EN BANC G.R. No.

190582 April 8, 2010

ANG LADLAD LGBT PARTY represented herein by its Chair, DANTON REMOTO, Petitioner, vs. COMMISSION ON ELECTIONS Respondent. DECISION DEL CASTILLO, J.: ... [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. Justice Robert A. Jackson West Virginia State Board of Education v. Barnette
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One unavoidable consequence of everyone having the freedom to choose is that others may make different choices choices we would not make for ourselves, choices we may disapprove of, even choices that may shock or offend or anger us. However, choices are not to be legally prohibited merely because they are different, and the right to disagree and debate about important questions of public policy is a core value protected by our Bill of Rights. Indeed, our democracy is built on genuine recognition of, and respect for, diversity and difference in opinion. Since ancient times, society has grappled with deep disagreements about the definitions and demands of morality. In many cases, where moral convictions are concerned, harmony among those theoretically opposed is an insurmountable goal. Yet herein lies the paradox philosophical justifications about what is moral are indispensable and yet at the same time powerless to create agreement. This Court recognizes, however, that practical solutions are preferable to ideological stalemates; accommodation is better than intransigence; reason more worthy than rhetoric. This will allow persons of diverse viewpoints to live together, if not harmoniously, then, at least, civilly. Factual Background This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an application for a writ of preliminary mandatory injunction, filed by Ang Ladlad LGBT Party (Ang Ladlad) against the Resolutions of the Commission on Elections (COMELEC) dated 2 3 November 11, 2009 (the First Assailed Resolution) and December 16, 2009 (the Second Assailed Resolution) in SPP No. 09-228 (PL) (collectively, the Assailed Resolutions). The case has its roots in the COMELECs refusal to accredit Ang Ladlad as a party-list 4 organization under Republic Act (RA) No. 7941, otherwise known as the Party-List System Act. Ang Ladlad is an organization composed of men and women who identify themselves as lesbians, gays, bisexuals, or trans-gendered individuals (LGBTs). Incorporated in 2003, Ang Ladlad first applied for registration with the COMELEC in 2006. The application for accreditation was denied on the ground that the organization had no substantial membership base. On August 17, 2009, Ang 5 Ladlad again filed a Petition for registration with the COMELEC. Before the COMELEC, petitioner argued that the LGBT community is a marginalized and under-represented sector that is particularly disadvantaged because of their sexual orientation and gender identity; that LGBTs are victims of exclusion, discrimination, and violence; that because of negative societal attitudes, LGBTs are constrained to hide their sexual orientation; and that Ang Ladlad complied with the 8-point guidelines enunciated by this Court in Ang Bagong Bayani-OFW Labor Party v. Commission on 6 Elections. Ang Ladlad laid out its national membership base consisting of individual members and organizational supporters, and 7 outlined its platform of governance. On November 11, 2009, after admitting the petitioners evidence, the COMELEC (Second Division) dismissed the Petition on moral grounds, stating that:

x x x This Petition is dismissible on moral grounds. Petitioner defines the Filipino Lesbian, Gay, Bisexual and Transgender (LGBT) Community, thus: x x x a marginalized and under-represented sector that is particularly disadvantaged because of their sexual orientation and gender identity. and proceeded to define sexual orientation as that which: x x x refers to a persons capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender, of the same gender, or more than one gender." This definition of the LGBT sector makes it crystal clear that petitioner tolerates immorality which offends religious beliefs. In Romans 1:26, 27, Paul wrote: For this cause God gave them up into vile affections, for even their women did change the natural use into that which is against nature: And likewise also the men, leaving the natural use of the woman, burned in their lust one toward another; men with men working that which is unseemly, and receiving in themselves that recompense of their error which was meet. In the Koran, the hereunder verses are pertinent: For ye practice your lusts on men in preference to women "ye are indeed a people transgressing beyond bounds." (7.81) "And we rained down on them a shower (of brimstone): Then see what was the end of those who indulged in sin and crime!" (7:84) "He said: "O my Lord! Help Thou me against people who do mischief" (29:30). As correctly pointed out by the Law Department in its Comment dated October 2, 2008: The ANG LADLAD apparently advocates sexual immorality as indicated in the Petitions par. 6F: Consensual partnerships or relationships by gays and lesbians who are already of age. It is further indicated in par. 24 of the Petition which waves for the record: In 2007, Men Having Sex with Men or MSMs in the Philippines were estimated as 670,000 (Genesis 19 is the history of Sodom and Gomorrah). Laws are deemed incorporated in every contract, permit, license, relationship, or accreditation. Hence, pertinent provisions of the Civil Code and the Revised Penal Code are deemed part of the requirement to be complied with for accreditation. ANG LADLAD collides with Article 695 of the Civil Code which defines nuisance as Any act, omission, establishment, business, condition of property, or anything else which x x x (3) shocks, defies; or disregardsdecency or morality x x x It also collides with Article 1306 of the Civil Code: The contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order or public policy. Art 1409 of the Civil Code provides that Contracts whose cause, object or purpose is contrary to law, morals, good customs, public order or public policy are inexistent and void from the beginning. Finally to safeguard the morality of the Filipino community, the Revised Penal Code, as amended, penalizes Immoral doctrines, obscene publications and exhibitions and indecent shows as follows: Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows. The penalty of prision mayor or a fine ranging from six thousand to twelve thousand pesos, or both such imprisonment and fine, shall be imposed upon: 1. Those who shall publicly expound or proclaim doctrines openly contrary to public morals; 2. (a) The authors of obscene literature, published with their knowledge in any form; the editors publishing such literature; and the owners/operators of the establishment selling the same; (b) Those who, in theaters, fairs, cinematographs or any other place, exhibit indecent or immoral plays, scenes, acts or shows, it being understood that the obscene literature or indecent or immoral plays, scenes, acts or shows, whether live or in film, which are prescribed by virtue hereof, shall include those which: (1) glorify criminals or

condone crimes; (2) serve no other purpose but to satisfy the market for violence, lust or pornography; (3) offend any race or religion; (4) tend to abet traffic in and use of prohibited drugs; and (5) are contrary to law, public order, morals, good customs,established policies, lawful orders, decrees and edicts. 3. Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are offensive to morals. Petitioner should likewise be denied accreditation not only for advocating immoral doctrines but likewise for not being truthful when it said that it "or any of its nominees/party-list representatives have not violated or failed to comply with laws, rules, or regulations relating to the elections." Furthermore, should this Commission grant the petition, we will be exposing our youth to an environment that does not conform to the teachings of our faith. Lehman Strauss, a famous bible teacher and writer in the U.S.A. said in one article that "older practicing homosexuals are a threat to the youth." As an agency of the government, ours too is the States avowed duty under Section 13, 8 Article II of the Constitution to protect our youth from moral and spiritual degradation. When Ang Ladlad sought reconsideration, three commissioners voted to overturn the First Assailed Resolution (Commissioners Gregorio Y. Larrazabal, Rene V. Sarmiento, and Armando Velasco), while three commissioners voted to deny Ang Ladlads Motion for Reconsideration (Commissioners Nicodemo T. Ferrer, Lucenito N. Tagle, and Elias R. Yusoph). The COMELEC Chairman, breaking the tie and speaking for the majority in his Separate Opinion, upheld the First Assailed Resolution, stating that: I. The Spirit of Republic Act No. 7941 Ladlad is applying for accreditation as a sectoral party in the party-list system. Even assuming that it has properly proven its underrepresentation and marginalization, it cannot be said that Ladlads expressed sexual orientations per se would benefit the nation as a whole. Section 2 of the party-list law unequivocally states that the purpose of the party-list system of electing congressional representatives is to enable Filipino citizens belonging to marginalized and under-represented sectors, organizations and parties, and who lack welldefined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives. If entry into the party-list system would depend only on the ability of an organization to represent its constituencies, then all representative organizations would have found themselves into the party-list race. But that is not the intention of the framers of the law. The party-list system is not a tool to advocate tolerance and acceptance of misunderstood persons or groups of persons. Rather, the party-list system is a tool for the realization of aspirations of marginalized individuals whose interests are also the nations only that their interests have not been brought to the attention of the nation because of their under representation. Until the time comes when Ladlad is able to justify that having mixed sexual orientations and transgender identities is beneficial to the nation, its application for accreditation under the party-list system will remain just that. II. No substantial differentiation In the United States, whose equal protection doctrine pervades Philippine jurisprudence, courts do not recognize lesbians, gays, homosexuals, and bisexuals (LGBT) as a "special class" of individuals. x x x Significantly, it has also been held that homosexuality is not a constitutionally protected fundamental right, and that "nothing in the U.S. Constitution discloses a comparable intent to protect or promote the social or legal equality of homosexual relations," as in the case of race or religion or belief. xxxx Thus, even if societys understanding, tolerance, and acceptance of LGBTs is elevated, there can be no denying that Ladlad constituencies are still males and females, and they will remain either male or female protected by the same Bill of Rights that applies to all citizens alike. xxxx IV. Public Morals
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x x x There is no question about not imposing on Ladlad Christian or Muslim religious practices. Neither is there any attempt to any particular religious groups moral rules on Ladlad. Rather, what are being adopted as moral parameters and precepts are generally accepted public morals. They are possibly religious-based, but as a society, the Philippines cannot ignore its more than 500 years of Muslim and Christian upbringing, such that some moral precepts espoused by said religions have sipped [sic] into society and these are not publicly accepted moral norms. V. Legal Provisions But above morality and social norms, they have become part of the law of the land. Article 201 of the Revised Penal Code imposes the penalty of prision mayor upon "Those who shall publicly expound or proclaim doctrines openly contrary to public morals." It penalizes "immoral doctrines, obscene publications and exhibition and indecent shows." "Ang Ladlad" apparently falls under these legal provisions. This is clear from its Petitions paragraph 6F: "Consensual partnerships or relationships by gays and lesbians who are already of age It is further indicated in par. 24 of the Petition which waves for the record: In 2007, Men Having Sex with Men or MSMs in the Philippines were estimated as 670,000. Moreoever, Article 694 of the Civil Code defines "nuisance" as any act, omission 10 x x x or anything else x x x which shocks, defies or disregards decency or morality x x x." These are all unlawful. On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the Assailed Resolutions and direct the COMELEC to grant Ang Ladlads application for accreditation. Ang Ladlad also sought the issuance ex parte of a preliminary mandatory injunction against the COMELEC, which had previously announced that it would begin printing the final ballots for the May 2010 elections by January 25, 2010. On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file its Comment on behalf of COMELEC not later than 11 12:00 noon of January 11, 2010. Instead of filing a Comment, however, the OSG filed a Motion for Extension, requesting that it be 12 given until January 16, 2010 to Comment. Somewhat surprisingly, the OSG later filed a Comment in support of petitioners 13 application. Thus, in order to give COMELEC the opportunity to fully ventilate its position, we required it to file its own 14 15 comment. The COMELEC, through its Law Department, filed its Comment on February 2, 2010. In the meantime, due to the urgency of the petition, we issued a temporary restraining order on January 12, 2010, effective immediately and continuing until further orders from this Court, directing the COMELEC to cease and desist from implementing the 16 Assailed Resolutions. Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion to Intervene or to Appear as Amicus Curiae, 17 attaching thereto its Comment-in-Intervention. The CHR opined that the denial of Ang Ladladspetition on moral grounds violated the standards and principles of the Constitution, the Universal Declaration of Human Rights (UDHR), and the International Covenant on Civil and Political Rights (ICCPR). On January 19, 2010, we granted the CHRs motion to intervene. On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene which motion was granted on February 2, 2010. The Parties Arguments Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion by using religious dogma, violated the constitutional guarantees against the establishment of religion. Petitioner also claimed that the Assailed Resolutions contravened its constitutional rights to privacy, freedom of speech and assembly, and equal protection of laws, as well as constituted violations of the Philippines international obligations against discrimination based on sexual orientation. The OSG concurred with Ang Ladlads petition and argued that the COMELEC erred in denying petitioners application for registration since there was no basis for COMELECs allegations of immorality. It also opined that LGBTs have their own special interests and concerns which should have been recognized by the COMELEC as a separate classification. However, insofar as the purported violations of petitioners freedom of speech, expression, and assembly were concerned, the OSG maintained that there had been no restrictions on these rights. In its Comment, the COMELEC reiterated that petitioner does not have a concrete and genuine national political agenda to benefit the nation and that the petition was validly dismissed on moral grounds. It also argued for the first time that the LGBT sector is not among the sectors enumerated by the Constitution and RA 7941, and that petitioner made untruthful statements in its petition when it alleged its national existence contrary to actual verification reports by COMELECs field personnel. Our Ruling
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We grant the petition. Compliance with the Requirements of the Constitution and Republic Act No. 7941 The COMELEC denied Ang Ladlads application for registration on the ground that the LGBT sector is neither enumerated in the Constitution and RA 7941, nor is it associated with or related to any of the sectors in the enumeration. Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the proposition that only those sectors specifically enumerated in the law or related to said sectors (labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals) may be registered under the party-list system. As we 20 explicitly ruled in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections, "the enumeration of marginalized and underrepresented sectors is not exclusive". The crucial element is not whether a sector is specifically enumerated, but whether a particular organization complies with the requirements of the Constitution and RA 7941. Respondent also argues that Ang Ladlad made untruthful statements in its petition when it alleged that it had nationwide existence through its members and affiliate organizations. The COMELEC claims that upon verification by its field personnel, it was shown that 21 "save for a few isolated places in the country, petitioner does not exist in almost all provinces in the country." This argument that "petitioner made untruthful statements in its petition when it alleged its national existence" is a new one; previously, the COMELEC claimed that petitioner was "not being truthful when it said that it or any of its nominees/party-list representatives have not violated or failed to comply with laws, rules, or regulations relating to the elections." Nowhere was this ground for denial of petitioners accreditation mentioned or even alluded to in the Assailed Resolutions. This, in itself, is quite curious, considering that the reports of petitioners alleged non-existence were already available to the COMELEC prior to the issuance of the First Assailed Resolution. At best, this is irregular procedure; at worst, a belated afterthought, a change in respondents theory, and a serious violation of petitioners right to procedural due process. Nonetheless, we find that there has been no misrepresentation. A cursory perusal of Ang Ladlads initial petition shows that it never claimed to exist in each province of the Philippines. Rather, petitioner alleged that the LGBT community in the Philippines was estimated to constitute at least 670,000 persons; that it had 16,100 affiliates and members around the country, and 4,044 members 22 in its electronic discussion group. Ang Ladlad also represented itself to be "a national LGBT umbrella organization with affiliates around the Philippines composed of the following LGBT networks:" Abra Gay Association Aklan Butterfly Brigade (ABB) Aklan Albay Gay Association Arts Center of Cabanatuan City Nueva Ecija Boys Legion Metro Manila Cagayan de Oro People Like Us (CDO PLUS) Cant Live in the Closet, Inc. (CLIC) Metro Manila Cebu Pride Cebu City Circle of Friends Dipolog Gay Association Zamboanga del Norte Gay, Bisexual, & Transgender Youth Association (GABAY) Gay and Lesbian Activists Network for Gender Equality (GALANG) Metro Manila

 Gay Mens Support Group (GMSG) Metro Manila Gay United for Peace and Solidarity (GUPS) Lanao del Norte Iloilo City Gay Association Iloilo City Kabulig Writers Group Camarines Sur Lesbian Advocates Philippines, Inc. (LEAP) LUMINA Baguio City Marikina Gay Association Metro Manila Metropolitan Community Church (MCC) Metro Manila Naga City Gay Association Naga City ONE BACARDI Order of St. Aelred (OSAe) Metro Manila PUP LAKAN RADAR PRIDEWEAR Rainbow Rights Project (R-Rights), Inc. Metro Manila San Jose del Monte Gay Association Bulacan Sining Kayumanggi Royal Family Rizal Society of Transexual Women of the Philippines (STRAP) Metro Manila Soul Jive Antipolo, Rizal The Link Davao City Tayabas Gay Association Quezon Womens Bisexual Network Metro Manila Zamboanga Gay Association Zamboanga City
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Since the COMELEC only searched for the names ANG LADLAD LGBT or LADLAD LGBT, it is no surprise that they found that petitioner had no presence in any of these regions. In fact, if COMELECs findings are to be believed, petitioner does not even exist in Quezon City, which is registered as Ang Ladlads principal place of business. Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its compliance with the legal requirements for accreditation. Indeed, aside from COMELECs moral objection and the belated allegation of non-existence, nowhere in the records has the respondent ever found/ruled that Ang Ladlad is not qualified to register as a party-list organization under any of the requisites under RA 7941 or the guidelines in Ang Bagong Bayani. The difference, COMELEC claims, lies in Ang Ladlads morality, or lack thereof. Religion as the Basis for Refusal to Accept Ang Ladlads Petition for Registration

Our Constitution provides in Article III, Section 5 that "[n]o law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof." At bottom, what our non-establishment clause calls for is "government neutrality in religious 24 25 matters." Clearly, "governmental reliance on religious justification is inconsistent with this policy of neutrality." We thus find that it was grave violation of the non-establishment clause for the COMELEC to utilize the Bible and the Koran to justify the exclusion of Ang Ladlad. Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should depend, instead, on whether the COMELEC is able to advance some justification for its rulings beyond mere conformity to religious doctrine. Otherwise stated, government 26 must act for secular purposes and in ways that have primarily secular effects. As we held in Estrada v. Escritor: x x x The morality referred to in the law is public and necessarily secular, not religious as the dissent of Mr. Justice Carpio holds. "Religious teachings as expressed in public debate may influence the civil public order but public moral disputes may be resolved only on grounds articulable in secular terms." Otherwise, if government relies upon religious beliefs in formulating public policies and morals, the resulting policies and morals would require conformity to what some might regard as religious programs or agenda. The non-believers would therefore be compelled to conform to a standard of conduct buttressed by a religious belief, i.e., to a "compelled religion," anathema to religious freedom. Likewise, if government based its actions upon religious beliefs, it would tacitly approve or endorse that belief and thereby also tacitly disapprove contrary religious or non-religious views that would not support the policy. As a result, government will not provide full religious freedom for all its citizens, or even make it appear that those whose beliefs are disapproved are second-class citizens.1avvphi1 In other words, government action, including its proscription of immorality as expressed in criminal law like concubinage, must have a secular purpose. That is, the government proscribes this conduct because it is "detrimental (or dangerous) to those conditions upon which depend the existence and progress of human society" and not because the conduct is proscribed by the beliefs of one religion or the other. Although admittedly, moral judgments based on religion might have a compelling influence on those engaged in public deliberations over what actions would be considered a moral disapprobation punishable by law. After all, they might also be adherents of a religion and thus have religious opinions and moral codes with a compelling influence on them; the human mind endeavors to regulate the temporal and spiritual institutions of society in a uniform manner, harmonizing earth with heaven. Succinctly put, a law could be religious or Kantian or Aquinian or utilitarian in its deepest roots, but it must have an articulable and discernible secular purpose and justification to pass scrutiny of the religion clauses. x x x Recognizing the religious nature of the Filipinos and the elevating influence of religion in society, however, the Philippine constitution's religion clauses prescribe not a strict but a benevolent neutrality. Benevolent neutrality recognizes that government must pursue its secular goals and interests but at the same time strive to uphold religious liberty to the greatest extent possible within flexible constitutional limits. Thus, although the morality contemplated by laws is secular, benevolent neutrality could allow for accommodation of morality based on religion, 27 provided it does not offend compelling state interests. Public Morals as a Ground to Deny Ang Ladlads Petition for Registration Respondent suggests that although the moral condemnation of homosexuality and homosexual conduct may be religion-based, it has long been transplanted into generally accepted public morals. The COMELEC argues: Petitioners accreditation was denied not necessarily because their group consists of LGBTs but because of the danger it poses to the people especially the youth. Once it is recognized by the government, a sector which believes that there is nothing wrong in having sexual relations with individuals of the same gender is a bad example. It will bring down the standard of morals we cherish in our 28 civilized society. Any society without a set of moral precepts is in danger of losing its own existence. We are not blind to the fact that, through the years, homosexual conduct, and perhaps homosexuals themselves, have borne the brunt of societal disapproval. It is not difficult to imagine the reasons behind this censure religious beliefs, convictions about the preservation of marriage, family, and procreation, even dislike or distrust of homosexuals themselves and their perceived lifestyle. Nonetheless, we recall that the Philippines has not seen fit to criminalize homosexual conduct. Evidently, therefore, these "generally 29 accepted public morals" have not been convincingly transplanted into the realm of law. The Assailed Resolutions have not identified any specific overt immoral act performed by Ang Ladlad. Even the OSG agrees that "there should have been a finding by the COMELEC that the groups members have committed or are committing immoral 30 acts." The OSG argues: x x x A person may be sexually attracted to a person of the same gender, of a different gender, or more than one gender, but mere attraction does not translate to immoral acts. There is a great divide between thought and action. Reduction ad absurdum. If

immoral thoughts could be penalized, COMELEC would have its hands full of disqualification cases against both the "straights" and 31 the gays." Certainly this is not the intendment of the law. Respondent has failed to explain what societal ills are sought to be prevented, or why special protection is required for the youth. Neither has the COMELEC condescended to justify its position that petitioners admission into the party-list system would be so harmful as to irreparably damage the moral fabric of society. We, of course, do not suggest that the state is wholly without authority to regulate matters concerning morality, sexuality, and sexual relations, and we recognize that the government will and should continue to restrict behavior considered detrimental to society. Nonetheless, we cannot countenance advocates who, undoubtedly with the loftiest of intentions, situate morality on one end of an argument or another, without bothering to go through the rigors of legal reasoning and explanation. In this, the notion of morality is robbed of all value. Clearly then, the bare invocation of morality will not remove an issue from our scrutiny. We also find the COMELECs reference to purported violations of our penal and civil laws flimsy, at best; disingenuous, at worst. Article 694 of the Civil Code defines a nuisance as "any act, omission, establishment, condition of property, or anything else which shocks, defies, or disregards decency or morality," the remedies for which are a prosecution under the Revised Penal Code or any 32 local ordinance, a civil action, or abatement without judicial proceedings. A violation of Article 201 of the Revised Penal Code, on the other hand, requires proof beyond reasonable doubt to support a criminal conviction. It hardly needs to be emphasized that mere allegation of violation of laws is not proof, and a mere blanket invocation of public morals cannot replace the institution of civil or criminal proceedings and a judicial determination of liability or culpability. As such, we hold that moral disapproval, without more, is not a sufficient governmental interest to justify exclusion of homosexuals from participation in the party-list system. The denial of Ang Ladlads registration on purely moral grounds amounts more to a statement of dislike and disapproval of homosexuals, rather than a tool to further any substantial public interest. Respondents blanket justifications give rise to the inevitable conclusion that the COMELEC targets homosexuals themselves as a class, not because of any particular morally reprehensible act. It is this selective targeting that implicates our equal protection clause. Equal Protection Despite the absolutism of Article III, Section 1 of our Constitution, which provides "nor shall any person be denied equal protection of the laws," courts have never interpreted the provision as an absolute prohibition on classification. "Equality," said Aristotle, 33 "consists in the same treatment of similar persons." The equal protection clause guarantees that no person or class of persons shall be deprived of the same protection of laws which is enjoyed by other persons or other classes in the same place and in like 34 circumstances. Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the 35 classification as long as it bears a rational relationship to some legitimate government end. In Central Bank Employees Association, 36 Inc. v. Banko Sentral ng Pilipinas, we declared that "[i]n our jurisdiction, the standard of analysis of equal protection challenges x x x have followed the rational basis test, coupled with a deferential attitude to legislative classifications and a reluctance to invalidate 37 a law unless there is a showing of a clear and unequivocal breach of the Constitution." The COMELEC posits that the majority of the Philippine population considers homosexual conduct as immoral and unacceptable, and this constitutes sufficient reason to disqualify the petitioner. Unfortunately for the respondent, the Philippine electorate has expressed no such belief. No law exists to criminalize homosexual behavior or expressions or parties about homosexual behavior. Indeed, even if we were to assume that public opinion is as the COMELEC describes it, the asserted state interest here that is, moral disapproval of an unpopular minority is not a legitimate state interest that is sufficient to satisfy rational basis review under the equal protection clause. The COMELECs differentiation, and its unsubstantiated claim that Ang Ladlad cannot contribute to the formulation of legislation that would benefit the nation, furthers no legitimate state interest other than disapproval of or dislike for a disfavored group. From the standpoint of the political process, the lesbian, gay, bisexual, and transgender have the same interest in participating in the party-list system on the same basis as other political parties similarly situated. State intrusion in this case is equally burdensome. Hence, laws of general application should apply with equal force to LGBTs, and they deserve to participate in the party-list system on the same basis as other marginalized and under-represented sectors. It bears stressing that our finding that COMELECs act of differentiating LGBTs from heterosexuals insofar as the party-list system is concerned does not imply that any other law distinguishing between heterosexuals and homosexuals under different circumstances would similarly fail. We disagree with the OSGs position that homosexuals are a class in themselves for the purposes of the equal

protection clause. We are not prepared to single out homosexuals as a separate class meriting special or differentiated treatment. We have not received sufficient evidence to this effect, and it is simply unnecessary to make such a ruling today. Petitioner itself has merely demanded that it be recognized under the same basis as all other groups similarly situated, and that the COMELEC made "an unwarranted and impermissible classification not justified by the circumstances of the case." Freedom of Expression and Association Under our system of laws, every group has the right to promote its agenda and attempt to persuade society of the validity of its 39 position through normal democratic means. It is in the public square that deeply held convictions and differing opinions should be 40 distilled and deliberated upon. As we held in Estrada v. Escritor: In a democracy, this common agreement on political and moral ideas is distilled in the public square. Where citizens are free, every opinion, every prejudice, every aspiration, and every moral discernment has access to the public square where people deliberate the order of their life together. Citizens are the bearers of opinion, including opinion shaped by, or espousing religious belief, and these citizens have equal access to the public square. In this representative democracy, the state is prohibited from determining which convictions and moral judgments may be proposed for public deliberation. Through a constitutionally designed process, the people deliberate and decide. Majority rule is a necessary principle in this democratic governance. Thus, when public deliberation on moral judgments is finally crystallized into law, the laws will largely reflect the beliefs and preferences of the majority, i.e., the mainstream or median groups. Nevertheless, in the very act of adopting and accepting a constitution and the limits it specifies including protection of religious freedom "not only for a minority, however small not only for a majority, however large but for each of us" the majority imposes upon itself a self-denying ordinance. It promises not to do what it otherwise could do: to ride roughshod over the dissenting minorities. Freedom of expression constitutes one of the essential foundations of a democratic society, and this freedom applies not only to those that are favorably received but also to those that offend, shock, or disturb. Any restriction imposed in this sphere must be proportionate to the legitimate aim pursued. Absent any compelling state interest, it is not for the COMELEC or this Court to impose its views on the populace. Otherwise stated, the COMELEC is certainly not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one. This position gains even more force if one considers that homosexual conduct is not illegal in this country. It follows that both expressions concerning ones homosexuality and the activity of forming a political association that supports LGBT individuals are protected as well. Other jurisdictions have gone so far as to categorically rule that even overwhelming public perception that homosexual conduct 41 violates public morality does not justify criminalizing same-sex conduct. European and United Nations judicial decisions have ruled in favor of gay rights claimants on both privacy and equality grounds, citing general privacy and equal protection provisions in 42 foreign and international texts. To the extent that there is much to learn from other jurisdictions that have reflected on the issues we face here, such jurisprudence is certainly illuminating. These foreign authorities, while not formally binding on Philippine courts, may nevertheless have persuasive influence on the Courts analysis. In the area of freedom of expression, for instance, United States courts have ruled that existing free speech doctrines protect gay and lesbian rights to expressive conduct. In order to justify the prohibition of a particular expression of opinion, public institutions must show that their actions were caused by "something more than a mere desire to avoid the discomfort and unpleasantness that 43 always accompany an unpopular viewpoint." With respect to freedom of association for the advancement of ideas and beliefs, in Europe, with its vibrant human rights tradition, the European Court of Human Rights (ECHR) has repeatedly stated that a political party may campaign for a change in the law or the constitutional structures of a state if it uses legal and democratic means and the changes it proposes are consistent with democratic principles. The ECHR has emphasized that political ideas that challenge the existing order and whose realization is advocated by peaceful means must be afforded a proper opportunity of expression through the exercise of the right of association, even if such 44 ideas may seem shocking or unacceptable to the authorities or the majority of the population. A political group should not be hindered solely because it seeks to publicly debate controversial political issues in order to find solutions capable of satisfying 45 everyone concerned. Only if a political party incites violence or puts forward policies that are incompatible with democracy does it 46 fall outside the protection of the freedom of association guarantee. We do not doubt that a number of our citizens may believe that homosexual conduct is distasteful, offensive, or even defiant. They are entitled to hold and express that view. On the other hand, LGBTs and their supporters, in all likelihood, believe with equal fervor

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that relationships between individuals of the same sex are morally equivalent to heterosexual relationships. They, too, are entitled to hold and express that view. However, as far as this Court is concerned, our democracy precludes using the religious or moral views of one part of the community to exclude from consideration the values of other members of the community. Of course, none of this suggests the impending arrival of a golden age for gay rights litigants. It well may be that this Decision will only serve to highlight the discrepancy between the rigid constitutional analysis of this Court and the more complex moral sentiments of Filipinos. We do not suggest that public opinion, even at its most liberal, reflect a clear-cut strong consensus favorable to gay rights claims and we neither attempt nor expect to affect individual perceptions of homosexuality through this Decision. The OSG argues that since there has been neither prior restraint nor subsequent punishment imposed on Ang Ladlad, and its members have not been deprived of their right to voluntarily associate, then there has been no restriction on their freedom of expression or association. The OSG argues that: There was no utterance restricted, no publication censored, or any assembly denied. [COMELEC] simply exercised its authority to review and verify the qualifications of petitioner as a sectoral party applying to participate in the party-list system. This lawful exercise of duty cannot be said to be a transgression of Section 4, Article III of the Constitution. xxxx A denial of the petition for registration x x x does not deprive the members of the petitioner to freely take part in the conduct of elections. Their right to vote will not be hampered by said denial. In fact, the right to vote is a constitutionally-guaranteed right which cannot be limited. As to its right to be elected in a genuine periodic election, petitioner contends that the denial of Ang Ladlads petition has the clear and immediate effect of limiting, if not outrightly nullifying the capacity of its members to fully and equally participate in public life through engagement in the party list elections. This argument is puerile. The holding of a public office is not a right but a privilege subject to limitations imposed by law. x x x
47

The OSG fails to recall that petitioner has, in fact, established its qualifications to participate in the party-list system, and as advanced by the OSG itself the moral objection offered by the COMELEC was not a limitation imposed by law. To the extent, therefore, that the petitioner has been precluded, because of COMELECs action, from publicly expressing its views as a political party and participating on an equal basis in the political process with other equally-qualified party-list candidates, we find that there has, indeed, been a transgression of petitioners fundamental rights. Non-Discrimination and International Law In an age that has seen international law evolve geometrically in scope and promise, international human rights law, in particular, has grown dynamically in its attempt to bring about a more just and humane world order. For individuals and groups struggling with inadequate structural and governmental support, international human rights norms are particularly significant, and should be effectively enforced in domestic legal systems so that such norms may become actual, rather than ideal, standards of conduct. Our Decision today is fully in accord with our international obligations to protect and promote human rights. In particular, we explicitly recognize the principle of non-discrimination as it relates to the right to electoral participation, enunciated in the UDHR and the ICCPR. The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows: Article 26 All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

In this context, the principle of non-discrimination requires that laws of general application relating to elections be applied equally to all persons, regardless of sexual orientation. Although sexual orientation is not specifically enumerated as a status or ratio for discrimination in Article 26 of the ICCPR, the ICCPR Human Rights Committee has opined that the reference to "sex" in Article 26 48 should be construed to include "sexual orientation." Additionally, a variety of United Nations bodies have declared discrimination 49 on the basis of sexual orientation to be prohibited under various international agreements. The UDHR provides: Article 21. (1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. Likewise, the ICCPR states: Article 25 Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country. As stated by the CHR in its Comment-in-Intervention, the scope of the right to electoral participation is elaborated by the Human Rights Committee in its General Comment No. 25 (Participation in Public Affairs and the Right to Vote) as follows: 1. Article 25 of the Covenant recognizes and protects the right of every citizen to take part in the conduct of public affairs, the right to vote and to be elected and the right to have access to public service. Whatever form of constitution or government is in force, the Covenant requires States to adopt such legislative and other measures as may be necessary to ensure that citizens have an effective opportunity to enjoy the rights it protects. Article 25 lies at the core of democratic government based on the consent of the people and in conformity with the principles of the Covenant. xxxx 15. The effective implementation of the right and the opportunity to stand for elective office ensures that persons entitled to vote have a free choice of candidates. Any restrictions on the right to stand for election, such as minimum age, must be justifiable on objective and reasonable criteria. Persons who are otherwise eligible to stand for election should not be excluded by unreasonable or discriminatory requirements such as education, residence or descent, or by reason of political affiliation. No person should suffer discrimination or disadvantage of any kind because of that person's candidacy. States parties should indicate and explain the 50 legislative provisions which exclude any group or category of persons from elective office. We stress, however, that although this Court stands willing to assume the responsibility of giving effect to the Philippines international law obligations, the blanket invocation of international law is not the panacea for all social ills. We refer now to the petitioners invocation of the Yogyakarta Principles (the Application of International Human Rights Law In Relation to Sexual 51 Orientation and Gender Identity), which petitioner declares to reflect binding principles of international law. At this time, we are not prepared to declare that these Yogyakarta Principles contain norms that are obligatory on the Philippines. There are declarations and obligations outlined in said Principles which are not reflective of the current state of international law, and do not find basis in any of the sources of international law enumerated under Article 38(1) of the Statute of the International 52 Court of Justice. Petitioner has not undertaken any objective and rigorous analysis of these alleged principles of international law to ascertain their true status.

We also hasten to add that not everything that society or a certain segment of society wants or demands is automatically a human right. This is not an arbitrary human intervention that may be added to or subtracted from at will. It is unfortunate that much of what passes for human rights today is a much broader context of needs that identifies many social desires as rights in order to further claims that international law obliges states to sanction these innovations. This has the effect of diluting real human rights, and is a result of the notion that if "wants" are couched in "rights" language, then they are no longer controversial.1avvphi1 Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration formulated by various international law professors, are at best de lege ferenda and do not constitute binding obligations on the Philippines. Indeed, so much of contemporary international law is characterized by the "soft law" nomenclature, i.e., international law is full of principles that promote international cooperation, harmony, and respect for human rights, most of which amount to no more than well-meaning 53 desires, without the support of either State practice or opinio juris. As a final note, we cannot help but observe that the social issues presented by this case are emotionally charged, societal attitudes are in flux, even the psychiatric and religious communities are divided in opinion. This Courts role is not to impose its own view of acceptable behavior. Rather, it is to apply the Constitution and laws as best as it can, uninfluenced by public opinion, and confident in the knowledge that our democracy is resilient enough to withstand vigorous debate. WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the Commission on Elections dated November 11, 2009 and December 16, 2009 in SPP No. 09-228 (PL) are hereby SET ASIDE. The Commission on Elections is directed to GRANT petitioners application for party-list accreditation. SO ORDERED. MARIANO C. DEL CASTILLO Associate Justice WE CONCUR: REYNATO S. PUNO Chief Justice

ANTONIO T. CARPIO Associate Justice CONCHITA CARPIO MORALES Associate Justice ANTONIO EDUARDO B. NACHURA Associate Justice ARTURO D. BRION Associate Justice LUCAS P. BERSAMIN Associate Justice MARTIN S. VILLARAMA, JR. Associate Justice

RENATO C. CORONA Associate Justice PRESBITERO J. VELASCO, JR. Associate Justice

Associate Justice DIOSDADO M. PERALTA Associate Justice ROBERTO A. ABAD Associate Justice JOSE P. PEREZ Associate Justice

JOSE C. MENDOZA Associate Justice CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court. REYNATO S. PUNO Chief Justice

SEPARATE CONCURRING OPINION PUNO, C.J.: I concur with the groundbreaking ponencia of my esteemed colleague, Mr. Justice Mariano C. del Castillo. Nonetheless, I respectfully submit this separate opinion to underscore some points that I deem significant. FIRST. The assailed Resolutions of the Commission on Elections (COMELEC) run afoul of the non-establishment clause of the Constitution. There was cypher effort on the part of the COMELEC to couch its reasoning in legal much less constitutional terms, as it denied Ang Ladlads petition for registration as a sectoral party principally on the ground that it "tolerates immorality which 2 3 offends religious (i.e., Christian and Muslim ) beliefs." To be sure, the COMELECs ruling is completely antithetical to the fundamental rule that "[t]he public morality expressed in the law is necessarily secular[,] for in our constitutional order, the religion 4 clauses prohibit the state from establishing a religion, including the morality it sanctions." As we explained in Estrada v. 5 Escritor, the requirement of an articulable and discernible secular purpose is meant to give flesh to the constitutional policy of full religious freedom for all, viz.: Religion also dictates "how we ought to live" for the nature of religion is not just to know, but often, to act in accordance with man's "views of his relations to His Creator." But the Establishment Clause puts a negative bar against establishment of this morality arising from one religion or the other, and implies the affirmative "establishment" of a civil order for the resolution of public moral disputes. This agreement on a secular mechanism is the price of ending the "war of all sects against all"; the establishment of a secular public moral order is the social contract produced by religious truce. Thus, when the law speaks of "immorality" in the Civil Service Law or "immoral" in the Code of Professional Responsibility for lawyers, or "public morals" in the Revised Penal Code, or "morals" in the New Civil Code, or "moral character" in the Constitution, the distinction between public and secular morality on the one hand, and religious morality, on the other, should be kept in mind. The morality referred to in the law is public and necessarily secular, not religious as the dissent of Mr. Justice Carpio holds. "Religious teachings as expressed in public debate may influence the civil public order but public moral disputes may be resolved only on grounds articulable in secular terms." Otherwise, if government relies upon religious beliefs in formulating public policies and morals, the resulting policies and morals would require conformity to what some might regard as religious programs or agenda. The non-believers would therefore be compelled to conform to a standard of conduct buttressed by a religious belief, i.e., to a "compelled religion;" anathema to religious freedom. Likewise, if government based its actions upon religious beliefs, it would tacitly approve or endorse that belief and thereby also tacitly disapprove contrary religious or non-religious views that would not support the policy. As a result, government will not provide full religious freedom for all its citizens, or even make it appear that those whose beliefs are disapproved are second-class citizens. Expansive religious freedom therefore requires that government be neutral in 6 matters of religion; governmental reliance upon religious justification is inconsistent with this policy of neutrality. (citations omitted and italics supplied) Consequently, the assailed resolutions of the COMELEC are violative of the constitutional directive that no religious test shall be 7 required for the exercise of civil or political rights. Ang Ladlads right of political participation was unduly infringed when the COMELEC, swayed by the private biases and personal prejudices of its constituent members, arrogated unto itself the role of a religious court or worse, a morality police. The COMELEC attempts to disengage itself from this "excessive entanglement" with religion by arguing that we "cannot ignore our 9 strict religious upbringing, whether Christian or Muslim" since the "moral precepts espoused by [these] religions have slipped into 10 society and are now publicly accepted moral norms." However, as correctly observed by Mr. Justice del Castillo, the Philippines has not seen fit to disparage homosexual conduct as to actually criminalize it. Indeed, even if the State has legislated to this effect, 11 the law is vulnerable to constitutional attack on privacy grounds. These alleged "generally accepted public morals" have not, in reality, crossed over from the religious to the secular sphere.
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Some people may find homosexuality and bisexuality deviant, odious, and offensive. Nevertheless, private discrimination, however unfounded, cannot be attributed or ascribed to the State. Mr. Justice Kennedy, speaking for the United States (U.S.) Supreme Court 12 in the landmark case of Lawrence v. Texas, opined: It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the law. "Our obligation is to define the 13 liberty of all, not to mandate our own moral code." SECOND. The COMELEC capitalized on Ang Ladlads definition of the term "sexual orientation," as well as its citation of the number 15 of Filipino men who have sex with men, as basis for the declaration that the party espouses and advocates sexual immorality. This position, however, would deny homosexual and bisexual individuals a fundamental element of personal identity and a legitimate exercise of personal liberty. For, the "ability to *independently+ define ones identity that is central to any concept of liberty" cannot 16 truly be exercised in a vacuum; we all depend on the "emotional enrichment from close ties with others." As Mr. Justice Blackmun 17 so eloquently said in his stinging dissent in Bowers v. Hardwick (overturned by the United States Supreme Court seventeen years 18 later in Lawrence v. Texas ): Only the most willful blindness could obscure the fact that sexual intimacy is "a sensitive, key relationship of human existence, 19 central to family life, community welfare, and the development of human personality[.]" The fact that individuals define themselves in a significant way through their intimate sexual relationships with others suggests, in a Nation as diverse as ours, that there may be many "right" ways of conducting those relationships, and that much of the richness of a relationship will come from 20 the freedom an individual has to choose the form and nature of these intensely personal bonds. In a variety of circumstances we have recognized that a necessary corollary of giving individuals freedom to choose how to conduct their lives is acceptance of the fact that different individuals will make different choices. For example, in holding that the clearly important state interest in public education should give way to a competing claim by the Amish to the effect that extended formal schooling threatened their way of life, the Court declared: "There can be no assumption that today's majority is right and the Amish and others like them are wrong. A way of life that is odd or even erratic but interferes with no rights or interests of others is not to 21 be condemned because it is different." The Court claims that its decision today merely refuses to recognize a fundamental right to engage in homosexual sodomy; what the Court really has refused to recognize is the fundamental interest all individuals have in controlling the nature of their intimate associations with others. (italics supplied) It has been said that freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of 23 thought, belief, expression, and certain intimate conduct. These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the due 24 process clause. At the heart of liberty is the right to define ones own concept of existence, of meaning, of the universe, and of the 25 mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under 26 27 compulsion of the State. Lawrence v. Texas is again instructive: To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice. (italics supplied)
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THIRD. The ponencia of Mr. Justice del Castillo refused to characterize homosexuals and bisexuals as a class in themselves for purposes of the equal protection clause. Accordingly, it struck down the assailed Resolutions using the most liberal basis of judicial scrutiny, the rational basis test, according to which government need only show that the challenged classification is rationally related to serving a legitimate state interest. I humbly submit, however, that a classification based on gender or sexual orientation is a quasi-suspect classification, as to trigger a heightened level of review. Preliminarily, in our jurisdiction, the standard and analysis of equal protection challenges in the main have followed the rational basis test, coupled with a deferential attitude to legislative classifications and a reluctance to invalidate a law unless there is a 28 showing of a clear and unequivocal breach of the Constitution. However, Central Bank Employees Association, Inc. v. Bangko 29 Sentral ng Pilipinas, carved out an exception to this general rule, such that prejudice to persons accorded special protection by the Constitution requires stricter judicial scrutiny than mere rationality, viz.: Congress retains its wide discretion in providing for a valid classification, and its policies should be accorded recognition and respect by the courts of justice except when they run afoul of the Constitution. The deference stops where the classification violates a fundamental right, or prejudices persons accorded special protection by the Constitution. When these violations arise, this Court must discharge its primary role as the vanguard of constitutional guaranties, and require a stricter and more exacting adherence to constitutional limitations. Rational basis should not suffice. (citations omitted and italics supplied) Considering thus that labor enjoys such special and protected status under our fundamental law, the Court ruled in favor of the Central Bank Employees Association, Inc. in this wise: While R.A. No. 7653 started as a valid measure well within the legislature's power, we hold that the enactment of subsequent laws exempting all rank-and-file employees of other GFIs leeched all validity out of the challenged proviso. xxxx According to petitioner, the last proviso of Section 15(c), Article II of R.A. No. 7653 is also violative of the equal protection clause because after it was enacted, the charters of the GSIS, LBP, DBP and SSS were also amended, but the personnel of the latter GFIs were all exempted from the coverage of the SSL. Thus, within the class of rank-and-file personnel of GFIs, the BSP rank-and-file are also discriminated upon. Indeed, we take judicial notice that after the new BSP charter was enacted in 1993, Congress also undertook the amendment of the charters of the GSIS, LBP, DBP and SSS, and three other GFIs, from 1995 to 2004, viz.: xxxx It is noteworthy, as petitioner points out, that the subsequent charters of the seven other GFIs share this common proviso: a blanket exemption of all their employees from the coverage of the SSL, expressly or impliedly... xxxx The abovementioned subsequent enactments, however, constitute significant changes in circumstance that considerably alter the reasonability of the continued operation of the last proviso of Section 15(c), Article II of Republic Act No. 7653, thereby exposing the proviso to more serious scrutiny. This time, the scrutiny relates to the constitutionality of the classification albeit made indirectly as a consequence of the passage of eight other laws between the rank-and-file of the BSP and the seven other GFIs. The classification must not only be reasonable, but must also apply equally to all members of the class. The proviso may be fair on its face and impartial in appearance but it cannot be grossly discriminatory in its operation, so as practically to make unjust distinctions between persons who are without differences. Stated differently, the second level of inquiry deals with the following questions: Given that Congress chose to exempt other GFIs (aside the BSP) from the coverage of the SSL, can the exclusion of the rank-and-file employees of the BSP stand constitutional scrutiny in the light of the fact that Congress did not exclude the rank-and-file employees of the other GFIs? Is Congress' power to classify so unbridled as to sanction unequal and discriminatory treatment, simply because the inequity manifested itself, not instantly through a single overt act, but gradually and progressively, through seven separate acts of Congress? Is the right to equal protection of the law bounded in time and space that: (a) the right can only be invoked against a classification made directly and

deliberately, as opposed to a discrimination that arises indirectly, or as a consequence of several other acts; and (b) is the legal analysis confined to determining the validity within the parameters of the statute or ordinance (where the inclusion or exclusion is articulated), thereby proscribing any evaluation vis--vis the grouping, or the lack thereof, among several similar enactments made over a period of time? In this second level of scrutiny, the inequality of treatment cannot be justified on the mere assertion that each exemption (granted to the seven other GFIs) rests "on a policy determination by the legislature." All legislative enactments necessarily rest on a policy determination even those that have been declared to contravene the Constitution. Verily, if this could serve as a magic wand to sustain the validity of a statute, then no due process and equal protection challenges would ever prosper. There is nothing inherently sacrosanct in a policy determination made by Congress or by the Executive; it cannot run riot and overrun the ramparts of protection of the Constitution. xxxx In the case at bar, it is precisely the fact that as regards the exemption from the SSL, there are no characteristics peculiar only to the seven GFIs or their rank-and-file so as to justify the exemption which BSP rank-and-file employees were denied (not to mention the anomaly of the SEC getting one). The distinction made by the law is not only superficial, but also arbitrary. It is not based on substantial distinctions that make real differences between the BSP rank-and-file and the seven other GFIs. xxxx The disparity of treatment between BSP rank-and-file and the rank-and-file of the other seven GFIs definitely bears the unmistakable badge of invidious discrimination no one can, with candor and fairness, deny the discriminatory character of the subsequent blanket and total exemption of the seven other GFIs from the SSL when such was withheld from the BSP. Alikes are being treated as unalikes without any rational basis. xxxx Thus, the two-tier analysis made in the case at bar of the challenged provision, and its conclusion of unconstitutionality by subsequent operation, are in cadence and in consonance with the progressive trend of other jurisdictions and in international law. There should be no hesitation in using the equal protection clause as a major cutting edge to eliminate every conceivable irrational discrimination in our society. Indeed, the social justice imperatives in the Constitution, coupled with the special status and protection afforded to labor, compel this approach. Apropos the special protection afforded to labor under our Constitution and international law, we held in International School Alliance of Educators v. Quisumbing: That public policy abhors inequality and discrimination is beyond contention. Our Constitution and laws reflect the policy against these evils. The Constitution in the Article on Social Justice and Human Rights exhorts Congress to "give highest priority to the enactment of measures that protect and enhance the right of all people to human dignity, reduce social, economic, and political inequalities." The very broad Article 19 of the Civil Code requires every person, "in the exercise of his rights and in the performance of his duties, [to] act with justice, give everyone his due, and observe honesty and good faith." International law, which springs from general principles of law, likewise proscribes discrimination. General principles of law include principles of equity, i.e., the general principles of fairness and justice, based on the test of what is reasonable. The Universal Declaration of Human Rights, the International Covenant on Economic, Social, and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention against Discrimination in Education, the Convention (No. 111) Concerning Discrimination in Respect of Employment and Occupation all embody the general principle against discrimination, the very antithesis of fairness and justice. The Philippines, through its Constitution, has incorporated this principle as part of its national laws. In the workplace, where the relations between capital and labor are often skewed in favor of capital, inequality and discrimination by the employer are all the more reprehensible. The Constitution specifically provides that labor is entitled to "humane conditions of work." These conditions are not restricted to the physical workplace the factory, the office or the field but include as well the manner by which employers treat their employees.

The Constitution also directs the State to promote "equality of employment opportunities for all." Similarly, the Labor Code provides that the State shall "ensure equal work opportunities regardless of sex, race or creed." It would be an affront to both the spirit and letter of these provisions if the State, in spite of its primordial obligation to promote and ensure equal employment opportunities, closes its eyes to unequal and discriminatory terms and conditions of employment. xxx xxx xxx

Notably, the International Covenant on Economic, Social, and Cultural Rights, in Article 7 thereof, provides: The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and [favorable] conditions of work, which ensure, in particular: a. Remuneration which provides all workers, as a minimum, with: i. Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work; xxx xxx xxx

The foregoing provisions impregnably institutionalize in this jurisdiction the long honored legal truism of "equal pay for equal work." Persons who work with substantially equal qualifications, skill, effort and responsibility, under similar conditions, should be paid similar salaries. xxxx Under most circumstances, the Court will exercise judicial restraint in deciding questions of constitutionality, recognizing the broad discretion given to Congress in exercising its legislative power. Judicial scrutiny would be based on the "rational basis" test, and the legislative discretion would be given deferential treatment. But if the challenge to the statute is premised on the denial of a fundamental right, or the perpetuation of prejudice against persons favored by the Constitution with special protection, judicial scrutiny ought to be more strict. A weak and watered down view would call for the abdication of this Court's solemn duty to strike down any law repugnant to the Constitution and the rights it enshrines. This is true whether the actor committing the unconstitutional act is a private person or the government itself or one of its instrumentalities. Oppressive acts will be struck down regardless of the character or nature of the actor. In the case at bar, the challenged proviso operates on the basis of the salary grade or officer-employee status. It is akin to a distinction based on economic class and status, with the higher grades as recipients of a benefit specifically withheld from the lower grades. Officers of the BSP now receive higher compensation packages that are competitive with the industry, while the poorer, lowsalaried employees are limited to the rates prescribed by the SSL. The implications are quite disturbing: BSP rank-and-file employees are paid the strictly regimented rates of the SSL while employees higher in rank possessing higher and better education and opportunities for career advancement are given higher compensation packages to entice them to stay. Considering that majority, if not all, the rank-and-file employees consist of people whose status and rank in life are less and limited, especially in terms of job marketability, it is they and not the officers who have the real economic and financial need for the adjustment. This is in accord with the policy of the Constitution "to free the people from poverty, provide adequate social services, extend to them a decent standard of living, and improve the quality of life for all." Any act of Congress that runs counter to this constitutional desideratum deserves strict scrutiny by this Court before it can pass muster. (citations omitted and italics supplied) Corollarily, American case law provides that a state action questioned on equal protection grounds is subject to one of three levels of judicial scrutiny. The level of review, on a sliding scale basis, varies with the type of classification utilized and the nature of the 30 right affected. If a legislative classification disadvantages a "suspect class" or impinges upon the exercise of a "fundamental right," then the courts will employ strict scrutiny and the statute must fall unless the government can demonstrate that the classification has been precisely 31 tailored to serve a compelling governmental interest. Over the years, the United States Supreme Court has determined that suspect classes for equal protection purposes include classifications based on race, religion, alienage, national origin, and 32 ancestry. The underlying rationale of this theory is that where legislation affects discrete and insular minorities, the presumption of

constitutionality fades because traditional political processes may have broken down. In such a case, the State bears a heavy 34 burden of justification, and the government action will be closely scrutinized in light of its asserted purpose. On the other hand, if the classification, while not facially invidious, nonetheless gives rise to recurring constitutional difficulties, or if 35 a classification disadvantages a "quasi-suspect class," it will be treated under intermediate or heightened review. To survive intermediate scrutiny, the law must not only further an important governmental interest and be substantially related to that 36 interest, but the justification for the classification must be genuine and must not depend on broad generalizations. Noteworthy, 37 and of special interest to us in this case, quasi-suspect classes include classifications based on gender or illegitimacy. If neither strict nor intermediate scrutiny is appropriate, then the statute will be tested for mere rationality. This is a relatively relaxed standard reflecting the Courts awareness that the drawing of lines which creates distinctions is peculiarly a legislative task 39 and an unavoidable one. The presumption is in favor of the classification, of the reasonableness and fairness of state action, and of 40 legitimate grounds of distinction, if any such grounds exist, on which the State acted. Instead of adopting a rigid formula to determine whether certain legislative classifications warrant more demanding constitutional 41 analysis, the United States Supreme Court has looked to four factors, thus: (1) The history of invidious discrimination against the class burdened by the legislation;
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(2) Whether the characteristics that distinguish the class indicate a typical class member's ability to contribute to society; (3) Whether the distinguishing characteristic is "immutable" or beyond the class members' control; and (4) The political power of the subject class.
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43

These factors, it must be emphasized, are not constitutive essential elements of a suspect or quasi-suspect class, as to individually 46 demand a certain weight. The U.S. Supreme Court has applied the four factors in a flexible manner; it has neither required, nor 47 even discussed, every factor in every case. Indeed, no single talisman can define those groups likely to be the target of classifications offensive to the equal protection clause and therefore warranting heightened or strict scrutiny; experience, not 48 abstract logic, must be the primary guide. In any event, the first two factors history of intentional discrimination and relationship of classifying characteristic to a person's 49 ability to contribute have always been present when heightened scrutiny has been applied. They have been critical to the 50 analysis and could be considered as prerequisites to concluding a group is a suspect or quasi-suspect class. However, the last two factors immutability of the characteristic and political powerlessness of the group are considered simply to supplement the 51 analysis as a means to discern whether a need for heightened scrutiny exists. Guided by this framework, and considering further that classifications based on sex or gender albeit on a male/female, man/woman basis have been previously held to trigger heightened scrutiny, I respectfully submit that classification on the basis of sexual orientation (i.e., homosexuality and/or bisexuality) is a quasi-suspect classification that prompts intermediate review. The first consideration is whether homosexuals have suffered a history of purposeful unequal treatment because of their sexual 52 orientation. One cannot, in good faith, dispute that gay and lesbian persons historically have been, and continue to be, the target 53 of purposeful and pernicious discrimination due solely to their sexual orientation. Paragraphs 6 and 7 of Ang Ladlads Petition for Registration for party-list accreditation in fact state: 6. There have been documented cases of discrimination and violence perpetuated against the LGBT Community, among which are: (a) Effeminate or gay youths being beaten up by their parents and/or guardians to make them conform to standard gender norms of behavior; (b) Fathers and/or guardians who allow their daughters who are butch lesbians to be raped[, so as] to "cure" them into becoming straight women; (c) Effeminate gays and butch lesbians are kicked out of school, NGOs, and choirs because of their identity;

(d) Effeminate youths and masculine young women are refused admission from (sic) certain schools, are suspended or are automatically put on probation; (e) Denial of jobs, promotions, trainings and other work benefits once ones sexual orientation and gender identity is (sic) revealed; (f) Consensual partnerships or relationships by gays and lesbians who are already of age, are broken up by their parents or guardians using the [A]nti-kidnapping [L]aw; (g) Pray-overs, exorcisms, and other religious cures are performed on gays and lesbians to "reform" them; (h) Young gays and lesbians are forcibly subjected to psychiatric counseling and therapy to cure them[,] despite the de-listing (sic) of homosexuality and lesbianism as a mental disorder by the American Psychiatric Association; (i) Transgenders, or individuals who were born mail but who self-identity as women and dress as such, are denied entry or services in certain restaurants and establishments; and (j) Several murders from the years 2003-3006 were committed against gay men, but were not acknowledged by police as hate crimes or violent acts of bigotry. 7. In the recent May 2009 US asylum case of Philip Belarmino, he testified that as a young gay person in the Philippines, he was subjected to a variety of sexual abuse and violence, including repeated rapes[,] which he could not report to [the] police [or speak of] to his own parents. Accordingly, this history of discrimination suggests that any legislative burden placed on lesbian and gay people as a class is "more 54 likely than others to reflect deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective." A second relevant consideration is whether the character-in-issue is related to the persons ability to contribute to 55 society. Heightened scrutiny is applied when the classification bears no relationship to this ability; the existence of this factor 56 indicates the classification is likely based on irrelevant stereotypes and prejudice. Insofar as sexual orientation is concerned, it is 57 gainful to repair to Kerrigan v. Commissioner of Public Health, viz.: The defendants also concede that sexual orientation bears no relation to a person's ability to participate in or contribute to society, a fact that many courts have acknowledged, as well. x x x If homosexuals were afflicted with some sort of impediment to their ability to perform and to contribute to society, the entire phenomenon of staying in the *c+loset and of coming out would not exist; their impediment would betray their status. x x x In this critical respect, gay persons stand in stark contrast to other groups that have been denied suspect or quasi-suspect class recognition, despite a history of discrimination, because the distinguishing characteristics of those groups adversely affect their ability or capacity to perform certain functions or to discharge certain responsibilities in 58 society. Unlike the characteristics unique to those groups, however, "homosexuality bears no relation at all to [an] individual's ability to 59 contribute fully to society." Indeed, because an individual's homosexual orientation "implies no impairment in judgment, stability, 60 reliability or general social or vocational capabilities"; the observation of the United States Supreme Court that race, alienage and national origin -all suspect classes entitled to the highest level of constitutional protection- "are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and 61 antipathy" is no less applicable to gay persons. (italics supplied) Clearly, homosexual orientation is no more relevant to a person's ability to perform and contribute to society than is heterosexual 62 orientation. A third factor that courts have considered in determining whether the members of a class are entitled to heightened protection for equal protection purposes is whether the attribute or characteristic that distinguishes them is immutable or otherwise beyond their 63 control. Of course, the characteristic that distinguishes gay persons from others and qualifies them for recognition as a distinct and discrete group is the characteristic that historically has resulted in their social and legal ostracism, namely, their attraction to 64 persons of the same sex.

Immutability is a factor in determining the appropriate level of scrutiny because the inability of a person to change a characteristic that is used to justify different treatment makes the discrimination violative of the rather "basic concept of our system that legal 65 burdens should bear some relationship to individual responsibility." However, the constitutional relevance of the immutability 66 factor is not reserved to those instances in which the trait defining the burdened class is absolutely impossible to change. That is, the immutability prong of the suspectness inquiry surely is satisfied when the identifying trait is "so central to a person's identity 67 that it would be abhorrent for government to penalize a person for refusing to change [it]." Prescinding from these premises, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment, because a person's sexual orientation is so integral an aspect of one's 68 identity. Consequently, because sexual orientation "may be altered [if at all] only at the expense of significant damage to the individuals sense of self," classifications based thereon "are no less entitled to consideration as a suspect or quasi-suspect class than 69 any other group that has been deemed to exhibit an immutable characteristic." Stated differently, sexual orientation is not the 70 type of human trait that allows courts to relax their standard of review because the barrier is temporary or susceptible to self-help. The final factor that bears consideration is whether the group is "a minority or politically powerless." However, the political 72 powerlessness factor of the level-of-scrutiny inquiry does not require a showing of absolute political powerlessness. Rather, the touchstone of the analysis should be "whether the group lacks sufficient political strength to bring a prompt end to the prejudice 73 and discrimination through traditional political means." Applying this standard, it would not be difficult to conclude that gay persons are entitled to heightened constitutional protection 74 despite some recent political progress. The discrimination that they have suffered has been so pervasive and severe even though their sexual orientation has no bearing at all on their ability to contribute to or perform in society that it is highly unlikely that 75 legislative enactments alone will suffice to eliminate that discrimination. Furthermore, insofar as the LGBT community plays a role 76 in the political process, it is apparent that their numbers reflect their status as a small and insular minority. It is therefore respectfully submitted that any state action singling lesbians, gays, bisexuals and trans-genders out for disparate 77 treatment is subject to heightened judicial scrutiny to ensure that it is not the product of historical prejudice and stereotyping. In this case, the assailed Resolutions of the COMELEC unmistakably fail the intermediate level of review. Regrettably, they betray no more than bigotry and intolerance; they raise the inevitable inference that the disadvantage imposed is born of animosity toward 78 the class of persons affected (that is, lesbian, gay, bisexual and trans-gendered individuals). In our constitutional system, status79 based classification undertaken for its own sake cannot survive. FOURTH. It has been suggested that the LGBT community cannot participate in the party-list system because it is not a "marginalized 80 81 and underrepresented sector" enumerated either in the Constitution or Republic Act No. (RA) 7941. However, this position is 82 belied by our ruling in Ang Bagong Bayani-OFW Labor Party v. COMELEC, where we clearly held that the enumeration of marginalized and underrepresented sectors in RA 7941 is not exclusive. I likewise see no logical or factual obstacle to classifying the members of the LGBT community as marginalized and underrepresented, considering their long history (and indeed, ongoing narrative) of persecution, discrimination, and pathos. In my humble view, marginalization for purposes of party-list representation encompasses social marginalization as well. To hold otherwise is tantamount to trivializing socially marginalized groups as "mere passive recipients of the States benevolence" and denying them the right to "participate directly [in the mainstream of representative democracy] in the enactment of laws designed 83 to benefit them." The party-list system could not have been conceptualized to perpetuate this injustice. Accordingly, I vote to grant the petition. REYNATO S. PUNO Chief Justice
71

DISSENTING OPINION CORONA, J.:

Stripped of the complicated and contentious issues of morality and religion, I believe the basic issue here is simple: does petitioner Ang Ladlad LGBT Party qualify, under the terms of the Constitution and RA 7941, as a marginalized and underrepresented sector in the party-list system? The relevant facts are likewise relatively uncomplicated. Petitioner seeks accreditation by the respondent Commission on Elections as a political organization of a marginalized and underrepresented sector under the party-list system. Finding that petitioner is not a marginalized sector under RA 7941, the Commission on Elections denied its petition. A System For Marginalized And Underrepresented Sectors The party-list system is an innovation of the 1987 Constitution. It is essentially a tool for the advancement of social justice with the fundamental purpose of affording opportunity to marginalized and underrepresented sectors to participate in the shaping of public policy and the crafting of national laws. It is premised on the proposition that the advancement of the interests of the marginalized sectors contributes to the advancement of the common good and of our nations democratic ideals. But who are the marginalized and underrepresented sectors for whom the party-list system was designed? The Texts of the Constitution And of RA 7941 The resolution of a constitutional issue primarily requires that the text of the fundamental law be consulted. Section 5(2), Article VI of the Constitution directs the course of our present inquiry. It provides: SEC. 5. x x x (2) The party-list representatives shall constitute twenty per centum of the total number of Representatives including those under the party-list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector. (emphasis supplied) The Constitution left the matter of determining the groups or sectors that may qualify as "marginalized" to the hands of Congress. Pursuant to this constitutional mandate, RA 7941 or the Party-List System Act was enacted in 1995. The law provides: Section 2. Declaration of policy. The State shall promote proportional representation in the election of representatives to the House of Representatives through a party-list system of registered national, regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens belonging to marginalized and under-represented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives. Towards this end, the State shall develop and guarantee a full, free and open party system in order to attain the broadest possible representation of party, sectoral or group interests in the House of Representatives by enhancing their chances to compete for and win seats in the legislature, and shall provide the simplest scheme possible. xxx xxx xxx
1

Section 5. Registration. Any organized group of persons may register as a party, organization or coalition for purposes of the party-list system by filing with the COMELEC not later than ninety (90) days before the election a petition verified by its president or secretary stating its desire to participate in the party-list system as a national, regional or sectoral party or organization or a coalition of such parties or organizations, attaching thereto its constitution, by-laws, platform or program of government, list of officers, coalition agreement and other relevant information as the COMELEC may require: Provided, That the sectors shall include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals. The COMELEC shall publish the petition in at least two (2) national newspapers of general circulation.

The COMELEC shall, after due notice and hearing, resolve the petition within fifteen (15) days from the date it was submitted for decision but in no case not later than sixty (60) days before election. Section 6. Refusal and/or Cancellation of Registration. The COMELEC may, motu propio or upon verified complaint of any interested party, refuse or cancel, after due notice and hearing, the registration of any national, regional or sectoral party, organization or coalition on any of the following grounds: (1) It is a religious sect or denomination, organization or association, organized for religious purposes; (2) It advocates violence or unlawful means to seek its goal; (3) It is a foreign party or organization; (4) It is receiving support from any foreign government, foreign political party, foundation, organization, whether directly or through any of its officers or members or indirectly through third parties for partisan election purposes; (5) It violates or fails to comply with laws, rules or regulations relating to elections; (6) It declares untruthful statements in its petition; (7) It has ceased to exist for at least one (1) year; or (8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two per centum (2%) of the votes cast under the party-list system in the two (2) preceding elections for the constituency in which it has registered. (emphasis supplied) The Courts Previous Pronouncements As the oracle of the Constitution, this Court divined the intent of the party-list system and defined its meaning in Ang Bagong Bayani2 OFW Labor Party v. Commission on Elections: That political parties may participate in the party-list elections does not mean, however, that any political party -- or any organization or group for that matter -- may do so. The requisite character of these parties or organizations must be consistent with the purpose of the party-list system, as laid down in the Constitution and RA 7941. x x x The Marginalized and Underrepresented to Become Lawmakers Themselves [Section 2 of RA 7941] mandates a state policy of promoting proportional representation by means of the Filipino-style party-list system, which will "enable" the election to the House of Representatives of Filipino citizens, 1. who belong to marginalized and underrepresented sectors, organizations and parties; and 2. who lack well-defined constituencies; but 3. who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole. The key words in this policy are "proportional representation," "marginalized and underrepresented," and "lack [of] well-defined constituencies." "Proportional representation" here does not refer to the number of people in a particular district, because the party-list election is national in scope. Neither does it allude to numerical strength in a distressed or oppressed group. Rather, it refers to the representation of the "marginalized and underrepresented" as exemplified by the enumeration in Section 5 of the law; namely, "labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals."

However, it is not enough for the candidate to claim representation of the marginalized and underrepresented, because representation is easy to claim and to feign. The party-list organization or party must factually and truly represent the marginalized and underrepresented constituencies mentioned in Section 5. Concurrently, the persons nominated by the party-list candidateorganization must be "Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties." Finally, "lack of well-defined constituenc[y]" refers to the absence of a traditionally identifiable electoral group, like voters of a congressional district or territorial unit of government. Rather, it points again to those with disparate interests identified with the "marginalized or underrepresented." In the end, the role of the Comelec is to see to it that only those Filipinos who are "marginalized and underrepresented" become members of Congress under the party-list system, Filipino-style. The intent of the Constitution is clear: to give genuine power to the people, not only by giving more law to those who have less in life, but more so by enabling them to become veritable lawmakers themselves. Consistent with this intent, the policy of the implementing law, we repeat, is likewise clear: "to enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, x x x, to become members of the House of Representatives." Where the language of the law is clear, it must be applied according to its express terms. The marginalized and underrepresented sectors to be represented under the party-list system are enumerated in Section 5 of RA 7941, which states: "SEC. 5. Registration. -- Any organized group of persons may register as a party, organization or coalition for purposes of the partylist system by filing with the COMELEC not later than ninety (90) days before the election a petition verified by its president or secretary stating its desire to participate in the party-list system as a national, regional or sectoral party or organization or a coalition of such parties or organizations, attaching thereto its constitution, by-laws, platform or program of government, list of officers, coalition agreement and other relevant information as the COMELEC may require: Provided, that the sector shall include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals." While the enumeration of marginalized and underrepresented sectors is not exclusive, it demonstrates the clear intent of the law that not all sectors can be represented under the party-list system. It is a fundamental principle of statutory construction that words employed in a statute are interpreted in connection with, and their meaning is ascertained by reference to, the words and the phrases with which they are associated or related. Thus, the meaning of a term in a statute may be limited, qualified or specialized by those in immediate association. xxx xxx xxx

Indeed, the law crafted to address the peculiar disadvantages of Payatas hovel dwellers cannot be appropriated by the mansion owners of Forbes Park. The interests of these two sectors are manifestly disparate; hence, the OSGs position to treat them similarly defies reason and common sense. In contrast, and with admirable candor, Atty. Lorna Patajo-Kapunan admitted during the Oral Argument that a group of bankers, industrialists and sugar planters could not join the party-list system as representatives of their respective sectors. While the business moguls and the mega-rich are, numerically speaking, a tiny minority, they are neither marginalized nor underrepresented, for the stark reality is that their economic clout engenders political power more awesome than their numerical limitation. Traditionally, political power does not necessarily emanate from the size of ones constituency; indeed, it is likely to arise more directly from the number and amount of ones bank accounts. It is ironic, therefore, that the marginalized and underrepresented in our midst are the majority who wallow in poverty, destitution and infirmity. It was for them that the party-list system was enacted -- to give them not only genuine hope, but genuine power; to give them the opportunity to be elected and to represent the specific concerns of their constituencies; and simply to give them a direct voice in Congress and in the larger affairs of the State. In its noblest sense, the party-list system truly empowers the masses and ushers a new hope for genuine change. Verily, it invites those marginalized and underrepresented in the past the farm hands, the fisher folk, the urban poor, even those in the underground movement to come out and participate, as indeed many of them came out and participated during the last elections. The State cannot now disappoint and frustrate them by disabling and desecrating this social justice vehicle.

xxx

xxx

xxx

Verily, allowing the non-marginalized and overrepresented to vie for the remaining seats under the party-list system would not only dilute, but also prejudice the chance of the marginalized and underrepresented, contrary to the intention of the law to enhance it. The party-list system is a tool for the benefit of the underprivileged; the law could not have given the same tool to others, to the prejudice of the intended beneficiaries. This Court, therefore, cannot allow the party-list system to be sullied and prostituted by those who are neither marginalized nor underrepresented. It cannot let that flicker of hope be snuffed out. The clear state policy must permeate every discussion of the qualification of political parties and other organizations under the party-list system. (emphasis and underscoring supplied) Hence, in Ang Bagong Bayani-OFW Labor Party, the Court stressed that the party-list system is reserved only for those sectors marginalized and underrepresented in the past (e.g., labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, professionals and even those in the underground movement who wish to come out and participate). They are those sectors traditionally and historically marginalized and deprived of an opportunity to participate in the formulation of national policy although their sectoral interests are also traditionally and historically regarded as vital to the national interest. That is why Section 2 of RA 7941 speaks of "marginalized and under-represented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole." How should the matter of whether a particular sectoral interest is vital to national interest (and therefore beneficial to the nation as 3 a whole) be determined? Chief Justice Reynato S. Punos opinion in Barangay Association for National Advancement and 4 Transparency (BANAT) v. Commission on Elections offers valuable insight: Similarly, limiting the party-list system to the marginalized and excluding the major political parties from participating in the election of their representatives is aligned with the constitutional mandate to "reduce social, economic, and political inequalities, and remove cultural inequalities by equitably diffusing wealth and political power for the common good"; the right of the people and their organizations to effective and reasonable participation at all levels of social, political, and economic decision-making; the right of women to opportunities that will enhance their welfare and enable them to realize their full potential in the service of the nation; the right of labor to participate in policy and decision-making processes affecting their rights and benefits in keeping with its role as a primary social economic force; the right of teachers to professional advancement; the rights of indigenous cultural communities to the consideration of their cultures, traditions and institutions in the formulation of national plans and policies, and the indispensable role of the private sector in the national economy. As such, the interests of marginalized sectors are by tradition and history vital to national interest and therefore beneficial to the nation as a whole because the Constitution declares a national policy recognizing the role of these sectors in the nations life. In other words, the concept of marginalized and underrepresented sectors under the party-list scheme has been carefully refined by concrete examples involving sectors deemed to be significant in our legal tradition. They are essentially sectors with a constitutional 5 6 7 bond, that is, specific sectors subject of specific provisions in the Constitution, namely, labor, peasant, urban poor, indigenous 8 9 10 11 12 13 14 15 16 cultural communities, women, youth, veterans, fisherfolk, elderly, handicapped, overseas workers and professionals. The premise is that the advancement of the interests of these important yet traditionally and historically marginalized sectors promotes the national interest. The Filipino people as a whole are benefited by the empowerment of these sectors. The long-muffled voices of marginalized sectors must be heard because their respective interests are intimately and indispensably woven into the fabric of the national democratic agenda. The social, economic and political aspects of discrimination and marginalization should not be divorced from the role of a particular sector or group in the advancement of the collective goals of Philippine society as a whole. In other words, marginalized sectors should be given a say in governance through the party-list system, not simply because they desire to say something constructive but because they deserve to be heard on account of their traditionally and historically decisive role in Philippine society. A Unifying Thread Fidelity to the Constitution requires commitment to its text. Thus, in the exercise of its function as official interpreter of the Constitution, the Court should always bear in mind that judicial prudence means that it is safer to construe the Constitution from 17 what appears upon its face.

With regard to the matter of what qualifies as marginalized and underrepresented sectors under the party-list system, Section 5(2), Article VI of the Constitution mentions "the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector." On the other hand, the law speaks of "labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and 18 professionals." Surely, the enumeration of sectors considered as marginalized and underrepresented in the fundamental law and in the implementing law (RA 7941) cannot be without significance. To ignore them is to disregard the texts of the Constitution and of RA 7941. For, indeed, the very first of Ang Bagong Bayani-OFW Labor Partys eight guidelines for screening party-list participants is this: the parties, sectors or organizations "must represent the marginalized and underrepresented groups identified in Section 5 of RA 19 7941." For this reason, I submit the majoritys decision is cryptic and wanting when it makes short shrift of the issue of whether petitioner is a marginalized and underrepresented sector in the following manner: The crucial element is not whether a sector is specifically enumerated, but whether a particular organization complies with the requirements of the Constitution and RA 7941. The resolution of petitions for accreditation in the party-list system on a case-to-case basis not tethered to the enumeration of the Constitution and of RA 7941 invites the exercise of unbridled discretion. Unless firmly anchored on the fundamental law and the implementing statute, the party-list system will be a ship floating aimlessly in the ocean of uncertainty, easily tossed by sudden waves of flux and tipped by shifting winds of change in societal attitudes towards certain groups. Surely, the Constitution and RA 7941 did not envision such kind of a system. Indeed, the significance of the enumeration in Section 5(2), Article VI of the Constitution and Section 5 of RA 7941 is clearly explained in Ang Bagong Bayani-OFW Labor Party: "Proportional representation" here does not refer to the number of people in a particular district, because the party-list election is national in scope. Neither does it allude to numerical strength in a distressed or oppressed group. Rather, it refers to the representation of the "marginalized and underrepresented" as exemplified by the enumeration in Section 5 of the law; namely, "labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals." However, it is not enough for the candidate to claim representation of the marginalized and underrepresented, because representation is easy to claim and to feign. The party-list organization or party must factually and truly represent the marginalized and underrepresented constituencies mentioned in Section 5. Concurrently, the persons nominated by the party-list candidateorganization must be "Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties." xxx xxx xxx

The marginalized and underrepresented sectors to be represented under the party-list system are enumerated in Section 5 of RA 7941, which states: "SEC. 5. Registration. -- Any organized group of persons may register as a party, organization or coalition for purposes of the partylist system by filing with the COMELEC not later than ninety (90) days before the election a petition verified by its president or secretary stating its desire to participate in the party-list system as a national, regional or sectoral party or organization or a coalition of such parties or organizations, attaching thereto its constitution, by-laws, platform or program of government, list of officers, coalition agreement and other relevant information as the COMELEC may require: Provided, that the sector shall include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals." While the enumeration of marginalized and underrepresented sectors is not exclusive, it demonstrates the clear intent of the law that not all sectors can be represented under the party-list system. It is a fundamental principle of statutory construction that words employed in a statute are interpreted in connection with, and their meaning is ascertained by reference to, the words and the phrases with which they are associated or related. Thus, the meaning of a term in a statute may be limited, qualified or specialized 20 by those in immediate association. (emphasis and underscoring supplied)

More importantly, in defining the concept of a "sectoral party," Section 3(d) of RA 7941 limits "marginalized and underrepresented sectors" and expressly refers to the list in Section 5 thereof: Section 3. Definition of Terms. x x x (d) A sectoral party refers to an organized group of citizens belonging to any of the sectors enumerated in Section 5 hereof whose principal advocacy pertains to the special interest and concerns of their sector, x x x. (emphasis supplied) Petitioner does not question the constitutionality of Sections 2, 3(d) and 5 of RA 7941. (Its charges of violation of non-establishment of religion, equal protection, free speech and free association are all leveled at the assailed resolutions of the Commission on Elections.) Thus, petitioner admits and accepts that its case must rise or fall based on the aforementioned provisions of RA 7941. Following the texts of the Constitution and of RA 7941, and in accordance with established rules of statutory construction and the Courts pronouncement in Ang Bagong Bayani-OFW Labor Party, the meaning of "marginalized sectors" under the party list system is limited and qualified. Hence, other sectors that may qualify as marginalized and underrepresented should have a close connection to the sectors mentioned in the Constitution and in the law. In other words, the marginalized and underrepresented sectors qualified to participate in the party-list system refer only to the labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, professionals and other related or similar sectors. This interpretation is faithful to and deeply rooted in the language of the fundamental law and of its implementing statute. It is coherent with the mandate of the Constitution that marginalized sectors qualified to participate in the party-list system but not mentioned in Section 5(2), Article VI are "such other sectors as may be provided by law" duly enacted by Congress. It is also consistent with the basic canon of statutory construction, ejusdem generis, which requires that a general word or phrase that follows an enumeration of particular and specific words of the same class, the general word or phrase should be construed to include, or to be restricted to persons, things or cases, akin to, resembling, or of the same kind or class as those specifically 21 mentioned. Moreover, it reins in the subjective elements of passion and prejudice that accompany discussions of issues with moral or religious implications as it avoids the need for complex balancing and undue policy-making. What is the unifying thread that runs through the marginalized and underrepresented sectors under the party-list system? What are 22 the family resemblances that would characterize them? Based on the language of the Constitution and of RA 7941 and considering the pronouncements of this Court in Ang Bagong BayaniOFW Labor Party and BANAT, the following factors are significant: (a) they must be among, or closely connected with or similar to, the sectors mentioned in Section 5 of RA 7941; (b) they must be sectors whose interests are traditionally and historically regarded as vital to the national interest but they have long been relegated to the fringes of society and deprived of an opportunity to participate in the formulation of national policy; (c) the vinculum that will establish the close connection with or similarity of sectors to those expressly mentioned in Section 5 of RA 7941 is a constitutional provision specifically recognizing the special significance of the said sectors (other than 23 peoples organizations, unless such peoples organizations represent sectors mentioned in Section 5 of RA 7941) to the advancement of the national interest and (d) while lacking in well-defined political constituencies, they must have regional or national presence to ensure that their interests and agenda will be beneficial not only to their respective sectors but, more importantly, to the nation as a whole. For Purposes of the Party-List System, Petitioner is Not a Marginalized Sector In this case, petitioner asserts that it is entitled to accreditation as a marginalized and underrepresented sector under the party-list system. However, the Commission on Elections disagrees.

The majority reverses the Commission on Elections. While it focuses on the contentious issues of morality, religion, equal protection, and freedom of expression and association, by granting the petition, the majority effectively rules that petitioner is a qualified marginalized and underrepresented sector, thereby allowing its accreditation and participation in the party-list system. I disagree. Even assuming that petitioner was able to show that the community of lesbians, gays, bisexuals and transsexuals (LGBT) is underrepresented, it cannot be properly considered as marginalized under the party-list system. First, petitioner is not included in the sectors mentioned in Section 5(2), Article VI of the Constitution and Section 5 of RA 7941. Unless an overly strained interpretation is resorted to, the LGBT sector cannot establish a close connection to any of the said sectors. Indeed, petitioner does not even try to show its link to any of the said sectors. Rather, it represents itself as an altogether distinct sector with its own peculiar interests and agenda. Second, petitioners interest as a sector, which is basically the legal recognition of its members sexual orientation as a right, cannot be reasonably considered as an interest that is traditionally and historically considered as vital to national interest. At best, petitioner may cite an emergent awareness of the implications of sexual orientation on the national human rights agenda. However, 24 an emergent awareness is but a confirmation of lack of traditional and historical recognition. Moreover, even the majority admits 25 that there is no "clear cut consensus favorable to gay rights claims." Third, petitioner is cut off from the common constitutional thread that runs through the marginalized and underrepresented sectors under the party-list system. It lacks the vinculum, a constitutional bond, a provision in the fundamental law that specifically recognizes the LGBT sector as specially significant to the national interest. This standard, implied in BANAT, is required to create the necessary link of a particular sector to those sectors expressly mentioned in Section 5(2), Article VI of the Constitution and Section 5 of RA 7941. Finally, considering our history and tradition as a people, to consider the promotion of the LGBT agenda and "gay rights" as a national policy as beneficial to the nation as a whole is debatable at best. Even the majority (aside from extensively invoking foreign practice and international conventions rather than Philippine laws) states: We do not suggest that public opinion, even at its most liberal, reflect a clear cut strong consensus favorable to gay rights claims. This is so unlike the significance of the interests of the sectors in Section 5 of RA 7941 which are, without doubt, indisputable. Regardless of the personal beliefs and biases of its individual members, this Court can only apply and interpret the Constitution and the laws. Its power is not to create policy but to recognize, review or reverse the policy crafted by the political departments if and when a proper case is brought before it. Otherwise, it will tread on the dangerous grounds of judicial legislation. In this instance, Congress, in the exercise of its authority under Section 5(2), Article VI of the Constitution, enacted RA 7941. Sections 2, 3(d) and (5) of the said law instituted a policy when it enumerated certain sectors as qualified marginalized and underrepresented sectors under the party-list system. Respect for that policy and fidelity to the Courts duty in our scheme of government require us to declare that only sectors expressly mentioned or closely related to those sectors mentioned in Section 5 of RA 7941 are qualified to participate in the party-list system. That is the tenor of the Courts rulings in Ang Bagong Bayani-OFW Labor Party and BANAT. As there is no strong reason for the Court to rule otherwise, stare decisis compels a similar conclusion in this case. The Court is called upon to exercise judicial restraint in this case by strictly adhering to, rather than expanding, legislative policy on the matter of marginalized sectors as expressed in the enumeration in Section 5 of RA 7941. The Court has no power to amend and expand Sections 2, 3(d) and 5 of RA 7941 in the guise of interpretation. The Constitution expressly and exclusively vests the authority to determine "such other [marginalized] sectors" qualified to participate in the party-list system to Congress. Thus, until and unless Congress amends the law to include the LGBT and other sectors in the party-list system, deference to Congress determination on the matter is proper. A Final Word To be succinctly clear about it, I do not say that there is no truth to petitioners claim of discriminatory and oppressive acts against its members. I am in no position to make that claim. Nor do I claim that petitioner has no right to speak, to assemble or to access our political departments, particularly the legislature, to promote the interests of its constituency. Social perceptions of sexual and other moral issues may change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the
26

best. But persuading ones fellow citizens is one thing and insisting on a right to participate in the party-list system is something else. Considering the facts, the law and jurisprudence, petitioner cannot properly insist on its entitlement to use the party-list system as a vehicle for advancing its social and political agenda. While bigotry, social stereotyping and other forms of discrimination must be given no place in a truly just, democratic and libertarian society, the party-list system has a well-defined purpose. The party-list system was not designed as a tool to advocate tolerance and acceptance of any and all socially misunderstood sectors. Rather, it is a platform for the realization of the aspirations of marginalized sectors whose interests are, by nature and history, also the nations but which interests have not been sufficiently brought to public attention because of these sectors underrepresentation. Congress was given by the Constitution full discretion to determine what sectors may qualify as marginalized and underrepresented. The Courts task is to respect that legislative determination by strictly adhering to it. If we effectively and unduly expand such congressional determination, we will be dabbling in policy-making, an act of political will and not of judicial judgment. Accordingly, I respectfully vote to dismiss the petition. RENATO C. CORONA Associate Justice

27

SEPARATE OPINION ABAD, J.: I have to concur only in the result set forth in the well-written ponencia of Justice Mariano C. Del Castillo because I arrived at the same conclusion following a different path. I also felt that the Court needs, in resolving the issues in this case, to say more about what the Constitution and Republic Act (R.A.) 7941 intends in the case of the party-list system to abate the aggravations and confusion caused by the alarming overnight proliferation of sectoral parties. The underlying policy of R.A. 7941 or The Party-List System Act is to give the marginalized and underrepresented sectors of society an opportunity to take a direct part in enacting the laws of the land. In Ang Bagong Bayani-OFW Labor Party v. Commission on 1 Elections (COMELEC), the Court laid down guidelines for accreditation, but these seem to leave the COMELEC like everyone else even more perplexed and dumbfounded about what organizations, clubs, or associations can pass for sectoral parties with a right to claim a seat in the House of Representatives. The Court can, in adjudicating this case, unravel some of the difficulties. Here, I fully agree that the COMELEC erred when it denied Ang Ladlads petition for sectoral party accreditation on religious and moral grounds. The COMELEC has never applied these tests on regular candidates for Congress. There is no reason for it to apply them on Ang Ladlad. But the ponencia already amply and lucidly discussed this point. What I am more concerned about is COMELECs claim in its comment on the petition that the Ang Ladlad sectoral party was not marginalized and underrepresented since it is not among, or even associated with, the sectors specified in the Constitution and in 2 R.A. 7941. Ang Ladlad, it claims, did not qualify as a marginalized and underrepresented group of people like those representing labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals. This is effectively the COMELECs frame of mind in adjudicating applications for accreditation. But, the COMELECs proposition imposes an unwarranted restriction which is inconsistent with the purpose and spirit of the Constitution and the law. A reading of Ang Bagong Bayani will show that, based on the Courts reading, neither the Constitution nor R.A. 7941 intends the excessively limited coverage that the COMELEC now suggests. In fact, the Court said in that case that the list in R.A. 7941 is not exclusive. Thus, while the party-list system is not meant for all sectors of society, it was envisioned as a social justice tool for the marginalized and underrepresented in general.

As it happened, the only clue that the Constitution provides respecting the identity of the sectors that will make up the party-list system is found in the examples it gives, namely, the labor, the peasant, the urban poor, the indigenous cultural minorities, the women, and the youth segments of society. Section 5(2), Article VI of the 1987 Constitution provides: (2) The party-list representative shall constitute twenty per centum of the total number of representatives including those under the party list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector." (Underscoring supplied.) Getting its bearing from the examples given above, the Congress provided in Section 2 of R.A. 7941 a broad standard for screening and identifying those who may qualify for the party-list system. Thus: Sec. 2. Declaration of policy. The State shall promote proportional representation in the election of representatives to the House of Representatives through a party-list system of registered regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, and who lack well defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives. Towards this end, the State shall develop and guarantee a full, free and open party system or group interests in the House of Representatives by enhancing their chances to compete for and win seats in the legislature, and shall provide the simplest scheme possible. (Underscoring supplied.) The above speaks of "marginalized and underrepresented sectoral parties or organizations x x x lack well defined political constituencies x x x who could contribute to the formulation and enactment of appropriate legislation." But, as the Court said in Ang Bagong Bayani, the whole thing boils down to ascertaining whether the party seeking accreditation belongs to the "marginalized and 3 underrepresented." Unfortunately, Congress did not provide a definition of the term "marginalized and underrepresented." Nor did the Court dare provide one in its decision in Ang Bagong Bayani. It is possible, however, to get a sense of what Congress intended in adopting such term. No doubt, Congress crafted that termmarginalized and underrepresentedfrom its reading of the concrete examples that the Constitution itself gives of groupings that are entitled to accreditation. These examples are the labor, the peasant, the urban poor, the indigenous cultural minorities, the women, and the youth sectors. Fortunately, quite often ideas are best described by examples of what they are, which was what those who drafted the 1987 Constitution did, rather than by an abstract description of them. For Congress it was much like looking at a gathering of "a dog, a cat, a horse, an elephant, and a tiger" and concluding that it is a gathering of "animals." Here, it looked at the samples of qualified groups (labor, peasant, urban poor, indigenous cultural minorities, women, and youth) and found a common thread that passes through them all. Congress concluded that these groups belonged to the "marginalized and underrepresented." So what is the meaning of the term "marginalized and underrepresented?" The examples given (labor, peasant, urban poor, indigenous cultural minorities, women, and youth) should be the starting point in any search for definition. Congress has added six 4 others to this list: the fisherfolk, the elderly, the handicapped, the veterans, the overseas workers, and the professionals. Thus, the pertinent portion of Section 5 of R.A. 7941 provides: Sec. 5. Registration. x x x Provided, that the sector shall include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals. If one were to analyze these Constitutional and statutory examples of qualified parties, it should be evident that they represent the working class (labor, peasant, fisherfolk, overseas workers), the service class(professionals), the economically deprived (urban poor), the social outcasts (indigenous cultural minorities), the vulnerable (women, youth) and the work impaired (elderly, handicapped, veterans). This analysis provides some understanding of who, in the eyes of Congress, are marginalized and underrepresented. The parties of the marginalized and underrepresented should be more than just lobby or interest groups. They must have an authentic identity that goes beyond mere similarities in background or circumstances. It is not enough that their members belong to the same industry, speak the same dialect, have a common hobby or sport, or wish to promote public support for their mutual

interests. The group should be characterized by a shared advocacy for genuine issues affecting basic human rights as these apply to their groups. This is in keeping with the statutory objective of sharing with them seats in the House of Representatives so they can take part in enacting beneficial legislation. It should be borne in mind, however, that both the Constitution and R.A. 7941 merely provide by examples a sense of what the qualified organizations should look like. As the Court acknowledged in Ang Bagong Bayani, these examples are not exclusive. For instance, there are groups which are pushed to the margin because they advocate an extremist political ideology, such as the extreme right and the extreme left of the political divide. They may be regarded, if the evidence warrants, as qualified sectors. Further, to qualify, a party applying for accreditation must represent a narrow rather than a specific definition of the class of people they seek to represent. For example, the Constitution uses the term "labor," a narrower definition than the broad and more abstract term, "working class," without slipping down to the more specific and concrete definition like "carpenters," "security guards," "microchips factory workers," "barbers," "tricycle drivers," and similar sub-groupings in the "labor" group. See the other illustrations below. Broad Definition Working Class Economically Deprived The Vulnerable Work Impaired *Narrow Definition Labor Urban Poor Women HandiCapped Specifically Defined Groups Carpenters, security guards, microchip factory workers, barbers, tricycle drivers Informal settlers, the jobless, persons displaced by domestic wars Working women, battered women, victims of slavery Deaf and dumb, the blind, people on wheelchairs

*The definition that the Constitution and R.A. 7941 use by their examples. Obviously, the level of representation desired by both the Constitution and R.A. 7941 for the party-list system is the second, the narrow definition of the sector that the law regards as "marginalized and underrepresented." The implication of this is that, if any of the sub-groupings (the carpenters, the security guards, the microchips factory workers, the barbers, the tricycle drivers in the example) within the sector desires to apply for accreditation as a party-list group, it must compete with other sub-groups for the seat allotted to the "labor sector" in the House of Representatives. This is the apparent intent of the Constitution and the law. An interpretation that will allow concretely or specifically defined groups to seek election as a separate party-list sector by itself will result in riot and redundancy in the mix of sectoral parties grabbing seats in the House of Representatives. It will defeat altogether the objectives of the party-list system. If they can muster enough votes, the country may have a party-list of pedicab drivers and another of tricycle drivers. There will be an irrational apportionment of party-list seats in the legislature. In addition, Section 5 of R.A. 7941 provides that parties interested in taking part in the party-list system must state if they are to be considered as national, regional, or sectoral parties. Thus: Sec. 5. Registration. Any organized group of persons may register as a party, organization or coalition for purposes of the partylist system by filing with the COMELEC not later than ninety (90) days before the election a petition verified by its president or secretary stating its desire to participate in the party-list system as a national, regional or sectoral party or organization or a coalition of such parties or organizations, x x x. This provision, taken alongside with the territorial character of the sample sectors provided by the Constitution and R.A. 7941, indicates that every sectoral party-list applicant must have an inherently regional presence(indigenous cultural minorities) or a national presence (all the rest). The people they represent are not bound up by the territorial borders of provinces, cities, or municipalities. A sectoral group representing the sugar plantation workers of Negros Occidental, for example, will not qualify because it does not represent the inherently national character of the labor sector.

Finally, as the Court held in Ang Bagong Bayani, it is not enough for a party to claim that it represents the marginalized and underrepresented. That is easy to do. The party must factually and truly represent the marginalized and underrepresented. It must present to the COMELEC clear and convincing evidence of its history, authenticity, advocacy, and magnitude of presence. The COMELEC must reject those who put up building props overnight as in the movies to create an illusion of sectoral presence so they can get through the door of Congress without running for a seat in a regular legislative district. In sum, to qualify for accreditation: One, the applying party must show that it represents the "marginalized and underrepresented," exemplified by the working class, the service class, the economically deprived, the social outcasts, the vulnerable, the work impaired, or some such similar class of persons. Two, the applying party should be characterized by a shared advocacy for genuine issues affecting basic human rights as these apply to the sector it represents. Three, the applying party must share the cause of their sector, narrowly defined as shown above. If such party is a subgroup within that sector, it must compete with other sub-groups for the seat allocated to their sector. Four, the members of the party seeking accreditation must have an inherent regional or national presence. And five, except for matters the COMELEC can take judicial notice of, the party applying for accreditation must prove its claims by clear and convincing evidence. In this case, Ang Ladlad represents men and women who identify themselves as lesbians, gays, bisexuals, or trans-gendered persons 5 (LGBTs). Applying the universally accepted estimate that one out of every 10 persons is an LGBT of a certain kind, the Filipino LGBTs should now stand at about 8.7 million. Despite this, however, they are by and large, subtly if not brutally, excluded from the mainstream, discriminated against, and persecuted. That the COMELEC denied Ang Ladlads petition on religious and moral grounds is proof of this discrimination. Ang Ladlad claims that many cases of intolerance and violence against LGBTs have been documented. At home, effeminate or gay youths are subjected to physical abuse by parents or guardians to make them conform to standard gender norms of behavior, while lesbian youths are raped to cure them of their perceived affliction. LGBTs are refused admission from certain schools, or are suspended and put on probation. Meanwhile, in the workplace, they are denied promotions or benefits which are otherwise available to heterosexuals holding the same positions. There is bigotry for their group. Ang Ladlad has amply proved that it meets the requirements for sectoral party accreditation. Their members are in the vulnerable class like the women and the youth. Ang Ladlad represents a narrow definition of its class (LGBTs) rather than a concrete and specific definition of a sub-group within the class (group of gay beauticians, for example). The people that Ang Ladlad seeks to represent have a national presence. The lesbians, gays, bisexuals, and trans-gendered persons in our communities are our brothers, sisters, friends, or colleagues who have suffered in silence all these years. True, the party-list system is not necessarily a tool for advocating tolerance or acceptance of their practices or beliefs. But it does promise them, as a marginalized and underrepresented group, the chance to have a direct involvement in crafting legislations that impact on their lives and existence. It is an opportunity for true and effective representation which is the very essence of our party-list system. For the above reasons, I vote to GRANT the petition. ROBERTO A. ABAD Associate Justice

G.R. No. 154198

January 20, 2003

PETRONILA S. RULLODA, petitioner, vs. COMMISSION ON ELECTIONS (COMELEC), ELECTION OFFICER LUDIVICO L. ASUNCION OF SAN JACINTO, PANGASINAN; BARANGAY BOARD OF CANVASSERS OF BRGY. STO. TOMAS, SAN JACINTO, PANGASINAN, Board of Election Tellers of Prec. Nos. 30A/30A1, 31A, 31A1, and 32A1, and REMEGIO PLACIDO,respondents. YNARES-SANTIAGO, J.: In the barangay elections of July 15, 2002, Romeo N. Rulloda and Remegio L. Placido were the contending candidates for Barangay Chairman of Sto. Tomas, San Jacinto, Pangasinan. On June 22, 2002, Romeo suffered a heart attack and passed away at the 1 Mandaluyong City Medical Center. His widow, petitioner Petronila "Betty" Rulloda, wrote a letter to the Commission on Elections on June 25, 2002 seeking permission 2 to run as candidate for Barangay Chairman of Sto. Tomas in lieu of her late husband. Petitioners request was supported by the 3 Appeal-Petition containing several signatures of people purporting to be members of the electorate of Barangay Sto. Tomas. On July 14, 2002, Election Officer Ludivico L. Asuncion issued a directive to the Chairman and Members of the Barangay Board of Canvassers of Sto. Tomas as follows: Just in case the names "BETTY" or "PETRONILA" or the surname "RULLODA" is written on the ballot, read the same as it is 4 written but add the words "NOT COUNTED" like "BETTY NOT COUNTED" or "RULLODA NOT COUNTED." Based on the tally of petitioners watchers who were allowed to witness the canvass of votes during the July 15, 2002 elections, 5 petitioner garnered 516 votes while respondent Remegio Placido received 290 votes. Despite this, the Board of Canvassers 6 proclaimed Placido as the Barangay Chairman of Sto. Tomas. After the elections, petitioner learned that the COMELEC, acting on the separate requests of Andres Perez Manalaysay and Petronila Rulloda to be substituted as candidates for Barangay Chairman of Barangay La Fuente, Sta. Rosa, Nueva Ecija and Barangay Sto. Tomas, San Jacinto, Pangasinan, respectively, issued Resolution No. 5217 dated July 13, 2002 which states: PREMISES CONSIDERED, the Commission RESOLVED, as it hereby RESOLVES, to ADOPT the recommendation of the Law Department as follows: 1. To deny due course the Certificates of Candidacy of ANDRES PEREZ MANALAYSAY and PETRONILA S. RULLODA; and 2. To direct the Election Officer of Sta. Rosa, Nueva Ecija and San Jacinto, Pangasinan to delete the name of ANDRES PEREZ MANALAYSAY, candidate for Barangay Chairman in Barangay La Fuente, Sta. Rosa, Nueva Ecija; and the name of PETRONILA S. RULLODA, candidate for Barangay Captain in Barangay Sto. Tomas, San Jacinto, Pangasinan. Let the Law Department implement this resolution. SO ORDERED.
7

The above-quoted Resolution cited as authority the COMELECs Resolution No. 4801 dated May 23, 2002, setting forth the guidelines on the filing of certificates of candidacy in connection with the July 15, 2002 synchronized Barangay and Sangguniang Kabataan elections, more particularly Section 9 thereof which reads: Sec. 9. Substitution of candidates. There shall be no substitution of candidates for barangay andsangguniang 8 kabataan officials. Hence, petitioner filed the instant petition for certiorari, seeking to annul Section 9 of Resolution No. 4801 and Resolution No. 5217, both of the COMELEC, insofar as they prohibited petitioner from running as substitute candidate in lieu of her deceased husband; to nullify the proclamation of respondent; and to proclaim her as the duly elected Barangay Chairman of Sto. Tomas, San Jacinto, Pangasinan.

Private respondent Remegio Placido filed his Comment, arguing that since the barangay election is non-partisan, substitution of candidates is not allowed. Moreover, petitioner did not file any certificate of candidacy; hence, there was only one candidate for 9 Barangay Chairman of Sto. Tomas, namely, respondent Placido. Public respondent COMELEC also filed its Comment. It contends that its Resolution No. 4801 was issued not pursuant to its quasijudicial functions but as an incident of its inherent administrative functions over the conduct of the barangay elections. Therefore, the same may not be the subject of review in a petition for certiorari. Further, the COMELEC alleges that it did not commit grave abuse of discretion in denying due course to petitioners certificate of candidacy and in proclaiming respondent considering that he 10 was the only candidate for Barangay Chairman of Sto. Tomas. We find merit in the petition. At the outset, there is no dispute that petitioner garnered 516 votes while respondent got only 290 votes. Respondents did not deny this in their respective Comments. In our jurisdiction, an election means the choice or selection of candidates to public office by popular vote through the use of the ballot, and the elected officials which are determined through the will of the electorate. An election is the embodiment of the popular will, the expression of the sovereign power of the people. The winner is the candidate who has obtained a majority or plurality of valid votes cast in the election. Sound policy dictates that public elective offices are filled by those who receive the highest number of votes cast in the election for that office. For, in all republican forms of government the basic idea is that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast 11 in the election. Respondents base their argument that the substitution of candidates is not allowed in barangay elections on Section 77 of the Omnibus Elections Code, which states: Section 77. Candidates in case of death, disqualification or withdrawal of another. If after the last day of the filing of certificates of candidacy, an official candidate of a registered or accredited political party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by the same political party may file a certificate of candidacy to replace the candidate who died, withdrew or was disqualified. The substitute candidate nominated by the political party concerned may file his certificate of candidacy for the office affected in accordance with the preceding sections not later than mid-day of the election. If the death, withdrawal or disqualification should occur between the day before the election and mid-day of election day, said certificate may be filed with any board of election inspectors in the political subdivision where he is a candidate or, in the case of candidates to be voted by the entire electorate of the country, with the Commission. Private respondent argues that inasmuch as the barangay election is non-partisan, there can be no substitution because there is no political party from which to designate the substitute. Such an interpretation, aside from beingnon sequitur, ignores the purpose of 12 election laws which is to give effect to, rather than frustrate, the will of the voters. It is a solemn duty to uphold the clear and unmistakable mandate of the people. It is well-settled that in case of doubt, political laws must be so construed as to give life and 13 spirit to the popular mandate freely expressed through the ballot. Contrary to respondents claim, the absence of a specific provision governing substitution of candidates in barangay elections can not be inferred as a prohibition against said substitution. Such a restrictive construction cannot be read into the law where the same is not written. Indeed, there is more reason to allow the substitution of candidates where no political parties are involved than when political considerations or party affiliations reign, a fact that must have been subsumed by law. Private respondent likewise contends that the votes in petitioners favor can not be counted because she did not file any certificate of candidacy. In other words, he was the only candidate for Barangay Chairman. His claim is refuted by the Memorandum of the COMELEC Law Department as well as the assailed Resolution No. 5217, wherein it indubitably appears that petitioners letterrequest to be allowed to run as Barangay Chairman of Sto. Tomas in lieu of her late husband was treated as a certificate of 14 candidacy. To reiterate, it was petitioner who obtained the plurality of votes in the contested election. Technicalities and procedural niceties in election cases should not be made to stand in the way of the true will of the electorate. Laws governing election contests must be liberally construed to the end that the will of the people in the choice of public officials may not be defeated by mere technical 15 objections.

Election contests involve public interest, and technicalities and procedural barriers must yield if they constitute an obstacle to the determination of the true will of the electorate in the choice of their elective officials. The Court frowns upon any interpretation of the law that would hinder in any way not only the free and intelligent casting of the votes in an election 16 but also the correct ascertainment of the results. WHEREFORE, in view of the foregoing, the instant petition is GRANTED. The assailed Resolution No. 5217 of the Commission on Elections, insofar as it denied due course to petitioners certificate of candidacy, is declared NULL and VOID. The proclamation of respondent Remegio L. Placido as Barangay Chairman of Sto. Tomas, San Jacinto, Pangasinan is SET ASIDE, and the Board of Canvassers of the said Barangay is ORDERED to proclaim petitioner as the duly elected Barangay Chairman thereof. SO ORDERED. Bellosillo, Puno, Vitug, Mendoza, Sandoval-Gutierrez, Carpio , Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur. Davide, Jr., and Quisumbing, JJ., in the result, pro hac vice only. Panganiban, J., in the result.

EN BANC G.R. No. 161265 February 24, 2004

LABAN NG DEMOKRATIKONG PILIPINO, represented by its Chairman EDGARDO J. ANGARA vs. THE COMMISION ON ELECTIONS and AGAPITO A. AQUINO DECISION TINGA, J.: The Bible tells the story of how two women came to King Solomon to decide who among them is the babys true mother. King Solomon, in his legendary wisdom, awarded the baby to the woman who gave up her claim after he threatened to split the baby into two. It is fortunate that the two women did not ask the Commission on Elections (COMELEC) to decide the babys fate; otherwise, it would have cut the baby in half. For that is what the COMELEC exactly did in this case. On December 8, 2003, the General Counsel of the Laban ng Demokratikong Pilipino (LDP), a registered political party, informed the COMELEC by way of Manifestation that only the Party Chairman, Senator Edgardo J. Angara, or his authorized representative may endorse the certificate of candidacy of the partys official candidates. The same Manifestation stated that Sen. Angara had placed the LDP Secretary General, Representative Agapito A. Aquino, on "indefinite forced leave." In the meantime, Ambassador Enrique A. Zaldivar was designated Acting Secretary General. The Manifestation concluded with this prayer: A. The Honorable Commission recognizes [sic] only those Certificates of Candidacy to which are attached Certificates of Nomination executed by LDP Party Chairman Edgardo J. Angara or by such other officers of the LDP whom he may authorize in writing, and whose written authorizations shall be deposited with the Honorable Commission by the LDP General Counsel. B. The Honorable Commission declares [sic] as a nullity, denies [sic] due course or cancels [sic] all Certificates of Candidacy not endorsed by LDP Party Chairman Angara or by such other LDP officials as may be authorized by him. C. The Honorable Commission takes [sic] note of the designation of Ambassador Enrique "Ike" A. Zaldivar as Acting Secretary General of the LDP, and for the Honorable Commission to honor and recognize the official acts, to the exclusion 1 of everyone, of Ambassador Zaldivar for and in behalf of the LDP as Secretary General. On December 16, 2003, Rep. Aquino filed his Comment, contending that the Party Chairman does not have the authority to impose disciplinary sanctions on the Secretary General. As the Manifestation filed by the LDP General Counsel has no basis, Rep. Aquino asked the COMELEC to disregard the same. On December 17, 2003, the parties agreed to file a joint manifestation pending which the proceedings were deemed suspended. On December 22, 2003, however, only the LDP General Counsel filed an Urgent Manifestation reiterating the contents of the December 8, 2003 Manifestation. The COMELEC also received aLetter from Rep. Aquino stating that the parties were unable to arrive at a joint manifestation. The next day, the LDP General Counsel filed a Second Urgent Manifestation disputing newspaper accounts that Rep. Aquino had suspended Sen. Angara as Party Chairman. On December 26, 2003, the COMELEC issued an Order requiring the parties to file a verified petition. It turned out that, two days before, Sen. Angara had submitted a verified Petition, in essence, reiterating the contents of its previous Manifestations. Attached to 2 the Petition was a Resolution adopted by the LDP National Executive Council, stating: WHEREAS, on September 25, 2003, the National Executive Council of the Laban ng Demokratikong Pilipino (LDP) convened and unanimously passed a resolution granting full authority to Party Chairman Edgardo J. Angara to enter, negotiate and conclude a

coalition agreement with other like-minded opposition parties, aggrupations and interest groups with the sole purpose of uniting the political opposition and fielding a unity ticket for the May 10, 2004 elections; WHEREAS, on December 3, 2003, the LDP, together with the Puwersa ng Masang Pilipino (PMP) and the Partido Demokratiko ng Pilipinas - LABAN (PDP-LABAN) forged a coalition to form the Koalisyon ng Nagkakaisang Pilipino(KNP); WHEREAS, the Executive Committee of the KNP subsequently adopted its resolution entitled: "Resolution Choosing Mr. Fernando Poe, Jr. as the Standard Bearer of the Koalisyon ng Nagkakaisang Pilipino (KNP) for President of the Republic of the Philippines in the May 10, 2004 National Elections"; .... WHEREAS, the process of unification of the political opposition and the actions taken in connection therewith by Chairman Angara and by other governing bodies of the LDP required the taking of immediate and forceful action by them to preserve and protect the integrity, credibility, unity and solidarity of the LDP, and ensure the attainment of unification of the political opposition; WHEREAS, such immediate and forceful action include those that have to do with pre-emptive efforts to diffuse the chaos, confusion and disunity projected by the pronouncements and acts of some officers and members to the general membership of the LDP and the electorate, such as the one taken by the Regional Committee for Region VI (Western Visayas) on December 6, 2003; the enforcement of order in the LDP through the voice of a central leadership in command in an otherwise extraordinary and emergency situation, such as the one taken by Party Chairman Angara on December 6, 2003; the filing of the Manifestation with the COMELEC on the matter of the authorized signatories for the nominations and, the adoption of resolutions by the regional committees affirming their trust and confidence in Chairman Angara, and authorizing him to choose the presidential standard bearer for the May 10, 2004 elections; NOW THEREFORE, BE IT RESOLVED, AS IT IS HEREBY RESOLVED, By the National Executive Council, to ratify and confirm the Covenant of National Unity, the Declaration of Unity entered into by Party Chairman Edgardo J. Angara, and all acts and decisions taken by him to enforce and implement the same; RESOLVED, FURTHER, To ratify and confirm all other acts and decisions of Chairman Angara and other governing bodies to preserve the integrity, credibility, unity and solidarity of the LDP; and, RESOLVED, FINALLY, To reiterate the vote of confidence of the National Executive Council in, and support to, the continued efforts of 3 Chairman Angara to unite the political opposition. Rep. Aquino filed his Answer to the Petition on December 30, 2003. The COMELEC heard the parties on oral arguments on the same day, after which the case was submitted for resolution. Pending resolution, a Certificate of Nomination of Sen. Panfilo Lacson as LDP candidate for President was filed with the COMELEC. The Certificate of Nomination was signed by Rep. Aquino as LDP Secretary General. On January 6, 2004, the COMELEC came to a decision. The Commission identified the sole issue as "who among the [LDP] officers [are] authorized to authenticate before the Commission that the person filing the certificate of candidacy as party nominee for a certain position is the official candidate of the party chosen 4 in accordance with its Constitution." The COMELEC recognized that it "has the authority to act on matters pertaining to the ascertainment of the identity of *a+ political 5 party and its legitimate officers." In the same breath, however, it held that "internal party matters and wranglings [sic] are purely for the party members to settle among themselves and any unsettled controversy should be brought to the proper forum with 6 jurisdiction." The "question of who was suspended by whom" was thus left for such proper forum to resolve. Noting that "the intramurals in the LDP as an internal party matter seems to be irreconcilable for the present when the filing of Certificate of Candidacy and Certificate of Nomination are about to reach the deadline," the COMELEC disposed of the Petition in the following fashion:

WHEREFORE, premises considered, the petition is GRANTED with LEGAL EQUITY for both Petitioner and Oppositor. The candidates for President down to the last Sangguniang Bayan Kagawad nominated and endorsed by LDP Chairman Edgardo J. Angara are recognized by the Commission as official candidates of LDP "Angara Wing". The candidates from President down to the last Sangguniang Bayan Kagawad as nominated and endorsed by LDP Secretary General Agapito "Butz" Aquino are recognized as official candidates of LDP "Aquino Wing". Consequently, each faction or "Wing" is entitled to a representative to any election committee to which it may be entitled as created by the Commission for the May 10, 2004 elections. For the copies of the election returns, the "Angara Wing" will be entitled to the copies corresponding to odd number of precincts, that is, Precinct Nos. 1, 3, 5, etc., and for the "Aquino Wing" to the even number of precincts, that is Precinct Nos. 2, 4, 6, etc. This is on the assumption that the LDP or as a party within a registered Political Coalition becomes a recognized and denominated as a Dormant [sic] Minority Party under the Election Laws. The two LDP "Wings" 7 are further entitled to and be accorded the rights and privileges with corresponding legal obligations under Election Laws. Commissioners Luzviminda G. Tancangco, Ralph C. Lantion, Resurreccion Z. Borra and Florentino A. Tuason, Jr. concurred in the Resolution authored by Commissioner Rufino S.B. Javier. Chair Benjamin S. Abalos, Sr., joined by Commissioner Mehol K. Sadain, submitted dissenting opinions. Sen. Angara thus filed the present petition for Certiorari assailing the COMELEC Resolution for having been issued with grave abuse of discretion. Thereafter, Rep. Aquino filed his Comment. The Office of the Solicitor General submitted a Manifestation and Motion praying for the granting of the Petition. The COMELEC thus filed a separate Comment to the Petition. The COMELEC correctly stated that "the ascertainment of the identity of [a] political party and its legitimate officers" is a matter that is well within its authority. The source of this authority is no other than the fundamental law itself, which vests upon the COMELEC 9 the power and function to enforce and administer all laws and regulations relative to the conduct of an election. In the exercise of such power and in the discharge of such function, the Commission is endowed with ample "wherewithal" and "considerable latitude in adopting means and methods that will ensure the accomplishment of the great objectives for which it was created to promote 10 free, orderly and honest elections." Thus, in Kalaw v. Commission on Elections which involved the leadership fight in the Liberal Party,
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this Court held:

that the respondent [COMELEC] has jurisdiction to hear and decide SP Case No. 85-021 [involving a petition to prohibit Eva Estrada Kalaw "from usurping or using the title or position of President of the Liberal Party"] in view of its powers under Article IX-C, Section 2, of the Constitution to, among others, enforce and administer all laws relative to the conduct of elections, decide all questions affecting elections, register and regulate political parties, and insure orderly elections. These powers include the determination of the conflicting claims made in SP Case No. 85-021, which are likely to cause confusion among the electorate if not resolved. Additionally, the COMELEC is mandated by the Election Code to inter alia require candidates to specify their political party affiliation in their certificates of candidacy, allow political parties to appoint watchers, limit the expenditures of each political party, determine whether or not a political party shall retain its registration on the basis of its showing in the preceding elections, etc. These matters include the ascertainment of the identity of the political party and its legitimate officers responsible for its acts and the resolution of such controversies as the one now before it where one party appears to be divided into two wings under separate leaders each claiming to be the president of the entire party. *Emphasis supplied.+ Likewise in Palmares v. Commission on Elections, to which the assailed Resolution made reference and which involved the 13 Nacionalista Party, this Court ruled that the COMELEC has jurisdiction over the issue of leadership in a political party. Under the Constitution, the COMELEC is empowered to register political parties [Sec. 2(5), Article IX-C.] Necessarily, the power to act on behalf of a party and the responsibility for the acts of such political party must be fixed in certain persons acting as its officers. In the exercise of the power to register political parties, the COMELEC must determine who these officers are. Consequently, if there is any controversy as to leadership, the COMELEC may, in a proper case brought before it, resolve the issue incidental to its power to register political parties. This Court then proceeded to quote from Kalaw, supra.
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The two cited decisions find support in Sumulong v. Commission on Elections and Sotto v. Commission on Elections, where this Court, in resolving the issue as to who between the factions of a political party was entitled to nominate election inspectors, necessarily settled claims to the partys leadership. Both cases were decided without question on the COMELECs power to determine such claims. In conformity with jurisprudence, this Court did not identify the COMELECs jurisdiction as an issue when this case was heard on oral argument. There is no inconsistency between the above cases on the one hand and this Courts more recent ruling in Sinaca v. Mula on the other. In the latter case, this Court held: A political party has the right to identify the people who constitute the association and to select a standard bearer who best represents the partys ideologies and preference. Political parties are generally free to conduct their internal affairs free from judicial supervision; this common-law principle of judicial restraint, rooted in the constitutionally protected right of free association, serves the public interest by allowing the political processes to operate without undue interference. Thus, the rule is that the determination of disputes as to party nominations rests with the party, in the absence of statutes giving the courts *sic+ jurisdiction. Quintessentially, where there is no controlling statute or clear legal right involved, the court will not assume jurisdiction to determine factional controversies within a political party, but will leave the matter for determination by the proper tribunals of the party itself or by the electors at the polls. Similarly, in the absence of specific constitutional or legislative regulations defining how nominations are to be made, or prohibiting nominations from being made in certain ways, political parties may handle such affairs, including nominations, in such manner as party rules may establish. [Emphasis supplied.] Sinaca, unlike previous cases, did not involve the question of party identity or leadership; hence, it was not necessary for the COMELEC to delve therein. None of the candidates involved in that case were claiming to be the political partys sole candidate. In the case at bar, the Party Chairman, purporting to represent the LDP, contends that under the Party Constitution only he or his representative, to the exclusion of the Secretary General, has the authority to endorse and sign party nominations. The Secretary General vigorously disputes this claim and maintains his own authority. Clearly, the question of party identity or leadership has to be resolved if the COMELEC is to ascertain whether the candidates are legitimate party standard bearers or not. The repercussions of the question of party identity and leadership do not end at the validity of the endorsement of the certificates of candidacy of persons claiming to be the partys standard bearer. The law grants a registered political party certain rights and 17 privileges, which, naturally, redound to the benefit of its candidates. It is also for this significant dimension that Sinaca is not applicable in this case. As conceded in Sinaca itself, the Court will have to assume jurisdiction to determine factional controversies 18 within a political party where a controlling statute or clear legal right is involved. Verily, there is more than one law, as well as a number of clear legal rights, that are at stake in the case at bar. The law accords special treatment to political parties. The dominant majority party, the dominant minority party as determined by 19 the COMELEC, for instance, is entitled to a copy of the election returns. The six (6) accredited major political parties may nominate 20 the principal watchers to be designated by the Commission. The two principal watchers representing the ruling coalition and the dominant opposition coalition in a precinct shall, if available, affix their signatures and thumbmarks on the election returns for that 21 precinct. Three (3) of the six accredited major political parties are entitled to receive copies of the certificate of 22 canvass. Registered political parties whose candidates obtained at least ten percent (10%) of the total votes cast in the next preceding senatorial election shall each have a watcher and/or representative in the procurement and watermarking of papers to be 23 used in the printing of election returns and official ballots and in the printing, numbering, storage, and distribution thereof. Finally, 24 a candidate and his political party are authorized to spend more per voter than a candidate without a political party. It is, therefore, in the interest of every political party not to allow persons it had not chosen to hold themselves out as representatives of the party. Corollary to the right of a political party "to identify the people who constitute the association and to 25 select a standard bearer who best represents the partys ideologies and preference" is the right to exclude persons in its association and to not lend its name and prestige to those which it deems undeserving to represent its ideals. A certificate of candidacy makes known to the COMELEC that the person therein mentioned has been nominated by a duly authorized political 26 group empowered to act and that it reflects accurately the sentiment of the nominating body. A candidates political party 27 affiliation is also printed followed by his or her name in the certified list of candidates. A candidate misrepresenting himself or herself to be a partys candidate, therefore, not only misappropriates the partys name and prestige but foists a deception upon the electorate, who may unwittingly cast its ballot for him or her on the mistaken belief that he or she stands for the partys principles. To prevent this occurrence, the COMELEC has the power and the duty to step in and enforce the law not only to protect the party but, more importantly, the electorate, in line with the Commissions broad constitutional mandate to ensure orderly elections.
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Having revisited and clarified the jurisdiction of COMELEC to rule upon questions of party identity and leadership as an incident to its enforcement powers, this Court cannot help but be baffled by the COMELECs ruling declining to inquire into which party officer has the authority to sign and endorse certificates of candidacy of the partys nominees. The only issue in this case, as defined by the COMELEC itself, is who as between the Party Chairman and the Secretary General has the authority to sign certificates of candidacy of the official candidates of the party. Indeed, the petitioners Manifestation and Petition before the COMELEC merely asked the Commission to recognize only those certificates of candidacy signed by petitioner Sen. Angara or his authorized representative, and no other. To resolve this simple issue, the COMELEC need only to turn to the Party Constitution. It need not go so far as to resolve the root of the conflict between the party officials. It need only resolve such questions as may be necessary in the exercise of its enforcement powers. The LDP has a set of national officers composed of, among others, the Party Chairman and the Secretary General. The Party Chairman is the Chief Executive Officer of the Party, whose powers and functions include: (1) To represent the Party in all external affairs and concerns, sign documents for and on its behalf, and call the meetings and be the 29 presiding officer of the National Congress and the National Executive Council. The Secretary General, on the other hand, assists the Party Chairman in overseeing the day-to-day operations of the Party. Among his powers and functions is: (1) When empowered by the Party Chairman, to sign documents for and on behalf of the Party.
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The Secretary Generals authority to sign documents, therefore, is only a delegated power, which originally pertains to the Party Chairman. Rep. Aquino claims that he was authorized to exercise to sign the party candidates certificates of candidacy in the previous elections. Indeed, the COMELEC found that: In fact, during the May 14, 2001 elections, oppositor Agapito "Butz Aquino, as LDP Secretary General, was authorized by the LDP to sign for the Certificates of Nomination of the LDP Senatorial Candidates, including the Certificate of Nomination for Senatorial Candidate Edgardo J. Angara, a copy of said Certificate of Nomination and a copy of the Certificate for Senator Edgardo J. Angara are attached as Annexes A and B, respectively. This action by Secretary General Aquino is in accordance with the Constitution and Bylaws of LDP, not questioned by the LDP signed by its Secretary General. This revocation has not been revoked or recalled by the 31 National Congress of the LDP which is the one authorized to nominate candidates for President and Vice-President, respectively. Assuming that Rep. Aquino previously had such authority, this Court cannot share the COMELECs finding that the same "has not been revoked or recalled." No revocation of such authority can be more explicit than the totality of Sen. Angaras Manifestations and Petition before the COMELEC, through which he informed the Commission that Rep. Aquinos had been placed on indefinite forced leave and that Ambassador Zaldivar has been designated Acting Secretary General, who "shall 32 henceforth exercise all the powers and functions of the Secretary General under the Constitution and By-Laws of the LDP." As the prerogative to empower Rep. Aquino to sign documents devolves upon Sen. Angara, so he may choose, at his discretion, to withhold or revoke such power. Both respondents Rep. Aquino and COMELEC also cited Section 6 of COMELEC Resolution No. 6453 as basis for the Party Secretary Generals authority to sign certificates of candidacy. Said Section 6 states: SEC. 6. Certificate of nomination of official candidates by political party. The certificate of nomination of registered political parties or coalitions of political parties of their official candidates shall be filed not later than the last day for filing of certificates of candidacy, which is January 2, 2004 duly signed and attested under oath by the party president, chairman, secretary-general or any other duly authorized officer and shall bear the acceptance of the nominee by affixing his signature in the space provided therein. [Emphasis and underscoring supplied.] Clearly, however, the above provision presupposes that the party president, chairman or secretary-general has been "duly authorized" by the party to sign the certificate of candidacy. COMELEC Resolution No. 6453 cannot grant a party official greater authority than what the party itself grants, lest such Resolution amount to a violation of the partys freedom of association.
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Neither does the Party Secretary General have the power to nominate the official candidates of the LDP. That power resides in the 34 governing bodies of the Party. In particular, the National Congress, which is the highest policy-making and governing body of the Party, has the power (6) To nominate the official candidates of the Party for President, Vice President, and Senators, and, whenever the corresponding conventions fail to meet or to make the requisite nominations, to nominate the official candidates for municipal city, congressional 35 district, provincial and regional elective offices. Not only does Rep. Aquino insist on his power to sign Certificates of Candidacy on behalf of the LDP but he would also deny Sen. Angara that power on account of the latters preventive suspension. It seems, however, that respondent has abandoned this tack by the silence of his Memorandum on the matter. In any case, it appears that on November 28, 2003, Representative Rolex Suplico, LDP Region VI Regional Chairman, filed a complaint with Rep. Aquino against Party Chairman Sen. Angara for disloyalty to the Party, gross violation of the Party Constitution, and other divisive acts inimical to the interest of the party and its members. Rep. Aquino, as Secretary General, created a committee composed of three (3) members of the LDP National Executive Council to investigate the complaint and recommend appropriate action thereon. On December 12, 2003, the investigating committee issued a resolution placing Sen. Angara under preventive suspension effective immediately and directing him to refrain from performing acts in behalf of the party until the committee finishes its investigation and submits its final recommendations. The authority to create the investigating committee supposedly rests on Section 9 (4), Article VI of the LDP Constitution, which enumerates the powers and functions of the Secretary General: (4) With the concurrence of the Party Chairman, to enforce Party discipline. ,Emphasis supplied.+ Evidently, just as Rep. Aquino has no power to sign and nominate candidates in behalf of the LDP, neither does he have the power to enforce Party discipline or, as an incident thereto, to create an investigating committee, without the Party Chairmans concurrence. Much less does the investigating committee so created have the power to place the Party Chairman under preventive suspension since its authority stems from a nullity. Simply put, the spring has no source. The lack of Rep. Aquinos authority to sign documents or to nominate candidates for the LDP would not result in the denial of due 36 course to or the cancellation of the certificates of candidacy he may have signed on behalf of the LDP. The exclusive ground for the denial of due course to or the cancellation of a certificate of candidacy for any elective office is that any material representation 37 contained therein as required by law is false. Since the signature of Rep. Aquino was affixed either prior to, or on the basis of, the challenged Resolution recognizing his authority to sign on behalf of the LDP, the same would not constitute material representation that is false. In such case, the candidates are simply deemed as not nominated by the LDP and are considered independent candidates pursuant to Section 7 of COMELEC Resolution No. 6453: SEC. 7. Effect of filing certificate of nomination. A candidate who has not been nominated by a registered political party or its duly authorized representative, or whose nomination has not been submitted by a registered political party shall be considered as an independent candidate. COMELEC Commissioner Sadain referred to the above provision in his Dissenting Opinion, and this Court finds refreshing wisdom so sorely wanting in the majority opinion in his suggestion that: All other party members representing themselves to be candidates of the party shall not be deprived of their right to file their respective certificates of candidacy and run for office, if so qualified, but that they shall not be accorded the rights and privileges reserved by election laws for official nominees of registered political parties. Instead, they shall be treated as independent 38 candidates. From the foregoing, it is plain that the COMELEC misapplied equity in the present case. For all its conceded merits, equity is available 39 only in the absence of law and not as its replacement. Equity is described as justice without legality, which simply means that it 40 cannot supplant, although it may, as often happens, supplement the law. The COMELEC should have decided the case on the basis of the party constitution and election laws. It chose not to because of its irrational fear of treading, as respondent Aquino put it, on 41 "unchartered" territories. But, as shown above, these territories have long been charted by jurisprudence and, in any case, the COMELEC need not have sailed far from the shore to arrive at the correct conclusion. In truth, the COMELEC Resolution is indecision in the guise of equity.

Worse, the COMELEC divided the LDP into "wings," each of which may nominate candidates for every elective position. Both wings are also entitled to representatives in the election committees that the Commission may create. In the event that the LDP is accorded dominant minority party election status, election returns of odd-numbered precincts shall be furnished the Angara wing and those of even-numbered precincts, the Aquino wing. By creating the two wings, the COMELEC effectively diffused the LDPs strength and undeniably emasculated its chance of obtaining the Commissions nod as the dominant minority party. By allowing each wing to nominate different candidates, the COMELEC planted the seeds of confusion among the electorate, who 42 are apt to be confounded by two candidates from a single political party. In Recabo, Jr. v. Commission on Elections, this Court declared that the electoral process envisions one candidate from a political party for each position, and disunity and discord amongst members of a political party should not be allowed to create a mockery thereof. The admonition against mocking the electoral process not only applies to political parties but with greater force to the COMELEC. By according both wings representatives in the election committees, the COMELEC has eroded the significance of political parties and effectively divided the opposition. The COMELEC has lost sight of the unique political situation of the Philippines where, to paraphrase Justice Perfectos concurring opinion in Sotto, supra, the administration party has always been unnecessarily and dangerously too big and the opposition party too small to be an effective check on the administration. The purpose of according dominant status and representation to a minority party is precisely to serve as an effective check on the majority. The COMELEC performed a disservice to the opposition and, ultimately, to the voting public, as its Resolution facilitated, rather than forestalled, the division of the minority party. By splitting copies of the election returns between the two factions, the COMELEC has fractured both wings. The practical purpose of furnishing a party with a copy of the election returns is to allow it to tally the results of the elections at the precinct level. Ultimately, 43 it is a guard against fraud. Thus, resort to copies thereof may be had when the election returns are delayed, lost or destroyed, or 44 when they appear to be tampered or falsified. A split party without a complete set of election returns cannot successfully help preserve the sanctity of the ballot. It bears reminding respondent Commission of this Courts pronouncement in Peralta v. Commission on Elections, which, while made in the backdrop of a parliamentary form of government, holds equally true under the present government structure: political parties constitute a basic element of the democratic institutional apparatus. Government derives its strength from the support, active or passive, of a coalition of elements of society. In modern times the political party has become the instrument for the organization of societies. This is predicated on the doctrine that government exists with the consent of the governed. Political parties perform an "essential function in the management of succession to power, as well as in the process of obtaining popular consent to the course of public policy. They amass sufficient support to buttress the authority of governments; or, on the contrary, they attract or organize discontent and dissatisfaction sufficient to oust the government. In either case they perform the function of the articulation of the interests and aspirations of a substantial segment of the citizenry, usually in ways contended to be promotive of the national weal." The assailed COMELEC Resolution does not advance, but subverts, this philosophy behind political parties. As if to rationalize its folly, the COMELEC invokes the constitutional policy towards a free and open party system. This policy, 47 however, envisions a system that shall "evolve according to the free choice of the people," not one molded and whittled by the COMELEC. When the Constitution speaks of a multi-party system, it does not contemplate the COMELEC splitting parties into two. For doing just that, this pretender to the throne of King Solomon acted whimsically and capriciously. Certiorari lies against it, indeed. WHEREFORE, the assailed COMELEC Resolution is ANNULLED and the Petition is GRANTED IN PART. Respondent Commission on Elections is directed to recognize as official candidates of the Laban ng Demokratikong Pilipino only those whose Certificates of Candidacy are signed by LDP Party Chairman Senator Edgardo J. Angara or his duly authorized representative/s. SO ORDERED. Vitug, Panganiban, Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur. Davide, Jr., C.J., in the result. Puno, J., on leave. Vitug, J., please see separate opinion.
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Sandoval-Gutierrez, J., please see dissenting opinion. Corona, J., joins the dissenting opinion of J. Gutierrez. SEPARATE OPINION VITUG, J.: The instant petition fundamentally calls on the Court to determine who between Senator Edgardo J. Angara, the Chairman, and Representative Agapito A. Aquino, the Secretary General, of the Laban ng Demokratikong Pilipino (LDP), has the power and the authority under the LDP Constitution to nominate official candidates of the party and to correspondingly sign and endorse the certificate of nomination. The contending parties have performed acts which they, respectively, claim to be within the mandate of the LDP Constitution. Petitioner Angara asserts that long-standing LDP practice, as well as the provision of Section 5.5, Article VI, of the LDP 1 Constitution, empowers him as the party Chairman to nominate the official candidates of the LDP for president and vice-president in the event that its LDP National Congress does not, or fails to, convene. He states that the National Executive Council has met on 22 December 2003, where thirty-six (36) out of forty (40) members of the Council attended, during which a resolution "ratifying and confirming the covenant of national unity, the declaration of unity entered into by party Chairman Edgardo J. Angara, and all acts and decisions taken by him to enforce and implement the same; ratifying and confirming likewise all other acts and decisions of Chairman Angara, and other governing bodies to preserve the integrity, credibility, unity and solidarity of the party; and, further reiterating the vote of confidence of the national executive council in, and support to, the continued efforts of Chairman Angara to unite the political opposition," has been adopted. Respondent Aquino assails the resolution of the National Executive Council in that, allegedly, no proper notices have been sent for the holding of the meeting held on 22 December 2003 and that, on the basis of LDP records, only thirteen (13) members of the council have signed and approved the resolution. He claims that Senator Angara has deliberately refused to call a National Congress of the party. Representative Aquino relies on his authority in past elections to sign certificates of nomination of official candidates of LDP which, according to him, has not been revoked or recalled by the National Congress of the LDP. He also asseverates that on 04 December 2003, during the national meeting at Club Filipino attended by hundreds of members of the LDP, Senator Panfilo Lacson has been nominated unanimously as the partys candidate for president in the national elections scheduled on 10 May 2001, and that it has become ministerial for him, being the authorized signatory of the party, to issue the certificate of nomination in favor of Senator Lacson. It does appear to me that the matter involved in this controversy is an internal matter that the political party itself should resolve. More importantly, the petition is replete with factual problems which this Court cannot take on. The conflicting claims of the parties, such as the alleged intentional inaction of Senator Angara to convene the National Congress of the party, the disputed membership of the national Executive Council which passed the resolution supporting the questioned actions of petitioner Angara, the determination of an "extraordinary and emergency" situation that would entitle the party chairman to act, the validity of the actions taken at the behest of respondent Aquino in the National Congress on 04 December 2003, are but a few of the factual issues which need to be first established before any decision can conclusively be arrived at. The absence of factual determination by the COMELEC on the matters now being disputed by the parties hardly makes it feasible for this Court to rightly and decisively rule on the case. Once again, I submit, the Supreme Court is being tasked to exercise the judicial power on something where it should not as yet be asked. To the above extent, I, therefore, take exceptions from the ruling of the majority. DISSENTING OPINION SANDOVAL-GUTIERREZ, J.: The instant case arose from an internal squabble between two (2) factions of the Laban ng Demokratikong Pilipino (LDP), a registered national political party, which put up their respective presidential candidates in the May 2004 national elections. I find it necessary to state the following important antecedent facts culled from the parties pleadings, some of which were not mentioned in the ponencia of Justice Dante O. Tinga.

On November 28, 2003, Representative Rolex Suplico (5th District Iloilo), LDP Region VI Chairman, filed with the Office of 1 Representative Agapito A. Aquino, LDP Secretary General, herein respondent, a complaint against Senator Edgardo J. Angara, LDP Chairman, herein petitioner. The complaint charges petitioner with acts of disloyalty to the party, culpable violation of the LDP Constitution and By-Laws, disregard of duly approved Resolution of the LDP Executive Council, and other divisive acts inimical to the interest of the party. On December 4, 2003, a National Consultative Meeting of the LDP was held at the Club Filipino, Greenhills, San Juan, Metro Manila wherein Senator Panfilo Lacson was unanimously nominated as the partys official candidate for president in the May 10, 2004 2 national elections. On December 8, 2003, LDP General Counsel Demaree J.B. Raval filed wit the Commission on Elections (COMELEC) a 3 Manifestation stating that only its Party Chairman (petitioner Sen. Edgardo J. Angara) and only those whomsoever he may authorize in writing x x x are authorized to endorse, by way of a Certificate of Nomination, the Certificate of Candidacy of an LDP candidate. The Manifestation prays that the COMELEC: (a) recognize only those Certificates of Candidacy endorsed by petitioner Angara or his authorized representative;(b) deny due course all Certificates of Candidacy not endorsed by petitioner Angara or his representative; and (c) note the designation of Ambassador Enrique A. Zaldivar as LDP Acting Secretary General, in place of Rep. Agapito A. Aquino who was placed on indefinite forced leave as LDP Secretary General effective December 6, 2003 by virtue of 4 an Advisory dated December 7, 2003 issued by petitioner. Going back to the Suplico complaint, respondent Aquino, claiming to have authority as Secretary General under the LDP Constitution 5 and By-Laws, issued an Order dated December 10, 2003, creating a committee composed of three (3) members of the National Executive Council (the LDP governing body) to investigate and recommend appropriate action thereon. He likewise sent petitioner 6 Angara a letter of even dated informing him of the complaint and requesting him to respond thereto within five (5) days from receipt. On December 12, 2003, the 3-member Investigating Committee of the National Executive Council issued a Resolution placing petitioner on preventive suspension as party Chairman effective immediately and directing him to refrain from exercising official acts in behalf of the party until and after the Committee finishes its investigation and submits its final recommendation to the National Executive Council and/or National Congress. The Resolution states that such suspension is deemed necessary to forestall further dissention within the party members detrimental to the partys image and interest. On December 16, 2003, respondent Aquino submitted his Comment on the Manifestation, claiming that he was not given prior notice when petitioner Angara unilaterally placed him on indefinite forced leave. Thus, the Advisory, upon which the Manifestation was based, is a total nullity and must be disregarded by the COMELEC. Subsequently, petitioner Angara converted the Manifestation into a verified petition, docketed as E.M. 03-018. The Petition further alleges that on December 22, 2003, the National Executive Council met and, 36 out of its 40 members, adopted a 10 Resolution entitled, A Resolution Ratifying and confirming the Covenant of National Unity, the Declaration of Unity Entered Into by Party Chairman Edgardo J. Angara, and All Acts and Decisions Taken by him to Enforce and Implement the Same; Ratifying and Confirming All His Other Acts and Decisions and Other Governing Bodies to Preserve the Integrity, Credibility, Unity and Solidarity of the Party; and, Further Reiterating the Vote of Confidence of the National Executive Council in Support of the Continued Efforts of Chairman Angara to Unite the Political Opposition. Among the actions/decision of petitioner Angara which were allegedly ratified and confirmed by the LDP National Executive Council in said Resolution were: (a) the creation of an opposition coalition Koalisyon ng Nagkakaisang Pilipino (KNP) which later adopted a Resolution entitled, resolution Choosing Mr. Fernando Poe, Jr. as the Standard Bearer of the KNP for President of the Republic of the Philippines in the May 10, 2004 National Elections; (b) the decision to place respondent Aquino on indefinite forced leave; and (c) the filing of the aforementioned LDP Manifestation before the COMELEC. In his Answer to the Petition, respondent Aquino assailed the so-called Resolution of the National Executive Council allegedly adopted during a meeting on December 22, 2003, claiming that it is unauthorized and illegal because no proper notices have been sent for the holding of such meeting. Moreover, based on LDP records, only 13 members of the Council have signed and approved the supposed Resolution.Which means that it was not approved by a majority of those present, taking into account petitioner Angaras claim that 36 Council members attended the meeting. Thus, the supposed Resolution is void and cannot ratify/confirm any act of petitioner Angara.
11 9 8 7

Respondent Aquino further asserted in his Answer that since the 2001 national elections, he, as LDP Secretary General, was the sole officer who endorsed the Certificates of Nomination of the partys national candidates and who delegated such authority to duly authorized representatives. The COMELEC then heard the parties on oral arguments, after which the case was submitted for resolution. On January 6, 2004, the COMELEC en banc issued the assailed Resolution, the dispositive portion of which reads: WHEREFORE, premises considered, the petition is GRANTED with LEGAL EQUITY for both Petitioner and Oppositor. The candidates for President down to the last Sangguniang Bayan Kagawad nominated and endorsed by LDP Chairman Edgardo J. Angara are recognized by the Commission as official candidates of LDP Angara Wing. The candidates from President down to the last Sangguniang Bayan Kagawad as nominated and endorsed by the LDP Secretary General Agapito Butz Aquino are recognized as official candidates of LDP Aquino Wing. Consequently, each faction or wing is entitled to a representative to any election committee to which it may be entitled as created by the Commission for the May 10, 2004 elections. For the copies of the election returns, theAngara Wing will be entitled to the copies corresponding to odd number of precincts, that us Precinct Nos. 1, 3, 5, etc., and for the Aquino Wing to the even number of precincts, that is, Precinct Nos. 2, 4, 6, etc. This is on the assumption that the LDP or as a party within a registered Political Coalition becomes a recognized and denominated as a Dormant Minority Party under the Election Laws. The two LDP Wings are further entitled to and be accorded the rights and privileges with corresponding legal obligations under Election Laws. SO ORDERED. Claiming that the Resolution was issued with grave abuse of discretion, petitioner Angara filed the instant Petition for Certiorari. The contending parties raise the issue as who between the petitioner, as LDP Chairman, and the respondent, as LDP Secretary General, shall nominate its official candidates in the coming national elections. Undoubtedly, this is to me a purely internal party concern, the determination of which rests solely within the party itself, in the absence of statutes giving the courts jurisdiction over the same. The party has its own machinery to govern such conflict. Consequently, this Court cannot step into such private turf and dictate on the LDP party members who should be their official 13 candidate for president. In Sinaca vs. Mula, this Court en banc, through Chief Justice Hilario G. Davide, Jr., ruled: We also agree with the contention of EMMANUEL (Sinaca) that the decision as to which member a party shall nominate as its candidate is a party concern which is not cognizable by the courts. A political party has the right to identify the people who constitute the association and to select a standard bearer who best represents the partys ideologies and preference (see 26 AM Jur 2d, Elections Sec. 255, 67). Political parties are generally free to conduct their internal affairs free from judicial supervision; this common-law principle of judicial restraint, rooted in the constitutionally protected right of free association, serves the public interest by allowing the political processes to operate without undue interference(Nielsen v. Kezer, 232 Conn 65, 652 A2d 1013). Thus, the rule is that the determination of disputes as to party nominations rests with the party, in the absence of statutes giving the courts jurisdiction (Hunt v. Superior Court, 64 Ariz 325, 170 P2d 293. See also Oniel v. OConnell, 300 Ky 707, 189 Sw2d 965, 169 ALR 1271, holding that courts have no power in the absence of a statute conferring jurisdiction to interfere with operations of a political party). Quintessentially, where there us no controlling statute or clear legal right involved, the court will not assume jurisdiction to determine factional controversies within a political party, but will leave the matter for determination by the proper tribunals of the party itself or by the electors at the polls (25 Am Jur 2d, elections Sec. 205, 982). Similarly, in the absence of specific constitutional or legislative regulations defining how nominations are to be made, or prohibiting nominations from being made in certain ways, political parties may handle party affairs, including nominations, in such manner as party rules may establish (Tucker v. State Board of Alcoholic Control, 240 NC 177, 81 SE 2d 399; Brewster v. Massey [Tex Civ App] 232 SW2d 678). (Underscoring ours) In fine, we should not assume jurisdiction over the petition, the issue here being purely an internal party matter not cognizable by this Court. ACCORDINGLY, I vote to DISMISS the instant petition.
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EN BANC G.R. No. 189698 December 1, 2009

ELEAZAR P. QUINTO and GERINO A. TOLENTINO, JR., Petitioners, vs. COMMISSION ON ELECTIONS, Respondent. DECISION NACHURA, J.: In our predisposition to discover the "original intent" of a statute, courts become the unfeeling pillars of the status quo. Little do we realize that statutes or even constitutions are bundles of compromises thrown our way by their framers. Unless we exercise 1 vigilance, the statute may already be out of tune and irrelevant to our day. It is in this light that we should address the instant case. Before the Court is a petition for prohibition and certiorari, with prayer for the issuance of a temporary restraining order and a writ of preliminary injunction, assailing Section 4(a) of Resolution No. 8678 of the Commission on Elections (COMELEC). In view of pressing contemporary events, the petition begs for immediate resolution. The Antecedents This controversy actually stems from the law authorizing the COMELEC to use an automated election system (AES). On December 22, 1997, Congress enacted Republic Act (R.A.) No. 8436, entitled "AN ACT AUTHORIZING THE COMMISSION ON ELECTIONS TO USE AN AUTOMATED ELECTION SYSTEM IN THE MAY 11, 1998 NATIONAL OR LOCAL ELECTIONS AND IN SUBSEQUENT NATIONAL AND LOCAL ELECTORAL EXERCISES, PROVIDING FUNDS THEREFOR AND FOR OTHER PURPOSES." Section 11 thereof reads: SEC. 11. Official Ballot.- The Commission shall prescribe the size and form of the official ballot which shall contain the titles of the positions to be filled and/or the propositions to be voted upon in an initiative, referendum or plebiscite. Under each position, the names of candidates shall be arranged alphabetically by surname and uniformly printed using the same type size. A fixed space where the chairman of the Board of Election inspectors shall affix his/her signature to authenticate the official ballot shall be provided. Both sides of the ballots may be used when necessary. For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/manifestation to participate in the election shall not be later than one hundred twenty (120) days before the elections: - Provided, That, any elective official, whether national or local, running for any office other than the one which he/she is holding in a permanent capacity, except for president and vice president, shall be deemed resigned only upon the start of the campaign period corresponding to the position for which he/she is running: Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period: Provided, finally, That, for purposes of the May 11, 1998 elections, the deadline for filing of the certificate of candidacy for the positions of President, Vice President, Senators and candidates under the Party-List System as well as petitions for registration and/or manifestation to participate in the Party-List System shall be on February 9, 1998 while the deadline for the filing of certificate of candidacy for other positions shall be on March 27, 1998. The official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas at the price comparable with that of private printers under proper security measures which the Commission shall adopt. The Commission may contract the services of private printers upon certification by the National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the printing requirements. Accredited political parties and deputized citizens' arms of the Commission may assign watchers in the printing, storage and distribution of official ballots. To prevent the use of fake ballots, the Commission through the Committee shall ensure that the serial number on the ballot stub shall be printed in magnetic ink that shall be easily detectable by inexpensive hardware and shall be impossible to reproduce on a photocopying machine and that identification marks, magnetic strips, bar codes and other technical and security markings, are provided on the ballot.

The official ballots shall be printed and distributed to each city/municipality at the rate of one (1) ballot for every registered voter 2 with a provision of additional four (4) ballots per precinct. Almost a decade thereafter, Congress amended the law on January 23, 2007 by enacting R.A. No. 9369, entitled "AN ACT AMENDING REPUBLIC ACT NO. 8436, ENTITLED "AN ACT AUTHORIZING THE COMMISSION ON ELECTIONS TO USE AN AUTOMATED ELECTION SYSTEM IN THE MAY 11, 1998 NATIONAL OR LOCAL ELECTIONS AND IN SUBSEQUENT NATIONAL AND LOCAL ELECTORAL EXERCISES, TO ENCOURAGE TRANSPARENCY, CREDIBILITY, FAIRNESS AND ACCURACY OF ELECTIONS, AMENDING FOR THE PURPOSE BATAS PAMPANSA BLG. 881, AS AMEMDED, REPUBLIC ACT NO. 7166 AND OTHER RELATED ELECTION LAWS, PROVIDING FUNDS THEREFOR AND FOR OTHER PURPOSES." Section 13 of the amendatory law modified Section 11 of R.A. No. 8436, thus: SEC. 13. Section 11 of Republic Act No. 8436 is hereby amended to read as follows: Section 15. Official Ballot.- The Commission shall prescribe the format of the electronic display and/or the size and form of the official ballot, which shall contain the titles of the position to be filled and/or the propositions to be voted upon in an initiative, referendum or plebiscite. Where practicable, electronic displays must be constructed to present the names of all candidates for the same position in the same page or screen, otherwise, the electronic displays must be constructed to present the entire ballot to the voter, in a series of sequential pages, and to ensure that the voter sees all of the ballot options on all pages before completing his or her vote and to allow the voter to review and change all ballot choices prior to completing and casting his or her ballot. Under each position to be filled, the names of candidates shall be arranged alphabetically by surname and uniformly indicated using the same type size. The maiden or married name shall be listed in the official ballot, as preferred by the female candidate. Under each proposition to be vote upon, the choices should be uniformly indicated using the same font and size. A fixed space where the chairman of the board of election inspectors shall affix his/her signature to authenticate the official ballot shall be provided. For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition of registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers and employees in government-owned or -controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certificate of candidacy. Political parties may hold political conventions to nominate their official candidates within thirty (30) days before the start of the period for filing a certificate of candidacy. With respect to a paper-based election system, the official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas at the price comparable with that of private printers under proper security measures which the Commission shall adopt. The Commission may contract the services of private printers upon certification by the National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the printing requirements. Accredited political parties and deputized citizens' arms of the Commission shall assign watchers in the printing, storage and distribution of official ballots. To prevent the use of fake ballots, the Commission through the Committee shall ensure that the necessary safeguards, such as, but not limited to, bar codes, holograms, color shifting ink, microprinting, are provided on the ballot. The official ballots shall be printed and distributed to each city/municipality at the rate of one ballot for every registered voter with a 3 provision of additional three ballots per precinct. Pursuant to its constitutional mandate to enforce and administer election laws, COMELEC issued Resolution No. 8678, the Guidelines on the Filing of Certificates of Candidacy (CoC) and Nomination of Official Candidates of Registered Political Parties in Connection with the May 10, 2010 National and Local Elections. Sections 4 and 5 of Resolution No. 8678 provide: SEC. 4. Effects of Filing Certificates of Candidacy.- a) Any person holding a public appointive office or position including active members of the Armed Forces of the Philippines, and other officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.
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b) Any person holding an elective office or position shall not be considered resigned upon the filing of his certificate of candidacy for the same or any other elective office or position. SEC. 5. Period for filing Certificate of Candidacy.- The certificate of candidacy shall be filed on regular days, from November 20 to 30, 2009, during office hours, except on the last day, which shall be until midnight. Alarmed that they will be deemed ipso facto resigned from their offices the moment they file their CoCs, petitioners Eleazar P. Quinto and Gerino A. Tolentino, Jr., who hold appointive positions in the government and who intend to run in the coming 5 elections, filed the instant petition for prohibition and certiorari, seeking the declaration of the afore-quoted Section 4(a) of Resolution No. 8678 as null and void. The Petitioners' Contention Petitioners contend that the COMELEC gravely abused its discretion when it issued the assailed Resolution. They aver that the advance filing of CoCs for the 2010 elections is intended merely for the purpose of early printing of the official ballots in order to cope with time limitations. Such advance filing does not automatically make the person who filed the CoC a candidate at the moment of filing. In fact, the law considers him a candidate only at the start of the campaign period. Petitioners then assert that this being so, they should not be deemed ipso facto resigned from their government offices when they file their CoCs, because at such time they are not yet treated by law as candidates. They should be considered resigned from their respective offices only at the start 6 of the campaign period when they are, by law, already considered as candidates. Petitioners also contend that Section 13 of R.A. No. 9369, the basis of the assailed COMELEC resolution, contains two conflicting provisions. These must be harmonized or reconciled to give effect to both and to arrive at a declaration that they are not ipso facto 7 resigned from their positions upon the filing of their CoCs. Petitioners further posit that the provision considering them as ipso facto resigned from office upon the filing of their CoCs is 8 discriminatory and violates the equal protection clause in the Constitution. The Respondent's Arguments On the procedural aspect of the petition, the Office of the Solicitor General (OSG), representing respondent COMELEC, argues that petitioners have no legal standing to institute the suit." Petitioners have not yet filed their CoCs, hence, they are not yet affected by the assailed provision in the COMELEC resolution. The OSG further claims that the petition is premature or unripe for judicial determination." Petitioners have admitted that they are merely planning to file their CoCs for the coming 2010 elections. Their interest in the present controversy is thus merely speculative and contingent upon the filing of the same. The OSG likewise contends that petitioners availed of the wrong remedy. They are questioning an issuance of the COMELEC made in the exercise of the latter's 9 rule-making power. Certiorari under Rule 65 is then an improper remedy. On the substantive aspect, the OSG maintains that the COMELEC did not gravely abuse its discretion in phrasing Section 4(a) of Resolution No. 8678 for it merely copied what is in the law. The OSG, however, agrees with petitioners that there is a conflict in Section 13 of R.A. No. 9369 that should be resolved. According to the OSG, there seems to be no basis to consider appointive officials as ipso facto resigned and to require them to vacate their positions on the same day that they file their CoCs, because they are not yet considered as candidates at that time. Further, this - deemed resigned- provision existed in Batas Pambansa Bilang (B.P. 10 Blg.) 881, and no longer finds a place in our present election laws with the innovations brought about by the automated system. Our Ruling I. At first glance, the petition suffers from an incipient procedural defect. What petitioners assail in their petition is a resolution issued by the COMELEC in the exercise of its quasi-legislative power. Certiorari under Rule 65, in relation to Rule 64, cannot be availed of, because it is a remedy to question decisions, resolutions and issuances made in the exercise of a judicial or quasi-judicial 11 function. Prohibition is also an inappropriate remedy, because what petitioners actually seek from the Court is a determination of the proper construction of a statute and a declaration of their rights thereunder. Obviously, their petition is one for declaratory 12 13 relief, over which this Court does not exercise original jurisdiction.

However, petitioners raise a challenge on the constitutionality of the questioned provisions of both the COMELEC resolution and the law. Given this scenario, the Court may step in and resolve the instant petition. The transcendental nature and paramount importance of the issues raised and the compelling state interest involved in their early resolution the period for the filing of CoCs for the 2010 elections has already started and hundreds of civil servants intending to run for elective offices are to lose their employment, thereby causing imminent and irreparable damage to their means of livelihood and, at the same time, crippling the government's manpowerfurther dictate that the Court must, for propriety, if only from a sense of obligation, entertain the petition so as to expedite the adjudication of all, especially the constitutional, issues. In any event, the Court has ample authority to set aside errors of practice or technicalities of procedure and resolve the merits of a case. Repeatedly stressed in our prior decisions is the principle that the Rules were promulgated to provide guidelines for the orderly administration of justice, not to shackle the hand that dispenses it. Otherwise, the courts would be consigned to being mere 14 slaves to technical rules, deprived of their judicial discretion. II. To put things in their proper perspective, it is imperative that we trace the brief history of the assailed provision. Section 4(a) of COMELEC Resolution No. 8678 is a reproduction of the second proviso in the third paragraph of Section 13 of R.A. No. 9369, which for ready reference is quoted as follows: For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition for registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers and employees in government-owned or -controlled corporations, shall be considered ipso facto resigned from his/her office and must 15 vacate the same at the start of the day of the filing of his/her certificate of candidacy. Notably, this proviso is not present in Section 11 of R.A. No. 8436, the law amended by R.A. No. 9369. The proviso was lifted from Section 66 of B.P. Blg. 881 or the Omnibus Election Code (OEC) of the Philippines, which reads: Sec. 66. Candidates holding appointive office or position.- Any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. It may be recalled-in inverse chronology-that earlier, Presidential Decree No. 1296, or the 1978 Election Code, contained a similar provision, thus' SECTION 29. Candidates holding appointive office or position. - Every person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall ipso facto cease in his office or position on the date he files his certificate of candidacy. Members of the Cabinet shall continue in the offices they presently hold notwithstanding the filing of certificate of candidacy, subject to the pleasure of the President of the Philippines. Much earlier, R.A. No. 6388, or the Election Code of 1971, likewise stated in its Section 23 the following: SECTION 23. Candidates Holding Appointive Office or Position. - Every person holding a public appointive office or position, including active members of the Armed Forces of the Philippines and every officer or employee in government-owned or controlled corporations, shall ipso facto cease in his office or position on the date he files his certificate of candidacy: Provided, That the filing of a certificate of candidacy shall not affect whatever civil, criminal or administrative liabilities which he may have incurred. Going further back in history, R.A. No. 180, or the Revised Election Code approved on June 21, 1947, also provided that SECTION 26. Automatic cessation of appointive officers and employees who are candidates. - Every person holding a public appointive office or position shall ipso facto cease in his office or position on the date he files his certificate of candidacy.

During the Commonwealth era, Commonwealth Act (C.A.) No. 725, entitled "AN ACT TO PROVIDE FOR THE NEXT ELECTION FOR PRESIDENT AND VICE-PRESIDENT OF THE PHILIPPINES, SENATORS AND MEMBERS OF THE HOUSE OF REPRESENTATIVES, AND APPROPRIATING THE NECESSARY FUNDS THEREFOR," approved on January 5, 1946, contained, in the last paragraph of its Section 2, the following: A person occupying any civil office by appointment in the government or any of its political subdivisions or agencies or governmentowned or controlled corporations, whether such office by appointive or elective, shall be considered to have resigned from such office from the moment of the filing of such certificate of candidacy. Significantly, however, C.A. No. 666, entitled "AN ACT TO PROVIDE FOR THE FIRST ELECTION FOR PRESIDENT AND VICE-PRESIDENT OF THE PHILIPPINES, SENATORS, AND MEMBERS OF THE HOUSE OF REPRESENTATIVES, UNDER THE CONSTITUTION AND THE AMENDMENTS THEREOF," enacted without executive approval on June 22, 1941, the precursor of C.A. No. 725, only provided for automatic resignation of elective, but not appointive, officials. Nevertheless, C.A. No. 357, or the Election Code approved on August 22, 1938, had, in its Section 22, the same verbatim provision as Section 26 of R.A. No. 180. The earliest recorded Philippine law on the subject is Act No. 1582, or the Election Law enacted by the Philippine Commission in 1907, the last paragraph of Section 29 of which reads: Sec. 29. Penalties upon officers.- x x x. No public officer shall offer himself as a candidate for election, nor shall he be eligible during the time that he holds said public office to election, at any municipal, provincial or Assembly election, except for reelection to the position which he may be holding, and no judge of the Court of First Instance, justice of the peace, provincial fiscal, or officer or employee of the Bureau of Constabulary or of the Bureau of Education shall aid any candidate or influence in any manner or take any part in any municipal, provincial, or Assembly election under penalty of being deprived of his office and being disqualified to hold any public office whatever for a term of five years: Provided, however, That the foregoing provisions shall not be construed to deprive any person otherwise qualified of the right to vote at any election. From this brief historical excursion, it may be gleaned that the second proviso in the third paragraph of Section 13 of R.A. No. 9369that any person holding a public appointive office or position, including active members of the armed forces, and officers, and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certificate of candidacy- traces its roots to the period of the American occupation. In fact, during the deliberations of Senate Bill No. 2231, the bill later to be consolidated with House Bill No. 5352 and enacted as R.A. No. 9369, Senator Richard Gordon, the principal author of the bill, acknowledged that the said proviso in the proposed legislative measure is an old provision which was merely copied from earlier existing legislation, thus' Senator Osmea.- May I just opine here and perhaps obtain the opinion of the good Sponsor.- This reads like, "ANY PERSON HOLDING [means currently] A PUBLIC APPOINTIVE POSITION" SHALL BE CONSIDERED IPSO FACTO RESIGNED- [which means that the prohibition extends only to appointive officials] "INCLUDING ACTIVE MEMBERS OF THE ARMED FORCES, OFFICERS AND EMPLOYEES"- This is a prohibition, Mr. President.- This means if one is chairman of SSS or PDIC, he is deemed ipso facto resigned when he files his certificate of candidacy.- Is that the intention Senator Gordon.- This is really an old provision, Mr. President. Senator Osmea.- It is in bold letters, so I think it was a Committee amendment. Senator Gordon.- No, it has always been there. Senator Osmea.- I see. Senator Gordon.- I guess the intention is not to give them undue advantage, especially certain people.

Senator Osmea.- All right.

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In that Senate deliberation, however, Senator Miriam Defensor-Santiago expressed her concern over the inclusion of the said provision in the new law, given that the same would be disadvantageous and unfair to potential candidates holding appointive positions, while it grants a consequent preferential treatment to elective officials, thus' Senator Santiago.- On page 15, line 31, I know that this is a losing cause, so I make this point more as a matter of record than of any feasible hope that it can possibly be either accepted or if we come to a division of the House, it will be upheld by the majority. I am referring to page 15, line 21.- The proviso begins: "PROVIDED FINALLY, THAT ANY PERSON HOLDING A PUBLIC APPOINTIVE OFFICE - SHALL BE CONSIDERED IPSO FACTO RESIGNED FROM HIS/HER OFFICE." The point that I made during the appropriate debate in the past in this Hall is that there is, for me, no valid reason for exempting elective officials from this inhibition or disqualification imposed by the law.- If we are going to consider appointive officers of the government, including AFP members and officers of government-owned and controlled corporations, or any other member of the appointive sector of the civil service, why should it not apply to the elective sector for, after all, even senators and congressmen are members of the civil service as well Further, it is self-serving for the Senate, or for the Congress in general, to give an exception to itself which is not available to other similarly situated officials of government. Of course, the answer is, the reason why we are special is that we are elected. Since we are imposing a disqualification on all other government officials except ourselves, I think, it is the better part of delicadeza to inhibit ourselves as well, so that if we want to stay as senators, we wait until our term expires. But if we want to run for some other elective office during our term, then we have to be considered resigned just like everybody else. That is my proposed amendment. But if it is unacceptable to the distinguished Sponsor, because of sensitivity to the convictions of the rest of our colleagues, I will understand. Senator Gordon. Mr. President, I think the suggestion is well-thought of.- It is a good policy.- However, this is something that is 17 already in the old law which was upheld by the Supreme court in a recent case that the rider was not upheld and that it was valid. The obvious inequality brought about by the provision on automatic resignation of appointive civil servants must have been the reason why Senator Recto proposed the inclusion of the following during the period of amendments: "ANY PERSON WHO FILES HIS CERTIFICATE OF CANDIDACY WITHIN THIS PERIOD SHALL ONLY BE CONSIDERED AS A CANDIDATE AT THE START OF THE CAMPAIGN 18 PERIOD FOR WHICH HE FILED HIS COC." The said proviso seems to mitigate the situation of disadvantage afflicting appointive officials by considering persons who filed their CoCs as candidates only at the start of the campaign period, thereby, conveying the tacit intent that persons holding appointive positions will only be considered as resigned at the start of the campaign period when they are already treated by law as candidates. Parenthetically, it may be remembered that Section 67 of the OEC and Section 11 of R.A. No. 8436 contained a similar provision on automatic resignation of elective officials upon the filing of their CoCs for any office other than that which they hold in a permanent 19 capacity or for President or Vice-President. However, with the enactment of R.A. No. 9006, or the Fair Election Act, in 2001, this 20 provision was repealed by Section 14 of the said act. There was, thus, created a situation of obvious discrimination against appointive officials who were deemed ipso facto resigned from their offices upon the filing of their CoCs, while elective officials were not. This situation was incidentally addressed by the Court in Fariv. The Executive Secretary when it ruled that Section 14 of Rep. Act No. 9006 Is Not Violative of the Equal Protection Clause of the Constitution The petitioners' contention, that the repeal of Section 67 of the Omnibus Election Code pertaining to elective officials gives undue benefit to such officials as against the appointive ones and violates the equal protection clause of the constitution, is tenuous.
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The equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable classification.- If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from the other. The Court has explained the nature of the equal protection guarantee in this manner: The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality.- It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate.- It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced.- The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not. Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority.Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority. Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987 (Executive Order No. 292), appointive officials, as officers and employees in the civil service, are strictly prohibited from engaging in any partisan political activity or take part in any election except to vote.- Under the same provision, elective officials, or officers or employees holding political offices, are obviously expressly allowed to take part in political and electoral activities. By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators deemed it proper to treat these two classes of officials differently with respect to the effect on their tenure in the office of the filing of the certificates of candidacy for any position other than those occupied by them.- Again, it is not within the power of the Court to pass upon or look into the wisdom of this classification. Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis-a-vis appointive officials, is anchored upon material and significant distinctions and all the persons belonging under the same classification are similarly treated, the equal 22 protection clause of the Constitution is, thus, not infringed. However, it must be remembered that the Court, in Fari/i>, was intently focused on the main issue of whether the repealing clause in the Fair Election Act was a constitutionally proscribed rider, in that it unwittingly failed to ascertain with stricter scrutiny the impact of the retention of the provision on automatic resignation of persons holding appointive positions (Section 66) in the OEC, vis-is the equal protection clause.- Moreover, the Court's vision in Fari/i> was shrouded by the fact that petitioners therein, Fariet al., never posed a direct challenge to the constitutionality of Section 66 of the OEC. Fariet al. rather merely questioned, on constitutional grounds, the repealing clause, or Section 14 of the Fair Election Act. The Court's afore-quoted declaration in Fari/i> may then very well be considered as an obiter dictum. III. The instant case presents a rare opportunity for the Court, in view of the constitutional challenge advanced by petitioners, once and for all, to settle the issue of whether the second proviso in the third paragraph of Section 13 of R.A. No. 9369, a reproduction of Section 66 of the OEC, which, as shown above, was based on provisions dating back to the American occupation, is violative of the equal protection clause. But before delving into the constitutional issue, we shall first address the issues on legal standing and on the existence of an actual controversy. Central to the determination of locus standi is the question of whether a party has alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely 23 depends for illumination of difficult constitutional questions. In this case, petitioners allege that they will be directly affected by COMELEC Resolution No. 8678 for they intend, and they all have the qualifications, to run in the 2010 elections. The OSG, for its part, contends that since petitioners have not yet filed their CoCs, they are not yet candidates; hence, they are not yet directly affected by the assailed provision in the COMELEC resolution.

The Court, nevertheless, finds that, while petitioners are not yet candidates, they have the standing to raise the constitutional challenge, simply because they are qualified voters. A restriction on candidacy, such as the challenged measure herein, affects the rights of voters to choose their public officials. The rights of voters and the rights of candidates do not lend themselves to neat 24 separation; laws that affect candidates always have at least some theoretical, correlative effect on voters. The Court believes that both candidates and voters may challenge, on grounds of equal protection, the assailed measure because of its impact on voting 25 rights. In any event, in recent cases, this Court has relaxed the stringent direct injury test and has observed a liberal policy allowing ordinary citizens, members of Congress, and civil organizations to prosecute actions involving the constitutionality or validity of laws, 26 regulations and rulings. We have also stressed in our prior decisions that the exercise by this Court of judicial power is limited to the determination and 27 resolution of actual cases and controversies. The Court, in this case, finds that an actual case or controversy exists between the petitioners and the COMELEC, the body charged with the enforcement and administration of all election laws. Petitioners have alleged in a precise manner that they would engage in the very acts that would trigger the enforcement of the provisionthey would file their CoCs and run in the 2010 elections. Given that the assailed provision provides for ipso facto resignation upon the filing of 28 the CoC, it cannot be said that it presents only a speculative or hypothetical obstacle to petitioners' candidacy. IV. Having hurdled what the OSG posed as obstacles to judicial review, the Court now delves into the constitutional challenge. It is noteworthy to point out that the right to run for public office touches on two fundamental freedoms, those of expression and of 29 association. This premise is best explained in Mancuso v. Taft, viz.: Freedom of expression guarantees to the individual the opportunity to write a letter to the local newspaper, speak out in a public park, distribute handbills advocating radical reform, or picket an official building to seek redress of grievances. All of these activities are protected by the First Amendment if done in a manner consistent with a narrowly defined concept of public order and safety. The choice of means will likely depend on the amount of time and energy the individual wishes to expend and on his perception as to the most effective method of projecting his message to the public. But interest and commitment are evolving phenomena. What is an effective means for protest at one point in time may not seem so effective at a later date. The dilettante who participates in a picket line may decide to devote additional time and resources to his expressive activity. As his commitment increases, the means of effective expression changes, but the expressive quality remains constant. He may decide to lead the picket line, or to publish the newspaper. At one point in time he may decide that the most effective way to give expression to his views and to get the attention of an appropriate audience is to become a candidate for public office-means generally considered among the most appropriate for those desiring to effect change in our governmental systems. He may seek to become a candidate by filing in a general election as an independent or by seeking the nomination of a political party. And in the latter instance, the individual's expressive activity has two dimensions: besides urging that his views be the views of the elected public official, he is also attempting to become a spokesman for a political party whose substantive program extends beyond the particular office in question. But Cranston has said that a certain type of its citizenry, the public employee, may not become a candidate and may not engage in any campaign activity that promotes himself as a candidate for public office. Thus the city has stifled what may be the most important expression an individual can summon, namely that which he would be willing to effectuate, by means of concrete public action, were he to be selected by the voters. It is impossible to ignore the additional fact that the right to run for office also affects the freedom to associate. In Williams v. Rhodes, supra, the Court used strict review to invalidate an Ohio election system that made it virtually impossible for third parties to secure a place on the ballot. The Court found that the First Amendment protected the freedom to associate by forming and promoting a political party and that that freedom was infringed when the state effectively denied a party access to its electoral machinery. The Cranston charter provision before us also affects associational rights, albeit in a slightly different way. An individual may decide to join or participate in an organization or political party that shares his beliefs. He may even form a new group to forward his ideas. And at some juncture his supporters and fellow party members may decide that he is the ideal person to carry the group's standard into the electoral fray. To thus restrict the options available to political organization as the Cranston charter provision has done is to limit the effectiveness of association; and the freedom to associate is intimately related with the concept of making expression effective. Party access to the ballot becomes less meaningful if some of those selected by party machinery to carry the party's programs to the people are precluded from doing so because those nominees are civil servants.

Whether the right to run for office is looked at from the point of view of individual expression or associational effectiveness, wide opportunities exist for the individual who seeks public office. The fact of candidacy alone may open previously closed doors of the media. The candidate may be invited to discuss his views on radio talk shows; he may be able to secure equal time on television to elaborate his campaign program; the newspapers may cover his candidacy; he may be invited to debate before various groups that had theretofore never heard of him or his views. In short, the fact of candidacy opens up a variety of communicative possibilities that are not available to even the most diligent of picketers or the most loyal of party followers. A view today, that running for public office is not an interest protected by the First Amendment, seems to us an outlook stemming from an earlier era when public office was the preserve of the professional and the wealthy. Consequently we hold that candidacy is both a protected First Amendment right and a fundamental interest. Hence any legislative classification that significantly burdens that interest must be subjected to 30 strict equal protection review. Here, petitioners' interest in running for public office, an interest protected by Sections 4 and 8 of Article III of the Constitution, is breached by the proviso in Section 13 of R.A. No. 9369. It is now the opportune time for the Court to strike down the said proviso for being violative of the equal protection clause and for being overbroad. In considering persons holding appointive positions as ipso facto resigned from their posts upon the filing of their CoCs, but not considering as resigned all other civil servants, specifically the elective ones, the law unduly discriminates against the first class. The fact alone that there is substantial distinction between those who hold appointive positions and those occupying elective posts, does not justify such differential treatment. In order that there can be valid classification so that a discriminatory governmental act may pass the constitutional norm of equal protection, it is necessary that the four (4) requisites of valid classification be complied with, namely: (1) It must be based upon substantial distinctions; (2) It must be germane to the purposes of the law; (3) It must not be limited to existing conditions only; and (4) It must apply equally to all members of the class. The first requirement means that there must be real and substantial differences between the classes treated differently. As 31 illustrated in the fairly recent Mirasol v. Department of Public Works and Highways, a real and substantial distinction exists between a motorcycle and other motor vehicles sufficient to justify its classification among those prohibited from plying the toll ways. Not all motorized vehicles are created equal a two-wheeled vehicle is less stable and more easily overturned than a fourwheel vehicle. Nevertheless, the classification would still be invalid if it does not comply with the second requirement if it is not germane to the purpose of the law. Justice Isagani A. Cruz (Ret.), in his treatise on constitutional law, explains, The classification, even if based on substantial distinctions, will still be invalid if it is not germane to the purpose of the law. To illustrate, the accepted difference in physical stamina between men and women will justify the prohibition of the latter from employment as miners or stevedores or in other heavy and strenuous work. On the basis of this same classification, however, the law cannot provide for a lower passing average for women in the bar examinations because physical strength is not the test for admission to the legal profession. Imported cars may be taxed at a higher rate than locally assembled automobiles for the protection of the national economy, but their difference in origin is no justification for treating them differently when it comes to punishing 32 violations of traffic regulations. The source of the vehicle has no relation to the observance of these rules. The third requirement means that the classification must be enforced not only for the present but as long as the problem sought to be corrected continues to exist. And, under the last requirement, the classification would be regarded as invalid if all the members 33 of the class are not treated similarly, both as to rights conferred and obligations imposed. Applying the four requisites to the instant case, the Court finds that the differential treatment of persons holding appointive offices as opposed to those holding elective ones is not germane to the purposes of the law. The obvious reason for the challenged provision is to prevent the use of a governmental position to promote one's candidacy, or even to wield a dangerous or coercive influence on the electorate. The measure is further aimed at promoting the efficiency,

integrity, and discipline of the public service by eliminating the danger that the discharge of official duty would be motivated by 34 political considerations rather than the welfare of the public. The restriction is also justified by the proposition that the entry of civil servants to the electoral arena, while still in office, could result in neglect or inefficiency in the performance of duty because they would be attending to their campaign rather than to their office work. If we accept these as the underlying objectives of the law, then the assailed provision cannot be constitutionally rescued on the ground of valid classification. Glaringly absent is the requisite that the classification must be germane to the purposes of the law. Indeed, whether one holds an appointive office or an elective one, the evils sought to be prevented by the measure remain. For example, the Executive Secretary, or any Member of the Cabinet for that matter, could wield the same influence as the VicePresident who at the same time is appointed to a Cabinet post (in the recent past, elected Vice-Presidents were appointed to take charge of national housing, social welfare development, interior and local government, and foreign affairs). With the fact that they both head executive offices, there is no valid justification to treat them differently when both file their CoCs for the elections. Under the present state of our law, the Vice-President, in the example, running this time, let us say, for President, retains his position during the entire election period and can still use the resources of his office to support his campaign. As to the danger of neglect, inefficiency or partisanship in the discharge of the functions of his appointive office, the inverse could be just as true and compelling. The public officer who files his certificate of candidacy would be driven by a greater impetus for excellent performance to show his fitness for the position aspired for. Mancuso v. Taft, cited above, explains that the measure on automatic resignation, which restricts the rights of civil servants to run for officea right inextricably linked to their freedom of expression and association, is not reasonably necessary to the satisfaction of the state interest. Thus, in striking down a similar measure in the United States, Mancuso succinctly declares' In proceeding to the second stage of active equal protection review, however, we do see some contemporary relevance of the Mitchell decision. National Ass'n of Letter Carriers, supra. In order for the Cranston charter provision to withstand strict scrutiny, the city must show that the exclusion of all government employees from candidacy is necessary to achieve a compelling state interest. And, as stated in Mitchell and other cases dealing with similar statutes, see Wisconsin State Employees, supra; Broadrick, supra, government at all levels has a substantial interest in protecting the integrity of its civil service. It is obviously conceivable that the impartial character of the civil service would be seriously jeopardized if people in positions of authority used their discretion to forward their electoral ambitions rather than the public welfare. Similarly if a public employee pressured other fellow employees to engage in corrupt practices in return for promises of post-election reward, or if an employee invoked the power of the office he was seeking to extract special favors from his superiors, the civil service would be done irreparable injury. Conversely, members of the public, fellow-employees, or supervisors might themselves request favors from the candidate or might improperly adjust their own official behavior towards him. Even if none of these abuses actually materialize, the possibility of their occurrence might seriously erode the public's confidence in its public employees. For the reputation of impartiality is probably as crucial as the impartiality itself; the knowledge that a clerk in the assessor's office who is running for the local zoning board has access to confidential files which could provide pressure points for furthering his campaign is destructive regardless of whether the clerk actually takes advantage of his opportunities. For all of these reasons we find that the state indeed has a compelling interest in maintaining the honesty and impartiality of its public work force. We do not, however, consider the exclusionary measure taken by Cranston-a flat prohibition on office-seeking of all kinds by all kinds of public employees-as even reasonably necessary to satisfaction of this state interest. As Justice Marshall pointed out in Dunn v. Blumstein, [s]tatutes affecting constitutional rights must be drawn with precision. For three sets of reasons we conclude that the Cranston charter provision pursues its objective in a far too heavy-handed manner and hence must fall under the equal protection clause. First, we think the nature of the regulation-a broad prophylactic rule-may be unnecessary to fulfillment of the city's objective. Second, even granting some sort of prophylactic rule may be required, the provision here prohibits candidacies for all types of public office, including many which would pose none of the problems at which the law is aimed. Third, the provision excludes the candidacies of all types of public employees, without any attempt to limit exclusion to those employees whose positions make them vulnerable to corruption and conflicts of interest. There is thus no valid justification to treat appointive officials differently from the elective ones. The classification simply fails to meet the test that it should be germane to the purposes of the law. The measure encapsulated in the second proviso of the third paragraph of Section 13 of R.A. No. 9369 and in Section 66 of the OEC violates the equal protection clause. V. The challenged provision also suffers from the infirmity of being overbroad.
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First, the provision pertains to all civil servants holding appointive posts without distinction as to whether they occupy high positions in government or not. Certainly, a utility worker in the government will also be considered as ipso facto resigned once he files his CoC for the 2010 elections. This scenario is absurd for, indeed, it is unimaginable how he can use his position in the government to wield influence in the political world. While it may be admitted that most appointive officials who seek public elective office are those who occupy relatively high positions in government, laws cannot be legislated for them alone, or with them alone in mind. For the right to seek public elective office is universal, open and unrestrained, subject only to the qualification standards prescribed in the Constitution and in the laws. These qualifications are, as we all know, general and basic so as to allow the widest participation of the citizenry and to give free rein for the pursuit of one's highest aspirations to public office. Such is the essence of democracy. Second, the provision is directed to the activity of seeking any and all public offices, whether they be partisan or nonpartisan in character, whether they be in the national, municipal or barangay level. Congress has not shown a compelling state interest to 36 restrict the fundamental right involved on such a sweeping scale. Specific evils require specific treatments, not through overly broad measures that unduly restrict guaranteed freedoms of the citizenry. After all, sovereignty resides in the people, and all governmental power emanates from them. Mancuso v. Taft, on this point, instructs As to approaches less restrictive than a prophylactic rule, there exists the device of the leave of absence. Some system of leaves of absence would permit the public employee to take time off to pursue his candidacy while assuring him his old job should his candidacy be unsuccessful. Moreover, a leave of absence policy would eliminate many of the opportunities for engaging in the questionable practices that the statute is designed to prevent. While campaigning, the candidate would feel no conflict between his desire for election and his publicly entrusted discretion, nor any conflict between his efforts to persuade the public and his access to confidential documents. But instead of adopting a reasonable leave of absence policy, Cranston has chosen a provision that makes the public employee cast off the security of hard-won public employment should he desire to compete for elected office. The city might also promote its interest in the integrity of the civil service by enforcing, through dismissal, discipline, or criminal prosecution, rules or statutes that treat conflict of interests, bribery, or other forms of official corruption. By thus attacking the problem directly, instead of using a broad prophylactic rule, the city could pursue its objective without unduly burdening the First Amendment rights of its employees and the voting rights of its citizens. Last term in Dunn v. Blumstein, the Supreme Court faced an analogous question when the State of Tennessee asserted that the interest of ballot box purity justified its imposition of one year and three month residency requirements before a citizen could vote. Justice Marshall stated, inter alia, that Tennessee had available a number of criminal statutes that could be used to punish voter fraud without unnecessary infringement on the newcomer's right to vote. Similarly, it appears from the record in this case that the Cranston charter contains some provisions that might be used against opportunistic public employees. Even if some sort of prophylactic rule is necessary, we cannot say that Cranston has put much effort into tailoring a narrow provision that attempts to match the prohibition with the problem. The charter forbids a Cranston public employee from running for any office, anywhere. The prohibition is not limited to the local offices of Cranston, but rather extends to statewide offices and even to national offices. It is difficult for us to see that a public employee running for the United States Congress poses quite the same threat to the civil service as would the same employee if he were running for a local office where the contacts and information provided by his job related directly to the position he was seeking, and hence where the potential for various abuses was greater. Nor does the Cranston charter except the public employee who works in Cranston but aspires to office in another local jurisdiction, most probably his town of residence. Here again the charter precludes candidacies which can pose only a remote threat to the civil service. Finally, the charter does not limit its prohibition to partisan office-seeking, but sterilizes also those public employees who would seek nonpartisan elective office. The statute reviewed inMitchell was limited to partisan political activity, and since that time other courts have found the partisan-nonpartisan distinction a material one. See Kinnear, supra; Wisconsin State Employees, supra; Gray v. Toledo, supra. While the line between nonpartisan and partisan can often be blurred by systems whose true characters are disguised by the names given them by their architects, it seems clear that the concerns of a truly partisan office and the temptations it fosters are sufficiently different from those involved in an office removed from regular party politics to warrant distinctive treatment in a charter of this sort. The third and last area of excessive and overinclusive coverage of the Cranston charter relates not to the type of office sought, but to the type of employee seeking the office. As Justice Douglas pointed out in his dissent inMitchell, 330 U.S. at 120-126, 67 S.Ct. 556, restrictions on administrative employees who either participate in decision-making or at least have some access to information
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concerning policy matters are much more justifiable than restrictions on industrial employees, who, but for the fact that the government owns the plant they work in, are, for purposes of access to official information, identically situated to all other industrial workers. Thus, a worker in the Philadelphia mint could be distinguished from a secretary in an office of the Department of Agriculture; so also could a janitor in the public schools of Cranston be distinguished from an assistant comptroller of the same city. A second line of distinction that focuses on the type of employee is illustrated by the cases of Kinnear andMinielly, supra. In both of these cases a civil service deputy decided to run for the elected office of sheriff. The courts in both cases felt that the no-candidacy laws in question were much too broad and indicated that perhaps the only situation sensitive enough to justify a flat rule was one in which an inferior in a public office electorally challenged his immediate superior. Given all these considerations, we think Cranston has not given adequate attention to the problem of narrowing the terms of its charter to deal with the specific kinds of conflict-ofinterest problems it seeks to avoid. We also do not find convincing the arguments that after-hours campaigning will drain the energy of the public employee to the extent that he is incapable of performing his job effectively and that inevitable on-the-job campaigning and discussion of his candidacy will disrupt the work of others. Although it is indisputable that the city has a compelling interest in the performance of official work, the exclusion is not well-tailored to effectuate that interest. Presumably the city could fire the individual if he clearly shirks his employment responsibilities or disrupts the work of others. Also, the efficiency rationale common to both arguments is significantly underinclusive. It applies equally well to a number of non-political, extracurricular activities that are not prohibited by the Cranston charter. Finally, the connection between after-hours campaigning and the state interest seems tenuous; in many cases 38 a public employee would be able to campaign aggressively and still continue to do his job well. Incidentally, Clements v. Fashing sustained as constitutional a provision on the automatic resignation of District Clerks, County Clerks, County Judges, County Treasurers, Criminal District Attorneys, County Surveyors, Inspectors of Hides and Animals, County Commissioners, Justices of the Peace, Sheriffs, Assessors and Collectors of Taxes, District Attorneys, County Attorneys, Public Weighers, and Constables if they announce their candidacy or if they become candidates in any general, special or primary election. In Clements, it may be readily observed that a provision treating differently particular officials, as distinguished from all others, under a classification that is germane to the purposes of the law, merits the stamp of approval from American courts. Not, however, a general and sweeping provision, and more so one violative of the second requisite for a valid classification, which is on its face unconstitutional. On a final note, it may not be amiss to state that the Americans, from whom we copied the provision in question, had already stricken down a similar measure for being unconstitutional. It is high-time that we, too, should follow suit and, thus, uphold fundamental liberties over age-old, but barren, restrictions to such freedoms. WHEREFORE, premises considered, the petition is GRANTED. The second proviso in the third paragraph of Section 13 of Republic Act No. 9369, Section 66 of the Omnibus Election Code and Section 4(a) of COMELEC Resolution No. 8678 are declared as UNCONSTITUTIONAL. SO ORDERED. ANTONIO EDUARDO B. NACHURA Associate Justice WE CONCUR: REYNATO S. PUNO Chief Justice
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ANTONIO T. CARPIO Associate Justice CONCHITA CARPIO MORALES Associate Justice PRESBITERO J. VELASCO, JR.

RENATO C. CORONA Associate Justice MINITA V. CHICO-NAZARIO Associate Justice TERESITA J. LEONARDO-DE CASTRO

Associate Justice ARTURO D. BRION Associate Justice LUCAS P. BERSAMIN Associate Justice ROBERTO A. ABAD Associate Justice

Associate Justice DIOSDADO M. PERALTA Associate Justice MARIANO C. DEL CASTILLO Associate Justice MARTIN S. VILLARAMA, JR. Associate Justice

CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court. REYNATO S. PUNO Chief Justice

Footnotes
1

Salvacion v. Central Bank of the Philippines, G.R. No. 94723, August 21, 1997, 278 SCRA 27, 28. Emphasis supplied. Emphasis supplied. Promulgated on October 6, 2009.

Petitioner Eleazar P. Quinto is the Undersecretary for Field Operations of the Department of Environment and Natural Resources (DENR). He intends to run for Representative in the 4th Congressional District of Pangasinan. Petitioner Gerino A. Tolentino, Jr. is the OIC-Director of the Land Management Bureau of the DENR. He likewise desires to run for City Councilor in the 4th District of Manila. (Rollo, pp. 8-9.)
6

Rollo, pp. 10-13. Id. at 11. Id. at 12-13. Comment of the OSG, pp. 11-26. Id. at 27-40. The first paragraph of Sec. 1 of Rule 65 provides: SECTION 1. Petition for certiorari.- When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer,

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and granting such incidental reliefs as law and justice may require.- (See Patalinghug v. Commission on Elections, G.R. No. 178767, January 30, 2008, 543 SCRA 175, 184-185.)
12

The first paragraph of Sec. 1 of Rule 63 provides: SECTION 1. Who may file petition.- Any person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation may, before breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any question of construction or validity arising, and for a declaration of his rights or duties, thereunder.(See Almeda v. Bathala Marketing Industries, Inc., G.R. No. 150806, January 28, 2008, 542 SCRA 470, 478-479; John Hay Peoples Alternative Coalition v. Lim, G.R. No. 119775, October 24, 2003, 414 SCRA 356, 369.)

13

Salvacion v. Central Bank of the Philippines, supra note 1, at 39. MCC Industrial Sales Corporation v. Ssangyong Corporation, G.R. No. 170633, October 17, 2007, 536 SCRA 408, 433. Emphasis supplied. Record of the Senate, Vol. III, Session No. 29, September 27, 2006, pp. 69-70. Record of the Senate, Vol. III, Session No. 12, August 16, 2006, pp. 71-72. Senate Records and Archives, 13th CP, 3rd Regular Session, Vol. III, August 1, 2006, p. 25.

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Entitled "AN ACT TO ENHANCE THE HOLDING OF FREE, ORDERLY, HONEST, PEACEFUL AND CREDIBLE ELECTIONS THROUGH FAIR ELECTION PRACTICES," approved on February 12, 2001.
20

Sec. 14 of R.A. No. 9006 provides: SEC. 14 Repealing Clause.- Sections 67 and 85 of the Omnibus Election Code (Batas Pambansa Blg. 881) and Sections 10 and 11 of Republic Act No. 6646 are hereby repealed. As a consequence, the first proviso in the third paragraph of Section 11 of Republic Act No. 8436 is rendered ineffective. All laws, presidential decrees, executive orders, rules and regulations, or any part thereof inconsistent with the provisions of this Act are hereby repealed or modified or amended accordingly.

21

463 Phil. 179, 205-208 (2003). Citations omitted. Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736, 755. Bullock v. Carter, 405 U.S. 134, 143 (1972). Mancuso v. Taft, 476 F.2d 187, 190 (1973).

22

23

24

25

26

David v. Macapagal-Arroyo, G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489 and 171424, May 3, 2006, 489 SCRA 160, 218.
27

Dumlao v. COMELEC, G.R. No. L-52245, January 22, 1980, 95 SCRA 392, 401. This case explains the standards that have to be followed in the exercise of the power of judicial review, namely: (1) the existence of an appropriate case; (2) an interest personal and substantial by the party raising the constitutional question; (3) the plea that the function be exercised at the earliest opportunity; and (4) the necessity that the constitutional question be passed upon in order to decide the case.
28

Clements v. Fashing, 457 U.S. 957, 960; 102 S.Ct. 2836, 2843 (1982). Supra note 25, at 195-196.

29

30

Citations omitted. G.R. No. 158793, June 8, 2006, 490 SCRA 318, 351-352. Cruz, Constitutional Law (1998 ed.), p. 131. Id. at 131-132.

31

32

33

34

Fort v. Civil Service Commission of the County of Alameda, 61 Cal.2d 331, 336; 392 P.2d 385, 388; 38 Cal.Rptr. 625, 628 (1964).
35

Supra note 25, at 198-199. Kinnear v. City and County of San Francisco, 61 Cal.2d 341, 343; 392 P.2d 391, 392; 38 Cal.Rptr. 631, 632 (1964). Supra note 25, at 199-201. Citations omitted. Supra note 28.

36

37

38

39

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION PUNO, C.J.: The case at bar is a Petition for Certiorari and Prohibition with Prayer for Temporary Restraining Order and/or Writ of Preliminary Injunction seeking to nullify Section 4(a) of Resolution No. 8678 of the Commission on Elections (COMELEC) insofar as it decrees that -[a]ny person holding a public appointive office or position - shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. I. On October 6, 2009, the COMELEC issued Resolution No. 8678 (Resolution 8678) which lays down the rules and guidelines on the filing of certificates of candidacy and nomination of official candidates of registered political parties in connection with the May 10, 2010 National and Local Elections. Resolution 8678 provides, among others, the effects of filing certificates of candidacy, viz.: SECTION 4. Effects of Filing Certificates of Candidacy.- a) Any person holding a public appointive office or position including active members of the Armed Forces of the Philippines, and other officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. b) Any person holding an elective office or position shall not be considered resigned upon the filing of his certificate of candidacy for 2 the same or any other elective office or position. Under Section 4(a) of said Resolution, incumbent public appointive officials (including active members of the Armed Forces of the Philippines) and other officers and employees in government-owned or controlled corporations are deemed ipso facto resigned from their respective offices upon the filing of their respective certificates of candidacy. In contrast, Section 4(b) of the same Resolution provides that incumbent elected officials shall not be considered resigned upon the filing of their respective certificates of candidacy for the same or any other elective office or position.
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On October 19, 2009, petitioners Eleazar P. Quinto and Gerino A. Tolentino - both incumbent public appointive officials aspiring for 3 elective office in the forthcoming 2010 elections - filed the present Petition for Certiorari and Prohibition with Prayer for Temporary Restraining Order and/or Writ of Preliminary Injunction, seeking the nullification of Section 4(a) of Resolution 8678, and a declaration by this Court that any person holding a public appointive office or position including active members of the Armed Forces of the Philippines, and other officers and employees in government-owned-and-controlled corporations, shall be considered as ipso facto resigned only upon the start of the campaign period for which they filed their certificates of candidacy. II. Petitioners contend that the COMELEC acted with grave abuse of discretion when it decreed in the assailed Section 4(a) of Resolution 8678 that an appointive government official shall be considered ipso facto resigned from his office upon the filing of his 4 certificate of candidacy. Section 4(a) contravenes existing laws and jurisprudence on the matter. Petitioners point out that under existing law and jurisprudence, a government official who files his certificate of candidacy (within the advanced period fixed by COMELEC) is considered a candidate only from the onset of the campaign period for which his 5 certificate of candidacy was filed, and not upon the mere filing thereof. Section 11 of Republic Act No. 8436 (RA 8436), as amended by Republic Act No. 9369 (RA 9369), expressly provides: SEC. 15. Official Ballot. - The Commission shall prescribe the format of the electronic display and/or the size and form of the official ballot, which shall contain the titles of the position to be and/or the proposition to be voted upon in an initiative, referendum or plebiscite x x x xxxx For this purpose, the Commission shall set the deadline for the filing of the certificate of candidacy/petition of registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon that start of the campaign period: Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers and employees in government-owned or-controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certification of candidacy. x x x x (italics supplied) Petitioners note that in Lanot vs. COMELEC, we clarified that, consistent with the legislative intent, the advance filing of the certificate of candidacy mandated by RA 8436, as amended by RA 9369, is required only to provide ample time for the printing of 9 official ballots; it does not make the person filing a certificate of candidacy a candidate, except only for ballot-printing purposes. In this regard, petitioners contend that since, by law, a government official who files his certificate of candidacy is considered a candidate only upon the onset of the campaign period for which the certificate was filed, correspondingly, the attendant consequences of candidacy including that of being deemed to have ipso facto resigned from one's office, when and if applicable 10 should take effect only upon the onset of the relevant campaign period. - Thus, appointive officials should be considered ipso facto 11 resigned only upon the start of the campaign period for which their respective certificates of candidacy were filed. Petitioners insist that this interpretation is the better approach since it reconciles and harmonizes the perceived conflict between that portion of Section 13 of RA 9369 which states that [a]ny person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy and the subsequent proviso in the same section which states that any person holding a public appointive office or position x x x shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her candidacy, in a manner that is consistent with the apparent intent of the legislature to treat an appointive government official who files his certificate of 12 candidacy as a candidate only at the start of the campaign period. Section 4(a) violates the equal protection clause of the Constitution.
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Petitioners also point out that while Section 4(a) of RA 9369 considers incumbent appointive government officials who file their respective certificates of candidacy as "ipso facto resigned" from their offices upon the filing of their certificates of candidacy, a different rule is imposed in the case of incumbent elected officials who, under Section 4(b) of the same law, are not deemed 13 resigned upon the filing of their respective certificates of candidacy for the same or any other elective office or position. Petitioners contend that such differential treatment constitutes discrimination that is violative of the equal protection clause of the 14 Constitution. III. At the outset, it must be noted that the constitutional challenge was raised only with respect to Section 4(a) of Resolution 8678, and solely on equal protection terms. Nevertheless, in resolving the present petition, the ponencia extends its analysis to two other provisions of law - (a) Section 13 of RA 9369, particularly the proviso thereof which states that - any person holding a public appointive office or position, including active members of the armed forces, and officers and employees in government-owned orcontrolled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certification of candidacy, and (b) Section 66 of the Omnibus Election Code. It then proceeds to strike down said provisions not only on equal protection grounds, but on overbreadth terms as well. However, it must be noted that constitutional judgments are justified only out of the necessity of adjudicating rights in particular 15 cases between the litigants before the Court. This principle reflects the conviction that under our constitutional system, courts are 16 not roving commissions assigned to pass judgment on the validity of the nation's laws on matters which have not been squarely put in issue. In striking down these provisions of law, the ponencia ruled that: (1) These provisions violate the equal protection clause inasmuch as the differential treatment therein of persons holding appointive offices as opposed to those holding elective positions is not germane to the purposes of the law; and (2) These provisions are unconstitutionally overbroad insofar as they seek to limit the candidacy of all civil servants holding appointive posts without distinction as to whether or not they occupy high/influential positions in the government, and insofar as they seek to limit the activity of seeking any and all public offices, whether they be partisan or nonpartisan in character, or whether they be in the national, municipal or barangay level. According to the ponencia, Congress has not shown a compelling state interest to restrict the fundamental right involved on such a sweeping scale. For reasons explained below, I am constrained to dissent. IV. Before proceeding to discuss the petition in light of the manner in which the majority disposed of the case, it is necessary to first examine the legislative and jurisprudential history of the long-standing rule on deemed resignations, as embodied in the assailed Section 4(a) of Resolution 8678, in order to gain a proper understanding of the matter at hand. Pre-Batas Pambansa Blg. 881: The law on deemed resignations of public officials who participate as candidates in electoral exercises, finds its genesis in Act No. 1582, or the 1907 Election Law, the relevant portion of which reads: Sec. 29. Penalties upon officers. - x x x x No public officer shall offer himself as a candidate, nor shall he be eligible during the time that he holds said public office to election, at any municipal, provincial or Assembly election, except for reelection to the position which he may be holding, and no judge of the Court of First Instance, justice of peace, provincial fiscal, or officer or employee of the Bureau of Constabulary or of the Bureau of Education shall aid any candidate or influence in any manner or take part in any municipal, provincial or Assembly election under penalty of being deprived of his office and being disqualified to hold any public office whatever for a term of five years: Provided, however, That the foregoing provision shall not be construed to deprive any person otherwise qualified of the right to vote at any election.

Subsequently, the original rule on deemed resignations was bifurcated into two separate provisions of law one for appointive officials, and another for elected officials although the essence of the original rule was preserved for both groups. For appointive officials, Section 22 of Commonwealth Act No. 357 provided that: Every person holding a public appointive office or position shall ipso facto cease in his office or position on the date he files his certificate of candidacy. As for elected officials, the last paragraph of Section 2 of Commonwealth Act No. 666 stated: Any elective provincial, municipal, or city official running for an office, other than the one for which he has been lastly elected, shall be considered resigned from his office from the moment of the filing of his certificate of candidacy. These rules were substantially reiterated in Republic Act No. 180, or the Revised Election Code of 1947, which provides in relevant part: SECTION 26. Automatic cessation of appointive officers and employees who are candidates. Every person holding a public appointive office or position shall ipso facto cease in his office or position on the date he files his certificate of candidacy. SECTION 27. Candidate holding office. - Any elective provincial, municipal, or city official running for an office, other than the one which he is actually holding, shall be considered resigned from his office from the moment of the filing of his certificate of candidacy. However, as may be noticed, Section 27 of the Revised Election Code of 1947 introduced an amendment to the rule in respect of elected officials. While Section 2 of Commonwealth Act No. 666 used the phraseoffice, other than the one for which he has been lastly elected, Section 27 spoke of an office, other than the one which he is actually holding. To be sure, this change was not without 18 purpose. As we explained in Salaysay v. Castro, et al.: Before the enactment of section 27 of the Revised Election Code, the law in force covering the point or question in controversy was section 2, Commonwealth Act No. 666. Its burden was to allow an elective provincial, municipal, or city official such as Mayor, running for the same office to continue in office until the expiration of his term. The legislative intention as we see it was to favor reelection of the incumbent by allowing him to continue in his office and use the prerogatives and influence thereof in his campaign for re-election and to avoid a break in or interruption of his incumbency during his current term and provide for continuity thereof with the next term of office if re-elected. But section 2, Commonwealth Act No. 666 had reference only to provincial and municipal officials duly elected to their offices and who were occupying the same by reason of said election at the time that they filed their certificates of candidacy for the same position. It did not include officials who hold or occupy elective provincial and municipal offices not by election but by appointment. xxx xxxx However, this was exactly the situation facing the Legislature in the year 1947 after the late President Roxas had assumed office as President and before the elections coming up that year. The last national elections for provincial and municipal officials were held in 1940, those elected therein to serve up to December, 1943. Because of the war and the occupation by the Japanese, no elections for provincial and municipal officials could be held in 1943. Those elected in 1940 could not hold-over beyond 1943 after the expiration of their term of office because according to the views of the Executive department as later confirmed by this Court in the case of Topacio Nueno vs. Angeles, 76 Phil., 12, through Commonwealth Act No. 357, Congress had intended to suppress the doctrine or rule of hold-over. So, those provincial and municipal officials elected in 1940 ceased in 1943 and their offices became vacant, and this was the situation when after liberation, President Osmeook over as Chief Executive. He filled these vacant positions by appointment. When President Roxas was elected in 1946 and assumed office in 1947 he replaced many of these Osmeppointees with his own men. Naturally, his Liberal Party followers wanted to extend to these appointees the same privilege of office retention thereto given by section 2, Commonwealth Act No. 666 to local elective officials. It could not be done because section 2, Commonwealth Act No. 666 had reference only to officials who had been elected. So, it was decided by President Roxas and his party to amend said section 2, Commonwealth Act No. 666 by substituting the phrase "which he is actually holding", for the phrase "for which he has been lastly elected" found in section 2 of Commonwealth Act No. 666. xxxx
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The purpose of the Legislature in making the amendment, in our opinion, was to give the benefit or privilege of retaining office not only to those who have been elected thereto but also to those who have been appointed; stated differently, to extend the privilege and benefit to the regular incumbents having the right and title to the office either by election or by appointment. There can be no doubt, in our opinion, about this intention. We have carefully examined the proceedings in both Houses of the Legislature. The minority Nacionalista members of Congress bitterly attacked this amendment, realizing that it was partisan legislation intended to favor those officials appointed by President Roxas; but despite their opposition the amendment was passed. xxxx We repeat that the purpose of the Legislature in enacting section 27 of the Revised Election Code was to allow an official to continue occupying an elective provincial, municipal or city office to which he had been appointed or elected, while campaigning for his election as long as he runs for the same office. He may keep said office continuously without any break, through the elections and up to the expiration of the term of the office. By continuing in office, the office holder was allowed and expected to use the prerogatives, authority and influence of his office in his campaign for his election or re-election to the office he was holding. Another intention of the Legislature as we have hitherto adverted to was to provide for continuity of his incumbency so that there would be 19 no interruption or break, which would happen if he were required to resign because of his filing his certificate of candidacy. (italics supplied) In that case, the Court was faced with the issue of whether a Vice Mayor, merely acting as Mayor because of the temporary disability of the regular incumbent, comes under the provision and exception of Section 27 of the Revised Election Code of 1947. Ruling that a Vice Mayor acting as Mayor does not "actually hold the office" of Mayor within the meaning of Section 27, we denied the Petition for Prohibition with Preliminary Injunction in this wise: x x x A Vice Mayor acts as Mayor only in a temporary, provisional capacity. This tenure is indefinite, uncertain and precarious. He may act for a few days, for a week or a month or even longer. But surely there, ordinarily, is no assurance or expectation that he could continue acting as Mayor, long, indefinitely, through the elections and up to the end of the term of the office because the temporary disability of the regular, incumbent Mayor may end any time and he may resume his duties. VICE-MAYOR ACTING AS MAYOR, OUTSIDE LEGAL CONTEMPLATION The case of a Vice-Mayor acting as Mayor could not have been within the contemplation and the intent of the Legislature because as we have already stated, that lawmaking body or at least the majority thereof intended to give the benefits and the privilege of section 27 to those officials holding their offices by their own right and by a valid title either by election or by appointment, permanently continuously and up to the end of the term of the office, not to an official neither elected nor appointed to that office but merely acting provisionally in said office because of the temporary disability of the regular incumbent. In drafting and enacting section 27, how could the Legislature have possibly had in mind a Vice-Mayor acting as Mayor, and include him in its scope, and accord him the benefits of retaining the office of Mayor and utilizing its authority and influence in his election campaign, when his tenure in the office of Mayor is so uncertain, indefinite and precarious that there may be no opportunity or occasion for him to enjoy said benefits, and how could Congress have contemplated his continuing in the office in which he is acting, when the very idea of continuity is necessarily in conflict and incompatible with the uncertainty, precariousness and temporary character of his tenure in the office of Mayor xxxx MEANING OF PHRASE "RESIGNED FROM HIS OFFICE" Section 27 of Republic Act No. 180 in providing that a local elective official running for an office other than the one he is actually holding, is considered resigned from his office, must necessarily refer to an office which said official can resign, or from which he could be considered resigned, even against his will. For instance, an incumbent Mayor running for the office of Provincial Governor must be considered as having resigned from his office of Mayor. He must resign voluntarily or be compelled to resign. It has to be an office which is subject to resignation by the one occupying it. Can we say this of a Vice-Mayor acting as Mayor? Can he or could he resign from the office of Mayor or could he be made to resign therefrom No. As long as he holds the office of Vice-Mayor to which he has a right and legal title, he, cannot resign or be made to resign from the office of Mayor because the law itself requires that as Vice- Mayor he must act as Mayor during the temporary disability of the regular or incumbent Mayor. If he cannot voluntarily resign the office of Mayor in which he is acting temporarily, or could not be made to resign therefrom, then the provision of section 27 of

the Code about resignation, to him, would be useless, futile and a dead letter. In interpreting a law, we should always avoid a construction that would have this result, for it would violate the fundamental rule that every legislative act should be interpreted in order to give force and effect to every provision thereof because the Legislature is not presumed to have done a useless act. xxxx ANOTHER EXAMPLE The regular incumbent Mayor files his certificate of candidacy for the same office of Mayor. Then he goes on leave of absence or falls sick and the Vice-Mayor acts in his place, and while thus acting he also files his certificate of candidacy for the same office of Mayor. Then the Vice-Mayor also goes on leave or falls sick or is suspended, and because the regular Mayor is still unable to return to office, under section 2195 of the Revised Administrative Code, the councilor who at the last general elections received the highest number of votes, acts as Mayor and while thus acting he also files his certificate of candidacy for the office of Mayor. The ViceMayor also campaigns for the same post of Mayor claiming like the herein petitioner that he did not lose his office of Vice-Mayor because he filed his certificate of candidacy while acting as Mayor and thus was actually holding the office of Mayor. Using the same argument, the councilor who had previously acted as Mayor also campaigns for his election to the same post of Mayor while keeping his position as councilor. Thus we would have this singular situation of three municipal officials occupying three separate and distinct offices, running for the same office of Mayor, yet keeping their different respective offices, and strangely enough two of those offices (Vice- Mayor and Councilor) are different from the office of Mayor they are running for. Could that situation have been contemplated by the Legislature in enacting section 27 of the Revised Election Code? We do not think so, and yet that would happen if the contention of the petitioner about the meaning of "actually holding office" is to prevail. xxxx TWO OFFICIALS "ACTUALLY HOLDING" THE SAME ELECTIVE OFFICE We have already said that a Mayor under temporary disability continues to be Mayor (Gamalinda vs. Yap * No. L-6121, May 30, 1953) and actually holds the office despite his temporary disability to discharge the duties of the office; he receives full salary corresponding to his office, which payment may not be legal if he were not actually holding the office, while the Vice-Mayor acting as Mayor does not receive said salary but is paid only a sum equivalent to it (section 2187, Revised Administrative Code). Now, if a Mayor under temporary disability actually holds the office of Mayor and the Vice-Mayor acting as Mayor, according to his claim is also actually holding the office of Mayor, then we would have the anomalous and embarrassing situation of two officials actually holding the very same local elective office. Considered from this view point, and to avoid the anomaly, it is to us clear that the ViceMayor should not be regarded as holding the office of Mayor but merely acting for the regular incumbent, a duty or right as an incident to his office of Vice-Mayor and not as an independent right or absolute title to the office by reason of election or appointment. xxxx EXCEPTION TO BE CONSTRUED STRICTLY Section 26 of the Revised Election Code provides that every person holding an appointive office shall ipso facto cease in his office on the date he files his certificate of candidacy. Then we have section 27 of the same Code as well as section 2 of Commonwealth Act No. 666 which it amended, both providing that local elective officials running for office shall be considered resigned from their posts, except when they run for the same office they are occupying or holding. It is evident that the general rule is that all Government officials running for office must resign. The authority or privilege to keep one's office when running for the same office is the exception. It is a settled rule of statutory construction that an exception or a proviso must be strictly construed specially when considered in an attempt to ascertain the legislative intent. xxxx Applying this rule, inasmuch as petitioner herein claimed the right to retain his office under the exception above referred to, said claim must have to be judged strictly, whether or not his mere acting in the office of Mayor may be legally interpreted as actually holding the same so as to come within the exception. As we have already observed, literally and generally speaking, since he is discharging the duties and exercising the powers of the office of Mayor he might be regarded as actually holding the office; but

strictly speaking and considering the purpose and intention of the Legislature behind section 27 of the Revised Election Code, he may not and cannot legitimately be considered as actually holding the office of Mayor. RETENTION OF OFFICE We have, heretofore[,] discussed the case as regards the resignation of an office holder from his office by reason of his running for an office different from it; and our conclusion is that it must be an office that he can or may resign or be considered resigned from; and that the office of Mayor is not such an office from the stand point of a Vice-Mayor. Let us now consider the case from the point of view of retaining his office because he is running for the same office, namely retention of his office. As we have already said, the Legislature intended to allow an office holder and incumbent to retain his office provided that he runs for the same. In other words, he is supposed to retain the office before and throughout the elections and up to the expiration of the term of the office, without interruption. Can a Vice-Mayor acting as Mayor be allowed or expected to retain the office of Mayor The incumbent Mayor running for the same office can and has a right to keep and retain said office up to the end of his term. But a Vice-Mayor merely acting as Mayor and running for said office of Mayor, may not and cannot be expected to keep the office up to the end of the term, even assuming that by acting as Mayor he is actually holding the office of Mayor, for the simple reason that his holding of the same is temporary, provisional and precarious and may end any time when the incumbent Mayor returns to duty. Naturally, his temporary holding of the office of Mayor cannot be the retention or right to keep the office intended by the Legislature in section 27 of Republic Act No. 180. So that, neither from the point of view of resignation from the office of Mayor nor the standpoint of retention of said office, may a Vice-Mayor acting as Mayor, like herein petitioner, come within the provisions and meaning of section 27 of the 20 Election Code, particularly the exception in it. (italics supplied) In contrast, Castro v. Gatuslao dealt with the issue of whether a Vice Mayor who had filed a certificate of candidacy for reelection to the same post, and who on the next day became Mayor, due to vacancy in the mayoralty, comes within the sphere of action of Section 27 of Republic Act No. 180. We ruled in the negative, as follows: The last words of said section, "shall be considered resigned from the moment of the filing of his certificate of candidacy", indicates that the moment of such filing is the point of time to be referred to for the operation and application of the statute, and for the determination of its essential prerequisite, to wit, that the official involved shall file his candidacy for an office other than that which he is actually holding. The law nowhere mentions or refers to positions that the candidate might hold either before or after the filing of the certificate of candidacy. What office was petitioner Castro actually holding on September 8, 1955, when he filed his certificate of candidacy- Vice-Mayor of Manapla. For what office did he run and file his certificate of candidacy- For Vice-Mayor of Manapla. Clearly, then, he was a candidate for a position that he was actually holding at the time he filed his certificate of candidacy, for "actually" necessarily refers to that particular moment; hence, he should not be considered resigned or deemed to have forfeited his post. Deprivation of office without fault of the holder is not to be lightly presumed nor extended by implication. That the petitioner came later to hold another office by operation of law, does not alter the case. The wording of the law plainly indicates that only the date of filing of the certificate of candidacy should be taken into account. The law does not make the forfeiture dependent upon future contingencies, unforeseen and unforeseeable, since the vacating is expressly made effective as of the moment of the filing of the certificate of candidacy, and there is nothing to show that the forfeiture is to operate retroactively. The statute does not decree that an elective municipal official must be considered resigned if he runs for an office other than the one held by him at or subsequently to the filing of his certificate of candidacy; neither does it declare that he must vacate if he runs for an office other than the one actually held by him at any time before the day of the election. Since the law did not divest the petitioner Castro of his position of Vice-Mayor, he was entitled to the mayoralty of Manapla when that post became vacant the next day; and as his assumption of that office did not make herein petitioner hold a post different from that for which he became a candidate at the time his certificate of candidacy was filed, he did not forfeit the office of Mayor; therefore the respondent could not legally appoint another mayor for Municipality of Manapla. Petitioner's case becomes the more meritorious when it is considered that he was elevated from Vice-Mayor to Mayor by operation of law and not by his own 22 will. (italics supplied) As to the nature of the forfeiture of office, Section 27 of the Revised Election Code is clear: it is automatic and permanently effective 23 24 upon the filing of the certificate of candidacy for another office. Only the moment and act of filing are considered. Once the certificate is filed, the seat is forfeited forever and nothing save a new election or appointment can restore the ousted official, even 25 if the certificate itself be subsequently withdrawn.
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Moving forward, Republic Act No. 6388, or the Election Code of 1971, imposed similar provisos on appointive and elective officials, as follows: SECTION 23. Candidates Holding Appointive Office or Position. - Every person holding a public appointive office or position, including active members of the Armed Forces of the Philippines and every officer or employee in government-owned or controlled corporations, shall ipso-facto cease in his office or position on the date he files his certificate of candidacy: Provided, That the filing of a certificate of candidacy shall not affect whatever civil, criminal or administrative liabilities which he may have incurred. SECTION 24. Candidate Holding Elective Office. - Any elective provincial, sub-provincial, city, municipal or municipal district officer running for an office other than the one which he is holding in a permanent capacity shall be considered ipso facto resigned from his office from the moment of the filing of his certificate of candidacy. Every elected official shall take his oath of office on the day his term of office commences, or within ten days after his proclamation if said proclamation takes place after such day. His failure to take his oath of office as herein provided shall be considered forfeiture of his right to the new office to which he has been elected unless said failure is for a cause or causes beyond his control. However, the Election Code of 1971 was subsequently repealed by Presidential Decree No. 1296, or the 1978 Election Code. The latter law provided the same rule on deemed resignations of appointive officials, with the added exception that Cabinet members shall continue in their offices, subject to the pleasure of the President. Section 29 of the 1978 Election Code thus states: SECTION 29. Candidates holding appointive office or position. - Every person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall ipso facto cease in his office or position on the date he files his certificate of candidacy. Members of the Cabinet shall continue in the offices they presently hold notwithstanding the filing of certificate of candidacy, subject to the pleasure of the President of the Philippines. With respect to elected officials, the 1978 Election Code initially provided a different rule. Instead of deeming them ipso facto resigned from office upon filing their certificates of candidacy, they were merely considered on forced leave of absence, viz.: SECTION 30. Candidates holding political office. - Governors, mayors, members of the various sanggunians, or barangay officials, shall, upon filing of a certificate of candidacy, be considered on forced leave of absence from office. Almost two years later, however, President Marcos anticipated that applying "... Section 30 in the local elections on January 30, 1980, may give rise to chaos and confusion due to the difficulty of designating promptly and immediately the replacements of such 28 29 officials to assure the continuity and stability of local governments." He accordingly issued Presidential Decree No. 1659 and 30 Presidential Decree No. 1659-A, which reverted to the former rule on deemed resignations. Consequently, elected provincial, city, municipal, or municipal district officers who ran for offices other than the ones which they were holding, were considered ipso facto resigned from their respective offices upon the filing of their certificates of candidacy, as follows: SEC. 1. Candidate holding elective office. - Any person occupying an elective provincial, city, municipal, or municipal district position who runs for an office other than the one which he is holding shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy: Provided, however, That during the pendency of the election, the President of the Philippines may appoint in an acting capacity said candidate to the office for which he filed a certificate of candidacy and which has been rendered 31 vacant by virtue of the operation of the preceding provision of this section. Batas Pambansa Blg. 881: On December 3, 1985, President Marcos approved Batas Pambansa Blg. 881, or the Omnibus Election Code. The pertinent provisions provide in relevant part: SECTION 66. Candidates holding appointive office or positions. - Any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. SECTION 67. Candidates holding elective office. - Any elective official, whether national or local, running for any office other than the one which he is holding in a permanent capacity, except for President and Vice-President, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.
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As may be gleaned therefrom, the Omnibus Election Code substantially retained the rules on deemed resignations for both elected and appointive officials, except that: (1) Cabinet members were no longer considered a unique class of appointive officials who may, subject to the pleasure of the President, continue in their offices notwithstanding the filing of their certificates of candidacy; (2) The rule covering elected officials was expanded to include those holding national offices; (3) Nevertheless, the rule covering elected officials carved out an exception insofar as the presidency and vice presidency are concerned, such that an elected official who was running for President or Vice-President, was not considered ipso facto resigned from his office upon the filing of his certificate of candidacy. In Dimaporo v. Mitra, et al., this Court elucidated on the changes made in respect of elected officials (i.e., (2) and (3) enumerated above) by adverting to the plenary deliberations of the Batasang Pambansa, thus: It must be noted that only in B.P. Blg. 881 are members of the legislature included in the enumeration of elective public officials who are to be considered resigned from office from the moment of the filing of their certificates of candidacy for another office, except for President and Vice-President. The advocates of Cabinet Bill No. 2 (now Section 67, Article IX of B.P. Blg. 881) elucidated on the 34 rationale of this inclusion, thus: MR. PALMARES: In the old Election Code, Your Honor, in the 1971 Election Code, the provision seems to be different ? I think this is in Section 24 of Article III. Any elective provincial, sub-provincial, city, municipal or municipal district officer running for an office other than the one which he is holding in a permanent capacity shall be considered ipso facto resigned from his office from the moment of the filing of his certificate of candidacy. May I know, Your Honor, what is the reason of the Committee in departing or changing these provisions of Section 24 of the old Election Code and just adopting it en toto- Why do we have to change it? What could possibly be the reason behind it, or the rationale behind it? MR. PEREZ (L.): I have already stated the rationale for this, Mr. Speaker, but I don't mind repeating it. The purpose is that the people must be given the right to choose any official who belongs to, let us say, to the Batasan if he wants to run for another office. However, because of the practice in the past where members of the legislature ran for local offices, but did not assume the office, because of that spectacle the impression is that these officials were just trifling with the mandate of the people. They have already obtained a mandate to be a member of the legislature, and they want to run for mayor or for governor and yet when the people give them that mandate, they do not comply with that latter mandate, but still preferred (sic) to remain in the earlier mandate. So we believe, Mr. Speaker, that the people's latest mandate must be the one that will be given due course. . . . Assemblyman Manuel M. Garcia, in answer to the query of Assemblyman Arturo Tolentino on the constitutionality of Cabinet Bill 35 No. 2, said: MR. GARCIA (M.M.): Thank you, Mr. Speaker. Mr. Speaker, on the part of the Committee, we made this proposal based on constitutional grounds. We did not propose this amendment mainly on the rationale as stated by the Gentlemen from Manila that the officials running for office other than the ones they are holding will be considered resigned not because of abuse of facilities of power or the use of office facilities but primarily because under our Constitution, we have this new chapter on accountability of public officers. Now, this was not in the 1935 Constitution. It states that (sic) Article XIII, Section 1 - 'Public office is a public trust. Public officers and employees shall serve with the highest degree of responsibility, integrity, loyalty and efficiency and shall remain accountable to the people.' Now, what is this significance of this new provision on accountability of public officers' This only means that all elective public officials should honor the mandate they have gotten from the people. Thus, under our Constitution, it says that: 'Members of the Batasan shall serve for the term of 6 years, in the case of local officials and 6 years in the case of barangay officials.[?] Now, Mr. Speaker, we have precisely included this as part of the Omnibus Election Code because a Batasan Member who hold (sic) himself out with the people and seek (sic) their support and mandate should not be allowed to deviate or allow himself to run for any other position unless he relinquishes or abandons his office. Because his mandate to the people is to serve for 6 years. Now, if you allow a
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Batasan or a governor or a mayor who was mandated to serve for 6 years to file for an office other than the one he was elected to, then, that clearly shows that he has not (sic) intention to service the mandate of the people which was placed upon him and therefore he should be considered ipso facto resigned. I think more than anything that is the accountability that the Constitution requires of elective public officials. It is not because of the use or abuse of powers or facilities of his office, but it is because of the Constitution itself which I said under the 1973 Constitution called and inserted this new chapter on accountability. Now, argument was said that the mere filing is not the intention to run. Now, what is it for? If a Batasan Member files the certificate of candidacy, that means that he does not want to serve, otherwise, why should he file for an office other than the one he was elected to? The mere fact therefore of filing a certificate should be considered the overt act of abandoning or relinquishing his mandate to the people and that he should therefore resign if he wants to seek another position which he feels he could be of better service.? As I said, Mr. Speaker, I disagree with the statements of the Gentleman from Manila because the basis of this Section 62 is the constitutional provision not only of the fact that Members of the Batasan and local officials should serve the entire 6-year term for which we were elected, but because of this new chapter on the accountability of public officers not only to the community which voted him to office, but primarily because under this commentary on accountability of public officers, the elective public officers must serve their principal, the people, not their own personal ambition. And that is the reason, Mr. Speaker, why we opted to propose Section 62 where candidates or elective public officers holding offices other than the one to which they were elected, 36 should be considered ipso facto resigned from their office upon the filing of the certificate of candidacy. (emphasis in the original) Corollarily, Dimaporo v. Mitra, et al. involved Mohamad Ali Dimaporo, who was elected Representative for the Second Legislative District of Lanao del Sur during the 1987 congressional elections. He took his oath of office on January 9, 1987 and thereafter performed the duties and enjoyed the rights and privileges pertaining thereto. Three years later, he filed with the COMELEC a Certificate of Candidacy for the position of Regional Governor of the Autonomous Region in Muslim Mindanao. Upon being informed of this development, the Speaker and Secretary of the House of Representatives excluded Dimaporo's name from the Roll of Members of the House of Representatives pursuant to Section 67 of the Omnibus Election Code. Having lost in the 1990 elections, petitioner expressed his intention to the Speaker of the House of Representatives -to resume performing my duties and functions as elected Member of Congress,- but he failed in his bid to regain his seat. We sustained Dimaporo's forfeiture of his congressional seat. Holding that the concept of voluntary renunciation of office under Section 7, Article VI of the Constitution is broad enough to include the situation envisioned in Section 67 of the Omnibus Election Code, we ruled: That the act, contemplated in Section 67, Article IX of 8.P. Blg. 881, of filing a certificate of candidacy for another office constitutes an overt, concrete act of voluntary renunciation of the elective office presently being held is evident from this exchange between the Members of Parliament Arturo Tolentino and Jose Ro "MR. RO: My reasonable ground is this: if you will make the person . . . my, shall we say, basis is that in one case the person is intending to run for an office which is different from his own, and therefore it should be considered, at least from the legal significance, an intention to relinquish his office. MR. TOLENTINO: Yes. MR. RO: And in the other, because he is running for the same position, it is otherwise. MR. TOLENTINO: Yes, but what I cannot see is why are you going to compel a person to quit an office which he is only intending to leave? A relinquishment of office must be clear, must be definite.

MR. RO: Yes, sir. That's precisely, Mr. Speaker, what I am saying that while I do not disagree with the conclusion that the intention cannot be enough, but I am saying that the filing of the certificate of candidacy is an overt act of such intention. It's not just an intention: it's already there." In Monroy vs. Court of Appeals, a case involving Section 27 of R.A. No. 180 above-quoted, this Court categorically pronounced that "forfeiture (is) automatic and permanently effective upon the filing of the certificate of candidacy for another office. Only the moment and act of filing are considered. Once the certificate is filed, the seat is forever forfeited and nothing save a new election or appointment can restore the ousted official. Thus, as We had occasion to remark, through Justice J.B.L. Reyes, in Castro vs. Gatuslao: . . . 'The wording of the law plainly indicates that only the date of filing of the certificate of candidacy should be taken into account. The law does not make the forfeiture dependent upon future contingencies, unforeseen and unforeseeable, since the vacating is expressly made as of the moment of the filing of the certificate of candidacy....'? As the mere act of filing the certificate of candidacy for another office produces automatically the permanent forfeiture of the elective position being presently held, it is not necessary, as petitioner opines, that the other position be actually held. The ground for forfeiture in Section 13, Article VI of the 1987 Constitution is different from the forfeiture decreed in- Section- 67, Article- IX of B.P.- Blg. 881,- which is actually a mode of voluntary renunciation of office under Section 7, par. 2 of Article VI of the Constitution. The legal effects of filing a certificate of candidacy for another office having been spelled out in Section 67, Article IX, B.P. Blg. 881 itself, no statutory interpretation was indulged in by respondents Speaker and Secretary of the House of Representatives in excluding petitioner's name from the Roll of Members. The Speaker is the administrative head of the House of Representatives and he exercises administrative powers and functions attached to his office. As administrative officers, both the Speaker and House Secretary-General perform ministerial functions. It was their duty to remove petitioner's name from the Roll considering the unequivocal tenor of Section 67, Article IX, B.P. Blg. 881. When the Commission on Elections communicated to the House of Representatives that petitioner had filed his certificate of candidacy for regional governor of Muslim Mindanao, respondents had no choice but to abide by the clear and unmistakable legal effect of Section 67, Article IX of B.P. Blg. 881. It was their ministerial duty to do so. These officers cannot refuse to perform their duty on the ground of an alleged invalidity of the statute imposing the duty. The reason for this is obvious. It might seriously hinder the transaction of public business if these officers were to be permitted in all cases to question the constitutionality of statutes and ordinances imposing duties upon them and which have not judicially been declared unconstitutional. Officers of the government from the highest to the lowest are creatures of the law and are bound to obey 37 it. Aguinaldo, et al. v. Commission on Elections provided the occasion to revisit that issue. In that case, petitioners sought to prevent the COMELEC from enforcing Section 67 on the ground that it was violative of the Constitution in that it effectively shortens the terms of office of elected officials. We, however, fully reiterated the applicability of the doctrine of voluntary renunciation announced in Dimaporo v. Mitra, et al. Further to the rule on appointive officials, PNOC Energy Development Corporation, et al. v. National Labor Relations Commission, et 39 al. held that an employee in a government-owned or -controlled corporation without an original charter (and therefore not covered by Civil Service Law) still falls within the scope of Section 66 of the Omnibus Election Code. We ruled: When the Congress of the Philippines reviewed the Omnibus Election Code of 1985, in connection with its deliberations on and subsequent enactment of related and repealing legislation - i.e., Republic Acts Numbered 7166: "An Act Providing for Synchronized National and Local Elections and for Electoral Reforms, Authorizing Appropriations Therefor, and for Other Purposes" (effective November 26, 1991), 6646: "An Act Introducing Additional Reforms in the Electoral System and for Other Purposes" (effective January 5, 1988) and 6636: "An Act Resetting the Local Elections, etc." (effective November 6, 1987), it was no doubt aware that in light of Section 2(1), Article IX of the 1987 Constitution: (a) government-owned or controlled corporations were of two (2) categories - those with original charters, and those organized under the general law and (b) employees of these corporations were of two (2) kinds those covered by the Civil Service Law, rules and regulations because employed in corporations having original charters, and those not subject to Civil Service Law but to the Labor Code because employed in said corporations organized under the general law, or the Corporation Code. Yet Congress made no effort to distinguish between these two classes of government-owned or controlled corporations or their employees in the Omnibus Election Code or subsequent related statutes, particularly as regards the rule that an any employee "in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy."
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Be this as it may, it seems obvious to the Court that a government-owned or controlled corporation does not lose its character as such because not possessed of an original charter but organized under the general law. If a corporation's capital stock is owned by the Government, or it is operated and managed by officers charged with the mission of fulfilling the public objectives for which it has been organized, it is a government-owned or controlled corporation even if organized under the Corporation Code and not under a special statute; and employees thereof, even if not covered by the Civil Service but by the Labor Code, are nonetheless "employees in government-owned or controlled corporations," and come within the letter of Section 66 of the Omnibus Election Code, declaring them "ipso facto resigned from . . . office upon the filing of . . . (their) certificate of candidacy." What all this imports is that Section 66 of the Omnibus Election Code applies to officers and employees in government-owned or controlled corporations, even those organized under the general laws on incorporation and therefore not having an original or legislative charter, and even if they do not fall under the Civil Service Law but under the Labor Code. In other words, Section 66 40 constitutes just cause for termination of employment in addition to those set forth in the Labor Code, as amended. (italics supplied) Republic Act No. 8436: RA 8436 was silent on the rule in respect of appointive officials. Therefore, the governing law on the matter is still the one provided under the Omnibus Election Code. Hence, any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. On the other hand, RA 8436 modified the rule in respect of the automatic resignation of elected officials running for any office other than the ones they were currently holding in a permanent capacity, except the presidency and the vice presidency. Whereas, under the Omnibus Election Code they were considered ipso facto resigned from office upon filing their certificates of candidacy, RA 8436 considered them resigned only upon the start of the campaign period corresponding to the positions for which they are running, viz.: SECTION 11. Official Ballot. - x x x xxxx For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/manifestation to participate in the election shall not be later than one hundred twenty (120) days before the elections: Provided, That, any elective official, whether national or local, running for any office other than the one which he/she is holding in a permanent capacity, except for president and vice-president, shall be deemed resigned only upon the start of the campaign period corresponding to the position for which he/she is running: Provided, further, That, x x x. (italics supplied) In temporal terms, however, the distinction is more apparent than real. RA 8436 authorized the COMELEC to use an automated election system in the 1998 election and succeeding elections. Considering that automation requires a pre-printed ballot, the legislators deemed it necessary to move the deadline for the filing of certificates of candidacy to 120 days before election day. If the reckoning point of the automatic resignation was not moved to the start of the campaign period, then elected officials running for any office other than the ones they were holding in a permanent capacity (except the presidency and the vice presidency), were going to be considered resigned as early as 120 days before the election, leaving their constituents bereft of public officials for an extended period of time. This was the evil sought to be avoided by the legislators when they transferred the reckoning period of deemed resignations from the time the certificate of candidacy is filed (under the pre-RA 8436 regime) to the start of the campaign period (under RA 8436). After all, RA 8436 did not alter the campaign periods provided under existing election laws. Consequently, the end result is that the particular point in time (vis-is election day) at which an elected official is considered resigned under RA 8436, is not significantly different from the point in time at which an elected official was considered resigned prior to RA 8436. The deliberations of the Bicameral Conference Committee on this point are instructive:
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THE CHAIRMAN (REP. TANJUATCO). Further to the question of the Deputy Speaker, the comment of this representation concerning the filing of certificate of candidacy in 2001, I suggest should also be applied to 1998, in the sense that the mere filing of the

certificate of candidacy at an earlier date should not result in the loss of the office by a person running for a position other than what he is holding, nor the restrictions that will apply to a candidate. Would the Senate agree to that? THE CHAIRMAN (SEN. FERNAN). You know, that particular proviso, we eliminated. SEN. GONZALES. Yes. THE CHAIRMAN (SEN. FERNAN). Because some Senators felt that it will be applied to them and they would be considered resigned, ano? But it was earlier manifested that it will be worded in such a way that it will not apply to those running for [the] presidency and vice-presidency. SEN. GONZALES. That is the present law. THE CHAIRMAN (SEN. FERNAN). Yeah, that is the present law. So, the present law will be maintained but the concern about the inclusion of that particular provision is because they don't want a long period for them to be considered resigned. In other words, if you file your certificate of candidacy on January 11 and you are already considered resigned, there is a long gap until election day. THE CHAIRMAN (REP. TANJUATCO). That's right. THE CHAIRMAN (SEN. FERNAN). They were hoping that it will be limited only to 45 days before election. THE CHAIRMAN (REP. TANJUATCO). In the case of non-national candidates. THE CHAIRMAN (SEN. FERNAN). Non-national. I mean, what would you feel? THE CHAIRMAN (REP. TANJUATCO). Just to clarify to our Senate counterparts, there was no intention on the part of the House to withdraw the provision in existing law that the Senator running for president or vice-president will not be deemed resigned even if he files his certificate of candidacy for those offices. The only reason why the provision adverted to was included was, as the distinguished Chairman mentioned, to avoid the situation where the constituency of that official filing that certificate of candidacy will be bereft of an official that that constituency elected for a three-year period. THE CHAIRMAN (SEN. FERNAN). So, the phraseology is, - Provided that the candidate who is aspiring for an elective office other than his incumbent position or the presidency or the vice-presidency, shall be deemed resigned forty-five (45) days before elections. THE CHAIRMAN (REP. TANJUATCO). Or maybe using the word under existing law. REP. ABUEG. Mr. Chairman. THE CHAIRMAN (REP. TANJUATCO). Our expert. REP. ABUEG. To make it clear, while in the Senate version this was deleted, in order to remove any doubt, we can provide here the exception that, "except for the Office[s] of the President and Vice President, a candidate who is aspiring for an elected position other than his incumbent position shall be deemed resigned forty-five (45) days before the election." So, that will leave no room for doubt that the exemption existing is also carried in this proposed bill, proposed law. THE CHAIRMAN (SEN. FERNAN). x x x Okay. So, if we agree, provided that it excludes those aspiring for the presidency and vicepresidency. THE CHAIRMAN (REP. TANJUATCO). Yeah. REP. DAZA. Mr. Chairman, in other words, we will keep the exception that for those running for president or vice-president, there is no resignation. x x x xxxx

THE CHAIRMAN (REP. TANJUATCO). Let's start to categorize it first. Insofar as elections from x x x 2001 and thereafter are concerned, Comelec has agreed that [the] 120-day period would be sufficient to print the ballots. But again since we don't want to bring about a situation where an official who has been elected by his constituency for a term of three years to be removed from office way, way before the start of the campaign period, we would ask that the proviso that he will not be deemed resigned from the office, if he is deemed resigned under existing law, should be that he will be deemed resigned only at the start of the campaign period. xxxx We are not altering the present rule concerning resignations as a result of filing of certificates of candidacy. As a matter of fact, we are providing this so that the existing rule [in respect of the proximity of the "deemed resignation" to the election] will not be changed. THE ACTING CHAIRMAN (SEN. FERNAN). Okay. So, instead of saying "deemed resigned 45 days before the elections", it should be "at the start of the campaign period". THE CHAIRMAN (REP. TANJUATCO). At the start of the campaign period. THE ACTING CHAIRMAN (SEN. FERNAN). Deemed resigned at the start of the campaign period. THE CHAIRMAN (REP. TANJUATCO). For which he is running. THE ACTING CHAIRMAN (SEN. FERNAN). And then we will also exclude the presidency or vice presidency as provided by existing law THE CHAIRMAN (REP. TANJUATCO). That's right, Mr. Chairman. THE ACTING CHAIRMAN (SEN. FERNAN). Okay. So, that's sufficiently - that's clarified. xxxx THE ACTING CHAIRMAN (SEN. FERNAN). x x x Now, the Senate Panel will note, and we would like to invite the attention of [the] House [Panel] that we eliminated - the Senate eliminated the proviso: -That candidates who are aspiring for an elective office other than his incumbent position shall be deemed resigned forty-five (45) days before election.- It was explained to us earlier by the House Panel... THE CHAIRMAN (REP. TANJUATCO). Hindi kami nami-mersonal dito. (Laughter) THE ACTING CHAIRMAN (SEN. FERNAN). ... that the idea there was not to hit the Senators running for the presidency. (Laughter) THE CHAIRMAN (REP. TANJUATCO). Now, the intention of the House was to avoid the situation where candidates running for an office other than what they are holding, will be considered resigned much earlier than anticipated by their constituents who elected them for the period. xxxx THE CHAIRMAN (REP. TANJUATCO). The only reason why we included this was to obviate a situation where incumbents running for a position other than what they're holding and other than for president or vice president will immediately be considered, or very early during his term[,] considered resigned. SENATOR ROCO. Hindi ano eh ? because wala namang epekto iyan sa deadline. THE CHAIRMAN (REP. TANJUATCO). Mayroon. MR. FERNANDO. May deadline po, because under Section 67 [of the Omnibus Election Code], if you file your certificate of candidacy for the position other than what you're holding, you're already considered resigned and yet you cannot campaign. So with the

recommendation of Congressman Tanjuatco, you can still serve during the period from January 11, if we set it January 11, until February 10 when the campaign period starts, or... THE CHAIRMAN (REP. TANJUATCO). Or even beyond if you're running for local office. MS. (sic) FERNANDO. Or beyond March 25 if you run for local. So it's beneficial, it will not adversely affect any candidate. THE CHAIRMAN (SEN. FERNAN). So in this connection then, may I just say something, 'no. Earlier this morning when Ding... when the Chairman gave this clarification, I felt that the objection has been, to a certain extent, removed so that this is the phraseology now that it was tentatively agreed: "For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/manifestation to participate in the election shall not be later than one hundred twenty (120) days before the election provided that the candidate who is aspiring for an elective office other than his incumbent position or the presidency or the vice presidency" ... Because of the existing law. ...shall be deemed resigned at the start of the campaign. THE CHAIRMAN (REP. TANJUATCO). Only upon the start. THE CHAIRMAN (SEN. FERNAN). Only upon the start of the campaign period. Now, I do not know how it strikes the other members of the Senate panel. SEN. ROCO. What is the phraseology of the present law? THE CHAIRMAN (SEN. FERNAN). The present, as far as the Senate version... Ah, yeah, go ahead. SEN. ROCO. Sixty-seven. THE CHAIRMAN (REP. TANJUATCO). "Any elective official, whether national or local[,] running for any office other than the one which he is holding in a permanent capacity, except for President and Vice-President, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy." Iyon ang umiiral ngayon. Ngayon, in our bill, since there is an early filing of certificate of candidacy, if there is no qualification, he will be considered resigned at a very early stage. SEN. ROCO. Why don't we use those words and add provision of ano, for the local. Just retain those words para we don't invent new phraseology. Tingnan mo ang 67. Provided... Ang proviso mo will begin with the present law. THE CHAIRMAN (SEN. (sic) TANJUATCO). Hindi. Ganito ang gawin natin. SEN. ROCO. O, sige. THE CHAIRMAN (REP. TANJUATCO). Same thing, 'no[.]Any elective official, whether national or local[,] running for any office other than the one which he is holding in a permanent capacity, except for President and Vice-President, shall be considered ipso facto resigned from his office only upon the start of the campaign period corresponding to the position for which he is running. (italics supplied) Republic Act No. 9006: Republic Act No. 9006, or the Fair Election Act, was silent on the rule in respect of appointive officials. Therefore, the governing law is still the one provided under the Omnibus Election Code, i.e., any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. However, the Fair Election Act expressly repealed, among others, Section 67 of Batas Pambansa Blg. 881, or the Omnibus Election Code, and rendered ineffective the proviso in RA 8436 relating to the automatic resignations of elected officials, as follows:
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SECTION 14. Repealing Clause. - Sections 67 and 85 of the Omnibus Election Code (Batas Pambansa Blg. 881) and Sections 10 and 11 of Republic Act No. 6646 are hereby repealed. As a consequence, the first proviso in the third paragraph of Section 11 of Republic Act No. 8436 is rendered ineffective. All laws, presidential decrees, executive orders, rules and regulations, or any part thereof inconsistent with the provisions of this Act are hereby repealed or modified or amended accordingly. (italics supplied) It is worthy to note that the express repeal of Section 67 of the Omnibus Election Code may be considered superfluous, as this has already been impliedly repealed (for inconsistency) by RA 8436. As previously mentioned, officials were considered ipso facto resigned from office upon filing their certificates of candidacy under the Omnibus Election Code, whereas RA 8436 considered them resigned only upon the start of the campaign period corresponding to the positions for which they are running. Section 67 may nevertheless have been expressly mentioned in the repealing clause to clarify legislative intent, because automated elections (the subject matter of RA 8436) have not yet come to pass. In any event, Republic Act No. 9006 rendered ineffective the proviso in RA 8436 relating to the automatic resignations of elected officials. In effect, the repealing clause of the Fair Election Act allows elected officials to run for another office without forfeiting the office they currently hold. This conclusion is supported by the February 7, 2001 deliberations of the Senate, when the Conference 43 Committee Report on the disagreeing provisions of House Bill No. 9000 and Senate Bill No. 1742 was considered, thus: The Presiding officer [Sen. Sotto]. May we know the effect as far as the other positions are concerned - elective officials are concerned Senator Roco. What we have done, Mr. President, is everybody who is elected can run for any other position that he may desire without forfeiting his seat. We have reversed the old election law[, and now] an elected official is not required to forfeit his seat simply because he is running for another position. (italics supplied) This is further confirmed by Section 26 of Comelec Resolution No. 3636, which states: SECTION 26. Effect of Filing Certificate of Candidacy by Elective Officials. - Any elective official, whether national or local[,] who has filed a certificate of candidacy for the same or any other office shall not be considered resigned from his office. In Fari et al. v. Executive Secretary, et al., Section 14 of Republic Act No. 9006 was challenged on the ground, among others, that it was violative of the equal protection clause of the constitution. The petitioners contended that Section 14 discriminated against appointive officials. By the repeal of Section 67, an elected official who runs for office other than the one which he is holding is no longer considered ipso facto resigned therefrom upon filing his certificate of candidacy. Elected officials continue in public office even as they campaign for reelection or election for another elective position. On the other hand, Section 66 has been retained; thus, the limitation on appointive officials remains they are still considered ipso facto resigned from their offices upon the filing of their certificates of candidacy. We held that there was no violation of the equal protection clause because substantial distinctions exist between the two sets of officials. Elected officials cannot, therefore, be similarly treated as appointive officials. Equal protection simply requires that all persons or things similarly situated are treated alike, both as to rights conferred and responsibilities imposed. Republic Act No. 9369: RA 9369 amended RA 8436. It provides, in relevant part: SECTION 13. Section 11 of Republic Act No. 8436 is hereby amended to read as follows: "SEC. 15.- Official Ballot. - x x x For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition for registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers and
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employees in government-owned or -controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certificate of candidacy. x x x x (italics supplied) As may be noticed, RA 9369 expressly provides that appointive officials are considered ipso facto resigned from their offices and must vacate the same at the start of the day of the filing of their certificates of candidacy. However, this rule is a mere restatement of Section 66 of the Omnibus Election Code, the prevailing law in this regard. On the other hand, RA 9369 is silent with respect to elected officials. The rule under the Fair Election Act (i.e., that elected officials may run for another position without forfeiting their seats) is therefore applicable. From these rules, Section 4 of COMELEC Resolution 8678 was derived. V. After a review of the legislative and case history of the law on deemed resignations of public officials, I now turn to the case at bar. At the core of the controversy is Section 4(a) of COMELEC Resolution No. 8678, which is reproduced below for easy reference: Section 4. Effects of Filing Certificates of Candidacy.- a) Any person holding a public appointive office or position including active members of the Armed Forces of the Philippines, and other officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. b) Any person holding an elective office or position shall not be considered resigned upon the filing of his certificate of candidacy for the same or any other elective office or position. (italics supplied) Petitioners contend that Section 4(a) is null and void on the ground that: (a) it contravenes existing law and jurisprudence on the matter, and (b) it violates the equal protection clause of the Constitution. The ponencia upholds these contentions, extends its analysis to two other provisions of law - (a) the second proviso in the third paragraph of Section 13 of RA 9369, and (b) Section 66 of the Omnibus Election Code - and proceeds to strike down said provisions not only on equal protection grounds, but on overbreadth terms as well. Upon a considered review of the relevant laws and jurisprudence, I am constrained to strongly dissent on all points. Section 4(a) is consistent with existing laws and jurisprudence on the matter. Contrary to petitioners' assertion, Section 4(a) of COMELEC Resolution No. 8678 is a faithful reflection of the present state of the law and jurisprudence on the matter. As the discussion on the legislative history of Section 4(a) has shown, the current state of the law on deemed resignations of public officials is as follows: Incumbent Appointive Official - Under Section 13 of RA 9369, which reiterates what is provided in Section 66 of the Omnibus Election Code, any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or-controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. Incumbent Elected Official - Upon the other hand, pursuant to Section 14 of RA 9006 or the Fair Election Act, which repealed Section 67 of the Omnibus Election Code and rendered ineffective Section 11 of R.A. 8436 insofar as it considered an elected official as resigned only upon the start of the campaign period corresponding to the positions for which they are running, an elected official is not deemed to have resigned from his office upon the filing of his certificate of candidacy for the same or any other elected office or position. In effect, an elected official may run for another position without forfeiting his seat.

Clearly, Section 4(a) of COMELEC Resolution No. 8678 merely reiterates the foregoing rules on deemed resignations of incumbent public officials. Petitioners, however, hasten to point out that the same Section 13 of RA 9369 provides that any person who files his certificate of candidacy (within the advanced period fixed by COMELEC) shall only be considered as a candidate at the start of the campaign 46 period for which he filed his certificate of candidacy. Guided by the pronouncement of this Court in Lanot v. COMELEC that the advance filing of the certificate of candidacy is required only to provide ample time for the printing of official ballots, and that such 47 advance filing does not make the person a candidate except only for ballot-printing purposes, petitioners contend that the attendant consequences of candidacy including that of being deemed ipso facto resigned from one's office, when and if applicable should take effect only upon the onset of the campaign period for which the certificate of candidacy was filed, since it is only at this 48 point in time that said government official is, by law, considered to be a candidate. Thus, according to petitioners, appointive 49 officials should be considered ipso facto resigned from the office they are holding only upon the start of the campaign period. Petitioners maintain that this interpretation is the better approach, since it reconciles and harmonizes the perceived conflict between that portion of Section 13 of RA 9369, which states that "[a]ny person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy" and the subsequent proviso in the same section which provides that "any person holding a public appointive office or position x x x shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her candidacy," in a manner that is consistent with the apparent intent of the legislators to treat an appointive government official who 50 files his certificate of candidacy as a candidate only at the start of the campaign period. However, this argument fails to consider that the second proviso was precisely carved out as an exception to the general rule, in keeping with the principle that appointive officials are prohibited from engaging in any partisan political activity and taking part in 51 any election, except to vote. Specific provisions of a particular law should be harmonized not only with the other provisions of the 52 same law, but with the provisions of other existing laws as well. Interpretare et concordare leges legibus est optimus interpretandi modus. In Pagano v. Nazarro, Jr., et al., we ruled that the act of filing a certificate of candidacy while one is employed in the civil service constitutes a just cause for termination of employment for appointive officials. Section 66 of the Omnibus Election Code, in considering an appointive official ipso facto resigned, merely provides for the immediate implementation of the penalty for the prohibited act of engaging in partisan political activity. Held this Court: Petitioner relies on Section 66 of the Omnibus Election Code to exculpate her from an administrative charge. The aforementioned provision reads: Any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. Section 66 of the Omnibus Election Code should be read in connection with Sections 46 (b) (26) and 55, Chapters 6 and 7, Subtitle A, Title I, Book V of the Administrative Code of 1987: Section 44.-- Discipline: General Provisions: xxx (b)- The following shall be grounds for disciplinary action: xxx xxx xxx xxx xxx
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(26)-- Engaging directly or indirectly in partisan political activities by one holding a non-political office. xxx xxx xxx

Section 55.-- Political Activity. - No officer or employee in the Civil Service including members of the Armed Forces, shall engage directly or indirectly in any partisan political activity or take part in any election except to vote nor shall he use his official authority or influence to coerce the political activity of any other person or body. Clearly, the act of filing a Certificate of Candidacy while one is employed in the civil service constitutes a just cause for termination of employment for appointive officials. Section 66 of the Omnibus Election Code, in considering an appointive official ipso facto resigned, merely provides for the immediate implementation of the penalty for the prohibited act of engaging in partisan political activity. This provision was not intended, and should not be used, as a defense against an administrative case for acts committed 54 during government service. Section 4(a) is not violative of the Equal Protection Clause of the Constitution Petitioners' equal protection challenge was sustained by the ponencia on three grounds, viz.: (1) Our disquisition in Farinas, et al. v. Executive Secretary, et al. on the apparent unfairness of the rules on deemed resignations is not doctrine, but mere obiter dictum; (2) Mancuso v. Taft, a 1973 United States Court of Appeals case, struck down as unconstitutional a similar deemed resignation provision; and (3) The differential treatment of persons holding appointive offices as opposed to those holding elective offices is not germane to the purpose of the law. I shall discuss these grounds in seriatim. i. Pronouncement in Farinas, et al. v. Executive Secretary, et al. Not Obiter Dictum An obiter dictum has been defined as a remark or opinion uttered, by the way. It is a statement of the court concerning a question 58 which was not directly before it. It is language unnecessary to a decision, a ruling on an issue not raised, or an opinion of a judge which does not embody the resolution or determination of the court, and is made without argument or full consideration of the 59 60 point. It is an expression of opinion by the court or judge on a collateral question not directly involved, or not necessary for the 61 62 decision. Accordingly, it lacks the force of an adjudication and should not ordinarily be regarded as such. Prescinding from these principles, our pronouncement on the equal protection issue in Farinas, et al. v. Executive Secretary, et 63 al. cannot be characterized as obiter dictum. The ponencia bases its conclusion on the premise that the main issue in Farinas, on which the Court was intently focused, was 64 whether the repealing clause in the Fair Election Act was a constitutionally proscribed rider. Consequently, the ponencia continues, 65 the matter of the equal protection claim was only incidentally addressed, such that we unwittingly failed to ascertain with stricter scrutiny the impact of the retention of the provision on automatic resignation of persons holding appointive positions (Section 66) in 66 the OEC, vis-is the equal protection clause. It also asserts that the petitioners in Farinas "never posed a direct challenge to the 67 constitutionality of Section 66 of the Omnibus Election Code." With due respect, this view fails to recognize that the equal protection implications of Section 14 of the Fair Election Act, in relation to Sections 66 and 67 of the Omnibus Election Code, were squarely raised before the Court, thus The Petitioners' Case The petitioners now come to the Court alleging in the main that Section 14 of Rep. Act No. 9006, insofar as it repeals Section 67 of the Omnibus Election Code, is unconstitutional for being in violation of Section 26(1), Article VI of the Constitution, requiring every law to have only one subject which should be expressed in its title. According to the petitioners, the inclusion of Section 14 repealing Section 67 of the Omnibus Election Code in Rep. Act No. 9006 constitutes a proscribed rider. x x x
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The petitioners also assert that Section 14 of Rep. Act No. 9006 violates the equal protection clause of the Constitution because it repeals Section 67 only of the Omnibus Election Code, leaving intact Section 66 thereof which imposes a similar limitation to appointive officials, thus: SEC. 66. Candidates holding appointive office or position. - Any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. They contend that Section 14 of Rep. Act No. 9006 discriminates against appointive officials. By the repeal of Section 67, an elective official who runs for office other than the one which he is holding is no longer considered ipso facto resigned therefrom upon filing his certificate of candidacy. Elective officials continue in public office even as they campaign for reelection or election for another elective position. On the other hand, Section 66 has been retained; thus, the limitation on appointive officials remains - they are still considered ipso facto resigned from their offices upon the filing of their certificates of candidacy. The petitioners assert that Rep. Act No. 9006 is null and void in its entirety as irregularities attended its enactment into law. x x x Finally, the petitioners maintain that Section 67 of the Omnibus Election Code is a good law; hence, should not have been repealed. 68 x x x (italics supplied) to which we responded: Section 14 of Rep. Act No. 9006 Is Not Violative of the Equal Protection Clause of the Constitution The petitioners' contention, that the repeal of Section 67 of the Omnibus Election Code pertaining to elective officials gives undue benefit to such officials as against the appointive ones and violates the equal protection clause of the constitution, is tenuous. The equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable classification. If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from the other. The Court has explained the nature of the equal protection guarantee in this manner: The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not. Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority. Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987 (Executive Order No. 292), appointive officials, as officers and employees in the civil service, are strictly prohibited from engaging in any partisan political activity or [taking] part in any election except to vote. Under the same provision, elective officials, or officers or employees holding political offices, are obviously expressly allowed to take part in political and electoral activities. By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators deemed it proper to treat these two classes of officials differently with respect to the effect on their tenure in the office of the filing of the certificates of candidacy for any position other than those occupied by them. Again, it is not within the power of the Court to pass upon or look into the wisdom of this classification.

Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis-a-vis appointive officials, is anchored upon material and significant distinctions and all the persons belonging under the same classification are similarly treated, the equal 69 protection clause of the Constitution is, thus, not infringed. That Farinas likewise dealt with the issue of whether Section 14 of the Fair Election Act is a constitutionally proscribed rider, is wholly peripheral to the doctrinal value of our pronouncement on the equal protection challenge. The fact remains that the Court's disquisition on that matter was prompted by an issue clearly raised before us, one that cannot, by any means, be construed as a 70 collateral question not directly involved with the case. To be sure, an adjudication on any point within the issues presented by the case cannot be considered as obiter dictum. This rule applies to all pertinent questions, which are presented and decided in the regular course of the consideration of the case, and led up 72 to the final conclusion, and to any statement as to the matter on which the decision is predicated. For that reason, a point expressly decided does not lose its value as a precedent because the disposition of the case is, or might have been, made on some other ground, or even though, by reason of other points in the case, the result reached might have been the same if the court had 73 74 held, on the particular point, otherwise than it did. As we held in Villanueva, Jr. v. Court of Appeals, et al.: A decision which the case could have turned on is not regarded as obiter dictum merely because, owing to the disposal of the contention, it was necessary to consider another question, nor can an additional reason in a decision, brought forward after the case has been disposed of on one ground, be regarded as dicta. So, also, where a case presents two (2) or more points, any one of which is sufficient to determine the ultimate issue, but the court actually decides all such points, the case as an authoritative precedent as to every point decided, and none of such points can be regarded as having the status of a dictum, and one point should not be denied authority merely because another point was more dwelt on and more fully argued and considered, nor does a decision on 75 one proposition make statements of the court regarding other propositions dicta. (italics supplied) I respectfully submit, therefore, that our pronouncement in Farinas in respect of the equal protection issue finds cogent application in this case. Stare decisis et non quieta movere. ii. Mancuso v. Taft Has Been Overruled The ponencia begins its discussion with the claim that the right to run for public office is "inextricably linked" with two fundamental 76 freedoms - those of freedom and association. It then extensively cites Mancuso v. Taft, a decision of the First Circuit of the United States Court of Appeals promulgated on March 1973, to buttress its ruling. On this point, Mancuso asserts that "[c]andidacy is both a protected First Amendment right and a fundamental interest. Hence[,] any legislative classification that significantly burdens that interest must be subjected to strict equal protection review." It must be noted, however, that while the United States Supreme Court has held that the fundamental rights include freedom of 77 78 speech and freedom of association, it has never recognized a fundamental right to express one's political views through 79 80 candidacy. Bart v. Telford states quite categorically that [t]he First Amendment does not in terms confer a right to run for public 81 office, and this court has held that it does not do so by implication either. Newcomb v. Brennan further instructs: Although the Supreme Court has frequently invalidated state action which infringed a candidate's interest in seeking political office, it has not heretofore attached such fundamental status to candidacy as to invoke a rigorous standard of review. Rather, it has relied on the right of association guaranteed by the First Amendment in holding that state action which denies individuals the freedom to form groups for the advancement of political ideas, as well as the freedom to campaign and vote for the candidates chosen by those 82 groups, is unconstitutional absent a strong subordinating interest. These decisions indicate that plaintiff's interest in seeking office, 83 by itself, is not entitled to constitutional protection. Moreover, since plaintiff has not alleged that by running for Congress he was advancing the political ideas of a particular set of voters, he cannot bring his action under the rubric of freedom of association which the Supreme Court has embraced. (italics supplied) As to the applicable standard of judicial scrutiny, Bullock v. Carter holds that the existence of barriers to a candidate's access to the ballot does not of itself compel close scrutiny, and that the Court has not heretofore attached such fundamental status to candidacy 85 as to invoke a rigorous standard of review. These principles attain added significance as we examine the legal status of Mancuso v. Taft. Briefly, that case involved Kenneth Mancuso, a full-time police officer and classified civil service employee of the City of Cranston, Rhode Island. He filed as a candidate for nomination as representative to the Rhode Island General Assembly on October 19, 1971,
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and subsequently initiated a suit challenging the constitutionality of 14.09(c) of the City Home Rule Charter which prohibits continuing in the classified service of the city after becoming a candidate for nomination or election to any public office. The district court ruled in his favor, for which reason the city officials appealed. Applying strict equal protection review, the United States Court of Appeals held that the Cranston charter provision pursues its objective (of maintaining the honesty and impartiality of its public work force) in a far too heavy-handed manner and must therefore fall under the equal protection clause, viz.: Whether the right to run for office is looked at from the point of view of individual expression or associational effectiveness, wide opportunities exist for the individual who seeks public office. x x x Consequently[,] we hold that candidacy is both a protected First Amendment right and a fundamental interest. Hence any legislative classification that significantly burdens that interest must be subjected to strict equal protection review. xxxx x x x It is obviously conceivable that the impartial character of the civil service would be seriously jeopardized if people in positions of authority used their discretion to forward their electoral ambitions rather than the public welfare. Similarly if a public employee pressured other fellow employees to engage in corrupt practices in return for promises of post-election reward, or if an employee invoked the power of the office he was seeking to extract special favors from his superiors, the civil service would be done irreparable injury. Conversely, members of the public, fellow-employees, or supervisors might themselves request favors from the candidate or might improperly adjust their own official behavior towards him. Even if none of these abuses actually materialize, the possibility of their occurrence might seriously erode the public's confidence in its public employees. For the reputation of impartiality is probably as crucial as the impartiality itself; the knowledge that a clerk in the assessor's office who is running for the local zoning board has access to confidential files which could provide ?pressure? points for furthering his campaign is destructive regardless of whether the clerk actually takes ad-vantage of his opportunities. For all of these reasons we find that the state indeed has a compelling interest in maintaining the honesty and impartiality of its public work force. We do not, however, consider the exclusionary measure taken by Cranston-a flat prohibition on office-seeking of all kinds by all kinds of public employees-as even reasonably necessary to satisfaction of this state interest. As Justice Marshall pointed out in Dunn v. Blumstein, ?[s]tatutes affecting constitutional rights must be drawn with "precision"-. For three sets of reasons we conclude that the Cranston charter provision pursues its objective in a far too heavy-handed manner and hence must fall under the equal protection clause. First, we think the nature of the regulation-a broad prophylactic rule-may be unnecessary to fulfillment of the city's objective. Second, even granting some sort of prophylactic rule may be required, the provision here prohibits candidacies for all types of public office, including many which would pose none of the problems at which the law is aimed. Third, the provision excludes the candidacies of all types of public employees, without any attempt to limit exclusion to those employees whose positions make them vulnerable to corruption and conflicts of interest. As to approaches less restrictive than a prophylactic rule, there exists the device of the leave of absence. Some system of leaves of absence would permit the public employee to take time off to pursue his candidacy while assuring him his old job should his candidacy be unsuccessful. Moreover, a leave of absence policy would eliminate many of the opportunities for engaging in the questionable practices that the statute is designed to prevent. While campaigning, the candidate would feel no conflict between his desire for election and his publicly entrusted discretion, nor any conflict between his efforts to persuade the public and his access to confidential documents. But instead of adopting a reasonable leave of absence policy, Cranston has chosen a provision that makes the public employee cast off the security of hard-won public employment should he desire to compete for elected office. The city might also promote its interest in the integrity of the civil service by enforcing, through dismissal, discipline, or criminal prosecution, rules or statutes that treat conflict of interests, bribery, or other forms of official corruption. By thus attacking the problem directly, instead of using a broad prophylactic rule, the city could pursue its objective without unduly burdening the First Amendment rights of its employees and the voting rights of its citizens. x x x (citations omitted) Three months after Mancuso, or on June 1973, the United States Supreme Court decided United States Civil Service Commission, et 86 87 al. v. National Association of Letter Carriers AFL-CIO, et al. and Broadrick, et al. v. State of Oklahoma, et al. Letter Carriers was a declaratory judgment action brought by the National Association of Letter Carriers, certain local Democratic and Republican political committees, and six individual federal employees, who asserted on behalf of themselves and all federal employees, that Section 9(a) of the Hatch Act, prohibiting federal employees from taking an active part in political management or in 88 political campaigns, was unconstitutional on its face. A divided three-judge court held the section unconstitutional, but this ruling was reversed by the United States Supreme Court in this wise:

Until now, the judgment of Congress, the Executive, and the country appears to have been that partisan political activities by federal employees must be limited if the Government is to operate effectively and fairly, elections are to play their proper part in representative government, and employees themselves are to be sufficiently free from improper influences. The restrictions so far imposed on federal employees are not aimed at particular parties, groups, or points of view, but apply equally to all partisan activities of the type described. They discriminate against no racial, ethnic, or religious minorities. Nor do they seek to control political opinions or beliefs, or to interfere with or influence anyone's vote at the polls. But, as the Court held in Pickering v. Board of Education, the government has an interest in regulating the conduct and the speech of its employees that differ(s) significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the (employee), as a citizen, in commenting upon matters of public concern and the interest of the (government), as an employer, in promoting the efficiency of the public services it performs through its employees. Although Congress is free to strike a different balance than it has, if it so chooses, we think the balance it has so far struck is sustainable by the obviously important interests sought to be served by the limitations on partisan political activities now contained in the Hatch Act. It seems fundamental in the first place that employees in the Executive Branch of the Government, or those working for any of its agencies, should administer the law in accordance with the will of Congress, rather than in accordance with their own or the will of a political party. They are expected to enforce the law and execute the pro-grams of the Government without bias or favoritism for or against any political party or group or the members thereof. A major thesis of the Hatch Act is that to serve this great end of Government-the impartial execution of the laws-it is essential that federal employees, for example, not take formal positions in political parties, not undertake to play substantial roles in partisan political campaigns, and not run for office on partisan political tickets. Forbidding activities like these will reduce the hazards to fair and effective government. There is another consideration in this judgment: it is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent. Another major concern of the restriction against partisan activities by federal employees was perhaps the immediate occasion for enactment of the Hatch Act in 1939. That was the conviction that the rapidly expanding Government work force should not be employed to build a powerful, invincible, and perhaps corrupt political machine. The experience of the 1936 and 1938 campaigns convinced Congress that these dangers were sufficiently real that substantial barriers should be raised against the party in power-or the party out of power, for that matter-using the thousands or hundreds of thousands of federal employees, paid for at public expense, to man its political structure and political campaigns. A related concern, and this remains as important as any other, was to further serve the goal that employment and advancement in the Government service not depend on political performance, and at the same time to make sure that Government employees would be free from pres-sure and from express or tacit invitation to vote in a certain way or perform political chores in order to curry favor with their superiors rather than to act out their own beliefs. It may be urged that prohibitions against coercion are sufficient protection; but for many years the joint judgment of the Executive and Congress has been that to protect the rights of federal employees with respect to their jobs and their political acts and beliefs it is not enough merely to forbid one employee to attempt to influence or coerce another. For example, at the hearings in 1972 on proposed legislation for liberalizing the prohibition against political activity, the Chairman of the Civil Service Commission stated that the prohibitions against active participation in partisan political management and partisan political campaigns constitute the most significant safeguards against coercion .... Perhaps Congress at some time will come to a different view of the realities of political life and Government service; but that is its current view of the matter, and we are not now in any position to dispute it. Nor, in our view, does the Constitution forbid it. Neither the right to associate nor the right to participate in political activities is absolute in any event. x x x xxxx As we see it, our task is not to destroy the Act if we can, but to construe it, if consistent with the will of Congress, so as to comport with constitutional limitations. (italics supplied) Broadrick, on the other hand, was a class action brought by certain Oklahoma state employees seeking a declaration that a state statute regulating political activity by state employees was invalid. Section 818 of Oklahoma's Merit System of Personnel Administration Act restricts the political activities of the state's classified civil servants in much the same manner that the Hatch Act 91 proscribes partisan political activities of federal employees. It states, among others, that - [n]o employee in the classified service
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shall be a candidate for nomination or election to any paid public officeViolation of Section 18 results in dismissal from employment, possible criminal sanctions and limited state employment ineligibility. The Supreme Court ruled that Section 18 is constitutional, thus: Appellants do not question Oklahoma's right to place even-handed restrictions on the partisan political conduct of state employees. Appellants freely concede that such restrictions serve valid and important state interests, particularly with respect to attracting greater numbers of qualified people by insuring their job security, free from the vicissitudes of the elective process, and by protecting them from political extortion. Rather, appellants maintain that however permissible, even commendable, the goals of s 818 may be, its language is unconstitutionally vague and its prohibitions too broad in their sweep, failing to distinguish between conduct that may be proscribed and conduct that must be permitted. For these and other reasons, appellants assert that the sixth and seventh paragraphs of s 818 are void in toto and cannot be enforced against them or anyone else. We have held today that the Hatch Act is not impermissibly vague. We have little doubt that s 818 is similarly not so vague that 93 men of common intelligence must necessarily guess at its meaning. Whatever other problems there are with s 818, it is all but frivolous to suggest that the section fails to give adequate warning of what activities it proscribes or fails to set out -explicit standards' for those who must apply it. In the plainest language, it prohibits any state classified employee from being an officer or member of a partisan political club or a candidate for any paid public office. It forbids solicitation of contributions for any political organization, candidacy or other political purpose and taking part in the management or affairs of any political party or in any political campaign. Words inevitably contain germs of uncertainty and, as with the Hatch Act, there may be disputes over the meaning of such terms in s 818 as partisan, or take part in, or affairs of political parties. But what was said in Letter Carriers, is applicable here: there are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest.' x x x xxxx [Appellants] nevertheless maintain that the statute is overbroad and purports to reach protected, as well as unprotected conduct, and must therefore be struck down on its face and held to be incapable of any constitutional application. We do not believe that the overbreadth doctrine may appropriately be invoked in this manner here. xxxx The consequence of our departure from traditional rules of standing in the First Amendment area is that any enforcement of a statute thus placed at issue is totally forbidden until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression. Application of the overbreadth doctrine in this manner is, manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort. x x x x x x But the plain import of our cases is, at the very least, that facial over-breadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from pure speech toward conduct and that conduct-even if expressive-falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect-at best a prediction-cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep. It is our view that s 818 is not substantially overbroad and that whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied. Unlike ordinary breach-of-the peace statutes or other broad regulatory acts, s 818 is directed, by its terms, at political expression which if engaged in by private persons would plainly be protected by the First and Fourteenth Amendments. But at the same time, s 818 is not a censorial statute, directed at particular groups or viewpoints. The statute, rather, seeks to regulate political activity in an even-handed and neutral manner. As indicted, such statutes have in the past been subject to a less exacting overbreadth scrutiny. Moreover, the fact remains that s 818 regulates a substantial spectrum of conduct that is as manifestly subject to state regulation as the public peace or criminal trespass. This much was established in United Public Workers v. Mitchell, and has been unhesitatingly reaffirmed today in Letter Carriers. Under the decision in Letter Carriers, there is no question that s 818 is valid at least insofar as it
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forbids classified employees from: soliciting contributions for partisan candidates, political parties, or other partisan political purposes; becoming members of national, state, or local committees of political parties, or officers or committee members in partisan political clubs, or candidates for any paid public office; taking part in the management or affairs of any political party's partisan political campaign; serving as delegates or alternates to caucuses or conventions of political parties; addressing or taking an active part in partisan political rallies or meetings; soliciting votes or assisting voters at the polls or helping in a partisan effort to get voters to the polls; participating in the distribution of partisan campaign literature; initiating or circulating partisan nominating petitions; or riding in caravans for any political party or partisan political candidate. x x x It may be that such restrictions are impermissible and that s 818 may be susceptible of some other improper applications. But, as presently construed, we do not believe that s 818 must be discarded in toto because some persons arguably protected conduct may or may not be caught or chilled by the statute. Section 818 is not substantially overbroad and it not, therefore, unconstitutional on its face. (italics supplied) Broadrick, likewise, held that the statute did not violate the equal protection clause by singling out classified service employees for restrictions on political expression, while leaving unclassified personnel free from such. The court reasoned that the state legislature must have some leeway in determining which of its employment positions required these restrictions. Accordingly, Letter Carriers and Broadrick teach us that: (i) the state has interests as employer in regulating the speech of its employees that differ significantly from those it possesses in regulating the speech of the citizenry in general; (ii) the courts must therefore balance the legitimate interest of employee free expression against the interests of the employer in promoting efficiency of public services; (iii) if the employees expression interferes with maintenance of efficient and regularly functioning services, the limitation on speech is not unconstitutional; and (iv) the Legislature is to be given some flexibility or latitude in ascertaining which 94 positions are to be covered by any statutory restrictions. It is against this factual backdrop that Magill v. Lynch, a 1977 decision of the First Circuit of the United States Court of Appeals, gains prominence. Noteworthy, this case concerned a similar law, and was decided by the same court that decided Mancuso. Magill involved Pawtucket, Rhode Island firemen who ran for city office in 1975. Pawtucket's "Little Hatch Act" prohibits city employees from engaging in a broad range of political activities. Becoming a candidate for any city office is specifically 96 proscribed, the violation being punished by removal from office or immediate dismissal. The firemen brought an action against the city officials on the ground that that the provision of the city charter was unconstitutional. However, the court, fully cognizant of Letter Carriers and Broadrick, took the position that Mancuso had since lost considerable vitality. It observed that the view that political candidacy was a fundamental interest which could be infringed upon only if less restrictive alternatives were not available, was a position which was no longer viable, since the Supreme Court (finding that the government's interest in regulating both the conduct and speech of its employees differed significantly from its interest in regulating those of the citizenry in general) had given little weight to the argument that prohibitions against the coercion of government employees were a less drastic means to the same end, deferring to the judgment of Congress, and applying a "balancing" test to determine whether limits on political activity by public employees substantially served government interests which were "important" enough to outweigh the employees- First 97 Amendment rights. It must be noted that the Court of Appeals ruled in this wise even though the election in Magill was characterized as nonpartisan, as it was reasonable for the city to fear, under the circumstances of that case, that politically active bureaucrats might use their official power to help political friends and hurt political foes. Ruled the court: The question before us is whether Pawtucket's charter provision, which bars a city employee's candidacy in even a nonpartisan city election, is constitutional. The issue compels us to extrapolate two recent Supreme Court decisions, Civil Service Comm'n v. Nat'l Ass'n of Letter Carriers and Broadrick v. Oklahoma. Both dealt with laws barring civil servants from partisan political activity. Letter Carriers reaffirmed United Public Workers v. Mitchell, upholding the constitutionality of the Hatch Act as to federal employees. Broadrick sustained Oklahoma's "Little Hatch Act" against constitutional attack, limiting its holding to Oklaho-ma's construction that the Act barred only activity in partisan politics. In Mancuso v. Taft, we assumed that proscriptions of candidacy in nonpartisan elections would not be constitutional. Letter Carriers and Broadrick compel new analysis. xxxx What we are obligated to do in this case, as the district court recognized, is to apply the Court's interest balancing approach to the kind of nonpartisan election revealed in this record. We believe that the district court found more residual vigor in our opinion in Mancuso v. Taft than remains after Letter Carriers. We have particular reference to our view that political candidacy was a
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fundamental interest which could be trenched upon only if less restrictive alternatives were not available. While this approach may still be viable for citizens who are not government employees, the Court in Letter Carriers recognized that the government's interest in regulating both the conduct and speech of its employees differs significantly from its interest in regulating those of the citizenry in general. Not only was United Public Workers v. Mitchell "unhesitatingly" reaffirmed, but the Court gave little weight to the argument that prohibitions against the coercion of government employees were a less drastic means to the same end, deferring to the judgment of the Congress. We cannot be more precise than the Third Circuit in characterizing the Court's approach as "some sort of 98 'balancing' process". It appears that the government may place limits on campaigning by public employees if the limits substantially serve government interests that are "important" enough to outweigh the employees' First Amendment rights. x x x (italics supplied) Upholding the constitutionality of the law in question, the Magill court detailed the major governmental interests discussed in Letter Carriers and applied them to the Pawtucket provision as follows: In Letter Carriers[,] the first interest identified by the Court was that of an efficient government, faithful to the Congress rather than to party. The district court discounted this interest, reasoning- that candidates in a local election would not likely be committed to a state or national platform. This observation undoubtedly has substance insofar as allegiance to broad policy positions is concerned. But a different kind of possible political intrusion into efficient administration could be thought to threaten municipal government: not into broad policy decisions, but into the particulars of administration favoritism in minute decisions affecting welfare, tax assessments, municipal contracts and purchasing, hiring, zoning, licensing, and inspections. Just as the Court in Letter Carriers identified a second governmental interest in the avoidance of the appearance of "political justice" as to policy, so there is an equivalent interest in avoiding the appearance of political preferment in privileges, concessions, and benefits. The appearance (or reality) of favoritism that the charter's authors evidently feared is not exorcised by the nonpartisan character of the formal election process. Where, as here, party support is a key to successful campaigning, and party rivalry is the norm, the city might reasonably fear that politically active bureaucrats would use their official power to help political friends and hurt political foes. This is not to say that the city's interest in visibly fair and effective administration necessarily justifies a blanket prohibition of all employee campaigning; if parties are not heavily involved in a campaign, the danger of favoritism is less, for neither friend nor foe is as easily identified. A second major governmental interest identified in Letter Carriers was avoiding the danger of a powerful political machine. The Court had in mind the large and growing federal bureaucracy and its partisan potential. The district court felt this was only a minor threat since parties had no control over nominations. But in fact candidates sought party endorsements, and party endorsements proved to be highly effective both in determining who would emerge from the primary election and who would be elected in the final election. Under the prevailing customs, known party affiliation and support were highly significant factors in Pawtucket elections. The charter's authors might reasonably have feared that a politically active public work force would give the incumbent party, and the incumbent workers, an unbreakable grasp on the reins of power. In municipal elections especially, the small size of the electorate and the limited powers of local government may inhibit the growth of interest groups powerful enough to outbalance the weight of a partisan work force. Even when nonpartisan issues and candidacies are at stake, isolated government employees may seek to influence voters or their co-workers improperly; but a more real danger is that a central party structure will mass the scattered powers of government workers behind a single party platform or slate. Occasional misuse of the public trust to pursue private political ends is tolerable, especially be-cause the political views of individual employees may balance each other out. But party discipline eliminates this diversity and tends to make abuse systematic. Instead of a handful of employees pressured into advancing their immediate superior's political ambitions, the entire government work force may be expected to turn out for many candidates in every election. In Pawtucket, where parties are a continuing presence in political campaigns, a carefully orchestrated use of city employees in support of the incumbent party's candidates is possible. The danger is scarcely lessened by the openness of Pawtucket's nominating procedure or the lack of party labels on its ballots. The third area of proper governmental interest in Letter Carriers was ensuring that employees achieve advancement on their merits and that they be free from both coercion and the prospect of favor from political activity. The district court did not address this factor, but looked only to the possibility of a civil servant using his position to influence voters, and held this to be no more of a threat than in the most nonpartisan of elections. But we think that the possibility of coercion of employees by superiors remains as strong a factor in municipal elections as it was in Letter Carriers. Once again, it is the systematic and coordinated exploitation of public servants for political ends that a legislature is most likely to see as the primary threat of employees' rights. Political oppression of public employees will be rare in an entirely nonpartisan system. Some superiors may be inclined to ride herd on the politics of their employees even in a nonpartisan context, but without party officials looking over their shoulders most supervisors will prefer to let employees go their own ways. In short, the government may constitutionally restrict its employees' participation in nominally nonpartisan elections if political parties play a large role in the campaigns. In the absence of substantial party involvement, on the other hand, the interests

identified by the Letter Carriers Court lose much of their force. While the employees' First Amendment rights would normally outbalance these diminished interests, we do not suggest that they would always do so. Even when parties are absent, many employee campaigns might be thought to endanger at least one strong public interest, an interest that looms larger in the context of municipal elections than it does in the national elections considered in Letter Carriers. The city could reasonably fear the prospect of a subordinate running directly against his superior or running for a position that confers great power over his superior. An employee of a federal agency who seeks a Congressional seat poses less of a direct challenge to the command and discipline of his agency than a fireman or policeman who runs for mayor or city council. The possibilities of internal discussion, cliques, and political bargaining, should an employee gather substantial political support, are considerable. (citations omitted) The court, however, remanded the case to the district court for further proceedings in respect of the petitioners overbreadth charge. Noting that invalidating a statute for being overbroad is "not to be taken lightly, much less to be taken in the dark," the court held: The governing case is Broadrick, which introduced the doctrine of "substantial" overbreadth in a closely analogous case. Under Broadrick, when one who challenges a law has engaged in constitutionally unprotected conduct (rather than unprotected speech) and when the challenged law is aimed at unprotected conduct, "the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Two major uncertainties attend the doctrine: how to distinguish speech from conduct, and how to define "substantial" overbreadth. We are spared the first inquiry by Broadrick itself. The plaintiffs in that case had solicited support for a candidate, and they were subject to discipline under a law proscribing a wide range of activities, including soliciting contributions for political candidates and becoming a candidate. The Court found that this combination required a substantial overbreadth approach. The facts of this case are so similar that we may reach the same result without worrying unduly about the sometimes opaque distinction between speech and conduct. The second difficulty is not so easily disposed of. Broadrick found no substantial over-breadth in a statute restricting partisan campaigning. Pawtucket has gone further, banning participation in nonpartisan campaigns as well. Measuring the substantiality of a statute's overbreadth apparently requires, inter alia, a rough balancing of the number of valid applications compared to the number of potentially invalid applications. Some sensitivity to reality is needed; an invalid application that is far-fetched does not deserve as much weight as one that is probable. The question is a matter of degree; it will never be possible to say that a ratio of one invalid to nine valid applications makes a law substantially over-broad. Still, an overbreadth challenger has a duty to provide the court with some idea of the number of potentially invalid applications the statute permits. Often, simply reading the statute in the light of common experience or litigated cases will suggest a number of probable invalid applications. But this case is different. Whether the statute is overbroad depends in large part on the number of elections that are insulated from party rivalry yet closed to Pawtucket employees. For all the record shows, every one of the city, state, or federal elections in Pawtucket is actively contested by political parties. Certainly the record suggests that parties play a major role even in campaigns that often are entirely nonpartisan in other cities. School committee candidates, for example, are endorsed by the local Democratic committee. The state of the record does not permit us to find overbreadth; indeed such a step is not to be taken lightly, much less to be taken in the dark. On the other hand, the entire focus below, in the short period before the election was held, was on the constitutionality of the statute as applied. Plaintiffs may very well feel that further efforts are not justified, but they should be afforded the opportunity to demonstrate that the charter forecloses access to a significant number of offices, the candidacy for which by municipal employees would not pose the possible threats to government efficiency and integrity which Letter Carriers, as we have interpreted it, deems significant. Accordingly, we remand for consideration of plaintiffs' overbreadth claim. (italics supplied, citations omitted) Clearly, Letter Carriers, Broadrick, and Magill demonstrate beyond doubt that Mancuso v. Taft, which was heavily relied upon by the 99 ponencia, has effectively been overruled. As it is no longer good law, the ponencia's exhortation that we should follow Mancuso [since] the Americans, from whom we copied the provision in question, had already stricken down a similar measure for being unconstitutional[,] is misplaced and unwarranted. Thus, in the instant case, I respectfully submit that Section 13 of RA 9369, which reiterates Section 66 of the Omnibus Election Code, is not violative of the equal protection clause. It is crystal clear that these deemed resignation provisions substantially serve governmental interests (i.e., (i) efficient civil service faithful to the government and the people rather than to party, (ii) avoiding the appearance of "political justice" as to policy, (iii) avoiding the danger of a powerful political machine, and (iv) ensuring that employees achieve advancement on their merits and that they be free from both coercion and the prospect of favor from political activity), which are important enough to outweigh the non-fundamental right of appointive officials and employees to seek elective office. Instead of the overruled case of Mancuso, we should take heed of the ruling in Adams v. Supreme Court of Pennsylvania,
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viz.:

The relevant authorities provide that federal and state officials may regulate the First Amendment rights of various government employees to an extent greater than is appropriate for regular citizens. The issue is not whether a "compelling state interest" supports the relevant law. Rather, the proper test involves a balance between the individual's First Amendment rights and the 101 102 interests the government has at stake. In Morial v. Judicial Commission of the State of Louisiana, the Court of Appeals for the Fifth Circuit held that this principle extends to state judicial officers. Furthermore, the precedent provided the rationale for resolving Adams's argument. It must be conceded that "resign to run" laws place substantial burdens on a potential candidate's right to seek office. Yet the "chilling" effect of these provisions should not be exaggerated, since they do not reach a wide variety of other activities protected by the First Amendment guarantee of free speech. The statutes, moreover, serve important state interests. For example, they help prevent the abuse of judicial office by candidates and former candidates and they safeguard the appearances of propriety. Finally, as the Morial court noted, the less-restrictive alternative of a forced leave of absence would not be sufficient to guard the state's interests, because the danger of corruption, real or perceived, would persist with regard to defeated candidates on their return to the bench. Weighing these considerations, it must be concluded that the Morial analysis is compelling and the "resign to run" law is constitutional. (italics supplied) iii. Classification Germane to the Purposes of the Law Equal protection requires that all persons or things similarly situated should be treated alike, both as to rights conferred and 103 responsibilities imposed. It does not require the universal application of the laws on all persons or things without 104 105 distinction. What the clause simply requires is equality among equals as determined according to a valid classification. By classification is meant the grouping of persons or things similar to each other in certain particulars and different from all others in 106 these same particulars. The test for a valid classification is reasonableness,
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which criterion is complied with upon a showing of the following:

(1) The classification rests on substantial distinctions; (2) It is germane to the purposes of the law; (3) It is not limited to existing conditions only; and (4) It applies equally to all members of the same class.
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In the main, the ponencia admits the presence of the first, third and fourth requisites. It, however, holds that the differential treatment of persons holding appointive offices as opposed to those holding elective offices is not germane to the purpose of the law. I respectfully disagree. Preliminarily, the equal protection clause is satisfied so long as there is a plausible policy reason for the classification. The statute is accorded a strong presumption of validity, and the challenger must bear the burden of showing that the act creates a classification 110 that is "palpably arbitrary or capricious;" otherwise, the legislative determination as to what is a sufficient distinction to warrant 111 the classification will not be overthrown. The challenger must refute all possible rational bases for the differing treatment, 112 whether or not the Legislature cited those bases as reasons for the enactment. The case law is to uphold the statute if we can 113 conceive of any reason to justify the classification; that the constitutionality of the law must be sustained even if the 114 reasonableness of the classification is "fairly debatable." The ponencia readily acknowledges the rationale behind the deemed resignation provision. It holds: The obvious reason for the challenged provision is to prevent the use of a governmental position to promote one's candidacy, or to even wield a dangerous or coercive influence on the electorate. The measure is further aimed at promoting the efficiency, integrity, and discipline of the public service by eliminating the danger that the discharge of official duty would be motivated by political considerations rather than the welfare of the public. The restriction is also justified by the proposition that the entry of civil servants
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to the electoral arena, while still in office, could result in the neglect or inefficiency in the performance of duty because they would 115 be attending to their campaign rather than to their office work. (citation omitted) Nevertheless, the ponencia faults' Section 13 of Republic Act No. 9369 and Section 66 of the Omnibus Election Code because whether one holds an appointive office or an elective one, the evils sought to be prevented by the measure remain. The ponencia explains: For example, the Executive Secretary, or any Member of the Cabinet for that matter, could wield the same influence as the VicePresident who at the same time is appointed to a Cabinet post (in the recent past, elected Vice-Presidents were appointed to take charge of national housing, social welfare development, interior and local government, and foreign affairs). With the fact that they both head executive offices, there is no valid justification to treat them differently when both file their [Certificates of Candidacy] for the elections. Under the present state of our law, the Vice-President, in the example, running this time, let us say, for President, 116 retains his position during the entire election period and can still use the resources of his office to support his campaign. This reasoning, however, fails to appreciate the well-settled rule that, by itself, the fact that a legislative classification is 117 underinclusive will not render it unconstitutionally arbitrary or invidious. The Legislature is free to choose to remedy only part of a 118 problem, as it may 'select one phase of a field and apply a remedy there, neglecting the others. Stated differently, there is no 119 constitutional requirement that regulation must reach each and every class to which it might be applied; that the Legislature must 120 be held rigidly to the choice of regulating all or none. The state is free to regulate one step at a time, recognizing degrees of harm 121 and addressing itself to phases of a problem which presently seem most acute to the legislative mind. For when the Legislature 122 creates a statute, it is not required to solve all the evils of a particular wrong in one fell swoop. New Jersey State League of 123 Municipalities, et al. v. State of New Jersey succinctly states the principle thus: It is axiomatic that in attempting to remedy an injustice, the Legislature need not address every manifestation of the evil at once; it 124 may proceed "one step at a time." Thus, "remedial legislation need not be -all-or-nothing,"[;] ... the Legislature can decide that to 125 start somewhere is better than to start nowhere. Therefore, it is not necessarily fatal that a law is underinclusive by failing to include some who share characteristics of the included class, so long as there is a rational justification for excluding part of the 126 affected class. The Legislature in addressing an issue must invariably draw lines and make choices, thereby creating some inequity as to those included or excluded. As long as the bounds of reasonable choice are not exceeded, the courts must defer to the legislative 127 judgment. We may not strike down a law merely because the legislative aim would have been more fully achieved by expanding 128 the class. We must determine whether there is a reasonable basis for the Legislature's choice and not substitute our own 129 judgment for that of the Legislature. Correspondingly, it is not sufficient grounds for invalidation that we may find that the statute's distinction is unfair, underinclusive, unwise, or not the best solution from a public-policy standpoint; rather, we must find that there is no reasonably rational reason for 130 the differing treatment. In the instant case, is there a rational justification for excluding elected officials from the operation of the deemed resigned provisions- I submit that there is. An election is the embodiment of the popular will, perhaps the purest expression of the sovereign power of the people. It involves 132 the choice or selection of candidates to public office by popular vote. Considering that elected officials are put in office by their constituents for a definite term, it may justifiably be said that they were excluded from the ambit of the deemed resigned provisions in utmost respect for the mandate of the sovereign will of the people. In other words, complete deference is accorded to the will of the electorate that they be served by such officials until the end of the term for which they were elected. In contrast, there is no such expectation insofar as appointed officials are concerned. The dichotomized treatment of appointive and elective officials is therefore germane to the purposes of the law. For the law was made not merely to preserve the integrity, efficiency, and discipline of the public service; the Legislature, whose wisdom is outside the rubric of judicial scrutiny, also thought it wise to balance this with the competing, yet equally compelling, interest of deferring to the sovereign will. Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code are not overbroad.
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Apart from sustaining petitioners- equal protection challenge, the ponencia took an unwarranted step further and struck down Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code for being unconstitutionally overbroad in two respects, viz: (1) The assailed provisions limit the candidacy of all civil servants holding appointive posts without due regard for the type of position being held by the employee seeking an elective post and the degree of influence that may be 133 attendant thereto; and (2) The assailed provisions limit the candidacy of any and all civil servants holding appointive positions without due regard for the type of office being sought, whether it be partisan or nonpartisan in character, or in the national, 134 municipal or barangay level. For reasons discussed below, I respectfully submit that Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code are not unconstitutionally overbroad and must therefore remain fully operative. i. Limitation on Candidacy Regardless of Incumbent Appointive Official's Position, is Valid The ponencia declares that the assailed provisions are overly broad because they are made to apply indiscriminately to all civil servants holding appointive posts, without due regard for the type of position being held by the employee running for elective office and the degree of influence that may be attendant thereto. Apparently, the ponencia assumes that the evils sought to be prevented by the assailed provisions are made possible only when the incumbent appointive official running for elective office holds a position of influence. For this reason, it would limit the application of the challenged restriction solely to incumbent appointive officials in positions of influence. Regrettably, the ponencia manifestly fails to take into account a different kind of possible threat to the government created by the partisan potential of a large and growing bureaucracy: the danger of systematic abuse perpetuated by a "powerful political machine" that has amassed "the scattered powers of government workers" so as to give itself, and its incumbent workers an 135 "unbreakable grasp on the reins of power." Attempts by government employees to wield influence over others or to make use of their respective positions (apparently) to promote their own candidacy may seem tolerable even innocuous particularly when viewed in isolation from other similar attempts by other government employees. Yet it would be decidedly foolhardy to discount the equally (if not more) realistic and dangerous possibility that such seemingly disjointed attempts, when taken together, constitute a veiled effort on the part of a reigning political 136 party to advance its own agenda through a "carefully orchestrated use of [appointive and/or elective] officials" coming from various levels of the bureaucracy. I respectfully submit that the avoidance of such a "politically active public work force" which could give a political machine an 138 "unbreakable grasp on the reins of power" is reason enough to impose a restriction on the candidacies of all appointive public officials without further distinction as to the type of positions being held by such employees or the degree of influence that may be attendant thereto. ii. Limitation on Candidacy Regardless of Type of Office Sought, is Valid The ponencia also maintains that the assailed provisions are overly broad because they are made to apply indiscriminately to all civil servants holding appointive offices, without due regard for the type of elective office being sought, whether it be partisan or 139 nonpartisan in character, or in the national, municipal or barangay level. Adhering to the view that the concerns of a truly partisan office and the temptations it fosters are sufficiently different from those 140 involved in an office removed from regular party politics [so as] to warrant distinctive treatment in a statute similar to the ones being assailed, the ponencia would have the challenged restriction on candidacy apply only in situations where the elective office
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sought is partisan in character. To the extent, therefore, that it supposedly operates to preclude even candidacies for nonpartisan elective offices, the ponencia pronounces the challenged restriction as overbroad. Again, I respectfully disagree.- A careful review, however, of the assailed provisions and related laws on the matter will readily show that the perceived overbreadth is more apparent than real. A perusal of Resolution 8678 will immediately disclose that the rules and guidelines set forth therein refer to the filing of certificates of candidacy and nomination of official candidates of registered political parties, in connection with the May 10, 2010 National and 141 Local Elections. Obviously, these rules and guidelines, including the restriction in Section 4(a) of Resolution 8678, were issued specifically for purposes of the May 10, 2010 National and Local Elections, which, it must be noted, are decidedly partisan in character. Thus, it is clear that the restriction in Section 4(a) of RA 8678 applies only to the candidacies of appointive officials vying for partisan elective posts in the May 10, 2010 National and Local Elections. On this score alone, the overbreadth challenge leveled against Section 4(a) is clearly unsustainable. Similarly, a fair reading of Section 13 of RA 9369 and Section 66 of the Omnibus Election Code, in conjunction with other related laws on the matter, will confirm that these provisions are likewise not intended to apply to elections for nonpartisan public offices. The only elections which are relevant to the issue at bar are the elections for barangay offices, since these are the only elections in 142 this country which involve nonpartisan public offices. In this regard, it is well to note that from as far back as the enactment of the Omnibus Election Code in 1985, Congress has intended that these nonpartisan barangay elections should be governed by special rules, including a separate rule on deemed resignations which is found in Section 39 of the Omnibus Election Code. Said provision states: Section 39. Certificate of Candidacy. - No person shall be elected punong barangay or kagawad ng sangguniang barangay unless he files a sworn certificate of candidacy in triplicate on any day from the commencement of the election period but not later than the day before the beginning of the campaign period in a form to be prescribed by the Commission. The candidate shall state the barangay office for which he is a candidate. xxxx Any elective or appointive municipal, city, provincial or national official or employee, or those in the civil or military service, including those in government-owned or-controlled corporations, shall be considered automatically resigned upon the filing of certificate of candidacy for a barangay office. Since barangay elections are governed by a separate deemed resignation rule, under the present state of law, there would be no occasion to apply the restriction on candidacy found in Section 66 of the Omnibus Election Code, and later reiterated in the proviso of Section 13 of RA 9369, to any election other than a partisan one. For this reason, the overbreadth challenge raised against Section 66 of the Omnibus Election Code and Section 13 of RA 9369 must again fail. In any event, assuming, for the sake of argument, that Section 66 of the Omnibus Election Code and the corresponding proviso in Section 13 of RA 9369 are general rules intended to apply also to elections for nonpartisan public offices, it is respectfully submitted that the overbreadth challenge mounted against said provisions would be just as futile. In the first place, the view that Congress is limited to controlling only partisan behavior has not received judicial imprimatur. As previously discussed, the ruling case law in the United States tells us that the government has an interest in regulating the conduct and speech of its employees that differs significantly from those it possesses in connection with regulation of the speech of the 143 citizenry in general. Moreover, in order to have a statute declared as unconstitutional or void on its face for being overly broad, particularly where, as in this case, "conduct" and not "pure speech" is involved, the overbreadth must not only be real, but substantial as well, judged in 144 relation to the statute's plainly legitimate sweep. In operational terms, measuring the substantiality of a statute's overbreadth would entail, among other things, a rough balancing of 145 the number of valid applications compared to the number of potentially invalid applications. In this regard, some sensitivity to 146 reality is needed; an invalid application that is far-fetched does not deserve as much weight as one that is probable. The question 147 is a matter of degree. Thus, assuming for the sake of argument that the partisan-nonpartisan distinction is valid and necessary

such that a statute which fails to make this distinction is susceptible to an overbreadth attack, the overbreadth challenge presently mounted must demonstrate or provide this Court with some idea of the number of potentially invalid elections (i.e., the number of elections that were insulated from party rivalry but were nevertheless closed to appointive employees) that may in all probability 148 result from the enforcement of the statute. The record of the case at bar, however, does not permit us to find overbreadth. Borrowing from the words of Magill, indeed, such a 149 step is not to be taken lightly, much less to be taken in the dark, especially since an overbreadth finding in this case would effectively prohibit the state from enforcing an otherwise valid measure against conduct that is admittedly within its power to 150 proscribe. At this juncture, it is well to note that the application of the overbreadth doctrine in the analysis of statutes that purportedly attempt to restrict or burden the exercise of a First Amendment right is manifestly strong medicine that must be employed by the 151 Court sparingly, and only as a last resort. This is because any enforcement of a statute thus placed at issue is totally forbidden until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression, thereby increasing the possible harm to society that may result from permitting some unprotected speech or conduct to go unpunished. Thus, claims of facial overbreadth have been entertained only where, in the judgment of the court, the possible harm to society in permitting some unprotected speech or conduct to go unpunished is outweighed by the possibility that the protected speech of others may be muted, and perceived grievances left to fester because of the possible inhibitory effects of overly broad 152 statutes. Also, facial overbreadth has not been invoked where a limiting construction could be placed on the challenged statute, and where the court could conceive of readily apparent constructions which would cure, or at least substantially reduce, the alleged 153 overbreadth of the statute. I respectfully submit that the probable harm to society in permitting incumbent appointive officials to remain in office even as they actively pursue elective posts far outweighs the less likely evil of having arguably protected candidacies curtailed because of the possible inhibitory effect of a potentially overly broad statute. Thus, while the challenged provisions may deter protected conduct to some unknown extent, that effect at best a prediction cannot, with confidence, justify invalidating these statutes in toto and so 154 prohibit the State from enforcing them against conduct that is concededly within its power and interest to proscribe. Where the historic or likely frequency of a statute's conceivably impermissible applications is relatively low, it may be more appropriate to guard against the statute's conceivably impermissible applications through case-by-case adjudication rather than 155 through facial invalidation. A last word The importance of the coming May 2010 national and local elections cannot be overstated. The country cannot afford an election which will be perceived as neither free nor fair. It is the bounden duty of this Court to protect the integrity of our electoral process from any suspicion of partisan bias. The people should see judges and justices wearing judicial and not political robes. A court that cannot elevate itself above politics cannot protect the rule of law. Accordingly, I vote to DISMISS the petition. REYNATO S. PUNO Chief Justice

DISSENTING OPINION CARPIO, J.: I join Chief Justice Reynato S. Puno in his dissent. The law is plain, clear and unequivocal that appointive public officialsare deemed automatically resigned from office upon filing their certificates of candidacy.- Paragraph 3, Section 11 of Republic Act No. 8436, as amended by Republic Act No. 9369, provides:

For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition of registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall effect only upon that start of the aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers, and employees in government-owned or-controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certificate of candidacy. (Emphasis supplied) The final proviso in paragraph 3, Section 11 of RA No. 8436, as amended, is a mere reiteration of Section 66 of the Omnibus Election Code, which provides: Section 66.- Candidates holding appointive office or positions. - Any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso factoresigned from his office upon the filing of his certificate of candidacy. Congress inserted the final proviso to clarify that Section 66 of the Omnibus Election Code still applies despite the second sentence in the paragraph 3 of Section 11, which states that a person who files a certificate of candidacy is considered a candidate only upon the start of the campaign period. The final proviso in paragraph 3, Section 11 of RA No. 8436, as amended, and Section 66 of the Omnibus Election Code are constitutional. First.- Appointive public officials arecivil service officers or employees. Section 2(1), Article IX-B of the 1987 Constitution provides: The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including governmentowned or controlled corporations with original charters. The Constitution expressly prohibits civil service officers and employees from engaging in any electioneering or partisan political activity. Section 2(4), Article IX-B of the 1987 Constitution provides: No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political activity.(Emphasis supplied) Since the Constitution also provides that suffrage may be exercised by all citizens, Section 2(4) of Article IX-B does not prohibit civil 2 service officers and employees from voting. Thus, civil service officers and employees cannot engage in any electioneering or partisan political activity except to vote.This is clear from the second paragraph of Section 3(3), Article XVI of the 1987 Constitution, which provides: No member of the military shall engage directly or indirectly in any partisan political activity, except to vote.(Emphasis supplied) The Civil Service laws implement this constitutional ban by stating that civil service officers and employees cannot engage in any partisan political activity except to vote. Section 55, Chapter 7, Title I, Book V of the Administrative Code of 1987 provides: Section 55.- Political Activity. - No officer or employee in the Civil Service including members of the Armed Forces, shall engage directly or indirectly in any partisan political activity or take part in any election except to votenor shall he use his official authority or influence to coerce the political activity of any other person or body. xxx. (Emphasis supplied) Likewise, the Omnibus Election Code penalizes civil service officers and employees who engage in any partisan political activity except to vote. Section 261 (i) of the Omnibus Election Code states:Section 261.- Prohibited Acts. - The following shall be guilty of an election offense:xxxx (i)- Intervention of public officers and employees. Any officer or employee in the civil service, except those holding political offices; any officer, employee, or member of the Armed Forces of the Philippines, or any police force, special forces, home defense forces,
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barangay self-defense units and all other para-military units that now exist or which may hereafter be organized who, directly or indirectly, intervenes in any election campaign or engages in any partisan political activity, except to voteor to preserve public order, if he is a peace officer. (Emphasis supplied) Filing a certificate of candidacy is in itself a partisan political activity.- It is a public announcement that one is running for elective public office. It is a necessary act for election to public office, and promotes one's candidacy to public office. Running for public office, or exercising the right to be voted for, is different from, and not part of, the right to vote. The only partisan political activity allowed to civil service officers and employees is to vote. Filing a certificate of candidacy is a partisan political activity not allowed to civil service officers and employees. An appointive public official who files a certificate of candidacy violates the express constitutional ban on civil service officers from engaging in any partisan political activity except to vote. Thus, the law may validly provide that an appointive public official is automatically deemed resigned upon filing a certificate of candidacy. This merely implements the constitutional ban on civil service officers and employees from engaging in any partisan political activity except to vote. Second. There is a substantial distinction between an appointive public official and an elective public official for purposes of considering only appointive public officials as deemed resigned upon the filing of certificate of candidacy.- Appointive public officials are chosen by the appointing power and not elected by the people. They do not have to renew their mandate periodically unlike elective public officials. They also do not have term limits unlike elective public officials. Most important of all, the constitutional ban on civil service officers and employees from engaging in any partisan political activity applies to appointive public officials but not to elective public officials. By the very nature of their office, elective public officials engage in partisan political activities almost all year round, even outside of the campaign period. , because of all these substantial distinctions, there is no violation of the equal protection clause when the law mandates that only appointive public officials, and not elective public officials, are deemed automatically resigned upon the filing of certificate of candidacy. Third.- The final provisoon the automatic resignation of appointive public officials in paragraph 3, Section 11 of RA No. 8436, as amended by RA No. 9369, qualifies the second sentencein paragraph 3 that, Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy; xxx. -In short, the final proviso clearly excludes appointive public officials from the operation of the second sentence. This is the plain, clear and unequivocal language of the law. Fourth. The automatic resignation of appointive public officials upon the filing of certificate of candidacy has been in the statute books for more than 100 years. The earliest law on the matter is Act No. 1582 or the first Election Law enacted by the Philippine 4 Commission in 1907. Section 29 of Act No. 1582 provides: Section 29. Penalties upon officers. --- xxx. No public officer shall offer himself as a candidate for election, nor shall he be eligible during the time that he holds said public office to election, at any municipal, provincial or Assembly election, except for reelection to the position which he may be holding,and no judge of the Court of First Instance xxx. (Emphasis supplied) Even this law allowed elective public officers who sought "reelection" to hold on to their office, distinguishing them from appointive public officials who were not allowed to hold on to their office if they sought election. Fifth.- One can just imagine the anomaly, conflict and tension that will arise if the Provincial Director of the Philippine National Police, or the Philippine Army Commander whose troops are stationed within the province, will file a certificate of candidacy for governor of the province on 1 December 2009 for the 10 May- 2010 elections. "If the PNP Provincial Director or Army Commander is not considered automatically resigned from office, he has until the start of the campaign period on 26 March 2010 to remain in his post, in command of hundreds, if not thousands, of fully-armed personnel." This is a disaster waiting to happen. In sum, appointive public officials can validly be deemed automatically resigned upon the filing of certificate of candidacy, as provided in the final proviso of paragraph 3, Section 11 of RA No. 8436, as amended by RA No. 9369, as well as in Section 66 of the Omnibus Election Code.- These provisions merely implement the constitutional ban in Section 2(4) of Article IX-B, and Section 3(3) of Article XVI, of the 1987 Constitution. Accordingly, I vote to DISMISSthe petition.

ANTONIO T. CARPIO Associate Justice

Footnotes
1

Section 1, Article V of the 1987 Constitution provides: "Section 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage."
2

Both the 1935 and 1973 Constitutions contained the phrase -except to vote.- Thus, Section 2, Article XII of the 1935 Constitution provides: "Section 2. Officers and employees in the Civil Service, including members of the armed forces, shall not engage directly or indirectly in partisan political activities or take part in any election except to vote." Section 5, Article XII-B of the 1973 Constitution provides: Section 5. No officer or employee in the Civil Service, including members of the armed forces, shall engage directly or indirectly, in any partisan political activity or take part in any election except to vote.
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Section 29 of the Civil Service Act of 1959 (RA No. 2260) provides: "Section 29. Political Activity. Officers and employees in the civil service, whether in the competitive or classified, or non-competitive or unclassified service, shall not engage directly or indirectly in partisan political activities or take part in any election except to vote. xxx. " Similar provisions appear in the charters of government agencies. Section 5, Article XII-B of the 1973 Constitution also provides: "No officer or employee in the Civil Service, including members of the armed forces, shall engage directly or indirectly, in any partisan political activity or take part in any election except to vote."
4

Section 29 of Act No. 1582 is quoted in the ponencia.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION CARPIO MORALES, J.: I dissent from the majority opinion which declares as unconstitutional the second proviso in the third paragraph of Section 13 of Republic Act No. 9369 (January 23, 2007) and Section 66 of Batas Pambansa Blg. 881 (December 3, 1985) or the Omnibus Election Code, respectively quoted as follows: SEC. 13. Section 11 of Republic Act No. 8436 is hereby amended to read as follows: Sec. 15. x x x x x x Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers, and employees in government-owned or-controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certification of candidacy.- (underscoring supplied) xxxx ----SEC. 66. Candidates holding appointive office or positions. - Any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled

corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. (underscoring supplied) What petitioners assail, however, is paragraph (a) of Section 4 of Comelec Resolution No. 8678 (October 6, 2009) which mirrors the above-quoted provisions. Section 4 thereof provides: SEC. 4.- Effects of Filing Certificates of Candidacy.- a) Any person holding a public appointive office or position including active members of the Armed Forces of the Philippines, and other officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. (b) Any person holding an elective office or position shall not be considered resigned upon the filing of his certificate of candidacy for the same or any other elective office or position. (underscoring supplied) As presented by the ponencia, a parallel provision on persons holding elective office or position existed in Section 67 of the Omnibus Election Code (December 3, 1985) until it was repealed by Republic Act No. 9006 (February 12, 2001) or the Fair Election Act.- Prior to the repeal, the provision was amplified by the first proviso of the third paragraph of Section 11 of Republic Act No. 8436 (December 22, 1997) otherwise known as the Election Automation Law until said proviso was rendered ineffective in 2001 by the Fair Election Act and was totally abandoned in 2007 by the amendatory law of Republic Act No. 9369. In granting the petition, the ponencia eliminates the ipso facto resignation from public office by an appointive public official upon the filing of the certificate of candidacy, thereby removing the distinction between one holding an appointive position and one holding an elective position. The ponencia revisits Fariv. The Executive Secretary, notwithstanding its submission that the discussion therein on the equal protection clause was obiter dictum, "albeit the issue was squarely raised therein. " The ponencia adds that Fari/i> focused on the validity of the repeal of Section 67 (on elective positions) of the Omnibus Election Code and never posed a direct challenge to the constitutionality of retaining Section 66 (on appointive positions) thereof. En passant, I observe that neither is the constitutionality of Section 13 of Republic Act No. 9369 and Section 66 of Batas Pambansa Blg. 881 challenged by petitioners in the present case. What petitioners assail is, it bears repeating, Section 4(a) of Comelec Resolution No. 8678. In Fari/i>, the Court ruled: The petitioners contention, that the repeal of Section 67 of the Omnibus Election Code pertaining to elective officials gives undue benefit to such officials as against the appointive ones and violates the equal protection clause of the constitution, is tenuous. The equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable classification. If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from the other. The Court has explained the nature of the equal protection guarantee in this manner: The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not. Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority. Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987 (Executive Order No. 292),appointive officials, as officers and
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employees in the civil service, are strictly prohibited from engaging in any partisan political activity or take part in any election except to vote. Under the same provision, elective officials, or officers or employees holding political offices, are obviously expressly allowed to take part in political and electoral activities. By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators deemed it proper to treat these two classes of officials differently with respect to the effect on their tenure in the office of the filing of the certificates of candidacy for any position other than those occupied by them. Again, it is not within the power of the Court to pass upon or look into the wisdom of this classification. Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis-a-vis appointive officials, is anchored upon material and significant distinctions and all the persons belonging under the same classification are similarly treated, the equal 3 protection clause of the Constitution is, thus, not infringed. (italics in the original; underscoring supplied) Fari/i> pointed out at least three material and substantial distinctions that set apart elective officials from appointive officials (i.e., mandate of the electorate, removal from office only upon stringent conditions, no prohibition against partisan political activity). The ponencia does not dispute the presence of this set of distinctions as one of the grounds for a classification to be valid and nonviolative of the equal protection clause. The ponencia does not correlate the impact of the prohibition against partisan political activity on the provisions onipso 4 facto resignation. Section 55, Chapter 8, Title I, Subsection A, Book V of the Administrative Code of 1987 reads: Sec. 55. Political Activity. No officer or employee in the Civil Service including members of the Armed Forces, shall engage, directly or indirectly, in any partisan political activity or take part in any election except to vote nor shall he use his official authority or influence to coerce the political activity of any other person or body. Nothing herein provided shall be understood to prevent any officer or employee from expressing his views on current political problems or issues, or from mentioning the names of his candidates for public office whom he supports: Provided,That public officers and employees holding political offices may take part in political and electoral activities but it shall be unlawful for them to solicit contributions from their subordinates or subject them to any of the acts involving subordinates prohibited in the Election Code. (underscoring supplied) To allow appointive officials to hang on to their respective posts after filing their certificate of candidacy will open the floodgates to countless charges of violation of the prohibition on partisan political activity. The filing of the certificate of candidacy is already deemed as a partisan political activity, which also explains why the appointive official is considered ipso facto resigned from public office upon the date of the filing of the certificate of candidacy, and not the date of the start of the campaign period. Pagano 5 v. Nazarro, Jr. teaches: Clearly, the act of filing a Certificate of Candidacy while one is employed in the civil service constitutes a just cause for termination of employment for appointive officials. Section 66 of the Omnibus Election Code, in considering an appointive official ipso facto resigned, merely provides for the immediate implementation of the penalty for the prohibited act of engaging in partisan political activity. This provision was not intended, and should not be used, as a defense against an administrative case for acts committed 6 during government service. (emphasis and underscoring supplied) The Court cannot look into the wisdom of the classification, as it runs the risk of either unduly magnifying the minutiae or viewing the whole picture with a myopic lens. The Court cannot strike down as unconstitutional the above-mentioned provisions without 7 crossing the path of said Section 55 of the Administrative Code, among other things, on political activity or without rebutting the apolitical nature of an appointive office. Section 55, however, is, as earlier stated, neither challenged in the present case, nor are Section 13 of Republic Act No. 9369 and Section 66 of the Omnibus Election Code. While the ponencia admits that there are substantial distinctions, it avers that the requisite that the classification be germane to the purposes of the law is absent. In discussing the underlying objectives of the law, the majority opinion identifies the evils sought to be prevented by the law and opines that these evils are present in both elective and appointive public offices. Ultimately, the ponencia kills the law and spares the evils. It raises arguments that lend support more to a parity of application of the ipso facto resignation than a parity of nonapplication of the ipso facto resignation.1avvphil

In explaining Section 2 (4) of Article IX-B of the Constitution, an eminent constitutionalist elucidated that the general rule is 9 intended to keep the Civil Service free of the deleterious effects of political partisanship. Political partisanship, meanwhile, is the inevitable essence of a political office, elective positions included. Unfortunately, the ponencia does not refute the apolitical nature of an appointive office. To the issues surrounding the policy of reserving political activities to political officers, the remedy is legislation. The ponencia proceeds to discuss the right to run for public office in relation to the freedom of expression and of association. It 10 cites Mancuso v. Taft, a case decided by the United States Court of Appeals, First Circuit, involving a city home rule charter in 11 Rhode Island, to buttress its conclusion and to persuade that this jurisdiction too should follow suit. In U.S. jurisdiction, however, the Hatch Act of 1939 which imposes limitations on the political activities of federal government employees is still considered good law. It prohibits government employees from running for or holding public office or participating in the campaign management for another. "On two occasions, the Hatch Act has been brought to the US Supreme Court, both times based on First Amendment arguments that the prohibitions were unduly restrictive on the private constitutional liberties of 13 government employees." The statute was upheld in both cases, United Public Workers of America v. Mitchell, and United States 14 Civil Service Commission v National Association of Letter Carriers. The Hatch Act has since been applied or copied in most states with respect to state or local government employees. While the spirit of the ruling in Mitchell has been questioned or overturned by inferior courts in cases assailing similar state laws or city charters (such as Mancuso), Mitchell has not, however, been overturned by the U.S. Supreme Court. An inferior court can never erode a Supreme Court decision. Finally, a public employee holding appointive office or position, by accepting a non-political government appointment, binds himself to the terms and conditions of employment fixed by law. In one case, it was held that in government employment, "it is the legislature and, where properly given delegated power, the administrative heads of government which fix the terms and conditions 15 of employment." And this is effected through the statutes or administrative circulars, rules, and regulations[,] part of which is the 16 setting of standards for allowable limitations in the exercise of the rights of free expression and of assembly. WHEREFORE, I vote to DISMISS the petition. CONCHITA CARPIO MORALES Associate Justice
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EN BANC G.R. No. 189698 February 22, 2010

ELEAZAR P. QUINTO and GERINO A. TOLENTINO, JR., Petitioners, vs. COMMISSION ON ELECTIONS, Respondent. RESOLUTION PUNO, C.J.: Upon a careful review of the case at bar, this Court resolves to grant the respondent Commission on Elections (COMELEC) motion for reconsideration, and the movants-intervenors motions for reconsideration-in-intervention, of this Courts December 1, 2009 1 Decision (Decision). The assailed Decision granted the Petition for Certiorari and Prohibition filed by Eleazar P. Quinto and Gerino A. Tolentino, Jr. and 2 declared as unconstitutional the second proviso in the third paragraph of Section 13 of Republic Act No. 9369, Section 66 of the 3 4 Omnibus Election Code and Section 4(a) of COMELEC Resolution No. 8678, mainly on the ground that they violate the equal protection clause of the Constitution and suffer from overbreadth. The assailed Decision thus paved the way for public appointive officials to continue discharging the powers, prerogatives and functions of their office notwithstanding their entry into the political arena. In support of their respective motions for reconsideration, respondent COMELEC and movants-intervenors submit the following arguments: (1) The assailed Decision is contrary to, and/or violative of, the constitutional proscription against the participation of public appointive officials and members of the military in partisan political activity; (2) The assailed provisions do not violate the equal protection clause when they accord differential treatment to elective and appointive officials, because such differential treatment rests on material and substantial distinctions and is germane to the purposes of the law; (3) The assailed provisions do not suffer from the infirmity of overbreadth; and (4) There is a compelling need to reverse the assailed Decision, as public safety and interest demand such reversal. We find the foregoing arguments meritorious. I. Procedural Issues First, we shall resolve the procedural issues on the timeliness of the COMELECs motion for reconsideration which was filed on December 15, 2009, as well as the propriety of the motions for reconsideration-in-intervention which were filed after the Court had rendered its December 1, 2009 Decision. i. Timeliness of COMELECs Motion for Reconsideration Pursuant to Section 2, Rule 56-A of the 1997 Rules of Court, in relation to Section 1, Rule 52 of the same rules, COMELEC had a period of fifteen days from receipt of notice of the assailed Decision within which to move for its reconsideration. COMELEC received notice of the assailed Decision on December 2, 2009, hence, had until December 17, 2009 to file a Motion for Reconsideration. The Motion for Reconsideration of COMELEC was timely filed. It was filed on December 14, 2009. The corresponding Affidavit of Service (in substitution of the one originally submitted on December 14, 2009) was subsequently filed on December 17, 2009 still within the reglementary period.
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ii. Propriety of the Motions for Reconsideration-in-Intervention Section 1, Rule 19 of the Rules of Court provides: A person who has legal interest in the matter in litigation or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof may, with leave of court, be allowed to intervene in the action. The court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intervenors rights may be fully protected in a separate proceeding. Pursuant to the foregoing rule, this Court has held that a motion for intervention shall be entertained when the following requisites are satisfied: (1) the would-be intervenor shows that he has a substantial right or interest in the case; and (2) such right or interest 7 cannot be adequately pursued and protected in another proceeding. Upon the other hand, Section 2, Rule 19 of the Rules of Court provides the time within which a motion for intervention may be filed, viz.: SECTION 2. Time to intervene. The motion for intervention may be filed at any time before rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the motion and served on the original parties. (italics supplied) This rule, however, is not inflexible. Interventions have been allowed even beyond the period prescribed in the Rule, when demanded by the higher interest of justice. Interventions have also been granted to afford indispensable parties, who have not been 8 impleaded, the right to be heard even after a decision has been rendered by the trial court, when the petition for review of the 9 judgment has already been submitted for decision before the Supreme Court, and even where the assailed order has already 10 11 become final and executory. In Lim v. Pacquing, the motion for intervention filed by the Republic of the Philippines was allowed by this Court to avoid grave injustice and injury and to settle once and for all the substantive issues raised by the parties. In fine, the allowance or disallowance of a motion for intervention rests on the sound discretion of the court after consideration of 13 the appropriate circumstances. We stress again that Rule 19 of the Rules of Court is a rule of procedure whose object is to make 14 the powers of the court fully and completely available for justice. Its purpose is not to hinder or delay, but to facilitate and 15 promote the administration of justice. We rule that, with the exception of the IBP Cebu City Chapter, all the movants-intervenors may properly intervene in the case at bar. First, the movants-intervenors have each sufficiently established a substantial right or interest in the case. As a Senator of the Republic, Senator Manuel A. Roxas has a right to challenge the December 1, 2009 Decision, which nullifies a long established law; as a voter, he has a right to intervene in a matter that involves the electoral process; and as a public officer, he has a personal interest in maintaining the trust and confidence of the public in its system of government. On the other hand, former Senator Franklin M. Drilon and Tom V. Apacible are candidates in the May 2010 elections running against appointive officials who, in view of the December 1, 2009 Decision, have not yet resigned from their posts and are not likely to resign from their posts. They stand to be directly injured by the assailed Decision, unless it is reversed. Moreover, the rights or interests of said movants-intervenors cannot be adequately pursued and protected in another proceeding. Clearly, their rights will be foreclosed if this Courts Decision attains finality and forms part of the laws of the land. With regard to the IBP Cebu City Chapter, it anchors its standing on the assertion that "this case involves the constitutionality of elections laws for this coming 2010 National Elections," and that "there is a need for it to be allowed to intervene xxx so that the voice of its members in the legal profession would also be heard before this Highest Tribunal as it resolves issues of transcendental 16 importance." Prescinding from our rule and ruling case law, we find that the IBP-Cebu City Chapter has failed to present a specific and substantial interest sufficient to clothe it with standing to intervene in the case at bar. Its invoked interest is, in character, too indistinguishable to justify its intervention.
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We now turn to the substantive issues. II. Substantive Issues The assailed Decision struck down Section 4(a) of Resolution 8678, the second proviso in the third paragraph of Section 13 of Republic Act (RA) 9369, and Section 66 of the Omnibus Election Code, on the following grounds: (1) They violate the equal protection clause of the Constitution because of the differential treatment of persons holding appointive offices and those holding elective positions; (2) They are overbroad insofar as they prohibit the candidacy of all civil servants holding appointive posts: (a) without distinction as to whether or not they occupy high/influential positions in the government, and (b) they limit these civil servants activity regardless of whether they be partisan or nonpartisan in character, or whether they be in the national, municipal or barangay level; and (3) Congress has not shown a compelling state interest to restrict the fundamental right of these public appointive officials. We grant the motions for reconsideration. We now rule that Section 4(a) of Resolution 8678, Section 66 of the Omnibus Election Code, and the second proviso in the third paragraph of Section 13 of RA 9369 are not unconstitutional, and accordingly reverse our December 1, 2009 Decision. III. Section 4(a) of COMELEC Resolution 8678 Compliant with Law Section 4(a) of COMELEC Resolution 8678 is a faithful reflection of the present state of the law and jurisprudence on the matter, viz.: Incumbent Appointive Official. - Under Section 13 of RA 9369, which reiterates Section 66 of the Omnibus Election Code, any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or -controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. Incumbent Elected Official. Upon the other hand, pursuant to Section 14 of RA 9006 or the Fair Election Act, which repealed 18 Section 67 of the Omnibus Election Code and rendered ineffective Section 11 of R.A. 8436 insofar as it considered an elected 19 official as resigned only upon the start of the campaign period corresponding to the positions for which they are running, an elected official is not deemed to have resigned from his office upon the filing of his certificate of candidacy for the same or any other elected office or position. In fine, an elected official may run for another position without forfeiting his seat. These laws and regulations implement Section 2(4), Article IX-B of the 1987 Constitution, which prohibits civil service officers and employees from engaging in any electioneering or partisan political campaign. The intention to impose a strict limitation on the participation of civil service officers and employees in partisan political campaigns is unmistakable. The exchange between Commissioner Quesada and Commissioner Foz during the deliberations of the Constitutional Commission is instructive: MS. QUESADA. xxxx Secondly, I would like to address the issue here as provided in Section 1 (4), line 12, and I quote: "No officer or employee in the civil service shall engage, directly or indirectly, in any partisan political activity." This is almost the same provision as in the 1973 Constitution. However, we in the government service have actually experienced how this provision has been violated by the direct or indirect partisan political activities of many government officials.
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So, is the Committee willing to include certain clauses that would make this provision more strict, and which would deter its violation? MR. FOZ. Madam President, the existing Civil Service Law and the implementing rules on the matter are more than exhaustive enough to really prevent officers and employees in the public service from engaging in any form of partisan political activity. But the problem really lies in implementation because, if the head of a ministry, and even the superior officers of offices and agencies of government will themselves violate the constitutional injunction against partisan political activity, then no string of words that we may add to what is now here in this draft will really implement the constitutional intent against partisan political activity. x x 20 x (italics supplied) To emphasize its importance, this constitutional ban on civil service officers and employees is presently reflected and implemented by a number of statutes. Section 46(b)(26), Chapter 7 and Section 55, Chapter 8 both of Subtitle A, Title I, Book V of the Administrative Code of 1987 respectively provide in relevant part: Section 44. Discipline: General Provisions: xxxx (b) The following shall be grounds for disciplinary action: xxxx (26) Engaging directly or indirectly in partisan political activities by one holding a non-political office. xxxx Section 55. Political Activity. No officer or employee in the Civil Service including members of the Armed Forces, shall engage directly or indirectly in any partisan political activity or take part in any election except to vote nor shall he use his official authority or influence to coerce the political activity of any other person or body. Nothing herein provided shall be understood to prevent any officer or employee from expressing his views on current political problems or issues, or from mentioning the names of his candidates for public office whom he supports: Provided, That public officers and employees holding political offices may take part in political and electoral activities but it shall be unlawful for them to solicit contributions from their subordinates or subject them to any of the acts involving subordinates prohibited in the Election Code. Section 261(i) of Batas Pambansa Blg. 881 (the Omnibus Election Code) further makes intervention by civil service officers and employees in partisan political activities an election offense, viz.: SECTION 261. Prohibited Acts. The following shall be guilty of an election offense: xxxx (i) Intervention of public officers and employees. Any officer or employee in the civil service, except those holding political offices; any officer, employee, or member of the Armed Forces of the Philippines, or any police force, special forces, home defense forces, barangay self-defense units and all other para-military units that now exist or which may hereafter be organized who, directly or indirectly, intervenes in any election campaign or engages in any partisan political activity, except to vote or to preserve public order, if he is a peace officer. The intent of both Congress and the framers of our Constitution to limit the participation of civil service officers and employees in partisan political activities is too plain to be mistaken. But Section 2(4), Article IX-B of the 1987 Constitution and the implementing statutes apply only to civil servants holding apolitical offices. Stated differently, the constitutional ban does not cover elected officials, notwithstanding the fact that "[t]he civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled 21 corporations with original charters." This is because elected public officials, by the very nature of their office, engage in partisan 22 political activities almost all year round, even outside of the campaign period. Political partisanship is the inevitable essence of a 23 political office, elective positions included.

The prohibition notwithstanding, civil service officers and employees are allowed to vote, as well as express their views on political issues, or mention the names of certain candidates for public office whom they support. This is crystal clear from the deliberations of the Constitutional Commission, viz.: MS. AQUINO: Mr. Presiding Officer, my proposed amendment is on page 2, Section 1, subparagraph 4, lines 13 and 14. On line 13, between the words "any" and "partisan," add the phrase ELECTIONEERING AND OTHER; and on line 14, delete the word "activity" and in lieu thereof substitute the word CAMPAIGN. May I be allowed to explain my proposed amendment? THE PRESIDING OFFICER (Mr. Treas): Commissioner Aquino may proceed. MS. AQUINO: The draft as presented by the Committee deleted the phrase "except to vote" which was adopted in both the 1935 and 1973 Constitutions. The phrase "except to vote" was not intended as a guarantee to the right to vote but as a qualification of the general prohibition against taking part in elections. Voting is a partisan political activity. Unless it is explicitly provided for as an exception to this prohibition, it will amount to disenfranchisement. We know that suffrage, although plenary, is not an unconditional right. In other words, the Legislature can always pass a statute which can withhold from any class the right to vote in an election, if public interest so required. I would only like to reinstate the qualification by specifying the prohibited acts so that those who may want to vote but who are likewise prohibited from participating in partisan political campaigns or electioneering may vote. MR. FOZ: There is really no quarrel over this point, but please understand that there was no intention on the part of the Committee to disenfranchise any government official or employee. The elimination of the last clause of this provision was precisely intended to protect the members of the civil service in the sense that they are not being deprived of the freedom of expression in a political contest. The last phrase or clause might have given the impression that a government employee or worker has no right whatsoever in an election campaign except to vote, which is not the case. They are still free to express their views although the intention is not 24 really to allow them to take part actively in a political campaign. IV. Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code Do Not Violate the Equal Protection Clause We now hold that Section 4(a) of Resolution 8678, Section 66 of the Omnibus Election Code, and the second proviso in the third paragraph of Section 13 of RA 9369 are not violative of the equal protection clause of the Constitution. i. Farias, et al. v. Executive Secretary, et al. is Controlling In truth, this Court has already ruled squarely on whether these deemed-resigned provisions challenged in the case at bar violate the 25 equal protection clause of the Constitution in Farias, et al. v. Executive Secretary, et al. In Farias, the constitutionality of Section 14 of the Fair Election Act, in relation to Sections 66 and 67 of the Omnibus Election Code, was assailed on the ground, among others, that it unduly discriminates against appointive officials. As Section 14 repealed Section 67 (i.e., the deemed-resigned provision in respect of elected officials) of the Omnibus Election Code, elected officials are no longer considered ipso facto resigned from their respective offices upon their filing of certificates of candidacy. In contrast, since Section 66 was not repealed, the limitation on appointive officials continues to be operative they are deemed resigned when they file their certificates of candidacy. The petitioners in Farias thus brought an equal protection challenge against Section 14, with the end in view of having the deemedresigned provisions "apply equally" to both elected and appointive officials. We held, however, that the legal dichotomy created by the Legislature is a reasonable classification, as there are material and significant distinctions between the two classes of officials. Consequently, the contention that Section 14 of the Fair Election Act, in relation to Sections 66 and 67 of the Omnibus Election Code, infringed on the equal protection clause of the Constitution, failed muster. We ruled:

The petitioners' contention, that the repeal of Section 67 of the Omnibus Election Code pertaining to elective officials gives undue benefit to such officials as against the appointive ones and violates the equal protection clause of the constitution, is tenuous. The equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable classification. If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from the other. The Court has explained the nature of the equal protection guarantee in this manner: The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not. Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority. Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987 (Executive Order No. 292), appointive officials, as officers and employees in the civil service, are strictly prohibited from engaging in any partisan political activity or take (sic) part in any election except to vote. Under the same provision, elective officials, or officers or employees holding political offices, are obviously expressly allowed to take part in political and electoral activities. By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators deemed it proper to treat these two classes of officials differently with respect to the effect on their tenure in the office of the filing of the certificates of candidacy for any position other than those occupied by them. Again, it is not within the power of the Court to pass upon or look into the wisdom of this classification. Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis--vis appointive officials, is anchored upon material and significant distinctions and all the persons belonging under the same classification are similarly treated, the equal 26 protection clause of the Constitution is, thus, not infringed. The case at bar is a crass attempt to resurrect a dead issue. The miracle is that our assailed Decision gave it new life. We ought to be guided by the doctrine of stare decisis et non quieta movere. This doctrine, which is really "adherence to precedents," mandates that once a case has been decided one way, then another case involving exactly the same point at issue should be decided in the 27 same manner. This doctrine is one of policy grounded on the necessity for securing certainty and stability of judicial decisions. As the renowned jurist Benjamin Cardozo stated in his treatise The Nature of the Judicial Process: It will not do to decide the same question one way between one set of litigants and the opposite way between another. "If a group of cases involves the same point, the parties expect the same decision. It would be a gross injustice to decide alternate cases on opposite principles. If a case was decided against me yesterday when I was a defendant, I shall look for the same judgment today if I am plaintiff. To decide differently would raise a feeling of resentment and wrong in my breast; it would be an infringement, material and moral, of my rights." Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the 28 even-handed administration of justice in the courts. Our Farias ruling on the equal protection implications of the deemed-resigned provisions cannot be minimalized as mere obiter dictum. It is trite to state that an adjudication on any point within the issues presented by the case cannot be considered as obiter 29 dictum. This rule applies to all pertinent questions that are presented and resolved in the regular course of the consideration of the 30 case and lead up to the final conclusion, and to any statement as to the matter on which the decision is predicated. For that reason, a point expressly decided does not lose its value as a precedent because the disposition of the case is, or might have been, made on some other ground; or even though, by reason of other points in the case, the result reached might have been the same if 31 32 the court had held, on the particular point, otherwise than it did. As we held in Villanueva, Jr. v. Court of Appeals, et al.:

 A decision which the case could have turned on is not regarded as obiter dictum merely because, owing to the disposal of the contention, it was necessary to consider another question, nor can an additional reason in a decision, brought forward after the case has been disposed of on one ground, be regarded as dicta. So, also, where a case presents two (2) or more points, any one of which is sufficient to determine the ultimate issue, but the court actually decides all such points, the case as an authoritative precedent as to every point decided, and none of such points can be regarded as having the status of a dictum, and one point should not be denied authority merely because another point was more dwelt on and more fully argued and considered, nor does a decision on 33 one proposition make statements of the court regarding other propositions dicta. (italics supplied) ii. Classification Germane to the Purposes of the Law The Farias ruling on the equal protection challenge stands on solid ground even if reexamined. To start with, the equal protection clause does not require the universal application of the laws to all persons or things without 34 35 distinction. What it simply requires is equality among equals as determined according to a valid classification. The test developed 36 by jurisprudence here and yonder is that of reasonableness, which has four requisites: (1) The classification rests on substantial distinctions; (2) It is germane to the purposes of the law; (3) It is not limited to existing conditions only; and (4) It applies equally to all members of the same class.
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Our assailed Decision readily acknowledged that these deemed-resigned provisions satisfy the first, third and fourth requisites of reasonableness. It, however, proffers the dubious conclusion that the differential treatment of appointive officials vis--vis elected officials is not germane to the purpose of the law, because "whether one holds an appointive office or an elective one, the evils sought to be prevented by the measure remain," viz.: For example, the Executive Secretary, or any Member of the Cabinet for that matter, could wield the same influence as the VicePresident who at the same time is appointed to a Cabinet post (in the recent past, elected Vice-Presidents were appointed to take charge of national housing, social welfare development, interior and local government, and foreign affairs). With the fact that they both head executive offices, there is no valid justification to treat them differently when both file their [Certificates of Candidacy] for the elections. Under the present state of our law, the Vice-President, in the example, running this time, let us say, for President, 38 retains his position during the entire election period and can still use the resources of his office to support his campaign. Sad to state, this conclusion conveniently ignores the long-standing rule that to remedy an injustice, the Legislature need not 39 address every manifestation of the evil at once; it may proceed "one step at a time." In addressing a societal concern, it must 40 invariably draw lines and make choices, thereby creating some inequity as to those included or excluded. Nevertheless, as long as 41 "the bounds of reasonable choice" are not exceeded, the courts must defer to the legislative judgment. We may not strike down a 42 law merely because the legislative aim would have been more fully achieved by expanding the class. Stated differently, the fact 43 that a legislative classification, by itself, is underinclusive will not render it unconstitutionally arbitrary or invidious. There is no 44 constitutional requirement that regulation must reach each and every class to which it might be applied; that the Legislature must be held rigidly to the choice of regulating all or none. Thus, any person who poses an equal protection challenge must convincingly show that the law creates a classification that is 45 "palpably arbitrary or capricious." He must refute all possible rational bases for the differing treatment, whether or not the 46 Legislature cited those bases as reasons for the enactment, such that the constitutionality of the law must be sustained even if the 47 reasonableness of the classification is "fairly debatable." In the case at bar, the petitioners failed and in fact did not even attempt to discharge this heavy burden. Our assailed Decision was likewise silent as a sphinx on this point even while we submitted the following thesis: ... *I+t is not sufficient grounds for invalidation that we may find that the statutes distinction is unfair, underinclusive, unwise, or not the best solution from a public-policy standpoint; rather, we must find that there is no reasonably rational reason for the differing 48 treatment.

In the instant case, is there a rational justification for excluding elected officials from the operation of the deemed resigned provisions? I submit that there is. An election is the embodiment of the popular will, perhaps the purest expression of the sovereign power of the people. It involves 50 the choice or selection of candidates to public office by popular vote. Considering that elected officials are put in office by their constituents for a definite term, it may justifiably be said that they were excluded from the ambit of the deemed resigned provisions in utmost respect for the mandate of the sovereign will. In other words, complete deference is accorded to the will of the electorate that they be served by such officials until the end of the term for which they were elected. In contrast, there is no such expectation insofar as appointed officials are concerned. The dichotomized treatment of appointive and elective officials is therefore germane to the purposes of the law. For the law was made not merely to preserve the integrity, efficiency, and discipline of the public service; the Legislature, whose wisdom is outside the rubric of judicial scrutiny, also thought it wise to balance this with the competing, yet equally compelling, interest of deferring to 51 the sovereign will. (emphasis in the original) In fine, the assailed Decision would have us "equalize the playing field" by invalidating provisions of law that seek to restrain the evils from running riot. Under the pretext of equal protection, it would favor a situation in which the evils are unconfined and vagrant, existing at the behest of both appointive and elected officials, over another in which a significant portion thereof is contained. The absurdity of that position is self-evident, to say the least. The concern, voiced by our esteemed colleague, Mr. Justice Nachura, in his dissent, that elected officials (vis--vis appointive officials) have greater political clout over the electorate, is indeed a matter worth exploring but not by this Court. Suffice it to say that the remedy lies with the Legislature. It is the Legislature that is given the authority, under our constitutional system, to balance competing interests and thereafter make policy choices responsive to the exigencies of the times. It is certainly within the Legislatures power to make the deemed-resigned provisions applicable to elected officials, should it later decide that the evils sought to be prevented are of such frequency and magnitude as to tilt the balance in favor of expanding the class. This Court cannot and should not arrogate unto itself the power to ascertain and impose on the people the best state of affairs from a public policy standpoint. iii. Mancuso v. Taft Has Been Overruled Finding no Philippine jurisprudence to prop up its equal protection ruling, our assailed Decision adverted to, and extensively cited, 52 Mancuso v. Taft. This was a decision of the First Circuit of the United States Court of Appeals promulgated in March 1973, which struck down as unconstitutional a similar statutory provision. Pathetically, our assailed Decision, relying on Mancuso, claimed: (1) The right to run for public office is "inextricably linked" with two fundamental freedoms freedom of expression and association; (2) Any legislative classification that significantly burdens this fundamental right must be subjected to strict equal protection review; and (3) While the state has a compelling interest in maintaining the honesty and impartiality of its public work force, the deemed-resigned provisions pursue their objective in a far too heavy-handed manner as to render them unconstitutional. It then concluded with the exhortation that since "the Americans, from whom we copied the provision in question, had already stricken down a similar measure for being unconstitutional[,] it is high-time that we, too, should follow suit." Our assailed Decisions reliance on Mancuso is completely misplaced. We cannot blink away the fact that the United States Supreme Court effectively overruled Mancuso three months after its promulgation by the United States Court of Appeals. In United States 53 Civil Service Commission, et al. v. National Association of Letter Carriers AFL-CIO, et al. and Broadrick, et al. v. State of Oklahoma, 54 55 et al., the United States Supreme Court was faced with the issue of whether statutory provisions prohibiting federal and 56 state employees from taking an active part in political management or in political campaigns were unconstitutional as to warrant facial invalidation. Violation of these provisions results in dismissal from employment and possible criminal sanctions. The Court declared these provisions compliant with the equal protection clause. It held that (i) in regulating the speech of its employees, the state as employer has interests that differ significantly from those it possesses in regulating the speech of the citizenry in general; (ii) the courts must therefore balance the legitimate interest of employee free expression against the interests
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of the employer in promoting efficiency of public services; (iii) if the employees expression interferes with the maintenance of efficient and regularly functioning services, the limitation on speech is not unconstitutional; and (iv) the Legislature is to be given 57 some flexibility or latitude in ascertaining which positions are to be covered by any statutory restrictions. Therefore, insofar as government employees are concerned, the correct standard of review is an interest-balancing approach, a means-end scrutiny that 58 examines the closeness of fit between the governmental interests and the prohibitions in question. Letter Carriers elucidated on these principles, as follows: Until now, the judgment of Congress, the Executive, and the country appears to have been that partisan political activities by federal employees must be limited if the Government is to operate effectively and fairly, elections are to play their proper part in representative government, and employees themselves are to be sufficiently free from improper influences. The restrictions so far imposed on federal employees are not aimed at particular parties, groups, or points of view, but apply equally to all partisan activities of the type described. They discriminate against no racial, ethnic, or religious minorities. Nor do they seek to control political opinions or beliefs, or to interfere with or influence anyone's vote at the polls. But, as the Court held in Pickering v. Board of Education, the government has an interest in regulating the conduct and the speech of its employees that differ(s) significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the (employee), as a citizen, in commenting upon matters of public concern and the interest of the (government), as an employer, in promoting the efficiency of the public services it performs through its employees. Although Congress is free to strike a different balance than it has, if it so chooses, we think the balance it has so far struck is sustainable by the obviously important interests sought to be served by the limitations on partisan political activities now contained in the Hatch Act. It seems fundamental in the first place that employees in the Executive Branch of the Government, or those working for any of its agencies, should administer the law in accordance with the will of Congress, rather than in accordance with their own or the will of a political party. They are expected to enforce the law and execute the programs of the Government without bias or favoritism for or against any political party or group or the members thereof. A major thesis of the Hatch Act is that to serve this great end of Government-the impartial execution of the laws-it is essential that federal employees, for example, not take formal positions in political parties, not undertake to play substantial roles in partisan political campaigns, and not run for office on partisan political tickets. Forbidding activities like these will reduce the hazards to fair and effective government. There is another consideration in this judgment: it is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent. Another major concern of the restriction against partisan activities by federal employees was perhaps the immediate occasion for enactment of the Hatch Act in 1939. That was the conviction that the rapidly expanding Government work force should not be employed to build a powerful, invincible, and perhaps corrupt political machine. The experience of the 1936 and 1938 campaigns convinced Congress that these dangers were sufficiently real that substantial barriers should be raised against the party in power-or the party out of power, for that matter-using the thousands or hundreds of thousands of federal employees, paid for at public expense, to man its political structure and political campaigns. A related concern, and this remains as important as any other, was to further serve the goal that employment and advancement in the Government service not depend on political performance, and at the same time to make sure that Government employees would be free from pressure and from express or tacit invitation to vote in a certain way or perform political chores in order to curry favor with their superiors rather than to act out their own beliefs. It may be urged that prohibitions against coercion are sufficient protection; but for many years the joint judgment of the Executive and Congress has been that to protect the rights of federal employees with respect to their jobs and their political acts and beliefs it is not enough merely to forbid one employee to attempt to influence or coerce another. For example, at the hearings in 1972 on proposed legislation for liberalizing the prohibition against political activity, the Chairman of the Civil Service Commission stated that the prohibitions against active participation in partisan political management and partisan political campaigns constitute the most significant safeguards against coercion . . .. Perhaps Congress at some time will come to a different view of the realities of political life and Government service; but that is its current view of the matter, and we are not now in any position to dispute it. Nor, in our view, does the Constitution forbid it. Neither the right to associate nor the right to participate in political activities is absolute in any event. x x x xxxx
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As we see it, our task is not to destroy the Act if we can, but to construe it, if consistent with the will of Congress, so as to comport with constitutional limitations. (italics supplied) Broadrick likewise definitively stated that the assailed statutory provision is constitutionally permissible, viz.: Appellants do not question Oklahoma's right to place even-handed restrictions on the partisan political conduct of state employees. Appellants freely concede that such restrictions serve valid and important state interests, particularly with respect to attracting greater numbers of qualified people by insuring their job security, free from the vicissitudes of the elective process, and by protecting them from political extortion. Rather, appellants maintain that however permissible, even commendable, the goals of s 818 may be, its language is unconstitutionally vague and its prohibitions too broad in their sweep, failing to distinguish between conduct that may be proscribed and conduct that must be permitted. For these and other reasons, appellants assert that the sixth and seventh paragraphs of s 818 are void in toto and cannot be enforced against them or anyone else. We have held today that the Hatch Act is not impermissibly vague. We have little doubt that s 818 is similarly not so vague that 62 men of common intelligence must necessarily guess at its meaning. Whatever other problems there are with s 818, it is all but frivolous to suggest that the section fails to give adequate warning of what activities it proscribes or fails to set out explicit standards' for those who must apply it. In the plainest language, it prohibits any state classified employee from being an officer or member of a partisan political club or a candidate for any paid public office. It forbids solicitation of contributions for any political organization, candidacy or other political purpose and taking part in the management or affairs of any political party or in any political campaign. Words inevitably contain germs of uncertainty and, as with the Hatch Act, there may be disputes over the meaning of such terms in s 818 as partisan, or take part in, or affairs of political parties. But what was said in Letter Carriers, is applicable here: there are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest.' x x x xxxx [Appellants] nevertheless maintain that the statute is overbroad and purports to reach protected, as well as unprotected conduct, and must therefore be struck down on its face and held to be incapable of any constitutional application. We do not believe that the overbreadth doctrine may appropriately be invoked in this manner here. xxxx The consequence of our departure from traditional rules of standing in the First Amendment area is that any enforcement of a statute thus placed at issue is totally forbidden until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression. Application of the overbreadth doctrine in this manner is, manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort. x x x x x x But the plain import of our cases is, at the very least, that facial over-breadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from pure speech toward conduct and that conduct-even if expressive-falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect-at best a prediction-cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep. It is our view that s 818 is not substantially overbroad and that whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied. Unlike ordinary breach-of-the peace statutes or other broad regulatory acts, s 818 is directed, by its terms, at political expression which if engaged in by private persons would plainly be protected by the First and Fourteenth Amendments. But at the same time, s 818 is not a censorial statute, directed at particular groups or viewpoints. The statute, rather, seeks to regulate political activity in an even-handed and neutral manner. As indicted, such statutes have in the past been subject to a less exacting overbreadth scrutiny. Moreover, the fact remains that s 818 regulates a substantial spectrum of conduct that is as manifestly subject to state regulation as the public peace or criminal trespass. This much was established in United Public Workers v. Mitchell, and has been unhesitatingly
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reaffirmed today in Letter Carriers. Under the decision in Letter Carriers, there is no question that s 818 is valid at least insofar as it forbids classified employees from: soliciting contributions for partisan candidates, political parties, or other partisan political purposes; becoming members of national, state, or local committees of political parties, or officers or committee members in partisan political clubs, or candidates for any paid public office; taking part in the management or affairs of any political party's partisan political campaign; serving as delegates or alternates to caucuses or conventions of political parties; addressing or taking an active part in partisan political rallies or meetings; soliciting votes or assisting voters at the polls or helping in a partisan effort to get voters to the polls; participating in the distribution of partisan campaign literature; initiating or circulating partisan nominating petitions; or riding in caravans for any political party or partisan political candidate. x x x It may be that such restrictions are impermissible and that s 818 may be susceptible of some other improper applications. But, as presently construed, we do not believe that s 818 must be discarded in toto because some persons arguably protected conduct may or may not be caught or chilled by the statute. Section 818 is not substantially overbroad and it not, therefore, unconstitutional on its face. (italics supplied) It bears stressing that, in his Dissenting Opinion, Mr. Justice Nachura does not deny the principles enunciated in Letter Carriers and Broadrick. He would hold, nonetheless, that these cases cannot be interpreted to mean a reversal of Mancuso, since they "pertain to different types of laws and were decided based on a different set of facts," viz.: In Letter Carriers, the plaintiffs alleged that the Civil Service Commission was enforcing, or threatening to enforce, the Hatch Acts prohibition against "active participation in political management or political campaigns." The plaintiffs desired to campaign for candidates for public office, to encourage and get federal employees to run for state and local offices, to participate as delegates in party conventions, and to hold office in a political club. In Broadrick, the appellants sought the invalidation for being vague and overbroad a provision in the (sic) Oklahomas Merit System of Personnel Administration Act restricting the political activities of the States classified civil servants, in much the same manner as the Hatch Act proscribed partisan political activities of federal employees. Prior to the commencement of the action, the appellants actively participated in the 1970 reelection campaign of their superior, and were administratively charged for asking other Corporation Commission employees to do campaign work or to give referrals to persons who might help in the campaign, for soliciting money for the campaign, and for receiving and distributing campaign posters in bulk. Mancuso, on the other hand, involves, as aforesaid, an automatic resignation provision. Kenneth Mancuso, a full time police officer and classified civil service employee of the City of Cranston, filed as a candidate for nomination as representative to the Rhode Island General Assembly. The Mayor of Cranston then began the process of enforcing the resign-to-run provision of the City Home Rule Charter. Clearly, as the above-cited US cases pertain to different types of laws and were decided based on a different set of facts, Letter Carriers and Broadrick cannot be interpreted to mean a reversal of Mancuso. x x x (italics in the original) We hold, however, that his position is belied by a plain reading of these cases. Contrary to his claim, Letter Carriers, Broadrick and Mancuso all concerned the constitutionality of resign-to-run laws, viz.: (1) Mancuso involved a civil service employee who filed as a candidate for nomination as representative to the Rhode Island General Assembly. He assailed the constitutionality of 14.09(c) of the City Home Rule Charter, which prohibits "continuing in the classified service of the city after becoming a candidate for nomination or election to any public office." (2) Letter Carriers involved plaintiffs who alleged that the Civil Service Commission was enforcing, or threatening to enforce, 63 the Hatch Acts prohibition against "active participation in political management or political campaigns" with respect to certain defined activities in which they desired to engage. The plaintiffs relevant to this discussion are: (a) The National Association of Letter Carriers, which alleged that its members were desirous of, among others, running in local elections for offices such as school board member, city council member or mayor; (b) Plaintiff Gee, who alleged that he desired to, but did not, file as a candidate for the office of Borough Councilman in his local community for fear that his participation in a partisan election would endanger his job; and

(c) Plaintiff Myers, who alleged that he desired to run as a Republican candidate in the 1971 partisan election for the mayor of West Lafayette, Indiana, and that he would do so except for fear of losing his job by reason of violation of the Hatch Act. The Hatch Act defines "active participation in political management or political campaigns" by cross-referring to the rules made by the Civil Service Commission. The rule pertinent to our inquiry states: 30. Candidacy for local office: Candidacy for a nomination or for election to any National, State, county, or municipal office is not permissible. The prohibition against political activity extends not merely to formal announcement of candidacy but also to the preliminaries leading to such announcement and to canvassing or soliciting support or doing or permitting to be done any act in furtherance of candidacy. The fact that candidacy, is merely passive is immaterial; if an employee acquiesces in the efforts of friends in furtherance of such candidacy such acquiescence constitutes an infraction of the prohibitions against political activity. (italics supplied) Section 9(b) requires the immediate removal of violators and forbids the use of appropriated funds thereafter to pay compensation 64 to these persons. (3) Broadrick was a class action brought by certain Oklahoma state employees seeking a declaration of unconstitutionality of two sub-paragraphs of Section 818 of Oklahomas Merit System of Personnel Administration Act. Section 818 (7), the paragraph relevant to this discussion, states that "*n+o employee in the classified service shall be a candidate for nomination or election to any paid public office" Violation of Section 818 results in dismissal from employment, possible criminal sanctions and limited state employment ineligibility. Consequently, it cannot be denied that Letter Carriers and Broadrick effectively overruled Mancuso. By no stretch of the imagination could Mancuso still be held operative, as Letter Carriers and Broadrick (i) concerned virtually identical resign-to-run laws, and (ii) were decided by a superior court, the United States Supreme Court. It was thus not surprising for the First Circuit Court of Appeals 65 the same court that decided Mancuso to hold categorically and emphatically in Magill v. Lynch that Mancuso is no longer good law. As we priorly explained: Magill involved Pawtucket, Rhode Island firemen who ran for city office in 1975. Pawtuckets "Little Hatch Act" prohibits city employees from engaging in a broad range of political activities. Becoming a candidate for any city office is specifically 66 proscribed, the violation being punished by removal from office or immediate dismissal. The firemen brought an action against the city officials on the ground that that the provision of the city charter was unconstitutional. However, the court, fully cognizant of Letter Carriers and Broadrick, took the position that Mancuso had since lost considerable vitality. It observed that the view that political candidacy was a fundamental interest which could be infringed upon only if less restrictive alternatives were not available, was a position which was no longer viable, since the Supreme Court (finding that the governments interest in regulating both the conduct and speech of its employees differed significantly from its interest in regulating those of the citizenry in general) had given little weight to the argument that prohibitions against the coercion of government employees were a less drastic means to the same end, deferring to the judgment of Congress, and applying a "balancing" test to determine whether limits on political activity by public employees substantially served government interests which were "important" enough to outweigh the employees First 67 Amendment rights. It must be noted that the Court of Appeals ruled in this manner even though the election in Magill was characterized as nonpartisan, as it was reasonable for the city to fear, under the circumstances of that case, that politically active bureaucrats might use their official power to help political friends and hurt political foes. Ruled the court: The question before us is whether Pawtucket's charter provision, which bars a city employee's candidacy in even a nonpartisan city election, is constitutional. The issue compels us to extrapolate two recent Supreme Court decisions, Civil Service Comm'n v. Nat'l Ass'n of Letter Carriers and Broadrick v. Oklahoma. Both dealt with laws barring civil servants from partisan political activity. Letter Carriers reaffirmed United Public Workers v. Mitchell, upholding the constitutionality of the Hatch Act as to federal employees. Broadrick sustained Oklahoma's "Little Hatch Act" against constitutional attack, limiting its holding to Oklahoma's construction that the Act barred only activity in partisan politics. In Mancuso v. Taft, we assumed that proscriptions of candidacy in nonpartisan elections would not be constitutional. Letter Carriers and Broadrick compel new analysis. xxxx

What we are obligated to do in this case, as the district court recognized, is to apply the Courts interest balancing approach to the kind of nonpartisan election revealed in this record. We believe that the district court found more residual vigor in our opinion in Mancuso v. Taft than remains after Letter Carriers. We have particular reference to our view that political candidacy was a fundamental interest which could be trenched upon only if less restrictive alternatives were not available. While this approach may still be viable for citizens who are not government employees, the Court in Letter Carriers recognized that the government's interest in regulating both the conduct and speech of its employees differs significantly from its interest in regulating those of the citizenry in general. Not only was United Public Workers v. Mitchell "unhesitatingly" reaffirmed, but the Court gave little weight to the argument that prohibitions against the coercion of government employees were a less drastic means to the same end, deferring to the judgment of the Congress. We cannot be more precise than the Third Circuit in characterizing the Court's approach as "some sort of 68 'balancing' process". It appears that the government may place limits on campaigning by public employees if the limits substantially serve government interests that are "important" enough to outweigh the employees' First Amendment rights. x x x (italics supplied) Upholding thus the constitutionality of the law in question, the Magill court detailed the major governmental interests discussed in Letter Carriers and applied them to the Pawtucket provision as follows: In Letter Carriers[,] the first interest identified by the Court was that of an efficient government, faithful to the Congress rather than to party. The district court discounted this interest, reasoning that candidates in a local election would not likely be committed to a state or national platform. This observation undoubtedly has substance insofar as allegiance to broad policy positions is concerned. But a different kind of possible political intrusion into efficient administration could be thought to threaten municipal government: not into broad policy decisions, but into the particulars of administration favoritism in minute decisions affecting welfare, tax assessments, municipal contracts and purchasing, hiring, zoning, licensing, and inspections. Just as the Court in Letter Carriers identified a second governmental interest in the avoidance of the appearance of "political justice" as to policy, so there is an equivalent interest in avoiding the appearance of political preferment in privileges, concessions, and benefits. The appearance (or reality) of favoritism that the charter's authors evidently feared is not exorcised by the nonpartisan character of the formal election process. Where, as here, party support is a key to successful campaigning, and party rivalry is the norm, the city might reasonably fear that politically active bureaucrats would use their official power to help political friends and hurt political foes. This is not to say that the city's interest in visibly fair and effective administration necessarily justifies a blanket prohibition of all employee campaigning; if parties are not heavily involved in a campaign, the danger of favoritism is less, for neither friend nor foe is as easily identified. A second major governmental interest identified in Letter Carriers was avoiding the danger of a powerful political machine. The Court had in mind the large and growing federal bureaucracy and its partisan potential. The district court felt this was only a minor threat since parties had no control over nominations. But in fact candidates sought party endorsements, and party endorsements proved to be highly effective both in determining who would emerge from the primary election and who would be elected in the final election. Under the prevailing customs, known party affiliation and support were highly significant factors in Pawtucket elections. The charter's authors might reasonably have feared that a politically active public work force would give the incumbent party, and the incumbent workers, an unbreakable grasp on the reins of power. In municipal elections especially, the small size of the electorate and the limited powers of local government may inhibit the growth of interest groups powerful enough to outbalance the weight of a partisan work force. Even when nonpartisan issues and candidacies are at stake, isolated government employees may seek to influence voters or their co-workers improperly; but a more real danger is that a central party structure will mass the scattered powers of government workers behind a single party platform or slate. Occasional misuse of the public trust to pursue private political ends is tolerable, especially because the political views of individual employees may balance each other out. But party discipline eliminates this diversity and tends to make abuse systematic. Instead of a handful of employees pressured into advancing their immediate superior's political ambitions, the entire government work force may be expected to turn out for many candidates in every election. In Pawtucket, where parties are a continuing presence in political campaigns, a carefully orchestrated use of city employees in support of the incumbent party's candidates is possible. The danger is scarcely lessened by the openness of Pawtucket's nominating procedure or the lack of party labels on its ballots. The third area of proper governmental interest in Letter Carriers was ensuring that employees achieve advancement on their merits and that they be free from both coercion and the prospect of favor from political activity. The district court did not address this factor, but looked only to the possibility of a civil servant using his position to influence voters, and held this to be no more of a threat than in the most nonpartisan of elections. But we think that the possibility of coercion of employees by superiors remains as strong a factor in municipal elections as it was in Letter Carriers. Once again, it is the systematic and coordinated exploitation of public servants for political ends that a legislature is most likely to see as the primary threat of employees' rights. Political oppression of public employees will be rare in an entirely nonpartisan system. Some superiors may be inclined to ride herd on the politics of their employees even in a nonpartisan context, but without party officials looking over their shoulders most supervisors will prefer to let employees go their own ways.

In short, the government may constitutionally restrict its employees' participation in nominally nonpartisan elections if political parties play a large role in the campaigns. In the absence of substantial party involvement, on the other hand, the interests identified by the Letter Carriers Court lose much of their force. While the employees' First Amendment rights would normally outbalance these diminished interests, we do not suggest that they would always do so. Even when parties are absent, many employee campaigns might be thought to endanger at least one strong public interest, an interest that looms larger in the context of municipal elections than it does in the national elections considered in Letter Carriers. The city could reasonably fear the prospect of a subordinate running directly against his superior or running for a position that confers great power over his superior. An employee of a federal agency who seeks a Congressional seat poses less of a direct challenge to the command and discipline of his agency than a fireman or policeman who runs for mayor or city council. The possibilities of internal discussion, cliques, and political bargaining, should an employee gather substantial political support, are considerable. (citations omitted) The court, however, remanded the case to the district court for further proceedings in respect of the petitioners overbreadth charge. Noting that invalidating a statute for being overbroad is "not to be taken lightly, much less to be taken in the dark," the court held: The governing case is Broadrick, which introduced the doctrine of "substantial" overbreadth in a closely analogous case. Under Broadrick, when one who challenges a law has engaged in constitutionally unprotected conduct (rather than unprotected speech) and when the challenged law is aimed at unprotected conduct, "the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Two major uncertainties attend the doctrine: how to distinguish speech from conduct, and how to define "substantial" overbreadth. We are spared the first inquiry by Broadrick itself. The plaintiffs in that case had solicited support for a candidate, and they were subject to discipline under a law proscribing a wide range of activities, including soliciting contributions for political candidates and becoming a candidate. The Court found that this combination required a substantial overbreadth approach. The facts of this case are so similar that we may reach the same result without worrying unduly about the sometimes opaque distinction between speech and conduct. The second difficulty is not so easily disposed of. Broadrick found no substantial overbreadth in a statute restricting partisan campaigning. Pawtucket has gone further, banning participation in nonpartisan campaigns as well. Measuring the substantiality of a statute's overbreadth apparently requires, inter alia, a rough balancing of the number of valid applications compared to the number of potentially invalid applications. Some sensitivity to reality is needed; an invalid application that is far-fetched does not deserve as much weight as one that is probable. The question is a matter of degree; it will never be possible to say that a ratio of one invalid to nine valid applications makes a law substantially overbroad. Still, an overbreadth challenger has a duty to provide the court with some idea of the number of potentially invalid applications the statute permits. Often, simply reading the statute in the light of common experience or litigated cases will suggest a number of probable invalid applications. But this case is different. Whether the statute is overbroad depends in large part on the number of elections that are insulated from party rivalry yet closed to Pawtucket employees. For all the record shows, every one of the city, state, or federal elections in Pawtucket is actively contested by political parties. Certainly the record suggests that parties play a major role even in campaigns that often are entirely nonpartisan in other cities. School committee candidates, for example, are endorsed by the local Democratic committee. The state of the record does not permit us to find overbreadth; indeed such a step is not to be taken lightly, much less to be taken in the dark. On the other hand, the entire focus below, in the short period before the election was held, was on the constitutionality of the statute as applied. Plaintiffs may very well feel that further efforts are not justified, but they should be afforded the opportunity to demonstrate that the charter forecloses access to a significant number of offices, the candidacy for which by municipal employees would not pose the possible threats to government efficiency and integrity which Letter Carriers, as we have interpreted it, deems significant. Accordingly, we remand for consideration of plaintiffs' overbreadth claim. (italics supplied, citations omitted) Clearly, Letter Carriers, Broadrick, and Magill demonstrate beyond doubt that Mancuso v. Taft, heavily relied upon by the ponencia, 69 has effectively been overruled. As it is no longer good law, the ponencias exhortation that "*since+ the Americans, from whom we copied the provision in question, had already stricken down a similar measure for being unconstitutional[,] it is high-time that we, 70 too, should follow suit" is misplaced and unwarranted. Accordingly, our assailed Decisions submission that the right to run for public office is "inextricably linked" with two fundamental freedoms those of expression and association lies on barren ground. American case law has in fact never recognized a 71 72 fundamental right to express ones political views through candidacy, as to invoke a rigorous standard of review. Bart v. 73 Telford pointedly stated that "[t]he First Amendment does not in terms confer a right to run for public office, and this court has held that it does not do so by implication either." Thus, ones interest in seeking office, by itself, is not entitled to constitutional 74 protection. Moreover, one cannot bring ones action under the rubric of freedom of association, absent any allegation that, by 75 running for an elective position, one is advancing the political ideas of a particular set of voters.

Prescinding from these premises, it is crystal clear that the provisions challenged in the case at bar, are not violative of the equal protection clause. The deemed-resigned provisions substantially serve governmental interests (i.e., (i) efficient civil service faithful to the government and the people rather than to party; (ii) avoidance of the appearance of "political justice" as to policy; (iii) avoidance of the danger of a powerful political machine; and (iv) ensuring that employees achieve advancement on their merits and that they be free from both coercion and the prospect of favor from political activity). These are interests that are important enough to outweigh the non-fundamental right of appointive officials and employees to seek elective office.1avvphi1 En passant, we find it quite ironic that Mr. Justice Nachura cites Clements v. Fashing and Morial, et al. v. Judiciary Commission of 77 the State of Louisiana, et al. to buttress his dissent. Maintaining that resign-to-run provisions are valid only when made applicable to specified officials, he explains: U.S. courts, in subsequent cases, sustained the constitutionality of resign-to-run provisions when applied to specified or particular 78 officials, as distinguished from all others, under a classification that is germane to the purposes of the law. These resign-to-run legislations were not expressed in a general and sweeping provision, and thus did not violate the test of being germane to the purpose of the law, the second requisite for a valid classification. Directed, as they were, to particular officials, they were not overly encompassing as to be overbroad. (emphasis in the original) This reading is a regrettable misrepresentation of Clements and Morial. The resign-to-run provisions in these cases were upheld not because they referred to specified or particular officials (vis--vis a general class); the questioned provisions were found valid precisely because the Court deferred to legislative judgment and found that a regulation is not devoid of a rational predicate simply because it happens to be incomplete. In fact, the equal protection challenge in Clements revolved around the claim that the State of Texas failed to explain why some public officials are subject to the resign-to-run provisions, while others are not. Ruled the United States Supreme Court: Article XVI, 65, of the Texas Constitution provides that the holders of certain offices automatically resign their positions if they become candidates for any other elected office, unless the unexpired portion of the current term is one year or less. The burdens that 65 imposes on candidacy are even less substantial than those imposed by 19. The two provisions, of course, serve essentially the same state interests. The District Court found 65 deficient, however, not because of the nature or extent of the provision's restriction on candidacy, but because of the manner in which the offices are classified. According to the District Court, the classification system cannot survive equal protection scrutiny, because Texas has failed to explain sufficiently why some elected public officials are subject to 65 and why others are not. As with the case of 19, we conclude that 65 survives a challenge under the Equal Protection Clause unless appellees can show that there is no rational predicate to the classification scheme. The history behind 65 shows that it may be upheld consistent with the "one step at a time" approach that this Court has undertaken with regard to state regulation not subject to more vigorous scrutiny than that sanctioned by the traditional principles. Section 65 was enacted in 1954 as a transitional provision applying only to the 1954 election. Section 65 extended the terms of those offices enumerated in the provision from two to four years. The provision also staggered the terms of other offices so that at least some county and local offices would be contested at each election. The automatic resignation proviso to 65 was not added until 1958. In that year, a similar automatic resignation provision was added in Art. XI, 11, which applies to officeholders in home rule cities who serve terms longer than two years. Section 11 allows home rule cities the option of extending the terms of municipal offices from two to up to four years. Thus, the automatic resignation provision in Texas is a creature of the State's electoral reforms of 1958. That the State did not go further in applying the automatic resignation provision to those officeholders whose terms were not extended by 11 or 65, absent an invidious purpose, is not the sort of malfunctioning of the State's lawmaking process forbidden by the Equal Protection Clause. A regulation is not devoid of a rational predicate simply because it happens to be incomplete. The Equal Protection Clause does not forbid Texas to restrict one elected officeholder's candidacy for another elected office unless and until it places similar restrictions on other officeholders. The provision's language and its history belie any notion that 65 serves the invidious purpose of denying access to the political process to identifiable classes of potential candidates. (citations omitted and italics supplied) Furthermore, it is unfortunate that the dissenters took the Morial line that "there is no blanket approval of restrictions on the right of public employees to become candidates for public office" out of context. A correct reading of that line readily shows that the Court only meant to confine its ruling to the facts of that case, as each equal protection challenge would necessarily have to involve weighing governmental interests vis--vis the specific prohibition assailed. The Court held: The interests of public employees in free expression and political association are unquestionably entitled to the protection of the first and fourteenth amendments. Nothing in today's decision should be taken to imply that public employees may be prohibited
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from expressing their private views on controversial topics in a manner that does not interfere with the proper performance of their public duties. In today's decision, there is no blanket approval of restrictions on the right of public employees to become candidates for public office. Nor do we approve any general restrictions on the political and civil rights of judges in particular. Our holding is necessarily narrowed by the methodology employed to reach it. A requirement that a state judge resign his office prior to becoming a candidate for non-judicial office bears a reasonably necessary relation to the achievement of the state's interest in preventing the actuality or appearance of judicial impropriety. Such a requirement offends neither the first amendment's guarantees of free expression and association nor the fourteenth amendment's guarantee of equal protection of the laws. (italics supplied) Indeed, the Morial court even quoted Broadrick and stated that: In any event, the legislature must have some leeway in determining which of its employment positions require restrictions on partisan political activities and which may be left unregulated. And a State can hardly be faulted for attempting to limit the positions upon which such restrictions are placed. (citations omitted) V. Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code Do Not Suffer from Overbreadth Apart from nullifying Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code on equal protection ground, our assailed Decision struck them down for being overbroad in two respects, viz.: (1) The assailed provisions limit the candidacy of all civil servants holding appointive posts without due regard for the type of position being held by the employee seeking an elective post and the degree of influence that may be attendant 79 thereto; and (2) The assailed provisions limit the candidacy of any and all civil servants holding appointive positions without due regard for the type of office being sought, whether it be partisan or nonpartisan in character, or in the national, municipal or barangay level. Again, on second look, we have to revise our assailed Decision. i. Limitation on Candidacy Regardless of Incumbent Appointive Officials Position, Valid According to the assailed Decision, the challenged provisions of law are overly broad because they apply indiscriminately to all civil servants holding appointive posts, without due regard for the type of position being held by the employee running for elective office and the degree of influence that may be attendant thereto. Its underlying assumption appears to be that the evils sought to be prevented are extant only when the incumbent appointive official running for elective office holds an influential post. Such a myopic view obviously fails to consider a different, yet equally plausible, threat to the government posed by the partisan potential of a large and growing bureaucracy: the danger of systematic abuse perpetuated by a "powerful political machine" that has amassed "the scattered powers of government workers" so as to give itself and its incumbent workers an "unbreakable grasp on the 80 81 reins of power." As elucidated in our prior exposition: Attempts by government employees to wield influence over others or to make use of their respective positions (apparently) to promote their own candidacy may seem tolerable even innocuous particularly when viewed in isolation from other similar attempts by other government employees. Yet it would be decidedly foolhardy to discount the equally (if not more) realistic and dangerous possibility that such seemingly disjointed attempts, when taken together, constitute a veiled effort on the part of an emerging central party structure to advance its own agenda through a "carefully orchestrated use of [appointive and/or elective] officials" coming from various levels of the bureaucracy. *T+he avoidance of such a "politically active public work force" which could give an emerging political machine an "unbreakable grasp on the reins of power" is reason enough to impose a restriction on the candidacies of all appointive public officials without

further distinction as to the type of positions being held by such employees or the degree of influence that may be attendant thereto. (citations omitted) ii. Limitation on Candidacy Regardless of Type of Office Sought, Valid The assailed Decision also held that the challenged provisions of law are overly broad because they are made to apply indiscriminately to all civil servants holding appointive offices, without due regard for the type of elective office being sought, whether it be partisan or nonpartisan in character, or in the national, municipal or barangay level. This erroneous ruling is premised on the assumption that "the concerns of a truly partisan office and the temptations it fosters are sufficiently different from those involved in an office removed from regular party politics [so as] to warrant distinctive 82 treatment," so that restrictions on candidacy akin to those imposed by the challenged provisions can validly apply only to situations in which the elective office sought is partisan in character. To the extent, therefore, that such restrictions are said to preclude even candidacies for nonpartisan elective offices, the challenged restrictions are to be considered as overbroad. Again, a careful study of the challenged provisions and related laws on the matter will show that the alleged overbreadth is more apparent than real. Our exposition on this issue has not been repudiated, viz.: A perusal of Resolution 8678 will immediately disclose that the rules and guidelines set forth therein refer to the filing of certificates of candidacy and nomination of official candidates of registered political parties, in connection with the May 10, 2010 National and 83 Local Elections. Obviously, these rules and guidelines, including the restriction in Section 4(a) of Resolution 8678, were issued specifically for purposes of the May 10, 2010 National and Local Elections, which, it must be noted, are decidedly partisan in character. Thus, it is clear that the restriction in Section 4(a) of RA 8678 applies only to the candidacies of appointive officials vying for partisan elective posts in the May 10, 2010 National and Local Elections. On this score, the overbreadth challenge leveled against Section 4(a) is clearly unsustainable. Similarly, a considered review of Section 13 of RA 9369 and Section 66 of the Omnibus Election Code, in conjunction with other related laws on the matter, will confirm that these provisions are likewise not intended to apply to elections for nonpartisan public offices. The only elections which are relevant to the present inquiry are the elections for barangay offices, since these are the only elections 84 in this country which involve nonpartisan public offices. In this regard, it is well to note that from as far back as the enactment of the Omnibus Election Code in 1985, Congress has intended that these nonpartisan barangay elections be governed by special rules, including a separate rule on deemed resignations which is found in Section 39 of the Omnibus Election Code. Said provision states: Section 39. Certificate of Candidacy. No person shall be elected punong barangay or kagawad ng sangguniang barangay unless he files a sworn certificate of candidacy in triplicate on any day from the commencement of the election period but not later than the day before the beginning of the campaign period in a form to be prescribed by the Commission. The candidate shall state the barangay office for which he is a candidate. xxxx Any elective or appointive municipal, city, provincial or national official or employee, or those in the civil or military service, including those in government-owned or-controlled corporations, shall be considered automatically resigned upon the filing of certificate of candidacy for a barangay office. Since barangay elections are governed by a separate deemed resignation rule, under the present state of law, there would be no occasion to apply the restriction on candidacy found in Section 66 of the Omnibus Election Code, and later reiterated in the proviso of Section 13 of RA 9369, to any election other than a partisan one. For this reason, the overbreadth challenge raised against Section 85 66 of the Omnibus Election Code and the pertinent proviso in Section 13 of RA 9369 must also fail. In any event, even if we were to assume, for the sake of argument, that Section 66 of the Omnibus Election Code and the corresponding provision in Section 13 of RA 9369 are general rules that apply also to elections for nonpartisan public offices, the overbreadth challenge would still be futile. Again, we explained:

In the first place, the view that Congress is limited to controlling only partisan behavior has not received judicial imprimatur, because the general proposition of the relevant US cases on the matter is simply that the government has an interest in regulating the conduct and speech of its employees that differs significantly from those it possesses in connection with regulation of the speech of 86 the citizenry in general. Moreover, in order to have a statute declared as unconstitutional or void on its face for being overly broad, particularly where, as in this case, "conduct" and not "pure speech" is involved, the overbreadth must not only be real, but substantial as well, judged in 87 relation to the statutes plainly legitimate sweep. In operational terms, measuring the substantiality of a statutes overbreadth would entail, among other things, a rough balancing of 88 the number of valid applications compared to the number of potentially invalid applications. In this regard, some sensitivity to 89 reality is needed; an invalid application that is far-fetched does not deserve as much weight as one that is probable. The question is 90 a matter of degree. Thus, assuming for the sake of argument that the partisan-nonpartisan distinction is valid and necessary such that a statute which fails to make this distinction is susceptible to an overbreadth attack, the overbreadth challenge presently mounted must demonstrate or provide this Court with some idea of the number of potentially invalid elections (i.e. the number of elections that were insulated from party rivalry but were nevertheless closed to appointive employees) that may in all probability 91 result from the enforcement of the statute. The state of the record, however, does not permit us to find overbreadth. Borrowing from the words of Magill v. Lynch, indeed, such 92 a step is not to be taken lightly, much less to be taken in the dark, especially since an overbreadth finding in this case would effectively prohibit the State from enforcing an otherwise valid measure against conduct that is admittedly within its power to 93 proscribe. This Court would do well to proceed with tiptoe caution, particularly when it comes to the application of the overbreadth doctrine in the analysis of statutes that purportedly attempt to restrict or burden the exercise of the right to freedom of speech, for such 94 approach is manifestly strong medicine that must be used sparingly, and only as a last resort. In the United States, claims of facial overbreadth have been entertained only where, in the judgment of the court, the possibility that protected speech of others may be muted and perceived grievances left to fester (due to the possible inhibitory effects of overly broad statutes) outweighs the possible harm to society in allowing some unprotected speech or conduct to go 95 unpunished. Facial overbreadth has likewise not been invoked where a limiting construction could be placed on the challenged statute, and where there are readily apparent constructions that would cure, or at least substantially reduce, the alleged 96 overbreadth of the statute. In the case at bar, the probable harm to society in permitting incumbent appointive officials to remain in office, even as they actively pursue elective posts, far outweighs the less likely evil of having arguably protected candidacies blocked by the possible inhibitory effect of a potentially overly broad statute.a1f In this light, the conceivably impermissible applications of the challenged statutes which are, at best, bold predictions cannot justify invalidating these statutes in toto and prohibiting the State from enforcing them against conduct that is, and has for more 97 than 100 years been, unquestionably within its power and interest to proscribe. Instead, the more prudent approach would be to deal with these conceivably impermissible applications through case-by-case adjudication rather than through a total invalidation of 98 the statute itself. Indeed, the anomalies spawned by our assailed Decision have taken place. In his Motion for Reconsideration, intervenor Drilon stated that a number of high-ranking Cabinet members had already filed their Certificates of Candidacy without relinquishing their 99 100 posts. Several COMELEC election officers had likewise filed their Certificates of Candidacy in their respective provinces. Even the Secretary of Justice had filed her certificate of substitution for representative of the first district of Quezon province last December 101 102 14, 2009 even as her position as Justice Secretary includes supervision over the City and Provincial Prosecutors, who, in turn, 103 act as Vice-Chairmen of the respective Boards of Canvassers. The Judiciary has not been spared, for a Regional Trial Court Judge in the South has thrown his hat into the political arena. We cannot allow the tilting of our electoral playing field in their favor. For the foregoing reasons, we now rule that Section 4(a) of Resolution 8678 and Section 13 of RA 9369, which merely reiterate Section 66 of the Omnibus Election Code, are not unconstitutionally overbroad. IN VIEW WHEREOF, the Court RESOLVES to GRANT the respondents and the intervenors Motions for Reconsideration; REVERSE and SET ASIDE this Courts December 1, 2009 Decision; DISMISS the Petition; and ISSUE this Resolution declaring as not

UNCONSTITUTIONAL (1) Section 4(a) of COMELEC Resolution No. 8678, (2) the second proviso in the third paragraph of Section 13 of Republic Act No. 9369, and (3) Section 66 of the Omnibus Election Code. SO ORDERED. REYNATO S. PUNO Chief Justice WE CONCUR: ANTONIO T. CARPIO Associate Justice

RENATO C. CORONA Associate Justice PRESBITERO J. VELASCO, JR. Associate Justice TERESITA J. LEONARDO-DE CASTRO Associate Justice DIOSDADO M. PERALTA Associate Justice MARIANO C. DEL CASTILLO Associate Justice MARTIN S. VILLARAMA, JR. Associate Justice

CONCHITA CARPIO MORALES Associate Justice ANTONIO EDUARDO B. NACHURA Associate Justice ARTURO D. BRION Associate Justice LUCAS P. BERSAMIN Associate Justice ROBERTO A. ABAD Associate Justice JOSE PORTUGAL PEREZ Associate Justice

JOSE C. MENDOZA Associate Justice CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court. REYNATO S. PUNO Chief Justice

CONCURRING OPINION CARPIO, J.: I concur with the ponencia of Chief Justice Reynato S. Puno. The filing of a Certificate of Candidacy for an elective position is, by the very nature of the act, an electioneering or partisan political activity.

Two provisions of the Constitution, taken together, mandate that civil service employees cannot engage in any electioneering or partisan political activity except to vote. Thus, the Constitution provides: Section 2(4), Article IX-B of the Constitution No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political activity. Section 5(3), Article XVI of the Constitution No member of the military shall engage, directly or indirectly, in any partisan political activity, except to vote. During the deliberations of the Constitutional Commission on these provisions of the Constitution, it was clear that the exercise of the right to vote is the only non-partisan political activity a citizen can do. All other political activities are deemed partisan. Thus, Commissioner Christian Monsod declared that, "As a matter of fact, the only non partisan political activity one can engage in as a 1 citizen is voting." Indisputably, any political activity except to vote is a partisan political activity. Section 79(b) of the Omnibus Election Code implements this by declaring that any act designed to elect or promote the election of a candidate is an electioneering or partisan political activity, thus: The term "election campaign" or "partisan political activity"refers to an act designed to promote the election or defeat of a particular candidate or candidates to a public office xxx." Filing a certificate of candidacy is obviously a partisan political activity. First, the mere filing of a Certificate of Candidacy is a definitive announcement to the world that a person will actively solicit the votes of the electorate to win an elective public office. Such an announcement is already a promotion of the candidates election to public office. Indeed, once a person becomes an official candidate, he abandons the role of a mere passive voter in an election, and assumes the role of a political partisan, a candidate promoting his own candidacy to public office. Second, only a candidate for a political office files a Certificate of Candidacy. A person merely exercising his or her right to vote does not. A candidate for a political office is necessarily a partisan political candidate because he or she is contesting an elective office against other political candidates. The candidate and the electorate know that there are, more often than not, other candidates vying for the same elective office, making the contest politically partisan. Third, a candidate filing his or her Certificate of Candidacy almost always states in the Certificate of Candidacy the name of the political party to which he or she belongs. The candidate will even attach to his or her Certificate of Candidacy the certification of his or her political party that he or she is the official candidate of the political party. Such certification by a political party is obviously designed to promote the election of the candidate. Fourth, the constitutional ban prohibiting civil servants from engaging in partisan political activities is intended, among others, to keep the civil service non-partisan. This constitutional ban is violated when a civil servant files his or her Certificate of Candidacy as a candidate of a political party. From the moment the civil servant files his or her Certificate of Candidacy, he or she is immediately identified as a political partisan because everyone knows he or she will prepare, and work, for the victory of his or her political party in the elections. Fifth, the constitutional ban prohibiting civil servants from engaging in partisan political activities is also intended to prevent civil servants from using their office, and the resources of their office, to promote their candidacies or the candidacies of other persons. We have seen the spectacle of civil servants who, after filing their certificates of candidacies, still cling to their public office while campaigning during office hours. Sixth, the constitutional ban prohibiting civil servants from engaging in partisan political activities is further intended to prevent conflict of interest. We have seen Comelec officials who, after filing their certificates of candidacies, still hold on to their public office.

Finally, filing of a Certificate of Candidacy is a partisan political act that ipso facto operates to consider the candidate deemed resigned from public office pursuant to paragraph 3, Section 11 of R.A. No. 8436, as amended by R.A. No. 9369, as well as Section 66 of the Omnibus Election Code, as amended. Accordingly, I vote to grant respondent Comelecs Motion for Reconsideration. ANTONIO T. CARPIO Associate Justice

DISSENTING OPINION NACHURA, J.: I vote to maintain this Courts December 1, 2009 Decision. The automatic resignation rule on appointive government officials and employees running for elective posts is, to my mind, unconstitutional. I therefore respectfully register my dissent to the resolution of the majority granting the motion for reconsideration. I earnestly believe that by this resolution, the majority refused to rectify an unjust rule, leaving in favor of a discriminatory state regulation and disregarding the primacy of the peoples fundamental rights to the equal protection of the laws. Let it be recalled that, on December 1, 2009, the Court rendered its Decision granting the petition and declaring as unconstitutional the second proviso in the third paragraph of Section 13 of Republic Act (R.A.) No. 9369, Section 66 of the Omnibus Election Code 1 (OEC) and Section 4(a) of Commission on Elections (COMELEC) Resolution No. 8678. Claiming to have legal interest in the matter in litigation, Senator Manuel A. Roxas filed, on December 14, 2009, his Omnibus Motion for Leave of Court to: (a) Intervene in the Instant Case; (b) Admit Attached Motion for Reconsideration; and (c) If Necessary, Set the 2 Instant Case for Oral Arguments. On the same date, respondent COMELEC, through its Law Department, moved for the reconsideration of the aforesaid December 1, 3 2009 Decision. Expressing a similar desire, Franklin M. Drilon, a former senator and a senatorial candidate in the 2010 elections, filed, on December 4 17, 2009, his Motion for Leave to Intervene and to Admit the Attached Motion for Reconsideration in Intervention. On December 28, 2009, the Integrated Bar of the Philippines (IBP), Cebu City Chapter, also filed its Motion for Leave to 5 6 Intervene and Motion for Reconsideration in Intervention. In a related development, on January 8, 2010, the Office of the Solicitor General (OSG), which initially represented the COMELEC in the proceedings herein, this time disagreed with the latter, and, instead of moving for the reconsideration of the December 1, 2009 7 Decision, moved for clarification of the effect of our declaration of unconstitutionality. Subsequently, Tom V. Apacible, a congressional candidate in the 2010 elections, filed, on January 11, 2010, his Motion to Intervene 8 and for the Reconsideration of the Decision dated December 1, 2009. In its January 12, 2010 Resolution, the Court required petitioners to comment on the aforesaid motions. On February 1, 2010, petitioners filed their consolidated comment on the motions. Parenthetically, petitioner Quinto admitted that he did not pursue his plan to run for an elective office. Petitioner Tolentino, on the other hand, disclosed that he filed his certificate of candidacy but that he had recently resigned from his post in the executive department. These developments could very well be viewed by the Court as having rendered this case moot and academic. However, I refuse to proceed to such a conclusion, considering that the issues, viewed in relation to other appointive civil servants running for elective office, remain ubiquitously present. Thus, the issues in the instant case could fall within the classification of controversies that are capable of repetition yet evading review.
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I then implore that the Court rule on the motions. The intervention The motions for intervention should be denied. Section 2, Rule 19 of the Rules of Court explicitly states that motions to intervene 11 may be filed at any time "before the rendition of judgment." Obviously, as this Court already rendered judgment on December 1, 12 2009, intervention may no longer be allowed. The movants, Roxas, Drilon, IBP-Cebu City Chapter, and Apacible, cannot claim to have been unaware of the pendency of this much publicized case. They should have intervened prior to the rendition of this Courts 13 Decision on December 1, 2009. To allow their intervention at this juncture is unwarranted and highly irregular. While the Court has the power to suspend the application of procedural rules, I find no compelling reason to excuse movants procedural lapse and allow their much belated intervention. Further, a perusal of their pleadings-in-intervention reveals that they merely restated the points and arguments in the earlier dissenting opinions of Chief Justice Puno and Senior Associate Justices Carpio and Carpio Morales. These very same points, incidentally, also constitute the gravamen of the motion for reconsideration filed by respondent COMELEC. Thus, even as the Court should deny the motions for intervention, it is necessary to, pass upon the issues raised therein, because they were the same issues raised in respondent COMELECs motion for reconsideration. The COMELECs motion for reconsideration Interestingly, in its motion for reconsideration, the COMELEC does not raise a matter other than those already considered and discussed by the Court in the assailed decision. As aforesaid, the COMELEC merely echoed the arguments of the dissenters. I remain unpersuaded. I wish to reiterate the Courts earlier declaration that the second proviso in the third paragraph of Section 13 of R.A. No. 9369, Section 66 of the OEC and Section 4(a) of COMELEC Resolution No. 8678 are unconstitutional for being violative of the equal protection clause and for being overbroad. In considering persons holding appointive positions as ipso facto resigned from their posts upon the filing of their certificates of candidacy (CoCs), but not considering as resigned all other civil servants, specifically the elective ones, the law unduly discriminates against the first class. The fact alone that there is substantial distinction between the two classes does not justify such disparate treatment. Constitutional law jurisprudence requires that the classification must and should be germane to the purposes of the law. As clearly explained in the assailed decision, whether one holds an appointive office or an elective one, the evils sought to be prevented by the measure remain. Indeed, a candidate, whether holding an appointive or an elective office, may use his position to promote his candidacy or to wield a dangerous or coercive influence on the electorate. Under the same scenario, he may also, in the discharge of his official duties, be swayed by political considerations. Likewise, he may neglect his or her official duties, as he will predictably prioritize his campaign. Chief Justice Puno, in his dissent to the assailed decision, even acknowledges that the "danger of systemic abuse" remains present whether the involved candidate holds an appointive or an elective office, thus Attempts by government employees to wield influence over others or to make use of their respective positions (apparently) to promote their own candidacy may seem tolerableeven innocuousparticularly when viewed in isolation from other similar attempts by other government employees. Yet it would be decidedly foolhardy to discount the equally (if not more) realistic and dangerous possibility that such seemingly disjointed attempts, when taken together, constitute a veiled effort on the part of a reigning political party to advance its own agenda through a "carefully orchestrated use of [appointive and/or elective] officials" 14 coming from various levels of the bureaucracy. To repeat for emphasis, classifying candidates, whether they hold appointive or elective positions, and treating them differently by considering the first as ipso facto resigned while the second as not, is not germane to the purposes of the law, because, as clearly shown, the measure is not reasonably necessary to, nor does it necessarily promote, the fulfillment of the state interest sought to be served by the statute. In fact, it may not be amiss to state that, more often than not, the elective officials, not the appointive ones, exert more coercive influence on the electorate, with the greater tendency to misuse the powers of their office. This is illustrated by, among others, the proliferation of "private armies" especially in the provinces. It is common knowledge that "private armies" are backed or even formed by elective officials precisely for the latter to ensure that the electorate will not oppose them, be cowed to submit to their dictates and vote for them. To impose a prohibitive measure intended to curb this evil of wielding undue influence on the electorate

and apply the prohibition only on appointive officials is not only downright ineffectual, but is also, as shown in the assailed decision, offensive to the equal protection clause. Furthermore, as the Court explained in the assailed decision, this ipso facto resignation rule is overbroad. It covers all civil servants holding appointive posts without distinction, regardless of whether they occupy positions of influence in government or not. Certainly, a utility worker, a messenger, a chauffeur, or an industrial worker in the government service cannot exert the same influence as that of a Cabinet member, an undersecretary or a bureau head. Parenthetically, it is also unimaginable how an appointive utility worker, compared to a governor or a mayor, can form his own "private army" to wield undue influence on the electorate. It is unreasonable and excessive, therefore, to impose a blanket prohibitionone intended to discourage civil servants from using their positions to influence the voteson all civil servants without considering the nature of their positions. Let it be noted, that, despite their employment in the government, civil servants remain citizens of the country, entitled to enjoy the civil and political rights granted to them in a democracy, including the right to aspire for elective public office. In addition, this general provision on automatic resignation is directed to the activity of seeking any and all public elective offices, whether partisan or nonpartisan in character, whether in the national, municipal or barangay level. No compelling state interest has been shown to justify such a broad, encompassing and sweeping application of the law. It may also be pointed out that this automatic resignation rule has no pretense to be the exclusive and only available remedy to curb the uncontrolled exercise of undue influence and the feared "danger of systemic abuse." As we have explained in the assailed decision, our Constitution and our body of laws are replete with provisions that directly address these evils. We reiterate our earlier pronouncement that specific evils require specific remedies, not overly broad measures that unduly restrict guaranteed freedoms. It should be stressed that when the Court struck down (in the earlier decision) the assailed provisions, the Court did not act in a manner inconsistent with Section 2(4) of Article IX-B of the Constitution, which reads: Sec. 2. x x x. (4) No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political activity. or with Section 5(3), Article XVI of the Constitution, which reads: Sec. 5. x x x. (3) Professionalism in the armed forces and adequate remuneration and benefits of its members shall be a prime concern of the State. The armed forces shall be insulated from partisan politics. No member of the military shall engage, directly or indirectly, in any partisan political activity, except to vote. Neither does the Courts earlier ruling infringe on Section 55, Chapter 8, Title I, Book V of the Administrative Code of 1987, which reads: Sec. 55. Political Activity.No officer or employee in the Civil Service including members of the Armed Forces, shall engage directly or indirectly in any partisan political activity or take part in any election except to vote nor shall he use his official authority or influence to coerce the political activity of any other person or body. Nothing herein provided shall be understood to prevent any officer or employee from expressing his views on current political problems or issues, or from mentioning the names of candidates for public office whom he supports: Provided, That public officers and employees holding political offices may take part in political and electoral activities but it shall be unlawful for them to solicit contributions from their subordinates or subject them to any of the acts involving subordinates prohibited in the Election Code. "Partisan political activity" includes every form of solicitation of the electors vote in favor of a specific candidate. Section 79(b) of the OEC defines "partisan political activity" as follows: SEC. 79. Definitions.As used in this Code: xxxx
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(b) The term "election campaign" or "partisan political activity" refers to an act designed to promote the election or defeat of a particular candidate or candidates to a public office which shall include: (1) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate; (2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate; (3) Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate for public office; (4) Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate; or (5) Directly or indirectly soliciting votes, pledges or support for or against a candidate. The foregoing enumerated acts if performed for the purpose of enhancing the chances of aspirants for nominations for candidacy to a public office by a political party, aggroupment, or coalition of parties shall not be considered as election campaign or partisan political activity. Public expressions or opinions or discussions of probable issues in a forthcoming election or on attributes of or criticisms against probable candidates proposed to be nominated in a forthcoming political party convention shall not be construed as part of any election campaign or partisan political activity contemplated under this Article. Given the aforequoted Section 79(b), it is obvious that the filing of a Certificate of Candidacy (CoC) for an elective position, while it may be a political activity, is not a "partisan political activity" within the contemplation of the law. The act of filing is only an announcement of ones intention to run for office. It is only an aspiration for a public office, not yet a promotion or a solicitation of votes for the election or defeat of a candidate for public office. In fact, even after the filing of the CoC but before the start of the campaign period, there is yet no candidate whose election or defeat will be promoted. Rosalinda A. Penera v. Commission on 16 Elections and Edgar T. Andanar instructs that any person who files his CoC shall only be considered a candidate at the start of the campaign period. Thus, in the absence of a "candidate," the mere filing of CoC cannot be considered as an "election campaign" or a "partisan political activity." Section 79 of the OEC does not even consider as "partisan political activity" acts performed for the purpose of enhancing the chances of aspirants for nominations for candidacy to a public office. Thus, when appointive civil servants file their CoCs, they are not engaging in a "partisan political activity" and, therefore, do not transgress or violate the Constitution and the law. Accordingly, at that moment, there is no valid basis to consider them as ipso facto resigned from their posts. There is a need to point out that the discussion in Farias v. The Executive Secretary, relative to the differential treatment of the two classes of civil servants in relation to the ipso facto resignation clause, is obiter dictum. That discussion is not necessary to the decision of the case, the main issue therein being the constitutionality of the repealing clause in the Fair Election Act. Further, unlike in the instant case, no direct challenge was posed in Farias to the constitutionality of the rule on the ipso facto resignation of appointive officials. In any event, the Court en banc, in deciding subsequent cases, can very well reexamine, as it did in the assailed decision, its earlier pronouncements and even abandon them when perceived to be incorrect. Let it also be noted that Mancuso v. Taft is not the heart of the December 1, 2009 Decision. Mancuso was only cited to show that resign-to-run provisions, such as those which are specifically involved herein, have been stricken down in the United States for unduly burdening First Amendment rights of employees and voting rights of citizens, and for being overbroad. Verily, in our jurisdiction, foreign jurisprudence only enjoys a persuasive influence on the Court. Thus, the contention that Mancuso has been effectively overturned by subsequent American cases, such as United States Civil Service Commission v. National Association of 19 20 Letter Carriers and Broadrick v. State of Oklahoma, is not controlling. Be that as it may, a closer reading of these latter US cases reveals that Mancuso is still applicable. On one hand, Letter Carriers and Broadrick, which are based on United Public Workers of America v. Mitchell, involve provisions prohibiting Federal employees from engaging in partisan political activities or political campaigns.
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In Mitchell, the appellants sought exemption from the implementation of a sentence in the Hatch Act, which reads: "No officer or employee in the executive branch of the Federal Government x x x shall take any active part in political management or in political 22 23 campaigns." Among the appellants, only George P. Poole violated the provision by being a ward executive committeeman of a political party and by being politically active on election day as a worker at the polls and a paymaster for the services of other party 24 workers. In Letter Carriers, the plaintiffs alleged that the Civil Service Commission was enforcing, or threatening to enforce, the Hatch Acts prohibition against "active participation in political management or political campaigns." The plaintiffs desired to campaign for candidates for public office, to encourage and get federal employees to run for state and local offices, to participate as delegates in 25 party conventions, and to hold office in a political club. In Broadrick, the appellants sought the invalidation for being vague and overbroad a provision in the Oklahomas Merit System of Personnel Administration Act restricting the political activities of the States classified civil servants, in much the same manner as the 26 Hatch Act proscribed partisan political activities of federal employees. Prior to the commencement of the action, the appellants actively participated in the 1970 reelection campaign of their superior, and were administratively charged for asking other Corporation Commission employees to do campaign work or to give referrals to persons who might help in the campaign, for 27 soliciting money for the campaign, and for receiving and distributing campaign posters in bulk. Mancuso, on the other hand, involves, as aforesaid, an automatic resignation provision. Kenneth Mancuso, a full-time police officer and classified civil service employee of the City of Cranston, filed his candidacy for nomination as representative to the Rhode Island General Assembly. The Mayor of Cranston then began the process of enforcing the resign-to-run provision of the City Home Rule 28 Charter. Clearly, as the above-cited US cases pertain to different types of laws and were decided based on a different set of facts, Letter 29 Carriers and Broadrick cannot be interpreted to mean a reversal of Mancuso. Thus, in Magill v. Lynch, the same collegial court which decided Mancuso was so careful in its analysis that it even remanded the case for consideration on the overbreadth claim. The Magill court stated thusPlaintiffs may very well feel that further efforts are not justified, but they should be afforded the opportunity to demonstrate that the charter forecloses access to a significant number of offices, the candidacy for which by municipal employees would not pose the possible threats to government efficiency and integrity which Letter Carriers, as we have interpreted it, deems significant. 30 Accordingly, we remand for consideration of plaintiffs overbreadth claim. As observed by the Court (citing Clements v. Fashing ) in the December 1, 2009 Decision, U.S. courts, in subsequent cases, sustained the constitutionality of resign-to-run rules when applied to specified or particular officials, as distinguished from all others, under a classification that is germane to the purposes of the law. These resign-to-run legislations were not expressed in a general and sweeping provision, and thus did not violate the test of being germane to the purpose of the law, the second requisite for a valid classification. Directed, as they were, to particular officials, they were not overly encompassing as to be overbroad. In fact, Morial v. 32 Judiciary Commission of the State of Louisiana, where the resign-to-run provision pertaining to judges running for political offices was upheld, declares that "there is no blanket approval of restriction on the right of public employees to become candidates for 33 public office." The Morial court instructed thus Because the judicial office is different in key respects from other offices, the state may regulate its judges with the differences in mind. For example the contours of the judicial function make inappropriate the same kind of particularized pledges of conduct in office that are the very stuff of campaigns for most non-judicial offices. A candidate for the mayoralty can and often should announce his determination to effect some program, to reach a particular result on some question of city policy, or to advance the interests of a particular group. It is expected that his decisions in office may be predetermined by campaign commitment. Not so the candidate for judicial office. He cannot, consistent with the proper exercise of his judicial powers, bind himself to decide particular cases in order to achieve a given programmatic result. Moreover, the judge acts on individual cases and not broad programs. The judge legislates but interstitially; the progress through the law of a particular judge's social and political preferences is, in Mr. Justice Holmes' words, "confined from molar to molecular motions." As one safeguard of the special character of the judicial function, Louisiana's Code of Judicial Conduct bars candidates for judicial office from making "pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office." Candidates for non-judicial office are not subject to such a ban; in the conduct of his campaign for the mayoralty, an erstwhile judge is more free to make promises of post-campaign conduct with respect both to issues and personnel, whether publicly or privately, than he would be were he a candidate for re-election to his judgeship. The state may reasonably conclude that
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such pledges and promises, though made in the course of a campaign for non-judicial office, might affect or, even more plausibly, appear to affect the post-election conduct of a judge who had returned to the bench following an electoral defeat. By requiring resignation of any judge who seeks a non-judicial office and leaving campaign conduct unfettered by the restrictions which would be applicable to a sitting judge, Louisiana has drawn a line which protects the state's interests in judicial integrity without sacrificing the equally important interests in robust campaigns for elective office in the executive or legislative branches of government. This analysis applies equally to the differential treatment of judges and other office holders. A judge who fails in his bid for a post in the state legislature must not use his judgeship to advance the cause of those who supported him in his unsuccessful campaign in the legislature. In contrast, a member of the state legislature who runs for some other office is not expected upon his return to the legislature to abandon his advocacy of the interests which supported him during the course of his unsuccessful campaign. Here, too, 34 Louisiana has drawn a line which rests on the different functions of the judicial and non-judicial office holder. Indeed, for an ipso facto resignation rule to be valid, it must be shown that the classification is reasonably necessary to attain the objectives of the law. Here, as already explained in the assailed decision, the differential treatment in the application of this resignto-run rule is not germane to the purposes of the law, because whether one holds an appointive office or an elective one, the evils sought to be prevented are not effectively addressed by the measure. Thus, the ineluctable conclusion that the concerned provisions are invalid for being unconstitutional. Without unnecessarily preempting the resolution of any subsequent actual case or unwittingly giving an advisory opinion, the Court, in the December 1, 2009 Decision, in effect, states that what should be implemented are the other provisions of Philippine laws (not the concerned unconstitutional provisions) that specifically and directly address the evils sought to be prevented by the measure. It is highly speculative then to contend that members of the police force or the armed forces, if they will not be considered as resigned when they file their COCs, is a "disaster waiting to happen." There are, after all, appropriate laws in place to curb abuses in the government service. The invalidation of the ipso facto resignation provisions does not mean the cessation in operation of other provisions of the Constitution and of existing laws. Section 2(4) of Article IX-B and Section 5(3), Article XVI of the Constitution, and Section 55, Chapter 8, Title I, Book V of the Administrative Code of 1987 still apply. So do other statutes, such as the Civil Service Laws, OEC, the AntiGraft Law, the Code of Conduct and Ethical Standards for Public Officials and Employees, and related laws. Covered civil servants 35 running for political offices who later on engage in "partisan political activity" run the risk of being administratively charged. Civil servants who use government funds and property for campaign purposes, likewise, run the risk of being prosecuted under the AntiGraft and Corrupt Practices Act or under the OEC on election offenses. Those who abuse their authority to promote their candidacy shall be made liable under the appropriate laws. Let it be stressed at this point that the said laws provide for specific remedies for specific evils, unlike the automatic resignation provisions that are sweeping in application and not germane to the purposes of the law. To illustrate, we hypothetically assume that a municipal election officer, who is an employee of the COMELEC, files his CoC. Given the invalidation of the automatic resignation provisions, the said election officer is not considered as ipso facto resigned from his post at the precise moment of the filing of the CoC. Thus, he remains in his post, and his filing of a CoC cannot be taken to be a violation of any provision of the Constitution or any statute. At the start of the campaign period, however, if he is still in the government service, that is, if he has not voluntarily resigned, and he, at the same time, engages in a "partisan political activity," then, he becomes vulnerable to prosecution under the Administrative Code, under civil service laws, under the Anti-Graft and Corrupt Practices Act or under the OEC. Upon the proper action being filed, he could, thus, be disqualified from running for office, or if elected, prevented from assuming, or if he had already assumed office, be removed from, office. At this juncture, it may even be said that Mitchell, Letter Carriers and Broadrick, the cases earlier cited by Chief Justice Puno and Associate Justices Carpio and Carpio-Morales, support the proposition advanced by the majority in the December 1, 2009 Decision. While the provisions on the ipso facto resignation of appointive civil servants are unconstitutional for being violative of the equal protection clause and for being overbroad, the general provisions prohibiting civil servants from engaging in "partisan political activity" remain valid and operational, and should be strictly applied. The COMELECs motion for reconsideration should, therefore, be denied. The OSGs motion for clarification In its motion, the OSG pleads that this Court clarify whether, by declaring as unconstitutional the concerned ipso facto resignation provisions, the December 1, 2009 Decision intended to allow appointive officials to stay in office during the entire election

period. The OSG points out that the official spokesperson of the Court explained before the media that "the decision would in effect allow appointive officials to stay on in their posts even during the campaign period, or until they win or lose or are removed 37 from office." I pose the following response to the motion for clarification. The language of the December 1, 2009 Decision is too plain to be mistaken. The Court only declared as unconstitutional Section 13 of R.A. No. 9369, Section 66 of the OEC and Section 4(a) of COMELEC Resolution No. 8678. The Court never stated in the decision that appointive civil servants running for elective posts are allowed to stay in office during the entire election period. The only logical and legal effect, therefore, of the Courts earlier declaration of unconstitutionality of the ipso facto resignation provisions is that appointive government employees or officials who intend to run for elective positions are not considered automatically resigned from their posts at the moment of filing of their CoCs. Again, as explained above, other Constitutional and statutory provisions do not cease in operation and should, in fact, be strictly implemented by the authorities. Let the full force of the laws apply. Then let the axe fall where it should. ANTONIO EDUARDO B. NACHURA Associate Justice

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EN BANC

G.R. No. 119976 September 18, 1995 IMELDA ROMUALDEZ-MARCOS, petitioner, vs. COMMISSION ON ELECTIONS and CIRILO ROY MONTEJO, respondents.

KAPUNAN, J.: A constitutional provision should be construed as to give it effective operation and suppress the mischief at which it is aimed. The 1987 Constitution mandates that an aspirant for election to the House of Representatives be "a registered voter in the district in 2 which he shall be elected, and a resident thereof for a period of not less than one year immediately preceding the election." The mischief which this provision reproduced verbatim from the 1973 Constitution seeks to prevent is the possibility of a "stranger or newcomer unacquainted with the conditions and needs of a community and not identified with the latter, from an elective office 3 to serve that community." Petitioner Imelda Romualdez-Marcos filed her Certificate of Candidacy for the position of Representative of the First District of Leyte 4 with the Provincial Election Supervisor on March 8, 1995, providing the following information in item no. 8: RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE ELECTED IMMEDIATELY PRECEDING THE ELECTION: __________ Years and seven Months. On March 23, 1995, private respondent Cirilo Roy Montejo, the incumbent Representative of the First District of Leyte and a 5 candidate for the same position, filed a "Petition for Cancellation and Disqualification" with the Commission on Elections alleging that petitioner did not meet the constitutional requirement for residency. In his petition, private respondent contended that Mrs. Marcos lacked the Constitution's one year residency requirement for candidates for the House of Representatives on the evidence 6 of declarations made by her in Voter Registration Record 94-No. 3349772 and in her Certificate of Candidacy. He prayed that "an 7 order be issued declaring (petitioner) disqualified and canceling the certificate of candidacy." On March 29, 1995, petitioner filed an Amended/Corrected Certificate of Candidacy, changing the entry "seven" months to "since 8 childhood" in item no. 8 of the amended certificate. On the same day, the Provincial Election Supervisor of Leyte informed petitioner that: [T]his office cannot receive or accept the aforementioned Certificate of Candidacy on the ground that it is filed out of time, the deadline for the filing of the same having already lapsed on March 20, 1995. The Corrected/Amended 9 Certificate of Candidacy should have been filed on or before the March 20, 1995 deadline. Consequently, petitioner filed the Amended/Corrected Certificate of Candidacy with the COMELEC's Head Office in Intramuros, Manila on March 31, 1995. Her Answer to private respondent's petition in SPA No. 95-009 was likewise filed with the head office on the same day. In said Answer, petitioner averred that the entry of the word "seven" in her original Certificate of Candidacy was the result of an 10 "honest misinterpretation" which she sought to rectify by adding the words "since childhood" in her Amended/Corrected 11 Certificate of Candidacy and that "she has always maintained Tacloban City as her domicile or residence. Impugning respondent's motive in filing the petition seeking her disqualification, she noted that: When respondent (petitioner herein) announced that she was intending to register as a voter in Tacloban City and run for Congress in the First District of Leyte, petitioner immediately opposed her intended registration by writing a letter stating that "she is not a resident of said city but of Barangay Olot, Tolosa, Leyte. After respondent had registered as a voter in Tolosa following completion of her six month actual residence therein, petitioner filed a petition with the COMELEC to transfer the town of Tolosa from the First District to the Second District and pursued such a move up to the Supreme Court, his purpose being to remove respondent as petitioner's opponent in the congressional election in the First District. He also filed a bill, along with other Leyte Congressmen, seeking the
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creation of another legislative district to remove the town of Tolosa out of the First District, to achieve his purpose. However, such bill did not pass the Senate. Having failed on such moves, petitioner now filed the instant petition for the same objective, as it is obvious that he is afraid to submit along with respondent for the judgment and verdict of the electorate of the First District of Leyte in an honest, orderly, peaceful, free and clean elections on 12 May 8, 1995. On April 24, 1995, the Second Division of the Commission on Elections (COMELEC), by a vote of 2 to 1, came up with a Resolution 1) finding private respondent's Petition for Disqualification in SPA 95-009 meritorious; 2) striking off petitioner's Corrected/Amended 14 Certificate of Candidacy of March 31, 1995; and 3) canceling her original Certificate of Candidacy. Dealing with two primary issues, namely, the validity of amending the original Certificate of Candidacy after the lapse of the deadline for filing certificates of candidacy, and petitioner's compliance with the one year residency requirement, the Second Division held: Respondent raised the affirmative defense in her Answer that the printed word "Seven" (months) was a result of an "honest misinterpretation or honest mistake" on her part and, therefore, an amendment should subsequently be allowed. She averred that she thought that what was asked was her "actual and physical" presence in Tolosa and not residence of origin or domicile in the First Legislative District, to which she could have responded "since childhood." In an accompanying affidavit, she stated that her domicile is Tacloban City, a component of the First District, to which she always intended to return whenever absent and which she has never abandoned. Furthermore, in her memorandum, she tried to discredit petitioner's theory of disqualification by alleging that she has been a resident of the First Legislative District of Leyte since childhood, although she only became a resident of the Municipality of Tolosa for seven months. She asserts that she has always been a resident of Tacloban City, a component of the First District, before coming to the Municipality of Tolosa. Along this point, it is interesting to note that prior to her registration in Tolosa, respondent announced that she would be registering in Tacloban City so that she can be a candidate for the District. However, this intention was rebuffed when petitioner wrote the Election Officer of Tacloban not to allow respondent since she is a resident of Tolosa and not Tacloban. She never disputed this claim and instead implicitly acceded to it by registering in Tolosa. This incident belies respondent's claim of "honest misinterpretation or honest mistake." Besides, the Certificate of Candidacy only asks for RESIDENCE. Since on the basis of her Answer, she was quite aware of "residence of origin" which she interprets to be Tacloban City, it is curious why she did not cite Tacloban City in her Certificate of Candidacy. Her explanation that she thought what was asked was her actual and physical presence in Tolosa is not easy to believe because there is none in the question that insinuates about Tolosa. In fact, item no. 8 in the Certificate of Candidacy speaks clearly of "Residency in the CONSTITUENCY where I seek to be elected immediately preceding the election." Thus, the explanation of respondent fails to be persuasive. From the foregoing, respondent's defense of an honest mistake or misinterpretation, therefore, is devoid of merit. To further buttress respondent's contention that an amendment may be made, she cited the case ofAlialy v. COMELEC (2 SCRA 957). The reliance of respondent on the case of Alialy is misplaced. The case only applies to the "inconsequential deviations which cannot affect the result of the election, or deviations from provisions intended primarily to secure timely and orderly conduct of elections." The Supreme Court in that case considered the amendment only as a matter of form. But in the instant case, the amendment cannot be considered as a matter of form or an inconsequential deviation. The change in the number of years of residence in the place where respondent seeks to be elected is a substantial matter which determines her qualification as a candidacy, specially those intended to suppress, accurate material representation in the original certificate which adversely affects the filer. To admit the amended certificate is to condone the evils brought by the shifting minds of manipulating candidate, of the detriment of the integrity of the election. Moreover, to allow respondent to change the seven (7) month period of her residency in order to prolong it by claiming it was "since childhood" is to allow an untruthfulness to be committed before this Commission. The arithmetical accuracy of the 7 months residency the respondent indicated in her certificate of candidacy can be gleaned from her entry in her Voter's Registration Record accomplished on January 28, 1995 which reflects that she is a resident of Brgy. Olot, Tolosa, Leyte for 6 months at the time of the said registration (Annex A, Petition). Said accuracy is further buttressed by her letter to the election officer of San Juan, Metro Manila, dated August 24, 1994, requesting for the cancellation of her registration in the Permanent List of Voters thereat so that she can be re-registered or transferred to Brgy. Olot, Tolosa, Leyte. The dates of these three (3) different documents show the
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respondent's consistent conviction that she has transferred her residence to Olot, Tolosa, Leyte from Metro Manila only for such limited period of time, starting in the last week of August 1994 which on March 8, 1995 will only sum up to 7 months. The Commission, therefore, cannot be persuaded to believe in the respondent's contention that it was an error. xxx xxx xxx Based on these reasons the Amended/Corrected Certificate of Candidacy cannot be admitted by this Commission. xxx xxx xxx Anent the second issue, and based on the foregoing discussion, it is clear that respondent has not complied with the one year residency requirement of the Constitution. In election cases, the term "residence" has always been considered as synonymous with "domicile" which imports not only the intention to reside in a fixed place but also personal presence in-that place, coupled with conduct indicative of such intention. Domicile denotes a fixed permanent residence to which when absent for business or pleasure, or for like reasons, one intends to return. (Perfecto Faypon vs. Eliseo Quirino, 96 Phil 294; Romualdez vs. RTC-Tacloban, 226 SCRA 408). In respondent's case, when she returned to the Philippines in 1991, the residence she chose was not Tacloban but San Juan, Metro Manila. Thus, her animus revertendi is pointed to Metro Manila and not Tacloban. This Division is aware that her claim that she has been a resident of the First District since childhood is nothing more than to give her a color of qualification where she is otherwise constitutionally disqualified. It cannot hold ground in the face of the facts admitted by the respondent in her affidavit. Except for the time that she studied and worked for some years after graduation in Tacloban City, she continuously lived in Manila. In 1959, after her husband was elected Senator, she lived and resided in San Juan, Metro Manila where she was a registered voter. In 1965, she lived in San Miguel, Manila where she was again a registered voter. In 1978, she served as member of the Batasang Pambansa as the representative of the City of Manila and later on served as the Governor of Metro Manila. She could not have served these positions if she had not been a resident of the City of Manila. Furthermore, when she filed her certificate of candidacy for the office of the President in 1992, she claimed to be a resident of San Juan, Metro Manila. As a matter of fact on August 24, 1994, respondent wrote a letter with the election officer of San Juan, Metro Manila requesting for the cancellation of her registration in the permanent list of voters that she may be re-registered or transferred to Barangay Olot, Tolosa, Leyte. These facts manifest that she could not have been a resident of Tacloban City since childhood up to the time she filed her certificate of candidacy because she became a resident of many places, including Metro Manila. This debunks her claim that prior to her residence in Tolosa, Leyte, she was a resident of the First Legislative District of Leyte since childhood. In this case, respondent's conduct reveals her lack of intention to make Tacloban her domicile. She registered as a voter in different places and on several occasions declared that she was a resident of Manila. Although she spent her school days in Tacloban, she is considered to have abandoned such place when she chose to stay and reside in other different places. In the case of Romualdez vs. RTC(226 SCRA 408) the Court explained how one acquires a new domicile by choice. There must concur: (1) residence or bodily presence in the new locality; (2) intention to remain there; and (3) intention to abandon the old domicile. In other words there must basically be animus manendi with animus non revertendi. When respondent chose to stay in Ilocos and later on in Manila, coupled with her intention to stay there by registering as a voter there and expressly declaring that she is a resident of that place, she is deemed to have abandoned Tacloban City, where she spent her childhood and school days, as her place of domicile. Pure intention to reside in that place is not sufficient, there must likewise be conduct indicative of such intention. Respondent's statements to the effect that she has always intended to return to Tacloban, without the accompanying conduct to prove that intention, is not conclusive of her choice of residence. Respondent has not presented any evidence to show that her conduct, one year prior the election, showed intention to reside in Tacloban. Worse, what was evident was that prior to her residence in Tolosa, she had been a resident of Manila. It is evident from these circumstances that she was not a resident of the First District of Leyte "since childhood."

To further support the assertion that she could have not been a resident of the First District of Leyte for more than one year, petitioner correctly pointed out that on January 28, 1995 respondent registered as a voter at precinct No. 18-A of Olot, Tolosa, Leyte. In doing so, she placed in her Voter Registration Record that she resided in the municipality of Tolosa for a period of six months. This may be inconsequential as argued by the respondent since it refers only to her residence in Tolosa, Leyte. But her failure to prove that she was a resident of the First District of Leyte prior to her residence in Tolosa leaves nothing but a convincing proof that she had been a resident of the 15 district for six months only. In a Resolution promulgated a day before the May 8, 1995 elections, the COMELEC en banc denied petitioner's Motion for 16 Reconsideration of the April 24, 1995 Resolution declaring her not qualified to run for the position of Member of the House of 17 Representatives for the First Legislative District of Leyte. The Resolution tersely stated: After deliberating on the Motion for Reconsideration, the Commission RESOLVED to DENY it, no new substantial matters having been raised therein to warrant re-examination of the resolution granting the petition for 18 disqualification. On May 11, 1995, the COMELEC issued a Resolution allowing petitioner's proclamation should the results of the canvass show that she obtained the highest number of votes in the congressional elections in the First District of Leyte. On the same day, however, the COMELEC reversed itself and issued a second Resolution directing that the proclamation of petitioner be suspended in the event 19 that she obtains the highest number of votes. In a Supplemental Petition dated 25 May 1995, petitioner averred that she was the overwhelming winner of the elections for the congressional seat in the First District of Leyte held May 8, 1995 based on the canvass completed by the Provincial Board of Canvassers on May 14, 1995. Petitioner alleged that the canvass showed that she obtained a total of 70,471 votes compared to the 36,833 votes received by Respondent Montejo. A copy of said Certificate of Canvass was annexed to the Supplemental Petition. On account of the Resolutions disqualifying petitioner from running for the congressional seat of the First District of Leyte and the public respondent's Resolution suspending her proclamation, petitioner comes to this court for relief. Petitioner raises several issues in her Original and Supplemental Petitions. The principal issues may be classified into two general areas: I. The issue of Petitioner's qualifications Whether or not petitioner was a resident, for election purposes, of the First District of Leyte for a period of one year at the time of the May 9, 1995 elections. II. The Jurisdictional Issue a) Prior to the elections Whether or not the COMELEC properly exercised its jurisdiction in disqualifying petitioner outside the period mandated by the Omnibus Election Code for disqualification cases under Article 78 of the said Code. b) After the Elections Whether or not the House of Representatives Electoral Tribunal assumed exclusive jurisdiction over the question of petitioner's qualifications after the May 8, 1995 elections. I. Petitioner's qualification A perusal of the Resolution of the COMELEC's Second Division reveals a startling confusion in the application of settled concepts of "Domicile" and "Residence" in election law. While the COMELEC seems to be in agreement with the general proposition that for the purposes of election law, residence is synonymous with domicile, the Resolution reveals a tendency to substitute or mistake the concept of domicile for actual residence, a conception not intended for the purpose of determining a candidate's qualifications for

election to the House of Representatives as required by the 1987 Constitution. As it were, residence, for the purpose of meeting the qualification for an elective position, has a settled meaning in our jurisdiction. Article 50 of the Civil Code decrees that "[f]or the exercise of civil rights and the fulfillment of civil obligations, the domicile of 20 natural persons is their place of habitual residence." In Ong vs. Republic this court took the concept of domicile to mean an individual's "permanent home", "a place to which, whenever absent for business or for pleasure, one intends to return, and depends 21 on facts and circumstances in the sense that they disclose intent." Based on the foregoing, domicile includes the twin elements of "the fact of residing or physical presence in a fixed place" and animus manendi, or the intention of returning there permanently. Residence, in its ordinary conception, implies the factual relationship of an individual to a certain place. It is the physical presence of a person in a given area, community or country. The essential distinction between residence and domicile in law is that residence involves the intent to leave when the purpose for which the resident has taken up his abode ends. One may seek a place for purposes such as pleasure, business, or health. If a person's intent be to remain, it becomes his domicile; if his intent is to leave as 22 soon as his purpose is established it is residence. It is thus, quite perfectly normal for an individual to have different residences in various places. However, a person can only have a single domicile, unless, for various reasons, he successfully abandons his domicile 23 in favor of another domicile of choice. In Uytengsu vs. Republic, we laid this distinction quite clearly: There is a difference between domicile and residence. "Residence" is used to indicate a place of abode, whether permanent or temporary; "domicile" denotes a fixed permanent residence to which, when absent, one has the intention of returning. A man may have a residence in one place and a domicile in another. Residence is not domicile, but domicile is residence coupled with the intention to remain for an unlimited time. A man can have but one domicile for the same purpose at any time, but he may have numerous places of residence. His place of residence is generally his place of domicile, but it is not by any means necessarily so since no length of residence without intention of remaining will constitute domicile. For political purposes the concepts of residence and domicile are dictated by the peculiar criteria of political laws. As these concepts have evolved in our election law, what has clearly and unequivocally emerged is the fact that residence for election purposes is used synonymously with domicile. In Nuval vs. Guray, the Court held that "the term residence. . . is synonymous with domicile which imports not only intention to 25 reside in a fixed place, but also personal presence in that place, coupled with conduct indicative of such intention." Larena 26 vs. Teves reiterated the same doctrine in a case involving the qualifications of the respondent therein to the post of Municipal 27 President of Dumaguete, Negros Oriental. Faypon vs. Quirino, held that the absence from residence to pursue studies or practice a 28 profession or registration as a voter other than in the place where one is elected does not constitute loss of residence. So settled is the concept (of domicile) in our election law that in these and other election law cases, this Court has stated that the mere absence of an individual from his permanent residence without the intention to abandon it does not result in a loss or change of domicile. The deliberations of the 1987 Constitution on the residence qualification for certain elective positions have placed beyond doubt the principle that when the Constitution speaks of "residence" in election law, it actually means only "domicile" to wit: Mr. Nolledo: With respect to Section 5, I remember that in the 1971 Constitutional Convention, there was an attempt to require residence in the place not less than one year immediately preceding the day of the elections. So my question is: What is the Committee's concept of residence of a candidate for the legislature? Is it actual residence or is it the concept of domicile or constructive residence? Mr. Davide: Madame President, insofar as the regular members of the National Assembly are concerned, the proposed section merely provides, among others, "and a resident thereof", that is, in the district for a period of not less than one year preceding the day of the election. This was in effect lifted from the 1973 Constitution, the 29 interpretation given to it was domicile. xxx xxx xxx Mrs. Rosario Braid: The next question is on Section 7, page 2. I think Commissioner Nolledo has raised the same point that "resident" has been interpreted at times as a matter of intention rather than actual residence. Mr. De los Reyes: Domicile.
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Ms. Rosario Braid: Yes, So, would the gentleman consider at the proper time to go back to actual residence rather than mere intention to reside? Mr. De los Reyes: But we might encounter some difficulty especially considering that a provision in the Constitution in the Article on Suffrage says that Filipinos living abroad may vote as enacted by law. So, we have to 30 stick to the original concept that it should be by domicile and not physical residence. In Co vs. Electoral Tribunal of the House of Representatives, this Court concluded that the framers of the 1987 Constitution obviously adhered to the definition given to the term residence in election law, regarding it as having the same meaning as 32 domicile. In the light of the principles just discussed, has petitioner Imelda Romualdez Marcos satisfied the residency requirement mandated by Article VI, Sec. 6 of the 1987 Constitution? Of what significance is the questioned entry in petitioner's Certificate of Candidacy stating her residence in the First Legislative District of Leyte as seven (7) months? It is the fact of residence, not a statement in a certificate of candidacy which ought to be decisive in determining whether or not and individual has satisfied the constitution's residency qualification requirement. The said statement becomes material only when there is or appears to be a deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible. It would be plainly ridiculous for a candidate to deliberately and knowingly make a statement in a certificate of candidacy which would lead to his or her disqualification. It stands to reason therefore, that petitioner merely committed an honest mistake in jotting the word "seven" in the space provided for the residency qualification requirement. The circumstances leading to her filing the questioned entry obviously resulted in the subsequent confusion which prompted petitioner to write down the period of her actual stay in Tolosa, Leyte instead of her period of residence in the First district, which was "since childhood" in the space provided. These circumstances and events are amply detailed in the COMELEC's Second Division's questioned resolution, albeit with a different interpretation. For instance, when herein petitioner announced that she would be registering in Tacloban City to make her eligible to run in the First District, private respondent Montejo opposed the same, claiming that petitioner was a resident of Tolosa, not Tacloban City. Petitioner then registered in her place of actual residence in the First District, which is Tolosa, Leyte, a fact which she subsequently noted down in her Certificate of Candidacy. A close look at said certificate would reveal the possible source of the confusion: the entry for residence (Item No. 7) is followed immediately by the entry for residence in the constituency where a candidate seeks election thus: 7. RESIDENCE (complete Address): Brgy. Olot, Tolosa, Leyte POST OFFICE ADDRESS FOR ELECTION PURPOSES: Brgy. Olot, Tolosa, Leyte 8. RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE ELECTED IMMEDIATELY PRECEDING THE ELECTION:_________ Years and Seven Months. Having been forced by private respondent to register in her place of actual residence in Leyte instead of petitioner's claimed domicile, it appears that petitioner had jotted down her period of stay in her legal residence or domicile. The juxtaposition of entries in Item 7 and Item 8 the first requiring actual residence and the second requiring domicile coupled with the circumstances surrounding petitioner's registration as a voter in Tolosa obviously led to her writing down an unintended entry for which she could be disqualified. This honest mistake should not, however, be allowed to negate the fact of residence in the First District if such fact were established by means more convincing than a mere entry on a piece of paper. We now proceed to the matter of petitioner's domicile. In support of its asseveration that petitioner's domicile could not possibly be in the First District of Leyte, the Second Division of the COMELEC, in its assailed Resolution of April 24,1995 maintains that "except for the time when (petitioner) studied and worked for some years after graduation in Tacloban City, she continuously lived in Manila." The Resolution additionally cites certain facts as indicative of the fact that petitioner's domicile ought to be any place where she lived in the last few decades except Tacloban, Leyte. First, according to the Resolution, petitioner, in 1959, resided in San Juan, Metro Manila where she was also registered voter. Then, in 1965, following the election of her husband to the Philippine presidency, she lived in San Miguel, Manila where she as a voter. In 1978 and thereafter, she served as a member of the Batasang Pambansa and Governor of Metro Manila. "She could not, have served these positions if she had not been a resident of Metro Manila," the COMELEC stressed. Here is where the confusion lies.
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We have stated, many times in the past, that an individual does not lose his domicile even if he has lived and maintained residences in different places. Residence, it bears repeating, implies a factual relationship to a given place for various purposes. The absence from legal residence or domicile to pursue a profession, to study or to do other things of a temporary or semi-permanent nature does not constitute loss of residence. Thus, the assertion by the COMELEC that "she could not have been a resident of Tacloban City since childhood up to the time she filed her certificate of candidacy because she became a resident of many places" flies in the face of settled jurisprudence in which this Court carefully made distinctions between (actual) residence and domicile for election law 33 purposes. In Larena vs. Teves, supra, we stressed: [T]his court is of the opinion and so holds that a person who has his own house wherein he lives with his family in a municipality without having ever had the intention of abandoning it, and without having lived either alone or with his family in another municipality, has his residence in the former municipality, notwithstanding his having registered as an elector in the other municipality in question and having been a candidate for various insular and provincial positions, stating every time that he is a resident of the latter municipality. More significantly, in Faypon vs. Quirino,
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We explained that:

A citizen may leave the place of his birth to look for "greener pastures," as the saying goes, to improve his lot, and that, of course includes study in other places, practice of his avocation, or engaging in business. When an election is to be held, the citizen who left his birthplace to improve his lot may desire to return to his native town to cast his ballot but for professional or business reasons, or for any other reason, he may not absent himself from his professional or business activities; so there he registers himself as voter as he has the qualifications to be one and is not willing to give up or lose the opportunity to choose the officials who are to run the government especially in national elections. Despite such registration, the animus revertendi to his home, to his domicile or residence of origin has not forsaken him. This may be the explanation why the registration of a voter in a place other than his residence of origin has not been deemed sufficient to constitute abandonment or loss of such residence. It finds justification in the natural desire and longing of every person to return to his place of birth. This strong feeling of attachment to the place of one's birth must be overcome by positive proof of abandonment for another. From the foregoing, it can be concluded that in its above-cited statements supporting its proposition that petitioner was ineligible to run for the position of Representative of the First District of Leyte, the COMELEC was obviously referring to petitioner's various places of (actual) residence, not her domicile. In doing so, it not only ignored settled jurisprudence on residence in election law and 35 the deliberations of the constitutional commission but also the provisions of the Omnibus Election Code (B.P. 881). What is undeniable, however, are the following set of facts which establish the fact of petitioner's domicile, which we lift verbatim 36 from the COMELEC's Second Division's assailed Resolution: In or about 1938 when respondent was a little over 8 years old, she established her domicile in Tacloban, Leyte (Tacloban City). She studied in the Holy Infant Academy in Tacloban from 1938 to 1949 when she graduated from high school. She pursued her college studies in St. Paul's College, now Divine Word University in Tacloban, where she earned her degree in Education. Thereafter, she taught in the Leyte Chinese School, still in Tacloban City. In 1952 she went to Manila to work with her cousin, the late speaker Daniel Z. Romualdez in his office in the House of Representatives. In 1954, she married ex-President Ferdinand E. Marcos when he was still a congressman of Ilocos Norte and registered there as a voter. When her husband was elected Senator of the Republic in 1959, she and her husband lived together in San Juan, Rizal where she registered as a voter. In 1965, when her husband was elected President of the Republic of the Philippines, she lived with him in Malacanang Palace and registered as a voter in San Miguel, Manila. [I]n February 1986 (she claimed that) she and her family were abducted and kidnapped to Honolulu, Hawaii. In November 1991, she came home to Manila. In 1992, respondent ran for election as President of the Philippines and filed her Certificate of Candidacy wherein she indicated that she is a resident and registered voter of San Juan, Metro Manila. Applying the principles discussed to the facts found by COMELEC, what is inescapable is that petitioner held various residences for different purposes during the last four decades. None of these purposes unequivocally point to an intention to abandon her domicile of origin in Tacloban, Leyte. Moreover, while petitioner was born in Manila, as a minor she naturally followed the domicile of her parents. She grew up in Tacloban, reached her adulthood there and eventually established residence in different parts of the country for various reasons. Even during her husband's presidency, at the height of the Marcos Regime's powers, petitioner kept her

close ties to her domicile of origin by establishing residences in Tacloban, celebrating her birthdays and other important personal milestones in her home province, instituting well-publicized projects for the benefit of her province and hometown, and establishing a political power base where her siblings and close relatives held positions of power either through the ballot or by appointment, always with either her influence or consent. These well-publicized ties to her domicile of origin are part of the history and lore of the quarter century of Marcos power in our country. Either they were entirely ignored in the COMELEC'S Resolutions, or the majority of the COMELEC did not know what the rest of the country always knew: the fact of petitioner's domicile in Tacloban, Leyte. Private respondent in his Comment, contends that Tacloban was not petitioner's domicile of origin because she did not live there until she was eight years old. He avers that after leaving the place in 1952, she "abandoned her residency (sic) therein for many years and . . . (could not) re-establish her domicile in said place by merely expressing her intention to live there again." We do not agree. First, minor follows the domicile of his parents. As domicile, once acquired is retained until a new one is gained, it follows that in spite of the fact of petitioner's being born in Manila, Tacloban, Leyte was her domicile of origin by operation of law. This domicile was not established only when her father brought his family back to Leyte contrary to private respondent's averments. Second, domicile of origin is not easily lost. To successfully effect a change of domicile, one must demonstrate: 1. An actual removal or an actual change of domicile; 2. A bona fide intention of abandoning the former place of residence and establishing a new one; and 3. Acts which correspond with the purpose. In the absence of clear and positive proof based on these criteria, the residence of origin should be deemed to continue. Only with evidence showing concurrence of all three requirements can the presumption of continuity or residence be rebutted, for a change of 38 residence requires an actual and deliberate abandonment, and one cannot have two legal residences at the same time. In the case at bench, the evidence adduced by private respondent plainly lacks the degree of persuasiveness required to convince this court that an abandonment of domicile of origin in favor of a domicile of choice indeed occurred. To effect an abandonment requires the voluntary act of relinquishing petitioner's former domicile with an intent to supplant the former domicile with one of her own choosing (domicilium voluntarium). In this connection, it cannot be correctly argued that petitioner lost her domicile of origin by operation of law as a result of her marriage to the late President Ferdinand E. Marcos in 1952. For there is a clearly established distinction between the Civil Code 39 concepts of "domicile" and "residence." The presumption that the wife automatically gains the husband's domicile by operation of law upon marriage cannot be inferred from the use of the term "residence" in Article 110 of the Civil Code because the Civil Code is one area where the two concepts are well delineated. Dr. Arturo Tolentino, writing on this specific area explains: In the Civil Code, there is an obvious difference between domicile and residence. Both terms imply relations between a person and a place; but in residence, the relation is one of fact while in domicile it is legal or juridical, 40 independent of the necessity of physical presence. Article 110 of the Civil Code provides: Art. 110. The husband shall fix the residence of the family. But the court may exempt the wife from living with the husband if he should live abroad unless in the service of the Republic. A survey of jurisprudence relating to Article 110 or to the concepts of domicile or residence as they affect the female spouse upon marriage yields nothing which would suggest that the female spouse automatically loses her domicile of origin in favor of the husband's choice of residence upon marriage. Article 110 is a virtual restatement of Article 58 of the Spanish Civil Code of 1889 which states: La mujer esta obligada a seguir a su marido donde quiera que fije su residencia. Los Tribunales, sin embargo, podran con justa causa eximirla de esta obligacion cuando el marido transende su residencia a ultramar o' a pais extranjero.
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Note the use of the phrase "donde quiera su fije de residencia" in the aforequoted article, which means wherever (the husband) wishes to establish residence. This part of the article clearly contemplates only actual residence because it refers to a positive act of fixing a family home or residence. Moreover, this interpretation is further strengthened by the phrase "cuando el marido translade su residencia" in the same provision which means, "when the husband shall transfer his residence," referring to another positive act of relocating the family to another home or place of actual residence. The article obviously cannot be understood to refer to domicile which is a fixed, fairly-permanent concept when it plainly connotes the possibility of transferring from one place to another not only once, but as often as the husband may deem fit to move his family, a circumstance more consistent with the concept of actual residence. The right of the husband to fix the actual residence is in harmony with the intention of the law to strengthen and unify the family, recognizing the fact that the husband and the wife bring into the marriage different domiciles (of origin). This difference could, for the sake of family unity, be reconciled only by allowing the husband to fix a single place of actual residence. Very significantly, Article 110 of the Civil Code is found under Title V under the heading: RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE. Immediately preceding Article 110 is Article 109 which obliges the husband and wife to live together, thus: Art. 109. The husband and wife are obligated to live together, observe mutual respect and fidelity and render mutual help and support. The duty to live together can only be fulfilled if the husband and wife are physically together. This takes into account the situations where the couple has many residences (as in the case of the petitioner). If the husband has to stay in or transfer to any one of their residences, the wife should necessarily be with him in order that they may "live together." Hence, it is illogical to conclude that Art. 110 refers to "domicile" and not to "residence." Otherwise, we shall be faced with a situation where the wife is left in the domicile while the husband, for professional or other reasons, stays in one of their (various) residences. As Dr. Tolentino further explains: Residence and Domicile Whether the word "residence" as used with reference to particular matters is synonymous with "domicile" is a question of some difficulty, and the ultimate decision must be made from a consideration of the purpose and intent with which the word is used. Sometimes they are used synonymously, at other times they are distinguished from one another. xxx xxx xxx Residence in the civil law is a material fact, referring to the physical presence of a person in a place. A person can have two or more residences, such as a country residence and a city residence. Residence is acquired by living in place; on the other hand, domicile can exist without actually living in the place. The important thing for domicile is that, once residence has been established in one place, there be an intention to stay there permanently, even if residence is also established in some other 41 place. In fact, even the matter of a common residence between the husband and the wife during the marriage is not an iron-clad principle; In cases applying the Civil Code on the question of a common matrimonial residence, our jurisprudence has recognized certain 42 situations where the spouses could not be compelled to live with each other such that the wife is either allowed to maintain a residence different from that of her husband or, for obviously practical reasons, revert to her original domicile (apart from being 43 allowed to opt for a new one). In De la Vina vs. Villareal this Court held that "[a] married woman may acquire a residence or domicile separate from that of her husband during the existence of the marriage where the husband has given cause for 44 divorce." Note that the Court allowed the wife either to obtain new residence or to choose a new domicile in such an event. In instances where the wife actually opts, .under the Civil Code, to live separately from her husband either by taking new residence or reverting to her domicile of origin, the Court has held that the wife could not be compelled to live with her husband on pain of 45 contempt. In Arroyo vs. Vasques de Arroyo the Court held that: Upon examination of the authorities, we are convinced that it is not within the province of the courts of this country to attempt to compel one of the spouses to cohabit with, and render conjugal rights to, the other. Of course where the property rights of one of the pair are invaded, an action for restitution of such rights can be maintained. But we are disinclined to sanction the doctrine that an order, enforcible (sic) by process of contempt, may be entered to compel the restitution of the purely personal right of consortium. At best such an order can be effective for no other purpose than to compel the spouses to live under the same roof; and he experience of those countries where the courts of justice have assumed to compel the cohabitation of married people shows that the

policy of the practice is extremely questionable. Thus in England, formerly the Ecclesiastical Court entertained suits for the restitution of conjugal rights at the instance of either husband or wife; and if the facts were found to warrant it, that court would make a mandatory decree, enforceable by process of contempt in case of disobedience, requiring the delinquent party to live with the other and render conjugal rights. Yet this practice was sometimes criticized even by the judges who felt bound to enforce such orders, and in Weldon v. Weldon (9 P.D. 52), decided in 1883, Sir James Hannen, President in the Probate, Divorce and Admiralty Division of the High Court of Justice, expressed his regret that the English law on the subject was not the same as that which prevailed in Scotland, where a decree of adherence, equivalent to the decree for the restitution of conjugal rights in England, could be obtained by the injured spouse, but could not be enforced by imprisonment. Accordingly, in obedience to the growing sentiment against the practice, the Matrimonial Causes Act (1884) abolished the remedy of imprisonment; though a decree for the restitution of conjugal rights can still be procured, and in case of disobedience may serve in appropriate cases as the basis of an order for the periodical payment of a stipend in the character of alimony. In the voluminous jurisprudence of the United States, only one court, so far as we can discover, has ever attempted to make a preemptory order requiring one of the spouses to live with the other; and that was in a case where a wife was ordered to follow and live with her husband, who had changed his domicile to the City of New Orleans. The decision referred to (Bahn v. Darby, 36 La. Ann., 70) was based on a provision of the Civil Code of Louisiana similar to article 56 of the Spanish Civil Code. It was decided many years ago, and the doctrine evidently has not been fruitful even in the State of Louisiana. In other states of the American Union the idea of enforcing cohabitation by process of contempt is rejected. (21 Cyc., 1148). In a decision of January 2, 1909, the Supreme Court of Spain appears to have affirmed an order of the Audiencia Territorial de Valladolid requiring a wife to return to the marital domicile, and in the alternative, upon her failure to do so, to make a particular disposition of certain money and effects then in her possession and to deliver to her husband, as administrator of the ganancial property, all income, rents, and interest which might accrue to her from the property which she had brought to the marriage. (113 Jur. Civ., pp. 1, 11) But it does not appear that this order for the return of the wife to the marital domicile was sanctioned by any other penalty than the consequences that would be visited upon her in respect to the use and control of her property; and it does not appear that her disobedience to that order would necessarily have been followed by imprisonment for contempt. Parenthetically when Petitioner was married to then Congressman Marcos, in 1954, petitioner was obliged by virtue of Article 110 of the Civil Code to follow her husband's actual place of residence fixed by him. The problem here is that at that time, Mr. Marcos had several places of residence, among which were San Juan, Rizal and Batac, Ilocos Norte. There is no showing which of these places Mr. Marcos did fix as his family's residence. But assuming that Mr. Marcos had fixed any of these places as the conjugal residence, what petitioner gained upon marriage was actual residence. She did not lose her domicile of origin. On the other hand, the common law concept of "matrimonial domicile" appears to have been incorporated, as a result of our jurisprudential experiences after the drafting of the Civil Code of 1950, into the New Family Code. To underscore the difference between the intentions of the Civil Code and the Family Code drafters, the term residence has been supplanted by the term domicile in an entirely new provision (Art. 69) distinctly different in meaning and spirit from that found in Article 110. The provision recognizes revolutionary changes in the concept of women's rights in the intervening years by making the choice of domicile a 46 product of mutual agreement between the spouses. Without as much belaboring the point, the term residence may mean one thing in civil law (or under the Civil Code) and quite another thing in political law. What stands clear is that insofar as the Civil Code is concerned-affecting the rights and obligations of husband and wife the term residence should only be interpreted to mean "actual residence." The inescapable conclusion derived from this unambiguous civil law delineation therefore, is that when petitioner married the former President in 1954, she kept her domicile of origin and merely gained a new home, not a domicilium necessarium. Even assuming for the sake of argument that petitioner gained a new "domicile" after her marriage and only acquired a right to choose a new one after her husband died, petitioner's acts following her return to the country clearly indicate that she not only impliedly but expressly chose her domicile of origin (assuming this was lost by operation of law) as her domicile. This "choice" was unequivocally expressed in her letters to the Chairman of the PCGG when petitioner sought the PCGG's permission to "rehabilitate (our) ancestral house in Tacloban and Farm in Olot, Leyte. . . to make them livable for the Marcos family to have a home in our 47 homeland." Furthermore, petitioner obtained her residence certificate in 1992 in Tacloban, Leyte, while living in her brother's house, an act which supports the domiciliary intention clearly manifested in her letters to the PCGG Chairman. She could not have gone straight to her home in San Juan, as it was in a state of disrepair, having been previously looted by vandals. Her "homes" and

"residences" following her arrival in various parts of Metro Manila merely qualified as temporary or "actual residences," not domicile. Moreover, and proceeding from our discussion pointing out specific situations where the female spouse either reverts to her domicile of origin or chooses a new one during the subsistence of the marriage, it would be highly illogical for us to assume that she cannot regain her original domicile upon the death of her husband absent a positive act of selecting a new one where situations exist within the subsistence of the marriage itself where the wife gains a domicile different from her husband. In the light of all the principles relating to residence and domicile enunciated by this court up to this point, we are persuaded that the facts established by the parties weigh heavily in favor of a conclusion supporting petitioner's claim of legal residence or domicile in the First District of Leyte. II. The jurisdictional issue Petitioner alleges that the jurisdiction of the COMELEC had already lapsed considering that the assailed resolutions were rendered 48 on April 24, 1995, fourteen (14) days before the election in violation of Section 78 of the Omnibus Election Code. Moreover, petitioner contends that it is the House of Representatives Electoral Tribunal and not the COMELEC which has jurisdiction over the election of members of the House of Representatives in accordance with Article VI Sec. 17 of the Constitution. This is untenable. It is a settled doctrine that a statute requiring rendition of judgment within a specified time is generally construed to be merely 49 directory, "so that non-compliance with them does not invalidate the judgment on the theory that if the statute had intended 50 such result it would have clearly indicated it." The difference between a mandatory and a directory provision is often made on 51 grounds of necessity. Adopting the same view held by several American authorities, this court in Marcelino vs. Cruz held that: The difference between a mandatory and directory provision is often determined on grounds of expediency, the reason being that less injury results to the general public by disregarding than enforcing the letter of the law. In Trapp v. Mc Cormick, a case calling for the interpretation of a statute containing a limitation of thirty (30) days within which a decree may be entered without the consent of counsel, it was held that "the statutory provisions which may be thus departed from with impunity, without affecting the validity of statutory proceedings, are usually those which relate to the mode or time of doing that which is essential to effect the aim and purpose of the Legislature or some incident of the essential act." Thus, in said case, the statute under examination was construed merely to be directory. The mischief in petitioner's contending that the COMELEC should have abstained from rendering a decision after the period stated in the Omnibus Election Code because it lacked jurisdiction, lies in the fact that our courts and other quasi-judicial bodies would then refuse to render judgments merely on the ground of having failed to reach a decision within a given or prescribed period. In any event, with the enactment of Sections 6 and 7 of R.A. 6646 in relation to Section 78 of B.P. 881, it is evident that the respondent Commission does not lose jurisdiction to hear and decide a pending disqualification case under Section 78 of B.P. 881 even after the elections. As to the House of Representatives Electoral Tribunal's supposed assumption of jurisdiction over the issue of petitioner's qualifications after the May 8, 1995 elections, suffice it to say that HRET's jurisdiction as the sole judge of all contests relating to the elections, returns and qualifications of members of Congress begins only after a candidate has become a member of the House of 53 Representatives. Petitioner not being a member of the House of Representatives, it is obvious that the HRET at this point has no jurisdiction over the question. It would be an abdication of many of the ideals enshrined in the 1987 Constitution for us to either to ignore or deliberately make distinctions in law solely on the basis of the personality of a petitioner in a case. Obviously a distinction was made on such a ground here. Surely, many established principles of law, even of election laws were flouted for the sake perpetuating power during the preEDSA regime. We renege on these sacred ideals, including the meaning and spirit of EDSA ourselves bending established principles of principles of law to deny an individual what he or she justly deserves in law. Moreover, in doing so, we condemn ourselves to repeat the mistakes of the past. WHEREFORE, having determined that petitioner possesses the necessary residence qualifications to run for a seat in the House of Representatives in the First District of Leyte, the COMELEC's questioned Resolutions dated April 24, May 7, May 11, and May 25, 1995 are hereby SET ASIDE. Respondent COMELEC is hereby directed to order the Provincial Board of Canvassers to proclaim petitioner as the duly elected Representative of the First District of Leyte.
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SO ORDERED. Feliciano, J., is on leave.

Separate Opinions

PUNO, J., concurring: It was Aristotle who taught mankind that things that are alike should be treated alike, while things that are unalike should be treated 1 unalike in proportion to their unalikeness. Like other candidates, petitioner has clearly met the residence requirement provided by 2 Section 6, Article VI of the Constitution. We cannot disqualify her and treat her unalike, for the Constitution guarantees equal protection of the law. I proceed from the following factual and legal propositions: First. There is no question that petitioner's original domicile is in Tacloban, Leyte. Her parents were domiciled in Tacloban. Their ancestral house is in Tacloban. They have vast real estate in the place. Petitioner went to school and thereafter worked there. I consider Tacloban as her initial domicile, both her domicile of origin and her domicile of choice. Her domicile of origin as it was the domicile of her parents when she was a minor; and her domicile of choice, as she continued living there even after reaching the age of majority. Second. There is also no question that in May, 1954, petitioner married the late President Ferdinand E. Marcos. By contracting marriage, her domicile became subject to change by law, and the right to change it was given by Article 110 of the Civil Code provides: Art. 110. The husband shall fix the residence of the family. But the court may exempt the wife from living with the 3 husband if he should live abroad unless in the service of the Republic. (Emphasis supplied) In De la Via v. Villareal and Geopano, this Court explained why the domicile of the wife ought to follow that of the husband. We held: "The reason is founded upon the theoretic identity of person and interest between the husband and the wife, and the presumption that, from the nature of the relation, the home of one is the home of the other. It is intended to promote, strengthen, and secure their interests in this relation, as it ordinarily exists, where union and harmony 5 prevail." In accord with this objective, Article 109 of the Civil Code also obligated the husband and wife "to live together." Third. The difficult issues start as we determine whether petitioner's marriage to former President Marcos ipso facto resulted in the loss of her Tacloban domicile. I respectfully submit that her marriage by itself alone did not cause her to lose her Tacloban domicile. Article 110 of the Civil Code merely gave the husband the right to fix the domicile of the family. In the exercise of the right, the husband may explicitly choose the prior domicile of his wife, in which case, the wife's domicile remains unchanged. The husband can 6 also implicitly acquiesce to his wife's prior domicile even if it is different. So we held in de la Via, . . . . When married women as well as children subject to parental authority live, with the acquiescence of their husbands or fathers, in a place distinct from where the latter live, they have their ownindependent domicile. . . . It is not, therefore, the mere fact of marriage but the deliberate choice of a different domicile by the husband that will change the domicile of a wife from what it was prior to their marriage. The domiciliary decision made by the husband in the exercise of the right conferred by Article 110 of the Civil Code binds the wife. Any and all acts of a wife during her coverture contrary to the domiciliary choice of the husband cannot change in any way the domicile legally fixed by the husband. These acts are void not only because the wife lacks the capacity to choose her domicile but also because they are contrary to law and public policy.
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In the case at bench, it is not disputed that former President Marcos exercised his right to fix the family domicile and established it in Batac, Ilocos Norte, where he was then the congressman. At that particular point of time and throughout their married life, petitioner lost her domicile in Tacloban, Leyte. Since petitioner's Batac domicile has been fixed by operation of law, it was not affected in 1959 when her husband was elected as Senator, when they lived in San Juan, Rizal and where she registered as a voter. It was not also affected in 1965 when her husband was elected President, when they lived in Malacaang Palace, and when she registered as a voter in San Miguel, Manila. Nor was it affected when she served as a member of the Batasang Pambansa, Minister of Human Settlements and Governor of Metro Manila during the incumbency of her husband as President of the nation. Under Article 110 of the Civil Code, it was only her husband who could change the family domicile in Batac and the evidence shows he did not effect any such change. To a large degree, this follows the common law that "a woman on her marriage loses her own domicile 7 and by operation of law, acquires that of her husband, no matter where the wife actually lives or what she believes or intends." Fourth. The more difficult task is how to interpret the effect of the death on September 28, 1989 of former President Marcos on petitioner's Batac domicile. The issue is of first impression in our jurisdiction and two (2) schools of thought contend for acceptance. 8 One is espoused by our distinguished colleague, Mr. Justice Davide, Jr., heavily relying on American authorities. He echoes the theory that after the husband's death, the wife retains the last domicile of her husband until she makes an actual change. I do not subscribe to this submission. The American case law that the wife still retains her dead husband's domicile is based on ancient common law which we can no longer apply in the Philippine setting today. The common law identified the domicile of a 9 wife as that of the husband and denied to her the power of acquiring a domicile of her own separate and apart from him. Legal scholars agree that two (2) reasons support this common law doctrine. The first reason as pinpointed by the legendary Blackstone is derived from the view that "the very being or legal existence of the woman is suspended during 10 the marriage, or at least is incorporated and consolidated into that of the husband." The second reason lies in "the desirability of 11 having the interests of each member of the family unit governed by the same law." Thepresumption that the wife retains the domicile of her deceased husband is an extension of this common law concept. The concept and its extension have provided some of the most iniquitous jurisprudence against women. It was under common law that the 1873 American case of Bradwell 12 v. Illinois was decided where women were denied the right to practice law. It was unblushingly ruled that "the natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life . . . This is the law of 13 14 the Creator." Indeed, the rulings relied upon by Mr. Justice Davide in CJS and AM JUR 2d are American state court decisions 15 16 handed down between the years 1917 and 1938, or before the time when women were accorded equality of rights with men. Undeniably, the women's liberation movement resulted in far-ranging state legislations in the United States to eliminate gender 17 inequality. Starting in the decade of the seventies, the courts likewise liberalized their rulings as they started invalidating laws 18 infected with gender-bias. It was in 1971 when the US Supreme Court in Reed v. Reed, struck a big blow for women equality when it declared as unconstitutional an Idaho law that required probate courts to choose male family members over females as estate administrators. It held that mere administrative inconvenience cannot justify a sex-based distinction. These significant changes both in law and in case law on the status of women virtually obliterated the iniquitous common law surrendering the rights of married women to their husbands based on the dubious theory of the parties' theoretic oneness. The Corpus Juris Secundum editors did not miss the relevance of this revolution on women's right as they observed: "However, it has been declared that under modern statutes changing the status of married women and departing from the common law theory of marriage, there is no reason why a 19 wife may not acquire a separate domicile for every purpose known to the law." In publishing in 1969 the Restatement of the Law, Second (Conflict of Laws 2d), the reputable American Law Institute also categorically stated that the view of Blackstone ". . . is no longer held. As the result of statutes and court decisions, a wife now possesses practically the same rights and powers as her 20 unmarried sister." In the case at bench, we have to decide whether we should continue clinging to the anachronistic common law that demeans women, especially married women. I submit that the Court has no choice except to break away from this common law rule, the root of the many degradations of Filipino women. Before 1988, our laws particularly the Civil Code, were full of gender discriminations 21 against women. Our esteemed colleague, Madam Justice Flerida Ruth Romero, cited a few of them as follows: xxx xxx xxx Legal Disabilities Suffered by Wives Not generally known is the fact that under the Civil Code, wives suffer under certain restrictions or disabilities. For instance, the wife cannot accept gifts from others, regardless of the sex of the giver or the value of the gift, other than from her very close relatives, without her husband's consent. She may accept only from, say, her parents, parents-in-law, brothers, sisters and the relatives within the so-called fourth civil degree. She may not exercise her profession or occupation or engage in business if her husband objects on serious grounds or if his income is

sufficient to support their family in accordance with their social standing. As to what constitutes "serious grounds" for objecting, this is within the discretion of the husband. xxx xxx xxx Because of the present inequitable situation, the amendments to the Civil Law being proposed by the University of the Philippines Law Center would allow absolute divorce which severes the matrimonial ties, such that the divorced spouses are free to get married a year after the divorce is decreed by the courts. However, in order to place the husband and wife on an equal footing insofar as the bases for divorce are concerned, the following are specified as the grounds for absolute divorce: (1) adultery or having a paramour committed by the respondent in any of the ways specified in the Revised Penal Code or (2) an attempt by the respondent against the life of the petitioner which amounts to attempted parricide under the Revised Penal Code; (3) abandonment of the petitioner by the respondent without just cause for a period of three consecutive years; or (4) habitual maltreatment. With respect to property relations, the husband is automatically the administrator of the conjugal property owned in common by the married couple even if the wife may be the more astute or enterprising partner. The law does not leave it to the spouses to decide who shall act as such administrator. Consequently, the husband is authorized to engage in acts and enter into transactions beneficial to the conjugal partnership. The wife, however, cannot similarly bind the partnership without the husband's consent. And while both exercise joint parental authority over their children, it is the father whom the law designates as the legal administrator of the property pertaining to the unemancipated child. Taking the lead in Asia, our government exerted efforts, principally through legislations, to eliminate inequality between men and women in our land. The watershed came on August 3, 1988 when our Family Code took effect which, among 22 others, terminated the unequal treatment of husband and wife as to their rights and responsibilities. The Family Code attained this elusive objective by giving new rights to married women and by abolishing sex-based privileges of husbands. Among others, married women are now given the joint right to administer the family property, whether in the absolute 23 community system or in the system of conjugal partnership; joint parental authority over their minor children, both over their 24 25 persons as well as their properties; joint responsibility for the support of the family; the right to jointly manage the 26 27 household; and, the right to object to their husband's exercise of profession, occupation, business or activity. Of particular relevance to the case at bench is Article 69 of the Family Code which took away the exclusive right of the husband to fix the family domicile and gave it jointly to the husband and the wife, thus: Art. 69. The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide. The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the solidarity of the family. (Emphasis supplied) Article 69 repealed Article 110 of the Civil Code. Commenting on the duty of the husband and wife to live together, former Madam Justice Alice Sempio-Diy of the Court of Appeals specified the instances when a wife may now refuse to live with her 28 husband, thus: (2) The wife has the duty to live with her husband, but she may refuse to do so in certain cases like: (a) If the place chosen by the husband as family residence is dangerous to her Life; (b) If the husband subjects her to maltreatment or abusive conduct or insults, making common life impossible; (c) If the husband compels her to live with his parents, but she cannot get along with her motherin-law and they have constant quarrels (Del Rosario v. Del Rosario, CA, 46 OG 6122);

(d) Where the husband has continuously carried illicit relations for 10 years with different women and treated his wife roughly and without consideration. (Dadivas v. Villanueva, 54 Phil. 92); (e) Where the husband spent his time in gambling, giving no money to his family for food and necessities, and at the same time insulting his wife and laying hands on her. (Panuncio v. Sula, CA, 34 OG 129); (f) If the husband has no fixed residence and lives a vagabond life as a tramp (1 Manresa 329); (g) If the husband is carrying on a shameful business at home (Gahn v. Darby, 38 La. Ann. 70). The inescapable conclusion is that our Family Code has completely emancipated the wife from the control of the husband, thus abandoning the parties' theoretic identity of interest. No less than the late revered Mr. Justice J.B.L. Reyes who chaired the Civil Code Revision Committee of the UP Law Center gave this insightful view in one of his rare lectures after 29 retirement: xxx xxx xxx The Family Code is primarily intended to reform the family law so as to emancipate the wife from the exclusive control of the husband and to place her at parity with him insofar as the family is concerned.The wife and the husband are now placed on equal standing by the Code. They are now joint administrators of the family properties and exercise joint authority over the persons and properties of their children. This means a dual authority in the family. The husband will no longer prevail over the wife but she has to agree on all matters concerning the family. (Emphasis supplied) In light of the Family Code which abrogated the inequality between husband and wife as started and perpetuated by the common law, there is no reason in espousing the anomalous rule that the wife still retains the domicile of her dead husband. Article 110 of the Civil Code which provides the statutory support for this stance has been repealed by Article 69 of the Family Code. By its repeal, it becomes a dead-letter law, and we are not free to resurrect it by giving it further effect in any way or manner such as by ruling that the petitioner is still bound by the domiciliary determination of her dead husband. Aside from reckoning with the Family Code, we have to consider our Constitution and its firm guarantees of due process and equal protection of 30 law. It can hardly be doubted that the common law imposition on a married woman of her dead husband's domicile even beyond his grave is patently discriminatory to women. It is a gender-based discrimination and is not rationally related to the objective of promoting family solidarity. It cannot survive a constitutional challenge. Indeed, compared with our previous fundamental laws, the 1987 Constitution is more concerned with equality between sexes as it explicitly commands that the State ". . . shall ensure fundamental equality before the law of women and men." To be exact, section 14, Article II provides: "The State recognizes the role of women in nation building, and shall ensure fundamental equality before the law of women and men. We shall be transgressing the sense and essence of this constitutional mandate if we insist on giving our women the caveman's treatment. Prescinding from these premises, I respectfully submit that the better stance is to rule that petitioner reacquired her Tacloban domicile upon the death of her husband in 1989. This is the necessary consequence of the view that petitioner's Batac dictated domicile did not continue after her husband's death; otherwise, she would have no domicile and that will violate the universal rule that no person can be without a domicile at any point of time. This stance also restores the right of petitioner to choose her domicile before it was taken away by Article 110 of the Civil Code, a right now recognized by the Family Code and protected by the Constitution. Likewise, I cannot see the fairness of the common law requiring petitioner to choose again her Tacloban domicile before she could be released from her Batac domicile. She lost her Tacloban domicile not through her act but through the act of her deceased husband when he fixed their domicile in Batac. Her husband is dead and he cannot rule her beyond the grave. The law disabling her to choose her own domicile has been repealed. Considering all these, common law should not put the burden on petitioner to prove she has abandoned her dead husband's domicile. There is neither rhyme nor reason for this gender-based burden. But even assuming arguendo that there is need for convincing proof that petitioner chose to reacquire her Tacloban domicile, still, the records reveal ample evidence to this effect. In her affidavit submitted to the respondent COMELEC, petitioner averred:

xxx xxx xxx 36. In November, 1991, I came home to our beloved country, after several requests for my return were denied by President Corazon C. Aquino, and after I filed suits for our Government to issue me my passport. 37. But I came home without the mortal remains of my beloved husband, President Ferdinand E. Marcos, which the Government considered a threat to the national security and welfare. 38. Upon my return to the country, I wanted to immediately live and reside in Tacloban City or in Olot, Tolosa, Leyte, even if my residences there were not livable as they had been destroyed and cannibalized. The PCGG, however, did not permit and allow me. 39. As a consequence, I had to live at various times in the Westin Philippine Plaza in Pasay City, a friend's apartment on Ayala Avenue, a house in South Forbes Park which my daughter rented, and Pacific Plaza, all in Makati. 40. After the 1992 Presidential Elections, I lived and resided in the residence of my brother in San Jose, Tacloban City, and pursued my negotiations with PCGG to recover my sequestered residences in Tacloban City and Barangay Olot, Tolosa, Leyte. 40.1 In preparation for my observance of All Saints' Day and All Souls' Day that year, I renovated my parents' burial grounds and entombed their bones which had been excalvated, unearthed and scattered. 41. On November 29, 1993, I formally wrote PCGG Chairman Magtanggol Gunigundo for permissions to . . . rehabilitate . . . (o)ur ancestral house in Tacloban and farmhouse in Olot, Leyte . . . to make them livable for us the Marcos family to have a home in our own motherland. xxx xxx xxx 42. It was only on 06 June 1994, however, when PCGG Chairman Gunigundo, in his letter to Col. Simeon Kempis, Jr., PCGG Region 8 Representative, allowed me to repair and renovate my Leyte residences. I quote part of his letter: Dear Col. Kempis, Upon representation by Mrs. Imelda R. Marcos to this Commission, that she intends to visit our sequestered properties in Leyte, please allow her access thereto. She may also cause repairs and renovation of the sequestered properties, in which event, it shall be understood that her undertaking said repairs is not authorization for her to take over said properties, and that all expenses shall be for her account and not reimbursable. Please extend the necessary courtesy to her. xxx xxx xxx 43. I was not permitted, however, to live and stay in the Sto. Nio Shrine residence in Tacloban City where I wanted to stay and reside, after repairs and renovations were completed. In August 1994, I transferred from San Jose, Tacloban City, to my residence in Barangay Olot, Tolosa, Leyte, when PCGG permitted me to stay and live there. It is then clear that in 1992 petitioner reestablished her domicile in the First District of Leyte. It is not disputed that in 1992, she first lived at the house of her brother in San Jose, Tacloban City and later, in August 1994, she transferred her residence in Barangay Olot, Tolosa, Leyte. Both Tacloban City and the municipality of Olot are within the First District of Leyte. Since petitioner reestablished her old domicile in 1992 in the First District of Leyte, she more than complied with the

constitutional requirement of residence ". . . for a period of not less than one year immediately preceding the day of the election," i.e., the May 8, 1995 elections. The evidence presented by the private respondent to negate the Tacloban domicile of petitioner is nil. He presented petitioner's Voter's Registration Record filed with the Board of Election Inspectors of Precinct 10-A of Barangay Olot, Tolosa, Leyte wherein she stated that her period of residence in said barangay was six (6) months as of the date of her filing of said Voter's Registration Record 31 on January 28, 1995. This statement in petitioner's Voter's Registration Record is a non-prejudicial admission. The Constitution requires at least one (1) year residence in the district in which the candidate shall be elected. In the case at bench, the reference is the First District of Leyte. Petitioner's statement proved that she resided in Olot six (6) months before January 28, 1995 but did not disprove that she has also resided in Tacloban City starting 1992. As aforestated, Olot and Tacloban City are both within the First District of Leyte, hence, her six (6) months residence in Olot should be counted not against, but in her favor. Private respondent also 32 presented petitioner's Certificate of Candidacy filed on March 8, 1995 where she placed seven (7) months after Item No. 8 which called for information regarding "residence in the constituency where I seek to be elected immediately preceding the election." Again, this original certificate of candidacy has no evidentiary value because an March 1, 1995 it was corrected by petitioner. In her 33 Amended/Corrected Certificate of Candidacy, petitioner wrote "since childhood" after Item No. 8. The amendment of a certificate of candidacy to correct a bona fide mistake has been allowed by this Court as a matter of course and as a matter of right. As we held 34 in Alialy v. COMELEC, viz.: xxx xxx xxx The absence of the signature of the Secretary of the local chapter N.P in the original certificate of candidacy presented before the deadline September 11, 1959, did not render the certificate invalid.The amendment of the certificate, although at a date after the deadline, but before the election, was substantial compliance with the law, and the defect was cured. It goes without saying that petitioner's erroneous Certificate of Candidacy filed on March 8, 1995 cannot be used as evidence against her. Private respondent's petition for the disqualification of petitioner rested alone on these two (2) brittle pieces of documentary evidence petitioner's Voter's Registration Record and her original Certificate of Candidacy. Ranged against the evidence of the petitioner showing her ceaseless contacts with Tacloban, private respondent's two (2) pieces of evidence are too insufficient to disqualify petitioner, more so, to deny her the right to represent the people of the First District of Leyte who have overwhelmingly voted for her. Fifth. Section 10, Article IX-C of the Constitution mandates that "bona fide candidates for any public office shall be free from any 35 form of harassment and discrimination." A detached reading of the records of the case at bench will show that all forms of legal and extra-legal obstacles have been thrown against petitioner to prevent her from running as the people's representative in the First 36 District of Leyte. In petitioner's Answer to the petition to disqualify her, she averred: xxx xxx xxx 10. Petitioner's (herein private respondent Montejo) motive in filing the instant petition is devious. When respondent (petitioner herein) announced that she was intending to register as a voter in Tacloban City and run for Congress in the First District of Leyte, petitioner (Montejo) immediately opposed her intended registration by writing a letter stating that "she is not a resident of said city but of Barangay Olot, Tolosa, Leyte." (Annex "2" of respondent's affidavit, Annex "2"). After respondent (petitioner herein) had registered as a voter in Tolosa following completion of her six-month actual residence therein, petitioner (Montejo) filed a petition with the COMELEC to transfer the town of Tolosa from the First District to the Second District and pursued such move up to the Supreme Court in G.R. No. 118702, his purpose being to remove respondent (petitioner herein) as petitioner's (Montejo's) opponent in the congressional election in the First District. He also filed a bill, along with other Leyte Congressmen, seeking to create another legislative district, to remove the town of Tolosa out of the First District and to make it a part of the new district, to achieve his purpose. However, such bill did not pass the Senate. Having, failed on such moves, petitioner now filed the instant petition, for the same objective, as it is obvious that he is afraid to submit himself along with respondent (petitioner herein) for the judgment and verdict of the electorate of the First District of Leyte in an honest, orderly, peaceful, free and clean elections on May 8, 1995. These allegations which private respondent did not challenge were not lost 37 to the perceptive eye of Commissioner Maambong who in his Dissenting Opinion, held:

xxx xxx xxx Prior to the registration date January 28, 1995 the petitioner (herein private respondent Montejo) wrote the Election Officer of Tacloban City not to allow respondent (petitioner herein) to register thereat since she is a resident of Tolosa and not Tacloban City. The purpose of this move of the petitioner (Montejo) is not lost to (sic) the Commission. In UND No. 95-001 (In the matter of the Legislative Districts of the Provinces of Leyte, Iloilo, and South Cotabato, Out of Which the New Provinces of Biliran, Guimaras and Saranggani Were Respectively Created), . . . Hon. Cirilo Roy G. Montejo, Representative, First District of Leyte, wanted the Municipality of Tolosa, in the First District of Leyte, transferred to the Second District of Leyte. The Hon. Sergio A.F. Apostol, Representative of the Second District of Leyte, opposed the move of the petitioner (Montejo). Under Comelec Resolution No. 2736 (December 29, 1994), the Commission on Elections refused to make the proposed transfer. Petitioner (Montejo) filed "Motion for Reconsideration of Resolution No. 2736" which the Commission denied in a Resolution promulgated on February 1, 1995. Petitioner (Montejo) filed a petition for certiorari before the Honorable Supreme Court (Cirilo Roy G. Montejo vs. Commission on Elections, G.R. No. 118702) questioning the resolution of the Commission. Believing that he could get a favorable ruling from the Supreme Court, petitioner (Montejo) tried to make sure that the respondent (petitioner herein) will register as a voter in Tolosa so that she will be forced to run as Representative not in the First but in the Second District. It did not happen. On March 16, 1995, the Honorable Supreme Court unanimously promulgated a "Decision," penned by Associate Justice Reynato S. Puno, the dispositive portion of which reads: IN VIEW WHEREOF, Section 1 of Resolution No. 2736 insofar as it transferred the municipality of Capoocan of the Second District and the municipality of Palompon of the Fourth District to the Third District of the province of Leyte, is annulled and set aside. We also deny the Petition praying for the transfer of the municipality of Tolosa from the First District to the Second District of the province of Leyte. No costs. Petitioner's (Montejo's) plan did not work. But the respondent (petitioner herein) was constrained to register in the Municipality of Tolosa where her house is instead of Tacloban City, her domicile. In any case, both Tacloban City and Tolosa are in the First Legislative District. All these attempts to misuse our laws and legal processes are forms of rank harassments and invidious discriminations against petitioner to deny her equal access to a public office. We cannot commit any hermeneutic violence to the Constitution by torturing the meaning of equality, the end result of which will allow the harassment and discrimination of petitioner who has lived a controversial life, a past of alternating light and shadow. There is but one Constitution for all Filipinos. Petitioner cannot be adjudged by a "different" Constitution, and the worst way to interpret the Constitution is to inject in its interpretation, bile and bitterness. Sixth. In Gallego v. Vera, we explained that the reason for this residence requirement is "to exclude a stranger or newcomer, unacquainted, with the conditions and needs of a community and not identified with the latter, from an elective office to serve that community . . . ." Petitioner's lifetime contacts with the First District of Leyte cannot be contested. Nobody can claim that she is not acquainted with its problems because she is a stranger to the place. None can argue she cannot satisfy the intent of the Constitution. Seventh. In resolving election cases, a dominant consideration is the need to effectuate the will of the electorate. The election results show that petitioner received Seventy Thousand Four Hundred Seventy-one (70,471) votes, while private respondent got only Thirty-Six Thousand Eight Hundred Thirty-Three (36,833) votes. Petitioner is clearly the overwhelming choice of the electorate of the First District of Leyte and this is not a sleight of statistics. We cannot frustrate this sovereign will on highly arguable technical considerations. In case of doubt, we should lean towards a rule that will give life to the people's political judgment. A final point. The case at bench provides the Court with the rare opportunity to rectify the inequality of status between women and men by rejecting the iniquitous common law precedents on the domicile of married women and by redefining domicile in accord with our own culture, law, and Constitution. To rule that a married woman is eternally tethered to the domicile dictated by her dead husband is to preserve the anachronistic and anomalous balance of advantage of a husband over his wife. We should not allow the dead to govern the living even if the glories of yesteryears seduce us to shout long live the dead! The Family Code buried this
38

gender-based discrimination against married women and we should not excavate what has been entombed. More importantly, the Constitution forbids it. I vote to grant the petition. Bellosillo and Melo, JJ., concur. FRANCISCO, J., concurring: I concur with Mr. Justice Kapunan's ponencia finding petitioner qualified for the position of Representative of the First Congressional District of Leyte. I wish, however, to express a few comments on the issue of petitioner's domicile. Domicile has been defined as that place in which a person's habitation is fixed, without any present intention of removing therefrom, and that place is properly the domicile of a person in which he has voluntarily fixed his abode, or habitation, not for a mere special or temporary purpose, but with a present intention of making it his permanent home (28 C.J.S. 1). It denotes a fixed permanent residence to which when absent for business, or pleasure, or for like reasons one intends to return, and depends on facts and circumstances, in the sense that they disclose intent. (Ong Huan Tin v. Republic, 19 SCRA 966, 969) Domicile is classified into domicile of origin and domicile of choice. The law attributes to every individual a domicile of origin, which is the domicile of his parents, or of the head of his family, or of the person on whom he is legally dependent at the time of his birth. While the domicile of origin is generally the place where one is born or reared, it maybe elsewhere (28 C.J.S. 5). Domicile of choice, on the other hand, is the place which the person has elected and chosen for himself to displace his previous domicile; it has for its true basis or foundation the intention of the person (28 C.J.S. 6). In order to hold that a person has abandoned his domicile and acquired a new one called domicile of choice, the following requisites must concur, namely, (a) residence or bodily presence in the new locality, (b) intention to remain there or animus manendi, and (c) an intention to abandon the old domicile oranimus non revertendi (Romualdez v. RTC, Br. 7, Tacloban City, 226 SCRA 408, 415). A third classification is domicile by operation of law which attributes to a person a domicile independent of his own intention or actual residence, ordinarily resulting from legal domestic relations, as that of the wife arising from marriage, or the relation of a parent and a child (28 C.J.S. 7). In election law, when our Constitution speaks of residence for election purposes it means domicile (Co v. Electoral Tribunal of the House of Representatives, 199 SCRA 692, 713; Nuval v. Guray, 52 Phil. 645, 651). To my mind, public respondent Commission on Elections misapplied this concept, of domicile which led to petitioner's disqualification by ruling that petitioner failed to comply with the constitutionally mandated one-year residence requirement. Apparently, public respondent Commission deemed as conclusive petitioner's stay and registration as voter in many places as conduct disclosing her intent to abandon her established domicile of origin in Tacloban, Leyte. In several decisions, though, the Court has laid down the rule that registration of a voter in a place other than his place of origin is not sufficient to constitute abandonment or loss of such residence (Faypon v. Quirino, 96 Phil. 294, 300). Respondent Commission offered no cogent reason to depart from this rule except to surmise petitioner's intent of abandoning her domicile of origin. It has been suggested that petitioner's domicile of origin was supplanted by a new domicile due to her marriage, a domicile by operation of law. The proposition is that upon the death of her husband in 1989 she retains her husband's domicile, i.e., Batac, Ilocos Norte, until she makes an actual change thereof. I find this proposition quite untenable. Tacloban, Leyte, is petitioner's domicile of origin which was involuntarily supplanted with another, i.e., Batac, Ilocos Norte, upon her marriage in 1954 with then Congressman Marcos. By legal fiction she followed the domicile of her husband. In my view, the reason 1 for the law is for the spouses to fully and effectively perform their marital duties and obligations to one another. The question of domicile, however, is not affected by the fact that it was the legal or moral duty of the individual to reside in a given place (28 C.J.S. 11). Thus, while the wife retains her marital domicile so long as the marriage subsists, she automatically loses it upon the latter's termination, for the reason behind the law then ceases. Otherwise, petitioner, after her marriage was ended by the death of her husband, would be placed in a quite absurd and unfair situation of having been freed from all wifely obligations yet made to hold on to one which no longer serves any meaningful purpose. It is my view therefore that petitioner reverted to her original domicile of Tacloban, Leyte upon her husband's death without even signifying her intention to that effect. It is for the private respondent to prove, not for petitioner to disprove, that petitioner has effectively abandoned Tacloban, Leyte for Batac, Ilocos Norte or for some other place/s. The clear rule is that it is the party (herein private respondent) claiming that a person has abandoned or lost his residence of origin who must show and prove preponderantly such abandonment or loss (Faypon v. Quirino, supra at 298; 28 C.J.S. 16), because the presumption is strongly in favor of an original

or former domicile, as against an acquired one (28 C.J.S. 16). Private respondent unfortunately failed to discharge this burden as the record is devoid of convincing proof that petitioner has acquired whether voluntarily or involuntarily, a new domicile to replace her domicile of origin. The records, on the contrary, clearly show that petitioner has complied with the constitutional one-year residence requirement. After her exile abroad, she returned to the Philippines in 1991 to reside in Olot, Tolosa, Leyte, but the Presidential Commission on Good Government which sequestered her residential house and other properties forbade her necessitating her transient stay in various places in Manila (Affidavit p.6, attached as Annex I of the Petition). In 1992, she ran for the position of president writing in her certificate of candidacy her residence as San Juan, Metro Manila. After her loss therein, she went back to Tacloban City, acquired 2 her residence certificate and resided with her brother in San Jose. She resided in San Jose, Tacloban City until August of 1994 when 3 she was allowed by the PCGG to move and reside in her sequestered residential house in Olot, Tolosa, Leyte (Annex I, p. 6). It was in the same month of August when she applied for the cancellation of her previous registration in San Juan, Metro Manila in order to register anew as voter of Olot, Tolosa, Leyte, which she did on January 28, 1995. From this sequence of events, I find it quite improper to use as the reckoning period of the one-year residence requirement the date when she applied for the cancellation of her previous registration in San Juan, Metro Manila. The fact which private respondent never bothered to disprove is that petitioner transferred her residence after the 1992 presidential election from San Juan, Metro Manila to San Jose, Tacloban City, and resided therein until August of 1994. She later transferred to Olot, Tolosa, Leyte (Annex I, p. 7). It appearing that both Tacloban City and Tolosa, Leyte are within the First Congressional District of Leyte, it indubitably stands that she had more than a year of residence in the constituency she sought to be elected. Petitioner, therefore, has satisfactorily complied with the one-year qualification required by the 1987 Constitution. I vote to grant the petition. ROMERO, J., separate opinion: Petitioner has appealed to this Court for relief after the COMELEC ruled that she was disqualified from running for Representative of her District and that, in the event that she should, nevertheless, muster a majority vote, her proclamation should be suspended. Not by a straightforward ruling did the COMELEC pronounce its decision as has been its unvarying practice in the past, but by a startling succession of "reverse somersaults." Indicative of its shifting stance vis-a-vis petitioner's certificate of candidacy were first, the action of its Second Division disqualifying her and canceling her original Certificate of Candidacy by a vote of 2-1 on April 24, 1995; then the denial by the COMELEC en banc of her Motion for Reconsideration on May 7, 1995, a day before the election; then because she persisted in running, its decision on May 11, 1995 or three days after the election, allowing her proclamation in the event that the results of the canvass should show that she obtained the highest number of votes (obviously noting that petitioner had won overwhelmingly over her opponent), but almost simultaneously reversing itself by directing that even if she wins, her proclamation should nonetheless be suspended. Crucial to the resolution of the disqualification issue presented by the case at bench is the interpretation to be given to the one-year 1 residency requirement imposed by the Constitution on aspirants for a Congressional seat. Bearing in mind that the term "resident" has been held to be synonymous with "domicile" for election purposes, it is important to determine whether petitioner's domicile was in the First District of Leyte and if so, whether she had resided there for at least a period of one year. Undisputed is her domicile of origin, Tacloban, where her parents lived at the time of her birth. Depending on what theory one adopts, the same may have been changed when she married Ferdinand E. Marcos, then domiciled in Batac, by operation of law. Assuming it did, his death certainly released her from the obligation to live with him at the residence fixed by him during his lifetime. What may confuse the layman at this point is the fact that the term "domicile" may refer to "domicile of origin," "domicile of choice," or "domicile by operation of law," which subject we shall not belabor since it has been amply discussed by theponente and in the other separate opinions. In any case, what assumes relevance is the divergence of legal opinion as to the effect of the husband's death on the domicile of the widow. Some scholars opine that the widow's domicile remains unchanged; that the deceased husband's wishes perforce still bind the wife he has left behind. Given this interpretation, the widow cannot possibly go far enough to sever the domiciliary tie imposed by her husband. It is bad enough to interpret the law as empowering the husband unilaterally to fix the residence or domicile of the family, as laid 2 down in the Civil Code, but to continue giving obeisance to his wishes even after the rationale underlying the mutual duty of the spouses to live together has ceased, is to close one's eyes to the stark realities of the present.

At the other extreme is the position that the widow automatically reverts to her domicile of origin upon the demise of her husband. Does the law so abhor a vacuum that the widow has to be endowed somehow with a domicile? To answer this question which is far from rhetorical, one will have to keep in mind the basic principles of domicile. Everyone must have a domicile. Then one must have only a single domicile for the same purpose at any given time. Once established, a domicile remains until a new one is acquired, for no person lives who has no domicile, as defined by the law be is subject to. At this juncture, we are confronted with an unexplored legal terrain in this jurisdiction, rendered more murky by the conflicting opinions of foreign legal authorities. This being the state of things, it is imperative as it is opportune to illumine the darkness with the beacon light of truth, as dictated by experience and the necessity of according petitioner her right to choose her domicile in keeping with the enlightened global trend to recognize and protect the human rights of women, no less than men. Admittedly, the notion of placing women at par with men, insofar as civil, political and social rights are concerned, is a relatively recent phenomenon that took seed only in the middle of this century. It is a historical fact that for over three centuries, the Philippines had been colonized by Spain, a conservative, Catholic country which transplanted to our shores the Old World cultures, mores and attitudes and values. Through the imposition on our government of the Spanish Civil Code in 1889, the people, both men and women, had no choice but to accept such concepts as the husband's being the head of the family and the wife's subordination to his authority. In such role, his was the right to make vital decisions for the family. Many instances come to mind, foremost being 3 what is related to the issue before us, namely, that "the husband shall fix the residence of the family." Because he is made 4 responsible for the support of the wife and the rest of the family, he is also empowered to be the administrator of the conjugal 5 property, with a few exceptions and may, therefore, dispose of the conjugal partnership property for the purposes specified under 6 7 the law; whereas, as a general rule, the wife cannot bind the conjugal partnership without the husband's consent. As regards the property pertaining to the children under parental authority, the father is the legal administrator and only in his absence may the 8 mother assume his powers. Demeaning to the wife's dignity are certain strictures on her personal freedoms, practically relegating her to the position of minors and disabled persons. To illustrate a few: The wife cannot, without the husband's consent, acquire any 9 gratuitous title, except from her ascendants, descendants, parents-in-law, and collateral relatives within the fourth degree. With respect to her employment, the husband wields a veto power in the case the wife exercises her profession or occupation or engages in business, provided his income is sufficient for the family, according to its social standing and his opposition is founded on serious 10 and valid grounds. Most offensive, if not repulsive, to the liberal-minded is the effective prohibition upon a widow to get married 11 till after three hundred days following the death of her husband, unless in the meantime, she has given birth to a child. The mother who contracts a subsequent marriage loses the parental authority over her children, unless the deceased husband, father of the latter, has expressly provided in his will that his widow might marry again, and has ordered that in such case she should keep and 12 exercise parental authority over their children. Again, an instance of a husband's overarching influence from beyond the grave. All these indignities and disabilities suffered by Filipino wives for hundreds of years evoked no protest from them until the concept of human rights and equality between and among nations and individuals found hospitable lodgment in the United Nations Charter of which the Philippines was one of the original signatories. By then, the Spanish "conquistadores" had been overthrown by the American forces at the turn of the century. The bedrock of the U.N. Charter was firmly anchored on this credo: "to reaffirm faith in the fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women." (Emphasis supplied) It took over thirty years before these egalitarian doctrines bore fruit, owing largely to the burgeoning of the feminist movement. What may be regarded as the international bill of rights for women was implanted in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) adopted by the U.N. General Assembly which entered into force as an international treaty on September 3, 1981. In ratifying the instrument, the Philippines bound itself to implement its liberating spirit and letter, for its Constitution, no less, declared that "The Philippines. . . adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, 13 freedom, cooperation, and amity with all nations." One such principle embodied in the CEDAW is granting to men and women "the same rights with regard to the law relating to the movement of persons and the freedom to choose their 14 residence and domicile." (Emphasis supplied). CEDAW's pro-women orientation which was not lost on Filipino women was reflected in the 1987 Constitution of the Philippines and 15 later, in the Family Code, both of which were speedily approved by the first lady President of the country, Corazon C. Aquino. Notable for its emphasis on the human rights of all individuals and its bias for equality between the sexes are the following 16 provisions: "The State values the dignity of every human person and guarantees full respect for human rights" and "The State 17 recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men." A major accomplishment of women in their quest for equality with men and the elimination of discriminatory provisions of law was the deletion in the Family Code of almost all of the unreasonable strictures on wives and the grant to them of personal rights equal

to that of their husbands. Specifically, the husband and wife are now giventhe right jointly to fix the family domicile; concomitant to the spouses' being jointly responsible for the support of the family is the right and duty of both spouses to manage the 19 20 household; the administration and the enjoyment of the community property shall belong to both spouses jointly; the father 21 and mother shall now jointly exercise legal guardianship over the property of their unemancipated common child and several others. Aware of the hiatus and continuing gaps in the law, insofar as women's rights are concerned, Congress passed a law popularly 22 known as "Women in Development and Nation Building Act" Among the rights given to married women evidencing their capacity to act in contracts equal to that of men are: (1) Women shall have the capacity to borrow and obtain loans and execute security and credit arrangements under the same conditions as men; (2) Women shall have equal access to all government and private sector programs granting agricultural credit, loans and non material resources and shall enjoy equal treatment in agrarian reform and land resettlement programs; (3) Women shall have equal rights to act as incorporators and enter into insurance contracts; and (4) Married women shall have rights equal to those of married men in applying for passports, secure visas and other travel documents, without need to secure the consent of their spouses. As the world draws the curtain on the Fourth World Conference of Women in Beijing, let this Court now be the first to respond to its clarion call that "Women's Rights are Human Rights" and that "All obstacles to women's full participation in decision-making at all levels, including the family" should be removed. Having been herself a Member of the Philippine Delegation to the International Women's Year Conference in Mexico in 1975, this writer is only too keenly aware of the unremitting struggle being waged by women the world over, Filipino women not excluded, to be accepted as equals of men and to tear down the walls of discrimination that hold them back from their proper places under the sun. In light of the inexorable sweep of events, local and global, legislative, executive and judicial, according more rights to women hitherto denied them and eliminating whatever pockets of discrimination still exist in their civil, political and social life, can it still be insisted that widows are not at liberty to choose their domicile upon the death of their husbands but must retain the same, regardless? I submit that a widow, like the petitioner and others similarly situated, can no longer be bound by the domicile of the departed husband, if at all she was before. Neither does she automatically revert to her domicile of origin, but exercising free will, she may opt to reestablish her domicile of origin. In returning to Tacloban and subsequently, to Barangay Olot, Tolosa, both of which are located in the First District of Leyte, petitioner amply demonstrated by overt acts, her election of a domicile of choice, in this case, a reversion to her domicile of origin. Added together, the time when she set up her domicile in the two places sufficed to meet the one-year requirement to run as Representative of the First District of Leyte. In view of the foregoing expatiation, I vote to GRANT the petition. VITUG, J., separate opinion: The case at bench deals with explicit Constitutional mandates. The Constitution is not a pliable instrument. It is a bedrock in our legal system that sets up ideals and directions and render steady our strides hence. It only looks back so as to ensure that mistakes in the past are not repeated. A compliant transience of a constitution belittles its basic function and weakens its goals. A constitution may well become outdated by the realities of time. When it does, it must be changed but while it remains, we owe it respect and allegiance. Anarchy, open or subtle, has never been, nor must it ever be, the answer to perceived transitory needs, let alone societal attitudes, or the Constitution might lose its very essence. Constitutional provisions must be taken to be mandatory in character unless, either by express statement or by necessary implication, a different intention is manifest (see Marcelino vs. Cruz, 121 SCRA 51).

18

The two provisions initially brought to focus are Section 6 and Section 17 of Article VI of the fundamental law. These provisions read: Sec. 6. No person shall be a Member of the House of Representatives unless he is a natural-born citizen of the Philippines and, on the day of the election, is at least twenty-five years of age, able to read and write, and, except the party-list representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately preceding the day of the election. Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman. The Commission on Election (the "COMELEC") is constitutionally bound to enforce and administer "all laws and regulations relative to the conduct of election . . ." (Art. IX, C, Sec. 2, Constitution) that, there being nothing said to the contrary, should include its authority to pass upon the qualification and disqualification prescribed by law ofcandidates to an elective office. Indeed, preproclamation controversies are expressly placed under the COMELEC's jurisdiction to hear and resolve (Art. IX, C, Sec. 3, Constitution). The matter before us specifically calls for the observance of the constitutional one-year residency requirement. The issue (whether or not there is here such compliance), to my mind, is basically a question of fact or at least inextricably linked to such determination. The findings and judgment of the COMELEC, in accordance with the long established rule and subject only to a number of exceptions under the basic heading of "grave abuse of discretion," are not reviewable by this Court. I do not find much need to do a complex exercise on what seems to me to be a plain matter. Generally, the term "residence" has a broader connotation that may mean permanent (domicile), official (place where one's official duties may require him to stay) or temporary (the place where he sojourns during a considerable length of time). For civil law purposes, i.e., as regards the exercise of civil rights and the fulfillment of civil obligations, the domicile of a natural person is the place of his habitual residence (see Article 50, Civil Code). In election cases, the controlling rule is that heretofore announced by this Court in Romualdez vs. Regional Trial Court, Branch 7, Tacloban City (226 SCRA 408, 409); thus: In election cases, the Court treats domicile and residence as synonymous terms, thus: "(t)he term "residence" as used in the election law is synonymous with "domicile," which imports not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention." "Domicile" denotes a fixed permanent residence to which when absent for business or pleasure, or for like reasons, one intends to return. . . . . Residence thus acquired, however, may be lost by adopting another choice of domicile. In order, in turn, to acquire a new domicile by choice, there must concur (1) residence or bodily presence in the new locality, (2) an intention to remain there, and (3) an intention to abandon the old domicile. In other words, there must basically be animus manendi coupled with animus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of residence must be voluntary; and the residence at the place chosen for the new domicile must be actual. Using the above tests, I am not convinced that we can charge the COMELEC with having committed grave abuse of discretion in its assailed resolution. The COMELEC's jurisdiction, in the case of congressional elections, ends when the jurisdiction of the Electoral Tribunal concerned begins. It signifies that the protestee must have theretofore been duly proclaimed and has since become a "member" of the Senate or the House of Representatives. The question can be asked on whether or not the proclamation of a candidate is just a ministerial function of the Commission on Elections dictated solely on the number of votes cast in an election exercise. I believe, it is not. A ministerial duty is an obligation the performance of which, being adequately defined, does not allow the use of further judgment or discretion. The COMELEC, in its particular case, is tasked with the full responsibility of ascertaining all the facts and conditions such as may be required by law before a proclamation is properly done. The Court, on its part, should, in my view at least, refrain from any undue encroachment on the ultimate exercise of authority by the Electoral Tribunals on matters which, by no less than a constitutional fiat, are explicitly within their exclusive domain. The nagging

question, if it were otherwise, would be the effect of the Court's peremptory pronouncement on the ability of the Electoral Tribunal to later come up with its own judgment in a contest "relating to the election, returns and qualification" of its members. Prescinding from all the foregoing, I should like to next touch base on the applicability to this case of Section 6 of Republic Act No. 6646, in relation to Section 72 of Batas Pambansa Blg. 881, each providing thusly: REPUBLIC ACT NO. 6646 xxx xxx xxx Sec. 6. Effect of Disqualification Case. Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. BATAS PAMBANSA BLG. 881 xxx xxx xxx Sec. 72. Effects of disqualification cases and priority. The Commission and the courts shall give priority to cases of disqualification by reason of violation of this Act to the end that a final decision shall be rendered not later than seven days before the election in which the disqualification is sought. Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. Nevertheless, if for any reason, a candidate is not declared by final, judgment before an election to be disqualified, and he is voted for and receives the winning number of votes in such election, his violation of the provisions of the preceding sections shall not prevent his proclamation and assumption to office. I realize that in considering the significance of the law, it may be preferable to look for not so much the specific instances they ostensibly would cover as the principle they clearly convey. Thus, I will not scoff at the argument that it should be sound to say that votes cast in favor of the disqualified candidate, whenever ultimately declared as such, should not be counted in his or her favor and must accordingly be considered to be stray votes. The argument, nevertheless, is far outweighed by the rationale of the now prevailing doctrine first enunciated in the case of Topacio vs. Paredes (23 Phil. 238 [1912]) which, although later abandoned in Ticzon vs. Comelec (103 SCRA 687 [1981]), and Santos vs. COMELEC (137 SCRA 740 [1985]), was restored, along with the interim case of Geronimo vs. Ramos (136 SCRA 435 [1985]), by the Labo (176 SCRA 1 (1989]), Abella (201 SCRA 253 [1991]), Labo (211 SCRA 297 [1992]) and, most recently, Benito (235 SCRA 436 [1994]) rulings. Benito vs.Comelec was a unanimous decision penned by Justice Kapunan and concurred in by Chief Justice Narvasa, Justices Feliciano, Padilla, Bidin, Regalado, Davide, Romero, Melo, Quiason, Puno, Vitug and Mendoza (Justices Cruz and Bellosillo were on official leave). For easy reference, let me quote from the first Labo decision: Finally, there is the question of whether or not the private respondent, who filed the quo warrantopetition, can replace the petitioner as mayor. He cannot. The simple reason is that as he obtained only the second highest number of votes in the election, he was obviously not the choice of the people of Baguio City. The latest ruling of the Court on this issue is Santos v. Commission on Elections, (137 SCRA 740) decided in 1985. In that case, the candidate who placed second was proclaimed elected after the votes for his winning rival, who was disqualified as a turncoat and considered a non-candidate, were all disregard as stray. In effect, the second placer won by default. That decision was supported by eight members of the Court then, (Cuevas, J., ponente, with Makasiar, Concepcion, Jr., Escolin, Relova, De la Fuente, Alampay and Aquino, JJ., concurring.) with three dissenting (Teehankee, Acting C.J., Abad Santos and Melencio-Herrera, JJ.) and another two reserving their vote. (Plana and Gutierrez, Jr., JJ.) One was on official leave. (Fernando, C.J.) Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the earlier case of Geronimo v. Ramos, (136 SCRA 435) which represents the more logical and democratic rule. That case, which

reiterated the doctrine first announced in 1912 in Topacio v.Paredes, (23 Phil. 238) was supported by ten members of the Court, (Gutierrez, Jr., ponente, with Teehankee, Abad Santos, Melencio-Herrera, Plana, Escolin, Relova, De la Fuente, Cuevas and Alampay, JJ., concurring) without any dissent, although one reserved his vote, (Makasiar, J.) another took no part, (Aquino, J.) and two others were on leave. (Fernando, C.J. and Concepcion, Jr., J.) There the Court held: . . . it would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a constituency, the majority of which have positively declared through their ballots that they do not choose him. Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in the election for that office, and it is a fundamental idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p. 676.) The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office. The votes cast for a dead, disqualified, or non-eligible person may not be valid to vote the winner into office or maintain him there. However, in the absence of a statute which clearly asserts a contrary political and legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was alive, qualified, or eligible, they should not be treated as stray, void or meaningless. (at pp. 20-21) Considering all the foregoing, I am constrained to vote for the dismissal of the petition. MENDOZA, J., separate opinion: In my view the issue in this case is whether the Commission on Elections has the power to disqualify candidates on the ground that they lack eligibility for the office to which they seek to be elected. I think that it has none and that the qualifications of candidates may be questioned only in the event they are elected, by filing a petition for quo warranto or an election protest in the appropriate forum, not necessarily in the COMELEC but, as in this case, in the House of Representatives Electoral Tribunal. That the parties in this case took part in the proceedings in the COMELEC is of no moment. Such proceedings were unauthorized and were not rendered valid by their agreement to submit their dispute to that body. The various election laws will be searched in vain for authorized proceedings for determining a candidate's qualifications for an office before his election. There are none in the Omnibus Election Code (B.P. Blg. 881), in the Electoral Reforms Law of 1987 (R.A. No. 6646), or in the law providing for synchronized elections (R.A. No. 7166). There are, in other words, no provisions for preproclamation contests but only election protests or quo warrantoproceedings against winning candidates. To be sure, there are provisions denominated for "disqualification," but they are not concerned with a declaration of the ineligibility of a candidate. These provisions are concerned with the incapacity (due to insanity, incompetence or conviction of an offense) of a person either to be a candidate or to continue as a candidate for public office. There is also a provision for the denial or cancellation of certificates of candidacy, but it applies only to cases involving false representations as to certain matters required by law to be stated in the certificates. These provisions are found in the following parts of the Omnibus Election Code: 12. Disqualifications. Any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he has been sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon or granted amnesty. The disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by competent authority that said insanity or incompetence had been removed or after the expiration of a period of

five years from his service of sentence, unless within the same period he again becomes disqualified. (Emphasis added) 68. Disqualifications. Any candidate who, in an action or protest in which he is a party is declared by final decision of a competent court guilty of, or found by the Commission of having (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws. (Emphasis added) 78. Petition to deny due course to or cancel a certificate of candidacy. A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election. (Emphasis added) the Electoral Reforms Law of 1987 (R.A. No. 6646): 6. Effect of Disqualification Case. Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and; upon motion for the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. (Emphasis added). 7. Petition to Deny Due Course to or Cancel a Certificate of Candidacy. The procedure hereinabove provided shall apply to petitions to deny due course to or cancel a certificate of candidacy as provided in Section 78 of Batas Pambansa Blg. 881. and the Local Government Code of 1991 (R.A. No. 7160): 40. Disqualifications. The following persons are disqualified from running for any elective local position: (a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence; (b) Those removed from office as a result of on administrative case; (c) Those convicted by final judgment for violating the oath of allegiance to the Republic; (d) Those with dual citizenship; (e) Fugitive from justice in criminal or nonpolitical cases here or abroad; (f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code; and (g) The insane or feeble-minded.

The petition filed by private respondent Cirilo Roy Montejo in the COMELEC, while entitled "For Cancellation and Disqualification," contained no allegation that private respondent Imelda Romualdez-Marcos made material representations in her certificate of candidacy which were false, it sought her disqualification on the ground that "on the basis of her Voter Registration Record and Certificate of Candidacy, [she] is disqualified from running for the position of Representative, considering that on election day, May 8, 1995, [she] would have resided less than ten (10) months in the district where she is seeking to be elected." For its part, the COMELEC's Second Division, in its resolution of April 24, 1995, cancelled her certificate of candidacy and corrected certificate of candidacy on the basis of its finding that petitioner is "not qualified to run for the position of Member of the House of Representatives for the First Legislative District of Leyte" and not because of any finding that she had made false representations as to material matters in her certificate of candidacy. Montejo's petition before the COMELEC was therefore not a petition for cancellation of certificate of candidacy under 78 of the Omnibus Election Code, but essentially a petition to declare private respondent ineligible. It is important to note this, because, as will presently be explained, proceedings under 78 have for their purpose to disqualify a person from being a candidate, whereas quo warranto proceedings have for their purpose to disqualify a person from holding public office. Jurisdiction over quo warranto proceedings involving members of the House of Representatives is vested in the Electoral Tribunal of that body. Indeed, in the only cases in which this Court dealt with petitions for the cancellation of certificates of candidacy, the allegations were that the respondent candidates had made false representations in their certificates of candidacy with regard to 1 2 3 their citizenship, age, or residence. But in the generality of cases in which this Court passed upon the qualifications of 4 5 respondents for office, this Court did so in the context of election protests or quo warranto proceedings filed after the proclamation of the respondents or protestees as winners. Three reasons may be cited to explain the absence of an authorized proceeding for determining before electionthe qualifications of a candidate. First is the fact that unless a candidate wins and is proclaimed elected, there is no necessity for determining his eligibility for the office. In contrast, whether an individual should be disqualified as a candidate for acts constituting election offenses (e.g., vote buying, over spending, commission of prohibited acts) is a prejudicial question which should be determined lest he wins because of the very acts for which his disqualification is being sought. That is why it is provided that if the grounds for disqualification are established, a candidate will not be voted for; if he has been voted for, the votes in his favor will not be counted; and if for some 6 reason he has been voted for and he has won, either he will not be proclaimed or his proclamation will be set aside. Second is the fact that the determination of a candidate's eligibility, e.g., his citizenship or, as in this case, his domicile, may take a long time to make, extending beyond the beginning of the term of the office. This is amply demonstrated in the companion case (G.R. No. 120265, Agapito A. Aquino v. COMELEC) where the determination of Aquino's residence was still pending in the COMELEC even after the elections of May 8, 1995. This is contrary to the summary character of proceedings relating to certificates of 7 candidacy. That is why the law makes the receipt of certificates of candidacy a ministerial duty of the COMELEC and its officers. The law is satisfied if candidates state in their certificates of candidacy that they are eligible for the position which they seek to fill, leaving the determination of their qualifications to be made after the election and only in the event they are elected. Only in cases involving charges of false representations made in certificates of candidacy is the COMELEC given jurisdiction. Third is the policy underlying the prohibition against pre-proclamation cases in elections for President, Vice President, Senators and members of the House of Representatives. (R.A. No. 7166, 15) The purpose is to preserve the prerogatives of the House of Representatives Electoral Tribunal and the other Tribunals as "sole judges" under the Constitution of the election, returns and qualifications of members of Congress or of the President and Vice President, as the case may be. By providing in 253 for the remedy of quo warranto for determining an elected official's qualifications after the results of elections are proclaimed, while being conspicuously silent about a pre-proclamation remedy based on the same ground, the Omnibus Election Code, or OEC, by its silence underscores the policy of not authorizing any inquiry into the qualifications of candidates unless they have been elected. Apparently realizing the lack of an authorized proceeding for declaring the ineligibility of candidates, the COMELEC amended its rules on February 15, 1993 so as to provide in Rule 25, 1 the following: Grounds for disqualification. Any candidate who does not possess all the qualifications of a candidate as provided for by the Constitution or by existing law or who commits any act declared by law to be grounds for disqualification may be disqualified from continuing as a candidate.

The lack of provision for declaring the ineligibility of candidates, however, cannot be supplied by a mere rule. Such an act is equivalent to the creation of a cause of action which is a substantive matter which the COMELEC, in the exercise of its rulemaking power under Art. IX, A, 6 of the Constitution, cannot do. It is noteworthy that the Constitution withholds from the COMELEC even the power to decide cases involving the right to vote, which essentially involves an inquiry into qualifications based on age, residence and citizenship of voters. (Art. IX, C, 2(3)) The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into grounds for disqualification is contrary to the evident intention of the law. For not only in their grounds but also in their consequences are proceedings for "disqualification" different from those for a declaration of "ineligibility." "Disqualification" proceedings, as already stated, are based on grounds specified in 12 and 68 of the Omnibus Election Code and in 40 of the Local Government Code and are for the purpose of barring an individual from becoming a candidate or from continuing as a candidate for public office. In a word, their purpose is to eliminate a candidate from the race either from the start or during its progress. "Ineligibility," on the other hand, refers to the lack of the qualifications prescribed in the Constitution or the statutes for holding public office and the purpose of the proceedings for declaration of ineligibility is to remove the incumbent from office. Consequently, that an individual possesses the qualifications for a public office does not imply that he is not disqualified from becoming a candidate or continuing as a candidate for a public office and vice versa. We have this sort of dichotomy in our Naturalization Law. (C.A. No. 473) That an alien has the qualifications prescribed in 2 of the law does not imply that he does not suffer from any of disqualifications provided in 4. Indeed, provisions for disqualifications on the ground that the candidate is guilty of prohibited election practices or offenses, like other pre-proclamation remedies, are aimed at the detestable practice of "grabbing the proclamation and prolonging the election 8 protest," through the use of "manufactured" election returns or resort to other trickery for the purpose of altering the results of the election. This rationale does not apply to cases for determining a candidate's qualifications for office before the election. To the contrary, it is the candidate against whom a proceeding for disqualification is brought who could be prejudiced because he could be prevented from assuming office even though in end he prevails. To summarize, the declaration of ineligibility of a candidate may only be sought in an election protest or action forquo warranto filed pursuant to 253 of the Omnibus Election Code within 10 days after his proclamation. With respect to elective local officials (e.g., Governor, Vice Governor, members of the Sangguniang Panlalawigan, etc.) such petition must be filed either with the COMELEC, the Regional Trial Courts, or Municipal Trial Courts, as provided in Art. IX, C, 2(2) of the Constitution. In the case of the President and Vice President, the petition must be filed with the Presidential Electoral Tribunal (Art. VII, 4, last paragraph), and in the case of the Senators, with the Senate Electoral Tribunal, and in the case of Congressmen, with the House of Representatives Electoral Tribunal. (Art. VI, 17) There is greater reason for not allowing before the election the filing of disqualification proceedings based on alleged ineligibility in the case of candidates for President, Vice President, Senators and members of the House of Representatives, because of the same policy prohibiting the filing of pre-proclamation cases against such candidates. For these reasons, I am of the opinion that the COMELEC had no jurisdiction over SPA No. 95-009; that its proceedings in that case, including its questioned orders, are void; and that the eligibility of petitioner Imelda Romualdez-Marcos for the office of Representative of the First District of Leyte may only be inquired into by the HRET. Accordingly, I vote to grant the petition and to annul the proceedings of the Commission on Elections in SPA No. 95-009, including its questioned orders doted April 24, 1995, May 7, 1995, May 11, 1995 and May 25, 1995, declaring petitioner Imelda RomualdezMarcos ineligible and ordering her proclamation as Representative of the First District of Leyte suspended. To the extent that Rule 25 of the COMELEC Rules of Procedure authorizes proceedings for the disqualification of candidates on the ground of ineligibility for the office, it should considered void. The provincial board of canvassers should now proceed with the proclamation of petitioner. Narvasa, C.J., concurs. PADILLA, J., dissenting: I regret that I cannot join the majority opinion as expressed in the well-written ponencia of Mr. Justice Kapunan. As in any controversy arising out of a Constitutional provision, the inquiry must begin and end with the provision itself. The controversy should not be blurred by what, to me, are academic disquisitions. In this particular controversy, the Constitutional

provision on point states that "no person shall be a member of the House of Representatives unless he is a natural-born citizen of the Philippines, and on the day of the election, is at least twenty-five (25) years of age, able to read and write, and except the party list representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately preceding the day of the election." (Article VI, section 6) It has been argued that for purposes of our election laws, the term residence has been understood as synonymous with domicile. 1 This argument has been validated by no less than the Court in numerous cases where significantly the factual circumstances clearly and convincingly proved that a person does not effectively lose his domicile of origin if the intention to reside therein is manifest with his personal presence in the place,coupled with conduct indicative of such intention. With this basic thesis in mind, it would not be difficult to conceive of different modalities within which the phrase "a resident thereof (meaning, the legislative district) for a period of not less than one year" would fit. The first instance is where a person's residence and domicile coincide in which case a person only has to prove that he has been domiciled in a permanent location for not less than a year before the election. A second situation is where a person maintains a residence apart from his domicile in which case he would have the luxury of district shopping, provided of course, he satisfies the one-year residence period in the district as the minimum period for eligibility to the position of congressional representative for the district. In either case, one would not be constitutionally disqualified for abandoning his residence in order to return to his domicile of origin, or better still, domicile of choice; neither would one be disqualified for abandoning altogether his domicile in favor of his residence in the district where he desires to be a candidate. The most extreme circumstance would be a situation wherein a person maintains several residences in different districts. Since his domicile of origin continues as an option as long as there is no effective abandonment (animus non revertendi), he can practically choose the district most advantageous for him. All these theoretical scenarios, however, are tempered by the unambiguous limitation that "for a period of not less than one year immediately preceding the day of the election", he must be a resident in the district where he desires to be elected. To my mind, the one year residence period is crucial regardless of whether or not the term "residence" is to be synonymous with "domicile." In other words, the candidate's intent and actual presence in one district must in allsituations satisfy the length of time prescribed by the fundamental law. And this, because of a definite Constitutional purpose. He must be familiar with the environment and problems of a district he intends to represent in Congress and the one-year residence in said district would be the minimum period to acquire such familiarity, if not versatility. In the case of petitioner Imelda R. Marcos, the operative facts are distinctly set out in the now assailed decision of the Comelec 2nd Division dated 24 April 1995 (as affirmed by the Comelec en banc) In or about 1938 when respondent was a little over 8 years old, she established her domicile in Tacloban, Leyte (Tacloban City). She studied in the Holy Infant Academy in Tacloban from 1938 to 1948 when she graduated from high school. She pursued her college studies in St. Paul's College, now Divine Word University of Tacloban, where she earned her degree in Education. Thereafter, she taught in the Leyte Chinese High School, still in Tacloban City. In 1952 she went to Manila to work with her cousin, the late Speaker Daniel Z. Romualdez in his office in the House of Representatives. In 1954, she married ex-president Ferdinand Marcos when he was still a congressman of Ilocos Norte. She lived with him in Batac, Ilocos Norte and registered there as a voter. When her husband was elected Senator of the Republic in 1959, she and her husband lived together in San Juan, Rizal where she registered as a voter. In 1965 when her husband was elected President of the Republic of the Philippines, she lived with him in Malacanang Palace and registered as a voter in San Miguel, Manila. During the Marcos presidency, respondent served as a Member of the Batasang Pambansa, Minister of Human Settlements and Governor of Metro Manila. She claimed that in February 1986, she and her family were abducted and kidnapped to Honolulu, Hawaii. In November 1991, she came home to Manila. In 1992 respondent ran for election as President of the Philippines and filed her Certificate of Candidacy wherein she indicated that she is a resident and registered voter of San Juan, Metro Manila. On August 24, 1994, respondent filed a letter with the election officer of San Juan, Metro Manila, requesting for cancellation of her registration in the Permanent List of

Voters in Precinct No. 157 of San Juan, Metro Manila, in order that she may be re-registered or transferred to Brgy. Olot, Tolosa, Leyte. (Annex 2-B, Answer). On August 31, 1994, respondent filed her Sworn Application for Cancellation of Voter's Previous Registration (Annex 2-C, Answer) stating that she is a duly registered voter in 157A, Brgy. Maytunas, San Juan, Metro that she intends to register at Brgy. Olot, Tolosa, Leyte. On January 28, 1995 respondent registered as a voter at Precinct No. 18-A of Olot, Tolosa, Leyte. She filed with the Board of Election Inspectors CE Form No. 1, Voter Registration Record No. 94-3349772, wherein she alleged that she has resided in the municipality of Tolosa for a period of 6 months (Annex A, Petition). On March 8, 1995, respondent filed with the Office of the Provincial Election Supervisor, Leyte, a Certificate of Candidacy for the position of Representative of the First District of Leyte wherein she also alleged that she has been a resident in the constituency where she seeks to be elected for a period of 7 months. The pertinent entries therein are as follows: 7. PROFESSION OR OCCUPATION: House-wife/ Teacher/ Social Worker 8. RESIDENCE (complete address): Brgy. Olot, Tolosa, Leyte Post Office Address for election purposes: Brgy. Olot, Tolosa, Leyte 9. RESIDENCE IN THE CONSTITUENCY WHEREIN I SEEK TO BE ELECTED IMMEDIATELY PRECEDING ELECTION: ________ Years Seven Months 10. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A FOREIGN COUNTRY. THAT I AM ELIGIBLE for said office; That I will support and defend the Constitution of the Republic of the Philippines and will maintain true faith and allegiance thereto; That I will obey the laws, legal orders and decrees promulgated by the duly-constituted authorities; That the obligation imposed by my oath is assumed voluntarily, without mental reservation or purpose of evasion; and That the facts stated herein are true to the best of my knowledge. (Sgd.) Imelda Romualdez-Marcos 2 (Signature of Candidate) Petitioner's aforestated certificate of candidacy filed on 8 March 1995 contains the decisive component or seed of her disqualification. It is contained in her answer under oath of "seven months" to the query of "residence in the constituency wherein I seek to be elected immediately preceding the election." It follows from all the above that the Comelec committed no grave abuse of discretion in holding that petitioner is disqualified from the position of representative for the 1st congressional district of Leyte in the elections of 8 May 1995, for failure to meet the "not less than one-year residence in the constituency (1st district, Leyte) immediately preceding the day of election (8 May 1995)." Having arrived at petitioner's disqualification to be a representative of the first district of Leyte, the next important issue to resolve is whether or not the Comelec can order the Board of Canvassers to determine and proclaim the winner out of the remaining qualified candidates for representative in said district. I am not unaware of the pronouncement made by this Court in the case of Labo vs. Comelec, G.R. 86564, August 1, 1989, 176 SCRA 1 which gave the rationale as laid down in the early 1912 case of Topacio vs. Paredes, 23 Phil. 238 that: . . . . Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in the election for that office, and it is a fundamental idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p. 676)

The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office. The votes cast for a dead, disqualified, or non-eligible person may not be valid to vote the winner into office or maintain him there. However, in the absence of a statute which clearly asserts a contrary political and legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was alive, qualified, or eligible, they should not be treated as stray, void or meaningless. Under Sec. 6 RA 6646, (An Act Introducing Additional Reforms in the Electoral System and for other purposes) (84 O.G. 905, 22 February 1988) it is provided that: . . . Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may, during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. There is no need to indulge in legal hermeneutics to sense the plain and unambiguous meaning of the provision quoted above. As the law now stands, the legislative policy does not limit its concern with the effect of a final judgement of disqualification only before the election, but even during or after the election. The law is clear that in all situations, the votes cast for a disqualified candidate SHALL NOT BE COUNTED. The law has also validated the jurisdiction of the Court or Commission on Election to continue hearing the petition for disqualification in case a candidate is voted for and receives the highest number of votes, if for any reason, he is not declared by final judgment before an election to be disqualified. Since the present case is an after election scenario, the power to suspend proclamation (when evidence of his guilt is strong) is also explicit under the law. What happens then when after the elections are over, one is declared disqualified? Then, votes cast for him "shall not be counted" and in legal contemplation, he no longer received the highest number of votes. It stands to reason that Section 6 of RA 6646 does not make the second placer the winner simply because a "winning candidate is disqualified," but that the law considers him as the candidate who had obtained the highest number of votes as a result of the votes cast for the disqualified candidate not being counted or considered. As this law clearly reflects the legislative policy on the matter, then there is no reason why this Court should not re-examine and consequently abandon the doctrine in the Jun Labo case. It has been stated that "the qualifications prescribed for elective office cannot be erased by the electorate alone. The will of the people as expressed through the ballot cannot cure the vice of ineligibility" most especially when it is mandated by no less than the Constitution. ACCORDINGLY, I vote to DISMISS the petition and to order the Provincial Board of Canvassers of Leyte to proclaim the candidate receiving the highest number of votes, from among the qualified candidates, as the duly elected representative of the 1st district of Leyte. Hermosisima, Jr. J., dissent. REGALADO, J., dissenting: While I agree with same of the factual bases of the majority opinion, I cannot arrive conjointly at the same conclusion drawn therefrom Hence, this dissent which assuredly is not formulated "on the basis of the personality of a petitioner in a case." I go along with the majority in their narration of antecedent facts, insofar as the same are pertinent to this case, and which I have simplified as follows: 1. Petitioner, although born in Manila, resided during her childhood in the present Tacloban City, she being a legitimate daughter of parents who appear to have taken up permanent residence therein. She also went to school there and, for a time, taught in one of the schools in that city.

2. When she married then Rep. Ferdinand E. Marcos who was then domiciled in Batac, Ilocos Norte, by operation of law she acquired a new domicile in that place in 1954. 3. In the successive years and during the events that happened thereafter, her husband having been elected as a Senator and then as President, she lived with him and their family in San Juan, Rizal and then in Malacanang Palace in San Miguel, Manila. 4. Over those years, she registered as a voter and actually voted in Batac, Ilocos Norte, then in San Juan, Rizal, and also in San Miguel, Manila, all these merely in the exercise of the right of suffrage. 5. It does not appear that her husband, even after he had assumed those lofty positions successively, ever abandoned his domicile of origin in Batac, Ilocos Norte where he maintained his residence and invariably voted in all elections. 6. After the ouster of her husband from the presidency in 1986 and the sojourn of the Marcos family in Honolulu, Hawaii, U.S.A., she eventually returned to the Philippines in 1991 and resided in different places which she claimed to have been merely temporary residences. 7. In 1992, petitioner ran for election as President of the Philippines and in her certificate of candidacy she indicated that she was then a registered voter and resident of San Juan, Metro Manila. 8. On August 24, 1994, she filed a letter for the cancellation of her registration in the Permanent List of Voters in Precinct No. 157 of San Juan, Metro Manila in order that she may "be re-registered or transferred to Brgy. Olot, Tolosa, Leyte." On August 31, 1994, she followed this up with her Sworn Application for Cancellation of Voter's Previous Registration wherein she stated that she was a registered voter in Precinct No. 157-A, Brgy. Maytunas, San Juan, Metro Manila and that she intended to register in Brgy. Olot, Tolosa, Leyte. 9. On January 28, 1995, petitioner registered as a voter at Precinct No. 18-A of Olot, Tolosa, Leyte, for which purpose she filed with the therein Board of Election Inspectors a voter's registration record form alleging that she had resided in that municipality for six months. 10. On March 8, 1995, petitioner filed her certificate of candidacy for the position of Representative of the First District of Leyte wherein she alleged that she had been a resident for "Seven Months" of the constituency where she sought to be elected. 11. On March 29, 1995, she filed an "Amended/Corrected Certificate of Candidacy" wherein her answer in the original certificate of candidacy to item "8. RESIDENCE IN THE CONSTITUENCY WHERE I SEEK, TO BE ELECTED IMMEDIATELY PRECEDING THE ELECTION:" was changed or replaced with a new entry reading "SINCE CHILDHOOD." The sole issue for resolution is whether, for purposes of her candidacy, petitioner had complied with the residency requirement of one year as mandated by no less than Section 6, Article VI of the 1987 Constitution. I do not intend to impose upon the time of my colleagues with a dissertation on the difference between residence and domicile. We have had enough of that and I understand that for purposes of political law and, for that matter of international law, residence is understood to be synonymous with domicile. That is so understood in our jurisprudence and in American Law, in contradistinction to the concept of residence for purposes of civil, commercial and procedural laws whenever an issue thereon is relevant or controlling. Consequently, since in the present case the question of petitioner's residence is integrated in and inseparable from her domicile, I am addressing the issue from the standpoint of the concept of the latter term, specifically its permutations into the domicile of origin, domicile of choice and domicile by operation of law, as understood in American law from which for this case we have taken our jurisprudential bearings. My readings inform me that the domicile of the parents at the time of birth, or what is termed the "domicile of origin," constitutes 1 the domicile of an infant until abandoned, or until the acquisition of a new domicile in a different place. In the instant case, we may 2 grant that petitioner's domicile of origin, at least as of 1938, was what is now Tacloban City.

Now, as I have observed earlier, domicile is said to be of three kinds, that is, domicile by birth, domicile by choice, and domicile by operation of law. The first is the common case of the place of birth or domicilium originis, the second is that which is voluntarily 3 acquired by a party or domicilium propio motu; the last which is consequential, as that of a wife arising from marriage, is sometimes called domicilium necesarium. There is no debate that the domicile of origin can be lost or replaced by a domicile of choice or a domicile by operation of law subsequently acquired by the party. When petitioner contracted marriage in 1954 with then Rep. Marcos, by operation of law, not only international or American but of 4 our own enactment, she acquired her husband's domicile of origin in Batac, Ilocos Norte and correspondingly lost her own domicile of origin in Tacloban City. Her subsequent changes of residence to San Juan, Rizal, then to San Miguel, Manila, thereafter to Honolulu, Hawaii, and back to now San Juan, Metro Manila do not appear to have resulted in her thereby acquiring new domiciles of choice. In fact, it appears that her having resided in those places was by reason of the fortunes or misfortunes of her husband and his peregrinations in the assumption of new official positions or the loss of them. Her residence in Honolulu and, of course, those after her return to the Philippines were, as she claimed, against her will or only for transient purposes which could not have invested them with the status 5 of domiciles of choice. After petitioner's return to the Philippines in 1991 and up to the present imbroglio over her requisite residency in Tacloban City or Olot, Tolosa, Leyte, there is no showing that she ever attempted to acquire any other domicile of choice which could have resulted 6 in the abandonment of her legal domicile in Batac, Ilocos Norte. On that score, we note the majority's own submission that, to successfully effect a change of domicile, one must demonstrate (a) an actual removal or an actual change of domicile, (b) a bona fide intention of abandoning the former place of residence and establishing a new one, and (c) acts which correspond with the purpose. We consequently have to also note that these requirements for the acquisition of a domicile of choice apply whether what is sought to be changed or substituted is a domicile of origin (domicilium originis) or a domicile by operation of law (domicilium necesarium). Since petitioner had lost her domicilium originis which had been replaced by her domicilium necesarium, it is therefore her continuing domicile in Batac, Ilocos Norte which, if at all, can be the object of legal change under the contingencies of the case at bar. To get out of this quandary, the majority decision echoes the dissenting opinion of Commissioner Regalado E. Maambong in SPA 957 009 of the Commission on Elections, and advances this novel proposition. It may be said that petitioner lost her domicile of origin by operation of law as a result of her marriage to the late President Ferdinand E. Marcos in 1952 (sic, 1954). By operation of law (domicilium necesarium), her legal domicile at the time of her marriage became Batac, Ilocos Norte although there were no indications of an intention on her part to abandon her domicile of origin. Because of her husband's subsequent death and through the operation of the provisions of the New Family Code already in force at the time, however, her legal domicile automatically reverted to her domicile of origin. . . . (Emphasis supplied). Firstly, I am puzzled why although it is conceded that petitioner had acquired a domicilium necesarium in Batac, Ilocos Norte, the majority insists on making a qualification that she did not intend to abandon her domicile of origin. I find this bewildering since, in this situation, it is the law that declares where petitioner's domicile is at any given time, and not her self-serving or putative intent to hold on to her former domicile. Otherwise, contrary to their own admission that one cannot have more than one domicile at a 8 time, the majority would be suggesting that petitioner retained Tacloban City as (for lack of a term in law since it does not exist therein) the equivalent of what is fancied as a reserved, dormant, potential, or residual domicile. Secondly, domicile once lost in accordance with law can only be recovered likewise in accordance with law. However, we are here being titillated with the possibility of an automatic reversion to or reacquisition of a domicile of origin after the termination of the cause for its loss by operation of law. The majority agrees that since petitioner lost her domicile of origin by her marriage, the termination of the marriage also terminates that effect thereof. I am impressed by the ingeniousness of this theory which proves that, indeed, necessity is the mother of inventions. Regretfully, I find some difficulty in accepting either the logic or the validity of this argument. If a party loses his domicile of origin by obtaining a new domicile of choice, he thereby voluntarily abandons the former in favor of the latter. If, thereafter, he abandons that chosen domicile, he does not per se recover his original domicile unless, by subsequent

acts legally indicative thereof, he evinces his intent and desire to establish the same as his new domicile, which is precisely what petitioner belatedly and, evidently just for purposes of her candidacy, unsuccessfully tried to do. One's subsequent abandonment of his domicile of choice cannot automatically restore his domicile of origin, not only because there is no legal authority therefor but because it would be absurd Pursued to its logical consequence, that theory of ipso jure reversion would rule out the fact that said party could already very well have obtained another domicile, either of choice or by operation of law, other than his domicile of origin. Significantly and obviously for this reason, the Family Code, which the majority inexplicably invokes, advisedly does not regulate this contingency since it would impinge on one's freedom of choice. Now, in the instant case, petitioner not only voluntarily abandoned her domicile of choice (unless we assume that she entered into the marital state against her will) but, on top of that, such abandonment was further affirmed through her acquisition of a new domicile by operation of law. In fact, this is even a case of both voluntary andlegal abandonment of a domicile of origin. With much more reason, therefore, should we reject the proposition that with the termination of her marriage in 1989, petitioner had supposedly per se and ipso facto reacquired her domicile of origin which she lost in 1954. Otherwise, this would be tantamount to saying that during the period of marital coverture, she was simultaneously in possession and enjoyment of a domicile of origin which was only in a state of suspended animation. Thus, the American rule is likewise to the effect that while after the husband's death the wife has the right to elect her own 9 10 domicile, she nevertheless retains the last domicile of her deceased husband until she makes an actual change. In the absence of affirmative evidence, to the contrary, the presumption is that a wife's domicile or legal residence follows that of her husband and 11 will continue after his death. I cannot appreciate the premises advanced in support of the majority's theory based on Articles 68 and 69 of the Family Code. All that is of any relevance therein is that under this new code, the right and power to fix the family domicile is now shared by the spouses. I cannot perceive how that joint right, which in the first place was never exercised by the spouses, could affect the domicile fixed by the law for petitioner in 1954 and, for her husband, long prior thereto. It is true that a wife now has the coordinate power to determine the conjugal or family domicile, but that has no bearing on this case. With the death of her husband, and each of her children having gotten married and established their own respective domiciles, the exercise of that joint power was and is no longer called for or material in the present factual setting of this controversy. Instead, what is of concern in petitioner's case was the matter of her having acquired or not her own domicile of choice. I agree with the majority's discourse on the virtues of the growing and expanded participation of women in the affairs of the nation, with equal rights and recognition by Constitution and statutory conferment. However, I have searched in vain for a specific law or judicial pronouncement which either expressly or by necessary implication supports the majority's desired theory of automatic reacquisition of or reversion to the domicilium originis of petitioner. Definitely, as between the settled and desirable legal norms that should govern this issue, there is a world of difference; and, unquestionably, this should be resolved by legislative articulation but not by the eloquence of the well-turned phrase. In sum, petitioner having lost Tacloban City as her domicile of origin since 1954 and not having automatically reacquired any domicile therein, she cannot legally claim that her residency in the political constituency of which it is a part continued since her birth up to the present. Respondent commission was, therefore, correct in rejecting her pretension to that effect in her amended/corrected certificate of candidacy, and in holding her to her admission in the original certificate that she had actually resided in that constituency for only seven months prior to the election. These considerations render it unnecessary to further pass upon the procedural issues raised by petitioner. ON THE FOREGOING PREMISES, I vote to DISMISS the petition for lack of merit. DAVIDE, JR., J., dissenting: I respectfully dissent from the opinion of the majority written by Mr. Justice Santiago M. Kapunan, more particularly on the issue of the petitioner's qualification. Under Section 7, Subdivision A, Article IX of the Constitution, decisions, orders, or rulings of the COMELEC may be brought to this Court only by the special civil action for certiorari under Rule 65 of the Rules of Court (Aratuc vs. COMELEC, 88 SCRA 251 [1979]; Dario vs. Mison, 176 SCRA 84 [1989]).

Accordingly, a writ of certiorari may be granted only if the COMELEC has acted without or in excess of jurisdiction or with grave abuse of discretion (Section 1, Rule 65, Rules of Court). Since the COMELEC has, undoubtedly, jurisdiction over the private respondent's petition, the only issue left is whether it acted with grave abuse of discretion in disqualifying the petitioner. My careful and meticulous perusal of the challenged resolution of 24 April 1995 of the COMELEC Second Division and the En Banc resolution of 7 May 1995 discloses total absence of abuse of discretion, much less grave abuse thereof. The resolution of the Second Division dispassionately and objectively discussed in minute details the facts which established beyond cavil that herein petitioner was disqualified as a candidate on the ground of lack of residence in the First Congressional District of Leyte. It has not misapplied, miscomprehended, or misunderstood facts or circumstances of substance pertinent to the issue of her residence. The majority opinion, however, overturned the COMELEC's findings of fact for lack of proof that the petitioner has abandoned Tolosa as her domicile of origin, which is allegedly within the First Congressional District of Leyte. I respectfully submit that the petitioner herself has provided the COMELEC, either by admission or by documentary evidence, overwhelming proof of the loss or abandonment of her domicile of origin, which is Tacloban City and not Tolosa, Leyte. Assuming that she decided to live again in her domicile of origin, that became her second domicile of choice, where her stay, unfortunately, was for only seven months before the day of the election. She was then disqualified to be a candidate for the position of Representative of the First Congressional District of Leyte. A holding to the contrary would be arbitrary. It may indeed be conceded that the petitioner's domicile of choice was either Tacloban City or Tolosa, Leyte. Nevertheless, she lost it by operation of law sometime in May 1954 upon her marriage to the then Congressman (later, President) Ferdinand E. Marcos. A domicile by operation of law is that domicile which the law attributes to a person, independently of his own intention or actual residence, as results from legal domestic relations as that of the wife arising from marriage (28 C.J.S. Domicile 7, 11). Under the governing law then, Article 110 of the Civil Code, her new domicile or her domicile of choice was the domicile of her husband, which was Batac, Ilocos Norte. Said Article reads as follows: Art. 110. The husband shall fix the residence of the family. But the court may exempt the wife from living with the husband if he should live abroad unless in the service of the Republic. Commenting thereon, civilist Arturo M. Tolentino states: Although the duty of the spouses to live together is mutual, the husband has a predominant right because he is empowered by law to fix the family residence. This right even predominates over some rights recognized by law in the wife. For instance, under article 117 the wife may engage in business or practice a profession or occupation. But because of the power of the husband to fix the family domicile he may fix it at such a place as would make it impossible for the wife to continue in business or in her profession. For justifiable reasons, however, the wife may be exempted from living in the residence chosen by the husband. The husband cannot validly allege desertion by the wife who refuses to follow him to a new place of residence, when it appears that they have lived for years in a suitable home belonging to the wife, and that his choice of a different home is not made in good faith. (Commentaries and Jurisprudence on the Civil Code of the Philippines, vol. 1, 1985 ed., 339). Under common law, a woman upon her marriage loses her own domicile and, by operation of law, acquires that of her husband, no matter where the wife actually lives or what she believes or intends. Her domicile is fixed in the sense that it is declared to be the same as his, and subject to certain limitations, he can change her domicile by changing his own (25 Am Jur 2d Domicile 48, 37). It must, however, be pointed out that under Article 69 of the Family Code, the fixing of the family domicile is no longer the sole prerogative of the husband, but is now a joint decision of the spouses, and in case of disagreement the court shall decide. The said article uses the term "family domicile," and not family residence, as "the spouses may have multiple residences, and the wife may elect to remain in one of such residences, which may destroy the duty of the spouses to live together and its corresponding benefits" (ALICIA V. SEMPIO-DIY, Handbook on the Family Code of the Philippines, [1988], 102). The theory of automatic restoration of a woman's domicile of origin upon the death of her husband, which the majority opinion adopts to overcome the legal effect of the petitioner's marriage on her domicile, is unsupported by law and by jurisprudence. The settled doctrine is that after the husband's death the wife has a right to elect her own domicile, but she retains the last domicile of her husband until she makes an actual change (28 C.J.S. Domicile 12, 27). Or, on the death of the husband, the power of the wife to acquire her own domicile is revived, but until she exercises the power her domicile remains that of the husband at the time of his

death (25 Am Jur 2d Domicile 62, 45). Note that what is revived is not her domicile of origin but her power to acquire her own domicile. Clearly, even after the death of her husband, the petitioner's domicile was that of her husband at the time of his death which was Batac, Ilocos Norte, since their residences in San Juan, Metro Manila, and San Miguel, Manila, were their residences for convenience to enable her husband to effectively perform his official duties. Their residence in San Juan was a conjugal home, and it was there to which she returned in 1991 when she was already a widow. In her sworn certificate of candidacy for the Office of the President in the synchronized elections of May 1992, she indicated therein that she was a resident of San Juan, Metro Manila. She also voted in the said elections in that place. On the basis of her evidence, it was only on 24 August 1994 when she exercised her right as a widow to acquire her own domicile in Tolosa, Leyte, through her sworn statement requesting the Election Officer of San Juan, Metro Manila, to cancel her registration in the permanent list of voters in Precinct 157 thereat and praying that she be "re-registered or transferred to Brgy. Olot, Tolosa, Leyte, the place of [her] birth and permanent residence" (photocopy of Exhibit "B," attached as Annex "2" of private respondent Montejo's Comment). Notably, she contradicted this sworn statement regarding her place of birth when, in her Voter's Affidavit sworn to on 15 March 1992 (photocopy of Exhibit "C," attached as Annex "3," Id.), her Voter Registration Record sworn to on 28 January 1995 (photocopy of Exhibit "E," attached as Annex "5," Id.), and her Certificate of Candidacy sworn to on 8 March 1995 (photocopy of Exhibit "A," attached as Annex "1," Id.), she solemnly declared that she was born in Manila. The petitioner is even uncertain as to her domicile of origin. Is it Tacloban City or Tolosa, Leyte? In the affidavit attached to her Answer to the petition for disqualification (Annex "I" of Petition), she declared under oath that her "domicile or residence is Tacloban City." If she did intend to return to such domicile or residence of origin why did she inform the Election Officer of San Juan that she would transfer to Olot, Tolosa, Leyte, and indicate in her Voter's Registration Record and in her certificate of candidacy that her residence is Olot, Tolosa, Leyte? While this uncertainty is not important insofar as residence in the congressional district is concerned, it nevertheless proves that forty-one years had already lapsed since she had lost or abandoned her domicile of origin by virtue of marriage and that such length of time diminished her power of recollection or blurred her memory. I find to be misplaced the reliance by the majority opinion on Faypon vs. Quirino (96 Phil. 294 [1954]), and the subsequent cases which established the principle that absence from original residence or domicile of origin to pursue studies, practice one's profession, or engage in business in other states does not constitute loss of such residence or domicile. So is the reliance on Section 117 of the Omnibus Election Code which provides that transfer of residence to any other place by reason of one's "occupation; profession; employment in private and public service; educational activities; work in military or naval reservations; service in the army, navy or air force, the constabulary or national police force; or confinement or detention in government institutions in accordance with law" is not deemed as loss of original residence. Those cases and legal provision do not include marriage of a woman. The reason for the exclusion is, of course, Article 110 of the Civil Code. If it were the intention of this Court or of the legislature to consider the marriage of a woman as a circumstance which would not operate as an abandonment of domicile (of origin or of choice), then such cases and legal provision should have expressly mentioned the same. This Court should not accept as gospel truth the self-serving claim of the petitioner in her affidavit (Annex "A" of her Answer in COMELEC SPA No. 95-009; Annex "I" of Petition) that her "domicile or residence of origin is Tacloban City," and that she "never intended to abandon this domicile or residence of origin to which [she] always intended to return whenever absent." Such a claim of intention cannot prevail over the effect of Article 110 of the Civil Code. Besides, the facts and circumstances or the vicissitudes of the petitioner's life after her marriage in 1954 conclusively establish that she had indeed abandoned her domicile of origin and had acquired a new oneanimo et facto (KOSSUTH KENT KENNAN, A Treatise on Residence and Domicile, [1934], 214, 326). Neither should this Court place complete trust on the petitioner's claim that she "merely committed an honest mistake" in writing down the word "seven" in the space provided for the residency qualification requirement in the certificate of candidacy. Such a claim is self-serving and, in the light of the foregoing disquisitions, would be all sound and fury signifying nothing. To me, she did not commit any mistake, honest or otherwise; what she stated was the truth. The majority opinion also disregards a basic rule in evidence that he who asserts a fact or the affirmative of an issue has the burden of proving it (Imperial Victory Shipping Agency vs. NLRC, 200 SCRA 178 [1991]; P.T. Cerna Corp. vs. Court of Appeals, 221 SCRA 19 [1993]). Having admitted marriage to the then Congressman Marcos, the petitioner could not deny the legal consequence thereof on the change of her domicile to that of her husband. The majority opinion rules or at least concludes that "[b]y operation of law (domicilium necesarium), her legal domicile at the time of her marriage automatically became Batac, Ilocos Norte." That conclusion is consistent with Article 110 of the Civil Code. Since she is presumed to retain her deceased husband's domicile until she exercises

her revived power to acquire her own domicile, the burden is upon her to prove that she has exercised her right to acquire her own domicile. She miserably failed to discharge that burden. I vote to deny the petition. Separate Opinions PUNO, J., concurring: It was Aristotle who taught mankind that things that are alike should be treated alike, while things that are unalike should be treated 1 unalike in proportion to their unalikeness. Like other candidates, petitioner has clearly met the residence requirement provided by 2 Section 6, Article VI of the Constitution. We cannot disqualify her and treat her unalike, for the Constitution guarantees equal protection of the law. I proceed from the following factual and legal propositions: First. There is no question that petitioner's original domicile is in Tacloban, Leyte. Her parents were domiciled in Tacloban. Their ancestral house is in Tacloban. They have vast real estate in the place. Petitioner went to school and thereafter worked there. I consider Tacloban as her initial domicile, both her domicile of origin and her domicile of choice. Her domicile of origin as it was the domicile of her parents when she was a minor; and her domicile of choice, as she continued living there even after reaching the age of majority. Second. There is also no question that in May, 1954, petitioner married the late President Ferdinand E. Marcos. By contracting marriage, her domicile became subject to change by law, and the right to change it was given by Article 110 of the Civil Code provides: Art. 110. The husband shall fix the residence of the family. But the court may exempt the wife from living with the 3 husband if he should live abroad unless in the service of the Republic. (Emphasis supplied) In De la Via v. Villareal and Geopano, this Court explained why the domicile of the wife ought to follow that of the husband. We held: "The reason is founded upon the theoretic identity of person and interest between the husband and the wife, and the presumption that, from the nature of the relation, the home of one is the home of the other. It is intended to promote, strengthen, and secure their interests in this relation, as it ordinarily exists, where union and harmony 5 prevail." In accord with this objective, Article 109 of the Civil Code also obligated the husband and wife "to live together." Third. The difficult issues start as we determine whether petitioner's marriage to former President Marcos ipso facto resulted in the loss of her Tacloban domicile. I respectfully submit that her marriage by itself alone did not cause her to lose her Tacloban domicile. Article 110 of the Civil Code merely gave the husband the right to fix the domicile of the family. In the exercise of the right, the husband may explicitly choose the prior domicile of his wife, in which case, the wife's domicile remains unchanged. The husband can 6 also implicitly acquiesce to his wife's prior domicile even if it is different. So we held in de la Via, . . . . When married women as well as children subject to parental authority live, with the acquiescence of their husbands or fathers, in a place distinct from where the latter live, they have their ownindependent domicile. . . . It is not, therefore, the mere fact of marriage but the deliberate choice of a different domicile by the husband that will change the domicile of a wife from what it was prior to their marriage. The domiciliary decision made by the husband in the exercise of the right conferred by Article 110 of the Civil Code binds the wife. Any and all acts of a wife during her coverture contrary to the domiciliary choice of the husband cannot change in any way the domicile legally fixed by the husband. These acts are void not only because the wife lacks the capacity to choose her domicile but also because they are contrary to law and public policy. In the case at bench, it is not disputed that former President Marcos exercised his right to fix the family domicile and established it in Batac, Ilocos Norte, where he was then the congressman. At that particular point of time and throughout their married life, petitioner lost her domicile in Tacloban, Leyte. Since petitioner's Batac domicile has been fixed by operation of law, it was not affected in 1959 when her husband was elected as Senator, when they lived in San Juan, Rizal and where she registered as a voter. It was not also affected in 1965 when her husband was elected President, when they lived in Malacaang Palace, and when she registered as a voter in San Miguel, Manila. Nor was it affected when she served as a member of the Batasang Pambansa, Minister of Human Settlements and Governor of Metro Manila during the incumbency of her husband as President of the nation. Under Article 110 of the Civil Code, it was only her husband who could change the family domicile in Batac and the evidence shows he did
4

not effect any such change. To a large degree, this follows the common law that "a woman on her marriage loses her own domicile 7 and by operation of law, acquires that of her husband, no matter where the wife actually lives or what she believes or intends." Fourth. The more difficult task is how to interpret the effect of the death on September 28, 1989 of former President Marcos on petitioner's Batac domicile. The issue is of first impression in our jurisdiction and two (2) schools of thought contend for acceptance. 8 One is espoused by our distinguished colleague, Mr. Justice Davide, Jr., heavily relying on American authorities. He echoes the theory that after the husband's death, the wife retains the last domicile of her husband until she makes an actual change. I do not subscribe to this submission. The American case law that the wife still retains her dead husband's domicile is based on ancient common law which we can no longer apply in the Philippine setting today. The common law identified the domicile of a 9 wife as that of the husband and denied to her the power of acquiring a domicile of her own separate and apart from him. Legal scholars agree that two (2) reasons support this common law doctrine. The first reason as pinpointed by the legendary Blackstone is derived from the view that "the very being or legal existence of the woman is suspended during 10 the marriage, or at least is incorporated and consolidated into that of the husband." The second reason lies in "the desirability of 11 having the interests of each member of the family unit governed by the same law." Thepresumption that the wife retains the domicile of her deceased husband is an extension of this common law concept. The concept and its extension have provided some of the most iniquitous jurisprudence against women. It was under common law that the 1873 American case of Bradwell 12 v. Illinois was decided where women were denied the right to practice law. It was unblushingly ruled that "the natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life . . . This is the law of 13 14 the Creator." Indeed, the rulings relied upon by Mr. Justice Davide in CJS and AM JUR 2d are American state court decisions 15 16 handed down between the years 1917 and 1938, or before the time when women were accorded equality of rights with men. Undeniably, the women's liberation movement resulted in far-ranging state legislations in the United States to eliminate gender 17 inequality. Starting in the decade of the seventies, the courts likewise liberalized their rulings as they started invalidating laws 18 infected with gender-bias. It was in 1971 when the US Supreme Court in Reed v. Reed, struck a big blow for women equality when it declared as unconstitutional an Idaho law that required probate courts to choose male family members over females as estate administrators. It held that mere administrative inconvenience cannot justify a sex-based distinction. These significant changes both in law and in case law on the status of women virtually obliterated the iniquitous common law surrendering the rights of married women to their husbands based on the dubious theory of the parties' theoretic oneness. The Corpus Juris Secundum editors did not miss the relevance of this revolution on women's right as they observed: "However, it has been declared that under modern statutes changing the status of married women and departing from the common law theory of marriage, there is no reason why a 19 wife may not acquire a separate domicile for every purpose known to the law." In publishing in 1969 the Restatement of the Law, Second (Conflict of Laws 2d), the reputable American Law Institute also categorically stated that the view of Blackstone ". . . is no longer held. As the result of statutes and court decisions, a wife now possesses practically the same rights and powers as her 20 unmarried sister." In the case at bench, we have to decide whether we should continue clinging to the anachronistic common law that demeans women, especially married women. I submit that the Court has no choice except to break away from this common law rule, the root of the many degradations of Filipino women. Before 1988, our laws particularly the Civil Code, were full of gender discriminations 21 against women. Our esteemed colleague, Madam Justice Flerida Ruth Romero, cited a few of them as follows: xxx xxx xxx Legal Disabilities Suffered by Wives Not generally known is the fact that under the Civil Code, wives suffer under certain restrictions or disabilities. For instance, the wife cannot accept gifts from others, regardless of the sex of the giver or the value of the gift, other than from her very close relatives, without her husband's consent. She may accept only from, say, her parents, parents-in-law, brothers, sisters and the relatives within the so-called fourth civil degree. She may not exercise her profession or occupation or engage in business if her husband objects on serious grounds or if his income is sufficient to support their family in accordance with their social standing. As to what constitutes "serious grounds" for objecting, this is within the discretion of the husband. xxx xxx xxx Because of the present inequitable situation, the amendments to the Civil Law being proposed by the University of the Philippines Law Center would allow absolute divorce which severes the matrimonial ties, such that the divorced spouses are free to get married a year after the divorce is decreed by the courts. However, in order to

place the husband and wife on an equal footing insofar as the bases for divorce are concerned, the following are specified as the grounds for absolute divorce: (1) adultery or having a paramour committed by the respondent in any of the ways specified in the Revised Penal Code or (2) an attempt by the respondent against the life of the petitioner which amounts to attempted parricide under the Revised Penal Code; (3) abandonment of the petitioner by the respondent without just cause for a period of three consecutive years; or (4) habitual maltreatment. With respect to property relations, the husband is automatically the administrator of the conjugal property owned in common by the married couple even if the wife may be the more astute or enterprising partner. The law does not leave it to the spouses to decide who shall act as such administrator. Consequently, the husband is authorized to engage in acts and enter into transactions beneficial to the conjugal partnership. The wife, however, cannot similarly bind the partnership without the husband's consent. And while both exercise joint parental authority over their children, it is the father whom the law designates as the legal administrator of the property pertaining to the unemancipated child. Taking the lead in Asia, our government exerted efforts, principally through legislations, to eliminate inequality between men and women in our land. The watershed came on August 3, 1988 when our Family Code took effect which, among 22 others, terminated the unequal treatment of husband and wife as to their rights and responsibilities. The Family Code attained this elusive objective by giving new rights to married women and by abolishing sex-based privileges of husbands. Among others, married women are now given the joint right to administer the family property, whether in the absolute 23 community system or in the system of conjugal partnership; joint parental authority over their minor children, both over their 24 25 persons as well as their properties; joint responsibility for the support of the family; the right to jointly manage the 26 27 household; and, the right to object to their husband's exercise of profession, occupation, business or activity. Of particular relevance to the case at bench is Article 69 of the Family Code which took away the exclusive right of the husband to fix the family domicile and gave it jointly to the husband and the wife, thus: Art. 69. The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide. The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the solidarity of the family. (Emphasis supplied) Article 69 repealed Article 110 of the Civil Code. Commenting on the duty of the husband and wife to live together, former Madam Justice Alice Sempio-Diy of the Court of Appeals specified the instances when a wife may now refuse to live with her 28 husband, thus: (2) The wife has the duty to live with her husband, but she may refuse to do so in certain cases like: (a) If the place chosen by the husband as family residence is dangerous to her Life; (b) If the husband subjects her to maltreatment or abusive conduct or insults, making common life impossible; (c) If the husband compels her to live with his parents, but she cannot get along with her motherin-law and they have constant quarrels (Del Rosario v. Del Rosario, CA, 46 OG 6122); (d) Where the husband has continuously carried illicit relations for 10 years with different women and treated his wife roughly and without consideration. (Dadivas v. Villanueva, 54 Phil. 92); (e) Where the husband spent his time in gambling, giving no money to his family for food and necessities, and at the same time insulting his wife and laying hands on her. (Panuncio v. Sula, CA, 34 OG 129);

(f) If the husband has no fixed residence and lives a vagabond life as a tramp (1 Manresa 329); (g) If the husband is carrying on a shameful business at home (Gahn v. Darby, 38 La. Ann. 70). The inescapable conclusion is that our Family Code has completely emancipated the wife from the control of the husband, thus abandoning the parties' theoretic identity of interest. No less than the late revered Mr. Justice J.B.L. Reyes who chaired the Civil Code Revision Committee of the UP Law Center gave this insightful view in one of his rare lectures after 29 retirement: xxx xxx xxx The Family Code is primarily intended to reform the family law so as to emancipate the wife from the exclusive control of the husband and to place her at parity with him insofar as the family is concerned.The wife and the husband are now placed on equal standing by the Code. They are now joint administrators of the family properties and exercise joint authority over the persons and properties of their children. This means a dual authority in the family. The husband will no longer prevail over the wife but she has to agree on all matters concerning the family. (Emphasis supplied) In light of the Family Code which abrogated the inequality between husband and wife as started and perpetuated by the common law, there is no reason in espousing the anomalous rule that the wife still retains the domicile of her dead husband. Article 110 of the Civil Code which provides the statutory support for this stance has been repealed by Article 69 of the Family Code. By its repeal, it becomes a dead-letter law, and we are not free to resurrect it by giving it further effect in any way or manner such as by ruling that the petitioner is still bound by the domiciliary determination of her dead husband. Aside from reckoning with the Family Code, we have to consider our Constitution and its firm guarantees of due process and equal protection of 30 law. It can hardly be doubted that the common law imposition on a married woman of her dead husband's domicile even beyond his grave is patently discriminatory to women. It is a gender-based discrimination and is not rationally related to the objective of promoting family solidarity. It cannot survive a constitutional challenge. Indeed, compared with our previous fundamental laws, the 1987 Constitution is more concerned with equality between sexes as it explicitly commands that the State ". . . shall ensure fundamental equality before the law of women and men." To be exact, section 14, Article II provides: "The State recognizes the role of women in nation building, and shall ensure fundamental equality before the law of women and men. We shall be transgressing the sense and essence of this constitutional mandate if we insist on giving our women the caveman's treatment. Prescinding from these premises, I respectfully submit that the better stance is to rule that petitioner reacquired her Tacloban domicile upon the death of her husband in 1989. This is the necessary consequence of the view that petitioner's Batac dictated domicile did not continue after her husband's death; otherwise, she would have no domicile and that will violate the universal rule that no person can be without a domicile at any point of time. This stance also restores the right of petitioner to choose her domicile before it was taken away by Article 110 of the Civil Code, a right now recognized by the Family Code and protected by the Constitution. Likewise, I cannot see the fairness of the common law requiring petitioner to choose again her Tacloban domicile before she could be released from her Batac domicile. She lost her Tacloban domicile not through her act but through the act of her deceased husband when he fixed their domicile in Batac. Her husband is dead and he cannot rule her beyond the grave. The law disabling her to choose her own domicile has been repealed. Considering all these, common law should not put the burden on petitioner to prove she has abandoned her dead husband's domicile. There is neither rhyme nor reason for this gender-based burden. But even assuming arguendo that there is need for convincing proof that petitioner chose to reacquire her Tacloban domicile, still, the records reveal ample evidence to this effect. In her affidavit submitted to the respondent COMELEC, petitioner averred: xxx xxx xxx 36. In November, 1991, I came home to our beloved country, after several requests for my return were denied by President Corazon C. Aquino, and after I filed suits for our Government to issue me my passport. 37. But I came home without the mortal remains of my beloved husband, President Ferdinand E. Marcos, which the Government considered a threat to the national security and welfare.

38. Upon my return to the country, I wanted to immediately live and reside in Tacloban City or in Olot, Tolosa, Leyte, even if my residences there were not livable as they had been destroyed and cannibalized. The PCGG, however, did not permit and allow me. 39. As a consequence, I had to live at various times in the Westin Philippine Plaza in Pasay City, a friend's apartment on Ayala Avenue, a house in South Forbes Park which my daughter rented, and Pacific Plaza, all in Makati. 40. After the 1992 Presidential Elections, I lived and resided in the residence of my brother in San Jose, Tacloban City, and pursued my negotiations with PCGG to recover my sequestered residences in Tacloban City and Barangay Olot, Tolosa, Leyte. 40.1 In preparation for my observance of All Saints' Day and All Souls' Day that year, I renovated my parents' burial grounds and entombed their bones which had been excalvated, unearthed and scattered. 41. On November 29, 1993, I formally wrote PCGG Chairman Magtanggol Gunigundo for permissions to . . . rehabilitate . . . (o)ur ancestral house in Tacloban and farmhouse in Olot, Leyte . . . to make them livable for us the Marcos family to have a home in our own motherland. xxx xxx xxx 42. It was only on 06 June 1994, however, when PCGG Chairman Gunigundo, in his letter to Col. Simeon Kempis, Jr., PCGG Region 8 Representative, allowed me to repair and renovate my Leyte residences. I quote part of his letter: Dear Col. Kempis, Upon representation by Mrs. Imelda R. Marcos to this Commission, that she intends to visit our sequestered properties in Leyte, please allow her access thereto. She may also cause repairs and renovation of the sequestered properties, in which event, it shall be understood that her undertaking said repairs is not authorization for her to take over said properties, and that all expenses shall be for her account and not reimbursable. Please extend the necessary courtesy to her. xxx xxx xxx 43. I was not permitted, however, to live and stay in the Sto. Nio Shrine residence in Tacloban City where I wanted to stay and reside, after repairs and renovations were completed. In August 1994, I transferred from San Jose, Tacloban City, to my residence in Barangay Olot, Tolosa, Leyte, when PCGG permitted me to stay and live there. It is then clear that in 1992 petitioner reestablished her domicile in the First District of Leyte. It is not disputed that in 1992, she first lived at the house of her brother in San Jose, Tacloban City and later, in August 1994, she transferred her residence in Barangay Olot, Tolosa, Leyte. Both Tacloban City and the municipality of Olot are within the First District of Leyte. Since petitioner reestablished her old domicile in 1992 in the First District of Leyte, she more than complied with the constitutional requirement of residence ". . . for a period of not less than one year immediately preceding the day of the election," i.e., the May 8, 1995 elections. The evidence presented by the private respondent to negate the Tacloban domicile of petitioner is nil. He presented petitioner's Voter's Registration Record filed with the Board of Election Inspectors of Precinct 10-A of Barangay Olot, Tolosa, Leyte wherein she stated that her period of residence in said barangay was six (6) months as of the date of her filing of said Voter's Registration Record 31 on January 28, 1995. This statement in petitioner's Voter's Registration Record is a non-prejudicial admission. The Constitution requires at least one (1) year residence in the district in which the candidate shall be elected. In the case at bench, the reference is the First District of Leyte. Petitioner's statement proved that she resided in Olot six (6) months before January 28, 1995 but did not disprove that she has also resided in Tacloban City starting 1992. As aforestated, Olot and Tacloban City are both within the First

District of Leyte, hence, her six (6) months residence in Olot should be counted not against, but in her favor. Private respondent also 32 presented petitioner's Certificate of Candidacy filed on March 8, 1995 where she placed seven (7) months after Item No. 8 which called for information regarding "residence in the constituency where I seek to be elected immediately preceding the election." Again, this original certificate of candidacy has no evidentiary value because an March 1, 1995 it was corrected by petitioner. In her 33 Amended/Corrected Certificate of Candidacy, petitioner wrote "since childhood" after Item No. 8. The amendment of a certificate of candidacy to correct a bona fide mistake has been allowed by this Court as a matter of course and as a matter of right. As we held 34 in Alialy v. COMELEC, viz.: xxx xxx xxx The absence of the signature of the Secretary of the local chapter N.P in the original certificate of candidacy presented before the deadline September 11, 1959, did not render the certificate invalid.The amendment of the certificate, although at a date after the deadline, but before the election, was substantial compliance with the law, and the defect was cured. It goes without saying that petitioner's erroneous Certificate of Candidacy filed on March 8, 1995 cannot be used as evidence against her. Private respondent's petition for the disqualification of petitioner rested alone on these two (2) brittle pieces of documentary evidence petitioner's Voter's Registration Record and her original Certificate of Candidacy. Ranged against the evidence of the petitioner showing her ceaseless contacts with Tacloban, private respondent's two (2) pieces of evidence are too insufficient to disqualify petitioner, more so, to deny her the right to represent the people of the First District of Leyte who have overwhelmingly voted for her. Fifth. Section 10, Article IX-C of the Constitution mandates that "bona fide candidates for any public office shall be free from any 35 form of harassment and discrimination." A detached reading of the records of the case at bench will show that all forms of legal and extra-legal obstacles have been thrown against petitioner to prevent her from running as the people's representative in the First 36 District of Leyte. In petitioner's Answer to the petition to disqualify her, she averred: xxx xxx xxx 10. Petitioner's (herein private respondent Montejo) motive in filing the instant petition is devious. When respondent (petitioner herein) announced that she was intending to register as a voter in Tacloban City and run for Congress in the First District of Leyte, petitioner (Montejo) immediately opposed her intended registration by writing a letter stating that "she is not a resident of said city but of Barangay Olot, Tolosa, Leyte." (Annex "2" of respondent's affidavit, Annex "2"). After respondent (petitioner herein) had registered as a voter in Tolosa following completion of her six-month actual residence therein, petitioner (Montejo) filed a petition with the COMELEC to transfer the town of Tolosa from the First District to the Second District and pursued such move up to the Supreme Court in G.R. No. 118702, his purpose being to remove respondent (petitioner herein) as petitioner's (Montejo's) opponent in the congressional election in the First District. He also filed a bill, along with other Leyte Congressmen, seeking to create another legislative district, to remove the town of Tolosa out of the First District and to make it a part of the new district, to achieve his purpose. However, such bill did not pass the Senate. Having, failed on such moves, petitioner now filed the instant petition, for the same objective, as it is obvious that he is afraid to submit himself along with respondent (petitioner herein) for the judgment and verdict of the electorate of the First District of Leyte in an honest, orderly, peaceful, free and clean elections on May 8, 1995. These allegations which private respondent did not challenge were not lost 37 to the perceptive eye of Commissioner Maambong who in his Dissenting Opinion, held: xxx xxx xxx Prior to the registration date January 28, 1995 the petitioner (herein private respondent Montejo) wrote the Election Officer of Tacloban City not to allow respondent (petitioner herein) to register thereat since she is a resident of Tolosa and not Tacloban City. The purpose of this move of the petitioner (Montejo) is not lost to (sic) the Commission. In UND No. 95-001 (In the matter of the Legislative Districts of the Provinces of Leyte, Iloilo, and South Cotabato, Out of Which the New Provinces of Biliran, Guimaras and Saranggani Were Respectively Created), . . . Hon. Cirilo Roy G. Montejo, Representative, First District of Leyte, wanted the Municipality of Tolosa, in the First District of Leyte, transferred to the Second District of Leyte. The Hon. Sergio A.F. Apostol, Representative of the Second District of Leyte, opposed the move of the petitioner (Montejo). Under Comelec Resolution No. 2736

(December 29, 1994), the Commission on Elections refused to make the proposed transfer. Petitioner (Montejo) filed "Motion for Reconsideration of Resolution No. 2736" which the Commission denied in a Resolution promulgated on February 1, 1995. Petitioner (Montejo) filed a petition for certiorari before the Honorable Supreme Court (Cirilo Roy G. Montejo vs. Commission on Elections, G.R. No. 118702) questioning the resolution of the Commission. Believing that he could get a favorable ruling from the Supreme Court, petitioner (Montejo) tried to make sure that the respondent (petitioner herein) will register as a voter in Tolosa so that she will be forced to run as Representative not in the First but in the Second District. It did not happen. On March 16, 1995, the Honorable Supreme Court unanimously promulgated a "Decision," penned by Associate Justice Reynato S. Puno, the dispositive portion of which reads: IN VIEW WHEREOF, Section 1 of Resolution No. 2736 insofar as it transferred the municipality of Capoocan of the Second District and the municipality of Palompon of the Fourth District to the Third District of the province of Leyte, is annulled and set aside. We also deny the Petition praying for the transfer of the municipality of Tolosa from the First District to the Second District of the province of Leyte. No costs. Petitioner's (Montejo's) plan did not work. But the respondent (petitioner herein) was constrained to register in the Municipality of Tolosa where her house is instead of Tacloban City, her domicile. In any case, both Tacloban City and Tolosa are in the First Legislative District. All these attempts to misuse our laws and legal processes are forms of rank harassments and invidious discriminations against petitioner to deny her equal access to a public office. We cannot commit any hermeneutic violence to the Constitution by torturing the meaning of equality, the end result of which will allow the harassment and discrimination of petitioner who has lived a controversial life, a past of alternating light and shadow. There is but one Constitution for all Filipinos. Petitioner cannot be adjudged by a "different" Constitution, and the worst way to interpret the Constitution is to inject in its interpretation, bile and bitterness. Sixth. In Gallego v. Vera, we explained that the reason for this residence requirement is "to exclude a stranger or newcomer, unacquainted, with the conditions and needs of a community and not identified with the latter, from an elective office to serve that community . . . ." Petitioner's lifetime contacts with the First District of Leyte cannot be contested. Nobody can claim that she is not acquainted with its problems because she is a stranger to the place. None can argue she cannot satisfy the intent of the Constitution. Seventh. In resolving election cases, a dominant consideration is the need to effectuate the will of the electorate. The election results show that petitioner received Seventy Thousand Four Hundred Seventy-one (70,471) votes, while private respondent got only Thirty-Six Thousand Eight Hundred Thirty-Three (36,833) votes. Petitioner is clearly the overwhelming choice of the electorate of the First District of Leyte and this is not a sleight of statistics. We cannot frustrate this sovereign will on highly arguable technical considerations. In case of doubt, we should lean towards a rule that will give life to the people's political judgment. A final point. The case at bench provides the Court with the rare opportunity to rectify the inequality of status between women and men by rejecting the iniquitous common law precedents on the domicile of married women and by redefining domicile in accord with our own culture, law, and Constitution. To rule that a married woman is eternally tethered to the domicile dictated by her dead husband is to preserve the anachronistic and anomalous balance of advantage of a husband over his wife. We should not allow the dead to govern the living even if the glories of yesteryears seduce us to shout long live the dead! The Family Code buried this gender-based discrimination against married women and we should not excavate what has been entombed. More importantly, the Constitution forbids it. I vote to grant the petition. Bellosillo and Melo, JJ., concur. FRANCISCO, J., concurring: I concur with Mr. Justice Kapunan's ponencia finding petitioner qualified for the position of Representative of the First Congressional District of Leyte. I wish, however, to express a few comments on the issue of petitioner's domicile.
38

Domicile has been defined as that place in which a person's habitation is fixed, without any present intention of removing therefrom, and that place is properly the domicile of a person in which he has voluntarily fixed his abode, or habitation, not for a mere special or temporary purpose, but with a present intention of making it his permanent home (28 C.J.S. 1). It denotes a fixed permanent residence to which when absent for business, or pleasure, or for like reasons one intends to return, and depends on facts and circumstances, in the sense that they disclose intent. (Ong Huan Tin v. Republic, 19 SCRA 966, 969) Domicile is classified into domicile of origin and domicile of choice. The law attributes to every individual a domicile of origin, which is the domicile of his parents, or of the head of his family, or of the person on whom he is legally dependent at the time of his birth. While the domicile of origin is generally the place where one is born or reared, it maybe elsewhere (28 C.J.S. 5). Domicile of choice, on the other hand, is the place which the person has elected and chosen for himself to displace his previous domicile; it has for its true basis or foundation the intention of the person (28 C.J.S. 6). In order to hold that a person has abandoned his domicile and acquired a new one called domicile of choice, the following requisites must concur, namely, (a) residence or bodily presence in the new locality, (b) intention to remain there or animus manendi, and (c) an intention to abandon the old domicile oranimus non revertendi (Romualdez v. RTC, Br. 7, Tacloban City, 226 SCRA 408, 415). A third classification is domicile by operation of law which attributes to a person a domicile independent of his own intention or actual residence, ordinarily resulting from legal domestic relations, as that of the wife arising from marriage, or the relation of a parent and a child (28 C.J.S. 7). In election law, when our Constitution speaks of residence for election purposes it means domicile (Co v. Electoral Tribunal of the House of Representatives, 199 SCRA 692, 713; Nuval v. Guray, 52 Phil. 645, 651). To my mind, public respondent Commission on Elections misapplied this concept, of domicile which led to petitioner's disqualification by ruling that petitioner failed to comply with the constitutionally mandated one-year residence requirement. Apparently, public respondent Commission deemed as conclusive petitioner's stay and registration as voter in many places as conduct disclosing her intent to abandon her established domicile of origin in Tacloban, Leyte. In several decisions, though, the Court has laid down the rule that registration of a voter in a place other than his place of origin is not sufficient to constitute abandonment or loss of such residence (Faypon v. Quirino, 96 Phil. 294, 300). Respondent Commission offered no cogent reason to depart from this rule except to surmise petitioner's intent of abandoning her domicile of origin. It has been suggested that petitioner's domicile of origin was supplanted by a new domicile due to her marriage, a domicile by operation of law. The proposition is that upon the death of her husband in 1989 she retains her husband's domicile, i.e., Batac, Ilocos Norte, until she makes an actual change thereof. I find this proposition quite untenable. Tacloban, Leyte, is petitioner's domicile of origin which was involuntarily supplanted with another, i.e., Batac, Ilocos Norte, upon her marriage in 1954 with then Congressman Marcos. By legal fiction she followed the domicile of her husband. In my view, the reason 1 for the law is for the spouses to fully and effectively perform their marital duties and obligations to one another. The question of domicile, however, is not affected by the fact that it was the legal or moral duty of the individual to reside in a given place (28 C.J.S. 11). Thus, while the wife retains her marital domicile so long as the marriage subsists, she automatically loses it upon the latter's termination, for the reason behind the law then ceases. Otherwise, petitioner, after her marriage was ended by the death of her husband, would be placed in a quite absurd and unfair situation of having been freed from all wifely obligations yet made to hold on to one which no longer serves any meaningful purpose. It is my view therefore that petitioner reverted to her original domicile of Tacloban, Leyte upon her husband's death without even signifying her intention to that effect. It is for the private respondent to prove, not for petitioner to disprove, that petitioner has effectively abandoned Tacloban, Leyte for Batac, Ilocos Norte or for some other place/s. The clear rule is that it is the party (herein private respondent) claiming that a person has abandoned or lost his residence of origin who must show and prove preponderantly such abandonment or loss (Faypon v. Quirino, supra at 298; 28 C.J.S. 16), because the presumption is strongly in favor of an original or former domicile, as against an acquired one (28 C.J.S. 16). Private respondent unfortunately failed to discharge this burden as the record is devoid of convincing proof that petitioner has acquired whether voluntarily or involuntarily, a new domicile to replace her domicile of origin. The records, on the contrary, clearly show that petitioner has complied with the constitutional one-year residence requirement. After her exile abroad, she returned to the Philippines in 1991 to reside in Olot, Tolosa, Leyte, but the Presidential Commission on Good Government which sequestered her residential house and other properties forbade her necessitating her transient stay in various places in Manila (Affidavit p.6, attached as Annex I of the Petition). In 1992, she ran for the position of president writing in her certificate of candidacy her residence as San Juan, Metro Manila. After her loss therein, she went back to Tacloban City, acquired 2 her residence certificate and resided with her brother in San Jose. She resided in San Jose, Tacloban City until August of 1994 when 3 she was allowed by the PCGG to move and reside in her sequestered residential house in Olot, Tolosa, Leyte (Annex I, p. 6). It was in the same month of August when she applied for the cancellation of her previous registration in San Juan, Metro Manila in order to register anew as voter of Olot, Tolosa, Leyte, which she did on January 28, 1995. From this sequence of events, I find it quite

improper to use as the reckoning period of the one-year residence requirement the date when she applied for the cancellation of her previous registration in San Juan, Metro Manila. The fact which private respondent never bothered to disprove is that petitioner transferred her residence after the 1992 presidential election from San Juan, Metro Manila to San Jose, Tacloban City, and resided therein until August of 1994. She later transferred to Olot, Tolosa, Leyte (Annex I, p. 7). It appearing that both Tacloban City and Tolosa, Leyte are within the First Congressional District of Leyte, it indubitably stands that she had more than a year of residence in the constituency she sought to be elected. Petitioner, therefore, has satisfactorily complied with the one-year qualification required by the 1987 Constitution. I vote to grant the petition. ROMERO, J., separate opinion: Petitioner has appealed to this Court for relief after the COMELEC ruled that she was disqualified from running for Representative of her District and that, in the event that she should, nevertheless, muster a majority vote, her proclamation should be suspended. Not by a straightforward ruling did the COMELEC pronounce its decision as has been its unvarying practice in the past, but by a startling succession of "reverse somersaults." Indicative of its shifting stance vis-a-vis petitioner's certificate of candidacy were first, the action of its Second Division disqualifying her and canceling her original Certificate of Candidacy by a vote of 2-1 on April 24, 1995; then the denial by the COMELEC en banc of her Motion for Reconsideration on May 7, 1995, a day before the election; then because she persisted in running, its decision on May 11, 1995 or three days after the election, allowing her proclamation in the event that the results of the canvass should show that she obtained the highest number of votes (obviously noting that petitioner had won overwhelmingly over her opponent), but almost simultaneously reversing itself by directing that even if she wins, her proclamation should nonetheless be suspended. Crucial to the resolution of the disqualification issue presented by the case at bench is the interpretation to be given to the one-year 1 residency requirement imposed by the Constitution on aspirants for a Congressional seat. Bearing in mind that the term "resident" has been held to be synonymous with "domicile" for election purposes, it is important to determine whether petitioner's domicile was in the First District of Leyte and if so, whether she had resided there for at least a period of one year. Undisputed is her domicile of origin, Tacloban, where her parents lived at the time of her birth. Depending on what theory one adopts, the same may have been changed when she married Ferdinand E. Marcos, then domiciled in Batac, by operation of law. Assuming it did, his death certainly released her from the obligation to live with him at the residence fixed by him during his lifetime. What may confuse the layman at this point is the fact that the term "domicile" may refer to "domicile of origin," "domicile of choice," or "domicile by operation of law," which subject we shall not belabor since it has been amply discussed by theponente and in the other separate opinions. In any case, what assumes relevance is the divergence of legal opinion as to the effect of the husband's death on the domicile of the widow. Some scholars opine that the widow's domicile remains unchanged; that the deceased husband's wishes perforce still bind the wife he has left behind. Given this interpretation, the widow cannot possibly go far enough to sever the domiciliary tie imposed by her husband. It is bad enough to interpret the law as empowering the husband unilaterally to fix the residence or domicile of the family, as laid 2 down in the Civil Code, but to continue giving obeisance to his wishes even after the rationale underlying the mutual duty of the spouses to live together has ceased, is to close one's eyes to the stark realities of the present. At the other extreme is the position that the widow automatically reverts to her domicile of origin upon the demise of her husband. Does the law so abhor a vacuum that the widow has to be endowed somehow with a domicile? To answer this question which is far from rhetorical, one will have to keep in mind the basic principles of domicile. Everyone must have a domicile. Then one must have only a single domicile for the same purpose at any given time. Once established, a domicile remains until a new one is acquired, for no person lives who has no domicile, as defined by the law be is subject to. At this juncture, we are confronted with an unexplored legal terrain in this jurisdiction, rendered more murky by the conflicting opinions of foreign legal authorities. This being the state of things, it is imperative as it is opportune to illumine the darkness with the beacon light of truth, as dictated by experience and the necessity of according petitioner her right to choose her domicile in keeping with the enlightened global trend to recognize and protect the human rights of women, no less than men. Admittedly, the notion of placing women at par with men, insofar as civil, political and social rights are concerned, is a relatively recent phenomenon that took seed only in the middle of this century. It is a historical fact that for over three centuries, the

Philippines had been colonized by Spain, a conservative, Catholic country which transplanted to our shores the Old World cultures, mores and attitudes and values. Through the imposition on our government of the Spanish Civil Code in 1889, the people, both men and women, had no choice but to accept such concepts as the husband's being the head of the family and the wife's subordination to his authority. In such role, his was the right to make vital decisions for the family. Many instances come to mind, foremost being 3 what is related to the issue before us, namely, that "the husband shall fix the residence of the family." Because he is made 4 responsible for the support of the wife and the rest of the family, he is also empowered to be the administrator of the conjugal 5 property, with a few exceptions and may, therefore, dispose of the conjugal partnership property for the purposes specified under 6 7 the law; whereas, as a general rule, the wife cannot bind the conjugal partnership without the husband's consent. As regards the property pertaining to the children under parental authority, the father is the legal administrator and only in his absence may the 8 mother assume his powers. Demeaning to the wife's dignity are certain strictures on her personal freedoms, practically relegating her to the position of minors and disabled persons. To illustrate a few: The wife cannot, without the husband's consent, acquire any 9 gratuitous title, except from her ascendants, descendants, parents-in-law, and collateral relatives within the fourth degree. With respect to her employment, the husband wields a veto power in the case the wife exercises her profession or occupation or engages in business, provided his income is sufficient for the family, according to its social standing and his opposition is founded on serious 10 and valid grounds. Most offensive, if not repulsive, to the liberal-minded is the effective prohibition upon a widow to get married 11 till after three hundred days following the death of her husband, unless in the meantime, she has given birth to a child. The mother who contracts a subsequent marriage loses the parental authority over her children, unless the deceased husband, father of the latter, has expressly provided in his will that his widow might marry again, and has ordered that in such case she should keep and 12 exercise parental authority over their children. Again, an instance of a husband's overarching influence from beyond the grave. All these indignities and disabilities suffered by Filipino wives for hundreds of years evoked no protest from them until the concept of human rights and equality between and among nations and individuals found hospitable lodgment in the United Nations Charter of which the Philippines was one of the original signatories. By then, the Spanish "conquistadores" had been overthrown by the American forces at the turn of the century. The bedrock of the U.N. Charter was firmly anchored on this credo: "to reaffirm faith in the fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women." (Emphasis supplied) It took over thirty years before these egalitarian doctrines bore fruit, owing largely to the burgeoning of the feminist movement. What may be regarded as the international bill of rights for women was implanted in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) adopted by the U.N. General Assembly which entered into force as an international treaty on September 3, 1981. In ratifying the instrument, the Philippines bound itself to implement its liberating spirit and letter, for its Constitution, no less, declared that "The Philippines. . . adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, 13 freedom, cooperation, and amity with all nations." One such principle embodied in the CEDAW is granting to men and women "the same rights with regard to the law relating to the movement of persons and the freedom to choose their 14 residence and domicile." (Emphasis supplied). CEDAW's pro-women orientation which was not lost on Filipino women was reflected in the 1987 Constitution of the Philippines and 15 later, in the Family Code, both of which were speedily approved by the first lady President of the country, Corazon C. Aquino. Notable for its emphasis on the human rights of all individuals and its bias for equality between the sexes are the following 16 provisions: "The State values the dignity of every human person and guarantees full respect for human rights" and "The State 17 recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men." A major accomplishment of women in their quest for equality with men and the elimination of discriminatory provisions of law was the deletion in the Family Code of almost all of the unreasonable strictures on wives and the grant to them of personal rights equal 18 to that of their husbands. Specifically, the husband and wife are now giventhe right jointly to fix the family domicile; concomitant to the spouses' being jointly responsible for the support of the family is the right and duty of both spouses to manage the 19 20 household; the administration and the enjoyment of the community property shall belong to both spouses jointly; the father 21 and mother shall now jointly exercise legal guardianship over the property of their unemancipated common child and several others. Aware of the hiatus and continuing gaps in the law, insofar as women's rights are concerned, Congress passed a law popularly 22 known as "Women in Development and Nation Building Act" Among the rights given to married women evidencing their capacity to act in contracts equal to that of men are: (1) Women shall have the capacity to borrow and obtain loans and execute security and credit arrangements under the same conditions as men;

(2) Women shall have equal access to all government and private sector programs granting agricultural credit, loans and non material resources and shall enjoy equal treatment in agrarian reform and land resettlement programs; (3) Women shall have equal rights to act as incorporators and enter into insurance contracts; and (4) Married women shall have rights equal to those of married men in applying for passports, secure visas and other travel documents, without need to secure the consent of their spouses. As the world draws the curtain on the Fourth World Conference of Women in Beijing, let this Court now be the first to respond to its clarion call that "Women's Rights are Human Rights" and that "All obstacles to women's full participation in decision-making at all levels, including the family" should be removed. Having been herself a Member of the Philippine Delegation to the International Women's Year Conference in Mexico in 1975, this writer is only too keenly aware of the unremitting struggle being waged by women the world over, Filipino women not excluded, to be accepted as equals of men and to tear down the walls of discrimination that hold them back from their proper places under the sun. In light of the inexorable sweep of events, local and global, legislative, executive and judicial, according more rights to women hitherto denied them and eliminating whatever pockets of discrimination still exist in their civil, political and social life, can it still be insisted that widows are not at liberty to choose their domicile upon the death of their husbands but must retain the same, regardless? I submit that a widow, like the petitioner and others similarly situated, can no longer be bound by the domicile of the departed husband, if at all she was before. Neither does she automatically revert to her domicile of origin, but exercising free will, she may opt to reestablish her domicile of origin. In returning to Tacloban and subsequently, to Barangay Olot, Tolosa, both of which are located in the First District of Leyte, petitioner amply demonstrated by overt acts, her election of a domicile of choice, in this case, a reversion to her domicile of origin. Added together, the time when she set up her domicile in the two places sufficed to meet the one-year requirement to run as Representative of the First District of Leyte. In view of the foregoing expatiation, I vote to GRANT the petition. VITUG, J., separate opinion: The case at bench deals with explicit Constitutional mandates. The Constitution is not a pliable instrument. It is a bedrock in our legal system that sets up ideals and directions and render steady our strides hence. It only looks back so as to ensure that mistakes in the past are not repeated. A compliant transience of a constitution belittles its basic function and weakens its goals. A constitution may well become outdated by the realities of time. When it does, it must be changed but while it remains, we owe it respect and allegiance. Anarchy, open or subtle, has never been, nor must it ever be, the answer to perceived transitory needs, let alone societal attitudes, or the Constitution might lose its very essence. Constitutional provisions must be taken to be mandatory in character unless, either by express statement or by necessary implication, a different intention is manifest (see Marcelino vs. Cruz, 121 SCRA 51). The two provisions initially brought to focus are Section 6 and Section 17 of Article VI of the fundamental law. These provisions read: Sec. 6. No person shall be a Member of the House of Representatives unless he is a natural-born citizen of the Philippines and, on the day of the election, is at least twenty-five years of age, able to read and write, and, except the party-list representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately preceding the day of the election. Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman.

The Commission on Election (the "COMELEC") is constitutionally bound to enforce and administer "all laws and regulations relative to the conduct of election . . ." (Art. IX, C, Sec. 2, Constitution) that, there being nothing said to the contrary, should include its authority to pass upon the qualification and disqualification prescribed by law ofcandidates to an elective office. Indeed, preproclamation controversies are expressly placed under the COMELEC's jurisdiction to hear and resolve (Art. IX, C, Sec. 3, Constitution). The matter before us specifically calls for the observance of the constitutional one-year residency requirement. The issue (whether or not there is here such compliance), to my mind, is basically a question of fact or at least inextricably linked to such determination. The findings and judgment of the COMELEC, in accordance with the long established rule and subject only to a number of exceptions under the basic heading of "grave abuse of discretion," are not reviewable by this Court. I do not find much need to do a complex exercise on what seems to me to be a plain matter. Generally, the term "residence" has a broader connotation that may mean permanent (domicile), official (place where one's official duties may require him to stay) or temporary (the place where he sojourns during a considerable length of time). For civil law purposes, i.e., as regards the exercise of civil rights and the fulfillment of civil obligations, the domicile of a natural person is the place of his habitual residence (see Article 50, Civil Code). In election cases, the controlling rule is that heretofore announced by this Court in Romualdez vs. Regional Trial Court, Branch 7, Tacloban City (226 SCRA 408, 409); thus: In election cases, the Court treats domicile and residence as synonymous terms, thus: "(t)he term "residence" as used in the election law is synonymous with "domicile," which imports not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention." "Domicile" denotes a fixed permanent residence to which when absent for business or pleasure, or for like reasons, one intends to return. . . . . Residence thus acquired, however, may be lost by adopting another choice of domicile. In order, in turn, to acquire a new domicile by choice, there must concur (1) residence or bodily presence in the new locality, (2) an intention to remain there, and (3) an intention to abandon the old domicile. In other words, there must basically be animus manendi coupled with animus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of residence must be voluntary; and the residence at the place chosen for the new domicile must be actual. Using the above tests, I am not convinced that we can charge the COMELEC with having committed grave abuse of discretion in its assailed resolution. The COMELEC's jurisdiction, in the case of congressional elections, ends when the jurisdiction of the Electoral Tribunal concerned begins. It signifies that the protestee must have theretofore been duly proclaimed and has since become a "member" of the Senate or the House of Representatives. The question can be asked on whether or not the proclamation of a candidate is just a ministerial function of the Commission on Elections dictated solely on the number of votes cast in an election exercise. I believe, it is not. A ministerial duty is an obligation the performance of which, being adequately defined, does not allow the use of further judgment or discretion. The COMELEC, in its particular case, is tasked with the full responsibility of ascertaining all the facts and conditions such as may be required by law before a proclamation is properly done. The Court, on its part, should, in my view at least, refrain from any undue encroachment on the ultimate exercise of authority by the Electoral Tribunals on matters which, by no less than a constitutional fiat, are explicitly within their exclusive domain. The nagging question, if it were otherwise, would be the effect of the Court's peremptory pronouncement on the ability of the Electoral Tribunal to later come up with its own judgment in a contest "relating to the election, returns and qualification" of its members. Prescinding from all the foregoing, I should like to next touch base on the applicability to this case of Section 6 of Republic Act No. 6646, in relation to Section 72 of Batas Pambansa Blg. 881, each providing thusly: REPUBLIC ACT NO. 6646 xxx xxx xxx Sec. 6. Effect of Disqualification Case. Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or

protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. BATAS PAMBANSA BLG. 881 xxx xxx xxx Sec. 72. Effects of disqualification cases and priority. The Commission and the courts shall give priority to cases of disqualification by reason of violation of this Act to the end that a final decision shall be rendered not later than seven days before the election in which the disqualification is sought. Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. Nevertheless, if for any reason, a candidate is not declared by final, judgment before an election to be disqualified, and he is voted for and receives the winning number of votes in such election, his violation of the provisions of the preceding sections shall not prevent his proclamation and assumption to office. I realize that in considering the significance of the law, it may be preferable to look for not so much the specific instances they ostensibly would cover as the principle they clearly convey. Thus, I will not scoff at the argument that it should be sound to say that votes cast in favor of the disqualified candidate, whenever ultimately declared as such, should not be counted in his or her favor and must accordingly be considered to be stray votes. The argument, nevertheless, is far outweighed by the rationale of the now prevailing doctrine first enunciated in the case of Topacio vs. Paredes (23 Phil. 238 [1912]) which, although later abandoned in Ticzon vs. Comelec (103 SCRA 687 [1981]), and Santos vs. COMELEC (137 SCRA 740 [1985]), was restored, along with the interim case of Geronimo vs. Ramos (136 SCRA 435 [1985]), by the Labo (176 SCRA 1 (1989]), Abella (201 SCRA 253 [1991]), Labo (211 SCRA 297 [1992]) and, most recently, Benito (235 SCRA 436 [1994]) rulings. Benito vs.Comelec was a unanimous decision penned by Justice Kapunan and concurred in by Chief Justice Narvasa, Justices Feliciano, Padilla, Bidin, Regalado, Davide, Romero, Melo, Quiason, Puno, Vitug and Mendoza (Justices Cruz and Bellosillo were on official leave). For easy reference, let me quote from the first Labo decision: Finally, there is the question of whether or not the private respondent, who filed the quo warrantopetition, can replace the petitioner as mayor. He cannot. The simple reason is that as he obtained only the second highest number of votes in the election, he was obviously not the choice of the people of Baguio City. The latest ruling of the Court on this issue is Santos v. Commission on Elections, (137 SCRA 740) decided in 1985. In that case, the candidate who placed second was proclaimed elected after the votes for his winning rival, who was disqualified as a turncoat and considered a non-candidate, were all disregard as stray. In effect, the second placer won by default. That decision was supported by eight members of the Court then, (Cuevas, J., ponente, with Makasiar, Concepcion, Jr., Escolin, Relova, De la Fuente, Alampay and Aquino, JJ., concurring.) with three dissenting (Teehankee, Acting C.J., Abad Santos and Melencio-Herrera, JJ.) and another two reserving their vote. (Plana and Gutierrez, Jr., JJ.) One was on official leave. (Fernando, C.J.) Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the earlier case of Geronimo v. Ramos, (136 SCRA 435) which represents the more logical and democratic rule. That case, which reiterated the doctrine first announced in 1912 in Topacio v.Paredes, (23 Phil. 238) was supported by ten members of the Court, (Gutierrez, Jr., ponente, with Teehankee, Abad Santos, Melencio-Herrera, Plana, Escolin, Relova, De la Fuente, Cuevas and Alampay, JJ., concurring) without any dissent, although one reserved his vote, (Makasiar, J.) another took no part, (Aquino, J.) and two others were on leave. (Fernando, C.J. and Concepcion, Jr., J.) There the Court held: . . . it would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a constituency, the majority of which have positively declared through their ballots that they do not choose him. Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in the election for that office, and it is a fundamental idea in all republican forms of government that no one can be declared elected and no measure can be

declared carried unless he or it receives a majority or plurality of the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p. 676.) The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office. The votes cast for a dead, disqualified, or non-eligible person may not be valid to vote the winner into office or maintain him there. However, in the absence of a statute which clearly asserts a contrary political and legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was alive, qualified, or eligible, they should not be treated as stray, void or meaningless. (at pp. 20-21) Considering all the foregoing, I am constrained to vote for the dismissal of the petition. MENDOZA, J., separate opinion: In my view the issue in this case is whether the Commission on Elections has the power to disqualify candidates on the ground that they lack eligibility for the office to which they seek to be elected. I think that it has none and that the qualifications of candidates may be questioned only in the event they are elected, by filing a petition for quo warranto or an election protest in the appropriate forum, not necessarily in the COMELEC but, as in this case, in the House of Representatives Electoral Tribunal. That the parties in this case took part in the proceedings in the COMELEC is of no moment. Such proceedings were unauthorized and were not rendered valid by their agreement to submit their dispute to that body. The various election laws will be searched in vain for authorized proceedings for determining a candidate's qualifications for an office before his election. There are none in the Omnibus Election Code (B.P. Blg. 881), in the Electoral Reforms Law of 1987 (R.A. No. 6646), or in the law providing for synchronized elections (R.A. No. 7166). There are, in other words, no provisions for preproclamation contests but only election protests or quo warrantoproceedings against winning candidates. To be sure, there are provisions denominated for "disqualification," but they are not concerned with a declaration of the ineligibility of a candidate. These provisions are concerned with the incapacity (due to insanity, incompetence or conviction of an offense) of a person either to be a candidate or to continue as a candidate for public office. There is also a provision for the denial or cancellation of certificates of candidacy, but it applies only to cases involving false representations as to certain matters required by law to be stated in the certificates. These provisions are found in the following parts of the Omnibus Election Code: 12. Disqualifications. Any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he has been sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon or granted amnesty. The disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by competent authority that said insanity or incompetence had been removed or after the expiration of a period of five years from his service of sentence, unless within the same period he again becomes disqualified. (Emphasis added) 68. Disqualifications. Any candidate who, in an action or protest in which he is a party is declared by final decision of a competent court guilty of, or found by the Commission of having (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws. (Emphasis added)

 78. Petition to deny due course to or cancel a certificate of candidacy. A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election. (Emphasis added) the Electoral Reforms Law of 1987 (R.A. No. 6646): 6. Effect of Disqualification Case. Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and; upon motion for the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. (Emphasis added). 7. Petition to Deny Due Course to or Cancel a Certificate of Candidacy. The procedure hereinabove provided shall apply to petitions to deny due course to or cancel a certificate of candidacy as provided in Section 78 of Batas Pambansa Blg. 881. and the Local Government Code of 1991 (R.A. No. 7160): 40. Disqualifications. The following persons are disqualified from running for any elective local position: (a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence; (b) Those removed from office as a result of on administrative case; (c) Those convicted by final judgment for violating the oath of allegiance to the Republic; (d) Those with dual citizenship; (e) Fugitive from justice in criminal or nonpolitical cases here or abroad; (f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code; and (g) The insane or feeble-minded. The petition filed by private respondent Cirilo Roy Montejo in the COMELEC, while entitled "For Cancellation and Disqualification," contained no allegation that private respondent Imelda Romualdez-Marcos made material representations in her certificate of candidacy which were false, it sought her disqualification on the ground that "on the basis of her Voter Registration Record and Certificate of Candidacy, [she] is disqualified from running for the position of Representative, considering that on election day, May 8, 1995, [she] would have resided less than ten (10) months in the district where she is seeking to be elected." For its part, the COMELEC's Second Division, in its resolution of April 24, 1995, cancelled her certificate of candidacy and corrected certificate of candidacy on the basis of its finding that petitioner is "not qualified to run for the position of Member of the House of Representatives for the First Legislative District of Leyte" and not because of any finding that she had made false representations as to material matters in her certificate of candidacy. Montejo's petition before the COMELEC was therefore not a petition for cancellation of certificate of candidacy under 78 of the Omnibus Election Code, but essentially a petition to declare private respondent ineligible. It is important to note this, because, as will presently be explained, proceedings under 78 have for their purpose to disqualify a person from being a candidate, whereas quo warranto proceedings have for their purpose to disqualify a person from holding public office. Jurisdiction over quo warranto proceedings involving members of the House of Representatives is vested in the Electoral Tribunal of that body.

Indeed, in the only cases in which this Court dealt with petitions for the cancellation of certificates of candidacy, the allegations were that the respondent candidates had made false representations in their certificates of candidacy with regard to 1 2 3 their citizenship, age, or residence. But in the generality of cases in which this Court passed upon the qualifications of 4 5 respondents for office, this Court did so in the context of election protests or quo warranto proceedings filed after the proclamation of the respondents or protestees as winners. Three reasons may be cited to explain the absence of an authorized proceeding for determining before electionthe qualifications of a candidate. First is the fact that unless a candidate wins and is proclaimed elected, there is no necessity for determining his eligibility for the office. In contrast, whether an individual should be disqualified as a candidate for acts constituting election offenses (e.g., vote buying, over spending, commission of prohibited acts) is a prejudicial question which should be determined lest he wins because of the very acts for which his disqualification is being sought. That is why it is provided that if the grounds for disqualification are established, a candidate will not be voted for; if he has been voted for, the votes in his favor will not be counted; and if for some 6 reason he has been voted for and he has won, either he will not be proclaimed or his proclamation will be set aside. Second is the fact that the determination of a candidate's eligibility, e.g., his citizenship or, as in this case, his domicile, may take a long time to make, extending beyond the beginning of the term of the office. This is amply demonstrated in the companion case (G.R. No. 120265, Agapito A. Aquino v. COMELEC) where the determination of Aquino's residence was still pending in the COMELEC even after the elections of May 8, 1995. This is contrary to the summary character of proceedings relating to certificates of 7 candidacy. That is why the law makes the receipt of certificates of candidacy a ministerial duty of the COMELEC and its officers. The law is satisfied if candidates state in their certificates of candidacy that they are eligible for the position which they seek to fill, leaving the determination of their qualifications to be made after the election and only in the event they are elected. Only in cases involving charges of false representations made in certificates of candidacy is the COMELEC given jurisdiction. Third is the policy underlying the prohibition against pre-proclamation cases in elections for President, Vice President, Senators and members of the House of Representatives. (R.A. No. 7166, 15) The purpose is to preserve the prerogatives of the House of Representatives Electoral Tribunal and the other Tribunals as "sole judges" under the Constitution of the election, returns and qualifications of members of Congress or of the President and Vice President, as the case may be. By providing in 253 for the remedy of quo warranto for determining an elected official's qualifications after the results of elections are proclaimed, while being conspicuously silent about a pre-proclamation remedy based on the same ground, the Omnibus Election Code, or OEC, by its silence underscores the policy of not authorizing any inquiry into the qualifications of candidates unless they have been elected. Apparently realizing the lack of an authorized proceeding for declaring the ineligibility of candidates, the COMELEC amended its rules on February 15, 1993 so as to provide in Rule 25, 1 the following: Grounds for disqualification. Any candidate who does not possess all the qualifications of a candidate as provided for by the Constitution or by existing law or who commits any act declared by law to be grounds for disqualification may be disqualified from continuing as a candidate. The lack of provision for declaring the ineligibility of candidates, however, cannot be supplied by a mere rule. Such an act is equivalent to the creation of a cause of action which is a substantive matter which the COMELEC, in the exercise of its rulemaking power under Art. IX, A, 6 of the Constitution, cannot do. It is noteworthy that the Constitution withholds from the COMELEC even the power to decide cases involving the right to vote, which essentially involves an inquiry into qualifications based on age, residence and citizenship of voters. (Art. IX, C, 2(3)) The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into grounds for disqualification is contrary to the evident intention of the law. For not only in their grounds but also in their consequences are proceedings for "disqualification" different from those for a declaration of "ineligibility." "Disqualification" proceedings, as already stated, are based on grounds specified in 12 and 68 of the Omnibus Election Code and in 40 of the Local Government Code and are for the purpose of barring an individual from becoming a candidate or from continuing as a candidate for public office. In a word, their purpose is to eliminate a candidate from the race either from the start or during its progress. "Ineligibility," on the other hand, refers to the lack of the qualifications prescribed in the Constitution or the statutes for holding public office and the purpose of the proceedings for declaration of ineligibility is to remove the incumbent from office.

Consequently, that an individual possesses the qualifications for a public office does not imply that he is not disqualified from becoming a candidate or continuing as a candidate for a public office and vice versa. We have this sort of dichotomy in our Naturalization Law. (C.A. No. 473) That an alien has the qualifications prescribed in 2 of the law does not imply that he does not suffer from any of disqualifications provided in 4. Indeed, provisions for disqualifications on the ground that the candidate is guilty of prohibited election practices or offenses, like other pre-proclamation remedies, are aimed at the detestable practice of "grabbing the proclamation and prolonging the election 8 protest," through the use of "manufactured" election returns or resort to other trickery for the purpose of altering the results of the election. This rationale does not apply to cases for determining a candidate's qualifications for office before the election. To the contrary, it is the candidate against whom a proceeding for disqualification is brought who could be prejudiced because he could be prevented from assuming office even though in end he prevails. To summarize, the declaration of ineligibility of a candidate may only be sought in an election protest or action forquo warranto filed pursuant to 253 of the Omnibus Election Code within 10 days after his proclamation. With respect to elective local officials (e.g., Governor, Vice Governor, members of the Sangguniang Panlalawigan, etc.) such petition must be filed either with the COMELEC, the Regional Trial Courts, or Municipal Trial Courts, as provided in Art. IX, C, 2(2) of the Constitution. In the case of the President and Vice President, the petition must be filed with the Presidential Electoral Tribunal (Art. VII, 4, last paragraph), and in the case of the Senators, with the Senate Electoral Tribunal, and in the case of Congressmen, with the House of Representatives Electoral Tribunal. (Art. VI, 17) There is greater reason for not allowing before the election the filing of disqualification proceedings based on alleged ineligibility in the case of candidates for President, Vice President, Senators and members of the House of Representatives, because of the same policy prohibiting the filing of pre-proclamation cases against such candidates. For these reasons, I am of the opinion that the COMELEC had no jurisdiction over SPA No. 95-009; that its proceedings in that case, including its questioned orders, are void; and that the eligibility of petitioner Imelda Romualdez-Marcos for the office of Representative of the First District of Leyte may only be inquired into by the HRET. Accordingly, I vote to grant the petition and to annul the proceedings of the Commission on Elections in SPA No. 95-009, including its questioned orders doted April 24, 1995, May 7, 1995, May 11, 1995 and May 25, 1995, declaring petitioner Imelda RomualdezMarcos ineligible and ordering her proclamation as Representative of the First District of Leyte suspended. To the extent that Rule 25 of the COMELEC Rules of Procedure authorizes proceedings for the disqualification of candidates on the ground of ineligibility for the office, it should considered void. The provincial board of canvassers should now proceed with the proclamation of petitioner. Narvasa, C.J., concurs. PADILLA, J., dissenting: I regret that I cannot join the majority opinion as expressed in the well-written ponencia of Mr. Justice Kapunan. As in any controversy arising out of a Constitutional provision, the inquiry must begin and end with the provision itself. The controversy should not be blurred by what, to me, are academic disquisitions. In this particular controversy, the Constitutional provision on point states that "no person shall be a member of the House of Representatives unless he is a natural-born citizen of the Philippines, and on the day of the election, is at least twenty-five (25) years of age, able to read and write, and except the party list representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately preceding the day of the election." (Article VI, section 6) It has been argued that for purposes of our election laws, the term residence has been understood as synonymous with domicile. 1 This argument has been validated by no less than the Court in numerous cases where significantly the factual circumstances clearly and convincingly proved that a person does not effectively lose his domicile of origin if the intention to reside therein is manifest with his personal presence in the place,coupled with conduct indicative of such intention. With this basic thesis in mind, it would not be difficult to conceive of different modalities within which the phrase "a resident thereof (meaning, the legislative district) for a period of not less than one year" would fit. The first instance is where a person's residence and domicile coincide in which case a person only has to prove that he has been domiciled in a permanent location for not less than a year before the election.

A second situation is where a person maintains a residence apart from his domicile in which case he would have the luxury of district shopping, provided of course, he satisfies the one-year residence period in the district as the minimum period for eligibility to the position of congressional representative for the district. In either case, one would not be constitutionally disqualified for abandoning his residence in order to return to his domicile of origin, or better still, domicile of choice; neither would one be disqualified for abandoning altogether his domicile in favor of his residence in the district where he desires to be a candidate. The most extreme circumstance would be a situation wherein a person maintains several residences in different districts. Since his domicile of origin continues as an option as long as there is no effective abandonment (animus non revertendi), he can practically choose the district most advantageous for him. All these theoretical scenarios, however, are tempered by the unambiguous limitation that "for a period of not less than one year immediately preceding the day of the election", he must be a resident in the district where he desires to be elected. To my mind, the one year residence period is crucial regardless of whether or not the term "residence" is to be synonymous with "domicile." In other words, the candidate's intent and actual presence in one district must in allsituations satisfy the length of time prescribed by the fundamental law. And this, because of a definite Constitutional purpose. He must be familiar with the environment and problems of a district he intends to represent in Congress and the one-year residence in said district would be the minimum period to acquire such familiarity, if not versatility. In the case of petitioner Imelda R. Marcos, the operative facts are distinctly set out in the now assailed decision of the Comelec 2nd Division dated 24 April 1995 (as affirmed by the Comelec en banc) In or about 1938 when respondent was a little over 8 years old, she established her domicile in Tacloban, Leyte (Tacloban City). She studied in the Holy Infant Academy in Tacloban from 1938 to 1948 when she graduated from high school. She pursued her college studies in St. Paul's College, now Divine Word University of Tacloban, where she earned her degree in Education. Thereafter, she taught in the Leyte Chinese High School, still in Tacloban City. In 1952 she went to Manila to work with her cousin, the late Speaker Daniel Z. Romualdez in his office in the House of Representatives. In 1954, she married ex-president Ferdinand Marcos when he was still a congressman of Ilocos Norte. She lived with him in Batac, Ilocos Norte and registered there as a voter. When her husband was elected Senator of the Republic in 1959, she and her husband lived together in San Juan, Rizal where she registered as a voter. In 1965 when her husband was elected President of the Republic of the Philippines, she lived with him in Malacanang Palace and registered as a voter in San Miguel, Manila. During the Marcos presidency, respondent served as a Member of the Batasang Pambansa, Minister of Human Settlements and Governor of Metro Manila. She claimed that in February 1986, she and her family were abducted and kidnapped to Honolulu, Hawaii. In November 1991, she came home to Manila. In 1992 respondent ran for election as President of the Philippines and filed her Certificate of Candidacy wherein she indicated that she is a resident and registered voter of San Juan, Metro Manila. On August 24, 1994, respondent filed a letter with the election officer of San Juan, Metro Manila, requesting for cancellation of her registration in the Permanent List of Voters in Precinct No. 157 of San Juan, Metro Manila, in order that she may be re-registered or transferred to Brgy. Olot, Tolosa, Leyte. (Annex 2-B, Answer). On August 31, 1994, respondent filed her Sworn Application for Cancellation of Voter's Previous Registration (Annex 2-C, Answer) stating that she is a duly registered voter in 157A, Brgy. Maytunas, San Juan, Metro that she intends to register at Brgy. Olot, Tolosa, Leyte. On January 28, 1995 respondent registered as a voter at Precinct No. 18-A of Olot, Tolosa, Leyte. She filed with the Board of Election Inspectors CE Form No. 1, Voter Registration Record No. 94-3349772, wherein she alleged that she has resided in the municipality of Tolosa for a period of 6 months (Annex A, Petition). On March 8, 1995, respondent filed with the Office of the Provincial Election Supervisor, Leyte, a Certificate of Candidacy for the position of Representative of the First District of Leyte wherein she also alleged that she has been a resident in the constituency where she seeks to be elected for a period of 7 months. The pertinent entries therein are as follows: 7. PROFESSION OR OCCUPATION: House-wife/ Teacher/ Social Worker

8. RESIDENCE (complete address): Brgy. Olot, Tolosa, Leyte Post Office Address for election purposes: Brgy. Olot, Tolosa, Leyte 9. RESIDENCE IN THE CONSTITUENCY WHEREIN I SEEK TO BE ELECTED IMMEDIATELY PRECEDING ELECTION: ________ Years Seven Months 10. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A FOREIGN COUNTRY. THAT I AM ELIGIBLE for said office; That I will support and defend the Constitution of the Republic of the Philippines and will maintain true faith and allegiance thereto; That I will obey the laws, legal orders and decrees promulgated by the duly-constituted authorities; That the obligation imposed by my oath is assumed voluntarily, without mental reservation or purpose of evasion; and That the facts stated herein are true to the best of my knowledge. (Sgd.) Imelda Romualdez-Marcos 2 (Signature of Candidate) Petitioner's aforestated certificate of candidacy filed on 8 March 1995 contains the decisive component or seed of her disqualification. It is contained in her answer under oath of "seven months" to the query of "residence in the constituency wherein I seek to be elected immediately preceding the election." It follows from all the above that the Comelec committed no grave abuse of discretion in holding that petitioner is disqualified from the position of representative for the 1st congressional district of Leyte in the elections of 8 May 1995, for failure to meet the "not less than one-year residence in the constituency (1st district, Leyte) immediately preceding the day of election (8 May 1995)." Having arrived at petitioner's disqualification to be a representative of the first district of Leyte, the next important issue to resolve is whether or not the Comelec can order the Board of Canvassers to determine and proclaim the winner out of the remaining qualified candidates for representative in said district. I am not unaware of the pronouncement made by this Court in the case of Labo vs. Comelec, G.R. 86564, August 1, 1989, 176 SCRA 1 which gave the rationale as laid down in the early 1912 case of Topacio vs. Paredes, 23 Phil. 238 that: . . . . Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in the election for that office, and it is a fundamental idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p. 676) The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office. The votes cast for a dead, disqualified, or non-eligible person may not be valid to vote the winner into office or maintain him there. However, in the absence of a statute which clearly asserts a contrary political and legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was alive, qualified, or eligible, they should not be treated as stray, void or meaningless. Under Sec. 6 RA 6646, (An Act Introducing Additional Reforms in the Electoral System and for other purposes) (84 O.G. 905, 22 February 1988) it is provided that: . . . Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may, during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong.

There is no need to indulge in legal hermeneutics to sense the plain and unambiguous meaning of the provision quoted above. As the law now stands, the legislative policy does not limit its concern with the effect of a final judgement of disqualification only before the election, but even during or after the election. The law is clear that in all situations, the votes cast for a disqualified candidate SHALL NOT BE COUNTED. The law has also validated the jurisdiction of the Court or Commission on Election to continue hearing the petition for disqualification in case a candidate is voted for and receives the highest number of votes, if for any reason, he is not declared by final judgment before an election to be disqualified. Since the present case is an after election scenario, the power to suspend proclamation (when evidence of his guilt is strong) is also explicit under the law. What happens then when after the elections are over, one is declared disqualified? Then, votes cast for him "shall not be counted" and in legal contemplation, he no longer received the highest number of votes. It stands to reason that Section 6 of RA 6646 does not make the second placer the winner simply because a "winning candidate is disqualified," but that the law considers him as the candidate who had obtained the highest number of votes as a result of the votes cast for the disqualified candidate not being counted or considered. As this law clearly reflects the legislative policy on the matter, then there is no reason why this Court should not re-examine and consequently abandon the doctrine in the Jun Labo case. It has been stated that "the qualifications prescribed for elective office cannot be erased by the electorate alone. The will of the people as expressed through the ballot cannot cure the vice of ineligibility" most especially when it is mandated by no less than the Constitution. ACCORDINGLY, I vote to DISMISS the petition and to order the Provincial Board of Canvassers of Leyte to proclaim the candidate receiving the highest number of votes, from among the qualified candidates, as the duly elected representative of the 1st district of Leyte. Hermosisima, Jr. J., dissent. REGALADO, J., dissenting: While I agree with same of the factual bases of the majority opinion, I cannot arrive conjointly at the same conclusion drawn therefrom Hence, this dissent which assuredly is not formulated "on the basis of the personality of a petitioner in a case." I go along with the majority in their narration of antecedent facts, insofar as the same are pertinent to this case, and which I have simplified as follows: 1. Petitioner, although born in Manila, resided during her childhood in the present Tacloban City, she being a legitimate daughter of parents who appear to have taken up permanent residence therein. She also went to school there and, for a time, taught in one of the schools in that city. 2. When she married then Rep. Ferdinand E. Marcos who was then domiciled in Batac, Ilocos Norte, by operation of law she acquired a new domicile in that place in 1954. 3. In the successive years and during the events that happened thereafter, her husband having been elected as a Senator and then as President, she lived with him and their family in San Juan, Rizal and then in Malacanang Palace in San Miguel, Manila. 4. Over those years, she registered as a voter and actually voted in Batac, Ilocos Norte, then in San Juan, Rizal, and also in San Miguel, Manila, all these merely in the exercise of the right of suffrage. 5. It does not appear that her husband, even after he had assumed those lofty positions successively, ever abandoned his domicile of origin in Batac, Ilocos Norte where he maintained his residence and invariably voted in all elections. 6. After the ouster of her husband from the presidency in 1986 and the sojourn of the Marcos family in Honolulu, Hawaii, U.S.A., she eventually returned to the Philippines in 1991 and resided in different places which she claimed to have been merely temporary residences.

7. In 1992, petitioner ran for election as President of the Philippines and in her certificate of candidacy she indicated that she was then a registered voter and resident of San Juan, Metro Manila. 8. On August 24, 1994, she filed a letter for the cancellation of her registration in the Permanent List of Voters in Precinct No. 157 of San Juan, Metro Manila in order that she may "be re-registered or transferred to Brgy. Olot, Tolosa, Leyte." On August 31, 1994, she followed this up with her Sworn Application for Cancellation of Voter's Previous Registration wherein she stated that she was a registered voter in Precinct No. 157-A, Brgy. Maytunas, San Juan, Metro Manila and that she intended to register in Brgy. Olot, Tolosa, Leyte. 9. On January 28, 1995, petitioner registered as a voter at Precinct No. 18-A of Olot, Tolosa, Leyte, for which purpose she filed with the therein Board of Election Inspectors a voter's registration record form alleging that she had resided in that municipality for six months. 10. On March 8, 1995, petitioner filed her certificate of candidacy for the position of Representative of the First District of Leyte wherein she alleged that she had been a resident for "Seven Months" of the constituency where she sought to be elected. 11. On March 29, 1995, she filed an "Amended/Corrected Certificate of Candidacy" wherein her answer in the original certificate of candidacy to item "8. RESIDENCE IN THE CONSTITUENCY WHERE I SEEK, TO BE ELECTED IMMEDIATELY PRECEDING THE ELECTION:" was changed or replaced with a new entry reading "SINCE CHILDHOOD." The sole issue for resolution is whether, for purposes of her candidacy, petitioner had complied with the residency requirement of one year as mandated by no less than Section 6, Article VI of the 1987 Constitution. I do not intend to impose upon the time of my colleagues with a dissertation on the difference between residence and domicile. We have had enough of that and I understand that for purposes of political law and, for that matter of international law, residence is understood to be synonymous with domicile. That is so understood in our jurisprudence and in American Law, in contradistinction to the concept of residence for purposes of civil, commercial and procedural laws whenever an issue thereon is relevant or controlling. Consequently, since in the present case the question of petitioner's residence is integrated in and inseparable from her domicile, I am addressing the issue from the standpoint of the concept of the latter term, specifically its permutations into the domicile of origin, domicile of choice and domicile by operation of law, as understood in American law from which for this case we have taken our jurisprudential bearings. My readings inform me that the domicile of the parents at the time of birth, or what is termed the "domicile of origin," constitutes 1 the domicile of an infant until abandoned, or until the acquisition of a new domicile in a different place. In the instant case, we may 2 grant that petitioner's domicile of origin, at least as of 1938, was what is now Tacloban City. Now, as I have observed earlier, domicile is said to be of three kinds, that is, domicile by birth, domicile by choice, and domicile by operation of law. The first is the common case of the place of birth or domicilium originis, the second is that which is voluntarily 3 acquired by a party or domicilium propio motu; the last which is consequential, as that of a wife arising from marriage, is sometimes called domicilium necesarium. There is no debate that the domicile of origin can be lost or replaced by a domicile of choice or a domicile by operation of law subsequently acquired by the party. When petitioner contracted marriage in 1954 with then Rep. Marcos, by operation of law, not only international or American but of 4 our own enactment, she acquired her husband's domicile of origin in Batac, Ilocos Norte and correspondingly lost her own domicile of origin in Tacloban City. Her subsequent changes of residence to San Juan, Rizal, then to San Miguel, Manila, thereafter to Honolulu, Hawaii, and back to now San Juan, Metro Manila do not appear to have resulted in her thereby acquiring new domiciles of choice. In fact, it appears that her having resided in those places was by reason of the fortunes or misfortunes of her husband and his peregrinations in the assumption of new official positions or the loss of them. Her residence in Honolulu and, of course, those after her return to the Philippines were, as she claimed, against her will or only for transient purposes which could not have invested them with the status 5 of domiciles of choice.

After petitioner's return to the Philippines in 1991 and up to the present imbroglio over her requisite residency in Tacloban City or Olot, Tolosa, Leyte, there is no showing that she ever attempted to acquire any other domicile of choice which could have resulted 6 in the abandonment of her legal domicile in Batac, Ilocos Norte. On that score, we note the majority's own submission that, to successfully effect a change of domicile, one must demonstrate (a) an actual removal or an actual change of domicile, (b) a bona fide intention of abandoning the former place of residence and establishing a new one, and (c) acts which correspond with the purpose. We consequently have to also note that these requirements for the acquisition of a domicile of choice apply whether what is sought to be changed or substituted is a domicile of origin (domicilium originis) or a domicile by operation of law (domicilium necesarium). Since petitioner had lost her domicilium originis which had been replaced by her domicilium necesarium, it is therefore her continuing domicile in Batac, Ilocos Norte which, if at all, can be the object of legal change under the contingencies of the case at bar. To get out of this quandary, the majority decision echoes the dissenting opinion of Commissioner Regalado E. Maambong in SPA 957 009 of the Commission on Elections, and advances this novel proposition. It may be said that petitioner lost her domicile of origin by operation of law as a result of her marriage to the late President Ferdinand E. Marcos in 1952 (sic, 1954). By operation of law (domicilium necesarium), her legal domicile at the time of her marriage became Batac, Ilocos Norte although there were no indications of an intention on her part to abandon her domicile of origin. Because of her husband's subsequent death and through the operation of the provisions of the New Family Code already in force at the time, however, her legal domicile automatically reverted to her domicile of origin. . . . (Emphasis supplied). Firstly, I am puzzled why although it is conceded that petitioner had acquired a domicilium necesarium in Batac, Ilocos Norte, the majority insists on making a qualification that she did not intend to abandon her domicile of origin. I find this bewildering since, in this situation, it is the law that declares where petitioner's domicile is at any given time, and not her self-serving or putative intent to hold on to her former domicile. Otherwise, contrary to their own admission that one cannot have more than one domicile at a 8 time, the majority would be suggesting that petitioner retained Tacloban City as (for lack of a term in law since it does not exist therein) the equivalent of what is fancied as a reserved, dormant, potential, or residual domicile. Secondly, domicile once lost in accordance with law can only be recovered likewise in accordance with law. However, we are here being titillated with the possibility of an automatic reversion to or reacquisition of a domicile of origin after the termination of the cause for its loss by operation of law. The majority agrees that since petitioner lost her domicile of origin by her marriage, the termination of the marriage also terminates that effect thereof. I am impressed by the ingeniousness of this theory which proves that, indeed, necessity is the mother of inventions. Regretfully, I find some difficulty in accepting either the logic or the validity of this argument. If a party loses his domicile of origin by obtaining a new domicile of choice, he thereby voluntarily abandons the former in favor of the latter. If, thereafter, he abandons that chosen domicile, he does not per se recover his original domicile unless, by subsequent acts legally indicative thereof, he evinces his intent and desire to establish the same as his new domicile, which is precisely what petitioner belatedly and, evidently just for purposes of her candidacy, unsuccessfully tried to do. One's subsequent abandonment of his domicile of choice cannot automatically restore his domicile of origin, not only because there is no legal authority therefor but because it would be absurd Pursued to its logical consequence, that theory of ipso jure reversion would rule out the fact that said party could already very well have obtained another domicile, either of choice or by operation of law, other than his domicile of origin. Significantly and obviously for this reason, the Family Code, which the majority inexplicably invokes, advisedly does not regulate this contingency since it would impinge on one's freedom of choice. Now, in the instant case, petitioner not only voluntarily abandoned her domicile of choice (unless we assume that she entered into the marital state against her will) but, on top of that, such abandonment was further affirmed through her acquisition of a new domicile by operation of law. In fact, this is even a case of both voluntary andlegal abandonment of a domicile of origin. With much more reason, therefore, should we reject the proposition that with the termination of her marriage in 1989, petitioner had supposedly per se and ipso facto reacquired her domicile of origin which she lost in 1954. Otherwise, this would be tantamount to saying that during the period of marital coverture, she was simultaneously in possession and enjoyment of a domicile of origin which was only in a state of suspended animation.

Thus, the American rule is likewise to the effect that while after the husband's death the wife has the right to elect her own 9 10 domicile, she nevertheless retains the last domicile of her deceased husband until she makes an actual change. In the absence of affirmative evidence, to the contrary, the presumption is that a wife's domicile or legal residence follows that of her husband and 11 will continue after his death. I cannot appreciate the premises advanced in support of the majority's theory based on Articles 68 and 69 of the Family Code. All that is of any relevance therein is that under this new code, the right and power to fix the family domicile is now shared by the spouses. I cannot perceive how that joint right, which in the first place was never exercised by the spouses, could affect the domicile fixed by the law for petitioner in 1954 and, for her husband, long prior thereto. It is true that a wife now has the coordinate power to determine the conjugal or family domicile, but that has no bearing on this case. With the death of her husband, and each of her children having gotten married and established their own respective domiciles, the exercise of that joint power was and is no longer called for or material in the present factual setting of this controversy. Instead, what is of concern in petitioner's case was the matter of her having acquired or not her own domicile of choice. I agree with the majority's discourse on the virtues of the growing and expanded participation of women in the affairs of the nation, with equal rights and recognition by Constitution and statutory conferment. However, I have searched in vain for a specific law or judicial pronouncement which either expressly or by necessary implication supports the majority's desired theory of automatic reacquisition of or reversion to the domicilium originis of petitioner. Definitely, as between the settled and desirable legal norms that should govern this issue, there is a world of difference; and, unquestionably, this should be resolved by legislative articulation but not by the eloquence of the well-turned phrase. In sum, petitioner having lost Tacloban City as her domicile of origin since 1954 and not having automatically reacquired any domicile therein, she cannot legally claim that her residency in the political constituency of which it is a part continued since her birth up to the present. Respondent commission was, therefore, correct in rejecting her pretension to that effect in her amended/corrected certificate of candidacy, and in holding her to her admission in the original certificate that she had actually resided in that constituency for only seven months prior to the election. These considerations render it unnecessary to further pass upon the procedural issues raised by petitioner. ON THE FOREGOING PREMISES, I vote to DISMISS the petition for lack of merit. DAVIDE, JR., J., dissenting: I respectfully dissent from the opinion of the majority written by Mr. Justice Santiago M. Kapunan, more particularly on the issue of the petitioner's qualification. Under Section 7, Subdivision A, Article IX of the Constitution, decisions, orders, or rulings of the COMELEC may be brought to this Court only by the special civil action for certiorari under Rule 65 of the Rules of Court (Aratuc vs. COMELEC, 88 SCRA 251 [1979]; Dario vs. Mison, 176 SCRA 84 [1989]). Accordingly, a writ of certiorari may be granted only if the COMELEC has acted without or in excess of jurisdiction or with grave abuse of discretion (Section 1, Rule 65, Rules of Court). Since the COMELEC has, undoubtedly, jurisdiction over the private respondent's petition, the only issue left is whether it acted with grave abuse of discretion in disqualifying the petitioner. My careful and meticulous perusal of the challenged resolution of 24 April 1995 of the COMELEC Second Division and the En Banc resolution of 7 May 1995 discloses total absence of abuse of discretion, much less grave abuse thereof. The resolution of the Second Division dispassionately and objectively discussed in minute details the facts which established beyond cavil that herein petitioner was disqualified as a candidate on the ground of lack of residence in the First Congressional District of Leyte. It has not misapplied, miscomprehended, or misunderstood facts or circumstances of substance pertinent to the issue of her residence. The majority opinion, however, overturned the COMELEC's findings of fact for lack of proof that the petitioner has abandoned Tolosa as her domicile of origin, which is allegedly within the First Congressional District of Leyte. I respectfully submit that the petitioner herself has provided the COMELEC, either by admission or by documentary evidence, overwhelming proof of the loss or abandonment of her domicile of origin, which is Tacloban City and not Tolosa, Leyte. Assuming that she decided to live again in her domicile of origin, that became her second domicile of choice, where her stay, unfortunately, was for only seven months before the day of the election. She was then disqualified to be a candidate for the position of Representative of the First Congressional District of Leyte. A holding to the contrary would be arbitrary.

It may indeed be conceded that the petitioner's domicile of choice was either Tacloban City or Tolosa, Leyte. Nevertheless, she lost it by operation of law sometime in May 1954 upon her marriage to the then Congressman (later, President) Ferdinand E. Marcos. A domicile by operation of law is that domicile which the law attributes to a person, independently of his own intention or actual residence, as results from legal domestic relations as that of the wife arising from marriage (28 C.J.S. Domicile 7, 11). Under the governing law then, Article 110 of the Civil Code, her new domicile or her domicile of choice was the domicile of her husband, which was Batac, Ilocos Norte. Said Article reads as follows: Art. 110. The husband shall fix the residence of the family. But the court may exempt the wife from living with the husband if he should live abroad unless in the service of the Republic. Commenting thereon, civilist Arturo M. Tolentino states: Although the duty of the spouses to live together is mutual, the husband has a predominant right because he is empowered by law to fix the family residence. This right even predominates over some rights recognized by law in the wife. For instance, under article 117 the wife may engage in business or practice a profession or occupation. But because of the power of the husband to fix the family domicile he may fix it at such a place as would make it impossible for the wife to continue in business or in her profession. For justifiable reasons, however, the wife may be exempted from living in the residence chosen by the husband. The husband cannot validly allege desertion by the wife who refuses to follow him to a new place of residence, when it appears that they have lived for years in a suitable home belonging to the wife, and that his choice of a different home is not made in good faith. (Commentaries and Jurisprudence on the Civil Code of the Philippines, vol. 1, 1985 ed., 339). Under common law, a woman upon her marriage loses her own domicile and, by operation of law, acquires that of her husband, no matter where the wife actually lives or what she believes or intends. Her domicile is fixed in the sense that it is declared to be the same as his, and subject to certain limitations, he can change her domicile by changing his own (25 Am Jur 2d Domicile 48, 37). It must, however, be pointed out that under Article 69 of the Family Code, the fixing of the family domicile is no longer the sole prerogative of the husband, but is now a joint decision of the spouses, and in case of disagreement the court shall decide. The said article uses the term "family domicile," and not family residence, as "the spouses may have multiple residences, and the wife may elect to remain in one of such residences, which may destroy the duty of the spouses to live together and its corresponding benefits" (ALICIA V. SEMPIO-DIY, Handbook on the Family Code of the Philippines, [1988], 102). The theory of automatic restoration of a woman's domicile of origin upon the death of her husband, which the majority opinion adopts to overcome the legal effect of the petitioner's marriage on her domicile, is unsupported by law and by jurisprudence. The settled doctrine is that after the husband's death the wife has a right to elect her own domicile, but she retains the last domicile of her husband until she makes an actual change (28 C.J.S. Domicile 12, 27). Or, on the death of the husband, the power of the wife to acquire her own domicile is revived, but until she exercises the power her domicile remains that of the husband at the time of his death (25 Am Jur 2d Domicile 62, 45). Note that what is revived is not her domicile of origin but her power to acquire her own domicile. Clearly, even after the death of her husband, the petitioner's domicile was that of her husband at the time of his death which was Batac, Ilocos Norte, since their residences in San Juan, Metro Manila, and San Miguel, Manila, were their residences for convenience to enable her husband to effectively perform his official duties. Their residence in San Juan was a conjugal home, and it was there to which she returned in 1991 when she was already a widow. In her sworn certificate of candidacy for the Office of the President in the synchronized elections of May 1992, she indicated therein that she was a resident of San Juan, Metro Manila. She also voted in the said elections in that place. On the basis of her evidence, it was only on 24 August 1994 when she exercised her right as a widow to acquire her own domicile in Tolosa, Leyte, through her sworn statement requesting the Election Officer of San Juan, Metro Manila, to cancel her registration in the permanent list of voters in Precinct 157 thereat and praying that she be "re-registered or transferred to Brgy. Olot, Tolosa, Leyte, the place of [her] birth and permanent residence" (photocopy of Exhibit "B," attached as Annex "2" of private respondent Montejo's Comment). Notably, she contradicted this sworn statement regarding her place of birth when, in her Voter's Affidavit sworn to on 15 March 1992 (photocopy of Exhibit "C," attached as Annex "3," Id.), her Voter Registration Record sworn to on 28 January 1995 (photocopy of Exhibit "E," attached as Annex "5," Id.), and her Certificate of Candidacy sworn to on 8 March 1995 (photocopy of Exhibit "A," attached as Annex "1," Id.), she solemnly declared that she was born in Manila.

The petitioner is even uncertain as to her domicile of origin. Is it Tacloban City or Tolosa, Leyte? In the affidavit attached to her Answer to the petition for disqualification (Annex "I" of Petition), she declared under oath that her "domicile or residence is Tacloban City." If she did intend to return to such domicile or residence of origin why did she inform the Election Officer of San Juan that she would transfer to Olot, Tolosa, Leyte, and indicate in her Voter's Registration Record and in her certificate of candidacy that her residence is Olot, Tolosa, Leyte? While this uncertainty is not important insofar as residence in the congressional district is concerned, it nevertheless proves that forty-one years had already lapsed since she had lost or abandoned her domicile of origin by virtue of marriage and that such length of time diminished her power of recollection or blurred her memory. I find to be misplaced the reliance by the majority opinion on Faypon vs. Quirino (96 Phil. 294 [1954]), and the subsequent cases which established the principle that absence from original residence or domicile of origin to pursue studies, practice one's profession, or engage in business in other states does not constitute loss of such residence or domicile. So is the reliance on Section 117 of the Omnibus Election Code which provides that transfer of residence to any other place by reason of one's "occupation; profession; employment in private and public service; educational activities; work in military or naval reservations; service in the army, navy or air force, the constabulary or national police force; or confinement or detention in government institutions in accordance with law" is not deemed as loss of original residence. Those cases and legal provision do not include marriage of a woman. The reason for the exclusion is, of course, Article 110 of the Civil Code. If it were the intention of this Court or of the legislature to consider the marriage of a woman as a circumstance which would not operate as an abandonment of domicile (of origin or of choice), then such cases and legal provision should have expressly mentioned the same. This Court should not accept as gospel truth the self-serving claim of the petitioner in her affidavit (Annex "A" of her Answer in COMELEC SPA No. 95-009; Annex "I" of Petition) that her "domicile or residence of origin is Tacloban City," and that she "never intended to abandon this domicile or residence of origin to which [she] always intended to return whenever absent." Such a claim of intention cannot prevail over the effect of Article 110 of the Civil Code. Besides, the facts and circumstances or the vicissitudes of the petitioner's life after her marriage in 1954 conclusively establish that she had indeed abandoned her domicile of origin and had acquired a new oneanimo et facto (KOSSUTH KENT KENNAN, A Treatise on Residence and Domicile, [1934], 214, 326). Neither should this Court place complete trust on the petitioner's claim that she "merely committed an honest mistake" in writing down the word "seven" in the space provided for the residency qualification requirement in the certificate of candidacy. Such a claim is self-serving and, in the light of the foregoing disquisitions, would be all sound and fury signifying nothing. To me, she did not commit any mistake, honest or otherwise; what she stated was the truth. The majority opinion also disregards a basic rule in evidence that he who asserts a fact or the affirmative of an issue has the burden of proving it (Imperial Victory Shipping Agency vs. NLRC, 200 SCRA 178 [1991]; P.T. Cerna Corp. vs. Court of Appeals, 221 SCRA 19 [1993]). Having admitted marriage to the then Congressman Marcos, the petitioner could not deny the legal consequence thereof on the change of her domicile to that of her husband. The majority opinion rules or at least concludes that "[b]y operation of law (domicilium necesarium), her legal domicile at the time of her marriage automatically became Batac, Ilocos Norte." That conclusion is consistent with Article 110 of the Civil Code. Since she is presumed to retain her deceased husband's domicile until she exercises her revived power to acquire her own domicile, the burden is upon her to prove that she has exercised her right to acquire her own domicile. She miserably failed to discharge that burden. I vote to deny the petition. Footnotes

EN BANC

G.R. No. L-32675 November 3, 1970 ESTANISLAO A. FERNANDEZ, petitioner, vs. VICENTE B. FERNANDEZ and THE COMMISSION ON ELECTIONS, respondents. Estanislao A. Fernandez in his own behalf. Luis A. L. Javellana for respondent.

CASTRO, J.: By this petition for certiorari, the petitioner Estanislao A. Fernandez prays this Court to set aside and declare null and void the resolution of the respondent Commission on Elections (COMELEC) dated October 10, 1970 (resolution 746) which denied his petition to strike out the certificate of acceptance of nomination (for delegate of the second district of Laguna to the Constitutional Convention) filed with the COMELEC on September 10, 1970 by the respondent Vicente B. Fernandez. The petition before the COMELEC was anchored on two grounds, namely, (1) that the respondent Vicente B. Fernandez "is not qualified to be a candidate for delegate in the said [second] district because he is not a resident of Laguna," and, (2) invoking section 37 of the Revised Election Code, "that respondent has no bona fide intention to run or to win and that his only purpose is to annul votes with the name 'Fernandez' and to prejudice petitioner's candidacy by causing confusion because of the similarity in the surnames of petitioner and respondent thereby preventing a faithful determination of the true will of the electorate." Without making any definitive findings of fact, the COMELEC denied the petition, stating, in its own language, that it "has no jurisdiction to rule on whether or not respondent is qualified to be a candidate," and that "the evidence to support a finding that respondent is a nuisance candidate is inconclusive," respondent being "entitled to the benefit of the presumption of good faith." Meanwhile, hearing was had before the election registration board of Mabitac, Laguna, on the application of the respondent Vicente B. Fernandez for registration as a voter in the said town. Denial of this application on October 12, 1970 prompted the respondent to file a petition with the Court of First Instance of Laguna (Branch IV, Judge Maximo A. Maceren presiding), praying that the said court order the election registration board of Mabitac to include his name in the list of qualified voters of the said municipality. On October 28, 1970 the said court, after due hearing, denied the respondent's petition for inclusion, stating that "petitioner's [respondent Vicente B. Fernandez] attempts to show his intention to establish residence in Mabitac through the presentation of proofs that he had acquired properties there (Exhibit A) are all futile. He has miserably failed to convince this Court not only of his proferred [sic] intention to establish residence in Mabitac, Laguna, but also to show positive acts that match his professed intention." The respondent Vicente B. Fernandez' Answer to the Petition at bar was filed on October 27, 1970, and oral argument was had on October 30, 1970. The petitioner Estanislao A. Fernandez argued in his own behalf; Atty. Luis A.L. Javellana appeared for and argued in behalf of the respondent Vicente B. Fernandez. On the basis of a perceptive study of the record and of the pleadings therein, as well as the admissions made at the oral argument held on October 30, 1970, this Court has arrived at essential findings of fact, hereunder recited. The petitioner Estanislao A. Fernandez is a resident of Lilio, Laguna, having resided in that municipality since 1945. He ran for representative for the second district of Laguna in the elections of 1946, 1949 and 1953, and for senator in 1957, 1959 and 1965. He has become known in the second district of Laguna especially by the surname Fernandez not only because he has been in the political arena for more than two decades but also because he has been a practising lawyer in the province of Laguna for the same period of time. He announced his candidacy for delegate to the Constitutional Convention for the second district of Laguna as early as Holy Week of this year, more specifically "on March 27 to 29, 1970, going around the district" for this purpose. (This is not denied or controverted by the respondent Vicente B. Fernandez.) On September 9, 1970, he filed his formal certificate of candidacy dated September 7, 1970 with the COMELEC, and the same was given due course on September 22, 1970.

The respondent Vicente B. Fernandez, who was born in Manila on August 8, 1919, has been a resident of 360 Guevara Avenue, San Juan, Rizal from before World War II. In the general elections of November 11, 1969 he voted in precinct no. 117 of San Juan, Rizal, using ballot no. 44778. As late as September 18, 1970, he had not filed any application for his transfer as a voter to any other place (this, according to the certification of the election registrar of San Juan, Rizal dated September 18, 1970). As late as September 14, 1970 he was not a registered voter in the municipality of Mabitac, Laguna, nor did he have in the said municipality any real property declared under his name for taxation purposes. Nor is he a registered voter in the municipality of Siniloan, Laguna, although he avers that his provincial address is "c/o Dr. Alfredo Fernandez, Siniloan, Laguna." The certification of the municipal treasurer of Siniloan, Laguna dated September 17, 1970 states that "Vicente B. Fernandez does not have any real property" in the said municipality. He was nominated to be a candidate for delegate on September 1, 1970, and he filed his certificate of acceptance dated September 9, 1970 on September 10, 1970. This certificate of acceptance was given due course by the COMELEC on October 20, 1970. Although he filed his certificate of acceptance as early as September 10, 1970, as late as October 10, 1970 he had "not started his campaign ... because he wanted to await the decision of the Commission ... for he felt it was not proper for him to campaign when there is 'a cloud on his candidacy.'" It is the petitioner's submission that the respondent Vicente B. Fernandez lacks "the requisite residence qualification, which is not less than one year immediately prior to his election;" that this disqualification, although not patent on the face of his certificate of acceptance of nomination, is nonetheless proven by indubitable documents; that, consequently, the COMELEC has jurisdiction to reject and should reject the said certificate; and that, furthermore, the COMELEC should not have given due course to the said certificate, because knowing that he does not have the residence qualification in filing his certificate of acceptance and in insisting to run in the second district of Laguna, the respondent is a "nuisance" candidate within the purview of section 37 of the Revised Election Code, the pertinent portion of which reads as follows: ... Provided, That in all cases the said Commission may, motu proprio or upon petition of an interested party, refuse to give due course to a certificate of candidacy if it is shown that said certificate has been presented and filed to cause confusion among the electors by the similarity of the names of the registered candidates or by other means which demonstrate that the candidate has no bona fideintention to run for the office for which certificate of candidacy has been filed and thus prevent a faithful determination of the true will of the electorate. The petitioner specifically asserts that the sole purpose of the respondent Fernandez in filing his certificate of acceptance of nomination is to cause "the annulment of votes that would be cast for the petitioner only with the surname Fernandez," considering that a great number of the voters in the second district of Laguna had voted for the petitioner previously, writing only the surname "Fernandez," when he ran for representative in 1946, 1949, and 1953, and when he ran for senator in 1957, 1959 and 1965. He avers that he came to be known in the second district of Laguna by the surname Fernandez only, in the course of all the political campaigns wherein he participated as a leader; and that on the other hand, the respondent is practically unknown in said district, and up to the time of the institution of the petitioner's petition in the COMELEC, the respondent Fernandez had not campaigned nor distributed any propaganda materials. Among the indubitable documents relied upon by the petitioner are (1) the certificate of the election registrar of San Juan, Rizal, dated September 18, 1970; (2) a certified copy of the Voter's Registration Record dated March 7, 1965 and a certified copy of the Voting Record of the respondent Fernandez, which clearly show that the latter was born in Manila on August 8, 1919, that he has been residing in San Juan, Rizal for the last 38 years, and that he voted in precinct no. 117 of San Juan, Rizal in the elections of 1967 and in the elections of November 11, 1969. Another indubitable document submitted by the petitioner (attached to his supplemental petition filed with this Court on October 30, 1970) is the decision of the Court of First Instance of Laguna dated October 28, 1970 on the appeal filed by the respondent Fernandez from the decision of the election registration board of Mabitac, Laguna, denying his application for registration as voter in the said municipality on the ground of lack of residence qualification. The respondent Fernandez, on the other hand, denies that he is a "nuisance" candidate, and argues that although the Resolution of the COMELEC states that "the only reason he has not started his campaign is because he wanted to await the decision of the Commission," he afterwards started campaigning earnestly, distributing leaflets (a copy of which is attached to his Answer). He further contends that resolution of the question of his alleged lack of residence qualification is a matter that properly is within the competence solely of the Constitutional Convention. Adverting once more to the decision of the Court of First Instance of Laguna, it is obvious that the same could not have been presented to the COMELEC because it was rendered some time after the latter had promulgated its Resolution of October 10, 1970. Copies of the said decision were however submitted to this Court on October 30, 1970, and a copy served on Atty. Javellana (for the

respondent Fernandez) at 9:25 a.m. on the same date. It will be recalled that at the hearing on the said date, the merits of the said decision were not discussed nor commented on in any manner by Atty. Javellana in his oral argument. Under the circumstances, there thus appears to be no impediment to our taking into account the import of the said decision in our resolution of the issues presented to this Court by the Petition at bar. The pertinent portions of the said decision of the Court of First Instance of Laguna read as follows: From the evidence submitted the following facts have been established: According to the Voters Registration Card, a certified true and correct xerox copy of which was marked as Exhibit 2 for the intervenors, and which was admitted by the petitioner on the witness stand to be indeed a true copy of his Voters Registration Record, the herein petitioner was born on August 8, 1919 in Manila and at the time of the filing of said voters registration record on March 7, 1965, he was a domicile of the Municipality of San Juan, Rizal, for 38 years. On the witness stand and upon cross-examination, petitioner admitted these facts and added that it does not mean continuous because he has also a residence in Baguio and Iloilo where he and his family occasionally stop for a vacation. He further declared on cross-examination that he had always considered San Juan, Rizal where he grew up, as the place where he could establish a continuous residence. On the witness stand, upon cross-examination, petitioner admitted also that Exhibit 3 is a certified true and correct xerox copy of the original of his voting record and that the facts stated in the certification issued by Jovencio G. Recelusado, Election Registrar of San Juan del Monte, Rizal which was marked as Exhibit 1, are all correct except that portion which states that he has not filed any application for his transfer as voter to any other place because, as a matter of fact, he did file an application to transfer as voter in Mabitac, Laguna, on October 5, 1970. The other facts stated in Exhibit 1 are that Vicente Fernandez y Bartolome is a registered voter in Precinct No. 117 of San Juan, Rizal, shown by his voting record filed on March 7, 1965 and duly approved on March 24, 1965; that said record bears Serial No. 45A21-10456; that he voted in said Precinct No. 117 in the November, 1967 election, using Ballot No. 44438; that he also voted in the November 11, 1969 election using Ballot No. 44778. On the witness stand, while under cross-examination, petitioner volunteered the information that he never voted in Mabitac, Laguna and had always voted in San Juan, Rizal, and that he also voted in 1965 aside from 1967 and 1969 but he does not remember having voted in 1961. On further cross-examination the petitioner disclosed that he "finished many things," among which is a degree in law but he never practiced it when he finished it in 1941; that being his last contact with the legal profession. He further revealed on cross-examination that he studied in various schools in Manila but he never studied in Mabitac, Laguna. The foregoing facts sufficiently show that the domicile of origin of petitioner is at the Municipality of San Juan del Monte, Province of Rizal. Consequently, the only issue now to be resolved is whether or not the petitioner has actually changed his residence to Mabitac, Laguna since 1969. To show that he did in fact transfer his residence to Mabitac, Laguna petitioner presented Ex-Mayor Cesar Marfal and incumbent Vice-Mayor Vicente Olarte of Mabitac, Laguna. The testimony of Ex-Mayor Marfal, however, instead of supporting petitioner's claim that he had in fact transferred his residence to Mabitac, established the exact opposite of what it was intended to prove. Ex-Mayor Marfal among other things, declared that petitioner came to his house in the month of September, 1969 to request him to be allowed to stay in his house because he was going to take care of the properties of his parents. So, according to Ex-Mayor Marfal, petitioner stayed in his house sometime one day in a week and there are times when he stays only three or four days in a month. During the time when petitioner is not in his house, Ex-Mayor Marfal disclosed, petitioner is attending his office in Quezon City because he has a livelihood there. Petitioner himself, on the witness stand, even somewhat proudly but justifiably, disclosed that indeed he still has up to the present, many business interests in Quezon City and the greater Manila Area to which he has to divide his time and attention. Among them are the National Printing Press located in Quezon City which he modestly admitted to be only fairly large and not the biggest in the Philippines as suggested to him on cross-examination. This company is a family corporation, it appears, and petitioner is the Chairman of the Board and President. He succeeded his father who is already 79 years old, when he retired from actually managing this company in June 1969 when he decided to get married. Previous to the retirement of his father, petitioner was the executive vice-president.

Petitioner disclosed that there is no general manager in his company because he is the chief executive officer. This, he quickly adds, does not mean, however, that he has to stay at his desk for eight hours a day. He has an assistant general manager who attends to the day to day management of the company. Aside from this company, petitioner also proudly disclosed on further cross-examination, that he is also a director in the Trans-Asia Oleo-Mineral Corporation; that he is "heavily involved" in Luzon Stevedoring Company; that he has large investments in Lepanto Consolidated; that he was engaged in mining with Philmag. He also disclosed that he had meetings of the board of Trans-Asia not less than twice a month; in Luzon Stevedoring "very often" whenever there is quorum. In the opinion of this Court all the foregoing facts and admissions by the petitioner are already sufficient to negate his professed desire to establish his residence in Mabitac, Laguna, ostensibly for the "romance of it" as he put it while testifying on direct examination, because Mabitac is the ancestral home of his forbears. But this protestations of sentimental attachment to the ancestral home of his forbears is belied by the overwhelming evidence to the contrary. Aside from the foregoing considerations, petitioner admitted that his wife and eight children are all still residing in San Juan, Rizal. Two of his children have already homes of their own having married already but the remaining six are still residing in their original domicile at No. 360 Guevara Avenue, San Juan, Rizal. Petitioner tries to explain the failure of his wife to join him in Mabitac, Laguna by the fact that she is sickly (Exhibit L) and needs to be near her doctor and the best hospitals for constant check up. This, nevertheless, cannot explain why petitioner, who is obviously affluent and has two other residences where he and his family goes for a vacation, could not match his professed intention to establish his residence in Mabitac, Laguna to go back to the "ancestral home" of forbears "for the romance of it" with positive acts such as establishing a house of his own, or at least a residence of his own, instead of living with his cousin, Ex-Mayor Marfal. But even this claim is seriously and convincingly contested by the two witnesses for the intervenors, namely incumbent Mayor Felix Carpio of Mabitac, Laguna and Marcelo Vicuna. Both vigorously and steadfastly maintained that it is not true that petitioner is living with Ex-Mayor Marfal, much less that he has been residing there for the past 14 months. Mayor Carpio declared that since he assumed office as Mayor of Mabitac in January, 1968, he always was in the center of the town almost every day and night and during all these times he had never seen the petitioner in the house of Ex-Mayor Marfal. This corroborates the testimony of Marcela Vicua, a next-door neighbor for Ex-Mayor Marfal who also declared that she never saw the petitioner living in the house of Ex-Mayor Marfal; that she had every opportunity to see who are living in the house of Ex-Mayor Marfal because the gate and stairs leading to his house is just on the opposite side of a common boundary that is only marked by a hedge of San Francisco plants which are always trimmed to a height of only a meter towards the front part of the lot but is a little higher in the middle portion. The witness was asked to draw a sketch of the relative locations of her house and that of Ex-Mayor Marfal which sketch was marked as Exhibit M and the different portions thereof marked as Exhibits M-1 to M-8. This sketch convinces the Court that indeed this witness could really tell who are the persons residing in the house of Ex-Mayor Marfal, especially if he has been residing there for the past 14 months as the petitioner claims. But this witness categorically declared that the only residents in the house of Ex-Mayor Marfal are his wife and his two children and the brother of his wife named Andres. They were the only ones residing there since September, 1969 and for the past preceding fourteen months. In the light of the foregoing facts and considerations, petitioner's attempts to show his intention to establish residence in Mabitac through the presentation of proofs that he had acquired properties there (Exhibit A) are all futile. He has miserably failed to convince this Court not only of his proferred intention to establish residence in Mabitac, Laguna, but also to show positive acts to match this professed intention. WHEREFORE, premises considered, the petition for inclusion is hereby DENIED. ...
1

Resolving now the issues squarely before us, and putting in perspective the categorical admission of the counsel of the respondent Fernandez that the latter's residence in Mabitac, Laguna, started (at the very earliest) only on November 12, 1969, it is our view, 2 considering his impressive educational attainment, that the respondent Fernandez could not but be completely aware that the period of his residence in Laguna (assuming for the sake of argument that his occasional visits to the province of Laguna were accompanied by animus to reside therein) is short of the one-year period required by law of candidates for the position sought by him. Further considering the other circumstances clearly proven in the record, we are fully persuaded that in filing his certificate of acceptance and in insisting to run, he has no other intention but to cause confusion among the electorate by the similarity of his and

the petitioner's surnames, and that he has no bona fide intention to run for the office for which his certificate of candidacy was filed. He therefore clearly falls within the proscription of the provisions of section 37 of the Revised Election Code. This conclusion is incalculably buttressed by the circumstances that while the petitioner Estanislao A. Fernandez has been and is well known and referred to as "Fernandez" in the second district of Laguna, has served as congressman for the said district for two terms, and a senator for one term, has participated in all the electoral campaigns in Laguna, and has had extensive law practice in the said province, the respondent Vicente B. Fernandez, in sharp contrast, is practically unknown in the second district of Laguna, the greater portion of his vast business interests, demanding his personal attention, dedication and involvement, being located in the Greater Manila area. It might be stated en passant that the respondent Fernandez, if he indeed is fired by a genuine desire to serve his country as a delegate to the Constitutional Convention, could have and should have filed his certificate of candidacy for delegate for the first district of Rizal his qualifications therefor, as far as the record shows, not being vulnerable to any legal objection or marred by any "cloud on his candidacy." We therefore hold that the certificate of acceptance of nomination as candidate for delegate filed by the respondent Fernandez should not at all have been given due course by the respondent COMELEC and that the same should therefore be avoided. We have already held that the COMELEC should refuse to give due course to a certificate of candidacy if the disqualification is patent on its face (Juan Sanchez vs. Oscar del Rosario, L-16878, April 27, 1961, 1 SCRA 1102). In the case at bar, the respondent Fernandez, thru counsel, admitted unequivocally during the oral argument that, the said respondent having voted in San Juan, Rizal on November 11, 1969, the earliest time that he could have transferred his residence to Laguna was on November 12, 1969. And the period of time from that date up to November 10, 1970 (the date of the coming elections) encompasses a total of only 363 days, or 2 days short of the one-year residence qualification for a candidate for delegate. This unequivocal and categorical admission on the part of the respondent Fernandez, in view of the peculiar environmental circumstances here obtaining, amounts to the disqualification being patent on the face of the certificate of candidacy. Jose de Asis vs. Emil L. Ong, L-32576, September 25, 1970, is not here applicable because in the said case there is no admission on the part of the respondent that he is not a natural born citizen; and neither was the issue of the respondent being a "nuisance" candidate raised there, as the petitioner and the respondent in the said case do not have the same surname. Nor is the case of Lachica vs. Yap (L-25379, Sept. 25, 1968, 25 SCRA 140) in point, as this involved a petition for recount of votes after the proclamation of, and taking of oath by, the respondent Peralta as congressman. ACCORDINGLY, the writ of certiorari prayed for is granted. The Resolution of the respondent COMELEC of October 10, 1970 and that giving due course to the certificate of candidacy of the respondent Fernandez are hereby set aside; and the respondent Fernandez' certificate of acceptance of nomination is hereby ordered stricken out. The COMELEC is hereby ordered to recall, without delay, all copies of the respondent Fernandez' certificate of acceptance and certificate of candidacy sent to the different boards of inspectors in the second district of Laguna. This decision is hereby declared executory immediately upon its promulgation. No costs. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal and Zaldivar, Teehankee, JJ., concur. Fernando and Villamor, JJ., took no part. Makasiar, J., is on leave. Separate Opinions BARREDO, J., concurring: I fully concur in the opinion ably written for the Court by Mr. Justice Castro. The only purpose of this brief separate opinion is to express in my own way my view on the very important question of jurisdiction raised by respondent Vicente Fernandez. He insists that the matter of his qualifying residence in Mabitac, Laguna may not be inquired into whether by the Comelec or by this Court in passing upon the question of whether or not his certificate of candidacy should be given due course. I hold that respondent's posture in this respect is untenable. To begin with, it is not only overwhelmingly borne by the evidence on record but also candidly admitted by respondent that up to November 11, 1969, he was a resident of San Juan, Rizal and that the earliest he could have changed his residence to Mabitac was on November 12, 1969. Incidentally, it is alleged in the supplemental petition and not denied by respondent that his application for

registration as a voter in Mabitac for the purpose of the coming constitutional convention election has been denied by the local 1 registration board and, on appeal, by the Court of First Instance of Laguna, whose decision on such matters is final, and considering that for such registration only six months prior residence in the municipality is required by law, it may be said that it is beyond all dispute that even assuming that respondent did in fact transfer his residence to Mabitac on November 12, 1969, an assumption more liberal to him than the decision of the registration board and the Court of First Instance of Laguna above referred to, he would still have less than one year residence in Mabitac by November 10, 1970, the date of the election in which he wants to be candidate for delegate to the constitutional convention. If, as respondent claims in his propaganda, he is a member of the Bar, it is to be presumed that when he filed his certificate of candidacy he knew that his own pretended residence in Mabitac is short of the one year which the Constitutional Convention Law requires of candidates for Delegate. Under Section 37 of the Revised Election Code, even the certificates of candidacy of candidates who undisputably have all the legal qualifications for the positions they are running for may be denied due course by the Comelec upon proof that the same has been "presented and filed to cause confusion among electors by the similarity of the names of the registered candidates or by other means which demonstrate that the candidate has no bona fideintention to run for the office for which the certificate has been filed and thus prevent a faithful determination of the true will of the electorate." This provision does require that a candidate be legally disqualified in order that the Comelec may refuse to give due course to his certificate of candidacy, but surely, if in addition to other relevant evidence tending to establish a case of "nuisance" candidacy, as the situation contemplated in the statute is ordinarily referred to, it appears that the candidate concerned knows or ought to know that he lacks one or more of the legal qualifications of the office indicated in his certificate of candidacy, the Comelec or this Court, on appeal, may take such circumstance into account in ruling whether or not the above-mentioned Section 37 of the Revised Election Code may be applied. In doing so, the Comelec or this Court does not encroach at all into the exclusive jurisdiction of the Constitutional Convention to decide on the qualifications of its members. The case of respondent is not one wherein his certificate of candidacy is being denied due course because he does not possess all the legal qualifications of Delegate. It is being denied because there are enough circumstances in the record indicating that his candidacy is not bona fide, principally, as far as I am concerned, the fact that according to the finding of the Comelec in its resolution under review, respondent would not start his campaign until after the "cloud" on his candidacy has been removed. Generally, this Court has consistently held that consciousness of the existence of a cloud over one's right or title is inconsistent with good faith in claiming the same. I am inclined to believe that respondent's expectation that the Comelec would decline to pass upon the controversy as to the period of his legal residence in Mabitac was what emboldened him to sally forth notwithstanding his own knowledge of its inadequacy. It is my considered view that Section 37 of the Revised Election Code, which is one of the devises conceived by Congress to purify the exercise of suffrage would be rendered nugatory in the most appropriate cases if respondent's theory is upheld. Precisely, the candidate who knows he is not qualified is the one who would more likely agree to be a "nuisance" candidate because he would have nothing to lose anyway. If respondent were being denied the right to run solely because of a finding of the Comelec or this Court that he lacks one or some of the legal qualifications of Delegate, I would have voted to deny the present petition. I am voting to grant it, not because I hold he is disqualified, but because I have to presume that he well knows he has less than one year residence in Mabitac and I hold that that knowledge, taken together, but not otherwise, with other undeniable facts in the record, indicative, to my mind, of the less than full-hearted resolution on the part of the respondent to run for the office of Delegate, leads to no other conclusion than that his case comes within the letter and spirit of Section 37 of the Revised Election Code. In conclusion, I vote to grant the petition but I believe it is necessary for this Court to spell out that respondent's certificate is being denied due course not because We hold that he is not legally qualified but simply because the circumstances surrounding the filing thereof, among them the fact that it was not spontaneous on his part but only accepted by him after petitioner had filed his own certificate, sufficiently convinces Us that this is one of the instances wherein the power to deny due course to a certificate of candidacy should be exercised, without primary regard to whether or not said respondent is legally qualified. Teehankee, J., concur. # Separate Opinions BARREDO, J., concurring: I fully concur in the opinion ably written for the Court by Mr. Justice Castro. The only purpose of this brief separate opinion is to express in my own way my view on the very important question of jurisdiction raised by respondent Vicente Fernandez. He insists that the matter of his qualifying residence in Mabitac, Laguna may not be inquired into whether by the Comelec or by this Court in

passing upon the question of whether or not his certificate of candidacy should be given due course. I hold that respondent's posture in this respect is untenable. To begin with, it is not only overwhelmingly borne by the evidence on record but also candidly admitted by respondent that up to November 11, 1969, he was a resident of San Juan, Rizal and that the earliest he could have changed his residence to Mabitac was on November 12, 1969. Incidentally, it is alleged in the supplemental petition and not denied by respondent that his application for registration as a voter in Mabitac for the purpose of the coming constitutional convention election has been denied by the local 1 registration board and, on appeal, by the Court of First Instance of Laguna, whose decision on such matters is final, and considering that for such registration only six months prior residence in the municipality is required by law, it may be said that it is beyond all dispute that even assuming that respondent did in fact transfer his residence to Mabitac on November 12, 1969, an assumption more liberal to him than the decision of the registration board and the Court of First Instance of Laguna above referred to, he would still have less than one year residence in Mabitac by November 10, 1970, the date of the election in which he wants to be candidate for delegate to the constitutional convention. If, as respondent claims in his propaganda, he is a member of the Bar, it is to be presumed that when he filed his certificate of candidacy he knew that his own pretended residence in Mabitac is short of the one year which the Constitutional Convention Law requires of candidates for Delegate. Under Section 37 of the Revised Election Code, even the certificates of candidacy of candidates who undisputably have all the legal qualifications for the positions they are running for may be denied due course by the Comelec upon proof that the same has been "presented and filed to cause confusion among electors by the similarity of the names of the registered candidates or by other means which demonstrate that the candidate has no bona fideintention to run for the office for which the certificate has been filed and thus prevent a faithful determination of the true will of the electorate." This provision does require that a candidate be legally disqualified in order that the Comelec may refuse to give due course to his certificate of candidacy, but surely, if in addition to other relevant evidence tending to establish a case of "nuisance" candidacy, as the situation contemplated in the statute is ordinarily referred to, it appears that the candidate concerned knows or ought to know that he lacks one or more of the legal qualifications of the office indicated in his certificate of candidacy, the Comelec or this Court, on appeal, may take such circumstance into account in ruling whether or not the above-mentioned Section 37 of the Revised Election Code may be applied. In doing so, the Comelec or this Court does not encroach at all into the exclusive jurisdiction of the Constitutional Convention to decide on the qualifications of its members. The case of respondent is not one wherein his certificate of candidacy is being denied due course because he does not possess all the legal qualifications of Delegate. It is being denied because there are enough circumstances in the record indicating that his candidacy is not bona fide, principally, as far as I am concerned, the fact that according to the finding of the Comelec in its resolution under review, respondent would not start his campaign until after the "cloud" on his candidacy has been removed. Generally, this Court has consistently held that consciousness of the existence of a cloud over one's right or title is inconsistent with good faith in claiming the same. I am inclined to believe that respondent's expectation that the Comelec would decline to pass upon the controversy as to the period of his legal residence in Mabitac was what emboldened him to sally forth notwithstanding his own knowledge of its inadequacy. It is my considered view that Section 37 of the Revised Election Code, which is one of the devises conceived by Congress to purify the exercise of suffrage would be rendered nugatory in the most appropriate cases if respondent's theory is upheld. Precisely, the candidate who knows he is not qualified is the one who would more likely agree to be a "nuisance" candidate because he would have nothing to lose anyway. If respondent were being denied the right to run solely because of a finding of the Comelec or this Court that he lacks one or some of the legal qualifications of Delegate, I would have voted to deny the present petition. I am voting to grant it, not because I hold he is disqualified, but because I have to presume that he well knows he has less than one year residence in Mabitac and I hold that that knowledge, taken together, but not otherwise, with other undeniable facts in the record, indicative, to my mind, of the less than full-hearted resolution on the part of the respondent to run for the office of Delegate, leads to no other conclusion than that his case comes within the letter and spirit of Section 37 of the Revised Election Code. In conclusion, I vote to grant the petition but I believe it is necessary for this Court to spell out that respondent's certificate is being denied due course not because We hold that he is not legally qualified but simply because the circumstances surrounding the filing thereof, among them the fact that it was not spontaneous on his part but only accepted by him after petitioner had filed his own certificate, sufficiently convinces Us that this is one of the instances wherein the power to deny due course to a certificate of candidacy should be exercised, without primary regard to whether or not said respondent is legally qualified. Teehankee, J., concur.

G.R. No. 96859 October 15, 1991 MOHAMMAD ALI DIMAPORO, petitioner, vs. HON. RAMON V. MITRA, JR., Speaker, House of Representatives, and (Hon. QUIRINO D. ABAD SANTOS, JR.) HON. CAMILO L. SABIO Secretary, House of representatives, respondent. Rilloraza, Africa, De Ocampo & Africa and Enrique M. Fernando for petitioner.

DAVIDE, JR., J.:p Petitioner Mohamad Ali Dimaporo was elected Representative for the Second Legislative District of Lanao del Sur during the 1987 congressional elections. He took his oath of office on 9 January 1987 and thereafter performed the duties and enjoyed the rights and privileges pertaining thereto. On 15 January 1990, petitioner filed with the Commission on Elections a Certificate of Candidacy for the position of Regional Governor of the Autonomous Region in Muslim Mindanao. The election was scheduled for 17 February 1990. Upon being informed of this development by the Commission on Elections, respondents Speaker and Secretary of the House of Representatives excluded petitioner's name from the Roll of Members of the House of Representatives pursuant to Section 67, Article IX of the Omnibus Election Code. As reported by the Speaker in the session of 9 February 1990: The Order of Business today carries a communication from the Commission on Elections which states that the Honorable Mohammad Ali Dimaporo of the Second District of Lanao del Sur filed a certificate of candidacy for the regional elections in Muslim Mindanao on February 17, 1990. The House Secretariat, performing an administrative act, did not include the name of the Honorable Ali Dimaporo in the Rolls pursuant to the provision of the Election Code, Article IX, Section 67, which states: Any elective official whether national or local running for any office other than the one which he is holding in a permanent capacity except for President and Vice-President shall be considered ipso factoresigned from his office upon the filing of his certificate of candidacy.' The word 'ipso facto' is defined in Words and Phrases as by the very act itself by the mere act. And therefore, by the very act of the (sic) filing his certificate of candidacy, the Honorable Ali Dimaporo removed himself from the Rolls of the House of Representatives; and, therefore, his name has not been carried in today's Roll and will not be carried in the future Rolls of the House. ... Having lost in the autonomous region elections, petitioner, in a letter dated 28 June 1990 and addressed to respondent Speaker, expressed his intention "to resume performing my duties and functions as elected Member of Congress." The record does not indicate what action was taken on this communication, but it is apparent that petitioner failed in his bid to regain his seat in Congress since this petition praying for such relief was subsequently filed on 31 January 1991. In this petition, it is alleged that following the dropping of his name from the Roll, petitioner was excluded from all proceedings of the House of Representatives; he was not paid the emoluments due his office; his staff was dismissed and disbanded; and his office suites were occupied by other persons. In effect, he was virtually barred and excluded from performing his duties and from exercising his rights and privileges as the duly elected and qualified congressman from his district. Petitioner admits that he filed a Certificate of Candidacy for the position of Regional Governor of Muslim Mindanao. He, however, maintains that he did not thereby lose his seat as congressman because Section 67, Article IX of B.P. Blg. 881 is not operative under the present Constitution, being contrary thereto, and therefore not applicable to the present members of Congress. In support of his contention, petitioner points out that the term of office of members of the House of Representatives, as well as the grounds by which the incumbency of said members may be shortened, are provided for in the Constitution. Section 2, Article XVIII thereof provides that "the Senators, Members of the House of Representatives and the local officials first elected under this Constitution shall serve until noon of June 30, 1992;" while Section 7, Article VI states: "The Members of the House of Representatives shall be elected for a term of three years which shall begin, unless otherwise provided by law, at noon on the thirtieth day of June next following their election." On the other hand, the grounds by which such term may be shortened may be summarized as follows:

a) Section 13, Article VI: Forfeiture of his seat by holding any other office or employment in the government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or subsidiaries; b) Section 16 (3): Expulsion as a disciplinary action for disorderly behavior; c) Section 17: Disqualification as determined by resolution of the Electoral Tribunal in an election contest; and, d) Section 7, par. 2: Voluntary renunciation of office. He asserts that under the rule expressio unius est exclusio alterius, Section 67, Article IX of B.P. Blg. 881 is repugnant to these constitutional provisions in that it provides for the shortening of a congressman's term of office on a ground not provided for in the Constitution. For if it were the intention of the framers to include the provisions of Section 67, Article IX of B.P. Blg. 881 as among the means by which the term of a Congressman may be shortened, it would have been a very simple matter to incorporate it in the present Constitution. They did not do so. On the contrary, the Constitutional Commission only reaffirmed the grounds previously found in the 1935 and 1973 Constitutions and deliberately omitted the ground provided in Section 67, Article IX of B.P. Blg. 881. On the premise that the provision of law relied upon by respondents in excluding him from the Roll of Members is contrary to the present Constitution, petitioner consequently concludes that respondents acted without authority. He further maintains that respondents' so-called "administrative act" of striking out his name is ineffective in terminating his term as Congressman. Neither can it be justified as an interpretation of the Constitutional provision on voluntary renunciation of office as only the courts may interpret laws. Moreover, he claims that he cannot be said to have forfeited his seat as it is only when a congressman holds another office or employment that forfeiture is decreed. Filing a certificate of candidacy is not equivalent to holding another office or employment. In sum, petitioner's demand that his rights as a duly elected member of the House of Representatives be recognized, is anchored on the negative view of the following issues raised in this petition: A. IS SECTION 67, ARTICLE IX, OF B.P. BLG. 881 OPERATIVE UNDER THE PRESENT CONSTITUTION? B. COULD THE RESPONDENT SPEAKER AND/OR THE RESPONDENT SECRETARY, 'BY ADMINISTRATIVE ACT', EXCLUDE THE PETITIONER FROM THE ROLLS OF THE HOUSE OF REPRESENTATIVES, THEREBY PREVENTING HIM FROM EXERCISING HIS FUNCTIONS AS CONGRESSMAN, AND DEPRIVING HIM OF HIS RIGHTS AND PRIVILEGES AS SUCH? On the other hand, respondents through the Office of the Solicitor General contend that Section 67, Article IX of B.P. Blg. 881 is still operative under the present Constitution, as the voluntary act of resignation contemplated in said Section 67 falls within the term "voluntary renunciation" of office enunciated in par. 2, Section 7, Article VI of the Constitution. That the ground provided in Section 67 is not included in the Constitution does not affect its validity as the grounds mentioned therein are not exclusive. There are, in addition, other modes of shortening the tenure of office of Members of Congress, among which are resignation, death and conviction of a crime which carries a penalty of disqualification to hold public office. Respondents assert that petitioner's filing of a Certificate of Candidacy is an act of resignation which estops him from claiming otherwise as he is presumed to be aware of existing laws. They further maintain that their questioned "administrative act" is a mere ministerial act which did not involve any encroachment on judicial powers. Section 67, Article IX of B.P. Blg. 881 reads: Any elective official whether national or local running for any office other than the one which he is holding in a permanent capacity except for President and Vice-President shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. The precursor of this provision is the last paragraph of Section 2 of C.A. No. 666, which reads:

Any elective provincial, municipal, or city official running for an office, other than the one for which he has been lastly elected, shall be considered resigned from his office from the moment of the filing of his certificate of candidacy. Section 27 of Article II of Republic Act No. 180 reiterated this rule in this wise: Sec. 27. Candidate holding office. Any elective provincial, municipal or city official running for an office, other than the one which he is actually holding, shall be considered resigned from office from the moment of the filing of his certificate of candidacy. The 1971 Election Code imposed a similar proviso on local elective officials as follows: Sec. 24. Candidate holding elective office. Any elective provincial, sub-provincial, city, municipal or municipal district officer running for an office other than the one which he is holding in a permanent capacity shall be considered ipso facto resigned from his office from the moment of the filing of his certificate of candidacy. Every elected official shall take his oath of office on the day his term of office commences, or within ten days after his proclamation if said proclamation takes place after such day. His failure to take his oath of office as herein provided shall be considered forfeiture of his right to the new office to which he has been elected unless his failure is for a cause or causes beyond his control. The 1978 Election Code provided a different rule, thus: Sec. 30. Candidates holding political offices. Governors, mayors, members of various sanggunians, or barangay officials, shall, upon filing of a certificate of candidacy, be considered on forced leave of absence from office. It must be noted that only in B.P. Blg. 881 are members of the legislature included in the enumeration of elective public officials who are to be considered resigned from office from the moment of the filing of their certificates of candidacy for another office, except for President and Vice-President. The advocates of Cabinet Bill No. 2 (now Section 67, Article IX of B.P. Blg. 881) elucidated on the rationale of this inclusion, thus: MR. PALMARES: In the old Election Code, Your Honor, in the 1971 Election Code, the provision seems to be different I think this is in Section 24 of Article III. Any elective provincial, sub-provincial, city, municipal or municipal district officer running for an office other than the one which he is holding in a permanent capacity shall be considered ipso facto resigned from his office from the moment of the filing of his certificate of candidacy. May I know, Your Honor, what is the reason of the Committee in departing or changing these provisions of Section 24 of the old Election Code and just adopting it en toto? Why do we have to change it? What could possibly be the reason behind it, or the rationale behind it? MR. PEREZ (L.): I have already stated the rationale for this, Mr. Speaker, but I don't mind repeating it. The purpose is that the people must be given the right to choose any official who belongs to, let us say, to the Batasan if he wants to run for another office. However, because of the practice in the past where members of the legislature ran for local offices, but did not assume the office, because of that spectacle the impression is that these officials were just trifling with the mandate of the people. They have already obtained a mandate to be a member of the legislature, and they want to run for mayor or for governor and yet when the people give them that mandate, they do not comply with that latter mandate, but still preferred (sic) to remain in the earlier mandate. So we believe, Mr. Speaker, that the people's latest mandate must be the one that will be given due course. ...

Assemblyman Manuel M. Garcia, in answer to the query of Assemblyman Arturo Tolentino on the constitutionality of Cabinet Bill No. 2, said: MR. GARCIA (M.M.): Thank you, Mr. Speaker. Mr. Speaker, on the part of the Committee, we made this proposal based on constitutional grounds. We did not propose this amendment mainly on the rationale as stated by the Gentlemen from Manila that the officials running for office other than the ones they are holding will be considered resignednot because of abuse of facilities of power or the use of office facilities but primarily because under our Constitution, we have this new chapter on accountability of public officers. Now, this was not in the 1935 Constitution. It states that (sic) Article XIII, Section 1 Public office is a public trust. Public officers and employees shall serve with the highest degree of responsibility, integrity, loyalty and efficiency and shall remain accountable to the people. Now, what is the significance of this new provision on accountability of public officers? This only means that all elective public officials should honor the mandate they have gotten from the people. Thus, under our Constitution, it says that: 'Members of the Batasan shall serve for the term of 6 years, in the case of local officials and 6 years in the case of barangay officials. Now, Mr. Speaker, we have precisely included this as part of the Omnibus Election Code because a Batasan Member who hold (sic) himself out with the people and seek (sic) their support and mandate should not be allowed to deviate or allow himself to run for any other position unless he relinquishes or abandons his office. Because his mandate to the people is to serve for 6 years. Now, if you allow a Batasan or a governor or a mayor who was mandated to serve for 6 years to file for an office other than the one he was elected to, then, that clearly shows that he has not (sic) intention to service the mandate of the people which was placed upon him and therefore he should be considered ipso facto resigned. I think more than anything that is the accountability that the Constitution requires of elective public officials. It is not because of the use or abuse of powers or facilities of his office, but it is because of the Constitution itself which I said under the 1973 Constitution called and inserted this new chapter on accountability. Now, argument was said that the mere filing is not the intention to run. Now, what is it for? If a Batasan Member files the certificate of candidacy, that means that he does not want to serve, otherwise, why should he file for an office other than the one he was elected to? The mere fact therefore of filing a certificate should be considered the overt act of abandoning or relinquishing his mandate to the people and that he should therefore resign if he wants to seek another position which he feels he could be of better service. As I said, Mr. Speaker, I disagree with the statements of the Gentleman from Manila because the basis of this Section 62 is the constitutional provision not only of the fact that Members of the Batasan and local officials should serve the entire 6-year term for which we were elected, but because of this new chapter on the accountability of public officers not only to the community which voted him to office, but primarily because under this commentary on accountability of public officers, the elective public officers must serve their principal, the people, not their own personal ambition. And that is the reason, Mr. Speaker, why we opted to propose Section 62 where candidates or elective public officers holding offices other than the one to which they were elected, should be considered ipso factoresigned from their office upon the filing of the certificate of candidacy." It cannot be gainsaid that the same constitutional basis for Section 67, Article IX of B.P. Blg. 881 remains written in the 1987 Constitution. In fact, Section 1 of Article XI on "Accountability of Public Officers" is more emphatic in stating: Sec. 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives. Obviously then, petitioner's assumption that the questioned statutory provision is no longer operative does not hold water. He failed to discern that rather than cut short the term of office of elective public officials, this statutory provision seeks to ensure that such officials serve out their entire term of office by discouraging them from running for another public office and thereby cutting short their tenure by making it clear that should they fail in their candidacy, they cannot go back to their former position. This is consonant with the constitutional edict that all public officials must serve the people with utmost loyalty and not trifle with the mandate which they have received from their constituents.

In theorizing that the provision under consideration cuts short the term of office of a Member of Congress, petitioner seems to confuse "term" with "tenure" of office. As succinctly distinguished by the Solicitor General: The term of office prescribed by the Constitution may not be extended or shortened by the legislature (22 R.C.L.), but the period during which an officer actually holds the office (tenure) may be affected by circumstances within or beyond the power of said officer. Tenure may be shorter than the term or it may not exist at all. These situations will not change the duration of the term of office (see Topacio Nueno vs. Angeles, 76 Phil 12). Under the questioned provision, when an elective official covered thereby files a certificate of candidacy for another office, he is deemed to have voluntarily cut short his tenure, not his term. The term remains and his successor, if any, is allowed to serve its unexpired portion. That the ground cited in Section 67, Article IX of B.P. Blg. 881 is not mentioned in the Constitution itself as a mode of shortening the tenure of office of members of Congress, does not preclude its application to present members of Congress. Section 2 of Article XI provides that "(t)he President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. Such constitutional expression clearly recognizes that the four (4) grounds found in Article VI of the Constitution by which the tenure of a Congressman may be shortened are not exclusive. As held in the case of State ex rel. Berge vs. Lansing, the expression in the constitution of the circumstances which shall bring about a vacancy does not necessarily exclude all others. Neither does it preclude the legislature from prescribing other grounds. Events so enumerated in the constitution or statutes are merely conditions the occurrence of any one of which the office shall become vacant not as a penalty but simply as the legal effect of any one of the events. And would it not be preposterous to say that a congressman cannot die and cut his tenure because death is not one of the grounds provided for in the Constitution? The framers of our fundamental law never intended such absurdity. The basic principle which underlies the entire field of legal concepts pertaining to the validity of legislation is that by enactment of legislation, a constitutional measure is presumed to be created. This Court has enunciated the presumption in favor of constitutionality of legislative enactment. To justify the nullification of a law, there must be a clear and unequivocal breach of the Constitution, not a doubtful and argumentative implication. A doubt, even if well-founded, does not suffice. The maxim expressio unius est exclusio alterius is not to be applied with the same rigor in construing a constitution as a statute and only those things expressed in such positive affirmative terms as plainly imply the negative of what is not mentioned will be considered as inhibiting the power of legislature. The maxim is only a rule of interpretation and not a constitutional command. This maxim expresses a rule of construction and serves only as an aid in discovering legislative intent where such intent is not otherwise manifest. Even then, the concept of voluntary renunciation of office under Section 7, Article VI of the Constitution is broad enough to include the situation envisioned in Section 67, Article IX of B.P. Blg. 881. As discussed by the Constitutional Commissioners: MR. MAAMBONG: Could I address the clarificatory question to the Committee? The term 'voluntary renunciation' does not only appear in Section 3; it appears in Section 6. MR. DAVIDE: Yes. MR. MAAMBONG: It is also a recurring phrase all over the constitution. Could the Committee please enlighten us exactly what 'voluntary renunciation' means? Is this akin to abandonment? MR. DAVIDE:

Abandonment is voluntary. In other words, he cannot circumvent the restriction by merely resigning at any given time on the second term. MR. MAAMBONG: Is the Committee saying that the term voluntary renunciation is more general than abandonment and resignation? MR. DAVIDE: It is more general, more embracing. That the act, contemplated in Section 67, Article IX of B.P. Blg. 881, of filing a certificate of candidacy for another office constitutes an overt, concrete act of voluntary renunciation of the elective office presently being held is evident from this exchange between then Members of Parliament Arturo Tolentino and Jose Rono: MR. RONO: My reasonable ground is this: if you will make the person ... my, shall we say, basis is that in one case the person is intending to run for an office which is different from his own, and therefore it should be considered, at least from the legal significance, an intention to relinquish his office. MR. TOLENTINO: Yes ... MR. RONO: And in the other, because he is running for the same position, it is otherwise. MR. TOLENTINO: Yes, but what I cannot see is why are you going to compel a person to quit an office which he is only intending to leave? A relinquishment of office must be clear, must be definite. MR. RONO: Yes, sir. That's precisely, Mr. Speaker, what I'm saying that while I do not disagree with the conclusion that the intention cannot be enough, but I am saying that the filing of the certificate of candidacy is an over act of such intention. It's not just an intention; it's already there. In Monroy vs. Court of Appeals, a case involving Section 27 of R.A. No. 180 above-quoted, this Court categorically pronounced that "forfeiture (is) automatic and permanently effective upon the filing of the certificate of candidacy for another office. Only the moment and act of filing are considered. Once the certificate is filed, the seat is forever forfeited and nothing save a new election or appointment can restore the ousted official. Thus, as We had occasion to remark, through Justice J.B.L. Reyes, in Castro vs. Gatuslao: ... The wording of the law plainly indicates that only the date of filing of the certificate of candidacy should be taken into account. The law does not make the forfeiture dependent upon future contingencies, unforeseen and unforeseeable, since the vacating is expressly made as of the moment of the filing of the certificate of candidacy. ... As the mere act of filing the certificate of candidacy for another office produces automatically the permanent forfeiture of the elective position being presently held, it is not necessary, as petitioner opines, that the other position be actually held. The ground for forfeiture in Section 13, Article VI of the 1987 Constitution is different from the forfeiture decreed in Section 67, Article IX of B.P. Blg. 881, which is actually a mode of voluntary renunciation of office under Section 7, par. 2 of Article VI of the Constitution.

The legal effects of filing a certificate of candidacy for another office having been spelled out in Section 67, Article IX, B.P. Blg. 881 itself, no statutory interpretation was indulged in by respondents Speaker and Secretary of the House of Representatives in excluding petitioner's name from the Roll of Members. The Speaker is the administrative head of the House of Representatives and he exercises administrative powers and functions attached to his office. As administrative officers, both the Speaker and House Secretary-General perform ministerial functions. It was their duty to remove petitioner's name from the Roll considering the unequivocal tenor of Section 67, Article IX, B.P. Blg. 881. When the Commission on Elections communicated to the House of Representatives that petitioner had filed his certificate of candidacy for regional governor of Muslim Mindanao, respondents had no choice but to abide by the clear and unmistakable legal effect of Section 67, Article IX of B.P. Blg. 881. It was their ministerial duty to do so. These officers cannot refuse to perform their duty on the ground of an alleged invalidity of the statute imposing the duty. The reason for this is obvious. It might seriously hinder the transaction of public business if these officers were to be permitted in all cases to question the constitutionality of statutes and ordinances imposing duties upon them and which have not judicially been declared unconstitutional. Officers of the government from the highest to the lowest are creatures of the law and are bound to obey it. In conclusion, We reiterate the basic concept that a public office is a public trust. It is created for the interest and benefit of the people. As such, the holder thereof is subject to such regulations and conditions as the law may impose and he cannot complain of any restrictions which public policy may dictate on his office. WHEREFORE, the instant petition is DISMISSED for lack of merit. SO ORDERED. Narvasa, Cruz, Paras, Feleciano, Grio-Aquino, Medialdea and Regalado, JJ., concur. Fernan, C.J., took no part.

Separate Opinions

GUTIERREZ, JR., J., dissenting: I am constrained to dissent from the majority opinion. I believe that the Speaker and the Secretary of the House of Representatives have no power, in purported implementation of an invalid statute, to erase from the Rolls of the House the name of a member duly elected by his sovereign constituents to represent them in Congress. The rejection of the bid of the Honorable Mohammad Ali Dimaporo to retain his seat in Congress may appear logical, politically palatable, and and salutary to certain quarters. But I submit that it is in cases like the present petition where the Court should be vigilant in preventing the erosion of fundamental concepts of the Constitution. We must be particularly attentive to violations which are cloaked in political respectability, seemingly defensible or arguably beneficial and attractive in the short run. It is a fundamental priciple in Constitutional Law that Congress cannot add by statute or administrative act to the causes for disqualification or removal of constitutional officers. Neither can Congress provide a different procedure for disciplining Constitution. This is a true for the President and the members of Congress itself. The causes and procedures for removal found in the Constitution are not mere diciplinary measures. They are intended to protect constitutional officers in the unhampered and indepedent discharge of their functions. It is for this reason that the court should ensure that what the Constitution provides must be followed. The Constitutuion provides how the tenure of members of Congress may be shortened:

A. Forefeiture of his seat by holding any other office or employment in the government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or subsidiaries (Art. VI, Section 13); B. Expulsion as a disciplinary action for disorderly behavior (Art. VI, Sec. 16[3]); C. Disqualification as determined by resolution of the Electoral Tribubal in an election contest (Art. VI, Sec. 17); D. Voluntary renunciation of office (Art. VI, Sec. 7, par. 2). (See Petition, p. 8) The respondents would now add to the above provisions, an enactment of the defunct Batasang Pambansa promulgated long before the present Constitution took effect. B.P. Blg. 881, Article IX, Section 67 provides: Any elective official whether national or local running for any office other than the one which he is holding in a permanent capacity except for President and Vice-President shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. (Petition, p. 8) I take exception to the Solicitor General's stand that the grounds for removal mentioned in the Constitution are not exclusive. They are exclusive. The non-inclusion of physical causes like death, being permanently comatose on a hospital bed, or disappearance in the sinking of a ship does not justify in the slightest an act of Congress expelling one of its members for reasons other than those found in the Constitution. Resignation is provided for by the Constitution. It is voluntary renunciation. So is naturalization in a foreign country or express renunciation of Philippine citizenship. Conviction of a crime carrying a penalty of disqualification is a disqualification against running for public office. Whether or not the conviction for such a crime while the Congressman is in office may be a ground to expel him from Congress is a matter which we cannot decide obiter. We must await the proper case and controversy. My point is Congress cannot by statute or disciplinary action add to the causes for disqualification or removal of its members. Only the Constitution can do it. The citation of the precursors of B.P. 881 namely, Section 2 of Commonwealth Act No. 665, Section 27 of Article II of Rep. Act No. 180, the 1971 Election Code, and the 1978 Election Code does not help the respondents. On the contrary, they strengthen the case of the petitioner. It may be noted that all the earlier statutes about elective officials being considered resigned upon the filing of a certificate of candidacy refer to non-constitutional officers. Congress has not only the power but also the duty to prescribe causes for the removal of provincial, city, and municipal officials. It has no such power when it comes to constitutional officers. It was not alone egoistic self-interest which led the legislature during Commonwealth days or Congress in the pre-martial law period to exclude their members from the rule that the filing of a certificate of candidacy for another office meant resignation from one's current position. It was also a recognition that such a provision could not be validly enacted by statute. It has to be in the constitution. Does running for another elective office constitute voluntary renunciation of one's public office? In other words, did the Speaker and the House Secretary correctly interpret the meaning of "voluntary renunciation" as found in the Constitution? From 1935 when the Constitution was promulgated up to 1985 when B.P. 881 was enacted or for fifty long years, the filing of a certificate of candidacy by a Senator or member of the House was not voluntary renunciation of his seat in Congress. I see no reason why the passage of a statute by the Batasang Pambansa should suddenly change the meaning and implications of the act of filing and equate it with voluntary renunciation. "Voluntary" refers to a state of the mind and in the context of constitutional requirements should not be treated lightly. It is true that intentions may be deduced from a person's acts. I must stress, however, that for fifty years of ourconstitutional history, running for a local government position was not considered a voluntary renunciation. Congressman Dimaporo is steeped in the traditions of earlier years. He has been engaged in politics even before some of his present colleagues in Congress were born. Neither the respondents nor this Court can state that he intended to renounce his seat in Congress when he decided to run for Regional Governor. I submit that we should not deny to him the privilege of an existing interpretation of "voluntary renunciation" and wrongly substitute the interpretation adopted by the respondents. In interpreting the meaning of voluntary renunciation, the Court should also be guided by the principle that all presumptions should be in favor of representation.

As aptly stated by the petitioner: We should not lose sight of the fact that what we are dealing with here is not the mere right of the petitioner to sit in the House of Representatives, but more important, we are dealing with the political right of the people of the Second Legislative District of Lanao del Sur to representation in Congress, as against their disenfranchisement by mere 'administrative act' of the respondents. Such being the case, all presumptions should be strictly in favor of representation and strictly against disenfranchisement. And if disenfranchisement should there be, the same should only be by due process of law, both substantive and procedural, and not by mere arbitrary, capricious, and ultra vires, administrative act' of the respondents. (Reply to Comment, p. 5) The invocation of the principle of accountability found in Article XI of the Constitution does not empower the legislature to add to the grounds for dismissing its members. When Congressman Dimaporo ran for Regional Governor, he was not trifling with the mandate of his people. He wanted to serve a greater number in an autonomous, more direct, and intimate manner. He claims (a mistaken claim according to the Commission on Elections sustained by this Court) that he was cheated of victory during the elections for regional officers. He wants to continue serving his people. I fail to see how the principle of accountability and faithfulness to a trust could be applied to this specific cause of Congressman Dimaporo. For the Foregoing reasons, I VOTE to GRANT the petition. Padilla and Bidin, JJ., concur.

# Separate Opinions GUTIERREZ, JR., J., dissenting: I am constrained to dissent from the majority opinion. I believe that the Speaker and the Secretary of the House of Representatives have no power, in purported implementation of an invalid statute, to erase from the Rolls of the House the name of a member duly elected by his sovereign constituents to represent them in Congress. The rejection of the bid of the Honorable Mohammad Ali Dimaporo to retain his seat in Congress may appear logical, politically palatable, and and salutary to certain quarters. But I submit that it is in cases like the present petition where the Court should be vigilant in preventing the erosion of fundamental concepts of the Constitution. We must be particularly attentive to violations which are cloaked in political respectability, seemingly defensible or arguably beneficial and attractive in the short run. It is a fundamental priciple in Constitutional Law that Congress cannot add by statute or administrative act to the causes for disqualification or removal of constitutional officers. Neither can Congress provide a different procedure for disciplining Constitution. This is a true for the President and the members of Congress itself. The causes and procedures for removal found in the Constitution are not mere diciplinary measures. They are intended to protect constitutional officers in the unhampered and indepedent discharge of their functions. It is for this reason that the court should ensure that what the Constitution provides must be followed. The Constitutuion provides how the tenure of members of Congress may be shortened: A. Forefeiture of his seat by holding any other office or employment in the government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or subsidiaries (Art. VI, Section 13); B. Expulsion as a disciplinary action for disorderly behavior (Art. VI, Sec. 16[3]);

C. Disqualification as determined by resolution of the Electoral Tribubal in an election contest (Art. VI, Sec. 17); D. Voluntary renunciation of office (Art. VI, Sec. 7, par. 2). (See Petition, p. 8) The respondents would now add to the above provisions, an enactment of the defunct Batasang Pambansa promulgated long before the present Constitution took effect. B.P. Blg. 881, Article IX, Section 67 provides: Any elective official whether national or local running for any office other than the one which he is holding in a permanent capacity except for President and Vice-President shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. (Petition, p. 8) I take exception to the Solicitor General's stand that the grounds for removal mentioned in the Constitution are not exclusive. They are exclusive. The non-inclusion of physical causes like death, being permanently comatose on a hospital bed, or disappearance in the sinking of a ship does not justify in the slightest an act of Congress expelling one of its members for reasons other than those found in the Constitution. Resignation is provided for by the Constitution. It is voluntary renunciation. So is naturalization in a foreign country or express renunciation of Philippine citizenship. Conviction of a crime carrying a penalty of disqualification is a disqualification against running for public office. Whether or not the conviction for such a crime while the Congressman is in office may be a ground to expel him from Congress is a matter which we cannot decide obiter. We must await the proper case and controversy. My point is Congress cannot by statute or disciplinary action add to the causes for disqualification or removal of its members. Only the Constitution can do it. The citation of the precursors of B.P. 881 namely, Section 2 of Commonwealth Act No. 665, Section 27 of Article II of Rep. Act No. 180, the 1971 Election Code, and the 1978 Election Code does not help the respondents. On the contrary, they strengthen the case of the petitioner. It may be noted that all the earlier statutes about elective officials being considered resigned upon the filing of a certificate of candidacy refer to non-constitutional officers. Congress has not only the power but also the duty to prescribe causes for the removal of provincial, city, and municipal officials. It has no such power when it comes to constitutional officers. It was not alone egoistic self-interest which led the legislature during Commonwealth days or Congress in the pre-martial law period to exclude their members from the rule that the filing of a certificate of candidacy for another office meant resignation from one's current position. It was also a recognition that such a provision could not be validly enacted by statute. It has to be in the constitution. Does running for another elective office constitute voluntary renunciation of one's public office? In other words, did the Speaker and the House Secretary correctly interpret the meaning of "voluntary renunciation" as found in the Constitution? From 1935 when the Constitution was promulgated up to 1985 when B.P. 881 was enacted or for fifty long years, the filing of a certificate of candidacy by a Senator or member of the House was not voluntary renunciation of his seat in Congress. I see no reason why the passage of a statute by the Batasang Pambansa should suddenly change the meaning and implications of the act of filing and equate it with voluntary renunciation. "Voluntary" refers to a state of the mind and in the context of constitutional requirements should not be treated lightly. It is true that intentions may be deduced from a person's acts. I must stress, however, that for fifty years of ourconstitutional history, running for a local government position was not considered a voluntary renunciation. Congressman Dimaporo is steeped in the traditions of earlier years. He has been engaged in politics even before some of his present colleagues in Congress were born. Neither the respondents nor this Court can state that he intended to renounce his seat in Congress when he decided to run for Regional Governor. I submit that we should not deny to him the privilege of an existing interpretation of "voluntary renunciation" and wrongly substitute the interpretation adopted by the respondents. In interpreting the meaning of voluntary renunciation, the Court should also be guided by the principle that all presumptions should be in favor of representation. As aptly stated by the petitioner: We should not lose sight of the fact that what we are dealing with here is not the mere right of the petitioner to sit in the House of Representatives, but more important, we are dealing with the political right of the people of the Second Legislative District of Lanao del Sur to representation in Congress, as against their disenfranchisement by mere 'administrative act' of the respondents.

Such being the case, all presumptions should be strictly in favor of representation and strictly against disenfranchisement. And if disenfranchisement should there be, the same should only be by due process of law, both substantive and procedural, and not by mere arbitrary, capricious, and ultra vires, administrative act' of the respondents. (Reply to Comment, p. 5) The invocation of the principle of accountability found in Article XI of the Constitution does not empower the legislature to add to the grounds for dismissing its members. When Congressman Dimaporo ran for Regional Governor, he was not trifling with the mandate of his people. He wanted to serve a greater number in an autonomous, more direct, and intimate manner. He claims (a mistaken claim according to the Commission on Elections sustained by this Court) that he was cheated of victory during the elections for regional officers. He wants to continue serving his people. I fail to see how the principle of accountability and faithfulness to a trust could be applied to this specific cause of Congressman Dimaporo. For the Foregoing reasons, I VOTE to GRANT the petition. Padilla and

EN BANC

[G.R. No. 147387. December 10, 2003]

RODOLFO C. FARIAS, MANUEL M. GARCIA, FRANCIS G. ESCUDERO, and AGAPITO A. AQUINO, AS MEMBERS OF THE HOUSE OF REPRESENTATIVES AND ALSO AS TAXPAYERS, IN THEIR OWN BEHALF AND IN REPRESENTATION OF THE MEMBERS OF THE MINORITY IN THE HOUSE OF REPRESENTATIVES, petitioners, vs. THE EXECUTIVE SECRETARY, COMMISSION ON ELECTIONS, HON. FELICIANO R. BELMONTE, JR., SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT, SECRETARY OF THE SENATE, AND SECRETARY GENERAL OF THE HOUSE OF REPRESENTATIVES, respondents.

[G.R. No. 152161. December 10, 2003]

CONG. GERRY A. SALAPUDDIN, petitioner, vs. COMMISSION ON ELECTIONS, respondent. DECISION CALLEJO, SR., J.: Before the Court are two Petitions under Rule 65 of the Rules of Court, as amended, seeking to declare as unconstitutional Section 14 of Republic Act No. 9006 (The Fair Election Act), insofar as it expressly repeals Section 67 of Batas Pambansa Blg. 881 (The Omnibus Election Code) which provides: SEC. 67. Candidates holding elective office. Any elective official, whether national or local, running for any office other than the one which he is holding in a permanent capacity, except for President and Vice-President, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. The petition for certiorari and prohibition in G.R. No. 147387 was filed by Rodolfo C. Farias, Manuel M. Garcia, Francis G. Escudero and Agapito A. Aquino. At the time of filing of the petition, the petitioners were members of the minority bloc in the House of Representatives. Impleaded as respondents are: the Executive Secretary, then Speaker of the House of Representatives Feliciano R. Belmonte, Jr., the Commission on Elections, the Secretary of the Department of the Interior and Local Government (DILG), the Secretary of the Senate and the Secretary General of the House of Representatives. The petition for prohibition in G.R. No. 152161 was filed by Gerry A. Salapuddin, then also a member of the House of Representatives. Impleaded as respondent is the COMELEC.

Legislative History of Republic Act No. 9006 Rep. Act No. 9006, entitled An Act to Enhance the Holding of Free, Orderly, Honest, Peaceful and Credible Elections through Fair Election Practices, is a consolidation of the following bills originating from the House of Representatives and the Senate, respectively: House Bill (HB) No. 9000 entitled AN ACT ALLOWING THE USE OF MASS MEDIA FOR ELECTION PROPAGANDA, AMENDING FOR THE PURPOSE BATAS PAMBANSA BILANG 881, OTHERWISE KNOWN AS THE OMNIBUS ELECTION CODE, AS AMENDED, AND FOR OTHER [1] PURPOSES;

Senate Bill (SB) No. 1742 entitled AN ACT TO ENHANCE THE HOLDING OF FREE, ORDERLY, HONEST, PEACEFUL, AND CREDIBLE [2] ELECTIONS THROUGH FAIR ELECTION PRACTICES. A Bicameral Conference Committee, composed of eight members of the Senate and sixteen (16) members of the House of [4] Representatives, was formed to reconcile the conflicting provisions of the House and Senate versions of the bill. On November 29, 2000, the Bicameral Conference Committee submitted its Report, signed by its members, recommending the approval of the bill as reconciled and approved by the conferees. During the plenary session of the House of Representatives on February 5, 2001, Rep. Jacinto V. Paras proposed an amendment to the Bicameral Conference Committee Report. Rep. Didagen P. Dilangalen raised a point of order commenting that the House could no longer submit an amendment thereto. Rep. Sergio A.F. Apostol thereupon moved that the House return the report to the Bicameral Conference Committee in view of the proposed amendment thereto. Rep. Dilangalen expressed his objection to the proposal. However, upon viva voce voting, the majority of the House approved the return of the report to the Bicameral Conference [6] Committee for proper action. In view of the proposed amendment, the House of Representatives elected anew its conferees to the Bicameral Conference [8] Committee. Then again, for unclear reasons, upon the motion of Rep. Ignacio R. Bunye, the House elected another set of [9] [10] conferees to the Bicameral Conference Committee. On February 7, 2001, during the plenary session of the House of Representatives, Rep. Bunye moved that the House consider the Bicameral Conference Committee Report on the contrasting provisions of HB No. 9000 and SB No. 1742. Rep. Dilangalen observed that the report had been recommitted to the Bicameral Conference Committee. The Chair responded that the Bicameral Conference Report was a new one, and was a result of the reconvening of a new Bicameral Conference Committee. Rep. Dilangalen then asked that he be given time to examine the new report. Upon motion of Rep. Apostol, the House deferred the approval of the [11] report until the other members were given a copy thereof. After taking up other pending matters, the House proceeded to vote on the Bicameral Conference Committee Report on the disagreeing provisions of HB No. 9000 and SB No. 1742. The House approved the report with 125 affirmative votes, 3 negative votes and no abstention. In explaining their negative votes, Reps. Farias and Garcia expressed their belief that Section 14 thereof was a rider. Even Rep. Escudero, who voted in the affirmative, expressed his doubts on the constitutionality of Section 14. Prior to casting his vote, Rep. Dilangalen observed that no senator signed the Bicameral Conference Committee Report and asked if this procedure [12] was regular. On the same day, the Senate likewise approved the Bicameral Conference Committee Report on the contrasting provisions of SB No. 1742 and HB No. 9000. Thereafter, Rep. Act No. 9006 was duly signed by then Senate President Aquilino Pimentel, Jr. and then Speaker of the House of Representatives Feliciano R. Belmonte, Jr. and was duly certified by the Secretary of the Senate Lutgardo B. Barbo and the Secretary General of the House of Representatives Robert P. Nazareno as the consolidation of House Bill No. 9000 and Senate Bill No. 1742, and finally passed by both Houses on February 7, 2001. President Gloria Macapagal-Arroyo signed Rep. Act No. 9006 into law on February 12, 2001.
[7] [5] [3]

The Petitioners Case The petitioners now come to the Court alleging in the main that Section 14 of Rep. Act No. 9006, insofar as it repeals Section 67 of the Omnibus Election Code, is unconstitutional for being in violation of Section 26(1), Article VI of the Constitution, requiring every law to have only one subject which should be expressed in its title. According to the petitioners, the inclusion of Section 14 repealing Section 67 of the Omnibus Election Code in Rep. Act No. 9006 constitutes a proscribed rider. They point out the dissimilarity in the subject matter of Rep. Act No. 9006, on the one hand, and Section 67 of the Omnibus Election Code, on the other. Rep. Act No. 9006 primarily deals with the lifting of the ban on the use of media for election propaganda and the elimination of unfair election practices, while Section 67 of the Omnibus Election Code imposes a limitation on elective officials who run for an office other than the one they are holding in a permanent capacity by considering them as ipso facto resigned therefrom upon filing of the certificate of candidacy. The repeal of Section 67 of the Omnibus Election Code is thus not embraced in the title, nor germane to the subject matter of Rep. Act No. 9006.

The petitioners also assert that Section 14 of Rep. Act No. 9006 violates the equal protection clause of the Constitution because it repeals Section 67 only of the Omnibus Election Code, leaving intact Section 66 thereof which imposes a similar limitation to appointive officials, thus: SEC. 66. Candidates holding appointive office or position. Any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. They contend that Section 14 of Rep. Act No. 9006 discriminates against appointive officials. By the repeal of Section 67, an elective official who runs for office other than the one which he is holding is no longer considered ipso facto resigned therefrom upon filing his certificate of candidacy. Elective officials continue in public office even as they campaign for reelection or election for another elective position. On the other hand, Section 66 has been retained; thus, the limitation on appointive officials remains they are still considered ipso facto resigned from their offices upon the filing of their certificates of candidacy. The petitioners assert that Rep. Act No. 9006 is null and void in its entirety as irregularities attended its enactment into law. The law, not only Section 14 thereof, should be declared null and void. Even Section 16 of the law which provides that *t+his Act shall take effect upon its approval is a violation of the due process clause of the Constitution, as well as jurisprudence, which require publication of the law before it becomes effective. Finally, the petitioners maintain that Section 67 of the Omnibus Election Code is a good law; hence, should not have been [13] repealed. The petitioners cited the ruling of the Court in Dimaporo v. Mitra, Jr., that Section 67 of the Omnibus Election Code is [14] based on the constitutional mandate on the Accountability of Public Officers: Sec. 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives. Consequently, the respondents Speaker and Secretary General of the House of Representatives acted with grave abuse of discretion amounting to excess or lack of jurisdiction for not considering those members of the House who ran for a seat in the Senate during the May 14, 2001 elections as ipso facto resigned therefrom, upon the filing of their respective certificates of candidacy.

The Respondents Arguments For their part, the respondents, through the Office of the Solicitor General, urge this Court to dismiss the petitions contending, preliminarily, that the petitioners have no legal standing to institute the present suit. Except for the fact that their negative votes were overruled by the majority of the members of the House of Representatives, the petitioners have not shown that they have suffered harm as a result of the passage of Rep. Act No. 9006. Neither do petitioners have any interest as taxpayers since the assailed statute does not involve the exercise by Congress of its taxing or spending power. Invoking the enrolled bill doctrine, the respondents refute the petitioners allegations that irregularities attended the enactment of Rep. Act No. 9006. The signatures of the Senate President and the Speaker of the House, appearing on the bill and the certification signed by the respective Secretaries of both houses of Congress, constitute proof beyond cavil that the bill was duly enacted into law. The respondents contend that Section 14 of Rep. Act No. 9006, as it repeals Section 67 of the Omnibus Election Code, is not a proscribed rider nor does it violate Section 26(1) of Article VI of the Constitution. The title of Rep. Act No. 9006, An Act to Enhance the Holding of Free, Orderly, Honest, Peaceful and Credible Elections through Fair Election Practices, is so broad that it encompasses all the processes involved in an election exercise, including the filing of certificates of candidacy by elective officials. They argue that the repeal of Section 67 is germane to the general subject of Rep. Act No. 9006 as expressed in its title as it eliminates the effect of prematurely terminating the term of an elective official by his filing of a certificate of candidacy for an office other than the one which he is permanently holding, such that he is no longer considered ipso facto resigned therefrom. The legislature, by including the repeal of Section 67 of the Omnibus Election Code in Rep. Act No. 9006, has deemed it fit to remove the unfairness of considering an elective official ipso factoresigned from his office upon the filing of his certificate of candidacy for another elective office. With the repeal of Section 67, all elective officials are now placed on equal footing as they are allowed to finish their respective terms even if they run for any office, whether the presidency, vice-presidency or other elective positions, other than the one they are holding in a permanent capacity.

The respondents assert that the repeal of Section 67 of the Omnibus Election Code need not be expressly stated in the title of Rep. Act No. 9006 as the legislature is not required to make the title of the act a complete index of its contents. It must be deemed sufficient that the title be comprehensive enough reasonably to include the general subject which the statute seeks to effect without expressing each and every means necessary for its accomplishment. Section 26(1) of Article VI of the Constitution merely calls for all the parts of an act relating to its subject to find expression in its title. Mere details need not be set forth. According to the respondents, Section 14 of Rep. Act No. 9006, insofar as it repeals Section 67, leaving Section 66 of the Omnibus Election Code intact and effective, does not violate the equal protection clause of the Constitution. Section 67 pertains to elective officials while Section 66 pertains to appointive officials. A substantial distinction exists between these two sets of officials; elective officials occupy their office by virtue of their mandate based upon the popular will, while the appointive officials are not elected by popular will. The latter cannot, therefore, be similarly treated as the former. Equal protection simply requires that all persons or things similarly situated are treated alike, both as to rights conferred and responsibilities imposed. Further, Section 16, or the Effectivity clause, of Rep. Act No. 9006 does not run afoul of the due process clause of the Constitution as it does not entail any arbitrary deprivation of life, liberty and property. Specifically, the section providing for penalties in cases of violations thereof presume that the formalities of the law would be observed, i.e., charges would first be filed, and the accused would be entitled to a hearing before judgment is rendered by a court having jurisdiction. In any case, the issue about lack of due process is premature as no one has, as yet, been charged with violation of Rep. Act No. 9006. Finally, the respondents submit that the respondents Speaker and Secretary General of the House of Representatives did not commit grave abuse of discretion in not excluding from the Rolls those members thereof who ran for the Senate during the May 14, 2001 elections. These respondents merely complied with Rep. Act No. 9006, which enjoys the presumption of validity until declared otherwise by the Court.

The Courts Ruling Before resolving the petitions on their merits, the Court shall first rule on the procedural issue raised by the respondents, i.e., whether the petitioners have the legal standing or locus standi to file the petitions at bar. The petitions were filed by the petitioners in their capacities as members of the House of Representatives, and as taxpayers and registered voters. Generally, a party who impugns the validity of a statute must have a personal and substantial interest in the case such that he [15] has sustained, or will sustain, direct injury as a result of its enforcement. The rationale for requiring a party who challenges the constitutionality of a statute to allege such a personal stake in the outcome of the controversy is to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult [16] constitutional questions. However, being merely a matter of procedure, this Court, in several cases involving issues of overarching significance to our [17] [18] society, had adopted a liberal stance on standing. Thus, inTatad v. Secretary of the Department of Energy, this Court brushed aside the procedural requirement of standing, took cognizance of, and subsequently granted, the petitions separately filed by then Senator Francisco Tatad and several members of the House of Representatives assailing the constitutionality of Rep. Act No. 8180 (An Act Deregulating the Downstream Oil Industry and For Other Purposes). The Court likewise took cognizance of the petition filed by then members of the House of Representatives which impugned as unconstitutional the validity of a provision of Rep. Act No. 6734 (Organic Act for the Autonomous Region in Muslim Mindanao) [19] in Chiongbian v. Orbos. Similarly, the Court took cognizance of the petition filed by then members of the Senate, joined by other petitioners, which challenged the validity of Rep. Act No. 7716 (Expanded Value Added Tax Law) in Tolentino v. Secretary of [20] Finance. Members of Congress, such as the petitioners, were likewise allowed by this Court to challenge the validity of acts, decisions, rulings, or orders of various government agencies or instrumentalities in Del Mar v. Philippine Amusement and Gaming [21] [22] [23] Corporation, Kilosbayan, Inc. v. Guingona, Jr., Philippine Constitution Association v. Enriquez, Albano v. [24] [25] Reyes, and Bagatsing v. Committee on Privatization. Certainly, the principal issue posed by the petitions, i.e., whether Section 67 of the Omnibus Election Code, which this Court [26] had declared in Dimaporo as deriving its existence from the constitutional provision on accountability of public officers, has been validly repealed by Section 14 of Rep. Act No. 9006, is one of overarching significance that justifies this Courts adoption of a liberal stance vis--vis the procedural matter on standing. Moreover, with the national elections barely seven months away, it behooves the Court to confront the issue now and resolve the same forthrightly. The following pronouncement of the Court is quite apropos:

... All await the decision of this Court on the constitutional question. Considering, therefore, the importance which the instant case has assumed and to prevent multiplicity of suits, strong reasons of public policy demand that [its] constitutionality . . . be now resolved. It may likewise be added that the exceptional character of the situation that confronts us, the paramount public interest, [27] and the undeniable necessity for a ruling, the national elections beings barely six months away, reinforce our stand. Every statute is presumed valid. The presumption is that the legislature intended to enact a valid, sensible and just law and [29] one which operates no further than may be necessary to effectuate the specific purpose of the law. It is equally well-established, however, that the courts, as guardians of the Constitution, have the inherent authority to [30] determine whether a statute enacted by the legislature transcends the limit imposed by the fundamental law. And where the acts [31] of the other branches of government run afoul of the Constitution, it is the judiciarys solemn and sacred duty to nullify the same. Proceeding from these guideposts, the Court shall now resolve the substantial issues raised by the petitions.
[28]

Section 14 of Rep. Act [32] No. 9006 Is Not a Rider At the core of the controversy is Section 14, the repealing clause of Rep. Act No. 9006, which provides: Sec. 14. Sections 67 and 85 of the Omnibus Election Code (Batas Pambansa Blg. 881) and Sections 10 and 11 of Republic Act No. 6646 are hereby repealed. As a consequence, the first proviso in the third paragraph of Section 11 of Republic Act No. 8436 is rendered ineffective. All laws, presidential decrees, executive orders, rules and regulations, or any part thereof inconsistent with the provisions of this Act are hereby repealed or modified or amended accordingly. The repealed provision, Section 67 of the Omnibus Election Code, quoted earlier, reads: SEC. 67. Candidates holding elective office. Any elective official, whether national or local, running for any office other than the one which he is holding in a permanent capacity, except for President and Vice-President, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. Section 26(1), Article VI of the Constitution provides: SEC. 26 (1). Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof. The proscription is aimed against the evils of the so-called omnibus bills and log-rolling legislation as well as surreptitious and/or unconsidered encroaches. The provision merely calls for all parts of an act relating to its subject finding expression in its [33] title. To determine whether there has been compliance with the constitutional requirement that the subject of an act shall be expressed in its title, the Court laid down the rule that Constitutional provisions relating to the subject matter and titles of statutes should not be so narrowly construed as to cripple or impede the power of legislation. The requirement that the subject of an act shall be expressed in its title should receive a reasonable and not a technical construction. It is sufficient if the title be comprehensive enough reasonably to include the general object which a statute seeks to effect, without expressing each and every end and means necessary or convenient for the [34] accomplishing of that object. Mere details need not be set forth. The title need not be an abstract or index of the Act. The title of Rep. Act No. 9006 reads: An Act to Enhance the Holding of Free, Orderly, Honest, Peaceful and Credible Elections through Fair Election Practices. Section 2 of the law provides not only the declaration of principles but also the objectives thereof: Sec. 2. Declaration of Principles. The State shall, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of media of communication or information to guarantee or ensure equal opportunity for public service, including access to media time and space, and the equitable right to reply, for public information campaigns and fora among candidates and assure free, orderly, honest, peaceful and credible elections.

The State shall ensure that bona fide candidates for any public office shall be free from any form of harassment and [35] discrimination. The Court is convinced that the title and the objectives of Rep. Act No. 9006 are comprehensive enough to include the repeal of Section 67 of the Omnibus Election Code within its contemplation. To require that the said repeal of Section 67 of the Code be [36] expressed in the title is to insist that the title be a complete index of its content. The purported dissimilarity of Section 67 of the Omnibus Election Code, which imposes a limitation on elective officials who run for an office other than the one they are holding, to the other provisions of Rep. Act No. 9006, which deal with the lifting of the ban on the use of media for election propaganda, does not violate the one subject-one title rule. This Court has held that an act having a single general subject, indicated in the title, may contain any number of provisions, no matter how diverse they may be, so long as they are not inconsistent with or foreign to the general subject, and may be considered in furtherance of such subject by providing [37] for the method and means of carrying out the general subject. The deliberations of the Bicameral Conference Committee on the particular matter are particularly instructive: SEN. LEGARDA-LEVISTE: Yes, Mr. Chairman, I just wanted to clarify. So all were looking for now is an appropriate title to make it broader so that it would cover this provision *referring to the repeal of Section 67 of the Omnibus Election Code], is that correct? Thats all. Because I believe ... THE CHAIRMAN (REP. SYJUCO): We are looking for an appropriate coverage which will result in the nomenclature or title. SEN. LEGARDA-LEVISTE: Because I really do not believe that it is out of place. I think that even with the term fair election practice, it really covers it, because as expressed by Senator Roco, those conditions inserted earlier seemed unfair and it is an election practice and, therefore, I think, Im very comfortable with the title Fair Election Practice so that we can get over with these things so that we dont come back again until we find the title. I mean, its one provision which I think is fair for everybody. It may seem like a limitation but this limitation actually provides for fairness in election practices as the title implies. THE CHAIRMAN (REP. SYJUCO): Yes. SEN. LEGARDA-LEVISTE: So I would want to beg the House contingent, lets get it over with. To me, ha, its not a very touchy issue. For me, its even a very correct provision. I feel very comfortable with it and it was voted in the Senate, at least, so I would like to appeal to the ... para matapos na, then we come back as a Bicam just for the title Is that what youre ...? THE CHAIRMAN (REP. SYJUCO): Its not the title per se, its the coverage. So if you will just kindly bear with us. Im happy that there is already one comfortable senator there among ... several of us were also comfortable with it. But it would be well that when we rise from this Bicam that were all comfortable with it. THE CHAIRMAN (SEN. ROCO): Yes. Anyway, lets listen to Congressman Marcos. REP. MARCOS: Mr. Chairman, may I just make the observation that although it is true that the bulk of provisions deals with the area of propaganda and political advertising, the complete title is actually one that indulge full coverage. It says An Act to enhance the holding of free, orderly, honest ... elections through fair election practices. But as you said, we will put that aside to discuss later one. Secondly, I think the Declaration of Principles contained in Section 2, paragraph 2 is perfectly adequate in that it says that it shall ensure candidates for public office that may be free from any form of harassment and discrimination.

Surely this provision in Section 67 of the old Election Code of the existing Omnibus Election Code is a form of harassment or discrimination. And so I think that in the effort at leveling the playing field, we can cover this and it should not be considered a rider. SEN. LEGARDA-LEVISTE: I agree, Mr. Chairman. I think the Congresswoman from Ilocos had very clearly put it, that it is covered in the Declaration of Principles and in the objective of this bill. And therefore, I hope that the House contingent would agree to this so that we can finish it now. And it expressly provides for fair election practices because ... THE CHAIRMAN (SEN. ROCO): Yeah, I think what is on the table is that we are not disputing this, but we are looking for a title that is more generic so that then we have less of an objection on constitutionality. I think thats the theory. So, there is acceptance of this. Maybe we should not call it na limitation on elected officials. Maybe we should say the special provision on elected officials. So how is that? Alam mo ito ... REP. MARCOS: I think we just change the Section 1, the short title. THE CHAIRMAN (SEN. ROCO): Also, Then we say - - on the short title of the Act, we say ... REP. MARCOS: What if we say fair election practices? Maybe that should be changed... THE CHAIRMAN (SEN. ROCO): O, sige, fine, fine. Lets a brainstorm. Equal... REP. PADILLA: Mr. Chairman, why dont we use An Act rationalizing the holding of free, orderly, honest, peaceful and credible elections, amending for the purpose Batasang Pambansa known as the Omnibus Election Code? THE CHAIRMAN (SEN. ROCO): Why dont we remove fair and then this shall be cited as Election Practices Act? REP. PICHAY: Thats not an election practice. Thats a limitation. THE CHAIRMAN (SEN. ROCO): Ah - - - ayaw mo iyong practice. O, give me another noun. REP. MARCOS: The Fair Election. THE CHAIRMAN (SEN. ROCO): O, Fair Election Act. REP. MACARAMBON: Nagbi-brainstorm tayo dito, eh. How about if we change the title to enhance the holding of free, orderly, honest, peaceful and ensure equal opportunity for public service through fair election practices? REP. PICHAY: Fair election practices? REP. MACARAMBON:

Yeah. To ensure equal opportunity for public service through fair ... THE CHAIRMAN (SEN. ROCO): Wala nang practices nga. REP. PICHAY: Wala nang practices. THE CHAIRMAN (SEN. ROCO): It shall be cited as Fair Election Act. (Informal discussions) REP. PICHAY: Approve na iyan. THE CHAIRMAN (SEN. ROCO): Done. So, okay na iyon. The title will be Fair Election Act. The rest wala nang problema ano? VOICES: Wala na. REP. MACARAMBON: Wala na iyong practices? THE CHAIRMAN (SEN. ROCO): Wala na, wala na. Mahina tayo sa practice, eh. O, wala na? We will clean up. REP. MARCOS: Title? THE CHAIRMAN (SEN. ROCO): The short title, This Act ... THE CHAIRMAN (REP. SYJUCO): Youre back to your No. 21 already. REP. MARCOS: The full title, the same? THE CHAIRMAN (SEN. ROCO): Iyon na nga. The full title is An Act to enhance the holding ... Thats the House version, eh, dahil pareho, hindi [38] ba? Then the short title This Act shall be known as the Fair Election Act. The legislators considered Section 67 of the Omnibus Election Code as a form of harassment or discrimination that had to be done away with and repealed. The executive department found cause with Congress when the President of the Philippines signed the measure into law. For sure, some sectors of society and in government may believe that the repeal of Section 67 is bad policy as it would encourage political adventurism. But policy matters are not the concern of the Court. Government policy is within the [39] exclusive dominion of the political branches of the government. It is not for this Court to look into the wisdom or propriety of legislative determination. Indeed, whether an enactment is wise or unwise, whether it is based on sound economic theory, whether it is the best means to achieve the desired results, whether, in short, the legislative discretion within its prescribed limits should be exercised in a particular manner are matters for the judgment of the legislature, and the serious conflict of opinions does not suffice [40] to bring them within the range of judicial cognizance. Congress is not precluded from repealing Section 67 by the ruling of the [41] Court in Dimaporo v. Mitra upholding the validity of the provision and by its pronouncement in the same case that the provision

has a laudable purpose. Over time, Congress may find it imperative to repeal the law on its belief that the election process is thereby enhanced and the paramount objective of election laws the fair, honest and orderly election of truly deserving members of Congress is achieved. Moreover, the avowed purpose of the constitutional directive that the subject of a bill should be embraced in its title is to apprise the legislators of the purposes, the nature and scope of its provisions, and prevent the enactment into law of matters which [42] have not received the notice, action and study of the legislators and the public. In this case, it cannot be claimed that the legislators were not apprised of the repeal of Section 67 of the Omnibus Election Code as the same was amply and comprehensively deliberated upon by the members of the House. In fact, the petitioners, as members of the House of Representatives, expressed their reservations regarding its validity prior to casting their votes. Undoubtedly, the legislators were aware of the existence of the provision repealing Section 67 of the Omnibus Election Code.

Section 14 of Rep. Act No. 9006 Is Not Violative of the Equal [43] Protection Clause of the Constitution The petitioners contention, that the repeal of Section 67 of the Omnibus Election Code pertaining to elective officials gives undue benefit to such officials as against the appointive ones and violates the equal protection clause of the constitution, is tenuous. The equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable classification. If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently [44] from the other. The Court has explained the nature of the equal protection guarantee in this manner: The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and [45] those who do not. Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon [46] stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of [47] [48] tenure while others serve at the pleasure of the appointing authority. Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987 (Executive Order No. 292), appointive officials, as officers and employees in the civil service, are strictly prohibited from engaging in any partisan political activity or take part in any election except to vote. Under the same provision, elective officials, or officers or employees holding political offices, are obviously expressly [49] allowed to take part in political and electoral activities. By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators deemed it proper to treat these two classes of officials differently with respect to the effect on their tenure in the office of the filing of the certificates of candidacy for any position other than those occupied by them. Again, it is not within the power of the Court to pass upon or look into the wisdom of this classification. Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis-a-vis appointive officials, is anchored upon material and significant distinctions and all the persons belonging under the same classification are similarly treated, the equal protection clause of the Constitution is, thus, not infringed.

The Enrolled Bill Doctrine Is Applicable In this Case

Not content with their plea for the nullification of Section 14 of Rep. Act No. 9006, the petitioners insist that the entire law should be nullified. They contend that irregularities attended the passage of the said law particularly in the House of Representatives catalogued thus: a. Creation of two (2) sets of BCC (Bicameral Conference Committee) members by the House during its session on February 5, 2001; No communication from the Senate for a conference on the compromise bill submitted by the BCC on November 29, 2000; The new Report submitted by the 2 /3 BCC was presented for approval on the floor without copies thereof being furnished the members; The 2 /3 BCC has no record of its proceedings, and the Report submitted by it was not signed by the Chairman (Sen. Roco) thereof as well as its senator-members at the time it was presented to and rammed for approval by the House; There was no meeting actually conducted by the 2 /3 BCC and that its alleged Report was instantly made and passed around for the signature of the BCC members; The Senate has no record of the creation of a 2 BCC but only of the first one that convened on November 23, 2000; The Effectivity clauses of SB No. 1741 and HB No. 9000, as well as that of the compromise bill submitted by the BCC that convened on November 20, 2000, were couched in terms that comply with the publication required by the Civil Code and jurisprudence, to wit: ... However, it was surreptitiously replaced in its final form as it appears in 16, R.A. No. 9006, with the provision that This Act shall take effect immediately upon its approval; h. The copy of the compromise bill submitted by the 2 /3 BCC that was furnished the members during its consideration on February 7, 2001, did not have the same 16 as it now appears in RA No. 9006, but 16 of the compromise bill, HB 9000 and SB 1742, reasons for which no objection thereto was made; The alleged BCC Report presented to the House on February 7, 2001, did not contain a detailed, sufficiently explicit statement of the changes in or amendments to the subject measure; and The disappearance of the Cayetano amendment, which is Section 12 of the compromise bill submitted by the BCC. In fact, this was the subject of the purported proposed amendment to the compromise bill of Member Paras as stated in paragraph 7 hereof. The said provision states, thusly: Sec. 12. Limitation on Elected Officials. Any elected official who runs for president and vicepresident shall be considered ipso facto resigned from his office upon the filing of the certificate [50] of candidacy. The petitioners, thus, urge the Court to go behind the enrolled copy of the bill. The Court is not persuaded. Under the enrolled bill doctrine, the signing of a bill by the Speaker of the House and the Senate President and the certification of the [51] Secretaries of both Houses of Congress that it was passed are conclusive of its due enactment. A review of cases reveals the Courts consistent adherence to the rule. The Court finds no reason to deviate from the salutary rule in this case where the nd rd irregularities alleged by the petitioners mostly involved the internal rules of Congress, e.g., creation of the 2 or 3 Bicameral Conference Committee by the House. This Court is not the proper forum for the enforcement of these internal rules of Congress, whether House or Senate. Parliamentary rules are merely procedural and with their observance the courts have no [52] concern. Whatever doubts there may be as to the formal validity of Rep. Act No. 9006 must be resolved in its favor. The Court [53] reiterates its ruling in Arroyo v. De Venecia, viz.:
nd rd nd nd rd nd rd nd rd

b.

c.

d.

e.

f. g.

i.

j.

But the cases, both here and abroad, in varying forms of expression, all deny to the courts the power to inquire into allegations that, in enacting a law, a House of Congress failed to comply with its own rules, in the absence of showing that there was a violation of a constitutional provision or the rights of private individuals. In Osmea v. Pendatun, it was held: At any rate, courts have declared that the rules adopted by deliberative bodies are subject to revocation, modification or waiver at the pleasure of the body adopting them. And it has been said that Parliamentary rules are merely procedural, and with their observance, the courts have no concern. They may be waived or disregarded by the legislative body. Consequently, mere failure to conform to parliamentary usage will not invalidate the action (taken by a deliberative body) when the requisite number of members have agreed to a particular measure.

The Effectivity Clause Is Defective Finally, the Effectivity clause (Section 16) of Rep. Act No. 9006 which provides that it shall take effect immediately upon its [54] approval, is defective. However, the same does not render the entire law invalid. In Taada v. Tuvera, this Court laid down the rule: ... the clause unless it is otherwise provided refers to the date of effectivity and not to the requirement of publication itself, which cannot in any event be omitted. This clause does not mean that the legislator may make the law effective immediately upon approval, or on any other date without its previous publication. Publication is indispensable in every case, but the legislature may in its discretion provide that the usual fifteen-period shall be [55] shortened or extended. Following Article 2 of the Civil Code and the doctrine enunciated in Taada, Rep. Act No. 9006, notwithstanding its express statement, took effect fifteen days after its publication in the Official Gazette or a newspaper of general circulation. In conclusion, it bears reiterating that one of the firmly entrenched principles in constitutional law is that the courts do not involve themselves with nor delve into the policy or wisdom of a statute. That is the exclusive concern of the legislative branch of the government. When the validity of a statute is challenged on constitutional grounds, the sole function of the court is to [57] determine whether it transcends constitutional limitations or the limits of legislative power. No such transgression has been shown in this case. WHEREFORE, the petitions are DISMISSED. No pronouncement as to costs. SO ORDERED. Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Corona, Carpio-Morales, Azcuna, and Tinga, JJ., concur. Sandoval-Gutierrez, Carpio, Austria-Martinez,
[56]

May 10, 2004 elections. As it were, existing COMELEC policy provides for the non-inclusion of the name of substitute candidates in the certified list of candidates pending approval of the substitution. Not to be overlooked is the Courts holding in Miranda vs. Abaya,[22] that a candidate whose certificate of candidacy has been cancelled or not given due course cannot be substituted by another belonging to the same political party as that of the former, thus: While there is no dispute as to whether or not a nominee of a registered or accredited political party may substitute for a candidate of the same party who had been disqualified for any cause, this does not include those cases where the certificate of candidacy of the person to be substituted had been denied due course and cancelled under Section 78 of the Code. Expressio unius est exclusio alterius. While the law enumerated the occasions where a candidate may be validly substituted, there is no mention of the case where a candidate is excluded not only by disqualification but also by denial and cancellation of his certificate of candidacy. Under the foregoing rule, there can be no valid substitution for the latter case, much in the same way that a nuisance candidate whose certificate of candidacy is denied due course and/or cancelled may not be substituted. If the intent of the lawmakers were otherwise, they could have so easily and conveniently included those persons whose certificates of candidacy have been denied due course and/or cancelled under the provisions of Section 78 of the Code. xxx xxx xxx A person without a valid certificate of candidacy cannot be considered a candidate in much the same way as any person who has not filed any certificate of candidacy at all can not, by any stretch of the imagination, be a candidate at all. xxx xxx xxx After having considered the importance of a certificate of candidacy, it can be readily understood why in Bautista [Bautista vs. Comelec, G.R. No. 133840, November 13, 1998] we ruled that a person with a cancelled certificate is no candidate at all. Applying this principle to the case at bar and considering that Section 77 of the Code is clear and unequivocal that only an official candidate of a registered or accredited party may be substituted, there demonstrably cannot be any possible substitution of a person whose certificate of candidacy has been cancelled and denied due course. In any event, with the hard reality that the May 10, 2004 elections were already pass, Rommel Ongs petition in G.R. No. 163354 is already moot and academic. WHEREFORE, the instant petitions are DISMISSED and the assailed en banc Resolution dated May 7, 2004 of the COMELEC, in SPA No. 04-048 AFFIRMED. Costs against petitioners. SO ORDERED. CANCIO C. GARCIA Associate Justice WE CONCUR:

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