Republic of the Philippines

SUPREME COURT
Manila

G.R. No. 181613 November 25, 2009

ROSALINDA A. PENERA, Petitioner, vs. COMMISSION ON ELECTIONS and EDGAR T. ANDANAR, Respondents.

CARPIO, J.:

We grant Rosalinda A. Penera’s (Penera) motion for reconsideration of this Court’s Decision of 11 September 2009
(Decision).

The assailed Decision dismissed Penera’s petition and affirmed the Resolution dated 30 July 2008 of the COMELEC En Banc
as well as the Resolution dated 24 July 2007 of the COMELEC Second Division. The Decision disqualified Penera from
running for the office of Mayor in Sta. Monica, Surigao del Norte and declared that the Vice-Mayor should succeed Penera.

In support of her motion for reconsideration, Penera submits the following arguments:

1. Penera was not yet a candidate at the time of the incident under Section 11 of RA 8436 as amended by Section
13 of RA 9369.
2. The petition for disqualification failed to submit convincing and substantial evidence against Penera for violation
of Section 80 of the Omnibus Election Code.
3. Penera never admitted the allegations of the petition for disqualification and has consistently disputed the
charge of premature campaigning.
4. The admission that Penera participated in a motorcade is not the same as admitting she engaged in premature
election campaigning.
Section 79(a) of the Omnibus Election Code defines a "candidate" as "any person aspiring for or seeking an elective public
office, who has filed a certificate of candidacy x x x." The second sentence, third paragraph, Section 15 of RA 8436, as
amended by Section 13 of RA 9369, provides that "[a]ny person who files his certificate of candidacy within [the period for
filing] shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of
candidacy." The immediately succeeding proviso in the same third paragraph states that "unlawful acts or omissions
applicable to a candidate shall take effect only upon the start of the aforesaid campaign period." These two provisions
determine the resolution of this case.

The Decision states that "[w]hen the campaign period starts and [the person who filed his certificate of candidacy]
proceeds with his/her candidacy, his/her intent turning into actuality, we can already consider his/her acts, after the filing
of his/her COC and prior to the campaign period, as the promotion of his/her election as a candidate, hence, constituting
premature campaigning, for which he/she may be disqualified."1

Under the Decision, a candidate may already be liable for premature campaigning after the filing of the certificate of
candidacy but even before the start of the campaign period. From the filing of the certificate of candidacy, even long
before the start of the campaign period, the Decision considers the partisan political acts of a person so filing a certificate
of candidacy "as the promotion of his/her election as a candidate." Thus, such person can be disqualified for premature
campaigning for acts done before the start of the campaign period. In short, the Decision considers a person who files a
certificate of candidacy already a "candidate" even before the start of the campaign period. lawphil

The assailed Decision is contrary to the clear intent and letter of the law.

The Decision reverses Lanot v. COMELEC,2 which held that a person who files a certificate of candidacy is not a
candidate until the start of the campaign period. In Lanot, this Court explained:

Thus, the essential elements for violation of Section 80 of the Omnibus Election Code are: (1) a person engages in an
election campaign or partisan political activity; (2) the act is designed to promote the election or defeat of a particular
candidate or candidates; (3) the act is done outside the campaign period.

The second element requires the existence of a "candidate." Under Section 79(a), a candidate is one who "has filed a
certificate of candidacy" to an elective public office. Unless one has filed his certificate of candidacy, he is not a
"candidate." The third element requires that the campaign period has not started when the election campaign or partisan
political activity is committed.

Assuming that all candidates to a public office file their certificates of candidacy on the last day, which under Section 75 of
the Omnibus Election Code is the day before the start of the campaign period, then no one can be prosecuted for violation
of Section 80 for acts done prior to such last day. Before such last day, there is no "particular candidate or candidates" to
campaign for or against. On the day immediately after the last day of filing, the campaign period starts and Section 80
ceases to apply since Section 80 covers only acts done "outside" the campaign period.

Thus, if all candidates file their certificates of candidacy on the last day, Section 80 may only apply to acts done on such
last day, which is before the start of the campaign period and after at least one candidate has filed his certificate of
candidacy. This is perhaps the reason why those running for elective public office usually file their certificates of candidacy
on the last day or close to the last day.
There is no dispute that Eusebio’s acts of election campaigning or partisan political activities were committed outside of the
campaign period. The only question is whether Eusebio, who filed his certificate of candidacy on 29 December 2003, was a
"candidate" when he committed those acts before the start of the campaign period on 24 March 2004.

Section 11 of Republic Act No. 8436 ("RA 8436") moved the deadline for the filing of certificates of candidacy to 120 days
before election day. Thus, the original deadline was moved from 23 March 2004 to 2 January 2004, or 81 days earlier. The
crucial question is: did this change in the deadline for filing the certificate of candidacy make one who filed his certificate of
candidacy before 2 January 2004 immediately liable for violation of Section 80 if he engaged in election campaign or
partisan political activities prior to the start of the campaign period on 24 March 2004?

Section 11 of RA 8436 provides:

SECTION 11. Official Ballot. – The Commission shall prescribe the size and form of the official ballot which shall contain the
titles of the positions to be filled and/or the propositions to be voted upon in an initiative, referendum or plebiscite. Under
each position, the names of candidates shall be arranged alphabetically by surname and uniformly printed using the same
type size. A fixed space where the chairman of the Board of Election Inspectors shall affix his/her signature to authenticate
the official ballot shall be provided.

Both sides of the ballots may be used when necessary.

For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/ manifestation to participate
in the election shall not be later than one hundred twenty (120) days before the elections: Provided, That, any elective
official, whether national or local, running for any office other than the one which he/she is holding in a permanent
capacity, except for president and vice-president, shall be deemed resigned only upon the start of the campaign period
corresponding to the position for which he/she is running: Provided, further, That, unlawful acts or omissions applicable to
a candidate shall take effect upon the start of the aforesaid campaign period: Provided, finally, That, for purposes of the
May 11, 1998 elections, the deadline for filing of the certificate of candidacy for the positions of President, Vice-President,
Senators and candidates under the party-list system as well as petitions for registration and/or manifestation to participate
in the party-list system shall be on February 9, 1998 while the deadline for the filing of certificate of candidacy for other
positions shall be on March 27, 1998.

The official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas at the price
comparable with that of private printers under proper security measures which the Commission shall adopt. The
Commission may contract the services of private printers upon certification by the National Printing Office/Bangko Sentral
ng Pilipinas that it cannot meet the printing requirements. Accredited political parties and deputized citizens’ arms of the
Commission may assign watchers in the printing, storage and distribution of official ballots.

To prevent the use of fake ballots, the Commission through the Committee shall ensure that the serial number on the
ballot stub shall be printed in magnetic ink that shall be easily detectable by inexpensive hardware and shall be impossible
to reproduce on a photocopying machine, and that identification marks, magnetic strips, bar codes and other technical and
security markings, are provided on the ballot.

The official ballots shall be printed and distributed to each city/municipality at the rate of one (1) ballot for every registered
voter with a provision of additional four (4) ballots per precinct.

Under Section 11 of RA 8436, the only purpose for the early filing of certificates of candidacy is to give ample time for the
printing of official ballots. This is clear from the following deliberations of the Bicameral Conference Committee:

SENATOR GONZALES. Okay. Then, how about the campaign period, would it be the same[,] uniform for local and national
officials?

THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree to retaining it at the present periods.

SENATOR GONZALES. But the moment one files a certificate of candidacy, he’s already a candidate, and there are many
prohibited acts on the part of candidate.

THE CHAIRMAN (REP. TANJUATCO). Unless we. . . .

SENATOR GONZALES. And you cannot say that the campaign period has not yet began (sic).

THE CHAIRMAN (REP. TANJUATCO). If we don’t provide that the filing of the certificate will not bring about one’s being a
candidate.

SENATOR GONZALES. If that’s a fact, the law cannot change a fact.

THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide that the filing of the certificate of candidacy will not result
in that official vacating his position, we can also provide that insofar he is concerned, election period or his being a
candidate will not yet commence. Because here, the reason why we are doing an early filing is to afford enough time to
prepare this machine readable ballots.

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So, with the manifestations from the Commission on Elections, Mr. Chairman, the House Panel will withdraw its proposal
and will agree to the 120-day period provided in the Senate version.

THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr. Chairman.

xxxx

SENATOR GONZALES. How about prohibition against campaigning or doing partisan acts which apply immediately upon
being a candidate?

THE CHAIRMAN (REP. TANJUATCO). Again, since the intention of this provision is just to afford the Comelec enough time
to print the ballots, this provision does not intend to change the campaign periods as presently, or rather election periods
as presently fixed by existing law.

THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be subject to the other prohibition.

THE CHAIRMAN (REP. TANJUATCO). That’s right.

THE ACTING CHAIRMAN (SEN. FERNAN). Okay.

THE CHAIRMAN (REP. TANJUATCO). In other words, actually, there would be no conflict anymore because we are talking
about the 120-day period before election as the last day of filing a certificate of candidacy, election period starts 120 days
also. So that is election period already. But he will still not be considered as a candidate.

Thus, because of the early deadline of 2 January 2004 for purposes of printing of official ballots, Eusebio filed his
certificate of candidacy on 29 December 2003. Congress, however, never intended the filing of a certificate of candidacy
before 2 January 2004 to make the person filing to become immediately a "candidate" for purposes other than the printing
of ballots. This legislative intent prevents the immediate application of Section 80 of the Omnibus Election Code to those
filing to meet the early deadline. The clear intention of Congress was to preserve the "election periods as x x x fixed by
existing law" prior to RA 8436 and that one who files to meet the early deadline "will still not be considered as a
candidate."3 (Emphasis in the original)

Lanot was decided on the ground that one who files a certificate of candidacy is not a candidate until the start of the
campaign period. This ground was based on the deliberations of the legislators who explained the intent of the provisions
of RA 8436, which laid the legal framework for an automated election system. There was no express provision in the
original RA 8436 stating that one who files a certificate of candidacy is not a candidate until the start of the campaign
period.

When Congress amended RA 8436, Congress decided to expressly incorporate the Lanot doctrine into law, realizing that
Lanot merely relied on the deliberations of Congress in holding that —

The clear intention of Congress was to preserve the "election periods as x x x fixed by existing law" prior to RA 8436 and
that one who files to meet the early deadline "will still not be considered as a candidate."4 (Emphasis supplied)

Congress wanted to insure that no person filing a certificate of candidacy under the early deadline required by the
automated election system would be disqualified or penalized for any partisan political act done before the start of the
campaign period. Thus, in enacting RA 9369, Congress expressly wrote the Lanot doctrine into the second sentence, third
paragraph of the amended Section 15 of RA 8436, thus:

xxx

For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition for
registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this
period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of
candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the
aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position, including active
members of the armed forces, and officers and employees in government-owned or -controlled corporations, shall be
considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her
certificate of candidacy. (Boldfacing and underlining supplied)

Congress elevated the Lanot doctrine into a statute by specifically inserting it as the second sentence of the third
paragraph of the amended Section 15 of RA 8436, which cannot be annulled by this Court except on the sole ground of its
unconstitutionality. The Decision cannot reverse Lanot without repealing this second sentence, because to reverse Lanot
would mean repealing this second sentence.

The assailed Decision, however, in reversing Lanot does not claim that this second sentence or any portion of Section 15 of
RA 8436, as amended by RA 9369, is unconstitutional. In fact, the Decision considers the entire Section 15 good law. Thus,
the Decision is self-contradictory — reversing Lanot but maintaining the constitutionality of the second sentence, which
embodies the Lanot doctrine. In so doing, the Decision is irreconcilably in conflict with the clear intent and letter of the
second sentence, third paragraph, Section 15 of RA 8436, as amended by RA 9369.

3
In enacting RA 9369, Congress even further clarified the first proviso in the third paragraph of Section 15 of RA 8436. The
original provision in RA 8436 states —

x x x Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of the
aforesaid campaign period, x x x.

In RA 9369, Congress inserted the word "only" so that the first proviso now reads —

x x x Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the
aforesaid campaign period x x x. (Emphasis supplied)

Thus, Congress not only reiterated but also strengthened its mandatory directive that election offenses can be committed
by a candidate "only" upon the start of the campaign period. This clearly means that before the start of the campaign
period, such election offenses cannot be so committed.

When the applicable provisions of RA 8436, as amended by RA 9369, are read together, these provisions of law do not
consider Penera a candidate for purposes other than the printing of ballots, until the start of the campaign period. There is
absolutely no room for any other interpretation.

We quote with approval the Dissenting Opinion of Justice Antonio T. Carpio:

x x x The definition of a "candidate" in Section 79(a) of the Omnibus Election Code should be read together with the
amended Section 15 of RA 8436. A "‘candidate’ refers to any person aspiring for or seeking an elective public office, who
has filed a certificate of candidacy by himself or through an accredited political party, aggroupment or coalition of parties."
However, it is no longer enough to merely file a certificate of candidacy for a person to be considered a candidate because
"any person who files his certificate of candidacy within [the filing] period shall only be considered a candidate at the start
of the campaign period for which he filed his certificate of candidacy." Any person may thus file a certificate of candidacy
on any day within the prescribed period for filing a certificate of candidacy yet that person shall be considered a candidate,
for purposes of determining one’s possible violations of election laws, only during the campaign period. Indeed, there is no
"election campaign" or "partisan political activity" designed to promote the election or defeat of a particular candidate or
candidates to public office simply because there is no "candidate" to speak of prior to the start of the campaign period.
Therefore, despite the filing of her certificate of candidacy, the law does not consider Penera a candidate at the time of the
questioned motorcade which was conducted a day before the start of the campaign period. x x x

The campaign period for local officials began on 30 March 2007 and ended on 12 May 2007. Penera filed her certificate of
candidacy on 29 March 2007. Penera was thus a candidate on 29 March 2009 only for purposes of printing the ballots. On
29 March 2007, the law still did not consider Penera a candidate for purposes other than the printing of ballots. Acts
committed by Penera prior to 30 March 2007, the date when she became a "candidate," even if constituting election
campaigning or partisan political activities, are not punishable under Section 80 of the Omnibus Election Code. Such acts
are within the realm of a citizen’s protected freedom of expression. Acts committed by Penera within the campaign period
are not covered by Section 80 as Section 80 punishes only acts outside the campaign period.5

The assailed Decision gives a specious reason in explaining away the first proviso in the third paragraph, the amended
Section 15 of RA 8436 that election offenses applicable to candidates take effect only upon the start of the campaign
period. The Decision states that:

x x x [T]he line in Section 15 of Republic Act No. 8436, as amended, which provides that "any unlawful act or omission
applicable to a candidate shall take effect only upon the start of the campaign period," does not mean that the acts
constituting premature campaigning can only be committed, for which the offender may be disqualified, during the
campaign period. Contrary to the pronouncement in the dissent, nowhere in said proviso was it stated that campaigning
before the start of the campaign period is lawful, such that the offender may freely carry out the same with impunity.

As previously established, a person, after filing his/her COC but prior to his/her becoming a candidate (thus, prior to the
start of the campaign period), can already commit the acts described under Section 79(b) of the Omnibus Election Code as
election campaign or partisan political activity, However, only after said person officially becomes a candidate, at the
beginning of the campaign period, can said acts be given effect as premature campaigning under Section 80 of the
Omnibus Election Code. Only after said person officially becomes a candidate, at the start of the campaign period, can
his/her disqualification be sought for acts constituting premature campaigning. Obviously, it is only at the start of the
campaign period, when the person officially becomes a candidate, that the undue and iniquitous advantages of his/her
prior acts, constituting premature campaigning, shall accrue to his/her benefit. Compared to the other candidates who are
only about to begin their election campaign, a candidate who had previously engaged in premature campaigning already
enjoys an unfair headstart in promoting his/her candidacy.6(Emphasis supplied)

It is a basic principle of law that any act is lawful unless expressly declared unlawful by law. This is specially true to
expression or speech, which Congress cannot outlaw except on very narrow grounds involving clear, present and imminent
danger to the State. The mere fact that the law does not declare an act unlawful ipso facto means that the act is lawful.
Thus, there is no need for Congress to declare in Section 15 of RA 8436, as amended by RA 9369, that political partisan
activities before the start of the campaign period are lawful. It is sufficient for Congress to state that "any unlawful act or
omission applicable to a candidate shall take effect only upon the start of the campaign period." The only inescapable and
logical result is that the same acts, if done before the start of the campaign period, are lawful.

4
In layman’s language, this means that a candidate is liable for an election offense only for acts done during the campaign
period, not before. The law is clear as daylight — any election offense that may be committed by a candidate under any
election law cannot be committed before the start of the campaign period. In ruling that Penera is liable for premature
campaigning for partisan political acts before the start of the campaigning, the assailed Decision ignores the clear and
express provision of the law.

The Decision rationalizes that a candidate who commits premature campaigning can be disqualified or prosecuted only
after the start of the campaign period. This is not what the law says. What the law says is "any unlawful act or omission
applicable to a candidate shall take effect only upon the start of the campaign period." The plain meaning of this provision
is that the effective date when partisan political acts become unlawful as to a candidate is when the campaign period
starts. Before the start of the campaign period, the same partisan political acts are lawful.

The law does not state, as the assailed Decision asserts, that partisan political acts done by a candidate before the
campaign period are unlawful, but may be prosecuted only upon the start of the campaign period. Neither does the law
state that partisan political acts done by a candidate before the campaign period are temporarily lawful, but becomes
unlawful upon the start of the campaign period. This is clearly not the language of the law. Besides, such a law as
envisioned in the Decision, which defines a criminal act and curtails freedom of expression and speech, would be void for
vagueness.

Congress has laid down the law — a candidate is liable for election offenses only upon the start of the campaign period.
This Court has no power to ignore the clear and express mandate of the law that "any person who files his certificate of
candidacy within [the filing] period shall only be considered a candidate at the start of the campaign period for which he
filed his certificate of candidacy." Neither can this Court turn a blind eye to the express and clear language of the law that
"any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period."

The forum for examining the wisdom of the law, and enacting remedial measures, is not this Court but the Legislature.
This Court has no recourse but to apply a law that is as clear, concise and express as the second sentence, and its
immediately succeeding proviso, as written in the third paragraph of Section 15 of RA 8436, as amended by RA 9369.

WHEREFORE, we GRANT petitioner Rosalinda A. Penera’s Motion for Reconsideration. We SET ASIDE the Decision of this
Court in G.R. No. 181613 promulgated on 11 September 2009, as well as the Resolutions dated 24 July 2007 and 30
January 2008 of the COMELEC Second Division and the COMELEC En Banc, respectively, in SPA No. 07-224. Rosalinda A.
Penera shall continue as Mayor of Sta. Monica, Surigao del Norte.

SO ORDERED.

G.R. No. 205728 January 21, 2015

THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. BISHOP VICENTE M. NAVARRA and THE
BISHOP HIMSELF IN HIS PERSONAL CAPACITY, Petitioners,
vs.
COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF BACOLOD CITY, ATTY. MAVIL V.
MAJARUCON, Respondents. LEONEN, J.:

"The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority
emanates from them." – Article II, Section 1, Constitution

All governmental authority emanates from our people. No unreasonable restrictions of the fundamental and preferred right
to expression of the electorate during political contests no matter how seemingly benign will be tolerated.

This case defines the extent that our people may shape the debates during elections. It is significant and of first
impression. We are asked to decide whether the Commission on Elections (COMELEC) has the competence to limit
expressions made by the citizens — who are not candidates — during elections.

Before us is a special civil action for certiorari and prohibition with application for preliminary injunction and temporary
restraining order1 under Rule 65 of the Rules of Court seeking to nullify COMELEC’s Notice to Remove Campaign
Materials2 dated February 22, 2013 and letter3 issued on February 27, 2013.

The facts are not disputed.

On February 21, 2013, petitioners posted two (2) tarpaulins within a private compound housing the San Sebastian
Cathedral of Bacolod. Each tarpaulin was approximately six feet (6') by ten feet (10') in size. They were posted on the
front walls of the cathedral within public view. The first tarpaulin contains the message "IBASURA RH Law" referring to the
Reproductive Health Law of 2012 or Republic Act No. 10354. The second tarpaulin is the subject of the present case.4 This
tarpaulin contains the heading "Conscience Vote" and lists candidates as either "(Anti-RH) Team Buhay" with a check
mark, or "(Pro-RH) Team Patay" with an "X" mark.5 The electoral candidates were classified according to their vote on the
adoption of Republic Act No. 10354, otherwise known as the RH Law.6Those who voted for the passing of the law were
classified by petitioners as comprising "Team Patay," while those who voted against it form "Team Buhay":7

TEAM BUHAY TEAM PATAY

5
 Estrada, JV Angara, Juan Edgardo

Honasan, Gregorio Casiño, Teddy

Magsaysay, Mitos Cayetano, Alan Peter

Pimentel, Koko Enrile, Jackie

Trillanes, Antonio Escudero, Francis

Villar, Cynthia Hontiveros, Risa

Party List Buhay Legarda, Loren

Party List Ang Pamilya Party List Gabriela

Party List Akbayan

Party List Bayan Muna

Party List Anak Pawis

During oral arguments, respondents conceded that the tarpaulin was neither sponsored nor paid for by any candidate.
Petitioners also conceded that the tarpaulin contains names ofcandidates for the 2013 elections, but not of politicians who
helped in the passage of the RH Law but were not candidates for that election.

On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her capacity as Election Officer of Bacolod City, issued a
Notice to Remove Campaign Materials8 addressed to petitioner Most Rev. Bishop Vicente M. Navarra. The election officer
ordered the tarpaulin’s removal within three (3) days from receipt for being oversized. COMELEC Resolution No. 9615
provides for the size requirement of two feet (2’) by three feet (3’).9

On February 25, 2013, petitioners replied10 requesting, among others, that (1) petitioner Bishop be given a definite ruling
by COMELEC Law Department regarding the tarpaulin; and (2) pending this opinion and the availment of legal remedies,
the tarpaulin be allowed to remain.11

On February 27, 2013, COMELEC Law Department issued a letter12 ordering the immediate removal of the tarpaulin;
otherwise, it will be constrained to file an election offense against petitioners. The letter of COMELEC Law Department was
silenton the remedies available to petitioners. The letter provides as follows:

Dear Bishop Navarra:

It has reached this Office that our Election Officer for this City, Atty. Mavil Majarucon, had already given you notice on
February 22, 2013 as regards the election propaganda material posted on the church vicinity promoting for or against the
candidates and party-list groups with the following names and messages, particularly described as follows:

Material size : six feet (6’) by ten feet (10’)

Description : FULL COLOR TARPAULIN
Image of : SEE ATTACHED PICTURES
Message : CONSCIENCE VOTE (ANTI RH) TEAM
BUHAY; (PRO RH) TEAM PATAY
Location : POSTED ON THE CHURCH VICINITY
OF THE DIOCESE OF BACOLOD CITY
The three (3) – day notice expired on February 25, 2013.

Considering that the above-mentioned material is found to be in violation of Comelec Resolution No. 9615 promulgated on
January 15, 2013 particularly on the size (even with the subsequent division of the said tarpaulin into two), as the lawful
size for election propaganda material is only two feet (2’) by three feet (3’), please order/cause the immediate removal of
said election propaganda material, otherwise, we shall be constrained to file an election offense case against you.

We pray that the Catholic Church will be the first institution to help the Commission on Elections inensuring the conduct of
peaceful, orderly, honest and credible elections.

Thank you and God Bless!

[signed]
ATTY. ESMERALDA AMORA-LADRA
Director IV13

Concerned about the imminent threatof prosecution for their exercise of free speech, petitioners initiated this case through
this petition for certiorari and prohibition with application for preliminary injunction and temporary restraining order.14 They
question respondents’ notice dated February 22, 2013 and letter issued on February 27, 2013. They pray that: (1) the
petition be given due course; (2) a temporary restraining order (TRO) and/or a writ of preliminary injunction be issued
restraining respondents from further proceeding in enforcing their orders for the removal of the Team Patay tarpaulin; and
(3) after notice and hearing, a decision be rendered declaring the questioned orders of respondents as unconstitutional
and void, and permanently restraining respondents from enforcing them or any other similar order.15

6
After due deliberation, this court, on March 5, 2013, issued a temporary restraining order enjoining respondents from
enforcing the assailed notice and letter, and set oral arguments on March 19, 2013.16

On March 13, 2013, respondents filed their comment17 arguing that (1) a petition for certiorari and prohibition under Rule
65 of the Rules of Court filed before this court is not the proper remedy to question the notice and letter of respondents;
and (2) the tarpaulin is an election propaganda subject to regulation by COMELEC pursuant to its mandate under Article
IX-C, Section 4 of the Constitution. Hence, respondents claim that the issuances ordering its removal for being oversized
are valid and constitutional.18

During the hearing held on March 19, 2013, the parties were directed to file their respective memoranda within 10 days or
by April 1, 2013, taking into consideration the intervening holidays.19

The issues, which also served as guide for the oral arguments, are:20

I. WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY ELECTION OFFICER MAJARUCON AND THE 27 FEBRUARY 2013
ORDER BY THE COMELEC LAW DEPARTMENT ARE CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE
COMELEC WHICH WOULD WARRANT A REVIEW OF THIS COURT VIA RULE 65 PETITION[;]

A. WHETHER PETITIONERS VIOLATED THE HIERARCHY OF COURTS DOCTRINE AND

JURISPRUDENTIAL RULES GOVERNING APPEALS FROM COMELEC DECISIONS;

B. ASSUMING ARGUENDO THAT THE AFOREMENTIONED ORDERS ARE NOT CONSIDERED

JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE COMELEC, WHETHER THERE ARE EXCEPTIONAL
CIRCUMSTANCES WHICH WOULD ALLOW THIS COURT TO TAKE COGNIZANCE OF THE CASE[;]

II. WHETHER IT IS RELEVANT TODETERMINE WHETHER THE TARPAULINS ARE "POLITICAL ADVERTISEMENT" OR
"ELECTION PROPAGANDA" CONSIDERING THAT PETITIONER IS NOT A POLITICAL CANDIDATE[;]

III. WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION (PROTECTED SPEECH), OR ELECTION
PROPAGANDA/POLITICAL ADVERTISEMENT[;]

A. ASSUMING ARGUENDO THAT THE TARPAULINS ARE A FORM OF EXPRESSION, WHETHER THE
COMELEC POSSESSES THE AUTHORITY TO REGULATE THE SAME[;]

B. WHETHER THIS FORM OF EXPRESSION MAY BE REGULATED[;]

IV. WHETHER THE 22 FEBRUARY 2013 NOTICE/ ORDER BY ELECTION OFFICER MAJARUCON AND THE 27 FEBRUARY
2013 ORDER BY THE COMELEC LAW DEPARTMENT VIOLATES THE PRINCIPLE OF SEPARATION OF CHURCH AND
STATE[;] [AND]

V. WHETHER THE ACTION OF THE PETITIONERS IN POSTING ITS TARPAULIN VIOLATES THE CONSTITUTIONAL
PRINCIPLE OF SEPARATION OF CHURCH AND STATE.

I
PROCEDURAL ISSUES

I.A This court’s jurisdiction over COMELEC cases

Respondents ask that this petition be dismissed on the ground that the notice and letter are not final orders, decisions,
rulings, or judgments of the COMELEC En Banc issued in the exercise of its adjudicatory powers, reviewable via Rule 64 of
the Rules of Court.21

Rule 64 is not the exclusive remedy for all acts of the COMELEC. Rule 65 is applicable especially to raise objections relating
to a grave abuse of discretion resulting in the ouster of jurisdiction.22 As a special civil action, there must also be a showing
that there be no plain, speedy, and adequate remedy in the ordinary course of the law.

Respondents contend that the assailed notice and letter are not subject to review by this court, whose power to review is
"limited only to final decisions, rulings and orders of the COMELEC En Banc rendered in the exercise of its adjudicatory or
quasi-judicial power."23 Instead, respondents claim that the assailed notice and letter are reviewable only by COMELEC
itself pursuant to Article IX-C, Section 2(3) of the Constitution24 on COMELEC’s power to decide all questions affecting
elections.25 Respondents invoke the cases of Ambil, Jr. v. COMELEC,26 Repol v. COMELEC,27 Soriano, Jr. v.
COMELEC,28 Blanco v. COMELEC,29 and Cayetano v. COMELEC,30 to illustrate how judicialintervention is limited to final
decisions, orders, rulings and judgments of the COMELEC En Banc.31

These cases are not applicable.

In Ambil, Jr. v. COMELEC, the losing party in the gubernatorial race of Eastern Samar filed the election protest.32 At issue
was the validity of the promulgation of a COMELEC Division resolution.33 No motion for reconsideration was filed to raise
this issue before the COMELEC En Banc. This court declared that it did not have jurisdiction and clarified:

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We have interpreted [Section 7, Article IX-A of the Constitution]34 to mean final orders, rulings and decisionsof the
COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers." This decision must be a final decision or
resolution of the Comelec en banc, not of a division, certainly not an interlocutory order of a division.The Supreme Court
has no power to review viacertiorari, an interlocutory order or even a final resolution of a Division of the Commission on
Elections.35 (Emphasis in the original, citations omitted)

However, in the next case cited by respondents, Repol v. COMELEC, this court provided exceptions to this general rule.
Repolwas another election protest case, involving the mayoralty elections in Pagsanghan, Samar.36 This time, the case was
brought to this court because the COMELEC First Division issued a status quo ante order against the Regional Trial Court
executing its decision pending appeal.37 This court’s ponencia discussed the general rule enunciated in Ambil, Jr. that it
cannot take jurisdiction to review interlocutory orders of a COMELEC Division.38However, consistent with ABS-CBN
Broadcasting Corporation v. COMELEC,39 it clarified the exception:

This Court, however, has ruled in the past that this procedural requirement [of filing a motion for reconsideration] may be
glossed over to prevent miscarriage of justice, when the issue involves the principle of social justice or the protection of
labor, when the decision or resolution sought to be set aside is a nullity, or when the need for relief is extremely urgent
and certiorari is the only adequate and speedy remedy available.40

Based on ABS-CBN, this court could review orders and decisions of COMELEC — in electoral contests — despite not being
reviewed by the COMELEC En Banc, if:

1) It will prevent the miscarriage of justice;

2) The issue involves a principle of social justice;
3) The issue involves the protection of labor;
4) The decision or resolution sought tobe set aside is a nullity; or
5) The need for relief is extremely urgent and certiorari is the only adequate and speedy remedy available.
Ultimately, this court took jurisdiction in Repoland decided that the status quo anteorder issued by the COMELEC Division
was unconstitutional.

Respondents also cite Soriano, Jr. v. COMELEC.This case was also an election protest case involving candidates for the city
council of Muntinlupa City.41 Petitioners in Soriano, Jr.filed before this court a petition for certiorari against an interlocutory
order of the COMELEC First

Division.42 While the petition was pending in this court, the COMELEC First Division dismissed the main election protest
case.43 Sorianoapplied the general rule that only final orders should be questioned with this court. The ponencia for this
court, however, acknowledged the exceptions to the general rule in ABS-CBN.44

Blanco v. COMELEC, another case cited by respondents, was a disqualification case of one of the mayoralty candidates of
Meycauayan, Bulacan.45 The COMELEC Second Division ruled that petitioner could not qualify for the 2007 elections due to
the findings in an administrative case that he engaged in vote buying in the 1995 elections. 46No motion for reconsideration
was filed before the COMELEC En Banc. This court, however, took cognizance of this case applying one of the exceptions
in ABS-CBN: The assailed resolution was a nullity.47

Finally, respondents cited Cayetano v. COMELEC, a recent election protest case involving the mayoralty candidates of
Taguig City.48 Petitioner assailed a resolution of the COMELEC denying her motion for reconsideration to dismiss the
election protest petition for lack of form and substance.49 This court clarified the general rule and refused to take
cognizance of the review of the COMELEC order. While recognizing the exceptions in ABS-CBN, this court ruled that these
exceptions did not apply.50

Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited by respondents do not operate as precedents to oust this court
from taking jurisdiction over this case. All these cases cited involve election protests or disqualification cases filed by the
losing candidate against the winning candidate.

In the present case, petitioners are not candidates seeking for public office. Their petition is filed to assert their
fundamental right to expression.

Furthermore, all these cases cited by respondents pertained to COMELEC’s exercise of its adjudicatory or quasi-judicial
power. This case pertains to acts of COMELEC in the implementation of its regulatory powers. When it issued the notice
and letter, the COMELEC was allegedly enforcingelection laws.

I.B Rule 65, grave abuse of discretion, and limitations on political speech

The main subject of thiscase is an alleged constitutional violation: the infringement on speech and the "chilling effect"
caused by respondent COMELEC’s notice and letter.

Petitioners allege that respondents committed grave abuse of discretion amounting to lack or excess of jurisdiction in
issuing the notice51 dated February 22,2013 and letter52 dated February 27, 2013 ordering the removal of the
tarpaulin.53 It is their position that these infringe on their fundamental right to freedom of expression and violate the
principle of separation of church and state and, thus, are unconstitutional.54

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The jurisdiction of this court over the subject matter is determined from the allegations in the petition. Subject matter
jurisdiction is defined as the authority "to hear and determine cases of the general class to which the proceedings in
question belong and is conferred by the sovereign authority which organizes the court and defines its powers." 55Definitely,
the subject matter in this case is different from the cases cited by respondents.

Nothing less than the electorate’s political speech will be affected by the restrictions imposed by COMELEC. Political speech
is motivated by the desire to be heard and understood, to move people to action. It is concerned with the sovereign right
to change the contours of power whether through the election of representatives in a republican government or the
revision of the basic text of the Constitution. The zeal with which we protect this kind of speech does not depend on our
evaluation of the cogency of the message. Neither do we assess whether we should protect speech based on the motives
of COMELEC. We evaluate restrictions on freedom of expression from their effects. We protect both speech and medium
because the quality of this freedom in practice will define the quality of deliberation in our democratic society.

COMELEC’s notice and letter affect preferred speech. Respondents’ acts are capable of repetition. Under the conditions in
which it was issued and in view of the novelty of this case,it could result in a "chilling effect" that would affect other
citizens who want their voices heard on issues during the elections. Other citizens who wish to express their views
regarding the election and other related issues may choose not to, for fear of reprisal or sanction by the COMELEC. Direct
resort to this court is allowed to avoid such proscribed conditions. Rule 65 is also the procedural platform for raising grave
abuse of discretion.

Both parties point to constitutional provisions on jurisdiction. For petitioners, it referred to this court’s expanded exercise of
certiorari as provided by the Constitution as follows:

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether ornot there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.56(Emphasis supplied)

On the other hand, respondents relied on its constitutional mandate to decide all questions affectingelections. Article IX-C,
Section 2(3) of the Constitution, provides:

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

....

(3) Decide, except those involving the right to vote, all questions affecting elections, including determination of the number
and location of polling places, appointment of election officials and inspectors, and registration of voters.

Respondents’ reliance on this provision is misplaced.

We are not confronted here with the question of whether the COMELEC, in its exercise of jurisdiction, gravely abused it.
We are confronted with the question as to whether the COMELEC had any jurisdiction at all with its acts threatening
imminent criminal action effectively abridging meaningful political speech.

It is clear that the subject matter of the controversy is the effect of COMELEC’s notice and letter on free speech. This does
not fall under Article IX-C, Section 2(3) of the Constitution. The use of the word "affecting" in this provision cannot be
interpreted to mean that COMELEC has the exclusive power to decide any and allquestions that arise during elections.
COMELEC’s constitutional competencies during elections should not operate to divest this court of its own jurisdiction.

The more relevant provision for jurisdiction in this case is Article VIII, Section 5(1) of the Constitution.This provision
provides for this court’s original jurisdiction over petitions for certiorari and prohibition. This should be read alongside the
expanded jurisdiction of the court in Article VIII, Section 1 of the Constitution.

Certainly, a breach of the fundamental right of expression by COMELEC is grave abuse of discretion. Thus, the
constitutionality of the notice and letter coming from COMELEC is within this court’s power to review.

During elections, we have the power and the duty to correct any grave abuse of discretion or any act tainted with
unconstitutionality on the part of any government branch or instrumentality. This includes actions by the COMELEC.
Furthermore, it is this court’s constitutional mandate to protect the people against government’s infringement of their
fundamental rights. This constitutional mandate out weighs the jurisdiction vested with the COMELEC.

It will, thus, be manifest injustice if the court does not take jurisdiction over this case.

I.C Hierarchy of courts

This brings us to the issue of whether petitioners violated the doctrine of hierarchy of courts in directly filing their petition
before this court.

Respondents contend that petitioners’ failure to file the proper suit with a lower court of concurrent jurisdiction is sufficient
ground for the dismissal of their petition.57 They add that observation of the hierarchy of courts is compulsory, citing Heirs

9
of Bertuldo Hinog v. Melicor.58 While respondents claim that while there are exceptions to the general rule on hierarchy of
courts, none of these are present in this case.59

On the other hand, petitioners cite Fortich v. Corona60 on this court’s discretionary power to take cognizance of a petition
filed directly to it if warranted by "compelling reasons, or [by] the nature and importance of the issues raised. . .
."61 Petitioners submit that there are "exceptional and compelling reasons to justify a direct resort [with] this Court."62

In Bañez, Jr. v. Concepcion,63 we explained the necessity of the application of the hierarchy of courts:

The Court must enjoin the observance of the policy on the hierarchy of courts, and now affirms that the policy is not to be
ignored without serious consequences. The strictness of the policy is designed to shield the Court from having to deal with
causes that are also well within the competence of the lower courts, and thus leave time to the Court to deal with the
more fundamental and more essential tasks that the Constitution has assigned to it. The Court may act on petitions for the
extraordinary writs of certiorari, prohibition and mandamus only when absolutely necessary or when serious and important
reasons exist to justify an exception to the policy.64

In Bañez, we also elaborated on the reasons why lower courts are allowed to issue writs of certiorari, prohibition, and
mandamus, citing Vergara v. Suelto:65

The Supreme Court is a court of lastresort, and must so remain if it is to satisfactorily perform the functions assigned to it
by the fundamental charter and immemorial tradition. It cannot and should not be burdened with the task of dealing with
causes in the first instance. Its original jurisdiction to issue the so-called extraordinary writs should be exercised only
where absolutely necessary or where serious and important reasons exist therefore. Hence, that jurisdiction should
generally be exercised relative to actions or proceedings before the Court of Appeals, or before constitutional or other
tribunals, bodies or agencies whose acts for some reason or another are not controllable by the Court of Appeals. Where
the issuance of an extraordinary writ is also within the competence of the Court of Appeals or a Regional Trial Court, it is in
either of these courts that the specific action for the writ’s procurement must be presented. This is and should continue to
be the policy in this regard, a policy that courts and lawyers must strictly observe.66 (Emphasis omitted)

The doctrine that requires respect for the hierarchy of courts was created by this court to ensure that every level of the
judiciary performs its designated roles in an effective and efficient manner. Trial courts do not only determine the facts
from the evaluation of the evidence presented before them. They are likewise competent to determine issues of law which
may include the validity of an ordinance, statute, or even an executive issuance in relation to the Constitution. 67 To
effectively perform these functions, they are territorially organized into regions and then into branches. Their writs
generally reach within those territorial boundaries. Necessarily, they mostly perform the all-important task of inferring the
facts from the evidence as these are physically presented before them. In many instances, the facts occur within their
territorial jurisdiction, which properly present the ‘actual case’ that makes ripe a determination of the constitutionality of
such action. The consequences, of course, would be national in scope. There are, however, some cases where resort to
courts at their level would not be practical considering their decisions could still be appealed before the higher courts, such
as the Court of Appeals.

The Court of Appeals is primarily designed as an appellate court that reviews the determination of facts and law made by
the trial courts. It is collegiate in nature. This nature ensures more standpoints in the review of the actions of the trial
court. But the Court of Appeals also has original jurisdiction over most special civil actions. Unlike the trial courts, its writs
can have a nationwide scope. It is competent to determine facts and, ideally, should act on constitutional issues thatmay
not necessarily be novel unless there are factual questions to determine.

This court, on the other hand, leads the judiciary by breaking new ground or further reiterating — in the light of new
circumstances or in the light of some confusions of bench or bar — existing precedents. Rather than a court of first
instance or as a repetition of the actions of the Court of Appeals, this court promulgates these doctrinal devices in order
that it truly performs that role.

In other words, the Supreme Court’s role to interpret the Constitution and act in order to protect constitutional rights when
these become exigent should not be emasculated by the doctrine in respect of the hierarchy of courts. That has never
been the purpose of such doctrine.

Thus, the doctrine of hierarchy of courts is not an iron-clad rule.68 This court has "full discretionary power to take
cognizance and assume jurisdiction [over] special civil actions for certiorari . . .filed directly with it for exceptionally
compelling reasons69 or if warranted by the nature of the issues clearly and specifically raised in the petition."70 As
correctly pointed out by petitioners,71 we have provided exceptions to this doctrine:

First, a direct resort to this court is allowed when there are genuine issues of constitutionality that must be addressed at
the most immediate time. A direct resort to this court includes availing of the remedies of certiorari and prohibition toassail
the constitutionality of actions of both legislative and executive branches of the government.72

In this case, the assailed issuances of respondents prejudice not only petitioners’ right to freedom of expression in the
present case, but also of others in future similar cases. The case before this court involves an active effort on the part of
the electorate to reform the political landscape. This has become a rare occasion when private citizens actively engage the
public in political discourse. To quote an eminent political theorist:

10
[T]he theory of freedom of expression involves more than a technique for arriving at better social judgments through
democratic procedures. It comprehends a vision of society, a faith and a whole way of life. The theory grew out of an age
that was awakened and invigorated by the idea of new society in which man's mind was free, his fate determined by his
own powers of reason, and his prospects of creating a rational and enlightened civilization virtually unlimited. It is put
forward as a prescription for attaining a creative, progressive, exciting and intellectually robust community. It contemplates
a mode of life that, through encouraging toleration, skepticism, reason and initiative, will allow man to realize his full
potentialities.It spurns the alternative of a society that is tyrannical, conformist, irrational and stagnant.73

In a democracy, the citizen’s right tofreely participate in the exchange of ideas in furtherance of political decision-making is
recognized. It deserves the highest protection the courts may provide, as public participation in nation-building isa
fundamental principle in our Constitution. As such, their right to engage in free expression of ideas must be given
immediate protection by this court.

A second exception is when the issuesinvolved are of transcendental importance.74 In these cases, the imminence and
clarity of the threat to fundamental constitutional rights outweigh the necessity for prudence. The doctrine relating to
constitutional issues of transcendental importance prevents courts from the paralysis of procedural niceties when clearly
faced with the need for substantial protection.

In the case before this court, there is a clear threat to the paramount right of freedom of speech and freedom of
expression which warrants invocation of relief from this court. The principles laid down in this decision will likely influence
the discourse of freedom of speech in the future, especially in the context of elections. The right to suffrage not only
includes the right to vote for one’s chosen candidate, but also the right to vocalize that choice to the public in general, in
the hope of influencing their votes. It may be said that in an election year, the right to vote necessarily includes the right
to free speech and expression. The protection of these fundamental constitutional rights, therefore, allows for the
immediate resort to this court.

Third, cases of first impression75 warrant a direct resort to this court. In cases of first impression, no jurisprudence yet
exists that will guide the lower courts on this matter. In Government of the United States v. Purganan,76 this court took
cognizance of the case as a matter of first impression that may guide the lower courts:

In the interest of justice and to settle once and for all the important issue of bail in extradition proceedings, we deem it
best to take cognizance of the present case. Such proceedings constitute a matter of first impression over which there is,
as yet, no local jurisprudence to guide lower courts.77

This court finds that this is indeed a case of first impression involving as it does the issue of whether the right of suffrage
includes the right of freedom of expression. This is a question which this court has yet to provide substantial answers to,
through jurisprudence. Thus, direct resort to this court is allowed.

Fourth, the constitutional issues raisedare better decided by this court. In Drilon v. Lim,78 this court held that:

. . . it will be prudent for such courts, if only out of a becoming modesty, to defer to the higher judgmentof this Court in
the consideration of its validity, which is better determined after a thorough deliberation by a collegiate body and with the
concurrence of the majority of those who participated in its discussion.79 (Citation omitted)

In this case, it is this court, with its constitutionally enshrined judicial power, that can rule with finality on whether
COMELEC committed grave abuse of discretion or performed acts contrary to the Constitution through the assailed
issuances.

Fifth, the time element presented in this case cannot be ignored. This case was filed during the 2013 election period.
Although the elections have already been concluded, future cases may be filed that necessitate urgency in its resolution.
Exigency in certain situations would qualify as an exception for direct resort to this court.

Sixth, the filed petition reviews the act of a constitutional organ. COMELEC is a constitutional body. In Albano v.
Arranz,80 cited by petitioners, this court held that "[i]t is easy to realize the chaos that would ensue if the Court of First
Instance ofeach and every province were [to] arrogate itself the power to disregard, suspend, or contradict any order of
the Commission on Elections: that constitutional body would be speedily reduced to impotence."81

In this case, if petitioners sought to annul the actions of COMELEC through pursuing remedies with the lower courts, any
ruling on their part would not have been binding for other citizens whom respondents may place in the same situation.
Besides, thiscourt affords great respect to the Constitution and the powers and duties imposed upon COMELEC. Hence, a
ruling by this court would be in the best interest of respondents, in order that their actions may be guided accordingly in
the future.

Seventh, petitioners rightly claim that they had no other plain, speedy, and adequate remedy in the ordinary course of law
that could free them from the injurious effects of respondents’ acts in violation of their right to freedom of expression.

In this case, the repercussions of the assailed issuances on this basic right constitute an exceptionally compelling reason to
justify the direct resort to this court. The lack of other sufficient remedies in the course of law alone is sufficient ground to
allow direct resort to this court.

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Eighth, the petition includes questionsthat are "dictated by public welfare and the advancement of public policy, or
demanded by the broader interest of justice, or the orders complained of were found to be patent nullities, or the appeal
was consideredas clearly an inappropriate remedy."82 In the past, questions similar to these which this court ruled on
immediately despite the doctrine of hierarchy of courts included citizens’ right to bear arms,83 government contracts
involving modernization of voters’ registration lists,84 and the status and existence of a public office.85

This case also poses a question of similar, if not greater import. Hence, a direct action to this court is permitted.

It is not, however, necessary that all of these exceptions must occur at the same time to justify a direct resort to this
court. While generally, the hierarchy of courts is respected, the present case falls under the recognized exceptions and, as
such, may be resolved by this court directly.

I.D The concept of a political question

Respondents argue further that the size limitation and its reasonableness is a political question, hence not within the ambit
of this court’s power of review. They cite Justice Vitug’s separate opinion in Osmeña v. COMELEC86 to support their
position:

It might be worth mentioning that Section 26, Article II, of the Constitution also states that the "State shall guarantee
equal access to opportunities for public service, and prohibit political dynasties as may be defined by law." I see neither
Article IX (C)(4) nor Section 26, Article II, of the Constitution to be all that adversarial or irreconcilably inconsistent with
the right of free expression. In any event, the latter, being one of general application, must yield to the specific demands
of the Constitution. The freedom of expression concededly holds, it is true, a vantage point in hierarchy of constitutionally-
enshrined rights but, like all fundamental rights, it is not without limitations.

The case is not about a fight between the "rich" and the "poor" or between the "powerful" and the "weak" in our society
but it is to me a genuine attempt on the part of Congress and the Commission on Elections to ensure that all candidates
are given an equal chance to media coverage and thereby be equally perceived as giving real life to the candidates’ right of
free expression rather than being viewed as an undue restriction of that freedom. The wisdom in the enactment of the law,
i.e., that which the legislature deems to be best in giving life to the Constitutional mandate, is not for the Court to
question; it is a matter that lies beyond the normal prerogatives of the Court to pass upon. 87

This separate opinion is cogent for the purpose it was said. But it is not in point in this case.

The present petition does not involve a dispute between the rich and poor, or the powerful and weak, on their equal
opportunities for media coverage of candidates and their right to freedom of expression. This case concerns the right of
petitioners, who are non-candidates, to post the tarpaulin in their private property, asan exercise of their right of free
expression. Despite the invocation of the political question doctrine by respondents, this court is not proscribed from
deciding on the merits of this case.

In Tañada v. Cuenco,88 this court previously elaborated on the concept of what constitutes a political question:

What is generally meant, when it is said that a question is political, and not judicial, is that it is a matter which is to be
exercised by the people in their primary political capacity, or that it has been specifically delegated to some other
department or particular officer of the government, withdiscretionary power to act.89 (Emphasis omitted)

It is not for this court to rehearse and re-enact political debates on what the text of the law should be. In political forums,
particularly the legislature, the creation of the textof the law is based on a general discussion of factual circumstances,
broadly construed in order to allow for general application by the executive branch. Thus, the creation of the law is not
limited by particular and specific facts that affect the rights of certain individuals, per se.

Courts, on the other hand, rule on adversarial positions based on existing facts established on a specific case-to-case basis,
where parties affected by the legal provision seek the courts’ understanding of the law.

The complementary nature of the political and judicial branches of government is essential in order to ensure that the
rights of the general public are upheld at all times. In order to preserve this balance, branches of government must afford
due respectand deference for the duties and functions constitutionally delegated to the other. Courts cannot rush to
invalidate a law or rule. Prudence dictates that we are careful not to veto political acts unless we can craft doctrine
narrowly tailored to the circumstances of the case.

The case before this court does not call for the exercise of prudence or modesty. There is no political question. It can be
acted upon by this court through the expanded jurisdiction granted to this court through Article VIII, Section 1 of the
Constitution.

A political question arises in constitutional issues relating to the powers or competence of different agencies and
departments of the executive or those of the legislature. The political question doctrine is used as a defense when the
petition asks this court to nullify certain acts that are exclusively within the domain of their respective competencies, as
provided by the Constitution or the law. In such situation, presumptively, this court should act with deference. It will
decline to void an act unless the exercise of that power was so capricious and arbitrary so as to amount to grave abuse of
discretion.

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The concept of a political question, however, never precludes judicial review when the act of a constitutional organ
infringes upon a fundamental individual or collective right. Even assuming arguendo that the COMELEC did have the
discretion to choose the manner of regulation of the tarpaulin in question, it cannot do so by abridging the fundamental
right to expression.

Marcos v. Manglapus90 limited the use of the political question doctrine:

When political questions are involved, the Constitution limits the determination to whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of the official whose action is being questioned.
If grave abuse is not established, the Court will not substitute its judgment for that of the official concerned and decide a
matter which by its nature or by law is for the latter alone to decide.91

How this court has chosen to address the political question doctrine has undergone an evolution since the timethat it had
been first invoked in Marcos v. Manglapus. Increasingly, this court has taken the historical and social context of the case
and the relevance of pronouncements of carefully and narrowly tailored constitutional doctrines. This trend was followed in
cases such as Daza v. Singson92 and Coseteng v. Mitra Jr.93

Daza and Coseteng involved a question as to the application of Article VI, Section 18 of the 1987 Constitution involving the
removal of petitioners from the Commission on Appointments. In times past, this would have involved a quint essentially
political question as it related to the dominance of political parties in Congress. However, in these cases, this court
exercised its power of judicial review noting that the requirement of interpreting the constitutional provision involved the
legality and not the wisdom of a manner by which a constitutional duty or power was exercised. This approach was again
reiterated in Defensor Santiago v. Guingona, Jr.94

In Integrated Bar of the Philippines v. Zamora,95 this court declared again that the possible existence ofa political question
did not bar an examination of whether the exercise of discretion was done with grave abuse of discretion. In that case, this
court ruled on the question of whether there was grave abuse of discretion in the President’s use of his power to call out
the armed forces to prevent and suppress lawless violence.

In Estrada v. Desierto,96 this court ruled that the legal question as to whether a former President resigned was not a
political question even if the consequences would be to ascertain the political legitimacy of a successor President.

Many constitutional cases arise from political crises. The actors in such crises may use the resolution of constitutional
issues as leverage. But the expanded jurisdiction of this court now mandates a duty for it to exercise its power of judicial
review expanding on principles that may avert catastrophe or resolve social conflict.

This court’s understanding of the political question has not been static or unbending. In Llamas v. Executive Secretary
Oscar Orbos,97 this court held:

While it is true that courts cannot inquire into the manner in which the President's discretionary powers are exercised or
into the wisdom for its exercise, it is also a settled rule that when the issue involved concerns the validity of such
discretionary powers or whether said powers are within the limits prescribed by the Constitution, We will not decline to
exercise our power of judicial review. And such review does not constitute a modification or correction of the act of the
President, nor does it constitute interference with the functions of the President.98

The concept of judicial power in relation to the concept of the political question was discussed most extensively in
Francisco v. HRET.99 In this case, the House of Representatives arguedthat the question of the validity of the second
impeachment complaint that was filed against former Chief Justice Hilario Davide was a political question beyond the ambit
of this court. Former Chief Justice Reynato Puno elaborated on this concept in his concurring and dissenting opinion:

To be sure, the force to impugn the jurisdiction of this Court becomes more feeble in light of the new Constitution which
expanded the definition of judicial power as including "the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government." As well observed by retired Justice Isagani Cruz, this expanded definition of judicial power considerably
constricted the scope of political question. He opined that the language luminously suggests that this duty (and power) is
available even against the executive and legislative departments including the President and the Congress, in the exercise
of their discretionary powers.100 (Emphasis in the original, citations omitted)

Francisco also provides the cases which show the evolution of the political question, as applied in the following cases:

In Marcos v. Manglapus, this Court, speaking through Madame Justice Irene Cortes, held: The present Constitution limits
resort to the political question doctrine and broadens the scope of judicial inquiry into areas which the Court,under
previous constitutions, would have normally left to the political departments to decide. x x x

In Bengzon v. Senate Blue Ribbon Committee, through Justice Teodoro Padilla, this Court declared:

The "allocation of constitutional boundaries" is a task that this Court must perform under the Constitution. Moreover, as
held in a recent case, "(t)he political question doctrine neither interposes an obstacle to judicial determination of the rival
claims. The jurisdiction to delimit constitutional boundaries has been given to this Court. It cannot abdicate that obligation

13
mandated by the 1987 Constitution, although said provision by no means does away with the applicability of the principle
in appropriate cases." (Emphasis and italics supplied)

And in Daza v. Singson, speaking through Justice Isagani Cruz, this Court ruled:

In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The reason is that, even if
we were to assume that the issue presented before us was political in nature, we would still not be precluded from
resolving it under the expanded jurisdiction conferred upon us that now covers, in proper cases, even the political
question.x x x (Emphasis and italics supplied.)

....

In our jurisdiction, the determination of whether an issue involves a truly political and non-justiciable question lies in the
answer to the question of whether there are constitutionally imposed limits on powers or functions conferred upon political
bodies. If there are, then our courts are duty-bound to examine whether the branch or instrumentality of the government
properly acted within such limits.101 (Citations omitted)

As stated in Francisco, a political question will not be considered justiciable if there are no constitutionally imposed limits
on powers or functions conferred upon political bodies. Hence, the existence of constitutionally imposed limits justifies
subjecting the official actions of the body to the scrutiny and review of this court.

In this case, the Bill of Rights gives the utmost deference to the right to free speech. Any instance that this right may be
abridged demands judicial scrutiny. It does not fall squarely into any doubt that a political question brings.

I.E Exhaustion of administrative remedies

Respondents allege that petitioners violated the principle of exhaustion of administrative remedies. Respondents insist that
petitioners should have first brought the matter to the COMELEC En Banc or any of its divisions.102

Respondents point out that petitioners failed to comply with the requirement in Rule 65 that "there is no appeal, or any
plain, speedy, and adequate remedy in the ordinary course of law."103 They add that the proper venue to assail the validity
of the assailed issuances was in the course of an administrative hearing to be conducted by COMELEC.104 In the event that
an election offense is filed against petitioners for posting the tarpaulin, they claim that petitioners should resort to the
remedies prescribed in Rule 34 of the COMELEC Rules of Procedure.105

The argument on exhaustion of administrative remedies is not proper in this case.

Despite the alleged non-exhaustion of administrative remedies, it is clear that the controversy is already ripe for
adjudication. Ripeness is the "prerequisite that something had by then been accomplished or performed by either branch
[or in this case, organ of government] before a court may come into the picture."106

Petitioners’ exercise of their rightto speech, given the message and their medium, had understandable relevance especially
during the elections. COMELEC’s letter threatening the filing of the election offense against petitioners is already an
actionable infringement of this right. The impending threat of criminal litigation is enough to curtail petitioners’ speech.

In the context of this case, exhaustion of their administrative remedies as COMELEC suggested in their pleadings prolongs
the violation of their freedom of speech.

Political speech enjoys preferred protection within our constitutional order. In Chavez v. Gonzales,107 Justice Carpio in a
separate opinion emphasized: "[i]f everthere is a hierarchy of protected expressions, political expression would occupy the
highest rank, and among different kinds of political expression, the subject of fair and honest elections would be at the
top."108 Sovereignty resides in the people.109 Political speech is a direct exercise of the sovereignty. The principle of
exhaustion of administrative remedies yields in order to protect this fundamental right.

Even assuming that the principle of exhaustion of administrative remedies is applicable, the current controversy is within
the exceptions to the principle. In Chua v. Ang,110 this court held:

On the other hand, prior exhaustion of administrative remedies may be dispensed with and judicial action may be validly
resorted to immediately: (a) when there is a violation of due process; (b) when the issue involved is purely a legal
question; (c) when the administrative action is patently illegal amounting to lack or excess of jurisdiction; (d) when there is
estoppel on the part ofthe administrative agency concerned; (e) when there is irreparable injury; (f) when the respondent
is a department secretary whose acts as analter ego of the President bear the implied and assumed approval of the latter;
(g) when to require exhaustion of administrative remedies would be unreasonable; (h) when it would amount to a
nullification of a claim; (i) when the subject matter is a private land in land case proceedings; (j) whenthe rule does not
provide a plain, speedy and adequate remedy; or (k) when there are circumstances indicating the urgency of judicial
intervention."111 (Emphasis supplied, citation omitted)

The circumstances emphasized are squarely applicable with the present case. First, petitioners allegethat the assailed
issuances violated their right to freedom of expression and the principle of separation of church and state. This is a purely
legal question. Second, the circumstances of the present case indicate the urgency of judicial intervention considering the

14
issue then on the RH Law as well as the upcoming elections. Thus, to require the exhaustion of administrative remedies in
this case would be unreasonable.

Time and again, we have held that this court "has the power to relax or suspend the rules or to except a case from their
operation when compelling reasons so warrant, or whenthe purpose of justice requires it, [and when] [w]hat constitutes
[as] good and sufficient cause that will merit suspension of the rules is discretionary upon the court".112Certainly, this case
of first impression where COMELEC has threatenedto prosecute private parties who seek to participate in the elections by
calling attention to issues they want debated by the publicin the manner they feel would be effective is one of those cases.

II
SUBSTANTIVE ISSUES

II.A COMELEC had no legal basis to regulate expressions made by private citizens

Respondents cite the Constitution, laws, and jurisprudence to support their position that they had the power to regulate
the tarpaulin.113 However, all of these provisions pertain to candidates and political parties. Petitioners are not candidates.
Neither do theybelong to any political party. COMELEC does not have the authority to regulate the enjoyment of the
preferred right to freedom of expression exercised by a non-candidate in this case.

II.A.1 First, respondents cite Article IX-C, Section 4 of the Constitution, which provides:

Section 4. The Commission may,during the election period, supervise or regulate the enjoyment or utilization of all
franchises or permits for 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 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 information campaigns and forums among candidates in connection with the objective of holding free, orderly,
honest, peaceful, and credible elections.114 (Emphasis supplied)

Sanidad v. COMELEC115 involved the rules promulgated by COMELEC during the plebiscite for the creation of the Cordillera
Autonomous Region.116 Columnist Pablito V. Sanidad questioned the provision prohibiting journalists from covering
plebiscite issues on the day before and on plebiscite day.117 Sanidad argued that the prohibition was a violation of the
"constitutional guarantees of the freedom of expression and of the press. . . ."118 We held that the "evil sought to be
prevented by this provision is the possibility that a franchise holder may favor or give any undue advantage to a candidate
in terms of advertising space or radio or television time."119 This court found that "[m]edia practitioners exercising their
freedom of expression during plebiscite periods are neither the franchise holders nor the candidates[,]"120 thus, their right
to expression during this period may not be regulated by COMELEC.121

Similar to the media, petitioners in the case at bar are neither franchise holders nor candidates. II.A.2

Respondents likewise cite Article IX-C, Section 2(7) of the Constitution as follows:122

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

....

(7) Recommend to the Congress effective measures to minimize election spending, including limitation of places where
propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and
nuisance candidates. (Emphasis supplied) Based on the enumeration made on actsthat may be penalized, it will be inferred
that this provision only affects candidates.

Petitioners assail the "Notice to Remove Campaign Materials" issued by COMELEC. This was followed bythe assailed letter
regarding the "election propaganda material posted on the church vicinity promoting for or against the candidates and
party-list groups. . . ."123

Section 9 of the Fair Election Act124 on the posting of campaign materials only mentions "parties" and "candidates":

Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize political parties and party-list groups to erect
common poster areas for their candidates in not more than ten (10) public places such as plazas, markets, barangay
centers and the like, wherein candidates can post, display or exhibit election propaganda: Provided, That the size ofthe
poster areas shall not exceed twelve (12) by sixteen (16) feet or its equivalent. Independent candidates with no political
parties may likewise be authorized to erect common poster areas in not more than ten (10) public places, the size of which
shall not exceed four (4) by six (6) feet or its equivalent. Candidates may post any lawful propaganda material in private
places with the consent of the owner thereof, and in public places or property which shall be allocated equitably and
impartially among the candidates. (Emphasis supplied)

Similarly, Section 17 of COMELEC Resolution No. 9615, the rules and regulations implementing the Fair Election Act,
provides as follows:

SECTION 17. Posting of Campaign Materials. - Parties and candidates may post any lawful campaign material in:

15
 a. Authorized common poster areasin public places subject to the requirements and/or limitations set forth in the
next following section; and

b. Private places provided it has the consent of the owner thereof.

The posting of campaign materials in public places outside of the designated common poster areas and those enumerated
under Section 7 (g) of these Rules and the like is prohibited. Persons posting the same shall be liable together with the
candidates and other persons who caused the posting. It will be presumed that the candidates and parties caused the
posting of campaign materials outside the common poster areas if they do not remove the same within three (3) days from
notice which shall be issued by the Election Officer of the city or municipality where the unlawful election propaganda are
posted or displayed.

Members of the PNP and other law enforcement agencies called upon by the Election Officeror other officials of the
COMELEC shall apprehend the violators caught in the act, and file the appropriate charges against them. (Emphasis
supplied)

Respondents considered the tarpaulin as a campaign material in their issuances. The above provisions regulating the
posting of campaign materials only apply to candidates and political parties, and petitioners are neither of the two.

Section 3 of Republic Act No. 9006on "Lawful Election Propaganda" also states that these are "allowed for all registered
political parties, national, regional, sectoral parties or organizations participating under the party-list elections and for all
bona fide candidates seeking national and local elective positions subject to the limitation on authorized expenses of
candidates and political parties. . . ." Section 6 of COMELEC Resolution No. 9615 provides for a similar wording. These
provisions show that election propaganda refers to matter done by or on behalf of and in coordination with candidates and
political parties. Some level of coordination with the candidates and political parties for whom the election propaganda are
released would ensure that these candidates and political parties maintain within the authorized expenses limitation.

The tarpaulin was not paid for byany candidate or political party.125 There was no allegation that petitioners coordinated
with any of the persons named in the tarpaulin regarding its posting. On the other hand, petitioners posted the tarpaulin
as part of their advocacy against the RH Law. Respondents also cite National Press Club v. COMELEC126 in arguing that its
regulatory power under the Constitution, to some extent, set a limit on the right to free speech during election period.127

National Press Club involved the prohibition on the sale and donation of space and time for political advertisements,
limiting political advertisements to COMELEC-designated space and time. This case was brought by representatives of mass
media and two candidates for office in the 1992 elections. They argued that the prohibition on the sale and donation of
space and time for political advertisements is tantamount to censorship, which necessarily infringes on the freedom of
speech of the candidates.128

This court upheld the constitutionality of the COMELEC prohibition in National Press Club. However, this case does not
apply as most of the petitioners were electoral candidates, unlike petitioners in the instant case. Moreover, the subject
matter of National Press Club, Section 11(b) of Republic Act No. 6646,129 only refers to a particular kind of media such as
newspapers, radio broadcasting, or television.130 Justice Feliciano emphasized that the provision did not infringe upon the
right of reporters or broadcasters to air their commentaries and opinions regarding the candidates, their qualifications, and
program for government. Compared to Sanidadwherein the columnists lost their ability to give their commentary on the
issues involving the plebiscite, National Press Clubdoes not involve the same infringement.

In the case at bar, petitioners lost their ability to give a commentary on the candidates for the 2013 national elections
because of the COMELEC notice and letter. It was not merelya regulation on the campaigns of candidates vying for public
office. Thus, National Press Clubdoes not apply to this case.

Finally, Section 79 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code, defines an"election
campaign" as follows:

....

(b) The term "election campaign" or "partisan political activity" refers to an act designed to promote the election or defeat
of a particular candidate or candidates to a public office which shall include:

(1) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting
votes and/or undertaking any campaign for or against a candidate;
(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose
of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate;
(3) Making speeches, announcements or commentaries, or holding interviews for or against the election of any
candidate for public office;
(4) Publishing or distributing campaign literature or materials designed to support or oppose the election of any
candidate; or
(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.

The foregoing enumerated acts ifperformed for the purpose of enhancing the chances of aspirants for nomination for
candidacy to a public office by a political party, aggroupment, or coalition of parties shall not be considered as election
campaign or partisan election activity. Public expressions or opinions or discussions of probable issues in a forthcoming

16
electionor on attributes of or criticisms against probable candidates proposed to be nominated in a forthcoming political
party convention shall not be construed as part of any election campaign or partisan political activity contemplated under
this Article. (Emphasis supplied)

True, there is no mention whether election campaign is limited only to the candidates and political parties themselves. The
focus of the definition is that the act must be "designed to promote the election or defeat of a particular candidate or
candidates to a public office."

In this case, the tarpaulin contains speech on a matter of public concern, that is, a statement of either appreciation or
criticism on votes made in the passing of the RH law. Thus, petitioners invoke their right to freedom of expression.

II.B The violation of the constitutional right to freedom of speech and expression

Petitioners contend that the assailed notice and letter for the removal of the tarpaulin violate their fundamental right to
freedom of expression.

On the other hand, respondents contend that the tarpaulin is an election propaganda subject to their regulation pursuant
to their mandate under Article IX-C, Section 4 of the Constitution. Thus, the assailed notice and letter ordering itsremoval
for being oversized are valid and constitutional.131

II.B.1 Fundamental to the consideration of this issue is Article III, Section 4 of the Constitution:

Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the
people peaceably to assemble and petition the government for redress of grievances. 132

No law. . .

While it is true that the present petition assails not a law but an opinion by the COMELEC Law Department, this court has
applied Article III, Section 4 of the Constitution even to governmental acts.

In Primicias v. Fugoso,133 respondent Mayor applied by analogy Section 1119 of the Revised Ordinances of 1927 of Manila
for the public meeting and assembly organized by petitioner Primicias.134 Section 1119 requires a Mayor’s permit for the
use of streets and public places for purposes such as athletic games, sports, or celebration of national holidays. 135 What
was questioned was not a law but the Mayor’s refusal to issue a permit for the holding of petitioner’s public
meeting.136 Nevertheless, this court recognized the constitutional right to freedom of speech, to peaceful assembly and to
petition for redress of grievances, albeit not absolute,137 and the petition for mandamus to compel respondent Mayor to
issue the permit was granted.138

In ABS-CBN v. COMELEC, what was assailed was not a law but COMELEC En Banc Resolution No. 98-1419 where the
COMELEC resolved to approve the issuance of a restraining order to stop ABS-CBN from conducting exit surveys.139 The
right to freedom of expression was similarly upheld in this case and, consequently, the assailed resolution was nullified and
set aside.140

. . . shall be passed abridging. . .

All regulations will have an impact directly or indirectly on expression. The prohibition against the abridgment of speech
should not mean an absolute prohibition against regulation. The primary and incidental burden on speech must be weighed
against a compelling state interest clearly allowed in the Constitution. The test depends on the relevant theory of speech
implicit in the kind of society framed by our Constitution.

. . . of expression. . .

Our Constitution has also explicitly included the freedom of expression, separate and in addition to the freedom of speech
and of the press provided in the US Constitution. The word "expression" was added in the 1987 Constitution by
Commissioner Brocka for having a wider scope:

MR. BROCKA: This is a very minor amendment, Mr. Presiding Officer. On Section 9, page 2, line 29, it says: "No law shall
be passed abridging the freedom of speech." I would like to recommend to the Committee the change of the word
"speech" to EXPRESSION; or if not, add the words AND EXPRESSION after the word "speech," because it is more
expansive, it has a wider scope, and it would refer to means of expression other than speech.

THE PRESIDING OFFICER (Mr.Bengzon): What does the Committee say?

FR. BERNAS: "Expression" is more broad than speech. We accept it.

MR. BROCKA: Thank you.

THE PRESIDING OFFICER (Mr.Bengzon): Is it accepted?

17
FR. BERNAS: Yes.

THE PRESIDING OFFICER (Mr.Bengzon): Is there any objection? (Silence) The Chair hears none; the amendment is
approved.

FR. BERNAS: So, that provision will now read: "No law shall be passed abridging the freedom of speech, expression or of
the press . . . ."141 Speech may be said to be inextricably linked to freedom itself as "[t]he right to think is the beginning of
freedom, and speech must be protected from the government because speech is the beginning of thought." 142

II.B.2 Communication is an essential outcome of protected speech.143 Communication exists when "(1) a speaker, seeking
to signal others, uses conventional actions because he orshe reasonably believes that such actions will be taken by the
audience in the manner intended; and (2) the audience so takes the actions."144 "[I]n communicative action[,] the hearer
may respond to the claims by . . . either accepting the speech act’s claims or opposing them with criticism or requests for
justification."145

Speech is not limited to vocal communication. "[C]onduct is treated as a form of speech sometimes referred to as ‘symbolic
speech[,]’"146 such that "‘when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct,’ the
‘communicative element’ of the conduct may be ‘sufficient to bring into play the [right to freedom of expression].’"147

The right to freedom of expression, thus, applies to the entire continuum of speech from utterances made to conduct
enacted, and even to inaction itself as a symbolic manner of communication.

In Ebralinag v. The Division Superintendent of Schools of Cebu,148 students who were members of the religious sect
Jehovah’s Witnesses were to be expelled from school for refusing to salute the flag, sing the national anthem, and recite
the patriotic pledge.149 In his concurring opinion, Justice Cruz discussed how the salute is a symbolic manner of
communication and a valid form of expression.150 He adds that freedom of speech includes even the right to be silent:

Freedom of speech includes the right to be silent. Aptly has it been said that the Bill of Rights that guarantees to the
individual the liberty to utter what is in his mind also guarantees to him the liberty not to utter what is not in his mind. The
salute is a symbolic manner of communication that conveys its messageas clearly as the written or spoken word. As a valid
form of expression, it cannot be compelled any more than it can be prohibited in the face of valid religious objections like
those raised in this petition. To impose it on the petitioners is to deny them the right not to speak when their religion bids
them to be silent. This coercion of conscience has no place in the free society.

The democratic system provides for the accommodation of diverse ideas, including the unconventional and even the
bizarre or eccentric. The will of the majority prevails, but it cannot regiment thought by prescribing the recitation by rote of
its opinions or proscribing the assertion of unorthodox or unpopular views as inthis case. The conscientious objections of
the petitioners, no less than the impatience of those who disagree with them, are protected by the Constitution. The State
cannot make the individual speak when the soul within rebels.151

Even before freedom "of expression" was included in Article III, Section 4 of the present Constitution,this court has applied
its precedent version to expressions other than verbal utterances.

In the 1985 case of Gonzalez v. Chairman Katigbak,152 petitioners objected to the classification of the motion picture "Kapit
sa Patalim" as "For Adults Only." They contend that the classification "is without legal and factual basis and is exercised as
impermissible restraint of artistic expression."153 This court recognized that "[m]otion pictures are important both as a
medium for the communication of ideas and the expression of the artistic impulse."154 It adds that "every writer,actor, or
producer, no matter what medium of expression he may use, should be freed from the censor."155 This court found that
"[the Board’s] perception of what constitutes obscenity appears to be unduly restrictive."156 However, the petition was
dismissed solely on the ground that there were not enough votes for a ruling of grave abuse of discretion in the
classification made by the Board.157

II.B.3 Size does matter

The form of expression is just as important as the information conveyed that it forms part of the expression. The present
case is in point.

It is easy to discern why size matters.

First, it enhances efficiency in communication. A larger tarpaulin allows larger fonts which make it easier to view its
messages from greater distances. Furthermore, a larger tarpaulin makes it easier for passengers inside moving vehicles to
read its content. Compared with the pedestrians, the passengers inside moving vehicles have lesser time to view the
content of a tarpaulin. The larger the fonts and images, the greater the probability that it will catch their attention and,
thus, the greater the possibility that they will understand its message.

Second, the size of the tarpaulin may underscore the importance of the message to the reader. From an ordinary person’s
perspective, those who post their messages in larger fonts care more about their message than those who carry their
messages in smaller media. The perceived importance given by the speakers, in this case petitioners, to their cause is also
part of the message. The effectivity of communication sometimes relies on the emphasis put by the speakers and onthe
credibility of the speakers themselves. Certainly, larger segments of the public may tend to be more convinced of the point
made by authoritative figures when they make the effort to emphasize their messages.

18
Third, larger spaces allow for more messages. Larger spaces, therefore, may translate to more opportunities to amplify,
explain, and argue points which the speakers might want to communicate. Rather than simply placing the names and
images of political candidates and an expression of support, larger spaces can allow for brief but memorable presentations
of the candidates’ platforms for governance. Larger spaces allow for more precise inceptions of ideas, catalyze reactions to
advocacies, and contribute more to a more educated and reasoned electorate. A more educated electorate will increase the
possibilities of both good governance and accountability in our government.

These points become more salient when it is the electorate, not the candidates or the political parties, that speaks. Too
often, the terms of public discussion during elections are framed and kept hostage by brief and catchy but meaningless
sound bites extolling the character of the candidate. Worse, elections sideline political arguments and privilege the
endorsement by celebrities. Rather than provide obstacles to their speech, government should in fact encourage it.
Between the candidates and the electorate, the latter have the better incentive to demand discussion of the more
important issues. Between the candidates and the electorate, the former have better incentives to avoid difficult political
standpoints and instead focus on appearances and empty promises.

Large tarpaulins, therefore, are not analogous to time and place.158 They are fundamentally part of expression protected
under Article III, Section 4 of the Constitution.

II.B.4 There are several theories and schools of thought that strengthen the need to protect the basic right to freedom of
expression.

First, this relates to the right ofthe people to participate in public affairs, including the right to criticize government actions.

Proponents of the political theory on "deliberative democracy" submit that "substantial, open, [and] ethical dialogue isa
critical, and indeed defining, feature of a good polity."159 This theory may be considered broad, but it definitely "includes
[a] collective decision making with the participation of all who will beaffected by the decision."160 It anchors on the
principle that the cornerstone of every democracy is that sovereignty resides in the people.161 To ensure order in running
the state’s affairs, sovereign powers were delegated and individuals would be elected or nominated in key government
positions to represent the people. On this note, the theory on deliberative democracy may evolve to the right of the people
to make government accountable. Necessarily, this includes the right of the people to criticize acts made pursuant to
governmental functions.

Speech that promotes dialogue on publicaffairs, or airs out grievances and political discontent, should thus be protected
and encouraged.

Borrowing the words of Justice Brandeis, "it is hazardous to discourage thought, hope and imagination; that fear breeds
repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the
opportunity to discuss freely supposed grievances and proposed remedies."162

In this jurisdiction, this court held that "[t]he interest of society and the maintenance of good government demand a full
discussion of public affairs."163 This court has, thus, adopted the principle that "debate on public issues should be
uninhibited, robust,and wide open . . . [including even] unpleasantly sharp attacks on government and public officials." 164

Second, free speech should be encouraged under the concept of a market place of ideas. This theory was articulated by
Justice Holmes in that "the ultimate good desired is better reached by [the] free trade in ideas:"165

When men have realized that time has upset many fighting faiths, they may come to believe even more than they believe
the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas - that the
best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the
only ground upon which their wishes safely can be carried out.166

The way it works, the exposure to the ideas of others allows one to "consider, test, and develop their own
conclusions."167 A free, open, and dynamic market place of ideas is constantly shaping new ones. This promotes both
stability and change where recurring points may crystallize and weak ones may develop. Of course, free speech is more
than the right to approve existing political beliefs and economic arrangements as it includes, "[t]o paraphrase Justice
Holmes, [the] freedom for the thought that we hate, no less than for the thought that agrees with us."168 In fact, free
speech may "best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as
they are, or even stirs people to anger."169 It is in this context that we should guard against any curtailment of the people’s
right to participate in the free trade of ideas.

Third, free speech involves self-expression that enhances human dignity. This right is "a means of assuring individual self-
fulfillment,"170 among others. In Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co.,
Inc,171 this court discussed as follows:

The rights of free expression, free assembly and petition, are not only civil rights but also political rights essential to man's
enjoyment of his life, to his happiness and to his full and complete fulfillment.Thru these freedoms the citizens can
participate not merely in the periodic establishment of the government through their suffrage but also in the administration
of public affairs as well as in the discipline of abusive public officers. The citizen is accorded these rights so that he can
appeal to the appropriate governmental officers or agencies for redress and protection as well as for the imposition of the
lawful sanctions on erring public officers and employees.172 (Emphasis supplied)

19
Fourth, expression is a marker for group identity. For one, "[v]oluntary associations perform [an] important democratic role
[in providing] forums for the development of civil skills, for deliberation, and for the formation of identity and community
spirit[,] [and] are largely immune from [any] governmental interference."173 They also "provide a buffer between
individuals and the state - a free space for the development of individual personality, distinct group identity, and dissident
ideas - and a potential source of opposition to the state."174 Free speech must be protected as the vehicle to find those
who have similar and shared values and ideals, to join together and forward common goals.

Fifth, the Bill of Rights, free speech included, is supposed to "protect individuals and minorities against majoritarian abuses
perpetrated through [the] framework [of democratic governance]."175 Federalist framers led by James Madison were
concerned about two potentially vulnerable groups: "the citizenry at large - majorities - who might be tyrannized or
plundered by despotic federal officials"176 and the minorities who may be oppressed by "dominant factions of the electorate
[that] capture [the] government for their own selfish ends[.]"177 According to Madison, "[i]t is of great importance in a
republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the
injustice of the other part."178 We should strive to ensure that free speech is protected especially in light of any potential
oppression against those who find themselves in the fringes on public issues.

Lastly, free speech must be protected under the safety valve theory.179 This provides that "nonviolent manifestations of
dissent reduce the likelihood of violence[.]"180 "[A] dam about to burst . . . resulting in the ‘banking up of a menacing flood
of sullen anger behind the walls of restriction’"181 has been used to describe the effect of repressing nonviolent
outlets.182 In order to avoid this situation and prevent people from resorting to violence, there is a need for peaceful
methods in making passionate dissent. This includes "free expression and political participation" 183 in that they can "vote
for candidates who share their views, petition their legislatures to [make or] change laws, . . . distribute literature alerting
other citizens of their concerns[,]"184 and conduct peaceful rallies and other similar acts.185 Free speech must, thus, be
protected as a peaceful means of achieving one’s goal, considering the possibility that repression of nonviolent dissent may
spill over to violent means just to drive a point.

II.B.5 Every citizen’s expression with political consequences enjoys a high degree of protection. Respondents argue that
the tarpaulinis election propaganda, being petitioners’ way of endorsing candidates who voted against the RH Law and
rejecting those who voted for it.186 As such, it is subject to regulation by COMELEC under its constitutional
mandate.187 Election propaganda is defined under Section 1(4) of COMELEC Resolution No. 9615 as follows: SECTION 1.
Definitions . . .

....

4. The term "political advertisement" or "election propaganda" refers to any matter broadcasted, published, printed,
displayed or exhibited, in any medium, which contain the name, image, logo, brand, insignia, color motif, initials, and other
symbol or graphic representation that is capable of being associated with a candidate or party, and is intended to draw the
attention of the public or a segment thereof to promote or oppose, directly or indirectly, the election of the said candidate
or candidates to a public office. In broadcast media, political advertisements may take the form of spots, appearances on
TV shows and radio programs, live or taped announcements, teasers, and other forms of advertising messages or
announcements used by commercial advertisers. Political advertising includes matters, not falling within the scope of
personal opinion, that appear on any Internet website, including, but not limited to, social networks, blogging sites, and
micro-blogging sites, in return for consideration, or otherwise capable of pecuniary estimation.

On the other hand, petitioners invoke their "constitutional right to communicate their opinions, views and beliefs about
issues and candidates."188 They argue that the tarpaulin was their statement of approval and appreciation of the named
public officials’ act of voting against the RH Law, and their criticism toward those who voted in its favor.189It was "part of
their advocacy campaign against the RH Law,"190 which was not paid for by any candidate or political party.191 Thus, "the
questioned orders which . . . effectively restrain[ed] and curtail[ed] [their] freedom of expression should be declared
unconstitutional and void."192

This court has held free speech and other intellectual freedoms as "highly ranked in our scheme of constitutional
values."193 These rights enjoy precedence and primacy.194 In Philippine Blooming Mills, this court discussed the preferred
position occupied by freedom of expression:

Property and property rights can belost thru prescription; but human rights are imprescriptible. If human rights are
extinguished by the passage of time, then the Bill of Rights is a useless attempt to limit the power of government and
ceases to be an efficacious shield against the tyranny of officials, of majorities, ofthe influential and powerful, and of
oligarchs - political, economic or otherwise.

In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred position as they are
essential to the preservation and vitality of our civil and political institutions; and such priority "gives these liberties the
sanctity and the sanction not permitting dubious intrusions."195 (Citations omitted)

This primordial right calls for utmost respect, more so "when what may be curtailed is the dissemination of information to
make more meaningful the equally vital right of suffrage."196 A similar idea appeared in our jurisprudence as early as 1969,
which was Justice Barredo’s concurring and dissenting opinion in Gonzales v. COMELEC:197

I like to reiterate over and over, for it seems this is the fundamental point others miss, that genuine democracy thrives
only where the power and right of the people toelect the men to whom they would entrust the privilege to run the affairs
of the state exist. In the language of the declaration of principles of our Constitution, "The Philippines is a republican state.
Sovereignty resides in the people and all government authority emanates from them" (Section 1, Article II). Translating

20
this declaration into actuality, the Philippines is a republic because and solely because the people in it can be governed
only by officials whom they themselves have placed in office by their votes. And in it is on this cornerstone that I hold it
tobe self-evident that when the freedoms of speech, press and peaceful assembly and redress of grievances are being
exercised in relation to suffrage or asa means to enjoy the inalienable right of the qualified citizen to vote, they are
absolute and timeless. If our democracy and republicanism are to be worthwhile, the conduct of public affairs by our
officials must be allowed to suffer incessant and unabating scrutiny, favorable or unfavorable, everyday and at all times.
Every holder of power in our government must be ready to undergo exposure any moment of the day or night, from
January to December every year, as it is only in this way that he can rightfully gain the confidence of the people. I have no
patience for those who would regard public dissection of the establishment as an attribute to be indulged by the people
only at certain periods of time. I consider the freedoms of speech, press and peaceful assembly and redress of grievances,
when exercised in the name of suffrage, as the very means by which the right itself to vote can only be properly enjoyed.It
stands to reason therefore, that suffrage itself would be next to useless if these liberties cannot be untrammelled [sic]
whether as to degree or time.198 (Emphasis supplied)

Not all speech are treated the same. In Chavez v. Gonzales, this court discussed that some types of speech may be subject
to regulation:

Some types of speech may be subjected to some regulation by the State under its pervasive police power, in order that it
may not be injurious to the equal right of others or those of the community or society. The difference in treatment is
expected because the relevant interests of one type of speech, e.g., political speech, may vary from those of another, e.g.,
obscene speech. Distinctionshave therefore been made in the treatment, analysis, and evaluation ofthe permissible scope
of restrictions on various categories of speech. We have ruled, for example, that in our jurisdiction slander or libel, lewd
and obscene speech, as well as "fighting words" are not entitled to constitutional protection and may be
penalized.199 (Citations omitted)

We distinguish between politicaland commercial speech. Political speech refers to speech "both intended and received as a
contribution to public deliberation about some issue,"200 "foster[ing] informed and civicminded deliberation."201 On the
other hand, commercial speech has been defined as speech that does "no more than propose a commercial
transaction."202 The expression resulting from the content of the tarpaulin is, however, definitely political speech. In Justice
Brion’s dissenting opinion, he discussed that "[t]he content of the tarpaulin, as well as the timing of its posting, makes it
subject of the regulations in RA 9006 and Comelec Resolution No. 9615."203 He adds that "[w]hile indeed the RH issue, by
itself,is not an electoralmatter, the slant that the petitioners gave the issue converted the non-election issue into a live
election one hence, Team Buhay and Team Patay and the plea to support one and oppose the other."204

While the tarpaulin may influence the success or failure of the named candidates and political parties, this does not
necessarily mean it is election propaganda. The tarpaulin was not paid for or posted "in return for consideration" by any
candidate, political party, or party-list group.

The second paragraph of Section 1(4) of COMELEC Resolution No. 9615, or the rules and regulations implementing
Republic Act No. 9006 as an aid to interpret the law insofar as the facts of this case requires, states:

4. The term "political advertisement" or "election propaganda" refers to any matter broadcasted, published, printed,
displayed or exhibited, in any medium, which contain the name, image, logo, brand, insignia, color motif, initials, and other
symbol or graphic representation that is capable of being associated with a candidate or party, and is intended to draw the
attention of the public or a segment thereof to promote or oppose, directly or indirectly, the election of the said candidate
or candidates to a public office. In broadcast media, political advertisements may take the form of spots, appearances on
TV shows and radio programs, live or taped announcements, teasers, and other forms of advertising messages or
announcements used by commercial advertisers. Political advertising includes matters, not falling within the scope of
personal opinion, that appear on any Internet website, including, but not limited to, social networks, blogging sites, and
micro-blogging sites, in return for consideration, or otherwise capable of pecuniary estimation. (Emphasis supplied)

It is clear that this paragraph suggests that personal opinions are not included, while sponsored messages are covered.

Thus, the last paragraph of Section 1(1) of COMELEC Resolution No. 9615 states:

SECTION 1. Definitions - As used in this Resolution:

1. The term "election campaign" or "partisan political activity" refers to an act designed to promote the election or defeat
of a particular candidate or candidates to a public office, and shall include any of the following:

....

Personal opinions, views, and preferences for candidates, contained in blogs shall not be considered acts of election
campaigning or partisan politicalactivity unless expressed by government officials in the Executive Department, the
Legislative Department, the Judiciary, the Constitutional Commissions, and members of the Civil Service.

In any event, this case does not refer to speech in cyberspace, and its effects and parameters should be deemed narrowly
tailored only in relation to the facts and issues in this case. It also appears that such wording in COMELEC Resolution No.
9615 does not similarly appear in Republic Act No. 9006, the law it implements.

We should interpret in this manner because of the value of political speech.

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As early as 1918, in United States v. Bustos,205 this court recognized the need for full discussion of public affairs. We
acknowledged that free speech includes the right to criticize the conduct of public men:

The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete
liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe
relieves the abscesses of official dom. Men in public life may suffer under a hostile and an unjust accusation; the wound
can be assuaged with the balm of a clear conscience. A public officer must not be too thin-skinned with reference to
comment upon his official acts. Only thus can the intelligence and dignity of the individual be exalted.206

Subsequent jurisprudence developed the right to petition the government for redress of grievances, allowing for criticism,
save for some exceptions.207 In the 1951 case of Espuelas v. People,208 this court noted every citizen’s privilege to criticize
his or her government, provided it is "specific and therefore constructive, reasoned or tempered, and not a contemptuous
condemnation of the entire government set-up."209

The 1927 case of People v. Titular210 involved an alleged violation of the Election Law provision "penaliz[ing] the
anonymous criticism of a candidate by means of posters or circulars."211 This court explained that it is the poster’s
anonymous character that is being penalized.212 The ponente adds that he would "dislike very muchto see this decision
made the vehicle for the suppression of public opinion."213

In 1983, Reyes v. Bagatsing214 discussed the importance of allowing individuals to vent their views. According to this court,
"[i]ts value may lie in the fact that there may be something worth hearing from the dissenter [and] [t]hat is to ensurea
true ferment of ideas."215

Allowing citizens to air grievances and speak constructive criticisms against their government contributes to every society’s
goal for development. It puts forward matters that may be changed for the better and ideas that may be deliberated on to
attain that purpose. Necessarily, it also makes the government accountable for acts that violate constitutionally protected
rights.

In 1998, Osmeña v. COMELEC found Section 11(b) of Republic Act No. 6646, which prohibits mass media from selling print
space and air time for campaign except to the COMELEC, to be a democracy-enhancing measure.216This court mentioned
how "discussion of public issues and debate on the qualifications of candidates in an election are essential to the proper
functioning of the government established by our Constitution."217

As pointed out by petitioners, "speech serves one of its greatest public purposes in the context of elections when the free
exercise thereof informs the people what the issues are, and who are supporting what issues."218 At the heart of
democracy is every advocate’s right to make known what the people need to know, 219 while the meaningful exercise of
one’s right of suffrage includes the right of every voter to know what they need to know in order to make their choice.

Thus, in Adiong v. COMELEC,220 this court discussed the importance of debate on public issues, and the freedom of
expression especially in relation to information that ensures the meaningful exercise of the right of suffrage:

We have adopted the principle that debate on public issues should be uninhibited, robust, and wide open and that it may
well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials. Too many
restrictions will deny to people the robust, uninhibited, and wide open debate, the generating of interest essential if our
elections will truly be free, clean and honest.

We have also ruled that the preferred freedom of expression calls all the more for the utmost respect when what may be
curtailed is the dissemination of information to make more meaningful the equally vital right of suffrage. 221(Emphasis
supplied, citations omitted)

Speech with political consequences isat the core of the freedom of expression and must be protected by this court.

Justice Brion pointed out that freedomof expression "is not the god of rights to which all other rights and even government
protection of state interest must bow."222

The right to freedom of expression isindeed not absolute. Even some forms of protected speech are still subjectto some
restrictions. The degree of restriction may depend on whether the regulation is content-based or content-
neutral.223 Content-based regulations can either be based on the viewpoint of the speaker or the subject of the expression.

II.B.6 Content-based regulation

COMELEC contends that the order for removal of the tarpaulin is a content-neutral regulation. The order was made simply
because petitioners failed to comply with the maximum size limitation for lawful election propaganda. 224

On the other hand, petitioners argue that the present size regulation is content-based as it applies only to political speech
and not to other forms of speech such as commercial speech.225 "[A]ssuming arguendo that the size restriction sought to
be applied . . . is a mere time, place, and manner regulation, it’s still unconstitutional for lack of a clear and reasonable
nexus with a constitutionally sanctioned objective."226

22
The regulation may reasonably be considered as either content-neutral or content-based.227 Regardless, the disposition of
this case will be the same. Generally, compared with other forms of speech, the proposed speech is content-based.

As pointed out by petitioners, the interpretation of COMELEC contained in the questioned order applies only to posters and
tarpaulins that may affect the elections because they deliver opinions that shape both their choices. It does not cover, for
instance, commercial speech.

Worse, COMELEC does not point to a definite view of what kind of expression of non-candidates will be adjudged as
"election paraphernalia." There are no existing bright lines to categorize speech as election-related and those that are not.
This is especially true when citizens will want to use their resources to be able to raise public issues that should be tackled
by the candidates as what has happened in this case. COMELEC’s discretion to limit speech in this case is fundamentally
unbridled.

Size limitations during elections hit ata core part of expression. The content of the tarpaulin is not easily divorced from the
size of its medium.

Content-based regulation bears a heavy presumption of invalidity, and this court has used the clear and present danger
rule as measure.228 Thus, in Chavez v. Gonzales:

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
imposedare neither overbroad nor vague.229 (Citations omitted)

Under this rule, "the evil consequences sought to be prevented must be substantive, ‘extremely serious and the degree of
imminence extremely high.’"230 "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."231

Even with the clear and present danger test, respondents failed to justify the regulation. There is no compelling and
substantial state interest endangered by the posting of the tarpaulinas to justify curtailment of the right of freedom of
expression. There is no reason for the state to minimize the right of non-candidate petitioners to post the tarpaulin in their
private property. The size of the tarpaulin does not affect anyone else’s constitutional rights.

Content-based restraint or censorship refers to restrictions "based on the subject matter of the utterance or speech."232 In
contrast, content-neutral regulation includes controls merely on the incidents of the speech such as time, place, or manner
of the speech.233

This court has attempted to define "content-neutral" restraints starting with the 1948 case of Primicias v. Fugoso.234The
ordinance in this case was construed to grant the Mayor discretion only to determine the public places that may be used
for the procession ormeeting, but not the power to refuse the issuance of a permit for such procession or meeting. 235 This
court explained that free speech and peaceful assembly are "not absolute for it may be so regulated that it shall not
beinjurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the community or
society."236

The earlier case of Calalang v. Williams237 involved the National Traffic Commission resolution that prohibited the passing
of animal-drawn vehicles along certain roads at specific hours.238 This court similarly discussed police power in that the
assailed rules carry outthe legislative policy that "aims to promote safe transit upon and avoid obstructions on national
roads, in the interest and convenience of the public."239

As early as 1907, United States v. Apurado240 recognized that "more or less disorder will mark the public assembly of the
people to protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a
high pitch of excitement. . . ."241 It is with this backdrop that the state is justified in imposing restrictions on incidental
matters as time, place, and manner of the speech.

In the landmark case of Reyes v. Bagatsing, this court summarized the steps that permit applicants must follow which
include informing the licensing authority ahead of time as regards the date, public place, and time of the assembly.242 This
would afford the public official time to inform applicants if there would be valid objections, provided that the clear and
present danger test is the standard used for his decision and the applicants are given the opportunity to be heard. 243 This
ruling was practically codified in Batas Pambansa No. 880, otherwise known as the Public Assembly Act of 1985.

Subsequent jurisprudence have upheld Batas Pambansa No. 880 as a valid content-neutral regulation. In the 2006 case of
Bayan v. Ermita,244 this court discussed how Batas Pambansa No. 880 does not prohibit assemblies but simply regulates
their time, place, and manner.245 In 2010, this court found in Integrated Bar of the Philippines v. Atienza246 that
respondent Mayor Atienza committed grave abuse of discretion when he modified the rally permit by changing the venue
from Mendiola Bridge to Plaza Miranda without first affording petitioners the opportunity to be heard. 247

We reiterate that the regulation involved at bar is content-based. The tarpaulin content is not easily divorced from the size
of its medium.

II.B.7 Justice Carpio and Justice Perlas-Bernabe suggest that the provisions imposing a size limit for tarpaulins are content-
neutral regulations as these "restrict the mannerby which speech is relayed but not the content of what is conveyed." 248

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If we apply the test for content-neutral regulation, the questioned acts of COMELEC will not pass the three requirements
for evaluating such restraints on freedom of speech.249 "When the speech restraints take the form of a content-neutral
regulation, only a substantial governmental interest is required for its validity,"250 and it is subject only to the intermediate
approach.251

This intermediate approach is based on the test that we have prescribed in several cases.252 A content-neutral government
regulation is sufficiently justified:

[1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial governmental
interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incident
restriction on alleged [freedom of speech & expression] is no greater than is essential to the furtherance of that interest.253

On the first requisite, it is not within the constitutional powers of the COMELEC to regulate the tarpaulin. As discussed
earlier, this is protected speech by petitioners who are non-candidates. On the second requirement, not only must the
governmental interest be important or substantial, it must also be compelling as to justify the restrictions made.

Compelling governmental interest would include constitutionally declared principles. We have held, for example, that "the
welfare of children and the State’s mandate to protect and care for them, as parens patriae, 254 constitute a substantial and
compelling government interest in regulating . . . utterances in TV broadcast."255

Respondent invokes its constitutional mandate to ensure equal opportunity for public information campaigns among
candidates in connection with the holding of a free, orderly, honest, peaceful, and credible election. 256

Justice Brion in his dissenting opinion discussed that "[s]ize limits to posters are necessary to ensure equality of public
information campaigns among candidates, as allowing posters with different sizes gives candidates and their supporters
the incentive to post larger posters[,] [and] [t]his places candidates with more money and/or with deep-pocket supporters
at an undue advantage against candidates with more humble financial capabilities."257

First, Adiong v. COMELEC has held that this interest is "not as important as the right of [a private citizen] to freely express
his choice and exercise his right of free speech."258 In any case, faced with both rights to freedom of speech and equality,
a prudent course would be to "try to resolve the tension in a way that protects the right of participation."259

Second, the pertinent election lawsrelated to private property only require that the private property owner’s consent be
obtained when posting election propaganda in the property. 260 This is consistent with the fundamental right against
deprivation of property without due process of law.261 The present facts do not involve such posting of election
propaganda absent consent from the property owner. Thus, this regulation does not apply in this case.

Respondents likewise cite the Constitution262 on their authority to recommend effective measures to minimize election
spending. Specifically, Article IX-C, Section 2(7) provides:

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

....

(7) Recommend to the Congress effective measures to minimize election spending, including limitation of places where
propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and
nuisance candidates. (Emphasis supplied) This does not qualify as a compelling and substantial government interest to
justify regulation of the preferred right to freedom of expression.

The assailed issuances for the removal of the tarpaulin are based on the two feet (2’) by three feet (3’) size limitation
under Section 6(c) of COMELEC Resolution No. 9615. This resolution implements the Fair Election Act that provides for the
same size limitation.263

This court held in Adiong v. COMELEC that "[c]ompared to the paramount interest of the State in guaranteeing freedom of
expression, any financial considerations behind the regulation are of marginal significance."264 In fact, speech with political
consequences, as in this case, should be encouraged and not curtailed. As petitioners pointed out, the size limitation will
not serve the objective of minimizing election spending considering there is no limit on the number of tarpaulins that may
be posted.265

The third requisite is likewise lacking. We look not only at the legislative intent or motive in imposing the restriction, but
more so at the effects of such restriction, if implemented. The restriction must not be narrowly tailored to achieve the
purpose. It must be demonstrable. It must allow alternative avenues for the actor to make speech.

In this case, the size regulation is not unrelated to the suppression of speech. Limiting the maximum sizeof the tarpaulin
would render ineffective petitioners’ message and violate their right to exercise freedom of expression.

The COMELEC’s act of requiring the removal of the tarpaulin has the effect of dissuading expressions with political
consequences. These should be encouraged, more so when exercised to make more meaningful the equally important
right to suffrage.

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The restriction in the present case does not pass even the lower test of intermediate scrutiny for content-neutral
regulations.

The action of the COMELEC in thiscase is a strong deterrent to further speech by the electorate. Given the stature of
petitioners and their message, there are indicators that this will cause a "chilling effect" on robust discussion during
elections.

The form of expression is just as important as the message itself. In the words of Marshall McLuhan, "the medium is the
message."266 McLuhan’s colleague and mentor Harold Innis has earlier asserted that "the materials on which words were
written down have often counted for more than the words themselves."267

III
Freedom of expression and equality

III.A The possibility of abuse

Of course, candidates and political parties do solicit the help of private individuals for the endorsement of their electoral
campaigns.

On the one extreme, this can take illicit forms such as when endorsement materials in the form of tarpaulins, posters, or
media advertisements are made ostensibly by "friends" but in reality are really paid for by the candidate or political party.
This skirts the constitutional value that provides for equal opportunities for all candidates.

However, as agreed by the parties during the oral arguments in this case, this is not the situation that confronts us. In
such cases, it will simply be a matter for investigation and proof of fraud on the part of the COMELEC.

The guarantee of freedom of expression to individuals without any relationship to any political candidate should not be
held hostage by the possibility of abuse by those seeking to be elected. It is true that there can be underhanded, covert,
or illicit dealings so as to hide the candidate’s real levels of expenditures. However, labelling all expressions of private
parties that tend to have an effect on the debate in the elections as election paraphernalia would be too broad a remedy
that can stifle genuine speech like in this case. Instead, to address this evil, better and more effective enforcement will be
the least restrictive means to the fundamental freedom.

On the other extreme, moved by the credentials and the message of a candidate, others will spend their own resources in
order to lend support for the campaigns. This may be without agreement between the speaker and the candidate or his or
her political party. In lieu of donating funds to the campaign, they will instead use their resources directly in a way that the
candidate or political party would have doneso. This may effectively skirt the constitutional and statutory limits of
campaign spending.

Again, this is not the situation in this case.

The message of petitioners in thiscase will certainly not be what candidates and political parties will carry in their election
posters or media ads. The message of petitioner, taken as a whole, is an advocacy of a social issue that it deeply believes.
Through rhetorical devices, it communicates the desire of Diocese that the positions of those who run for a political
position on this social issue be determinative of how the public will vote. It primarily advocates a stand on a social issue;
only secondarily — even almost incidentally — will cause the election or non-election of a candidate.

The twin tarpaulins consist of satire of political parties. Satire is a "literary form that employs such devices as sarcasm,
irony and ridicule to deride prevailing vices or follies,"268 and this may target any individual or group in society, private and
government alike. It seeks to effectively communicate a greater purpose, often used for "political and social
criticism"269 "because it tears down facades, deflates stuffed shirts, and unmasks hypocrisy. . . . Nothing is more
thoroughly democratic than to have the high-and-mighty lampooned and spoofed."270 Northrop Frye, wellknown in this
literary field, claimed that satire had two defining features: "one is wit or humor founded on fantasy or a sense of the
grotesque and absurd, the other is an object of attack."271 Thus, satire frequently uses exaggeration, analogy, and other
rhetorical devices.

The tarpaulins exaggerate. Surely, "Team Patay" does not refer to a list of dead individuals nor could the Archbishop of the
Diocese of Bacolod have intended it to mean that the entire plan of the candidates in his list was to cause death
intentionally. The tarpaulin caricatures political parties and parodies the intention of those in the list. Furthermore, the list
of "Team Patay" is juxtaposed with the list of "Team Buhay" that further emphasizes the theme of its author: Reproductive
health is an important marker for the church of petitioners to endorse.

The messages in the tarpaulins are different from the usual messages of candidates. Election paraphernalia from
candidates and political parties are more declarative and descriptive and contain no sophisticated literary allusion to any
social objective. Thus, they usually simply exhort the public to vote for a person with a brief description of the attributes of
the candidate. For example "Vote for [x], Sipag at Tiyaga," "Vote for [y], Mr. Palengke," or "Vote for [z], Iba kami sa
Makati."

This court’s construction of the guarantee of freedom of expression has always been wary of censorship or subsequent
punishment that entails evaluation of the speaker’s viewpoint or the content of one’s speech. This is especially true when
the expression involved has political consequences. In this case, it hopes to affect the type of deliberation that happens

25
during elections. A becoming humility on the part of any human institution no matter how endowed with the secular ability
to decide legal controversies with finality entails that we are not the keepers of all wisdom.

Humanity’s lack of omniscience, even acting collectively, provides space for the weakest dissent. Tolerance has always
been a libertarian virtue whose version is embedded in our Billof Rights. There are occasional heretics of yesterday that
have become our visionaries. Heterodoxies have always given us pause. The unforgiving but insistent nuance that the
majority surely and comfortably disregards provides us with the checks upon reality that may soon evolve into creative
solutions to grave social problems. This is the utilitarian version. It could also be that it is just part of human necessity to
evolve through being able to express or communicate.

However, the Constitution we interpret is not a theoretical document. It contains other provisions which, taken together
with the guarantee of free expression, enhances each other’s value. Among these are the provisions that acknowledge the
idea of equality. In shaping doctrine construing these constitutional values, this court needs to exercise extraordinary
prudence and produce narrowly tailored guidance fit to the facts as given so as not to unwittingly cause the undesired
effect of diluting freedoms as exercised in reality and, thus, render them meaningless.

III.B. Speech and equality:

Some considerations We first establish that there are two paradigms of free speech that separate at the point of giving
priority to equality vis-à-vis liberty.272

In an equality-based approach, "politically disadvantaged speech prevails over regulation[,] but regulation promoting
political equality prevails over speech."273 This view allows the government leeway to redistribute or equalize ‘speaking
power,’ such as protecting, even implicitly subsidizing, unpopular or dissenting voices often systematically subdued within
society’s ideological ladder.274 This view acknowledges that there are dominant political actors who, through authority,
power, resources, identity, or status, have capabilities that may drown out the messages of others. This is especially true
in a developing or emerging economy that is part of the majoritarian world like ours.

The question of libertarian tolerance

This balance between equality and the ability to express so as to find one’s authentic self or to participate in the self
determination of one’s communities is not new only to law. It has always been a philosophical problematique.

In his seminal work, Repressive Tolerance, philosopher and social theorist Herbert Marcuse recognized how
institutionalized inequality exists as a background limitation, rendering freedoms exercised within such limitation as merely
"protect[ing] the already established machinery of discrimination."275 In his view, any improvement "in the normal course
of events" within an unequal society, without subversion, only strengthens existing interests of those in power and
control.276

In other words, abstract guarantees of fundamental rights like freedom of expression may become meaningless if not
taken in a real context. This tendency to tackle rights in the abstract compromises liberties. In his words:

Liberty is self-determination, autonomy—this is almost a tautology, but a tautology which results from a whole series of
synthetic judgments. It stipulates the ability to determine one’s own life: to be able to determine what to do and what not
to do, what to suffer and what not. But the subject of this autonomy is never the contingent, private individual as that
which he actually is or happens to be; it is rather the individual as a human being who is capable of being free with the
others. And the problem of making possible such a harmony between every individual liberty and the other is not that of
finding a compromise between competitors, or between freedom and law, between general and individual interest,
common and private welfare in an established society, but of creating the society in which man is no longer enslaved by
institutions which vitiate self-determination from the beginning. In other words, freedom is still to be created even for the
freest of the existing societies.277 (Emphasis in the original)

Marcuse suggests that the democratic argument — with all opinions presented to and deliberated by the people — "implies
a necessary condition, namely, that the people must be capable of deliberating and choosing on the basis of knowledge,
that they must have access to authentic information, and that, on this basis, their evaluation must be the result of
autonomous thought."278 He submits that "[d]ifferent opinions and ‘philosophies’ can no longer compete peacefully for
adherence and persuasion on rational grounds: the ‘marketplace of ideas’ is organized and delimited by those who
determine the national and the individual interest."279 A slant toward left manifests from his belief that "there is a ‘natural
right’ of resistance for oppressed and overpowered minorities to use extralegal means if the legal ones have proved to be
inadequate."280 Marcuse, thus, stands for an equality that breaks away and transcends from established hierarchies, power
structures, and indoctrinations. The tolerance of libertarian society he refers to as "repressive tolerance."

Legal scholars

The 20th century also bears witness to strong support from legal scholars for "stringent protections of expressive
liberty,"281 especially by political egalitarians. Considerations such as "expressive, deliberative, and informational
interests,"282 costs or the price of expression, and background facts, when taken together, produce bases for a system of
stringent protections for expressive liberties.283

Many legal scholars discuss the interest and value of expressive liberties. Justice Brandeis proposed that "public discussion
is a political duty."284 Cass Sustein placed political speech on the upper tier of his twotier model for freedom of expression,

26
thus, warranting stringent protection.285 He defined political speech as "both intended and received as a contribution to
public deliberation about some issue."286

But this is usually related also tofair access to opportunities for such liberties.287 Fair access to opportunity is suggested to
mean substantive equality and not mere formal equalitysince "favorable conditions for realizing the expressive interest will
include some assurance of the resources required for expression and some guarantee that efforts to express views on
matters of common concern will not be drowned out by the speech of betterendowed citizens."288 Justice Brandeis’ solution
is to "remedy the harms of speech with more speech."289 This view moves away from playing down the danger as merely
exaggerated, toward "tak[ing] the costs seriously and embrac[ing] expression as the preferred strategy for addressing
them."290 However, in some cases, the idea of more speech may not be enough. Professor Laurence Tribe observed the
need for context and "the specification of substantive values before [equality] has full meaning."291 Professor Catherine A.
MacKinnon adds that "equality continues to be viewed in a formal rather than a substantive sense."292 Thus, more speech
can only mean more speech from the few who are dominant rather than those who are not.

Our jurisprudence

This court has tackled these issues.

Osmeña v. COMELEC affirmed National Press Club v. COMELEC on the validity of Section 11(b) ofthe Electoral Reforms Law
of 1987.293 This section "prohibits mass media from selling or giving free of charge print space or air time for campaign or
other political purposes, except to the Commission on Elections."294 This court explained that this provision only regulates
the time and manner of advertising in order to ensure media equality among candidates.295 This court grounded this
measure on constitutional provisions mandating political equality:296 Article IX-C, Section 4

Section 4. The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all
franchises or permits for 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 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 information campaigns and forums among candidates in connection with the objective of holding free, orderly,
honest, peaceful, and credible elections. (Emphasis supplied)

Article XIII, Section 1

Section 1. The Congress shall give highest priorityto the enactment of measures that protect and enhance the right of all
the people to human dignity, reducesocial, economic, and political inequalities, and remove cultural inequities by equitably
diffusing wealth and political power for the common good.

To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments.
(Emphasis supplied)

Article II, Section 26

Section 26. The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as
may be defined by law. (Emphasis supplied)

Thus, in these cases, we have acknowledged the Constitution’s guarantee for more substantive expressive freedoms that
take equality of opportunities into consideration during elections.

The other view

However, there is also the other view. This is that considerations of equality of opportunity or equality inthe ability of
citizens as speakers should not have a bearing in free speech doctrine. Under this view, "members of the public are trusted
to make their own individual evaluations of speech, and government is forbidden to intervene for paternalistic or
redistributive reasons . . . [thus,] ideas are best left to a freely competitive ideological market." 297 This is consistent with
the libertarian suspicion on the use of viewpoint as well as content to evaluate the constitutional validity or invalidity of
speech.

The textual basis of this view is that the constitutional provision uses negative rather than affirmative language. It uses
‘speech’ as its subject and not ‘speakers’.298 Consequently, the Constitution protects free speech per se, indifferent to the
types, status, or associations of its speakers.299 Pursuant to this, "government must leave speakers and listeners in the
private order to their own devices in sorting out the relative influence of speech."300

Justice Romero’s dissenting opinion in Osmeña v. COMELEC formulates this view that freedom of speech includes "not only
the right to express one’s views, but also other cognate rights relevant to the free communication [of] ideas, not excluding
the right to be informed on matters of public concern."301 She adds:

And since so many imponderables may affect the outcome of elections — qualifications of voters and candidates,
education, means of transportation, health, public discussion, private animosities, the weather, the threshold of a voter’s
resistance to pressure — the utmost ventilation of opinion of men and issues, through assembly, association and

27
organizations, both by the candidate and the voter, becomes a sine qua non for elections to truly reflect the will of the
electorate.302 (Emphasis supplied)

Justice Romero’s dissenting opinion cited an American case, if only to emphasize free speech primacy such that"courts, as
a rule are wary to impose greater restrictions as to any attempt to curtail speeches with political content," 303 thus:

the concept that the government may restrict the speech of some elements in our society in order to enhance the relative
voice of the 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."304

This echoes Justice Oliver Wendell Holmes’ submission "that the market place of ideas is still the best alternative to
censorship."305

Parenthetically and just to provide the whole detail of the argument, the majority of the US Supreme Court in the
campaign expenditures case of Buckley v. Valeo "condemned restrictions (even if content-neutral) on expressive liberty
imposed in the name of ‘enhanc[ing] the relative voice of others’ and thereby ‘equaliz[ing] access to the political
arena."306 The majority did not use the equality-based paradigm.

One flaw of campaign expenditurelimits is that "any limit placed on the amount which a person can speak, which takes out
of his exclusive judgment the decision of when enough is enough, deprives him of his free speech."307

Another flaw is how "[a]ny quantitative limitation on political campaigning inherently constricts the sum of public
information and runs counter to our ‘profound national commitment that debate on public issues should be uninhibited,
robust, and wide-open.’"308

In fact, "[c]onstraining those who have funds or have been able to raise funds does not ease the plight of those without
funds in the first place . . . [and] even if one’s main concern isslowing the increase in political costs, it may be more
effective torely on market forces toachieve that result than on active legal intervention."309 According to Herbert Alexander,
"[t]o oppose limitations is not necessarily to argue that the sky’s the limit [because in] any campaign there are saturation
levels and a point where spending no longer pays off in votes per dollar."310

III. C. When private speech amounts to election paraphernalia

The scope of the guarantee of free expression takes into consideration the constitutional respect for human potentiality
and the effect of speech. It valorizes the ability of human beings to express and their necessity to relate. On the other
hand, a complete guarantee must also take into consideration the effects it will have in a deliberative democracy. Skewed
distribution of resources as well as the cultural hegemony of the majority may have the effect of drowning out the speech
and the messages of those in the minority. In a sense, social inequality does have its effect on the exercise and effect of
the guarantee of free speech. Those who have more will have better access to media that reaches a wider audience than
those who have less. Those who espouse the more popular ideas will have better reception than the subversive and the
dissenters of society.To be really heard and understood, the marginalized view normally undergoes its own degree of
struggle.

The traditional view has been to tolerate the viewpoint of the speaker and the content of his or her expression. This view,
thus, restricts laws or regulation that allows public officials to make judgments of the value of such viewpoint or message
content. This should still be the principal approach.

However, the requirements of the Constitution regarding equality in opportunity must provide limits to some expression
during electoral campaigns.

Thus clearly, regulation of speech in the context of electoral campaigns made by candidates or the members of their
political parties or their political parties may be regulated as to time, place, and manner. This is the effect of our rulings in
Osmeña v. COMELEC and National Press Club v. COMELEC.

Regulation of speech in the context of electoral campaigns made by persons who are not candidates or who do not speak
as members of a political party which are, taken as a whole, principally advocacies of a social issue that the public must
consider during elections is unconstitutional. Such regulation is inconsistent with the guarantee of according the fullest
possible range of opinions coming from the electorate including those that can catalyze candid, uninhibited, and robust
debate in the criteria for the choice of a candidate.

This does not mean that there cannot be a specie of speech by a private citizen which will not amount toan election
paraphernalia to be validly regulated by law.

Regulation of election paraphernalia will still be constitutionally valid if it reaches into speech of persons who are not
candidates or who do not speak as members of a political party if they are not candidates, only if what is regulated is
declarative speech that, taken as a whole, has for its principal object the endorsement of a candidate only. The regulation
(a) should be provided by law, (b) reasonable, (c) narrowly tailored to meet the objective of enhancing the opportunity of
all candidates to be heard and considering the primacy of the guarantee of free expression, and (d) demonstrably the least
restrictive means to achieve that object. The regulation must only be with respect to the time, place, and manner of the

28
rendition of the message. In no situation may the speech be prohibited or censored onthe basis of its content. For this
purpose, it will notmatter whether the speech is made with or on private property.

This is not the situation, however, in this case for two reasons. First, as discussed, the principal message in the twin
tarpaulins of petitioners consists of a social advocacy.

Second, as pointed out in the concurring opinion of Justice Antonio Carpio, the present law — Section 3.3 of Republic Act
No. 9006 and Section 6(c) of COMELEC Resolution No. 9615 — if applied to this case, will not pass the test of
reasonability. A fixed size for election posters or tarpaulins without any relation to the distance from the intended average
audience will be arbitrary. At certain distances, posters measuring 2 by 3 feet could no longer be read by the general
public and, hence, would render speech meaningless. It will amount to the abridgement of speech with political
consequences.

IV
Right to property

Other than the right to freedom of expression311 and the meaningful exercise of the right to suffrage,312 the present case
also involves one’s right to property.313

Respondents argue that it is the right of the state to prevent the circumvention of regulations relating to election
propaganda by applying such regulations to private individuals.314 Certainly, any provision or regulation can be
circumvented. But we are not confronted with this possibility. Respondents agree that the tarpaulin in question belongs to
petitioners. Respondents have also agreed, during the oral arguments, that petitioners were neither commissioned nor paid
by any candidate or political party to post the material on their walls.

Even though the tarpaulin is readily seen by the public, the tarpaulin remains the private property of petitioners. Their right
to use their property is likewise protected by the Constitution.

In Philippine Communications Satellite Corporation v. Alcuaz:315

Any regulation, therefore, which operates as an effective confiscation of private property or constitutes an arbitrary or
unreasonable infringement of property rights is void, because it is repugnant to the constitutional guaranties of due
process and equal protection of the laws.316 (Citation omitted)

This court in Adiong held that a restriction that regulates where decals and stickers should be posted is "so broad that it
encompasses even the citizen’s private property."317 Consequently, it violates Article III, Section 1 of the Constitution which
provides thatno person shall be deprived of his property without due process of law. This court explained:

Property is more than the mere thing which a person owns, it includes the right to acquire, use, and dispose of it; and the
Constitution, in the 14th Amendment, protects these essential attributes.

Property is more than the mere thing which a person owns. It is elementary that it includes the right to acquire, use, and
dispose of it. The Constitution protects these essential attributes of property. Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed.
780, 790, 18 Sup. Ct. Rep. 383. Property consists of the free use, enjoyment, and disposal of a person’s acquisitions
without control or diminution save by the law of the land. 1 Cooley’s Bl. Com. 127. (Buchanan v. Warley 245 US 60
[1917])318

This court ruled that the regulation in Adiong violates private property rights:

The right to property may be subject to a greater degree of regulation but when this right is joined by a "liberty" interest,
the burden of justification on the part of the Government must be exceptionally convincing and irrefutable. The burden is
not met in this case.

Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting or display of election propaganda
in any place, whether public or private, except inthe common poster areas sanctioned by COMELEC. This means that a
private person cannot post his own crudely prepared personal poster on his own front dooror on a post in his yard. While
the COMELEC will certainly never require the absurd, there are no limits to what overzealous and partisan police officers,
armed with a copy of the statute or regulation, may do.319 Respondents ordered petitioners, who are private citizens, to
remove the tarpaulin from their own property. The absurdity of the situation is in itself an indication of the
unconstitutionality of COMELEC’s interpretation of its powers.

Freedom of expression can be intimately related with the right to property. There may be no expression when there is no
place where the expression may be made. COMELEC’s infringement upon petitioners’ property rights as in the present case
also reaches out to infringement on their fundamental right to speech.

Respondents have not demonstrated thatthe present state interest they seek to promote justifies the intrusion into
petitioners’ property rights. Election laws and regulations must be reasonable. It must also acknowledge a private
individual’s right to exercise property rights. Otherwise, the due process clause will be violated.

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COMELEC Resolution No. 9615 and the Fair Election Act intend to prevent the posting of election propaganda in private
property without the consent of the owners of such private property. COMELEC has incorrectly implemented these
regulations. Consistent with our ruling in Adiong, we find that the act of respondents in seeking to restrain petitioners from
posting the tarpaulin in their own private property is an impermissible encroachments on the right to property.

V
Tarpaulin and its message are not religious speech

We proceed to the last issues pertaining to whether the COMELEC in issuing the questioned notice and letter violated the
right of petitioners to the free exercise of their religion.

At the outset, the Constitution mandates the separation of church and state.320 This takes many forms. Article III, Section
5 of the Constitution, for instance provides:

Section 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free
exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed.
Noreligious test shall be required for the exercise of civil or political rights.

There are two aspects of this provision.321 The first is the none stablishment clause.322 Second is the free exercise and
enjoyment of religious profession and worship.323

The second aspect is atissue in this case.

Clearly, not all acts done by those who are priests, bishops, ustadz, imams, or any other religious make such act immune
from any secular regulation.324 The religious also have a secular existence. They exist within a society that is regulated by
law.

The Bishop of Bacolod caused the posting of the tarpaulin. But not all acts of a bishop amounts to religious expression.
This notwithstanding petitioners’ claim that "the views and position of the petitioners, the Bishop and the Diocese of
Bacolod, on the RH Bill is inextricably connected to its Catholic dogma, faith, and moral teachings. . . ." 325

The difficulty that often presents itself in these cases stems from the reality that every act can be motivated by moral,
ethical, and religious considerations. In terms of their effect on the corporeal world, these acts range from belief, to
expressions of these faiths, to religious ceremonies, and then to acts of a secular character that may, from the point of
view of others who do not share the same faith or may not subscribe to any religion, may not have any religious bearing.

Definitely, the characterizations ofthe religious of their acts are not conclusive on this court. Certainly, our powers of
adjudication cannot be blinded by bare claims that acts are religious in nature.

Petitioners erroneously relied on the case of Ebralinag v. The Division Superintendent of Schools of Cebu326 in claiming that
the court "emphatically" held that the adherents ofa particular religion shall be the ones to determine whether a particular
matter shall be considered ecclesiastical in nature.327 This court in Ebralinagexempted Jehovah’s Witnesses from
participating in the flag ceremony "out of respect for their religious beliefs, [no matter how] "bizarre" those beliefsmay
seem to others."328 This court found a balance between the assertion of a religious practice and the compelling necessities
of a secular command. It was an early attempt at accommodation of religious beliefs.

In Estrada v. Escritor,329 this court adopted a policy of benevolent neutrality:

With religion looked upon with benevolence and not hostility, benevolent neutrality allows accommodation of religion under
certain circumstances. Accommodations are government policies that take religion specifically intoaccount not to promote
the government’s favored form of religion, but to allow individuals and groups to exercise their religion without hindrance.
Their purpose or effect therefore is to remove a burden on, or facilitate the exercise of, a person’s or institution’s religion.
As Justice Brennan explained, the "government [may] take religion into account . . . to exempt, when possible, from
generally applicable governmental regulation individuals whose religious beliefs and practices would otherwise thereby be
infringed, or to create without state involvement an atmosphere in which voluntary religious exercise may flourish." 330

This court also discussed the Lemon test in that case, such that a regulation is constitutional when: (1) it has a secular
legislative purpose; (2) it neither advances nor inhibits religion; and (3) it does not foster an excessive entanglement with
religion.331

As aptly argued by COMELEC, however, the tarpaulin, on its face, "does not convey any religious doctrine of the Catholic
church."332 That the position of the Catholic church appears to coincide with the message of the tarpaulin regarding the RH
Law does not, by itself, bring the expression within the ambit of religious speech. On the contrary, the tarpaulin clearly
refers to candidates classified under "Team Patay" and "Team Buhay" according to their respective votes on the RH Law.

The same may be said of petitioners’ reliance on papal encyclicals to support their claim that the expression onthe
tarpaulin is an ecclesiastical matter. With all due respect to the Catholic faithful, the church doctrines relied upon by
petitioners are not binding upon this court. The position of the Catholic religion in the Philippines as regards the RH Law
does not suffice to qualify the posting by one of its members of a tarpaulin as religious speech solely on such basis. The
enumeration of candidates on the face of the tarpaulin precludes any doubtas to its nature as speech with political
consequences and not religious speech.

30
Furthermore, the definition of an "ecclesiastical affair" in Austria v. National Labor Relations Commission333 cited by
petitioners finds no application in the present case. The posting of the tarpaulin does not fall within the category of matters
that are beyond the jurisdiction of civil courts as enumerated in the Austriacase such as "proceedings for excommunication,
ordinations of religious ministers, administration of sacraments and other activities withattached religious significance." 334

A FINAL NOTE

We maintain sympathies for the COMELEC in attempting to do what it thought was its duty in this case. However, it was
misdirected.

COMELEC’s general role includes a mandate to ensure equal opportunities and reduce spending among candidates and
their registered political parties. It is not to regulate or limit the speech of the electorate as it strives to participate inthe
electoral exercise.

The tarpaulin in question may be viewed as producing a caricature of those who are running for public office.Their
message may be construed generalizations of very complex individuals and party-list organizations.

They are classified into black and white: as belonging to "Team Patay" or "Team Buhay."

But this caricature, though not agreeable to some, is still protected speech.

That petitioners chose to categorize them as purveyors of death or of life on the basis of a single issue — and a complex
piece of legislation at that — can easily be interpreted as anattempt to stereo type the candidates and party-list
organizations. Not all may agree to the way their thoughts were expressed, as in fact there are other Catholic dioceses that
chose not to follow the example of petitioners.

Some may have thought that there should be more room to consider being more broad-minded and non-judgmental. Some
may have expected that the authors would give more space to practice forgiveness and humility.

But, the Bill of Rights enumerated in our Constitution is an enumeration of our fundamental liberties. It is not a detailed
code that prescribes good conduct. It provides space for all to be guided by their conscience, not only in the act that they
do to others but also in judgment of the acts of others.

Freedom for the thought we can disagree with can be wielded not only by those in the minority. This can often be
expressed by dominant institutions, even religious ones. That they made their point dramatically and in a large way does
not necessarily mean that their statements are true, or that they have basis, or that they have been expressed in good
taste.

Embedded in the tarpaulin, however, are opinions expressed by petitioners. It is a specie of expression protected by our
fundamental law. It is an expression designed to invite attention, cause debate, and hopefully, persuade. It may be
motivated by the interpretation of petitioners of their ecclesiastical duty, but their parishioner’s actions will have very real
secular consequences. Certainly, provocative messages do matter for the elections.

What is involved in this case is the most sacred of speech forms: expression by the electorate that tends to rouse the
public to debate contemporary issues. This is not speechby candidates or political parties to entice votes. It is a portion of
the electorate telling candidates the conditions for their election. It is the substantive content of the right to suffrage.

This. is a form of speech hopeful of a quality of democracy that we should all deserve. It is protected as a fundamental
and primordial right by our Constitution. The expression in the medium chosen by petitioners deserves our protection.

WHEREFORE, the instant petition is GRANTED. The temporary restraining order previously issued is hereby made
permanent. The act of the COMELEC in issuing the assailed notice dated February 22, 2013 and letter dated February 27,
2013 is declared unconstitutional.

SO ORDERED.

G.R. No. 205357 September 2, 2014

GMA NETWORK, INC., Petitioner, vs. COMMISSION ON ELECTIONS, Respondent.

SENATOR ALAN PETER "COMPAÑERO" S. CAYETANO,Petitioner-Intervenor.

x-----------------------x

G.R. No. 205374

ABC DEVELOPMENT CORPORATION, Petitioner, vs. COMMISSION ON ELECTIONS, Respondent.

x-----------------------x

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G.R. No. 205592

MANILA BROADCASTING COMPANY, INC. and NEWSOUNDS BROADCASTING NETWORK, INC., Petitioner, vs.
COMMISSION ON ELECTIONS, Respondent.

x-----------------------x

G.R. No. 205852

KAPISANAN NG MGA BRODKASTER NG PILIPINAS (KBP) and ABS-CBN CORPORATION, Petitioners, vs.
COMMISSION ON ELECTIONS, Respondent.

x-----------------------x

G.R. No. 206360

RADIO MINDANAO NETWORK, INC., Petitioner, vs. COMMISSION ON ELECTIONS, Respondent.

"The clash of rights demands a delicate balancing of interests approach which is a 'fundamental postulate of constitutional
law.'"1

Once again the Court is asked to draw a carefully drawn balance in the incessant conflicts between rights and regulations,
liberties and limitations, and competing demands of the different segments of society. Here, we are confronted with the
need to strike a workable and viable equilibrium between a constitutional mandate to maintain free, orderly, honest,
peaceful and credible elections, together with the aim of ensuring equal opportunity, time and space, and the right to
reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates, 2 on one
hand, and the imperatives of a republican and democratic state,3 together with its guaranteed rights of suffrage,4 freedom
of speech and of the press,5 and the people's right to information,6 on the other.

In a nutshell, the present petitions may be seen as in search of the answer to the question - how does the Charter of a
republican and democratic State achieve a viable and acceptable balance between liberty, without which, government
becomes an unbearable tyrant, and authority, without which, society becomes an intolerable and dangerous arrangement?

Assailed in these petitions are certain regulations promulgated by the Commission on Elections (COMELEC) relative to the
conduct of the 2013 national and local elections dealing with political advertisements. Specifically, the petitions question
the constitutionality of the limitations placed on aggregate airtime allowed to candidates and political parties, as well as the
requirements incident thereto, such as the need to report the same, and the sanctions imposed for violations.

The five (5) petitions before the Court put in issue the alleged unconstitutionality of Section 9 (a) of COMELEC Resolution
No. 9615 (Resolution) limiting the broadcast and radio advertisements of candidates and political parties for national
election positions to an aggregate total of one hundred twenty (120) minutes and one hundred eighty (180) minutes,
respectively. They contend that such restrictive regulation on allowable broadcast time violates freedom of the press,
impairs the people's right to suffrage as well as their right to information relative to the exercise of their right to choose
who to elect during the forth coming elections.

The heart of the controversy revolves upon the proper interpretation of the limitation on the number of minutes that
candidates may use for television and radio advertisements, as provided in Section 6 of Republic Act No. 9006 (R.A. No.
9006), otherwise known as the Fair Election Act. Pertinent portions of said provision state, thus:

Sec. 6. Equal Access to Media Time and Space. - All registered parties and bona fide candidates shall have equal access to
media time and space. The following guidelines may be amplified on by the COMELEC:

xxxx

6.2 (a) Each bona fide candidate or registered political party for a nationally elective office shall be entitled to not more
than one hundred twenty (120) minutes of television advertisement and one hundred eighty (180) minutes of radio
advertisement whether by purchase or donation.

b. Each bona fide candidate or registered political party for a locally elective office shall be entitled to not more than sixty (
60) minutes of television advertisement and ninety (90) minutes of radio advertisement whether by purchase or donation.

For this purpose, the COMELEC shall require any broadcast station or entity to submit to the COMELEC a copy of its
broadcast logs and certificates of performance for the review and verification of the frequency, date, time and duration of
advertisements broadcast for any candidate or political party.

During the previous elections of May 14, 2007 and May 10, 2010, COMELEC issued Resolutions implementing and
interpreting Section 6 of R.A. No. 9006, regarding airtime limitations, to mean that a candidate is entitled to the
aforestated number of minutes "per station."7 For the May 2013 elections, however, respondent COMELEC promulgated
Resolution No. 9615 dated January 15, 2013, changing the interpretation of said candidates' and political parties' airtime
limitation for political campaigns or advertisements from a "per station" basis, to a "total aggregate" basis.

32
Petitioners ABS-CBN Corporation (ABS-CBN), ABC Development Corporation (ABC), GMA Network, Incorporated ( GMA),
Manila Broadcasting Company, Inc. (MBC), Newsounds Broadcasting Network, Inc. (NBN), and Radio Mindanao Network,
Inc. (RMN) are owners/operators of radio and television networks in the Philippines, while petitioner Kapisanan ng mga
Brodkaster ng Pilipinas (KBP) is the national organization of broadcasting companies in the Philippines representing
operators of radio and television stations and said stations themselves. They sent their respective letters to the COMELEC
questioning the provisions of the aforementioned Resolution, thus, the COMELEC held public hearings. Thereafter, on
February 1, 2013, respondent issued Resolution No. 9631 amending provisions of Resolution No. 9615. Nevertheless,
petitioners still found the provisions objectionable and oppressive, hence, the present petitions.

All of the petitioners assail the following provisions of the Resolution:

a) Section 7 (d),8 which provides for a penalty of suspension or revocation of an offender's franchise or permit,
imposes criminal liability against broadcasting entities and their officers in the event they sell airtime in excess of
the size, duration, or frequency authorized in the new rules;

b) Section 9 (a),9 which provides for an "aggregate total" airtime instead of the previous "per station" airtime for
political campaigns or dvertisements, and also required prior COMELEC approval for candidates' television and
radio guestings and appearances; and

c) Section 14,10 which provides for a candidate's "right to reply."

In addition, petitioner ABC also questions Section 1 (4) 11 thereof, which defines the term "political advertisement" or
"election propaganda," while petitioner GMA further assails Section 35, 12 which states that any violation of said Rules shall
constitute an election offense.

On March 15, 2013, Senator Alan Peter S. Cayetano (Petitioner-Intervenor) filed a Motion for Leave to Intervene and to
File and Admit the Petition-in-Intervention, which was granted by the Court per its Resolution dated March 19, 2013.
Petitioner-Intervenor also assails Section 9 (a) of the Resolution changing the interpretation of candidates' and political
parties' airtime limitation for political campaigns or advertisements from a "per station" basis, to a "total aggregate" basis.
Petitioners allege that Resolutions No. 9615 and 9631, amending the earlier Resolution, are unconstitutional and issued
without jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction, for the reasons set forth
hereunder.

Petitioners posit that Section 9 (a) of the assailed Resolution provides for a very restrictive aggregate airtime limit and a
vague meaning for a proper computation of "aggregate total" airtime, and violates the equal protection guarantee, thereby
defeating the intent and purpose of R.A. No. 9006.

Petitioners contend that Section 9 (a), which imposes a notice requirement, is vague and infringes on the constitutionally
protected freedom of speech, of the press and of expression, and on the right of people to be informed on matters of
public concern

Also, Section 9 (a) is a cruel and oppressive regulation as it imposes an unreasonable and almost impossible burden on
broadcast mass media of monitoring a candidate's or political party's aggregate airtime, otherwise, it may incur
administrative and criminal liability.

Further, petitioners claim that Section 7 (d) is null and void for unlawfully criminalizing acts not prohibited and penalized as
criminal offenses by R.A. No. 9006.

Section 14 of Resolution No. 9615, providing for a candidate's or political party's "right to reply," is likewise assailed to be
unconstitutional for being an improper exercise of the COMELEC's regulatory powers; for constituting prior restraint and
infringing petitioners' freedom of expression, speech and the press; and for being violative of the equal protection
guarantee. In addition to the foregoing, petitioner GMA further argues that the Resolution was promulgated without public
consultations, in violation of petitioners' right to due process. Petitioner ABC also avers that the Resolution's definition of
the terms "political advertisement" and "election propaganda" suffers from overbreadth, thereby producing a "chilling
effect," constituting prior restraint.

On the other hand, respondent posits in its Comment and Opposition13 dated March 8, 2013, that the petition should be
denied based on the following reasons:

Respondent contends that the remedies of certiorari and prohibition are not available to petitioners, because the writ of
certiorari is only available against the COMELEC's adjudicatory or quasi-judicial powers, while the writ of prohibition only
lies against the exercise of judicial, quasijudicial or ministerial functions. Said writs do not lie against the COMELEC's
administrative or rule-making powers.

Respondent likewise alleges that petitioners do not have locus standi, as the constitutional rights and freedoms they
enumerate are not personal to them, rather, they belong to candidates, political parties and the Filipino electorate in
general, as the limitations are imposed on candidates, not on media outlets. It argues that petitioners' alleged risk of
exposure to criminal liability is insufficient to give them legal standing as said "fear of injury" is highly speculative and
contingent on a future act.

Respondent then parries petitioners' attack on the alleged infirmities of the Resolution's provisions.

33
Respondent maintains that the per candidate rule or total aggregate airtime limit is in accordance with R.A. No. 9006 as
this would truly give life to the constitutional objective to equalize access to media during elections. It sees this as a more
effective way of levelling the playing field between candidates/political parties with enormous resources and those without
much. Moreover, the COMELEC's issuance of the assailed Resolution is pursuant to Section 4, Article IX (C) of the
Constitution which vests on the COMELEC the power to supervise and regulate, during election periods, transportation and
other public utilities, as well as mass media, to wit:

Sec. 4. The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises
or permits for 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 or controlled corporation or its subsidiary. Such supervision or regulation shall aim to
ensure equal opportunity, and equal rates therefor, for public information campaigns and forums among candidates in
connection with the objective of holding free, orderly, honest, peaceful, and credible elections.

This being the case, then the Resolutions cannot be said to have been issued with grave abuse of discretion amounting to
lack of jurisdiction.

Next, respondent claims that the provisions are not vague because the assailed Resolutions have given clear and adequate
mechanisms to protect broadcast stations from potential liability arising from a candidate's or party's violation of airtime
limits by putting in the proviso that the station "may require buyer to warrant under oath that such purchase [of airtime] is
not in excess of size, duration or frequency authorized by law or these rules." Furthermore, words should be understood in
the sense that they have in common usage, and should be given their ordinary meaning. Thus, in the provision for the
right to reply, "charges" against candidates or parties must be understood in the ordinary sense, referring to accusations or
criticisms.

Respondent also sees no prior restraint in the provisions requiring notice to the COMELEC for appearances or guestings of
candidates in bona fide news broadcasts. It points out that the fact that notice may be given 24 hours after first broadcast
only proves that the mechanism is for monitoring purposes only, not for censorship. Further, respondent argues, that for
there to be prior restraint, official governmental restrictions on the press or other forms of expression must be done in
advance of actual publication or dissemination. Moreover, petitioners are only required to inform the COMELEC of
candidates'/parties' guestings, but there is no regulation as to the content of the news or the expressions in news
interviews or news documentaries. Respondent then emphasized that the Supreme Court has held that freedom of speech
and the press may be limited in light of the duty of the COMELEC to ensure equal access to opportunities for public service.

With regard to the right to reply provision, respondent also does not consider it as restrictive of the airing of bona fide
news broadcasts. More importantly, it stressed, the right to reply is enshrined in the Constitution, and the assailed
Resolutions provide that said right can only be had after going through administrative due process. The provision was also
merely lifted from Section 10 of R.A. No. 9006, hence, petitioner ABC is actually attacking the constitutionality of R.A. No.
9006, which cannot be done through a collateral attack.

Next, respondent counters that there is no merit to ABC's claim that the Resolutions' definition of "political advertisement"
or "election propaganda" suffers from overbreadth, as the extent or scope of what falls under said terms is clearly stated in
Section 1 (4) of Resolution No. 9615.

It is also respondent's view that the nationwide aggregate total airtime does not violate the equal protection clause,
because it does not make any substantial distinctions between national and regional and/or local broadcast stations, and
even without the aggregate total airtime rule, candidates and parties are likely to be more inclined to advertise in national
broadcast stations. Respondent likewise sees no merit in petitioners' claim that the Resolutions amount to taking of private
property without just compensation. Respondent emphasizes that radio and television broadcasting companies do not own
the airwaves and frequencies through which they transmit broadcast signals; they are merely given the temporary privilege
to use the same. Since they are merely enjoying a privilege, the same may be reasonably burdened with some form of
public service, in this case, to provide candidates with the opportunity to reply to charges aired against them.

Lastly, respondent contends that the public consultation requirement does not apply to constitutional commissions such as
the COMELEC, pursuant to Section 1, Chapter I, Book VII of the Administrative Code of 1987. Indeed, Section 9, Chapter
II, Book VII of said Code provides, thus:

Section 9. Public Participation. - (1) If not otherwise required by law, an agency shall, as far as practicable,
publish or circulate notices of proposed rules and afford interested parties the opportunity to submit their views
prior to the adoption of any rule.

However, Section 1, Chapter 1, Book VII of said Code clearly provides:

Section 1. Scope. -This Book shall be applicable to all agencies as defined in the next succeeding section, except
the Congress, the Judiciary, the Constitutional Commissions, military establishments in all matters relating
exclusively to Armed Forces personnel, the Board of Pardons and Parole, and state universities and colleges.

Nevertheless, even if public participation is not required, respondent still conducted a meeting with representatives of the
KBP and various media outfits on December 26, 2012, almost a month before the issuance of Resolution No. 9615.

On April 2, 2013, petitioner GMA filed its Reply,14 where it advanced the following counter-arguments:

34
According to GMA, a petition for certiorari is the proper remedy to question the herein assailed Resolutions, which should
be considered as a "decision, order or ruling of the Commission" as mentioned in Section 1, Rule 37 of the COMELEC Rules
of Procedure which provides:

Section 1. Petition for Certiorari,· and Time to File. - Unless otherwise provided by law, or by any specific provisions in
these Rules, any decision, order or ruling of the Commission may be brought to the Supreme Court on certiorari by the
aggrieved party within thirty (30) days from its promulgation.

GMA further stressed that this case involves national interest, and the urgency of the matter justifies its resort to the
remedy of a petition for certiorari.

Therefore, GMA disagrees with the COMELEC's position that the proper remedy is a petition for declaratory relief because
such action only asks the court to make a proper interpretation of the rights of parties under a statute or regulation. Such
a petition does not nullify the assailed statute or regulation, or grant injunctive relief, which petitioners are praying for in
their petition. Thus, GMA maintains that a petition for certiorari is the proper remedy.

GMA further denies that it is making a collateral attack on the Fair Election Act, as it is not attacking said law. GMA points
out that it has stated in its petition that the law in fact allows the sale or donation of airtime for political advertisements
and does not impose criminal liability against radio and television stations. What it is assailing is the COMELEC's erroneous
interpretation of the law's provisions by declaring such sale and/or donation of airtime unlawful, which is contrary to the
purpose of the Fair Election Act.

GMA then claims that it has legal standing to bring the present suit because:

x x x First, it has personally suffered a threatened injury in the form of risk of criminal liability because of the alleged
unconstitutional and unlawful conduct of respondent COMELEC in expanding what was provided for in R.A. No. 9006.
Second, the injury is traceable to the challenged action of respondent COMELEC, that is, the issuance of the assailed
Resolutions. Third, the injury is likely to be redressed by the remedy sought in petitioner GMA's Petition, among others, for
the Honorable Court to nullify the challenged pertinent provisions of the assailed Resolutions. 15

On substantive issues, GMA first argues that the questioned Resolutions are contrary to the objective and purpose of the
Fair Election Act. It points out that the Fair Election Act even repealed the political ad ban found in the earlier law, R.A. No.
6646. The Fair Election Act also speaks of "equal opportunity" and "equal access,'' but said law never mentioned equalizing
the economic station of the rich and the poor, as a declared policy. Furthermore, in its opinion, the supposed correlation
between candidates' expenditures for TV ads and actually winning the elections, is a mere illusion, as there are other
various factors responsible for a candidate's winning the election. GMA then cites portions of the deliberations of the
Bicameral Conference Committee on the bills that led to the enactment of the Fair Election Act, and alleges that this shows
the legislative intent that airtime allocation should be on a "per station" basis. Thus, GMA claims it was arbitrary and a
grave abuse of discretion for the COMELEC to issue the present Resolutions imposing airtime limitations on an "aggregate
total" basis.

It is likewise insisted by GMA that the assailed Resolutions impose an unconstitutional burden on them, because their
failure to strictly monitor the duration of total airtime that each candidate has purchased even from other stations would
expose their officials to criminal liability and risk losing the station's good reputation and goodwill, as well as its franchise.
It argues that the wordings of the Resolutions belie the COMELEC's claim that petitioners would only incur liability if they
"knowingly" sell airtime beyond the limits imposed by the Resolutions, because the element of knowledge is clearly absent
from the provisions thereof. This makes the provisions have the nature of malum prohibitum.

Next, GMA also says that the application of the aggregate airtime limit constitutes prior restraint and is unconstitutional,
opining that "[t]he reviewing power of respondent COMELEC and its sole judgment of a news event as a political
advertisement are so pervasive under the assailed Resolutions, and provoke the distastes or chilling effect of prior
restraint"16 as even a legitimate exercise of a constitutional right might expose it to legal sanction. Thus, the governmental
interest of leveling the playing field between rich and poor candidates cannot justify the restriction on the freedoms of
expression, speech and of the press.

On the issue of lack of prior public participation, GMA cites Section 82 of the Omnibus Election Code, pertinent portions of
which provide, thus:

Section 82. Lawful election propaganda. - Lawful election propaganda shall include:

xxxx

All other forms of election propaganda not prohibited by this Code as the Commission may authorize after due notice to all
interested parties and hearing where all the interested parties were given an equal opportunity to be heard: Provided, That
the Commission's authorization shall be published in two newspapers of general circulation throughout the nation for at
least twice within one week after the authorization has been granted.

There having been no prior public consultation held, GMA contends that the COMELEC is guilty of depriving petitioners of
its right to due process of law.

35
GMA then concludes that it is also entitled to a temporary restraining order, because the implementation of the Resolutions
in question will cause grave and irreparable damage to it by disrupting and emasculating its mandate to provide television
and radio services to the public, and by exposing it to the risk of incurring criminal and administrative liability by requiring
it to perform the impossible task of surveillance and monitoring, or the broadcasts of other radio and television stations.

Thereafter, on April 4, 2013, the COMELEC, through the Office of the Solicitor General (OSG), filed a Supplemental
Comment and Opposition17 where it further expounded on the legislative intent behind the Fair Election Act, also quoting
portions of the deliberations of the Bicameral Conference Committee, allegedly adopting the Senate Bill version setting the
computation of airtime limits on a per candidate, not per station, basis. Thus, as enacted into law, the wordings of Section
6 of the Fair Election Act shows that the airtime limit is imposed on a per candidate basis, rather than on a per station
basis. Furthermore, the COMELEC states that petitioner intervenor Senator Cayetano is wrong in arguing that there should
be empirical data to support the need to change the computation of airtime limits from a per station basis to a per
candidate basis, because nothing in law obligates the COMELEC to support its Resolutions with empirical data, as said
airtime limit was a policy decision dictated by the legislature itself, which had the necessary empirical and other data upon
which to base said policy decision.

The COMELEC then points out that Section 2 (7),18 Article IX (C) of the Constitution empowers it to recommend to
Congress effective measures to minimize election spending and in furtherance of such constitutional power, the COMELEC
issued the questioned Resolutions, in faithful implementation of the legislative intent and objectives of the Fair Election
Act.

The COMELEC also dismisses Senator Cayetano's fears that unauthorized or inadvertent inclusion of his name, initial,
image, brand, logo, insignia and/or symbol in tandem advertisements will be charged against his airtime limits by pointing
out that what will be counted against a candidate's airtime and expenditures are those advertisements that have been paid
for or donated to them to which the candidate has given consent.

With regard to the attack that the total aggregate airtime limit constitutes prior restraint or undue abridgement of the
freedom of speech and expression, the COMELEC counters that "the Resolutions enjoy constitutional and congressional
imprimatur. It is the Constitution itself that imposes the restriction on the freedoms of speech and expression, during
election period, to promote an important and significant governmental interest, which is to equalize, as far as practicable,
the situation of rich and poor candidates by preventing the former from enjoying the undue advantage offered by huge
campaign 'war chests."'19

Lastly, the COMELEC also emphasizes that there is no impairment of the people's right to information on matters of public
concern, because in this case, the COMELEC is not withholding access to any public record.

On April 16, 2013, this Court issued a Temporary Restraining Order20 (TRO) in view of the urgency involved and to prevent
irreparable injury that may be caused to the petitioners if respondent COMELEC is not enjoined from implementing
Resolution No. 9615.

On April 19, 2013 respondent filed an Urgent Motion to Lift Temporary Restraining Order and Motion for Early Resolution
of the Consolidated Petitions.21

On May 8, 2013, petitioners ABS-CBN and the KBP filed its Opposition/Comment22 to the said Motion. Not long after, ABC
followed suit and filed its own Opposition to the Motion23 filed by the respondent.

In the interim, respondent filed a Second Supplemental Comment and Opposition24 dated April 8, 2013.

In the Second Supplemental Comment and Opposition, respondent delved on points which were not previously discussed
in its earlier Comment and Supplemental Comment, particularly those raised in the petition filed by petitioner ABS-CBN and
KBP.

Respondent maintains that certiorari in not the proper remedy to question the Constitutionality of the assailed Resolutions
and that petitioners ABS-CBN and KBP have no locus standi to file the present petition.

Respondent posits that contrary to the contention of petitioners, the legislative history of R.A. No. 9006 conclusively shows
that congress intended the airtime limits to be computed on a "per candidate" and not on a "per station" basis. In addition,
the legal duty of monitoring lies with the COMELEC. Broadcast stations are merely required to submit certain documents to
aid the COMELEC in ensuring that candidates are not sold airtime in excess of the allowed limits.

Also, as discussed in the earlier Comment, the prior notice requirement is a mechanism designed to inform the COMELEC
of the appearances or guesting of candidates in bona fide news broadcasts. It is for monitoring purposes only, not
censorship. It does not control the subject matter of news broadcasts in anyway. Neither does it prevent media outlets
from covering candidates in news interviews, news events, and news documentaries, nor prevent the candidates from
appearing thereon.

As for the right to reply, respondent insists that the right to reply provision cannot be considered a prior restraint on the
freedoms of expression, speech and the press, as it does not in any way restrict the airing of bona fide new broadcasts.
Media entities are free to report any news event, even if it should turn out to be unfavourable to a candidate or party. The
assailed Resolutions merely give the candidate or party the right to reply to such charges published or aired against them
in news broadcasts.

36
Moreover, respondent contends that the imposition of the penalty of suspension and revocation of franchise or permit for
the sale or donation of airtime beyond the allowable limits is sanctioned by the Omnibus Election Code.

Meanwhile, RMN filed its Petition on April 8, 2013. On June 4, 2013, the Court issued a Resolution25 consolidating the case
with the rest of the petitions and requiring respondent to comment thereon.

On October 10, 2013, respondent filed its Third Supplemental Comment and Opposition.26 Therein, respondent stated that
the petition filed by RMN repeats the issues that were raised in the previous petitions. Respondent, likewise, reiterated its
arguments that certiorari in not the proper remedy to question the assailed resolutions and that RMN has no locus standi
to file the present petition. Respondent maintains that the arguments raised by RMN, like those raised by the other
petitioners are without merit and that RMN is not entitled to the injunctive relief sought.

The petition is partly meritorious.

At the outset, although the subject of the present petit10ns are Resolutions promulgated by the COMELEC relative to the
conduct of the 2013 national and local elections, nevertheless the issues raised by the petitioners have not been rendered
moot and academic by the conclusion of the 2013 elections. Considering that the matters elevated to the Court for
resolution are susceptible to repetition in the conduct of future electoral exercises, these issues will be resolved in the
present action.

PROCEDURAL ASPECTS

Matters of procedure and technicalities normally take a backseat when issues of substantial and transcendental importance
are presented before the Court. So the Court does again in this particular case.

Proper Remedy

Respondent claims that certiorari and prohibition are not the proper remedies that petitioners have taken to question the
assailed Resolutions of the COMELEC. Technically, respondent may have a point. However, considering the very important
and pivotal issues raised, and the limited time, such technicality should not deter the Court from having to make the final
and definitive pronouncement that everyone else depends for enlightenment and guidance. "[T]his Court has in the past
seen fit to step in and resolve petitions despite their being the subject of an improper remedy, in view of the public
importance of the tile issues raised therein.27

It has been in the past, we do so again.

Locus Standi

Every time a constitutional issue is brought before the Court, the issue of locus standi is raised to question the personality
of the parties invoking the Court's jurisdiction. The Court has routinely made reference to a liberalized stance when it
comes to petitions raising issues of transcendental importance to the country. Invariably, after some discussions, the Court
would eventually grant standing.28

In this particular case, respondent also questions the standing of the petitioners. We rule for the petitioners. For petitioner-
intervenor Senator Cayetano, he undoubtedly has standing since he is a candidate whose ability to reach out to the
electorate is impacted by the assailed Resolutions.

For the broadcast companies, they similarly have the standing in view of the direct injury they may suffer relative to their
ability to carry out their tasks of disseminating information because of the burdens imposed on them. Nevertheless, even in
regard to the broadcast companies invoking the injury that may be caused to their customers or the public - those who
buy advertisements and the people who rely on their broadcasts - what the Court said in White Light Corporation v. City of
Manila29 may dispose of the question. In that case, there was an issue as to whether owners of establishments offering
"wash-up" rates may have the requisite standing on behalf of their patrons' equal protection claims relative to an ordinance
of the City of Manila which prohibited "short-time" or "wash-up" accommodation in motels and similar establishments. The
Court essentially condensed the issue in this manner: "[T]he crux of the matter is whether or not these establishments
have the requisite standing to plead for protection of their patrons' equal protection rights." 30 The Court then went on to
hold:

Standing or locus standi is the ability of a party to demonstrate to the court sufficient connection to and harm from the law
or action challenged to support that party's participation in the case. More importantly, the doctrine of standing is built on
the principle of separation of powers, sparing as it does unnecessary interference or invalidation by the judicial branch of
the actions rendered by its co-equal branches of government.

The requirement of standing is a core component of the judicial system derived directly from the Constitution. The
constitutional component of standing doctrine incorporates concepts which concededly are not susceptible of precise
definition. In this jurisdiction, the extancy of "a direct and personal interest" presents the most obvious cause, as well as
the standard test for a petitioner's standing. In a similar vein, the United States Supreme Court reviewed and elaborated
on the meaning of the three constitutional standing requirements of injury, causation, and redressability in Allen v. Wright.

Nonetheless, the general rules on standing admit of several exceptions such as the overbreadth doctrine, taxpayer suits,
third party standing and, especially in the Philippines, the doctrine of transcendental importance.

37
For this particular set of facts, the concept of third party standing as an exception and the overbreadth doctrine are
appropriate. x x x

xxxx

American jurisprudence is replete with examples where parties-ininterest were allowed standing to advocate or invoke the
fundamental due process or equal protection claims of other persons or classes of persons injured by state action. x x x

xxxx

Assuming arguendo that petitioners do not have a relationship with their patrons for the former to assert the rights of the
latter, the overbreadth doctrine comes into play. In overbreadth analysis, challengers to government action are in effect
permitted to raise the rights of third parties. Generally applied to statutes infringing on the freedom of speech, the
overbreadth doctrine applies when a statute needlessly restrains even constitutionally guaranteed rights. In this case, the
petitioners claim that the Ordinance makes a sweeping intrusion into the right to liberty of their clients. We can see that
based on the allegations in the petition, the Ordinance suffers from overbreadth.

We thus recognize that the petitioners have a right to assert the constitutional rights of their clients to patronize their
establishments for a "wash-rate" time frame.31

If in regard to commercial undertakings, the owners may have the right to assert a constitutional right of their clients, with
more reason should establishments which publish and broadcast have the standing to assert the constitutional freedom of
speech of candidates and of the right to information of the public, not to speak of their own freedom of the press. So, we
uphold the standing of petitioners on that basis.

SUBSTANTIVE ASPECTS

Aggregate Time Limits

COMELEC Resolution No. 9615 introduced a radical departure from the previous COMELEC resolutions relative to the
airtime limitations on political advertisements. This essentially consists in computing the airtime on an aggregate basis
involving all the media of broadcast communications compared to the past where it was done on a per station basis. Thus,
it becomes immediately obvious that there was effected a drastic reduction of the allowable minutes within which
candidates and political parties would be able to campaign through the air. The question is accordingly whether this is
within the power of the COMELEC to do or not. The Court holds that it is not within the power of the COMELEC to do so.

a. Past elections and airtime limits

The authority of the COMELEC to impose airtime limits directly flows from the Fair Election Act (R.A. No. 9006 [2001]) 32 -
one hundred (120) minutes of television advertisement and one-hundred· eighty (180) minutes for radio advertisement.
For the 2004 elections, the respondent COMELEC promulgated Resolution No. 652033 implementing the airtime limits by
applying said limitation on a per station basis.34 Such manner of determining airtime limits was likewise adopted for the
2007 elections, through Resolution No. 7767.35 In the 2010 elections, under Resolution No. 8758,36 the same was again
adopted. But for the 2013 elections, the COMELEC, through Resolution No. 9615, as amended by Resolution No. 9631,
chose to aggregate the total broadcast time among the different broadcast media, thus: Section 9. Requirements and/or
Limitations on the Use of Election Propaganda through Mass Media. - All parties and bona fide candidates shall have equal
access to media time and space for their election propaganda during the campaign period subject to the following
requirements and/or limitations:

a. Broadcast Election Propaganda

The duration of an air time that a candidate, or party may use for their broadcast advertisements or election propaganda
shall be, as follows:

For Candidates/Registered Not more than an aggregate total of one hundred (120)
Political parties for a National minutes of television advertising, whether appearing on
Elective Position national, regional, or local, free or cable television, and
one hundred eighty (180) minutes of radio advertising,
whether airing on national, regional, or local radio,
whether by purchase or donation

For Candidates/Registered Not more than an aggregate total of sixty (60) minutes of
Political parties for a Local television advertising, whether appearing on national,
Elective Position regional, or local, free or cable television, and ninety (90)
minutes of radio advertising, whether airing on national,
regional, or local radio, whether by purchase or donation.

In cases where two or more candidates or parties whose names, initials, images, brands, logos, insignias, color motifs,
symbols, or forms of graphical representations are displayed, exhibited, used, or mentioned together in the broadcast
election propaganda or advertisements, the length of time during which they appear or are being mentioned or promoted

38
will be counted against the airtime limits allotted for the said candidates or parties and the cost of the said advertisement
will likewise be considered as their expenditures, regardless of whoever paid for the advertisements or to whom the said
advertisements were donated.

x x x x37

Corollarily, petitioner-intervenor, Senator Cayetano, alleges:

6.15. The change in the implementation of Section 6 of R.A. 9006 was undertaken by respondent Comelec without
consultation with the candidates for the 2013 elections, affected parties such as media organizations, as well as the
general public. Worse, said change was put into effect without explaining the basis therefor and without showing any data
in support of such change. Respondent Comelec merely maintained that such action "is meant to level the playing field
between the moneyed candidates and those who don i have enough resources," without particularizing the empirical data
upon which such a sweeping statement was based. This was evident in the public hearing held on 31 January 2013 where
petitioner GMA, thru counsel, explained that no empirical data on he excesses or abuses of broadcast media were brought
to the attention of the public by respondent Comelec, or even stated in the Comelec

Resolution No. 9615. Thus –

xxxx

Chairman Brillantes

So if we can regulate and amplify, we may amplify meaning we can expand if we want to. But the authority of the
Commission is if we do not want to amplify and we think that the 120 or 180 is okay we cannot be compelled to amplify.
We think that 120 or 180 is okay, is enough.

Atty. Lucila

But with due respect Your Honor, I think the basis of the resolution is found in the law and the law has been enterpreted
(sic) before in 2010 to be 120 per station, so why the change, your Honor?

Chairman Brillantes

No, the change is not there, the right to amplify is with the Commission on Elections. Nobody can encroach in our right to
amplify. Now, if in 2010 the Commission felt that per station or per network is the rule then that is the prerogative of the
Commission then they could amplify it to expand it. If the current Commission feels that 120 is enough for the particular
medium like TV and 180 for radio, that is our prerogative. How can you encroach and what is unconstitutional about it?

Atty. Lucila

We are not questioning the authority of the Honorable Commission to regulate Your Honor, we are just raising our concern
on the manner of regulation because as it is right now, there is a changing mode or sentiments of the Commission and the
public has the right to know, was there rampant overspending on political ads in 2010, we were not informed Your Honor.
Was there abuse of the media in 2010, we were not informed Your Honor. So we would like to know what is the basis of
the sudden change in this limitation, Your Honor .. And law must have a consistent interpretation that [is]our position,
Your Honor.

Chairman Brillantes

But my initial interpretation, this is personal to this representation counsel, is that if the Constitution allows us to regulate
and then it gives us the prerogative to amplify then the prerogative to amplify you should leave this to the discretion of the
Commission. Which means if previous Commissions felt that expanding it should be part of our authority that was a valid
exercise if we reduce it to what is provided for by law which is 120-180 per medium, TV, radio, that is also within the law
and that is still within our prerogative as provided for by the Constitution. If you say we have to expose the candidates to
the public then I think the reaction should come, the negative reaction should come from the candidates not from the
media, unless you have some interest to protect directly. Is there any interest on the part of the media to expand it?

Atty. Lucila

Well, our interest Your Honor is to participate in this election Your Honor and we have been constantly (sic) as the
resolution says and even in the part involved because you will be getting some affirmative action time coming from the
media itself and Comelec time coming from the media itself. So we could like to be both involved in the whole process of
the exercise of the freedom of suffrage Your Honor.

Chairman Brillantes

Yes, but the very essence of the Constitutional provision as well as the provision of 9006 is actually to level the playing
field. That should be the paramount consideration. If we allow everybody to make use of all their time and all radio time
and TV time then there will be practically unlimited use of the mass media ....

39
Atty. Lucila

Was there in 2010 Your Honor, was there any data to support that there was an unlimited and abuse of a (sic) political ads
in the mass media that became the basis of this change in interpretation Your Honor? We would like to know about it Your
Honor.

Chairman Brillantes

What do you think there was no abuse in 201 O?

Atty. Lucila
As far as the network is concern, there was none Your Honor.
Chairman Brillantes
There was none ..... .
Atty. Lucila
I'm sorry, Your Honor ...
Chairman Brillantes
Yes, there was no abuse, okay, but there was some advantage given to those who took ... who had the more moneyed
candidates took advantage of it.
Atty. Lucila

But that is the fact in life, Your Honor there are poor candidates, there are rich candidates. No amount of law or regulation
can even level the playing filed (sic) as far as the economic station in life of the candidates are concern (sic) our Honor.38

Given the foregoing observations about what happened during the hearing, Petitioner-Intervenor went on to allege that:

6.16. Without any empirical data upon which to base the regulatory measures in Section 9 (a), respondent Comelec
arbitrarily changed the rule from per station basis to aggregate airtime basis. Indeed, no credence should be given to the
cliched explanation of respondent Comelec (i.e. leveling the playing field) in its published statements which in itself is a
mere reiteration of the rationale for the enactment of the political ad ban of Republic Act No. 6646, and which has likewise
been foisted when said political ad ban was lifted by R.A. 9006.39

From the foregoing, it does appear that the COMELEC did not have any other basis for coming up with a new manner of
determining allowable time limits except its own idea as to what should be the maximum number of minutes based on its
exercise of discretion as to how to level the playing field. The same could be encapsulized in the remark of the COMELEC
Chairman that "if the Constitution allows us to regulate and then it gives us the prerogative to amplify then the prerogative
to amplify you should leave this to the discretion of the Commission."40

The Court could not agree with what appears as a nonchalant exercise of discretion, as expounded anon.

b. COMELEC is duty bound to come up with reasonable basis for changing the interpretation and implementation of the
airtime limits

There is no question that the COMELEC is the office constitutionally and statutorily authorized to enforce election laws but
it cannot exercise its powers without limitations - or reasonable basis. It could not simply adopt measures or regulations
just because it feels that it is the right thing to do, in so far as it might be concerned. It does have discretion, but such
discretion is something that must be exercised within the bounds and intent of the law. The COMELEC is not free to simply
change the rules especially if it has consistently interpreted a legal provision in a particular manner in the past. If ever it
has to change the rules, the same must be properly explained with sufficient basis.

Based on the transcripts of the hearing conducted by the COMELEC after it had already promulgated the Resolution, the
respondent did not fully explain or justify the change in computing the airtime allowed candidates and political parties,
except to make reference to the need to "level the playing field." If the "per station" basis was deemed enough to comply
with that objective in the past, why should it now be suddenly inadequate? And, the short answer to that from the
respondent, in a manner which smacks of overbearing exercise of discretion, is that it is within the discretion of the
COMELEC. As quoted in the transcript, "the right to amplify is with the COMELEC. Nobody can encroach in our right to
amplify. Now, if in 2010 the Commission felt that per station or per network is the rule then that is the prerogative of the
Commission then they could amplify it to expand it. If the current Commission feels that 120 is enough for the particular
medium like TV and 180 for radio, that is our prerogative. How can you encroach and what is unconstitutional about it?"41

There is something basically wrong with that manner of explaining changes in administrative rules. For one, it does not
really provide a good basis for change. For another, those affected by such rules must be given a better explanation why
the previous rules are no longer good enough. As the Court has said in one case:

While stability in the law, particularly in the business field, is desirable, there is no demand that the NTC slavishly follow
precedent. However, we think it essential, for the sake of clarity and intellectual honesty, that if an administrative agency
decides inconsistently with previous action, that it explain thoroughly why a different result is warranted, or ?f need be,
why the previous standards should no longer apply or should be overturned. Such explanation is warranted in order to
sufficiently establish a decision as having rational basis. Any inconsistent decision lacking thorough, ratiocination in support
may be struck down as being arbitrary. And any decision with absolutely nothing to support it is a nullity.42

40
What the COMELEC came up with does not measure up to that level of requirement and accountability which elevates
administrative rules to the level of respectability and acceptability. Those governed by administrative regulations are
entitled to a reasonable and rational basis for any changes in those rules by which they are supposed to live by, especially
if there is a radical departure from the previous ones.

c. The COMELEC went beyond the authority granted it by the law in adopting "aggregate" basis in the determination of
allowable airtime

The law, which is the basis of the regulation subject of these petitions, pertinently provides:

6.2. (a) Each bona fide candidate or registered political party for a nationally elective office shall be entitled to not more
than one hundred twenty (120) minutes of television advertisement and one hundred eighty (180) minutes of radio
advertisement whether by purchase or donation.

(b) Each bona fide candidate or registered political party for a locally elective office shall be entitled to not more than sixty
(60) minutes of television advertisement and ninety (90) minutes of radio advertisement whether by purchase or donation;
xxx

The law, on its face, does not justify a conclusion that the maximum allowable airtime should be based on the totality of
possible broadcast in all television or radio stations. Senator Cayetano has called our attention to the legislative intent
relative to the airtime allowed - that it should be on a "per station" basis.43

This is further buttressed by the fact that the Fair Election Act (R.A. No. 9006) actually repealed the previous provision,
Section ll(b) of Republic Act No. 6646,44 which prohibited direct political advertisements -the so-called "political ad ban." If
under the previous law, no candidate was allowed to directly buy or procure on his own his broadcast or print campaign
advertisements, and that he must get it through the COMELEC Time or COMELEC Space, R.A. No. 9006 relieved him or her
from that restriction and allowed him or her to broadcast time or print space subject to the limitations set out in the law.
Congress, in enacting R.A. No. 9006, felt that the previous law was not an effective and efficient way of giving voice to the
people. Noting the debilitating effects of the previous law on the right of suffrage and Philippine democracy, Congress
decided to repeal such rule by enacting the Fair Election Act.

In regard to the enactment of the new law, taken in the context of the restrictive nature of the previous law, the
sponsorship speech of Senator Raul Roco is enlightening:

The bill seeks to repeal Section 85 of the Omnibus Election Code and Sections 10 and 11 of RA 6646. In view of the
importance of their appeal in connection with the thrusts of the bill, I hereby quote these sections in full:

"SEC. 85. Prohibited forms of election propaganda. - It shall be unlawful:

"(a) To print, publish, post or distribute any poster, pamphlet, circular, handbill, or printed matter urging
voters to vote for or against any candidate unless they hear the names and addresses of the printed and
payor as required in Section 84 hereof;

"(b) To erect, put up, make use of, attach, float or display any billboard, tinplate-poster, balloons and
the like, of whatever size, shape, form or kind, advertising for or against any candidate or political party;

"(c) To purchase, manufacture, request, distribute or accept electoral propaganda gadgets, such as
pens, lighters, fans of whatever nature, flashlights, athletic goods or materials, wallets, shirts, hats,
bandannas, matches, cigarettes and the like, except that campaign supporters accompanying a
candidate shall be allowed to wear hats and/or shirts or T-shirts advertising a candidate;

"(d) To show or display publicly any advertisement or propaganda for or against any candidate by means
of cinematography, audio-visual units or other screen projections except telecasts which may be allowed
as hereinafter provided; and

"(e) For any radio broadcasting or television station to sell or give free of charge airtime for campaign
and other political purposes except as authorized in this Code under the rules and regulations
promulgated by the Commission pursuant thereto;

"Any prohibited election propaganda gadget or advertisement shall be stopped, confiscated or tom down by the
representative of the Commission upon specific authority of the Commission." "SEC. 10. Common Poster Areas. - The
Commission shall designate common poster areas in strategic public places such as markets, barangay centers and the like
wherein candidates can post, display or exhibit election propaganda to announce or further their candidacy.

"Whenever feasible, common billboards may be installed by the Commission and/or non-partisan private or civic
organizations which the Commission may authorize whenever available, after due notice and hearing, in strategic areas
where it may readily be seen or read, with the heaviest pedestrian and/or vehicular traffic in the city or municipality.

The space in such common poster areas or billboards shall be allocated free of charge, if feasible, equitably and impartially
among the candidates in the province, city or municipality. "SEC. 11. Prohibite,d Forms of Election Propaganda. - In

41
addition to the forms of election propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:
(a) to draw, paint, inscribe, write, post, display or puolicly exhibit any election propaganda in any place, whether private or
public, except in common poster areas and/or billboards provided in the immediately preceding section, at the candidate's
own residence, or at the campaign headquarters of the candidate or political party: Provided, That such posters or election
propaganda shall in no case exceed two (2) feet by three (3) feet in area; Provided, further, That at the site of and on the
occasion of a public meeting or rally, streamers, not more than two (2) feet and not exceeding three (3) feet by eight (8)
each may be displayed five (5) days before the date of the meeting or rally, and shall be removed within twenty-four (24)
hours after said meeting or rally; and

"(b) For any newspapers, radio broadcasting or television station, or other mass media, or any person making use of the
mass media to sell or give for free of charge print space or air time for campaign or other political purposes except to the
Commission as provided under Section 90 and 92 of Batas Pambansa Big. 881. Any mass media columnist, commentator,
announcer or personality who is a candidate for any elective public office shall take a leave of absence from his work as
such during the campaign."

The repeal of the provision on the Common Poster Area implements the strong recommendations of the Commission on
Elections during the hearings. It also seeks to apply the doctrine enunciated by the Supreme Court in the case of Blo
Umpar Adiong vs. Commission on Elections, 207 SCRA 712, 31 March 1992. Here a unanimous Supreme Court ruled: The
COMELEC's prohibition on the posting of decals and stickers on "mobile" places whether public or private except [in]
designated areas provided for by the COMELEC itself is null and void on constitutional grounds.

For the foregoing reasons, we commend to our colleagues the early passage of Senate Bill No. 1742. In so doing, we move
one step towards further ensuring "free, orderly, honest, peaceful and credible elections" as mandated by the
Constitution.45

Given the foregoing background, it is therefore ineluctable to conclude that Congress intended to provide a more
expansive and liberal means by which the candidates, political parties, citizens and other stake holders in the periodic
electoral exercise may be given a chance to fully explain and expound on their candidacies and platforms of governance,
and for the electorate to be given a chance to know better the personalities behind the candidates. In this regard, the
media is also given a very important part in that undertaking of providing the means by which the political exercise
becomes an interactive process. All of these would be undermined and frustrated with the kind of regulation that the
respondent came up with.

The respondent gave its own understanding of the import of the legislative deliberations on the adoption of R.A. No. 9006
as follows:

The legislative history of R.A. 9006 clearly shows that Congress intended to impose the per candidate or political party
aggregate total airtime limits on political advertisements and election propaganda. This is evidenced by the dropping of the
"per day per station" language embodied in both versions of the House of Representatives and Senate bills in favour of the
"each candidate" and "not more than" limitations now found in Section 6 of R.A. 9006.

The pertinent portions of House Bill No. 9000 and Senate Bill No. 1742 read as follows:

House Bill No. 9000:

SEC. 4. Section 86 of the same Batas is hereby amended to read as follows:

Sec. 86. Regulation of Election Propaganda Through Mass Media.

xxx xxx xxx

A) The total airtime available to the candidate and political party, whether by purchase or by donation, shall be limited to
five (5) minutes per day in each television, cable television and radio stations during the applicable campaign period.

Senate Bill No. 1742:

SEC. 5. Equal Access to Media Space and Time. -All registered parties and bona fide candidates shall have equal access to
media space and time. The following guidelines may be amplified by the COMELEC.

xxx xxx xxx

2. The total airtime available for each registered party and bona fide candidate whether by purchase or donation shall not
exceed a total of one (1) minute per day per television or radio station. (Emphasis supplied.)

As Section 6 of R.A. 9006 is presently worded, it can be clearly seen that the legislature intended the aggregate airtime
limits to be computed on per candidate or party basis. Otherwise, if the legislature intended the computation to be on per
station basis, it could have left the original "per day per station" formulation.46

The Court does not agree. It cannot bring itself to read the changes in the bill as disclosing an intent that the COMELEC
wants this Court to put on the final language of the law. If anything, the change in language meant that the computation

42
must not be based on a "per day" basis for each television or radio station. The same could not therefore lend itself to an
understanding that the total allowable time is to be done on an aggregate basis for all television or radio stations. Clearly,
the respondent in this instance went beyond its legal mandate when it provided for rules beyond what was contemplated
by the law it is supposed to implement. As we held in Lakin, Jr. v. Commission on Elections: 47

The COMELEC, despite its role as the implementing arm of the Government in the enforcement and administration of all
laws and regulations relative to the conduct of an election, has neither the authority nor the license to expand, extend, or
add anything to the law it seeks to implement thereby. The IRRs the COMELEC issued for that purpose should always be in
accord with the law to be implemented, and should not override, supplant, or modify the law. It is basic that the IRRs
should remain consistent with the law they intend to carry out.

Indeed, administrative IRRs adopted by a particular department of the Government under legislative authority must be in
harmony with the provisions of the law, and should be for the sole purpose of carrying the law's general provisions into
effect. The law itself cannot be expanded by such IRRs, because an administrative agency cannot amend an act of
Congress.48

In the case of Lakin, Jr., the COMELEC's explanation that the Resolution then in question did not add anything but merely
reworded and rephrased the statutory provision did not persuade the Court. With more reason here since the COMELEC
not only reworded or rephrased the statutory provision - it practically replaced it with its own idea of what the law should
be, a matter that certainly is not within its authority. As the Court said in Villegas v. Subido: 49

One last word. Nothing is better settled in the law than that a public official exercises power, not rights. The government
itself is merely an agency through which the will of the state is expressed and enforced. Its officers therefore are likewise
agents entrusted with the responsibility of discharging its functions. As such there is no presumption that they are
empowered to act. There must be a delegation of such authority, either express or implied. In the absence of a valid grant,
they are devoid of power. What they do suffers from a fatal infirmity. That principle cannot be sufficiently stressed. In the
appropriate language of Chief Justice Hughes: "It must be conceded that departmental zeal may not be permitted to
outrun the authority conferred by statute." Neither the high dignity of the office nor the righteousness of the motive then is
an acceptable substitute. Otherwise the rule of law becomes a myth. Such an eventuality, we must take all pains to
avoid.50

So it was then. So does the rule still remains the same.

d. Section 9 (a) of COMELEC Resolution No. 9615 on airtime limits also goes against the constitutional guaranty of freedom
of expression, of speech and of the press

The guaranty of freedom to speak is useless without the ability to communicate and disseminate what is said. And where
there is a need to reach a large audience, the need to access the means and media for such dissemination becomes
critical. This is where the press and broadcast media come along. At the same time, the right to speak and to reach out
would not be meaningful if it is just a token ability to be heard by a few. It must be coupled with substantially reasonable
means by which the communicator and the audience could effectively interact. Section 9 (a) of COMELEC Resolution No.
9615, with its adoption of the "aggregate-based" airtime limits unreasonably restricts the guaranteed freedom of speech
and of the press.

Political speech is one of the most important expressions protected by the Fundamental Law. "[F]reedom of speech, of
expression, and of the press are at the core of civil liberties and have to be protected at all costs for the sake of
democracy."51 Accordingly, the same must remain unfettered unless otherwise justified by a compelling state interest.

In regard to limitations on political speech relative to other state interests, an American case observed:

A restriction on the amount of money a person or group can spend on political communication during a campaign
necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration,
and the size of the audience reached. This is because virtually every means of communicating ideas in today's mass society
requires the expenditure of money. The distribution of the humblest handbill or leaflet entails printing, paper, and
circulation costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event. The electorate's
increasing dependence on television, radio, and other mass media for news and information has made these expensive
modes of communication indispensable instruments of effective political speech.

The expenditure limitations contained in the Act represent substantial, rather than merely theoretical restraints on the
quantity and diversity of political speech. The $1,000 ceiling on spending "relative to a clearly identified candidate," 18
U.S.C. § 608(e)(l) (1970 ed., Supp. IV), would appear to exclude all citizens and groups except candidates, political parties,
and the institutional press from any significant use of the most effective modes of communication. Although the Act's
limitations on expenditures by campaign organizations and political parties provide substantially greater room for
discussion and debate, they would have required restrictions in the scope of a number of past congressional and
Presidential campaigns and would operate to constrain campaigning by candidates who raise sums in excess of the
spending ceiling.52

Section 9 (a) ofCOMELEC Resolution No. 9615 comes up with what is challenged as being an unreasonable basis for
determining the allowable air time that candidates and political parties may avail of. Petitioner GMA came up with its
analysis of the practical effects of such a regulation:

43
 5.8. Given the reduction of a candidate's airtime minutes in the New Rules, petitioner GMA estimates that a
national candidate will only have 120 minutes to utilize for his political advertisements in television during the
whole campaign period of 88 days, or will only have 81.81 seconds per day TV exposure allotment. If he chooses
to place his political advertisements in the 3 major TV networks in equal allocation, he will only have 27.27
seconds of airtime per network per day. This barely translates to 1 advertisement spot on a 30-second spot basis
in television.

5.9. With a 20-hour programming per day and considering the limits of a station's coverage, it will be difficult for
1 advertising spot to make a sensible and feasible communication to the public, or in political propaganda, to
"make known [a candidate's] qualifications and stand on public issues".

5.10 If a candidate loads all of his 81.81 seconds per day in one network, this will translate to barely three 30-
second advertising spots in television on a daily basis using the same assumptions above.

5.11 Based on the data from the 2012 Nielsen TV audience measurement in Mega Manila, the commercial
advertisements in television are viewed by only 39.2% of the average total day household audience if such
advertisements are placed with petitioner GMA, the leading television network nationwide and in Mega Manila. In
effect, under the restrictive aggregate airtime limits in the New Rules, the three 30-second political
advertisements of a candidate in petitioner GMA will only be communicated to barely 40% of the viewing
audience, not even the voting population, but only in Mega Manila, which is defined by AGB Nielsen Philippines to
cover Metro Manila and certain urban areas in the provinces of Bulacan, Cavite, Laguna, Rizal, Batangas and
Pampanga. Consequently, given the voting population distribution and the drastically reduced supply of airtime as
a result of the New Rules' aggregate airtime limits, a national candidate will be forced to use all of his airtime for
political advertisements in television only in urban areas such as Mega Manila as a political campaign tool to
achieve maximum exposure.

5.12 To be sure, the people outside of Mega Manila or other urban areas deserve to be informed of the
candidates in the national elections, and the said candidates also enjoy the right to be voted upon by these
informed populace.53

The Court agrees. The assailed rule on "aggregate-based" airtime limits is unreasonable and arbitrary as it unduly restricts
and constrains the ability of candidates and political parties to reach out and communicate with the people. Here, the
adverted reason for imposing the "aggregate-based" airtime limits - leveling the playing field - does not constitute a
compelling state interest which would justify such a substantial restriction on the freedom of candidates and political
parties to communicate their ideas, philosophies, platforms and programs of government. And, this is specially so in the
absence of a clear-cut basis for the imposition of such a prohibitive measure. In this particular instance, what the
COMELEC has done is analogous to letting a bird fly after one has clipped its wings.

It is also particularly unreasonable and whimsical to adopt the aggregate-based time limits on broadcast time when we
consider that the Philippines is not only composed of so many islands. There are also a lot of languages and dialects
spoken among the citizens across the country. Accordingly, for a national candidate to really reach out to as many of the
electorates as possible, then it might also be necessary that he conveys his message through his advertisements in
languages and dialects that the people may more readily understand and relate to. To add all of these airtimes in different
dialects would greatly hamper the ability of such candidate to express himself - a form of suppression of his political
speech.

Respondent itself states that "[t]elevision is arguably the most costeffective medium of dissemination. Even a slight
increase in television exposure can significantly boost a candidate's popularity, name recall and electability." 54 If that be so,
then drastically curtailing the ability of a candidate to effectively reach out to the electorate would unjustifiably curtail his
freedom to speak as a means of connecting with the people.

Finally on this matter, it is pertinent to quote what Justice Black wrote in his concurring opinion in the landmark Pentagon
Papers case: "In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its
essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to
censor the press was abolished so that the press would remain forever free to censure the Government. The press was
protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can
effectively expose deception in government."55

In the ultimate analysis, when the press is silenced, or otherwise muffled in its undertaking of acting as a sounding board,
the people ultimately would be the victims.

e. Section 9 (a) of Resolution 9615 is violative of the people's right to suffrage

Fundamental to the idea of a democratic and republican state is the right of the people to determine their own destiny
through the choice of leaders they may have in government. Thus, the primordial importance of suffrage and the
concomitant right of the people to be adequately informed for the intelligent exercise of such birthright. It was said that:

x x x As long as popular government is an end to be achieved and safeguarded, suffrage, whatever may be the modality
and form devised, must continue to be the means by which the great reservoir of power must be emptied into the
receptacular agencies wrought by the people through their Constitution in the interest of good government and the
common weal. Republicanism, in so far as it implies the adoption of a representative type of government, necessarily
points to the enfranchised citizen as a particle of popular sovereignty and as the ultimate source of the established

44
authority. He has a voice in his Government and whenever possible it is the solemn duty of the judiciary, when called upon
to act in justifiable cases, to give it efficacy and not to stifle or frustrate it. This, fundamentally, is the reason for the rule
that ballots should be read and appreciated, if not with utmost, with reasonable, liberality. x x x56 It has also been said that
"[ c ]ompetition in ideas and governmental policies is at the core of our electoral process and of the First Amendment
freedoms."57 Candidates and political parties need adequate breathing space - including the means to disseminate their
ideas. This could not be reasonably addressed by the very restrictive manner by which the respondent implemented the
time limits in regard to political advertisements in the broadcast media.

f. Resolution No. 9615 needs prior hearing before adoption

The COMELEC promulgated Resolution No. 9615 on January 15, 2013 then came up with a public hearing on January 31,
2013 to explain what it had done, particularly on the aggregate-based air time limits. This circumstance also renders the
new regulation, particularly on the adoption of the aggregate-based airtime limit, questionable. It must not be overlooked
that the new Resolution introduced a radical change in the manner in which the rules on airtime for political
advertisements are to be reckoned. As such there is a need for adequate and effective means by which they may be
adopted, disseminated and implemented. In this regard, it is not enough that they be published - or explained - after they
have been adopted.

While it is true that the COMELEC is an independent office and not a mere administrative agency under the Executive
Department, rules which apply to the latter must also be deemed to similarly apply to the former, not as a matter of
administrative convenience but as a dictate of due process. And this assumes greater significance considering the
important and pivotal role that the COMELEC plays in the life of the nation. Thus, whatever might have been said in
Commissioner of Internal Revenue v. Court of Appeals,58 should also apply mutatis mutandis to the COMELEC when it
comes to promulgating rules and regulations which adversely affect, or impose a heavy and substantial burden on, the
citizenry in a matter that implicates the very nature of government we have adopted:

It should be understandable that when an administrative rule is merely interpretative in nature, its applicability needs
nothing further than its bare issuance for it gives no real consequence more than what the law itself has already
prescribed. When, upon the other hand, the administrative rule goes beyond merely providing for the means that can
facilitate or render least cumbersome the implementation of the law but substantially adds to or increases the burden of
those governed, it behooves the agency to accord at least to those directly affected a chance to be heard, and thereafter
to be duly informed, before that new issuance is given the force and effect of law.

A reading of RMC 37-93, particularly considering the circumstances under which it has been issued, convinces us that the
circular cannot be viewed simply as a corrective measure (revoking in the process the previous holdings of past
Commissioners) or merely as construing Section 142(c)(l) of the NIRC, as amended, but has, in fact and most importantly,
been made in order to place "Hope Luxury," "Premium More" and "Champion" within the classification of locally
manufactured cigarettes bearing foreign brands and to thereby have them covered by RA 7654. Specifically, the new law
would have its amendatory provisions applied to locally manufactured cigarettes which at the time of its effectivity were
not so classified as bearing foreign brands. x x x In so doing, the BIR not simply interpreted the law; verily, it legislated
under its quasi-legislative authority. The due observance of the requirements of notice, of hearing, and of publication
should not have been then ignored.59

For failing to conduct prior hearing before coming up with Resolution No. 9615, said Resolution, specifically in regard to
the new rule on aggregate airtime is declared defective and ineffectual.

g. Resolution No. 9615 does not impose an unreasonable burden on the broadcast industry

It is a basic postulate of due process, specifically in relation to its substantive component, that any governmental rule or
regulation must be reasonable in its operations and its impositions. Any restrictions, as well as sanctions, must be
reasonably related to the purpose or objective of the government in a manner that would not work unnecessary and
unjustifiable burdens on the citizenry. Petitioner GMA assails certain requirements imposed on broadcast stations as
unreasonable. It explained:

5.40 Petitioner GMA currently operates and monitors 21 FM and AM radio stations nationwide and 8 originating
television stations (including its main transmitter in Quezon City) which are authorized to dechain national
programs for airing and insertion of local content and advertisements.

5.41 In light of the New Rules wherein a candidate's airtime minutes are applied on an aggregate basis and
considering that said Rules declare it unlawful in Section 7( d) thereof for a radio, television station or other mass
media to sell or give for free airtime to a candidate in excess of that allowed by law or by said New Rules:

"Section 7. Prohibited Forms of Election Propaganda -During the campaign period, it is unlawful: x x x x x x x x x

(d) for any newspaper or publication, radio, television or cable television station, or other mass media, or any
person making use of the mass media to sell or to give free of charge print space or air time for campaign or
election propaganda purposes to any candidate or party in excess of the size, duration or frequency authorized by
law or these rules;

xxx xxx xxx

45
 (Emphasis supplied)

petitioner GMA submits that compliance with the New Rules in order to avoid administrative or criminal liability
would be unfair, cruel and oppressive.

x x x x.

5.43 In the present situation wherein airtime minutes shall be shared by all television and radio stations,
broadcast mass media organizations would surely encounter insurmountable difficulties in monitoring the airtime
minutes spent by the numerous candidates for various elective positions, in real time.

5.44 An inquiry with the National Telecommunications Commission (NTC) bears out that there are 372 television
stations and 398 AM and 800 FM radio stations nationwide as of June 2012. In addition, there are 1, 113 cable TV
providers authorized by the NTC to operate within the country as of the said date.

5.45 Given such numbers of broadcast entities and the necessity to monitor political advertisements pursuant to
the New Rules, petitioner OMA estimates that monitoring television broadcasts of all authorized television station
would involve 7,440 manhours per day. To aggravate matters, since a candidate may also spend his/her
broadcasting minutes on cable TV, additional 281,040 manhours per day would have to be spent in monitoring
the various channels carried by cable TV throughout the Philippines. As far as radio broadcasts (both AM and FM
stations) are concerned, around 23,960 manhours per day would have to be devoted by petitioner OMA to obtain
an accurate and timely determination of a political candidate's remaining airtime minutes. During the campaign
period, petitioner OMA would have to spend an estimated 27,494,720 manhours in monitoring the election
campaign commercials of the different candidates in the country.1âwphi1

5.46 In order to carry-out the obligations imposed by the New Rules, petitioner OMA further estimates that it
would need to engage and train 39,055 additional persons on an eight-hour shift, and assign them all over the
country to perform the required monitoring of radio, television and cable TV broadcasts. In addition, it would
likewise need to allot radio, television, recording equipment and computers, as well as telecommunications
equipment, for this surveillance and monitoring exercise, thus imputing additional costs to the company. Attached
herewith are the computations explaining how the afore-said figures were derived and the conservative
assumptions made by petitioner OMA in reaching said figures, as Annex "H".

5.47 Needless to say, such time, manpower requirements, expense and effort would have to be replicated by
each and every radio station to ensure that they have properly monitored around 33 national and more than
40,000 local candidates' airtime minutes and thus, prevent any risk of administrative and criminal liability.60

The Court cannot agree with the contentions of GMA. The apprehensions of the petitioner appear more to be the result of
a misappreciation of the real import of the regulation rather than a real and present threat to its broadcast activities. The
Court is more in agreement with the respondent when it explained that:

The legal duty of monitoring lies with the Comelec. Broadcast stations are merely required to submit certain documents to
aid the Comelec in ensuring that candidates are not sold airtime in excess of the allowed limits. These documents include:
(1) certified true copies of broadcast logs, certificates of performance, and certificates of acceptance, or other analogous
record on specified dates (Section 9[d][3], Resolution No. 9615, in relation to Section 6.2, R.A. 9006; and (2) copies of all
contract for advertising, promoting or opposing any political party or the candidacy of any person for public office within
five (5) days after its signing (Section 6.3, R.A. 9006).

*****

[T]here is absolutely no duty on the broadcast stations to do monitoring, much less monitoring in real time. GMA grossly
exaggerates when it claims that the non-existent duty would require them to hire and train an astounding additional
39,055 personnel working on eight-hour shifts all over the country.61

The Court holds, accordingly, that, contrary to petitioners' contention, the Reporting Requirement for the COMELEC's
monitoring is reasonable.

Further, it is apropos to note that, pursuant to Resolution No. 9631,62 the respondent revised the third paragraph of
Section 9 (a). As revised, the provision now reads:

Appearance or guesting by a candidate on any bona fide newscast, bona fide news interview, bona fide news
documentary, if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the
news documentary, or on-the-spot coverage of bona fide news events, including but not limited to events sanctioned by
the Commission on Elections, political conventions, and similar activities, shall not be deemed to be broadcast election
propaganda within the meaning of this provision. For purposes of monitoring by the COMELEC and ensuring that parties
and candidates were afforded equal opportunities to promote their candidacy, the media entity shall give prior notice to
the COMELEC, through the appropriate Regional Election Director (RED), or in the case of the National Capital Region
(NCR), the Education and Information Department (EID). If such prior notice is not feasible or practicable, the notice shall
be sent within twenty-four (24) hours from the first broadcast or publication.1awp++i1 Nothing in the foregoing sentence
shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news

46
documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under Sections 10 and
14 of these Rules."63

Further, the petitioner in G.R. No. 205374 assails the constitutionality of such monitoring requirement, contending, among
others, that it constitutes prior restraint. The Court finds otherwise. Such a requirement is a reasonable means adopted by
the COMELEC to ensure that parties and candidates are afforded equal opportunities to promote their respective
candidacies. Unlike the restrictive aggregate-based airtime limits, the directive to give prior notice is not unduly
burdensome and unreasonable, much less could it be characterized as prior restraint since there is no restriction on
dissemination of information before broadcast. Additionally, it is relevant to point out that in the original Resolution No.
9615, the paragraph in issue was worded in this wise:

Appearance or guesting by a candidate on any bona fide newscast, bona fide news interview, bona fide news
documentary, if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the
news documentary, or on-the-spot coverage of bona fide news events, including but not limited to events sanctioned by
the Commission on Elections, political conventions, and similar activities, shall not be deemed to be broadcast election
propaganda within the meaning of this provision. To determine whether the appearance or guesting in a program is bona
fide, the broadcast stations or entities must show that (1) prior approval of the Commission was secured; and (2)
candidates and parties were afforded equal opportunities to promote their candidacy. Nothing in the foregoing sentence
shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news
documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under Sections 10 and
14 of these Rules.64

Comparing the original with the revised paragraph, one could readily appreciate what the COMELEC had done - to modify
the requirement from "prior approval" to "prior notice." While the former may be suggestive of a censorial tone, thus
inviting a charge of prior restraint, the latter is more in the nature of a content-neutral regulation designed to assist the
poll body to undertake its job of ensuring fair elections without having to undertake any chore of approving or
disapproving certain expressions.

Also, the right to reply provision is reasonable

In the same way that the Court finds the "prior notice" requirement as not constitutionally infirm, it similarly concludes that
the "right to reply" provision is reasonable and consistent with the constitutional mandate.

Section 14 of Resolution No. 9615, as revised by Resolution No. 9631, provides:

SECTION 14. Right to Reply. - All registered political parties, party-list groups or coalitions and bona fide candidates shall
have the right to reply to charges published or aired against them. The reply shall be given publicity by the newspaper,
television, and/or radio station which first printed or aired the charges with the same prominence or in the same page or
section or in the same time slot as the first statement.

Registered political parties, party-list groups or coalitions and bona fide candidates may invoke the right to reply by
submitting within a nonextendible period of forty-eight hours from first broadcast or publication, a formal verified claim
against the media outlet to the COMELEC, through the appropriate RED. The claim shall include a detailed enumeration of
the circumstances and occurrences which warrant the invocation of the right to reply and must be accompanied by
supporting evidence, such a copy of the publication or recording of the television or radio broadcast, as the case may be. If
the supporting evidence is not yet available due to circumstances beyond the power of the claimant, the latter shall
supplement his claim as soon as the supporting evidence becomes available, without delay on the part of the claimant. The
claimant must likewise furnish a copy of the verified claim and its attachments to the media outlet concerned prior to the
filing of the claim with the COMELEC.

The COMELEC, through the RED, shall view the verified claim within forty-eight ( 48) hours from receipt thereof, including
supporting evidence, and if circumstances warrant, give notice to the media outlet involved for appropriate action, which
shall, within forty-eight ( 48) hours, submit its comment, answer or response to the RED, explaining the action it has taken
to address the claim. The media outlet must likewise furnish a copy of the said comment, answer or response to the
claimant invoking the right to reply.

Should the claimant insist that his/her right to reply was not addressed, he/she may file the appropriate petition and/or
complaint before the Commission on Elections or its field offices, which shall be endorsed to the Clerk of Court.

The attack on the validity of the "right to reply" provision is primarily anchored on the alleged ground of prior restraint,
specifically in so far as such a requirement may have a chilling effect on speech or of the freedom of the press.

Petitioner ABC states, inter alia:

5 .14 5. A "conscious and detailed consideration" of the interplay of the relevant interests - the constitutional
mandate granting candidates the right to reply and the inviolability of the constitutional freedom of expression,
speech, and the press - will show that the Right to Reply, as provided for in the Assailed Resolution, is an
impermissible restraint on these fundamental freedoms.

47
 5.146. An evaluation of the factors set forth in Soriano (for the balancing of interests test) with respect to the
present controversy will show that the Constitution does not tilt the balance in favor of the Right to Reply
provision in the Assailed Resolution and the supposed governmental interest it attempts to further. 65

The Constitution itself provides as part of the means to ensure free, orderly, honest, fair and credible elections, a task
addressed to the COMELEC to provide for a right to reply.66 Given that express constitutional mandate, it could be seen
that the Fundamental Law itself has weighed in on the balance to be struck between the freedom of the press and the
right to reply. Accordingly, one is not merely to see the equation as purely between the press and the right to reply.
Instead, the constitutionallymandated desiderata of free, orderly, honest, peaceful, and credible elections would
necessarily have to be factored in trying to see where the balance lies between press and the demands of a right-to-reply.

Moreover, as already discussed by the Court in Telecommunications and Broadcast Attorneys of the Philippines, Inc. v.
Commission on Elections.67

In truth, radio and television broadcasting companies, which are given franchises, do not own the airwaves and
frequencies through which they transmit broadcast signals and images. They are merely given the temporary privilege of
using them. Since a franchise is a mere privilege, the exercise of the privilege may reasonably be burdened with the
performance by the grantee of some form of public service. x x x68

Relevant to this aspect are these passages from an American Supreme Court decision with regard to broadcasting, right to
reply requirements, and the limitations on speech:

We have long recognized that each medium of expression presents special First Amendment problems. Joseph Burstyn,
Inc. v. Wilson, 343 US 495, 502-503, 96 L Ed 1098, 72 S Ct 777. And of all forms of communication, it is broadcasting that
has received the most limited First Amendment protection. Thus, although other speakers cannot be licensed except under
laws that carefully define and narrow official discretion, a broadcaster may be deprived of his license and his forum if the
Commission decides that such an action would serve "the public interest, convenience, and necessity." Similarly, although
the First Amendment protects newspaper publishers from being required to print the replies of those whom they criticize,
Miami Herald Publishing Co. v. Tornillo, 418 US 241, 41 L Ed 2d 730, 94 S Ct 2831, it affords no such protection to
broadcasters; on the contrary, they must give free time to the victims of their criticism. Red Lion Broadcasting Co. v. FCC,
395 US. 367, 23 L Ed 2d 371, 89 S Ct 1794.

The reasons for these distinctions are complex, but two have relevance to the present case. First, the broadcast media
have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material
presented over the airwaves confronts the citizen not only in public, but also in the privacy of the home, where the
individual's right to be left alone plainly outweighs the First Amendment rights of an intruder. Rowan v. Post Office Dept.,
397 US 728, 25 L Ed 2d 736, 90 S Ct 1484. Because the broadcast audience is constantly tuning in and out, prior warnings
cannot completely protect the listener or viewer from unexpected program content. To say that one may avoid further
offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run
away after the first blow. One may hang up on an indecent phone call, but that option does not give the caller a
constitutional immunity or avoid a harm that has already taken place.

Second, broadcasting is uniquely accessible to children, even those too young to read. Although Cohen's written message
might have been incomprehensible to a first grader, Pacifica's broadcast could have enlarged a child's vocabulary in an
instant. Other forms of offensive expression may be withheld from the young without restricting the expression at its
source. Bookstores and motion picture theaters, for example, may be prohibited from making indecent material available to
children. We held in Ginsberg v. New York, 390 US 629, that the government's interest in the "well-being of its youth" and
in supporting "parents' claim to authority in their own household" justified the regulation of otherwise protected
expression. The ease with which children may obtain access to broadcast material, coupled with the concerns recognized in
Ginsberg, amply justify special treatment of indecent broadcasting.69

Given the foregoing considerations, the traditional notions of preferring speech and the press over so many other values of
society do not readily lend itself to this particular matter. Instead, additional weight should be accorded on the
constitutional directive to afford a right to reply. If there was no such mandate, then the submissions of petitioners may
more easily commend themselves for this Court's acceptance. But as noted above, this is not the case. Their arguments
simplistically provide minimal importance to that constitutional command to the point of marginalizing its importance in the
equation.

In fine, when it comes to election and the exercise of freedom of speech, of expression and of the press, the latter must
be properly viewed in context as being necessarily made to accommodate the imperatives of fairness by giving teeth and
substance to the right to reply requirement.

WHEREFORE, premises considered, the petitions are PARTIALLY GRANTED, Section 9 (a) of Resolution No. 9615, as
amended by Resolution No. 9631, is declared UNCONSTITUTIONAL and, therefore, NULL and VOID. The constitutionality
of the remaining provisions of Resolution No. 9615, as amended by Resolution No. 9631, is upheld and remain in full force
and effect.

In view of this Decision, the Temporary Restraining Order issued by the Court on April 16, 2013 is hereby made
PERMANENT.

SO ORDERED.

48
Republic Act No. 7166 November 26, 1991

AN ACT PROVIDING FOR SYNCHRONIZED NATIONAL AND LOCAL ELECTIONS AND FOR ELECTORAL
REFORMS, AUTHORIZING APPROPRIATIONS THEREFOR, AND FOR OTHER PURPOSES

Section 13. Authorized Expenses of Candidates and Political Parties. - The agreement amount that a candidate or
registered political party may spend for election campaign shall be as follows:

(a) For candidates. - Ten pesos (P10.00) for President and Vice-President; and for other candidates Three Pesos
(P3.00) for every voter currently registered in the constituency where he filed his certificate of candidacy:
Provided, That a candidate without any political party and without support from any political party may be allowed
to spend Five Pesos (P5.00) for every such voter; and

(b) For political parties. - Five pesos (P5.00) for every voter currently registered in the constituency or
constituencies where it has official candidates.

Any provision of law to the contrary notwithstanding any contribution in cash or in kind to any candidate or political party
or coalition of parties for campaign purposes, duly reported to the Commission shall not be subject to the payment of any
gift tax.

REPUBLIC ACT No. 10590

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, APPROPRIATING FUNDS
THEREFOR AND FOR OTHER PURPOSES"

Section 22. Section 15 of the same Act is hereby renumbered as Section 22 and is amended to read as follows:

"SEC. 22. Regulation on Campaigning Abroad. - Personal campaigning, the use of campaign materials, as well as
the limits on campaign spending shall be governed by the laws and regulations applicable in the
Philippines: Provided, That all forms of campaigning abroad within the thirty (30)-day overseas voting period shall
be prohibited."

G.R. No. 111230 September 30, 1994 ENRIQUE T. GARCIA, ET AL., petitioners, vs. COMMISSION ON
ELECTIONS and SANGGUNIANG BAYAN OF MORONG, BATAAN, respondents. PUNO, J.:

The 1987 Constitution is borne of the conviction that people power can be trusted to check excesses of government. One
of the means by which people power can be exercised is thru initiatives where local ordinances and resolutions can be
enacted or repealed. An effort to trivialize the effectiveness of people's initiatives ought to be rejected.

In its Pambayang Kapasyahan Blg. 10, Serye 1993, 1 the Sangguniang Bayan ng Morong, Bataan agreed to the inclusion of
the municipality of Morong as part of the Subic Special Economic Zone in accord with Republic Act
No. 7227.

On May 24, 1993, petitioners filed a petition 2 with the Sangguniang Bayan of Morong to annul Pambayang Kapasyahan
Blg. 10, Serye 1993. The petition states:

I. Bawiin, nulipikahin at pawalang-bisa ang Pambayang Kapasyahan Blg. 10, Serye 1993 ng Sangguniang
Bayan para sa pag-anib ng Morong sa SSEZ na walang kondisyon.

II. Palitan ito ng isang Pambayang Kapasiyahan na aanib lamang ang Morong sa SSEZ kung ang mga
sumusunod na kondisyones ay ipagkakaloob, ipatutupad at isasagawa para sa kapakanan at interes ng
Morong at Bataan:

(A). Ibalik sa Bataan ang "Virgin Forests" — isang bundok na hindi nagagalw at
punong-puno ng malalaking punong-kahoy at iba'-ibang halaman.

(B) Ihiwalay ang Grande Island sa SSEZ at ibalik ito sa Bataan.

(K). Isama ang mga lupain ng Bataan na nakapaloob sa SBMA sa pagkukuenta ng

salaping ipinagkakaloob ng pamahalaang national o "Internal Revenue Allotment"
(IRA) sa Morong, Hermosa at sa Lalawigan.

(D). Payagang magtatag rin ng sariling "special economic zones" ang bawat bayan ng
Morong, Hermosa at Dinalupihan.

(E). Ibase sa laki ng kanya-kanyang lupa ang pamamahagi ng kikitain ng SBMA.

49
 (G). Ibase rin ang alokasyon ng pagbibigay ng trabaho sa laki ng nasabing mga lupa.

(H). Pabayaang bukas ang pinto ng SBMA na nasa Morong ng 24 na oras at bukod dito
sa magbukas pa ng pinto sa hangganan naman ng Morong at Hermosa upang
magkaroon ng pagkakataong umunlad rin ang mga nasabing bayan, pati na rin ng iba
pang bayan ng Bataan.

(I). Tapusin ang pagkokonkreto ng mga daang Morong-Tala-Orani at Morong-Tasig-

Dinalupihan para sa kabutihan ng mga taga-Bataan at tuloy makatulong sa
pangangalaga ng mga kabundukan.

(J). Magkaroon ng sapat na representasyon sa pamunuan ng SBMA ang Morong,

Hermosa at Bataan.

The municipality of Morong did not take any action on the petition within thirty (30) days after its submission. Petitioners
then resorted to their power of initiative under the Local Government Code of 1991. 3 They started to solicit the required
number of signatures 4 to cause the repeal of said resolution. Unknown to the petitioners, however, the Honorable
Edilberto M. de Leon, Vice Mayor and Presiding Officer of the Sangguniang Bayan ng Morong, wrote a letter dated June 11,
1993 to the Executive Director of COMELEC requesting the denial of " . . . the petition for a local initiative and/or
referendum because the exercise will just promote divisiveness, counter productive and futility." 5 We quote the letter, viz:

The Executive Director

COMELEC
Intramuros, Metro Manila

S i r:

In view of the petition filed by a group of proponents headed by Gov. Enrique T. Garcia, relative to the
conduct of a local initiative and/or referendum for the annulment of Pambayang Kapasyahan Blg. 10,
Serye 1993, may we respectfully request to deny the petition referred thereto considering the issues
raised by the proponents were favorably acted upon and endorsed to Congress and other government
agencies by the Sangguniang Bayan of Morong.

For your information and guidance, we are enumerating hereunder the issues raised by the petitioners
with the corresponding actions undertaken by the Sangguniang Bayan of Morong, to wit:

ISSUES RAISED BY PROPONENTS

I. Pawalang-bisa ang Pambayang Kapasyahan Blg. 10, Serye ng taong 1993.

II. Palitan ito ng isang Kapasyahang Pag-anib sa SSEZ kung:

a) Ibabalik sa Morong ang pag-aaring Grande Island, kabundukan at Naval

Reservation;

b) Ibase sa aring Lupa ng LGU ang kikitain at mapapasok na manggagawa nila sa

SSEZ;

c) Isama ang nasabing lupa sa pagkukuwenta ng "IRA" ng Morong, Hermosa at

Dinalupihan;

d) Makapagtatag ng sariling "economic zones" ang Morong, Hermosa at Dinalupihan;

e) Pabayaan bukas ang pinto ng Morong patungong SSEZ at magbukas ng dalawang

(2) pinto pa;

(f) Konkretohin ang daang Morong papunta sa Orani at Dinalupihan;

g) Pumili ng SBMA Chairman na taga-ibang lugar.

ACTIONS UNDERTAKEN BY THE SB OF MORONG

1. By virtue of R.A. 7227, otherwise known as the Bases Conversion Development Act of 1992, all actions
of LGU's correlating on the above issues are merely recommendatory in nature when such provisions
were already embodied in the statute.

2. Corollary to the notion, the Sangguniang Bayan of Morong passed and approved Pambayang
Kapasyahan Blg. 18, Serye 1993, requesting Congress of the Philippines to amend certain provisions of
R.A. 7227, wherein it reasserted its position embodied in Pambayan Kapasyahan Blg. 08 and Blg. 12,

50
 Serye ng taong 1992, (Attached and marked as Annex "A:) which tackled the same issues raised by the
petitioners particularly items a), b), c), e), and g).

3. Item d) is already acted upon by BCDA Chairman Arsenio Bartolome III in its letter to His Excellency
President Fidel V. Ramos, dated May 7, 1993 (Attached and marked as Annex "B") with clarifying letter
from BCDA Vice-Chairman Rogelio L. Singson regarding lands on Mabayo and Minanga dated June 3,
1993 that only lands inside the perimeter fence are envisioned to be part of SBMA.

4. Item f), President Ramos in his marginal note over the letter request of Morong, Bataan Mayor
Bienvenido L. Vicedo, the Sangguniang Bayan and Congressman Payumo, when the Resolution of
Concurrence to SBMA was submitted last April 6, 1993, order the priority implementation of completion
of Morong-Dinalupihan (Tasik-Road) Project, including the Morong-Poblacion-Mabayo Road to DPWH.
(Attached and marked as Annex "C").

Based on the foregoing facts, the Sangguniang Bayan of Morong had accommodated the clamor of the
petitioners in accordance with its limited powers over the issues. However, the Sangguniang Bayan of
Morong cannot afford to wait for amendments by Congress of R.A. 7227 that will perhaps drag for
several months or years, thereby delaying the development of Morong, Bataan.

Henceforth, we respectfully reiterate our request to deny the petition for a local initiative and/or
referendum because the exercise will just promote divisiveness, counter productive and futility.

Thank you and more power.

Very truly yours,

(SGD.) EDILBERTO M. DE LEON

Mun. Vice Mayor/Presiding Officer

In its session of July 6, 1993, the COMELEC en banc resolved to deny the petition for local initiative on the ground
that its subject is "merely a resolution (pambayang kapasyahan) and not an ordinance." 6 On July 13, 1993, the
COMELEC en banc further resolved to direct Provincial Election Supervisor, Atty. Benjamin N. Casiano, to hold
action on the authentication of signatures being gathered by petitioners. 7

These COMELEC resolutions are sought to be set aside in the petition at bench. The petition makes the following
submissions:

5. This is a petition for certiorari and mandamus.

5.01 For certiorari, conformably to Sec. 7, Art. IX of the Constitution, to set aside Comelec Resolution
Nos. 93-1676 and 93-1623 (Annexes "E" and "H") insofar as it disallowed the initiation of a local initiative
to annul PAMBAYANG KAPASYAHAN BLG. 10, SERYE 1993 including the gathering and authentication of
the required number of signatures in support thereof.

5.01.1 As an administrative agency, respondent Comelec is bound to observe due

process in the conduct of its proceedings. Here, the subject resolutions, Annexes "E"
and "H", were issued ex parte and without affording petitioners and the other
proponents of the initiative the opportunity to be heard thereon. More importantly,
these resolutions and/or directives were issued with grave abuse of discretion. A
Sangguniang Bayan resolution being an act of the aforementioned local legislative
assembly is undoubtedly a proper subject of initiative. (Sec. 32, Art. VI, Constitution)

5.02 For mandamus, pursuant to Sec. 3, Rule 65, Rules of Court, to command the respondent Comelec
to schedule forthwith the continuation of the signing of the petition, and should the required number of
signatures be obtained, set a date for the initiative within forty-five (45) days thereof.

5.02.1 Respondent Comelec's authority in the matter of local initiative is merely

ministerial. It is duty-bound to supervise the gathering of signatures in support of the
petition and to set the date of the initiative once the required number of signatures are
obtained.

If the required number of signatures is obtained, the Comelec shall

then set a date for the initiative during which the proposition shall
be submitted to the registered voters in the local government unit
concerned for their approval within sixty (60) days from the date of
certification by the Comelec, as provided in subsection (g) hereof, in
case of provinces and cities, forty-five (45) days in case of
municipalities, and thirty (30) days in case of barangays. The
initiative shall then be held on the date set, after which the results
thereof shall be certified and proclaimed by the Comelec. (Sec. 22,
par. (h) R.A. 7160.

51
 Respondent COMELEC opposed the petition. Through the Solicitor General, it contends that under the Local
Government Code of 1991, a resolution cannot be the subject of a local initiative. The same stance is assumed by
the respondent Sangguniang Bayan of Morong. 8

We grant the petition.

The case at bench is of transcendental significance because it involves an issue of first impression — delineating the extent
of the all important original power of the people to legislate. Father Bernas explains that "in republican systems, there are
generally two kinds of legislative power, original and derivative. Original legislative power is possessed by the sovereign
people. Derivative legislative power is that which has been delegated by the sovereign people to legislative bodies and is
subordinate to the original power of the people."9

Our constitutional odyssey shows that up until 1987, our people have not directly exercised legislative power, both the
constituent power to amend or revise the Constitution or the power to enact ordinary laws. Section 1, Article VI of the
1935 Constitution delegated legislative power to Congress, thus "the legislative power shall be vested in a Congress of the
Philippines, which shall consist of a Senate and a House of Representatives." Similarly, section 1, Article VIII of the 1973
Constitution, as amended, provided that "the Legislative power shall be vested in a Batasang Pambansa." 10

Implicit in the set up was the trust of the people in Congress to enact laws for their benefit. So total was their trust that
the people did not reserve for themselves the same power to make or repeal laws. The omission was to prove unfortunate.
In the 70's and until the EDSA revolution, the legislature failed the expectations of the people especially when former
President Marcos wielded lawmaking powers under Amendment No. 6 of the 1973 Constitution. Laws which could have
bridled the nation's downslide from democracy to authoritarianism to anarchy never saw the light of day.

In February 1986, the people took a direct hand in the determination of their destiny. They toppled down the government
of former President Marcos in a historic bloodless revolution. The Constitution was rewritten to embody the lessons of their
sad experience. One of the lessons is the folly of completely surrendering the power to make laws to the legislature. The
result, in the perceptive words of Father Bernas, is that the new Constitution became "less trusting of public officials than
the American Constitution." 11

For the first time in 1987, the system of people's initiative was thus installed in our fundamental law. To be sure, it was a
late awakening. As early as 1898, the state of South Dakota has adopted initiative and referendum in its constitution 12 and
many states have followed suit. 13 In any event, the framers of our 1987 Constitution realized the value of initiative and
referendum as an ultimate weapon of the people to negate government malfeasance and misfeasance and they put in
place an overarching system. Thus, thru an initiative, the people were given the power to amend the Constitution itself.
Sec. 2 of Art. XVII provides: "Amendments to this Constitution may likewise be directly proposed by the people through
initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative
district must be represented by at least three per centum of the registered voters therein." Likewise, thru an initiative, the
people were also endowed with the power to enact or reject any act or law by congress or local legislative body. Sections 1
and 32 of Article VI provide:

Sec. 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a
Senate and a House of Representatives except to the extent reserved to the people by the provisions on
initiative and referendum.

xxx xxx xxx

Sec. 32. The Congress shall, as early as possible, provide for a system of initiative and referendum, and
the exceptions therefrom, whereby the people can directly propose and enact laws or approve or
reject any act or law or part thereof passed by the Congress or local legislative body after the
registration of a petition therefor signed by at least ten per centum of the total number of registered
voters, of which every legislative district must be represented by at least three per centum of the
registered voters thereto.

The COMELEC was also empowered to enforce and administer all laws and regulations relative to the conduct of
an initiative and referendum. 14 Worthwhile noting is the scope of coverage of an initiative or referendum as
delineated by section 32 Art. VI of the Constitution, supra — any act or law passed by Congress or local legislative
body.

In due time, Congress respondent to the mandate of the Constitution. It enacted laws to put into operation the
constitutionalized concept of initiative and referendum. On August 4, 1989, it approved Republic Act No. 6735 entitled "An
Act Providing for a System of Initiative and Referendum and Appropriating Funds Therefor." Liberally borrowed from
American laws, 15 R.A. No. 6735, among others, spelled out the requirements 16 for the exercise of the power of initiative
and referendum, the conduct of national initiative and referendum; 17 procedure of local initiative and referendum; 18 and
their limitations. 19 Then came Republic Act No. 7160, otherwise known as The Local Government Code of 1991. Chapter 2,
Title XI, Book I of the Code governed the conduct of local initiative and referendum.

In light of this legal backdrop, the essential issue to be resolved in the case at bench is whether Pambayang Kapasyahan
Blg. 10, serye 1993 of the Sangguniang Bayan of Morong, Bataan is the proper subject of an initiative. Respondents take
the negative stance as they contend that under the Local Government Code of 1991 only an ordinance can be the subject
of initiative. They rely on section 120, Chapter 2, Title XI, Book I of the Local Government Code of 1991 which provides:

52
"Local Initiative Defined. — Local initiative is the legal process whereby the registered voters of a local government unit
may directly propose, enact, or amend any ordinance."

We reject respondents' narrow and literal reading of the above provision for it will collide with the Constitution and will
subvert the intent of the lawmakers in enacting the provisions of the Local Government Code of 1991 on initiative and
referendum.

The Constitution clearly includes not only ordinances but resolutions as appropriate subjects of a local initiative. Section 32
of Article VI provides in luminous language: "The Congress shall, as early as possible, provide for a system of initiative and
referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws or approve or
reject any act or law or part thereof passed by the Congress, or local legislative body . . ." An act includes a resolution.
Black 20 defines an act as "an expression of will or purpose . . . it may denote something done . . . as a legislature,
including not merely physical acts, but also decrees, edicts, laws, judgments,resolves, awards, and determinations . . . ." It
is basic that a law should be construed in harmony with and not in violation of the constitution. 21 In line with this
postulate, we held in In Re Guarina that "if there is doubt or uncertainty as to the meaning of the legislative, if the words
or provisions are obscure, or if the enactment is fairly susceptible of two or more constructions, that interpretation will be
adopted which will avoid the effect of unconstitutionality, even though it may be necessary, for this purpose, to disregard
the more usual or apparent import of the language used." 22

The constitutional command to include acts (i.e., resolutions) as appropriate subjects of initiative was implemented by
Congress when it enacted Republic Act No. 6735 entitled "An Act Providing for a System of Initiative and Referendum and
Appropriating Funds Therefor." Thus, its section 3(a) expressly includes resolutions as subjects of initiatives on local
legislations, viz:

Sec. 3. Definition of Terms — For purposes of this Act, the following terms shall mean;

(a) "Initiative" is the power of the people to propose amendments to the Constitution
or to propose and enact legislations through an election called for the purpose.

There are three (3) systems of initiative, namely:

a.1. Initiative on the Constitution which refers to a petition proposing amendments to

the Constitution.

a.2. Initiative on statutes which refers to a petition proposing to enact a national

legislation; and

a.3. Initiative on local legislation which refers to a petition proposing to enact a

regional, provincial, city, municipal, or barangay law, resolution, or ordinance.
(Emphasis ours)

Similarly, its section 16 states: "Limitations Upon Local Legislative Bodies — Any proposition on ordinance
or resolution approved through the system of initiative and referendum as herein provided shall not be repealed,
modified or amended, by the local legislative body concerned within six (6) months from the date therefrom . . .
." On January 16, 1991, the COMELEC also promulgated its Resolution No. 2300 entitled "In Re Rules and
Regulations Governing the Conduct of Initiative on the Constitution, and Initiative and Referendum, on National
and Local Laws." It likewise recognized resolutions as proper subjects of initiatives. Section 5, Article I of its Rules
states: "Scope of power of initiative — The power of initiative may be exercised to amend the Constitution, or to
enact a national legislation, a regional, provincial, city, municipal or barangay law,resolution or ordinance."

There can hardly be any doubt that when Congress enacted Republic Act No. 6735 it intend resolutions to be proper
subjects of local initiatives. The debates confirm this intent. We quote some of the interpellations when the Conference
Committee Report on the disagreeing provisions between Senate Bill No. 17 and House Bill No. 21505 were being
considered in the House of Representatives, viz:

THE SPEAKER PRO TEMPORE. The Gentleman from Camarines Sur is recognized.

MR. ROCO. On the Conference Committee Report on the disagreeing provisions between Senate Bill No.
17 and the consolidated House Bill No. 21505 which refers to the system providing for the initiative ad
referendum, fundamentally, Mr. Speaker, we consolidated the Senate and the House versions, so both
versions are totally intact in the bill. The Senators ironically provided for local initiative and referendum
and the House of Representatives correctly provided for initiative and referendum on the Constitution
and on national legislation.

I move that we approve the consolidated bill.

MR. ALBANO. Mr. Speaker.

THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leader?
MR. ALBANO. Will the distinguished sponsor answer just a few questions?
THE SPEAKER PRO TEMPORE. What does the sponsor say?
MR. ROCO. Willingly, Mr. Speaker.

53
 THE SPEAKER PRO TEMPORE. The Gentleman will please proceed.
MR. ALBANO. I heard the sponsor say that the only difference in the two bills was that in the Senate
version there was a provision for local initiative and referendum, whereas the House version has none.
MR. ROCO. In fact, the Senate version provided purely for local initiative and referendum, whereas in the
House version, we provided purely for national and constitutional legislation.
MR. ALBANO. Is it our understanding, therefore, that the two provisions were incorporated.?
MR. ROCO. Yes, Mr. Speaker.
MR. ALBANO. So that we will now have a complete initiative and referendum both in the constitutional
amendment and national legislation.
MR. ROCO. That is correct.
MR. ALBANO. And provincial as well as municipal resolutions?
MR. ROCO. Down to barangay, Mr. Speaker.
MR. ALBANO. And this initiative and referendum is in consonance with the provision of the Constitution
whereby it mandates this Congress to enact the enabling law, so that we shall have a system which can
be done every five years. Is it five years in the provision of the Constitution?
MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments to the 1987 Constitution, it is
every five years. 23
Contrary to the submission of the respondents, the subsequent enactment of the local Government Code of 1991 which
also dealt with local initiative did not change the scope of its coverage. More specifically, the Code did not limit the
coverage of local initiatives to ordinances alone. Section 120, Chapter 2, Title IX Book I of the Code cited by respondents
merely defines the concept of local initiative as the legal process whereby the registered voters of a local government unit
may directly propose, enact, or amend any ordinance. It does not, however, deal with the subjects or matters that can be
taken up in a local initiative. It is section 124 of the same Code which does. It states:

Sec. 124. Limitations on Local Initiatives. (a) The power of local initiative shall not be exercised more
than once a year.

(b) Initiative shall extend only to subjects or matters which are within the legal powers of the
Sanggunians to enact.

xxx xxx xxx

This provision clearly does not limit the application of local initiatives to ordinances, but to all "subjects or matters
which are within the legal powers of the Sanggunians to enact," which undoubtedly includes resolutions. This
interpretation is supported by Section 125 of the same Code which provides: "Limitations upon Sanggunians. —
Any proposition or ordinance approved through the system of initiative and referendum as herein provided shall
not be repealed, modified or amended by the sanggunian concerned within six (6) months from the date of the
approval thereof . . . ." Certainly, the inclusion of the word proposition is inconsistent with respondents' thesis
that only ordinances can be the subject of local initiatives. The principal author of the Local Government Code of
1991, former Senator Aquilino Pimentel, espouses the same view. In his commentaries on the said law, he
wrote, viz: 24

4. Subject Matter Of Initiative. All sorts of measures may be the subject of direct initiative for as long as
these are within the competence of the Sanggunian to enact. In California, for example, direct initiatives
were proposed to enact a fishing control bill, to regulate the practice of chiropractors, to levy a special
tax to secure a new library, to grant a franchise to a railroad company, and to prevent discrimination in
the sale of housing and similar bills.

Direct initiative on the local lever may, therefore, cover all kinds of measures provided that these are
within the power of the local Sanggunians to enact, subject of course to the other requisites enumerated
in the Section.

5. Form of Initiative. Regarding the form of the measure, the section speaks only of "ordinance,"
although the measure may be contained in a resolution. If the registered voters can propose ordinances,
why are they not allowed to propose resolutions too? Moreover, the wording of Sec. 125, below, which
deals not only with ordinances but with "any proposition" implies the inclusion of resolutions. The
discussion hereunder will also show support for the conclusion that resolutions may indeed be the
subject of local initiative.

We note that respondents do not give any reason why resolutions should not be the subject of a local initiative. In truth,
the reason lies in the well known distinction between a resolution and an ordinance — i.e., that a resolution is used
whenever the legislature wishes to express an opinion which is to have only a temporary effect while an ordinance is
intended to permanently direct and control matters applying to persons or things in general. 25 Thus, resolutions are not
normally subject to referendum for it may destroy the efficiency necessary to the successful administration of the business
affairs of a city. 26

In the case at bench, however, it can not be argued that the subject matter of the resolution of the municipality of Morong
merely temporarily affects the people of Morong for it directs a permanent rule of conduct or government. The inclusion of
Morong as part of the Subic Special Economic Zone has far reaching implications in the governance of its people. This is
apparent from a reading of section 12 of Republic Act No. 7227 entitled "An Act Accelerating the Conversion of Military
Reservations Into Other Productive Uses, Creating the Bases Conversion and Development Authority For This Purpose,
Providing Funds Therefor and For Other Purposes." to wit:

54
 Sec. 12. Subic Special Economic Zone. — Subject to the concurrence by resolution of the sangguniang
panlungsod of the City of Olongapo and the sangguniang bayan of the Municipalities of Subic, Morong
and Hermosa, there is hereby created a Special Economic and Free-port Zone consisting of the City of
Olongapo and the Municipality of Subic, Province of Zambales, the lands occupied by the Subic Naval
Base and its contiguous extensions as embraced, covered, and defined by the 1947 Military Bases
Agreement between the Philippines and the United States of America as amended, and within the
territorial jurisdiction of the Municipalities of Morong and Hermosa, Province of Bataan, hereinafter
referred to a as the Subic Special Economic Zone whose metes and bounds shall be delineated in a
proclamation to be issued by the President of the Philippines. Within thirty (30) days after the approval
of this Act, each local government unit shall submit its resolution of concurrence to join the Subic Special
Economic Zone to the Office of the President. Thereafter, the President of the Philippines shall issue a
proclamation defining the metes and bounds of the zone as provided herein.

The abovementioned zone shall be subject to the following policies:

(a) Within the framework and subject to the mandate and limitations of the Constitution and the
pertinent provisions of the Local Government Code, the Subic Special Economic Zone shall be developed
into a self-sustaining, industrial, commercial, financial and investment center to generate employment
opportunities in and around the zone and to attract and promote productive foreign investments;

(b) The Subic Special Economic Zone shall be operated and managed as a separate customs territory
ensuring free flow or movement of goods and capital within, into a exported out of the Subic Special
Economic Zone, as well as provide incentives such as tax and duty-free importations of raw material,
capital and equipment. However, exportations or removal of goods from the territory of the Subic Special
Economic Zone to the other parts of the Philippine territory shall be subject to customs duties and taxes
under the Customs and Tariff Code and other relevant tax laws of the Philippines:

(c) The provision of existing laws, rules and regulations to the contrary notwithstanding, no taxes, local
and national, shall be imposed within the Subic Special Economic Zone. In lieu of paying taxes, three
percent (3%) of the of the gross income earned by all businesses and enterprises within the Subic
Special Economic Zone shall be remitted to the National Government one percent (1%) each to the local
government units affected by the declaration of the zone in proportion to their population area, and
other factors. In addition, there is hereby established a development fund of one percent (1%) of the
gross income earned by all businesses and enterprises within the Subic Special Economic Zone to be
utilized for the development of municipalities outside the City of Olongapo and the Municipality of Subic,
and other municipalities contiguous to the base areas.

In case of conflict between national and local laws with respect to tax exemption privileges in the Subic
Special Economic Zone, the same shall be resolved in favor of the latter;

(d) No exchange control policy shall be applied and free markets for foreign exchange, gold, securities
and futures shall be allowed and maintained in the Subic Special Economic Zone;

(e) The Central Bank, through the Monetary Board, shall supervise and regulate the operations of banks
and other financial institutions within the Subic Special Economic Zone;

(f) Banking and finance shall be liberalized with the establishment of foreign currency depository units of
local commercial banks and offshore banking units of foreign banks with minimum Central Bank
regulation;

(g) Any investor within the Subic Special Economic Zone whose continuing investment shall not be less
than Two hundred fifty thousand dollars ($250,000), his/her spouse and dependent children under
twenty-one (21) years of age, shall be granted permanent resident status within the Subic Special
Economic Zone. They shall have freedom of ingress and egress to and from the Subic Special Economic
Zone without any need of special authorization from the Bureau of Immigration and Deportation. The
Subic Bay Metropolitan Authority referred to in Section 13 of this Act may also issue working visas
renewable every two (2) years to foreign executives and other aliens possessing highly-technical skills
which no Filipino within the Subic Special Economic Zone possesses, as certified by the Department of
Labor and Employment. The names of aliens granted permanent residence status and working visas by
the Subic Bay Metropolitan Authority shall be reported to the Bureau of Immigration and Deportation
within thirty (30) days after issuance thereof.

(h) The defense of the zone and the security of its perimeters shall be the responsibility of the National
Government in coordination with the Subic Bay Metropolitan Authority. The Subic Bay Metropolitan
Authority shall provide and establish its own internal security and fire fighting forces; and

(i) Except as herein provided, the local government units comprising the Subic Special Economic Zone
shall retain their basic autonomy and identity. The cities shall be governed by their respective charters
and the municipalities shall operate and function in accordance with Republic Act No. 7160, otherwise
known as the Local Government Code of 1991.

In relation thereto, section 14 of the same law provides:

55
 Sec. 14. Relationship with the Conversion Authority and the Local Government Units. —

(a) The provisions of existing laws, rules and regulations to the contrary notwithstanding, the Subic
Authority shall exercise administrative powers, rule-making and disbursement of funds over the Subic
Special Economic Zone in conformity with the oversight function of the Conversion Authority.

(b) In case of conflict between the Subic Authority and the local government units concerned on matters
affecting the Subic Special Economic zone other than defense and security, the decision of the Subic
Authority shall prevail.

Considering the lasting changes that will be wrought in the social, political, and economic existence of the people
of Morong by the inclusion of their municipality in the Subic Special Economic Zone, it is but logical to hear their
voice on the matter via an initiative. It is not material that the decision of the municipality of Morong for the
inclusion came in the form of a resolution for what matters is its enduring effect on the welfare of the people of
Morong.

Finally, it cannot be gained that petitioners were denied due process. They were not furnished a copy of the letter-petition
of Vice Mayor Edilberto M. de Leon to the respondent COMELEC praying for denial of their petition for a local initiative on
Pambayang Kapasyahan Blg. 10, Serye 1993. Worse, respondent COMELEC granted the petition without affording
petitioners any fair opportunity to oppose it. This procedural lapse is fatal for at stake is not an ordinary right but the
sanctity of the sovereignty of the people, their original power to legislate through the process of initiative. Ours is the duty
to listen and the obligation to obey the voice of the people. It could well be the only force that could foil the mushrooming
abuses in government.

IN VIEW WHEREOF, the petition is GRANTED and COMELEC Resolution 93-1623 dated July 6, 1993 and Resolution 93-
1676 dated July 13, 1993 are ANNULLED and SET ASIDE. No costs.

SO ORDERED.

G.R. No. 212398 November 25, 2014 EMILIO RAMON "E.R." P. EJERCITO, Petitioner, vs. HON.
COMMISSION ON ELECTIONS and EDGAR "EGA Y" S. SAN LUIS, Respondents. 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 Resolutio1 of the Commission on Elections (COMELEC) En Banc in SPA No. 13-306 (DC), which affirmed the
September 26, 2013 Resolution2 of the COMELEC First Division granting the petition for disqualification filed by private
respondent Edgar "Egay" S. San Luis (San Luis) against petitioner Emilio Ramon "E.R." P. Ejercito (Ejercito). Three days
prior to the May 13, 2013 National and Local Elections, a petition for disqualification was filed by San Luis before the Office
of the COMELEC Clerk in Manila against Ejercito, who was a fellow gubernatorial candidate and, at the time, the incumbent
Governor of the Province of Laguna.3 Alleged in his Petition are as follows:

FIRST CAUSE OF ACTION

5. [Ejercito], during the campaign period for 2013 local election, distributed to the electorates of the province of
Laguna the so-called "Orange Card" with an intent to influence, induce or corrupt the voters in voting for his
favor. Copy thereof is hereto attached and marked as Annex "C" and made as an integral part hereof;

6. In furtherance of his candidacy for the position of Provincial Governor of Laguna, [Ejercito] and his cohorts
claimed that the said "Orange Card" could be used in any public hospital within the Province of Laguna for their
medical needs as declared by the statements of witnesses which are hereto attached and marked as Annex "D" as
integral part hereof;

7. The so-called "Orange Card" is considered a material consideration in convincing the voters to cast their votes
for [Ejercito’s] favor in clear violation of the provision of the Omnibus Election Code which provides and I quote:

"Sec. 68. Disqualifications. – Any candidate who, in an action or protest in which he is a party is declared by final
decision by a competent court guilty of, or found by the Commission of having (a) given money or other
materialconsideration to influence, induce or corrupt the voters or public officials performing electoral functions;
(b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess
of that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95,
96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86, and 261, paragraphs d, e, k, v, and cc,
subparagraph 6, shall be disqualified from continuing as a candidate, or if hehas been elected, from holding the
office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to
run for any elective office under this Code, unless said person has waived his status as permanent resident or
immigrant of a foreign country in accordance with the residence requirement provided for in the election laws."
(emphasis ours)

8. Thus, pursuant to the mandate of the aforesaid law, [Ejercito] should be disqualified;

SECOND CAUSE OF ACTION

56
9. Based on the records of the Provincial COMELEC, the Province of Laguna has a total of 1,525,522 registered
electorate. A certification issued by the Provincial Election Supervisor is hereto attached and marked as Annex "E"
as an integral part hereof;

10. In this regard, par. (a), Section 5 of COMELEC Resolution No. 9615, otherwise known as the Rules and
Regulations Implementing FAIR ELECTION ACT provides and I quote:

"Authorized Expenses of Candidates and Parties. –The aggregate amount that a candidate or party may spent for
election campaign shall be as follows:

a. For candidates – Three pesos (₱3.00) 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 any support from any political party – Five
pesos (₱5.00) 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 (₱5.00) for every voter currently registered in
the constituency or constituencies where it has official candidates. (underscoring mine for emphasis)

11. Accordingly, a candidate for the position of Provincial Governor of Laguna is only authorized to incur an
election expense amounting to FOUR MILLION FIVE HUNDRED SEVENTY-SIX THOUSAND FIVE HUNDRED SIXTY-
SIX (₱4,576,566.00) PESOS.

12. However, in total disregard and violation of the afore-quoted provision of law, [Ejercito] exceeded his
expenditures in relation to his campaign for the 2013 election. For television campaign commercials alone,
[Ejercito] already spent the sum of Ph₱23,730.784 based on our party’s official monitoring on the following
dates[:] April 28, May 4 & May 5, 2013.

Network Date Program Time Duration Amount*

4 minutes
ABS-CBN April 28, 2013 TV Patrol 5:58 p.m. ₱3,297,496
(approximately)

Sundays Best 4 minutes

ABS-CBN April 28, 2013 10:40 p.m. ₱3,297,496
(local specials) (approximately)

Sunday Night 3 minutes

GMA April 28, 2013 10:46 p.m. ₱2,635,200
Box Office (approximately)

Sunday Night 4 minutes

GMA April 28, 2013 11:06 p.m. ₱2,635,200
Box Office (approximately)

Sunday Night 4 minutes

GMA April 28, 2013 11:18 p.m. ₱2,635,200
Box Office (approximately)

Sunday Night 4 minutes

GMA April 28, 2013 11:47 p.m. ₱2,635,200
Box Office (approximately)

4 minutes
ABS-CBN May 4, 2013 TODA MAX 11:26 p.m. ₱3,297,496
(approximately)

4 minutes
ABS-CBN May 5, 2013 Rated K 8:06 p.m. ₱3,297,496
(approximately)

Total ₱23,730.784

* Total cost based on published rate card;

13. Even assuming that [Ejercito] was given 30% discount as prescribed under the Fair Election Act, he still
exceeded in the total allowable expenditures for which he paid the sum of ₱16,611,549;

14. In view of the foregoing disquisitions, it is evident that [Ejercito] committed an election offense as provided
for under Section 35 of COMELEC Resolution No. 9615, which provides and I quote:

"Election Offense. – Any violation of R.A. No. 9006 and these Rules shall constitute an election offense punishable
under the first and second paragraph of Section 264 of the Omnibus Election Code in addition to administrative
liability, whenever applicable. x x x"

15. Moreover, it is crystal clear that [Ejercito] violated Sec. 68 of the Omnibus Election Code which provides and I
quote:

"Sec. 68. Disqualifications. – Any candidate who, in an action or protest in which he is a party is declared by final
decision by a competent court guilty of, or found by the Commission of having (a) given money or other material
consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b)

57
 committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of
that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96,
97 and 104; or (e) violated any of Sections 80, 83, 85, 86, and 261, paragraphs d, e, k, v, and cc, subparagraph
6, shall be disqualified from continuing asa candidate, or if he has been elected, from holding the office. Any
person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any
elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a
foreign country in accordance with the residence requirement provided for in the election laws." (emphasis ours)

16. On the other hand, the effect of disqualification is provided under Sec. 6 of Republic Act No. 6646, which
states and I quote:

"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." (emphasis mine)

PRAYER

WHEREFORE, premises considered, it is respectfully prayed that:

1. Upon filing of this petition, a declaration by the Honorable Commission of the existence of probable cause be
made against [Ejercito] for violating the afore-quoted provisions of laws;

2. In the event that [Ejercito] will beable to get a majority vote of the electorate of the Province of Laguna on
May 13, 2013, his proclamation be suspended until further order of the Honorable Commission pursuant to Sec. 6
of Republic Act No. 6646;

3. Lastly, a criminal case for VIOLATION OF ELECTION LAWS be filed against [Ejercito] before the proper court[;]
[and]

4. Other relief, just and equitable underthe premises, are also prayed for.4

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
Answeron 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 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
Laguneños 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 ofLaguna 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.

58
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

San Luis substantially reiterated the content of the Petitionin his Memorandum.16 Additionally, he alleged that:

15. After the election, [San Luis] was able to secure documents from the Information and Education Department of the
Commission on Elections showing that [Ejercito] have incurred advertising expenses with ABS-CBN in the amount of
[₱20,197,170.25] not to mention his advertisement with GMA 7. Copies of the summary report, media purchase order,
advertising contract[,] and official receipt are marked as EXHS. "B-1", "B-2", "B-3", and"B-4" (Annexes "A", "B", "C", and
"D", supplemental to the very urgent ex-parte motion)[.]17

It was stressed that the case is a "Special Action for Disqualification" seeking to disqualify Ejercito as gubernatorial
candidate for violation of Section 68 (a) (c) of the OEC. He prayed that "[t]he Petition BE GRANTED [and] x x x [Ejercito]
BE DISQUALIFIED, and PREVENTED from further holding office as Governor of Laguna."18 In refutation of Ejercito’s
defenses, San Luis argued that it is precisely because of the commission of the election offenses under Section 68 of the
OEC that he (Ejercito) should be disqualified. Also, citing Section 6 of Republic Act (R.A.) No. 6646, 19 San Luis contended
that Ejercito’s proclamation and assumption of office do not affect the COMELEC’s jurisdiction to continue with the trial and
hearing of the action until it is finally resolved.

For his part, Ejercito filed a Manifestation (In Lieu of Memorandum)20 restating all the arguments set forth in his Verified
Answer.

On September 26, 2013, the COMELEC First Division promulgated a Resolution, the dispositive portion of which reads:

WHEREFORE, premises considered, the Commission (First Division) RESOLVED, as it hereby RESOLVES, to:

(1) GRANTthe Petition for Disqualification filed against respondent Emilio Ramon "E.R." P. Ejercito;
(2) DISQUALIFY respondent Ejercito from holding the Office of the Provincial Governor of Laguna, pursuant to
Section 68 of the Omnibus Election Code;
(3) ORDER respondent Ejercito to CEASE and DESIST from performing the functions of the Office of the Provincial
Governor of Laguna;
(4) DECLARE a permanent VACANCY in the Office of the Provincial Governor of Laguna;
(5) DIRECT the duly elected Vice Governor of Laguna to assume the Office of the Provincial Governor by virtue of
succession as provided in Section 44 of the Local Government Code; and
(6) DIRECT the Campaign Finance Unit to coordinate with the Law Department of this Commission for the
conduct of a preliminary investigation into the alleged violations of campaign finance laws, rules and regulations
committed by respondent Ejercito.
SO ORDERED.21

On procedural matters, the COMELEC First Division held that the title of San Luis’ petition and its reliance on Section 68 (a)
(c) of the OEC as grounds for his causes of action clearly show that the case was brought under Rule 25 of the COMELEC
Rules of Procedure,22 as amended by COMELEC Resolution No. 9523,23 which allows petitions for disqualification to be filed
"any day after the last day for filing of certificates of candidacy, but not later than the date of proclamation." No credence
was given to Ejercito’s contention that the petition was mooted by his proclamation as Governor of Laguna. The COMELEC
First Division opined that the case of Sinacais inapplicable, because it was not about Sinaca’s eligibility or whether he
committed any of the acts enumerated in Section 68 of the OEC. Consistent with Maquiling v. Commission on Elections,24 it
was declared that Ejercito’s garnering of more votes than San Luis in the May 2013 elections is not tantamount to
condonation of any act or acts that he committed which may be found to bea ground for disqualification or election
offense.

The COMELEC First Division settled the substantive issues put forth in the petition for disqualification in this wise:

Anent [San Luis’] first cause of action, [San Luis] presented the Sworn Statement dated [May 7, 2013]of a certain Mrs.
Daisy A. Cornelio, together with the "Orange Card" issued to Mrs. Cornelio, marked respectively as Exhibits "A-4" and "A-3"
as per [San Luis’] Summary of Exhibits– to prove that [Ejercito] committed the act described in Section 68 (a) of the OEC.
After reviewing Mrs. Cornelio’s Sworn Statement, we 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. Cornelio’s 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 Contractbetween ABS-CBN
Corporation and Scenema Concept International, Inc. ("SCI"). The details of the Contractare as follows:

Payor/Advertiser Scenema Concept International, Inc.

Beneficiary Jeorge "ER" Ejercito Estregan

59
 Broadcast Schedule April 27, 28, May 3, 4, 10 & 11, 2013

Number of Spots 6 spots of 3.5 minutes each

Unit Cost per Spot PhP 3,366,195.04

Total Cost of Contract PhP 20,197,170.25 plus VAT

The Contract contains the signature of [Ejercito] signifying his acceptance of the donation by SCI, the latter represented by
its Executive Vice President, Ms. Maylyn Enriquez. In addition to the advertising contract, Exhibit "B-4" was submitted,
which is a photocopy of an Official Receipt issued by ABS-CBN for the contract, with the following details:

Date of the Receipt [April 26, 2013]

Received From Scenema Concept International, Inc.

Amount Received PhP 6,409,235.28

Official Receipt No. 278499

Upon verification of the submitted Exhibits "B-1" to "B-4" with this Commission’s Education and Information Department
(EID), the latter having custody of all advertising contracts submitted by broadcast stations and entities in relation tothe
[May 13, 2013] National and Local Elections, we find the said Exhibits tobe faithful reproductions of our file copy of the
same. A comparison of [Ejercito’s] signature on the Advertising Contractand that on his Certificate of Candidacy show them
to be identical to each other, leading us to the conclusion that [Ejercito] had indeed accepted the PhP 20,197,170.25
donation in the form of television advertisements to be aired on ABS-CBN’s Channel 2. Even if we were to assume that only
PhP 6,409,235.28 was actually paid out of PhP 20,197,170.25 advertising contract, thisamount is still more than PhP
4,576,566.00, which is [Ejercito’s] total authorized aggregate amount allowed for his election campaign, computed as
follows:

Number of registered Authorized expense Total amount of

voters for the whole x per voter registered = spending allowed
Province of Laguna in the constituency for election campaign

1,525,522 registered
x PhP 3.00 per voter = PhP 4,576,566.00
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 SCI’s 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 x Unit cost per spot = Total contract cost

Seven (7) spots x PhP 3,366,195.04 = PhP 23,563,365.28

This matches the data gathered by the Commission’s 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], [Ejercito’s] 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 Logare 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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Assuming arguendo, that the actual cost of both contracts only amounted to PhP 12,818,470.56 as substantiated by the
two (2) Official Receipt sissued by the ABS-CBN on [April 26] and [May 7, 2013], or even if we were only to consider
Exhibit ["B-4"] or the Php 6,409,235.28 payment to ABS-CBN on [April 26, 2013], it nevertheless supports our finding that
[Ejercito] exceeded his authorized expenditure limit of PhP 4,576,566.00 which is a ground for disqualification under
Section 68 (c) and concurrently an election offense pursuant to Section 100 in relation to Section 262 of the Omnibus
Election Code.25

Only Ejercito filed a Verified Motion for Reconsideration before the COMELEC En Banc.26 After the parties’ exchange of
pleadings,27 the Resolution of the COMELEC First Division was unanimously affirmed on May 21, 2014.

The COMELEC En Bancagreed with the findings of its First Division that San Luis’ petition is an action to disqualify Ejercito,
reasoning that:

x x x First, the title of the petition indicating that it is a petition for disqualification clearly expresses the objective of the
action. Second, it is manifest from the language of the petition that the causes of action have relied primarily on Section 68
(a) and (c) of the OEC[,] which are grounds for disqualification x x x. Third, notwithstanding that the relief portion of the
petition sounded vague in its prayer for the disqualification of Ejercito, the allegations and arguments set forth therein are
obviously geared towards seeking his disqualification for having committed acts listed as grounds for disqualification in
Section 68 of OEC. Lastly, as correctly observed by the COMELEC First Division, San Luis’ Memorandum addresses and
clarifies the intention of the petition when it prayed for Ejercito to "be disqualified and prevented from holding office as
Governor of Laguna." While there is a prayerseeking that Ejercito be held accountable for having committed election
offenses, there can be no doubt that the petition was primarily for his disqualification.

Section 68 of the OEC expressly grants COMELEC the power to take cognizance of an action or protest seeking the
disqualification of a candidate who has committed any of the acts listed therein from continuing as one, or if he or she has
been elected, from holding office. One ground for disqualification listed in Section 68 is spending in an election campaign
an amount in excess of that allowed by law. It is exactly on said ground that San Luis is seeking the disqualification of
Ejercito. The jurisdiction of COMELEC over the petition, therefore, is clear.28

The alleged violation of Ejercito’s constitutional right to due process was also not sustained: Ejercito insists that he was
deprived of his right to notice and hearing and was not informed of the true nature of the case filed against him when San
Luis was allegedly allowed in his memorandum to make as substantial amendment in the reliefs prayed for in his petition.
San Luis was allegedly allowed to seek for Ejercito’s disqualification instead of the filing of an election offense against him.

As discussed above, the allegations in the petition, particularly the causes of action, clearly show that it is not merely a
complaint for an election offense but a disqualification case against Ejercito as well. San Luis’ memorandum merely
amplified and clarified the allegations and arguments in his petition. There was no change in the cause or causes of action.
Ejercito[,] therefore, cannot claim that he was not aware of the true nature of the petition filed against him.

Likewise, Ejercito cannot complainthat he was deprived of his right to notice and hearing. He cannot feign ignorance that
the COMELEC First Division, throughout the trial, was hearing the petition as a disqualification case and not as an election
offense case. He was served with Summons with Notice of Conference on [June 4, 2013] and was given a copy of the
petition. He likewise submitted to the jurisdiction of the Commission when he filed his Verified Answer. He also participated
in the Preliminary Conference on [June 27, 2013] wherein he examined evidence on record and presented his own
documentary exhibits. Lastly, he filed a Manifestation (in lieu of Memorandum) incorporating all his allegations and
defenses.

Ejercito contends that amending the reliefs prayed for is prohibited under Section 2, Rule 9 of the 1993 COMELEC Rules of
Procedure. He asserts that the relief prayed for in the memorandum is not the same as that in the petition. However, a
scrutiny of said amendment shows that no new issues were introduced. Moreover, there was no departure from the causes
of action and no material alterations on the grounds of relief. The amendment[,] therefore[,] is not substantial as it merely
rectifies or corrects the true nature of reliefs being prayed for as set forth in the petition. The records of the case will show
that Ejercito has been afforded the opportunity to contest and rebut all the allegations against him. He was never deprived
of his right to have access to the evidence against him. He was adequately aware of the nature and implication of the
disqualification case against him. Thus, Ejercito cannot say that he was denied of his constitutional right to due process.

It is important to note at this point that Ejercito, in his motion for reconsideration, deliberately did not tackle the merit and
substance of the charges against him. He limited himself to raising procedural issues. This is despite all the opportunity
that he was given to confront the evidence lodged against him. Therefore, there is no reason for the COMELEC En Bancto
disturb the findings of the COMELEC First Division on whether Ejercito indeed over-spent in his campaign for governorship
of Laguna in the [May 13, 2013] National and Local Elections.29

Anchoring on the case of Lanot v. Commission on Elections,30 the COMELEC En Banclikewise debunked Ejercito’s assertion
that the petition was prematurely and improperly filed on the ground that the filing of an election offense and the factual
determination on the existence of probable cause are required before a disqualification case based on Section 68 of the
OEC may proceed. It held:

As discussed in the case of Lanot vs. Comelec, each of the acts listed as ground for disqualification under Section 68 of the
OEC has two aspects – electoral and criminal which may proceed independently from each other, to wit:

x x x The electoral aspect of a disqualification case determines whether the offender should be disqualified from being a
candidate or from holding office. Proceedings are summary in character and require only clear preponderance of evidence.

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An erring candidate may be disqualified even without prior determination of probable cause in a preliminary investigation.
The electoral aspect may proceed independently of the criminal aspect, and vice-versa.

The criminal aspect of a disqualification case determines whether there is probable cause to charge a candidate for an
election offense. The prosecutor is the COMELEC, through its Law Department, which determines whether probable cause
exists. If there is probable cause, the COMELEC, through its Law Department, files the criminal information before the
proper court. Proceedings before the proper court demand a full-blown hearing and require proof beyond reasonable doubt
to convict. A criminal conviction shall result in the disqualification of the offender, which may even include disqualification
from holding a future public office." (Emphasis supplied)31

The petition for disqualification against Ejercito for campaign over-spending before the Commission isheard and resolved
pursuant to the electoral aspect of Section 68 of the OEC. It is an administrative proceeding separate and distinct from the
criminal proceeding through which Ejercito may be made to undergo in order to determine whether he can be held
criminally liable for the same act of over-spending. It is through this administrative proceeding that this Commission,
initially through its divisions, makes a factual determination on the veracity of the parties’ respective allegations in a
disqualification case. There is no need for a preliminary investigation finding on the criminal aspect of the offenses in
Section 68 before the Commission can act on the administrative or electoral aspect of the offense. All that is needed is a
complaint or a petition. As enunciated in Lanot, "(a)n erring candidate may be disqualified even without prior
determination of probable cause in a preliminary investigation. The electoral aspect may proceed independently of the
criminal aspect, and vice-versa."

Moreover, Ejercito’s reliance on Codilla is misplaced. The COMELEC En Banc opined that the portion of the Codilla decision
that referred to the necessity of the conduct of preliminary investigation pertains to cases where the offenders are charged
with acts not covered by Section 68 of the OEC, and are, therefore, beyond the ambit of the COMELEC’s jurisdiction. It said
that the decision refers to this type of cases as criminal (not administrative) in nature, and,thus, should be handled
through the criminal process.

Further rejected was Ejercito’s argument that the COMELEC lost its jurisdiction over the petition for disqualification the
moment he was proclaimed as the duly-elected Governor of Laguna. For the COMELEC En Banc, its First Division
thoroughly and sufficiently addressed the matter when it relied on Maquiling instead of Sinaca. It maintained that Section 5
of COMELEC Resolution No. 9523, not COMELEC Resolution No. 2050,32 is relevant to the instant case as it states that the
COMELEC shall continue the trial and hearing of a pending disqualification case despite the proclamation of a winner. It
was noted that the proper application of COMELEC Resolution No. 2050 was already clarified in Sunga v. COMELEC.33

Finally, the COMELEC En Bancruled on one of San Luis’ contentions in his Comment/Oppositionto Ejercito’s motion for
reconsideration. He argued that he becomes the winner in the gubernatorial election upon the disqualification of Ejercito.
Relying on Maquiling, San Luis declared that he was not the second placer as he obtained the highest number of valid
votes cast from among the qualified candidates. In denying that Maquiling is on all fours with this case, the COMELEC En
Bancsaid:

In the instant case, Ejercito cannot be considered as a noncandidate by reason of his disqualification under Section 68 of
the OEC. He was a candidate who filed a valid certificate of candidacy which was never cancelled.

Ejercito was a bona fide candidate who was disqualified, not because of any ineligibility existing at the time of the filing of
the certificate of candidacy, but because he violated the rules of candidacy. His disqualifying circumstance, thatis, his
having over-spent in his campaign, did not exist at the time of the filing of his certificate of candidacy. It did not affect the
validity of the votes cast in his favor. Notwithstanding his disqualification, he remains the candidate who garnered the
highest number of votes.

Ejercito cannot be on the same footing with Arnado in the Maquiling case. Arnado was disqualified from running for Mayor
of Kauswagan, Lanao Del Sur because he was a dual citizen not qualified to run for election. His disqualification existed at
the time of the filing of the certificate of candidacy. The effect, pursuant to the Maquiling case, is that the votes he
garnered are void, which in turn resulted in having considered the "second placer" – Maquiling – asthe candidate who
obtained the highest number of valid votes cast.

San Luis is in a different circumstance. The votes for the disqualified winning candidate remained valid. Ergo, San Luis,
being the second placer in the vote count, remains the second placer. He cannot[,] thus[,] be named the winner.

Section 6, Rule 25 of the COMELEC Resolution No. 9523, which governs Section 68 petitions for disqualification, enunciates
the rule succinctly, to wit:

Section 6. Effect of Granting of Petition.– In the event a Petition to disqualify a candidate is granted by final judgment as
defined under Section 8 of Rule 23 and the disqualified candidate obtains the highest number of votes, the candidate with
the second highest number of votes cannot be proclaimed and the rule of succession, if allowed by law, shall be observed.
In the event the rule of succession is not allowed, a vacancy shall exist for such position. 34

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 Bancon June 3, 2014.37

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Meantime, on May 26, 2014, Ejercito filed before the COMELEC En Bancan 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 Bancissued an Order denying Ejercito’s omnibus motion, granted San Luis’ extremely urgent
motion, and directedthe Clerk of the Commission to issue the corresponding writ of execution.41 On even date, Vice-
Governor Hernandez was sworn in as the Governor of Laguna at the COMELEC Main Office in Manila. The service of the
writ was deemed completed and validly served upon Ejercito on May 28, 2014.42

In his petition before Us, Ejercito raised the following issues for resolution:

THE COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION IN THAT:

(I) IT VIOLATED THE RIGHT OF PETITIONER TO DUE PROCESS WHEN IT RULED FOR THE
DISQUALIFICATION OF PETITIONER EVEN IF IT WAS NEVER PRAYED FOR IN THE PETITION. WORSE,
THERE IS YET NO FINDING OFGUILT BY A COMPETENT COURT OR A FINDING OF FACT STATING THAT
PETITIONER ACTUALLY COMMITTED THE ALLEGED ELECTION OFFENSE OF OVERSPENDING;

(II) IT RELIED ON A DOCUMENTARY EXHIBIT (ADVERTISING CONTRACT) WHICH WAS NOT EVEN
FORMALLY OFFERED AS EVIDENCE; [AND]

(III) IT DISQUALIFIED PETITIONER FOR AN ACT DONE BY A THIRD PARTY WHO SIMPLY EXERCISED
ITS RIGHT TO FREE EXPRESSION WITHOUT THE KNOWLEDGE AND CONSENT OF PETITIONER[.]43

The petition is unmeritorious.

A special civil action for certiorari under Rule 64, in relation to Rule 65, is an independent action that is available only if
there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law.44 It is a legal remedy
that is limited to the resolution of jurisdictional issues and is not meant to correct simple errors of judgment.45 More
importantly, it will only prosper if grave abuse of discretion is alleged and isactually proved to exist. 46

Grave abuse of discretion arises when a lower court or tribunal violates the Constitution, the law or existing jurisprudence.
It means such capricious and whimsical exercise of judgment as would amount to lack of jurisdiction; it contemplates a
situation where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, so
patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform the duty enjoined by law. x x
x.47

Ejercito failed to prove that the COMELEC rendered its assailed Resolution with grave abuse of discretion.

We now explain.

The petition filed by San Luis

against Ejercito is for the
latter’s disqualification and
prosecution for election offense

Ejercito insists that his alleged acts of giving material consideration in the form of "Orange Cards" and election
overspending are considered as election offenses under Section 35 of COMELEC Resolution No. 9615, 48 in relation to
Section 1349 of R.A. No. 9006, and punishable under Section 26450 of the OEC. Considering that San Luis’ petition partakes
of the nature of a complaint for election offenses, the COMELEC First Division has no jurisdiction over the same based on
COMELEC Resolution No. 938651 and Section 26552 of the OEC.

Still, Ejercito contends that the COMELEC erroneously sanctioned a change in San Luis’ cause of action by the mere
expedient of changing the prayer in the latter’s Memorandum. According to him, San Luis’ additional prayer for
disqualification in the Memorandum is a substantial amendment to the Petitionas it constitutes a material deviation from
the original cause of action – from a complaint for election offenses to a petition for disqualification. Since such substantial
amendment was effected after the case was set for hearing, Ejercito maintains that the same should have been allowed
only with prior leave of the COMELEC First Division pursuant to Section 2, Rule 953 of the COMELEC Rules of Procedure,
which San Luis never did.

The arguments are untenable.

The purpose of a disqualification proceeding is to prevent the candidate from running or, if elected, from serving, or to
prosecute him for violation of the election laws.54 A petition to disqualifya candidate may be filed pursuant to Section 68 of
the OEC, which states:

SEC. 68. Disqualifications.-- Any candidate who, in an action or protest in which he is a party is declared by final decision
of a competent court guilty of, or found by the Commission of having: (a) given money or other material consideration to
influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to
enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited,

63
received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83,
85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a candidate, or if
he has been elected, from holding the office. Any person who is a permanent resident of or animmigrant to a foreign
country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as
permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the
election laws.

The prohibited acts covered by Section 68 (e) refer to election campaign or partisan political activityoutside the campaign
period (Section 80); removal, destruction or defacement of lawful election propaganda (Section 83); certain forms of
election propaganda (Section 85); violation of rules and regulations on election propaganda through mass media; coercion
of subordinates (Section 261 [d]); threats, intimidation, terrorism, use of fraudulent device or other forms of coercion
(Section 261 [e]); unlawful electioneering (Section 261 [k]); release, disbursement or expenditure of public funds (Section
261 [v]); solicitation of votes or undertaking any propaganda on the day of the election within the restricted areas (Section
261 [cc], sub-par.6). All the offenses mentioned in Section 68 refer to election offenses under the OEC, not toviolations of
other penal laws. In other words, offenses that are punished in laws other than in the OEC cannot be a ground for a
Section 68 petition. Thus, We have held:

x x x [T]he jurisdiction of the COMELEC to disqualify candidates is limited to those enumerated in Section 68 of the [OEC].
All other election offenses are beyond the ambit of COMELEC jurisdiction. They are criminal and not administrative in
nature. Pursuant to Sections 265 and 268 of the [OEC], the power of the COMELEC is confined to the conduct of
preliminary investigation on the alleged election offenses for the purpose of prosecuting the alleged offenders before the
regular courts of justice, viz:

"Section 265. Prosecution. – The Commission shall, through its duly authorized legal officers, have the exclusive power to
conduct 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, however, That in the
event that the Commission fails to act on any complaint within four months from its filing, the complainant may file the
complaint with the office of the fiscal or with the Ministry of Justice for proper investigation and prosecution, if warranted.

xxx xxx xxx

Section 268. Jurisdiction. – The regional trial court shall have the exclusive original jurisdiction to try and decide any
criminal action orproceeding for violation of this Code, except those relating to the offense of failure to register or failure to
vote which shall be under the jurisdictions of metropolitan or municipal trial courts. From the decision of the courts, appeal
will lie as in other criminal cases."55

In the case at bar, the COMELEC First Division and COMELEC En Banc correctly ruled that the petition filed by San Luis
against Ejercito is not just for prosecution of election offense but for disqualification as well. Indeed, the following are clear
indications:

1. The title of San Luis’ petition shows that the case was brought under Rule 25 of the COMELEC Rules of
Procedure, as amended by COMELEC Resolution No. 9523.56 This expresses the objective of the action since Rule
25 is the specific rule governing the disqualification of candidates.
2. The averments of San Luis’ petition rely on Section 68 (a) and (c) of the OEC as grounds for its causes of
action. Section 68 of the OEC precisely enumerates the grounds for the disqualification of a candidate for elective
position and provides, as penalty, that the candidate shall be disqualified from continuing as such, or if he or she
has been elected, from holding the office.
3. Paragraph 2 of San Luis’ prayer in the petition states that "[in the event that [Ejercito] will be ableto get a
majority vote of the electorate of the Province of Laguna on May 13, 2013, his proclamation be suspended until
further order of the Honorable Commission." San Luis reiterated this plea when he later filed a Very Urgent Ex-
Parte Motion toIssue Suspension of Possible Proclamation of Respondent and Supplemental to the Very Urgent
Ex-Parte Motion to Issue Suspension of Possible Proclamation of Respondent. The relief sought is actually
pursuant to Section 657 of R.A. No. 6646 and Section 5 Rule 2558 of COMELEC Resolution No. 9523, both of which
pertain to the effect of a disqualification case when the petition is unresolved by final judgment come election
day.
4. San Luis’ Memorandum emphasized that the case is a "Special Action for Disqualification," praying that "[t]he
Petition BE GRANTED [and] x x x [Ejercito] BE DISQUALIFIED, and PREVENTED from further holding office as
Governor of Laguna."
With the foregoing, Ejercito cannot feign ignorance of the true nature and intent of San Luis’ petition. This considering, it is
unnecessary for Us to discuss the applicability of Section 2,Rule 9 of the COMELEC Rules of Procedure, there being no
substantial amendment to San Luis’ petition that constitutes a material deviation from his original causes of action.
Likewise, COMELEC Resolution No. 9386 and Section 265 of the OEC do not apply since both refer solely to the prosecution
of election offenses. Specifically, COMELEC Resolution No. 9386 is an amendment to Rule 34 of the COMELEC Rules of
Procedure on the prosecution of election offenses, while Section 265 of the OEC is found under Article XXII of said law
pertaining also to election offenses.

The conduct of preliminary

investigation is not required in
the resolution of the electoral
aspect of a disqualification case

Assuming, arguendo, that San Luis’ petition was properly instituted as an action for disqualification, Ejercito asserts that
the conduct of preliminary investigation to determine whether the acts enumerated under Section 68 of the OEC were

64
indeed committed is a requirement prior to actual disqualification. He posits that Section 5, Rule 25 of COMELEC Resolution
No. 9523 is silent on the matter of preliminary investigation; hence, the clear import of this is that the necessity of
preliminary investigation provided for in COMELEC Resolution No. 2050 remains undisturbed and continues to bein full
force and effect.

We are not persuaded.

Section 5, Rule 25 of COMELEC Resolution No. 9523 states:

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, atleast 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.

It is expected that COMELEC Resolution No. 9523 is silent on the conduct of preliminary investigation because it merely
amended, among others, Rule 25 of the COMELEC Rules of Procedure, which deals with disqualification of candidates. In
disqualification cases, the COMELEC may designate any of its officials, who are members of the Philippine Bar, to hear the
case and to receive evidence only in cases involving barangay officials.59 As aforementioned, the present rules of
procedure in the investigation and prosecution of election offenses in the COMELEC, which requires preliminary
investigation, is governed by COMELEC Resolution No. 9386. Under said Resolution, all lawyers in the COMELEC who are
Election Officers in the National Capital Region ("NCR"), Provincial Election Supervisors, Regional Election Attorneys,
Assistant Regional Election Directors, Regional Election Directors and lawyers of the Law Department are authorized to
conduct preliminary investigation of complaints involving election offenses under the election lawswhich may be filed
directly with them, or which may be indorsed to them by the COMELEC.60

Similarly, Ejercito’s reliance on COMELEC Resolution No. 2050 is misplaced. COMELEC Resolution No. 2050, which was
adopted on November 3, 1988, reads:

WHEREAS, there remain pending before the Commission, a number of cases of disqualification filed by virtue of the
provisions of Section 68 of the Omnibus Election Codein relation to Section 6 of R.A. 6646, otherwise known as the
Electoral Reforms Law of 1987;

WHEREAS, opinions of the members of the Commission on matters of procedure in dealing with cases of this nature and
the manner of disposing of the same have not been uniform;

WHEREAS, in order to avoid conflicts of opinion in the disposition [of] disqualification cases contemplated under Section 68
of the Omnibus Election Code in relation to Section 6 of Rep. Act 6646, there is a strongly felt need to lay down a definite
policy in the disposition of this specific class of disqualification cases;

NOW, THEREFORE, on motion duly seconded, the Commission en banc:

RESOLVED, as it hereby resolves, to formulate the following rules governing the disposition of cases of disqualification filed
by virtue of Section 68 of the Omnibus Election Code in relation to Section 6 of R.A. No. 6646, otherwise known as the
Electoral Reforms Law of 1987:

1. Any complaint for the disqualification of a duly registered candidate based upon any of the grounds specifically
enumerated under Section 68 of the Omnibus Election Code, filed directly with the Commission before an election in which
the respondent is a candidate, shall be inquired into by the Commission for the purpose of determining whether the acts
complained of have in fact been committed. Where the inquiry by the Commission results in a finding before election, that
the respondent candidate did in factcommit the acts complained, the Commission shall order the disqualification of the
respondent candidate from continuing as such candidate.

In case such complaint was not resolved before the election, the Commission may motu proprio, or [on] motion of any of
the parties, refer the complaint to the [Law] Department of the Commission as the instrument of the latter in the exercise
of its exclusive power to conduct a preliminary investigation of all cases involving criminal infractions of the election laws.
Such recourse may be availed of irrespective of whether the respondent has been elected orhas lost in the election.

2. Any complaint for disqualification based on Section 68 of the Omnibus Election Code in relation to Section 6 of Rep. Act
No. 6646 filed after the election against a candidate who has already been proclaimed as winner shall be dismissed as a
disqualification case. However, the complaint shall be referred for preliminary investigation to the Law Department of the
Commission.

Where a similar complaint is filed after election but before proclamation of the respondent candidate, the complaint shall,
nevertheless, be dismissed as a disqualification case. However, the complaint shall be referred for preliminary investigation
to the Law Department. If, before proclamation, the Law Department makes a prima faciefinding of guilt and the
corresponding information has been filed with the appropriate trial court, the complainant may file a petition for

65
suspension of the proclamation of the respondent with the court before which the criminal case is pending and the said
court may order the suspension of the proclamation ifthe evidence of guilt is strong.

3. The Law Department shall terminate the preliminary investigation within thirty(30) days from receipt of the referral and
shall submit its study, report and recommendation to the Commission en banc within five (5) days from the conclusion of
the preliminary investigation. If it makes a prima faciefinding of guilt, it shall submit with such study the Information for
filing with the appropriate court.61

In Bagatsing v. COMELEC,62 the Court stated that the above-quoted resolution covers two (2) different scenarios:

First, as contemplated in paragraph 1, a complaint for disqualification filed before the election which must be inquired into
by the COMELEC for the purpose of determining whether the acts complained of have in fact been committed. Where the
inquiry results in a finding before the election, the COMELEC shall order the candidate's disqualification. In case the
complaint was not resolved before the election, the COMELEC may motu propioor on motion of any of the parties, refer the
said complaint to the Law Department of the COMELEC for preliminary investigation.

Second, as laid down in paragraph 2, a complaint for disqualification filed after the election against a candidate (a) who
has not yet been proclaimed as winner, or (b) who has already been proclaimed as winner. In both cases, the complaint
shall be dismissed as a disqualification case but shall be referred to the Law Department of the COMELEC for preliminary
investigation. However, if before proclamation, the Law Department makes a prima facie finding of guilt and the
corresponding information has been filed with the appropriate trial court, the complainant may file a petition for
suspension of the proclamation of the respondent with the court before which the criminal case is pending and the said
court may order the suspension of the proclamation if the evidence of guilt is strong.63

However, with respect to Paragraph 1 of COMELEC Resolution No. 2050, which is the situation in this case, We held in
Sunga:

x x x Resolution No. 2050 as interpreted in Silvestre v. Duavitinfringes on Sec. 6 of RA No. 6646, which provides:

SEC. 6. Effects 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 protestand, 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 (italics supplied).

Clearly, the legislative intentis that the COMELEC should continue the trial and hearing of the disqualification case to its
conclusion, i.e.,until judgment is rendered thereon. The word "shall" signifies that this requirement of the law is
mandatory, operating to impose a positive duty which must be enforced. The implication is that the COMELEC is left with
no discretion but to proceed with the disqualification case even after the election. Thus, in providing for the outright
dismissal of the disqualification case which remains unresolved after the election, Silvestre v. Duavitin effect disallows what
RA No. 6646 imperatively requires. This amounts to a quasi-judicial legislation by the COMELEC which cannot be
countenanced and is invalid for having been issued beyond the scope of its authority. Interpretative rulings of quasi-judicial
bodies or administrative agencies must always be in perfect harmony with statutes and should be for the sole purpose of
carrying their general provisions into effect. By such interpretative or administrative rulings, of course, the scope of the law
itself cannot be limited. Indeed, a quasi-judicial body or an administrative agency for that matter cannot amend an act of
Congress. Hence, in case of a discrepancy between the basic law and an interpretative or administrative ruling, the basic
law prevails.

Besides, the deleterious effect of the Silvestre ruling is not difficult to foresee. A candidate guilty of election offenses would
be undeservedly rewarded, instead of punished, by the dismissal of the disqualification case against him simply because
the investigating body was unable, for any reason caused upon it, to determine before the election if the offenses were
indeed committed by the candidate sought to be disqualified. All that the erring aspirant would need to do is toemploy
delaying tactics so that the disqualification case based on the commission of election offenses would not be decided before
the election. This scenario is productive of more fraud which certainly is not the main intent and purpose of the law. 64

The "exclusive power [of the COMELEC] to conduct a preliminary investigation of all cases involving criminal infractions of
the election laws" stated in Par. 1 of COMELEC Resolution No. 2050 pertains to the criminal aspect of a disqualification
case. It has been repeatedly underscored that an election offense has 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 offender should be disqualified from office can be determined in an administrative proceeding that is
summaryin character. This Court said in Sunga:

It is worth to note that an election offense has criminal as well as electoral aspects. Its criminal aspect involves the
ascertainment of the guilt or innocence of the accused candidate. Like in any other criminal case, it usually entails a full-
blown hearing and the quantum of proof required to secure a conviction is beyond reasonable doubt. Its electoral aspect,
on the other hand, is a determination of whether the offender should be disqualified from office. This is done through an
administrative proceeding which is summary in character and requires only a clear preponderance of evidence. Thus, under
Sec. 4 of the COMELEC Rules of Procedure, petitions for disqualification "shall be heard summarily after due notice." It is
the electoral aspect that we are more concerned with, under which an erring candidate may be disqualified even without
prior criminal conviction.65

66
and equally in Lanot:

x x x The electoral aspect of a disqualification case determines whether the offender should be disqualified from being a
candidate or from holding office. Proceedings are summary in character and require only clear preponderance of evidence.
An erring candidate may be disqualified even without prior determination of probable cause in a preliminary investigation.
The electoral aspect may proceed independently of the criminal aspect, and vice-versa.

The criminal aspect of a disqualification case determines whether there is probable cause to charge a candidate for an
election offense. The prosecutor is the COMELEC, through its Law Department, which determines whether probable cause
exists. If there is probable cause, the COMELEC, through its Law Department, files the criminal information before the
proper court. Proceedings before the proper court demand a full-blown hearing and require proof beyond reasonable doubt
to convict. A criminal conviction shall result in the disqualification of the offender, which may even include disqualification
from holding a future public office.

The two aspects account for the variance of the rules on disposition and resolution of disqualification cases filed before or
after an election. When the disqualification case is filed before the elections, the question of disqualification is raised before
the voting public. If the candidate is disqualified after the election, those who voted for him assume the risk that their
votes may be declared stray or invalid. There isno such risk if the petition is filed after the elections. x x x. 66

We cannot accept Ejercito’s argument that Lanot did not categorically pronounce that the conduct of a preliminary
investigation exclusively pertains to the criminal aspect of anaction for disqualification or that a factual finding by the
authorized legal officers of the COMELEC may be dispensed with in the proceedings for the administrative aspect of a
disqualification case. According to him,a close reading of said case would reveal that upon filing of the petition for
disqualification with the COMELEC Division, the latter referred the matter to the Regional Election Director for the purpose
of preliminary investigation; therefore, Lanot contemplates two referrals for the conduct of investigation – first, to the
Regional Election Director, prior to the issuance of the COMELEC First Division’s resolution, and second, to the Law
Department, following the reversal by the COMELEC En Banc.

For easy reference, the factual antecedents of Lanot are as follows:

On March 19, 2004, a little less than two months before the May 10, 2004 elections, Henry P. Lanot, et al. filed a Petition
for Disqualification under Sections 68 and 80 of the OEC against then incumbent Pasig City Mayor Vicente P. Eusebio.
National Capital Region Director Esmeralda Amora-Ladra conducted hearings on the petition. On May 4, 2004, she
recommended Eusebio’s disqualification and the referral of the case to the COMELEC Law Department for the conduct of a
preliminary investigation on the possible violation of Section 261 (a) of the OEC. When the COMELEC First Division issued a
resolution adopting Director Ladra’s recommendations on May 5, 2004, then COMELEC Chairman Benjamin S. Abalos
informed the pertinent election officers through an Advisory dated May 8, 2004. Eusebio filed a Motion for Reconsideration
on May 9, 2004. On election day, Chairman Abalos issued a memorandum to Director Ladra enjoining her from
implementing the May 5, 2004 COMELEC First Division resolution. The petition for disqualification was not yet finally
resolved at the time of the elections. Eusebio's votes were counted and canvassed. After which, Eusebio was proclaimed as
the winning candidate for city mayor. On August 20, 2004, the COMELEC En Banc annulled the COMELEC First Division's
order to disqualify Eusebio and referred the case to the COMELEC Law Department for preliminary investigation.

When the issue was elevated to Us, the Court agreed with Lanot that the COMELEC En Banc committed grave abuse of
discretion when it ordered the dismissal of the disqualification case pending preliminary investigation of the COMELEC Law
Department. Error was made when it ignored the electoral aspect of the disqualification case by setting aside the
COMELEC First Division's resolution and referring the entire case to the COMELEC Law Department for the criminal aspect.
We noted that COMELEC Resolution No. 2050, upon which the COMELEC En Banc based its ruling, is procedurally
inconsistent with COMELEC Resolution No. 6452, which was the governing rule at the time. The latter resolution delegated
to the COMELEC Field Officials the hearing and reception of evidence of the administrative aspect of disqualification cases
in the May 10, 2004 National and Local Elections. In marked contrast, in the May 2013 elections, it was only in cases
involving barangay officials that the COMELEC may designate any of its officials, who are members of the Philippine Bar, to
hear the case and to receive evidence.67

The COMELEC En Banc

properly considered as
evidence the Advertising
Contract dated May 8, 2013

Ejercito likewise asserts that the Advertising Contract dated May 8, 2013 should not have been relied upon by the
COMELEC. First, it was not formally offered in evidence pursuant to Section 34, Rule 13268 of the Rules and he was not
even furnished with a copy thereof, depriving him of the opportunity to examine its authenticity and due execution and
object to its admissibility. Second, even if Section 34, Rule 132 does not apply, administrative bodies exercising quasi-
judicial functions are nonetheless proscribed from rendering judgment based on evidence that was never presented and
could not be controverted. There is a need to balance the relaxation of the rules of procedure with the demands of
administrative due process, the tenets of which are laid down in the seminal case of Ang Tibay v. Court of Industrial
Relations.69 And third,the presentation of the advertising contracts, which are highly disputable and on which no hearing
was held for the purpose of taking judicial notice in accordance with Section 3, Rule 12970of the Rules, cannot be
dispensed with by COMELEC’s claim that it could take judicial notice. Contrary to Ejercito’s claim, Section 34, Rule 132 of
the Rules is inapplicable. Section 4, Rule 171 of the Rules of Court is clear enough in stating that it shall not apply to
election cases except by analogy or in a suppletory character and whenever practicable and convenient. In fact, nowhere
from COMELEC Resolution No. 9523 requires that documentary evidence should be formally offered in evidence. 72 We

67
remind again that the electoral aspect of a disqualification case is done through an administrative proceeding which is
summary in character.

Granting, for argument’s sake, that Section 4, Rule 1 of the Rules of Court applies, there have been instances when We
suspended the strict application of the rule in the interest of substantial justice, fairness, and equity. 73 Since rules of
procedure are mere tools designed to facilitate the attainment of justice, it is well recognized that the Court is empowered
to suspend its rules or to exempt a particular case from the application of a general rule, when the rigid application thereof
tends to frustrate rather than promote the ends of justice.74 The fact is, even Sections 3 and 4, Rule 1 of the COMELEC
Rules of Procedure fittingly declare that "[the] rules shall be liberally construed in order to promote the effective and
efficient implementation of the objectives of ensuring the holding of free, orderly, honest, peaceful and credible elections
and to achieve just, expeditious and inexpensive determination and disposition of every action and proceeding brought
before the Commission" and that "[in] the interest of justice and in order to obtain speedy disposition ofall matters pending
before the Commission, these rules or any portion thereof may be suspended by the Commission." This Court said in
Hayudini v. Commission on Elections:75

Settled is the rule that the COMELEC Rules of Procedure are subject to liberal construction. The COMELEC has the power to
liberally interpret or even suspend its rules of procedure in the interest of justice, including obtaining a speedy disposition
of all matters pending before it. This liberality is for the purpose of promoting the effective and efficient implementation of
its objectives – ensuring the holding of free, orderly, honest, peaceful, and credible elections, as well as achieving just,
expeditious, and inexpensive determination and disposition of every action and proceeding brought before the COMELEC.
Unlike an ordinary civil action, an election contest is imbued with public interest. It involves not only the adjudication of
private and pecuniary interests of rival candidates, but also the paramount need of dispelling the uncertainty which
beclouds the real choice of the electorate. And the tribunal has the corresponding duty to ascertain, by all means withinits
command, whom the people truly chose as their rightful leader.76

Further, Ejercito’s dependence on Ang Tibay is weak. The essence of due process is simply an opportunity to be heard, or,
as applied to administrative proceedings, an opportunity to explain one's side or an opportunity to seek for a
reconsideration of the action or ruling complained of.77 Any seeming defect in its observance is cured by the filing of a
motion for reconsideration and denial of due process cannot be successfully invoked by a party who had the opportunity to
be heard thereon.78 In this case, it is undisputed that Ejercito filed a motion for reconsideration before the COMELEC En
Banc. Despite this, he did not rebut the authenticity and due execution of the advertising contracts when he decided not to
discuss the factual findings of the COMELEC First Division on the alleged ground that it may be construed as a waiver of
the jurisdictional issues that he raised.79

We agree with San Luis and the Office of the Solicitor General that, pursuant to Section 2, Rule 129,80 the COMELEC has
the discretion to properly take judicial notice of the Advertising Contract dated May 8, 2013. In accordance with R.A. No.
9006, the COMELEC, through its Campaign Finance Unit, is empowered to:
a. Monitor fund raising and spending activities;
b. Receive and keep reports and statements of candidates, parties, contributors and election contractors, and
advertising contracts of mass media entities;
c. Compile and analyze the reports and statements as soon as they are received and make an initial determination
of compliance;
d. Develop and manage a recording system for all reports, statements, and contracts received by it and todigitize
information contained therein;
e. Publish the digitized information gathered from the reports, statements and contracts and make themavailable
to the public;
f. Develop a reportorial and monitoring system;
g. Audit all reports, statements and contracts and determine compliance by the candidates, parties, contributors,
and election contractors, including the inspection of Books and records of candidates, parties and mass media
entities and issue subpoenas in relation thereto and submit its findings to the Commission En Banc;
h. Coordinate with and/or assist other departments/offices of the Commission receiving related reports on
Campaign Finance including prosecution of violators and collection of fines and/or imposition of perpetual
disqualification; and
i. Perform other functions as ordered by the Commission.81
The COMELEC may properly takeand act on the advertising contracts without further proof from the parties herein. Aside
from being considered as an admission82 and presumed to be proper submissions from them, the COMELEC already has
knowledge of the contracts for being ascertainable from its very own records. Said contracts are ought to be known by the
COMELEC because of its statutory function as the legal custodian of all advertising contracts promoting or opposing any
candidate during the campaign period. As what transpired in this case, the COMELEC has the authority and discretion to
compare the submitted advertising contracts with the certified true copies of the broadcast logs, certificates of
performance or other analogous records which a broadcast station or entity is required to submit for the review and
verification of the frequency, date, time and duration of advertisements aired.

To be precise, R.A. No. 9006 provides:

Sec. 4. Requirements for Published or Printed and Broadcast Election Propaganda. –

xxxx

4.3 Print, broadcast or outdoor advertisements donated to the candidate or political party shall not be printed, published,
broadcast or exhibited without the written acceptance by the said candidate or political party. Such written acceptance
shall be attached to the advertising contract and shall be submitted to the COMELEC as provided in Subsection 6.3 hereof.

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Sec. 6. Equal Access to Media Time and Space. – All registered parties and bona fidecandidates shall have equal access to
media time and space. The following guidelines may be amplified on by the COMELEC:

xxxx

6.2

xxxx

(b.) Each bona fide candidate or registered political party for a locally elective office shall be entitled to not more than sixty
(60) minutes of television advertisement and ninety (90) minutes of radio advertisement whether by purchase or donation.

For this purpose, the COMELEC shall require any broadcast station or entity to submit to the COMELEC a copy of its
broadcast logs and certificates of performance for the review and verification of the frequency, date, time and duration of
advertisements broadcast for any candidate or political party.

6.3 All mass media entities shall furnish the COMELEC with a copy of all contracts for advertising, promoting or opposing
any political party or the candidacy of any person for public office within five (5) days after its signing. x x x.

The implementing guidelines of the above-quoted provisions are found in Rule 5 of COMELEC Resolution No. 9476 –

Section 2. Submission of Copies of Advertising Contracts. – All media entities shall submit a copy of its advertising and or
broadcast contracts, media purchase orders, booking orders, or other similar documents to the Commission through its
Campaign Finance Unit, accompanied by a summary report in the prescribed form (Annex "E") together with official
receipts issued for advertising, promoting or opposing a party, or the candidacy of any person for public office, within five
(5) days after its signing, through:

a. For Media Entities in the NCR The Education and Information Department (EID), which shall furnish
copies thereof to the Campaign Finance Unit of the Commission.

b. For Media Entities outside of the NCR The City/Municipal Election Officer (EO) concerned who shall
furnish copies thereof to the Education and Information Department of the Commission within five (5)
days after the campaign periods. The EID shall furnish copies thereof to the Campaign Finance Unit of
the Commission.

xxxx

It shall be the duty of the EID to formally inform media entities that the latter’s failure to comply with the mandatory
provisions of this Section shall be considered an election offense punishable pursuant to Section 13 of Republic Act No.
9006. [RA 9006, Secs. 6.3 and 13] and in COMELEC Resolution No. 9615 –

SECTION 9. Requirements and/or Limitations on the Use of Election Propaganda through Mass Media. – All parties and
bona fide candidates shall have equal access to media time and space for their election propaganda during the campaign
period subject to the following requirements and/or limitations:

a. Broadcast Election Propaganda

xxx

Provided, further, that a copy of the broadcast advertisement contract be furnished to the Commission, thru the Education
and Information Department, within five (5) days from contract signing.

xxx

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.

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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 3 weeks after start of campaign period March 4 - 11
2nd Report 3 weeks after 1st filing week April 3 - 10
3rd Report 1 week before election day May 2 - 9
Last Report Election week May 14 - 17
Candidates for Local Positions 1st Report 1 week after start of campaign period April 15 - 22
2nd Report 1 week after 1st filing week April 30 - May 8
3rd Report Election week May 9 - 15
Last Report 1 week after election day May 16 - 22

For subsequent elections, the schedule for the submission of reports shall be prescribed by the Commission.

Ejercito should be disqualified

for spending in his election
campaign an amount in excess
of what is allowed by the OEC

Ejercito claims that the advertising contracts between ABS-CBN Corporation and Scenema Concept International, Inc. were
executed by an identified supporter without his knowledge and consent as, in fact, his signature thereon was obviously
forged. Even assuming that such contract benefited him, Ejercito alleges that he should not be penalized for the conduct of
third parties who acted on their own without his consent. Citing Citizens United v. Federal Election Commission 83 decided
by the US Supreme Court, he argues that every voter has the right to support a particular candidate in accordance with the
free exercise of his or her rights of speech and of expression, which is guaranteed in Section 4, Article III of the 1987
Constitution.84 He believes that an advertising contract paid for by a third party without the candidate’s knowledge and
consent must be considered a form of political speech that must prevail against the laws suppressing it, whether by design
or inadvertence. Further, Ejercito advances the view that COMELEC Resolution No. 947685 distinguishes between
"contribution" and "expenditure" and makes no proscription on the medium or amount of contribution. 86 He also stresses
that it is clear from COMELEC Resolution No. 9615 that the limit set by law applies only to election expenditures of
candidates and not to contributions made by third parties. For Ejercito, the fact that the legislature imposes no legal
limitation on campaign donations is presumably because discussion of public issues and debate on the qualifications of
candidates are integral to the operation of the government.

We refuse to believe that the advertising contracts between ABS-CBN Corporation and Scenema Concept International,
Inc. were executed without Ejercito’s knowledge and consent. As found by the COMELEC First Division, the advertising
contracts submitted in evidence by San Luis as well as those in legal custody of the COMELEC belie his hollow assertion.
His express conformity to the advertising contracts is actually a must because non-compliance is consideredas an election
offense.87

Notably, R.A. No. 9006 explicitly directs that broadcast advertisements donated to the candidate shall not be broadcasted
without the written acceptance of the candidate, which shall be attached to the advertising contract and shall be submitted
to the COMELEC, and that, in every case, advertising contracts shall be signed by the donor, the candidate concerned or
by the duly-authorized representative of the political party.88 Conformably with the mandate of the law, COMELEC
Resolution No. 9476 requires that election propaganda materials donated toa candidate shall not be broadcasted unless it
is accompanied by the written acceptance of said candidate, which shall be in the form of an official receipt in the name of
the candidate and must specify the description of the items donated, their quantity and value, and that, in every case, the
advertising contracts, media purchase orders or booking orders shall be signed by the candidate concerned or by the duly
authorized representative of the party and, in case of a donation, should be accompanied by a written acceptance of the
candidate, party or their authorized representatives.89 COMELEC Resolution No. 9615 also unambiguously states thatit shall
be unlawful to broadcast any election propaganda donated or given free of charge by any person or broadcast entity to a
candidate withoutthe written acceptance of the said candidate and unless they bear and be identified by the words "airtime
for this broadcast was provided free of charge by" followed by the true and correct name and address of the donor. 90

This Court cannot give weight to Ejercito’s representation that his signature on the advertising contracts was a forgery.
The issue is a belated claim, raised only for the first time in this petition for certiorari. It is a rudimentary principle of law
that matters neither alleged in the pleadings nor raised during the proceedings below cannot be ventilated for the first time
on appeal before the Supreme Court.91 It would be offensive to the basic rules of fair play and justice to allow Ejercito to
raise an issue that was not brought up before the COMELEC.92 While it is true that litigation is not a game of technicalities,
it is equally truethat elementary considerations of due process require that a party be duly apprised of a claim against him
before judgment may be rendered.93

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Likewise, whether the advertising contracts were executed without Ejercito’s 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 nota 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 orconclusions are generally respected and even given
finality. x x x.96

Having determined that the subject TV advertisements were done and broadcasted with Ejercito’s consent, it follows that
Citizens United does not apply. In said US case, a non-profit corporation sued the Federal Election Commission, assailing,
among others, the constitutionality of a ban on corporate independ entexpenditures for electioneering communications
under 2 U.S.C.S. § 441b. The corporation released a documentary film unfavorable of then-Senator Hillary Clinton, who
was a candidate for the Democratic Party's Presidential nomination. It wanted to make the film available through video-on-
demand withinthirty (30) days of the primary elections, and it produced advertisements to promote the film. However,
federal law prohibits all corporations – including non-profit advocacy corporations – from using their general treasury funds
to make independent expenditures for speech that is an "electioneering communication"97 or for speech that expressly
advocates the election or defeat of a candidate within thirty (30) days of a primary election and sixty (60) days of a
general election. The US Supreme Court held that the ban imposed under § 441b on corporate independent expenditures
violated the First Amendment98 because the Government could not suppress political speech on the basis of the speaker's
identity as a non-profit or for-profit corporation. It was opined: Section 441b's prohibition on corporate independent
expenditures is thus a ban on speech. As a "restriction on the amount of money a person or group can spend on political
communication during a campaign," that statute "necessarily reduces the quantity of expression by restricting the number
of issues discussed, the depth of their exploration, and the size of the audience reached." Buckley v. Valeo, 424 U.S. 1, 19,
96 S. Ct. 612, 46 L. Ed. 2d 659 (1976) (per curiam).Were the Court to uphold these restrictions, the Government could
repress speech by silencing certain voices at any of the various points in the speech process. See McConnell, supra, at 251,
124 S. Ct. 619, 517 L. Ed. 2d 491 (opinion of Scalia, J.) (Government could repress speech by "attacking all levels of the
production and dissemination of ideas," for "effective public communication requires the speaker to make use of the
services of others"). If §441 be applied to individuals, no one would believe that it is merely a time, place, or manner
restriction on speech. Its purpose and effect are to silence entities whose voices the Government deems to be suspect.

Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. See
Buckley, supra, at 14-15, 96 S. Ct. 612, 46 L. Ed. 2d 659 ("In a republic where the people are sovereign, the ability of the
citizenry to make informed choices among candidates for office is essential"). The right of citizens to inquire, to hear, to
speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means
to protect it. The First Amendment "'has its fullest and most urgent application' to speech uttered during a campaign for
political office." Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 223, 109 S. Ct. 1013, 103 L. Ed. 2d
271 (1989)(quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S. Ct. 621, 28 L. Ed. 2d 35 (1971)); see Buckley,
supra, at 14, 96 S. Ct. 612, 46 L. Ed. 2d 659 ("Discussion of public issues and debate on the qualifications of candidates
are integral to the operation of the system of government established by our Constitution").

For these reasons, political speech must prevail against laws that would suppress it, whether by design orinadvertence.
Laws that burden political speech are "subject to strict scrutiny," which requires the Government to prove that the
restriction "furthers a compelling interest and is narrowly tailored to achieve that interest." WRTL, 551 U.S., at 464, 127 S.
Ct. 2652, 168 L. Ed. 2d 329(opinion of Roberts, C. J.). While it might be maintained that political speech simply cannot be
banned or restricted as a categorical matter, see Simon & Schuster, 502 U.S., at 124, 112 S. Ct. 501, 116 L. Ed. 2d
476(Kennedy, J., concurring in judgment), the quoted language from WRTL provides a sufficient framework for protecting
the relevant First Amendment interests in this case. We shall employ it here.

Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or
viewpoints. See, e.g., United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813, 120 S. Ct. 1878, 146 L. Ed.
2d 865 (2000) (striking down content based restriction). Prohibited, too, are restrictions distinguishing among different
speakers, allowing speech by some but not others. See First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 784, 98 S. Ct.
1407, 55 L. Ed. 2d 707 (1978). As instruments to censor, these categories are interrelated: Speech restrictions based on
the identity of the speaker are all too often simply a means to control content.

Quite apart from the purpose or effect of regulating content, moreover, the Government may commit a constitutional
wrong when by law it identifies certain preferred speakers. By taking the right to speak from some and giving it to others,
the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth,
standing, and respect for the speaker's voice. The Government may not by these means deprive the public of the right and
privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects
speech and speaker, and the ideas that flow from each.

The Court has upheld a narrow class of speech restrictions that operate to the disadvantage of certain persons, but these
rulings were based on an interest in allowing governmental entities to perform their functions. See, e.g., Bethel School
Dist. No. 403 v. Fraser, 478 U.S. 675, 683, 106 S. Ct. 3159, 92 L. Ed. 2d 549 (1986) (protecting the "function of public
school education"); Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 129, 97 S. Ct. 2532, 53 L. Ed. 2d

71
629 (1977) (furthering "the legitimate penological objectives of the corrections system" (internal quotation marks
omitted)); Parker v. Levy, 417 U.S. 733, 759, 94 S. Ct. 2547, 41 L. Ed. 2d 439 (1974)(ensuring "the capacity of the
Government to discharge its [military] responsibilities" (internal quotation marks omitted)); Civil Service Comm'n v. Letter
Carriers, 413 U.S. 548, 557, 93 S. Ct. 2880, 37 L. Ed. 2d 796 (1973)("[F]ederal service should depend upon meritorious
performance rather than political service"). The corporate independent expenditures at issue in this case, however, would
not interfere with governmental functions, so these cases are inapposite. These precedents stand only for the proposition
that there are certain governmental functions that cannot operate without some restrictions on particular kinds of speech.
By contrast, it is inherent in the nature of the political process that voters must be free to obtain information from diverse
sources in order to determine how to cast their votes. At least before Austin, the Court had not allowed the exclusion of a
class of speakers from the general public dialogue.

We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on
certain disfavored speakers. Both history and logic lead us to this conclusion.

The previous decisions of the US Supreme Court in Austin v. Michigan Chamber of Commerce99 (which ruled that political
speech may be banned based on the speaker's corporate identity) and the relevant portion of McConnell v. Federal Election
Commission100 (which upheld the limits on electioneering communications in a facial challenge) were, in effect, overruled
by Citizens United.

Like Citizens Unitedis the 1976 case of Buckley v. Valeo.101 In this much earlier case, the US Supreme Court ruled, among
other issues elevated to it for resolution, on a provision of the Federal Election Campaign Act of 1971, as amended,
(FECA)102 which limits independent political expenditures by an individual or group advocating the election or defeat of a
clearly identified candidate for federal office to $1,000 per year. Majority of the US Supreme Court expressed the view that
the challenged provision is unconstitutional as it impermissibly burdens the right of free expression under the First
Amendment, and could not be sustained on the basis of governmental interests in preventing the actuality or appearance
of corruption or in equalizing the resources of candidates.103

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, oran
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. 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 rightto 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.

Appellees argue that the Act's restrictions on large campaign contributions are justified by three governmental interests.
According to the parties and amici, the primary interest served by the limitations and, indeed, by the Act as a whole, is the
prevention of corruption and the appearance of corruption spawned by the real or imagined coercive influence of large
financial contributions on candidates' positions and on their actions if elected to office. Two "ancillary" interests underlying
the Act are also allegedly furthered by the $ 1,000 limits on contributions. First, the limits serve to mute the voices of
affluent persons and groups in the election process and thereby to equalize the relative ability of all citizens to affect the
outcome of elections. Second, it is argued, the ceilings may to some extent act as a brake on the skyrocketing cost of
political campaigns and thereby serve to open the political systemmore widely to candidates without access to sources of
large amounts of money.

It is unnecessary to look beyond the Act's primary purpose -- to limit the actuality and appearance of corruption resulting
from large individual financial contributions -- in order to find a constitutionally sufficient justification for the $ 1,000
contribution limitation. Under a system of private financing of elections, a candidate lacking immense personal or family
wealth must depend on financial contributions from others to provide the resources necessary to conduct a successful
campaign. The increasing importance of the communications media and sophisticated mass-mailing and polling operations

72
to effective campaigning make the raising of large sums of money an ever more essential ingredient of an effective
candidacy. To the extent that large contributions are given to secure political quid pro quo's from current and potential
office holders, the integrity of our system of representative democracy is undermined. Although the scope of such
pernicious practices can never be reliably ascertained, the deeply disturbing examples surfacing after the 1972 election
demonstrate that the problem is not an illusory one. Of almost equal concern as the danger of actual quid pro quo
arrangements is the impact of the appearance of corruption stemming from public awareness of the opportunities for
abuse inherent in a regime of large individual financial contributions. In CSC v. Letter Carriers, supra, the Court found that
the danger to "fair and effective government" posed by partisan political conduct on the part of federal employees charged
with administering the law was a sufficiently important concern to justify broad restrictions on the employees' right of
partisan political association. Here, as there, Congress could legitimately conclude that the avoidance of the appearance of
improper influence "is also critical... if confidence in the system of representative Government is not to be eroded to a
disastrous extent." 413 U.S. at 565.

Appellants contend that the contribution limitations must be invalidated because bribery laws and narrowly drawn
disclosure requirements constitute a less restrictive means of dealing with "proven and suspected quid pro quo
arrangements." But laws making criminal the giving and taking of bribes deal withonly the most blatant and specific
attempts of those with money to influence governmental action. And while disclosure requirements serve the many
salutary purposes discussed elsewhere in this opinion, Congress was surely entitled to conclude that 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 Government’s 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

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

Indeed, in Osmeña v. COMELEC,114 this Court, in reaffirming its ruling in National Press Club v. Commission on
Elections115 that Section 11 (b) of R.A. No. 6646116 does not invade and violate the constitutional guarantees comprising
freedom of expression, remarked in response to the dissent of Justice Flerida Ruth P. Romero:

On the other hand, the dissent of Justice Romero in the present case, in batting for an "uninhibited market place of ideas,"
quotes the following from Buckley v. Valeo:

[T]he concept that the government may restrict the speech of some elements in our society in order to enhance the
relative voice of the others is wholly foreign to the First Amendment which was designed to "secure the widest possible
dissemination ofinformation 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."

But do we really believe in that? That statement was made to justify striking down a limit on campaign expenditure on the
theory that money is speech. Do those who endorse the view that government may not restrict the speech of some in

73
order to enhance the relative voice of others also think that the campaign expenditure limitation found in our election laws
is unconstitutional? How about the principle of one person, one vote, is this not based on the political equality of voters?
Voting after all is speech. We speak of it as the voiceof the people – even of God. The notion that the government may
restrictthe speech of some in order to enhance the relative voice of othersmay be foreign to the American Constitution. It
is not to the Philippine Constitution, being in fact an animating principle of that document.

Indeed, Art. IX-C, §4 is not the only provision in the Constitution mandating political equality. Art. XIII, §1 requires
Congress to give the "highest priority" to the enactment of measures designed to reduce political inequalities, while Art. II,
§26 declaresas a fundamental principle of our government "equal access to opportunities for public service." Access to
public office will be deniedto poor candidates if they cannot even have access to mass media in order to reach the
electorate. What fortress principle trumps or overrides these provisions for political equality? Unless the idealism and hopes
which fired the imagination of those who framed the Constitution now appeardim to us, how can the electoral reforms
adopted by them to implement the Constitution, of which §11(b) of R.A. No. 6646, in relation to §§90 and 92 are part, be
considered infringements on freedom of speech? That the framers contemplated regulation of political propaganda similar
to §11(b) is clear from the following portion of the sponsorship speech of Commissioner Vicente B. Foz:

MR. FOZ. . . . Regarding the regulation by the Commission of the enjoyment or utilization of franchises or permits for the
operation of transportation and other public utilities, media of communication or information, all grants, special privileges
or concessions granted by the Government, there is a provision that during the election period, the Commission may
regulate, among other things, the rates, reasonable free space, and time allotments for public information campaigns and
forums among candidates for the purpose of ensuring free, orderly, honest and peaceful elections. This has to do with the
media of communication or information.117 Proceeding from the above, the Court shall now rule on Ejercito’s 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 madeby 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.

Section 13 of R.A. No. 7166118 sets the current allowable limit on expenses of candidates and political parties for election
campaign, thus:

SEC. 13. Authorized Expenses of Candidates and Political Parties. – The aggregate amount that a candidate or registered
politicalparty may spend for election campaign shall be as follows:

(a) For candidates – Ten pesos (₱10.00) for President and Vice President; and for other candidates, Three pesos
(₱3.00) for every voter currently registered in the constituency where he filed his certificate of candidacy:
Provided, That, a candidate without any political party and without support from any political party may be
allowed to spend Five pesos (₱5.00) for every such voter; and

(b) For political parties - Five pesos (₱5.00) for every voter currently registered in the constituency or
constituencies where it has official candidates.

Any provision of law to the contrary notwithstanding, any contribution in cash or in kind to any candidate or political party
or coalition of parties for campaign purposes, duly reported to the Commission, shall not be subject to the payment of any
gift tax.119

Sections 100, 101, and 103 of the OEC are not repealed by R.A. No. 7166.120 These provisions, which are merely amended
insofar as the allowable amount is concerned, read:

SECTION 100. Limitations upon expenses of candidates.– No candidate shall spend for his election campaign an aggregate
amount exceeding one peso and fifty centavos for every voter currently registered in the constituency where he filed his
candidacy: Provided, That 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: Provided, further, That where the land, water or aircraft, equipment,
facilities, apparatus and paraphernalia used is owned by the candidate, his contributor or supporter, the Commission is
hereby empowered toassess 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.

SECTION 101. Limitations upon expenses of political parties.– A duly accredited political party may spend for the election
of its candidates in the constituency or constituencies where it has official candidates an aggregate amount not exceeding
the equivalent of one peso and fifty centavos for every voter currently registered therein. Expenses incurred by branches,
chapters, or committees of such political party shall be included in the computation of the total expenditures of the political
party.

Expenses incurred by other political parties shall be considered as expenses of their respective individual candidates and
subject to limitation under Section 100 of this Code.

SECTION 103. Persons authorized to incur election expenditures.– No person, except the candidate, the treasurer of a
political party or any person authorized by such candidate or treasurer, shall make any expenditure in support of or in

74
opposition to any candidate or political party. Expenditures duly authorized by the candidate or the treasurer of the party
shall be considered as expenditures of such candidate or political party.

The authority to incur expenditures shall be in writing, copy of which shall be furnished the Commission signed by the
candidate or the treasurer of the party and showing the expenditures so authorized, and shall state the full name and
exact address of the person so designated. (Emphasis supplied)121

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.

Section 52. Limitation upon expenses of political parties, groups or aggrupations.A political party, group or aggrupation
may not spend for the election of its candidates in the constituency or constituencies where it has official candidates
anaggregate amount more than the equivalent of fifty centavos for every voter currently registered therein: Provided, That
expenses incurred by such political party, group or aggrupation not duly registered with the Commission and/or not
presenting or supporting a complete list of candidates shall be considered as expenses of its candidates and subject to the
limitation under Section 51 of this Code. Expenses incurred by branches, chapters or committees of a political party, group
or aggrupation shall be included in the computation of the total expenditures of the political party, group or aggrupation.
(Emphasis supplied)

Section 54. Persons authorized to incur election expenditures.No person, except the candidate or any person authorized by
him or the treasurer of a political party, group or aggrupation, shall make any expenditure in support of, or in opposition to
any candidate or political party, group or aggrupation. Expenditures duly authorized by the candidate of the treasurer of
the party, group or aggrupation shall be considered as expenditure of such candidate or political party, group or
aggrupation.

The authority to incur expenditures shall be in writing, copy of which shall be furnished the Commission, signed by the
candidate or the treasurer of the party, group or aggrupation and showing the expenditure so authorized, and shall state
the full nameand exact address of the person so designated. (Emphasis supplied)

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, orin the constituency in
which the election shall be held in case of a special election which is not held in conjunction with a regular election. Any
other organization not connected with any political party, campaigning for or against a candidate, or for or against a
political party shall not spend more than a total amount of five thousand pesos. (Emphasis supplied)

Much earlier, Section 12 (G) of R.A. No. 6132,125 which implemented the resolution of both Houses ofCongress calling for a
constitutional convention, explicitly stated:

Section 12. Regulations of Election Spending and Propaganda. The following provisions shall govern election spending and
propaganda in the election provided for in this Act:

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 xxx

(G) All candidates and all other persons making or receiving expenditures, contributions or donations which in their totality
exceed fifty pesos, in order to further or oppose the candidacy of any candidate, shall file a statement of all such
expenditures and contributions made or received on such dates and withsuch details as the Commission on Elections shall
prescribe by rules. The total expenditures made by a candidate, or by any other person with the knowledge and consent of
the candidate, shall not exceed thirty-two thousand pesos. (Emphasis supplied)

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 former’s election expenses those
incurred by the latter.1awp++i1 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 candidate’s 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 candidate’s allowable limit of election expenses does not
trample upon the free exercise of the voters’ rights of speech and of expression under Section 4, Artticle III of the
Constitution. As a content-neutral regulation,127 the law’s 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 incidentaland 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

Indeed, to rule otherwise would practically result in an unlimited expenditure for political advertising, which skews the
political process and subverts the essence of a truly democratic form of government.

WHEREFORE, the Petition is DENIED. The May 21, 2014 Resolution of the COMELEC En Banc in SPA No. 13-306 (DC),
which upheld the September 26, 2013 Resolution of the COMELEC First Division, granting the petition for disqualification
filed by private respondent Edgar "Egay" S. San Luis against petitioner Emilio Ramon "E.R." P. Ejercito, is hereby
AFFIRMED.

SO ORDERED.

SEC. 2. Section 2 of Republic Act No. 8436 is hereby amended to read as follows:

"SEC. 2. Definition of Terms. - As used in this Act, the following terms shall mean:

"7. Paper-based election system - a type of automated election system that use paper ballots, records and counts votes,
tabulates, consolidates/canvasses and transmits electronically the results of the vote count;"

"8. Direct recording electronic election system - a type or automated election system that uses electronic ballots, records,
votes by means of a ballot display provided with mechanical or electro-optical component that can be activated by the
voter, processes data by means of a computer programs, record voting data and ballot images, and transmits voting
results electronically;

"SEC. 11. Functions of the Technical Evaluation Committee. - The Committee shall certify, through an established
international certification entity to be chosen by the Commission from the recommendations of the Advisory Council, not
later than three months before the date of the electoral exercises, categorically stating that the AES, including its hardware
and software components, is operating properly, securely, and accurately, in accordance with the provisions of this Act
based, among others, on the following documented results:

1. The successful conduct of a field testing process followed by a mock election event in one or more cities/municipalities;

2. The successful completion of audit on the accuracy, functionally and security controls of the AES software;

3. The successful completion of a source code review;

4. A certification that the source code is kept in escrow with the Bangko Sentral ng Pilipinas;

5. A certification that the source code reviewed is one and the same as that used by the equipment; and

6. The development, provisioning, and operationalization of a continuity plan to cover risks to the AES at all points in the
process such that a failure of elections, whether at voting, counting or consolidation, may be avoided.

For purposes of the 2007 elections, the certification shall be done not later than eight weeks prior to the date of the
elections.

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"If the Commission decides to proceed with the use of the AES without the Committee's certification, it must submit its
reason in writing, to the Oversight Committee, no less than thirty (30) days prior to the electoral exercise where the AES
will be used.

"The Committee may avail itself of the expertise and service of resource persons who are of known independence,
competence and probity, are no partisan, and who do not possess any of the disqualification applicable to a member of the
Advisory Council as provided herein. The resource persons shall also be subject to the same prohibitions and penalties as
the members of the Advisory Council.

"The Committee shall closely coordinate with the steering committee of the Commission tasked with the implementation of
the AES in the identification and agreement of the project deliverables and timelines, and in the formulation of the
acceptance criteria for each deliverable."

SEC. 12. Section 10 of Republic Act No. 8436 is hereby amended to read as follows:

"SEC.14. Examination and Testing of Equipment or Device of the AES and Opening of the Source Code for
Review. - The Commission shall allow the political parties and candidates or their representatives, citizens' arm or
their representatives to examine and test.

"The equipment or device to be used in the voting and counting on the day of the electoral exercise, before
voting start. Test ballots and test forms shall be provided by the Commission.

"Immediately after the examination and testing of the equipment or device, parties and candidates or their
representatives, citizen's arms or their representatives, may submit a written comment to the election officer who
shall immediately transmit it to the Commission for appropriate action.

"The election officer shall keep minutes of the testing, a copy of which shall be submitted to the Commission
together with the minute of voting."

"Once an AES technology is selected for implementation, the Commission shall promptly make the source code of
that technology available and open to any interested political party or groups which may conduct their own review
thereof."

REPUBLIC ACT No. 10756

AN ACT RENDERING ELECTION SERVICE NON-COMPULSORY FOR PUBLIC SCHOOL TEACHERS,

AUTHORIZING THE APPOINTMENT OF OTHER QUALIFIED CITIZENS, PROVIDING FOR COMPENSATION AND
OTHER BENEFITS

SECTION 3. Rendering of Election Service. – The Electoral Boards to be constituted by the Commission shall be composed
of a Chairperson and two (2) members, all of whom shall be public school teachers who are willing and available to render
election service.

Should there be a lack of public school teachers willing, available or qualified to serve, the Commission may instead
appoint the following persons in this order of preference:

(a) Private school teachers;

(b) National government employees:

(1) DepED nonteaching personnel;

(2) Other national government officials and employees holding regular or permanent positions, excluding
uniformed personnel of the Department of National Defense and all its attached agencies;

(c) Members of the Commission-accredited citizen arms or other civil society organizations and nongovernmental
organizations duly accredited by the Commission; and

(d) Any registered voter of the city or municipality of known integrity and competence who is not connected with
any candidate or political party.

In cases where the peace and order situation so requires as determined by the Commission and where there are no
qualified voters willing to serve, uniformed personnel of the Philippine National Police shall be deputized to render election
service as a last resort.

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Republic Act No. 6646
Approved: 05 January 1988

AN ACT INTRODUCING ADDITIONAL REFORMS IN THE ELECTORAL SYSTEM AND FOR OTHER PURPOSES

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.

Sec. 7. Petition to Deny Due Course To or Cancel a Certificate of Candidacy. - The procedure hereinabove

provided shall apply to petitions to deny due course to or cancel a certificate of candidacy as provided in Section 78 of

Batas Pambansa Blg. 881.

OEC

Sec. 5. Postponement of election. - When for any serious cause such as violence, terrorism, loss or
destruction of election paraphernalia or records, force majeure, and other analogous causes of such a
nature that the holding of a free, orderly and honest election should become impossible in any political
subdivision, the Commission, motu proprio or upon a verified petition by any interested party, and after due
notice and hearing, whereby all interested parties are afforded equal opportunity to be heard, shall
postpone the election therein to a date 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 days after the cessation of
the cause for such postponement or suspension of the election or failure to elect.

Sec. 6. Failure of election. - If, on account of force majeure, violence, terrorism, fraud, or other analogous
causes the election in any polling place has not been held on the date fixed, or had been suspended 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 returns or in the custody or canvass thereof, such election results in a failure to
elect, and in any of such cases the failure or suspension of election would affect the result of the election,
the Commission shall, on the basis of a verified petition by any interested party and after due 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 which resulted in a
failure to elect but not later than thirty days after the cessation of the cause of such postponement or
suspension of the election or failure to elect.

G.R. No. L-33325 December 29, 1971 MASTURA USMAN, petitioner, vs. COMMISSION ON ELECTIONS and
LUIS QUIBRANZA, respondents.

G.R. No. L-34043 December 29, 1971 MASTURA USMAN, petitioner, vs. COMMISSION ON ELECTIONS, LUIS
QUIBRANZA, MARIANO BADELLES and FRANCISCO ABALOS, respondents. CASTRO, J.:

Pursuant to Republic Act 6132,1 election of delegates to the Constitutional Convention was held throughout the nation on
November 10, 1970. Republic Act 6132 called for the election of three hundred and twenty delegates apportioned among
sixty-seven representative districts.

Section 2 of the aforestated law, inter alia, allocated three delegates to represent the lone district of Lanao del Norte,
including Iligan City. Twenty-nine candidates contended for the three seats thus allotted.

On November 12, 1970, Luis Quibranza, Francisco Abalos, Alfredo Bosico, Luis Buendia and Bonifacio Legaspi (hereinafter
referred to as the Comelec petitioners), candidates for delegate in the aforementioned district, petitioned the Commission
on Elections (hereinafter referred to as the Comelec for a declaration of nullity of the election returns from all the precincts
of seven municipalities and municipal districts — Karomatan, Pantao-Ragat, Matungao, Munai, Tangcal, Magsaysay, and
Nunungan — and four barrios — Kapatagan, Salvador, Lala, and Kauswagan of Lanao del Norte. The Comelec petitioners
alleged as grounds that in the said municipalities and barrios, no actual voting took place because of "terrorism and other
machinations," and that

fictitious election returns were prepared under duress, and the influence of terrorism and/or bribery
wherein, it was made to appear that certain favored candidates obtained most, if not all the votes
fictitiously cast therein, while petitioners were made to appear as having obtained very few, if no votes
at all.

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The Comelec petitioners particularly stressed that the canvassing of the fictitious votes and the preparation of the election
returns from the precincts of Karomatan were in violation of the procedure laid down in resolution 769 of the Comelec.
They prayed for the holding of a special election in the municipalities and barrios concerned and, ad interim, the
suspension of the canvass as well as the proclamation of the winning candidates until after hearing and decision on the
merits of the petition.

The initial canvass of all the election returns from all the precincts of Lanao del Norte showed the following results:

1. Mariano Badelles ...................................................................... 30,770,

2. Mastura Usman ........................................................................ 23,615,

3. Francisco Abalos ..................................................................... 22,843,

4. Cornelio Sugano ...................................................................... 18,486,

5. Luis Quibranza ......................................................................... 17,831.

With the exclusion, however, of the tally of the election returns from the 42 precincts of Karomatan, the results would be
as follows:

1. Francisco Abalos ................................................................... 22,827,

2. Mariano Badelles .................................................................. 22,292,

3. Luis Quibranza ....................................................................... 17,379,

4. Mastura Usman ..................................................................... 14,301.

On November 14, 1970, the Comelec issued two resolutions ordering the board of canvassers to canvass the election
returns in Manila, ordering the same board to desist from proclaiming the winning candidates until further orders, and
setting the petition for hearing in Manila to ascertain the truth of the allegation that no voting took placed in the disputed
precincts.

On November 24, 1970, the Comelec petitioners, joined by another candidate, Potri Ali Pacasum, amended their petition,
asking for the exclusion of the election returns from the precincts of the barrios of Kapatagan, Salvador, Lala, and
Kauswagan except those from precincts 16 and 24 of Kapatagan and precincts 14 and 14-A of Salvador and repeating their
allegation that no elections actually took place in the questioned precincts,

and/or in the remote possibility that elections had been initiated they were suspended before the hour
fixed by law for the closing of the voting because of violence or terrorism and that the votes not cast
therein are sufficient to affect the result of the elections,

and adding that the election returns from the said precincts

... were prepared prior to the elections, and/or had been tampered with and/or are statistically
improbable in that the number of voters who allegedly cast their votes is out of proportion to the actual
population in those municipalities and municipal districts concerned.

Mariano Badelles, Cornelio Sugano and Mastura Usman (hereinafter referred to as the Comelec respondents), candidates
affected by the petition, two of whom appeared as front runners per the initial canvass of all the election returns from all
the precincts of Lanao del Norte, filed an amended answer dated November 26, 1970 wherein they vehemently denied the
allegations of the Comelec petitioners, brushing them off as "preposterous and without basis both in fact and in law."
Claiming that "free, clean, peaceful and orderly" elections took place in all the places and precincts enumerated by the
Comelec petitioners, they asked for the dismissal of the petition on the ground of lack of cause of action.

At a preliminary conference between the parties, they assented to the summoning by the Comelec of the chairmen of the
boards of inspectors of Karomatan to testify in Manila. They also agreed to allow the chairmen of the boards of inspectors
of the other municipalities to testify in Iligan City. The Comelec then subpoenaed the 42 chairmen of the boards of
inspectors of Karomatan. On December 9, 1970, a number of them arrived in Manila.

At the hearing, four chairmen testified, three of whom declared that the elections in their respective precincts were "free,
honest and orderly." Of the three, however, one broke down on cross-examination and revealed what really transpired in
his precinct on election day. He related that only about 10% to 20% of the registered voters in his precinct actually voted
and that armed men prepared and filled up the rest of the ballots. In addition, he stated that two unidentified men gave
him a piece of paper with the names of five candidates written thereon with the corresponding number of votes "they were
supposed to receive in the precinct." The unidentified men told him to give the indicated number of votes to the persons
listed in the piece of paper; so the board prepared the election returns in accordance with their instructions.

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The fourth chairman who testified revealed that on the day before the elections, the members of the boards of inspectors,
having been summoned, appeared at the office of the mayor where they were questioned on their "willingness to
cooperate" by making some candidates win in their respective precincts. She further testified that on election day, about
twenty Muslims appeared in her precinct who prepared and filled up the ballots and thumbmarked and signed the voting
record.

In the meantime, the Comelec, upon the application of the Comelec petitioners, ordered the production in Manila of the
precinct books of voters for Karomatan, including CE forms 39 (lists of voters who voted) used in connection with the 1970
elections.

On December 12, 1970, the Comelec, by resolution, directed the chief of its Fingerprint Identification Division, Jose Abrigo,
to examine all the precinct books of voters for Karomatan, together with the CE forms 39 accomplished in connection with
the 1970 elections, to determine:

a. Whether the thumbmark affixed on the 1970 voting record of each voter on Form No. 1 coincides with
the thumbmark of the voters on the face of said Form No. 1 and also in the 1970 Form No. 39;
b. How many are there where the thumbmark on Form 1, the voting record and Form 39 are by the
same persons indicating that the registered voter had cast his vote in the precinct?
c. How many are there where the thumbmark on Form 1, the voting record and Form 39 are by more
than one person?
d. Are there thumbmarks in Form 39 which appear more than once, indicating that one person affixed
his thumbmark more than once?
e. Are there thumbmarks appearing in more than one voting record also indicating that one person
affixed his thumbmark in two or more voting records in Form 1?,
and the case of blurred thumbmarks or thumbmarks not capable of being used as bases for identification, to examine the
signatures in CE form 1, the voting record, and CE form 39 instead. The Comelec ordered Abrigo to submit his report
thereon.

In the same resolution, the Comelec ordered the suspension of the examination of the other chairmen of the boards of
inspectors.

On December 21, 1970, Abrigo having submitted a partial report, the Comelec directed him to withdraw the same and
submit a complete one. Abrigo thereafter submitted two reports dated December 28, 1970 and January 21, 1971.
Subsequently, the Comelec ordered the revision of both reports for easier understanding and the inclusion of the report of
the NBI handwriting experts. On February 9, 1971, Abrigo submitted the revised report which introduced no changes with
regard to the findings made in the previous reports.

The revised report stated that the Fingerprint Identification Division of the Comelec, in six teams of three members each,
examined, analyzed and made a comparison of the registered voter's right hand thumbmark appearing on the voter's
registration record (front side of CE form 1) with that appearing on the voting record (back side of CE form 1) and/or on
the list of voters who voted (CE form 39), to determine whether or not the registered voter actually voted. The revised
report also stated that the examiners made no analysis in those instances wherein a person appears to have voted as his
name appears on CE form 39 but has no CE form 1, or where a voter failed to place his thumbmark on CE form 39 and on
the back side of CE form 1. The revised report showed the following results:

1. Total number of registered voters

per precinct books of voters ........................................................ 9,419,

2. Total number of persons who voted

per CE forms 39 .............................................................................. 9,455 (102 voters who voted per
CE forms 1 but not listed
in CE forms 39 will be added to this total),

3. Total numbers of person without CE

form 1 but who voted per CE forms 39 ...................................... 673,

4. Total number of registered

voters who did not vote .............................................................. 521,

The revised report revealed the following results:

1. Number of voters with thumbmark

on voting record for 1970 and/or on
CE form 39 not identical with that on
CE form 1 ................................................................................. 5,192,

2. Number of voters with thumbmark

on voting record for 1970 and/or
on CE form 39 identical to that on
CE form 1 ................................................................................. 22,

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 3. Number of voters with blurred,
smudged or faint thumbmarks ............................................. 3,684.

With regard to the blurred, smudged or faint thumbmarks, the revised report explained, the Questioned Documents
experts of the NBI detailed with the Comelec instead made a comparison of the signatures appearing on the registration
record and voting record. The results of the examination are:

1. Number of signatures found positive

(signed by the same person) .................................................. 217,

2. Number of signatures found negative

(not signed by the same person) ........................................... 965,

3. Number of signatures wherein the

examiners reached and made no opinion .............................. 2,506.

On March 12, 1971 the Comelec issued Resolution RR-892 wherein, among others, it (1) declared, by unanimous vote, the
returns from the 42 precincts of Karomatan as "spurious and/or manufactured;" (2) ordered, by unanimous vote, the
exclusion from the canvass for the election of delegates for Lanao del Norte the aforesaid returns; (3) by unanimous vote,
held as unnecessary any further hearing on the petition relating to the disputed returns from Pantao-Ragat, Matungao,
Munai, Tangcal, Magsaysay, Nunungan, Kapatagan, and Salvador, "it appearing that the results of the election would no
longer be affected by questioned returns from said municipalities after the rejection of the returns from the 42 precincts of
Karomatan," and directed the board of canvassers to include the returns from the said municipalities in the canvass.

The Comelec found that

in the 42 precincts of Karomatan, there were 9,419 registered voters; and that 9,557 had actually voted,
or that 138 votes were in excess of the number of registered voters. Of these 9,557 who voted, only 239
had been established to have actually voted among the registered voters in all the 42 precincts; 6,147 of
the registered voters had been voted for by substitute voters, while an additional 673 persons who were
not registered in any of the 42 precincts were able to vote without using name of any of the registered
voters. 2,498 of those who voted could not be determined whether they were registered vote or persons
who voted in substitution of the registered voters.

Continuing, the Comelec observed that

(I)n all the 42 precincts, many of the registered vote have been voted for by persons other than the
registered voters; in several precincts, several groups of thumbprints and signatures were made by one
person; in majority cases, none or only one each thumbprint or signature appears to belong to a
registered voter in the precinct but those identified as register voters who voted in the precincts were
probably those who were able to vote before the substitute voters had voted. A very high percentage of
voting could be noted in these 42 precincts, there having been 100% voting in 10 precincts, and with
more the 100% in 7 precincts where there is an excess of votes over the registered voters. There was
also an excess of votes in the whole town by 138 votes over the number of registered voters.

Anent the testimony of the chairmen of the boards of inspectors relating to the "free, honest, and orderly" elections in their
respective precincts and the joint affidavits of the members of the aforesaid boards attesting to the orderliness and
peacefulness of the elections in the precincts wherein they served, the Comelec stated that the findings of its Fingerprint
Identification Division and of the NBI handwriting experts conclusively belie the statements of the aforementioned
members of the boards of inspectors of Karomatan. Rejecting the veracity of their statements, the Comelec opined that the
members of the boards of inspectors were.

co-conspirators or hostages of the perpetrators of a deeply rooted practice spawned by the political
caciquism of Karomatan, unwilling to tell the truth either because they would thereby be admitting their
guilty participation or exposing themselves and their families to reprisals.

In rejecting the election returns from the 42 precincts of Karomatan, the Comelec stated:

An election return is a report prepared and certified as true and correct by the members of the board of
election inspectors of the election in their respective precincts, showing how the votes had been read,
counted and tallied by the board and the number of votes received by candidates. But an election return
presupposes that there is a bona fide, not a sham election, conducted in the precinct where only the
registered voters had voted. But if the election is sham, how can the board of inspectors make a report
on the presumptive result of the election in their respective precincts? How can said returns be accorded
any prima facie value? ... .

What the board of inspectors of Karomatan should have done was to certify that there was no voting in
their precinct since the registered voters did not vote but somebody else voted in their names. When
instead of doing this they prepared the returns and certified to a falsehood, the returns prepared by
them must be considered spurious, false or manufactured returns and in fact is no return at all.

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As to the question of whether or not to hold a special election in Karomatan, two members of the Comelec voted down the
calling of such a special election and directed the completion of the canvass on the basis of the valid returns from the rest
of the precincts of Lanao del Norte, and the proclamation, upon authority of Antonio, Jr. vs. Comelec, et al. (32 SCRA 319),
of the third winning candidate. The third Comelec member held the view that the finding by the Comelec that the
registered voters in the 42 precinct of Karomatan had not voted amounts to a finding of failure of election in the said 42
precincts. He opined that pursuant to section 17 (e) of Republic Act 6132, the situation necessarily called for the holding of
a special election in Karomatan.

Thus, Usman, on March 22, 1971, filed the present petition for review,2 (1) challenging the jurisdiction of the Comelec in
resolving the issue relating to the genuineness and authenticity of the disputed election returns, and in inquiring into the
regularity or irregularity of the thumbmarks and signatures of the voters who voted; (2) questioning the regularity of the
proceedings adopted by the Comelec in relation to the exercise of its jurisdiction and (3) assailing the probative value of
the finding made regarding the signatures and thumbmarks of the voters who voted in the 42 precincts of Karomatan.
Usman prayed for (1) the issuance of a writ of preliminary injunction restraining the Comelec from enforcing its resolution
dated March 12, 1971, and stopping the proclamation of winning candidates tentatively set on March 25, 1971; (2) the
setting aside of the Comelec resolution dated March 1971 and the inclusion of the results from the 42 precinct of
Karomatan in the canvass of the election returns his proclamation as the winning candidate; and (3) in case this Court
sustains the aforesaid Comelec resolution, the calling of a special election in all the 42 precincts of Karomatan pursuant to
section 17
(e)3 of Republic Act 6132.

On March 23, 1971, this Court issued a temporary straining order enjoining the Comelec from enforcing its Resolution
dated March 12, 1971 and from proceeding with the proclamation of the winning candidate temporarily scheduled on
March 25, 1971.

The Comelec filed, its answer on April 6, 1971; Quibranza his on April 13, 1971. Both the Comelec and Quibranza
vehemently refute Usman's claim of want of jurisdiction on the part of the Comelec to inquire into the regularity or
irregularity of the thumbmarks and signatures of the voters who voted relative to its inquiry into the genuineness and
authenticity of the election returns from the 42 precincts of Karomatan. Regarding the regularity of the proceedings
questioned by Usman, the Comelec and Quibranza maintain that the action filed by the former — a special civil action
for certiorari — excludes any consideration of procedural errors.

After hearing of the case on April 21, 1971, this Court required the parties to submit their memoranda in amplification of
their arguments. Quibranza filed his on May 3, 1971; Usman his on May 5, 1971.

In his memorandum, Usman repeats his arguments in support of his stand that the Comelec lacks jurisdiction to inquire
into the regularity or irregularity of the thumbmarks and signatures of the voters who voted and claims denial of due
process, alleging that the Comelec gave him no opportunity

to engage the services of a handwriting expert and a fingerprint expert to examine the thumbmarks and
signatures of the registered voters who voted in all the 42 precincts of Karomatan, Lanao del Norte.

and that the said Comelec refused to divulge

the qualification, competency, educational background and training, if any, of all the members of the six
(6) teams who allegedly conducted the so-called expert examination of thumbmarks.

Then, this Court, in a resolution dated May 17, 1971, set aside the Comelec resolution of March 12, 1971 and remanded
the case to the Comelec to enable it to reopen the proceedings

for the purpose of giving petitioner Usman a reasonable period of thirty (30) days from receipt of its
order implementing this decision, within which to summarily present whatever competent evidence he
may have, expert or otherwise, tending either to show the lack of qualifications of the Comelec
thumbprint or handwriting experts or to rebut their findings, on the basis which the Comelec has ruled
that the returns from the 42 precincts in question of Karomatan, Lanao del Norte "are spurious and/or
manufactured returns and as such should be excluded from the canvass for the election of delegates for
the lone congressional district of Lanao del Norte".

The majority of this Court stated in the resolution that Comelec failed to fully recognize and respect Usman's right to due
process when.

(a) petitioner Usman was not allowed by the Comelec, without sufficient reasons, to present any
evidence to rebut findings of its experts regarding the thumbprints and signature in the C.E. Forms 1 and
their corresponding C.E. Forms 39 submitted to them to the effect that out of the total 9,557 votes cast
in the said 42 precincts in Karomatan, only 239 had been established to have been cast by duly
registered voters, 673 had been cast by non-registered persons, 6,147 had been cast by substitute
voters and 2,498 had been cast by persons whose thumbprints and signatures are not definitely
identifiable; (b) qualifications of almost all of said experts were not duly disclosed, much less proven
during the hearing, thus depriving petitioner, inspite of his request, of the opportunity to properly
scrutinize them; and (c) only the chief of said experts, Jose M. Abrigo, who had not personally examined
and studied all thumbprints and signatures in question, was called to testify, albeit aided by his
assistants, and his testimony on cross-examination appears to have been unduly limited by the Comelec;

82
 not to mention the fact that the several reports of the experts of the Comelec, and of the National
Bureau of Investigation, who with the exception of only Eduardo V. Maniwang, were not called testify,
are not clearly consistent with each other.

Pursuant to the aforestated resolution, the Comelec reopened the proceedings and set the case for hearing June 29, 1971.

At the resumed hearing, Usman, asked to present his evidence, informed the Comelec of his desire to call to the witness
stand the Comelec fingerprint examiners who personally studied the precinct books of voters and CE forms 39 of
Karomatan. So the Comelec, on July 9, 10, 17 and 20, 1971, called the 18 fingerprint examiners to the witness stand and
Usman questioned them as to their qualifications. Usman also informed the Comelec of his intention to present one
fingerprint and handwriting expert after he finished with his interrogation of all the Comelec fingerprint examiners.
However, after his questioning of the Comelec fingerprint examiners, Usman notified the Comelec that instead of
presenting any expert witness, he intended to submit affidavits of voters of Karomatan.

On July 9, 1971 Usman also petitioned the Comelec to send a team of 21 Comelec lawyers to Karomatan to take the
affidavits of the registered voters, members of the boards of election inspectors, government officials and employees, and
religious and civic leaders of the said municipality. On July 14, 1971 Quibranza opposed the aforementioned petition,
stating that the move was "another maneuver to prolong and delay the case." Subsequently, on July 17, 1971, the
Comelec resolved to allow Usman to secure the affidavits subject to the following conditions:

A. The affidavits may be sworn to before any Notary Public or Municipal Judge;
B. The affidavits shall not only be sworn to by affiants but shall also contain:
1) Three (3) facsimile signatures of the affiants;
2) Fingerprints of the two (2) hands of the affiant which must be legible, otherwise,
the affidavit shall not be considered; and
3) The affidavit shall contain the precinct number where the affiant voted in the
election or the precinct number where the affiant served in the last election in case of
members of the Board of Inspectors;
C. Candidate Mastura Usman shall have until July 30, 1971 to submit to the Commission such affidavits;
and
D. Upon the suggestion of Counsel Pedro Quadra, the other candidates for the position of delegate in the
province of Lanao del Norte shall be notified of the date and time of the taking of the said affidavits, who
may be present personally or thru their authorized representatives.
On July 30, 1971, the day set for the presentation of the affidavits, the counsel for Usman informed the Comelec that he
had not yet received the said affidavits, and asked for an extension up to August 9, 1971 to submit them. He also
manifested that the extension would be the last and that he would rest his case on the basis of the affidavits secured on
August 9, 1971.

On August 9, 1971, the counsel for Usman again asked for a resetting of the hearing for August 13, 1971 on the ground of
non-receipt of the affidavits from Karomatan. Over the objections of the counsel for Quibranza, the Comelec reset the
hearing to August 13, 1971.

At the hearing at 10 o'clock in the morning of August 13, 1971, Usman's counsel asked for a recess as he expected the
arrival of the affidavits that morning. Thus the Comelec, to give the counsel for Usman ample time to sort out the affidavits
for an orderly presentation, re-scheduled the case for hearing the following Monday, August 16, 1971.

Came Monday morning and the counsel for Usman failed to appear. Instead, he sent his secretary to deliver the affidavits,
together with a motion for postponement and a petition asking for more time within which to gather additional affidavits.
Usman's counsel, in asking for postponement, alleged as cause his appearance before the Criminal Circuit Court in Baguio
City in connection with the hearing of the criminal case against Vincent Crisologo. The Comelec, before acting on the
motion for postponement, called the secretary to the witness stand to find out the reason for the non-appearance of
Usman's counsel despite the fact that the Comelec had reset the case to August 16, 1971 with the counsel's prior
knowledge and for his convenience. The Comelec found out that Usman's counsel gave his secretary instructions to bring
the affidavits to the Comelec only the preceding night and that two other lawyers, belonging to the said counsel's law
office, were also handling the Crisologo case in Baguio City. So the Comelec denied the motion for postponement.

Anent the affidavits, the counsel for Quibranza objected to their admission in evidence on the ground of non-compliance
with the conditions laid down by the Comelec. The Comelec sustained the objection of Quibranza's counsel and denied the
admission of the affidavits. Nonetheless, the Comelec ordered the inclusion of the affidavits as part of the records of the
case. Quibranza's counsel not having any rebuttal evidence to present, the Comelec considered the case submitted for
resolution.

The Comelec, in its resolution of August 21, 1971, found no basis to reconsider its findings based on the reports of the
fingerprint and handwriting experts, and resolved to confirm its previous ruling declared the returns from the 42 precincts
of Karomatan as "spurious and manufactured" returns and ordering their exclusion from the canvass. On the question of
whether or not to call a special election, the Comelec chairman maintained his original view relating to the completion of
the canvass on the basis of the valid returns from the rest of the precincts of the lone district of Lanao del Norte and the
proclamation of the third winning candidate on the basis of the said canvass. The other member maintained his original
view on the need of holding a special election in the 42 precincts of Karomatan. And because of the retirement of the third
commissioner the Comelec found itself in a deadlock on the issue of whether to call a special election in Karomatan or to
proclaim the third winning candidate on the basis of the canvass of all the valid returns from the remaining precincts of
Lanao del Norte.

83
Upon the voluminous record of the case at bar,4 the mass of accumulated facts graphically narrated by the parties, and the
various arguments advanced, the issue tendered for resolution, as we see it, relates fundamentally to the authority of the
Comelec to declare the election returns from the 42 precincts of Karomatan as "spurious and/or manufactured" and to
exclude them from the canvass.

Usman's main argument hinges entirely on what he views as the well-circumscribed jurisdiction of the Comelec in pre-
proclamation controversies. He argues that the Comelec, in such proceedings — summary in nature and character — has
jurisdiction only to determine questions relating to the qualification of the members of the board of canvassers, the
completeness or incompleteness of a canvass, and the integrity and authenticity of election returns.

The Comelec, in its inquiry, Usman states, should concern itself only with the integrity and authenticity of election returns,
and not their veracity — that is, whether the said returns are genuine, whether they are forged and spurious, whether they
were signed by the proper officers, and whether they were signed under duress and/or intimidation by the election
inspectors. The Comelec should decide the question of the integrity and authenticity of the election returns solely on the
basis of the face of the said returns since it has no legal authority to receive evidence aliundein that regard.

Usman further alleges that the questions of the validity of the ballots cast in support of the election returns and the
regularity of the voting, have no relevance whatsoever to the integrity and authenticity of the election return. The power to
reject and set aside the said election returns on the ground of the invalidity of the ballots cast in support thereof pertains
solely to the Constitutional Convention.

Therefore, Usman points out, the Comelec has no authority at all to receive evidence aliunde to determine regularity or
irregularity of the voting in the 42 precincts of Karomatan or to ascertain the genuineness or falsity of the thumbmarks and
signatures of the registered voters who voted, for the purpose of deciding the question of integrity and authenticity of the
election returns. Usman attributes the Comelec's lack of jurisdiction to two factors — the first, the summary nature and
character of a pre-proclamation controversy which requires the termination of the proceedings with the least possible
delay; the second, the limited composition and restricted organization of the Comelec which render it incapable of
exercising the authority questioned..

Quibranza, for his part, argues that the Comelec has authority to admit evidence aliunde in a controversy arising in the
course of canvass proceedings. True, he states, regarding election returns objected to on the ground of defects patent on
the face of the said returns — like tampered returns or returns with erasures and alterations — the Comelec has no
jurisdiction to go beyond the face of election returns. Nevertheless, regarding election returns objected to on some ground
not discernible from the face of the said returns — like coerced, gunpoint, spurious or manufactured returns — the
Comelec has authority to admit evidence aliunde to rebut the value of the returns asprima facie evidence of the count of
votes in the precincts involved.

Similarly, Quibranza asserts, the Comelec has jurisdiction to receive evidence aliunde that would show that "registered
voters did not in fact vote, but that other persons voted for them." In such an event where a great majority of substitutes
voted in lieu of those duly registered as voters, the election returns drawn up on the basis of the votes cast by the
substitute voters should be considered as spurious returns and should consequently not be accorded prima facie value.
Certainly, there could be no genuine and regular returns certifying to the results of an election that did not, in law, take
place.

Quibranza finally avers that the Comelec acted within its authority when it ordered — for the purpose of determining
whether or not validly registered voters actually voted in the precincts in dispute — the examination and analysis of the
standard thumbmarks and signatures appearing on the voters' registration records and their comparison with those found
on the voting records and/or list of voters who voted. In doing so, he adds, the Comelec concerned itself only with the
conduct of the elections in Karomatan in consonance with its constitutional duty to enforce and administer "all laws relative
to the conduct of elections" and to insure free, orderly, and honest elections."

Indeed, the case at bar directly confronts this Court with a problem fraught, not with fancied serious effects, but with
possible far reaching consequences attendant to the flood of pre-proclamation controversies that could be brought before
the Comelec. Mindful of the vital role of the Comelec of insuring free, orderly and honest elections pursuant to the
mandates of the Constitution and the Election Code, on the one hand, and of the diverse — and oftentimes, novel —
anomalous devices and schemes aimed at subverting the popular will ingeniously conceived and practiced by unscrupulous
politicians and their followers, on the other hand, we approach and view the problem with utmost concern and
circumspection.

The broad power of the Comelec, conferred upon it the Constitution, to enforce and administer "all laws relative to the
conduct of elections" and to decide all administrative questions affecting elections "for the purpose of insuring free, orderly
and honest elections," has been the key in the resolution of many pre-proclamation controversies involving the integrity
and authenticity of election returns. Invoking the aforestated power of the Comelec, justified the action and upheld the
authority of the Comelec to order the exclusion of "obviously manufactured returns,5 or tampered returns,6 or returns
prepared under threats and coercion or under circumstances affecting returns' integrity and authenticity, 7 emphasizing the
duty of the Comelec to see to the use and inclusion in the canvass of only genuine elections.

Several circumstances, defying exact description and dependent mainly on the factual milieu of the particular controversy,
have the effect of destroying the integrity and authenticity of disputed election returns and of avoid their prima facie value
and character. If satisfactorily proven, although in a summary proceeding, such circumstances as alleged by the affected or
interested part stamp the election returns with the indelible mark of falsity and irregularity, and, consequently, of
unreliability and justify their exclusion from the canvass.

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Remarkably, Quibranza, in the petitions he filed (together with Abalos, Bosico Buendia, Legaspi and Pacasum with the
Comelec, alleged that no actual voting took place in the precincts in question. Determined to purpose its quest for the
truth, the Comelec summoned the 42 chairmen of the boards of inspectors of Karomatan to test in Manila. And because
only a number of the chairmen arrived to give their versions of what supposedly happened in their respective precincts, the
Comelec deemed it to resort to the more convincing mode of discovery. It thus ordered the production in Manila of the
precinct books of voters and CE forms 39 of Karomatan. Then it directed the chief of its Fingerprint Identification Division
to conduct examination, comparison and analysis of the fingerprints appearing on the voters' registration records and on
the voting records and/or lists of voters who voted. With regard to those voters with blurred, smudged or faint fingerprints,
the Comelec referred their records to the Questioned Documents experts of the NBI for examination and analysis of their
signatures.

In the performance of its duty to guard against the use and inclusion of returns prepared under circumstances showing
their falsity in the canvass of election results, the Comelec should not be hampered in the choice of effective means and
methods to fully ascertain the genuineness and regularity of disputed election returns. To establish the indubitable
existence of any of such circumstances — necessarily not evident from an examination of the election returns themselves
— demands recourse to proof independent of the election returns or to evidence aliunde.

At this juncture, we find it necessary to mention that the results of the examination and analysis of the voters' fingerprints
and signatures indicating that many of the registered voters have been voted for by persons not even registered in the 42
precincts of Karomatan, constituted not the sole factor which prompted the Comelec to declare the 42 election returns as
"spurious and/or manufactured." A totality of circumstances — not merely of persuasive but of compelling character — led
the Comelec to consider and conclude that the aforesaid election returns are "spurious and/or manufactured" and
therefore unworthy of inclusion in the canvass of the election results. The Comelec heavily, relied on the following
noteworthy circumstances:

1. The very high percentage of voting in the 42 precincts of Karomatan — with 100% voting in 10 precincts, and with more
than 100% voting in 7 precincts where the number of votes exceeded the number of registered voters — in the whole
town of Karomatan, there appeared an excess of 138 votes over the number of registered voters;
2. The day before the elections, the members of boards of inspectors of Karomatan were summoned to the office of the
mayor where they were "asked" to cooperate" by making some candidates win in their respect precincts;
3. The members of the boards of inspectors of Karomatan, either out of fear due to terrorism or in connivance with those
responsible for the election anomalies, all voting by persons other than those registered as vote their respective precincts;
4. The other irregularities — among them, multiple registration, blurred fingerprints making identification impossible, and
ID pictures attached to CE forms I showing the registered voters as minors — appearing in the pre books of voters of
Karomatan making possible the penetration of the election anomalies; and
5. The notorious election record of Karomatan in obvious elections since 1953 indicating a phenomenal increase in the
voting population.8 The record shows:
Year: No. of No. of
Registered Precincts
Voters:

1953 1,028 4

1955 1,655 4

1957 1,935 5

1959 2,929 5

1961 3,447 8

1963 5,756 13

1965 8,446 24

1967 8,000 18

1969 9,061 42

1970 9,945 42

We fully agree with the Comelec that the totality of the foregoing circumstances, taken together with the findings of the
Fingerprint Identification Division of the Comelec and of the Questioned Documents experts of the NBI, more than suffices
to completely overcome the prima facie value of the 42 election returns from Karomatan, strongly belying their integrity
and authenticity.9 These circumstances definitely point, not merely to a few isolated instances of irregularities affecting the
integrity and authenticity of the election returns, but to an organized, directed large-scale operation to make it a mockery
of the elections in Karomatan. We fined and so hold that the collection returns from the 42 precincts in question were
prepared under circumstances conclusively showing that they are false, and are so devoid of value to be completely
unworthy of inclusion in the canvass. We have no alternative but to affirm the Comelec's findings that they are spurious
and manufactured.

85
The only question that remains relates to Usman's plea for the holding of a special election in Karomatan. With section 17
(e) of Republic Act 6132 in mind, Usman considers it mandatory on the part of the Comelec to call for a special election in
the precincts concerned if it found that

no voting has been held or that voting has been suspended before the hour fixed by law for the closing
of the voting in any precinct or precincts because of force majeure, violence or terrorism, and the votes
not cast therein are sufficient to affect the results of the election.

Quibranza counters that the aforestated provision of law leaves to the discretion of the Comelec the calling of a special
election. In addition, he submits that the said provision finds no application in the case at bar because the non-fulfillment
of one of the conditions laid down section 17 (e), which condition is that the "votes not cast therein are sufficient to affect
the results of the election." Usman, according to Quibranza, adduced no evidence whatsoever to show that the "votes not
cast" in Karomatan would alter the results of the election.

In resolving this question, as previously stated, the Comelec commissioners, per the resolution dated August 2, 1971,
failed to reach a consensus. One commissioner believed that the canvass should be completed on the basis of the valid
returns from the other precincts of Lanao del Norte and that the proclamation of the third winning candidate on the basis
of the said canvass should logically follow; the other commissioner maintained his original view that there is need of a
special election in Karomatan.

A reading of section 17 (e) of Republic Act 6132 makes it apparent that Congress has delegated to the Comelec the power
to call for a special election — a power essentially legislative in nature, being merely an incident to or an extension or
modality of the power to fix the date of the elections. 10 However, in the proper exercise of the delegated power, Congress
saw fit to require the Comelec ascertain that (1) no voting has been held in any precint or precincts because of force
majeure, violence or terrorism and (2) that the votes not cast therein suffice to affect the results of the elections. The
language of the provision clearly requires the concurrence of the two circumstances to justify the calling of a special
election.

The Comelec concedes that what transpired in Karomatan constitutes "not merely a simple case of irregularity in the voting
but a case of no voting or no election at all. However, the Comelec attributes this to "massive fraud rather than to force
majeure, violence or terrorism the — three causes explicitly enumerated by section 17 (e). Unlike section 17 (d) which
empowers the Comelec to postpone the election in any political division or subdivision whenever it finds that the holding of
a free, orderly and honest election therein is rendered impossible by reason of fraud, violence, coercion, terrorism, or any
other serious cause or causes, section 17 (e) excludes the situation where no voting has been held because of fraud.
Furthermore, doubt exists whether or not the irregularities committed in Karomatan properly partake of violence or
terrorism. This being the case, we find that the first circumstance is not attendant.

As to the second circumstance, therefore, we find it unnecessary to indulge in surmises. 11

ACCORDINGLY, (1) the petition is dismissed; (2) the resolution of the Commission on Elections dated August 21, 1971 is
affirmed; and (3) the restraining order dated March 23, 1971 issued by this Court is lifted. The Commission on Elections is
directed to order the board of canvassers to convene without delay and forthwith proceed with and complete the canvass
of the election returns from all the precincts of Lanao del Norte, excluding therefrom all the election returns from the 42
precincts of Karomatan, and thereafter proclaim accordingly the winning candidate for the third Constitutional Convention
seat allotted to the said province. This judgment is hereby declared immediately executory. No pronouncement as to costs.

Concepcion, C.J., Reyes, J.B.L., Makalintal, Fernando, Teehankee, Barredo, Villamor and Makasiar, JJ., concur.

Zaldivar, J., took no part.

G.R. No. 122013 March 26, 1997 JOSE C. RAMIREZ, petitioner, vs. COMMISSION ON ELECTIONS, MUNICIPAL
BOARD OF CANVASSERS OF GIPORLOS, EASTERN SAMAR and ALFREDO I. GO, respondents. MENDOZA, J.:

Petitioner Jose C. Ramirez and private respondent Alfredo I. Go were candidates for vice mayor of Giporlos, Eastern Samar
in the election of May 8, 1995. Petitioner was proclaimed winner by the Municipal Board of Canvassers (MBC) on the basis
of results showing that he obtained 1,367 votes against private respondent's 1,235 votes.1

On May 16, 1995, private respondent filed in the COMELEC a petition for the correction of what he claimed was manifest
error in the Statement of Votes (SPC No. 95-198). He alleged that, based on the entries in the Statement of Votes, he
obtained 1,515 votes as against petitioner's 1,367 votes but that because of error in addition, he was credited with 1,235
votes as shown in the following recomputation:2

Precinct No. Go, Alfredo I. Ramirez, Jose C.

8-A 23 43
9 23 10
8 37 49
2-A 31 48
12 50 42
12-A 65 29
7-A 36 73
20 7 19
3 88 56

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 1-A 54 67
13-A 43 47
18 39 12
14 19 65
4 27 37
5-A 43 67
13 37 42
2 73 79
15 49 49
11 58 18
11-A 66 32
6 115 98
1 130 52
17 54 15
7 86 67
10 60 13
5 50 55
19 41 61
21 59 46
16 52 76
——————— ——— ———
Total 29 Precincts 1,235 1,367
(Should be 1,515)

In his Answer with Counter-Protest,3 petitioner Jose C. Ramirez disputed private respondent's claim. He said that instead of
the total of the votes for private respondent Alfredo Go, it was actually the entries relating to the number of votes credited
to him in Precinct Nos. 11, 11-A, 6, 1, 17, 7, and 10 which were erroneously reflected in the Statement of Votes. According
to petitioner, the entries in the Statement of Votes actually referred to the number of votes obtained by Rodito Fabillar, a
mayoralty candidate, and not to the votes obtained by private respondent. Petitioner alleged that, as shown in the
Certificate of Votes prepared by the Board of Election Inspectors, the votes cast for Go in the precincts in question were as
follows:

Precincts Nos. Per Statement Per Certificate

of Votes of Votes

11 58 32
11-A 66 18
6 115 65
1 130 61
17 54 48
7 86 37
10 60 28

The addition of the number of votes (reflected in the Certificate of Votes) to the number of votes from other
precincts confirms the MBC's certificate that the total number of votes cast was actually 1,367 for petitioner and
1,235 for private respondent.

On August 1, 1995, the COMELEC en banc issued its first questioned resolution, directing the MBC to reconvene and
recompute the votes in the Statement of Votes and proclaim the winning candidate for vice mayor of Giporlos, Eastern
Samar accordingly.4

Petitioner Jose C. Ramirez and public respondent Municipal Board of Canvassers filed separate "motions for clarification."
On September 26, 1995, the COMELEC en banc issued its second questioned resolution, reiterating its earlier ruling. It
rejected the MBC's recommendation to resort to election returns:5

The Municipal Board of Canvassers is reminded that pursuant to Section 231 of the Omnibus Election
Code, it is the Statement of Votes, duly prepared, accomplished during the canvass proceedings, and
certified true and correct by said Board which supports and form (sic) the basis of the Certificate of
Canvass and Proclamation of winning candidates. In fact and in deed, the Municipal Board of
Canvassers/Movant had submitted to the Commission, attached to and forming part of the Certificate of
Canvass and Proclamation a Statement of Votes without any notice of any discrepancy or infirmity
therein. To claim now that the proclamation was not based on said Statement of Votes but on the
Certificate of Votes because the entries in the Statement of Votes are erroneous is too late a move,
considering that by the Board's act of submitting said Statement of Votes as attachment to the
Certificate of Proclamation and Canvass, it had rendered regularity and authenticity thereto.

Hence this petition for certiorari and mandamus seeking the annulment of the two resolutions, dated August 1, 1995 and
September 26, 1995, of the Commission on Elections, and the reinstatement instead of the May 10, 1995 proclamation of
petitioner Jose C. Ramirez as the duly elected vice mayor of Giporlos, Eastern Samar. Petitioner contends that (1) the
COMELEC acted without jurisdiction over SPC No. 95-198 because the case was resolved by it without having been first
acted upon by any of its divisions, and (2) the MBC had already made motu proprio a correction of manifest errors in the
Statement of Votes in its certification dated May 22, 1995, showing the actual number of votes garnered by the candidates
and it was a grave abuse of its discretion for the COMELEC to order a recomputation of votes based on the allegedly
uncorrected Statement of Votes.

With respect to the first ground of the petition, Art. IX, §3 of the Constitution provides:

87
 §3. The Commission on Elections may sit en banc or in two 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 division, provided that motions for reconsideration of
decisions shall be decided by the Comelec en banc. (Emphasis added)

Although in Ong, Jr. v. COMELEC6 it was said that "By now it is settled that election cases which include pre-proclamation
controversies must first be heard and decided by a division of the Commission"7 — and a petition for correction of manifest
error in the Statement of Votes, like SPC No. 95-198 is a pre-proclamation controversy — in none of the cases8 cited to
support this proposition was the issue the correction of a manifest error in the Statement of Votes under 231 of the
Omnibus Election Code (B.P. Blg. 881) or §15 of R.A. No. 7166. On the other hand, Rule 27, §5 of the 1993 Rules of the
COMELEC expressly provides that pre-proclamation controversies involving, inter alia, manifest errors in the tabulation or
tallying of the results may be filed directly with the COMELEC en banc, thus

§5. Pre-proclamation Controversies Which May Be Filed Directly With the Commission. — (a) The
following pre-proclamation controversies may be filed directly with the Commission:

xxx xxx xxx

2) When the issue involves the correction of manifest errors in the tabulation or tallying of the results
during the canvassing as where (1) a copy of the election returns or certificate of canvass was tabulated
more than once, (2) two or more copies of the election returns of one precinct, or two or more copies of
certificate of canvass were tabulated separately, (3) there had been a mistake in the copying of the
figures into the statement of votes or into the certificate of canvass, or (4) so-called returns from non-
existent precincts were included in the canvass, and such errors could not have been discovered during
the canvassing despite the exercise of due diligence and proclamation of the winning candidates had
already been made.

xxx xxx xxx

(e) The petition shall be heard and decided by the Commission en banc.

Accordingly in Castromayor v. Commission on Elections,9 and Mentang v. Commission on Elections, 10 this Court approved
the assumption of jurisdiction by the COMELEC en banc over petitions for correction of manifest error directly filed with it.
Our decision today in Torres v. COMELEC 11 again gives imprimatur to the exercise by the COMELEC en banc of the power
to decide petition for correction of manifest error.

In any event, petitioner is estopped from raising the issue of jurisdiction of the COMELEC en banc. Not only did he
participate in the proceedings below but he also sought affirmative relief from the COMELEC en banc by filing a Counter-
Protest in which he asked that "entr[ies] in the statement of votes for Precinct Nos. 11, 11-A, 6, 1, 17, 7 and 10, be
properly corrected for the petitioner, to reflect the correct mandate of the electorate of Giporlos, Eastern Samar." 12 It is
certainly not right for a party taking part in proceedings and submitting his case for decision to attack the decision later for
lack of jurisdiction of the tribunal because the decision turns out to be adverse to him. 13

Petitioner next contends that motu proprio the MBC already made a correction of the errors in the Statement of Votes in its
certification dated May 22, 1995, which reads: 14

CERTIFICATION

To whom It May Concern:

This is to certify that the hereunder candidates for Municipal Vice Mayor of Giporlos, Eastern Samar
during the May 8, 1995 National and Local Elections got the number of Votes on the precincts listed
hereunder in tabulation form based in our Canvassing of Votes per Precincts.

Name of PRECINCT NUMBERS

candidate 11 11-A 6 1 17 7 10

GO, Alfredo I. 32 18 65 61 48 37 28

RAMIREZ, Jose C. 18 32 98 52 15 67 13

This certification is issued upon request of the interested party for whatever legal purpose this may serve
him.

Giporlos, Eastern Samar.

May 22, 1995

To begin with, the corrections should be made either by inserting corrections in the Statement of Votes which was
originally prepared and submitted by the MBC, or by preparing an entirely new Statement of Votes incorporating therein
the corrections. 15 The certification issued by the MBC is thus not the proper way to correct manifest errors in the

88
Statement of Votes. More importantly, the corrections should be based on the election returns but here the corrections
appear to have been made by the MBC on the bases of the Certificates of Votes issued. Thus, in its motion for clarification,
the MBC said:

a. The proclamation of Jose C. Ramirez was based on the results of the certificate of canvass and tally of
votes garnered by both petitioner and private respondent which showed Jose C. Ramirez garnering 1,367
as against 1,235 by Alfredo I. Go, or a winning margin of 132 in favor of Jose C. Ramirez;

b. Based on the certificate of votes in Precinct Nos. 11, 11-A, 6, 1, 17, 7, and 10, Alfredo I. Go garnered
only 32, 18, 65, 61, 48, 37 and 28, respectively, and the votes ascribed to the latter shown in the
statement of votes are clear typographical errors and were erroneously copied from the votes garnered
by mayoral candidate Rodito P. Fabillar from the same seven (7) precincts in Giporlos;

c. Because of typographical errors in the statement of votes, Alfredo I. Go balooned (sic) by 280 votes,
such that instead of losing by 132 votes to Jose C. Ramirez, Alfredo I. Go acquired an unwarranted
margin of 148 votes;

d. The recomputation based on the statement of votes alone without including the correct votes on the
Election Returns on the Seven (7) precincts aforesaid will frustrate the will of the people who
unquestionably voted for Jose C. Ramirez by a clear majority of 132 votes;

e. In the preparation of the certificate of canvass and proclamation, only the certificate of votes of each
candidate were considered by reason of the fact it was prepared and signed only on May 11, 1995 or
one after (sic) the proclamation of the winning municipal candidates on May 10, 1995.

Certificates of Votes are issued by Boards of Election Inspectors (BEI) to watchers, pursuant to §215 of the Omnibus
Election Code (OEC). While such certificates are useful for showing tampering, alteration, falsification or any other
irregularity in the preparation of election returns, 16 there is no reason for their use in this case since the integrity of the
election returns is not in question. On the other hand, in the canvass of votes, the MBC is directed to use the election
returns. 17 Accordingly, in revising the Statement of Votes supporting the Certificate of Canvass, the MBC should have used
the election returns from the precincts in question although in fairness to the MBC, it proposed the use of election returns
but the COMELEC en banc rejected the proposal. The Statement of Votes is a tabulation per precinct of votes garnered by
the candidates as reflected in the election returns.

The Statement of Votes is a vital component of the electoral process. It supports the Certificate of Canvass and is the basis
for proclamation. 18 But in this case the Statement of Votes was not even prepared until after the proclamation of the
winning candidate. This is contrary to the Omnibus Election Code, §231 of which provides in part:

xxx xxx xxx

The respective board of canvassers shall prepare a certificate of canvass duly signed and affixed with the
imprint of the thumb of the right hand of each member, supported by a statement of votes received by
each candidate in each polling place and, on the basis thereof, shall proclaim as elected the candidates
who obtained the highest number of votes cast in the province, city, municipality or barangay.

Indeed, it appears from the Comment of the MBC that the MBC prepared its Certificate of Canvass simply on the basis of
improvised tally sheets and that it was only after the termination of the canvass, the proclamation of petitioner Jose C.
Ramirez, and the accomplishment of the Certificate of Canvass of Votes and Proclamation, that its clerk, Rosalia Abenojar,
prepared the Statement of Votes (C.E. Form No. 20-A). In a sworn report, Ms. Abenojar herself stated that she was tired
and drowsy at the time she prepared the Statement of Votes for the mayoralty and vice mayoralty positions. Although this
circumstance may support petitioner's claim that the number of votes credited to private respondent Alfredo I. Go are
actually those cast in Precinct Nos. 11, 11-A, 6, 1, 17, 7, and 10 for mayoralty candidate Rodito Fabillar, it is equally
possible that Go and Fabillar obtained the same number of votes in those precincts. That the clerk who prepared the
Statement of Votes was tired and drowsy does not necessarily mean the entries she made were erroneous. But what is
clear is that the Statement of Votes was not prepared with the care required by its importance. Accordingly, as the Solicitor
General states, what the COMELEC should have ordered the MBC to do was not merely to recompute the number of votes
for the parties, but to revise the Statement of Votes, using the election returns for this purpose. 19 As this Court ruled
in Villaroya v. Commission on Elections: 20

[T]he COMELEC has ample power to see to it that the elections are held in clean and orderly manner and
it may decide all questions affecting the elections and has original jurisdiction on all matters relating to
election returns, including the verification of the number of votes received by opposing candidates in the
election returns as compared to the statement of votes in order to insure that the true will of the people
is known. Such a clerical error in the statement of votes can be ordered corrected by the
COMELEC.(Emphasis added)

Petitioner's final contention that in any event SPC No. 95-198 must be considered rendered moot and academic by reason
of his proclamation and assumption of office is untenable. The short answer to this is that petitioner's proclamation was
null and void and therefore the COMELEC was not barred from inquiring into its nullity.21

89
WHEREFORE, the petition is partially GRANTED by annulling the resolutions dated August 1, 1995 and September 26, 1995
of the Commission on Elections. The COMELEC is instead DIRECTED to reconvene the Municipal Board of Canvassers or, if
this is not feasible, to constitute a new Municipal Board of Canvassers in Giporlos, Eastern Samar and to order it to revise
with deliberate speed the Statement of Votes on the basis of the election returns from all precincts of the Municipality of
Giporlos and thereafter proclaim the winning candidate on the basis thereof.

SO ORDERED.

ARTICLE XXI.
ELECTION CONTESTS

Sec. 249. Jurisdiction of the Commission. - The Commission shall be the sole judge of all contests relating to
the elections, returns, and qualifications of all Members of the Batasang Pambansa, elective regional,
provincial and city officials.
Sec. 250. Election contests for Batasang Pambansa, regional, provincial and city offices. - A sworn petition
contesting the election of any Member of the Batasang Pambansa or any regional, provincial or city official
shall be filed with the Commission by any candidate who has duly filed a certificate of candidacy and has been
voted for the same office, within ten days after the proclamation of the results of the election.
Sec. 251. Election contests for municipal offices. - A sworn petition contesting the election of a municipal
officer shall be filed with the proper regional trial court by any candidate who has duly filed a certificate of
candidacy and has been voted for the same office, within ten days after proclamation of the results of the
election.
Sec. 252. Election contest for barangay offices. - A sworn petition contesting the election of a barangay officer
shall be filed with the proper municipal or metropolitan trial court by any candidate who has duly filed a
certificate of candidacy and has been voted for the same office, within ten days after the proclamation of the
results of the election. The trial court shall decide the election protest within fifteen days after the filing
thereof. The decision of the municipal or metropolitan trial court may be appealed within ten days from receipt
of a copy thereof by the aggrieved party to the regional trial court which shall decide the case within thirty
days from its submission, and whose decisions shall be final.

Sec. 255. Judicial counting of votes in election contest. - Where allegations in a protest or counter-protest
so warrant, or whenever in the opinion of the court the interests of justice so require, it shall immediately
order the book of voters, ballot boxes and their keys, ballots and other documents used in the election be
brought before it and that the ballots be examined and the votes recounted.

Sec. 253. Petition for quo warranto. - Any voter contesting the election of any Member of the Batasang
Pambansa, regional, provincial, or city officer on the ground of ineligibility or of disloyalty to the Republic of
the Philippines shall file a sworn petition for quo warranto with the Commission within ten days after the
proclamation of the results of the election.
Any voter contesting the election of any municipal or barangay officer on the ground of ineligibility or of
disloyalty to the Republic of the Philippines shall file a sworn petition for quo warranto with the regional trial
court or metropolitan or municipal trial court, respectively, within ten days after the proclamation of the
results of the election.

G.R. No. L-10981 April 25, 19581 ANACLETO LUISON, protestant-appellant, vs. FIDEL A. D.
ARCIA, protestee-appellee. BAUTISTA ANGELO, J.:

In the general elections held on November 8, 1955, Anacleto M. Luison and Fidel A. D. Garcia were the only candidates for
mayor of Tubay, Agusan. The certificate of candidacy of Luison was filed by the Nacionalista Party of the locality duly
signed by the chairman and secretary respectively, while the certificate of candidacy of Garcia was filed by the local branch
of the Liberal Party but it was merely signed by one who was a candidate for vice mayor. For this reason, the executive
secretary of the Nationalista Party impugned the sufficiency of the certificate of candidacy filed in behalf of Garcia,
whereupon the Commission on Elections, after making its own investigation, issued Resolution No. 23 declaring Garcia
ineligible to run for the Office. Consequently, the Commission on Elections, after making its own investigation, issued
Resolution No. 23 declaring Garcia ineligible to run for the Office. Consequently, the Commission on Elections who

90
immediately implemented it by striking out the name of Garcia from the list of registered candidates. Said secretary also
relayed the instruction of the Commission on Elections to the board of inspectors of every precinct and the board of
canvassers so that they may be guided accordingly and votes cast for him may not be counted and instead be considered
as stray votes.

At this juncture, Garcia filed an action for prohibition with the Court of First Instance of Agusan against the municipal
secretary of Tubay praying that an order be issued restraining the latter from invalidating his certificate of candidacy as
well as the votes that may be cast for him, which was however dismissed on the ground that said court had no jurisdiction
to review the ruling of the Commission on Elections on the matter. No appeal was taken from this order which became
final. Meantime, Garcia filed a motion for reconsideration of Resolution No. 23 of the Commission on Elections but the
same was denied and no appeal was likewise taken from the ruling of the Commission.

Notwithstanding the adverse ruling of the Commission on Elections, as well as the dismissal of the petition for prohibition
sued out by Garcia, the latter continued with his candidacy and the question of his ineligibility became an issue in the
campaign. And when the time came for the counting and appreciation of the ballots, the board inspectors, in spite of the
adverse ruling of the Commission on Elections, counted all the votes cast for Garcia as valid and credited him with them in
the election returns with the result that he garnered 869 votes as against 675 of his opponent Luison. Consequently, the
municipal board of canvassers proclaimed Garcia as the mayor elect of Tubay, Agusan.

Believing that Garcia is ineligible to hold office, Luison filed a petition of quo warranto in the proper court of first instance
for the purpose of disputing his ineligibility and securing his consequent ouster from office, but the petition was dismissed
for lack of merit on a motion filed by respondent. Luison appealed from the ruling and the case was docketed in the
Supreme Court as G.R. No. L-10916. Luison took one step further. He also filed a protest in the same court on the same
ground that Garcia was ineligible because his certificate of candidacy was declared null and void by the Commission on
Elections.

After the reception of the evidence, the court found for protestee holding that the certificate of candidacy filed by the latter
was in substantial compliance with the law and that the Commission on Elections erred in declaring him legally insufficient.
It therefore dismissed the protest with costs against protestant. Hence the present appeal.

The question whether the certificate of candidacy of the protestee is legally sufficient is now moot it appearing that the
resolution of the Commission on Elections declaring that said certificate was not prepared in accordance with law has
become final for having the protestee failed to appeal from said resolution as required by law. In this connection, it should
be noted that while this appeal was pending consideration in this court, the quo warranto case was passed upon wherein
this Court held that said resolution is now res judicata and is binding upon the protestee (See decision in G.R. No. L-10916,
promulgated on May 20, 1957). It cannot therefore be now disputed that protestee is ineligible to hold the office for which
he was proclaimed.

The issue now to be determined is whether, the protestee being ineligible and protestant having obtained the next highest
number of votes, the latter can be declared entitled to hold the office to be vacated by the former.

Our answer is in the negative. As this Court has held, "The general rule is that the fact a plurality or a majority of the votes
are cast for an ineligible candidate at a popular election does not entitle the candidate receiving the next highest number
of votes to be declared elected. In such case the electors have failed to make a choice and the election is a nullity"
(Llamoso vs. Ferrer, et al., 84 Phil., 490). In a subsequent case, this Court also said that where the winning candidate has
been declared ineligible, the person who obtained second place in the election cannot be declared elected since our law
not only does not contain an express provision authorizing such declaration but apparently seems to prohibit it
(Villar vs. Paraiso, 96 Phil., 659: See also Nuval vs. Guray, 52 Phil., 654 and Topacio vs. Paredes, 23 Phil., 238).

Moreover, a protest to disqualify a protestee on the ground of ineligibility is different from that a protest based on frauds
and irregularities where it may be shown that protestant was the one really elected for having obtained a plurality of the
legal votes. In the first case, while the protestee may be ousted the protestant will not be seated; in the second case, the
protestant may assume office after protestee is unseated. The first case is brought to court by a petition of quo warranto,
while the second by instituting an election protest. Thus, the Supreme Court, in defining these two remedies, said:

All election disputes may be divided into two distinct classes: (1) those which pertain to the casting and counting
of the ballots; and (2) those which pertain to the eligibility of the candidates. If there be cases incapable of being
so classified, they have not been suggested.

. . . If the nature of the evidence upon which the eligibility (qualifications) of a person to hold office must be
decided is considered, it will be seen that such evidence has nothing to do with the manner of casting and
counting the votes. To what purpose would be the examination of registry list and ballots by officers appointed
and paid for that purpose in determining the eligibility of a successful candidate for office? The eligibility of a
person to be elected to a provincial or municipal office depends upon his qualifications as a voter, his residence,
his allegiance to the United States, his age, the absence of disqualifications inflicted by the courts by way of
punishment, etc. That is, these qualifications and disqualifications do not depend upon the conduct of election
inspectors, the illegal trafficking in votes, the method of casting and courting the ballots, or the election returns.
The evidence required to establish such qualifications or disqualifications would not aid in any way in determining
the questions relating to the manner of casting and counting the ballots. E converso, would the examination of
ballots aid in arriving at a decision as to his eligibility. There is nothing in this section to indicate that the court
shall receive or consider evidence as to the personal character or circumstances of candidates.

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 Again, the effect of a decision that a candidate is not entitled to the office because of fraud or irregularities in the
election is quite different from that produced by declaring a person ineligible to hold such an office. In the former
case the court, after an examination of the ballots may find that some other person than the candidate declared
to have received a plurality by the board of canvassers actually received the greater number of votes, in which
case the court issues its mandamus to the board of canvassers to correct the returns accordingly; or it may find
that the manner of holding the election and the returns are so tainted with fraud or illegality that it cannot be
determined who received a plurality of the legally cast ballots. In the latter case, no question as to the
correctness of the returns or the manner of casting and counting the ballots is before the deciding power, and
generally the only result can be that the election fails entirely. In the former, we have a contest in the strict sense
of the word, because opposing parties are striving for supremacy. If it be found that the successful candidate
(according to the board of canvassers) obtained a plurality in a legal manner, and another candidate was the legal
victor, the former must retire in favor of the latter. In the other case, there is not, strictly speaking, a contest, as
the wreath of victory cannot be transferred from an ineligible candidate to any other candidate when the sole
question is the eligibility of the one receiving a plurality of the question legally cast ballots. In the one case the
question is as to who received a plurality of the legally cast ballots; in the other, the question is confined to the
personal character and circumstances of a single individual. (Topacio vs. Paredes, supra.)

Considering the fundamental difference existing between the nature of a petition for quo warranto and that of an election
protest, it may be said that a candidate who files a protest against one who has been proclaimed as having received the
highest number of votes basing his protest cannot disguise his action so as to make his protest a justification to be seated
in office. In other words, he cannot convert an action for quo warranto into an election protest. This is because these two
cases are fundamentally different in nature and in purpose. In quo warranto, "there is not, strictly speaking, a contest, and
the wreath of victory cannot be transferred from an ineligible candidate to any other candidate", while in a protest, "the
question is as to who received a plurality of the legally cast (Topacio vs. Paredes, supra). The present action therefore,
partakes of the nature of quo warranto and as such has no reason to exist. This question is already involved in the other
case (G.R. No. L-10916).

The case of Monsale vs. Nico * (46 Off. Gaz., Supp. No. 11, 211) invoked by protestant is not in point. In that case the
candidate who was declared ineligible was not proclaimed because the votes cast for him were declared nullified and, the
one proclaimed is the candidate who received the next highest number of votes. The trial court found that the protestant
was not ineligible because it considered his certificate of candidacy legally sufficient, and when, the case was brought to
the Supreme Court on appeal the litter merely reversed the ruling of the trial court. In that case there was no direct
pronouncement that the one who received the next highest number of votes may be declared seated. This case cannot be
invoked as precedent. .

Wherefore, the decision appealed is reversed. The Court declares that neither protestee nor protestant has been validly
elected and so none is entitled to the position of mayor of Tubay, Agusan. No pronouncement as to costs.

Paras, C.J., Bengzon, Labrador and Endencia, JJ., concur.

Reyes, A., J., concurs in the result.
Reyes, J.B.L., J. concurs with both the opinions of Justice Bautista and Concepcion.

G.R. No. 87193 June 23, 1989 JUAN GALLANOSA FRIVALDO, petitioner, vs. COMMISSION ON ELECTIONS AND
THE LEAGUE OF MUNICIPALITIES, SORSOGON CHAPTER, HEREIN REPRESENTED BY ITS PRESIDENT,
SALVADOR NEE ESTUYE, respondents. CRUZ, J.:

Petitioner Juan G. Frivaldo was proclaimed governor-elect of the province of Sorsogon on January 22, 1988, and assumed
office in due time. On October 27, 1988, the League of Municipalities, Sorsogon Chapter (hereafter, League), represented
by its President, Salvador Estuye, who was also suing in his personal capacity, filed with the Commission on Elections a
petition for the annulment of Frivaldo; election and proclamation on the ground that he was not a Filipino citizen, having
been naturalized in the United States on January 20, 1983. In his answer dated May 22, 1988, Frivaldo admitted that he
was naturalized in the United States as alleged but pleaded the special and affirmative defenses that he had sought
American citizenship only to protect himself against President Marcos. His naturalization, he said, was "merely forced upon
himself as a means of survival against the unrelenting persecution by the Martial Law Dictator's agents abroad." He added
that he had returned to the Philippines after the EDSA revolution to help in the restoration of democracy. He also argued
that the challenge to his title should be dismissed, being in reality a quo warranto petition that should have been filed
within ten days from his proclamation, in accordance with Section 253 of the Omnibus Election Code. The League,
moreover, was not a proper party because it was not a voter and so could not sue under the said section.

Frivaldo moved for a preliminary hearing on his affirmative defenses but the respondent Commission on Elections decided
instead by its Order of January 20, 1988, to set the case for hearing on the merits. His motion for reconsideration was
denied in another Order dated February 21, 1988. He then came to this Court in a petition for certiorari and prohibition to
ask that the said orders be set aside on the ground that they had been rendered with grave abuse of discretion. Pending
resolution of the petition, we issued a temporary order against the hearing on the merits scheduled by the COMELEC and
at the same time required comments from the respondents.

In their Comment, the private respondents reiterated their assertion that Frivaldo was a naturalized American citizen and
had not reacquired Philippine citizenship on the day of the election on January 18, 1988. He was therefore not qualified to
run for and be elected governor. They also argued that their petition in the Commission on Elections was not really for quo
warranto under Section 253 of the Omnibus Election Code. The ultimate purpose was to prevent Frivaldo from continuing
as governor, his candidacy and election being null and void ab initio because of his alienage. Even if their petition were to
be considered as one for quo warranto, it could not have been filed within ten days from Frivaldo's proclamation because it
was only in September 1988 that they received proof of his naturalization. And assuming that the League itself was not a

92
proper party, Estuye himself, who was suing not only for the League but also in his personal capacity, could nevertheless
institute the suit by himself alone.

Speaking for the public respondent, the Solicitor General supported the contention that Frivaldo was not a citizen of the
Philippines and had not repatriated himself after his naturalization as an American citizen. As an alien, he was disqualified
from public office in the Philippines. His election did not cure this defect because the electorate of Sorsogon could not
amend the Constitution, the Local Government Code, and the Omnibus Election Code. He also joined in the private
respondent's argument that Section 253 of the Omnibus Election Code was not applicable because what the League and
Estuye were seeking was not only the annulment of the proclamation and election of Frivaldo. He agreed that they were
also asking for the termination of Frivaldo's incumbency as governor of Sorsogon on the ground that he was not a Filipino.

In his Reply, Frivaldo insisted that he was a citizen of the Philippines because his naturalization as an American citizen was
not "impressed with voluntariness." In support he cited the Nottebohm Case, [(1955 I.C.J. 4; 49 A.J.I.L. 396 (1955)] where
a German national's naturalization in Liechtenstein was not recognized because it had been obtained for reasons of
convenience only. He said he could not have repatriated himself before the 1988 elections because the Special Committee
on Naturalization created for the purpose by LOI No. 27C had not yet been organized then. His oath in his certificate of
candidacy that he was a natural-born citizen should be a sufficient act of repatriation. Additionally, his active participation
in the 1987 congressional elections had divested him of American citizenship under the laws of the United States, thus
restoring his Philippine citizenship. He ended by reiterating his prayer for the rejection of the move to disqualify him for
being time-barred under Section 253 of the Omnibus Election Code.

Considering the importance and urgency of the question herein raised, the Court has decided to resolve it directly instead
of allowing the normal circuitous route that will after all eventually end with this Court, albeit only after a, long delay. We
cannot permit this delay. Such delay will be inimical to the public interest and the vital principles of public office to be here
applied.

It is true that the Commission on Elections has the primary jurisdiction over this question as the sole judge of all contests
relating to the election, returns and qualifications of the members of the Congress and elective provincial and city officials.
However, the decision on Frivaldo's citizenship has already been made by the COMELEC through its counsel, the Solicitor
General, who categorically claims that Frivaldo is a foreigner. We assume this stance was taken by him after consultation
with the public respondent and with its approval. It therefore represents the decision of the COMELEC itself that we may
now review. Exercising our discretion to interpret the Rules of Court and the Constitution, we shall consider the present
petition as having been filed in accordance with Article IX-A Section 7, of the Constitution, to challenge the aforementioned
Orders of the COMELEC.

The basic question we must resolve is whether or not Juan G. Frivaldo was a citizen of the Philippines at the time of his
election on January 18, 1988, as provincial governor of Sorsogon. All the other issues raised in this petition are merely
secondary to this basic question.

The reason for this inquiry is the provision in Article XI, Section 9, of the Constitution that all public officials and employees
owe the State and the Constitution "allegiance at all times" and the specific requirement in Section 42 of the Local
Government Code that a candidate for local elective office must be inter alia a citizen of the Philippines and a qualified
voter of the constituency where he is running. Section 117 of the Omnibus Election Code provides that a qualified voter
must be, among other qualifications, a citizen of the Philippines, this being an indispensable requirement for suffrage under
Article V, Section 1, of the Constitution.

In the certificate of candidacy he filed on November 19, 1987, Frivaldo described himself as a "natural-born" citizen of the
Philippines, omitting mention of any subsequent loss of such status. The evidence shows, however, that he was naturalized
as a citizen of the United States in 1983 per the following certification from the United States District Court, Northern
District of California, as duly authenticated by Vice Consul Amado P. Cortez of the Philippine Consulate General in San
Francisco, California, U.S.A.

OFFICE OF THE CLERK

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
September 23, 1988
TO WHOM IT MAY CONCERN:
Our records show that JUAN GALLANOSA FRIVALDO, born on October 20, 1915, was naturalized in this
Court on January 20, 1983, and issued Certificate of Naturalization No. 11690178.
Petition No. 280225.
Alien Registration No. A23 079 270.
Very truly yours,

WILLIAM L. WHITTAKER
Clerk
by:
(Sgd.)

ARACELI V. BAREN
Deputy Clerk
This evidence is not denied by the petitioner. In fact, he expressly admitted it in his answer.
Nevertheless, as earlier noted, he claims it was "forced" on him as a measure of protection from the
persecution of the Marcos government through his agents in the United States.

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The Court sees no reason not to believe that the petitioner was one of the enemies of the Marcos
dictatorship. Even so, it cannot agree that as a consequence thereof he was coerced into embracing
American citizenship. His feeble suggestion that his naturalization was not the result of his own free and
voluntary choice is totally unacceptable and must be rejected outright.

There were many other Filipinos in the United States similarly situated as Frivaldo, and some of them
subject to greater risk than he, who did not find it necessary — nor do they claim to have been coerced
— to abandon their cherished status as Filipinos. They did not take the oath of allegiance to the United
States, unlike the petitioner who solemnly declared "on oath, that I absolutely and entirely renounce and
abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty of whom or which
I have heretofore been a subject or citizen," meaning in his case the Republic of the Philippines. The
martyred Ninoy Aquino heads the impressive list of those Filipinos in exile who, unlike the petitioner,
held fast to their Philippine citizenship despite the perils of their resistance to the Marcos regime.

The Nottebohm case cited by the petitioner invoked the international law principle of effective nationality
which is clearly not applicable to the case at bar. This principle is expressed in Article 5 of the Hague
Convention of 1930 on the Conflict of Nationality Laws as follows:

Art. 5. Within a third State a person having more than one nationality shall be treated
as if he had only one. Without prejudice to the application of its law in matters of
personal status and of any convention in force, a third State shall, of the nationalities
which any such person possesses, recognize exclusively in its territory either the
nationality of the country in which he is habitually and principally resident or the
nationality of the country with which in the circumstances he appears to be in fact
most closely connected.

Nottebohm was a German by birth but a resident of Guatemala for 34 years when he applied for and
acquired naturalization in Liechtenstein one month before the outbreak of World War II. Many members
of his family and his business interests were in Germany. In 1943, Guatemala, which had declared war
on Germany, arrested Nottebohm and confiscated all his properties on the ground that he was a German
national. Liechtenstein thereupon filed suit on his behalf, as its citizen, against Guatemala. The
International Court of Justice held Nottebohm to be still a national of Germany, with which he was more
closely connected than with Liechtenstein.

That case is not relevant to the petition before us because it dealt with a conflict between the nationality
laws of two states as decided by a third state. No third state is involved in the case at bar; in fact, even
the United States is not actively claiming Frivaldo as its national. The sole question presented to us is
whether or not Frivaldo is a citizen of the Philippines under our own laws, regardless of other nationality
laws. We can decide this question alone as sovereign of our own territory, conformably to Section 1 of
the said Convention providing that "it is for each State to determine under its law who are its nationals."

It is also worth noting that Nottebohm was invoking his naturalization in Liechtenstein whereas in the
present case Frivaldo is rejecting his naturalization in the United States.

If he really wanted to disavow his American citizenship and reacquire Philippine citizenship, the petitioner
should have done so in accordance with the laws of our country. Under CA No. 63 as amended by CA
No. 473 and PD No. 725, Philippine citizenship may be reacquired by direct act of Congress, by
naturalization, or by repatriation.

While Frivaldo does not invoke either of the first two methods, he nevertheless claims he has reacquired
Philippine citizenship by virtue of a valid repatriation. He claims that by actively participating in the
elections in this country, he automatically forfeited American citizenship under the laws of the United
States. Such laws do not concern us here. The alleged forfeiture is between him and the United States
as his adopted country. It should be obvious that even if he did lose his naturalized American citizenship,
such forfeiture did not and could not have the effect of automatically restoring his citizenship in the
Philippines that he had earlier renounced. At best, what might have happened as a result of the loss of
his naturalized citizenship was that he became a stateless individual.

Frivaldo's contention that he could not have repatriated himself under LOI 270 because the Special
Committee provided for therein had not yet been constituted seems to suggest that the lack of that body
rendered his repatriation unnecessary. That is far-fetched if not specious Such a conclusion would open
the floodgates, as it were. It would allow all Filipinos who have renounced this country to claim back
their abandoned citizenship without formally rejecting their adoptedstate and reaffirming their allegiance
to the Philippines.

It does not appear that Frivaldo has taken these categorical acts. He contends that by simply filing his
certificate of candidacy he had, without more, already effectively recovered Philippine citizenship. But
that is hardly the formal declaration the law envisions — surely, Philippine citizenship previously
disowned is not that cheaply recovered. If the Special Committee had not yet been convened, what that
meant simply was that the petitioner had to wait until this was done, or seek naturalization by legislative
or judicial proceedings.

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 The argument that the petition filed with the Commission on Elections should be dismissed for tardiness
is not well-taken. The herein private respondents are seeking to prevent Frivaldo from continuing to
discharge his office of governor because he is disqualified from doing so as a foreigner. Qualifications for
public office are continuing requirements and must be possessed not only at the time of appointment or
election or assumption of office but during the officer's entire tenure. Once any of the required
qualifications is lost, his title may be seasonably challenged. If, say, a female legislator were to marry a
foreigner during her term and by her act or omission acquires his nationality, would she have a right to
remain in office simply because the challenge to her title may no longer be made within ten days from
her proclamation? It has been established, and not even denied, that the evidence of Frivaldo's
naturalization was discovered only eight months after his proclamation and his title was challenged
shortly thereafter.

This Court will not permit the anomaly of a person sitting as provincial governor in this country while
owing exclusive allegiance to another country. The fact that he was elected by the people of Sorsogon
does not excuse this patent violation of the salutary rule limiting public office and employment only to
the citizens of this country. The qualifications prescribed for elective office cannot be erased by the
electorate alone. The will of the people as expressed through the ballot cannot cure the vice of
ineligibility, especially if they mistakenly believed, as in this case, that the candidate was qualified.
Obviously, this rule requires strict application when the deficiency is lack of citizenship. If a person seeks
to serve in the Republic of the Philippines, he must owe his total loyalty to this country only, abjuring
and renouncing all fealty and fidelity to any other state.

It is true as the petitioner points out that the status of the natural-born citizen is favored by the
Constitution and our laws, which is all the more reason why it should be treasured like a pearl of great
price. But once it is surrendered and renounced, the gift is gone and cannot be lightly restored. This
country of ours, for all its difficulties and limitations, is like a jealous and possessive mother. Once
rejected, it is not quick to welcome back with eager arms its prodigal if repentant children. The returning
renegade must show, by an express and unequivocal act, the renewal of his loyalty and love.

WHEREFORE, the petition is DISMISSED and petitioner JUAN G. FRIVALDO is hereby declared not a
citizen of the Philippines and therefore DISQUALIFIED from serving as Governor of the Province of
Sorsogon. Accordingly, he is ordered to vacate his office and surrender the same to the duly elected
Vice-Governor of the said province once this decision becomes final and executory. The temporary
restraining order dated March 9, 1989, is LIFTED.

SO ORDERED.

G.R. No. 217872

ALLIANCE FOR THE FAMILY FOUNDATION, PHILIPPINES, INC. (ALFI) and ATTY. MARIA CONCEPCION S.
NOCHE, in her own behalf and as President of ALFI, JOSE S. SANDEJAS, ROSIE B. LUISTRO, ELENITA S.A.
SANDEJAS, EMILY R. LAWS, EILEEN Z. ARANETA, SALV ACION C. MONTEIRO, MARIETTA C. GORREZ,
ROLANDO M. BAUTISTA, RUBEN T. UMALI, and MILDRED C. CASTOR , Petitioners
vs.
HON. JANETTE L. GARIN, Secretary-Designate of the Department of Health; NICOLAS B.LUTERO III,
Assistant Secretary of Health, Officer-in-Charge, Food and Drug Administration; and MARIA LOURDES C.
SANTIAGO, Officer in-Charge, Center for Drug Regulation and Research, Respondents

x-----------------------x

G.R. No. 221866

MARIA CONCEPCION S. NOCHE, in her own behalf and as counsel of Petitioners, JOSE S. SANDEJAS, ROSIE
B. LUISTRO, ELENITA S.A. SANDEJAS, EMILY R. LAWS EILEEN Z. ARANETA, SALVACION C. MONTEIRO
MARIETTA C. GORREZ, ROLANDO M. BAUTISTA, RUBEN T. UMALI, and MILDRED C. CASTOR,Petitioners
vs.
HON. JANETTE L. GARIN, Secretary-Designate of the Department of Health; NICOLAS B. LUTERO III,
Assistant Secretary of Health; NICOLAS B. LUTERO III, Assistant Secretary of Health, Officer-in-Charge,
Food and Drug Administration; and MARIA LOURDES C. SANTIAGO, Officer-in-Charge, Center for Drug
Regulation and Research, Respondents.

Subject of this resolution is the Omnibus Motion1 filed by the respondents, thru the Office of the Solicitor General (OSG),
seeking partial reconsideration of the August 24, 2016 Decision (Decision),2 where the Court resolved the: [1] Petition
for Certiorari, Prohibition, Mandamus with Prayer for Issuance of a Temporary Restraining Order and/or Writ of Preliminary
Prohibitory and Mandatory Injunction (G.R. No. 217872); and the [2] Petition for Contempt of Court (G.R. No. 221866), in
the following manner:

WHEREFORE, the case docketed as G.R No. 217872 is hereby REMANDED to the Food and Drugs Administration which is
hereby ordered to observe the basic requirements of due process by conducting a hearing, and allowing the petitioners to
be heard, on the re-certified, procured and administered contraceptive drugs and devices, including Implanon and
lmplanon NXT, and to determine whether they are abortifacients or non-abortifacients.

95
Pursuant to the expanded jurisdiction of this Court and its power to issue rules for the protection and enforcement of
constitutional rights, the Court hereby:

1. DIRECTS the Food and Drug Administration to formulate the rules of procedure in the screening, evaluation
and approval of all contraceptive drugs and devices that will be used under Republic Act No. 10354. The rules of
procedure shall contain the following minimum requirements of due process: (a) publication, notice and hearing,
(b) interested parties shall be allowed to intervene, (c) the standard laid down in the Constitution, as adopted
under Republic Act No. 10354, as to what constitutes allowable contraceptives shall be strictly followed, that is,
those which do not harm or destroy the life of the unborn from conception/fertilization, (d) in weighing the
evidence, all reasonable doubts shall be resolved in favor of the protection and preservation of the right to life of
the unborn from conception/fertilization, and (e) the other requirements of administrative due process, as
summarized in Ang Tibay v. CIR, shall be complied with.

2. DIRECTS the Department of Health in coordination with other concerned agencies to formulate the rules and
regulations or guidelines which will govern the purchase and distribution/ dispensation of the products or supplies
under Section 9 of Republic Act No. 10354 covered by the certification from the Food and Drug Administration
that said product and supply is made available on the condition that it will not be used as an abortifacient subject
to the following minimum due process requirements: (a) publication, notice and hearing, and (b) interested
parties shall be allowed to intervene. The rules and regulations or guidelines shall provide sufficient detail as to
the manner by which said product and supply shall be strictly regulated in order that they will not be used as an
abortifacient and in order to sufficiently safeguard the right to life of the unborn.

3. DIRECTS the Department of Health to generate the complete and correct list of the government's reproductive
health programs and services under Republic Act No. 10354 which will serve as the template for the complete and
correct information standard and, hence, the duty to inform under Section 23(a)(l) of Republic Act No. 10354. The
Department of Health is DIRECTED to distribute copies of this template to all health care service providers
covered by Republic Act No. 10354.

The respondents are hereby also ordered to amend the Implementing Rules and Regulations to conform to the rulings and
guidelines in G.R. No. 204819 and related cases.

The above foregoing directives notwithstanding, within 30 days from receipt of this disposition, the Food and Drugs
Administration should commence to conduct the necessary hearing guided by the cardinal rights of the parties laid down
in CIR v. Ang Tibay.

Pending the resolution of the controversy, the motion to lift the Temporary Restraining Order is DENIED.

With respect to the contempt petition, docketed as G.R No. 221866, it is hereby DENIED for lack of concrete basis.

SO ORDERED.3

Arguments of the Respondents

Part 1: Due Process need not be

complied with as the questioned
acts of the Food and Drug
Administration (FDA) were in
the exercise of its Regulatory Powers

In the subject Omnibus Motion, the respondents argued that their actions should be sustained, even if the petitioners were
not afforded notice and hearing, because the contested acts of registering, re-certifying, procuring, and administering
contraceptive drugs and devices were all done in the exercise of its regulatory power.4 They contended that considering
that the issuance of the certificate of product registration (CPR) by the FDA under Section 7.04, Rule5 of the Implementing
Rules and Regulations of Republic Act (R.A.) No. 10354 (RH-IRR) did not involve the adjudication of the parties' opposing
rights and liabilities through an adversarial proceeding, the due process requirements of notice and hearing need not be
complied with.6

Stated differently, the respondents assert that as long as the act of the FDA is exercised pursuant to its regulatory power,
it need not comply with the due process requirements of notice and hearing.

Corollary to this, the respondents wanted the Court to consider that the FDA had delineated its functions among different
persons and bodies in its organization. Thus, they asked the Court to make a distinction between the "quasi-judicial
powers" exercised by the Director-General of the FDA under Section 2(b)7 of Article 3, Book I of the Implementing
Rules and Regulations (IRR) of R.A. No. 9711,8 and the "regulatory/administrative powers"exercised by the
FDA under Section 2(c )(1) 9 of the same. For the respondents, the distinction given in the above-cited provisions was all
but proof that the issuance of CPR did not require notice and hearing.

After detailing the process by which the FDA's Center for Drug Regulation and Research (CDRR) examined and tested the
contraceptives for non-abortifacience, 10 the respondents stressed that the Decision wreaked havoc on the organizational
structure of the FDA, whose myriad of functions had been carefully delineated in the IRR of R.A. No. 9711. 11 The
respondents, thus, prayed for the lifting of the Temporary Restraining Order (TR0). 12

96
Part 2: The requirements of due
process need not be complied with as
the elements of procedural due
process laid down in Ang Tibay v.
CIR are not applicable

The respondents further claimed in their omnibus motion that the requirements of due process need not be complied with
because the standards of procedural due process laid down in Ang Tibay v. CIR 13 were inapplicable considering that: a)
substantial evidence could not be used as a measure in determining whether a contraceptive drug or device was
abortifacient; 14 b) the courts had neither jurisdiction nor competence to review the findings of the FDA on the non-
abortifacient character of contraceptive drugs or devices; 15 c) the FDA was not bound by the rules of admissibility and
presentation of evidence under the Rules of Court; 16 and d) the findings of the FDA could not be subject of the rule on res
judicata and stare-decisis. 17

The respondents then insisted that Implanon and Implanon NXT were not abortifacients and lamented that the continued
injunction of the Court had hampered the efforts of the FDA to provide for the reproductive health needs of Filipino
women. For the respondents, to require them to afford the parties like the petitioners an opportunity to question their
findings would cause inordinate delay in the distribution of the subject contraceptive drugs and devices which would have
a dire impact on the effective implementation of the RH Law.

The Court's Ruling

After an assiduous assessment of the arguments of the parties, the Court denies the Omnibus Motion, but deems that a
clarification on some points is in order.

Judicial Review

The powers of an administrative body are classified into two fundamental powers: quasi-legislative and quasi-
judicial. Quasi-legislative power, otherwise known as the power of subordinate legislation, has been defined as the
authority delegated by the lawmaking body to the administrative body to adopt rules and regulations intended to carry out
the provisions of law and implement legislative policy. 18 "[A] legislative rule is in the nature of subordinate legislation,
designed to implement a primary legislation by providing the details thereof." 19 The exercise by the administrative body of
its quasi-legislative power through the promulgation of regulations of general application does not, as a rule, require notice
and hearing. The only exception being where the Legislature itself requires it and mandates that the regulation shall be
based on certain facts as determined at an appropriate investigation.20

Quasi-judicial power, on the other hand, is known as the power of the administrative agency to determine questions of
fact to which the legislative policy is to apply, in accordance with the standards laid down by the law itself. 21 As it involves
the exercise of discretion in determining the rights and liabilities of the parties, the proper exercise of quasi-judicial power
requires the concurrence of two elements: one, jurisdiction which must be acquired by the administrative body
and two, the observance of the requirements of due process, that is, the right to notice and hearing.22

On the argument that the certification proceedings were conducted by the FDA in the exercise of its "regulatory powers"
and, therefore, beyond judicial review, the Court holds that it has the power to review all acts and decisions where there is
a commission of grave abuse of discretion. No less than the Constitution decrees that the Court must exercise its duty to
ensure that no grave abuse of discretion amounting to lack or excess of jurisdiction is committed by any branch or
instrumentality of the Government. Such is committed when there is a violation of the constitutional mandate that "no
person is deprived of life, liberty, and property without due process of law." The Court's power cannot be curtailed by the
FDA's invocation of its regulatory power.

In so arguing, the respondents cited Atty. Carlo L. Cruz in his book, Philippine Administrative Law.

Lest there be any inaccuracy, the relevant portions of the book cited by the respondents are hereby quoted as follows:

xxx.

B. The Quasi-Judicial Power

xxx

2. Determinative Powers

To better enable the administrative body to exercise its quasi judicial authority, it is also vested with what is known
as determinative powers and functions.

Professor Freund classifies them generally into the enabling powers and the directing powers. The latter includes
the dispensing, the examining, and the summary powers.

The enabling vowers are those that permit the doing of an act which the law undertakes to regulate and
which would be unlawful with government approval. The most common example is the issuance of licenses to

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engage in a particular business or occupation, like the operation of a liquor store or restaurant. x x x. 23 [Emphases and
underscoring supplied]

From the above, two things are apparent: one, the "enabling powers" cover "regulatory powers" as defined by the
respondents; and two, they refer to a subcategory of a quasi-judicial power which, as explained in the Decision, requires
the compliance with the twin requirements of notice and hearing. Nowhere from the above-quoted texts can it be inferred
that the exercise of "regulatory power" places an administrative agency beyond the reach of judicial review. When there is
grave abuse of discretion, such as denying a party of his constitutional right to due process, the Court can come in and
exercise its power of judicial review. It can review the challenged acts, whether exercised by the FDA in its ministerial,
quasi-judicial or regulatory power. In the past, the Court exercised its power of judicial review over acts and decisions of
agencies exercising their regulatory powers, such as DPWH, 24 TRB, 25 NEA, 26and the SEC,27 among others. In Diocese of
Bacolod v. Commission on Elections,28 the Court properly exercised its power of judicial review over a Comelec resolution
issued in the exercise of its regulatory power.

Clearly, the argument of the FDA is flawed.

Petitioners were Denied their

Right to Due Process

Due process of law has two aspects: substantive and procedural. In order that a particular act may not be impugned as
violative of the due process clause, there must be compliance with both the substantive and the procedural requirements
thereof. 29 Substantive due process refers to the intrinsic validity of a law that interferes with the rights of a person to his
property.30 Procedural due process, on the other hand, means compliance with the procedures or steps, even periods,
prescribed by the statute, in conformity with the standard of fair play and without arbitrariness on the part of those who
are called upon to administer it.31

The undisputed fact is that the petitioners were deprived of their constitutional right to due process of law.

As expounded by the Court, what it found to be primarily deplorable is the failure of the respondents to act upon, much
less address, the various oppositions filed by the petitioners against the product registration, recertification, procurement,
and distribution of the questioned contraceptive drugs and devices. Instead of addressing the petitioners' assertion that
the questioned contraceptive drugs and devices fell within the definition of an "abortifacient" under Section 4(a) of the RH
Law because of their "secondary mechanism of action which induces abortion or destruction of the fetus inside the
mother's womb or the prevention of the fertilized ovum to reach and be implanted in the mother's womb,"32 the
respondents chose to ignore them and proceeded with the registration, recertification, procurement, and distribution of
several contraceptive drugs and devices.

A cursory reading of the subject Omnibus Motion shows that the respondents proffer no cogent explanation as to why they
did not act on the petitioners' opposition. As stated by the Court in the Decision, rather than provide concrete action to
meet the petitioners' opposition, the respondents simply relied on their challenge questioning the propriety of the subject
petition on technical and procedural grounds. 33 The Court, thus, finds the subject motion to be simply a rehash of the
earlier arguments presented before, with the respondents still harping on the peculiarity of the FDA's functions to exempt
it from compliance with the constitutional mandate that "no person shall be deprived oflife, liberty and property without
due process of law."

The law and the rules demand

compliance with due process
requirements

A reading of the various provisions, cited by the respondents in support of their assertion that due process need not be
complied with in the approval of contraceptive drugs or devices, all the more reinforces the Court's conclusion that the FDA
did fail to afford the petitioners a genuine opportunity to be heard.

As outlined by the respondents themselves, the steps by which the FDA approves contraceptive drugs or devices, demand
compliance with the requirements of due process viz:

Step 1. Identify contraceptive products in the database. Create another database containing the following details of
contraceptive products: generic name, dosage strength and form, brand name (if any), registration number, manufacturer,
MAH, and the period of validity of the CPR.

Step 2. Identify contraceptive products which are classified as essential medicines in the Philippine Drug Formulary.

Step 3. Retrieve the contraceptive product's file and the CPR duplicate of all registered contraceptive products. Create a
database of the contraceptive product's history, including its initial, renewal, amendment, and/or variation applications.

Step 4. Conduct a preliminary review of the following:

a. general physiology of female reproductive system, including hormones involved, female reproductive cycle, and
conditions of the female reproductive system during pregnancy.

b. classification of hormonal contraceptives;

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 c. regulatory status of the products in benchmark countries; and

d. mechanism of action of hormonal contraceptives based on reputable journals, meta-analyses, systemic reviews,
evaluation of regulatory authorities in other countries, textbooks, among others.

Step 5. Issue a notice to all concerned MAHs, requiring them to submit scientific evidence that their product
is non-abortifacient, as defined in the RH Law and Imbong.

Step 6. Post a list of contraceptive products which were applied for re-certification for public comments in
the FDA website.

Step 7. Evaluate contraceptive products for re-certification.

A. Part I (Review of Chemistry, Manufacture and Controls)
1. Unit Dose and Finished Product Formulation
2. Technical Finished Product Specifications
3. Certificate of Analysis
B. Part II (Evaluation of Whether the Contraceptive Product is Abortifacient)
1. Evaluation of the scientific evidence submitted by the applicant and the public.
2. Review and evaluation of extraneous evidence, e.g., scientific journals, meta-analyses, etc.
Step 8. Assess and review the documentary requirements submitted by the applicant. Technical reviewers considered
scientific evidence such as meta-analyses, systemic reviews, national and clinical practice guidelines and recommendations
of international medical organizations submitted by the companies, organizations and individuals, to be part of the
review.34 [Emphases and Underlining supplied]

The Court notes that the above-outlined procedure is deficient insofar as it only allows public comments to cases of re-
certification. It fails to allow the public to comment in cases where a reproductive drug or device is being subject to the
certification process for the first time. This is clearly in contravention of the mandate of the Court in lmbong that
the IRR should be amended to conform to it.

More importantly, the Court notes that Step 5 requires the FDA to issue a notice to all concerned MAHs and require them
to submit scientific evidence that their product is non-abortifacient; and that Step 6 requires the posting of the list of
contraceptive products which were applied for re-certification for public comments in the FDA website.

If an opposition or adverse comment is filed on the ground that the drug or devise has abortifacient
features or violative of the RH Law, based on the pronouncements of the Court in Im bong or any other law or rule, the
FDA is duty-bound to take into account and consider the basis of the opposition.

To conclude that product registration, recertification, procurement, and distribution of the questioned contraceptive drugs
and devices by the FDA in the exercise of its regulatory power need not comply with the requirements of due process
would render the issuance of notices to concerned MAHs and the posting of a list of contraceptives for public comment a
meaningless exercise. Concerned MAHs and the public in general will be deprived of any significant participation if what
they will submit will not be considered.

Section 7.04, Rule 7 of the IRR of the RH Law (RH-IRR),35 relied upon by the respondents in support of their
claims, expressly allows the consideration of conflicting evidence, such as that supplied by the petitioners in
support of their opposition to the approval of certain contraceptive drugs and devices. In fact, the said provision mandates
that the FDA utilize the "best evidence available" to ensure that no bortifacient is approved as a family planning drug or
device. It bears mentioning that the same provision even allows an independent evidence review group (ERG) to ensure
that evidence for or against the certification of a contraceptive drug or device is duly considered.

Structure of the FDA

As earlier mentioned, the respondents argue that the Decision "wreaked havoc on the organizational structure of the FDA,
whose myriad of functions have been carefully delineated under R.A. No. 9711 IRR."36 Citing Section 7.04, Rule 7 of the
RH-IRR, the FDA insists that the function it exercises in certifying family planning supplies is in the exercise of
its regulatory power, which cannot be the subject of judicial review, and that it is the Director-General of the
FDA who exercises quasi-judicial powers, citing Section 2(b) of Article 3, Book I of the RH-IRR.37

The FDA wants the Court to consider that, as a body, it has a distinct and separate personality from the Director-General,
who exercises quasi-judicial power. The Court cannot accommodate the position of the respondents. Section 6(a) of R.A.
No. 3720, as amended by Section 7 of R.A. No. 9711,38 provides that "(a) The FDA shall be headed by a director-
general with the rank of undersecretary, xxx." How can the head be separated from the body?

For the record, Section 4 of R.A. No. 3720, as amended by Section 5 of R.A. No. 9711, also recognizes compliance with the
requirements of due process, although the proceedings are not adversarial. Thus:

Section 5. Section 4 of Republic Act No. 3720, as amended, is hereby further amended to read as follows:

"SEC. 4. To carry out the provisions of this Act, there is hereby created an office to be called the Food and Drug
Administration (FDA) in the Department of Health (DOH). Said Administration shall be under the Office of the Secretary
and shall have the following functions, powers and duties:

99
"(a) To administer the effective implementation of this Act and of the rules and regulations issued pursuant to the same;
"(b) To assume primary jurisdiction in the collection of samples of health products;
"(c) To analyze and inspect health products in connection with the implementation of this Act;
"(d) To establish analytical data to serve as basis for the preparation of health products standards, and to recommend
standards of identity, purity, safety, efficacy, quality and fill of container;
"(e) To issue certificates of compliance with technical requirements to serve as basis for the issuance of appropriate
authorization and spot-check for compliance with regulations regarding operation of manufacturers, importers, exporters,
distributors, wholesalers, drug outlets, and other establishments and facilities of health products, as determined by the
FDA;
"xxx
"(h) To conduct appropriate tests on all applicable health products prior to the issuance of appropriate authorizations to
ensure safety, efficacy, purity, and quality;
"(i) To require all manufacturers, traders, distributors, importers, exporters, wholesalers, retailers, consumers, and non-
consumer users of health products to report to the FDA any incident that reasonably indicates that said product has caused
or contributed to the death, serious illness or serious injury to a consumer, a patient, or any person;
"G) To issue cease and desist orders motu propio or upon verified com plaint for health products, whether or not
registered with the FDA Provided, That for registered health products, the cease and desist order is valid for thirty (30)
days and may be extended for sixty (60) days only after due process has been observed;
"(k) After due process, to order the ban, recall, and/or withdrawal of any health product found to have caused the
death, serious illness or serious injury to a consumer or patient, or is found to be imminently injurious, unsafe, dangerous,
or grossly deceptive, and to require all concerned to implement the risk management plan which is a requirement for the
issuance of the appropriate authorization;
"(l) To strengthen the post market surveillance system in monitoring health products as defined in this Act and incidents of
adverse events involving such products;
"(m) To develop and issue standards and appropriate authorizations that would cover establishments, facilities and health
products;
"(n) To conduct, supervise, monitor and audit research studies on health and safety issues of health products undertaken
by entities duly approved by the FDA;
"(o) To prescribe standards, guidelines, and regulations with respect to information, advertisements and other marketing
instruments and promotion, sponsorship, and other marketing activities about the health products as covered in this Act;
"(p) To maintain bonded warehouses and/or establish the same, whenever necessary or appropriate, as determined by the
director-general for confiscated goods in strategic areas of the country especially at major ports of entry; and
"(q) To exercise such other powers and perform such other functions as may be necessary to carry out its duties and
responsibilities under this Act. [Emphases supplied]

The Cardinal Rights of Parties in

Administrative Proceedings as
laid down in Ang Tibay v. CIR

In Ang Tibay v. CJR,39 the Court laid down the cardinal rights of parties in administrative proceedings, as follows:
1) The right to a hearing, which includes the right to present one's case and submit evidence in support thereof;
2) The tribunal must consider the evidence presented;
3) The decision must have something to support itself;
4) The evidence must be substantial;
5) The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and
disclosed to the parties affected;
6) The tribunal or body or any of its judges must act on its or his own independent consideration of the law and facts of
the controversy and not simply accept the views of a subordinate in arriving at a decision; and
7) The board or body should, in all controversial questions, render its decision in such a manner that the parties to the
proceeding can know the various issues involved, and the reason for the decision rendered. 40

In the Decision, the Court found that the FDA certified, procured and administered contraceptive drugs and devices,
without the observance of the basic tenets of due process, that is, without notice and without public hearing. It appeared
that, other than the notice inviting stakeholders to apply for certification/recertification of their reproductive health
products, there was no showing that the respondents considered the opposition of the petitioners. Thus, the Court wrote:

Rather than provide concrete evidence to meet the petitioners' opposition, the respondents simply relied on their challenge
questioning the propriety of the subject petition on technical and procedural grounds. The Court notes that even the letters
submitted by the petitioners to the FDA and the DOH seeking information on the actions taken by the agencies regarding
their opposition were left unanswered as if they did not exist at all. The mere fact that the RH Law was declared as not
unconstitutional does not permit the respondents to run roughshod over the constitutional rights, substantive and
procedural, of the petitioners.

Indeed, although the law tasks the FDA as the primary agency to determine whether a contraceptive drug or certain device
has no abortifacient effects, its findings and conclusion should be allowed to be questioned and those who oppose the
same must be given a genuine opportunity to be heard in their stance. After all, under Section 4(k) of R.A. No. 3720, as
amended by R.A. No. 9711, the FDA is mandated to order the ban, recall and/ or withdrawal of any health product found
to have caused death, serious illness or serious injury to a consumer or patient, or found to be imminently injurious,
unsafe, dangerous, or grossly deceptive, after due process.

Due to the failure of the respondents to observe and comply with the basic requirements of due process, the Court is of
the view that the certifications/re-certifications and the distribution of the questioned contraceptive drugs by the
respondents should be struck down as violative of the constitutional right to due process.

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Verily, it is a cardinal precept that where there is a violation of basic constitutional rights, the courts are ousted from their
jurisdiction. The violation of a party's right to due process raises a serious jurisdictional issue which cannot be glossed over
or disregarded at will. Where the denial of the fundamental right to due process is apparent, a decision rendered in
disregard of that right is void for lack of jurisdiction. This rule is equally true in quasi-judicial and administrative
proceedings, for the constitutional guarantee that no man shall be deprived of life, liberty, or property without due process
is unqualified by the type of proceedings (whether judicial or administrative) where he stands to lose the same. 41

The Court stands by that finding and, accordingly, reiterates its order of remand of the case to the FDA.

Procedure in the FDA; No Trial-Type Hearing

The Court is of the view that the FDA need not conduct a trial-type hearing. Indeed, due process does not require the
conduct of a trial-type hearing to satisfy its requirements. All that the Constitution requires is that the FDA afford the
people their right to due process of law and decide on the applications submitted by MAHs after affording the oppositors
like the petitioners a genuine opportunity to present their science-based evidence. As earlier pointed out, this the FDA
failed to do. It simply ignored the opposition of the petitioners. In the case of Perez, et al. v. Philippine Telegraph and
Telephone Company, et al., 42 it was stated that:

A formal trial-type hearing is not even essential to due process. It is enough that the parties are given a fair and
reasonable opportunity to explain their respective sides of the controversy and to present supporting evidence on which a
fair decision can be based.

In the fairly recent case of Vivo v. Pagcor,43 the Court explained:

The observance of fairness in the conduct of any investigation is at the very heart of procedural due process. The essence
of due process is to be heard, and, as applied to administrative proceedings, this means a fair and reasonable opportunity
to explain one's side, or an opportunity to seek a reconsideration of the action or ruling complained of. Administrative
due process cannot be fully equated with due process in its strict judicial sense, for in the former a formal or
trial-type hearing is not always necessary, and technical rules of procedure are not strictly applied. Ledesma v. Court
of Appeals elaborates on the well-established meaning of due process in administrative proceedings in this wise:

x x x Due process, as a constitutional precept, does not always and in all situations require a trial-type proceeding. Due
process is satisfied when a person is notified of the charge against him and given an opportunity to explain or defend
himself. In administrative proceedings, the filing of charges and giving reasonable opportunity for the person so charged to
answer the accusations against him constitute the minimum requirements of due process. The essence of due process is
simply to be heard, or as applied to administrative proceedings, an opportunity to explain one's side, or an opportunity to
seek a reconsideration of the action or ruling complained of. [Emphasis supplied; citations omitted]

Best Evidence Available

Section 5, Rule 133 of the Rules of Court provides:

Section 5. In all cases filed before administrative or quasi-judicialbodies, a fact may be deemed established if it is
supported by substantialevidence, or the amount of relevant evidence which a reasonable mind might accept as
adequate to justify a conclusion.

As applied to certification proceedings at the FDA, "substantial evidence" refers to the best scientific evidence
available,44 "including but not limited to: meta analyses, systematic reviews, national clinical practice guidelines where
available, and recommendations of international medical organizations," needed to support a conclusion whether a
contraceptive drug or device is an abortifacient or not. The FDA need not be bound or limited by the evidence adduced by
the parties, but it can conduct its own search for related scientific data. It can also consult other technical scientific experts
known in their fields. It is also not bound by the principle of stare decisis or res judicata, but may update itself and cancel
certifications motu proprio when new contrary scientific findings become available or there arise manifest risks which have
not been earlier predicted.

On the Competence of the Court

to review the Findings of the FDA

The fact that any appeal to the courts will involve scientific matters will neither place the actions of the respondents
beyond the need to comply with the requirements of Ang Tibay nor place the actions of the FDA in certification
proceedings beyond judicial review.

It should be pointed out that nowhere in Batas Pambansa Blg. 129, as amended, are the courts ousted of their jurisdiction
whenever the issues involve questions of scientific nature. A court is not considered incompetent either in reviewing the
findings of the FDA simply because it will be weighing the scientific evidence presented by both the FDA and its oppositors
in determining whether the contraceptive drug or device has complied with the requirements of the law.

Although the FDA is not strictly bound by the technical rules on evidence, as stated in the Rules of Court, or it cannot be
bound by the principle of stare decisis or res judicata, it is not excused from complying with the requirements of due
process. To reiterate for emphasis, due process does not require that the FDA conduct trial-type hearing to satisfy its
requirements. All that the Constitution requires is that the FDA afford the people their right to due process of law and

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decide on the applications submitted by the MAHs after affording the oppositors, like the petitioners, a genuine opportunity
to present their sciencebased evidence.

The Appellate Procedure;

Appeal to the Office of the President

Incidentally, Section 32 of R.A. No. 3720 and Section 9 of Executive Order (E.O.) No. 247 provide that any decision by the
FDA would then be appealable to the Secretary of Health, whose decision, in tum, may be appealed to the Office of the
President (OP). Thus:

Sec. 32. The orders, rulings or decisions of the FDA shall be appealable to the Secretary of Health. - An appeal
shall be deemed perfected upon filing of the notice of appeal and posting of the corresponding appeal bond.

An appeal shall not stay the decision appealed from unless an order from the Secretary of Health is issued to stay the
execution thereof.

Sec. 9. Appeals. - Decisions of the Secretary (DENR, DA, DOH or DOST) may be appealed to the Office of the
President. Recourse to the courts shall be allowed after exhaustion of all administrative remedies.

In view thereof, the Court should modify that part of the Decision which allows direct appeal of the FDA decision to the
Court of Appeals.1âwphi1 As stated in the said decision, the FDA decision need not be appealed to the Secretary of Health
because she herself is a party herein. Considering that the Executive

Secretary is not a party herein, the appeal should be to the OP as provided in Section 9.

On the Prayer to Lift the TRO

The respondents lament that the assailed decision undermines the functions of the FDA as the specialized agency tasked to
determine whether a contraceptive drug or device is safe, effective and non-abortifacient. They also claim that the assailed
decision requiring notice and hearing would unduly delay the issuance of CPR thereby affecting public access to State-
funded contraceptives. Finally, in a veritable attempt to sow panic, the respondents claim that the TRO issued by the Court
would result in "a nationwide stockout of family planning supplies in accredited public health facilities and the commercial
market. "45

On this score, it should be clarified that the Decision simply enjoined the respondents from registering, recertifying,
procuring, and administering only those contraceptive drugs and devices which were the subjects of the petitioners'
opposition, specifically Implanon and Implanon NXT. It never meant to enjoin the processing of the entire gamut of family
planning supplies that have been declared as unquestionably non-abortifacient. Moreover, the injunction issued by the
Court was only subject to the condition that the respondents afford the petitioners a genuine opportunity to their right to
due process.

As the Decision explained, the Court cannot lift the TRO prior to the summary hearing to be conducted by the FDA. To do
so would render the summary hearing an exercise in futility. Specifically, the respondents would want the Court to consider
their argument that Implanon and Implanon NXT have no abortifacient effects. According to them, "the FDA tested these
devices for safety, efficacy, purity, quality, and non-abortiveness prior to the issuance of certificates of registration and
recertification, and after the promulgation of Imbong." 46 The Court, however, cannot make such determination or
pronouncement at this time. To grant its prayer to lift the TRO would be premature and presumptuous. Any
declaration by the Court at this time would have no basis because the FDA, which has the mandate and expertise on the
matter, has to first resolve the controversy pending before its office.

This Court also explained in the Decision that the issuance of the TRO did not mean that the FDA should stop fulfilling its
mandate to test, analyze, scrutinize, and inspect other drugs and devices. Thus:

Nothing in this resolution, however, should be construed as restraining or stopping the FDA from carrying on its mandate
and duty to test, analyze, scrutinize, and inspect drugs and devices. What are being enjoined are the grant of
certifications/re-certifications of contraceptive drugs without affording the petitioners due process, and the distribution and
administration of the questioned contraceptive drugs and devices including Implanon and Implanon NXT until they are
determined to be safe and non-abortifacient.47

On Delay

The respondents claim that this judicial review of the administrative decision of the FDA in certifying and recertifying drugs
has caused much delay in the distribution of the subject drugs with a dire impact on the effective implementation of the
RH Law.

In this regard, the respondents have only themselves to blame. Instead of complying with the orders of the Court as stated
in the Decision to conduct a summary hearing, the respondents have returned to this Court, asking the Court to reconsider
the said decision claiming that it has wreaked havoc on the organizational structure of the FDA.

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Had the FDA immediately conducted a summary hearing, by this time it would have finished it and resolved the opposition
of the petitioners.1âwphi1 Note that there was already a finding by the FDA, which was its basis in registering, certifying
and recertifying the questioned drugs and devices. The pharmaceutical companies or the MAHs need not present the same
evidence it earlier adduced to convince the FDA unless they want to present additional evidence to fortify their positions.
The only entities that would present evidence would be the petitioners to make their point by proving with relevant
scientific evidence that the contraceptives have abortifacient effects. Thereafter, the FDA can resolve the controversy.

Indeed, in addition to guaranteeing that no person shall be deprived of life, liberty and property without due process of
law,48 the Constitution commands that "all persons shall have the right to a speedy disposition of their cases before all
judicial, quasi-judicial and administrative bodies."49

WHEREFORE, the August 24, 2016 Decision is MODIFIED. Accordingly, the Food and Drug Administration is ordered to
consider the oppositions filed by the petitioners with respect to the listed drugs, including Implanon and Implanon NXT,
based on the standards of the Reproductive Health Law, as construed in lmbong v. Ochoa, and to decide the case within
sixty (60) days from the date it will be deemed submitted for resolution.

After compliance with due process and upon promulgation of the decision of the Food and Drug Administration, the
Temporary Restraining Order would be deemed lifted if the questioned drugs and devices are found not abortifacients.

After the final resolution by the Food and Drug Administration, any appeal should be to the Office of the President
pursuant to Section 9 of E.O. No. 247.

As ordered in the August 24, 2016 Decision, the Food and Drug Administration is directed to amend the Implementing
Rules and Regulations of R.A. No. 10354 so that it would be strictly compliant with the mandates of the Court in lmbong v.
Ochoa.

SO ORDERED.

G.R. No. 209331, April 24, 2015 DEPARTMENT OF FINANCE, REPRESENTED BY HON. CESAR V. PURISIMA IN
HIS OFFICIAL CAPACITY AS SECRETARY, AND THE BUREAU OF CUSTOMS, REPRESENTED BY HON. ROZZANO
RUFINO B. BIAZON, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF CUSTOMS, Petitioners, v. HON.
MARINO M. DELA CRUZ, JR., IN HIS CAPACITY AS EXECUTIVE JUDGE, REGIONAL TRIAL COURT, MANILA,
HON. FELICITAS O. LARON-CACANINDIN, IN HER CAPACITY AS PRESIDING JUDGE, REGIONAL TRIAL
COURT, MANILA, BRANCH 17, RONNIE C. SILVESTRE, EDWARD P. DELA CUESTA, ROGEL C. GATCHALIAN,
IMELDA D.CRUZ, LILIBETH S. SANDAG, RAYMOND P. VENTURA, MA. LIZA S. TORRES, ARNEL C. ALCARAZ,
MA. LOURDES V. MANGAOANG, FRANCIS AGUSTIN Y. ERPE, CARLOS T. SO, MARIETTA D. ZAMORANOS,
CARMELITA M. TALUSAN,1AREFILES H. CARREON,2 AND ROMALINO G. VALDEZ, Respondents. CARPIO, J.:

The Case

Petitioners assail the Order dated 4 October 20133 issued by Judge Felicitas O. Laron-Cacanindin (Judge Laron-Cacanindin)
of the Regional Trial Court of Manila, Branch 17 (RTC Branch 17), in Civil Case No. 13-130820. The Order extended the 72-
hour Temporary Restraining Order (TRO) issued by Executive Judge Marino M. Dela Cruz, Jr. (Executive Judge Dela Cruz)
in favor of respondents Silvestre, et al.
4 to 20 days or until 21 October 2013 without need of posting bond.

The Antecedent Facts

The case stemmed from the issuance of Executive Order No. 140 (EO 140) on 2 September 2013, which created the
Customs Policy Research Office (CPRO) in the Department of Finance (DOF). EO 140 states that the CPRO "shall be
responsible for reviewing the customs administration policies, rules and procedures, and thereafter providing sound
recommendations for the improvement of the same." Section 3 of EO 140 provides that "CPRO shall be composed of its
organic personnel, as approved by the Department of Budget and Management (DBM) upon recommendation of the DOF
Secretary, augmented and reinforced by DOF and BOC personnel as well as those detailed or seconded from other
agencies, whether attached to the DOF or not. x x x." Section 9 of EO 140 states that it shall "take effect immediately upon
publication in two (2) newspapers of general circulation." EO 140 was published in Manila Bulletin and Philippine Star on 17
September 2013. On the same day of the publication of EO 140, Bureau of Customs (BOC) Commissioner Rozzano Rufino
B. Biazon (Commissioner Biazon) issued Customs Personnel Order No. B-189-2013 (CPO 189-2013) detailing 27 BOC
personnel holding the positions of Collector of Customs V and VI, including respondents in this case, to CPRO "effective
immediately and valid until sooner revoked." CPO 189-2013 was approved by DOF Secretary Cesar V. Purisima (Secretary
Purisima). On 30 September 2013, respondents filed an action for Declaratory Relief with Application for Temporary
Restraining Order and/or Writ of Preliminary Injunction before the Regional Trial Court (RTC) of Manila. On 1 October
2013, Executive Judge Dela Cruz issued a TRO for a period of 72 hours enjoining petitioners or any person acting for and
in their behalf from implementing CPO 189-2013. Thereafter, the case was raffled to the sala of Judge Laron-Cacanindin.
In the assailed Order of 4 October 2013, Judge Laron-Cacanindin extended Executive Judge Dela Cruz's 72-hour TRO for
20 days or until 21 October 2013. She then set the hearing for the issuance of a preliminary injunction on 18 October
2013. On 21 October 2013, petitioners filed a Petition for Certiorari and Prohibition before this Court, with prayer for the
issuance of a TRO or a writ of preliminary mandatory injunction. Petitioners alleged that the case involves personnel action
affecting public officers which is under the exclusive jurisdiction of the Civil Service Commission (CSC). Petitioners also

103
alleged that respondents failed to exhaust all administrative remedies available to them before filing the petition before the
RTC. Petitioners also alleged that CPO 189-2013 is an internal personnel order with application that is limited to and only
within BOC and as such, it cannot be the subject of an action for declaratory relief. In their Comment, respondents alleged
that the case involves the validity and constitutionality of CPO 189-2013, and thus, it is beyond the jurisdiction of the CSC.
Respondents further alleged that EO 140 violated Article 2 of the Civil Code when it became effective immediately after its
publication. In their Reply, petitioners alleged that respondents only assailed the validity of EO 140 to justify their filing of
an action for declaratory relief. As regards its effectivity, petitioners alleged that EO 140 states that it shall "take effect
immediately upon publication in two (2) newspapers of general circulation." In an Order dated 21 October 2013, Judge
Laron-Cacanindin denied respondents' application for the issuance of a writ of preliminary injunction. In an Order dated 5
November 2013, Judge Laron-Cacanindin inhibited herself from further hearing the case.

The Issues

The issues for determination by this Court are the following:

1. 1. Whether the RTC has jurisdiction over the action for declaratory relief filed by respondents;
2. 2. Whether respondents failed to exhaust administrative remedies in filing the action before the RTC;
3. 3. Whether EO 140 violated Article 2 of the Civil Code when it became effective immediately after its publication;
and
4. 4. Whether CPO 189-2013 was validly issued.

The Ruling of this Court

Jurisdiction over the Petition

The CSC has jurisdiction over all employees of government branches, subdivisions, instrumentalities, and agencies,
including government-owned or controlled corporations with original charters.5 The CSC is the sole arbiter of controversies
relating to the civil service.6 The rule is that disciplinary cases and cases involving personnel actions, including
"appointment through certification, promotion, transfer, reinstatement, reemployment, detail, reassignment, demotion, and
separation," are within the exclusive jurisdiction of the CSC.7 This rule is embodied in Section 1, Rule V of the Omnibus
Rules Implementing Book V of Executive Order No. 292 and Other Pertinent Civil Service Laws (Omnibus Rules) which
states:
SECTION 1.x x x. As used in these Rules, any action denoting movement or progress of personnel in the civil service shall
be known as personnel action. Such action shall include promotion, transfer, reinstatement, reemployment, detail,
secondment, reassignment, demotion and separation, x x x.

Under Section 8, Rule VII of the Omnibus Rules, "[a] detail is the movement of an employee from one department or
agency which is temporary in nature, which does not involve a reduction in rank, status or salary and does not require the
issuance of another appointment." CPO 189-2013 is an order detailing personnel from the BOC to CPRO under the DOF. A
reading of the petition filed before the RTC shows that respondents were questioning their mass detail and reassignment
to CPRO. According to respondents, their detail was carried out in bad faith and was meant to remove them from their
permanent positions in the BOC. The action appears to be a personnel action under the jurisdiction of the CSC. However,
the petition went beyond questioning the detail of respondents. Respondents further assailed the validity and
constitutionality of CPO 189-2013. Respondents alleged that CPO 189-2013 was issued even before EC) 140, pursuant to
which CPO 189-2013 was issued, became effective. Respondents alleged that CPO 189-2013 was issued to beat the
deadline of the Commission on Elections' ban on personnel movement from 28 September 2013 to 20 October 2013 due to
the scheduled barangay elections. When respondents raised the issue of validity and constitutionality of CPO 189-2013, the
issue took the case beyond the scope of the CSC's jurisdiction because the matter is no longer limited to personnel action.
Thus, the RTC did not abuse its discretion in taking cognizance of the action.

Failure to Exhaust Administrative Remedies

Petitioners allege that respondents failed to exhaust their administrative remedies before filing the case with the RTC. The
doctrine of exhaustion of administrative remedies allows administrative agencies to carry out their functions and discharge
their responsibilities within the specialized areas of their respective competence. 8 The doctrine entails lesser expenses and
provides for the speedier resolution of controversies.9

Therefore, direct recourse to the trial court, when administrative remedies are available, is a ground for dismissal of the
action. The doctrine, however, is not without exceptions. Among the exceptions are: (1) where there is estoppel on the
part of the party invoking the doctrine; (2) where the challenged administrative act is patently illegal, amounting to lack of
jurisdiction; (3) where there is unreasonable delay or official inaction that will irretrievably prejudice the complainant; (4)
where the amount involved is relatively so small as to make the rule impractical and oppressive; (5) where the question
involved is purely legal and will ultimately have to be decided by the courts of justice; (6) where judicial intervention is
urgent; (7) where the application of the doctrine may cause great and irreparable damage; (8) where the controverted
acts violate due process; (9) where the issue of non-exhaustion of administrative remedies had been rendered moot; (10)
where there is no other plain, speedy and adequate remedy; (11) where strong public interest is involved; and (12) in quo
warranto proceedings.10

In this case, respondents allege that CPO 189-2013 is contrary to law and unconstitutional. Respondents assail CPO 189-
2013 as patently illegal, arbitrary, and oppressive. This case clearly falls within the exceptions where exhaustion of
administrative remedies need not be resorted to by respondents.

104
 Effectivity of EO 140

Respondents allege that EO 140 took effect only on 2 October 2013, fifteen days after its publication in two newspapers of
general circulation. Hence, respondents argue that when CPO 189-2013 was issued, EO 140 was not yet effective. Article 2
of the Civil Code of the Philippines, as amended by Executive Order No. 200,11 is clear on this issue. It states:

Art. 2. Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette, or
in a newspaper of general circulation in the Philippines, unless it is otherwise provided.
The proviso "unless it is otherwise provided" refers to an effectivity date other than after fifteen days following the
completion of the law's publication.
12 Thus, it is within the discretion of the legislature, or the Executive Department in this case, whether to shorten or extend

the fifteen-day period13 as long as there is compliance with the requirement of publication. Here, Section 9 of EO 140
provides that the "order shall take effect immediately upon publication in two (2) newspapers of general circulation." EO
140 was published in Manila Bulletin and Philippine Star on 17 September 2013. As such, EO 140 took effect on 17
September 2013. In addition, the Court already ruled that "[interpretative regulations and those merely internal in nature,
that is, regulating only the personnel of the administrative agency and not the public, need not be published." 14EO 140 is
an internal regulation that affects primarily the personnel of the DOF and the BOC. It remains valid even without
publication.

Validity of CPO 189-2013

Respondents assail the validity of CPO 189-2013. Respondents allege that under EO 140, CPRO shall be composed of its
organic personnel, as approved by the DBM upon recommendation of the DOF Secretary. The organic personnel was
supposed to be augmented and reinforced by DOF and BOC personnel. Respondents allege that they were detailed to
CPRO even before its organic personnel could be constituted. We rule for respondents. Section 3 of EO 140 provides:
SECTION 3. Personnel and Staffing Complement. The CPRO shall be composed of its organic personnel, as approved by
the Department of Budget and Management (DBM) upon recommendation of the DOF Secretary, augmented and
reinforced by DOF and BOC personnel as well as those detailed or seconded from other agencies, whether attached to the
DOF or not. In addition, the CPRO, upon approval of the DOF Secretary, may hire or engage technical consultants to
provide necessary support in the performance of its mandate.

Respondents were supposed to augment and reinforce the existing organic personnel of CPRO. Yet, at the time of
respondents' detail, CPRO had not been formally organized. CPRO had no organic personnel that had been approved by
the DBM upon recommendation of the DOF Secretary. The DOF Secretary had yet to promulgate rules and regulations and
to prescribe procedures and processes to enable CPRO to effectively exercise its powers and duties, as required by Section
4 of EO 140. In addition, under Section 8, Rule VII of the Omnibus Rules, a detail is temporary in nature. In fact, detail of
employees is only allowed for a maximum, period for those occupying professional, technical, and scientific positions. 15

Section 8, Rule VII of the Omnibus Rules provides:

SEC. 8. A detail is the movement of an employee from one department or agency to another which is temporary in nature,
which does not involve a reduction in rank, status or salary and does not require the issuance of another appointment. The
employee detailed receives his salary only from his mother unit/agency. Detail shall be allowed only for a maximum period
in the case of employees occupying professional, technical and scientific position. If the employee believes that there is no
justification for the detail, he may appeal his case to the Commission. Pending appeal, the decision to detail the employee
shall be executory unless otherwise ordered by the Commission.
Section 2 of CSC Resolution No. 021181, dated 13 September 2002,16 clarified the maximum period of detail of employees.
It states:
Section 2. Duration of the detail. The detail shall be allowed only for a maximum period of one year. Details beyond one
year may be allowed provided it is with the consent of the detailed employee. The extension or renewal of the period of
the detail shall be within the authority of the mother agency. If the employee believes that there is no justification for the
detail, he/she may appeal his/her case to the proper Civil Service Commission Regional Office. Pending appeal, the detail
shall be executory unless otherwise ordered by said regional office. Decision of said regional office may be further
appealed to the Commission en banc.
In this case, CPO 189-2013 did not provide for the period of respondents' detail. It only provided that the order "shall be
effective immediately and valid until sooner revoked," making the detail of respondents indefinite. There was nothing to
show that respondents were occupying professional, technical, and scientific positions that would have allowed their detail
for the maximum period provided under Section 8, Rule VII of the Omnibus Rules. Further, CSC Resolution No. 021181 did
not distinguish between an ordinary employee and an employee occupying professional, technical, and scientific position.
Hence, it should have been specified that the maximum period of respondents' detail should not exceed one year.
Petitioners assert, and we quote:
There is a cancer of corruption we must extinguish. The drive to rid the government of graft and corruption deserves the
support of everyone. The principle of good governance cannot, should not, be trivialized nor oversimplified by tenuous
whimpering and individualism intended to detract from the urgent need to cleanse the Republic from a mainstream culture
of unabated corruption, perpetuated with impunity and sense of self-entitlement. The issue at hand is not about who, but
what; it is not about individual loss, but about national gain. Whether from the birth pains of reform, this nation can gain a
foothold, nay, a stride into restoring this nation into its prideful place from the clutches of a "kleptocratic mafia" that had
gained a strangehold into one of the nation's primary sources of revenue.17

Indeed, we commend and support the reforms being undertaken in the different agencies of the government. However,
we cannot allow department heads to take shortcuts that will undermine and disregard the basic procedures of the law.

105
WHEREFORE, we PARTIALLY GRANT the petition. We sustain the validity of Executive Order No. 140. We rule that the
Regional Trial Court has jurisdiction over the action for declaratory relief filed by respondents. We further rule that
Customs Personnel Order No. B-189-2013 was not validly issued.

SO ORDERED.

G.R. No. 182133, June 23, 2015 UNITED OVERSEAS BANK OF THE PHILIPPINES, INC., Petitioner, v. THE
BOARD OF COMMISSIONERS-HLURB, J.O.S. MANAGING BUILDERS, INC., AND EDUPLAN PHILS.,
INC., Respondents. PERALTA, J.:

Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the Decision1 and
Resolution2 of the Court of Appeals (CA), dated February 27, 2006 and March 5, 2008, respectively, in CAG.R.SP No.
86401.

The antecedents are as follows:LawlibraryofCRAlaw

Respondent J.O.S. Managing Builders, Inc. (JOS Managing Builders) is the registered owner and developer of the
condominium project Aurora Milestone Tower. On December 16, 1997, JOS Managing Builders and respondent EDUPLAN
Philippines, Inc. (EDUPLAN) entered into a Contract to Sell covering Condominium Unit E, 10th Floor of the Aurora
Milestone Tower with an area of 149.72 square meters, more or less. In August 1998, EDUPLAN effected full payment, and
in December 1998, JOS Managing Builders and EDUPLAN executed a Deed of Absolute Sale over the condominium unit.
Notwithstanding the execution of the deed of sale in favor of EDUPLAN, JOS Managing Builders failed to cause the
issuance of a Condominium Certificate of Title over the condominium unit in the name of EDUPLAN. EDUPLAN learned that
the lots on which the condominium building project Aurora Milestone Tower was erected had been mortgaged by JOS
Managing Builders to petitioner United Overseas Bank of the Philippines (United Overseas Bank) without the prior written
approval of the Housing and Land Use Regulatory Board (HLURB). Due to the inability of JOS Managing Builders to deliver
the condominium certificate of title covering the unit purchased by EDUPLAN, the latter filed a complaint for specific
performance and damages against JOS Managing Builders and United Overseas Bank before the HLURB praying that: (a)
the mortgage between JOS Managing Builders and United Overseas Bank be declared null and void; (b) JOS Managing
Builders and United Overseas Bank be compelled to cause the issuance and release of the Condominium Certificate of
Title; and (c) JOS Managing Builders be ordered to provide emergency power facilities, to refund the monthly telephone
carrier charges, and to permanently cease and desist from further collecting such charges.

In its defense, JOS Managing Builders alleged that it could not issue an individual Condominium Certificate of Title in favor
of EDUPLAN, because petitioner United Overseas Bank has custody of the Transfer Certificates of Title covering the
condominium building.

United Overseas Bank, on the other hand, alleged that JOS Managing Builders is the owner of several parcels of land
covered by Transfer Certificate of Title (TCT) Nos. N-146444, N-146445 and N-143601. On April 3, 1997, JOS Managing
Builders executed in favor of United Overseas Bank a Real Estate Mortgage3over the said parcels of land and the
improvements existing or to be erected thereon to secure the Two Hundred Million Peso (PhP200,000,000.00) 4 loan it
acquired from the bank. The subject condominium building project Aurora Milestone Tower, which is situated in the said
parcels of land, are part of the properties mortgaged to United Overseas Bank. JOS Managing Builders defaulted in the
payment of its loan obligations to United Overseas Bank. Hence, United Overseas Bank foreclosed the mortgage
constituted over properties of JOS Managing Builders and the subject properties were sold by public auction on March 22,
1999 wherein United Overseas Bank was declared as the highest bidder. Subsequently, a certificate of sale was issued in
favor of United Overseas Bank corresponding to the foreclosed properties, which was registered with the Register of Deeds
of Quezon City on April 27, 1999.

On August 15, 2001, the HLURB Arbiter ruled,5 in favor of EDUPLAN and declared the mortgage executed between JOS
Managing Builders and United Overseas Bank as well as the foreclosure proceedings null and void, pointing out that the
mortgage was executed without the approval of the HLURB as required under Section 18 of Presidential Decree (P.D.) No.
957.6 The Arbiter held that that since EDUPLAN has paid the full purchase price of the condominium unit, JOS Managing
Builders and United Overseas Bank should cause the release from encumbrance of the mother titles to the condominium
building project, and issue the corresponding condominium certificate of title in favor of EDUPLAN. Further, JOS Managing
Builders should provide EDUPLAN with emergency power facilities and refund it with the monthly telephone carrier charges
it has been collecting since September 1999, and permanently cease and desist from further imposing and collecting such
fees. Moreover, JOS Managing Builders was directed to pay EDUPLAN damages, attorney's fees and costs of suit. The
dispositive portion of the decision reads:LawlibraryofCRAlawsVirtualawlibrary

Wherefore, the foregoing premises considered and as prayed for, judgment is hereby rendered in favor of the Complainant
and against the Respondents as follows:LawlibraryofCRAlawanRoblesVirtualawlibrary
1. Declaring the mortgage executed by Respondent J.O.S. Managing Builders in favor of Respondent United Overseas Bank
(Westmont) as null and void, including the foreclosure of the mortgage, for being in violation of Section 18 of P.D. 957;
2. Ordering Respondents to cause the release from the encumbrances of the "mother titles" to the Condominium Building
Project and, issuance of the individual Condominium Certificate of Title of Complainant to its Condominium Unit, free from
any and all liens and encumbrances;
3. Ordering Respondent J.O.S. Managing Builders to provide the Complainant with emergency power facilities, strictly as
represented in its sales brochures;
4. Ordering Respondent J.O.S. Managing Builders to refund to Complainant the monthly telephone carrier charges it has
been collecting since September 1, 1999 and permanently cease and desist from further imposing and collecting said
charges;
5. Ordering Respondent J.O.S. to pay the complainant P100,000.00 by way of temperate damages, P50,000.00 by way of
exemplary damages, P40,000.00 as and by way of Attorney's Fees; and the costs of suit.

106
6. Ordering Respondent J.O.S. Managing Builders to pay Respondent United Overseas Bank (Westmont) the loan release
value of the subject condominium unit.
United Overseas Bank then filed a petition for review with the HLURB. On August 20, 2004, the HLURB Board of
Commissioners affirmed the Arbiter's decision, but deleted the award of emergency power facilities and refund of the
monthly telephone carrier charges. Hence, United Overseas Bank filed a petition for review under Rule 43 before the
CA.7redarclaw

On February 27, 2006, the CA dismissed the petition.8 A motion for reconsideration was filed, but it was denied for lack of
merit.9 The CA held that United Overseas Bank did not exhaust the administrative remedies available to it due to its failure
to appeal the decision of the HLURB Board of Commissioners to the Office of the President before going to the CA.

Hence, the petition assigning the lone error:LawlibraryofCRAlaw

ChanRoblesVirtualawlibrary
THE COURT OF APPEALS ERRED IN REFUSING TO APPLY THE EXCEPTION TO THE DOCTRINE OF EXHAUSTION OF
ADMINISTRATIVE REMEDIES.10
Petitioner United Overseas Bank argues that the CA erred when it dismissed the petition due to its failure to exhaust
administrative remedies. It alleges that the question on whether the HLURB is correct in declaring null and void the entire
mortgage constituted by JOS Managing Builders in favor of United Overseas Bank, as well as the foreclosure of the entire
mortgage, is a legal question which is an exception to the rule on exhaustion of administrative remedies.

The petition is meritorious.

The doctrine of exhaustion of administrative remedies is a cornerstone of our judicial system. The thrust of the rule is that
courts must allow administrative agencies to carry out their functions and discharge their responsibilities within the
specialized areas of their respective competence.11 It has been held, however, that the doctrine of exhaustion of
administrative remedies and the doctrine of primary jurisdiction are not iron-clad rules. In the case of Republic v.
Lacap,12 the Court enumerated the numerous exceptions to these rules, namely: (a) where there is estoppel on the part of
the party invoking the doctrine; (b) where the challenged administrative act is patently illegal, amounting to lack of
jurisdiction; (c) where there is unreasonable delay or official inaction that will irretrievably prejudice the complainant; (d)
where the amount involved is relatively so small as to make the rule impractical and oppressive; (e) where the question
involved is purely legal and will ultimately have to be decided by the courts of justice; (f) where judicial intervention is
urgent; (g) where the application of the doctrine may cause great and irreparable damage; (h) where the controverted
acts violate due process; (i) where the issue of non-exhaustion of administrative remedies has been rendered moot; (j)
where there is no other plain, speedy and adequate remedy; (k) where strong public interest is involved; and (1) in quo
warrantoproceedings.13redarclaw

The situation in paragraph (e) of the foregoing enumeration obtains in this case.

The issue on whether non-compliance with the clearance requirement with the HLURB would result to the nullification of
the entire mortgage contract or only a part of it is purely legal which will have to be decided ultimately by a regular court
of law. It does not involve an examination of the probative value of the evidence presented by the parties. There is a
question of law when the doubt or difference arises as to what the law is on a certain state of facts, and not as to the truth
or the falsehood of alleged facts. Said question at best could be resolved only tentatively by the administrative authorities.
The final decision on the matter rests not with them but with the courts of justice. Exhaustion of administrative remedies
does not apply, because nothing of an administrative nature is to be or can be done. The issue does not require technical
knowledge and experience, but one that would involve the interpretation and application of law. 14 There is, thus, no need
to exhaust administrative remedies, under the premises.

The Court will now proceed to the legal issue on hand.

Petitioner United Overseas Bank alleges that the HLURB erred in declaring null and void the entire mortgage constituted by
JOS Managing Builders in its favor, as EDUPLAN does not claim ownership over all the properties mortgaged by JOS
Managing Builders in favor of United Overseas Bank, but only over a single condominium unit, i.e., Unit E, 10th Floor of the
Aurora Milestone Tower.

We agree with petitioner.

The HLURB erred in declaring null and void the entire mortgage executed between JOS Managing Builders and United
Overseas Bank.

At the onset, it is worthy to note that jurisprudence have varying conclusions of the issue at hand. In Far East Bank &
Trust Co. v Marquez,15 the Court sustained the HLURB when it declared the mortgage entered into between the subdivision
developer and the bank as unenforceable against the lot buyer for failure of the developer to obtain the prior written
approval of the HLURB. However, we were categorical that the HLURB acted beyond bounds when it nullified the mortgage
covering the entire parcel of land, of which the lot subject of the buyer's complaint is merely a part of.

In Far East Bank, the Court held that:LawlibraryofCRAlaw

ChanRoblesVirtualawlibrary
Acts executed against the provisions of mandatory or prohibitory laws shall be void. Hence, the mortgage over the lot
is null and void insofar as private respondent is concerned.

The remedy granted by the HLURB and sustained by the Office of the President is proper only insofar as it refers to the lot
of respondent. In short, the mortgage contract is void as against him. Since there is no law stating the specifics of what
should be done under the circumstances, that which is in accord with equity, should be ordered. The remedy granted by
the HLURB in the first and the second paragraphs of the dispositive portion of its Decision insofar as it referred to

107
respondent's lot is in accord with equity.

The HLURB, however, went overboard in its disposition in paragraphs 3 and 4, which pertained not only to the lot but to
the entire parcel of land mortgaged. Such ruling was improper. The subject of this litigation is limited only to the lot that
respondent is buying, not to the entire parcel of land. He has no personality or standing to bring suit on the whole
property, as he has actionable interest over the subject lot only. (Citations omitted and underscoring ours)16
In Metropolitan Bank and Trust Co., Inc. v. SLGT Holdings, Inc.,17 however, the Court nullified the entire mortgage
contract executed between the subdivision developer and the bank albeit the fact that only two units or lot buyer/s filed a
case for declaration of nullity of mortgage. In the said case, the entire mortgage contract was nullified on the basis of the
principle of indivisibility of mortgage as provided in Article 208918 of the New Civil Code.

This notwithstanding, in the fairly recent case of Philippine National Bank v. Lim,19 the Court reverted to our previous ruling
in Far East Bank that a unit buyer has no standing to seek for the complete nullification of the entire mortgage, because he
has an actionable interest only over the unit he has bought. Hence, in the said case, the mortgage was nullified only
insofar as it affected the unit buyer.

We find the recent view espoused in Philippine National Bank to be in accord with law and equity. While a mortgage may
be nullified if it was in violation of Section 18 of P.D. No. 957, such nullification applies only to the interest of the
complaining buyer. It cannot extend to the entire mortgage. A buyer of a particular unit or lot has no standing to ask for
the nullification of the entire mortgage.

Since EDUPLAN has an actionable interest only over Unit E, 10th Floor, Aurora Milestone Tower, it is but logical to conclude
that it has no standing to seek for the complete nullification of the subject mortgage and the HLURB was incorrect when it
voided the whole mortgage between JOS Managing Builders and United Overseas Bank.

Considering that EDUPLAN had already paid the full purchase price of the subject unit, the latter is entitled to the transfer
of ownership of the subject property in its favor. This right is provided for in Section 25 of P.D. No. 957, 50
wit:LawlibraryofCRAlaw
ChanRoblesVirtualawlibrary
Issuance of Title. The owner or development shall deliver the title of the lot or unit to the buyer upon full payment of the
lot or unit, x x x.
Verily, JOS Managing Builders has the obligation to cause the delivery of the Title to the subject condominium unit in favor
of EDUPALN.

Nevertheless, despite the fact that the mortgage constituted between JOS Managing Builders and United Overseas Bank
cannot bind EDUPLAN, because of the non-observance of the provision of P.D. No. 957 by JOS managing Builders, the
mortgage between the former and United Overseas Bank is still valid.

In the present case, it is undisputed that JOS Managing Builders mortgaged several parcels of land, including all the
buildings and improvements therein covered by TCT Nos. N-146444, N-146445 and N-143601 to United Overseas Bank
without prior clearance from the HLURB. The said omission clearly violates Section 18 of P.D. No. 957 ( The Subdivision and
condominium Buyers' Protective Decree), which provides as follows:LawlibraryofCRAlaw
ChanRoblesVirtualawlibrary
Section 18. Mortgages. - No mortgage on any unit or lot shall be made by the owner or developer without prior written
approval of the [HLURB]. xxx (Word in bracket added)
It should be noted, however, that the failure of JOS Managing Builders to secure prior approval of the mortgage from the
HLURB and United Overseas Bank's failure to inquire on the status of the property offered for mortgage placed the
condominium developer and the creditor Bank in pari delicto.20 Hence, they cannot ask the courts for relief for such parties
should be left where they are found for being equally at fault.

More importantly, it should be understood that the prior approval requirement is intended to protect buyers of
condominium units from fraudulent manipulations perpetrated by unscrupulous condominium sellers and operators, such
as their failure to deliver titles to the buyer or titles free from lien and encumbrances.21 This is pursuant to the intent of
P.D. No. 957 to protect hapless buyers from the unjust practices of unscrupulous developers which may constitute
mortgages over condominium projects sans the knowledge of the former and the consent of the HLURB. 22redarclaw

Thus, failure to secure the HLURB'S prior written approval as required by P.D. No. 957 will not annul the entire mortgage
between the condominium developer and the creditor bank, otherwise the protection intended for condominium buyers will
inadvertently be extended to the condominium developer even though, by failing to secure the government's prior
approval, it is the party at fault.

To rule otherwise would certainly affect the stability of large-scale mortgages, which is prevalent in the real estate
industry. To be sure, mortgagee banks would be indubitably placed at risk if condominium developers are empowered to
unilaterally invalidate mortgage contracts based on their mere failure to secure prior written approval of the mortgage by
the HLURB, which could be easily caused by inadvertence or by deliberate intent.

From all the foregoing, the HLURB erred when it declared the entire mortgage constituted by JOS Managing Builders, Inc.
in favor of United Overseas Bank null and void based solely on the complaint of EDUPLAN which was only claiming
ownership over a single condominium unit of Aurora Milestone Tower. Accordingly, the mortgage executed between JOS
Managing Builders and United Overseas Bank is valid.

WHEREFORE, the petition is GRANTED. The Decision and Resolution of the Court of Appeals, dated February 27, 2006
and March 5, 2008, respectively, in CA-G.R. SP No. 86401, are REVERSED and SET ASIDE. The Decision of the HLURB,
dated August 20, 2004, is AFFIRMED with MODIFICATION. The mortgage executed and the succeeding foreclosure
proceedings between respondent J.O.S. Managing Builders, Inc. and petitioner United Overseas Bank of the Philippines,

108
Inc., with respect to respondent EDUPLAN Philippines, Inc.'s unit E., 10TH Floor, Aurora Milestone Tower, is declared null
and void. SO ORDERED.cralawlawlibrary

Doctrine of Prior Resort

When a claim originally cognizable in the courts involves issues which, under a regulatory scheme are within the special
competence of an administrative agency, judicial proceedings will be suspended pending the referral of these issues to the
administrative body for its view.

Category Archives: Administrative Law

Administrative Law
Powers of Administrative Agencies

1. Quasi-legislative power / Power of subordinate legislation

2. Quasi-judicial power/Power of adjudication
3. Determinative powers (Note: Senator Neptali Gonzales calls them incidental powers)
Definition of “Quasi-legislative power”

It is the authority delegated by the law-making body to the administrative body to adopt rules and regulations intended to
carry out the provisions of a law and implement legislative policy.

Distinctions between Quasi-legislative power and legislative power

1. LEGISLATIVE power involves the discretion to determine what the law shall be. QUASI-legislative power only
involves the discretion to determine how the law shall be enforced.
2. LEGISLATIVE power CANNOT be delegated. QUASI-legislative power CAN be delegated.
Tests of Delegation (applies to the power to promulgate administrative regulations )
1. COMPLETENESS test. This means that the law must be complete in all its terms and conditions when it leaves the
legislature so that when it reaches the delegate, it will have nothing to do but to enforce it.
2. SUFFICIENT STANDARD test. The law must offer a sufficient standard to specify the limits of the delegate’s
authority, announce the legislative policy and specify the conditions under which it is to be implemented.
Definition of Quasi-Judicial Power

It is the power of administrative authorities to make determinations of facts in the performance of their official duties and
to apply the law as they construe it to the facts so found. The exercise of this power is only incidental to the main function
of administrative authorities, which is the enforcement of the law.

Determinative Powers
1. ENABLING powers

Those that PERMIT the doing of an act which the law undertakes to regulate and would be unlawful without government
approval.

Ex. Issuance of licenses to engage in a particular business.

2.DIRECTING powers

Those that involve the corrective powers of public utility commissions, powers of assessment under the revenue laws,
reparations under public utility laws, and awards under workmen’s compensation laws, and powers of abstract
determination such as definition-valuation, classification and fact finding

3. DISPENSING powers

Exemplified by the authority to exempt from or relax a general prohibition, or authority to relieve from an affirmative duty.
Its difference from licensing power is that dispensing power sanctions a deviation from a standard.

4. SUMMARY powers

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Those that apply compulsion or force against person or property to effectuate a legal purpose without a judicial warrant to
authorize such action. Usually without notice and hearing.

Ex. Abatement of nuisance, summary destraint, levy of property of delinquent tax payers

5. EQUITABLE powers

Those that pertain to the power to determine the law upon a particular state of facts. It refers to the right to, and must,
consider and make proper application of the rules of equity.

Ex. Power to appoint a receiver, power to issue injunctions

Kinds of Administrative Regulations

DISTINCTIONS LEGISLATIVE INTERPRETATIVE

1. Capacity that administrative

agency is acting in Legislative Judicial

2. What administrative agency is It supplements the statute by

doing filling in the details It says what the statute means

Legislative regulations have the

force and effecr of law
immediately upon going into
effect. Such is accorded by the Merely persuasive/Received by
courts or by express provision the courts with much respect but
3. Force and effect of statute. not accorded with finality

Requisites of a Valid Administrative Regulation

1. Its promulgation must be authorized by the legislature.

2. It must be within the scope of the authority given by the legislature.
3. It must be promulgated in accordance with the prescribed procedure.
4. It must be reasonable
Need for Previous Notice and Hearing
1. General Rule: Administrative rules of GENERAL application do NOT require previous notice and hearing.
2. Exception: When the legislature itself requires it and mandates that the regulation shall be based on certain facts
as determined at an appropriate investigation.
3. If the regulation is in effect a settlement of a controversy between specific parties, it is considered an
administrative adjudication, requiring notice and hearing.
Prescribing of Rates

It can be either:

1. LEGISLATIVE

If the rules/rates are meant to apply to all enterprises of a given kind throughout the country.

No prior notice and hearing is required.

2. QUASI-JUDICIAL

If the rules and rates imposed apply exclusively to a particular party, based upon a finding of fact. Prior notice and hearing
is required.

Requirement of Publication
Administrative Regulations that MUST be published:

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 1. Administrative regulations of GENERAL application.
2. Administrative regulations which are PENAL in nature.
Administrative regulations that do NOT NEED to be PUBLISHED:
1. Interpretative regulations
2. Internal rules and regulations governing the personnel of the administrative agency.
1. Letters of instruction issued by administrative superiors concerning guidelines to be followed by their
subordinates. (Tanada v. Tuvera)
Special Requisites of a Valid Administrative Regulation with a PENAL sanction

1. The law itself must make violation of the administrative regulation punishable.
2. The law itself must impose and specify the penalty for the violation of the regulation.
3. The regulation must be published.
Requisites for Proper Exercise of Quasi-Judicial Power

1. Jurisdiction
2. Due process
Administrative Due Process : Requirements
1. Right to Notice, be it actual or constructive
2. Reasonable opportunity to appear and defend his rights and to introduce witnesses
3. Impartial tribunal with competent jurisdiction
4. Finding or decision supported by substantial evidence
Exceptions to the Notice and Hearing Requirement
1. Urgency of immediate action
2. Tentativeness of the administrative action
3. Right was previously offered but not claimed
4. Summary abatement of a nuisance per se
5. Preventive suspension of a public servant facing administrative charges
6. Padlocking of filthy restaurants/theaters showing obscene movies
7. Cancellation of a passport of a person sought for criminal prosecution
8. Summary distraint and levy of properties of a delinquent taxpayer
9. Replacement of a temporary or acting appointee
Questions Reviewable on Judicial Review:
1. Questions of FACT

The general rule is that courts will not disturb the findings of administrative agencies acting within the parameters of their
own competence so long as such findings are supported by substantial evidence. By reason of their special knowledge,
expertise, and experience, the courts ordinarily accord respect if not finality to factual findings of administrative tribunals.

2. Question of LAW

Administrative decision may be appealed to the courts independently of legislative permission.

It may be appealed even against legislative prohibition because the judiciary cannot be deprived of its inherent power to
review all decisions on questions of law.

Doctrine of Finality

Courts are reluctant to interfere with action of an administrative agency prior to its completion or finality, the reason being
that absent a final order or decision, power has not been fully and finally exercised, and there can usually be no irreparable
harm.

EXCEPTIONS: Interlocutory order affecting the merits of a controversy; Preserve status quo pending further action by the
administrative agency; Essential to the protection of the rights asserted from the injury threatened; Officer assumes to act
in violation of the Constitution and other laws; Order not reviewable in any other way; Order made in excess of power
Doctrine of Primary Jurisdiction

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 1. This doctrine states that courts cannot or will not determine a controversy which requires the expertise, specialized
skills and knowledge of the proper administrative bodies because technical matters of intricate questions of fact are
involved.
2. Relief must first be obtained in an administrative proceeding before a remedy will be supplied by the court even
though the matter is within the proper jurisdiction of a court.
Doctrine of Prior Resort

When a claim originally cognizable in the courts involves issues which, under a regulatory scheme are within the special
competence of an administrative agency, judicial proceedings will be suspended pending the referral of these issues to the
administrative body for its view.

Note: The doctrines of primary jurisdiction and prior resort have been considered to be interchangeable.

Doctrine of Exhaustion of Administrative Remedies

1. Under this doctrine, an administrative decision must first be appealed to the administrative superiors up to the
highest level before it may be elevated to a court of justice for review.
1. Reasons :
1. to enable the administrative superiors to correct the errors committed by their subordinates.
2. courts should refrain from disturbing the findings of administrative.
bodies in deference to the doctrine of separation of powers.
3. courts should not be saddled with the review of administrative cases
4. judicial review of administrative cases is usually effected through special civil actions which are
available only if their is no other plain, speedy and adequate remedy.

3. Exceptions

a. when the question raised is purely legal, involves constitutional questions

b. when the administrative body is in estopped
c. when act complained of is patently illegal
d. when there is urgent need for judicial intervention
e. when claim involved is small
f. when irreparable damage is involved
g. when there is no other plain, speedy , adequate remedy
h. when strong public interest is involved
I. when the subject of controversy is private land
1. in quo warranto proceedings
2. When the administrative remedy is permissive, concurrent
3. utter disregard of due process
4. long-continued and unreasonable delay
5. amount involved is relatively small
6. when no administrative review is provided
7. respondent is a department secretary (DOCTRINE OF QUALIFIED POLITICAL AGENCY – ALTER EGO DOCTRINE)

Substantial evidence – defined to mean not necessarily preponderant proof as required in ordinary civil cases but such kind
of relevant evidence which a reasonable mind might accept as adequate to support a conclusion.

A.M. No. MTJ-12-1813 OFFICE OF THE COURT ADMINISTRATOR, Complainant vs JUDGE ELIZA B. YU,
METROPOLITAN TRIAL COURT, BRANCH 47, PASAY CITY, Respondent

PER CURIAM:

We hereby consider and resolve respondent Eliza B. Yu's Motion for Reconsideration with Explanation for the Show Cause
Order filed vis-a-vis the decision promulgated on November 22, 2016 disposing against her as follows:

WHEREFORE, the Court FINDS and PRONOUNCES respondent JUDGE ELIZA B. YU GUILTY of GROSS INSUBORDINATION;
GROSS IGNORANCE OF THE LAW; GROSS MISCONDUCT; GRAVE ABUSE OF AUTHORITY; OPPRESSION; and CONDUCT
UNBECOMING OF A JUDICIAL OFFICIAL; and, ACCORDINGLY, DISMISSES her from the service EFFECTIVE IMMEDIATELY,
with FORFEITURE OF ALL HER BENEFITS, except accrued leave credits, and further DISQUALIFIES her from reinstatement

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or appointment to any public office or employment, including to one in any government-owned or government-controlled
corporations.

Respondent JUDGE ELIZA B. YU is directed to show cause in writing within ten (10) days from notice why she should not
be disbarred for violation of the Lawyer's Oath, the Code of Professional Responsibility, and the Canons of Professional
Ethics as outlined herein.

Let a copy of this decision be furnished to the Office of the Court Administrator for its information and guidance.

SO ORDERED.1

In her motion, the respondent repeatedly denies committing all the administrative offenses for which she was held guilty,
and insists on the absence of proof to support the findings against her. She pleads that the Court reconsiders based on the
following:

1. Noncompliance with A.O. No. 19-2011

The complaint against her was premature because of the pendency of her protest against night court duty. A.O. No. 19-
2011 did not carry a penal provision, and was only directory because of the use of the permissive word may. In addition to
A.O. No. 19-2011 being noncompliant with the requirements of a valid administrative order, the requirement of night court
duty violated Section 5, Rule XVII of the Omnibus Rules Implementing Book V of the Administrative Code,2 which limited
the working hours for government officials and employees. It was also not illegal to write to the Secretary of the
Department of Tourism (DOT) considering that he was the requesting authority regarding the rendering of the night court
duty. She did not publicly broadcast her disobedience to A.O. No. 19-2011 when she wrote the letter to the Secretary.
There was no law prohibiting her from writing the protest letters. At any rate, she had the right to do so under the
Freedom of Speech Clause. She did not refuse to obey A.O. No. 19-2011 because she actually allowed her staff to report
for night duty. She did not willfully and intentionally disobey because her protest had legal basis. She would also violate
Section 3(a)3 of Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act) if she would comply with the patently illegal
A.O. No. 19-2011.4

2. Refusal to honor the appointments of Ms. Mariejoy P. Lagman and Ms. Leilani Tejero-Lopez

The respondent claims that she did not refuse to honor the appointment because rejection was different from protesting
the appointment. She merely exercised her statutory right as a judge to question the appointment of the branch clerk of
court assigned to her sala. Under Canon 2, Section 3 of the New Code of Judicial Conduct for the Philippine Judiciary,5 she
was mandated to bring to the proper authorities the irregularities surrounding the appointments. Moreover, the contents of
the complaint letter and the protest could not be used against her pursuant to the constitutional right against self-
incrimination. She did not also commit any act of cruelty against Ms. Tejera-Lopez; on the contrary, it was Ms. Tejero-
Lopez who "went beyond the norms of decency by her persistent and annoying application in my court that it actually
became a harassment." Her opposition against the appointment of Ms. Lagman was meritorious. She only employed the
wrong choice of words with her choice of the term privileged communication that was viewed negatively. There was no
proof of the alleged verbal threats, abuse, misconduct or oppression committed against Ms. Tejero-Lopez. It was not
proper to penalize a judge based on a "letter with few words that other people find objectionable."6

3. Show-cause order respondent issued against fellow judges

The respondent posits that the show-cause order she issued to her fellow judges had legal basis because "anything that is
legal cannot be an assumption of the role of a tyrant wielding power with unbridled breath."7 It was premature to rule that
she thereby abused and committed misconduct because she did not issue any ruling on the explanation by the other
judges.8 She did not violate Section 5, Canon 3 and Section 8, Canon 4 of the Code of Judicial Conduct. What the other
judges should have done was to avail themselves of the appropriate remedy.9

4. Refusal to sign the leave of absence of Mr. Noel Labid

The refusal to sign the application for leave of absence had factual and legal bases.10 Moreover, she should be presumed
to have acted in good faith if she misconstrued the rules on approval of application of leave.11

5. Allowing on-the-job trainees

The respondent claims that she did not order the trainees to perform judicial tasks. She asserts that she could not
remember their affidavit. She had no personal knowledge that the trainees were made to serve as assistant court
stenographers. Based on what she heard, the trainees were only in the premises of her court for a few hours. She reminds
that she allowed the trainees to merely observe proceedings. OCA Circular No. 111-2005 was impliedly amended when
paralegals and law students were allowed to be trained under the Hustisyeah Project.12

6. Designation of an officer-in-charge and ordering reception of evidence by a non-lawyer

The respondent denies having violated CSC Memorandum Circular No. 06-05 when she designated an officer-in-charge.
There was no proof showing that she willfully and deliberately intended to cause public damage. In fact, the OCA
recognized Mr. Ferdinand Santos as the OIC of her branch in several letters. There was no proof that she violated Section
9, Rule 30 of the Rules of Court. The ex parte reception of evidence by a non-lawyer clerk of court was allowed under

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the Rules of Court, as well as by Section 2l(e), Administrative Circular No. 35-2004, and Administrative Circular No. 37-
93.13

7. Allowing criminal proceedings to continue despite the absence of counsel

The respondent merely followed the Rules of Criminal Procedure in allowing criminal proceedings despite absence of
counsel. In so doing, she relied in good faith on the rulings in People v. Arcilla,14Bravo v. Court of Appeals,15 and People v.
Malinao.16 Under Section l(c), Rule 115 of the Rules of Criminal Procedure, the accused may be allowed to defend himself
in person without the assistance of counsel.17

8. Sending of inappropriate email messages

The respondent maintains that the e-mail messages were hearsay because the certification by the SC-MISO was not
presented to her, depriving her of the opportunity to object. Her granting access by the MISO to her private e-mails was
conditional to prove tampering. Her

Lycos e-mail account was hacked. She did not completely waive her right to privacy. Considering that she did not
authenticate said e-mail messages, the same were inadmissible for being hearsay. The e-mail messages with her full name
written in capital letters as the sender did not emanate from her because her Yahoo! and MSN accounts carried her name
with only the first letters being capitalized. The e-mails reproduced in the decision were not the same messages that she
had requested Judge San Gaspar-Gito to delete. There were words that she did not write on the e-mail messages
pertaining to her demand for reimbursement of $10.00. Her writing style was different from what appeared in the e-mail
messages. She denies having opened the "Rudela San Gaspar" account. It was wrong to penalize her based on
assumptions and speculations. She did not commit electronic libel. Her funny and innocent comments were not actionable
documents. The certification by the SC MISO was not an authentication as to the truthfulness of the contents of the e-mail
messages and as to the identification of the sender or author of the messages. It was wrong and unjust to impute
wrongdoing to her when there was no proof that she had sent the inappropriate messages. The disclaimer in the e-mails
were not printed in the decision; hence, the messages were inadmissible. The presentation of the messages without her
consent as the sender was covered by the exclusionary rule. Letters and communications in writing were guaranteed and
protected by Sections 2,18 3(1),19 Article III of the 1987 Constitution, and Article 723 of the Civil Code,20 Articles 22621 and
22822 of the Revised Penal Code, Section 2756 of the Revised Administrative Code,23 Sections 3224 and 3325 of the R.A. No.
8792. There was no proof that she had apologized through e-mail, and had sent messages with sexual undertones and
lewd graphics. Judge Gita had a dirty mind because nothing was wrong with the 69 image by Felicien Raps. She
(respondent) did not commit internet stalking. She had difficulty in remembering the private communications, which were
taken out of context. It was Judge Gita who must have a problem because she had kept the trash messages. She
(respondent) did not transgress any law. The allegations against her were hearsay. She submitted a letter proposal for a
"winwin" solution so that she would not pursue any criminal action against Judge Gito. She did not violate Section 8, Canon
4 of the New Code of Judicial Conduct because it was one of her staff who had typed the letter addressed to Atty. San
Gaspar. To find her to have abused her power and committed impropriety was unwarranted. Her absence from the
investigation conducted by Justice Abdulwahid could not be taken against her and could not be construed as her admission
of wrong doing or as an evasion of truth. There was no proof that she had used the phrase our court to advance her
personal interest.26

Ruling of the Court

We deny the respondent's Motion for Reconsideration with Explanation for the Show Cause Order for the following
reasons.

1. The respondent's Motion for Reconsideration is denied for lack of merit

The submissions tendered in the respondent's Motion for Reconsideration with Explanation for the Show Cause Order were
matters that the Court had already exhaustively considered and fully resolved in the decision of November 22, 2016. We
deem it unnecessary to dwell at length on such submissions. We still hold and declare that the respondent flagrantly and
blatantly violated the Lawyer's Oath, and several canons and rules of the Code of Professional Responsibility, the Canon of
Judicial Ethics and the New Judicial Code of Conduct.

Nonetheless, we propose to expound on some points for greater enlightenment on the issues and grounds taken into
consideration in removing the respondent from the Judiciary, and for purposes of providing the requisite predicate to the
ruling on the directive for her to show sufficient cause in writing why she should not also be disbarred from the Roll of
Attorneys.

The respondent insists that there was no proof to support the adverse findings of the Court. She is absolutely mistaken.
The records involved in these cases were voluminous, because they consisted of the affidavits and other evidence
submitted by the several complainants as well as her own pleadings and motions, most of which constituted proof of her
administrative wrongdoings. As the per curiam decision of November 22, 2016 indicated, her explanations vis-a-vis the
complaints often backfired against her, and all the more incriminated her by systematically exposing her personal and
professional ineptitude and stilted logic. In short, the evidence against her was too compelling to ignore, and sufficed to
warrant the supreme action of her removal from the Judiciary. She was more than aware that the quantum of evidence
required in administrative proceedings like these was substantial evidence, or that amount of relevant evidence that a
reasonable mind might accept as adequate to support a conclusion.27

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The respondent's argument that she was deprived of the guarantee against self-incrimination has no basis. As a judge, she
was quite aware that the constitutional guarantee only set the privilege of an individual to refuse to answer incriminating
questions that may directly or indirectly render her criminally liable. The constitutional guarantee simply secures to a
witness - whether a party or not - the right to refuse to answer any particular incriminatory question.28 The privilege did
not prohibit legitimate inquiry in non-criminal matters. At any rate, the rule only finds application in case of oral testimony
and does not apply to object evidence. As the Court has pointed out in People v. Malimit:29

[The right against self-incrimination], as put by Mr. Justice Holmes in Holt vs. United States, "x x x is a prohibition of the
use of physical or moral compulsion, to extort communications from him x x x" It is simply a prohibition against legal
process to extract from the [accused] 's own lips, against his will, admission of his guilt. It docs not apply to the instant
case where the evidence sought to be excluded is not an incriminating statement but an object evidence. Wigmore,
discussing the question now before us in his treatise on evidence, thus, said:

If, in other words (the rule) created inviolability not only for his [physical control of his] own vocal utterances, but also for
his physical control in whatever form exercise, then, it would be possible for a guilty person to shut himself up in his
house, with all the tools and indicia of his crime, and defy the authority of the law to employ in evidence anything that
might be obtained by forcibly overthrowing his possession and compelling the surrender of the evidential articles - a
clear reduction ad absurdum. In other words, it is not merely compulsion that is the kernel of the privilege, x x x
but testimonial compulsion.30

The respondent's correspondences were outside the scope of the constitutional proscription against self-incrimination. She
had not been subjected to testimonial compulsion in which she could validly raise her right against self-incrimination.
Worthy to recall is that she had herself voluntarily waived her right to be present and to confront the complainant and her
witnesses and evidence during the administrative investigation conducted by CA Associate Justice Hakim Abdulwahid. She
was emphatically granted the opportunity to confront the complainant and her witnesses but the voluntary and knowing
waiver of her presence divested her of the right to insist on the right to confrontation, if any.

The respondent contends that she was not given the opportunity to raise her objection to the certification issued by the
SC-MISO. This contention is dismissed also because of the same voluntary waiver of her presence from the proceedings
held before Justice Abdulwahid.

At any rate, the respondent alternatively pleads for compassion and mercy, and vows not to repeat the same
transgressions. In this connection, she would have the Court consider in her favor the following mitigating circumstances
pursuant to Section 48, Rule 10 of the Revised Rules of Administrative Cases in Civil Service,31which provides thus:

1. Medications on allergies as analogous circumstance to an unsubstantiated charge;

2. Good faith on each the unsubstantiated charge xxx;
3. First time offense of the unsubstantiated charge;
4. Lack of education or lack of experience on administrative matters as analogous circumstance to the unsubstantiated
charge;
5. Newness or short number in the judicial service as analogous circumstance to the unsubstantiated charge;
6. Very different work culture from previous employment as unsubstantiated charge;
7. Lack of prejudice to the public as analogous circumstance to the unsubstantiated charge;
8. Remorse for not listening to the unsolicited advices of Court Administrator Jose Midas Marquez and Assistant Court
Administrator Thelma Bahia as analogous circumstance to the unsubstantiated charge;
9. Lack of intent to commit any wrong as analogous circumstance to the unsubstantiated charge;
10. Previously received awards in the performance of his duties to the unsubstantiated charge; and
11. Outstanding court performance as to cases disposal for year to the unsubstantiated charge.32
The respondent's pleading is unworthy of sympathy.
Firstly, the respondent does not thereby present any compelling argument on how her having medications for allergies was
analogous to physical illness under Section 48(a) of the Revised Rules of Administrative Cases in Civil Service. Although the
list of circumstances in Section 48 is not exclusive because the provision expressly recognizes other analogous
circumstances, she cannot simply state any situation without pointing out why it would be analogous to the listed
circumstances. The Court is unable to appreciate how her consumption of medications for allergies could generate
arrogance, insubordination, gross ignorance of laws, and offensive conduct that manifested themselves in the periods
material to the administrative complaints.

Secondly, the respondent's overall conduct negated her allegation of good faith. Good faith implies the lack of any
intention to commit a wrongdoing. Based on the totality of her acts and actuations, her claims of good faith and lack of
intent to commit a wrong cannot be probable. According to Civil Service Commission v. Maala,33 good faith as a defense in
administrative investigations has been discussed in this wise:

In common usage, the term "good faith" is ordinarily used to describe that state of mind denoting "honesty of intention,
and freedom from knowledge of circumstances which ought to put the holder upon inquiry; an honest intention to abstain
from taking any unconscientious advantage of another, even through technicalities of law, together with absence of all
information, notice, or benefit or belief of facts which render transaction unconscientious."

In short, good faith is actually a question of intention. Although this is something internal, we can ascertain a person's
intention by relying not on his own protestations of good faith, which is self-serving, but on evidence of his
conduct and outward acts. (bold emphasis supplied)

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The respondent is reminded that her removal from the Judiciary by reason of her gross insubordination and gross
misconduct did not proceed only from her non-compliance with A.O. No. 19-2011. Other acts and actuations were also
efficient causes, namely: (1) her refusal to abide by the directive of MeTC Executive Judge Bibiano Colasito that resulted in
the disruption of orderliness in the other Pasay City MeTCs to the prejudice of the public service and public interest; (2) her
direct communications to the DOT Secretary and other agencies that seriously breached established protocols, thereby
opening an irregular avenue to publicly broadcast her defiance to the directive of the Court itself; and (3) her willful
disregard of the direct advice by the Court Administrator despite the latter being the official expressly authorized by law to
assist the Court in exercising administrative supervision over all lower courts and personnel.34

Furthermore, we emphatically observed and pointed out in the decision of November 22, 2016 the following:

In all, Judge Yu exhibited an unbecoming arrogance in committing insubordination and gross misconduct. By her refusal to
adhere to and abide by A.O. No. 19-2011, she deliberately disregarded her duty to serve as the embodiment of the law at
all times. She thus held herself above the law by refusing to be bound by the issuance of the Court as the duly constituted
authority on court procedures and the supervision of the lower courts. To tolerate her insubordination and gross
misconduct is to abet lawlessness on her part. She deserved to be removed from the service because she thereby revealed
her unworthiness of being part of the Judiciary. (Bold emphasis supplied)

We have stated in the decision of November 22, 2016 that the respondent's recalcitrant streak did not end with her
unbecoming repudiation of and defiance to A.O. No. 19-2011. To recall, she also exhibited extreme arrogance in rejecting
the valid appointments of Ms. Lagman and Ms. Tejero-Lopez despite being fully aware that the appointing powers
pertained to and were being thereby exercised by the Court, and that she was bereft of any discretion to control or reject
the appointments. Under no circumstance could she be justified in draping herself with the mantle of good faith in regard
to her insubordination and arrogance.

We also reject the respondent's appeal for relief based on her supposed lack of experience as a neophyte judge, and her
previously received awards and outstanding court performance. Lack of experience had no relevance in determining her
administrative liabilities for acts and actuations fundamentally irregular or contrary to judicial ethical standards. We even
believe that her being a novice in the Judiciary, instead of mitigating her liability, could have aggravated her offense, for
her being a neophyte judge should have impelled her instead to practice greater prudence and caution in her daily
actuations and performance. But instead of pausing and hesitating, she acted rashly and imprudently by condescendingly
asserting herself over her peers, by flagrantly disobeying her superiors, including this Court, and by ignoring obvious
boundaries that should have kept her in check or reined her in. On the other hand, the awards for outstanding
performances as a professional and as a judge, far from accenting her good qualities as a person, rather highlighted her
unworthiness to remain on the Bench by showing that her misconduct and general bad attitude as a member thereof has
put the awards and recognitions in serious question.

2. Disbarment is also to be imposed on the respondent

The respondent's accountability did not end with her removal from the Judiciary. In the decision of November 22, 2016, we
declared that her misdemeanor as a member of the Bench could also cause her expulsion from the Legal Profession
through disbarment. Consequently, we directed her to show good and sufficient cause why her actions and actuations
should not also be considered grounds for her disbarment, justifying our directive in the following manner, viz.:

The foregoing findings may already warrant Judge Yu's disbarment.

A.M. No. 02-9-02-SC, dated September 17, 2002 and entitled Re: Automatic Conversion of Some Administrative Cases
Against Justices of the Court of Appeals and the Sandiganbayan; Judges of Regular and Special Courts; and Court Officials
Who are Lawyers as Disciplinary

Proceedings Against Them Both as Such Officials and as Members of the Philippine Bar, relevantly states:

Some administrative cases against Justices of the Court of Appeals and the Sandiganbayan; judges of regular and special
courts; and court officials who are lawyers are based on grounds which are likewise grounds for the disciplinary action of
members of the Bar for violation of the Lawyer's Oath, the Code of Professional Responsibility, and the Canons of
Professional Ethics, or for such other forms of breaches of conduct that have been traditionally recognized as grounds for
the discipline of lawyers.

In any of the foregoing instances, the administrative case shall also be considered a disciplinary action against the
respondent Justice, judge or court official concerned as a member of the Bar. The respondent may forthwith be required to
comment on the complaint and show cause why he should not also be suspended, disbarred or otherwise disciplinarily
sanctioned as a member of the Bar. Judgment in both respects may be incorporated in one decision or resolution.

Under Section 27, Rule 138 of the Rules of Court, an attorney may be disbarred on the ground of gross misconduct and
willful disobedience of any lawful order of a superior court. Given her wanton defiance of the Court's own directives, her
open disrespect towards her fellow judges, her blatant abuse of the powers appurtenant to her judicial office, and her
penchant for threatening the defenseless with legal actions to make them submit to her will, we should also be imposing
the penalty of disbarment.1âwphi1 The object of disbarment is not so much to punish the attorney herself as it is to
safeguard the administration of justice, the courts and the public from the misconduct of officers of the court. Also,
disbarment seeks to remove from the Law Profession attorneys who have disregarded their Lawyer's Oath and thereby
proved themselves unfit to continue discharging the trust and respect given to them as members of the Bar.

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The administrative charges against respondent Judge Yu based on grounds that were also grounds for disciplinary actions
against members of the Bar could easily be treated as justifiable disciplinary initiatives against her as a member of the Bar.
This treatment is explained by the fact that her membership in the Bar was an integral aspect of her qualification for
judgeship. Also, her moral and actual unfitness to remain as a Judge, as found in these cases, reflected her indelible
unfitness to remain as a member of the Bar. At the very least, a Judge like her who disobeyed the basic rules of judicial
conduct should not remain as a member of the Bar because she had thereby also violated her Lawyer's Oath.

Indeed, respondent Judge Yu's violation of the fundamental tenets of judicial conduct embodied in the New Code of
Judicial Conduct for the Philippine Judiciary would constitute a breach of the following canons of the Code of Professional
Responsibility, to wit:

CANON 1 - A LA WYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND AND PROMOTE RESPECT
FOR LAW AND FOR LEGAL PROCESSES.

Rule 1.02 - A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal
system.

CANON 6 - THESE CANONS SHALL APPLY TO LAWYERS IN GOVERNMENT SERVICE IN THE DISCHARGE OF THEIR
OFFICIAL TASKS.

Rule 6.02 - A lawyer in the government service shall not use his public position to promote or advance his private interests,
nor allow the latter to interfere with his public duties.

CANON 11 - A LAWYER SHALL OBSERVE AND MAINTAIN THE RESPECT DUE TO THE COURTS AND TO JUDICIAL
OFFICERS AND SHOULD INSIST ON SIMILAR CONDUCT BY OTHERS.

Rule 11.03 - A lawyer shall abstain from scandalous, offensive or menacing language or behavior before the Courts.

The Court does not take lightly the ramifications of Judge Yu's misbehavior and misconduct as a judicial officer. By
penalizing her with the supreme penalty of dismissal from the service, she should not anymore be allowed to remain a
member of the Law Profession.

However, this rule of fusing the dismissal of a Judge with disbarment does not in any way dispense with or set aside the
respondent's right to due process. As such, her disbarment as an offshoot of A.M. No. 02-9-02-SC without requiring her to
comment on the disbarment would be violative of her right to due process. To accord due process to her, therefore, she
should first be afforded the opportunity to defend her professional standing as a lawyer before the Court would determine
whether or not to disbar her.

In her comment, the respondent reiterates her submissions in the Motion for Reconsideration with Explanation for the
Show Cause Order. Considering that we have dismissed her pleadings altogether for the reasons given earlier, her
disbarment is now inevitable.

Section 27, Rule 138 of the Rules of Court reads:

Sec. 27. Attorneys removed or suspended by Supreme Court on what grounds. - A member of the bar may be removed or
suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such
office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of
the oath which he is required to take before the admission to practice, or for a willful disobedience of any lawful order of a
superior court, or for corruptly or willfully appearing as an attorney for a party to a case without authority so to do. The
practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes
malpractice.

Accordingly, gross misconduct, violation of the Lawyer's Oath, and willful disobedience of any lawful order by the Court
constitute grounds to disbar an attorney. In the respondent's case, she was herein found to have committed all of these
grounds for disbarment, warranting her immediate disbarment as a consequence.

We deem it worthwhile to remind that the penalty of disbarment being hereby imposed does not equate to stripping the
respondent of the source of her livelihood. Disbarment is intended to protect the administration of justice by ensuring that
those taking part in it as attorneys should be competent, honorable and reliable to enable the courts and the clients they
serve to rightly repose their confidence in them.35

Once again, we express our disdain for judges and attorneys who undeservedly think too highly of themselves, their
personal and professional qualifications and qualities at the expense of the nobility of the Law Profession. It is well to
remind the respondent that membership in the Law Profession is not like that in any ordinary trade. The Law is a noble
calling, and only the individuals who are competent and fit according to the canons and standards set by this Court, the
law and the Rules of Court may be bestowed the privilege to practice it.36

Lastly, every lawyer must pursue only the highest standards in the practice of his calling. The practice of law is a privilege,
and only those adjudged qualified are permitted to do so.37 The respondent has fallen short of this standard thus meriting
her expulsion from the profession.

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WHEREFORE, the Court DENIES the Motion for Reconsideration with Explanation for the Show Cause
Order with FINALITY; DISBARS EFFECTIVE IMMEDIATELY respondent ELIZA B. YU pursuant to A.M. No. 02-9-02-
SC for violation of the Lawyer's Oath, the Code of Professional Responsibility, and the Canons of Professional Ethics; and

ORDERS the striking off of respondent ELIZA B. YU's name from the Roll of Attorneys.

Let copies of this resolution be furnished to: (a) the Office of the Court Administrator for dissemination to all courts
throughout the country for their information and guidance; (b) the Integrated Bar of the Philippines; and (c) the Office of
the Bar Confidant to be appended to the respondent's personal record as a member of the Bar. SO ORDERED.

G.R. No. 185740 July 23, 2013 THE PROVINCIAL GOVERNMENT OF CAMARINES NORTE, represented
by GOVERNOR JESUS O. TYPOCO, JR., Petitioner, vs. BEATRIZ O. GONZALES, Respondent. BRION, J.:

We resolve the Provincial Government of Camarines Norte's (petitioner) petition for review on certiorari 1 assailing the
Decision2 dated June 25, 2008 and the Resolution3 dated December 2, 2008 of the Court of Appeals (CA) in CA-G.R. SP No.
97425, reinstating respondent Beatriz O. Gonzales as the Province of Camarines Norte’s provincial administrator, or to an
equivalent position.

Factual Antecedents

Gonzales was appointed as the provincial administrator of the Province of Camarines Norte by then Governor Roy A.
Padilla, Jr. on April 1, 1991. Her appointment was on a permanent capacity. On March 8, 1999, Governor Jess B. Pimentel
sent Gonzales a memorandum directing her to explain in writing why no administrative charges should be filed against her
for gross insubordination/gross discourtesy in the course of official duties, and conduct grossly prejudicial to the best
interest of the service; this was later on captioned as Administrative Case No. 001. After Gonzales submitted her comment,
an Ad Hoc Investigation Committee found her guilty of the charges against her, and recommended to Governor Pimentel
that she be held administratively liable.4 On September 30, 1999, Governor Pimentel adopted the Ad Hoc Investigation
Committee’s recommendation and dismissed Gonzales.5

Proceedings before the Civil Service Commission

Gonzales appealed Governor Pimentel’s decision to the Civil Service Commission (CSC). The CSC issued Resolution No.
0014186 modifying Governor Pimentel’s decision, finding Gonzales guilty of insubordination and suspending her for six
months. This decision was appealed by Governor Pimentel, which the CSC denied in its Resolution No. 001952.7

Gonzales then filed a motion for execution and clarification of Resolution No. 001418, in which she claimed that she had
already served her six-month suspension and asked to be reinstated. The CSC issued Resolution No. 002245, 8which
directed Gonzales’ reinstatement.

Governor Pimentel reinstated Gonzales as provincial administrator on October 12, 2000, but terminated her services the
next day for lack of confidence. He then wrote a letter9 to the CSC reporting his compliance with its order, and Gonzales’
subsequent dismissal as a confidential employee. In his letter, Governor Pimentel cited Resolution No. 0001158, 10 where
the CSC ruled that the provincial administrator position is highly confidential and is coterminous in nature.

The CSC responded through Resolution No. 030008,11 which again directed Gonzales’ reinstatement as provincial
administrator. It clarified that while the Local Government Code of 1991 (Republic Act No. RA 7160) made the provincial
administrator position coterminous and highly confidential in nature, this conversion cannot operate to prejudice officials
who were already issued permanent appointments as administrators prior to the new law’s effectivity. According to the
CSC, Gonzales has acquired a vested right to her permanent appointment as provincial administrator and is entitled to
continue holding this office despite its subsequent classification as a coterminous position. The conversion of the provincial
administrator position from a career to a non-career service should not jeopardize Gonzales’ security of tenure guaranteed
to her by the Constitution. As a permanent appointee, Gonzales may only be removed for cause, after due notice and
hearing. Loss of trust and confidence is not among the grounds for a permanent appointee’s dismissal or discipline under
existing laws.

In a letter12 dated February 17, 2005, Gonzales wrote the CSC alleging that Governor Jesus O. Typoco, Jr., Camarines
Norte’s incumbent governor, refused to reinstate her. The CSC responded with Resolution No. 061988, 13 which ordered
Gonzales’ reinstatement to the provincial administrator position, or to an equivalent position.Thus, the petitioner, through
Governor Typoco, filed a petition for review before the CA, seeking to nullify the CSC’s Resolution No. 030008 and
Resolution No. 061988.

The Appellate Court’s Ruling

The CA supported the CSC’s ruling that reinstated Gonzales as provincial administrator or to an equivalent position. 14

Citing Aquino v. Civil Service Commission,15 the CA emphasized that an appointee acquires a legal right to his position once
he assumes a position in the civil service under a completed appointment. This legal right is protected both by statute and

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the Constitution, and he cannot be removed from office without cause and previous notice and hearing. Appointees cannot
be removed at the mere will of those vested with the power of removal, or without any cause.

The CA then enumerated the list of valid causes for a public officer’s removal under Section 46,16 Book V, Title I, Subtitle A
of the Revised Administrative Code (Administrative Code), and noted that lack of confidence was not in the list. Thus, the
CA concluded that Gonzales’ dismissal on the ground of loss of confidence violated her security of tenure, and that she has
the right to be reinstated with payment of backwages.

The CA further held that Gonzales’ dismissal was illegal because it was done without due process. The proceedings under
Administrative Case No. 001 cannot be the basis for complying with the requirements of due process because they are
separate and distinct from the proceedings in the present controversy. Thus, Gonzales was illegally terminated when she
was dismissed for lack of confidence, without any hearing, the day after she was reinstated.

Lastly, the CA noted that Resolution No. 002245, which modified Governor Pimentel’s decision, has long been final and
executory. The petitioner did not file any petition for reconsideration against Resolution No. 002245, and hence, it is no
longer alterable.

The petitioner sought a reconsideration17 of the CA’s Decision, which the CA denied in a Resolution18 dated December 2,
2008.

The Present Petition

In its present petition for review on certiorari, the petitioner argues that the provincial administrator position has been
converted into a highly confidential, coterminous position by RA 7160. Hence, Gonzales no longer enjoyed security of
tenure to the position she held prior to RA 7160’s enactment.

In her Comment19 and Memorandum,20 Gonzales maintained that the provincial administrator remained a career service
position. Section 721 of Presidential Decree No. 807, which was one of the bases of the Court in Laurel V v. Civil Service
Commission22 to declare the provincial administrator as a career service position, is a verbatim copy of Section 7,23 Chapter
2 of the Administrative Code. This classification, established by law and jurisprudence, cannot be altered by the mere
implementing rules and regulations of RA 7160. And assuming arguendo that the provincial administrator position has
indeed become a primarily confidential position, this reclassification should not apply retroactively to Gonzales’
appointment on a permanent capacity prior to RA 7160’s effectivity.

Issues

The parties’ arguments, properly joined, present to us the following issues:

1) Whether Congress has re-classified the provincial administrator position from a career service to a primarily
confidential, non-career service position; and

2) Whether Gonzales has security of tenure over her position as provincial administrator of the Province of
Camarines Norte.

The Court’s Ruling

We find the petition meritorious.

Congress has reclassified the provincial administrator position as a primarily confidential, non-career position

We support the CSC’s conclusion that the provincial administrator position has been classified into a primarily confidential,
non-career position when Congress, through RA 7160, made substantial changes to it. First, prior to RA 7160, Batas
Pambansa Blg. 337, the old Local Government Code (LGC), did not include a provincial administrator position among the
listing of mandatory provincial officials,24 but empowered the Sangguniang Panlalawigan to create such other offices as
might then be necessary to carry out the purposes of the provincial government.25 RA 7160 made the position mandatory
for every province.26 Thus, the creation of the provincial administrator position under the old LGC used to be a prerogative
of the Sangguniang Panlalawigan.

Second, in introducing the mandatory provincial administrator position, RA 7160 also amended the qualifications for the
provincial administrator position. While Section 48027 of RA 7160 retained the requirement of civil service eligibility for a
provincial administrator, together with the educational requirements, it shortened the six-year work experience
requirement to five years.28 It also mandated the additional requirements of residence in the local government concerned,
and imposed a good moral character requirement.

Third, RA 7160 made the provincial administrator position coterminous with its appointing authority, reclassifying it as a
non-career service position that is primarily confidential.

Before RA 7160 took effect, Laurel classified the provincial administrator position as an open career position which required
qualification in an appropriate examination prior to appointment. Laurel placed the provincial administrator position under

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the second major level of positions in the career service under Section 7 of Presidential Decree No. 807. This provision
reads:

Section 7. Classes of Positions in the Career Service.

(a) Classes of positions in the career service appointment to which requires examinations shall be grouped into three major
levels as follows:

xxxx

2. The second level shall include professional, technical, and scientific positions which involve professional, technical, or
scientific work in a non-supervisory or supervisory capacity requiring at least four years of college work up to Division Chief
level.

Section 480 of RA 7160 made the provincial administrator’s functions closely related to the prevailing provincial
administration by identifying the incumbent with the provincial governor to ensure the alignment of the governor’s
direction for the province with what the provincial administrator would implement. In contrast with the general direction
provided by the provincial governor under the Manual of Position Descriptions cited in Laurel, Section 480(b) of RA 7160
now mandates constant interaction between the provincial administrator and the provincial governor, to wit:

(b) The administrator shall take charge of the office of the administrator and shall:

(1) Develop plans and strategies and upon approval thereof by the governor or mayor, as the case may be,
implement the same particularly those which have to do with the management and administration-related
programs and projects which the governor or mayor is empowered to implement and which the sanggunian is
empowered to provide for under this Code;

(2) In addition to the foregoing duties and functions, the administrator shall:

(i) Assist in the coordination of the work of all the officials of the local government unit, under the supervision, direction,
and control of the governor or mayor, and for this purpose, he may convene the chiefs of offices and other officials of the
local government unit;

xxxx

(4) Recommend to the sanggunian and advise the governor and mayor, as the case may be, on all other matters relative
to the management and administration of the local government unit. [emphases and italics ours]

As the CSC correctly noted in Resolution No. 0001158,29 the administrator position demands a close intimate relationship
with the office of the governor (its appointing authority) to effectively develop, implement and administer the different
programs of the province. The administrator’s functions are to recommend to the Sanggunian and to advise the governor
on all matters regarding the management and administration of the province, thus requiring that its occupant enjoy the
governor’s full trust and confidence.

To emphasize the close relations that the provincial administrators’ functions have with the office of the governor, RA 7160
even made the provincial administrator position coterminous with its appointing authority.30 This provision, along with the
interrelations between the provincial administrator and governor under Section 480, renders clear the intent of Congress to
make the provincial administrator position primarily confidential under the non-career service category of the civil service.

Congress’ reclassification of the provincial administrator position in RA 7160 is a valid exercise of legislative power that
does not violate Gonzales’ security of tenure

Having established that Congress has changed the nature of the provincial administrator position to a primarily confidential
employee, the next question to address would be its impact on Gonzales’ security of tenure. According to the petitioner,
Gonzales lost her security of tenure when the provincial administrator position became a primarily confidential position.
Gonzales, on the other hand, retorted that the conversion of the position should not be retroactively applied to her, as she
is a permanent appointee. Both the CA and the CSC ruled in favor of the latter, and gave premium to Gonzales’ original
permanent appointment under the old LGC. They posit that Gonzales acquired a vested legal right over her position from
the moment she assumed her duties as provincial administrator. Thus, she cannot be removed from office except for cause
and after due hearing; otherwise such removal would amount to a violation of her security of tenure.

The arguments presented by the parties and ruled upon by the CA reflect a conceptual entanglement between the nature
of the position and an employee’s right to hold a position. These two concepts are different. The nature of a position may
change by law according to the dictates of Congress. The right to hold a position, on the other hand, is a right that enjoys
constitutional and statutory guarantee, but may itself change according to the nature of the position.

Congress has the power and prerogative to introduce substantial changes in the provincial administrator position and to
reclassify it as a primarily confidential, non-career service position. Flowing from the legislative power to create public
offices is the power to abolish and modify them to meet the demands of society;31 Congress can change the qualifications
for and shorten the term of existing statutory offices. When done in good faith, these acts would not violate a public

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officer’s security of tenure, even if they result in his removal from office or the shortening of his term. 32 Modifications in
public office, such as changes in qualifications or shortening of its tenure, are made in good faith so long as they are aimed
at the office and not at the incumbent.33

In Salcedo and Ignacio v. Carpio and Carreon,34 for instance, Congress enacted a law modifying the offices in the Board of
Dental Examiners. The new law, RA 546, raised the qualifications for the board members, and provided for a different
appointment process. Dr. Alfonso C. Salcedo and Dr. Pascual Ignacio, who were incumbent board members at the time RA
546 took effect, filed a special civil action for quo warranto against their replacements, arguing that their term of office
under the old law had not yet expired, and neither had they abandoned or been removed from office for cause. We
dismissed their petition, and held that Congress may, by law, terminate the term of a public office at any time and even
while it is occupied by the incumbent. Thus, whether Dr. Salcedo and Dr. Ignacio were removed for cause or had
abandoned their office is immaterial.

More recently, in Dimayuga v. Benedicto II,35 we upheld the removal of Chona M. Dimayuga, a permanent appointee to
the Executive Director II position, which was not part of the career executive service at the time of her appointment.
During her incumbency, the CSC, by authority granted under Presidential Decree No. 1, classified the Executive Director II
position to be within the career executive service. Since Dimayuga was not a career executive service officer, her initially
permanent appointment to the position became temporary; thus, she could be removed from office at any time.

In the current case, Congress, through RA 7160, did not abolish the provincial administrator position but significantly
modified many of its aspects. It is now a primarily confidential position under the non-career service tranche of the civil
service. This change could not have been aimed at prejudicing Gonzales, as she was not the only provincial administrator
incumbent at the time RA 7160 was enacted. Rather, this change was part of the reform measures that RA 7160
introduced to further empower local governments and decentralize the delivery of public service. Section 3(b) of RA 7160
provides as one of its operative principles that:

(b) There shall be established in every local government unit an accountable, efficient, and dynamic organizational
structure and operating mechanism that will meet the priority needs and service requirements of its communities.

Thus, Gonzales’ permanent appointment as provincial administrator prior to the enactment of RA 7160 is immaterial to her
removal as provincial administrator. For purposes of determining whether Gonzales’ termination violated her right to
security of tenure, the nature of the position she occupied at the time of her removal should be considered, and not merely
the nature of her appointment at the time she entered government service.

In echoing the CSC and the CA’s conclusion, the dissenting opinion posits the view that security of tenure protects the
permanent appointment of a public officer, despite subsequent changes in the nature of his position.

Citing Gabriel v. Domingo,36 the dissenting opinion quotes our categorical declaration that "a permanent employee remains
a permanent employee unless he is validly terminated," and from there attempts to draw an analogy between Gabriel and
the case at hand.

The very first sentence of Gabriel spells out its vast difference from the present case. The sole and main issue in Gabriel is
whether backwages and other monetary benefits could be awarded to an illegally dismissed government employee, who
was later ordered reinstated. From this sentence alone can be discerned that the issues involved related to the
consequences of illegal dismissal rather than to the dismissal itself. Nowhere in Gabrielwas there any mention of a change
in the nature of the position held by the public officer involved.

Further, key factual differences make Gabriel inapplicable to the present case, even if only by analogy: first, the public
officer in Gabriel received a Memorandum stating that he would be appointed as Transportation District Supervisor III
under their office reorganization. Second, the Court in Gabriel clearly pointed out that the reason for his eventual
appointment as a casual employee, which led to his termination from service, was due to a pending protest he filed before
the CSC – indicating that there was no ground for him to not receive the appointment earlier promised. In contrast, the
issue of Gonzales is whether the appointing authority’s lack of trust and confidence in the appointee was sufficient cause
for the termination of employment of a primarily confidential employee. And third, there was a change in the position held
by the public officer in Gabriel. He was a permanent employee who was extended a different appointment, which was
casual in nature, because of a protest that he earlier filed. In contrast, the current case involves a public officer who held
the same position whose nature changed because of the passage of RA 7160.

The dissent also quotes the penultimate paragraph of Civil Service Commission v. Javier37 to support its contention that
permanent appointees could expect protection for their tenure and appointments in the event that the Court determines
that the position is actually confidential in nature:

The Court is aware that this decision has repercussions on the tenure of other corporate secretaries in various GOCCs. The
officers likely assumed their positions on permanent career status, expecting protection for their tenure and appointments,
but are now re-classified as primarily confidential appointees. Such concern is unfounded, however, since the statutes
themselves do not classify the position of corporate secretary as permanent and career in nature. Moreover, there is no
absolute guarantee that it will not be classified as confidential when a dispute arises. As earlier stated, the Court, by legal
tradition, has the power to make a final determination as to which positions in government are primarily confidential or
otherwise. In the light of the instant controversy, the Court's view is that the greater public interest is served if the position
of a corporate secretary is classified as primarily confidential in nature.38

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The quoted portion, however, even bolsters our theory. Read together with its succeeding paragraph, the quoted portion
in Civil Service Commission v. Javier39 actually stands for the proposition that other corporate secretaries in government-
owned and –controlled corporations cannot expect protection for their tenure and appointments upon the reclassification of
their position to a primarily confidential position. There, the Court emphasized that these officers cannot rely on the
statutes providing for their permanent appointments, if and when the Court determines these to be primarily confidential.
In the succeeding paragraph after the portion quoted by the dissent, we even pointed out that there is no vested right to
public office, nor is public service a property right. Thus:

Moreover, it is a basic tenet in the country's constitutional system that "public office is a public trust," and that there is no
vested right in public office, nor an absolute right to hold office. No proprietary title attaches to a public office, as public
service is not a property right. Excepting constitutional offices which provide for special immunity as regards salary and
tenure, no one can be said to have any vested right in an office. The rule is that offices in government, except those
created by the constitution, may be abolished, altered, or created anytime by statute. And any issues on the classification
for a position in government may be brought to and determined by the courts.40(emphases and italics ours)

Executive Order No. 503 does not grant Gonzales security of tenure in the provincial administrator position on a permanent
capacity

In extending security of tenure to Gonzales’ permanent appointment as provincial administrator, the dissenting opinion
cites as authority Executive Order No. (EO) 503 which provided certain safeguards against the termination of government
employees affected by the implementation of RA 7160. According to the dissenting opinion, EO 503 is an obvious indication
of the executive department’s intent to protect and uphold both the national government and the local government
employees’ security of tenure. It cites Section 2(a), paragraph 8 (providing for the tenure of an administrator) to prove its
point:

8. Incumbents of positions, namely administrator, legal officer, and information officer declared by the Code as
coterminous, who hold permanent appointments, shall continue to enjoy their permanent status until they vacate their
positions.

At first glance, EO 503 does seem to extend the provincial administrators’ security of tenure in their permanent
appointments even beyond the effectivity of RA 7160. EO 503, however, does not apply to employees of the local
government affected by RA 7160’s enactment. The title of EO 503 clearly provides for its scope of application, to wit:

Executive Order No. 503. Providing for the Rules and Regulations Implementing the Transfer of Personnel and Assets,
Liabilities and Records of National Government Agencies whose Functions are to be Devolved to the Local Government
Units and for other Related Purposes. [underscore, italics and emphases ours]

A reading of EO 503’s whereas clauses confirms that it applies only to national government employees whose functions are
to be devolved to local governments:

WHEREAS, Republic Act No. 7160, otherwise known as the Local Government Code of 1991, hereinafter referred to as the
Code, transfers the responsibility for the delivery of basic services and facilities from the national government agencies
(NGAs) concerned to the local government units (LGUs);

WHEREAS, the Code stipulated that the transfer of basic services and facilities shall be accompanied by the transfer of the
national personnel concerned and assets to ensure continuity in the delivery of such services and facilities;

WHEREAS, responsive rules and regulations are needed to affect the required transfer of national personnel concerned and
assets to the LGUs. [underscores, italics and emphases ours]

Thus, paragraph 8, section 2(a) of EO 503 cannot apply to Gonzales, a provincial administrator. As explained earlier, the
existence of the provincial administrator position was a prerogative of the Sanggunian Panlalawigan, and was not even a
mandatory public office under the old LGC. It is clearly not a national government position whose functions are to be
devolved to the local governments.

The dissenting opinion, on the other hand, argues that EO 503 does not apply to national government employees only.
According to the dissent, the phrase "and for related purposes" in EO 503’s title could encompass personnel not necessarily
employed by national government agencies but by local government units such as the administrator, the legal officer and
the information officer, as enumerated in Section 2(a), paragraph 8 thereof. This provision, according to the dissent, fills
the crucial gap left by RA 7160 which did not provide whether the term of an incumbent provincial administrator would
automatically become coterminous with that of the appointing authority upon RA 7160’s effectivity.

This kind of construction effectively adds to EO 503’s object matters that it did not explicitly provide for. The phrase "and
for other related purposes" can only add to EO 503 matters related to the devolution of personnel, basic services and
facilities to local government units. The impact of the change in a local government position’s nature is clearly different
from the implementation of devolution and its ancillary effects: the former involves a change in a local government
position’s functions and concept of tenure, while the latter involves (among other things) the transfer of national
government employees to local government units. This difference is highlighted by the fact that EO 503, as reflected by its
whereas clauses, was issued to implement Section 17 of RA 7160. In contrast, the change in the nature of the provincial
administrator position may be gleaned from Section 480 of RA 7160. Hence, by no stretch of reasonable construction can

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the phrase "and for other related purposes" in EO 503’s title be understood to encompass the consequences of the change
in the local government position’s nature.

Furthermore, construing that the administrator position in Section 2(a), paragraph 8 pertains to city, municipal and/or
provincial administrators would result in a legal infirmity. EO 503 was issued pursuant to the President’s ordinance powers
to provide for rules that are general or permanent in character for the purpose of implementing the President’s
constitutional or statutory powers.41 Exercising her constitutional duty to ensure that all laws are faithfully executed, then
President Corazon Aquino issued EO 503 to ensure the executive’s compliance with paragraph (i), Section 17 of RA 7160,
which requires local government units to absorb the personnel of national agencies whose functions shall be devolved to
them.42 This is reflected in EO 503’s title and whereas clauses, and its limited application as discussed earlier.

Thus, the dissenting opinion’s interpretation would result in the judicial recognition of an act of the Executive usurping a
legislative power. The grant of permanent status to incumbent provincial administrators, despite the clear language and
intent of RA 7160 to make the position coterminous, is an act outside the President’s legitimate powers. The power to
create, abolish and modify public offices is lodged with Congress.43 The President cannot, through an Executive Order,
grant permanent status to incumbents, when Congress by law has declared that the positions they occupy are now
confidential. Such act would amount to the President’s amendment of an act of Congress – an act that the Constitution
prohibits. Allowing this kind of interpretation violates the separation of powers, a constitutionally enshrined principle that
the Court has the duty to uphold.44

The dissent counters this argument by pointing out that Section 2(a), paragraph 8 of EO 503 enjoys the legal presumption
of validity. Unless the law or rule is annulled in a direct proceeding, the legal presumption of its validity stands. The EO’s
validity, however, is not in question in the present case. What is at issue is a proper interpretation of its application giving
due respect to the principle of separation of powers, and the dissenting opinion’s interpretation does violence to this
principle.

Gonzales has security of tenure, but only as a primarily confidential employee

To be sure, both career and non-career service employees have a right to security of tenure.1âwphi1 All permanent
officers and employees in the civil service, regardless of whether they belong to the career or non-career service category,
are entitled to this guaranty; they cannot be removed from office except for cause provided by law and after procedural
due process.45 The concept of security of tenure, however, labors under a variation for primarily confidential employees
due to the basic concept of a "primarily confidential" position. Serving at the confidence of the appointing authority, the
primarily confidential employee’s term of office expires when the appointing authority loses trust in the employee. When
this happens, the confidential employee is not "removed" or "dismissed" from office; his term merely "expires" 46 and the
loss of trust and confidence is the "just cause" provided by law that results in the termination of employment. In the
present case where the trust and confidence has been irretrievably eroded, we cannot fault Governor Pimentel’s exercise of
discretion when he decided that he could no longer entrust his confidence in Gonzales.

Security of tenure in public office simply means that a public officer or employee shall not be suspended or dismissed
except for cause, as provided by law and after due process. It cannot be expanded to grant a right to public office despite
a change in the nature of the office held. In other words, the CSC might have been legally correct when it ruled that the
petitioner violated Gonzales’ right to security of tenure when she was removed without sufficient just cause from her
position, but the situation had since then been changed. In fact, Gonzales was reinstated as ordered, but her services were
subsequently terminated under the law prevailing at the time of the termination of her service; i.e., she was then already
occupying a position that was primarily confidential and had to be dismissed because she no longer enjoyed the trust and
confidence of the appointing authority. Thus, Gonzales’ termination for lack of confidence was lawful. She could no longer
be reinstated as provincial administrator of Camarines Norte or to any other comparable position. This conclusion,
however, is without prejudice to Gonzales’ entitlement to retirement benefits, leave credits, and future employment in
government service.

WHEREFORE, all premises considered, we hereby GRANT the petition, and REVERSE and SET ASIDE the Decision dated
June 25, 2008 and the Resolution dated December 2, 2008 of the Court of Appeals in CAG.R. SP No. 97425.

SO ORDERED.

G.R. No. 164679 July 27, 2011 OFFICE OF THE OMBUDSMAN, Petitioner, vs. ULDARICO P. ANDUTAN,
JR., Respondent. BRION, J.:

Through a petition for review on certiorari,1 the petitioner Office of the Ombudsman (Ombudsman) seeks the reversal of
the decision2 of the Court of Appeals (CA), dated July 28, 2004, in "Uldarico P. Andutan, Jr. v. Office of the Ombudsman
and Fact Finding and Intelligence Bureau (FFIB), etc.," docketed as CA-G.R. SP No. 68893. The assailed decision annulled
and set aside the decision of the Ombudsman dated July 30, 2001,3 finding Uldarico P. Andutan, Jr. guilty of Gross Neglect
of Duty.

THE FACTUAL ANTECEDENTS

Andutan was formerly the Deputy Director of the One-Stop Shop Tax Credit and Duty Drawback Center of the Department
of Finance (DOF). On June 30, 1998, then Executive Secretary Ronaldo Zamora issued a Memorandum directing all non-

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career officials or those occupying political positions to vacate their positions effective July 1, 1998.4 On July 1, 1998,
pursuant to the Memorandum, Andutan resigned from the DOF.5

On September 1, 1999, Andutan, together with Antonio P. Belicena, former Undersecretary, DOF; Rowena P. Malonzo, Tax
Specialist I, DOF; Benjamin O. Yao, Chairman and Executive Officer, Steel Asia Manufacturing Corporation (Steel Asia);
Augustus S. Lapid, Vice-President, Steel Asia; Antonio M. Lorenzana, President and Chief Operating Officer, Steel Asia; and
Eulogio L. Reyes, General Manager, Devmark Textiles Ind. Inc., was criminally charged by the Fact Finding and Intelligence
Bureau (FFIB) of the Ombudsman with Estafa through Falsification of Public Documents, and violations of Section 3(a), (e)
and (j) of Republic Act No. (R.A.) 3019, otherwise known as the Anti-Graft and Corrupt Practices Act.6 As government
employees, Andutan, Belicena and Malonzo were likewise administratively charged of Grave Misconduct, Dishonesty,
Falsification of Official Documents and Conduct Prejudicial to the Best Interest of the Service.7

The criminal and administrative charges arose from anomalies in the illegal transfer of Tax Credit Certificates (TCCs) to
Steel Asia, among others.8

During the investigation, the FFIB found that Steel Asia fraudulently obtained TCCs worth Two Hundred Forty-Two Million,
Four Hundred Thirty-Three Thousand, Five Hundred Thirty-Four Pesos (₱242,433,534.00).9 The FFIB concluded that
Belicena, Malonzo and Andutan – in their respective capacities – irregularly approved the "issuance of the TCCs to several
garment/textile companies and allowing their subsequent illegal transfer" to Steel Asia.10

On November 11, 1999, the Ombudsman ordered the respondents therein (respondents) to submit their counter-affidavits.
Only Malonzo complied with the order, prompting the Ombudsman to set a Preliminary Conference on March 13, 2000.

Upon the respondents’ failure to appear at the March 20, 2000 hearing, the Ombudsman deemed the case submitted for
resolution.

On July 30, 2001, the Ombudsman found the respondents guilty of Gross Neglect of Duty.11 Having been separated from
the service, Andutan was imposed the penalty of forfeiture of all leaves, retirement and other benefits and privileges, and
perpetual disqualification from reinstatement and/or reemployment in any branch or instrumentality of the government,
including government owned and controlled agencies or corporations.12

After failing to obtain a reconsideration of the decision,13 Andutan filed a petition for review on certiorari before the CA.

On July 28, 2004,14 the CA annulled and set aside the decision of the Ombudsman, ruling that the latter "should not have
considered the administrative complaints" because: first, Section 20 of R.A. 6770 provides that the Ombudsman "may not
conduct the necessary investigation of any administrative act or omission complained of if it believes that x x x [t]he
complaint was filed after one year from the occurrence of the act or omission complained of";15 and second, the
administrative case was filed after Andutan’s forced resignation.16

THE PETITIONER’S ARGUMENTS

In this petition for review on certiorari, the Ombudsman asks the Court to overturn the decision of the CA. It submits, first,
that contrary to the CA’s findings, administrative offenses do not prescribe after one year from their commission, 17 and
second, that in cases of "capital" administrative offenses, resignation or optional retirement cannot render administrative
proceedings moot and academic, since accessory penalties such as perpetual disqualification and the forfeiture of
retirement benefits may still be imposed.18

The Ombudsman argues that Section 20 of R.A. 6770 is not mandatory. Consistent with existing jurisprudence, the use of
the word "may" indicates that Section 20 is merely directory or permissive.19 Thus, it is not ministerial upon it to dismiss
the administrative complaint, as long as any of the circumstances under Section 20 is present.20 In any case, the
Ombudsman urges the Court to examine its mandate under Section 13, Article XI of the 1987 Constitution, and hold that
an imposition of a one (1) year prescriptive period on the filing of cases unconstitutionally restricts its mandate. 21

Further, the Ombudsman submits that Andutan’s resignation from office does not render moot the administrative
proceedings lodged against him, even after his resignation. Relying on Section VI(1) of Civil Service Commission (CSC)
Memorandum Circular No. 38,22 the Ombudsman argues that "[a]s long as the breach of conduct was committed while the
public official or employee was still in the service x x x a public servant’s resignation is not a bar to his administrative
investigation, prosecution and adjudication."23 It is irrelevant that Andutan had already resigned from office when the
administrative case was filed since he was charged for "acts performed in office which are inimical to the service and
prejudicial to the interests of litigants and the general public."24 Furthermore, even if Andutan had already resigned, there
is a need to "determine whether or not there remains penalties capable of imposition, like bar from reentering the (sic)
public service and forfeiture of benefits."25 Finally, the Ombudsman reiterates that its findings against Andutan are
supported by substantial evidence.

THE RESPONDENT’S ARGUMENTS

Andutan raises three (3) counterarguments to the Ombudsman’s petition.

First, Andutan submits that the CA did not consider Section 20(5) of R.A. 6770 as a prescriptive period; rather, the CA
merely held that the Ombudsman should not have considered the administrative complaint. According to Andutan, Section
20(5) "does not purport to impose a prescriptive period x x x but simply prohibits the Office of the Ombudsman from

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conducting an investigation where the complaint [was] filed more than one (1) year from the occurrence of the act or
omission complained of."26 Andutan believes that the Ombudsman should have referred the complaint to another
government agency.27 Further, Andutan disagrees with the Ombudsman’s interpretation of Section 20(5). Andutan
suggests that the phrase "may not conduct the necessary investigation" means that the Ombudsman is prohibited to act
on cases that fall under those enumerated in Section 20(5).28

Second, Andutan reiterates that the administrative case against him was moot because he was no longer in the public
service at the time the case was commenced.29 According to Andutan, Atty. Perez v. Judge Abiera30 and similar cases cited
by the Ombudsman do not apply since the administrative investigations against the respondents in those cases were
commenced prior to their resignation. Here, Andutan urges the Court to rule otherwise since unlike the cases cited, he had
already resigned before the administrative case was initiated. He further notes that his resignation from office cannot be
characterized as "preemptive, i.e. made under an atmosphere of fear for the imminence of formal charges"31 because it
was done pursuant to the Memorandum issued by then Executive Secretary Ronaldo Zamora.

Having established the propriety of his resignation, Andutan asks the Court to uphold the mootness of the administrative
case against him since the cardinal issue in administrative cases is the "officer’s fitness to remain in office, the principal
penalty imposable being either suspension or removal."32 The Ombudsman’s opinion - that accessory penalties may still be
imposed - is untenable since it is a fundamental legal principle that "accessory follows the principal, and the former cannot
exist independently of the latter."33

Third, the Ombudsman’s findings were void because procedural and substantive due process were not observed. Likewise,
Andutan submits that the Ombudsman’s findings lacked legal and factual bases.

ISSUES

Based on the submissions made, we see the following as the issues for our resolution:
I. Does Section 20(5) of R.A. 6770 prohibit the Ombudsman from conducting an administrative investigation a
year after the act was committed?
II. Does Andutan’s resignation render moot the administrative case filed against him?
III. Assuming that the administrative case is not moot, are the Ombudsman’s findings supported by substantial
evidence?
THE COURT’S RULING

We rule to deny the petition.

The provisions of Section 20(5) are merely directory; the Ombudsman is not prohibited from conducting an investigation a
year after the supposed act was committed.

The issue of whether Section 20(5) of R.A. 6770 is mandatory or discretionary has been settled by jurisprudence. 34In
Office of the Ombudsman v. De Sahagun,35 the Court, speaking through Justice Austria-Martinez, held:

[W]ell-entrenched is the rule that administrative offenses do not prescribe [Concerned Taxpayer v. Doblada, Jr., A.M. No.
P-99-1342, September 20, 2005, 470 SCRA 218; Melchor v. Gironella, G.R. No. 151138, February 16, 2005, 451 SCRA
476; Heck v. Judge Santos, 467 Phil. 798, 824 (2004); Floria v. Sunga, 420 Phil. 637, 648-649 (2001)]. Administrative
offenses by their very nature pertain to the character of public officers and employees. In disciplining public officers and
employees, the object sought is not the punishment of the officer or employee but the improvement of the public service
and the preservation of the public’s faith and confidence in our government [Melchor v. Gironella, G.R. No. 151138,
February 16, 2005, 451 SCRA 476, 481; Remolona v. Civil Service Commission, 414 Phil. 590, 601 (2001)].

Respondents insist that Section 20 (5) of R.A. No. 6770, to wit:

SEC. 20. Exceptions. – The Office of the Ombudsman may not conduct the necessary investigation of any administrative
act or omission complained of if it believes that:

xxxx

(5) The complaint was filed after one year from the occurrence of the act or omission complained of. (Emphasis supplied)

proscribes the investigation of any administrative act or omission if the complaint was filed after one year from the
occurrence of the complained act or omission.

In Melchor v. Gironella [G.R. No. 151138, February 16, 2005, 451 SCRA 476], the Court held that the period stated in
Section 20(5) of R.A. No. 6770 does not refer to the prescription of the offense but to the discretion given to
the Ombudsman on whether it would investigate a particular administrative offense. The use of the word "may" in the
provision is construed as permissive and operating to confer discretion [Melchor v. Gironella, G.R. No. 151138, February
16, 2005, 451 SCRA 476, 481; Jaramilla v. Comelec, 460 Phil. 507, 514 (2003)]. Where the words of a statute are clear,
plain and free from ambiguity, they must be given their literal meaning and applied without attempted interpretation
[Melchor v. Gironella, G.R. No. 151138, February 16, 2005, 451 SCRA 476, 481; National Federation of Labor v. National
Labor Relations Commission, 383 Phil. 910, 918 (2000)].

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In Filipino v. Macabuhay [G.R. No. 158960, November 24, 2006, 508 SCRA 50], the Court interpreted Section 20 (5) of
R.A. No. 6770 in this manner:

Petitioner argues that based on the abovementioned provision [Section 20(5) of RA 6770)], respondent's complaint is
barred by prescription considering that it was filed more than one year after the alleged commission of the acts complained
of.

Petitioner's argument is without merit.

The use of the word "may" clearly shows that it is directory in nature and not mandatory as petitioner contends. When
used in a statute, it is permissive only and operates to confer discretion; while the word "shall" is imperative, operating to
impose a duty which may be enforced. Applying Section 20(5), therefore, it is discretionary upon the Ombudsman
whether or not to conduct an investigation on a complaint even if it was filed after one year from the
occurrence of the act or omission complained of. In fine, the complaint is not barred by
prescription. (Emphasis supplied)

The declaration of the CA in its assailed decision that while as a general rule the word "may" is directory, the negative
phrase "may not" is mandatory in tenor; that a directory word, when qualified by the word "not," becomes prohibitory and
therefore becomes mandatory in character, is not plausible. It is not supported by jurisprudence on statutory construction.
[emphases and underscoring supplied]

Clearly, Section 20 of R.A. 6770 does not prohibit the Ombudsman from conducting an administrative investigation after
the lapse of one year, reckoned from the time the alleged act was committed. Without doubt, even if the administrative
case was filed beyond the one (1) year period stated in Section 20(5), the Ombudsman was well within its discretion to
conduct the administrative investigation.

However, the crux of the present controversy is not on the issue of prescription, but on the issue of the Ombudsman’s
authority to institute an administrative complaint against a government employee who had already resigned. On this issue,
we rule in Andutan’s favor.

Andutan’s resignation divests the Ombudsman of its right to institute an administrative complaint against him.

Although the Ombudsman is not precluded by Section 20(5) of R.A. 6770 from conducting the investigation, the
Ombudsman can no longer institute an administrative case against Andutan because the latter was not a public servant at
the time the case was filed.

The Ombudsman argued – in both the present petition and in the petition it filed with the CA – that Andutan’s retirement
from office does not render moot any administrative case, as long as he is charged with an offense he committed while in
office. It is irrelevant, according to the Ombudsman, that Andutan had already resigned prior to the filing of the
administrative case since the operative fact that determines its jurisdiction is the commission of an offense while in the
public service.

The Ombudsman relies on Section VI(1) of Civil Service Commission Memorandum Circular No. 38 for this proposition, viz.:

Section VI.

1. x x x

An officer or employee under administrative investigation may be allowed to resign pending decision of his case but it shall
be without prejudice to the continuation of the proceeding against him. It shall also be without prejudice to the filing of
any administrative, criminal case against him for any act committed while still in the service. (emphasis and underscoring
supplied)

The CA refused to give credence to this argument, holding that the provision "refers to cases where the officers or
employees were already charged before they were allowed to resign or were separated from service." 36 In this case, the
CA noted that "the administrative cases were filed only after Andutan was retired, hence the Ombudsman was already
divested of jurisdiction and could no longer prosecute the cases." 37

Challenging the CA’s interpretation, the Ombudsman argues that the CA "limited the scope of the cited Civil Service
Memorandum Circular to the first sentence."38 Further, according to the Ombudsman, "the court a quo ignored the second
statement in the said circular that contemplates a situation where previous to the institution of the administrative
investigation or charge, the public official or employee subject of the investigation has resigned."39

To recall, we have held in the past that a public official’s resignation does not render moot an administrative case that was
filed prior to the official’s resignation. In Pagano v. Nazarro, Jr.,40 we held that:

In Office of the Court Administrator v. Juan [A.M. No. P-03-1726, 22 July 2004, 434 SCRA 654, 658], this Court
categorically ruled that the precipitate resignation of a government employee charged with an offense punishable by
dismissal from the service does not render moot the administrative case against him. Resignation is not a way out to
evade administrative liability when facing administrative sanction. The resignation of a public servant does not preclude the

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finding of any administrative liability to which he or she shall still be answerable [Baquerfo v. Sanchez, A.M. No. P-05-1974,
6 April 2005, 455 SCRA 13, 19-20]. [emphasis and underscoring supplied]

Likewise, in Baquerfo v. Sanchez,41 we held:

Cessation from office of respondent by resignation [Reyes v. Cristi, A.M. No. P-04-1801, 2 April 2004, 427 SCRA 8] or
retirement [Re: Complaint Filed by Atty. Francis Allan A. Rubio on the Alleged Falsification of Public Documents and
Malversation of Public Funds, A.M. No. 2004-17-SC, 27 September 2004; Caja v. Nanquil, A.M. No. P-04-1885, 13
September 2004] neither warrants the dismissal of the administrative complaint filed against him while he was still in the
service [Tuliao v. Ramos, A.M. No. MTJ-95-1065, 348 Phil. 404, 416 (1998), citing Perez v. Abiera, A.C. No. 223-J, 11 June
1975, 64 SCRA 302; Secretary of Justice v. Marcos, A.C. No. 207-J, 22 April 1977, 76 SCRA 301] nor does it render said
administrative case moot and academic [Sy Bang v. Mendez, 350 Phil. 524, 533 (1998)]. The jurisdiction that was this
Court’s at the time of the filing of the administrative complaint was not lost by the mere fact that the respondent public
official had ceased in office during the pendency of his case [Flores v. Sumaljag, 353 Phil. 10, 21 (1998)]. Respondent’s
resignation does not preclude the finding of any administrative liability to which he shall still be answerable [OCA v.
Fernandez, A.M. No. MTJ-03-1511, 20 August 2004]. [emphases and underscoring supplied)

However, the facts of those cases are not entirely applicable to the present case. In the above-cited cases, the Court found
that the public officials – subject of the administrative cases – resigned, either to prevent the continuation of a case
already filed42 or to pre-empt the imminent filing of one.43 Here, neither situation obtains.

The Ombudsman’s general assertion that Andutan pre-empted the filing of a case against him by resigning, since he "knew
for certain that the investigative and disciplinary arms of the State would eventually reach him"44 is unfounded. First,
Andutan’s resignation was neither his choice nor of his own doing; he was forced to resign. Second, Andutan resigned
from his DOF post on July 1, 1998, while the administrative case was filed on September 1, 1999, exactly one (1) year and
two (2) months after his resignation. The Court struggles to find reason in the Ombudsman’s sweeping assertions in light
of these facts.

What is clear from the records is that Andutan was forced to resign more than a year before the Ombudsman filed the
administrative case against him. Additionally, even if we were to accept the Ombudsman’s position that Andutan foresaw
the filing of the case against him, his forced resignation negates the claim that he tried to prevent the filing of the
administrative case.

Having established the inapplicability of prevailing jurisprudence, we turn our attention to the provisions of Section VI of
CSC Memorandum Circular No. 38. We disagree with the Ombudsman’s interpretation that "[a]s long as the breach of
conduct was committed while the public official or employee was still in the service x x x a public servant’s resignation is
not a bar to his administrative investigation, prosecution and adjudication."45 If we agree with this interpretation, any
official – even if he has been separated from the service for a long time – may still be subject to the disciplinary authority
of his superiors, ad infinitum. We believe that this interpretation is inconsistent with the principal motivation of the law –
which is to improve public service and to preserve the public’s faith and confidence in the government, and not the
punishment of the public official concerned.46 Likewise, if the act committed by the public official is indeed inimical to the
interests of the State, other legal mechanisms are available to redress the same.

The possibility of imposing

accessory penalties does not
negate the Ombudsman’s lack
of jurisdiction.

The Ombudsman suggests that although the issue of Andutan’s removal from the service is moot, there is an "irresistible
justification" to "determine whether or not there remains penalties capable of imposition, like bar from re-entering the
public service and forfeiture of benefits."47 Otherwise stated, since accessory penalties may still be imposed against
Andutan, the administrative case itself is not moot and may proceed despite the inapplicability of the principal penalty of
removal from office.

We find several reasons that militate against this position.

First, although we have held that the resignation of an official does not render an administrative case moot and academic
because accessory penalties may still be imposed, this holding must be read in its proper context. In Pagano v. Nazarro,
Jr.,48 indeed, we held:

A case becomes moot and academic only when there is no more actual controversy between the parties or no useful
purpose can be served in passing upon the merits of the case [Tantoy, Sr. v. Abrogar, G.R. No. 156128, 9 May 2005, 458
SCRA 301, 305]. The instant case is not moot and academic, despite the petitioner’s separation from government service.
Even if the most severe of administrative sanctions - that of separation from service - may no longer be imposed on the
petitioner, there are other penalties which may be imposed on her if she is later found guilty of administrative
offenses charged against her, namely, the disqualification to hold any government office and the forfeiture of
benefits. [emphasis and underscoring supplied]

Reading the quoted passage in a vacuum, one could be led to the conclusion that the mere availability of accessory
penalties justifies the continuation of an administrative case. This is a misplaced reading of the case and its ruling.

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Esther S. Pagano – who was serving as Cashier IV at the Office of the Provincial Treasurer of Benguet – filed her certificate
of candidacy for councilor four days after the Provincial Treasurer directed her to explain why no administrative case
should be filed against her. The directive arose from allegations that her accountabilities included a cash shortage of
₱1,424,289.99. She filed her certificate of candidacy under the pretext that since she was deemed ipso facto resigned from
office, she was no longer under the administrative jurisdiction of her superiors. Thus, according to Pagano, the
administrative complaint had become moot.

We rejected Pagano’s position on the principal ground "that the precipitate resignation of a government employee charged
with an offense punishable by dismissal from the service does not render moot the administrative case against him.
Resignation is not a way out to evade administrative liability when facing administrative sanction."49Our position that
accessory penalties are still imposable – thereby negating the mootness of the administrative complaint – merely flows
from the fact that Pagano pre-empted the filing of the administrative case against her. It was neither intended to be a
stand-alone argument nor would it have justified the continuation of the administrative complaint if Pagano’s filing of
candidacy/resignation did not reek of irregularities. Our factual findings in Pagano confirm this, viz.:

At the time petitioner filed her certificate of candidacy, petitioner was already notified by the Provincial Treasurer that she
needed to explain why no administrative charge should be filed against her, after it discovered the cash shortage of
₱1,424,289.99 in her accountabilities. Moreover, she had already filed her answer. To all intents and purposes, the
administrative proceedings had already been commenced at the time she was considered separated from service through
her precipitate filing of her certificate of candidacy. Petitioner’s bad faith was manifest when she filed it, fully knowing that
administrative proceedings were being instituted against her as part of the procedural due process in laying the foundation
for an administrative case.50 (emphasis and underscoring supplied)1avvphil

Plainly, our justification for the continuation of the administrative case – notwithstanding Pagano’s resignation – was her
"bad faith" in filing the certificate of candidacy, and not the availability of accessory penalties.

Second, we agree with the Ombudsman that "fitness to serve in public office x x x is a question of transcendental
[importance]51" and that "preserving the inviolability of public office" compels the state to prevent the "re-entry [to] public
service of persons who have x x x demonstrated their absolute lack of fitness to hold public office."52However, the State
must perform this task within the limits set by law, particularly, the limits of jurisdiction. As earlier stated, under the
Ombudsman’s theory, the administrative authorities may exercise administrative jurisdiction over subordinates ad
infinitum; thus, a public official who has validly severed his ties with the civil service may still be the subject of an
administrative complaint up to his deathbed. This is contrary to the law and the public policy behind it.

Lastly, the State is not without remedy against Andutan or any public official who committed violations while in office, but
had already resigned or retired therefrom. Under the "threefold liability rule," the wrongful acts or omissions of a public
officer may give rise to civil, criminal and administrative liability.53 Even if the Ombudsman may no longer file an
administrative case against a public official who has already resigned or retired, the Ombudsman may still file criminal and
civil cases to vindicate Andutan’s alleged transgressions. In fact, here, the Ombudsman – through the FFIB – filed a
criminal case for Estafa and violations of Section 3(a), (e) and (j) of the Anti-Graft and Corrupt Practices Act against
Andutan. If found guilty, Andutan will not only be meted out the penalty of imprisonment, but also the penalties of
perpetual disqualification from office, and confiscation or forfeiture of any prohibited interest. 54

Conclusion

Public office is a public trust. No precept of administrative law is more basic than this statement of what assumption of
public office involves. The stability of our public institutions relies on the ability of our civil servants to serve their
constituencies well.

While we commend the Ombudsman’s resolve in pursuing the present case for violations allegedly committed by Andutan,
the Court is compelled to uphold the law and dismiss the petition. Consistent with our holding that Andutan is no longer
the proper subject of an administrative complaint, we find no reason to delve on the Ombudsman’s factual findings.

WHEREFORE, we DENY the Office of the Ombudsman’s petition for review on certiorari, and AFFIRM the decision of the
Court of Appeals in CA-G.R. SP No. 68893, promulgated on July 28, 2004, which annulled and set aside the July 30, 2001
decision of the Office of the Ombudsman, finding Uldarico P. Andutan, Jr. guilty of Gross Neglect of Duty.

No pronouncement as to costs.

SO ORDERED.

G.R. No. 198140 IA1 ERWIN L. MAGCAMIT, Petitioner, vs. INTERNAL AFFAIRS SERVICE - PHILIPPINE DRUG
ENFORCEMENT AGENCY, as represented by SI V ROMEO M. ENRIQUEZ AND DIRECTOR GENERAL DIONISIO
R. SANTIAGO, Respondents. BRION, J.:

We resolve the petition for review on certiorari under Rule 45 of the Rules of Court1 filed by IA1 Erwin L.
Magcamit (Magcamit) from the March 17, 2011 decision2 and the August 9, 2011 Resolution3 of the Court of Appeals (CA)
in CA-G.R. SP No. 108281. The CA upheld the March 17, 2009 decision of the Civil Service Commission ( CSC) denying
Magcamit's appeal from the May 20, 2008 memorandum of the Internal Affairs Service of the Philippine Drug Enforcement
Agency (JAS-PDEA), which found Magcamit guilty of grave misconduct and, consequently, recommending his dismissal
from the service.

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 THE FACTUAL ANTECEDENTS

In a letter dated April 13, 2008, addressed to Director General Dionisio R. Santiago, a person named Delfin gave
information about an alleged extortion done to his mother by Magcamit and other PDEA agents. The PDEA agents denied
the irregularities imputed to them and maintained that the letter-complaint was made only to destroy their reputation.

On May 5, 2008, Magcamit and his co-agents, namely, IO3 Carlo Aldeon, IO2 Renato Infante, IO2 Ryan Alfaro, and IO2
Apolinario Mationg, Jr., were formally charged with Grave Misconduct for demanding and/or obtaining P200,000.00 from
Luciana M. Jaen (Jaen) in exchange for her release after she was apprehended in a buy-bust operation in Lipa City. After
they had submitted their Answer, their case was submitted for recommendation and action.

In a memorandum dated May 20, 2008, Special Investigator V Romeo M. Enriquez (SI V Enriquez) found Magcamit and
his co-agents liable for grave misconduct and recommended that they be dismissed from the civil service. Accordingly, they
were dismissed on June 5, 2008.

SI V Enriquez gave credence to Jaen’s narration of events that when she sought help from the team leader of the buy-bust
team, she was referred to SPO1 Peter Sistemio (SPO1 Sistemio) as the person who would facilitate her release; that SPO1
Sistemio bluntly demanded money in exchange; that she had initially offered P50,000.00 but SPO1 Sistemio rejected it
outright; and that, eventually, they agreed on P200,000.00.

After the agreed monetary consideration was produced, the PDEA agents allegedly instructed Jaen’s son, Delfin, to wait at
the ATM machine outside PDEA. Jaen still remained in detention after a lapse of several hours.

The narration was reinforced by the sworn statements dated April 15, 2008 and April 17, 2008, of Compliance
Investigator I Dolorsindo M. Paner (CI Paner) who recalled that IO2 Renato Infante (IO2 Infante) told him to meet him at
the office for an important matter about their operation; and that when IO2 Infante arrived, he handed the money to CI
Paner who then counted it on the spot. This incident was allegedly captured by a surveillance camera.

On July 10, 2008, Magcamit filed his motion for reconsideration arguing that the IAS-PDEA committed errors of law and/or
irregularities prejudicial to his interest; its decision, too, was not supported by the evidence on record.

Aside from the procedural lapses Magcamit claimed the IAS-PDEA had committed, he raised the fact that his name
never came up in the sworn statements submitted to SI V Enriquez. Moreover, he argued that the application of
the "doctrine of implied conspiracy" was misplaced because the evidence on record did not show any act showing that he
participated in the alleged extortion.

On July 23, 2008, SI V Enriquez denied the motion for reconsideration of Magcamit and his co-agents as they had been
duly afforded administrative due process and had been given a fair and reasonable opportunity to explain their side. He
added that the absence of a preliminary investigation was not fatal to their case. Lastly, he maintained that direct proof is
not necessary to establish conspiracy as long as it is shown that the parties demonstrate they concur with the criminal
design and its objective.

Magcamit responded by filing a notice of appeal and elevating his case to the CSC.

In its March 17, 2009 decision, the CSC denied Magcamit’s appeal and affirmed his dismissal from the civil service. It
ruled that administrative tribunals exercising quasi-judicial powers – such as the IAS-PDEA – are unfettered by the rigidity
of certain procedural requirements especially when due process has been fundamentally and essentially observed. It found
that Magcamit was positively identified by CI Paner in his sworn statement as the person who identified the members of
the group who received their respective shares from the P200,000.00, thus, establishing his participation in the extortion.
The CSC noted that Magcamit failed to controvert this allegation against him.

Reiterating the grounds he relied upon in his appeal to the CSC, Magcamit filed a petition for review under Rule 43 with the
CA, imputing error on the part of the CSC in affirming his dismissal from the service.

THE CA DECISION

In its March 17, 2011 decision, the CA denied the petition for review and upheld the March 17, 2009 CSC decision.

The CA held that the CSC, in investigating complaints against civil servants, is not bound by technical rules of procedure
and evidence applicable in judicial proceedings; that rules of procedure are to be construed liberally to promote their
objective and to assist the parties in obtaining a just, speedy, and inexpensive determination of their respective claims and
defenses.

The CA found that the CSC correctly appreciated CI Paner’s sworn statement which described Magcamit’s link to the
extortion. The CA said that apart from his bare and self-serving claim, Magcamit failed to show that CI Paner was actuated
by ill motive or hate in imputing a serious offense to him.

On August 9, 2011, the CA denied Magcamit’s motion for reconsideration; hence, the present petition for review
on certiorari before this Court.

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 THE PETITION

Magcamit filed the present petition on the following grounds:

1. his right to due process was denied because gross irregularities attended the administrative investigation
conducted by the IAS-PDEA; and
2. the evidence on record does not support his dismissal.
Magcamit contends that the anonymous letter-complaint of a certain Delfin should not have been given due course as it
was not corroborated by any documentary or direct evidence and there was no obvious truth to it. Worse, the letter-
complaint had no narration of relevant and material facts showing the acts or omission allegedly committed by Magcamit
and his co-agents. Further, the letter-complaint only referred to him as "Erwin" and did not specifically identify him.

Magcamit claims that he was deprived of his right to seek a formal investigation because the IAS-PDEA deliberately failed
to inform him of this right.

Magcamit questions how the IAS-PDEA never presented him with pieces of evidence – specifically CI Paner’s sworn
statement – that were considered against him. He emphasizes that the CSC and the CA affirmed his dismissal based on an
affidavit of complaint executed by CI Paner on May 7, 2008, that was only attached to the IAS-PDEA’s comment before
the CSC.

As to his alleged participation in the extortion, Magcamit alleges that he never had any discussion with CI Paner about
each agent’s share in the P200,000.00. He argues that he could not have refuted the allegation against him since
he was not even aware of CI Paner’s sworn statement until the case was brought up before the CSC.

Magcamit claims support for his case after the dismissal of the criminal complaint filed against him and his co-agents. In its
June 18, 2010 resolution, the Quezon City Prosecutor’s Office found the evidence against them insufficient to prove that
they requested or received any money from Jaen.

Finally, Magcamit maintains that the purported surveillance video is inadmissible as evidence because it was not
authenticated nor shown to him.

OUR RULING

We GRANT the present petition because Magcamit’s dismissal was unsupported by substantial evidence.

Although Magcamit assails that the letter-complaint should not have been entertained to begin with as it was not in accord
with the Revised Rules on Administrative Cases in the Civil Service (RACCS),4 we do not find any need to dwell on this
point. The administrative complaint was initiated when Jaen and Delfin executed sworn statements and filed them with the
IAS-PDEA. As the CA correctly pointed out, the letter-complaint did not, by itself, commence the administrative
proceedings against Magcamit; it merely triggered a fact-finding investigation by the IAS-PDEA. Accordingly, these sworn
statements – together with the letter-complaint – were used as pieces of evidence to build a prima facie case for extortion
warranting a formal charge for grave misconduct.

Administrative determinations of contested cases are by their nature quasi-judicial; there is no requirement for strict
adherence to technical rules that are observed in truly judicial proceedings.5 As a rule, technical rules of procedure and
evidence are relaxed in administrative proceedings in order "to assist the parties in obtaining just, speedy and inexpensive
determination of their respective claims and defenses."6 By relaxing technical rules, administrative agencies are, thus,
given leeway in coming up with a decision.

Nonetheless, in deciding disciplinary cases pursuant to their quasi-judicial powers, administrative agencies must still comply
with the fundamental principle of due process. Administrative tribunals exercising quasi-judicial powers are unfettered by
the rigidity of certain procedural requirements, subject to the observance of fundamental and essential requirements of
due process in justiciable cases presented before them.7

Due process in administrative cases, in essence, is simply an opportunity to explain one’s side or to seek a reconsideration
of the action or ruling. For as long as the parties were given fair and reasonable opportunity to be heard before judgment
was rendered, the demands of due process were sufficiently met.8

The cardinal primary rights and principles in administrative proceedings that must be respected are those outlined in the
landmark case of Ang Tibay v. Court of Industrial Relations,9 quoted below:
(1) The first of these rights is the right to a hearing, which includes the right of the party interested or affected to
present his own case and submit evidence in support thereof.
(2) Not only must the party be given an opportunity to present his case and to adduce evidence tending to
establish the rights which he asserts but the tribunal must consider the evidence presented.
(3) While the duty to deliberate does not impose the obligation to decide right, it does imply a necessity which
cannot be disregarded, namely, that of having something to support its decision. A decision with absolutely
nothing to support it is a nullity, a place when directly attached.
(4) Not only must there be some evidence to support a finding or conclusion, but the evidence must be
substantial. "Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion."
(5) The decision must be rendered on the evidence presented at the hearing, or at least contained in the record
and disclosed to the parties affected.

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 (6) The Court of Industrial Relations or any of its judges, therefore, must act on its or his own independent
consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving
at a decision.
(7) The Court of Industrial Relations should, in all controversial questions, render its decision in such a manner
that the parties to the proceeding can know the various issues involved, and the reasons for the decisions
rendered. The performance of this duty is inseparable from the authority conferred upon it.
The first of the enumerated rights pertains to the substantive rights of a party at the hearing stage of the proceedings.10

The second, third, fourth, fifth, and sixth aspects of the Ang Tibay requirements are reinforcements of the right to a
hearing and are the inviolable rights applicable at the deliberative stage, as the decision maker decides on the evidence
presented during the hearing.11 These standards set forth the guiding considerations in deliberating on the case and are
the material and substantial components of decision making.12

Finally, the last requirement, relating to the form and substance of the decision of a quasi-judicial body, further
complements the hearing and decision-making due process rights and is similar in substance to the constitutional
requirement that a decision of a court must state distinctly the facts and the law upon which it is based.13

At the hearing stage, while Magcamit was never afforded a formal investigation, we have consistently ruled that there is no
violation of procedural due process even if no formal or trial-type hearing was conducted, where the party was given a
chance to explain his side of the controversy.

Before the IAS-PDEA, Magcamit had the opportunity to deny and controvert the complaint against him when he filed his
reply to the letter-complaint and his answer to the formal charge. Dissatisfied with the IAS-PDEA’s decision, he elevated his
case to the CSC which likewise found him guilty of conspiring with his co-agents, rendering him liable for gross misconduct.
From these developments, it can hardly be said that the IAS-PDEA and the CSC denied Magcamit his opportunity to be
heard.

In addition, Magcamit was duly represented by counsel who could properly apprise him of what he is entitled to under law
and jurisprudence.1âwphi1 Thus, he cannot claim that he was deprived of his right to a formal hearing because the IAS-
PDEA failed to inform him of such right.

With the issue on due process at the hearing stage resolved, we now move on to discuss the merits of the petition before
us.

Claiming that he was not involved in the extortion, Magcamit argues that the CSC and the CA misappreciated the facts
when they considered the affidavit of complaint CI Paner executed on May 7, 2008, as substantial evidence supporting the
conclusion that he conspired with his co-agents. This issue involves a question of fact as there is need for a calibration of
the evidence, considering mainly the credibility of witnesses and the existence and the relevancy of specific surrounding
circumstances, their relation to one another and to the whole, and the probabilities of the situation. 14

In cases brought before us via a petition for review on certiorari, we are limited to the review of errors of law.15 We,
however, may review the findings of fact when they fail to consider relevant facts that, if properly taken into account,
would justify a different conclusion or when there is serious ground to believe that a possible miscarriage of justice would
result.16

We recall that only the April 17, 2008 affidavit of Jaen and the April 17, 2008 affidavit of Delfin were attached to the formal
charge for grave misconduct against Magcamit and four (4)17 other members of the PDEA‒Special Enforcement Service
(SES). This formal charge required them to submit their respective position papers on the administrative charge. Notably,
both affidavits never mentioned the name of Magcamit.

SI V Enriquez’s memorandum/decision dated May 20, 2008 – which found Magcamit and his four co-accused guilty of
grave misconduct, and recommended their dismissal from the service – relied on the affidavits of CI Paner dated April 15,
2008 and April 17, 2008, respectively, which it considered to have "reinforced the allegations" of Jaen and her son, Delfin.
CI Paner’s two affidavits were never shown to Magcamit. At any rate, CI Paner’s two affidavits, like the
affidavits of Jaen and Delfin, did not mention Magcamit.

Probably realizing that the April 17, 2008 affidavit of Jaen, the April 17, 2008 affidavit of Delfin, and the April 15, 2008 and
April 17, 2008 affidavits of CI Paner did not mention the involvement of Magcamit in the extortion, the CSC’s Resolution
No. 090431 dated March 17, 2009, used as basis another affidavit of CI Paner (dated May 7, 2008) in affirming the May
20, 2008 decision of the IAS-PDEA. Curiously, the CSC termed this affidavit as CI Paner’s ‘original affidavit’ although it was
the third affidavit that CI Paner had executed.

The evidence on record shows that CI Paner executed three (3) affidavits with different dates, 18 relating to the manner the
members of the PDEA-SES tried to give him a share of the P200,000.00 they extorted from Jaen. It must be noted,
however, that it was only the Affidavit of Complaint dated May 7, 2008, that linked Magcamit to the scheme. Curiously, this
affidavit was never mentioned, despite being a more complete narration of what transpired, in SI V Enriquez’
recommendation dated May 20, 2008. In fact, the investigating officer referred only to the affidavits dated April 15, 2008
and April 17, 2008.19

Surprisingly, the CSC ruled that the statements of CI Paner in his May 7, 2008 affidavit "was never controverted by
Magcamit" although the latter had not been furnished this document. It was only when Magcamit requested for certified

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true copies of the Comment and the other documents submitted by the IAS-PDEA to the CSC that he discovered the
existence of Paner’s May 7, 2008 affidavit.

As the CSC did, the CA ruled that Magcamit participated in the extortion on the basis of Paner’s May 7, 2008 alone.
Accordingly, it affirmed the CSC’s resolution.1âwphi1

Under these circumstances, the CA erred in affirming the CSC’s dismissal of the respondent on the basis of Paner’s May 7,
2008 affidavit – a document that was not part of the proceedings before the IAS-PDEA.

Given how the evidence against him came out, we find that Magcamit could not have adequately and fully disputed the
allegations against him since during the administrative investigation he was not properly apprised of all the evidence
against him. We point out that Magcamit could not have refuted the May 7, 2008 affidavit of Paner, which was the sole
basis of the CSC’s and the CA’s finding of Magcamit’s liability; notably, the formal charge requiring him and his co-accused
to file their position papers was dated May 5, 2008. Corollarily, Magcamit and his co-agents were not even furnished a
copy of the affidavits of CI Paner dated April 15, 2008 and April 17, 2008 before the recommendation for dismissal came
out. Magcamit was thus blindsided and forced to deal with pieces of evidence he did not even know existed.

Thus, the requirement that "[t]he decision must be rendered on the evidence presented at the hearing, or at least
contained in the record AND disclosed to the parties affected," was not complied with. Magcamit was not properly
apprised of the evidence presented against him, which evidence were eventually made the bases of the decision finding
him guilty of grave misconduct and recommending his dismissal.

Although, in the past, we have held that the right to due process of a respondent in an administrative case is not violated if
he filed a motion for reconsideration to refute the evidence against him, the present case should be carefully examined for
purposes of the application of this rule. Here, the evidence of Magcamit’s participation was made available to him only
after he had elevated the case to the CSC. Prior to that, or when the IAS-PDEA came up with the decision finding him
guilty of gross misconduct, there was no substantial evidence proving Magcamit was even involved.

We consider, too, that even if we take into account CI Paner’s May 7, 2008 affidavit, we find this document to be
inadequate to hold – even by standards of substantial evidence – that Magcamit participated in the PDEA’s extortion
activities.

We note that the CSC and the CA linked Magcamit to the alleged extortion in paragraph 13 of CI Paner' s May 7,
2008 affidavit of complaint, which reads:

13. That pretending nothing had happened and yet projecting to the group that I am a bit apprehensive as to the evident
inequality in the sharing of the extorted money from subject Jaen, I was able to talk with Agent Erwin Magcamit, one of
the members of the arresting team, and asked the latter as to how the group came up with the Php21,500.00 sharing for
each member out of the Php200,000.00; from which Agent Magcamit simply said to me that such was the sharing and
everybody except me seemed to have consented; in addition thereto, Agent Magcamit vividly mentioned all other members
who got their share of the Php21,500.00, namely, [1] Carlo S. Aldeon, [2] P03 Emerson Adaviles, [3], P02 Reywin
Bariuad, [4] 102 Renato Infante, [S] 102 Apolinario Mationg, [6] 102 Ryan Alfaro, and [7] P03 Peter
Sistemio.20

We discern no showing from this allegation that Magcamit extorted money from Jaen, or that he was among those who
took part in the division of the money allegedly extorted from Jaen. For conspiracy to exist, it must be proven or at least
inferred from the acts of the alleged perpetrator before, during, and after the commission of the crime. It cannot simply be
surmised that conspiracy existed because Magcamit was part of the team that took part in the buy-bust operation which
resulted in Jaen's arrest. In other words, respondents failed to pinpoint Magcamit's participation in the extortion that would
make him administratively liable.

After evaluating the totality of evidence on record, we find that the records are bereft of substantial evidence to support
the conclusion that Magcamit should be held administratively liable for grave misconduct; Magcamit was dismissed from
the service based on evidence that had not been disclosed to him. By affirming this dismissal, the CA committed a grave
reversible error.

WHEREFORE, premises considered, we GRANT the present petition.1avvphi1 The March 17, 2011 decision and the
August 9, 2011 resolution of the Court of Appeals in CA-G.R. SP No. 108281 are hereby REVERSED and SET ASIDE. The
Philippine Drug Enforcement Agency is ORDERED to reinstate IA1 Erwin L. Magcamit to his previous position without loss
of seniority rights and with full payment of his salaries, backwages, and benefits from the time of his dismissal from the
service up to his reinstatement. SO ORDERED.

Boston Finance and Investment Corporation vs Judge Gonzalez

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A.M. No. RTJ-10-2247 March 2, 2011 (Formerly OCA I.P.I. No. 09-3143-RTJ) JOCELYN
DATOON, Complainant, vs. JUDGE BETHANY G. KAPILI, Presiding Judge of Regional Trial Court, Branch 24,
Maasin City, Southern Leyte, Respondent. MENDOZA, J.:

Before this Court is a verified Complaint1 filed on March 17, 2009, by complainant Jocelyn Datoon (Datoon) charging
respondent Judge Bethany G. Kapili (Judge Kapili), Presiding Judge of Regional Trial Court Branch 24, Maasin City (RTC),
with Conduct Unbecoming a Member of the Judiciary, and Gross Misconduct amounting to Violation of the Code of Judicial
Conduct, relative to an incident which occured at the Salvacion Oppus Yñiguez Memorial Hospital (SOYMH) in Maasin City,
Southern Leyte.

On August 16, 2010, the administrative complaint was referred to the Executive Justice of the Court of Appeals, Cebu
Station, for raffle among the Associate Justices thereat for investigation, report and recommendation in accordance with
the recommendation of the Office of the Court Administrator (OCA).

Datoon testified on her own behalf but presented no other witnesses. She also submitted the following documents: her
verified Complaint to which were attached the Incident Report of the guard-on-duty, her Affidavit, the Affidavit of her
father, Jose Gagan; her verified Reply;2 and verified Sur-Rejoinder.3

Judge Kapili also testified on his own behalf and presented, as additional witnesses, Judge Ma. Daisy Paler-
Gonzales (Judge Paler-Gonzales), Efledo Hernandez (Hernandez), and Rodulfo Orit (Orit). He also submitted the following
documents: the Affidavit4 of Judge Paler-Gonzales, the Affidavit5 of Hernandez and the Affidavit6 of Orit.

The facts as borne out by the records and findings of the Investigating Justice are as follows:

Datoon averred that on December 11, 2008, at around 3:00 o’clock in the morning, she was in the labor room of SOYMH
waiting to give birth. She was accompanied by her father, Jose Gagan (Gagan). Suddenly, they were disturbed by the
appearance of Judge Kapili who appeared to her to be drunk as his face was reddish and his eyes were sleepy. She noticed
a gun at his waist over his tucked-in t-shirt and she became nervous. Judge Kapili entered the labor room calling "Lor,
Lor," looking for his wife, Dr. Lorna Kapili (Dr. Kapili), a practicing obstetrician-gynecologist. Not seeing his wife around,
Judge Kapili left and entered the delivery room, but returned to the labor room a few minutes later. Datoon was crying, as
she was already having labor pains at the time. Judge Kapili then pointed his gun at her and asked "What’s your problem?"
This caused her to start crying hysterically while saying "Please don’t sir, have pity." At this time, she was lying in bed
while Judge Kapili was standing at the left side of the bed near her head. At that moment, a woman entered the room and
informed Judge Kapili of the whereabouts of Dr. Kapili, after which he left. Datoon claimed that because of this incident,
she was unable to go through normal delivery of her baby and had to undergo caesarian operation instead. Her testimony
appeared in the records as follows:

Q: When you saw the man who was carrying a gun, what was your reaction?
A: I was frightened.
Q: You said earlier he went inside the delivery room. Before he went inside the labor room and then he went inside the
delivery room. After the delivery room, what happened next?
A: A little later, he went inside the labor room.
Q: What happened next when the man went back inside the labor room?
A: I looked at the man and he pointed the gun at me and uttered the words, "Unsa man, ha?" So I pleaded, "Ayaw tawon,
sir, maluoy ka." Then I heard someone saying, "Dra. was in the other room."
Q: After uttering those words, "Unsa man, ha," your reply was?
A: "Ayaw tawon, sir, maluoy ka."
Q: When the man pointed the gun at you, where were you then?
A: I was in bed, lying.
Q: Where was the man positioned when he pointed the gun at you?
A: He was standing at the left side of the bed near my head.
Q: When the man pointed the gun at you and you said, "Ayaw tawon, sir, maluoy ka," what happened next?
A: The gun was still pointing at me when I heard somebody said, "Si doctora, toa sa pikas nga room."
Q: When you heard the voice saying, "si doctora, toa sa pikas nga room," what happened next?
A: He went outside.
Q: You said your father was inside the labor room. Where was your father at that time?
A: He was opposite my bed.7
In his Comment,8 Judge Kapili admitted being at SOYMH on December 11, 2008, but denied having a gun. He related that
he received several phone calls from a woman patient who was looking for his wife, Dr. Lorna Kapili. He tried to contact his
wife by telephone, but she failed to answer, prompting him to proceed to the hospital to look for her with his security
escort, PO2 Jimmy Ganosa (PO2 Ganosa), whose Affidavit9 was attached to the Comment. At the hospital, Judge Kapili
instructed PO2 Ganosa to proceed to his mother-in-law’s house to check if his wife was there. He then proceeded to the
labor room where he saw Datoon who appeared to be in pain and was surprised by his appearance. He was irked by her
reaction so he approached her to ask what her problem was.

Judge Kapili further asserted that he did not have a gun and was only carrying a clutch bag, which Datoon might have
mistaken as containing a firearm. He also stated that Gagan was not in the labor room and the only persons present were
Datoon and a midwife named Ermelinda Costillas, who was the woman who informed him that his wife was resting in the
doctors’ lounge and whose Affidavit10 was attached to the Comment. He was unaware that he had created any disturbance
as he had not received any notice of such until more than four months later, or on April 16, 2009, when he received a copy
of the Complaint.

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Judge Kapili was of the belief that the complaint might have been orchestrated and financed by the hospital administrator,
Cielveto Almario (Almario), in retaliation for the various letters he wrote to the hospital management and to various
government agencies criticizing the services of the hospital.

In her verified Reply, Datoon stated that Judge Kapili came from an influential family and had been sending emissaries to
convince her to drop the complaint. She noted that Judge Kapili did not make any categorical denial of her claim that he
was drunk on the night of the incident.

In his Rejoinder, Judge Kapili claimed that Datoon told a co-worker, Flordeliza Marcojos (Marcojos), that he did not really
point a gun at her and that Datoon was made to sign a prepared complaint in exchange for employment in the
government office in the Province of Southern Leyte. He admitted sending persons to contact Datoon and her father, but
explained that it was for the purpose of meeting them, and not to harass or bribe them. He added that, according to Orit,
it was Gagan who insinuated that they be paid ₱150,000.00 for the dropping of the case. The affidavits of Marcojos11 and
Orit12 were attached to his Rejoinder.

In her Verified Sur-Rejoinder, Datoon denied entering into any agreement with the hospital administrator, Almario, in
exchange for the filing of the complaint. She insisted that she fully understood the allegations in the complaint and denied
the assertion that she was only trying to extort money from Judge Kapili.

Judge Paler-Gonzales of RTC, Branch 25, Maasin City, testified that she went to see Datoon in the Provincial Library where
the latter was working at the time; that Datoon told her that the Complaint and Affidavit were already prepared by
Almario; and that she could not be certain if what was stated in her affidavit was true because she was experiencing labor
pains at that time.

In support of Judge Kapili’s position, Hernandez, Executive Assistant to the Governor of Maasin City, stated in his Affidavit
and testified that he talked to Datoon upon the Governor’s instructions to verify the report that certain persons were
extorting money from Judge Kapili. During their conversation, Datoon was said to have stated that Judge Kapili was
carrying a clutch bag but never pointed a gun at her and she did not know who prepared the affidavit for it was only
brought to her for her signature.

Orit,13 a Kagawad of Brgy. Mantahan, Maasin City, testified that he went to the house of Datoon’s father, Gagan, to convey
Judge Kapili’s wish to talk with them. At said meeting, Gagan told him that if Judge Kapili had ₱150,000.00, then they
would meet him.lawphi1

On February 7, 2011, Investigating Justice Portia Alino-Hormachuelos submitted her Final Report and
Recommendation,14 wherein she recommended the dismissal of the complaint for lack of merit after finding that Datoon
failed to prove her charges both by clear, convincing and satisfactory evidence and beyond reasonable doubt.

The Court adopts the findings and recommendation of the Investigating Justice.

Administrative charges against judges have been viewed by this Court with utmost care, as the respondent stands to face
the penalty of dismissal or disbarment. Thus, proceedings of this character are in their nature highly penal in character and
are to be governed by the rules of law applicable to criminal cases. The charges in such case must, therefore, be proven
beyond reasonable doubt.15

In light of the evidence submitted in this case, the Court is of the view that the charges against Judge Kapili were not
sufficiently substantiated by Datoon who has the burden of proof in administrative proceedings.16 The evidence presented
was not sufficient to compel the Court to exercise its disciplinary powers over the respondent judge as mandated under
Article VIII, Section 6 of the 1987 Constitution.17

Datoon’s testimony was uncorroborated. She failed to present any witness to support her charges. Although she presented
the affidavit of her father, Gagan, who allegedly witnessed the incident, she did not present him as a witness to
corroborate her testimony, or to refute Judge Kapili’s testimony that they had attempted to extort money from him, despite
the fact that he was present during the hearing. Neither did she present the old woman18 who, she claimed, was also in
the room at the time of the incident.

The Court cannot help but notice that Datoon’s testimony was also replete with inconsistencies. As to where the gun was
at the time Judge Kapili first entered the labor room, her Complaint19 and Affidavit20 stated that while she "was waiting to
give birth in the labor room of the hospital, a man, who was drunk and holding a gun suddenly barged into the room
looking for one Dr. Lorna Kapili." On the other hand, during her testimony,21 she stated that he was "carrying a gun on his
waist" when he first entered the labor room. She further testified that Judge Kapili was later holding a gun and pointing it
at her when he came back into the labor room.

Furthermore, it was highly unlikely that her crying would have caused Judge Kapili to pull out his gun and point it at her,
considering that he knew he was in the labor room of the hospital where pregnant patients would be in labor and
understandably in pain. Datoon’s testimony is contradictory, inconsistent and contrary to human nature and experience.

As to Judge Kapili’s alleged intoxicated state, Datoon only surmised that he was drunk because his face was flushed and
his eyes were sleepy.22 This was an unfounded conclusion. His sleepy eyes could be attributed to the fact that it was 3:00
o’clock in the morning, while his reddish face could be explained by his natural coloration, as observed by the Investigating
Justice.23 Moreover, Datoon admitted that Judge Kapili did not smell of alcohol or liquor at the time of the incident. 24

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Lastly, both Judge Paler-Gonzales25 and Hernandez26 testified that Datoon admitted to them that she signed the Complaint
and Affidavit without meeting the lawyers who prepared the same. Hernandez further bared that Datoon admitted to him
that Judge Kapili never pointed a gun at her.27 On her part, Judge Paler-Gonzales testified that Datoon admitted that she
was not sure if the contents of her Complaint and Affidavit were true because she was in pain at the time of the incident.28

Datoon failed to address these accusations as she was not presented for rebuttal. Section 26, Rule 130 of the Rules of
Evidence provides that admissions of a party may be given in evidence against him or her. Datoon’s admission against her
interest, as narrated by two credible and neutral witnesses, militates against the credibility of her charges. The
presumption is that no person would declare anything against himself unless such declaration were true.29

From all the foregoing, it is clear that Datoon failed to prove her charges against Judge Kapili.

WHEREFORE, the complaint against Judge Bethany G. Kapili is DISMISSED. SO ORDERED.

G.R. No. 176162 : October 9, 2012 CIVIL SERVICE COMMISSION, Petitioner, v. COURT OF APPEALS, DR.
DANTE G. GUEV ARRA and ATTY. AUGUSTUS F. CEZAR, Respondents.

G.R. No. 178845 ATTY. HONESTO L. CUEVA, Petitioner, v. COURT OF APPEALS, DR. DANTE G. GUEV ARRA and
ATTY. AUGUSTUS F. CEZAR, Respondents. MENDOZA, J.:

These are consolidated petitions for review under Rule 45 of the Revised Rules of Civil Procedure assailing the December
29, 2006 Decision1ςrνll of the Court of Appeals (CA) in CA-G.R. SP No. 95293, entitled "Dr. Dante G. Guevarra and Atty.
Augustus Cezar v. Civil Service Commission and Atty. Honesto L. Cueva."

The Facts

Respondents Dante G. Guevarra (Guevarra) and Augustus F. Cezar (Cezar) were the Officer-in-Charge/President and the
Vice President for Administration, respectively, of the Polytechnic University of the Philippines (PUP)2ςrνll in 2005.

On September 27, 2005, petitioner Honesto L. Cueva (Cueva), then PUP Chief Legal Counsel, filed an administrative case
against Guevarra and Cezar for gross dishonesty, grave misconduct, falsification of official documents, conduct prejudicial
to the best interest of the service, being notoriously undesirable, and for violating Section 4 of Republic Act (R.A.) No.
6713.3ςrνll Cueva charged Guevarra with falsification of a public document, specifically the Application for Bond of
Accountable Officials and Employees of the Republic of the Philippines, in which the latter denied the existence of his
pending criminal and administrative cases. As the head of the school, Guevarra was required to be bonded in order to be
able to engage in financial transactions on behalf of PUP.4ςrνll In his Application for Bond of Accountable Officials and
Employees of the Republic of the Philippines (General Form No. 58-A), he answered Question No. 11 in this wise:

11. Do you have any criminal or administrative records? NO. If so, state briefly the nature thereof NO. 5ςrνll

This was despite the undisputed fact that, at that time, both Guevarra and Cezar admittedly had 17 pending cases for
violation of Section 3(e) of R.A. No. 3019 before the Sandiganbayan.6ςrνll Cezar, knowing fully well that both he and
Guevarra had existing cases before the Sandiganbayan, endorsed and recommended the approval of the
application.7ςrνll

The respondents explained that they believed "criminal or administrative records" to mean final conviction in a criminal or
administrative case.8ςrνll Thus, because their cases had not yet been decided by the Sandiganbayan, they asserted that
Guevarra responded to Question No. 11 in General Form No. 58-A correctly and in good faith.9ςrνll

On March 24, 2006, the Civil Service Commission (CSC) issued Resolution No. 06052110ςrνll formally charging Guevarra
with Dishonesty and Cezar with Conduct Prejudicial to the Best Interest of the Service after a prima facie finding that they
had committed acts punishable under the Civil Service Law and Rules.

Subsequently, the respondents filed their Motion for Reconsideration and Motion to Declare Absence of Prima Facie
Case11ςrνll praying that the case be suspended immediately and that the CSC declare a complete absence of a prima
facie case against them. Cueva, on the other hand, filed an Urgent Ex-Parte Motion for the Issuance of Preventive
Suspension12ςrνll and an Omnibus Motion13ςrνll seeking the issuance of an order of preventive suspension against
Guevarra and Cezar and the inclusion of the following offenses in the formal charge against them: Grave Misconduct,
Falsification of Official Document, Conduct Prejudicial to the Best Interest of the Service, Being Notoriously Undesirable,
and Violation of Section 4 of R.A. No. 6713.

In Resolution No. 061141, dated June 30, 2006,14ςrνll the CSC denied the motion for reconsideration filed by the
respondents for being a non-responsive pleading, akin to a motion to dismiss, which was a prohibited pleading under
Section 16 of the Uniform Rules on Administrative Cases in the Civil Service Commission.15ςrνll It also denied Cuevas
motion to include additional charges against the respondents. The CSC, however, placed Guevarra under preventive
suspension for ninety (90) days, believing it to be necessary because, as the officer-in-charge of PUP, he was in a position
to unduly influence possible witnesses against him.

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Aggrieved, Guevarra and Cezar filed a petition for certiorari and prohibition before the CA essentially questioning the
jurisdiction of the CSC over the administrative complaint filed against them by Cueva. On December 29, 2006, the CA
rendered its Decision granting the petition and nullifying and setting aside the questioned resolutions of the CSC for having
been rendered without jurisdiction. According to the CA, Section 47, Chapter 7, Subtitle A, Title I, Book V of Executive
Order No. 292 (The Administrative Code of 1987), the second paragraph of which states that heads of agencies and
instrumentalities "shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and
employees under their jurisdiction," bestows upon the Board of Regents the jurisdiction to investigate and decide matters
involving disciplinary action against respondents Guevarra and Cezar. In addition, the CA noted that the CSC erred in
recognizing the complaint filed by Cueva, reasoning out that the latter should have exhausted all administrative remedies
by first bringing his grievances to the attention of the PUP Board of Regents.

Hence, these petitions.

THE ISSUE

In G.R. No. 176162, petitioner CSC raises the sole issue of:chanroblesvirtuallawlibrary

Whether or not the Civil Service Commission has original concurrent jurisdiction over administrative cases
falling under the jurisdiction of heads of agencies.

The same issue is among those raised by petitioner Cueva in G.R. No. 178845.

The Court agrees that the only question which must be addressed in this case is whether the CSC has jurisdiction over
administrative cases filed directly with it against officials of a chartered state university.

The Courts Ruling

The petitions are meritorious.

Both CSC and Cueva contend that because the CSC is the central personnel agency of the government, it has been
expressly granted by Executive Order (E.O.) No. 292 the authority to assume original jurisdiction over complaints directly
filed with it. The CSC explains that under the said law, it has appellate jurisdiction over all administrative disciplinary
proceedings and original jurisdiction over complaints against government officials and employees filed before it by private
citizens.16ςrνll Accordingly, the CSC has concurrent original jurisdiction, together with the PUP Board of Regents, over the
administrative case against Guevarra and Cezar and it can take cognizance of a case filed directly with it, despite the fact
that the Board of Regents is the disciplining authority of university employees.

Respondents Guevarra and Cezar, on the other hand, fully adopted the position of the CA in its questioned decision and
propounded the additional argument that the passage of R.A. No. 8292 has effectively removed from the CSC the authority
to hear and decide on cases filed directly with it.

CSC has jurisdiction over cases

filed directly with it, regardless of
who initiated the complaint

The CSC, as the central personnel agency of the government, has the power to appoint and discipline its officials and
employees and to hear and decide administrative cases instituted by or brought before it directly or on
appeal.17ςrνll Section 2(1), Article IX(B) of the 1987 Constitution defines the scope of the civil service:

The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including
government-owned or controlled corporations with original charters.

By virtue of Presidential Decree (P.D.) No. 1341,18ςrνll PUP became a chartered state university, thereby making it a
government-owned or controlled corporation with an original charter whose employees are part of the Civil Service and are
subject to the provisions of E.O. No. 292.19ςrνll

The parties in these cases do not deny that Guevarra and Cezar are government employees and part of the Civil Service.
The controversy, however, stems from the interpretation of the disciplinary jurisdiction of the CSC as specified in Section
47, Chapter 7, Subtitle A, Title I, Book V of E.O. No. 292:

SECTION 47. Disciplinary Jurisdiction. (1) The Commission shall decide upon appeal all administrative disciplinary cases
involving the imposition of a penalty of suspension for more than thirty days, or fine in an amount exceeding thirty days
salary, demotion in rank or salary or transfer, removal or dismissal from office. A complaint may be filed directly with the
Commission by a private citizen against a government official or employee in which case it may hear and decide the case
or it may deputize any department or agency or official or group of officials to conduct the investigation. The results of the
investigation shall be submitted to the Commission with recommendation as to the penalty to be imposed or other action
to be taken.

(2) The Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities shall have jurisdiction
to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. Their

136
decisions shall be final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not
exceeding thirty days salary. In case the decision rendered by a bureau or office head is appealable to the Commission, the
same may be initially appealed to the department and finally to the Commission and pending appeal, the same shall be
executory except when the penalty is removal, in which case the same shall be executory only after confirmation by the
Secretary concerned. [Emphases and underscoring supplied]

While in its assailed decision, the CA conceded that paragraph one of the same provision abovequoted allows the filing of a
complaint directly with the CSC, it makes a distinction between a complaint filed by a private citizen and that of an
employee under the jurisdiction of the disciplining authority involved. The CA resolved that because Cueva was then the
Dean of the College of Law and the Chief Legal Counsel of PUP when he filed the complaint with the CSC, he was under
the authority of the PUP Board of Regents. Thus, it is the Board of Regents which had exclusive jurisdiction over the
administrative case he initiated against Guevarra and Cezar.

The Court finds itself unable to sustain the reading of the CA.

The issue is not novel.

The understanding by the CA of Section 47, Chapter 7, Subtitle A, Title I, Book V of E.O. No. 292 which states that "a
complaint may be filed directly with the Commission by a private citizen against a government official or employee" is that
the CSC can only take cognizance of a case filed directly before it if the complaint was made by a private citizen.

The Court is not unaware of the use of the words "private citizen" in the subject provision and the plain meaning rule of
statutory construction which requires that when the law is clear and unambiguous, it must be taken to mean exactly what
it says. The Court, however, finds that a simplistic interpretation is not in keeping with the intention of the statute and
prevailing jurisprudence. It is a well-established rule that laws should be given a reasonable interpretation so as not to
defeat the very purpose for which they were passed. As such, "a literal interpretation is to be rejected if it would be unjust
or lead to absurd results."20ςrνll In Secretary of Justice v. Koruga,21ςrνll the Court emphasized this principle and
cautioned us on the overzealous application of the plain meaning rule:

The general rule in construing words and phrases used in a statute is that in the absence of legislative intent to the
contrary, they should be given their plain, ordinary, and common usage meaning. However, a literal interpretation of a
statute is to be rejected if it will operate unjustly, lead to absurd results, or contract the evident meaning of the statute
taken as a whole. After all, statutes should receive a sensible construction, such as will give effect to the legislative
intention and so as to avoid an unjust or an absurd conclusion. Indeed, courts are not to give words meanings that would
lead to absurd or unreasonable consequences.22ςrνll

A literal interpretation of E.O. 292 would mean that only private citizens can file a complaint directly with the CSC. For
administrative cases instituted by government employees against their fellow public servants, the CSC would only have
appellate jurisdiction over those. Such a plain reading of the subject provision of E.O. 202 would effectively divest CSC of
its original jurisdiction, albeit shared, provided by law. Moreover, it is clearly unreasonable as it would be tantamount to
disenfranchising government employees by removing from them an alternative course of action against erring public
officials.

There is no cogent reason to differentiate between a complaint filed by a private citizen and one filed by a member of the
civil service, especially in light of Section 12(11), Chapter 3, Subtitle A, Title I, Book V of the same E.O. No. 292 which
confers upon the CSC the power to "hear and decide administrative cases instituted by or brought before it directly or on
appeal" without any qualification.

In the case of Camacho v. Gloria,23ςrνll the Court stated that "under E.O. No. 292, a complaint against a state university
official may be filed with either the universitys Board of Regents or directly with the Civil Service Commission." 24ςrνll It is
important to note that the Court did not interpret the Administrative Code as limiting such authority to exclude complaints
filed directly with it by a member of the civil service.

Moreover, as early as in the case of Hilario v. Civil Service Commission,25ςrνll the Court interpreted Section 47, Chapter
7, Subtitle A, Title I, Book V of E.O. No. 292 as allowing the direct filing with the CSC by a public official of a complaint
against a fellow government employee. In the said case, Quezon City Vice-Mayor Charito Planas directly filed with the CSC
a complaint for usurpation, grave misconduct, being notoriously undesirable, gross insubordination, and conduct prejudicial
to the best interest of the service against the City Legal Officer of Quezon City. The CSC issued a resolution ruling that the
respondent official should not be allowed to continue holding the position of legal officer. In a petition to the Supreme
Court, the official in question asserted that the City Mayor was the only one who could remove him from office directly and
not the CSC. The Court upheld the decision of the CSC, citing the same provision of the Administrative Code:

Although respondent Planas is a public official, there is nothing under the law to prevent her from filing a complaint directly
with the CSC against petitioner. Thus, when the CSC determined that petitioner was no longer entitled to hold the position
of City Legal Officer, it was acting within its authority under the Administrative Code to hear and decide complaints filed
before it.26ςrνll [Underscoring supplied]

It has been argued that Hilario is not squarely in point.27ςrνll While it is true that the circumstances present in the two
cases are not identical, a careful reading of Hilario reveals that petitioner therein questioned the authority of the CSC to
hear the disciplinary case filed against him, alleging that the CSCs jurisdiction was only appellate in nature. Hence, the
reference to the abovequoted passage in Hilario is very appropriate in this case as respondents herein pose a similar query
before us.

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It cannot be overemphasized that the identity of the complainant is immaterial to the acquisition of jurisdiction over an
administrative case by the CSC. The law is quite clear that the CSC may hear and decide administrative disciplinary cases
brought directly before it or it may deputize any department or agency to conduct an investigation.

CSC has concurrent original jurisdiction

with the Board of Regents over
administrative cases

The Uniform Rules on Administrative Cases in the Civil Service28ςrνll (the Uniform Rules) explicitly allows the CSC to hear
and decide administrative cases directly brought before it:

Section 4. Jurisdiction of the Civil Service Commission. The Civil Service Commission shall hear and decide administrative
cases instituted by, or brought before it, directly or on appeal, including contested appointments, and shall review
decisions and actions of its offices and of the agencies attached to it.

Except as otherwise provided by the Constitution or by law, the Civil Service Commission shall have the final authority to
pass upon the removal, separation and suspension of all officers and employees in the civil service and upon all matters
relating to the conduct, discipline and efficiency of such officers and employees. [Emphases and underscoring supplied]

The CA construed the phrase "the Civil Service Commission shall have the final authority to pass upon the removal,
separation and suspension of all officers and employees in the civil service" to mean that the CSC could only step in after
the relevant disciplinary authority, in this case the Board of Regents of PUP, had investigated and decided on the charges
against the respondents. Regrettably, the CA failed to take into consideration the succeeding section of the same rules
which undeniably granted original concurrent jurisdiction to the CSC and belied its suggestion that the CSC could only take
cognizance of cases on appeal:

Section 7. Jurisdiction of Heads of Agencies. Heads of Departments, agencies, provinces, cities, municipalities and other
instrumentalities shall have original concurrent jurisdiction, with the Commission, over their respective officers and
employees.29ςrνll [Emphasis supplied]

It was also argued that although Section 4 of the Uniform Rules is silent as to who can file a complaint directly with the
CSC, it cannot be construed to authorize one who is not a private citizen to file a complaint directly with the CSC. This is
because a rule issued by a government agency pursuant to its law-making power cannot modify, reduce or enlarge the
scope of the law which it seeks to implement.30ςrνll

Following the earlier disquisition, it can be said that the Uniform Rules does not contradict the Administrative Code. Rather,
the former simply provides a reasonable interpretation of the latter. Such action is perfectly within the authority of the
CSC, pursuant to Section 12(2), Chapter 3, Subtitle A, Title I, Book V of E.O. No. 292, which gives it the power to
"prescribe, amend and enforce rules and regulations for carrying into effect the provisions of the Civil Service Law and
other pertinent laws."

Another view has been propounded that the original jurisdiction of the CSC has been further limited by Section 5 of the
Uniform Rules, such that the CSC can only take cognizance of complaints filed directly with it which: (1) are brought
against personnel of the CSC central office, (2) are against third level officials who are not presidential appointees, (3) are
against officials and employees, but are not acted upon by the agencies themselves, or (4) otherwise require direct or
immediate action in the interest of justice:

Section 5. Jurisdiction of the Civil Service Commission Proper. The Civil Service Commission Proper shall have jurisdiction
over the following cases:chanroblesvirtuallawlibrary

A. Disciplinary

1. Decisions of the Civil Service Regional Offices brought before it on petition for review;
2. Decisions of heads of departments, agencies, provinces, cities, municipalities and other instrumentalities, imposing
penalties exceeding thirty days suspension or fine in an amount exceeding thirty days salary brought before it on appeal;
3. Complaints brought against Civil Service Commission Proper personnel;
4. Complaints against third level officials who are not presidential appointees;
5. Complaints against Civil Service officials and employees which are not acted upon by the agencies and such other
complaints requiring direct or immediate action, in the interest of justice;
6. Requests for transfer of venue of hearing on cases being heard by Civil Service Regional Offices;
7. Appeals from the Order of Preventive Suspension; and
8. Such other actions or requests involving issues arising out of or in connection with the foregoing enumerations.

It is the Courts position that the Uniform Rules did not supplant the law which provided the CSC with original jurisdiction.
While the Uniform Rules may have so provided, the Court invites attention to the cases of Civil Service Commission v.
Alfonso31ςrνll and Civil Service Commission v. Sojor,32ςrνll to be further discussed in the course of this decision, both of
which buttressed the pronouncement that the Board of Regents shares its authority to discipline erring school officials and
employees with the CSC. It can be presumed that, at the time of their promulgation, the members of this Court, in Alfonso
and Sojor, were fully aware of all the existing laws and applicable rules and regulations pertaining to the jurisdiction of the
CSC, including the Uniform Rules. In fact, Sojor specifically cited the Uniform Rules in support of its ruling allowing the CSC
to take cognizance of an administrative case filed directly with it against the president of a state university. As the Court, in
the two cases, did not consider Section 5 of the Uniform Rules as a limitation to the original concurrent jurisdiction of the

138
CSC, it can be stated that Section 5 is merely implementary. It is merely directory and not restrictive of the CSCs powers.
The CSC itself is of this view as it has vigorously asserted its jurisdiction over this case through this petition.

The case of Alfonso33ςrνll is on all fours with the case at bench. The case involved a complaint filed before the CSC
against a PUP employee by two employees of the same university. The CA was then faced with the identical issue of
whether it was the CSC or the PUP Board of Regents which had jurisdiction over the administrative case filed against the
said PUP employee. The CA similarly ruled that the CSC could take cognizance of an administrative case if the decisions of
secretaries or heads of agencies, instrumentalities, provinces, cities and municipalities were appealed to it or if a private
citizen directly filed with the CSC a complaint against a government official or employee. Because the complainants in the
said case were PUP employees and not private citizens, the CA held that the CSC had no jurisdiction to hear the
administrative case. It further posited that even assuming the CSC had the authority to do so, immediate resort to the CSC
violated the doctrine of exhaustion of administrative remedies as the complaint should have been first lodged with the PUP
Board of Regents to allow them the opportunity to decide on the matter. This Court, however, reversed the said decision
and declared the following:

xxx. Admittedly, the CSC has appellate jurisdiction over disciplinary cases decided by government departments, agencies
and instrumentalities. However, a complaint may be filed directly with the CSC, and the Commission has the authority to
hear and decide the case, although it may opt to deputize a department or an

agency to conduct the investigation. x x x

xxxxxxxxx

We are not unmindful of certain special laws that allow the creation of disciplinary committees and governing bodies in
different branches, subdivisions, agencies and instrumentalities of the government to hear and decide administrative
complaints against their respective officers and employees. Be that as it may, we cannot interpret the creation of such
bodies nor the passage of laws such as R.A. Nos. 8292 and 4670 allowing for the creation of such disciplinary bodies as
having divested the CSC of its inherent power to supervise and discipline government employees, including those in the
academe. To hold otherwise would not only negate the very purpose for which the CSC was established, i.e. to instill
professionalism, integrity, and accountability in our civil service, but would also impliedly amend the Constitution itself.

xxxxxxxxx

But it is not only for this reason that Alfonsos argument must fail. Equally significant is the fact that he had already
submitted himself to the jurisdiction of the CSC when he filed his counter-affidavit and his motion for reconsideration and
requested for a change of venue, not from the CSC to the BOR of PUP, but from the CSC-Central Office to the CSC-NCR. It
was only when his motion was denied that he suddenly had a change of heart and raised the question of proper
jurisdiction. This cannot be allowed because it would violate the doctrine of res judicata, a legal principle that is applicable
to administrative cases as well. At the very least, respondents active participation in the proceedings by seeking affirmative
relief before the CSC already bars him from impugning the Commissions authority under the principle of estoppel by
laches.

In this case, the complaint-affidavits were filed by two PUP employees. These complaints were not lodged before the
disciplinary tribunal of PUP, but were instead filed before the CSC, with averments detailing respondents alleged violation
of civil service laws, rules and regulations. After a fact-finding investigation, the Commission found that a prima facie case
existed against Alfonso, prompting the Commission to file a formal charge against the latter. Verily, since the complaints
were filed directly with the CSC, and the CSC has opted to assume jurisdiction over the complaint, the CSCs exercise of
jurisdiction shall be to the exclusion of other tribunals exercising concurrent jurisdiction. To repeat, it may, however,
choose to deputize any department or agency or official or group of officials such as the BOR of PUP to conduct the
investigation, or to delegate the investigation to the proper regional office. But the same is merely permissive and not
mandatory upon the Commission.34ςrνll [Emphases and underscoring supplied]

It has been opined that Alfonso does not apply to the case at bar because respondent therein submitted himself to the
jurisdiction of the CSC when he filed his counter-affidavit before it, thereby preventing him from later questioning the
jurisdiction of the CSC. Such circumstance is said to be totally absent in this case.35ςrνll

The records speak otherwise. As in Alfonso, respondents herein submitted themselves to the jurisdiction of the CSC when
they filed their Joint Counter-Affidavit.36ςrνll It was only when their Motion for Reconsideration and Motion to Declare
Absence of Prima Facie Case37ςrνll was denied by the CSC that they thought to put in issue the jurisdiction of the CSC
before the CA, clearly a desperate attempt to evade prosecution by the CSC. As in Alfonso, respondents are also estopped
from questioning the jurisdiction of the CSC.

Based on all of the foregoing, the inescapable conclusion is that the CSC may take cognizance of an administrative case
filed directly with it against an official or employee of a chartered state college or university. This is regardless of whether
the complainant is a private citizen or a member of the civil service and such original jurisdiction is shared with the Board
of Regents of the school.

Gaoiran not applicable

In its decision, the CA relied heavily on Gaoiran v. Alcala38ςrνll to support its judgment that it is the Board of Regents,
and not the CSC, which has jurisdiction over the administrative complaint filed against the respondents.

139
A thorough study of the said case, however, reveals that it is irrelevant to the issues discussed in the case at bench.
Gaoiran speaks of a complaint filed against a high school teacher of a state-supervised school by another employee of the
same school. The complaint was referred to the Legal Affairs Service of the Commission on Higher Education (LAS-CHED).
After a fact-finding investigation established the existence of a prima facie case against the teacher, the Officer-in-Charge
of the Office of the Director of LAS-CHED issued a formal charge for Grave Misconduct and Conduct Prejudicial to the Best
Interest of the Service, together with the Order of Preventive Suspension. The newly-appointed Director of LAS-CHED,
however, dismissed the administrative complaint on the ground that the letter-complaint was not made under oath.
Unaware of this previous resolution, the Chairman of the CHED issued another resolution finding petitioner therein guilty of
the charges against him and dismissing him from the service. The trial court upheld the resolution of the director of LAS-
CHED but on appeal, this was reversed by the CA, affirming the decision of the CHED chairman removing petitioner from
service. One of the issues raised therein before this Court was whether the CA erred in disregarding the fact that the
complaint was not made under oath as required by the Omnibus Rules Implementing Book V of E.O. 292.

In the said case, the Court concurred with the findings of the CA that it was the formal charge issued by the LAS-CHED
which constituted the complaint, and because the same was initiated by the appropriate disciplining authority, it need not
be subscribed and sworn to and CHED acquired jurisdiction over the case. The Court further affirmed the authority of the
heads of agencies to investigate and decide matters involving disciplinary action against their officers and employees. It
bears stressing, at this point, that there is nothing in the case that remotely implies that this Court meant to place upon
the Board of Regent exclusive jurisdiction over administrative cases filed against their employees.

In fact, following the ruling in Gaoiran, it can be argued that it was CSC Resolution No. 060521 which formally charged
respondents that constituted the complaint, and since the complaint was initiated by the CSC itself as the disciplining
authority, the CSC properly acquired jurisdiction over the case.

R.A. No. 8292 is not in conflict

with E.O. No. 292.

In addition, the respondents argue that R.A. No. 8292, which granted to the board of regents or board of trustees
disciplinary authority over school employees and officials of chartered state colleges and universities, should prevail over
the provisions of E.O. No. 292.39ςrνll They anchor their assertion that the Board of Regents has exclusive jurisdiction
over administrative cases on Section 4 of R.A. No. 8292,40ςrνll to wit:

Section 4. Powers and duties of Governing Boards. The governing board shall have the following specific powers and duties
in addition to its general powers of administration and the exercise of all the powers granted to the board of directors of a
corporation under Section 36 of Batas Pambansa Blg. 68 otherwise known as the Corporation Code of the Philippines;

xxxx

(h) to fix and adjust salaries of faculty members and administrative officials and employees subject to the provisions of the
revised compensation and classification system and other pertinent budget and compensation laws governing hours of
service, and such other duties and conditions as it may deem proper; to grant them, at its discretion, leaves of absence
under such regulations as it may promulgate, any provisions of existing law to the contrary not with standing; and to
remove them for cause in accordance with the requirements of due process of law. [Emphasis supplied]

The respondents are mistaken.

Basic is the principle in statutory construction that interpreting and harmonizing laws is the best method of interpretation in
order to form a uniform, complete, coherent, and intelligible system of jurisprudence, in accordance with the legal maxim
interpretare et concordare leges legibus est optimus interpretandi modus.41ςrνll Simply because a later statute relates to
a similar subject matter as that of an earlier statute does not result in an implied repeal of the latter. 42ςrνll

A perusal of the abovequoted provision clearly reveals that the same does not indicate any intention to remove employees
and officials of state universities and colleges from the ambit of the CSC. What it merely states is that the governing board
of a school has the authority to discipline and remove faculty members and administrative officials and employees for
cause. It neither supersedes nor conflicts with E.O. No. 292 which allows the CSC to hear and decide administrative cases
filed directly with it or on appeal.

In addition to the previously cited case of Alfonso, the case of The Civil Service Commission v. Sojor 43ςrνll is likewise
instructive. In the said case, this Court ruled that the CSC validly took cognizance of the administrative complaints directly
filed with it concerning violations of civil service rules committed by a university president. This Court acknowledged that
the board of regents of a state university has the sole power of administration over a university, in accordance with its
charter and R.A. No. 8292. With regard to the disciplining and removal of its employees and officials, however, such
authority is not exclusive to it because all members of the civil service fall under the jurisdiction of the CSC:

Verily, the BOR of NORSU has the sole power of administration over the university. But this power is not exclusive in the
matter of disciplining and removing its employees and officials. Although the BOR of NORSU is given the specific power
under R.A. No. 9299 to discipline its employees and officials, there is no showing that such power is exclusive. When the
law bestows upon a government body the jurisdiction to hear and decide cases involving specific matters, it is to be
presumed that such jurisdiction is exclusive unless it be proved that another body is likewise vested with the same
jurisdiction, in which case, both bodies have concurrent jurisdiction over the matter.

140
All members of the civil service are under the jurisdiction of the CSC, unless otherwise provided by law. Being a non-career
civil servant does not remove respondent from the ambit of the CSC.

Career or non-career, a civil service official or employee is within the jurisdiction of the CSC.44ςrνll [Emphases and
underscoring supplied]

It has been pointed out that the case of Sojor is not applicable to the case at bar because the distinction between a
complaint filed by a private citizen and one filed by a government employee was not taken into consideration in the said
case.45ςrνll The dissent fails to consider that Sojor is cited in the ponencia to support the ruling that R.A. No. 8292 is not
in conflict with E.O. No. 292 and to counter respondents flawed argument that the passage of R.A. No. 8292 granted the
Board of Regents exclusive jurisdiction over administrative cases against school employees and officials of chartered state
colleges and universities. Also noteworthy is the fact that the complainants before the CSC in Sojor were faculty members
of a state university and were, thus, government employees. Nevertheless, despite this, the Court allowed the CSC to
assert jurisdiction over the administrative case, proclaiming that the power of the Board of Regents to discipline its officials
and employees is not exclusive but is concurrent with the CSC.46ςrνll

The case of University of the Philippines v. Regino47ςrνll was also cited to bolster the claim that original jurisdiction over
disciplinary cases against government officials is vested upon the department secretaries and heads of agencies and
instrumentalities, provinces, cities and municipalities, whereas the CSC only enjoys appellate jurisdiction over such
cases.48ςrνll The interpretation therein of the Administrative Code supposedly renders effectual the provisions of R.A. No.
8292 and does not "deprive the governing body of the power to discipline its own officials and employees and render
inutile the legal provisions on disciplinary measures which may be taken by it."49ςrνll

The Court respectfully disagrees. Regino is obviously inapplicable to this case because there, the school employee had
already been found guilty and dismissed by the Board of Regents of the University of the Philippines. Therefore, the issue
put forth before this Court was whether the CSC had appellate jurisdiction over cases against university employees,
considering the university charter which gives it academic freedom allegedly encompassing institutional autonomy. In
contrast, no administrative case was filed before the Board of Regents of PUP because the case was filed directly with the
CSC and so, the question here is whether the CSC has original concurrent jurisdiction over disciplinary cases. Rationally,
the quoted portions in Regino find no application to the case at bench because those statements were made to uphold the
CSCs appellate jurisdiction which was being contested by petitioner therein. At the risk of being repetitive, it is hereby
stressed that the authority of the CSC to hear cases on appeal has already been established in this case. What is in
question here is its original jurisdiction over administrative cases.

A different interpretation of the Administrative Code was suggested in order to harmonize the provisions of R.A. No. 8292
and E.O. 292. By allowing only a private citizen to file a complaint directly with the CSC, the CSC maintains its power to
review on appeal decisions of the Board of Regents while at the same time the governing board is not deprived of its
power to discipline its officials and employees.50ςrνll

To begin with, there is no incongruity between R.A. No. 8292 and E.O. No. 292, as previously explained in Sojor.
Moreover, the Court fails to see how a complaint filed by a private citizen is any different from one filed by a government
employee. If the grant to the CSC of concurrent original jurisdiction over administrative cases filed by private citizens
against public officials would not deprive the governing bodies of the power to discipline their own officials and employees
and would not be violative of R.A. No. 8292, it is inconceivable that a similar case filed by a government employee would
do so. Such a distinction between cases filed by private citizens and those by civil servants is simply illogical and
unreasonable. To accede to such a mistaken interpretation of the Administrative Code would be a great disservice to our
developing jurisprudence.

It is therefore apparent that despite the enactment of R.A. No. 8292 giving the board of regents or board of trustees of a
state school the authority to discipline its employees, the CSC still retains jurisdiction over the school and its employees
and has concurrent original jurisdiction, together with the board of regents of a state university, over administrative cases
against state university officials and employees.

Finally, with regard to the concern that the CSC may be overwhelmed by the increase in number of cases filed before it
which would result from our ruling,51ςrνll it behooves us to allay such worries by highlighting two important facts. Firstly,
it should be emphasized that the CSC has original concurrent jurisdiction shared with the governing body in question, in
this case, the Board of Regents of PUP. This means that if the Board of Regents first takes cognizance of the complaint,
then it shall exercise jurisdiction to the exclusion of the CSC.52ςrνll Thus, not all administrative cases will fall directly
under the CSC. Secondly, Section 47, Chapter 7, Subtitle A, Title I, Book V of the Administrative Code affords the CSC the
option of whether to decide the case or to deputize some other department, agency or official to conduct an investigation
into the matter, thereby considerably easing the burden placed upon the CSC.

Having thus concluded, the Court sees no need to discuss the other issues raised in the petitions.

WHEREFORE, the petitions are GRANTED. The December 29, 2006 Decision of the Court of Appeals is
hereby REVERSED and SET ASIDE. Resolution Nos. 060521 and 061141 dated March 24, 2006 and June 30, 2006,
respectively, of the Civil Service Commission are REINSTATED.ÏSO ORDERED.

G.R. No. 209331, April 24, 2015 DEPARTMENT OF FINANCE, REPRESENTED BY HON. CESAR V. PURISIMA IN
HIS OFFICIAL CAPACITY AS SECRETARY, AND THE BUREAU OF CUSTOMS, REPRESENTED BY HON. ROZZANO

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RUFINO B. BIAZON, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF CUSTOMS, Petitioners, v. HON.
MARINO M. DELA CRUZ, JR., IN HIS CAPACITY AS EXECUTIVE JUDGE, REGIONAL TRIAL COURT, MANILA,
HON. FELICITAS O. LARON-CACANINDIN, IN HER CAPACITY AS PRESIDING JUDGE, REGIONAL TRIAL
COURT, MANILA, BRANCH 17, RONNIE C. SILVESTRE, EDWARD P. DELA CUESTA, ROGEL C. GATCHALIAN,
IMELDA D.CRUZ, LILIBETH S. SANDAG, RAYMOND P. VENTURA, MA. LIZA S. TORRES, ARNEL C. ALCARAZ,
MA. LOURDES V. MANGAOANG, FRANCIS AGUSTIN Y. ERPE, CARLOS T. SO, MARIETTA D. ZAMORANOS,
CARMELITA M. TALUSAN,1AREFILES H. CARREON,2 AND ROMALINO G. VALDEZ, Respondents. CARPIO, J.:

The Case

Petitioners assail the Order dated 4 October 20133 issued by Judge Felicitas O. Laron-Cacanindin (Judge Laron-Cacanindin)
of the Regional Trial Court of Manila, Branch 17 (RTC Branch 17), in Civil Case No. 13-130820. The Order extended the 72-
hour Temporary Restraining Order (TRO) issued by Executive Judge Marino M. Dela Cruz, Jr. (Executive Judge Dela Cruz)
in favor of respondents Silvestre, et al.
4 to 20 days or until 21 October 2013 without need of posting bond.

The Antecedent Facts

The case stemmed from the issuance of Executive Order No. 140 (EO 140) on 2 September 2013, which created the
Customs Policy Research Office (CPRO) in the Department of Finance (DOF). EO 140 states that the CPRO "shall be
responsible for reviewing the customs administration policies, rules and procedures, and thereafter providing sound
recommendations for the improvement of the same." Section 3 of EO 140 provides that "CPRO shall be composed of its
organic personnel, as approved by the Department of Budget and Management (DBM) upon recommendation of the DOF
Secretary, augmented and reinforced by DOF and BOC personnel as well as those detailed or seconded from other
agencies, whether attached to the DOF or not. x x x." Section 9 of EO 140 states that it shall "take effect immediately upon
publication in two (2) newspapers of general circulation." EO 140 was published in Manila Bulletin and Philippine Star on 17
September 2013. On the same day of the publication of EO 140, Bureau of Customs (BOC) Commissioner Rozzano Rufino
B. Biazon (Commissioner Biazon) issued Customs Personnel Order No. B-189-2013 (CPO 189-2013) detailing 27 BOC
personnel holding the positions of Collector of Customs V and VI, including respondents in this case, to CPRO "effective
immediately and valid until sooner revoked." CPO 189-2013 was approved by DOF Secretary Cesar V. Purisima (Secretary
Purisima). On 30 September 2013, respondents filed an action for Declaratory Relief with Application for Temporary
Restraining Order and/or Writ of Preliminary Injunction before the Regional Trial Court (RTC) of Manila. On 1 October
2013, Executive Judge Dela Cruz issued a TRO for a period of 72 hours enjoining petitioners or any person acting for and
in their behalf from implementing CPO 189-2013. Thereafter, the case was raffled to the sala of Judge Laron-Cacanindin.
In the assailed Order of 4 October 2013, Judge Laron-Cacanindin extended Executive Judge Dela Cruz's 72-hour TRO for
20 days or until 21 October 2013. She then set the hearing for the issuance of a preliminary injunction on 18 October
2013. On 21 October 2013, petitioners filed a Petition for Certiorari and Prohibition before this Court, with prayer for the
issuance of a TRO or a writ of preliminary mandatory injunction. Petitioners alleged that the case involves personnel action
affecting public officers which is under the exclusive jurisdiction of the Civil Service Commission (CSC). Petitioners also
alleged that respondents failed to exhaust all administrative remedies available to them before filing the petition before the
RTC. Petitioners also alleged that CPO 189-2013 is an internal personnel order with application that is limited to and only
within BOC and as such, it cannot be the subject of an action for declaratory relief. In their Comment, respondents alleged
that the case involves the validity and constitutionality of CPO 189-2013, and thus, it is beyond the jurisdiction of the CSC.
Respondents further alleged that EO 140 violated Article 2 of the Civil Code when it became effective immediately after its
publication. In their Reply, petitioners alleged that respondents only assailed the validity of EO 140 to justify their filing of
an action for declaratory relief. As regards its effectivity, petitioners alleged that EO 140 states that it shall "take effect
immediately upon publication in two (2) newspapers of general circulation." In an Order dated 21 October 2013, Judge
Laron-Cacanindin denied respondents' application for the issuance of a writ of preliminary injunction. In an Order dated 5
November 2013, Judge Laron-Cacanindin inhibited herself from further hearing the case.

The Issues

The issues for determination by this Court are the following:

1. 1. Whether the RTC has jurisdiction over the action for declaratory relief filed by respondents;
2. 2. Whether respondents failed to exhaust administrative remedies in filing the action before the RTC;
3. 3. Whether EO 140 violated Article 2 of the Civil Code when it became effective immediately after its publication;
and
4. 4. Whether CPO 189-2013 was validly issued.

The Ruling of this Court

Jurisdiction over the Petition

The CSC has jurisdiction over all employees of government branches, subdivisions, instrumentalities, and agencies,
including government-owned or controlled corporations with original charters.5 The CSC is the sole arbiter of controversies
relating to the civil service.6 The rule is that disciplinary cases and cases involving personnel actions, including
"appointment through certification, promotion, transfer, reinstatement, reemployment, detail, reassignment, demotion, and
separation," are within the exclusive jurisdiction of the CSC.7 This rule is embodied in Section 1, Rule V of the Omnibus
Rules Implementing Book V of Executive Order No. 292 and Other Pertinent Civil Service Laws (Omnibus Rules) which
states:

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SECTION 1.x x x. As used in these Rules, any action denoting movement or progress of personnel in the civil service shall
be known as personnel action. Such action shall include promotion, transfer, reinstatement, reemployment, detail,
secondment, reassignment, demotion and separation, x x x.

Under Section 8, Rule VII of the Omnibus Rules, "[a] detail is the movement of an employee from one department or
agency which is temporary in nature, which does not involve a reduction in rank, status or salary and does not require the
issuance of another appointment." CPO 189-2013 is an order detailing personnel from the BOC to CPRO under the DOF. A
reading of the petition filed before the RTC shows that respondents were questioning their mass detail and reassignment
to CPRO. According to respondents, their detail was carried out in bad faith and was meant to remove them from their
permanent positions in the BOC. The action appears to be a personnel action under the jurisdiction of the CSC. However,
the petition went beyond questioning the detail of respondents. Respondents further assailed the validity and
constitutionality of CPO 189-2013. Respondents alleged that CPO 189-2013 was issued even before EC) 140, pursuant to
which CPO 189-2013 was issued, became effective. Respondents alleged that CPO 189-2013 was issued to beat the
deadline of the Commission on Elections' ban on personnel movement from 28 September 2013 to 20 October 2013 due to
the scheduled barangay elections. When respondents raised the issue of validity and constitutionality of CPO 189-2013, the
issue took the case beyond the scope of the CSC's jurisdiction because the matter is no longer limited to personnel action.
Thus, the RTC did not abuse its discretion in taking cognizance of the action.

Failure to Exhaust Administrative Remedies

Petitioners allege that respondents failed to exhaust their administrative remedies before filing the case with the RTC. The
doctrine of exhaustion of administrative remedies allows administrative agencies to carry out their functions and discharge
their responsibilities within the specialized areas of their respective competence. 8 The doctrine entails lesser expenses and
provides for the speedier resolution of controversies.9

Therefore, direct recourse to the trial court, when administrative remedies are available, is a ground for dismissal of the
action. The doctrine, however, is not without exceptions. Among the exceptions are: (1) where there is estoppel on the
part of the party invoking the doctrine; (2) where the challenged administrative act is patently illegal, amounting to lack of
jurisdiction; (3) where there is unreasonable delay or official inaction that will irretrievably prejudice the complainant; (4)
where the amount involved is relatively so small as to make the rule impractical and oppressive; (5) where the question
involved is purely legal and will ultimately have to be decided by the courts of justice; (6) where judicial intervention is
urgent; (7) where the application of the doctrine may cause great and irreparable damage; (8) where the controverted
acts violate due process; (9) where the issue of non-exhaustion of administrative remedies had been rendered moot; (10)
where there is no other plain, speedy and adequate remedy; (11) where strong public interest is involved; and (12) in quo
warranto proceedings.10

In this case, respondents allege that CPO 189-2013 is contrary to law and unconstitutional. Respondents assail CPO 189-
2013 as patently illegal, arbitrary, and oppressive. This case clearly falls within the exceptions where exhaustion of
administrative remedies need not be resorted to by respondents.

Effectivity of EO 140

Respondents allege that EO 140 took effect only on 2 October 2013, fifteen days after its publication in two newspapers of
general circulation. Hence, respondents argue that when CPO 189-2013 was issued, EO 140 was not yet effective. Article 2
of the Civil Code of the Philippines, as amended by Executive Order No. 200,11 is clear on this issue. It states:

Art. 2. Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette, or
in a newspaper of general circulation in the Philippines, unless it is otherwise provided.
The proviso "unless it is otherwise provided" refers to an effectivity date other than after fifteen days following the
completion of the law's publication.
12 Thus, it is within the discretion of the legislature, or the Executive Department in this case, whether to shorten or extend

the fifteen-day period13 as long as there is compliance with the requirement of publication. Here, Section 9 of EO 140
provides that the "order shall take effect immediately upon publication in two (2) newspapers of general circulation." EO
140 was published in Manila Bulletin and Philippine Star on 17 September 2013. As such, EO 140 took effect on 17
September 2013. In addition, the Court already ruled that "[interpretative regulations and those merely internal in nature,
that is, regulating only the personnel of the administrative agency and not the public, need not be published."14EO 140 is
an internal regulation that affects primarily the personnel of the DOF and the BOC. It remains valid even without
publication.

Validity of CPO 189-2013

Respondents assail the validity of CPO 189-2013. Respondents allege that under EO 140, CPRO shall be composed of its
organic personnel, as approved by the DBM upon recommendation of the DOF Secretary. The organic personnel was
supposed to be augmented and reinforced by DOF and BOC personnel. Respondents allege that they were detailed to
CPRO even before its organic personnel could be constituted. We rule for respondents. Section 3 of EO 140 provides:
SECTION 3. Personnel and Staffing Complement. The CPRO shall be composed of its organic personnel, as approved by
the Department of Budget and Management (DBM) upon recommendation of the DOF Secretary, augmented and
reinforced by DOF and BOC personnel as well as those detailed or seconded from other agencies, whether attached to the
DOF or not. In addition, the CPRO, upon approval of the DOF Secretary, may hire or engage technical consultants to
provide necessary support in the performance of its mandate.

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Respondents were supposed to augment and reinforce the existing organic personnel of CPRO. Yet, at the time of
respondents' detail, CPRO had not been formally organized. CPRO had no organic personnel that had been approved by
the DBM upon recommendation of the DOF Secretary. The DOF Secretary had yet to promulgate rules and regulations and
to prescribe procedures and processes to enable CPRO to effectively exercise its powers and duties, as required by Section
4 of EO 140. In addition, under Section 8, Rule VII of the Omnibus Rules, a detail is temporary in nature. In fact, detail of
employees is only allowed for a maximum, period for those occupying professional, technical, and scientific positions. 15

Section 8, Rule VII of the Omnibus Rules provides:

SEC. 8. A detail is the movement of an employee from one department or agency to another which is temporary in nature,
which does not involve a reduction in rank, status or salary and does not require the issuance of another appointment. The
employee detailed receives his salary only from his mother unit/agency. Detail shall be allowed only for a maximum period
in the case of employees occupying professional, technical and scientific position. If the employee believes that there is no
justification for the detail, he may appeal his case to the Commission. Pending appeal, the decision to detail the employee
shall be executory unless otherwise ordered by the Commission.
Section 2 of CSC Resolution No. 021181, dated 13 September 2002,16 clarified the maximum period of detail of employees.
It states:
Section 2. Duration of the detail. The detail shall be allowed only for a maximum period of one year. Details beyond one
year may be allowed provided it is with the consent of the detailed employee. The extension or renewal of the period of
the detail shall be within the authority of the mother agency. If the employee believes that there is no justification for the
detail, he/she may appeal his/her case to the proper Civil Service Commission Regional Office. Pending appeal, the detail
shall be executory unless otherwise ordered by said regional office. Decision of said regional office may be further
appealed to the Commission en banc.
In this case, CPO 189-2013 did not provide for the period of respondents' detail. It only provided that the order "shall be
effective immediately and valid until sooner revoked," making the detail of respondents indefinite. There was nothing to
show that respondents were occupying professional, technical, and scientific positions that would have allowed their detail
for the maximum period provided under Section 8, Rule VII of the Omnibus Rules. Further, CSC Resolution No. 021181 did
not distinguish between an ordinary employee and an employee occupying professional, technical, and scientific position.
Hence, it should have been specified that the maximum period of respondents' detail should not exceed one year.
Petitioners assert, and we quote:
There is a cancer of corruption we must extinguish. The drive to rid the government of graft and corruption deserves the
support of everyone. The principle of good governance cannot, should not, be trivialized nor oversimplified by tenuous
whimpering and individualism intended to detract from the urgent need to cleanse the Republic from a mainstream culture
of unabated corruption, perpetuated with impunity and sense of self-entitlement. The issue at hand is not about who, but
what; it is not about individual loss, but about national gain. Whether from the birth pains of reform, this nation can gain a
foothold, nay, a stride into restoring this nation into its prideful place from the clutches of a "kleptocratic mafia" that had
gained a strangehold into one of the nation's primary sources of revenue.17

Indeed, we commend and support the reforms being undertaken in the different agencies of the government. However,
we cannot allow department heads to take shortcuts that will undermine and disregard the basic procedures of the law.

WHEREFORE, we PARTIALLY GRANT the petition. We sustain the validity of Executive Order No. 140. We rule that the
Regional Trial Court has jurisdiction over the action for declaratory relief filed by respondents. We further rule that
Customs Personnel Order No. B-189-2013 was not validly issued. SO ORDERED.

[G.R. No. 178454, March 28 : 2011] FILIPINA SAMSON, PETITIONER, VS. JULIA A. RESTRIVERA,
RESPONDENT. VILLARAMA, JR., J.:

Petitioner Filipina Samson appeals the Decision[1] dated October 31, 2006 of the Court of Appeals (CA) in CA-G.R. SP No.
83422 and its Resolution[2] dated June 8, 2007, denying her motion for reconsideration. The CA affirmed the Ombudsman
in finding petitioner guilty of violating Section 4(b)[3] of Republic Act (R.A.) No. 6713, otherwise known as the Code of
Conduct and Ethical Standards for Public Officials and Employees.

The facts are as follows:

Petitioner is a government employee, being a department head of the Population Commission with office at the Provincial
Capitol, Trece Martirez City, Cavite.

Sometime in March 2001, petitioner agreed to help her friend, respondent Julia A. Restrivera, to have the latter's land
located in Carmona, Cavite, registered under the Torrens System. Petitioner said that the expenses would reach P150,000
and accepted P50,000 from respondent to cover the initial expenses for the titling of respondent's land. However,
petitioner failed to accomplish her task because it was found out that the land is government property. When petitioner
failed to return the P50,000, respondent sued her for estafa. Respondent also filed an administrative complaint for grave
misconduct or conduct unbecoming a public officer against petitioner before the Office of the Ombudsman.

The Ombudsman found petitioner guilty of violating Section 4(b) of R.A. No. 6713 and suspended her from office for six
months without pay. The Ombudsman ruled that petitioner failed to abide by the standard set in Section 4(b) of R.A. No.
6713 and deprived the government of the benefit of committed service when she embarked on her private interest to help
respondent secure a certificate of title over the latter's land.[4]

Upon motion for reconsideration, the Ombudsman, in an Order[5] dated March 15, 2004, reduced the penalty to three

144
months suspension without pay. According to the Ombudsman, petitioner's acceptance of respondent's payment created a
perception that petitioner is a fixer. Her act fell short of the standard of personal conduct required by Section 4(b) of R.A.
No. 6713 that public officials shall endeavor to discourage wrong perceptions of their roles as dispensers or peddlers of
undue patronage. The Ombudsman held:

x x x [petitioner] admitted x x x that she indeed received the amount of P50,000.00 from the [respondent] and even
contracted Engr. Liberato Patromo, alleged Licensed Geodetic Engineer to do the surveys.

While it may be true that [petitioner] did not actually deal with the other government agencies for the processing of the
titles of the subject property, we believe, however, that her mere act in accepting the money from the [respondent] with
the assurance that she would work for the issuance of the title is already enough to create a perception that she is a
fixer. Section 4(b) of [R.A.] No. 6713 mandates that public officials and employees shall endeavor to discourage
wrong perception of their roles as dispenser or peddler of undue patronage.

xxxx

x x x [petitioner's] act to x x x restore the amount of [P50,000] was to avoid possible sanctions.

x x x [d]uring the conciliation proceedings held on 19 October 2002 at the barangay level, it was agreed upon by both
parties that [petitioner] be given until 28 February 2003 within which to pay the amount of P50,000.00 including
interest. If it was true that [petitioner] had available money to pay and had been persistent in returning the amount of
[P50,000.00] to the [respondent], she would have easily given the same right at that moment (on 19 October 2002) in the
presence of the Barangay Officials.[6] x x x. (Stress in the original.)

The CA on appeal affirmed the Ombudsman's Order dated March 19, 2004. The CA ruled that contrary to petitioner's
contentions, the Ombudsman has jurisdiction even if the act complained of is a private matter. The CA also ruled that
petitioner violated the norms of conduct required of her as a public officer when she demanded and received the amount
of P50,000 on the representation that she can secure a title to respondent's property and for failing to return the
amount. The CA stressed that Section 4(b) of R.A. No. 6713 requires petitioner to perform and discharge her duties with
the highest degree of excellence, professionalism, intelligence and skill, and to endeavor to discourage wrong perceptions
of her role as a dispenser and peddler of undue patronage.[7]

Hence, this petition which raises the following issues:

1. Does the Ombudsman have jurisdiction over a case involving a private dealing by a government employee or
where the act complained of is not related to the performance of official duty?
2. Did the CA commit grave abuse of discretion in finding petitioner administratively liable despite the dismissal of
the estafa case?
3. Did the CA commit grave abuse of discretion in not imposing a lower penalty in view of mitigating
circumstances?[8]

Petitioner insists that where the act complained of is not related to the performance of official duty, the Ombudsman has
no jurisdiction. Petitioner also imputes grave abuse of discretion on the part of the CA for holding her administratively
liable. She points out that the estafa case was dismissed upon a finding that she was not guilty of fraud or deceit, hence
misconduct cannot be attributed to her. And even assuming that she is guilty of misconduct, she is entitled to the benefit
of mitigating circumstances such as the fact that this is the first charge against her in her long years of public service.[9]

Respondent counters that the issues raised in the instant petition are the same issues that the CA correctly
resolved.[10] She also alleges that petitioner failed to observe the mandate that public office is a public trust when she
meddled in an affair that belongs to another agency and received an amount for undelivered work. [11]

We affirm the CA and Ombudsman that petitioner is administratively liable. We hasten to add, however, that petitioner is
guilty of conduct unbecoming a public officer.

On the first issue, we agree with the CA that the Ombudsman has jurisdiction over respondent's complaint against
petitioner although the act complained of involves a private deal between them.[12] Section 13(1),[13] Article XI of the 1987
Constitution states that the Ombudsman can investigate on its own or on complaint by any person any act or omission of
any public official or employee when such act or omission appears to be illegal, unjust, or improper. Under Section
16[14] of R.A. No. 6770, otherwise known as the Ombudsman Act of 1989, the jurisdiction of the Ombudsman encompasses
all kinds of malfeasance, misfeasance, and nonfeasance committed by any public officer or employee during his/her
tenure. Section 19[15] of R.A. No. 6770 also states that the Ombudsman shall act on all complaints relating, but not
limited, to acts or omissions which are unfair or irregular. Thus, even if the complaint concerns an act of the public official
or employee which is not service-connected, the case is within the jurisdiction of the Ombudsman. The law does not
qualify the nature of the illegal act or omission of the public official or employee that the Ombudsman may investigate. It
does not require that the act or omission be related to or be connected with or arise from the performance of official
duty. Since the law does not distinguish, neither should we. [16]

On the second issue, it is wrong for petitioner to say that since the estafa case against her was dismissed, she cannot be
found administratively liable. It is settled that administrative cases may proceed independently of criminal proceedings, and
may continue despite the dismissal of the criminal charges.[17]

For proper consideration instead is petitioner's liability under Sec. 4(A)(b) of R.A. No. 6713.

We quote the full text of Section 4 of R.A. No. 6713:

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SEC. 4. Norms of Conduct of Public Officials and Employees. - (A) Every public official and employee shall observe the
following as standards of personal conduct in the discharge and execution of official duties:

(a) Commitment to public interest. - Public officials and employees shall always uphold the public interest over and above
personal interest. All government resources and powers of their respective offices must be employed and used efficiently,
effectively, honestly and economically, particularly to avoid wastage in public funds and revenues.

(b) Professionalism. - Public officials and employees shall perform and discharge their duties with the highest degree of
excellence, professionalism, intelligence and skill. They shall enter public service with utmost devotion and dedication to
duty. They shall endeavor to discourage wrong perceptions of their roles as dispensers or peddlers of undue
patronage.

(c) Justness and sincerity. - Public officials and employees shall remain true to the people at all times. They must act with
justness and sincerity and shall not discriminate against anyone, especially the poor and the underprivileged. They shall at
all times respect the rights of others, and shall refrain from doing acts contrary to law, good morals, good customs, public
policy, public order, public safety and public interest. They shall not dispense or extend undue favors on account of their
office to their relatives whether by consanguinity or affinity except with respect to appointments of such relatives to
positions considered strictly confidential or as members of their personal staff whose terms are coterminous with theirs.

(d) Political neutrality. - Public officials and employees shall provide service to everyone without unfair discrimination and
regardless of party affiliation or preference.

(e) Responsiveness to the public. - Public officials and employees shall extend prompt, courteous, and adequate service to
the public. Unless otherwise provided by law or when required by the public interest, public officials and employees shall
provide information on their policies and procedures in clear and understandable language, ensure openness of
information, public consultations and hearings whenever appropriate, encourage suggestions, simplify and systematize
policy, rules and procedures, avoid red tape and develop an understanding and appreciation of the socioeconomic
conditions prevailing in the country, especially in the depressed rural and urban areas.

(f) Nationalism and patriotism. - Public officials and employees shall at all times be loyal to the Republic and to the Filipino
people, promote the use of locally-produced goods, resources and technology and encourage appreciation and pride of
country and people. They shall endeavor to maintain and defend Philippine sovereignty against foreign intrusion.

(g) Commitment to democracy. - Public officials and employees shall commit themselves to the democratic way of life and
values, maintain the principle of public accountability, and manifest by deed the supremacy of civilian authority over the
military. They shall at all times uphold the Constitution and put loyalty to country above loyalty to persons or party.

(h) Simple living. - Public officials and employees and their families shall lead modest lives appropriate to their positions
and income. They shall not indulge in extravagant or ostentatious display of wealth in any form.

(B) The Civil Service Commission shall adopt positive measures to promote (1) observance of these standards including the
dissemination of information programs and workshops authorizing merit increases beyond regular progression steps, to a
limited number of employees recognized by their office colleagues to be outstanding in their observance of ethical
standards; and (2) continuing research and experimentation on measures which provide positive motivation to public
officials and employees in raising the general level of observance of these standards.

Both the Ombudsman and CA found the petitioner administratively liable for violating Section 4(A)(b)
on professionalism. "Professionalism" is defined as the conduct, aims, or qualities that characterize or mark a
profession. A professional refers to a person who engages in an activity with great competence. Indeed, to call a person a
professional is to describe him as competent, efficient, experienced, proficient or polished.[18] In the context of Section 4
(A)(b) of R.A. No. 6713, the observance of professionalism also means upholding the integrity of public office by
endeavoring "to discourage wrong perception of their roles as dispensers or peddlers of undue patronage." Thus, a public
official or employee should avoid any appearance of impropriety affecting the integrity of government services. However,
it should be noted that Section 4(A) enumerates the standards of personal conduct for public officers with reference to
"execution of official duties."

In the case at bar, the Ombudsman concluded that petitioner failed to carry out the standard of professionalism by
devoting herself on her personal interest to the detriment of her solemn public duty. The Ombudsman said that
petitioner's act deprived the government of her committed service because the generation of a certificate of title was not
within her line of public service. In denying petitioner's motion for reconsideration, the Ombudsman said that it would have
been sufficient if petitioner just referred the respondent to the persons/officials incharge of the processing of the
documents for the issuance of a certificate of title. While it may be true that she did not actually deal with the other
government agencies for the processing of the titles of the subject property, petitioner's act of accepting the money from
respondent with the assurance that she would work for the issuance of the title is already enough to create a perception
that she is a fixer.

On its part, the CA rejected petitioner's argument that an isolated act is insufficient to create those "wrong perceptions" or
the "impression of influence peddling." It held that the law enjoins public officers, at all times to respect the rights of
others and refrain from doing acts contrary to law, good customs, public order, public policy, public safety and public
interest. Thus, it is not the plurality of the acts that is being punished but the commission of the act itself.

Evidently, both the Ombudsman and CA interpreted Section 4(A) of R.A. No. 6713 as broad enough to apply even to
private transactions that have no connection to the duties of one's office. We hold, however, that petitioner may not be
penalized for violation of Section 4 (A)(b) of R.A. No. 6713. The reason though does not lie in the fact that the act
complained of is not at all related to petitioner's discharge of her duties as department head of the Population

146
Commission.

In addition to its directive under Section 4(B), Congress authorized[19] the Civil Service Commission (CSC) to promulgate
the rules and regulations necessary to implement R.A. No. 6713. Accordingly, the CSC issued the Rules Implementing the
Code of Conduct and Ethical Standards for Public Officials and Employees (hereafter, Implementing Rules). Rule V of the
Implementing Rules provides for an Incentive and Rewards System for public officials and employees who have
demonstrated exemplary service and conduct on the basis of their observance of the norms of conduct laid down in
Section 4 of R.A. No. 6713, to wit:

RULE V. INCENTIVES AND REWARDS SYSTEM

SECTION 1. Incentives and rewards shall be granted officials and employees who have demonstrated exemplary service
and conduct on the basis of their observance of the norms of conduct laid down in Section 4 of the Code, namely:

(a) Commitment to public interest. - x x x

(b) Professionalism. - x x x

(c) Justness and sincerity. - x x x

(d) Political neutrality. - x x x

(e) Responsiveness to the public. - x x x

(f) Nationalism and patriotism. - x x x

(g) Commitment to democracy. - x x x

(h) Simple living. - x x x

On the other hand, Rule X of the Implementing Rules enumerates grounds for administrative disciplinary action, as follows:

RULE X. GROUNDS FOR ADMINISTRATIVE

DISCIPLINARY ACTION

SECTION 1. In addition to the grounds for administrative disciplinary action prescribed under existing laws, the acts and
omissions of any official or employee, whether or not he holds office or employment in a casual, temporary, hold-over,
permanent or regular capacity, declared unlawful or prohibited by the Code, shall constitute grounds for administrative
disciplinary action, and without prejudice to criminal and civil liabilities provided herein, such as:

(a) Directly or indirectly having financial and material interest in any transaction requiring the approval of his office. x x x.

(b) Owning, controlling, managing or accepting employment as officer, employee, consultant, counsel, broker, agent,
trustee, or nominee in any private enterprise regulated, supervised or licensed by his office, unless expressly allowed by
law;

(c) Engaging in the private practice of his profession unless authorized by the Constitution, law or regulation, provided that
such practice will not conflict or tend to conflict with his official functions;

(d) Recommending any person to any position in a private enterprise which has a regular or pending official transaction
with his office, unless such recommendation or referral is mandated by (1) law, or (2) international agreements,
commitment and obligation, or as part of the functions of his office;

xxxx

(e) Disclosing or misusing confidential or classified information officially known to him by reason of his office and not made
available to the public, to further his private interests or give undue advantage to anyone, or to prejudice the public
interest;

(f) Soliciting or accepting, directly or indirectly, any gift, gratuity, favor, entertainment, loan or anything of monetary value
which in the course of his official duties or in connection with any operation being regulated by, or any transaction which
may be affected by the functions of, his office. x x x.

xxxx

(g) Obtaining or using any statement filed under the Code for any purpose contrary to morals or public policy or any
commercial purpose other than by news and communications media for dissemination to the general public;

(h) Unfair discrimination in rendering public service due to party affiliation or preference;

(i) Disloyalty to the Republic of the Philippines and to the Filipino people;

(j) Failure to act promptly on letters and request within fifteen (15) days from receipt, except as otherwise provided in
these Rules;

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(k) Failure to process documents and complete action on documents and papers within a reasonable time from preparation
thereof, except as otherwise provided in these Rules;

(l) Failure to attend to anyone who wants to avail himself of the services of the office, or to act promptly and expeditiously
on public personal transactions;

(m) Failure to file sworn statements of assets, liabilities and net worth, and disclosure of business interests and financial
connections; and

(n) Failure to resign from his position in the private business enterprise within thirty (30) days from assumption of public
office when conflict of interest arises, and/or failure to divest himself of his shareholdings or interests in private business
enterprise within sixty (60) days from such assumption of public office when conflict of interest arises: Provided, however,
that for those who are already in the service and a conflict of interest arises, the official or employee must either resign or
divest himself of said interests within the periods herein-above provided, reckoned from the date when the conflict of
interest had arisen.

In Domingo v. Office of the Ombudsman,[20] this Court had the occasion to rule that failure to abide by the norms of
conduct under Section 4(A)(b) of R.A. No. 6713, in relation to its implementing rules, is not a ground for disciplinary
action, to wit:

The charge of violation of Section 4(b) of R.A. No. 6713 deserves further comment. The provision commands that "public
officials and employees shall perform and discharge their duties with the highest degree of excellence, professionalism,
intelligence and skill." Said provision merely enunciates "professionalism as an ideal norm of conduct to be observed by
public servants, in addition to commitment to public interest, justness and sincerity, political neutrality, responsiveness to
the public, nationalism and patriotism, commitment to democracy and simple living. Following this perspective, Rule V of
the Implementing Rules of R.A. No. 6713 adopted by the Civil Service Commission mandates the grant of incentives and
rewards to officials and employees who demonstrate exemplary service and conduct based on their observance of the
norms of conduct laid down in Section 4. In other words, under the mandated incentives and rewards system, officials and
employees who comply with the high standard set by law would be rewarded. Those who fail to do so cannot expect the
same favorable treatment. However, the Implementing Rules does not provide that they will have to be
sanctioned for failure to observe these norms of conduct. Indeed, Rule X of the Implementing Rules affirms
as grounds for administrative disciplinary action only acts "declared unlawful or prohibited by the
Code." Rule X specifically mentions at least twenty three (23) acts or omissions as grounds for
administrative disciplinary action. Failure to abide by the norms of conduct under Section 4(b) of R.A. No.
6713 is not one of them.(Emphasis supplied.)

Consequently, the Court dismissed the charge of violation of Section 4(A)(b) of R.A. No. 6713 in that case.

We find no compelling reason to depart from our pronouncement in Domingo. Thus, we reverse the CA and Ombudsman
that petitioner is administratively liable under Section 4(A)(b) of R.A. No. 6713. In so ruling, we do no less and no more
than apply the law and its implementing rules issued by the CSC under the authority given to it by Congress. Needless to
stress, said rules partake the nature of a statute and are binding as if written in the law itself. They have the force and
effect of law and enjoy the presumption of constitutionality and legality until they are set aside with finality in an
appropriate case by a competent court.[21]

But is petitioner nonetheless guilty of grave misconduct, which is a ground for disciplinary action under R.A. No. 6713?

We also rule in the negative.

Misconduct is a transgression of some established and definite rule of action, more particularly, unlawful behavior or gross
negligence by a public officer. The misconduct is grave if it involves any of the additional elements of corruption, willful
intent to violate the law or to disregard established rules, which must be proved by substantial evidence. Otherwise, the
misconduct is only simple.[22] Conversely, one cannot be found guilty of misconduct in the absence of substantial
evidence. In one case, we affirmed a finding of grave misconduct because there was substantial evidence of voluntary
disregard of established rules in the procurement of supplies as well as of manifest intent to disregard said rules. [23] We
have also ruled that complicity in the transgression of a regulation of the Bureau of Internal Revenue constitutes simple
misconduct only as there was failure to establish flagrancy in respondent's act for her to be held liable of gross
misconduct.[24] On the other hand, we have likewise dismissed a complaint for knowingly rendering an unjust order, gross
ignorance of the law, and grave misconduct, since the complainant did not even indicate the particular acts of the judge
which were allegedly violative of the Code of Judicial Conduct.[25]

In this case, respondent failed to prove (1) petitioner's violation of an established and definite rule of action or unlawful
behavior or gross negligence, and (2) any of the aggravating elements of corruption, willful intent to violate a law or to
disregard established rules on the part of petitioner. In fact, respondent could merely point to petitioner's alleged failure to
observe the mandate that public office is a public trust when petitioner allegedly meddled in an affair that belongs to
another agency and received an amount for undelivered work.

True, public officers and employees must be guided by the principle enshrined in the Constitution that public office is a
public trust. However, respondent's allegation that petitioner meddled in an affair that belongs to another agency is a
serious but unproven accusation. Respondent did not even say what acts of interference were done by petitioner. Neither
did respondent say in which government agency petitioner committed interference. And causing the survey of
respondent's land can hardly be considered as meddling in the affairs of another government agency by petitioner who is
connected with the Population Commission. It does not show that petitioner made an illegal deal or any deal with any
government agency. Even the Ombudsman has recognized this fact. The survey shows only that petitioner contracted a
surveyor. Respondent said nothing on the propriety or legality of what petitioner did. The survey shows that petitioner

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also started to work on her task under their agreement. Thus, respondent's allegation that petitioner received an amount
for undelivered work is not entirely correct. Rather, petitioner failed to fully accomplish her task in view of the legal
obstacle that the land is government property.

However, the foregoing does not mean that petitioner is absolved of any administrative liability.

But first, we need to modify the CA finding that petitioner demanded the amount of P50,000 from respondent because
respondent did not even say that petitioner demanded money from her.[26] We find in the allegations and counter-
allegations that respondent came to petitioner's house in Biñan, Laguna, and asked petitioner if she can help respondent
secure a title to her land which she intends to sell. Petitioner agreed to help. When respondent asked about the cost,
petitioner said P150,000 and accepted P50,000 from respondent to cover the initial expenses.[27]

We agree with the common finding of the Ombudsman and the CA that, in the aftermath of the aborted transaction,
petitioner still failed to return the amount she accepted. As aptly stated by the Ombudsman, if petitioner was persistent in
returning the amount of P50,000 until the preliminary investigation of the estafa case on September 18, 2003,[28] there
would have been no need for the parties' agreement that petitioner be given until February 28, 2003 to pay said amount
including interest. Indeed, petitioner's belated attempt to return the amount was intended to avoid possible sanctions and
impelled solely by the filing of the estafa case against her.

For reneging on her promise to return aforesaid amount, petitioner is guilty of conduct unbecoming a public
officer. In Joson v. Macapagal, we have also ruled that the respondents therein were guilty of conduct unbecoming of
government employees when they reneged on their promise to have pertinent documents notarized and submitted to the
Government Service Insurance System after the complainant's rights over the subject property were transferred to the
sister of one of the respondents.[29] Recently, in Assistant Special Prosecutor III Rohermia J. Jamsani-Rodriguez v. Justices
Gregory S. Ong, et al., we said that unbecoming conduct means improper performance and applies to a broader range of
transgressions of rules not only of social behavior but of ethical practice or logical procedure or prescribed method. [30]

This Court has too often declared that any act that falls short of the exacting standards for public office shall not be
countenanced.[31] The Constitution categorically declares as follows:

SECTION 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people,
serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest
lives.[32]

Petitioner should have complied with her promise to return the amount to respondent after failing to accomplish the task
she had willingly accepted. However, she waited until respondent sued her for estafa, thus reinforcing the latter's
suspicion that petitioner misappropriated her money. Although the element of deceit was not proven in the criminal case
respondent filed against the petitioner, it is clear that by her actuations, petitioner violated basic social and ethical norms in
her private dealings. Even if unrelated to her duties as a public officer, petitioner's transgression could erode the public's
trust in government employees, moreso because she holds a high position in the service.

As to the penalty, we reprimanded the respondents in Joson and imposed a fine in Jamsani-Rodriguez. Under the
circumstances of this case, a fine of P15,000 in lieu of the three months suspension is proper. In imposing said fine, we
have considered as a mitigating circumstance petitioner's 37 years of public service and the fact that this is the first charge
against her.[33] Section 53[34] of the Revised Uniform Rules on Administrative Cases in the Civil Service provides that
mitigating circumstances such as length of service shall be considered. And since petitioner has earlier agreed to return
the amount of P50,000 including interest, we find it proper to order her to comply with said agreement. Eventually, the
parties may even find time to rekindle their friendship.

WHEREFORE, we SET ASIDE the Decision dated October 31, 2006 of the Court of Appeals and its Resolution dated June
8, 2007 in CA-G.R. SP No. 83422, as well as the Decision dated January 6, 2004 and Order dated March 15, 2004 of the
Ombudsman in OMB-L-A-03-0552-F, and ENTER a new judgment as follows:

We find petitioner GUILTY of conduct unbecoming a public officer and impose upon her a FINE of P15,000.00 to be paid
at the Office of the Ombudsman within five (5) days from finality of this Decision.

We also ORDER petitioner to return to respondent the amount of P50,000.00 with interest thereon at 12% per annum
from March 2001 until the said amount shall have been fully paid.

With costs against the petitioner.

SO ORDERED.

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