?
mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, 5 where the
Court held:chanrob1es virtual 1aw library C. May Congress, through the Joint Congressional Oversight
Committee created in Section 25 of Rep. Act No. 9189, exercise the
Objections to taxpayers’ suit for lack of sufficient personality standing, power to review, revise, amend, and approve the Implementing Rules
or interest are, however, in the main procedural matters. Considering and Regulations that the Commission on Elections shall promulgate
the importance to the public of the cases at bar, and in keeping with without violating the independence of the COMELEC under Section 1,
the Court’s duty, under the 1987 Constitution, to determine whether or Article IX-A of the Constitution?
not the other branches of government have kept themselves within the
limits of the Constitution and the laws and that they have not abused The Court will resolve the questions in seriatim.
the discretion given to them, the Court has brushed aside technicalities
of procedure and has taken cognizance of these petitions. 6 A. Does Section 5(d) of Rep. Act No. 9189 violate Section 1, Article V
of the 1987 Constitution of the Republic of the Philippines?
Indeed, in this case, the Court may set aside procedural rules as the
constitutional right of suffrage of a considerable number of Filipinos is Section 5(d) provides:chanrob1es virtual 1aw library
involved.
Sec. 5. Disqualifications. — The following shall be disqualified from
The question of propriety of the instant petition which may appear to be voting under this Act:chanrob1es virtual 1aw library
visited by the vice of prematurity as there are no ongoing proceedings
in any tribunal, board or before a government official exercising x x x
judicial, quasi-judicial or ministerial functions as required by Rule 65 of
the Rules of Court, dims in light of the importance of the constitutional
issues raised by the petitioner. In Tañada v. Angara, 7 the Court d) An immigrant or a permanent resident who is recognized as such in
held:chanrob1es virtual 1aw library the host country, unless he/she executes, upon registration, an
affidavit prepared for the purpose by the Commission declaring that
In seeking to nullify an act of the Philippine Senate on the ground that he/she shall resume actual physical permanent residence in the
it contravenes the Constitution, the petition no doubt raises a Philippines not later than three (3) years from approval of his/her
justiciable controversy. Where an action of the legislative branch is registration under this Act. Such affidavit shall also state that he/she
seriously alleged to have infringed the Constitution, it becomes not has not applied for citizenship in another country. Failure to return shall
only the right but in fact the duty of the judiciary to settle the dispute. be cause for the removal of the name of the immigrant or permanent
"The question thus posed is judicial rather than political. The duty (to resident from the National Registry of Absentee Voters and his/her
adjudicate) remains to assure that the supremacy of the Constitution is permanent disqualification to vote in absentia.
upheld." Once a "controversy as to the application or interpretation of
constitutional provision is raised before this Court (as in the instant Petitioner posits that Section 5(d) is unconstitutional because it violates
case), it becomes a legal issue which the Court is bound by
Section 1, Article V of the 1987 Constitution which requires that the
voter must be a resident in the Philippines for at least one year and in a) "Absentee Voting" refers to the process by which qualified citizens
the place where he proposes to vote for at least six months of the Philippines abroad, exercise their right to vote;
immediately preceding an election. Petitioner cites the ruling of the
Court in Caasi v. Court of Appeals 12 to support his claim. In that case, . . . (Emphasis supplied)
the Court held that a "green card" holder immigrant to the United
States is deemed to have abandoned his domicile and residence in the f) "Overseas Absentee Voter" refers to a citizen of the Philippines who
Philippines. is qualified to register and vote under this Act, not otherwise
disqualified by law, who is abroad on the day of elections. (Emphasis
Petitioner further argues that Section 1, Article V of the Constitution supplied)
does not allow provisional registration or a promise by a voter to
perform a condition to be qualified to vote in a political exercise; 13 that SEC. 4. Coverage. — All citizens of the Philippines abroad, who are
the legislature should not be allowed to circumvent the requirement of not otherwise disqualified by law, at least eighteen (18) years of age on
the Constitution on the right of suffrage by providing a condition the day of elections, may vote for president, vice-president, senators
thereon which in effect amends or alters the aforesaid residence and party-list representatives. (Emphasis supplied)
requirement to qualify a Filipino abroad to vote. 14 He claims that the
right of suffrage should not be granted to anyone who, on the date of in relation to Sections 1 and 2, Article V of the Constitution which
the election, does not possess the qualifications provided for by read:chanrob1es virtual 1aw library
Section 1, Article V of the Constitution.
SEC. 1. Suffrage may be exercised by all citizens of the Philippines not
Respondent COMELEC refrained from commenting on this issue. 15 otherwise disqualified by law, who are at least eighteen years of age,
and who shall have resided in the Philippines for at least one year and
In compliance with the Resolution of the Court, the Solicitor General in the place wherein they propose to vote for at least six months
filed his comment for all public respondents. He contraposes that the immediately preceding the election. No literacy, property, or other
constitutional challenge to Section 5(d) must fail because of the substantive requirement shall be imposed on the exercise of suffrage.
absence of clear and unmistakable showing that said provision of law
is repugnant to the Constitution. He stresses: All laws are presumed to SEC. 2. The Congress shall provide a system for securing the secrecy
be constitutional; by the doctrine of separation of powers, a department and sanctity of the ballot as well as a system for absentee voting by
of government owes a becoming respect for the acts of the other two qualified Filipinos abroad.
departments; all laws are presumed to have adhered to constitutional
limitations; the legislature intended to enact a valid, sensible, and just . . . (Emphasis supplied)
law.
Section 1, Article V of the Constitution specifically provides that
In addition, the Solicitor General points out that Section 1, Article V of suffrage may be exercised by (1) all citizens of the Philippines, (2) not
the Constitution is a verbatim reproduction of those provided for in the otherwise disqualified by law, (3) at least eighteen years of age, (4)
1935 and the 1973 Constitutions. Thus, he cites Co v. Electoral who are residents in the Philippines for at least one year and in the
Tribunal of the House of Representatives 16 wherein the Court held place where they propose to vote for at least six months immediately
that the term "residence" has been understood to be synonymous with preceding the election. Under Section 5(d) of R.A. No. 9189, one of
"domicile" under both Constitutions. He further argues that a person those disqualified from voting is an immigrant or permanent resident
can have only one "domicile" but he can have two residences, one who is recognized as such in the host country unless he/she executes
permanent (the domicile) and the other temporary; 17 and that the an affidavit declaring that he/she shall resume actual physical
definition and meaning given to the term residence likewise applies to permanent residence in the Philippines not later than three years from
absentee voters. Invoking Romualdez-Marcos v. COMELEC 18 which approval of his/her registration under said Act.
reiterates the Court’s ruling in Faypon v. Quirino, 19 the Solicitor
General maintains that Filipinos who are immigrants or permanent Petitioner questions the rightness of the mere act of execution of an
residents abroad may have in fact never abandoned their Philippine affidavit to qualify the Filipinos abroad who are immigrants or
domicile. 20 permanent residents, to vote. He focuses solely on Section 1, Article V
of the Constitution in ascribing constitutional infirmity to Section 5(d) of
Taking issue with the petitioner’s contention that "green card" holders R.A. No. 9189, totally ignoring the provisions of Section 2 empowering
are considered to have abandoned their Philippine domicile, the Congress to provide a system for absentee voting by qualified Filipinos
Solicitor General suggests that the Court may have to discard its ruling abroad.
in Caasi v. Court of Appeals 21 in so far as it relates to immigrants and
permanent residents in foreign countries who have executed and A simple, cursory reading of Section 5(d) of R.A. No. 9189 may indeed
submitted their affidavits conformably with Section 5(d) of R.A. No. give the impression that it contravenes Section 1, Article V of the
9189. He maintains that through the execution of the requisite Constitution. Filipino immigrants and permanent residents overseas
affidavits, the Congress of the Philippines with the concurrence of the are perceived as having left and abandoned the Philippines to live
President of the Republic had in fact given these immigrants and permanently in their host countries and therefore, a provision in the law
permanent residents the opportunity, pursuant to Section 2, Article V of enfranchising those who do not possess the residency requirement of
the Constitution, to manifest that they had in fact never abandoned the Constitution by the mere act of executing an affidavit expressing
their Philippine domicile; that indubitably, they would have formally and their intent to return to the Philippines within a given period, risks a
categorically expressed the requisite intentions, i.e., "animus manendi" declaration of unconstitutionality. However, the risk is more apparent
and "animus revertendi;" that Filipino immigrants and permanent than real.
residents abroad possess the unquestionable right to exercise the right
of suffrage under Section 1, Article V of the Constitution upon approval The Constitution is the fundamental and paramount law of the nation to
of their registration, conformably with R.A. No. 9189. 22 which all other laws must conform and in accordance with which all
private rights must be determined and all public authority administered.
The seed of the present controversy is the interpretation that is given 23 Laws that do not conform to the Constitution shall be stricken down
to the phrase, "qualified citizens of the Philippines abroad" as it for being unconstitutional.chanrob1es virtua1 1aw 1ibrary
appears in R.A. No. 9189, to wit:chanrob1es virtual 1aw library
Generally, however, all laws are presumed to be constitutional. In
SEC. 2. Declaration of Policy. — It is the prime duty of the State to Peralta v. COMELEC, the Court said:chanrob1es virtual 1aw library
provide a system of honest and orderly overseas absentee voting that
upholds the secrecy and sanctity of the ballot. Towards this end, the . . . An act of the legislature, approved by the executive, is presumed to
State ensures equal opportunity to all qualified citizens of the be within constitutional limitations. The responsibility of upholding the
Philippines abroad in the exercise of this fundamental right. Constitution rests not on the courts alone but on the legislature as well.
The question of the validity of every statute is first determined by the
SEC. 3. Definition of Terms. — For purposes of this Act:chanrob1es legislative department of the government itself. 24
virtual 1aw library
Thus, presumption of constitutionality of a law must be overcome In Romualdez-Marcos, 31 the Court enunciated:chanrob1es virtual
convincingly:chanrob1es virtual 1aw library 1aw library

. . . To declare a law unconstitutional, the repugnancy of that law to the Article 50 of the Civil Code decrees that" [f]or the exercise of civil rights
Constitution must be clear and unequivocal, for even if a law is aimed and the fulfillment of civil obligations, the domicile of natural persons is
at the attainment of some public good, no infringement of constitutional their place of habitual residence." In Ong v. Republic, this court took
rights is allowed. To strike down a law there must be a clear showing the concept of domicile to mean an individual’s "permanent home," "a
that what the fundamental law condemns or prohibits, the statute place to which, whenever absent for business or for pleasure, one
allows it to be done.25cralaw:red intends to return, and depends on facts and circumstances in the
sense that they disclose intent." Based on the foregoing, domicile
As the essence of R.A. No. 9189 is to enfranchise overseas qualified includes the twin elements of "the fact of residing or physical presence
Filipinos, it behooves the Court to take a holistic view of the pertinent in a fixed place" and animus manendi, or the intention of returning
provisions of both the Constitution and R.A. No. 9189. It is a basic rule there permanently.
in constitutional construction that the Constitution should be construed
as a whole. In Chiongbian v. De Leon, 26 the Court held that a Residence, in its ordinary conception, implies the factual relationship of
constitutional provision should function to the full extent of its an individual to a certain place. It is the physical presence of a person
substance and its terms, not by itself alone, but in conjunction with all in a given area, community or country. The essential distinction
other provisions of that great document. Constitutional provisions are between residence and domicile in law is that residence involves the
mandatory in character unless, either by express statement or by intent to leave when the purpose for which the resident has taken up
necessary implication, a different intention is manifest. 27 The intent of his abode ends. One may seek a place for purposes such as pleasure,
the Constitution may be drawn primarily from the language of the business, or health. If a person’s intent be to remain, it becomes his
document itself. Should it be ambiguous, the Court may consider the domicile; if his intent is to leave as soon as his purpose is established it
intent of its framers through their debates in the constitutional is residence. It is thus, quite perfectly normal for an individual to have
convention. 28 different residences in various places. However, a person can only
have a single domicile, unless, for various reasons, he successfully
R.A. No. 9189 was enacted in obeisance to the mandate of the first abandons his domicile in favor of another domicile of choice. In
paragraph of Section 2, Article V of the Constitution that Congress Uytengsu v. Republic, we laid this distinction quite
shall provide a system for voting by qualified Filipinos abroad. It must clearly:jgc:chanrobles.com.ph
be stressed that Section 2 does not provide for the parameters of the
exercise of legislative authority in enacting said law. Hence, in the "There is a difference between domicile and residence.’Residence’ is
absence of restrictions, Congress is presumed to have duly exercised used to indicate a place of abode, whether permanent or temporary;
its function as defined in Article VI (The Legislative Department) of the ‘domicile’ denotes a fixed permanent residence to which, when absent,
Constitution. one has the intention of returning. A man may have a residence in one
place and a domicile in another. Residence is not domicile, but
To put matters in their right perspective, it is necessary to dwell first on domicile is residence coupled with the intention to remain for an
the significance of absentee voting. The concept of absentee voting is unlimited time. A man can have but one domicile for the same purpose
relatively new. It is viewed thus:chanrob1es virtual 1aw library at any time, but he may have numerous places of residence. His place
of residence is generally his place of domicile, but it is not by any
The method of absentee voting has been said to be completely means necessarily so since no length of residence without intention of
separable and distinct from the regular system of voting, and to be a remaining will constitute domicile."cralaw virtua1aw library
new and different manner of voting from that previously known, and an
exception to the customary and usual manner of voting. The right of For political purposes the concepts of residence and domicile are
absentee and disabled voters to cast their ballots at an election is dictated by the peculiar criteria of political laws. As these concepts
purely statutory; absentee voting was unknown to, and not recognized have evolved in our election law, what has clearly and unequivocally
at, the common law. emerged is the fact that residence for election purposes is used
synonymously with domicile. 32 (Emphasis supplied)
Absentee voting is an outgrowth of modern social and economic
conditions devised to accommodate those engaged in military or civil Aware of the domiciliary legal tie that links an overseas Filipino to his
life whose duties make it impracticable for them to attend their polling residence in this country, the framers of the Constitution considered
places on the day of election, and the privilege of absentee voting may the circumstances that impelled them to require Congress to establish
flow from constitutional provisions or be conferred by statutes, existing a system for overseas absentee voting, thus:chanrob1es virtual 1aw
in some jurisdictions, which provide in varying terms for the casting library
and reception of ballots by soldiers and sailors or other qualified voters
absent on election day from the district or precinct of their residence. MR. OPLE.

Such statutes are regarded as conferring a privilege and not a right, or With respect to Section 1, it is not clear whether the right of suffrage,
an absolute right. When the legislature chooses to grant the right by which here has a residential restriction, is not denied to citizens
statute, it must operate with equality among all the class to which it is temporarily residing or working abroad. Based on the statistics of
granted; but statutes of this nature may be limited in their application to several government agencies, there ought to be about two million such
particular types of elections. The statutes should be construed in the Filipinos at this time. Commissioner Bernas had earlier pointed out that
light of any constitutional provisions affecting registration and elections, these provisions are really lifted from the two previous Constitutions of
and with due regard to their texts prior to amendment and to 1935 and 1973, with the exception of the last paragraph. They could
predecessor statutes and the decisions thereunder; they should also not therefore have foreseen at that time the phenomenon now
be construed in the light of the circumstances under which they were described as the Filipino labor force explosion overseas.
enacted; and so as to carry out the objects thereof, if this can be done
without doing violence to their provisions and mandates. Further, in According to government data, there are now about 600,000 contract
passing on statutes regulating absentee voting, the court should look workers and employees, and although the major portions of these
to the whole and every part of the election laws, the intent of the entire expatriate communities of workers are to be found in the Middle East,
plan, and reasons and spirit of their adoption, and try to give effect to they are scattered in 177 countries in the world.
every portion thereof. 29 (Emphasis supplied)
In a previous hearing of the Committee on Constitutional Commissions
Ordinarily, an absentee is not a resident and vice versa; a person and Agencies, the Chairman of the Commission on Elections, Ramon
cannot be at the same time, both a resident and an absentee. 30 Felipe, said that there was no insuperable obstacle to making effective
However, under our election laws and the countless pronouncements the right of suffrage for Filipinos overseas. Those who have adhered to
of the Court pertaining to elections, an absentee remains attached to their Filipino citizenship notwithstanding strong temptations are
his residence in the Philippines as residence is considered exposed to embrace a more convenient foreign citizenship. And those
synonymous with domicile. who on their own or under pressure of economic necessity here, find
that they have to detach themselves from their families to work in other
countries with definite tenures of employment. Many of them are on
contract employment for one, two, or three years. They have no Thus, the Constitutional Commission recognized the fact that while
intention of changing their residence on a permanent basis, but are millions of Filipinos reside abroad principally for economic reasons and
technically disqualified from exercising the right of suffrage in their hence they contribute in no small measure to the economic uplift of this
countries of destination by the residential requirement in Section 1 country, their voices are marginal insofar as the choice of this country’s
which says:chanrob1es virtual 1aw library leaders is concerned.

Suffrage shall be exercised by all citizens of the Philippines not The Constitutional Commission realized that under the laws then
otherwise disqualified by law, who are eighteen years of age or over, existing and considering the novelty of the system of absentee voting
and who shall have resided in the Philippines for at least one year and in this jurisdiction, vesting overseas Filipinos with the right to vote
in the place wherein they propose to vote for at least six months would spawn constitutional problems especially because the
preceding the election. Constitution itself provides for the residency requirement of
voters:chanrob1es virtual 1aw library
I, therefore, ask the Committee whether at the proper time they might
entertain an amendment that will make this exercise of the right to vote MR. REGALADO.
abroad for Filipino citizens an effective, rather than merely a nominal
right under this proposed Constitution. Before I act on that, may I inquire from Commissioner Monsod if the
term "absentee voting" also includes transient voting; meaning, those
FR. BERNAS. who are, let us say, studying in Manila need not go back to their places
of registration, for instance, in Mindanao, to cast their votes.
Certainly, the Committee will consider that. But more than just saying
that, I would like to make a comment on the meaning of "residence" in MR. MONSOD.
the Constitution because I think it is a concept that has been discussed
in various decisions of the Supreme Court, particularly in the case of I think our provision is for absentee voting by Filipinos abroad.
Faypon v. Quirino, a 1954 case which dealt precisely with the meaning
of "residence" in the Election Law. Allow me to quote:chanrob1es MR. REGALADO.
virtual 1aw library
How about those people who cannot go back to the places where they
A citizen may leave the place of his birth to look for greener pastures, are registered?
as the saying goes, to improve his lot and that, of course, includes
study in other places, practice of his avocation, reengaging in MR. MONSOD.
business. When an election is to be held, the citizen who left his
birthplace to improve his lot may decide to return to his native town, to Under the present Election Code, there are provisions for allowing
cast his ballot, but for professional or business reasons, or for any students and military people who are temporarily in another place to
other reason, he may not absent himself from the place of his register and vote. I believe that those situations can be covered by the
professional or business activities. Omnibus Election Code. The reason we want absentee voting to be in
the Constitution as a mandate to the legislature is that there could be
So, they are here registered as voters as he has the qualifications to inconsistency on the residence rule if it is just a question of legislation
be one, and is not willing to give up or lose the opportunity to choose by Congress. So, by allowing it and saying that this is possible, then
the officials who are to run the government especially in national legislation can take care of the rest. 34 (Emphasis supplied)
elections. Despite such registration, the animus revertendi to his home,
to his domicile or residence of origin has not forsaken him. Thus, Section 2, Article V of the Constitution came into being to
remove any doubt as to the inapplicability of the residency requirement
This may be the explanation why the registration of a voter in a place in Section 1. It is precisely to avoid any problems that could impede the
other than his residence of origin has not been deemed sufficient to implementation of its pursuit to enfranchise the largest number of
consider abandonment or loss of such residence of origin. qualified Filipinos who are not in the Philippines that the Constitutional
Commission explicitly mandated Congress to provide a system for
In other words, "residence" in this provision refers to two residence overseas absentee voting.
qualifications: "residence" in the Philippines and "residence" in the
place where he will vote. As far as residence in the Philippines is The discussion of the Constitutional Commission on the effect of the
concerned, the word "residence" means domicile, but as far as residency requirement prescribed by Section 1, Article V of the
residence in the place where he will actually cast his ballot is Constitution on the proposed system of absentee voting for qualified
concerned, the meaning seems to be different. He could have a Filipinos abroad is enlightening:chanrob1es virtual 1aw library
domicile somewhere else and yet he is a resident of a place for six
months and he is allowed to vote there. So that there may be serious MR. SUAREZ.
constitutional obstacles to absentee voting, unless the vote of the
person who is absent is a vote which will be considered as cast in the May I just be recognized for a clarification. There are certain
place of his domicile. qualifications for the exercise of the right of suffrage like having resided
in the Philippines for at least one year and in the place where they
MR. OPLE. propose to vote for at least six months preceding the elections. What is
the effect of these mandatory requirements on the matter of the
Thank you for citing the jurisprudence. exercise of the right of suffrage by the absentee voters like Filipinos
abroad?
It gives me scant comfort thinking of about two million Filipinos who
should enjoy the right of suffrage, at least a substantial segment of THE PRESIDENT.
these overseas Filipino communities. The Committee, of course, is
aware that when this Article of the Constitution explicitly and Would Commissioner Monsod care to answer?
unequivocally extends the right of effective suffrage to Filipinos abroad,
this will call for a logistical exercise of global proportions. In effect, this MR. MONSOD.
will require budgetary and administrative commitments on the part of
the Philippine government, mainly through the COMELEC and the I believe the answer was already given by Commissioner Bernas, that
Ministry of Foreign Affairs, and perhaps, a more extensive elaboration the domicile requirements as well as the qualifications and
of this mechanism that will be put in place to make effective the right to disqualifications would be the same.
vote. Therefore, seeking shelter in some wise jurisprudence of the past
may not be sufficient to meet the demands of the right of suffrage for THE PRESIDENT.
Filipinos abroad that I have mentioned. But I want to thank the
Committee for saying that an amendment to this effect may be Are we leaving it to the legislature to devise the system?
entertained at the proper time. . . . 33 (Emphasis Supplied)
FR. BERNAS.
Just to clarify, Commissioner Monsod’s amendment is only to provide
I think there is a very legitimate problem raised there. a system.

THE PRESIDENT. MR. MONSOD.

Yes. Yes.

MR. BENGZON. THE PRESIDENT.

I believe Commissioner Suarez is clarified. The Commissioner is not stating here that he wants new qualifications
for these absentee voters.
FR. BERNAS.
MR. MONSOD.
But I think it should be further clarified with regard to the residence
requirement or the place where they vote in practice; the That is right. They must have the qualifications and none of the
understanding is that it is flexible. For instance, one might be a disqualifications.
resident of Naga or domiciled therein, but he satisfies the requirement
of residence in Manila, so he is able to vote in Manila. THE PRESIDENT.

MR. TINGSON. It is just to devise a system by which they can vote.

Madam President, may I then suggest to the Committee to change the MR. MONSOD.
word "Filipinos" to QUALIFIED FILIPINO VOTERS. Instead of
"VOTING BY FILIPINOS ABROAD," it should be QUALIFIED FILIPINO That is right, Madam President. 35 (Emphasis supplied)
VOTERS. If the Committee wants QUALIFIED VOTERS LIVING
ABROAD, would that not satisfy the requirement? Clearly therefrom, the intent of the Constitutional Commission is to
entrust to Congress the responsibility of devising a system of absentee
THE PRESIDENT. voting. The qualifications of voters as stated in Section 1 shall remain
except for the residency requirement. This is in fact the reason why the
What does Commissioner Monsod say? Constitutional Commission opted for the term qualified Filipinos abroad
with respect to the system of absentee voting that Congress should
MR. MONSOD. draw up. As stressed by Commissioner Monsod, by the use of the
adjective qualified with respect to Filipinos abroad, the assumption is
Madam President, I think I would accept the phrase "QUALIFIED that they have the "qualifications and none of the disqualifications to
FILIPINOS ABROAD" because "QUALIFIED" would assume that he vote." In fine-tuning the provision on absentee voting, the
has the qualifications and none of the disqualifications to vote. Constitutional Commission discussed how the system should
work:chanrob1es virtual 1aw library
MR. TINGSON.
MR. SUAREZ.
That is right. So does the Committee accept?
For clarification purposes, we just want to state for the record that in
FR. BERNAS. the case of qualified Filipino citizens residing abroad and exercising
their right of suffrage, they can cast their votes for the candidates in the
"QUALIFIED FILIPINOS ABROAD" ? place where they were registered to vote in the Philippines. So as to
avoid any complications, for example, if they are registered in Angeles
THE PRESIDENT. City, they could not vote for a mayor in Naga City.

Does the Committee accept the amendment? In other words, if that qualified voter is registered in Angeles City, then
he can vote only for the local and national candidates in Angeles City. I
MR. REGALADO. just want to make that clear for the record.

Madam President. MR. REGALADO.

THE PRESIDENT. Madam President.

Commissioner Regalado is recognized. THE PRESIDENT.

MR. REGALADO. What does Commissioner Regalado say?

When Commissioner Bengzon asked me to read my proposed MR. REGALADO.

amendment, I specifically stated that the National Assembly shall
prescribe a system which will enable qualified citizens, temporarily I just want to make a note on the statement of Commissioner Suarez
absent from the Philippines, to vote. According to Commissioner that this envisions Filipinos residing abroad. The understanding in the
Monsod, the use of the phrase "absentee voting" already took that into amendment is that the Filipino is temporarily abroad. He may not be
account as its meaning. That is referring to qualified Filipino citizens actually residing abroad; he may just be there on a business trip. It just
temporarily abroad. so happens that the day before the elections he has to fly to the United
States, so he could not cast his vote. He is temporarily abroad, but not
MR. MONSOD. residing there. He stays in a hotel for two days and comes back. This
is not limited only to Filipinos temporarily residing abroad. But as long
Yes, we accepted that. I would like to say that with respect to as he is temporarily abroad on the date of the elections, then he can
registration we will leave it up to the legislative assembly, for example, fall within the prescription of Congress in that situation.
to require where the registration is. If it is, say, members of the
diplomatic corps who may be continuously abroad for a long time, MR. SUAREZ.
perhaps, there can be a system of registration in the embassies.
However, we do not like to preempt the legislative assembly. I thank the Commissioner for his further clarification. Precisely, we
need this clarification on record.
THE PRESIDENT.
MR. MONSOD. constitutional provisions. I think the sponsor and I would agree that the
Constitution is supreme in any statute that we may enact.
Madam President, to clarify what we mean by "temporarily abroad," it
need not be on very short trips. One can be abroad on a treaty traders Let me read Section 1, Article V, of the Constitution entitled, “Suffrage.”
visa. Therefore, when we talk about registration, it is possible that his It says:chanrob1es virtual 1aw library
residence is in Angeles and he would be able to vote for the
candidates in Angeles, but Congress or the Assembly may provide the Section 1. Suffrage may be exercised by all citizens of the Philippines
procedure for registration, like listing one’s name, in a registry list in the not otherwise disqualified by law, who are at least eighteen years of
embassy abroad. That is still possible under the system. age, and who shall have resided in the Philippines for at least one year
and in the place wherein they propose to vote for at least six months
FR. BERNAS. immediately preceding the election.

Madam President, just one clarification if Commissioner Monsod Now, Mr. President, the Constitution says, "who shall have resided in
agrees with this. the Philippines." They are permanent immigrants. They have changed
residence so they are barred under the Constitution. This is why I
Suppose we have a situation of a child of a diplomatic officer who asked whether this committee amendment which in fact does not alter
reaches the voting age while living abroad and he has never registered the original text of the bill will have any effect on this?
here. Where will he register? Will he be a registered voter of a certain
locality in the Philippines? Senator Angara.

MR. MONSOD. Good question, Mr. President. And this has been asked in various fora.
This is in compliance with the Constitution. One, the interpretation here
Yes, it is possible that the system will enable that child to comply with of "residence" is synonymous with "domicile."cralaw virtua1aw library
the registration requirements in an embassy in the United States and
his name is then entered in the official registration book in Angeles As the gentleman and I know, Mr. President, "domicile" is the intent to
City, for instance. return to one’s home. And the fact that a Filipino may have been
physically absent from the Philippines and may be physically a resident
FR. BERNAS. of the United States, for example, but has a clear intent to return to the
Philippines, will make him qualified as a resident of the Philippines
In other words, he is not a registered voter of Los Angeles, but a under this law.
registered voter of a locality here.
This is consistent, Mr. President, with the constitutional mandate that
MR. MONSOD. we – that Congress – must provide a franchise to overseas Filipinos.

That is right. He does not have to come home to the Philippines to If we read the Constitution and the suffrage principle literally as
comply with the registration procedure here. demanding physical presence, then there is no way we can provide for
offshore voting to our offshore kababayan, Mr. President.
FR. BERNAS.
Senator Arroyo.
So, he does not have to come home.
Mr. President, when the Constitution says, in Section 2 of Article V, it
MR. BENGZON. reads: "The Congress shall provide a system for securing the secrecy
and sanctity of the ballot as well as a system for absentee voting by
Madam President, the Floor Leader wishes to inquire if there are more qualified Filipinos abroad."cralaw virtua1aw library
clarifications needed from the body.
The key to this whole exercise, Mr. President, is “qualified.” In other
Also, the Floor Leader is happy to announce that there are no more words, anything that we may do or say in granting our compatriots
registered Commissioners to propose amendments. So I move that we abroad must be anchored on the proposition that they are qualified.
close the period of amendments. 36 (Emphasis supplied) Absent the qualification, they cannot vote. And “residents” (sic) is a
qualification.
It is clear from these discussions of the members of the Constitutional
Commission that they intended to enfranchise as much as possible all I will lose votes here from permanent residents so-called "green-card
Filipino citizens abroad who have not abandoned their domicile of holders", but the Constitution is the Constitution. We cannot
origin. The Commission even intended to extend to young Filipinos compromise on this. The Senate cannot be a party to something that
who reach voting age abroad whose parents’ domicile of origin is in the would affect or impair the Constitution.
Philippines, and consider them qualified as voters for the first time.
Look at what the Constitution says — "In the place wherein they
It is in pursuance of that intention that the Commission provided for propose to vote for at least six months immediately preceding the
Section 2 immediately after the residency requirement of Section 1. By election."cralaw virtua1aw library
the doctrine of necessary implication in statutory construction, which
may be applied in construing constitutional provisions, 37 the strategic Mr. President, all of us here have run (sic) for office.
location of Section 2 indicates that the Constitutional Commission
provided for an exception to the actual residency requirement of I live in Makati. My neighbor is Pateros where Senator Cayetano lives.
Section 1 with respect to qualified Filipinos abroad. The same We are separated only by a creek. But one who votes in Makati cannot
Commission has in effect declared that qualified Filipinos who are not vote in Pateros unless he resides in Pateros for six months. That is
in the Philippines may be allowed to vote even though they do not how restrictive our Constitution is. I am not talking even about the
satisfy the residency requirement in Section 1, Article V of the Election Code. I am talking about the Constitution.
Constitution.
As I have said, if a voter in Makati would want to vote in Pateros, yes,
That Section 2 of Article V of the Constitution is an exception to the he may do so. But he must do so, make the transfer six months before
residency requirement found in Section 1 of the same Article was in the election, otherwise, he is not qualified to vote.
fact the subject of debate when Senate Bill No. 2104, which became
R.A. No. 9189, was deliberated upon on the Senate floor, That is why I am raising this point because I think we have a
thus:chanrob1es virtual 1aw library fundamental difference here.

Senator Arroyo. Senator Angara.

Mr. President, this bill should be looked into in relation to the It is a good point to raise, Mr. President. But it is a point already well-
debated even in the constitutional commission of 1986. And the reason domicile in pursuance of the constitutional intent expressed in Sections
Section 2 of Article V was placed immediately after the six-month/one- 1 and 2 of Article V that "all citizens of the Philippines not otherwise
year residency requirement is to demonstrate unmistakably that disqualified by law" must be entitled to exercise the right of suffrage
Section 2 which authorizes absentee voting is an exception to the six- and, that Congress must establish a system for absentee voting; for
month/one-year residency requirement. That is the first principle, Mr. otherwise, if actual, physical residence in the Philippines is required,
President, that one must remember. there is no sense for the framers of the Constitution to mandate
Congress to establish a system for absentee voting.chanrob1es virtua1
The second reason, Mr. President, is that under our jurisprudence — 1aw 1ibrary
and I think this is so well-entrenched that one need not argue about it
— "residency" has been interpreted as synonymous with Contrary to the claim of petitioner, the execution of the affidavit itself is
"domicile."cralaw virtua1aw library not the enabling or enfranchising act. The affidavit required in Section
5(d) is not only proof of the intention of the immigrant or permanent
But the third more practical reason, Mr. President, is, if we follow the resident to go back and resume residency in the Philippines, but more
interpretation of the gentleman, then it is legally and constitutionally significantly, it serves as an explicit expression that he had not in fact
impossible to give a franchise to vote to overseas Filipinos who do not abandoned his domicile of origin. Thus, it is not correct to say that the
physically live in the country, which is quite ridiculous because that is execution of the affidavit under Section 5(d) violates the Constitution
exactly the whole point of this exercise — to enfranchise them and that proscribes "provisional registration or a promise by a voter to
empower them to vote. 38 (Emphasis supplied) perform a condition to be qualified to vote in a political exercise."cralaw
virtua1aw library
Accordingly, Section 4 of R.A. No. 9189 provides for the coverage of
the absentee voting process, to wit:chanrob1es virtual 1aw library To repeat, the affidavit is required of immigrants and permanent
residents abroad because by their status in their host countries, they
SEC. 4. Coverage. — All citizens of the Philippines abroad, who are are presumed to have relinquished their intent to return to this country;
not otherwise disqualified by law, at least eighteen (18) years of age on thus, without the affidavit, the presumption of abandonment of
the day of elections, may vote for president, vice-president, senators Philippine domicile shall remain.
and party-list representatives.
Further perusal of the transcripts of the Senate proceedings discloses
which does not require physical residency in the Philippines; and another reason why the Senate required the execution of said affidavit.
Section 5 of the assailed law which enumerates those who are It wanted the affiant to exercise the option to return or to express his
disqualified, to wit:chanrob1es virtual 1aw library intention to return to his domicile of origin and not to preempt that
choice by legislation. Thus:chanrob1es virtual 1aw library
SEC. 5. Disqualifications. — The following shall be disqualified from
voting under this Act:chanrob1es virtual 1aw library Senator Villar.

a) Those who have lost their Filipino citizenship in accordance with Yes, we are going back.
Philippine laws;
It states that: "For Filipino immigrants and those who have acquired
b) Those who have expressly renounced their Philippine citizenship permanent resident status abroad," a requirement for the registration is
and who have pledged allegiance to a foreign country; the submission of "a Sworn Declaration of Intent to Return duly sworn
before any Philippine embassy or consulate official authorized to
c) Those who have committed and are convicted in a final judgment by administer oath. . ."cralaw virtua1aw library
a court or tribunal of an offense punishable by imprisonment of not less
than one (1) year, including those who have committed and been Mr. President, may we know the rationale of this provision? Is the
found guilty of Disloyalty as defined under Article 137 of the Revised purpose of this Sworn Declaration to include only those who have the
Penal Code, such disability not having been removed by plenary intention of returning to be qualified to exercise the right of suffrage?
pardon or amnesty: Provided, however, That any person disqualified to What if the Filipino immigrant has no purpose of returning? Is he
vote under this subsection shall automatically acquire the right to vote automatically disbarred from exercising this right to suffrage?
upon expiration of five (5) years after service of sentence; Provided,
further, That the Commission may take cognizance of final judgments Senator Angara.
issued by foreign courts or tribunals only on the basis of reciprocity and
subject to the formalities and processes prescribed by the Rules of The rationale for this, Mr. President, is that we want to be expansive
Court on execution of judgments; and all-inclusive in this law. That as long as he is a Filipino, no matter
whether he is a green-card holder in the U.S. or not, he will be
d) An immigrant or a permanent resident who is recognized as such in authorized to vote. But if he is already a green-card holder, that means
the host country, unless he/she executes, upon registration, an he has acquired permanent residency in the United States, then he
affidavit prepared for the purpose by the Commission declaring that must indicate an intention to return. This is what makes for the
he/she shall resume actual physical permanent residence in the definition of "domicile." And to acquire the vote, we thought that we
Philippines not later than three (3) years from approval of his/her would require the immigrants and the green-card holders . . . Mr.
registration under this Act. Such affidavit shall also state that he/she President, the three administration senators are leaving, maybe we
has not applied for citizenship in another country. Failure to return shall may ask for a vote [Laughter].
be cause for the removal of the name of the immigrant or permanent
resident from the National Registry of Absentee Voters and his/her Senator Villar.
permanent disqualification to vote in absentia.
For a merienda, Mr. President.
e) Any citizen of the Philippines abroad previously declared insane or
incompetent by competent authority in the Philippines or abroad, as Senator Angara.
verified by the Philippine embassies, consulates or foreign service
establishments concerned, unless such competent authority Mr. President, going back to the business at hand. The rationale for the
subsequently certifies that such person is no longer insane or requirement that an immigrant or a green-card holder should file an
incompetent. affidavit that he will go back to the Philippines is that, if he is already an
immigrant or a green-card holder, that means he may not return to the
As finally approved into law, Section 5(d) of R.A. No. 9189 specifically country any more and that contradicts the definition of "domicile" under
disqualifies an immigrant or permanent resident who is "recognized as the law.
such in the host country" because immigration or permanent residence
in another country implies renunciation of one’s residence in his But what we are trying to do here, Mr. President, is really provide the
country of origin. However, same Section allows an immigrant and choice to the voter. The voter, after consulting his lawyer or after
permanent resident abroad to register as voter for as long as he/she deliberation within the family, may decide “No, I think we are risking
executes an affidavit to show that he/she has not abandoned his our permanent status in the United States if we file an affidavit that we
want to go back." But we want to give him the opportunity to make that
decision. We do not want to make that decision for him. 39 (Emphasis Petitioner’s speculative apprehension that the implementation of
supplied) Section 5(d) would affect the credibility of the elections is insignificant
as what is important is to ensure that all those who possess the
The jurisprudential declaration in Caasi v. Court of Appeals that green qualifications to vote on the date of the election are given the
card holders are disqualified to run for any elective office finds no opportunity and permitted to freely do so. The COMELEC and the
application to the present case because the Caasi case did not, for Department of Foreign Affairs have enough resources and talents to
obvious reasons, consider the absentee voting rights of Filipinos who ensure the integrity and credibility of any election conducted pursuant
are immigrants and permanent residents in their host countries. to R.A. No. 9189.

In the advent of The Overseas Absentee Voting Act of 2003 or R.A. As to the eventuality that the Filipino abroad would renege on his
9189, they may still be considered as a "qualified citizen of the undertaking to return to the Philippines, the penalty of perpetual
Philippines abroad" upon fulfillment of the requirements of registration disenfranchisement provided for by Section 5(d) would suffice to serve
under the new law for the purpose of exercising their right of suffrage. as deterrence to non-compliance with his/her undertaking under the
affidavit.
It must be emphasized that Section 5(d) does not only require an
affidavit or a promise to "resume actual physical permanent residence Petitioner argues that should a sizable number of “immigrants” renege
in the Philippines not later than three years from approval of his/her on their promise to return, the result of the elections would be affected
registration," the Filipinos abroad must also declare that they have not and could even be a ground to contest the proclamation of the winning
applied for citizenship in another country. Thus, they must return to the candidates and cause further confusion and doubt on the integrity of
Philippines; otherwise, their failure to return "shall be cause for the the results of the election. Indeed, the probability that after an
removal" of their names "from the National Registry of Absentee immigrant has exercised the right to vote, he shall opt to remain in his
Voters and his/her permanent disqualification to vote in host country beyond the third year from the execution of the affidavit, is
absentia."cralaw virtua1aw library not farfetched. However, it is not for this Court to determine the
wisdom of a legislative exercise. As expressed in Tañada v. Tuvera, 40
Thus, Congress crafted a process of registration by which a Filipino the Court is not called upon to rule on the wisdom of the law or to
voter permanently residing abroad who is at least eighteen years old, repeal it or modify it if we find it impractical.
not otherwise disqualified by law, who has not relinquished Philippine
citizenship and who has not actually abandoned his/her intentions to Congress itself was conscious of said probability and in fact, it has
return to his/her domicile of origin, the Philippines, is allowed to addressed the expected problem. Section 5(d) itself provides for a
register and vote in the Philippine embassy, consulate or other foreign deterrence which is that the Filipino who fails to return as promised
service establishments of the place which has jurisdiction over the stands to lose his right of suffrage. Under Section 9, should a
country where he/she has indicated his/her address for purposes of the registered overseas absentee voter fail to vote for two consecutive
elections, while providing for safeguards to a clean election. national elections, his name may be ordered removed from the
National Registry of Overseas Absentee Voters.
Thus, Section 11 of R.A. No. 9189 provides:chanrob1es virtual 1aw
library Other serious legal questions that may be raised would be: what
happens to the votes cast by the qualified voters abroad who were not
SEC. 11. Procedure for Application to Vote in Absentia. — able to return within three years as promised? What is the effect on the
votes cast by the non-returnees in favor of the winning candidates?
11.1. Every qualified citizen of the Philippines abroad whose The votes cast by qualified Filipinos abroad who failed to return within
application for registration has been approved, including those three years shall not be invalidated because they were qualified to vote
previously registered under Republic Act No. 8189, shall, in every on the date of the elections, but their failure to return shall be cause for
national election, file with the officer of the embassy, consulate or other the removal of the names of the immigrants or permanent residents
foreign service establishment authorized by the Commission, a sworn from the National Registry of Absentee Voters and their permanent
written application to vote in a form prescribed by the Commission. The disqualification to vote in absentia.
authorized officer of such embassy, consulate or other foreign service
establishment shall transmit to the Commission the said application to In fine, considering the underlying intent of the Constitution, the Court
vote within five (5) days from receipt thereof. The application form shall does not find Section 5(d) of R.A. No. 9189 as constitutionally
be accomplished in triplicate and submitted together with the defective.
photocopy of his/her overseas absentee voter certificate of registration.
B. Is Section 18.5 of R.A. No. 9189 in relation to Section 4 of the same
11.2. Every application to vote in absentia may be done personally at, Act in contravention of Section 4, Article VII of the Constitution?
or by mail to, the embassy, consulate or foreign service establishment,
which has jurisdiction over the country where he/she has indicated Section 4 of R.A. No. 9189 provides that the overseas absentee voter
his/her address for purposes of the elections. may vote for president, vice-president, senators and party-list
representatives.
11.3. Consular and diplomatic services rendered in connection with the
overseas absentee voting processes shall be made available at no Section 18.5 of the same Act provides:chanrob1es virtual 1aw library
cost to the overseas absentee voter.
SEC. 18. On-Site Counting and Canvassing. —
Contrary to petitioner’s claim that Section 5(d) circumvents the
Constitution, Congress enacted the law prescribing a system of x x x
overseas absentee voting in compliance with the constitutional
mandate. Such mandate expressly requires that Congress provide a
system of absentee voting that necessarily presupposes that the 18.5 The canvass of votes shall not cause the delay of the
"qualified citizen of the Philippines abroad" is not physically present in proclamation of a winning candidate if the outcome of the election will
the country. The provisions of Sections 5(d) and 11 are components of not be affected by the results thereof. Notwithstanding the foregoing,
the system of overseas absentee voting established by R.A. No. 9189. the Commission is empowered to order the proclamation of winning
The qualified Filipino abroad who executed the affidavit is deemed to candidates despite the fact that the scheduled election has not taken
have retained his domicile in the Philippines. He is presumed not to place in a particular country or countries, if the holding of elections
have lost his domicile by his physical absence from this country. His therein has been rendered impossible by events, factors and
having become an immigrant or permanent resident of his host country circumstances peculiar to such country or countries, in which events,
does not necessarily imply an abandonment of his intention to return to factors and circumstances are beyond the control or influence of the
his domicile of origin, the Philippines. Therefore, under the law, he Commission. (Emphasis supplied)
must be given the opportunity to express that he has not actually
abandoned his domicile in the Philippines by executing the affidavit Petitioner claims that the provision of Section 18.5 of R.A. No. 9189
required by Sections 5(d) and 8(c) of the law.
empowering the COMELEC to order the proclamation of winning C. Are Sections 19 and 25 of R.A. No. 9189 in violation of Section 1,
candidates insofar as it affects the canvass of votes and proclamation Article IX-A of the Constitution?
of winning candidates for president and vice-president, is
unconstitutional because it violates the following provisions of Petitioner avers that Sections 19 and 25 of R.A. No. 9189 violate
paragraph 4, Section 4 of Article VII of the Constitution:chanrob1es Article IX-A (Common Provisions) of the Constitution, to
virtual 1aw library wit:chanrob1es virtual 1aw library

SEC. 4. . . . Section 1. The Constitutional Commissions, which shall be

independent, are the Civil Service Commission, the Commission on
The returns of every election for President and Vice-President, duly Elections, and the Commission on Audit. (Emphasis supplied)
certified by the board of canvassers of each province or city, shall be
transmitted to the Congress, directed to the President of the Senate. He submits that the creation of the Joint Congressional Oversight
Upon receipt of the certificates of canvass, the President of the Senate Committee with the power to review, revise, amend and approve the
shall, not later than thirty days after the day of the election, open all the Implementing Rules and Regulations promulgated by the COMELEC,
certificates in the presence of the Senate and the House of R.A. No. 9189 intrudes into the independence of the COMELEC which,
Representatives in joint public session, and the Congress, upon as a constitutional body, is not under the control of either the executive
determination of the authenticity and due execution thereof in the or legislative departments of government; that only the COMELEC
manner provided by law, canvass the votes. itself can promulgate rules and regulations which may be changed or
revised only by the majority of its members; and that should the rules
The person having the highest number of votes shall be proclaimed promulgated by the COMELEC violate any law, it is the Court that has
elected, but in case two or more shall have an equal and highest the power to review the same via the petition of any interested party,
number of votes, one of them shall forthwith be chosen by the vote of a including the legislators.
majority of all the Members of both Houses of the Congress, voting
separately. It is only on this question that respondent COMELEC submitted its
Comment. It agrees with the petitioner that Sections 19 and 25 of R.A.
The Congress shall promulgate its rules for the canvassing of the No. 9189 are unconstitutional. Like the petitioner, respondent
certificates. COMELEC anchors its claim of unconstitutionality of said Sections
upon Section 1, Article IX-A of the Constitution providing for the
x x x independence of the constitutional commissions such as the
COMELEC. It asserts that its power to formulate rules and regulations
has been upheld in Gallardo v. Tabamo, Jr. 42 where this Court held
which gives to Congress the duty to canvass the votes and proclaim that the power of the COMELEC to formulate rules and regulations is
the winning candidates for president and vice-president. implicit in its power to implement regulations under Section 2(1) of
Article IX-C 43 of the Constitution. COMELEC joins the petitioner in
The Solicitor General asserts that this provision must be harmonized asserting that as an independent constitutional body, it may not be
with paragraph 4, Section 4, Article VII of the Constitution and should subject to interference by any government instrumentality and that only
be taken to mean that COMELEC can only proclaim the winning this Court may review COMELEC rules and only in cases of grave
Senators and party-list representatives but not the President and Vice- abuse of discretion.
President. 41
The COMELEC adds, however, that another provision, vis-à-vis its
Respondent COMELEC has no comment on the matter. rule-making power, to wit:chanrob1es virtual 1aw library

Indeed, the phrase, proclamation of winning candidates, in Section SEC. 17. Voting by Mail. —
18.5 of R.A. No. 9189 is far too sweeping that it necessarily includes
the proclamation of the winning candidates for the presidency and the 17.1. For the May, 2004 elections, the Commission shall authorize
vice-presidency. voting by mail in not more than three (3) countries, subject to the
approval of the Congressional Oversight Committee. Voting by mail
Section 18.5 of R.A. No. 9189 appears to be repugnant to Section 4, may be allowed in countries that satisfy the following
Article VII of the Constitution only insofar as said Section totally conditions:chanrob1es virtual 1aw library
disregarded the authority given to Congress by the Constitution to
proclaim the winning candidates for the positions of president and vice- a) Where the mailing system is fairly well-developed and secure to
president. prevent occasion for fraud;

In addition, the Court notes that Section 18.4 of the law, to b) Where there exists a technically established identification system
wit:chanrob1es virtual 1aw library that would preclude multiple or proxy voting; and

18.4. . . . Immediately upon the completion of the canvass, the c) Where the system of reception and custody of mailed ballots in the
chairman of the Special Board of Canvassers shall transmit via embassies, consulates and other foreign service establishments
facsimile, electronic mail, or any other means of transmission equally concerned are adequate and well-secured.
safe and reliable the Certificates of Canvass and the Statements of
Votes to the Commission, . . . [Emphasis supplied] Thereafter, voting by mail in any country shall be allowed only upon
review and approval of the Joint Congressional Oversight Committee.
clashes with paragraph 4, Section 4, Article VII of the Constitution
which provides that the returns of every election for President and . . . (Emphasis supplied)
Vice-President shall be certified by the board of canvassers to
Congress.chanrob1es virtua1 1aw 1ibrary is likewise unconstitutional as it violates Section 1, Article IX-A
mandating the independence of constitutional commissions.
Congress could not have allowed the COMELEC to usurp a power that
constitutionally belongs to it or, as aptly stated by petitioner, to The Solicitor General takes exception to his prefatory statement that
encroach “on the power of Congress to canvass the votes for president the constitutional challenge must fail and agrees with the petitioner that
and vice-president and the power to proclaim the winners for the said Sections 19 and 25 are invalid and unconstitutional on the ground that
positions.” The provisions of the Constitution as the fundamental law of there is nothing in Article VI of the Constitution on Legislative
the land should be read as part of The Overseas Absentee Voting Act Department that would as much as imply that Congress has concurrent
of 2003 and hence, the canvassing of the votes and the proclamation power to enforce and administer election laws with the COMELEC; and
of the winning candidates for president and vice-president for the entire by the principles of exclusio unius est exclusio alterius and expressum
nation must remain in the hands of Congress. facit cessare tacitum, the constitutionally enumerated powers of
Congress circumscribe its authority to the exclusion of all others.
The parties are unanimous in claiming that Sections 19, 25 and on Elections, because of its fact-finding facilities, its contacts with
portions of Section 17.1 are unconstitutional. Thus, there is no actual political strategists, and its knowledge derived from actual experience
issue forged on this question raised by petitioner. in dealing with political controversies, is in a peculiarly advantageous
position to decide complex political questions. 45 (Emphasis supplied)
However, the Court finds it expedient to expound on the role of
Congress through the Joint Congressional Oversight Committee The Court has no general powers of supervision over COMELEC
(JCOC) vis-à-vis the independence of the COMELEC, as a which is an independent body “except those specifically granted by the
constitutional body. Constitution,” that is, to review its decisions, orders and rulings. 46 In
the same vein, it is not correct to hold that because of its recognized
R.A. No. 9189 created the JCOC, as follows:chanrob1es virtual 1aw extensive legislative power to enact election laws, Congress may
library intrude into the independence of the COMELEC by exercising
supervisory powers over its rule-making authority.
SEC. 25. Joint Congressional Oversight Committee. — A Joint
Congressional Oversight Committee is hereby created, composed of By virtue of Section 19 of R.A. No. 9189, Congress has empowered
the Chairman of the Senate Committee on Constitutional the COMELEC to "issue the necessary rules and regulations to
Amendments, Revision of Codes and Laws, and seven (7) other effectively implement the provisions of this Act within sixty days from
Senators designated by the Senate President, and the Chairman of the the effectivity of this Act." This provision of law follows the usual
House Committee on Suffrage and Electoral Reforms, and seven (7) procedure in drafting rules and regulations to implement a law – the
other Members of the House of Representatives designated by the legislature grants an administrative agency the authority to craft the
Speaker of the House of Representatives: Provided, That, of the seven rules and regulations implementing the law it has enacted, in
(7) members to be designated by each House of Congress, four (4) recognition of the administrative expertise of that agency in its
should come from the majority and the remaining three (3) from the particular field of operation. 47 Once a law is enacted and approved,
minority. the legislative function is deemed accomplished and complete. The
legislative function may spring back to Congress relative to the same
The Joint Congressional Oversight Committee shall have the power to law only if that body deems it proper to review, amend and revise the
monitor and evaluate the implementation of this Act. It shall review, law, but certainly not to approve, review, revise and amend the IRR of
revise, amend and approve the Implementing Rules and Regulations the COMELEC.
promulgated by the Commission. (Emphasis supplied)
By vesting itself with the powers to approve, review, amend, and revise
SEC. 19. Authority of the Commission to Promulgate Rules. — The the IRR for The Overseas Absentee Voting Act of 2003, Congress
Commission shall issue the necessary rules and regulations to went beyond the scope of its constitutional authority. Congress
effectively implement the provisions of this Act within sixty (60) days trampled upon the constitutional mandate of independence of the
from the effectivity of this Act. The Implementing Rules and COMELEC. Under such a situation, the Court is left with no option but
Regulations shall be submitted to the Joint Congressional Oversight to withdraw from its usual reticence in declaring a provision of law
Committee created by virtue of this Act for prior approval. unconstitutional.

. . . (Emphasis supplied) The second sentence of the first paragraph of Section 19 stating that"
[t]he Implementing Rules and Regulations shall be submitted to the
Composed of Senators and Members of the House of Representatives, Joint Congressional Oversight Committee created by virtue of this Act
the Joint Congressional Oversight Committee (JCOC) is a purely for prior approval," and the second sentence of the second paragraph
legislative body. There is no question that the authority of Congress to of Section 25 stating that" [i]t shall review, revise, amend and approve
"monitor and evaluate the implementation" of R.A. No. 9189 is geared the Implementing Rules and Regulations promulgated by the
towards possible amendments or revision of the law itself and thus, Commission," whereby Congress, in both provisions, arrogates unto
may be performed in aid of its legislation. itself a function not specifically vested by the Constitution, should be
stricken out of the subject statute for constitutional infirmity. Both
However, aside from its monitoring and evaluation functions, R.A. No. provisions brazenly violate the mandate on the independence of the
9189 gives to the JCOC the following functions: (a) to "review, revise, COMELEC.
amend and approve the Implementing Rules and Regulations" (IRR)
promulgated by the COMELEC [Sections 25 and 19]; and (b) subject to Similarly, the phrase, "subject to the approval of the Congressional
the approval of the JCOC [Section 17.1], the voting by mail in not more Oversight Committee" in the first sentence of Section 17.1 which
than three countries for the May 2004 elections and in any country empowers the Commission to authorize voting by mail in not more than
determined by COMELEC. three countries for the May, 2004 elections; and the phrase, "only upon
review and approval of the Joint Congressional Oversight Committee"
The ambit of legislative power under Article VI of the Constitution is found in the second paragraph of the same section are unconstitutional
circumscribed by other constitutional provisions. One such provision is as they require review and approval of voting by mail in any country
Section 1 of Article IX-A of the 1987 Constitution ordaining that after the 2004 elections. Congress may not confer upon itself the
constitutional commissions such as the COMELEC shall be authority to approve or disapprove the countries wherein voting by mail
"independent."cralaw virtua1aw library shall be allowed, as determined by the COMELEC pursuant to the
conditions provided for in Section 17.1 of R.A. No. 9189. 48 Otherwise,
Interpreting Section 1, Article X of the 1935 Constitution providing that Congress would overstep the bounds of its constitutional mandate and
there shall be an independent COMELEC, the Court has held that" intrude into the independence of the COMELEC.
[w]hatever may be the nature of the functions of the Commission on
Elections, the fact is that the framers of the Constitution wanted it to be During the deliberations, all the members of the Court agreed to adopt
independent from the other departments of the Government." 44 In an the separate opinion of Justice Reynato S. Puno as part of the
earlier case, the Court elucidated:chanrob1es virtual 1aw library ponencia on the unconstitutionality of Sections 17.1, 19 and 25 of R.A.
No. 9189 insofar as they relate to the creation of and the powers given
The Commission on Elections is a constitutional body. It is intended to to the Joint Congressional Oversight Committee.
play a distinct and important part in our scheme of government. In the
discharge of its functions, it should not be hampered with restrictions WHEREFORE, the petition is partly GRANTED. The following portions
that would be fully warranted in the case of a less responsible of R.A. No. 9189 are declared VOID for being
organization. The Commission may err, so may this court also. It UNCONSTITUTIONAL:chanrob1es virtual 1aw library
should be allowed considerable latitude in devising means and
methods that will insure the accomplishment of the great objective for a) The phrase in the first sentence of the first paragraph of Section
which it was created — free, orderly and honest elections. We may not 17.1, to wit: "subject to the approval of the Joint Congressional
agree fully with its choice of means, but unless these are clearly illegal Oversight Committee;"
or constitute gross abuse of discretion, this court should not interfere.
Politics is a practical matter, and political questions must be dealt with b) The portion of the last paragraph of Section 17.1, to wit: “only upon
realistically – not from the standpoint of pure theory. The Commission review and approval of the Joint Congressional Oversight Committee;”
c) The second sentence of the first paragraph of Section 19, to wit:
"The Implementing Rules and Regulations shall be submitted to the
Joint Congressional Oversight Committee created by virtue of this Act
for prior approval;" and

d) The second sentence in the second paragraph of Section 25, to wit:

"It shall review, revise, amend and approve the Implementing Rules
and Regulations promulgated by the Commission" of the same law;

for being repugnant to Section 1, Article IX-A of the Constitution

mandating the independence of constitutional commission, such as
COMELEC.

The constitutionality of Section 18.5 of R.A. No. 9189 is UPHELD with

respect only to the authority given to the COMELEC to proclaim the
winning candidates for the Senators and party-list representatives but
not as to the power to canvass the votes and proclaim the winning
candidates for President and Vice-President which is lodged with
Congress under Section 4, Article VII of the Constitution.

The constitutionality of Section 5(d) is UPHELD.

Pursuant to Section 30 of R.A. No. 9189, the rest of the provisions of

said law continues to be in full force and effect.chanrob1es virtua1 1aw
1ibrary

SO ORDERED.
 EN BANC classes as are most likely to exercise it for the public good. In the early
stages of the evolution of the representative system of government, the
exercise of the right of suffrage was limited to a small portion of the
G.R. No. L-42300 January 31, 1936
inhabitants. But with the spread of democratic ideas, the enjoyment of
the franchise in the modern states has come to embrace the mass of
THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee, the audit classes of persons are excluded from the franchise. Among
vs.AMADEO CORRAL, Defendant-Appellant. the the generally excluded classes are minors idiots, paupers, and
convicts.chanroblesvirtualawlibrary chanrobles virtual law library
Generoso, Pelayo, Castillo, Braganza, Chavez, Doromal, Diaz and
Capili for appellant. The right of the State to deprive persons to the right of suffrage by
Office of the Solicitor General Hilado for appellee. reason of their having been convicted of crime, is beyond question.
"The manifest purpose of such restrictions upon this right is to preserve
the purity of elections. The presumption is that one rendered infamous
ABAD SANTOS, J.: chanrobles virtual law library
by conviction of felony, or other base offense indicative of moral
turpitude, is unfit to exercise the privilege of suffrage or to hold office.
Appellant was charged having voted illegally at the general elections The exclusion must for this reason be adjudged a mere
held on June 5, 1934. After due trial, he was convicted on the ground disqualification, imposed for protection and not for punishment, the
that he had voted while laboring under a legal disqualification. The withholding of a privilege and not the denial of a personal right. (9
judgment of conviction was based on section 2642, in connection with R.C.L., 1042.)chanrobles virtual law library
section 432. of the Revised Administrative
Code.chanroblesvirtualawlibrary chanrobles virtual law library Upon the facts established in this case, it seems clear that the
appellant was not entitled to vote on June 5 1934, because of section
Said Section 432 reads as follows: 432 of the Revised Administrative Code which disqualified from voting
any person who, since the 13th day of August, 1898, had been
sentenced by final judgment to offer not less than eighteen months of
The following persons shall be disqualified from voting:chanrobles imprisonment, such disability not having been removed by plenary
virtual law library pardon. As above stated, the appellant had been sentenced by final
judgment to suffer eight years and one day of presidio mayor, and had
(a) Any person who, since the thirteenth day of August, eighteen not been granted a plenary
hundred and ninety-eight, has been sentenced by final judgment to pardon.chanroblesvirtualawlibrary chanrobles virtual law library
suffer not less than eighteen months of imprisonment, such disability
not having been removed by plenary Counsel for the appellant contend that inasmuch as the latter voted in
pardon.chanroblesvirtualawlibrary chanrobles virtual law library 1928 his offense had already prescribed, and he could no longer be
prosecuted for illegal voting at the general election held on June 5,
(b) Any person who has violated an oath of allegiance taken by him to 1934. This contention is clearly without merit. The disqualification for
the United States.chanroblesvirtualawlibrary chanrobles virtual law crime imposed under section 432 of the Revised Administrative Code
library having once attached on the appellant and not having been
subsequently removed by a plenary pardon, continued and rendered it
illegal for the appellant to vote at the general elections of
(c) Insane of feeble-minded 1934.chanroblesvirtualawlibrary chanrobles virtual law library
persons.chanroblesvirtualawlibrary chanrobles virtual law library

Neither is there any merit in the contention advanced by counsel for

(d) Deaf-mutes who cannot read and the appellant that the disqualification imposed on the latter must be
write.chanroblesvirtualawlibrary chanrobles virtual law library considered as having been removed at the expiration of his sentence.
This claim is based upon an erroneous theory of the nature of the
(e) Electors registered under subsection (c) of the next proceeding disqualification. It regards it as a punishment when, as already
section who, after failing to make sworn statement to the satisfaction of indicated, the correct view is that it is imposed, "for protection and not
the board of inspectors at any of its two meetings for registration and for punishment,. the withholding of a prvilege and not the denial of a
revision, that they are incapacitated for preparing their ballots due to personal right." Judicial interpretation and long established
permanent physical disability, present themselves at the hour of voting administrative practice are against such a
as incapacitated, irrespective of whether such incapacity be real or view.chanroblesvirtualawlibrary chanrobles virtual law library
feigned.
The judgment appealed from is affirmed with costs against the
And section 2642 provides: appellant. So ordered.

Whoever at any election votes or attempts to vote knowing that he is Villa-Real, Vickers, Imperial, Butte, and Goddard, JJ., concur.
not entitled so to do, ... shall be punished by imprisonment for not less
than one month nor more than one year and by a fine of not less than
one hundred pesos nor more than one thousand pesos, and in all
cases by deprivation of the right of suffrage and disqualification from
public office for a period of not more than four years.
Separate Opinions
It is undisputed that appellant was sentenced by final judgment of this
court promulgated on March 3, 1910, 1 to suffer eight years and one AVANCE� A, C.J., dissenting:chanrobles virtual law library
day of presidio mayor. No evidence was presented to show that prior
to June 5, 1934, he had been granted a plenary pardon. It is likewise
undisputed that at the general elections held on June 5, 1934, the The appealed judgment affirmed by the majority members of this court
voted in election precinct No. 18 of the municipality of Davao, Province sentences the appellant for having voted in the general election held
of Davao.chanroblesvirtualawlibrary chanrobles virtual law library on June 5, 1934, in the municipality of Davao, Province of Davao,
being disqualified from voting. The appellant, in my opinion, was not
disqualified from voting.chanroblesvirtualawlibrary chanrobles virtual
The modern conception of the suffrage is that voting is a function of law library
government. The right to vote is not a natural right but is a right created
by law. Suffrage is a privilege granted by the State to such persons or
The appellant was sentenced to the penalty of eight years and one day I am of the opinion that this anomaly can be avoided only by
of prision mayor in the year 1910. This penalty carried with it, as an interpreting section 432 in the sense that the disqualification referred to
accessory, disqualification from the right of suffrage during the term of therein is merely during the term of the sentence.
the sentence. He began to serve his sentence on April 11, 1910. He
was granted a conditional pardon on July 31, 1913. Inasmuch as the
RECTO, J.: chanrobles virtual law library
accessory penalty of disqualification from the right of suffrage was not
expressly remitted in this pardon, it is understood that he complied with
and extinguished this part of the sentence on April 12, 1918. I concur in this dissenting opinion of Chief Justice
Therefore, under the penalty imposed upon the appellant, he was not Avance� a.chanroblesvirtualawlibrary chanrobles virtual law library
disqualified from voting in 1934.chanroblesvirtualawlibrary chanrobles
virtual law library
I hereby certify that Hon. George A. Malcolm, Associate Justice,
participated in this decision and voted to affirm the judgment. -
The majority, however bases its decision on section 432 of the
administrative Code which reads: AVANCE� A, C.J.

The following persons shall be disqualified from voting:chanrobles Endnotes:

virtual law library

(a) Any person who, since the thirteenth day of August, eighteen
hundred and ninety-eight, has been sentenced by final judgment to
suffer not less than eighteen months of imprisonment, such disability
not having been removed by plenary pardon.

The language of the law is not clear whether the disqualification

referred to therein is only for the term of the sentence or for the entire
life time of the convict. The majority however, interprets this provision
in the latter sense to which I do not agree, it being contrary to the spirit
thereof.chanroblesvirtualawlibrary chanrobles virtual law library

If the interpretation of the majority were correct, section 432 of the

Administrative Code would not harmonize with the latter provisions
thereof (secs. 2636, 2637, 2639, 2640, 2641, 2642, 2643, 2644, 2645,
2646, 2647, 2649, 2652, 2654, 2656, 2657, 2658 and 2659) on
offenses relative to elections and elective officers, imposing the
penalties of imprisonment and disqualification from the right of suffrage
for a period not exceeding five and fourteen years, respectively.
Supposing that in one of said cases, for instance that of an election
inspector who willfully signs a false statement of the result of a ballot
(sec. 2639), the penalty of imprisonment for more than eighteen
months is imposed upon him could be disqualified from voting during
his entire lifetime, in accordance with section 432, if the interpretation
of the majority is correct, and it would be to no purpose still to sentence
him to him to the penalty of disqualification from the right of suffrage for
a period not exceeding fourteen
years.chanroblesvirtualawlibrary chanrobles virtual law library

It cannot be said to harmonize these provisions, that the

disqualification from the right of suffrage should be imposed only when
the penalty of imprisonment imposed therein less than eighteen
months because it is expressly required that both penalties be imposed
in all cases.chanroblesvirtualawlibrary chanrobles virtual law library

Neither can it be said that section 432 governs all cases, in general,
and sections 2336 et seq. govern the specific cases referred to therein,
because there would be no justice in the law. One may be sentenced
to more than eighteen months of imprisonment for having committed
the crime of serious physical injuries, for instance, through reckless
negligence or in self-defense, but without having used the means
reasonably necessary therefor, and according to the majority opinion
he will be disqualified from voting during his entire who, abusing his
position, willfully commits a falsehood in connection with a ballot
entrusted to him, after serving his sentence which does not exceed
fourteen years, will again be qualified to vote. This cannot be the result
countenanced by the law. If the law in more serious cases wherein an
attempt is made directly against the cleanliness of the election, not
disqualifies the guilty party from the right of suffrage for a period not
exceeding fourteen years, it cannot be supposed that its intention is to
forever disqualify therefrom the party guilty of a crime which bears no
relation to the exercise of suffrage and which does not involve the
degree of moral turpitude as in the other
case.chanroblesvirtualawlibrary chanrobles virtual law library