ER Ejercito v. Comelec (Nov 2014)
ER Ejercito v. Comelec (Nov 2014)
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EN BANC
EMILIO
RAMON
"E.R."
EJERCITO,
Petitioner,
P.
versus -
HON.
COMMISSION
ON
ELECTIONS and EDGAR "EGAY"
S. SAN LUIS,
Respondents.
Promulgated:
NOVEMBER 25. 2014
x:------------------------------------------------------------------------------DECISION
PERALTA, J.:
Contested in this petition for certiorari under Rule 64, in relation to
Rule 65 of the Rules of Court (Rules), is the May 21, 2014 Resolution 1 of
the Commission on Elections (COMELEC) En Banc in SPA No. 13-306
..
No part.
On official leave.
Rollo, pp. 29-49.
cl
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The COMELEC First Division was composed of Commissioners Lucenito N. Tagle, Christian
Robert S. Lim and Al A. Parreo; rollo, pp. 49A-61.
3
Records, p. 1.
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Date
Program
April 28, 2013 TV Patrol
Time
5:58 p.m.
ABS-CBN
10:40 p.m.
(local specials)
GMA
10:46 p.m.
ABS-CBN
ABS-CBN
May 5, 2013
8:06 p.m.
GMA
GMA
GMA
Rated K
11:06 p.m.
11:18 p.m.
11:47 p.m.
11:26 p.m.
Duration
4 minutes
(approximately)
4 minutes
(approximately)
3 minutes
(approximately)
4 minutes
(approximately)
4 minutes
(approximately)
4 minutes
(approximately)
4 minutes
(approximately)
4 minutes
Amount*
P3,297,496
P3,297,496
P2,635,200
P2,635,200
P2,635,200
P2,635,200
P3,297,496
P3,297,496
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(approximately)
P23,730.784
Total
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Subsequently, on May 16, 2013, San Luis filed a Very Urgent ExParte Motion to Issue Suspension of Possible Proclamation of Respondent
and Supplemental to the Very Urgent Ex-Parte Motion to Issue Suspension
of Possible Proclamation of Respondent.5 However, these were not acted
upon by the COMELEC. The next day, Ejercito and Ramil L. Hernandez
were proclaimed by the Provincial Board of Canvassers as the duly-elected
Governor and Vice-Governor, respectively, of Laguna.6 Based on the
Provincial/District Certificate of Canvass, Ejercito obtained 549,310 votes
compared with San Luis 471,209 votes.7
The COMELEC First Division issued a Summons with Notice of
Conference on June 4, 2013.8 Ejercito then filed his Verified Answer on June
13, 2013 that prayed for the dismissal of the petition due to procedural and
substantive irregularities and taking into account his proclamation as
Provincial Governor.9 He countered that the petition was improperly filed
because, based on the averments and relief prayed for, it is in reality a
complaint for election offenses; thus, the case should have been filed before
the COMELEC Law Department, or the election registrar, provincial
election supervisor or regional election director, or the state, provincial or
city prosecutor in accordance with Laurel v. Presiding Judge, RTC, Manila,
Br. 10.10 Assuming that the petition could be given due course, Ejercito
4
5
6
7
8
9
10
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argued that San Luis failed to show, conformably with Codilla, Sr. v. Hon.
De Venecia,11 that he (Ejercito) was previously convicted or declared by
final judgment of a competent court for being guilty of, or found by the
COMELEC of having committed, the punishable acts under Section 68 of
Batas Pambansa (B.P.) Bilang 881, or the Omnibus Election Code of the
Philippines, as amended (OEC).12
As to the acts he allegedly committed, Ejercito claimed that the same
are baseless, unfounded, and totally speculative. He stated that the Health
Access Program or the E.R. Orange Card was a priority project of his
administration as incumbent Governor of Laguna and was never intended to
influence the electorate during the May 2013 elections. He added that the
Orange Card, which addressed the increasing need for and the high cost of
quality health services, provides the Laguneos not only access to medical
services but also the privilege to avail free livelihood seminars to help them
find alternative sources of income. With respect to the charge of having
exceeded the total allowable election expenditures, Ejercito submitted that
the accusation deserves no consideration for being speculative, self-serving,
and uncorroborated by any other substantial evidence.
Citing Sinaca v. Mula,13 Ejercito asserted that the petition questioning
his qualification was rendered moot and academic by his proclamation as the
duly-elected Provincial Governor of Laguna for the term 2013-2016. He
perceived that his successful electoral bid substantiates the fact that he was
an eligible candidate and that his victory is a testament that he is more than
qualified and competent to hold public office.
Lastly, Ejercito considered San Luis petition for disqualification as
purely frivolous and with no plain and clear purpose but to harass and cause
undue hardship. According to him, the fact that it was filed only a few days
before the May 13, 2013 elections evidently shows that it was lodged as a
last-ditch effort to baselessly derail and obstruct his assumption of office and
function as the duly-elected Laguna Governor.
The scheduled case conference between the parties on June 13, 2013
was reset to June 27, 2013.14 In the latter date, all the documentary exhibits
were marked in evidence and the parties agreed to file their respective
memorandum within ten (10) days.15
11
12
13
14
15
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Rollo, p. 153-161.
Id. at 157.
Id. at 160.
Otherwise known as "The Electoral Reforms Law of 1987."
Rollo, pp. 140-152.
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Id. at 60-61.
Rule 25 of the COMELEC Rules of Procedure or the Rules Governing Pleadings, Practice and
Procedure before the COMELEC or any of its Offices, which was promulgated on February 15, 1993,
pertains to disqualification of candidates.
23
In the Matter of the Amendment to Rules 23, 24, and 25 of the COMELEC Rules of Procedure for
Purposes of the May 13, 2013 National, Local and ARMM Elections and Subsequent Elections
(Promulgated on September 25, 2012).
24
G.R. No. 195649, April 16, 2013, 696 SCRA 420.
22
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do not find any averment to the effect that the Orange Card was given to
the affiant to influence or induce her to vote for [Ejercito]. Affiant only
stated that she was given the Orange Card last April of this year and that
she was not able to use it during those times when [she] or one of [her]
family members got sick and needed hospital assistance. Aside from Mrs.
Cornelios Sworn Statement, there is no other evidence to support [San
Luis] claim, leading us to reject [San Luis] first cause of action.
With respect to the second cause of action, [San Luis] presented
Exhibits B-1 to B-4, which are submissions made by the ABS-CBN
Corporation as mandated by Section 6 of Republic Act No. 9006 (RA
9006 or the Fair Election Act), implemented through Section 9 (a) of
Resolution No. 9615. Exhibit B-3 is an Advertising Contract between
ABS-CBN Corporation and Scenema Concept International, Inc. (SCI).
The details of the Contract are as follows:
Payor/Advertiser
Beneficiary
Broadcast Schedule
Number of Spots
Unit Cost per Spot
Total Cost of Contract
Authorized expense
Total amount of
per voter registered = spending allowed
in the constituency
for election campaign
PhP 3.00 per voter
PhP 4,576,566.00
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voters in Laguna
While not presented as evidence in this case, we cannot deny the
existence of another Advertising Contract dated [May 8, 2013] for one (1)
spot of a 3.5-minute advertisement scheduled for broadcast on [May 9,
2013], amounting to PhP 3,366,195.05. This Contract also contains the
signature of [Ejercito] accepting the donation from SCI and is
accompanied by an ABS-CBN-issued Official Receipt No. 279513 dated
[May 7, 2013] in SCIs name for PhP 6,409,235.28. If we add the amounts
from both contracts, we arrive at a total cost of PhP 23,563,365.29, which,
coincidentally, is the product of:
Number of spots
PhP 3,366,195.04
PhP 23,563,365.28
This matches the data gathered by the Commissions EID from the
reports and logs submitted by broadcast stations as required by the Fair
Election Act. According to the 99-page Daily Operations Log for Channel
2 submitted by ABS-CBN covering the period of [April 27, 2013] to [May
11, 2013], [Ejercitos] 3.5-minute or 210-second advertisement was aired
seven (7) times. The specific details on the dates of airing, program or
time slot when the advertisements were aired, and the time when the
advertisements as culled from the 99-page Daily Operations Log are
summarized as thus:
Date aired
Program/Time Slot
Airtime
28 Apr 2013
TV Patrol Linggo/5:20-5:30 pm
05:54:40 PM
28 Apr 2013
Harapan: Senatorial Debate/9:30-11:30 pm 10:40:13 PM
04 May 2013
TODA MAX/10:30-11:15 pm
11:26:43 PM
05 May 2013
Rated K-Handa Na Ba Kayo/7:15-8:15 pm 08:06:42 PM
09 May 2013
TV Patrol/6:30-7:45 pm
07:35:56 PM
10 May 2013
TV Patrol/6:30-7:45 pm
07:44:50 PM
11 May 2013
TV Patrol Sabado/5:30-6:00 pm
06:12:30 PM
Source: Pages 6, 8, 43, 47, 75, 84, and 93 of ABS-CBN Channel 2 Daily
Operations Log for [April 27, 2013] to [May 11, 2013].
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28
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Id. at 44-46.
537 Phil. 332 (2006).
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32
33
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On May 23, 2014, Ejercito filed before this Court a Petition for
certiorari with application for the issuance of a status quo ante order or
temporary restraining order (TRO)/writ of preliminary injunction (WPI).35
Without issuing a TRO/WPI, the Honorable Chief Justice, Maria Lourdes P.
A. Sereno, issued on May 28, 2014 an order to respondents to comment on
the petition within a non-extendible period of ten (10) days from notice.36
Such order was confirmed nunc pro tunc by the Court En Banc on June 3,
2014.37
Meantime, on May 26, 2014, Ejercito filed before the COMELEC En
Banc an Omnibus Motion to suspend proceedings and to defer the
implementation of the May 21, 2014 Resolution.38 On the same day, San
Luis also filed an Extremely Urgent Motion to Declare COMELEC En Banc
Resolution of May 21, 2014 and First Division Resolution of September 26,
2013 Final and Executory and to Issue Forthwith Writ of Execution or
Implementing Order39 invoking Paragraph 2, Section 8 of COMELEC
Resolution
No. 9523, in relation to Section 13 (b), Rule 18 of the
COMELEC Rules of Procedure.40 On May 27, 2014, the COMELEC En
Banc issued an Order denying Ejercitos omnibus motion, granted San Luis
extremely urgent motion, and directed the Clerk of the Commission to issue
34
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Records, p. 242.
Id. at 249-250, 260-262.
Rollo, pp. 7-8.
Hayudini v. Commission on Elections, G.R. No. 207900, April 22, 2014.
Juan v. Commission on Election, 550 Phil. 294, 302 (2007).
Hayudini v. Commission on Elections, supra note 44.
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xxx
xxx
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Codilla, Sr. v. Hon. De Venecia, supra note 11 at 177-178. See also Aratea v. Commission on
Elections, G.R. No. 195229, October 9, 2012, 683 SCRA 105, 129, Jalosjos v. Commission on Elections,
G.R. No. 193237, October 9, 2012, 683 SCRA 1, 29, and Blanco v. COMELEC, et al., 577 Phil. 622, 633634 (2008).
56
Sec. 3 Rule 25 of which provides:
Section 3. Period to File Petition. The Petition shall be filed any day after the last day for filing
of certificates of candidacy, but not later than the date of proclamation.
57
Sec. 6. Effect of Disqualification Case. Any candidate who has been declared by final judgment
to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a
candidate is not declared by final judgment before an election to be disqualified and he is voted for and
receives the winning number of votes in such election, the Court or Commission shall continue with the
trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor,
may during the pendency thereof order the suspension of the proclamation of such candidate whenever the
evidence of his guilt is strong.
58
Section 5. Effect of Petition if Unresolved Before Completion of Canvass. If a Petition for
Disqualification is unresolved by final judgment on the day of elections, the petitioner may file a motion
with the Division or Commission En Banc where the case is pending, to suspend the proclamation of the
candidate concerned, provided that the evidence for the grounds to disqualify is strong. For this purpose, at
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least three (3) days prior to any election, the Clerk of the Commission shall prepare a list of pending cases
and furnish all Commissioners copies of said the list.
In the event that a candidate with an existing and pending Petition to disqualify is proclaimed
winner, the Commission shall continue to resolve the said Petition.
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59
60
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on
motion
duly
seconded,
the
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61
62
63
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Sunga v. COMELEC, supra note 33, at 322-324. See also Lonzanida v. COMELEC, 370 Phil. 625,
639-641 (1999) and Bagatsing v. COMELEC, supra note 61, at 596-597.
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67
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SEC. 34. Offer of evidence. - The court shall consider no evidence which has not been formally
offered. The purpose for which the evidence is offered must be specified.
69
69 Phil. 635 (1940).
70
Section 3. Judicial notice, when hearing necessary. During the trial, the court, on its own
initiative, or on request of a party, may announce its intention to take judicial notice of any matter and
allow the parties to be heard thereon.
After the trial, and before judgment or on appeal, the proper court, on its own initiative, or on
request of a party, may take judicial notice of any matter and allow the parties to be heard thereon if such
matter is decisive of a material issue in the case.
71
Sec. 4. In what cases not applicable.
These Rules shall not apply to election cases, land registration, cadastral, naturalization
and insolvency proceedings, and other cases not herein provided for, except by analogy or in a
suppletory character and whenever practicable and convenient.
72
Sec. 4. Rule 25 of COMELEC Resolution No. 9523 states that, except in motu proprio cases,
Sections 3, 4, 5, 6, 7, and 8 of Rule 23 shall apply in proceedings to disqualify a candidate. Sec. 4 of Rule
23, in turn, provides:
Section 4. Procedure to be observed. Both parties shall observe the following procedure:
1. The petitioner shall, before filing of the Petition, furnish a copy of the Petition, through personal
service to the respondent. In cases where personal service is not feasible, or the respondent refuses
to receive the Petition, or the respondents whereabouts cannot be ascertained, the petitioner shall
execute an affidavit stating the reason or circumstances therefor and resort to registered mail as a
mode of service. The proof of service or the affidavit shall be attached to the Petition to be filed;
2. The Petition intended for the Commission shall be in eleven (11) copies. Upon receipt of the
Petition, payment of the filing fee of P10,000.00 and legal research fee of P100.00 and official
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receipt, the Office of the Clerk of the Commission shall docket the Petition and assign to it a
docket number, which must be consecutive according to the order of receipt, and must bear the
year and prefixed as SPA (DC);
3. The Petition shall contain the correct information as to the addresses, telephone numbers,
facsimile numbers, and electronic mail of both parties and counsel, if known.
4. No Petition shall be docketed unless the requirements in the preceding paragraphs have been
complied with;
5. Upon the proper filing and docketing of the Petition, the Clerk of the Commission shall, within
three (3) days, issue summons with notice of conference through personal service, or in the event
of impossibility or shortness of time, resort to telegram, facsimile, electronic mail, or through the
fastest means of communication to the respondent and notice of conference to the petitioner;
6. Within a non-extendible period of five (5) days from receipt of summons, the respondent shall,
personally or through his authorized representative, file his verified Answer to the Petition with
the Office of the Clerk of the Commission in ten (10) legible copies, with proof of personal
service of answer upon the petitioner. A motion to dismiss shall not be admitted, but grounds
thereof may be raised as an affirmative defense. The failure of the respondent to file his verified
Answer within the reglementary period shall bar the respondent from submitting controverting
evidence or filing his memorandum.
7. The Clerk of the Commission or, in his/her absence, his/her duly authorized representative, shall
preside during the conference. It shall be the duty of the parties or their duly-designated counsel,
possessing a written authority under oath, to appear during the conference. Should the petitioner or
his authorized counsel fail to appear, the Petition shall be dismissed. Should respondent or his
authorized counsel fail to appear, the Petition shall be deemed submitted for resolution. If the
petitioner or respondent is not present during the conference, the failure of the counsel to produce
a written authority under oath shall have the effect of non-appearance unless the counsel has
previously filed a pleading bearing the conformity of his client. The following matters shall be
taken up during the conference:
a. Production of a written authority under oath of counsel;
b. Comparison between the original and/or certified true copies and copies of documentary
and real evidence; and
c. Setting of the period to file the parties respective memorandum, which shall not be later
than ten (10) days from the date of the conference.
8. Unless the Division or the Commission En Banc requires a clarificatory hearing, the case shall be
deemed submitted for resolution upon the receipt of both parties Memoranda or upon the
expiration of the period to do so, whichever comes sooner.
9. The Memorandum of each party shall contain, in the above order herein indicated, the following:
a. Statement of the Case, which is a clear and concise statement of the nature of the
action, a summary of the documentary evidence, and other matters necessary to an
understanding of the nature of the controversy;
b. Statement of the Issues, which is a clear and concise statement of the issues;
c. The Argument which is a clear and concise presentation of the argument in support of
each issue;
d. The Objections to Evidence, which states the partys objections to the real and
documentary evidence of the other party and stating the legal grounds for such objection;
e. The Relief which is a specification of the judgment which the party seeks to obtain.
The issues raised in his/its pleadings that are not included in the Memorandum shall be
deemed waived or abandoned. The Commission may consider the memorandum alone in
deciding or resolving the Petition, said memorandum being a summation of the parties
pleadings and documentary evidence; and
f. Annexes which may consist of the real and documentary evidence, including
affidavits of witnesses in lieu of oral testimony, in support of the statements or claims
made in the Memorandum.
10. Prior to promulgation of a decision or resolution, a Division or the Commission En Banc may, in
its discretion, call for a hearing in the event it deems it necessary to propound clarificatory
questions on factual issues.
11. No other pleadings seeking affirmative relief shall be allowed. If after termination of the
Conference, but prior to promulgation of a decision or resolution, a supervening event occurs that
produces evidence that could materially affect the determination of the grant or denial of the
Petition, a party may submit the same to the Division or Commission En Banc, where applicable,
through a Manifestation.
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73
See Sps. Llanes v. Rep. of the Phils., 592 Phil. 623, 633-634 (2008) and AB Leasing and Finance
Corporation v. Comm. of Internal Revenue, 453 Phil. 297, 308 (2003).
74
Sps. Llanes v. Rep. of the Phils., supra, at 633-634.
75
Hayudini v. Commission on Elections, supra note 44.
76
Id.
77
Dycoco v. Court of Appeals, G.R. No. 147257, July 31, 2013, 702 SCRA 566, 583 and A.Z. Arnaiz
Realty, Inc. v. Office of the President, G.R. No. 170623, July 7, 2010, 624 SCRA 494, 503.
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See National Association of Electricity Consumers for Reforms, Inc. (NASECORE) v. Energy
Regulatory Commission (ERB), G.R. No. 190795, July 6, 2011, 653 SCRA 642, and A.Z. Arnaiz Realty,
Inc. v. Office of the President, supra note 77.
79
See page 26 of Ejercitos Verified Motion for Reconsideration (Rollo, p. 87).
80
Section 2. Judicial notice, when discretionary. A court may take judicial notice of matters which
are of public knowledge, or are capable to unquestionable demonstration, or ought to be known to judges
because of their judicial functions.
81
Sec. 1, Rule 2 of COMELEC Resolution No. 9476.
82
Sec. 26, Rule 130 of the Rules of Court states:
Sec. 26. Admission of a party. The act, declaration or omission of a party as to a
relevant fact may be given in evidence against him.
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d. Common requirements/limitations:
xxx
(3) For the above purpose, each broadcast entity and
website owner or administrator shall submit to the
Commission a certified true copy of its broadcast logs,
certificates of performance, or other analogous record,
including certificates of acceptance as required in
Section 7(b) of these Guidelines, for the review and
verification of the frequency, date, time and duration of
advertisements aired for any candidate or party through:
For Broadcast Entities in the NCR
The Education and Information Department (EID) which in
turn shall furnish copies thereof to the Campaign Finance
Unit (CFU) of the Commission within five days from
receipt thereof.
For Broadcast Entities outside of the NCR
The City/Municipal Election Officer (EO) concerned, who
in turn, shall furnish copies thereof to the Education and
Information Department (EID) of the Commission which in
turn shall furnish copies thereof to the Campaign Finance
Unit (CFU) of the Commission within five (5) days from
the receipt thereof.
For website owners or administrators
The City/Municipal Election Officer (EO) concerned, who
in turn, shall furnish copies thereof to the Education and
Information Department (EID) of the Commission which in
turn shall furnish copies thereof to the Campaign Finance
Unit (CFU) of the Commission within five (5) days from
the receipt thereof.
All broadcast entities shall preserve their broadcast
logs for a period of five (5) years from the date of broadcast
for submission to the Commission whenever required.
Certified true copies of broadcast logs, certificates
of performance, and certificates of acceptance, or other
analogous record shall be submitted, as follows:
Candidates for National Positions
1st Report
March 4 - 11
2nd Report
April 3 - 10
3rd Report
May 2 - 9
Last Report
Election week
May 14 - 17
1st Report
April 15 - 22
2nd Report
April 30 - May 8
3rd Report
Election week
May 9 - 15
Last Report
May 16 - 22
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83
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due process require that a party be duly apprised of a claim against him
before judgment may be rendered.93
Likewise, whether the advertising contracts were executed without
Ejercitos knowledge and consent, and whether his signatures thereto were
fraudulent, are issues of fact. Any factual challenge has no place in a Rule
65 petition. This Court is not a trier of facts and is not equipped to receive
evidence and determine the truth of factual allegations.94 Instead, the
findings of fact made by the COMELEC, or by any other administrative
agency exercising expertise in its particular field of competence, are binding
on the Court. As enunciated in Juan v. Commission on Election:95
Findings of facts of administrative bodies charged with their
specific field of expertise, are afforded great weight by the courts, and in
the absence of substantial showing that such findings are made from an
erroneous estimation of the evidence presented, they are conclusive, and in
the interest of stability of the governmental structure, should not be
disturbed. The COMELEC, as an administrative agency and a specialized
constitutional body charged with the enforcement and administration of all
laws and regulations relative to the conduct of an election, plebiscite,
initiative, referendum, and recall, has more than enough expertise in its
field that its findings or conclusions are generally respected and even
given finality. x x x.96
Titan Construction Corporation v. David, Sr., G.R. No. 169548, March 15, 2010, 615 SCRA 362,
379.
94
Typoco v. Commission on Elections, G.R. No. 186359, March 5, 2010, 614 SCRA 391, 393-394
and V.C. Cadangen, et al. v. Commission on Elections, 606 Phil. 752, 760 (2009).
95
Supra note 45.
96
Juan v. Commission on Election, supra note 45, at 303.
97
An electioneering communication is "any broadcast, cable, or satellite communication" that "refers to a
clearly identified candidate for Federal office" and is made within 30 days of a primary election,
434(f)(3)(A), and that is "publicly distributed," 11 CFR 100.29(a)(2), which in "the case of a candidate for
nomination for President . . . means" that the communication "[c]an be received by 50,000 or more persons
in a State where a primary election . . . is being held within 30 days." (See Citizens United v. Federal
Election Commission, 558 U.S. 310 [2010])
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speech."
The First Amendment provides that "Congress shall make no law . . . abridging the freedom of
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Even so, the rulings in Citizens United and Buckley find bearing only
on matters related to independent expenditures, an election law concept
which has no application in this jurisdiction. In the US context, independent
expenditures for or against a particular candidate enjoy constitutional
protection. They refer to those expenses made by an individual, a group or a
legal entity which are not authorized or requested by the candidate, an
authorized committee of the candidate, or an agent of the candidate; they are
expenditures that are not placed in cooperation with or with the consent of a
candidate, his agents, or an authorized committee of the candidate.104 In
contrast, there is no similar provision here in the Philippines. In fact, R.A.
(b)'s contribution ceilings rather than 608 (e)(1)'s independent expenditure limitation prevent attempts to
circumvent the Act through prearranged or coordinated expenditures amounting to disguised contributions.
By contrast, 608(e)(1) limits expenditures for express advocacy of candidates made totally independently
of the candidate and his campaign. Unlike contributions, such independent expenditures may well provide
little assistance to the candidate's campaign and indeed may prove counterproductive. The absence of
prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the
value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a
quid pro quo for improper commitments from the candidate. Rather than preventing circumvention of the
contribution limitations, 608 (e)(1) severely restricts all independent advocacy despite its substantially
diminished potential for abuse.
While the independent expenditure ceiling thus fails to serve any substantial governmental interest
in stemming the reality or appearance of corruption in the electoral process, it heavily burdens core First
Amendment expression. For the First Amendment right to "'speak one's mind... on all public institutions'"
includes the right to engage in "'vigorous advocacy' no less than 'abstract discussion.'" New York Times Co.
v. Sullivan, 376 U.S. at 269, quoting Bridges v. California, 314 U.S. 252, 270 (1941), and NAACP v.
Button, 371 U.S. at 429. Advocacy of the election or defeat of candidates for federal office is no less
entitled to protection under the First Amendment than the discussion of political policy generally or
advocacy of the passage or defeat of legislation.
It is argued, however, that the ancillary governmental interest in equalizing the relative ability of
individuals and groups to influence the outcome of elections serves to justify the limitation on express
advocacy of the election or defeat of candidates imposed by 608 (e)(1)'s expenditure ceiling. But the
concept that government may restrict the speech of some elements of our society in order to enhance the
relative voice of others is wholly foreign to the First Amendment, which was designed "to secure 'the
widest possible dissemination of information from diverse and antagonistic sources,'" and "'to assure
unfettered interchange of ideas for the bringing about of political and social changes desired by the
people.'" New York Times Co. v. Sullivan, supra, at 266, 269, quoting Associated Press v. United States,
326 U.S. 1, 20 (1945), and Roth v. United States, 354 U.S. at 484. The First Amendment's protection
against governmental abridgment of free expression cannot properly be made to depend on a person's
financial ability to engage in public discussion. Cf. Eastern R. Conf. v. Noerr Motors, 365 U.S. 127, 139
(1961).
The Court's decisions in Mills v. Alabama, 384 U.S. 214 (1966), and Miami Herald Publishing Co.
v. Tornillo, 418 U.S. 241 (1974), held that legislative restrictions on advocacy of the election or defeat of
political candidates are wholly at odds with the guarantees of the First Amendment. In Mills, the Court
addressed the question whether "a State, consistently with the United States Constitution, can make it a
crime for the editor of a daily newspaper to write and publish an editorial on election day urging people to
vote a certain way on issues submitted to them." 384 U.S. at 215 (emphasis in original). We held that "no
test of reasonableness can save [such] a state law from invalidation as a violation of the First Amendment."
Id., at 220. Yet the prohibition of election-day editorials invalidated in Mills is clearly a lesser intrusion on
constitutional freedom than a $ 1,000 limitation on the amount of money any person or association can
spend during an entire election year in advocating the election or defeat of a candidate for public office.
More recently in Tornillo, the Court held that Florida could not constitutionally require a newspaper to
make space available for a political candidate to reply to its criticism. Yet under the Florida statute, every
newspaper was free to criticize any candidate as much as it pleased so long as it undertook the modest
burden of printing his reply. See 418 U.S. at 256-257. The legislative restraint involved in Tornillo thus
also pales in comparison to the limitations imposed by 608 (e)(1).
For the reasons stated, we conclude that 608 (e)(1)'s independent expenditure limitation is
unconstitutional under the First Amendment.
104
See Buckley v. Valeo, supra note 101.
Decision
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No. 9006105 and its implementing rules and regulations106 specifically make
it unlawful to print, publish, broadcast or exhibit any print, broadcast or
outdoor advertisements donated to the candidate without the written
acceptance of said candidate.
If at all, another portion of the Buckley decision is significant to this
case. One of the issues resolved therein is the validity of a provision of the
FECA which imposes $1,000 limitation on political contributions by
individuals and groups to candidates and authorized campaign
committees.107 Five justices of the nine-member US Supreme Court
sustained the challenged provision on the grounds that it does not violate
First Amendment speech and association rights or invidiously discriminate
against non-incumbent candidates and minority party candidates but is
supported by substantial governmental interests in limiting corruption and
the appearance of corruption. It was held:
As the general discussion in Part I-A, supra, indicated, the primary
First Amendment problem raised by the Act's contribution limitations is
their restriction of one aspect of the contributor's freedom of political
association. The Court's decisions involving associational freedoms
establish that the right of association is a "basic constitutional freedom,"
Kusper v. Pontikes, 414 U.S. at 57, that is "closely allied to freedom of
speech and a right which, like free speech, lies at the foundation of a free
society." Shelton v. Tucker, 364 U.S. 479, 486 (1960). See, e.g., Bates v.
Little Rock, 361 U.S. 516, 522-523 (1960); NAACP v. Alabama, supra at
460-461; NAACP v. Button, supra, at 452 (Harlan, J., dissenting). In view
of the fundamental nature of the right to associate, governmental "action
which may have the effect of curtailing the freedom to associate is subject
to the closest scrutiny." NAACP v. Alabama, supra, at 460-461. Yet, it is
clear that "[n]either the right to associate nor the right to participate in
political activities is absolute." CSC v. Letter Carriers, 413 U.S. 548, 567
(1973). Even a "significant interference' with protected rights of political
association" may be sustained if the State demonstrates a sufficiently
important interest and employs means closely drawn to avoid unnecessary
abridgment of associational freedoms. Cousins v. Wigoda, supra, at 488;
NAACP v. Button, supra, at 438; Shelton v. Tucker, supra, at 488.
105
Decision
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Decision
- 44 -
disclosure was only a partial measure, and that contribution ceilings were
a necessary legislative concomitant to deal with the reality or appearance
of corruption inherent in a system permitting unlimited financial
contributions, even when the identities of the contributors and the amounts
of their contributions are fully disclosed.
The Act's $ 1,000 contribution limitation focuses precisely on the
problem of large campaign contributions -- the narrow aspect of political
association where the actuality and potential for corruption have been
identified -- while leaving persons free to engage in independent political
expression, to associate actively through volunteering their services, and
to assist to a limited but nonetheless substantial extent in supporting
candidates and committees with financial resources. Significantly, the
Act's contribution limitations in themselves do not undermine to any
material degree the potential for robust and effective discussion of
candidates and campaign issues by individual citizens, associations, the
institutional press, candidates, and political parties.
We find that, under the rigorous standard of review established by
our prior decisions, the weighty interests served by restricting the size of
financial contributions to political candidates are sufficient to justify the
limited effect upon First Amendment freedoms caused by the $ 1,000
contribution ceiling. (Emphasis supplied)
Until now, the US Supreme Court has not overturned the ruling that,
with respect to limiting political contributions by individuals and groups, the
Governments interest in preventing quid pro quo corruption or its
appearance was sufficiently important or compelling so that the interest
would satisfy even strict scrutiny.108
In any event, this Court should accentuate that resort to foreign
jurisprudence would be proper only if no law or jurisprudence is
available locally to settle a controversy and that even in the absence of local
statute and case law, foreign jurisprudence are merely persuasive authority at
best since they furnish an uncertain guide.109 We prompted in Republic of
the Philippines v. Manila Electric Company:110
x x x American decisions and authorities are not per se controlling in this
jurisdiction. At best, they are persuasive for no court holds a patent on
correct decisions. Our laws must be construed in accordance with the
intention of our own lawmakers and such intent may be deduced from the
language of each law and the context of other local legislation related
thereto. More importantly, they must be construed to serve our own public
interest which is the be-all and the end-all of all our laws. And it need not
be stressed that our public interest is distinct and different from others.111
108
See McCutcheon, et al. v. Federal Election Commission, 134 S. Ct. 1434 (2014).
See VDA Fish Broker v. National Labor Relations Commission, G.R. Nos. 76142-43, December
27, 1993, 228 SCRA 681 and Philippine Airlines, Inc. v. Court of Appeals, 263 Phil. 806, 817 (1990).
110
449 Phil. 118 (2003).
111
Republic of the Philippines v. Manila Electric Company, supra, at 127.
109
Decision
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and once more in Central Bank Employees Assoc., Inc. v. Bangko Sentral Ng
Pilipinas:112
x x x [A]merican jurisprudence and authorities, much less the American
Constitution, are of dubious application for these are no longer controlling
within our jurisdiction and have only limited persuasive merit insofar as
Philippine constitutional law is concerned.... [I]n resolving constitutional
disputes, [this Court] should not be beguiled by foreign jurisprudence
some of which are hardly applicable because they have been dictated by
different constitutional settings and needs. Indeed, although the
Philippine Constitution can trace its origins to that of the United States,
their paths of development have long since diverged.113
Decision
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Proceeding from the above, the Court shall now rule on Ejercitos
proposition that the legislature imposes no legal limitation on campaign
donations. He vigorously asserts that COMELEC Resolution No. 9476
distinguishes between contribution and expenditure and makes no
proscription on the medium or amount of contribution made by third parties
in favor of the candidates, while the limit set by law, as appearing in
COMELEC Resolution No. 9615, applies only to election expenditures of
candidates.
We deny.
117
Decision
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Sections 100, 101, and 103 of the OEC are not repealed by R.A. No.
7166.
These provisions, which are merely amended insofar as the
allowable amount is concerned, read:
120
118
Entitled An Act Providing for Synchronized National and Local Elections and for Electoral
Reforms, Authorizing Appropriations Therefor, and for Other Purposes and was signed into law on
November 26, 1991.
119
Rule 4 of COMELEC Resolution No. 9476 provides:
Section 1. Authorized expenses of candidates and parties. The aggregate amount that a
candidate or party may spend for an election campaign shall be as follows:
a. President and Vice-President ---Ten Pesos (PhP 10.00) for every registered voter.
b. For other candidates --- Three Pesos (PhP 3.00) for every voter currently registered
in the constituency where the candidate filed his certificate of candidacy.
c. Candidate without any political party and without support from any political party -Five Pesos (PhP 5.00) for every voter currently registered in the constituency where
the candidate filed his certificate of candidacy; and
d. Political parties and party-list groups --- Five Pesos (PhP 5.00) for every voter
currently registered in the constituency or constituencies where it has official
candidates. [RA 7166, Section 13, Paragraphs 2 and 3]
For the May 2013 elections, Sec. 5 of COMELEC Resolution No. 9615 reiterates:
SECTION 5. Authorized Expenses of Candidates and Parties. The aggregate
amount that a candidate or party may spend for election campaign shall be as follows:
a. For candidates - Three pesos (P3.00) for every voter currently registered in the
constituency where the candidate filed his certificate of candidacy;
b. For other candidates without any political party and without support from any
political party Five pesos (P5.00) for every voter currently registered in the
constituency where the candidate filed his certificate of candidacy.
c. For Political Parties and party-list groups Five pesos (P5.00) for every voter
currently registered in the constituency or constituencies where it has official
candidates.
The exemption from donors tax is stated in Sec. 3 Rule 3 of COMELEC Resolution No. 9476.
120
Sec. 39 of R.A. No. 7166 provides:
Decision
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SEC. 39. Amending and Repealing Clause. - Sections 107, 108 and 245 of the Omnibus Election
Code are hereby repealed. Likewise, the inclusion in Section 262 of the Omnibus Election Code of the
violations of Sections 105, 106, 107, 108, 109, 110, 111 and 112 as among election offenses is also hereby
repealed. This repeal shall have retroactive effect.
Batas Pambansa Blg. 881, Republic Act No. 6646, Executive Order Nos. 144 and 157 and all
other laws, orders, decrees, rules and regulations or other issuances, or any part thereof, inconsistent with
the provisions of this Act are hereby amended or repealed accordingly.
121
Pursuant to the law, Rule 4 of COMELEC Resolution No. 9476 in the same way states:
Section 2. Coverage of the Expenses. The expenses herein referred to shall include those
incurred or caused to be incurred by the candidate, whether in cash or in kind, including the use, rental
or hire of land, water or aircraft, equipment, facilities, apparatus and paraphernalia used in the campaign.
If the foregoing are owned by the candidate, his contributor or supporter, and the use of which are
given free of charge to the candidate, the candidate shall assess and declare the amount commensurate with
Decision
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The focal query is: How shall We interpret the expenses herein
referred to shall include those incurred or caused to be incurred by the
candidate and except the candidate, the treasurer of a political party or
any person authorized by such candidate or treasurer found in Sections
100 and 103, respectively, of the OEC? Do these provisions exclude from
the allowable election expenditures the contributions of third parties made
with the consent of the candidate? The Court holds not.
When the intent of the law is not apparent as worded, or when the
application of the law would lead to absurdity, impossibility or injustice,
extrinsic aids of statutory construction may be resorted to such as the
legislative history of the law for the purpose of solving doubt, and that
courts may take judicial notice of the origin and history of the law, the
deliberations during the enactment, as well as prior laws on the same subject
matter in order to ascertain the true intent or spirit of the law.122
Looking back, it could be found that Sections 100, 101, and 103 of the
OEC are substantially lifted from P.D. No. 1296,123 as amended. Sections 51,
52 and 54 of which specifically provide:
Section 51. Limitations upon expenses of candidates. No candidate shall
spend for his election campaign an amount more than the salary or the
equivalent of the total emoluments for one year attached to the office for
which he is a candidate: Provided, That the expenses herein referred to
shall include those incurred by the candidate, his contributors and
supporters, whether in cash or in kind, including the use, rental or hire of
land, water or air craft, equipment, facilities, apparatus and paraphernalia
used in the campaign: Provided, further, That, where the land, water or air
craft, equipment, facilities, apparatus and paraphernalia used is owned by
the candidate, his contributor or supporter, the Commission is hereby
empowered to assess the amount commensurate with the expenses for the
use thereof, based on the prevailing rates in the locality and shall be
included in the total expenses incurred by the candidate.
In the case of candidates for the interim Batasang Pambansa, they shall not
spend more than sixty thousand pesos for their election campaign.
the expenses for the use thereof, based on the prevailing rate in the locality and shall be included in the total
expenses incurred by the candidate. [n]
The Commission shall have the power to determine if the assessment is based on the prevailing
rates in the locality and effect the necessary correction. [OEC, Sec. 100]
xxx
xxx
xxx
Section 4. Persons authorized to incur election expenditures. No person, except the candidate,
the treasurer of the party, or any person authorized by such candidate or treasurer, shall make any
expenditure in support of or in opposition to any candidate or the party. Such expenditures, if duly
authorized, shall be considered as expenditure of such candidate or party. [OEC, Sec. 103, Par. 1]
(Emphasis supplied)
122
See Navarro v. Ermita, G.R. No. 180050, April 12, 2011, 648 SCRA 400, 455; Commissioner of
Internal Revenue v. SM Prime Holdings, Inc., G.R. No. 183505, February 26, 2010, 613 SCRA 774, 778779; and League of Cities of the Phils., et al. (LCP) v. COMELEC, et al., 592 Phil. 1, 30 (2008).
123
Otherwise known as The 1978 Election Code.
Decision
- 50 -
Prior to P.D. No. 1296, R.A. No. 6388 (otherwise known as the
Election Code of 1971) was enacted.124 Sections 41 and 42 of which are
relevant, to quote:
Section 41. Limitation Upon Expenses of Candidates. No candidate shall
spend for his election campaign more than the total amount of salary for
the full term attached to the office for which he is a candidate.
Section 42. Limitation Upon Expenses of Political Parties and Other Nonpolitical Organizations. No political party as defined in this Code shall
spend for the election of its candidates an aggregate amount more than the
equivalent of one peso for every voter currently registered throughout the
country in case of a regular election, or in the constituency in which the
124
R.A. No. 6388 was approved on September 2, 1971. It repealed, among others, Sections 48 and 49
of R.A. No. 180 that was approved on June 21, 1947. Sections 48 and 49 state:
SEC. 48. Limitation upon expenses of candidates. No candidate shall spend for his election
campaign more than the total amount of the emoluments for one year attached to the office for
which he is a candidate.
SEC. 49. Unlawful expenditures. It is unlawful for any person to make or offer to make an
expenditure, or to cause an expenditure to be made or offered to any person to induce one either to
vote or withhold his vote, or to vote for or against any candidate, or any aspirant for the
nomination or selection of a candidate of a political party, and it is unlawful for any person to
solicit or receive directly or indirectly any expenditure for any of the foregoing considerations.
In turn, the above provisions were lifted from Sections 42 and 43 of Commonwealth Act No. 357,
which was approved on August 22, 1938.
Decision
- 51 -
In tracing the legislative history of Sections 100, 101, and 103 of the
OEC, it can be said, therefore, that the intent of our lawmakers has been
consistent through the years: to regulate not just the election expenses of the
candidate but also of his or her contributor/supporter/donor as well as by
including in the aggregate limit of the formers election expenses those
incurred by the latter. The phrase those incurred or caused to be incurred
by the candidate is sufficiently adequate to cover those expenses which are
contributed or donated in the candidates behalf. By virtue of the legal
requirement that a contribution or donation should bear the written
conformity of the candidate, a contributor/supporter/donor certainly qualifies
as any person authorized by such candidate or treasurer. Ubi lex non
distinguit, nec nos distinguere debemus.126 (Where the law does not
distinguish, neither should We.) There should be no distinction in the
application of a law where none is indicated.
The inclusion of the amount contributed by a donor to the candidates
allowable limit of election expenses does not trample upon the free exercise
125
126
Otherwise known as "The 1971 Constitutional Convention Act"(Approved on August 24, 1970).
Plopenio v. Department of Agrarian Reform, G.R. No. 161090, July 4, 2012, 675 SCRA 537, 543.
Decision
- 52 -
of the voters rights of speech and of expression under Section 4, Artticle III
of the Constitution. As a content-neutral regulation,127 the laws concern is
not to curtail the message or content of the advertisement promoting a
particular candidate but to ensure equality between and among aspirants
with deep pockets and those with less financial resources. Any restriction
on speech or expression is only incidental and is no more than necessary to
achieve the substantial governmental interest of promoting equality of
opportunity in political advertising. It bears a clear and reasonable
connection with the constitutional objectives set out in Section 26, Article II,
Section 4, Article IX-C, and Section 1, Art. XIII of the Constitution.128
127
In Chavez v. Gonzales, et al. (569 Phil. 155 [2008]), the Court distinguished between contentbased and content-neutral regulations:
Hence, it is not enough to determine whether the challenged act constitutes some form of restraint
on freedom of speech. A distinction has to be made whether the restraint is (1) a contentneutral regulation, i.e., merely concerned with the incidents of the speech, or one that merely controls the
time, place or manner, and under well defined standards; or (2) a content-based restraint or
censorship, i.e., the restriction is based on the subject matter of the utterance or speech. The cast of the
restriction determines the test by which the challenged act is assayed with.
When the speech restraints take the form of a content-neutral regulation, only a substantial
governmental interest is required for its validity. Because regulations of this type are not designed to
suppress any particular message, they are not subject to the strictest form of judicial scrutiny but
an intermediate approach somewhere between the mere rationality that is required of any other law and
the
compelling
interest
standard
applied
to
content-based
restrictions. The test is
called intermediate because the Court will not merely rubberstamp the validity of a law but also require
that the restrictions be narrowly-tailored to promote an important or significant governmental interest that
is unrelated to the suppression of expression. The intermediate approach has been formulated in this
manner:
A governmental regulation is sufficiently justified if it is within the constitutional power of the
Government, if it furthers an important or substantial governmental interest; if the governmental interest is
unrelated to the suppression of free expression; and if the incident restriction on alleged [freedom of speech
& expression] is no greater than is essential to the furtherance of that interest.
On the other hand, a governmental action that restricts freedom of speech or of the press based on
content is given the strictest scrutiny in light of its inherent and invasive impact. Only when the
challenged act has overcome the clear and present danger rule will it pass constitutional muster, with the
government having the burden of overcoming the presumed unconstitutionality.
Unless the government can overthrow this presumption, the content-based restraint will be struck
down.
With respect to content-based restrictions, the government must also show the type of harm the
speech sought to be restrained would bring about especially the gravity and the imminence of the
threatened harm otherwise the prior restraint will be invalid. Prior restraint on speech based on its content
cannot be justified by hypothetical fears, but only by showing a substantive and imminent evil that has
taken the life of a reality already on ground. As formulated, the question in every case is whether the
words used are used in such circumstances and are of such a nature as to create a clear and present danger
that they will bring about the substantive evils that Congress has a right to prevent. It is a question of
proximity and degree.
The regulation which restricts the speech content must also serve an important or substantial
government interest, which is unrelated to the suppression of free expression.
Also, the incidental restriction on speech must be no greater than what is essential to the
furtherance of that interest. A restriction that is so broad that it encompasses more than what is required to
satisfy the governmental interest will be invalidated. The regulation, therefore, must be reasonable and
narrowly drawn to fit the regulatory purpose, with the least restrictive means undertaken.
Thus, when the prior restraint partakes of a content-neutral regulation, it is subjected to an
intermediate review. A content-based regulation, however, bears a heavy presumption of invalidity and is
measured against the clear and present danger rule. The latter will pass constitutional muster only if
justified by a compelling reason, and the restrictions imposed are neither overbroad nor vague. (p. 204-208)
128
Art. II, Sec. 26. The State shall guarantee equal access to opportunities for public service x x x.
Art. IX-C (4). The Commission may, may during the election period, supervise or regulate the
enjoyment or utilization of all franchises or permits from the operation of transportation and other public
utilities, media of communication or information, all grants, special privileges, or concessions granted by
the Government or any subdivision, agency, or instrumentality thereof, including any government-owned
- 53 -
Decision
WE CONCUR:
J. VELASCO, JR.
Associate Justice
or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal
opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor for public
infonnation campaigns and fonns among candidates in connection with the objective of holding free,
orderly, honest, peaceful, and credible elections.
Art. XIII, Sec. I. The Congress shall give highest priority to the enactment of measures that x x x
reduce x x x political inequalities x x x by equitably diffusing wealth and political power for the common
good.
- 54 -
Decision
~hft:-h ~~~
No part
ARTURO D. BRION
Associate Justice
,,,,..
~?
Associate Justice
~ILLA
JOSE CA
Associate Justice
'
On official leave
ESTELA M. PERLAS-BERNABE
Associate Justice
Associate Justice
No part
FRANCIS H. JARDELEZA
Associate Justice
CERTIFICATION