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EN BANC

HENRY P. LANOT, substituted by MARIO S. RAYMUNDO, Petitioner,

CHARMIE Q. BENAVIDES, Petitioner-Intervenor,

- versus -

COMMISSION ON ELECTIONS and VICENTE P. EUSEBIO, Respondents.

G.R. No. 164858

Present:

PANGANIBAN, C.J., PUNO,

QUISUMBING,YNARES-SANTIAGO,SANDOVAL-GUTIERREZ,CARPIO, AUSTRIA-MARTINEZ,CORONA,CARPIO MORALES,CALLEJO, SR., AZCUNA,TINGA,CHICO-NAZARIO,GARCIA, andVELASCO, JR., JJ.

Promulgated:

November 16, 2006x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

D E C I S I O N

CARPIO, J .:

The Case

This is a petition for certiorar i[1]

assailing the Resolution dated 20

August 2004,[2]

the Resolution dated 21 May 2004[3]

of the Commission on Elections(COMELEC) En Banc, and the Advisory dated 10 May 2004

[4] of COMELEC Chairman

Benjamin S. Abalos (―Chairman Abalos‖) in SPA No. 04 -288.

The 10 May 2004 Advisory of Chairman Abalos enjoined Acting National CapitalRegion (NCR) Regional Director Esmeralda Amora-Ladra (―Director Ladra‖) fromimplementing the COMELEC First Division’s 5 May 2004 Resolution.

[5] The 5 May 2004

Resolution ordered (1) the disqualification of respondent Vicente P. Eusebio (―Eusebio‖)as a candidate for Pasig City Mayor in the 10 May 2004 elections, (2) the deletion ofEusebio’s name from the certified list of candidates for Pasig City Mayor, (3) theconsideration of votes for Eusebio as stray, (4) the non-inclusion of votes for Eusebio inthe canvass, and (5) the filing of the necessary information against Eusebio by theCOMELEC Law Department.

The 21 May 2004 Order of the COMELEC En Banc set aside the 11 May2004 Order of the COMELEC En Banc

[6] and directed the Pasig City Board of

Canvassers to proclaim the winning candidate for Pasig City Mayor without prejudice tothe final outcome of Eusebio’s disqualification case. The 11 May 2004 Ordersuspended the proclamation of Eusebio in the event that he would receive the winningnumber of votes.

Finally, the 20 August 2004 COMELEC En Banc resolution set aside the 5 May2004 Resolution of the COMELEC First Division

[7] and nullified the corresponding

order. The COMELEC En Banc referred the case to the COMELEC Law Department todetermine whether Eusebio actually committed the acts subject of the petition fordisqualification.

The Facts

On 19 March 2004, Henry P. Lanot (―Lanot‖), Vener Obispo (―Obispo‖), Roberto Peralta (―Peralta‖), Reynaldo dela Paz (―dela Paz‖), Edilberto Yamat (―Yamat‖), andRam Alan Cruz (―Cruz‖) (collectively, ―petitioners‖), filed a petition fordisqualification

[8] under Sections 68 and 80 of the Omnibus Election Code against

Eusebio before the COMELEC. Lanot, Obispo, and Eusebio were candidates for PasigCity Mayor, while Peralta, dela Paz, Yamat, and Cruz were candidates for Pasig CityCouncilor in the 10 May 2004 elections. The case was docketed as SPA (NCR-RED)

No. C04-008.

Petitioners alleged that Eusebio engaged in an election campaign in various forms onvarious occasions outside of the designated campaign period, such as (1) addressing alarge group of people during a medical mission sponsored by the Pasig Citygovernment; (2) uttering defamatory statements against Lanot; (3) causing thepublication of a press release predicting his victory; (4) installing billboards, streamers,posters, and stickers printed with his surname across Pasig City; and (5) distributingshoes to schoolchildren in Pasig public schools to induce their parents to vote for him.

In his Answer filed on 29 March 2004,[9]

Eusebio denied petitioners’ allegationsand branded the petition as a harassment case. Eusebio further stated that petitioners’evidence are merely fabricated.

Director Ladra conducted hearings on 2, 5 and 7 April 2004 where she receivedthe parties’ documentary and testimonial evidence. Petitioners submitted theirmemorandum

[10] on 15 April 2004, while Eusebio submitted his memorandum

[11]on 16

April 2004.

The Ruling of the Regional Director

On 4 May 2004, Director Ladra submitted her findings and recommendations tothe COMELEC. Director Ladra recommended that:

WHEREFORE, in view of the foregoing, undersigned respectfully recommendsthat the instant petition be GRANTED. Consequently, pursuant to Section 68 (a) and (e)

of the Omnibus Election Code, respondent VICENTE P. EUSEBIO shall

http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/164858.htm#_ftn1










































be DISQUALIFIED to run for the position of Mayor, Pasig City for violation of Section 80of the Omnibus Election Code.

Further, undersigned respectfully recommends that the instant case be referredto the Law Department for it to conduct a preliminary investigation on the possibleviolation by the respondent of Sec. 261 (a) of the Omnibus Election Code.

[12]

The Ruling of the COMELEC

In a resolution dated 5 May 2004, or five days before the elections, theCOMELEC First Division adopted the findings and recommendation of DirectorLadra. The dispositive portion of the resolution read:

WHEREFORE, in view of the foregoing, the Commission (FIRSTDIVISION) RESOLVED as it hereby RESOLVES to ORDER:1. the disqualification of respondent VICENTE P. EUSEBIO from being acandidate for mayor of Pasig City in the May 10, 2004 elections;2. the Election Officers of District I and District II of Pasig Cityto DELETE and CANCEL the name of respondent VICENTE P. EUSEBIO from thecertified list of candidates for the City Offices of Pasig City for the May 10, 2004elections;

3. the Board of Election Inspectors of all the precincts comprising the City ofPasig not to count the votes cast for respondent VICENTE EUSEBIO , the same beingcast for a disqualified candidate and therefore must be considered stray;4. the City Board of Canvassers of Pasig City not to canvass the voteserroneously cast for the disqualified candidate respondent VICENTE P. EUSEBIO, inthe event that such votes were recorded in the election returns[;]5. the Regional Director of NCR, and the Election Officers of Pasig City toimmediately implement the foregoing directives[;]6. the Law Department through its Director IV, Atty. ALIODEN DALAIG to filethe necessary information against Vicente P. Eusebio before the appropriate court.

This Resolution is immediately executory unless restrained by the CommissionEn Banc.

[13] (Emphasis in the original)

In a Very Urgent Advisor y

[14]

dated 8 May 2004, or two days before theelections, Chairman Abalos informed the following election officers of the resolution ofthe COMELEC First Division: Director Ladra; Atty. Romeo Alcazar, Acting ElectionOfficer of the First District of Pasig City; Ms. Marina Gerona, Acting Election Officer ofthe Second District of Pasig City; and all Chairmen and Members of the Board ofElection Inspectors and City Board of Canvassers of Pasig City (collectively, ―pertine ntelection officers‖). Director Ladra repeated the dispositive portion of the 5 May2004 resolution in a Memorandum

[15] which she issued the next day. On 9 May 2004,

Eusebio filed a motion for reconsideration[16]

of the resolution of the COMELEC FirstDivision.

On election day itself, Chairman Abalos issued the first of the three questionedCOMELEC issuances. In a memorandum, Chairman Abalos enjoined Director Ladrafrom implementing the COMELEC First Division’s 5 May 2004 resolution due to

Eusebio’s motion for reconsideration. The 10 May 2004 memorandum stated:

Considering the pendency of a Motion for Reconsideration timely filed byRespondent, Vicente P. Eusebio[,] with the Commission En Banc , you arehereby ENJOINED from implementing the Resolution promulgated on May 5, 2004, inthe x x x case until further orders from the Commission En Banc .

[17] (Emphasis in the

original)

On 11 May 2004, the day after the elections, petitioners Lanot, Peralta, dela Paz,Yamat, and Cruz filed before the COMELEC En Banc a motion to suspend the countingand canvassing of votes and the proclamation of the winning mayoral candidate

for Pasig City.

[18]

Without waiting for Eusebio’s opposition, the COMELEC En Bancpartially denied the motion on the same day. The dispositive portion of the Orderdeclared:

WHEREFORE, in view of the foregoing, the Commission En Banc DENIES themotion for suspension of the counting of votes and the canvassing of votes. However,in order not to render moot and academic the issues for final disposition by the En Bancand considering that on the basis of the Resolution of the FIRST DIVISION, theevidence of respondent’s guilt is strong, the Commission En Banc hereby ORDERS toSUSPEND, UNTIL FURTHER ORDERS OF THE COMMISSION, the proclamation ofrespondent in the event he receives the winning number of votes.

[19] (Emphasis in the

original)

On 12 May 2004, Eusebio filed his opposition to petitioners’ motion.

On 21 May 2004, the COMELEC En Banc issued the second questionedissuance. The order quoted from the motion for advisory opinion of the Pasig CityBoard of Canvassers which reported that 98% of the total returns of Pasig City hadbeen canvassed and that there were only 32 uncanvassed returns involving 6,225registered voters. Eusebio had 119,693 votes while Lanot had 108,941 votes. Thus,the remaining returns would not affect Eusebio’s lead over Lanot. The COMELEC EnBanc stated its ―established policy‖ to ―expedite the canvass of votes and proclamationof winning candidates to ease the post election tension and without prejudice to [its]action in [the] x x x case‖

[20] and resolved to declare Eusebio as Pasig City Mayor. The

dispositive portion of the 21 May 2004 Order read:

WHEREFORE, this Commission RESOLVED, as it hereby RESOLVES, to LIFT

AND SET ASIDE the order suspending the proclamation of the respondent.FURTHER, the City Board of Canvassers is DIRECTED to complete [the]canvass and immediately proceed with the proclamation of the winning candidate forMayor of Pasig City without prejudice to the final outcome of the case entitled,“Henry P. Lanot, et al., vs. Vicente Eusebio[, ‖] docketed as SPA No. 04-288.


Eusebio was proclaimed as Pasig City Mayor on 23 May 2004 based on the 21May 2004 Order. On 25 June and 6 July 2004, the COMELEC En Banc conductedhearings on Eusebio’s motion for reconsideration of the 5 May 2004 COMELEC FirstDivision resolution. On 6 August 2004, Lanot filed a motion to annul Eusebio’sproclamation and to order his proclamation instead.

[22]

On 20 August 2004, the COMELEC En Banc promulgated the third questioned

issuance. The COMELEC En Banc invoked Section 1 of COMELEC Resolution No.2050 (―Resolution 2050‖) and this Court’s rulings in Albaña v. COMELEC ,

[23]Lonzanida
















































v. COMELEC ,[24]

and Sunga v. COMELEC [25]

in justifying the annulment of the order todisqualify Eusebio and the referral of the case to the Law Department for preliminaryinvestigation. The dispositive portion stated:

WHEREFORE, PREMISES CONSIDERED, the resolution promulgated by theFirst Division dated 8 May 2004 on the above-captioned case, affirming therecommendation of the Regional Director (NCR) to disqualify herein respondent, ishereby SET ASIDE, and the corresponding ORDER issued thereunder, ANNULLED. Accordingly, this case is referred to the Law Department for investigation

to finally determine [whether] the acts complained of were in fact committed byrespondent Eusebio.[26] (Emphasis in the original)

Hence, this petition.

The Issues

Lanot alleged that as the COMELEC’s issuances are not supported by substantialevidence and are contrary to law and settled jurisprudence, the COMELEC committedgrave abuse of discretion amounting to lack of or excess of jurisdiction. Lanot raisedthe following issues before this Court:

A. WHETHER PUBLIC RESPONDENT COMELEC, IN ISSUING [ITS]

RESOLUTION DATED AUGUST 20, 2004, ACTED WITH GRAVE ABUSE OFDISCRETION OR LACK OR IN EXCESS OF JURISDICTION

1. by setting aside the Resolution of Disqualification promulgated by its FirstDivision on May 5, 2004 affirming the recommendation of the Regional Election Director(NCR) to disqualify Respondent, and by annulling the order issued thereunder,

a) erroneously, whimsically and maliciously ADOPTED and APPLIEDSections 1 and 2 of Rule 2050 to this case,b) capriciously VIOLATED COMELEC Resolution 6452 and Sec. 6, R.A.6646,c) erroneously, whimsically and capriciously ARROGATED unto themselvesa quasi-judicial legislation, and

d) erroneously and maliciously MISAPPLIED the Albaña and Sunga cases to thecase at bar;

2. by referring the case to the Law Department for investigation, it illegally,erroneously and maliciously DISMISSED the electoral aspect of the case andwhimsically VIOLATED Resolution 6452 and Section 6 of RA 6646;

3. by disregarding the Order of disqualification, it erroneously and whimsicallyIGNORED and DISREGARDED the inchoate right of petitioner as the winning party.

B. WHETHER PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OFDISCRETION OR IN EXCESS OR LACK OF JURISDICTION IN ISSUING ITSRESOLUTION DATED MAY 21, 2004

1. by lifting and setting aside the Order of suspension of proclamation bywinning candidate issued on May 11, 2004, it erroneously and intentionally and

whimsically DISREGARDED the strong evidence of guilt of Respondent to warrant thesuspension of his proclamation and erroneously and capriciously VIOLATED Resolutionof May 11, 2004.

C. WHETHER CHAIRMAN BENJAMIN ABALOS OF THE COMELEC ACTEDWITH GRAVE ABUSE OF POWER, AUTHORITY OR DISCRETION OR LACK OR INEXCESS OF JURISDICTION

1. by unilaterally enjoining the implementation of the Order of Respondent’s

disqualification despite the condition therein that it could only be restrained by theCommission En Banc, and whether or not he illegally, erroneously and blatantlywhimsically grabbed the exclusive adjudicatory power of the Commission En Banc.

D. WHETHER RESPONDENT COMELEC COMMITTED GRAVE ABUSE OFDISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION INCAPRICIOUSLY DISREGARDING THE RESOLUTION OF MAY 5, 2004 AS ALREADYFINAL AND EXECUTED AND IN FAILING TO ORDER THE PROCLAMATION OFPETITIONER.

E. a) WHETHER THERE ARE PREPONDERANT EVIDENCE TOWARRANT RESPONDENT EUSEBIO’S DISQUALIFICATION.

b) WHETHER RESPONDENT EUSEBIO SHOULD BE DEEMED DISQUALIFIED WITH

FOUR (4) AFFIRMATIVE VOTES OF COMMISSIONERS, TWO (2) VOTES FROMCOMMISSIONERS BORRA AND GARCILLANO WHO VOTED FOR THEDISQUALIFICATION IN THE MAY 5, 2004RESOLUTION (ANNEX ―B‖) AND TWO (2) VOTES FROM COMMISSIONERSTUAZON, JR. AND SADAIN WHO VOTED TO DISQUALIFY HIM IN THEIRDISSENTING OPINION (ANNEX ―A-1‖) SHOULD REFERRAL OF THE CASE TO THELAW DEPARTMENT BY RESPONDENT COMELEC BE DECLARED A PATENTNULLITY.

F. IN CASE OF DISQUALIFICATION OF RESPONDENT EUSEBIO,WHETHER PETITIONER LANOT CAN BE PROCLAIMED AND ALLOWED TO SIT ASMAYOR-ELECT, AND WHETHER THE DOCTRINESIN TOPACIO, CODILLA, JR ., LABO AND OTHERS APPLY IN THIS CASE.

[27]

The Ruling of the Court

The petition has no merit.

Part ies to the Present Petit ion

On 13 April 2005, during the pendency of this case, an unidentified person shotand killed Lanot in Pasig City. It seemed that, like an endangered specie, thedisqualification case would be extinguished by Lanot’s death. However, on 27 April2005, Lanot’s counsel manifested, over Eusebio’s objections, that Mario S. Raymundo(―Raymundo‖), a registered voter and former Mayor of Pasig City, is Lanot’s substitute in

this case. Also, on 25 August 2005, Charmie Q. Benavides (―Benavides‖),a Pasig City mayoral candidate and the third placer in the 10 May 2004 elections, filed a


















petition-in-intervention. Benavides asked whether she could be proclaimed Pasig CityMayor because she is the surviving qualified candidate with the highest number of votesamong the remaining candidates.

The law and the COMELEC rules have clear pronouncements that the electoralaspect of a disqualification case is not rendered inutile by the death of petitioner,provided that there is a proper substitution or intervention of parties while there is apending case. On Raymundo’s substitution, any citizen of voting age is competent tocontinue the action in Lanot’s stead.

[28] On Benavides’ intervention, Section 6 of

Republic Act No. 6646, or the Electoral Reforms Law of 1987 (―Electoral Reforms Lawof 1987‖), allows intervention in proceedings for disqualification even after elections if nofinal judgment has been rendered. Although Eusebio was already proclaimed as PasigCity Mayor, Benavides could still intervene, as there was still no final judgment in theproceedings for disqualification.

[29]

The case for disqualification exists, and survives, the election and proclamation ofthe winning candidate because an outright dismissal will unduly reward the challengedcandidate and may even encourage him to employ delaying tactics to impede theresolution of the disqualification case until after he has been proclaimed.

[30] The

exception to the rule of retention of jurisdiction after proclamation applies when thechallenged candidate becomes a member of the House of Representatives or of theSenate, where the appropriate electoral tribunal would have jurisdiction. There is nolaw or jurisprudence which says that intervention or substitution may only be done prior

to the proclamation of the winning candidate. A substitution is not barred byprescription because the action was filed on time by the person who died and who isbeing substituted. The same rationale applies to a petition-in-intervention.

COMELEC’s Grave Abuse of Discretion

Propriety of Including Eusebio’s Name in the Pasig City Mayoral Candidates and of theCounting of Votes and Canvassing of Election Returns

In its 5 May 2004 resolution, the COMELEC First Division ordered the pertinentelection officials to delete and cancel Eusebio’s name from the certified list

of Pasig City mayoral candidates, not to count votes cast in Eusebio’s favor, and not toinclude votes cast in Eusebio’s favor in the canvass of election returns. Eusebio filed amotion for reconsideration of the resolution on 9 May 2004. Hence, COMELECChairman Abalos issued a memorandum on 10 May 2004 which enjoined the pertinentelection officials from implementing the 5 May 2004 resolution. In a Resolutiondated 11 May 2004, the COMELEC En Banc subsequently ratified and adoptedChairman Abalos’ 10 May 2004 memorandum when it denied Lanot’s motion tosuspend the counting of votes and canvassing of election returns.

Lanot claims that Chairman Abalos whimsically grabbed the adjudicatory powerof the COMELEC En Banc when he issued the 10 May 2004 memorandum. Lanotasserts that the last sentence in the dispositive portion of the COMELEC FirstDivision’s 5 May 2004 Resolution, ―[t]his Resolution is immediately executory unlessrestrained by the Commission En Banc,‖ should have prevented Chairman Abalos fromacting on his own.

Lanot’s claim has no basis, especially in light of the 11 May 2004 Resolution ofthe COMELEC En Banc. The COMELEC En Banc’s explanation is apt:

Suspension of these proceedings is tantamount to an implementation of the Resolutionof the FIRST DIVISION which had not yet become final and executory by reason of thetimely filing of a Motion for Reconsideration thereof. A disposition that has not yetattained finality cannot be implemented even through indirect means.

[31]

Moreover, Chairman Abalos’ 10 May 2004 memorandum is merely an advisory required

by the circumstances at the time. Eusebio filed a motion for reconsideration on 9 May2004, and there was not enough time to resolve the motion for reconsideration beforethe elections. Therefore, Eusebio was not yet disqualified by final judgment at the timeof the elections. Section 6 of the Electoral Reforms Law of 1987 provides that ―[a]candidate who has been declared by final judgment to be disqualified shall not be votedfor, andthe votes cast for him shall not be counted.‖ Under Section 13 of the COMELEC Rulesof Procedure, a decision or resolution of a Division in a special action becomes final andexecutory after the lapse of fifteen days following its promulgation while a decision orresolution of the COMELEC En Banc becomes final and executory after five days fromits promulgation unless restrained by this Court.

Propriety of the Lifting of the Suspension of Eusebio’s Proclamation

In the same 11 May 2004 Resolution, the COMELEC En Banc ordered thesuspension of Eusebio’s proclamation in the event he would receive the winningnumber of votes. Ten days later, the COMELEC En Banc set aside the 11 May2004order and directed the Pasig City Board of Canvassers to proclaim Eusebio as thewinning candidate for Pasig City Mayor. The COMELEC relied on Resolutions 7128and 7129

[32] to justify the counting of Eusebio’s votes and quoted from the Resolutions

as follows:

Resolution No. 7128 - x x x xNOW THEREFORE, the Commission RESOLVED, as it hereby RESOLVES, to

adopt certain policies and to direct all Board of Canvassers, as follows:

1. to speed up its canvass and proclamation of allwinning candidates except under the following circumstances:a. issuance of an order or resolution suspending the proclamation;

b. valid appeal[s] from the rulings of the board in cases where appeal isallowed and the subject appeal will affect the results of the elections;

x x x x.Resolution No. 7129 x x x xNOW THEREFORE, the Commission on Elections, by virtue of the powers

vested in it by the Constitution, the Omnibus Election Code and other elections laws,has RESOLVED, as it hereby RESOLVES, to refrain from granting motions andpetitions seeking to postpone proclamations by the Board of Canvassers and otherpleadings with similar purpose unless they are grounded on compelling reasons,supported by convincing evidence and/or violative of the canvassing procedure outlined

in Resolution No. 6669.























We agree with Eusebio that the COMELEC En Banc did not commit grave abuseof discretion in issuing its 21 May 2004 order. The COMELEC has the discretion tosuspend the proclamation of the winning candidate during the pendency of adisqualification case when evidence of his guilt is strong.

[33] However, an order

suspending the proclamation of a winning candidate against whom a disqualificationcase is filed is merely provisional in nature and can be lifted when warranted by theevidence.

[34]

Propriety of the Dismissal of the Disqualification Case and of the Referral to the COMELEC Law Department

Lanot filed the petition for disqualification on 19 March 2004, a little less than twomonths before the 10 May 2004 elections. Director Ladra conducted hearings on thepetition for disqualification on 2, 5 and 7 April 2004. Director Ladra submitted herfindings and recommendations to the COMELEC on 4 May 2004. The COMELEC FirstDivision issued a resolution adopting Director Ladra’s recommendations on 5 May2004. Chairman Abalos informed the pertinent election officers of the COMELEC FirstDivision’s resolution through an Advisory dated 8 May 2004. Eusebio filed a Motion forReconsideration on 9 May 2004. Chairman Abalos issued a memorandum to DirectorLadra on election day, 10 May 2004, and enjoined her from implementing the 5 May2004 COMELEC First Division resolution. The petition for disqualification was not yet

finally resolved at the time of the elections. Eusebio’s votes were counted andcanvassed, after which Eusebio was proclaimed as the winning candidate for Pasig CityMayor. On 20 August 2004, the COMELEC En Banc set aside the COMELEC FirstDivision’s order and referred the case to the COMELEC Law Department.

In its 20 August 2004 resolution, the COMELEC En Banc relied heavily on thetiming of the filing of the petition. The COMELEC En Banc invoked Section 1 ofResolution No. 2050, which states:

1. Any complaint for the disqualification of a duly registered candidate basedupon any of the grounds specifically enumerated under Section 68 of the OmnibusElection Code, filed directly with the Commission before an election in which therespondent is a candidate, shall be inquired into by the Commission for the purpose ofdetermining whether the acts complained of have in fact been committed. Where the

inquiry by the Commission results in a finding before election, that the respondentcandidate did in fact commit the acts complained, the Commission shall order thedisqualification of the respondent candidate from continuing as such candidate.

In case such complaint was not resolved before the election, theCommission may motu propr io , or on motion of any of the parties, refer thecomplaint to the Law Department of the Commission as the instrument of thelatter in the exercise of its exclusive power to conduct a preliminary investigationof all cases involving criminal infractions of the election laws. Such recoursemay be availed of irrespective of whether the respondent has been elected or haslost in the election. (Emphasis added)

The COMELEC also quoted from Sunga v. COMELEC to justify its referral of thedisqualification case to its Law Department.

x x x We discern nothing in COMELEC Resolution No. 2050 declaring, orderingor directing the dismissal of a disqualification case filed before the election but which

remained unresolved after the election. What the Resolution mandates in such a case isfor the Commission to refer the complaint to its Law Department for investigation todetermine whether the acts complained of have in fact been committed by the candidatesought to be disqualified. The findings of the Law Department then become the basisfor disqualifying the erring candidate. This is totally different from the other twosituations contemplated by Resolution No. 2050, i.e., a disqualification case filed afterthe election but before the proclamation of winners and that filed after the election andthe proclamation of winners, wherein it was specifically directed by the same Resolutionto be dismissed as a disqualification case.

[35]

For his part, Eusebio asserts that the COMELEC has the prerogative to refer thedisqualification case to its Law Department. Thus, no grave abuse of discretion can beimputed to the COMELEC. Moreover, the pendency of a case before the LawDepartment for purposes of preliminary investigation should be considered ascontinuation of the COMELEC’s deliberations.

However, contrary to the COMELEC En Banc’s reliance on Resolution No. 2050in its 20 August 2004 resolution, the prevailing law on the matter is Section 6of the Electoral Reforms Law of 1987. Any rule or action by the COMELEC should bein accordance with the prevailing law. Section 6 of the Electoral Reforms Law of 1987provides:

Section 6. Effect of Disqualification Case.— Any candidate who has beendeclared by final judgment to be disqualified shall not be voted for, and the votes castfor 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 receivesthe winning number of votes in such election, the Court or Commission shallcontinue with the trial and hearing of the action, inquiry or protest and, uponmotion of the complainant or any intervenor, may during the pendency thereof order thesuspension of the proclamation of such candidate whenever the evidence of his guilt isstrong. (Emphasis added)

Moreover, this Court’s ruling in Sunga was further explained in Bagatsing v.COMELEC ,

[36] thus:

The COMELEC in Sunga obviously misapplied Resolution No. 2050 indismissing the disqualification case therein simply because it remained unresolvedbefore the election and, in lieu thereof, referring it to its Law Department for possiblecriminal prosecution of the respondent for violation of the election laws. Notably, thereis nothing in paragraph 1 of Resolution No. 2050 which directs the dismissal of thedisqualification case not resolved before the election. It says the COMELEC ―may motu prop[r]io or on motion of any of the parties, refer the complaint to the Law Department ofthe Commission as an instrument of the latter in the exercise of its exclusive power toconduct a preliminary investigation of all cases involving criminal infractions of theelection laws.‖ The referral to the Law Department is discretionary on the part of theCOMELEC and in no way may it be interpreted that the COMELEC will dismiss thedisqualification case or will no longer continue with the hearing of the same. Thereason for this is that a disqualification case may have two (2) aspects, theadministrative, which requires only a preponderance of evidence to prove

disqualification, and the criminal, which necessitates proof beyond reasonable doubt toconvict. Where in the opinion of the COMELEC, the acts which are grounds for



















disqualification also constitute a criminal offense or offenses, referral of the case to theLaw Department is proper.x x x x

It bears stressing that the Court in Sunga recognized the difference between adisqualification case filed before and after an election when, as earlier mentioned, itstated that the referral of the complaint for disqualification where the case is filed beforeelection ―is totally different from the other two situations contemplated by Resolution No.2050, i.e., a disqualification case filed after the election but before the proclamation ofwinners and that filed after the election and the proclamation of winners, wherein it wasspecifically directed by the same Resolution to be dismissed as a disqualification case.‖

Indeed, the 20 August 2004 resolution of the COMELEC En Banc betrayed itsmisunderstanding of the two aspects of a disqualification case. The electoral aspect ofa disqualification case determines whether the offender should be disqualified frombeing a candidate or from holding office. Proceedings are summary in character andrequire only clear preponderance of evidence. An erring candidate may be disqualifiedeven without prior determination of probable cause in a preliminary investigation. Theelectoral aspect may proceed independently of the criminal aspect, and vice-versa.

The criminal aspect of a disqualification case determines whether there is probablecause to charge a candidate for an election offense. The prosecutor is the COMELEC,through its Law Department, which determines whether probable cause exists.

[37] 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.

[38] A criminal

conviction shall result in the disqualification of the offender, which may even includedisqualification from holding a future public office.

[39]

The two aspects account for the variance of the rules on disposition andresolution of disqualification cases filed before or after an election. When thedisqualification case is filed before the elections, the question of disqualification israised before the voting public. If the candidate is disqualified after the election, thosewho voted for him assume the risk that their votes may be declared stray orinvalid. There is no such risk if the petition is filed after the elections .

[40] The

COMELEC En Banc erred when it ignored the electoral aspect of the disqualificationcase by setting aside the COMELEC First Division’s resolution and referring the entire

case to the COMELEC Law Department for the criminal aspect.

Moreover, the COMELEC En Banc’s act and Eusebio’s assertions lose sight ofthe provisions of Resolution No. 6452 (―Resolution 6452‖), ―Rules Delegating toCOMELEC Field Officials the Hearing and Reception of Evidence of DisqualificationCases Filed in Connection with the May 10, 2004 National and Local Elections; MotuProprio Actions and Disposition of Disqualification Cases,‖ promulgated on 10December 2003. The pertinent portions of Resolution 6452 provide:

Section 1. Delegation of reception of evidence. — The Commission herebydesignates its field officials who are members of the Philippine Bar to hear and receiveevidence in the following petitions:x x xc. Petition to disqualify a candidate pursuant to Sec. 68 of the Omnibus Election

Code and disqualify a candidate for lack of qualifications or possessing same groundsfor disqualification;

x x xSec. 2. Suspension of the Comelec Rules of Procedure.— In the interest of

justice and in order to attain speedy disposition of cases, the Comelec Rules ofProcedure or any portion thereof inconsistent herewith is hereby suspended.

Sec. 3. Where to file petitions. — The petitions shall be filed with the followingoffices of the Commission:x x xb. For x x x local positions including highly-urbanized cities, in the National CapitalRegion, with the Regional Election Director of said region;x x x

PROVIDED, in cases of highly-urbanized cities the filing of petitions fordisqualification shall be with the Office of the Regional Election Directors. x x xx x x x

The Regional Election Directors concerned shall hear and receive evidencestrictly in accordance with the procedure and timeliness herein provided.

Sec. 5. Procedure in filing petitions. — For purposes of the preceding section,the following procedure shall be observed:x x x xC. PETITION TO DISQUALIFY A CANDIDATE PURSUANT TO SEC. 68 OF THEOMNIBUS ELECTION CODE AND PETITION TO DISQUALIFY FOR LACK OFQUALIFICATIONS OR POSSESSING SAME GROUNDS FOR DISQUALIFICATION

1. The verified petition to disqualify a candidate pursuant to Sec. 68 of the

Omnibus Election Code x x x may be filed any day after the last day [of] filing ofcertificates of candidacy but not later than the date of proclamation.2. The petition to disqualify a candidate pursuant to Sec. 68 of the OmnibusElection Code shall be filed in ten (10) legible copies with the concerned officementioned in Sec. 3 personally or through a duly authorized representative by anycitizen of voting age, or duly registered political party, organization or coalition ofpolitical parties against any candidate who, in an action or protest in which he is a part y,is declared by final decision of a competent court guilty of, or found by the Commissionof:2.a having given money or other material consideration to influence, induce orcorrupt the voters or public officials performing electoral functions; orx x x2.d having solicited, received or made any contribution prohibited under Sections

89, 95, 96, 97 and 104 of the Omnibus Elections Code; or2.e having violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, vand cc sub-paragraph 6 of the Omnibus Election Code, shall be disqualified fromcontinuing as a candidate, or if he has been elected, from holding the office.x x x x

Indeed, what the COMELEC did in its 20 August 2004 resolution was contrary to―the interest of justice and x x x speedy disposition of cases.‖ Resolution No. 2050referring the electoral aspect to the Law Department is procedurally inconsistent withResolution 6452 delegating reception of evidence of the electoral aspect to the RegionalElection Director. The investigation by the Law Department under Resolution No. 2050produces the same result as the investigation under Resolution 6452 by the RegionalElection Director. Commissioner Tuason’s dissent underscored the inconsistencybetween the avowed purpose of Resolution 6452 and the COMELEC En Banc’s 20

August 2004 resolution:



















x x x [T]he preliminary investigation for purposes of finding sufficient ground for[Eusebio’s] disqualification, has already been accomplished by the RED-NCR prior tothe election. There also appears no doubt in my mind, that such recommendation of theinvestigating officer, RED-NCR, was substantive and legally sound. The First Divisionagreed with the result of the investigation/recommendation, with the facts of the caseclearly distilled in the assailed resolution. This, I likewise found to be in accord with ourvery own rules and the jurisprudential doctrines aforestated. There could be no rhymeand reason then to dismiss the electoral aspect of the case (i.e., disqualification) andrefer the same to the Law Department for preliminary investigation. As held in Sunga,clearly, the legislative intent is that the COMELEC should continue the trial and hearingof the disqualification case to its conclusion, i.e., until judgment is renderedthereon. The criminal aspect of the case is an altogether different issue.

Sunga said the reason is obvious: A candidate guilty of election offenses wouldbe undeservedly rewarded, instead of punished, by the dismissal of the disqualificationcase against him simply because the investigating body was unable, for any reasoncaused upon it, to determine before the election if the offenses were indeed committedby the candidate sought to be disqualified. All that the erring aspirant would need to dois to employ delaying tactics so that the disqualification case based on the commissionof election offenses would not be decided before the election. This scenario isproductive of more fraud which certainly is not the main intent and purpose of the law.

[41]

We agree with Lanot that the COMELEC committed grave abuse of discretionwhen it ordered the dismissal of the disqualification case pending preliminary

investigation of the COMELEC Law Department. A review of the COMELEC FirstDivision’s 5 May 2004 resolution on Eusebio’s disqualification is in order, in view of thegrave abuse of discretion committed by the COMELEC En Banc in its 20 August2004 resolution.

Right ful Pasig Ci ty Mayor

Eusebio’s Questioned Acts

We quote the findings and recommendations of Director Ladra as adopted by theCOMELEC First Division:

The questioned acts of [Eusebio] are as follows:1) The speech uttered on February 14, 2004 during the meeting

dubbed as “Lingap sa Barangay” in Barangay San Miguel, Pasig City wherein[Eusebio] allegedly asked the people to vote for him and solicited for theirsupport x x x:

x x x x2) Another speech given on March 17, 2004 in ROTC St., Rosario,

Pasig City wherein [Eusebio] again allegedly uttered defamatory statementsagainst co-[candidate] Lanot and campaigned for his (respondent’s) and hisgroup’s candidacy.

x x x x3) He caused to be published in leading newspapers about a survey

allegedly done by Survey Specialist, Inc. showing him to be leading in the

mayoralty race in Pasig City. x x x x

4) He paid a political advertisement in the Philippine Free Press in theamount of P193,660.00 as published in its issue dated February 7, 2004.

x x x x5) The display of billboards containing the words

“Serbisyo Eusebio” and “ST” which means “Serbisyong Totoo” before the startof the campaign period.

x x x x6) Posters showing the respondent and his running mate Yoyong

Martir ez as well those showing the name “KA ENTENG EUSEBIO” and “BOBBYEUSEBIO” in connection with the dengue project were posted everywhere evenbefore the start of the campaign period.

x x x x7) Streamers bearing the words “Pasig City is for PEACE” were

likewise displayed with the two letters “E” prominently written. x x x x8) Stickers of [Eusebio] were likewise pasted all over the city before

the start of the campaign period. x x x x9) [Eusebio] engaged in vote-buying by distributing shoes to the

students while telling the parents that by way of gratitude, they should vote forhim.

x x x x (Emphasis in the original)[42]

Eusebio argues that: (1) Lanot is in estoppel for participating in the proceedingsbefore the COMELEC Law Department; (2) Lanot abandoned the present petition alsobecause of his participation in the proceedings before the COMELEC Law Department;and (3) Lanot is guilty of forum-shopping. These arguments fail for lack ofunderstanding of the two aspects of disqualification cases. The proceedings before theCOMELEC Law Department concern the criminal aspect, while the proceedings beforethis Court concern the electoral aspect, of disqualification cases. The proceedings inone may proceed independently of the other.

Eusebio is correct when he asserts that this Court is not a trier of facts. What heoverlooks, however, is that this Court may review the factual findings of the COMELECwhen there is grave abuse of discretion and a showing of arbitrariness in theCOMELEC’s decision, order or resolution.

[43] We find that the COMELEC committed

grave abuse of discretion in issuing its 20 August 2004 resolution.

Our review of the factual findings of the COMELEC, as well as the law applicable to thiscase, shows that there is no basis to disqualify Eusebio. Director Ladra recommendedthe disqualification of Eusebio ―for violation of Section 80 of the Omnibus ElectionCode.‖ The COMELEC First Division approved Director Ladra’s recommendation anddisqualified Eusebio. Section 80 of the Omnibus Election Code provides:

SECTION 80. Election campaign or partisan political activity outside campaign period . — It shall be unlawful for any person, whether or not a voter or candidate,or for any party, or association of persons, to engage in an election campaign orpartisan political activity except during the campaign period: Provided , Thatpolitical parties may hold political conventions or meetings to nominate theirofficial candidates within thirty days before the commencement of the campaign

period and forty-five days for Presidential and Vice-Presidential election. (Emphasissupplied)















What Section 80 of the Omnibus Election Code prohibits is ―an election campaignor partisan political activity‖ by a ―candidate‖ ―outside‖ of the campaign period. Section79 of the same Code defines ―candidate,‖ ―election campaign‖ and ―partisan politicalactivity‖ as follows:

SECTION 79. Definitions. — As used in this Code:

(a) The term “candidate” refers to any person aspiring for or seeking anelective public office, who has filed a certificate of candidacy by himself or throughan accredited political party, aggroupment, or coalition of parties;

(b) The term “election campaign” or “partisan political activity” refers to anact designed to promote the election or defeat of a particular candidate orcandidates to a public office which shall include:

(1) Forming organizations, associations, clubs, committees or other groups ofpersons for the purpose of soliciting votes and/or undertaking any campaign for oragainst a candidate;(2) Holding political caucuses, conferences, meetings, rallies, parades, or othersimilar assemblies, for the purpose of soliciting votes and/or undertaking any campaignor propaganda for or against a candidate;

(3) Making speeches, announcements or commentaries, or holding interviews foror against the election of any candidate for public office;(4) Publishing or distributing campaign literature or materials designed to supportor oppose the election of any candidate; or(5) Directly or indirectly soliciting votes, pledges or support for or against acandidate.

The foregoing enumerated acts if performed for the purpose of enhancing thechances 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 orpartisan election activity.

Public expressions or opinions or discussions of probable issues in a

forthcoming election or on attributes of or criticisms against probable candidatesproposed to be nominated in a forthcoming political party convention shall not beconstrued as part of any election campaign or partisan political activity contemplatedunder this Article.

Thus, the essential elements for violation of Section 80 of the Omnibus ElectionCode 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 candidateorcandidates; (3) the act is done outside the campaign period.

The second element requires the existence of a ―candidate.‖ Under Section 79(a), acandidate is one who ―has filed a certificate of candidacy‖ to an elective publicoffice. 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 electioncampaign or partisan political activity is committed.

Assuming that all candidates to a public office file their certificates of candidacy on thelast day, which under Section 75 of the Omnibus Election Code is the day before thestart of the campaign period, then no one can be prosecuted for violation of Section80 for acts done prior to such last day. Before such last day, there is no ―particularcandidate or candidates‖ to campaign for or against. On the day immediately after thelast day of filing, the campaign period starts and Section 80 ceases to apply sinceSection 80 covers only acts done ―outside‖ the campaign period.

Thus, if all candidates file their certificates of candidacy on the last day, Section 80may only apply to acts done on such last day, which is before the start of the campaignperiod and after at least one candidate has filed his certificate of candidacy. This isperhaps the reason why those running for elective public office usually file theircertificates of candidacy on the last day or close to the last day.

There is no dispute that Eusebio’s acts of election campaigning or partisanpolitical activities were committed outside of the campaign period. The only question iswhether 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 periodon 24 March 2004.

Section 11 of Republic Act No. 8436 (―RA 8436‖) moved the deadline for the filing ofcertificates 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 crucialquestion is: did this change in the deadline for filing the certificate of candidacymake one who filed his certificate of candidacy before 2 January 2004immediately liable for violation of Section 80 if he engaged in election campaignor partisan political activities prior to the start of the campaign period on 24March 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/orthe propositions to be voted upon in an initiative, referendum or plebiscite. Under eachposition, the names of candidates shall be arranged alphabetically by surname anduniformly 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 officialballot 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 electionshall not be later than one hundred twenty (120) days before theelections: Provided , That, any elective official, whether national or local, running for anyoffice other than the one which he/she is holding in a permanent capacity, except forpresident and vice-president, shall be deemed resigned only upon the start of thecampaign period corresponding to the position for which he/she is running:Prov ided ,further, That, unlawful acts or omissions applicable to a candidate shall takeeffect upon the start of the aforesaid campaign period: Provided, finally, That, forpurposes of the May 11, 1998 elections, the deadline for filing of the certificate ofcandidacy 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 forthe 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/orthe Bangko Sentral ng Pilipinas at the price comparable with that of private printersunder proper security measures which the Commission shall adopt. The Commissionmay contract the services of private printers upon certification by the National PrintingOffice/Bangko Sentral ng Pilipinas that it cannot meet the printing requirements. Accredited political parties and deputized citizens’ arms of the Commission may assignwatchers in the printing, storage and distribution of official ballots.

To prevent the use of fake ballots, the Commission through the Committee shallensure that the serial number on the ballot stub shall be printed in magnetic ink thatshall be easily detectable by inexpensive hardware and shall be impossible toreproduce 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 therate of one (1) ballot for every registered voter with a provision of additional four (4)ballots per precinct.

[44] (Emphasis added)

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

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

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

SENATOR GONZALES. But the moment one files a certificate of candidacy, he’salready 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 yetbegan [sic].

THE CHAIRMAN (REP. TANJUATCO). If we don’t provide that the filing of thecertificate 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 ofthe certificate of candidacy will not result in that official vacating his position, wecan also provide that insofar he is concerned, election period or his being acandidate will not yet commence. Because here, the reason why we are doing anearly filing is to afford enough time to prepare this machine readable ballots.

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.

x x x x

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

THE CHAIRMAN (REP. TANJUATCO). Again, since the intention of this provisionis 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 otherprohibition.

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

THE ACTING CHAIRMAN (SEN. FERNAN). Okay.

THE CHAIRMAN (REP. TANJUATCO). In other words, actually, there would be noconflict anymore because we are talking about the 120-day period before election asthe last day of filing a certificate of candidacy, election period starts 120 days also. Sothat is election period already. But he will still not be considered as a

candidate.[45]

(Emphasis added)

Thus, because of the early deadline of 2 January 2004 for purposes of printing ofofficial ballots, Eusebio filed his certificate of candidacy on 29 December2003. Congress, however, never intended the filing of a certificate of candidacy before2 January 2004 to make the person filing to become immediately a ―candidate‖ forpurposes other than the printing of ballots. This legislative intent prevents theimmediate application of Section 80 of the Omnibus Election Code to those filing tomeet the early deadline. The clear intention of Congress was to preserve the ―electionperiods as x x x fixed by existing law‖ prior to RA 8436 and that one who files tomeet the early deadline ―will still not be considered as a candidate.‖

Under Section 3(b) of the Omnibus Election Code, the applicable law prior to RA 8436,the campaign period for local officials commences 45 days before election day. For the2004 local elections, this puts the start of the campaign period on 24 March 2004. Thisalso puts the last day for the filing of certificate of candidacy, under the law prior to RA8436, on 23 March 2004. Eusebio is deemed to have filed his certificate of candidacyonthis date for purposes other than the printing of ballots because this is the interpretationof Section 80 of the Omnibus Election Code most favorable to one charged of itsviolation. Since Section 80 defines a criminal offense,

[46] its provisions must be

construed liberally in favor of one charged of its violation. Thus, Eusebio became a“candidate” only on 23 March 2004 for purposes other than the printing of ballots.

Acts committed by Eusebio prior to his being a ―candidate‖ on 23 March 2004, even ifconstituting election campaigning or partisan political activities, are not punishable

under Section 80 of the Omnibus Election Code. Such acts are protected as part offreedom of expression of a citizen before he becomes a candidate for elective public















office. Acts committed by Eusebio on or after 24 March 2004, or during the campaignperiod, are not covered by Section 80 which punishes only actsoutside the campaignperiod.We now examine the specific questioned acts of Eusebio whether they violate Section80 of the Omnibus Election Code.

We begin with the 14 February 2004 and the 17 March 2004 speeches of Eusebio:

1) The speech uttered on February 14, 2004 during the meetingdubbed as “Lingap sa Barangay” in Barangay San Miguel, Pasig City wherein[Eusebio] allegedly asked the people to vote for him and solicited for theirsupport x x x:

2) Another speech given on March 17, 2004 in ROTC St., Rosario,Pasig City wherein [Eusebio] again allegedly uttered defamatorystatements against co-[candidate] Lanot and campaigned for his (respondent’s)and his group’s candidacy.

[47](Emphasis in the original)

The 14 February 2004 and 17 March 2004 speeches happened before the date Eusebiois deemed to have filed his certificate of candidacy on 23 March 2004 for purposesother than the printing of ballots. Eusebio, not being a candidate then, is not liable forspeeches on 14 February 2004 and 17 March 2004 asking the people to vote for him.

The survey showing Eusebio leading in the mayoralty race was published beforeEusebio was deemed to have filed his certificate of candidacy on 23 March 2004. Thus:

3) He caused to be published in leading newspapers about a surveyallegedly done by Survey Specialist, Inc. showing him to be leading in themayoralty race in Pasig City.

x x x xThey also presented Certification issued by Mr. Diego Cagahastian, News Editor ofManila Bulletin dated 10 March 2004 and Mr. Isaac G. Belmonte, Editor-in-Chief ofPhilippine Star dated March 2, 2004 to the effect that the articles in question came fromthe camp of [Eusebio].


Eusebio is not liable for this publication which was made before he became a candidateon 23 March 2004.

The political advertisement in the Philippine Free Press issue of7 February 2004 was also made before Eusebio became a candidate on 23March 2004. Thus:

4) He paid a political advertisement in the Philippine Free Press in theamount of P193,660.00 as published in its issue dated February 7,2004.


The display of Eusebio’s billboards, posters, stickers, and streamers, as well as hisdistribution of free shoes, all happened also before Eusebio became a candidate on 23March 2004. Thus:

5) The display of billboards containing the words“Serbisyo Eusebio” and “ST” which means “Serbisyong Totoo” before the startof the campaign period.

x x x x6) Posters showing the respondent and his running mate Yoyong

Martinez as well those showing the name “KA ENTENG EUSEBIO” and “BOBBYEUSEBIO” in connection with the dengue project were posted everywhere evenbefore the start of the campaign period.

x x x xPetitioners’ witnesses Alfonso Cordova and Alfredo Lacsamana as well as

Hermogenes Garcia stated in their respective affidavits marked as Exhs. ―L‖ and ―L-1‖that the pictures were taken on March 3, 7 & 8, 2004.

x x x x7) Streamers bearing the words “Pasig City is for PEACE” were

likewise displayed with the two letters “E” prominently written. x x x xSaid streamers were among those captured by the camera of the petitioners’

witnesses Hermogenes Garcia and Nelia Sarmiento before the start of the campaignperiod.

8) Stickers of [Eusebio] were likewise pasted all over the city beforethe start of the campaign period.

x x x x9) [Eusebio] engaged in vote-buying by distributing shoes to the

students while telling the parents that by way of gratitude, they should vote forhim.

The affidavits of Ceferino Tantay marked as Exh. ―M‖ and Flor Montefalcon,Norie Altiche and Myrna Verdillo marked as Exh. ―O‖ are uncontroverted. Theirstatement that free shoes were given to the students of Rizal High School wascorroborated by the Manila Bulletin issue of February 6, 2004 which showed the pictureof the respondent delivering his speech before a group of students.x x x x


Based on the findings of Director Ladra, the questioned acts attributed to Eusebioall occurred before the start of the campaign period on 24 March 2004. Indeed,Director Ladra applied Section 80 of the Omnibus Election Code against Eusebioprecisely because Eusebio committed these acts ―outside‖ of the campaign

period. However, Director Ladra erroneously assumed that Eusebio became a―candidate,‖ for purposes of Section 80, when Eusebio filed his certificate of candidacyon 29 December 2003.

Under Section 11 of RA 8436, Eusebio became a ―candidate,‖ for purposes of Section80 of the Omnibus Election Code, only on 23 March 2004, the last day for filingcertificates of candidacy. Applying the facts - as found by Director Ladra and affirmedby the COMELEC First Division - to Section 11 of RA 8436, Eusebio clearly did notviolate Section 80 of the Omnibus Election Code which requires the existence of a―candidate,‖ one who has filed his certificate of candidacy, during the commission of thequestioned acts.

Eusebio asserts that Section 11 of RA 8436 exculpates him from any liability forthe questioned acts. Eusebio points out that Section 11 contains the following proviso:



















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

Eusebio theorizes that since the questioned acts admittedly took place before the startof the campaign period, such acts are not ―unlawful acts or omissions applicable to acandidate.‖

We find no necessity to apply in the present case this proviso in Section 11 of RA8436. Eusebio’s theory legalizes election campaigning or partisan political activitiesbefore the campaign period even if a person has already filed his certificate ofcandidacy based on the election periods under existing laws prior to RA 8436. UnderEusebio’s theory, Section 11 of RA 8436 punishes unlawful acts applicable to acandidate only if committed during the campaign period.

By definition, the election offense in Section 80 of the Omnibus Election Code cannot becommitted during the campaign period. On the other hand, under Eusebio’s theory,unlawful acts applicable to a candidate cannot be committed outside of the campaignperiod. The net result is to make the election offense in Section 80 physicallyimpossible to commit at any time. We shall leave this issue for some other case in thefuture since the present case can be resolved without applying the proviso in Section 11of RA 8436.

Effect of Eusebio’s Possible Disqualification

As second placer, Lanot prayed that he be proclaimed as the rightful Pasig CityMayor in the event of Eusebio’s disqualification. As third placer, Benavides, on theother hand, prays that she be proclaimed as the rightful Pasig City Mayor in the event ofEusebio’s disqualification and in view of Lanot’s death. Even if we assume Eusebio’sdisqualification as fact, we cannot grant either prayer.

The disqualification of the elected candidate does not entitle the candidate whoobtained the second highest number of votes to occupy the office vacated because ofthe disqualification.

[51] Votes cast in favor of a candidate who obtained the highest

number of votes, against whom a petition for disqualification was filed before the

election, are presumed to have been cast in the belief that he was qualified. For thisreason, the second placer cannot be declared elected.[52]

The exception to this rule rests on two assumptions. First, the one who obtainedthe highest number of votes is disqualified. Second, the voters are so fully aware in factand in law of a candidate’s disqualification to bring such awareness within the realm ofnotoriety but nonetheless the voters still cast their votes in favor of the ineligiblecandidate.

[53] Lanot and Benavides failed to prove that the exception applies in the

present case. Thus, assuming for the sake of argument that Eusebio is disqualified, therule on succession provides that the duly elected Vice-Mayor of Pasig City shallsucceed in Eusebio’s place.

[54]

WHEREFORE, we DISMISS the petition. We find no grave abuse of discretion inthe 10 May 2004 Advisory of Chairman Benjamin S. Abalos and in the 21 May 2004

Order of the Commission on Elections En Banc. We SET ASIDE the 20 August 2004Resolution of the Commission En Banc since respondent Vicente P. Eusebio did not

commit any act which would disqualify him as a candidate in the 10 May 2004elections.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-32546 October 17, 1970

ANACLETO D. BADOY, JR., petitioner,vs.JAIME N. FERRER, Chairman, CESAR MIRAFLOR, and LINO M. PATAJO,Members, Commission on Elections, respondents.

G.R. No. L-32551 October 17, 1970

ANACLETO D. BADOY, JR., petitioner,vs.JAIME N. FERRER, Chairman, CESAR MIRAFLOR, and LINO M. PATAJO,MEMBERS, Commission on Elections, respondents.

Anacleto D. Badoy, Jr. in his own behalf.

Office of the Solicitor General for respondents.

MAKASIAR, J .: p

In these two cases, petitioner Anacleto D. Badoy, Jr. avers that he is a candidate fordelegate to the Constitutional Convention for the lone district of North Cotabato; andpursuant to Sec. 19 of R.A. No. 6132, he prays in L-32546 that Sec. 12(F) of the law bedeclared unconstitutional as the same denies:.

(1) individuals, who are not candidates, their freedom of speech and of the press; and

(2) candidates the right to speak and write, discuss and debate in favor of theircandidacies or against the candidacies of others.

Petitioner in G.R. No. L-32551 prays.



















(1) that Sec. 12(F) of R.A. No. 6132 be so construed as to allow the printing andpublication of comments and articles for or against a candidate, which are not-paid,without mentioning the names of all the other candidates with equal prominence(emphasis supplied); and

(2) that Comelec Resolution No. RR-724 be declared unconstitutional in so far as itprohibits the printing and publication of such comments and articles, which are not paid,unless the names of all the candidates are mentioned with equal prominence.(emphasis supplied)

However, after the filing of the herein petitions, the Comelec had amended paragraph 6of its Resolution No. RR-724 of September 8, 1970 by promulgating Resolution No. RR-739 on September 29, 1970, which limits the prohibition in said paragraph 6 ofResolution No. RR-724 to the publication of paid comments or paid articles withoutmentioning the names of all the other candidates with equal prominence; and thepertinent portion of paragraph 6 as thus amended merely restates the ban in Sec. 12(F)of R.A. No. 6132. Since the relevant portion of paragraph 6 of Resolution No. RR-724as amended no longer prohibits the printing and publication of paid commentsor paid articles without mentioning the names of all other candidates with equalprominence, which is the correct interpretation of Sec. 12(F) of R.A. No. 6132, the samerenders moot and academic the petition in G.R. No. L-32551. Consequently, We cannotdeclare as unconstitutional that portion of paragraph 6 of Comelec Resolution No. RR-

724 as amended by Comelec Resolution No. RR-739, which reads thus:.

(6) Outside of the Comelec Space, ... it shall be unlawful for any newspaper, magazineor periodical to print or publish or cause to be printed or published any advertisement,paid comment or paid article in furtherance of or in opposition to the candidacy of anyperson for delegate, or mentioning the name of any candidate and the fact of hiscandidacy, unless all the names of all the other candidates in the district in which thecandidate mentioned is running are also mentioned with equal prominence. ...

In G.R. No. L-32546, petitioner insists on his challenge that Sec. 12(F) of R.A. No. 6132is unconstitutional, because it unduly abridges the freedom of expression of anindividual, whether candidate or not.

Freedom of expression is not immune to regulation by the State in the exercise of itspolice power. The validity of the abridgment is gauged by the extent of its inroad into thedomain of the liberty of speech and of the press, when subjected to the applicable clear-and-present danger rule or the balancing-of-interests test. If the restriction on theinvaded freedom is so narrow that the basic liberty remains, then the limitation isconstitutional.

1

It should be first stressed that, as long as the publisher is juridical person or anorganized group of persons of whatever nature, whether in the business of publishing anewspaper, magazine or periodical only for this particular election or not, anyadvertisement or article published by a publisher for or against any candidate, paid orunpaid by said publisher, is prohibited as an organized group support under paragraph1 of Sec. 8(a) of R.A. No. 6132.

Paragraph F of Sec. 12 reads thus:.

The Commission on Elections shall endeavor to obtain free space from newspapers,magazines and periodicals which shall be known as Comelec space, and shall allocatethis space equally to impartially among all candidates within the areas in which thenewspapers are circulated. Outside of said Comelec space, it shall be unlawful to printor publish, or cause to be printed or published, any advertisement, paid comment orpaid article in furtherance of or in opposition to the candidacy of any person fordelegate, or mentioning the name of any candidate and the fact of his candidacy, unless

all the names of all other candidates in the district in which the candidate is running arealso mentioned with equal prominence.

Said paragraph F contemplates the following situations:

I. With or Without Comelec Space.

1. Any advertisement, paid comment or paid article by the candidate or by a non-candidate who is a natural person, published in a newspaper, magazine, or periodicalfor or against a candidate, or mentioning the name of any candidate, and the fact of hiscandidacy, must mentioned the names of all other candidates in the same district withequal prominence, in order that such publication will not fall under the ban.

2. With respect to unpaid comments or unpaid articles, published in any newspaper,magazine, or periodical, the names of all the other candidates need not be mentioned.

II. If Comelec Space is obtained in a Newspaper, Magazine or Periodical —.

1. That Comelec space must be allocated by the Comelec "equally and impartiallyamong all candidates within the areas in which the newspapers are circulated," free forall such candidates.

2. Outside said Comelec space, any advertisement, paid comment or paid article by anycandidate or non-candidate who is a natural person, and published in the same oranother newspaper, magazine or periodical, for or against a candidate or mentioningthe name of any candidate and the fact of his candidacy, must mention all the names ofall the other candidates in the same district with equal prominence, to remove the samefrom the operation of the prohibition.

3. Any unpaid comment or unpaid article of the same nature or content published in anynewspaper, magazine, or periodical need not mention the names of all the othercandidates.

The expenses for such comment or article incurred by the candidate or by any otherperson with the knowledge and consent of the candidate, shall be counted as part of theamount of thirty-two thousand pesos (P32,000.00), the maximum total fixed by the lawwhich the candidate can lawfully spend for his candidacy. (see par. G of Sec. 12)



Under the challenged paragraph F of Sec. 12, the moneyed candidate or individual whocan afford to pay for advertisements, comments or articles in favor of his candidacy oragainst the candidacy of another or which mention his name and the fact of hiscandidacy, is required to mention all the other candidates in the same district with equalprominence to exempt him from the penal sanction of the law. The evident purpose ofthis limitation, on the freedom of the candidate or his sympathizer to spend his ownmoney for his candidacy alone and not for the furtherance of the candidacy of hisopponents, is to give the poor candidates a fighting chance in the election. Neither it istrue that the mere mention of the poor opponent in the same advertisement or paidarticle does not by itself alone engender per feet equality of chances; at least thechance of the poor candidate for victory is improved because thereby his name will beexposed to the reading public in the same article as that of the wealthy candidate.

The same is true with respect to the candidate who can afford to pay only for anadvertisement or comment or article in his favor, and is without funds for the additionalspace needed to accommodate the names of the other candidates.

If the wealthy candidate or the one who can afford only to meet the campaign expensesfor his own candidacy alone, is discouraged thereby to pay for any campaignadvertisement, comment or article in his favor, then the parity of chances in winning theelection among the poor, the not so poor and the rich candidates is further enhanced.

But the restriction in the challenged paragraph F of Sec. 12, is only one of the measuresdevised by the law to preserve suffrage pure and undefiled and to achieve the desiredequality of chances among all the candidates.

Considering the foregoing limitation in paragraph F, Sec. 12 in the light of the otherprovisions of R.A. No. 6132 designed to maximize, if not approximate, equality ofchances among the various candidates in the same district, the said restriction on thefreedom of expression appears too insignificant to create any appreciable dent on theindividual's liberty of expression.

More than compensating for the minor limitation on the freedom of expression of anindividual delineated in Sec. 12(F), R.A. No. 6132 affords him several facilities and otherforms of assistance by which he can fully exercise his freedom of expression, including

freedom of assembly, namely:.

1. Section 50-B of the Revised Election Code as amended by R.A. No. 4880 limiting theperiod of election campaign shall not apply to the election of delegates (Sec. 6[B]);

2. Each candidate is entitled to utilize for his campaign all the members of his familywithin the fourth civil degree of consanguinity or affinity;

3. Each candidate can employ a personal campaign staff composed of one for every tenprecincts in his district;

4. Each candidate cannot be refused a permit to hold a public meeting on the ground

that the provisions of this paragraph a, Sec. 8, may be violated;

5. Any member of any political party, organization or organized group of whatevernature, acting individually, can campaign for or against any candidate;

6. All organizations or organized groups of whatever nature are allowed to disseminateinformation or advocate constitutional reforms or proposals, which may be the sameconstitutional reforms or proposals advocated by the candidate, without of coursementioning the candidate directly or indirectly (Sec. 8 [a] par. 1, R.A. 6132);

7. A Comelec billboard in every city, municipality, municipal district and barrio of

sufficient population density to be allocated by lottery by the Comelec equally andimpartially among them;

8. Comelec time from each radio broadcasting and television station at least one hourbut not more than two hours at least once a week also to be allocated by lottery by theComelec equally and impartially among the candidates within the area of coverage ofsaid station;

9. A candidate may appear on any interview or program in any radio broadcast ortelevision or movie house or theater, provided all the other candidates are also invited toappear; and

10. News coverage by the mass media of significant or newsworthy events, views,public meetings or rallies involving any candidate in any news program, newsreel,newspaper, magazine, or other periodicals is allowed. (see pars. A, B, C, E and H ofSec. 12)

To implement the foregoing facilities and to increase the chances of the poor candidateas against the wealthy opponent as well as to insure free, orderly and honest election,in addition to the penal sanctions provided for in the Revised Election Code, R.A. No.6132 prohibits, with penalties:.

1. Political party or organized group support, whether material or otherwise (par. 1 ofSec. 8[a]);

2. The head of any executive department, bureau or office, official or officer nominatedor appointed by the President of the Philippines, head or appointed officer of anygovernment-owned or controlled corporation, from giving support directly or indirectly,material or otherwise for or against any candidate (par. 2 of Sec. 8[a] );

3. Any public officer, head, official or appointing officer, or body of a government office,agency or instrumentality including corporations and enterprises owned or controlled bythe government, or any employer or officer of a commercial, industrial, agricultural,economic or social enterprise; or any private person or private corporation orassociation; or any head, minister, officer, or authority of any religion, religious,fraternal, civic or social organization, directly or indirectly, from coercing any of theirsubordinates, employees, tenants, members, affiliates, parishioners, or followers, as thecase may be, to aid, campaign, vote for or against any candidate, which coercion may

include (emphasis supplied):.



(1) punishing or threatening to punish with dismissal, expulsion, ejectment,excommunication, transfer, reduction in wage, salary or compensation;

(2) preventing or unduly interfering with the performance of duty or work, or exercise ofthe freedom of worship; and

(3) other forms of penalties or reprisal, as the case may be (Sec. 8[b]);

4. Except upon prior written authority of the Comelec after due notice and hearing, anyhead, official, or appointing officer of the government, office, agency or instrumentalitywhether national or local, including corporations and enterprises owned or controlled bythe government, from appointing or hiring any new employees, whether provisional,temporary or casual, or from creating and filling up any new position within forty-fivedays before the election. The Comelec can grant the authority to appoint newemployees to fill up new positions only when the position is essential to the properfunctioning of the office or agency concerned and it shall not be filled in a manner thatmay influence the election (Sec. 8[c], emphasis supplied);

5. Release or disbursement of any funds by any government official including barrioofficials within forty-five days before the election, whether for public works, for the DSWor for the Presidential Arm on Community Development or any other office performingsimilar functions except for salaries of personnel or for routine and normal expenses(Sec. 8[d]);

6. During the period of forty-five days before the election:.

(1) any person (a) from making reference to releases of public funds or barriodevelopment funds, (b) from undertaking construction of public works with the materialsor equipment procured before the forty-five day period, or (c) from making deliveries ofmaterials for public works purchased before the prohibited period, for the purpose ofinfluencing voters; and

(2) any government official from giving or promising to give any increase or salaries orremuneration or privileges to any government official or employee, including those in the

government-owned or controlled corporations; and

(3) any government-owned or controlled corporation from giving or causing to be givenand/or from contributing or causing to be contributed any sums of money for anycharitable, religious or social cause whatsoever (Sec. 8[e]);

7. During the period beginning thirty days before the election and ending thirty daysthereafter, any member of the Armed Forces of the Philippines, the PhilippineConstabulary, Special Forces, Home Defense Forces, Barrio Self-Defense Units and allother para-military units, from wearing his uniform or bearing arms outside the camp,garrison, or barracks or their homes in case of the para-military units without authorityfrom the President of the Philippines or the Comelec (Sec. 8[f]; and

8. Any member of the security or police organizations of any government office oragency or government-owned or controlled corporations, or privately-owned or operatedsecurity, investigative, protective or intelligence agencies, from wearing his uniform ormaking use of his insignia, decorations or regalia or bearing arms except within theimmediate vicinity of his office, corporation or agency during the prohibited period (Sec.8[g]).1äwphï1.ñët

Furthermore,

9. Any person who publicly bears arms or publicly makes use of uniforms or insignia inviolation of the law anywhere during the period of prohibition can be arrested by apeace officer or by a private person even in the absence of the circumstances providedby Rule 113, Sec. 6 of the Rules of Court (Sec. 9, par. 1);.

10. Any person who publicly carries a firearm and actually threatens voters to vote for oragainst any candidate or not to vote at all, or prevents the Chairman or member of theElection Registration Board, the Board of Inspectors or the Board of Canvassers, or aduly appointed watcher from freely performing his duties shall be guilty of seriouselection offense and can be arrested as aforestated (Sec. 9, par. 2)

11. The Director of Prisons, the Provincial Warden, the Keeper of the Jail and anyperson required by law to keep prisoners, who shall illegally order or allow any prisonerto leave the premises or jail sixty days before and thirty days after the election for thepurpose of terrorizing or intimidating any voter or election official or watcher shall bepenalized with prision mayor in its maximum period, and the prisoner committing suchact of intimidation, terrorism or interference shall be sentenced to life imprisonment(Sec. 10, R.A. 6132);

12. No candidate can avail of the franking privilege, and no government official can useor extend such privilege in favor of or against any candidate (Sec. 12[D]);

13. No candidate can utilize paid forms of propaganda other than the Comelecbillboards and Comelec time (Sec. 12 [E]);

14. No radio broadcasting or television station, movie house or theatre can show,display or give any advertising or propaganda to any candidate (Sec. 12[E]); and

15. No radio broadcasting and television station can schedule any program or permitany sponsor to manifestly favor or oppose any candidate by unduly referring to him orincluding aim in its programs or newscasts (Sec. 12[H]).

Against the background of such facilities accorded by the law for all candidates, rich andpoor alike, and the prohibitions as well as penal sanctions to insure the sanctity of theballot against desecration and the equality of chances among the candidates, therestriction on the freedom of expression of the candidate or any other individualprescribed in par. F of Sec. 12 is so narrow as not to affect the substance and vitality ofhis freedom of expression itself.



The questioned ban on Sec. 12(F) is even less restrictive than the prohibitions in R.A.4880. This Court —.

(1) unanimously upheld as valid the provision in said Republic Act 4480 limiting theperiod for nomination of candidates of any elective public office voted for at large earlierthan 150 days immediately preceding an election, and for any other elective publicoffice earlier than 90 days immediately preceding an election;

(2) by six votes sustained the constitutionality of the provision of the same law limiting

the period for the conduct of an election campaign or partisan political activity, even ifthe partisan activity consists of (a) forming organizations, associations, clubs,committees or other groups of persons for the purpose of soliciting votes and/orundertaking any campaign or propaganda for or against a party or candidate; (b)holding political conventions, caucuses, conferences, meetings, rallies, parades or othersimilar assemblies for the purpose of soliciting votes and/or undertaking any campaignor propaganda for or against any candidate or party; and (c) giving, soliciting, orreceiving contributions for election campaign either directly or indirectly (Sec. 50-B,pars. [a], [b], and [c], R.A. 4880); and

(3) because four Members dissented, failed to declare as unconstitutional the limitationon the period for (a) making speeches, announcements or commentaries or holdinginterviews for or against the election of any party or candidate for public office, (b)

publishing or distributing campaign literature or materials, and (c) directly or indirectlysoliciting votes and/or undertaking any campaign or propaganda for or against anycandidate or party specified in Sec. 50-B, pars. (c), (d) and, (e) of R.A. 4880. 2

As heretofore stated, Sec. 6(B) of R.A. 6132 expressly excludes the application of Sec.50-B of R.A. No. 4880 limiting the period of election campaign to the election ofdelegates to the Constitutional Convention. Sec. 12(F) does not limit the period ofcampaign. And as a matter of fact, under par. 1 of Sec. 8(a) any individual, whether amember of a political party or organized group or not, can campaign for or against anycandidate as long as he does so as an individual and not as a member of such party ororganized group.

If the aforementioned limitations in R.A. 4880 were deemed valid restrictions on the due

process clause, freedom of expression, freedom of association, right to equal protectionof the laws and freedom of peaceful assembly, a fortiori the less narrow or lessrestrictive inhibition embodied in Sec. 12(F) of R.A. 6132 should survive theconstitutional test.

Just recently, Five Members of this Tribunal upheld the validity of paragraph 1 ofSection 8(a) of R.A. No. 6132, prohibiting any political party or any organization or anyorganized group of whatever nature, from giving aid or support, directly or indirectly,material or otherwise, for or against a candidate; while Six Members sustained theconstitutionality of the prohibition against such support from political parties only.

3 The

ban in said par. 1 of Sec. 8(a) is, We believe, more restrictive than the limitationcontained in Section 12(F).

Hence, consistent with our opinion expressed in the cases of Imbong vs.Comelec and Gonzales vs. Comelec,

4 this slight limitation of the freedom of expression

of the individual, whether candidate or not, as expressed in par. F of Sec. 12, is onlyone of the many devices employed by the law to prevent a clear and present danger ofthe perversion or prostitution of the electoral apparatus and of the denial of the equalprotection of the laws.

The fears and apprehensions of petitioner concerning his liberty of expression in thesetwo cases, applying the less stringent balancing-of-interests criterion, are far

outweighed by the all important substantive interests of the State to preserve the purityof the ballot and to render more meaningful and real the guarantee of the equalprotection of the laws.

Special recognition should be made of the circumspection with which Congresscouched the limitation in par. F of Sec. 12, revealing its deep respect for the freedom ofexpression guaranteed in the Bill of Rights. It should be noted that Congress did notimpose on the publishers of newspapers, magazines and periodicals the duty to allocatefor free a Comelec space in their newspapers, magazines or periodicals, but merelyrequired the Comelec to endeavor to acquire such free Comelec space for the benefit ofall the candidates. Congress thereby realized that to compel the publishers to providefree Comelec space would be an undue abridgment of the publisher's own freedom.

Under the guarantee of free expression, the candidate who pays for a comment or anarticle has the duty not only to inform the electorate about his qualifications andproposals for constitutional reforms, but also to inform truthfully the public who hisopponents are, so that the public or particularly the electorate can determine the truthand merit of his claims vis-a-vis those of the other candidates. Otherwise, the candidatewill be guilty of gross and unpardonable deceit on the people. This duty on the part ofthe candidate was underscored by John Milton in his stirring rhetorical denunciation ofthe suppression of truth as he appealed for "the liberty to know to utter and to arguefreely according to conscience, above all liberties"

5 (emphasis supplied). The same duty

was stressed by Mr. Justice Murphy speaking for the American Supreme Courtin Thornhill vs. Alabama

6 when he delineated the contours as well as facets of the

freedom of expression as "the freedom to publish publicly and truthfully all matters ofpublic concern without previous restraint or fear of subsequent punishment" (emphasis

supplied).

The candidate, to enjoy the freedom, therefore has the concomitant duty to campaignfor himself truthfully according to his conscience. If he is not truthful, he forfeits thefreedom. His freedom of expression is not and should not be limited to his own personalright to know the truth of the claims of the other candidates. A candidate is prone toexaggerate his personal merits or qualifications. He invariably claims qualificationssuperior those of his opponents. One test of the truth of his own pretensions as againstthose of his opponents is to require him to mention the names of the other candidatesso that the electorate will know how to judge all the candidates. If the candidate omitsthe names of his opponents he is guilty of deception, which nullifies his right to enjoy theliberty he invokes for himself. At any rate, he usually mentions his opponents in an oralharangue. He must likewise do so in printed propaganda, so that the voter can decidewho is the better man who can best represent in the constitutional convention theirinterests and articulate their longings and aspirations for an abundant life. The intrinsic



merit of the candidate as a person and of his proposed amendments, not his wealth orlack of it, must be decisive.

Gauged by the more liberal "balancing-of-interests test," We must exercise judicialrestraint in passing upon the statute challenged as unconstitutionally encroaching uponthe realm of free expression and hearken to the caution pronounced by Mr. JusticeFrankfurter in his concurring opinion in Dennis vs. U.S. that "free speech cases are notan exception to the principle that we are not legislators, that direct policy-making is notour province. How best to reconcile competing interests is the business of the

legislature and the balance they strike is a judgment not to be displaced by ours, but tobe respected, unless outside the pale of fair judgment."7

We cannot with justification pontificate that the limitation contained in Sec. 12 (F) of R.A.6132 is not a reasoned and reasonable judgment on the part of Congress, which is alsothe ultimate guardian(s) of the liberties and welfare of the people in quite as great adegree as the Courts." 8

The Constitution and the statutes are merely instruments of the sovereign people intheir incessant quest for security and the good life. There is no permanent sovereigntalisman that will work magic to usher in the longed for Utopia of Sir Thomas More orthe Shangrila of James Hilton or the City of God of St. Augustine. Man, at best, can onlyapproximate, for the human mind is finite and imperfect.

Once adopted, the Constitution and the statutes are not to imprison forever in their castthe sovereign people, even though these organizations no longer serve the people northeir welfare. On this planet Earth, in the epigrammatic language of Mr. Justice Holmes,than whom greater love that no man for civil liberties, without in any way withholdingreverence for dogmas cherished as eternal verities by any church or the moral code, thetheory of our Constitution is that "it is an experiment, as all life is an experiment. Everyyear, if not every day, we have to wager our salvation upon some prophesy based uponimperfect knowledge. 9

Because "time has upset many fighting faiths" in the apt words of Mr. JusticeHolmes,

10 the State must ever be resilient and continuously devise measures to meet

the protean complexities of the present and future generations.

The agency of the State in fashioning instruments to generate the greatest good for thegreatest number under our present political system is Congress, as a constituentassembly together with the electorate in the formulation of the organic law, or Congresswith the President in the exercise of its ordinary law-making power for the enactment ofstatutes designed to solve the problems that urgently press for panaceas. In eithercase, as we march towards the millenium the process that is followed is essentiallyempirical, pragmatic and utilitarian — whatever social, political, economic, legal orideological philosophers may be employed as starting points. For as Mr. JusticeWisconsin of the Wisconsin State Supreme Court said: "The political or philosophicalaphorism of one generation is doubted by the next, and entirely discarded by the third.The race moves forward constantly, and no Canute can stay its progress."

11

WHEREFORE, the prayers of the petitions in those two cases are hereby denied andparagraph F of Section 12, R.A. No. 6132 is declared valid and constitutional.


Manila

EN BANC

G.R. No. L-44640 October 12, 1976

PABLO C. SANIDAD and PABLITO V. SANIDAD,petitioner,vs.HONORABLE COMMISSION ON ELECTIONS and HONORABLE NATIONALTREASURER, respondents.

G.R. No. L-44684. October 12,1976

VICENTE M. GUZMAN, petitioner,vs.

COMMISSION ELECTIONS, respondent.

G.R. No. L-44714. October 12,1976

RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDOSALAPANTAN, petitioners,vs.HONORABLE COMMISSION ON SELECTIONS and HONORABLE NATIONALTREASURER, respondents.

MARTIN, J, :

The capital question raised in these prohibition suits with preliminary injunction relatesto the power of the incumbent President of the Philippines to propose amendments tothe present Constitution in the absence of the interim National Assembly which has notbeen convened.

On September 2, 1976, President Ferdinand E. Marcos issued Presidential Decree No.991 calling for a national referendum on October 16, 1976 for the Citizens Assemblies("barangays") to resolve, among other things, the issues of martial law, the I . assembly,its replacement, the powers of such replacement, the period of its existence, the lengthof the period for t ile exercise by the President of his present powers.1

Twenty days after or on September 22, 1976, the President issued another relateddecree, Presidential Decree No. 1031, amending the previous Presidential Decree No.

991, by declaring the provisions of presidential Decree No. 229 providing for the manner



of voting and canvass of votes in "barangays" (Citizens Assemblies) applicable to thenational referendum-plebiscite of October 16, 1976. Quite relevantly, PresidentialDecree No. 1031 repealed Section 4, of Presidential Decree No. 991, the full text ofwhich (Section 4) is quoted in the footnote below.

2

On the same date of September 22, 1976, the President issued Presidential Decree No.1033, stating the questions to be submitted to the people in the referendum-plebisciteon October 16, 1976. The Decree recites in its "whereas" clauses that the people'scontinued opposition to the convening of the National Assembly evinces their desire to

have such body abolished and replaced thru a constitutional amendment, providing fora legislative body, which will be submitted directly to the people in the referendum-plebiscite of October 16.

The questions ask, to wit:

(1) Do you want martial law to be continued?

(2) Whether or not you want martial law to be continued, do you approve the followingamendments to the Constitution? For the purpose of the second question, thereferendum shall have the effect of a plebiscite within the contemplation of Section 2 of Article XVI of the Constitution.

PROPOSED AMENDMENTS:

1. There shall be, in lieu of the interim National Assembly, an interim BatasangPambansa. Members of the interim Batasang Pambansa which shall not be more than120, unless otherwise provided by law, shall include the incumbent President of thePhilippines, representatives elected from the different regions of the nation, those whoshall not be less than eighteen years of age elected by their respective sectors, andthose chosen by the incumbent President from the members of the Cabinet. Regionalrepresentatives shall be apportioned among the regions in accordance with the numberof their respective inhabitants and on the basis of a uniform and progressive ratio whilethe sectors shall be determined by law. The number of representatives from each regionor sector and the, manner of their election shall be prescribed and regulated by law.

2. The interim Batasang Pambansa shall have the same powers and its members shallhave the same functions, responsibilities, rights, privileges, and disqualifications as theinterim National Assembly and the regular National Assembly and the members thereof.However, it shall not exercise the power provided in Article VIII, Section 14(l) of theConstitution.

3. The incumbent President of the Philippines shall, within 30 days from the election andselection of the members, convene the interim Batasang Pambansa and preside overits sessions until the Speaker shall have been elected. The incumbent President of thePhilippines shall be the Prime Minister and he shall continue to exercise all his powerseven after the interim Batasang Pambansa is organized and ready to discharge itsfunctions and likewise he shall continue to exercise his powers and prerogatives under

the nineteen hundred and thirty five. Constitution and the powers vested in thePresident and the Prime Minister under this Constitution.

4. The President (Prime Minister) and his Cabinet shall exercise all the powers andfunctions, and discharge the responsibilities of the regular President (Prime Minister)and his Cabinet, and shall be subject only to such disqualifications as the President(Prime Minister) may prescribe. The President (Prime Minister) if he so desires mayappoint a Deputy Prime Minister or as many Deputy Prime Ministers as he may deemnecessary.

5. The incumbent President shall continue to exercise legislative powers until martiallaw shall have been lifted.

6. Whenever in the judgment of the President (Prime Minister), there exists a graveemergency or a threat or imminence thereof, or whenever the interim BatasangPambansa or the regular National Assembly fails or is unable to act adequately on anymatter for any reason that in his judgment requires immediate action, he may, in orderto meet the exigency, issue the necessary decrees, orders or letters of instructions,which shall form part of the law of the land.

7. The barangays and sanggunians shall continue as presently constituted but theirfunctions, powers, and composition may be altered by law.

Referenda conducted thru the barangays and under the Supervision of the Commissionon Elections may be called at any time the government deems it necessary to ascertain

the will of the people regarding any important matter whether of national or localinterest.

8. All provisions of this Constitution not inconsistent with any of these amendments shallcontinue in full force and effect.

9. These amendments shall take effect after the incumbent President shall haveproclaimed that they have been ratified by I majority of the votes cast in the referendum-plebiscite."

The Commission on Elections was vested with the exclusive supervision and control ofthe October 1976 National Referendum-Plebiscite.

On September 27, 1976, PABLO C. SANIDAD and PABLITO V. SANIDAD, father andson, commenced L-44640 for Prohibition with Preliminary Injunction seeking to enjointhe Commission on Elections from holding and conducting the Referendum Plebisciteon October 16; to declare without force and effect Presidential Decree Nos. 991 and1033, insofar as they propose amendments to the Constitution, as well as PresidentialDecree No. 1031, insofar as it directs the Commission on Elections to supervise,control, hold, and conduct the Referendum-Plebiscite scheduled on October 16, 1976.

Petitioners contend that under the 1935 and 1973 Constitutions there is no grant to theincumbent President to exercise the constituent power to propose amendments to thenew Constitution. As a consequence, the Referendum-Plebiscite on October 16 has noconstitutional or legal basis.



On October 5, 1976, the Solicitor General filed the comment for respondentCommission on Elections, The Solicitor General principally maintains that petitionershave no standing to sue; the issue raised is political in nature, beyond judicialcognizance of this Court; at this state of the transition period, only the incumbentPresident has the authority to exercise constituent power; the referendum-plebiscite is astep towards normalization.

On September 30, 1976, another action for Prohibition with Preliminary Injunction,docketed as L-44684, was instituted by VICENTE M. GUZMAN, a delegate to the 1971

Constitutional Convention, asserting that the power to propose amendments to, orrevision of the Constitution during the transition period is expressly conferred on theinterim National Assembly under Section 16, Article XVII of the Constitution.3

Still another petition for Prohibition with Preliminary Injunction was filed on October 5,1976 by RAUL M. GONZALES, his son RAUL, JR., and ALFREDO SALAPANTAN,docketed as L- 44714, to restrain the implementation of Presidential Decrees relative tothe forthcoming Referendum-Plebiscite of October 16.

These last petitioners argue that even granting him legislative powers under MartialLaw, the incumbent President cannot act as a constituent assembly to proposeamendments to the Constitution; a referendum-plebiscite is untenable under theConstitutions of 1935 and 1973; the submission of the proposed amendments in such a

short period of time for deliberation renders the plebiscite a nullity; to lift Martial Law, thePresident need not consult the people via referendum; and allowing 15-.year olds tovote would amount to an amendment of the Constitution, which confines the right ofsuffrage to those citizens of the Philippines 18 years of age and above.

We find the petitions in the three entitled cases to be devoid of merit.

I

Justiciability of question raised.

1. As a preliminary resolution, We rule that the petitioners in L-44640 (Pablo C. Sanidad

and Pablito V. Sanidad) possess locus standi to challenge the constitutional premise ofPresidential Decree Nos. 991, 1031, and 1033. It is now an ancient rule that the validsource of a stature Presidential Decrees are of such nature-may be contested by onewho will sustain a direct injuries as a in result of its enforcement. At the instance oftaxpayers, laws providing for the disbursement of public funds may be enjoined, uponthe theory that the expenditure of public funds by an officer of the State for the purposeof executing an unconstitutional act constitutes a misapplication of such funds. 4 Thebreadth of Presidential Decree No. 991 carries all appropriation of Five Million Pesos forthe effective implementation of its purposes. 5 Presidential Decree No. 1031appropriates the sum of Eight Million Pesos to carry out its provisions. 6 The interest ofthe aforenamed petitioners as taxpayers in the lawful expenditure of these amounts ofpublic money sufficiently clothes them with that personality to litigate the validity of theDecrees appropriating said funds. Moreover, as regards taxpayer's suits, this Courtenjoys that open discretion to entertain the same or not. 7 For the present case, We

deem it sound to exercise that discretion affirmatively so that the authority upon whichthe disputed Decrees are predicated may be inquired into.

2. The Solicitor General would consider the question at bar as a pure political one, lyingoutside the domain of judicial review. We disagree. The amending process both as toproposal and ratification, raises a judicial question. 8This is especially true in caseswhere the power of the Presidency to initiate the of normally exercised by thelegislature, is seriously doubted. Under the terms of the 1973 Constitution, the power topropose amendments o the constitution resides in the interim National Assembly in the

period of transition (See. 15, Transitory provisions). After that period, and the regularNational Assembly in its active session, the power to propose amendments becomesipso facto the prerogative of the regular National Assembly (Sec. 1, pars. 1 and 2 of Art.XVI, 1973 constitution). The normal course has not been followed. Rather than callingthe National Assembly to constitute itself into a constituent assembly the incumbentPresident undertook the proposal of amendments and submitted the proposedamendments thru Presidential Decree 1033 to the people in a Referendum-Plebisciteon October 16. Unavoidably, the regularity regularity of the procedure for amendments,written in lambent words in the very Constitution sought to be amended, raises acontestable issue. The implementing Presidential Decree Nos. 991, 1031, and 1033,which commonly purport to have the force and effect of legislation are assailed asinvalid, thus the issue of the validity of said Decrees is plainly a justiciable one, withinthe competence of this Court to pass upon. Section 2 (2), Article X of the newConstitution provides: "All cases involving the constitutionality of a treaty, executive

agreement, or law may shall be heard and decided by the Supreme Court en banc andno treaty, executive agreement, or law may be declared unconstitutional without theconcurrence of at least ten Members. ..." The Supreme Court has the last word in theconstruction not only of treaties and statutes, but also of the Constitution itself Theamending, like all other powers organized in the Constitution, is in form a delegated andhence a limited power, so that the Supreme Court is vested with that authorities todetermine whether that power has been discharged within its limits.

Political questions are neatly associated with the wisdom, of the legality of a particularact. Where the vortex of the controversy refers to the legality or validity of the contestedact, that matter is definitely justiciable or non-political. What is in the heels of the Courtis not the wisdom of the act of the incumbent President in proposing amendments to theConstitution, but his constitutional authority to perform such act or to assume the power

of a constituent assembly. Whether the amending process confers on the President thatpower to propose amendments is therefore a downright justiciable question. Should thecontrary be found, the actuation of the President would merely be abrutum fulmen. If theConstitution provides how it may be amended, the judiciary as the interpreter of thatConstitution, can declare whether the procedure followed or the authority assumed wasvalid or not.

10

We cannot accept the view of the Solicitor General, in pursuing his theory of non- justiciability, that the question of the President's authority to propose amendments andthe regularity of the procedure adopted for submission of the proposal to the peopleultimately lie in the judgment of the A clear Descartes fallacy of vicious circle. Is it notthat the people themselves, by their sovereign act, provided for the authority andprocedure for the amending process when they ratified the present Constitution in

1973? Whether, therefore, the constitutional provision has been followed or not is theproper subject of inquiry, not by the people themselves of course who exercise no



power of judicial but by the Supreme Court in whom the people themselves vested thatpower, a power which includes the competence to determine whether the constitutionalnorms for amendments have been observed or not. And, this inquiry must be done aprior not a posterior i.e., before the submission to and ratification by the people.

Indeed, the precedents evolved by the Court or, prior constitutional cases underline thepreference of the Court's majority to treat such issue of Presidential role in theamending process as one of non-political impression. In the Plebiscite Cases,

11 the

contention of the Solicitor General that the issue on the legality of Presidential Decree

No. 73 "submitting to the Pilipino people (on January 15, 1973) for ratification orrejection the Constitution of the Republic of the Philippines proposed by the 1971Constitutional Convention and appropriating fund s therefore "is a political one, wasrejected and the Court unanimously considered the issue as justiciable in nature.Subsequently in the Ratification Cases

12involving the issue of whether or not the

validity of Presidential Proclamation No. 1102. announcing the Ratification by theFilipino people of the constitution proposed by the 1971 Constitutional Convention,"partakes of the nature of a political question, the affirmative stand of' the SolicitorGeneral was dismissed, the Court ruled that the question raised is justiciable. ChiefJustice Concepcion, expressing the majority view, said, Thus, in the aforementionedplebiscite cases, We rejected the theory of the respondents therein that the questionwhether Presidential Decree No. 73 calling a plebiscite to be held on January 15, 1973,for the ratification or rejection of the proposed new Constitution, was valid or not, wasnot a proper subject of judicial inquiry because, they claimed, it partook of a political

nature, and We unanimously declared that the issue was a justiciable one. WithIdentical unanimity. We overruled the respondent's contention in the 1971 habeascorpus cases, questioning Our authority to determine the constitutional sufficiency of thefactual bases of the Presidential proclamation suspending the privilege of the writ ofhabeas corpus on August 21, 1971, despite the opposite view taken by this Court inBarcelon vs. Baker and Montenegro vs. Castaneda, insofar as it adhered to the formercase, which view We, accordingly, abandoned and refused to apply. For the samereason, We did not apply and expressly modified, in Gonzales vs. Commission onElections, the political-question theory adopted in Mabanag vs. Lopez Vito."

13 The

return to Barcelon vs. Baker and Mabanag vs. Lopez Vito, urged by the SolicitorGeneral, was decisively refused by the Court. Chief Justice Concepcion continued: "Thereasons adduced in support thereof are, however, substantially the same as those givenin support on the political question theory advanced in said habeas corpus and

plebiscite cases, which were carefully considered by this Court and found by it to belegally unsound and constitutionally untenable. As a consequence. Our decisions in theaforementioned habeas corpus cases partakes of the nature and effect of a staredecisis which gained added weight by its virtual reiteration."

II

The amending process as laid out

in the new Constitution.

1. Article XVI of the 1973 Constitution on Amendments ordains:

SECTION 1. (1) Any amendment to, or revision of, this Constitution may be proposedby the National Assembly upon a vote of three-fourths of all its Members, or by aconstitutional convention. (2) The National Assembly may, by a vote of two-thirds of allits Members, call a constitutional convention or, by a majority vote of all its Members,submit the question of calling such a convention to the electorate in an election.

SECTION 2. Any amendment to, or revision of, this Constitution shall be valid whenratified by a majority of the votes cast in a plebiscite which shall be held not later thanthree months after the approval of such amendment or revision.

In the present period of transition, the interim National Assembly instituted in theTransitory Provisions is conferred with that amending power. Section 15 of theTransitory Provisions reads:

SECTION 15. The interim National Assembly, upon special call by the interim PrimeMinister, may, by a majority vote of all its Members, propose amendments to thisConstitution. Such amendments shall take effect when ratified in accordance with ArticleSixteen hereof.

There are, therefore, two periods contemplated in the constitutional life of the nation,i.e., period of normalcy and period of transition. In times of normally, the amendingprocess may be initiated by the proposals of the (1) regular National Assembly upon a

vote of three-fourths of all its members; or (2) by a Constitutional Convention called by avote of two-thirds of all the Members of the National Assembly. However the calling of aConstitutional Convention may be submitted to the electorate in an election voted uponby a majority vote of all the members of the National Assembly. In times of transition,amendments may be proposed by a majority vote of all the Members of the National Assembly upon special call by the interim Prime Minister,.

2. This Court in Aquino v. COMELEC," had already settled that the incumbent Presidentis vested with that prerogative of discretion as to when he shall initially convene theinterim National Assembly. Speaking for the majority opinion in that case, JusticeMakasiar said: "The Constitutional Convention intended to leave to the President thedetermination of the time when he shall initially convene the interim National Assembly,consistent with the prevailing conditions of peace and order in the country." Concurring,

Justice Fernandez, himself a member of that Constitutional Convention, revealed:"(W)hen the Delegates to the Constitutional Convention voted on the TransitoryProvisions, they were aware of the fact that under the same, the incumbent Presidentwas given the discretion as to when he could convene the interim National Assembly; itwas so stated plainly by the sponsor, Delegate Yaneza; as a matter of fact, the proposalthat it be convened 'immediately', made by Delegate Pimentel (V) was rejected. ThePresident's decision to defer the convening of the interim National Assembly soon foundsupport from the people themselves. In the plebiscite of January 10-15, 1973, at whichthe ratification of the 1973 Constitution was submitted, the people voted against theconvening of the interim National Assembly. In the referendum of July 24, 1973, theCitizens Assemblies ("bagangays") reiterated their sovereign will to withhold theconvening of the interim National Assembly. Again, in the referendum of February 27,1975, the proposed question of whether the interim National Assembly shall be initially

convened was eliminated, because some of the members of Congress and delegates ofthe Constitutional Convention, who were deemed automatically members of the I interim



National Assembly, were against its inclusion since in that referendum of January, 1973,the people had already resolved against it.

3. In sensu strictiore, when the legislative arm of the state undertakes the proposals ofamendment to a Constitution, that body is not in the usual function of lawmaking. lt isnot legislating when engaged in the amending process.16 Rather, it is exercising apeculiar power bestowed upon it by the fundamental charter itself. In the Philippines,that power is provided for in Article XVI of the 1973 Constitution (for the regular National Assembly) or in Section 15 of the Transitory Provisions (for the National Assembly).

While ordinarily it is the business of the legislating body to legislate for the nation byvirtue of constitutional conferment amending of the Constitution is not legislative incharacter. In political science a distinction is made between constitutional content of anorganic character and that of a legislative character'. The distinction, however, is one ofpolicy, not of law.

17 Such being the case, approval of the President of any proposed

amendment is a misnomer18

The prerogative of the President to approve or disapproveapplies only to the ordinary cases of legislation. The President has nothing to do withproposition or adoption of amendments to the Constitution.

19

III

Concentration of Powers

in the President during

crisis government.

1. In general, the governmental powers in crisis government the Philippines is a crisisgovernment today are more or less concentrated in the President.

20 According to

Rossiter, "(t)he concentration of government power in a democracy faced by anemergency is a corrective to the crisis inefficiencies inherent in the doctrine of theseparation of powers. In most free states it has generally been regarded as imperativethat the total power of the government be parceled out among three mutuallyindependent branches executive, legislature, and judiciary. It is believed to bedestructive of constitutionalism if any one branch should exercise any two or more typesof power, and certainly a total disregard of the separation of powers is, as Madisonwrote in the Federalist, No. 47, 'the very definition of tyranny.' In normal times theseparation of powers forms a distinct obstruction to arbitrary governmental action. Bythis same token, in abnormal times it may form an insurmountable barrier to a decisiveemergency action in behalf of the state and its independent existence. There aremoments in the life of any government when all powers must work together in unanimityof purpose and action, even if this means the temporary union of executive, legislative,and judicial power in the hands of one man. The more complete the separation ofpowers in a constitutional system, the more difficult and yet the more necessary will betheir fusion in time of crisis. This is evident in a comparison of the crisis potentialities ofthe cabinet and presidential systems of government. In the former the all-importantharmony of legislature and executive is taken for granted; in the latter it is neitherguaranteed nor to be to confidently expected. As a result, cabinet is more easilyestablished and more trustworthy than presidential dictatorship. The power of the state

in crisis must not only be concentrated and expanded; it must also be freed from thenormal system of constitutional and legal limitations.

21 John Locke, on the other hand,

claims for the executive in its own right a broad discretion capable even of setting asidethe ordinary laws in the meeting of special exigencies for which the legislative powerhad not provided.

22 The rationale behind such broad emergency powers of the

Executive is the release of the government from "the paralysis of constitutionalrestrains" so that the crisis may be ended and normal times restored.

2. The presidential exercise of legislative powers in time of martial law is now aconceded valid at. That sun clear authority of the President is saddled on Section 3(pars. 1 and 2) of the Transitory Provisions, thus:

23

The incumbent President of the Philippines shall initially convene the interim National Assembly and shall preside over its sessions until the interim Speaker shall have beenelected. He shall continue to exercise his powers and prerogatives under the nineteenhundred and thirty-five Constitution and the powers vested in the President and thePrime Minister under this Constitution until the calls upon the interim National Assemblyto elect the interim President and the interim Prime Minister, who shall then exercisetheir respective powers vested by this Constitution.

All proclamations, orders, decrees, instructions, and acts promulgated, issued, or doneby the incumbent President shall be part of the law of the land, and shall remain valid,binding, and effective even after lifting of martial law or the ratification of thisConstitution, unless modified, revoked, or superseded by subsequent proclamations,

orders, decrees, instructions, or other acts of the incumbent President, or unlessexpressly and explicitly modified or repealed by the regular National Assembly.

"It is unthinkable," said Justice Fernandez, a 1971 Constitutional Convention delegate,"that the Constitutional Convention, while giving to the President the discretion when tocall the interim National Assembly to session, and knowing that it may not be convenedsoon, would create a vacuum in the exercise of legislative powers. Otherwise, with noone to exercise the lawmaking powers, there would be paralyzation of the entiregovernmental machinery."

24 Paraphrasing Rossiter, this is an extremely important factor

in any constitutional dictatorship which extends over a period of time. The separation ofexecutive and legislature ordained in the Constitution presents a distinct obstruction toefficient crisis government. The steady increase in executive power is not too much acause for as the steady increase in the magnitude and complexity of the problems the

President has been called upon by the Filipino people to solve in their behalf, whichinvolve rebellion, subversion, secession, recession, inflation, and economic crisis-acrisis greater than war. In short, while conventional constitutional law just confines thePresident's power as Commander-in-Chief to the direction of the operation of thenational forces, yet the facts of our political, social, and economic disturbances hadconvincingly shown that in meeting the same, indefinite power should be attributed totile President to take emergency measures

25

IV

Authority of the incumbent

President t to propose



amendments to the Constitution.

1. As earlier pointed out, the power to legislate is constitutionally consigned to theinterim National Assembly during the transition period. However, the initial convening ofthat Assembly is a matter fully addressed to the judgment of the incumbent President. And, in the exercise of that judgment, the President opted to defer convening of thatbody in utter recognition of the people's preference. Likewise, in the period of transition,the power to propose amendments to the Constitution lies in the interim National Assembly upon special call by the President (See. 15 of the Transitory Provisions).

Again, harking to the dictates of the sovereign will, the President decided not to call theinterim National Assembly. Would it then be within the bounds of the Constitution and oflaw for the President to assume that constituent power of the interim Assembly vis-a-vishis assumption of that body's legislative functions? The answer is yes. If the Presidenthas been legitimately discharging the legislative functions of the interim Assembly, thereis no reason why he cannot validly discharge the function of that Assembly to proposeamendments to the Constitution, which is but adjunct, although peculiar, to its grosslegislative power. This, of course, is not to say that the President has converted hisoffice into a constituent assembly of that nature normally constituted by the legislature.Rather, with the interim National Assembly not convened and only the Presidency andthe Supreme Court in operation, the urges of absolute necessity render it imperativeupon the President to act as agent for and in behalf of the people to proposeamendments to the Constitution. Parenthetically, by its very constitution, the SupremeCourt possesses no capacity to propose amendments without constitutional infractions.

For the President to shy away from that actuality and decline to undertake the amendingprocess would leave the governmental machineries at a stalemate or create in thepowers of the State a destructive vacuum, thereby impeding the objective of a crisisgovernment "to end the crisis and restore normal times." In these parlous times, thatPresidential initiative to reduce into concrete forms the constant voices of the peoplereigns supreme. After all, constituent assemblies or constitutional conventions, like thePresident now, are mere agents of the people .26

2. The President's action is not a unilateral move. As early as the referendums ofJanuary 1973 and February 1975, the people had already rejected the calling of theinterim National Assembly. The Lupong Tagapagpaganap of the Katipunan ng mgaSanggunian, the Pambansang Katipunan ng mga Barangay, and the PambansangKatipunan ng mga Barangay, representing 42,000 barangays, about the same number

of Kabataang Barangay organizations, Sanggunians in 1,458 municipalities, 72provinces, 3 sub-provinces, and 60 cities had informed the President that the prevailingsentiment of the people is for the abolition of the interim National Assembly. Otherissues concerned the lifting of martial law and amendments to the Constitution .27 Thenational organizations of Sangguniang Bayan presently proposed to settle the issues ofmartial law, the interim Assembly, its replacement, the period of its existence, the lengthof the period for the exercise by the President of its present powers in a referendum tobe held on October 16 .

28 The Batasang Bayan (legislative council) created under

Presidential Decree 995 of September 10, 1976, composed of 19 cabinet members, 9officials with cabinet rank, 91 members of the Lupong Tagapagpaganap (executivecommittee) of the Katipunan ng mga Sangguniang Bayan voted in session to submitdirectly to the people in a plebiscite on October 16, the previously quoted proposedamendments to the Constitution, including the issue of martial law .29 Similarly, the

"barangays" and the "sanggunians" endorsed to the President the submission of theproposed amendments to the people on October 16. All the foregoing led the President

to initiate the proposal of amendments to the Constitution and the subsequent issuanceof Presidential Decree No, 1033 on September 22, 1976 submitting the questions(proposed amendments) to the people in the National Referendum-Plebiscite onOctober 16.

V

The People is Sovereign

1. Unlike in a federal state, the location of sovereignty in a unitary state is easily seen.In the Philippines, a republican and unitary state, sovereignty "resides in the people andall government authority emanates from them.30 In its fourth meaning, Savigny wouldtreat people as "that particular organized assembly of individuals in which, according tothe Constitution, the highest power exists."

31 This is the concept of popular sovereignty.

It means that the constitutional legislator, namely the people, is sovereign32

Inconsequence, the people may thus write into the Constitution their convictions on anysubject they choose in the absence of express constitutional prohibition.

33 This is

because, as Holmes said, the Constitution "is an experiment, as all life is allexperiment."

34 "The necessities of orderly government," wrote Rottschaefer, "do not

require that one generation should be permitted to permanently fetter all futuregenerations." A constitution is based, therefore, upon a self-limiting decision of thepeople when they adopt it.

35

2. The October 16 referendum-plebiscite is a resounding call to the people to exercisetheir sovereign power as constitutional legislator. The proposed amendments, as earlierdiscussed, proceed not from the thinking of a single man. Rather, they are the collatedthoughts of the sovereign will reduced only into enabling forms by the authority who canpresently exercise the powers of the government. In equal vein, the submission of thoseproposed amendments and the question of martial law in a referendum-plebisciteexpresses but the option of the people themselves implemented only by the authority ofthe President. Indeed, it may well be said that the amending process is a sovereign act,although the authority to initiate the same and the procedure to be followed residesomehow in a particular body.

VI

Referendum-Plebiscite not

rendered nugatory by the

participation of the 15-year olds.

1. October 16 is in parts a referendum and a plebiscite. The question - (1) Do you wantmartial law to be continued? - is a referendum question, wherein the 15-year olds mayparticipate. This was prompted by the desire of the Government to reach the larger masof the people so that their true pulse may be felt to guide the President in pursuing hisprogram for a New Order. For the succeeding question on the proposed amendments,

only those of voting age of 18 years may participate. This is the plebiscite aspect, ascontemplated in Section 2, Article XVI of the new Constitution.

36 On this second



question, it would only be the votes of those 18 years old and above which will havevalid bearing on the results. The fact that the voting populace are simultaneously askedto answer the referendum question and the plebiscite question does not infirm thereferendum-plebiscite. There is nothing objectionable in consulting the people on agiven issue, which is of current one and submitting to them for ratification of proposedconstitutional amendments. The fear of commingled votes (15-year olds and 18-yearolds above) is readily dispelled by the provision of two ballot boxes for every barangaycenter, one containing the ballots of voters fifteen years of age and under eighteen, andanother containing the ballots of voters eighteen years of age and above.

37 The ballots

in the ballot box for voters fifteen years of age and under eighteen shall be counted

ahead of the ballots of voters eighteen years and above contained in another ballot box. And, the results of the referendum-plebiscite shall be separately prepared for the agegroupings, i.e., ballots contained in each of the two boxes.

38

2. It is apt to distinguish here between a "referendum" and a "plebiscite." A "referendum"is merely consultative in character. It is simply a means of assessing public reaction tothe given issues submitted to the people foe their consideration, the calling of which isderived from or within the totality of the executive power of the President.

39 It is

participated in by all citizens from the age of fifteen, regardless of whether or not theyare illiterates, feeble-minded, or ex- convicts .

40 A "plebiscite," on the other hand,

involves the constituent act of those "citizens of the Philippines not otherwisedisqualified by law, who are eighteen years of age or over, and who shall have residedin the Philippines for at least one year and in the place wherein they propose to vote for

at least six months preceding the election Literacy, property or any other substantiverequirement is not imposed. It is generally associated with the amending process of theConstitution, more particularly, the ratification aspect.

VII

1. There appeals to be no valid basis for the claim that the regime of martial lawstultifies in main the freedom to dissent. That speaks of a bygone fear. The martial lawregime which, in the observation of Justice Fernando,

41 is impressed with a mild

character recorded no State imposition for a muffled voice. To be sure, there arerestraints of the individual liberty, but on certain grounds no total suppression of thatliberty is aimed at. The for the referendum-plebiscite on October 16 recognizes all theembracing freedoms of expression and assembly The President himself had announcedthat he would not countenance any suppression of dissenting views on the issues, ashe is not interested in winning a "yes" or "no" vote, but on the genuine sentiment of thepeople on the issues at hand.

42 Thus, the dissenters soon found their way to the public

forums, voicing out loud and clear their adverse views on the proposed amendmentsand even (in the valid ratification of the 1973 Constitution, which is already a settledmatter.

43 Even government employees have been held by the Civil Service Commission

free to participate in public discussion and even campaign for their stand on thereferendum-plebiscite issues.

44

VIII

Time for deliberation

is not short.

1. The period from September 21 to October 16 or a period of 3 weeks is not too shortfor free debates or discussions on the referendum-plebiscite issues. The questions arenot new. They are the issues of the day. The people have been living with them sincethe proclamation of martial law four years ago. The referendums of 1973 and 1975carried the same issue of martial law. That notwithstanding, the contested brief periodfor discussion is not without counterparts in previous plebiscites for constitutionalamendments. Justice Makasiar, in the Referendum Case, recalls: "Under the oldSociety, 15 days were allotted for the publication in three consecutive issues of theOfficial Gazette of the women's suffrage amendment to the Constitution before thescheduled plebiscite on April 30, 1937 (Com. Act No. 34). The constitutional

amendment to append as ordinance the complicated Tydings-Kocialskowski waspublished in only three consecutive issues of the Official Gazette for 10 days prior to thescheduled plebiscite (Com. Act 492). For the 1940 Constitutional amendments providingfor the bicameral Congress, the reelection of the President and Vice President, and thecreation of the Commission on Elections, 20 days of publication in three consecutiveissues of the Official Gazette was fixed (Com Act No. 517). And the Parity Amendment,an involved constitutional amendment affecting the economy as well as theindependence of the Republic was publicized in three consecutive issues of the OfficialGazette for 20 days prior to the plebiscite (Rep. Act No. 73)."

45

2. It is worthy to note that Article XVI of the Constitution makes no provision as to thespecific date when the plebiscite shall be held, but simply states that it "shall be held notlater than three months after the approval of such amendment or revision." In Coleman

v. Miller, 46 the United States Supreme court held that this matter of submission involves"an appraisal of a great variety of relevant conditions, political, social and economic,"which "are essentially political and not justiciable." The constituent body or in the instantcases, the President, may fix the time within which the people may act. This is becauseproposal and ratification are not treated as unrelated acts, but as succeeding steps in asingle endeavor, the natural inference being that they are not to be widely separated intime; second, it is only when there is deemed to be a necessity therefor thatamendments are to be proposed, the reasonable implication being that when proposed,they are to be considered and disposed of presently, and third, ratification is but theexpression of the approbation of the people, hence, it must be donecontemporaneously.

47 In the words of Jameson, "(a)n alteration of the Constitution

proposed today has relation to the sentiment and the felt needs of today, and that, if notratified early while that sentiment may fairly be supposed to exist. it ought to be

regarded as waived, and not again to be voted upon, unless a second time proposed byproper body

IN RESUME

The three issues are

1. Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and1033 political or justiciable?

2. During the present stage of the transition period, and under, the environmentalcircumstances now obtaining, does the President possess power to propose

amendments to the Constitution as well as set up the required machinery and prescribethe procedure for the ratification of his proposals by the people?



3. Is the submission to the people of the proposed amendments within the time frameallowed therefor a sufficient and proper submission?

Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices Enrique M.Fernando, Claudio Teehankee, Antonio P. Barredo, Cecilia Munoz Palma, HermogenesConcepcion Jr. and Ruperto G. Martin are of the view that the question posed is justiciable, while Associate Justices Felix V. Makasiar, Felix Q. Antonio and Ramon C. Aquino hold the view that the question is political.

Upon the second issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino, Concepcion Jr. and Martin voted in the affirmative, while AssociateJustices Teehankee and Munoz Palma voted in the negative. Associate JusticeFernando, conformably to his concurring and dissenting opinion in Aquino vs. Enrile (59SCRA 183), specifically dissents from the proposition that there is concentration ofpowers in the Executive during periods of crisis, thus raising serious doubts as to thepower of the President to propose amendments.

Upon the third issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Aquino, Concepcion Jr. and Martin are of the view that there is a sufficient and propersubmission of the proposed amendments for ratification by the people. AssociateJustices Barredo and Makasiar expressed the hope, however that the period of timemay be extended. Associate Justices Fernando, Makasiar and Antonio are of the view

that the question is political and therefore beyond the competence and cognizance ofthis Court, Associate Justice Fernando adheres to his concurrence in the opinion ofChief Justice Concepcion in Gonzales vs. COMELEC (21 SCRA 774).AssociateJustices Teehankee and MUNOZ Palma hold that prescinding from the President's lackof authority to exercise the constituent power to propose the amendments, etc., asabove stated, there is no fair and proper submission with sufficient information and timeto assure intelligent consent or rejection under the standards set by this Court in thecontrolling cases of Gonzales, supra, and Tolentino vs. COMELEC (41 SCRA 702).

Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino,Concepcion Jr. and Martin voted to dismiss the three petitions at bar. For reasons asexpressed in his separate opinion, Associate Justice Fernando concurs in the result. Associate Justices Teehankee and Munoz Palma voted to grant the petitions.

ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions are herebydismissed. This decision is immediately executory.

SO ORDERED.

EN BANC

[G.R. No. 162777. August 31, 2004]

FRANCISCO I. CHAVEZ,pet i t ioner , vs . COMMISSION ON ELECTIONS,represented by its Chairman, BENJAMIN S. ABALOS, ESMERALDA AMORA-LADRA, in her capacity as Acting Director IV, National Capital Judicial Region,Commission on Elections, and the SOLICITOR GENERAL,respondents .

D E C I S I O N

AZCUNA, J .:

In this petition for prohibition with prayer for the issuance of a writ of preliminaryinjunction, Francisco I. Chavez stands as a taxpayer and a citizen asking this Court toenjoin the Commission on Elections (COMELEC) from enforcing Section 32 of itsResolution No. 6520, dated January 6, 2004. The assailed provision is, as follows:

Section 32. All propaganda materials such as posters, streamers, stickers or paintingson walls and other materials showing the picture, image, or name of a person, and all

advertisements on print, in radio or on television showing the image or mentioning thename of a person, who subsequent to the placement or display thereof becomes acandidate for public office shall be immediately removed by said candidate and radiostation, print media or television station within 3 days after the effectivity of theseimplementing rules; otherwise, he and said radio station, print media or televisionstation shall be presumed to have conducted premature campaigning in violation ofSection 80 of the Omnibus Election Code.

Petitioner Chavez, on various dates, entered into formal agreements with certainestablishments to endorse their products. On August 18, 2003, he authorized a certain Andrew So to use his name and image for 96° North, a clothing company. Petitioneralso signed Endorsement Agreements with Konka International Plastics ManufacturingCorporation and another corporation involved in the amusement and video gamesbusiness, G-Box. These last two agreements were entered into on October 14,2003 and November 10, 2003, respectively. Pursuant to these agreements, threebillboards were set up along the Balintawak Interchange of the North Expressway. Onebillboard showed petitioner promoting the plastic products of Konka InternationalPlastics Manufacturing Corporation, and the other two showed petitioner endorsing theclothes of 96° North. One more billboard was set up along Roxas Boulevard showingpetitioner promoting the game and amusement parlors of G-Box.

On December 30, 2003, however, petitioner filed his certificate of candidacy for theposition of Senator under Alyansa ng Pag-asa, a tripartite alliance of three politicalparties: PROMDI, REPORMA, and Aksyon Demokratiko.

On January 6, 2004, respondent COMELEC issued Resolution No. 6520, whichcontained Section 32, the provision assailed herein. On January 21, 2004, petitionerwas directed to comply with the said provision by the COMELEC’s Law Department. Hereplied, on January 29, 2004, by requesting the COMELEC that he be informed as to



how he may have violated the assailed provision. He sent another letter dated February23, 2004, this time asking the COMELEC that he be exempted from the application ofSection 32, considering that the billboards adverted to are mere product endorsementsand cannot be construed as paraphernalia for premature campaigning under the rules.

The COMELEC answered petitioner’s request by issuing another letter, dated February27, 2004, wherein it ordered him to remove or cause the removal of the billboards, or tocover them from public view pending the approval of his request.

Feeling aggrieved, petitioner Chavez asks this Court that the COMELEC be enjoined

from enforcing the assailed provision. He urges this Court to declare the assailedprovision unconstitutional as the same is allegedly (1) a gross violation of the non-impairment clause; (2) an invalid exercise of police power; (3) in the nature of an ex-post facto law; (4) contrary to the Fair Elections Act; and (5) invalid due to overbreadth.

Is Section 32 of COMELEC Resolution No. 6520 an invalid exercise of policepower? Petitioner argues that the billboards, while they exhibit his name and image, donot at all announce his candidacy for any public office nor solicit support for suchcandidacy from the electorate. They are, he claims, mere product endorsements andnot election propaganda. Prohibiting, therefore, their exhibition to the public is notwithin the scope of the powers of the COMELEC, he concludes.

This Court takes a contrary view. Police power, as an inherent attribute of sovereignty,is the power to prescribe regulations to promote the health, morals, peace, education,

good order, or safety, and the general welfare of the people.

[1]

To determine the validityof a police measure, two questions must be asked: (1) Does the interest of the public ingeneral, as distinguished from those of a particular class, require the exercise of policepower? and (2) Are the means employed reasonably necessary for the accomplishmentof the purpose and not unduly oppressive upon individuals?

A close examination of the assailed provision reveals that its primary objectives are toprohibit premature campaigning and to level the playing field for candidates of publicoffice, to equalize the situation between popular or rich candidates, on one hand, andlesser-known or poorer candidates, on the other, by preventing the former from enjoyingundue advantage in exposure and publicity on account of their resources andpopularity. The latter is a valid reason for the exercise of police power as held inNational Press Club v. COMELEC,

[2] wherein the petitioners questioned the

constitutionality of Section 11(b) of Republic Act No. 6646, which prohibited the sale or

donation of print space and air time ―for campaigning or other political purposes,‖ exceptto the COMELEC. The obvious intention of this provision is to equalize, as far aspracticable, the situations of rich and poor candidates by preventing the former fromenjoying the undue advantage offered by huge campaign ―war chests.‖ This Court ruledtherein that this objective is of special importance and urgency in a country which, likeours, is characterized by extreme disparity in income distribution between the economicelite and the rest of society, and by the prevalence of poverty, with so many of ourpopulation falling below the poverty line.

Moreover, petitioner cannot claim that the subject billboards are purely productendorsements and do not announce nor solicit any support for his candidacy. Under theOmnibus Election Code, ―election campaign‖ or ―partisan political activity‖ is defined asan act designed to promote the election or defeat of a particular candidate or candidatesto a public office. Activities included under this definition are:

(1) Forming organizations, associations, clubs, committees, or other groups ofpersons for the purpose of soliciting votes and/or undertaking any campaign for oragainst a candidate

(2) Holding political caucuses, conferences, meetings, rallies, parades, or othersimilar assemblies, for the purpose of soliciting votes and/or undertaking any campaignor 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 oroppose the election of any candidate; or

(5) Directly or indirectly soliciting votes, pledges or support for or against acandidate.

[3] (underscoring ours)

It is true that when petitioner entered into the contracts or agreements to endorsecertain products, he acted as a private individual and had all the right to lend his nameand image to these products. However, when he filed his certificate of candidacy forSenator, the billboards featuring his name and image assumed partisan politicalcharacter because the same indirectly promoted his candidacy. Therefore, the

COMELEC was acting well within its scope of powers when it required petitioner todiscontinue the display of the subject billboards. If the subject billboards were to beallowed, candidates for public office whose name and image are used to advertisecommercial products would have more opportunity to make themselves known to theelectorate, to the disadvantage of other candidates who do not have the same chanceof lending their faces and names to endorse popular commercial products as imagemodels. Similarly, an individual intending to run for public office within the next fewmonths, could pay private corporations to use him as their image model with theintention of familiarizing the public with his name and image even before the start of thecampaign period. This, without a doubt, would be a circumvention of the rule againstpremature campaigning:

Sec. 80. Election campaign or partisan political activity outside campaign period. – It

shall be unlawful for any person, whether or not a voter or candidate, or for any party, orassociation of persons, to engage in an election campaign or partisan political activityexcept during the campaign period. x x x

[4]

Article IX (C) (4) of the Constitution provides:

Sec. 4. The Commission may, during the election period, supervise or regulate theenjoyment or utilization of all franchises or permits for the operation of transportationand other public utilities, media of communication or information, all grants, specialprivileges, or concessions granted by the Government or any subdivision, agency, orinstrumentality thereof, including any government-owned or controlled corporation or itssubsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time,and space, and the right to reply, including reasonable, equal rates therefor, for publicinformation campaigns and forums among candidates in connection with the objectiveof holding free, orderly, honest, peaceful, and credible elections.

http://sc.judiciary.gov.ph/jurisprudence/2004/aug2004/162777.htm#_ftn1


















Under the abovementioned Constitutional provision, the COMELEC is expresslyauthorized to supervise or regulate the enjoyment or utilization of all mediacommunication or information to ensure equal opportunity, time, and space. All theseare aimed at the holding of free, orderly, honest, peaceful, and credible elections.

Neither is Section 32 of Resolution No. 6520 a gross violation of the non-impairmentclause. The non-impairment clause of the Constitution must yield to the loftier purposestargeted by the Government.

[5] Equal opportunity to proffer oneself for public office,

without regard to the level of financial resources one may have at his disposal, is indeedof vital interest to the public. The State has the duty to enact and implement rules to

safeguard this interest. Time and again, this Court has said that contracts affectingpublic interest contain an implied reservation of the police power as a postulate of theexisting legal order. This power can be activated at anytime to change the provisions ofthe contract, or even abrogate it entirely, for the promotion or protection of the generalwelfare. Such an act will not militate against the impairment clause, which is subject toand limited by the paramount police power .

[6]

Furthermore, this Court notes that the very contracts entered into by petitioner providethat the endorser’s photograph and image shall be utilized in whatever form, mode andmanner ―in keeping with norms of decency, reasonableness, morals and law;‖

[7] and in

whatever form, mode and manner not contrary to law and norms of decency,‖[8]

and ―inwhatever form, mode and manner in keeping with norms of decency, reasonableness,morals and law.‖

[9]

Petitioner also claims that Section 32 of Resolution No. 6520 is in the nature of an ex post facto law. He urges this Court to believe that the assailed provision makes anindividual criminally liable for an election offense for not removing such advertisement,even if at the time the said advertisement was exhibited, the same was clearlylegal. Hence, it makes a person, whose name or image is featured in any suchadvertisement, liable for premature campaigning under the Omnibus ElectionCode.

[10] A close scrutiny of this rationale, however, demonstrates its lack of

persuasiveness. Section 32, although not penal in nature, defines an offense andprescribes a penalty for said offense. Laws of this nature must operate prospectively,except when they are favorable to the accused. It should be noted, however, that theoffense defined in the assailed provision is not the putting up of ―propaganda materialssuch as posters, streamers, stickers or paintings on walls and other materials showingthe picture, image or name of a person, and all advertisements on print, in radio or ontelevision showing the image or mentioning the name of a person, who subsequent tothe placement or display thereof becomes a candidate for public office.‖ Nor does itprohibit or consider an offense the entering of contractsfor such propaganda materialsby an individual who subsequently becomes a candidate for public office. One definitelydoes not commit an offense by entering into a contract with private parties to use hisname and image to endorse certain products prior to his becoming a candidate forpublic office. The offense, as expressly prescribed in the assailed provision, is the non-removal of the described propaganda materials three (3) days after the effectivity ofCOMELEC Resolution No. 6520. If the candidate for public office fails to remove suchpropaganda materials after the given period, he shall be liable under Section 80 of theOmnibus Election Code for premature campaigning. Indeed, nowhere is it indicated inthe assailed provision that it shall operate retroactively. There is, therefore, no ex postfacto law in this case.

Next, petitioner urges that Section 32 is a violation of the Fair Elections Act. Accordingto him, under this law, billboards are already permitted as lawful election

propaganda. He claims, therefore, that the COMELEC, in effectively prohibiting the useof billboards as a form of election propaganda through the assailed provision, violatedthe Fair Elections Act. Petitioner’s argument is not tenable. The Solicitor Generalrightly points out that the assailed provision does not prohibit billboards as lawfulelection propaganda. It only regulates their use to prevent premature campaigning andto equalize, as much as practicable, the situation of all candidates by preventing popularand rich candidates from gaining undue advantage in exposure and publicity on accountof their resources and popularity.

[11] Moreover, by regulating the use of such election

propaganda materials, the COMELEC is merely doing its duty under the law. UnderSections 3 and 13 of the Fair Elections Act, all election propaganda are subject to the

supervision and regulation by the COMELEC:

SECTION 3. Lawful Election Propaganda. -- Election propaganda, whether ontelevision, cable television radio, newspapers or any other medium is hereby allowed forall registered political parties, national, regional, sectoral parties or organizationsparticipating under the party list elections and for all bona fide candidates seekingnational and local elective positions subject to the limitation on authorized expenses ofcandidates and political parties observance of truth in advertising and to the supervisionand regulation by the Commission on Elections (COMELEC).

For the purpose of this Act, lawful election propaganda shall include:

3.1. Pamphlets, leaflets, cards, decals, stickers or other written or printed materials the

size of which does not exceed eight and one half inches in width and fourteen inches inlength;

3.2. Handwritten or printed letters urging voters to vote for or against any particularpolitical party or candidate for public office;

3.3. Cloth, paper or cardboard posters whether framed or posted, with an area notexceeding two(2) feet by three (3) feet, except that, at the site and on the occasion of apublic meeting or rally, or in announcing the holding of said meeting or rally, streamersnot exceeding three (3) feet by eight (8) feet in size, shall be allowed: Provided , Thatsaid streamers may be displayed five (5) days before the date of the meeting or rallyand shall be removed within twenty-four (24) hours after said meeting or rally;

3.4. Paid advertisements in print or broadcast media: Provided , That the

advertisements shall follow the requirements set forth in Section 4 of this Act; and

3.5. All other forms of election propaganda not prohibited by the Omnibus ElectionCode or this Act.

x x x

SECTION 13. Authority of the COMELEC to Promulgate Rules; Election Offenses. –-The COMELEC shall promulgate and furnish all political parties and candidates and themass media entities the rules and regulations for the implementation of this Act,consistent with the criteria established in Article IX-C, Section 4 of the Constitution andSection 86 of the Omnibus Election Code (Batas Pambansa Blg. 881).































Rules and regulations promulgated by the COMELEC under and by authority of thisSection shall take effect on the seventh day after their publication in at least two (2)daily newspapers of general circulation. Prior to effectivity of said rules and regulations,no political advertisement or propaganda for or against any candidate or political partyshall be published or broadcast through mass media.

Violation of this Act and the rules and regulations of the COMELEC issued to implementthis Act shall be an election offense punishable under the first and second paragraphsof Section 264 of the Omnibus Election Code (Batas Pambansa Blg. 881).

Finally, petitioner contends that Section 32 of COMELEC Resolution No. 6520 is invalidbecause of overbreadth.

A statute or regulation is considered void for overbreadth when it offends theconstitutional principle that a governmental purpose to control or prevent activitiesconstitutionally subject to State regulations may not be achieved by means that sweepunnecessarily broadly and thereby invade the area of protected freedoms.

[12]

The provision in question is limited in its operation both as to time and scope. It onlydisallows the continued display of a person’s propaganda materials and advertisementsafter he has filed a certificate of candidacy and before the start of the campaignperiod. Said materials and advertisements must also show his name and image.

There is no blanket prohibition of the use of propaganda materials and

advertisements. During the campaign period, these may be used subject only toreasonable limitations necessary and incidental to achieving the purpose of preventingpremature campaigning and promoting equality of opportunities among all candidates.

The provision, therefore, is not invalid on the ground of overbreadth.

WHEREFORE, the petition is DISMISSED and Section 32 of COMELEC Resolution No.6520 is declared valid and constitutional. The prayer for a Temporary Restraining Orderand/or a Writ of Preliminary Injunction is hereby DENIED. No costs.

SO ORDERED.


Manila

EN BANC

G.R. No. 115245 July 11, 1995

JUANITO C. PILAR, petitioner,vs.

COMMISSION ON ELECTIONS, respondent.

QUIASON, J.:

This is a petition for certiorari under Rule 65 of the Revised Rules of Court assailing theResolution dated April 28, 1994 of the Commission on Elections (COMELEC) in UNDNo. 94-040.

I

On March 22, 1992, petitioner Juanito C. Pilar filed his certificate of candidacy for theposition of member of the Sangguniang Panlalawigan of the Province of Isabela.

On March 25, 1992, petitioner withdrew his certificate of candidacy.

In M.R. Nos. 93-2654 and 94-0065 dated November 3, 1993 and February 13, 1994respectively, the COMELEC imposed upon petitioner the fine of Ten Thousand Pesos(P10,000.00) for failure to file his statement of contributions and expenditures.

In M.R. No. 94-0594 dated February 24, 1994, the COMELEC denied the motion forreconsideration of petitioner and deemed final M.R. Nos. 93-2654 and 94-0065 (Rollo,p. 14).

Petitioner went to the COMELEC En Banc (UND No. 94-040), which denied the petitionin a Resolution dated April 28, 1994 (Rollo, pp. 10-13).

Hence, this petition for certiorari.

We dismiss the petition.

II

Section 14 of R.A. No. 7166 entitled "An Act Providing for Synchronized National andLocal Elections and for Electoral Reforms, Authorizing Appropriations Therefor, and forOther Purposes" provides as follows:

Statement of Contributions and Expenditures: Effect of Failure to File Statement. Everycandidate and treasurer of the political party shall, within thirty (30) days after the day ofthe election, file in duplicate with the offices of the Commission the full, true anditemized statement of all contributions and expenditures in connection with the election.







No person elected to any public office shall enter upon the duties of his office until hehas filed the statement of contributions and expenditures herein required.

The same prohibition shall apply if the political party which nominated the winningcandidate fails to file the statement required herein within the period prescribed by this Act.

Except candidates for elective barangay office, failure to file the statements or reports inconnection with electoral contributions and expenditures as required herein shallconstitute an administrative offense for which the offenders shall be liable to pay an

administrative fine ranging from One Thousand Pesos ( P1,000.00) to Thirty ThousandPesos (P30,000.00), in the discretion of the Commission.

The fine shall be paid within thirty (30) days from receipt of notice of such failure;otherwise, it shall be enforceable by a writ of execution issued by the Commissionagainst the properties of the offender.

It shall be the duty of every city or municipal election registrar to advise in writing, bypersonal delivery or registered mail, within five (5) days from the date of election allcandidates residing in his jurisdiction to comply with their obligation to file theirstatements of contributions and expenditures.

For the commission of a second or subsequent offense under this Section, the

administrative fine shall be from Two Thousand Pesos (P2,000.00) to Sixty ThousandPesos (P60,000.00), in the discretion of the Commission. In addition, the offender shallbe subject to perpetual disqualification to hold public office (Emphasis supplied).

To implement the provisions of law relative to election contributions and expenditures,the COMELEC promulgated on January 13, 1992 Resolution No. 2348 (Re: Rules andRegulations Governing Electoral Contributions and Expenditures in Connection with theNational and Local Elections onMay 11, 1992). The pertinent provisions of said Resolution are:

Sec. 13. Statement of contributions and expenditures: Reminders to candidates to filestatements. Within five (5) days from the day of the election, the Law Department of theCommission, the regional election director of the National Capital Region, the provincialelection supervisors and the election registrars shall advise in writing by personal

delivery or registered mail all candidates who filed their certificates of candidacy withthem to comply with their obligation to file their statements of contributions andexpenditures in connection with the elections. Every election registrar shall also adviseall candidates residing in his jurisdiction to comply with said obligation (Emphasissupplied).

Sec. 17. Effect of failure to file statement. (a) No person elected to any public officeshall enter upon the duties of his office until he has filed the statement of contributionsand expenditures herein required.

The same prohibition shall apply if the political party which nominated the winningcandidates fails to file the statement required within the period prescribed by law.

(b) Except candidates for elective barangay office, failure to file statements orreports in connection with the electoral contributions and expenditures as required

herein shall constitute an administrative offense for which the offenders shall be liable topay an administrative fine ranging from One Thousand Pesos (P1,000) to ThirtyThousand Pesos (P30,000), in the discretion of the Commission.

The fine shall be paid within thirty (30) days from receipt of notice of such failure;otherwise, it shall be enforceable by a writ of execution issued by the Commissionagainst the properties of the offender.

For the commission of a second or subsequent offense under this section, theadministrative fine shall be from Two Thousand Pesos (P2,000) to Sixty Thousand

Pesos (P60,000), in the discretion of the Commission. In addition, the offender shall besubject to perpetual disqualification to hold public office.

Petitioner argues that he cannot be held liable for failure to file a statement ofcontributions and expenditures because he was a "non-candidate," having withdrawnhis certificates of candidacy three days after its filing. Petitioner posits that "it is . . . clearfrom the law that candidate must have entered the political contest, and should haveeither won or lost" (Rollo, p. 39).

Petitioner's argument is without merit.

Section 14 of R.A. No. 7166 states that "every candidate" has the obligation to file hisstatement of contributions and expenditures.

Well-recognized is the rule that where the law does not distinguish, courts should notdistinguish, Ubi lex non distinguit nec nos distinguere debemos (Philippine British Assurance Co. Inc. v. Intermediate Appellate Court, 150 SCRA 520 [1987]; cf Olfato v.Commission on Elections, 103 SCRA 741 [1981]). No distinction is to be made in theapplication of a law where none is indicated (Lo Cham v. Ocampo, 77 Phil. 636 [1946]).

In the case at bench, as the law makes no distinction or qualification as to whether thecandidate pursued his candidacy or withdrew the same, the term "every candidate"must be deemed to refer not only to a candidate who pursued his campaign, but also toone who withdrew his candidacy.

The COMELEC, the body tasked with the enforcement and administration of all lawsand regulations relative to the conduct of an election, plebiscite, initiative, referendum,

and recall (The Constitution of the Republic of the Philippines, Art. IX(C), Sec. 2[1]),issued Resolution No. 2348 in implementation or interpretation of the provisions ofRepublic Act No. 7166 on election contributions and expenditures. Section 13 ofResolution No. 2348 categorically refers to "all candidates who filed their certificates ofcandidacy."

Furthermore, Section 14 of the law uses the word "shall." As a general rule, the use ofthe word "shall" in a statute implies that the statute is mandatory, and imposes a dutywhich may be enforced , particularly if public policy is in favor of this meaning or wherepublic interest is involved. We apply the general rule (Baranda v. Gustilo, 165 SCRA757 [1988]; Diokno v. Rehabilitation Finance Corporation, 91 Phil. 608 [1952]).

The state has an interest in seeing that the electoral process is clean, and ultimately

expressive of the true will of the electorate. One way of attaining such objective is topass legislation regulating contributions and expenditures of candidates, and compelling



the publication of the same. Admittedly, contributions and expenditures are made for thepurpose of influencing the results of the elections (B.P. Blg. 881, Sec. 94; ResolutionNo. 2348, Sec. 1). Thus, laws and regulations prescribe what contributions areprohibited (B.P. Blg. 881, Sec. 95, Resolution No. 2348, Sec. 4), or unlawful (B.P. Blg.881, Sec. 96), and what expenditures are authorized (B.P. Blg. 881, Sec. 102; R.A. No.7166, Sec. 13; Resolution No. 2348, Sec. 7) or lawful (Resolution No. 2348, Sec. 8).

Such statutes are not peculiar to the Philippines. In "corrupt and illegal practices acts" ofseveral states in the United States, as well as in federal statutes, expenditures ofcandidates are regulated by requiring the filing of statements of expenses and by

limiting the amount of money that may be spent by a candidate. Some statutes alsoregulate the solicitation of campaign contributions (26 Am Jur 2d, Elections § 287).These laws are designed to compel publicity with respect to matters contained in thestatements and to prevent, by such publicity, the improper use of moneys devoted bycandidates to the furtherance of their ambitions (26 Am Jur 2d, Elections § 289). Thesestatutes also enable voters to evaluate the influences exerted on behalf of candidatesby the contributors, and to furnish evidence of corrupt practices for annulment ofelections (Sparkman v. Saylor [Court of Appeals of Kentucky], 180 Ky. 263, 202 S.W.649 [1918]).

State courts have also ruled that such provisions are mandatory as to the requirementof filing (State ex rel. Butchofsky v. Crawford [Court of Civil Appeals of Texas], 269 S.W.2d 536 [1954]; Best v. Sidebottom, 270 Ky. 423,109 S.W. 2d 826 [1937]; Sparkman v.

Saylor, supra.)

It is not improbable that a candidate who withdrew his candidacy has acceptedcontributions and incurred expenditures, even in the short span of his campaign. Theevil sought to be prevented by the law is not all too remote.

It is notesworthy that Resolution No. 2348 even contemplates the situation where acandidate may not have received any contribution or made any expenditure. Such acandidate is not excused from filing a statement, and is in fact required to file astatement to that effect. Under Section 15 of Resolution No. 2348, it is provided that "[i]fa candidate or treasurer of the party has received no contribution, made no expenditure,or has no pending obligation, the statement shall reflect such fact."

Lastly, we note that under the fourth paragraph of Section 73 of the B.P. Blg. 881 or the

Omnibus Election Code of the Philippines, it is provided that "[t]he filing or withdrawal ofcertificate of candidacy shall not affect whatever civil, criminal or administrative liabilitieswhich a candidate may have incurred." Petitioner's withdrawal of his candidacy did notextinguish his liability for the administrative fine.

WHEREFORE, the petition is DISMISSED.

Narvasa, C.J., Feliciano, Regalado, Davide, Jr., Romero, Bellosillo, Puno, Vitug,Mendoza and Francisco, JJ., concur.

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