G.R. No.

181613 November 25, 2009

ROSALINDA A. PENERA, Petitioner,
vs.
COMMISSION ON ELECTIONS and EDGAR T. ANDANAR, Respondents.
RESOLUTION
CARPIO, J.:
We grant Rosalinda A. Penera’s (Penera) motion for reconsideration of this Court’s Decision of 11 September 2009 (Decision).
The assailed Decision dismissed Penera’s petition and affirmed the Resolution dated 30 July 2008 of the COMELEC En Banc as well as
the Resolution dated 24 July 2007 of the COMELEC Second Division. The Decision disqualified Penera from running for the office of
Mayor in Sta. Monica, Surigao del Norte and declared that the Vice-Mayor should succeed Penera.
In support of her motion for reconsideration, Penera submits the following arguments:
1. Penera was not yet a candidate at the time of the incident under Section 11 of RA 8436 as amended by Section 13 of RA
9369.
2. The petition for disqualification failed to submit convincing and substantial evidence against Penera for violation of
Section 80 of the Omnibus Election Code.
3. Penera never admitted the allegations of the petition for disqualification and has consistently disputed the charge of
premature campaigning.
4. The admission that Penera participated in a motorcade is not the same as admitting she engaged in premature election
campaigning.
Section 79(a) of the Omnibus Election Code defines a "candidate" as "any person aspiring for or seeking an elective public office, who
has filed a certificate of candidacy x x x." The second sentence, third paragraph, Section 15 of RA 8436, as amended by Section 13
of RA 9369, provides that "[a]ny person who files his certificate of candidacy within [the period for filing] shall only be considered as
a candidate at the start of the campaign period for which he filed his certificate of candidacy." The immediately succeeding proviso
in the same third paragraph states that "unlawful acts or omissions applicable to a candidate shall take effect only upon the start of
the aforesaid campaign period." These two provisions determine the resolution of this case.
The Decision states that "[w]hen the campaign period starts and [the person who filed his certificate of candidacy] proceeds with
his/her candidacy, his/her intent turning into actuality, we can already consider his/her acts, after the filing of his/her COC and
prior to the campaign period, as the promotion of his/her election as a candidate, hence, constituting premature campaigning, for
which he/she may be disqualified."1
Under the Decision, a candidate may already be liable for premature campaigning after the filing of the certificate of candidacy but
even before the start of the campaign period. From the filing of the certificate of candidacy, even long before the start of the
campaign period, the Decision considers the partisan political acts of a person so filing a certificate of candidacy "as the promotion
of his/her election as a candidate." Thus, such person can be disqualified for premature campaigning for acts done before the start
of the campaign period. In short, the Decision considers a person who files a certificate of candidacy already a "candidate" even
before the start of the campaign period. lawphil
The assailed Decision is contrary to the clear intent and letter of the law.
The Decision reverses Lanot v. COMELEC,2 which held that a person who files a certificate of candidacy is not a candidate until
the start of the campaign period. In Lanot, this Court explained:
Thus, the essential elements for violation of Section 80 of the Omnibus Election Code are: (1) a person engages in an election
campaign or partisan political activity; (2) the act is designed to promote the election or defeat of a particular candidate or
candidates; (3) the act is done outside the campaign period.
The second element requires the existence of a "candidate." Under Section 79(a), a candidate is one who "has filed a certificate of
candidacy" to an elective public office. Unless one has filed his certificate of candidacy, he is not a "candidate." The third element
requires that the campaign period has not started when the election campaign or partisan political activity is committed.
Assuming that all candidates to a public office file their certificates of candidacy on the last day, which under Section 75 of the
Omnibus Election Code is the day before the start of the campaign period, then no one can be prosecuted for violation of Section 80
for acts done prior to such last day. Before such last day, there is no "particular candidate or candidates" to campaign for or against.
On the day immediately after the last day of filing, the campaign period starts and Section 80 ceases to apply since Section 80
covers only acts done "outside" the campaign period.
Thus, if all candidates file their certificates of candidacy on the last day, Section 80 may only apply to acts done on such last day,
which is before the start of the campaign period and after at least one candidate has filed his certificate of candidacy. This is
perhaps the reason why those running for elective public office usually file their certificates of candidacy on the last day or close to
the last day.
There is no dispute that Eusebio’s acts of election campaigning or partisan political activities were committed outside of the
campaign period. The only question is whether Eusebio, who filed his certificate of candidacy on 29 December 2003, was a
"candidate" when he committed those acts before the start of the campaign period on 24 March 2004.
Section 11 of Republic Act No. 8436 ("RA 8436") moved the deadline for the filing of certificates of candidacy to 120 days before
election day. Thus, the original deadline was moved from 23 March 2004 to 2 January 2004, or 81 days earlier. The crucial question
is: did this change in the deadline for filing the certificate of candidacy make one who filed his certificate of candidacy before 2
January 2004 immediately liable for violation of Section 80 if he engaged in election campaign or partisan political activities prior to
the start of the campaign period on 24 March 2004?
Section 11 of RA 8436 provides:
SECTION 11. Official Ballot. – The Commission shall prescribe the size and form of the official ballot which shall contain the titles of
the positions to be filled and/or the propositions to be voted upon in an initiative, referendum or plebiscite. Under each position,
the names of candidates shall be arranged alphabetically by surname and uniformly printed using the same type size. A fixed space
where the chairman of the Board of Election Inspectors shall affix his/her signature to authenticate the official ballot shall be
provided.
Both sides of the ballots may be used when necessary.
For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/ manifestation to participate in the
election shall not be later than one hundred twenty (120) days before the elections: Provided, That, any elective official, whether
national or local, running for any office other than the one which he/she is holding in a permanent capacity, except for president
and vice-president, shall be deemed resigned only upon the start of the campaign period corresponding to the position for which
he/she is running: Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of
the aforesaid campaign period: Provided, finally, That, for purposes of the May 11, 1998 elections, the deadline for filing of the
certificate of candidacy for the positions of President, Vice-President, Senators and candidates under the party-list system as well as
petitions for registration and/or manifestation to participate in the party-list system shall be on February 9, 1998 while the deadline
for the filing of certificate of candidacy for other positions shall be on March 27, 1998.
The official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas at the price comparable
with that of private printers under proper security measures which the Commission shall adopt. The Commission may contract the
services of private printers upon certification by the National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the
printing requirements. Accredited political parties and deputized citizens’ arms of the Commission may assign watchers in the
printing, storage and distribution of official ballots.
To prevent the use of fake ballots, the Commission through the Committee shall ensure that the serial number on the ballot stub
shall be printed in magnetic ink that shall be easily detectable by inexpensive hardware and shall be impossible to reproduce on a
photocopying machine, and that identification marks, magnetic strips, bar codes and other technical and security markings, are
provided on the ballot.
The official ballots shall be printed and distributed to each city/municipality at the rate of one (1) ballot for every registered voter
with a provision of additional four (4) ballots per precinct.
Under Section 11 of RA 8436, the only purpose for the early filing of certificates of candidacy is to give ample time for the printing
of official ballots. This is clear from the following deliberations of the Bicameral Conference Committee:
SENATOR GONZALES. Okay. Then, how about the campaign period, would it be the same[,] uniform for local and national officials?
THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree to retaining it at the present periods.
SENATOR GONZALES. But the moment one files a certificate of candidacy, he’s already a candidate, and there are many prohibited
acts on the part of candidate.
THE CHAIRMAN (REP. TANJUATCO). Unless we. . . .
SENATOR GONZALES. And you cannot say that the campaign period has not yet began (sic).
THE CHAIRMAN (REP. TANJUATCO). If we don’t provide that the filing of the certificate will not bring about one’s being a candidate.
SENATOR GONZALES. If that’s a fact, the law cannot change a fact.
THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide that the filing of the certificate of candidacy will not result in that
official vacating his position, we can also provide that insofar he is concerned, election period or his being a candidate will not yet
commence. Because here, the reason why we are doing an early filing is to afford enough time to prepare this machine readable
ballots.
So, with the manifestations from the Commission on Elections, Mr. Chairman, the House Panel will withdraw its proposal and will
agree to the 120-day period provided in the Senate version.
THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr. Chairman.
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SENATOR GONZALES. How about prohibition against campaigning or doing partisan acts which apply immediately upon being a
candidate?
THE CHAIRMAN (REP. TANJUATCO). Again, since the intention of this provision is just to afford the Comelec enough time to print the
ballots, this provision does not intend to change the campaign periods as presently, or rather election periods as presently fixed by
existing law.
THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be subject to the other prohibition.
THE CHAIRMAN (REP. TANJUATCO). That’s right.
THE ACTING CHAIRMAN (SEN. FERNAN). Okay.
THE CHAIRMAN (REP. TANJUATCO). In other words, actually, there would be no conflict anymore because we are talking about the
120-day period before election as the last day of filing a certificate of candidacy, election period starts 120 days also. So that is
election period already. But he will still not be considered as a candidate.
Thus, because of the early deadline of 2 January 2004 for purposes of printing of official ballots, Eusebio filed his certificate of
candidacy on 29 December 2003. Congress, however, never intended the filing of a certificate of candidacy before 2 January 2004 to
make the person filing to become immediately a "candidate" for purposes other than the printing of ballots. This legislative intent
prevents the immediate application of Section 80 of the Omnibus Election Code to those filing to meet the early deadline. The clear
intention of Congress was to preserve the "election periods as x x x fixed by existing law" prior to RA 8436 and that one who files to
meet the early deadline "will still not be considered as a candidate."3 (Emphasis in the original)
Lanot was decided on the ground that one who files a certificate of candidacy is not a candidate until the start of the campaign
period. This ground was based on the deliberations of the legislators who explained the intent of the provisions of RA 8436, which
laid the legal framework for an automated election system. There was no express provision in the original RA 8436 stating that one
who files a certificate of candidacy is not a candidate until the start of the campaign period.
When Congress amended RA 8436, Congress decided to expressly incorporate the Lanot doctrine into law, realizing that Lanot
merely relied on the deliberations of Congress in holding that —
The clear intention of Congress was to preserve the "election periods as x x x fixed by existing law" prior to RA 8436 and that one
who files to meet the early deadline "will still not be considered as a candidate." 4 (Emphasis supplied)
Congress wanted to insure that no person filing a certificate of candidacy under the early deadline required by the automated
election system would be disqualified or penalized for any partisan political act done before the start of the campaign period. Thus,
in enacting RA 9369, Congress expressly wrote the Lanot doctrine into the second sentence, third paragraph of the amended Section
15 of RA 8436, thus:
xxx
For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition for
registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall
only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That,
unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period:
Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and
officers and employees in government-owned or -controlled corporations, shall be considered ipso facto resigned from his/her office
and must vacate the same at the start of the day of the filing of his/her certificate of candidacy. (Boldfacing and underlining
supplied)
Congress elevated the Lanot doctrine into a statute by specifically inserting it as the second sentence of the third paragraph of the
amended Section 15 of RA 8436, which cannot be annulled by this Court except on the sole ground of its unconstitutionality. The
Decision cannot reverse Lanot without repealing this second sentence, because to reverse Lanot would mean repealing this second
sentence.
The assailed Decision, however, in reversing Lanot does not claim that this second sentence or any portion of Section 15 of RA 8436,
as amended by RA 9369, is unconstitutional. In fact, the Decision considers the entire Section 15 good law. Thus, the Decision is self-
contradictory — reversing Lanot but maintaining the constitutionality of the second sentence, which embodies the Lanot doctrine. In
so doing, the Decision is irreconcilably in conflict with the clear intent and letter of the second sentence, third paragraph, Section
15 of RA 8436, as amended by RA 9369.
In enacting RA 9369, Congress even further clarified the first proviso in the third paragraph of Section 15 of RA 8436. The original
provision in RA 8436 states —
x x x Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid
campaign period, x x x.
In RA 9369, Congress inserted the word "only" so that the first proviso now reads —
x x x Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid
campaign period x x x. (Emphasis supplied)
Thus, Congress not only reiterated but also strengthened its mandatory directive that election offenses can be committed by a
candidate "only" upon the start of the campaign period. This clearly means that before the start of the campaign period, such
election offenses cannot be so committed.
When the applicable provisions of RA 8436, as amended by RA 9369, are read together, these provisions of law do not consider
Penera a candidate for purposes other than the printing of ballots, until the start of the campaign period. There is absolutely no
room for any other interpretation.
We quote with approval the Dissenting Opinion of Justice Antonio T. Carpio:
x x x The definition of a "candidate" in Section 79(a) of the Omnibus Election Code should be read together with the amended
Section 15 of RA 8436. A "‘candidate’ refers to any person aspiring for or seeking an elective public office, who has filed a
certificate of candidacy by himself or through an accredited political party, aggroupment or coalition of parties." However, it is no
longer enough to merely file a certificate of candidacy for a person to be considered a candidate because "any person who files his
certificate of candidacy within [the filing] period shall only be considered a candidate at the start of the campaign period for which
he filed his certificate of candidacy." Any person may thus file a certificate of candidacy on any day within the prescribed period for
filing a certificate of candidacy yet that person shall be considered a candidate, for purposes of determining one’s possible
violations of election laws, only during the campaign period. Indeed, there is no "election campaign" or "partisan political activity"
designed to promote the election or defeat of a particular candidate or candidates to public office simply because there is no
"candidate" to speak of prior to the start of the campaign period. Therefore, despite the filing of her certificate of candidacy, the
law does not consider Penera a candidate at the time of the questioned motorcade which was conducted a day before the start of
the campaign period. x x x
The campaign period for local officials began on 30 March 2007 and ended on 12 May 2007. Penera filed her certificate of candidacy
on 29 March 2007. Penera was thus a candidate on 29 March 2009 only for purposes of printing the ballots. On 29 March 2007, the
law still did not consider Penera a candidate for purposes other than the printing of ballots. Acts committed by Penera prior to 30
March 2007, the date when she became a "candidate," even if constituting election campaigning or partisan political activities, are
not punishable under Section 80 of the Omnibus Election Code. Such acts are within the realm of a citizen’s protected freedom of
expression. Acts committed by Penera within the campaign period are not covered by Section 80 as Section 80 punishes only acts
outside the campaign period.5
The assailed Decision gives a specious reason in explaining away the first proviso in the third paragraph, the amended Section 15 of
RA 8436 that election offenses applicable to candidates take effect only upon the start of the campaign period. The Decision states
that:
x x x [T]he line in Section 15 of Republic Act No. 8436, as amended, which provides that "any unlawful act or omission applicable to
a candidate shall take effect only upon the start of the campaign period," does not mean that the acts constituting premature
campaigning can only be committed, for which the offender may be disqualified, during the campaign period. Contrary to the
pronouncement in the dissent, nowhere in said proviso was it stated that campaigning before the start of the campaign period is
lawful, such that the offender may freely carry out the same with impunity.
As previously established, a person, after filing his/her COC but prior to his/her becoming a candidate (thus, prior to the start of the
campaign period), can already commit the acts described under Section 79(b) of the Omnibus Election Code as election campaign or
partisan political activity, However, only after said person officially becomes a candidate, at the beginning of the campaign period,
can said acts be given effect as premature campaigning under Section 80 of the Omnibus Election Code. Only after said person
officially becomes a candidate, at the start of the campaign period, can his/her disqualification be sought for acts constituting
premature campaigning. Obviously, it is only at the start of the campaign period, when the person officially becomes a candidate,
that the undue and iniquitous advantages of his/her prior acts, constituting premature campaigning, shall accrue to his/her benefit.
Compared to the other candidates who are only about to begin their election campaign, a candidate who had previously engaged in
premature campaigning already enjoys an unfair headstart in promoting his/her candidacy. 6 (Emphasis supplied)
It is a basic principle of law that any act is lawful unless expressly declared unlawful by law. This is specially true to expression or
speech, which Congress cannot outlaw except on very narrow grounds involving clear, present and imminent danger to the State.
The mere fact that the law does not declare an act unlawful ipso facto means that the act is lawful. Thus, there is no need for
Congress to declare in Section 15 of RA 8436, as amended by RA 9369, that political partisan activities before the start of the
campaign period are lawful. It is sufficient for Congress to state that "any unlawful act or omission applicable to a candidate shall
take effect only upon the start of the campaign period." The only inescapable and logical result is that the same acts, if done before
the start of the campaign period, are lawful.
In layman’s language, this means that a candidate is liable for an election offense only for acts done during the campaign period,
not before. The law is clear as daylight — any election offense that may be committed by a candidate under any election law cannot
be committed before the start of the campaign period. In ruling that Penera is liable for premature campaigning for partisan
political acts before the start of the campaigning, the assailed Decision ignores the clear and express provision of the law.
The Decision rationalizes that a candidate who commits premature campaigning can be disqualified or prosecuted only after the
start of the campaign period. This is not what the law says. What the law says is "any unlawful act or omission applicable to a
candidate shall take effect only upon the start of the campaign period." The plain meaning of this provision is that the effective
date when partisan political acts become unlawful as to a candidate is when the campaign period starts. Before the start of the
campaign period, the same partisan political acts are lawful.
The law does not state, as the assailed Decision asserts, that partisan political acts done by a candidate before the campaign period
are unlawful, but may be prosecuted only upon the start of the campaign period. Neither does the law state that partisan political
acts done by a candidate before the campaign period are temporarily lawful, but becomes unlawful upon the start of the campaign
period. This is clearly not the language of the law. Besides, such a law as envisioned in the Decision, which defines a criminal act
and curtails freedom of expression and speech, would be void for vagueness.
Congress has laid down the law — a candidate is liable for election offenses only upon the start of the campaign period. This Court
has no power to ignore the clear and express mandate of the law that "any person who files his certificate of candidacy within [the
filing] period shall only be considered a candidate at the start of the campaign period for which he filed his certificate of
candidacy." Neither can this Court turn a blind eye to the express and clear language of the law that "any unlawful act or omission
applicable to a candidate shall take effect only upon the start of the campaign period."
The forum for examining the wisdom of the law, and enacting remedial measures, is not this Court but the Legislature. This Court
has no recourse but to apply a law that is as clear, concise and express as the second sentence, and its immediately succeeding
proviso, as written in the third paragraph of Section 15 of RA 8436, as amended by RA 9369.
WHEREFORE, we GRANT petitioner Rosalinda A. Penera’s Motion for Reconsideration. We SET ASIDE the Decision of this Court in G.R.
No. 181613 promulgated on 11 September 2009, as well as the Resolutions dated 24 July 2007 and 30 January 2008 of the COMELEC
Second Division and the COMELEC En Banc, respectively, in SPA No. 07-224. Rosalinda A. Penera shall continue as Mayor of Sta.
Monica, Surigao del Norte.
SO ORDERED.

DISSENTING OPINION
CHICO-NAZARIO, J.:
On 11 September 2009, the Court rendered a Decision in the instant case disqualifying Rosalinda A. Penera from running as Mayor of
Sta. Monica, Surigao Del Norte for engaging in the prohibited act of premature campaigning.
Penera forthwith filed a Motion for Reconsideration1 of the above Decision, invoking the following arguments, to wit:
1) Penera was not yet a candidate at the time of the incident under Section 11 of Republic Act No. 8436, as amended by Section 13
of Republic Act No. 9369.2
2) Section 80 of the Omnibus Election Code was expressly repealed by Republic Act No. 9369.3
3) The petition for disqualification failed to submit convincing and substantial evidence against Penera for violation of Section 80 of
the Omnibus Election Code.4
4) Penera never admitted the allegations of the petition for disqualification and has consistently disputed the charge of premature
campaigning.5
5) The admission that Penera participated in a motorcade is not the same as admitting she engaged in premature election
campaigning.6
I vote to deny the Motion for Reconsideration.
Penera’s Motion for Reconsideration
The basic issues in the Motion for Reconsideration were already passed upon in the Decision dated 11 September 2009 and no
substantial arguments were raised.
The grounds that: (1) Penera was not yet a candidate at the time of the incident under Section 11 of Republic Act No. 8436, as
amended by Section 13 of Republic Act No. 9369; (2) Section 80 of the Omnibus Election Code was expressly repealed by Republic
Act No. 9369; and (3) the petition for disqualification failed to submit convincing and substantial evidence against Penera for
violation of Section 80 of the Omnibus Election Code are all reiterations of her previous arguments before the Court and the same
had already been adequately addressed in the Decision dated 11 September 2009.
Incidentally, Penera herself disclosed in her Motion for Reconsideration that she is the respondent in a criminal case filed by Edgar
T. Andanar for the commission of election offenses in violation of the Omnibus Election Code, which is docketed as EO Case No. 08-
99.7 Thus, the pronouncement in the Decision dated 11 September 2009 that the instant case should concern only the electoral
aspect of the disqualification case finds more reason. As noted in the Decision, any discussion on the matter of Penera’s criminal
liability for premature campaigning would have been preemptive and nothing more than obiter dictum.
With respect to the assertion that Penera never admitted the allegations of the petition for disqualification and has consistently
disputed the charge of premature campaigning, the same is utterly without merit. Penera admitted participating in the motorcade
after filing her COC. What she merely denied and/or refuted were the minor details concerning the conduct of said motorcade.
Likewise, Penera’s contention that her admission of participating in the motorcade in this case is not the same as admitting that she
engaged in premature campaigning deserves scant consideration. Logically, to admit to the elements constituting the offense of
premature campaigning is to admit to the commission of the said offense. Precisely, it is the act of participating in the motorcade
after the filing of her COC that constituted the prohibited act of premature campaigning in the instant case.
Finally, the claim of Penera that not all motorcades are designed to promote the election of a candidate is unimpressive. Clearly,
the context of the discussion on motorcades in the Decision dated 11 September 2009 was disregarded. The discussion pertained to
motorcades conducted during election periods by candidates and their supporters. In such an instance, a motorcade assumes an
entirely different significance and that is to promote a candidate.
As held in the Decision dated 11 September 2009, the conduct of a motorcade during election periods is a form of election campaign
or partisan political activity, falling squarely within the ambit of Section 79(b)(2) of the Omnibus Election Code, on "[h]olding
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[.]" The obvious purpose of the conduct of motorcades during
election periods is to introduce the candidates and the positions to which they seek to be elected to the voting public; or to make
them more visible so as to facilitate the recognition and recollection of their names in the minds of the voters come election time.
The pretense that the motorcade was only a convoy of vehicles, which was entirely an unplanned event that dispersed eventually,
does not hold water. After filing their certificates of candidacy, Rosalinda Penera and the other members of her political party
conducted a motorcade and went around the different barangays in the municipality of Sta. Monica, Surigao Del Norte. The
motorcade consisted of two (2) jeepneys and ten (10) motorcycles, which were all festooned with multi-colored balloons. There was
marching music being played on the background and the individuals onboard the vehicles threw candies to the people they passed by
along the streets. With the number of vehicles, the balloons, the background marching music, the candies on hand and the route
that took them to the different barangays, the motorcade could hardly be considered as spontaneous and unplanned.
Majority Opinion
Although the majority opinion initially mentions the above-stated grounds of Penera’s Motion for Reconsideration, the same were
not at all discussed. The Resolution of the majority purely involves an exposition of the grounds set forth in the Dissenting Opinion
of Justice Antonio T. Carpio to the Decision dated 11 September 2009.
At the outset, the majority opinion highlights the relevant provisions of law defining the meaning of a candidate.
Under Section 79(a) of the Omnibus Election Code, a candidate is "any person aspiring for or seeking an elective public office, who
has filed a certificate of candidacy by himself or through an accredited political party, aggroupment, or coalition of parties." On the
other hand, the second sentence in the third paragraph of Section 15 of Republic Act No. 8436, as amended by Republic Act No.
9369, 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." The first proviso in the same paragraph provides that
"unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period."
The majority opinion goes on to quote a paragraph in the Decision dated 11 September 2009, underscoring a portion of the same as
follows:
When the campaign period starts and said person proceeds with his/her candidacy, his/her intent turning into actuality, we can
already consider his/her acts, after the filing of his/her [certificate of candidacy (COC)] and prior to the campaign period, as the
promotion of his/her election as a candidate, hence, constituting premature campaigning, for which he/she may be disqualified.
According to the interpretation of the majority of the above pronouncement, the Decision dated 11 September 2009 already
considers a person who filed a COC a "candidate" even before the start of the campaign period. From the filing of the COC, even
before the start of the campaign period, the ponente allegedly considers the partisan political acts of a person filing a COC "as the
promotion of his/her election as a candidate."
The majority clearly mistook the import of the above-quoted portion and read the same out of context. Absolutely nowhere in the
Decision dated 11 September 2009 was it stated that a person who filed a COC is already deemed a candidate even before the start
of the campaign period.
To recall, the Court held in its Decision that Section 80 of the Omnibus Election Code, which defines the prohibited act of premature
campaigning, was not repealed, expressly or impliedly, by Section 15 of Republic Act No. 8436, as amended.
Section 80 of the Omnibus Election Code reads:
SECTION 80. Election campaign or partisan political activity outside campaign period. — It shall be unlawful for any person,
whether or not a voter or candidate, or for any party, or association of persons, to engage in an election campaign or partisan
political activity except during the campaign period: x x x.
While relevant portions of Section 15 of Republic Act No. 8436, as amended by Republic Act No. 9369, provide:
SECTION.15. Official Ballot. – x x x
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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[.]
The Court harmonized and reconciled the above provisions in this wise:
The following points are explanatory:
First, Section 80 of the Omnibus Election Code, on premature campaigning, explicitly provides that "[i]t shall be unlawful for any
person, whether or not a voter or candidate, or for any party, or association of persons, to engage in an election campaign or
partisan political activity, except during the campaign period." Very simply, premature campaigning may be committed even by a
person who is not a candidate.
For this reason, the plain declaration in Lanot that "[w]hat Section 80 of the Omnibus Election Code prohibits is ‘an election
campaign or partisan political activity’ by a ‘candidate’ ‘outside’ of the campaign period," is clearly erroneous.
Second, Section 79(b) of the Omnibus Election Code defines election campaign or partisan political activity in the following manner:
SECTION 79. Definitions. - As used in this Code:
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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.
True, that pursuant to Section 15 of Republic Act No. 8436, as amended, even after the filing of the COC but before the start of the
campaign period, a person is not yet officially considered a candidate. Nevertheless, a person, upon the filing of his/her COC,
already explicitly declares his/her intention to run as a candidate in the coming elections. The commission by such a person of any
of the acts enumerated under Section 79(b) of the Omnibus Election Code (i.e., holding rallies or parades, making speeches, etc.)
can, thus, be logically and reasonably construed as for the purpose of promoting his/her intended candidacy.
When the campaign period starts and said person proceeds with his/her candidacy, his/her intent turning into actuality, we can
already consider his/her acts, after the filing of his/her COC and prior to the campaign period, as the promotion of his/her election
as a candidate, hence, constituting premature campaigning, for which he/she may be disqualified. x x x (Underscoring supplied.)
The last paragraph of the aforequoted portion of the Decision dated 11 September 2009 should be read together with, and qualified
by, the paragraph immediately preceding it. Clearly, the ponente was quite explicit in stating that, after the filing of the COC but
before the start of the campaign period, a person is not yet considered a candidate. After filing the COC, however, the commission
by such person of the acts enumerated under Section 79(b) of the Omnibus Election Code can already be construed as being for the
purpose of promoting his/her intended candidacy.
Thereafter, it is only at the start of the campaign period, when said person is already a formal candidate, that the partisan political
acts that he/she committed after the filing of the COC can already be considered as being for the promotion of his/her election as a
candidate; hence, constituting premature campaigning.
Reversal of Lanot v. Commission on Elections
The majority likewise ascribes error on the part of the ponente for reversing Lanot, which held that a person should be a candidate
before premature campaigning may be committed. Resolved under the auspices of Republic Act No. 8436,8 the previous automation
law, Lanot was allegedly decided on the ground that one who files a COC is not a candidate until the start of the campaign period.
Supposably, Congress wanted to ensure that any person filing a COC under the early deadline required by the automated election
system would not be disqualified for any partisan political act done prior to the start of the campaign period. In enacting Republic
Act No. 9369, Congress expressly wrote the Lanot doctrine into the second sentence, third paragraph, Sec. 15 of Republic Act No.
8436, which states that "[a]ny person who files his certificate of candidacy within [the period for filing COCs] shall only be
considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy."
The majority, therefore, concludes that the ponente cannot reverse Lanot without repealing the above sentence, since to reverse
Lanot would mean repealing the said sentence. The ponente, however, in reversing Lanot does not claim that the second sentence
or any portion of Section 15 of RA 8436, as amended by RA 9369, is unconstitutional. Thus, the Decision dated 11 September 2009 is
supposedly self-contradictory – reversing Lanot but maintaining the constitutionality of the second sentence, which embodies the
Lanot doctrine. In so doing, the majority avers that the majority decision is irreconcilably in conflict with the clear intent and letter
of the second sentence, third paragraph of Section 15 of Republic Act No. 8436, as amended by Republic Act No. 9369.
The majority opinion arrives at an erroneous conclusion based on a faulty premise.
Lanot was decided on the basis of the requirement therein that there must be first a candidate before the prohibited act of
premature campaigning may be committed.
In Lanot v. Commission on Elections,9 Lanot, et al., filed a petition for disqualification against the then Pasig City mayoralty
candidate Vicente P. Eusebio for engaging in various forms of election campaign on different occasions outside of the designated
campaign period after he filed his COC during the 2004 local elections. The Commission on Elections (COMELEC) Law Department
recommended the disqualification of Eusebio for violation of Section 80 of the Omnibus Election Code, which recommendation was
approved by the COMELEC First Division. The COMELEC en banc referred the case back to the COMELEC Law Department to
determine whether Eusebio actually committed the acts subject of the petition for disqualification.
The Court, speaking through Justice Carpio, adjudged that Eusebio was not liable for premature campaigning given that the latter
committed partisan political acts before he became a candidate. The Court construed the application of Section 11 of Republic Act
No. 8463 vis-à-vis the provisions of Sections 80 and 79(a) of the Omnibus Election Code. Section 11 of Republic Act No. 8436 moved
the deadline for the filing of certificates of candidacy to 120 days before election day. The Court ruled that the only purpose for the
early filing of COCs was to give ample time for the printing of official ballots. Congress, however, never intended the early filing of
a COC to make the person filing to become immediately a "candidate" for purposes other than the printing of ballots. This legislative
intent prevented the immediate application of Section 80 of the Omnibus Election Code to those filing to meet the early deadline.
The clear intention of Congress was to preserve the "election periods as x x x fixed by existing law" prior to Republic Act No. 8436
and that one who files to meet the early deadline "will still not be considered as a candidate."10
Simply stated, the Court adjudged in Lanot that when Eusebio filed his COC to meet the early deadline set by COMELEC, he did not
thereby immediately become a candidate. Thus, there was no premature campaigning since there was no candidate to begin with. It
is on this ground that the majority reversed Lanot.
The ponente reiterates that the existence of a candidate is not necessary before premature campaigning may be committed. Section
80 of the Omnibus Election Code unequivocally provides that "[i]t shall be unlawful for any person, whether or not a voter or
candidate, or for any party, or association of persons, to engage in an election campaign or partisan political activity, except during
the campaign period." Very specific are the wordings of the law that the individual who may be held liable to commit the unlawful
act of premature campaigning can be any person: a voter or non-voter, a candidate or a non-candidate.
Furthermore, as already previously discussed, Section 80 of the Omnibus Election Code was not repealed by Section 15 of RA 8436,
as amended by RA 9369. In construing the said provisions, as well as that of Section 79(a) of the Omnibus Election Code, which
defines the meaning of the term candidate, the majority has settled that, after the filing of the COC but before the start of the
campaign period, a person is yet to be considered a formal candidate. Nonetheless, by filing the COC, the person categorically and
explicitly declares his/her intention to run as a candidate. Thereafter, if such person commits the acts enumerated under Section
79(b) of the Omnibus Election Code, said acts can already be construed as for the purpose of promoting his/her intended
candidacy.1avvphi1
Thus, contrary to the majority opinion, the Decision dated 11 September 2009 is not self-contradictory. The ponente can reverse
Lanot and still uphold the second sentence, third paragraph of Section 15 of Republic Act No. 8436, as amended.
The majority also stresses that in the enactment of Republic Act No. 9369, Congress inserted the word "only" to the first proviso in
the third paragraph of Section 11 of Republic Act No. 8436 so that the same now reads:
Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign
period.
Thus, Congress even strengthened its mandatory directive that election offenses can be committed by a candidate "only" upon the
start of the campaign period. Accusing the ponente of giving a specious reasoning in explaining the above proviso, the majority
points out to the basic principle of law that any act is lawful, unless expressly declared as unlawful. Therefore, the majority claims
that there was no need for Congress to declare in Section 15 of Republic Act No. 8436, as amended, that partisan political activities
before the start of the campaign period are lawful. The logical conclusion is that partisan political acts, if done before the start of
the campaign period, are lawful. According to the majority, any election offense that may be committed by a candidate under any
election law cannot be committed before the start of the campaign period.
The ponente takes exception to the above sweeping and unwarranted reasoning. Not all election offenses are required to be
committed by a candidate and, like the prohibited act of premature campaigning, not all election offenses are required to be
committed after the start of the campaign period. To reiterate, Section 80 of the Omnibus Election Code, which defines the
prohibited act of premature campaigning is still good law despite the passage of Section 15 of Republic Act No. 8436, as amended.
Precisely, the conduct of election campaign or partisan political activity before the campaign period is the very evil that Section 80
seeks to prevent.
The majority opinion maintains its objection to the allegedly strained construction and/or interpretation of the ponente of the
particular provisions involved in this case. With equal vehemence, however, the ponente adamantly rejects the majority’s absurd
and unwarranted theory of repeal of Section 80 of the Omnibus Election Code put forth in both the Dissenting Opinion to the
Decision dated 11 September 2009 and the Resolution of the majority.
As the majority repeatedly pointed out, Section 15 of Republic Act No. 8436, as amended by Republic Act No. 9369, was enacted
merely to give the COMELEC ample time for the printing of ballots. Section 80 of the Omnibus Election Code, on the other hand, is a
substantive law which defines the prohibited act of premature campaigning, an election offense punishable with the gravest of
penalties that can be imposed on a candidate, i.e., disqualification or, if elected, removal from office. If the majority opinion
indignantly rejects the attempts of the ponente to reconcile the provisions of Section 80 of the Omnibus Election Code and Section
15 of Republic Act No. 8436, as amended, then why should they insist on repealing the former provision and not the latter?
The ponente emphasizes that whether the election would be held under the manual or the automated system, the need for
prohibiting premature campaigning – to level the playing field between the popular or rich candidates, on one hand, and the lesser-
known or poorer candidates, on the other, by allowing them to campaign only within the same limited period – remains. Again, the
choice as to who among the candidates will the voting public bestow the privilege of holding public office should not be swayed by
the shrewd conduct, verging on bad faith, of some individuals who are able to spend resources to promote their candidacies in
advance of the period slated for campaign activities.
However, by virtue of the Resolution of the majority, premature campaigning will now be officially decriminalized and, as a
consequence, the value and significance of having a campaign period will now be utterly negated. Thus, one year, five years or even
ten years prior to the day of the elections, a person aspiring for public office may now engage in election campaign or partisan
political activities to promote his candidacy, with impunity. All he needs to have is a very deep campaign war chest to be able to
carry out this shrewd activity.
Indeed, while fair elections has been dealt a fatal blow by the Resolution of the majority, it is fervently hoped that the writing of
the Decision dated 11 September 2009 and this Dissenting Opinion will not be viewed as an effort made in vain if in the future the
said Resolution can be revisited and somehow rectified.
Premises considered, there is no reason to reverse and set aside the earlier ruling of the Court rendered in this case.
I, therefore, vote to DENY WITH FINALITY the Motion for Reconsideration filed by Rosalinda A. Penera on the Decision dated 11
September 2009.
MINITA V. CHICO-NAZARIO
Associate Justice

DISSENTING OPINION
ABAD, J.:
The Facts and the Case
Petitioner Rosalinda Penera and respondent Edgar Andanar ran for mayor of Sta. Monica, Surigao Del Norte, during the May 14, 2007
elections.
On March 29, 2007 a motorcade by petitioner Penera’s political party preceded the filing of her certificate of candidacy before the
Municipal Election Officer of Sta. Monica. Because of this, on April 2, 2007 Andanar filed with the Regional Election Director for
Region 13 in SPA 07-224 a petition to disqualify1 Penera, among others,2 for engaging in election campaign before the start of the
campaign period.
Andanar claimed that Penera and her partymates went around Sta. Monica on March 29, announcing their candidacies and asking the
people to vote for them in the coming elections. Answering the petition, Penera claimed that although a motorcade preceded the
filing of her certificate of candidacy, she merely observed the usual practice of holding a motorcade on such momentous occasion,
but which celebration ended soon after she filed her certificate. Penera claimed that no one made a speech during the event. All
they had were lively background music and "a grand standing for the purpose of raising the hands of the candidates in the
motorcade."
The parties presented their position papers and other evidence in the case. 3 Afterwards, the regional office forwarded its record to
the Commission on Elections (COMELEC) in Manila where the case was raffled to the Second Division for resolution. But the elections
of May 14, 2007 overtook it, with petitioner Penera winning the election for Mayor of Sta. Monica. She assumed office on July 2,
2007.
On July 24, 2007 the COMELEC’s Second Division issued a resolution, disqualifying petitioner Penera from continuing as a mayoralty
candidate in Sta. Monica on the ground that she engaged in premature campaigning in violation of Sections 80 and 68 of the Omnibus
Election Code. The Second Division found that she, her partymates, and a bevy of supporters held a motorcade of two trucks and
numerous motorcycles laden with balloons, banners, and posters that showed the names of their candidates and the positions they
sought. One of the trucks had a public speaker that announced Penera’s candidacy for mayor.
Petitioner Penera filed before the COMELEC en banc a motion for reconsideration4 of the Second Division’s July 24, 2007 resolution.
The En Banc denied her motion on January 30, 2008.5 Still undeterred, Penera came up to this Court. On September 11, 2009 an
almost evenly divided Court affirmed the ruling of the COMELEC. On motion for reconsideration, however, the number of votes
shifted in favor of granting the petition and reversing the ruling of the COMELEC.
The Issue
The core issue that divided the Court is whether or not petitioner Penera’s act of campaigning for votes immediately preceding the
filing of her certificate of candidacy on March 29, 2007 violates the prohibition in Section 80 of the Omnibus Election Code against
premature campaigning, with the result that she is disqualified from holding office in accordance with Section 68 of the Code.
Discussion
Section 80 of the Omnibus Election Code prohibits any person, whether a candidate or not, from engaging in election campaign or
partisan political activity except during the campaign period fixed by law.
Apart from its penal consequence, the law disqualifies any candidate who engages in premature campaigning from holding the office
to which he was elected. Section 68 of the Code reads:
SECTION. 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 x x x (e) violated any of Sections 80, 83, 85, 86 and 261,
paragraphs d, e, k, v, and cc, subparagraph 6, shall be disqualified from continuing as a candidate, or if he has been elected,
from holding the office; x x x. (Underscoring supplied.)
Since the COMELEC found petitioner Penera guilty of having led on March 29, 2007 a colorful and noisy motorcade that openly
publicized her candidacy for mayor of Sta. Monica, this Court held in its original decision that the COMELEC correctly disqualified
her from holding the office to which she was elected.
The current majority of the Court claims, however, that with the passage of Republic Act (R.A.) 9369, a candidate who campaigns
before the official campaign period may no longer be regarded as having committed an unlawful act that constitutes ground for
disqualification. The majority’s reasoning is as follows:
a. Section 79 (a) of the Omnibus Election Code states that a candidate is "any person aspiring for or seeking an elective public
office, who has filed a certificate of candidacy by himself or through an accredited political party, aggroupment, or coalition of
parties."
b. It is a person’s filing of a certificate of candidacy, therefore, that marks the beginning of his being a candidate. It is also such
filing that marks his assumption of the responsibilities that goes with being a candidate. Before Penera filed her certificate of
candidacy on March 29, 2007, she could not be regarded as having assumed the responsibilities of a "candidate."
c. One of these responsibilities is the duty not to commit acts that are forbidden a candidate such as campaigning for votes before
the start of the prescribed period for election campaigns. Premature campaigning is a crime and constitutes a ground for
disqualification from the office that the candidate seeks.
d. But, with the amendment of Section 15 of R.A. 8436 by Section 13 of R.A. 9369, a person’s filing of a certificate of candidacy
does not now automatically mark him as a "candidate." He shall be regarded a "candidate," says Section 15, only at the start of the
campaign period. Further, the "unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the
aforesaid campaign period."
It is significant that before the passage of R.A. 9369 a candidate for a local office had up to the day before the start of the campaign
period (which in the case of a local election consists of 45 days before the eve of election day) within which to file his certificate of
candidacy and, thus, be regarded as a "candidate." But the need for time to print the ballots with the names of the candidates on
them under the automated election system prompted Congress to authorize the COMELEC to set a deadline for the filing of the
certificates of candidacy long before the start of the campaign period. Thus, the pertinent portion of Section 15 of R.A. 8436, as
amended, provides:
SECTION 15. Official ballot. –
xxxx
For this purpose [the printing of ballots], the Commission shall set the deadline for the filing of certificate of candidacy/ petition for
registration/ manifestation to participate in the election. x x x
xxxx
Evidently, while Congress was willing to provide for advance filing of certificates of candidacy, it did not want to impose on those
who file early certificates the responsibilities of being already regarded as "candidates" even before the start of the campaign
period. Thus, the same Section 15 provides further on:
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; x x x.
In Penera’s case, she filed her certificate of candidacy on March 29, 2007. Section 15 does not yet treat her as "candidate" then.
Only at the start of the official campaign period on March 30, 2007 was she to be considered as such "candidate." To emphasize this,
Congress provided further on in Section 15 that an early filer’s responsibility as a candidate begins only when the campaign period
begins. Thus –
Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign
period; x x x.
The current majority concludes from the above that from the time R.A. 9369 took effect on February 10, 2007 a person like
petitioner Penera cannot be held liable as a "candidate" for engaging in premature election campaign before she filed her certificate
of candidacy or even after she filed one since she may be regarded as a "candidate" only at the start of the campaign period on
March 30, 2007. Consequently, since she was not yet a "candidate" on March 29, 2007 when she went around Sta. Monica
campaigning for votes on her way to appearing before the election registrar to file her certificate of candidacy, she cannot be held
liable for premature campaigning.
But the fact that Penera was not yet a candidate before she actually handed in her certificate of candidacy to the designated
COMELEC official does not exempt her from the prohibition against engaging in premature election campaign. Section 80 which
imposes the ban ensnares "any person," even a non-candidate. Thus:
SECTION 80. Election campaign or partisan political activity outside campaign period. — It shall be unlawful for any person, whether
or not a voter or candidate, or for any party, or association of persons, to engage in an election campaign or partisan political
activity except during the campaign period: x x x (Emphasis ours.)
Essentially, the law makes the prohibition against premature campaigning apply to "any person" and "any party, or association of
persons." This means that no one is exempt from the ban. The mention of the word "candidate" in the first grouping, i.e., "any
person, whether or not a voter or candidate," merely stresses the point that even those with direct interest in a political campaign
are not exempt from the ban. Consequently, even if Penera had not yet filed her certificate of candidacy, Section 80 covered her
because she fell in the category of "any person."
The provision of Section 15 of R.A. 8436, as amended, that regards Penera as a "candidate" only at the start of the campaign period
on March 30, 2007 did not, therefore, exempt her from liability as a non-candidate engaging in premature election campaign.
Here, candidate Penera has been found by the COMELEC to have violated Section 80 when, even before she was a candidate, she
prematurely campaigned for votes for herself. The ground for her consequent disqualification—premature campaigning—already
accrued by the time she filed her certificate of candidacy or when the official campaign period began. Consequently, she is
disqualified under Section 68 from continuing as a candidate or, since she has been elected, from holding on to that office. Thus:
SECTION 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 x x x (e) violated any of Sections 80, 83, 85, 86 and 261,
paragraphs d, e, k, v, and cc, subparagraph 6, shall be disqualified from continuing as a candidate, or if he has been elected,
from holding the office; x x x (Underscoring supplied.)
Does this position contravene Section 15 of R.A. 8436, as amended, that regards Penera as a "candidate" only at the start of the
campaign period on March 30, 2007? It does not because Section 80, which the Court seeks to enforce, is essentially intended as a
ground for sanctioning "any person," not necessarily a candidate, who engages in premature election campaign.
The real challenge to the current minority position, however, is the meaning that the Omnibus Election Code places on the term
"election campaign." "The term ‘election campaign’ or ‘partisan political activity,’ says Section 79, "refers to an act designed to
promote the election or defeat of a particular candidate or candidates to a public office." The object of the election campaign
activity must be the "election or defeat of a particular candidate."
When petitioner Penera practically said "vote for me" during the March 29 motorcade that she led around Sta. Monica, did she solicit
votes for a "particular candidate?" The current majority holds that since, according to Section 79, a "candidate refers to any person
aspiring for or seeking an elective public office, who has filed a certificate of candidacy" and since Penera held her vote-solicitation
motorcade before she filed her certificate of candidacy, she did not engage during the town motorcade in a campaign for the
election of any "particular candidate."
But this is being too literal. It is like saying that a woman cannot be held liable for parricide since the penal code uses the male
pronoun in ascribing to the offender the acts that constitute the crime. Thus, the penal code says:
Art. 246. Parricide. — Any person who shall kill his father, mother, or child, whether legitimate or illegitimate, or any of his
ascendants, or descendants, or his spouse, shall be guilty of parricide and shall be punished by the penalty of reclusion
perpetua to death.
Yet, parricide, as everyone knows, can also be committed by a woman who shall kill her father, mother, or child, or her spouse. The
spirit of the law intends to punish any person, male or female, who kills his or her ascendants, descendants, or spouse. Literalness
must yield to evident legislative intent.
Here, did Congress in enacting R.A. 9369 intend to abolish or repeal Section 80 of the Omnibus Election Code that prohibits election
campaigns before the start of the campaign period? It did not. Section 80 remains in the statute books and R.A. 9369 did not,
directly or indirectly, touch it.
The current majority of course claims, citing Section 15 of R.A. 8436, as amended, that "the effective date when partisan political
acts become unlawful as to a candidate is when the campaign period starts. The pertinent portion of Section 15 says:
Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign
period; x x x.
If we were to abide by the view of the current majority, Congress ordained when it passed the above provision that it is only for
unlawful acts or omissions committed during the campaign period that candidates could be punished. Consequently, if candidates
take campaign funds from a foreign government 6 or conspire with others to bribe voters7 just one day before the start of the
campaign period, they cannot be prosecuted. A candidate under the theory of the current majority can freely commit a litany of
other crimes relating to the election so long as he commits them before the start of the campaign period. Surely, R.A. 9369 did not
intend to grant him immunity from prosecution for these crimes.
The more reasonable reading of the provision—that unlawful acts or omissions applicable to a candidate shall take effect only upon
the start of the campaign period—is that Congress referred only to unlawful acts or omissions that could essentially be committed
only during the campaign period. For how could a candidate commit unlawful "pre-campaign" acts during the campaign period?
The unlawful act of engaging in premature election campaign under Section 80, in relation to Section 79 which defines the terms
"candidate" and "election campaign," may be regarded as consisting of three elements:
1. A person acts to promote the election or defeat of another to a public office;
2. He commits the act before the start of the campaign period; and
3. The person whose election or defeat the offender seeks has filed a certificate of candidacy for the office.
The first two elements could take place when the offender engages in premature election campaign for the person whose election
or defeat he seeks to promote but who has not as yet filed his certificate of candidacy. Whereas, the third element—consisting in
the latter person’s filing his certificate of candidacy—could take place later, close to the campaign period.
The elements of a crime need not be present on a single occasion. In B.P. 22 cases, the issuer of the check may have knowingly
issued a perfectly worthless check to apply on account. But, until the check is dishonoured by the drawee bank, the crime of issuing
a bouncing check is not deemed committed. The analogy is far from perfect but the point is that the offender under Section 80
knew fully when she shouted on the top of her voice, "vote for me as your mayor!" before she filed her certificate of candidacy that
she was running for mayor. If she says she is not liable because she is technically not yet a candidate, the people should say, "Let us
not kid each other!"
Congress could not be presumed to have written a ridiculous rule. It is safe to assume that, in enacting R.A. 9369, Congress did not
intend to decriminalize illegal acts that candidates and non-candidates alike could commit prior to the campaign period.
Further, current majority’s view may doom the next generations. Congress enacted Section 80 because, historically, premature
election campaigns begun even years before the election saps the resources of the candidates and their financial backers, ensuring
considerable pay-back activities when the candidates are elected. Such lengthy campaigns also precipitate violence, corrupt the
electorate, and divert public attention from the more vital needs of the country.8
Actually, practically all the principal stakeholders in the election, namely, the voters, the candidates, and the COMELEC, have since
1969 assumed that premature election campaign is not allowed. People generally wait for the campaign period to start before
engaging in election campaign. Even today, after the passage of R.A. 9369, those aspiring to national offices have resorted to the so-
called "infomercials" that attempt to enhance their popularities by showing their philosophies in life, what they have accomplished,
and the affection with which ordinary people hold them. No one has really come out with ads soliciting votes for any particular
candidate or person aspiring for a particular public office. They are all aware of Section 80.
Parenthetically, the Supreme Court declared the law banning premature election campaign constitutional in Gonzales v. Commission
on Elections9 only because the majority in the Court were unable to muster two-thirds votes to declare it unconstitutional. The
freedom of expression has always loomed large in the mind of the Court. It would not be likely, therefore, for the Court to hastily
declare every expression tending to promote a person’s chances in the elections as prohibited election campaigning.
I vote to deny the motion for reconsideration.
ROBERTO A. ABAD
Associate Justice

G.R. No. 161434 March 3, 2004

MARIA JEANETTE C. TECSON and FELIX B. DESIDERIO, JR., petitioners,
vs.
The COMMISSION ON ELECTIONS, RONALD ALLAN KELLY POE (a.k.a. FERNANDO POE, JR.) and VICTORINO X. FORNIER,
respondents.
x-----------------------------x
G.R. No. 161634 March 3, 2004
ZOILO ANTONIO VELEZ, petitioner,
vs.
RONALD ALLAN KELLEY POE, a.k.a. FERNANDO POE, JR., respondent.
x-----------------------------x
G. R. No. 161824 March 3, 2004
VICTORINO X. FORNIER, petitioner,
vs.
HON. COMMISSION ON ELECTIONS and RONALD ALLAN KELLEY POE, ALSO KNOWN AS FERNANDO POE JR., respondents.
DECISION
VITUG, J.:
Citizenship is a treasured right conferred on those whom the state believes are deserving of the privilege. It is a "precious
heritage, as well as an inestimable acquisition,"1 that cannot be taken lightly by anyone - either by those who enjoy it or by
those who dispute it.
Before the Court are three consolidated cases, all of which raise a single question of profound importance to the nation. The issue of
citizenship is brought up to challenge the qualifications of a presidential candidate to hold the highest office of the land. Our people
are waiting for the judgment of the Court with bated breath. Is Fernando Poe, Jr., the hero of silver screen, and now one of the
main contenders for the presidency, a natural-born Filipino or is he not?
The moment of introspection takes us face to face with Spanish and American colonial roots and reminds us of the rich heritage of
civil law and common law traditions, the fusion resulting in a hybrid of laws and jurisprudence that could be no less than distinctly
Filipino.
Antecedent Case Settings
On 31 December 2003, respondent Ronald Allan Kelly Poe, also known as Fernando Poe, Jr. (hereinafter "FPJ"), filed his certificate
of candidacy for the position of President of the Republic of the Philippines under the Koalisyon ng Nagkakaisang Pilipino (KNP)
Party, in the forthcoming national elections. In his certificate of candidacy, FPJ, representing himself to be a natural-born citizen of
the Philippines, stated his name to be "Fernando Jr.," or "Ronald Allan" Poe, his date of birth to be 20 August 1939 and his place of
birth to be Manila.
Victorino X. Fornier, petitioner in G.R. No. 161824, entitled "Victorino X. Fornier, Petitioner, versus Hon. Commission on Elections
and Ronald Allan Kelley Poe, also known as Fernando Poe, Jr., Respondents," initiated, on 09 January 2004, a petition docketed SPA
No. 04-003 before the Commission on Elections ("COMELEC") to disqualify FPJ and to deny due course or to cancel his certificate of
candidacy upon the thesis that FPJ made a material misrepresentation in his certificate of candidacy by claiming to be a natural-
born Filipino citizen when in truth, according to Fornier, his parents were foreigners; his mother, Bessie Kelley Poe, was an
American, and his father, Allan Poe, was a Spanish national, being the son of Lorenzo Pou, a Spanish subject. Granting, petitioner
asseverated, that Allan F. Poe was a Filipino citizen, he could not have transmitted his Filipino citizenship to FPJ, the latter being
an illegitimate child of an alien mother. Petitioner based the allegation of the illegitimate birth of respondent on two assertions -
first, Allan F. Poe contracted a prior marriage to a certain Paulita Gomez before his marriage to Bessie Kelley and, second, even if
no such prior marriage had existed, Allan F. Poe, married Bessie Kelly only a year after the birth of respondent.
In the hearing before the Third Division of the COMELEC on 19 January 2004, petitioner, in support of his claim, presented several
documentary exhibits - 1) a copy of the certificate of birth of FPJ, 2) a certified photocopy of an affidavit executed in Spanish by
Paulita Poe y Gomez attesting to her having filed a case for bigamy and concubinage against the father of respondent, Allan F. Poe,
after discovering his bigamous relationship with Bessie Kelley, 3) an English translation of the affidavit aforesaid, 4) a certified
photocopy of the certificate of birth of Allan F. Poe, 5) a certification issued by the Director of the Records Management and
Archives Office, attesting to the fact that there was no record in the National Archives that a Lorenzo Poe or Lorenzo Pou resided or
entered the Philippines before 1907, and 6) a certification from the Officer-In-Charge of the Archives Division of the National
Archives to the effect that no available information could be found in the files of the National Archives regarding the birth of Allan
F. Poe.
On his part, respondent, presented twenty-two documentary pieces of evidence, the more significant ones being - a) a certification
issued by Estrella M. Domingo of the Archives Division of the National Archives that there appeared to be no available information
regarding the birth of Allan F. Poe in the registry of births for San Carlos, Pangasinan, b) a certification issued by the Officer-In-
Charge of the Archives Division of the National Archives that no available information about the marriage of Allan F. Poe and Paulita
Gomez could be found, c) a certificate of birth of Ronald Allan Poe, d) Original Certificate of Title No. P-2247 of the Registry of
Deeds for the Province of Pangasinan, in the name of Lorenzo Pou, e) copies of Tax Declaration No. 20844, No. 20643, No. 23477 and
No. 23478 in the name of Lorenzo Pou, f) a copy of the certificate of death of Lorenzo Pou, g) a copy of the purported marriage
contract between Fernando Pou and Bessie Kelley, and h) a certification issued by the City Civil Registrar of San Carlos City,
Pangasinan, stating that the records of birth in the said office during the period of from 1900 until May 1946 were totally destroyed
during World War II.
On 23 January 2004, the COMELEC dismissed SPA No. 04-003 for lack of merit. Three days later, or on 26 January 2004, Fornier filed
his motion for reconsideration. The motion was denied on 06 February 2004 by the COMELEC en banc. On 10 February 2004,
petitioner assailed the decision of the COMELEC before this Court conformably with Rule 64, in relation to Rule 65, of the Revised
Rules of Civil Procedure. The petition, docketed G. R. No. 161824, likewise prayed for a temporary restraining order, a writ of
preliminary injunction or any other resolution that would stay the finality and/or execution of the COMELEC resolutions.
The other petitions, later consolidated with G. R. No. 161824, would include G. R. No. 161434, entitled "Maria Jeanette C. Tecson,
and Felix B. Desiderio, Jr., vs. The Commission on Elections, Ronald Allan Kelley Poe (a.k.a. ‘Fernando Poe, Jr.’), and Victorino X.
Fornier," and the other, docketed G. R. No. 161634, entitled "Zoilo Antonio G. Velez, vs. Ronald Allan Kelley Poe, a.k.a. Fernando
Poe, Jr.," both challenging the jurisdiction of the COMELEC and asserting that, under Article VII, Section 4, paragraph 7, of the 1987
Constitution, only the Supreme Court had original and exclusive jurisdiction to resolve the basic issue on the case.
Jurisdiction of the Court
In G. R. No. 161824
In seeking the disqualification of the candidacy of FPJ and to have the COMELEC deny due course to or cancel FPJ’s certificate of
candidacy for alleged misrepresentation of a material fact (i.e., that FPJ was a natural-born citizen) before the COMELEC, petitioner
Fornier invoked Section 78 of the Omnibus Election Code –
"Section 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" –
in consonance with the general powers of COMELEC expressed in Section 52 of the Omnibus Election Code -
"Section 52. Powers and functions of the Commission on Elections. In addition to the powers and functions conferred upon it by the
Constitution, the Commission shall have exclusive charge of the enforcement and administration of all laws relative to the conduct
of elections for the purpose of ensuring free, orderly and honest elections" -
and in relation to Article 69 of the Omnibus Election Code which would authorize "any interested party" to file a verified petition to
deny or cancel the certificate of candidacy of any nuisance candidate.
Decisions of the COMELEC on disqualification cases may be reviewed by the Supreme Court per Rule 64 2 in an action for certiorari
under Rule 653 of the Revised Rules of Civil Procedure. Section 7, Article IX, of the 1987 Constitution also reads –
"Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within sixty days from the
date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of
the last pleading, brief, or memorandum, required by the rules of the Commission or by the Commission itself. Unless otherwise
provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on
certiorari by the aggrieved party within thirty days from receipt of a copy thereof."
Additionally, Section 1, Article VIII, of the same Constitution provides that judicial power is vested in one Supreme Court and in such
lower courts as may be established by law which power "includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government."
It is sufficiently clear that the petition brought up in G. R. No. 161824 was aptly elevated to, and could well be taken cognizance of
by, this Court. A contrary view could be a gross denial to our people of their fundamental right to be fully informed, and to make a
proper choice, on who could or should be elected to occupy the highest government post in the land.
In G. R. No. 161434 and G. R. No. 161634
Petitioners Tecson, et al., in G. R. No. 161434, and Velez, in G. R. No. 161634, invoke the provisions of Article VII, Section 4,
paragraph 7, of the 1987 Constitution in assailing the jurisdiction of the COMELEC when it took cognizance of SPA No. 04-003 and in
urging the Supreme Court to instead take on the petitions they directly instituted before it. The Constitutional provision cited reads:
"The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of
the President or Vice-President, and may promulgate its rules for the purpose."
The provision is an innovation of the 1987 Constitution. The omission in the 1935 and the 1973 Constitution to designate any tribunal
to be the sole judge of presidential and vice-presidential contests, has constrained this Court to declare, in Lopez vs. Roxas, 4 as "not
(being) justiciable" controversies or disputes involving contests on the elections, returns and qualifications of the President or Vice-
President. The constitutional lapse prompted Congress, on 21 June 1957, to enact Republic Act No. 1793, "An Act Constituting an
Independent Presidential Electoral Tribunal to Try, Hear and Decide Protests Contesting the Election of the President-Elect and the
Vice-President-Elect of the Philippines and Providing for the Manner of Hearing the Same." Republic Act 1793 designated the Chief
Justice and the Associate Justices of the Supreme Court to be the members of the tribunal. Although the subsequent adoption of the
parliamentary form of government under the 1973 Constitution might have implicitly affected Republic Act No. 1793, the statutory
set-up, nonetheless, would now be deemed revived under the present Section 4, paragraph 7, of the 1987 Constitution.
Ordinary usage would characterize a "contest" in reference to a post-election scenario. Election contests consist of either an
election protest or a quo warranto which, although two distinct remedies, would have one objective in view, i.e., to dislodge the
winning candidate from office. A perusal of the phraseology in Rule 12, Rule 13, and Rule 14 of the "Rules of the Presidential
Electoral Tribunal," promulgated by the Supreme Court en banc on 18 April 1992, would support this premise -
"Rule 12. Jurisdiction. - The Tribunal shall be the sole judge of all contests relating to the election, returns, and qualifications of
the President or Vice-President of the Philippines.
"Rule 13. How Initiated. - An election contest is initiated by the filing of an election protest or a petition for quo warranto against
the President or Vice-President. An election protest shall not include a petition for quo warranto. A petition for quo warranto shall
not include an election protest.
"Rule 14. Election Protest. - Only the registered candidate for President or for Vice-President of the Philippines who received the
second or third highest number of votes may contest the election of the President or the Vice-President, as the case may be, by
filing a verified petition with the Clerk of the Presidential Electoral Tribunal within thirty (30) days after the proclamation of the
winner."
The rules categorically speak of the jurisdiction of the tribunal over contests relating to the election, returns and qualifications of
the "President" or "Vice-President", of the Philippines, and not of "candidates" for President or Vice-President. A quo warranto
proceeding is generally defined as being an action against a person who usurps, intrudes into, or unlawfully holds or exercises a
public office.5 In such context, the election contest can only contemplate a post-election scenario. In Rule 14, only a registered
candidate who would have received either the second or third highest number of votes could file an election protest. This rule again
presupposes a post-election scenario.
It is fair to conclude that the jurisdiction of the Supreme Court, defined by Section 4, paragraph 7, of the 1987 Constitution, would
not include cases directly brought before it, questioning the qualifications of a candidate for the presidency or vice-presidency
before the elections are held.
Accordingly, G. R. No. 161434, entitled "Maria Jeanette C. Tecson, et al., vs. Commission on Elections et al.," and G. R. No. 161634,
entitled "Zoilo Antonio Velez vs. Ronald Allan Kelley Poe a.k.a. Fernando Poe, Jr." would have to be dismissed for want of
jurisdiction.
The Citizenship Issue
Now, to the basic issue; it should be helpful to first give a brief historical background on the concept of citizenship.
Perhaps, the earliest understanding of citizenship was that given by Aristotle, who, sometime in 384 to 322 B.C., described the
"citizen" to refer to a man who shared in the administration of justice and in the holding of an office. 6 Aristotle saw its significance
if only to determine the constituency of the "State," which he described as being composed of such persons who would be adequate
in number to achieve a self-sufficient existence.7 The concept grew to include one who would both govern and be governed, for
which qualifications like autonomy, judgment and loyalty could be expected. Citizenship was seen to deal with rights and
entitlements, on the one hand, and with concomitant obligations, on the other. 8 In its ideal setting, a citizen was active in public
life and fundamentally willing to submit his private interests to the general interest of society.
The concept of citizenship had undergone changes over the centuries. In the 18th century, the concept was limited, by and large, to
civil citizenship, which established the rights necessary for individual freedom, such as rights to property, personal liberty and
justice.9 Its meaning expanded during the 19th century to include political citizenship, which encompassed the right to participate
in the exercise of political power.10 The 20th century saw the next stage of the development of social citizenship, which laid
emphasis on the right of the citizen to economic well-being and social security.11 The idea of citizenship has gained expression in
the modern welfare state as it so developed in Western Europe. An ongoing and final stage of development, in keeping with the
rapidly shrinking global village, might well be the internationalization of citizenship. 12
The Local Setting - from Spanish Times to the Present
There was no such term as "Philippine citizens" during the Spanish regime but "subjects of Spain" or "Spanish subjects." 13 In church
records, the natives were called 'indios', denoting a low regard for the inhabitants of the archipelago. Spanish laws on citizenship
became highly codified during the 19th century but their sheer number made it difficult to point to one comprehensive law. Not all
of these citizenship laws of Spain however, were made to apply to the Philippine Islands except for those explicitly extended by
Royal Decrees.14
Spanish laws on citizenship were traced back to the Novisima Recopilacion, promulgated in Spain on 16 July 1805 but as to whether
the law was extended to the Philippines remained to be the subject of differing views among experts; 15 however, three royal
decrees were undisputably made applicable to Spaniards in the Philippines - the Order de la Regencia of 14 August 1841,16 the Royal
Decree of 23 August 1868 specifically defining the political status of children born in the Philippine Islands, 17 and finally, the Ley
Extranjera de Ultramar of 04 July 1870, which was expressly made applicable to the Philippines by the Royal Decree of 13 July
1870.18
The Spanish Constitution of 1876 was never extended to the Philippine Islands because of the express mandate of its Article 89,
according to which the provisions of the Ultramar among which this country was included, would be governed by special laws.19
It was only the Civil Code of Spain, made effective in this jurisdiction on 18 December 1889, which came out with the first
categorical enumeration of who were Spanish citizens. -
"(a) Persons born in Spanish territory,
"(b) Children of a Spanish father or mother, even if they were born outside of Spain,
"(c) Foreigners who have obtained naturalization papers,
"(d) Those who, without such papers, may have become domiciled inhabitants of any town of the Monarchy." 20
The year 1898 was another turning point in Philippine history. Already in the state of decline as a superpower, Spain was forced to
so cede her sole colony in the East to an upcoming world power, the United States. An accepted principle of international law
dictated that a change in sovereignty, while resulting in an abrogation of all political laws then in force, would have no effect on
civil laws, which would remain virtually intact.
The Treaty of Paris was entered into on 10 December 1898 between Spain and the United States.21 Under Article IX of the treaty,
the civil rights and political status of the native inhabitants of the territories ceded to the United States would be determined by its
Congress -
"Spanish subjects, natives of the Peninsula, residing in the territory over which Spain by the present treaty relinquishes or cedes her
sovereignty may remain in such territory or may remove therefrom, retaining in either event all their rights of property, including
the right to sell or dispose of such property or of its proceeds; and they shall also have the right to carry on their industry,
commerce, and professions, being subject in respect thereof to such laws as are applicable to foreigners. In case they remain in the
territory they may preserve their allegiance to the Crown of Spain by making, before a court of record, within a year from the date
of the exchange of ratifications of this treaty, a declaration of their decision to preserve such allegiance; in default of which
declaration they shall be held to have renounced it and to have adopted the nationality of the territory in which they reside.
Thus –
"The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be
determined by the Congress."22
Upon the ratification of the treaty, and pending legislation by the United States Congress on the subject, the native inhabitants of
the Philippines ceased to be Spanish subjects. Although they did not become American citizens, they, however, also ceased to be
"aliens" under American laws and were thus issued passports describing them to be citizens of the Philippines entitled to the
protection of the United States.
The term "citizens of the Philippine Islands" appeared for the first time in the Philippine Bill of 1902, also commonly referred to as
the Philippine Organic Act of 1902, the first comprehensive legislation of the Congress of the United States on the Philippines -
".... that all inhabitants of the Philippine Islands continuing to reside therein, who were Spanish subjects on the 11th day of April,
1891, and then resided in said Islands, and their children born subsequent thereto, shall be deemed and held to be citizens of the
Philippine Islands and as such entitled to the protection of the United States, except such as shall have elected to preserve their
allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace between the United States and Spain,
signed at Paris, December tenth eighteen hundred and ninety eight."23
Under the organic act, a "citizen of the Philippines" was one who was an inhabitant of the Philippines, and a Spanish subject on the
11th day of April 1899. The term "inhabitant" was taken to include 1) a native-born inhabitant, 2) an inhabitant who was a native of
Peninsular Spain, and 3) an inhabitant who obtained Spanish papers on or before 11 April 1899. 24
Controversy arose on to the status of children born in the Philippines from 11 April 1899 to 01 July 1902, during which period no
citizenship law was extant in the Philippines. Weight was given to the view, articulated in jurisprudential writing at the time, that
the common law principle of jus soli, otherwise also known as the principle of territoriality, operative in the United States and
England, governed those born in the Philippine Archipelago within that period. 25 More about this later.
In 23 March 1912, the Congress of the United States made the following amendment to the Philippine Bill of 1902 -
"Provided, That the Philippine Legislature is hereby authorized to provide by law for the acquisition of Philippine citizenship by
those natives of the Philippine Islands who do not come within the foregoing provisions, the natives of other insular possession of the
United States, and such other persons residing in the Philippine Islands who would become citizens of the United States, under the
laws of the United States, if residing therein."26
With the adoption of the Philippine Bill of 1902, the concept of "Philippine citizens" had for the first time crystallized. The word
"Filipino" was used by William H. Taft, the first Civil Governor General in the Philippines when he initially made mention of it in his
slogan, "The Philippines for the Filipinos." In 1916, the Philippine Autonomy Act, also known as the Jones Law restated virtually the
provisions of the Philippine Bill of 1902, as so amended by the Act of Congress in 1912 -
"That all inhabitants of the Philippine Islands who were Spanish subjects on the eleventh day of April, eighteen hundred and ninety-
nine, and then resided in said Islands, and their children born subsequently thereto, shall be deemed and held to be citizens of the
Philippine Islands, except such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the
provisions of the treaty of peace between the United States and Spain, signed at Paris December tenth, eighteen hundred and
ninety-eight and except such others as have since become citizens of some other country; Provided, That the Philippine Legislature,
herein provided for, is hereby authorized to provide for the acquisition of Philippine citizenship by those natives of the Philippine
Islands who do not come within the foregoing provisions, the natives of the insular possessions of the United States, and such other
persons residing in the Philippine Islands who are citizens of the United States, or who could become citizens of the United States
under the laws of the United States, if residing therein."
Under the Jones Law, a native-born inhabitant of the Philippines was deemed to be a citizen of the Philippines as of 11 April 1899 if
he was 1) a subject of Spain on 11 April 1899, 2) residing in the Philippines on said date, and, 3) since that date, not a citizen of
some other country.
While there was, at one brief time, divergent views on whether or not jus soli was a mode of acquiring citizenship, the 1935
Constitution brought to an end to any such link with common law, by adopting, once and for all, jus sanguinis or blood relationship
as being the basis of Filipino citizenship -
"Section 1, Article III, 1935 Constitution. The following are citizens of the Philippines -
"(1) Those who are citizens of the Philippine Islands at the time of the adoption of this Constitution
"(2) Those born in the Philippines Islands of foreign parents who, before the adoption of this Constitution, had been elected to
public office in the Philippine Islands.
"(3) Those whose fathers are citizens of the Philippines.
"(4) Those whose mothers are citizens of the Philippines and upon reaching the age of majority, elect Philippine citizenship.
"(5) Those who are naturalized in accordance with law."
Subsection (4), Article III, of the 1935 Constitution, taken together with existing civil law provisions at the time, which provided that
women would automatically lose their Filipino citizenship and acquire that of their foreign husbands, resulted in discriminatory
situations that effectively incapacitated the women from transmitting their Filipino citizenship to their legitimate children and
required illegitimate children of Filipino mothers to still elect Filipino citizenship upon reaching the age of majority. Seeking to
correct this anomaly, as well as fully cognizant of the newly found status of Filipino women as equals to men, the framers of the
1973 Constitution crafted the provisions of the new Constitution on citizenship to reflect such concerns -
"Section 1, Article III, 1973 Constitution - The following are citizens of the Philippines:
"(1) Those who are citizens of the Philippines at the time of the adoption of this Constitution.
"(2) Those whose fathers or mothers are citizens of the Philippines.
"(3) Those who elect Philippine citizenship pursuant to the provisions of the Constitution of nineteen hundred and thirty-five.
"(4) Those who are naturalized in accordance with law."
For good measure, Section 2 of the same article also further provided that –
"A female citizen of the Philippines who marries an alien retains her Philippine citizenship, unless by her act or omission she is
deemed, under the law to have renounced her citizenship."
The 1987 Constitution generally adopted the provisions of the 1973 Constitution, except for subsection (3) thereof that aimed to
correct the irregular situation generated by the questionable proviso in the 1935 Constitution.
Section I, Article IV, 1987 Constitution now provides:
"The following are citizens of the Philippines:
"(1) Those who are citizens of the Philippines at the time of the adoption of this Constitution.
"(2) Those whose fathers or mothers are citizens of the Philippines.
"(3) Those born before January 17, 1973 of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and
"(4) Those who are naturalized in accordance with law."
The Case Of FPJ
Section 2, Article VII, of the 1987 Constitution expresses:
"No person may be elected President unless he is a natural-born citizen of the Philippines, a registered voter, able to read and
write, at least forty years of age on the day of the election, and a resident of the Philippines for at least ten years immediately
preceding such election."
The term "natural-born citizens," is defined to include "those who are citizens of the Philippines from birth without having to
perform any act to acquire or perfect their Philippine citizenship."27
The date, month and year of birth of FPJ appeared to be 20 August 1939 during the regime of the 1935 Constitution. Through its
history, four modes of acquiring citizenship - naturalization, jus soli, res judicata and jus sanguinis28 – had been in vogue. Only two,
i.e., jus soli and jus sanguinis, could qualify a person to being a "natural-born" citizen of the Philippines. Jus soli, per Roa vs.
Collector of Customs29 (1912), did not last long. With the adoption of the 1935 Constitution and the reversal of Roa in Tan Chong vs.
Secretary of Labor30 (1947), jus sanguinis or blood relationship would now become the primary basis of citizenship by birth.
Documentary evidence adduced by petitioner would tend to indicate that the earliest established direct ascendant of FPJ was his
paternal grandfather Lorenzo Pou, married to Marta Reyes, the father of Allan F. Poe. While the record of birth of Lorenzo Pou had
not been presented in evidence, his death certificate, however, identified him to be a Filipino, a resident of San Carlos, Pangasinan,
and 84 years old at the time of his death on 11 September 1954. The certificate of birth of the father of FPJ, Allan F. Poe, showed
that he was born on 17 May 1915 to an Español father, Lorenzo Pou, and a mestiza Español mother, Marta Reyes. Introduced by
petitioner was an "uncertified" copy of a supposed certificate of the alleged marriage of Allan F. Poe and Paulita Gomez on 05 July
1936. The marriage certificate of Allan F. Poe and Bessie Kelley reflected the date of their marriage to be on 16 September 1940. In
the same certificate, Allan F. Poe was stated to be twenty-five years old, unmarried, and a Filipino citizen, and Bessie Kelley to be
twenty-two years old, unmarried, and an American citizen. The birth certificate of FPJ, would disclose that he was born on 20
August 1939 to Allan F. Poe, a Filipino, twenty-four years old, married to Bessie Kelly, an American citizen, twenty-one years old
and married.
Considering the reservations made by the parties on the veracity of some of the entries on the birth certificate of respondent and
the marriage certificate of his parents, the only conclusions that could be drawn with some degree of certainty from the documents
would be that -
1. The parents of FPJ were Allan F. Poe and Bessie Kelley;
2. FPJ was born to them on 20 August 1939;
3. Allan F. Poe and Bessie Kelley were married to each other on 16 September, 1940;
4. The father of Allan F. Poe was Lorenzo Poe; and
5. At the time of his death on 11 September 1954, Lorenzo Poe was 84 years old.
Would the above facts be sufficient or insufficient to establish the fact that FPJ is a natural-born Filipino citizen? The marriage
certificate of Allan F. Poe and Bessie Kelley, the birth certificate of FPJ, and the death certificate of Lorenzo Pou are documents of
public record in the custody of a public officer. The documents have been submitted in evidence by both contending parties during
the proceedings before the COMELEC.
The birth certificate of FPJ was marked Exhibit "A" for petitioner and Exhibit "3" for respondent. The marriage certificate of Allan F.
Poe to Bessie Kelley was submitted as Exhibit "21" for respondent. The death certificate of Lorenzo Pou was submitted by
respondent as his Exhibit "5." While the last two documents were submitted in evidence for respondent, the admissibility thereof,
particularly in reference to the facts which they purported to show, i.e., the marriage certificate in relation to the date of marriage
of Allan F. Poe to Bessie Kelley and the death certificate relative to the death of Lorenzo Pou on 11 September 1954 in San Carlos,
Pangasinan, were all admitted by petitioner, who had utilized those material statements in his argument. All three documents were
certified true copies of the originals.
Section 3, Rule 130, Rules of Court states that -
"Original document must be produced; exceptions. - When the subject of inquiry is the contents of a document, no evidence shall be
admissible other than the original document itself, except in the following cases:
"x x x xxx xxx
"(d) When the original is a public record in the custody of a public office or is recorded in a public office."
Being public documents, the death certificate of Lorenzo Pou, the marriage certificate of Allan F. Poe and Bessie Kelly, and the
birth certificate of FPJ, constitute prima facie proof of their contents. Section 44, Rule 130, of the Rules of Court provides:
"Entries in official records. Entries in official records made in the performance of his duty by a public officer of the Philippines, or by
a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated."
The trustworthiness of public documents and the value given to the entries made therein could be grounded on 1) the sense of
official duty in the preparation of the statement made, 2) the penalty which is usually affixed to a breach of that duty, 3) the
routine and disinterested origin of most such statements, and 4) the publicity of record which makes more likely the prior exposure
of such errors as might have occurred.31
The death certificate of Lorenzo Pou would indicate that he died on 11 September 1954, at the age of 84 years, in San Carlos,
Pangasinan. It could thus be assumed that Lorenzo Pou was born sometime in the year 1870 when the Philippines was still a colony
of Spain. Petitioner would argue that Lorenzo Pou was not in the Philippines during the crucial period of from 1898 to 1902
considering that there was no existing record about such fact in the Records Management and Archives Office. Petitioner, however,
likewise failed to show that Lorenzo Pou was at any other place during the same period. In his death certificate, the residence of
Lorenzo Pou was stated to be San Carlos, Pangasinan. In the absence of any evidence to the contrary, it should be sound to
conclude, or at least to presume, that the place of residence of a person at the time of his death was also his residence before
death. It would be extremely doubtful if the Records Management and Archives Office would have had complete records of all
residents of the Philippines from 1898 to 1902.
Proof of Paternity and Filiation
Under Civil Law.
Petitioner submits, in any case, that in establishing filiation (relationship or civil status of the child to the father [or mother]) or
paternity (relationship or civil status of the father to the child) of an illegitimate child, FPJ evidently being an illegitimate son
according to petitioner, the mandatory rules under civil law must be used.
Under the Civil Code of Spain, which was in force in the Philippines from 08 December 1889 up until the day prior to 30 August 1950
when the Civil Code of the Philippines took effect, acknowledgment was required to establish filiation or paternity.
Acknowledgment was either judicial (compulsory) or voluntary. Judicial or compulsory acknowledgment was possible only if done
during the lifetime of the putative parent; voluntary acknowledgment could only be had in a record of birth, a will, or a public
document.32 Complementary to the new code was Act No. 3753 or the Civil Registry Law expressing in Section 5 thereof, that -
"In case of an illegitimate child, the birth certificate shall be signed and sworn to jointly by the parents of the infant or only by the
mother if the father refuses. In the latter case, it shall not be permissible to state or reveal in the document the name of the father
who refuses to acknowledge the child, or to give therein any information by which such father could be identified."
In order that the birth certificate could then be utilized to prove voluntary acknowledgment of filiation or paternity, the certificate
was required to be signed or sworn to by the father. The failure of such requirement rendered the same useless as being an
authoritative document of recognition.33 In Mendoza vs. Mella,34 the Court ruled -
"Since Rodolfo was born in 1935, after the registry law was enacted, the question here really is whether or not his birth certificate
(Exhibit 1), which is merely a certified copy of the registry record, may be relied upon as sufficient proof of his having been
voluntarily recognized. No such reliance, in our judgment, may be placed upon it. While it contains the names of both parents,
there is no showing that they signed the original, let alone swore to its contents as required in Section 5 of Act No. 3753. For all that
might have happened, it was not even they or either of them who furnished the data to be entered in the civil register. Petitioners
say that in any event the birth certificate is in the nature of a public document wherein voluntary recognition of a natural child may
also be made, according to the same Article 131. True enough, but in such a case, there must be a clear statement in the document
that the parent recognizes the child as his or her own."
In the birth certificate of respondent FPJ, presented by both parties, nowhere in the document was the signature of Allan F. Poe
found. There being no will apparently executed, or at least shown to have been executed, by decedent Allan F. Poe, the only other
proof of voluntary recognition remained to be "some other public document." In Pareja vs. Pareja, 35 this Court defined what could
constitute such a document as proof of voluntary acknowledgment:
"Under the Spanish Civil Code there are two classes of public documents, those executed by private individuals which must be
authenticated by notaries, and those issued by competent public officials by reason of their office. The public document pointed out
in Article 131 as one of the means by which recognition may be made belongs to the first class."
Let us leave it at that for the moment.
The 1950 Civil Code categorized the acknowledgment or recognition of illegitimate children into voluntary, legal or compulsory.
Voluntary recognition was required to be expressedly made in a record of birth, a will, a statement before a court of record or in
any authentic writing. Legal acknowledgment took place in favor of full blood brothers and sisters of an illegitimate child who was
recognized or judicially declared as natural. Compulsory acknowledgment could be demanded generally in cases when the child had
in his favor any evidence to prove filiation. Unlike an action to claim legitimacy which would last during the lifetime of the child,
and might pass exceptionally to the heirs of the child, an action to claim acknowledgment, however, could only be brought during
the lifetime of the presumed parent.
Amicus Curiae Ruben F. Balane defined, during the oral argument, "authentic writing," so as to be an authentic writing for purposes
of voluntary recognition, simply as being a genuine or indubitable writing of the father. The term would include a public instrument
(one duly acknowledged before a notary public or other competent official) or a private writing admitted by the father to be his.
The Family Code has further liberalized the rules; Article 172, Article 173, and Article 175 provide:
"Art. 172. The filiation of legitimate children is established by any of the following:
"(1) The record of birth appearing in the civil register or a final judgment; or
"(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent
concerned.
"In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
"(1) The open and continuous possession of the status of a legitimate child; or
"(2) Any other means allowed by the Rules of Court and special laws.
"Art. 173. The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs
should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which
to institute the action.
"The action already commenced by the child shall survive notwithstanding the death of either or both of the parties.
"x x x xxx x x x.
"Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same, evidence as legitimate
children.
"The action must be brought within the same period specified in Article 173, except when the action is based on the second
paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent."
The provisions of the Family Code are retroactively applied; Article 256 of the code reads:
"Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance
with the Civil Code or other laws."
Thus, in Vda. de Sy-Quia vs. Court of Appeals,36 the Court has ruled:
"We hold that whether Jose was a voluntarily recognized natural child should be decided under Article 278 of the Civil Code of the
Philippines. Article 2260 of that Code provides that 'the voluntary recognition of a natural child shall take place according to this
Code, even if the child was born before the effectivity of this body of laws' or before August 30, 1950. Hence, Article 278 may be
given retroactive effect."
It should be apparent that the growing trend to liberalize the acknowledgment or recognition of illegitimate children is an attempt
to break away from the traditional idea of keeping well apart legitimate and non-legitimate relationships within the family in favor
of the greater interest and welfare of the child. The provisions are intended to merely govern the private and personal affairs of the
family. There is little, if any, to indicate that the legitimate or illegitimate civil status of the individual would also affect his
political rights or, in general, his relationship to the State. While, indeed, provisions on "citizenship" could be found in the Civil
Code, such provisions must be taken in the context of private relations, the domain of civil law; particularly -
"Civil Law is that branch of law which has for its double purpose the organization of the family and the regulation of property. It has
thus [been] defined as the mass of precepts which determine and regulate the relations of assistance, authority and obedience
among members of a family, and those which exist among members of a society for the protection of private interests." 37
In Yañez de Barnuevo vs. Fuster,38 the Court has held:
"In accordance with Article 9 of the Civil Code of Spain, x x x the laws relating to family rights and duties, or to the status, condition
and legal capacity of persons, govern Spaniards although they reside in a foreign country; that, in consequence, 'all questions of a
civil nature, such as those dealing with the validity or nullity of the matrimonial bond, the domicile of the husband and wife, their
support, as between them, the separation of their properties, the rules governing property, marital authority, division of conjugal
property, the classification of their property, legal causes for divorce, the extent of the latter, the authority to decree it, and, in
general, the civil effects of marriage and divorce upon the persons and properties of the spouses, are questions that are governed
exclusively by the national law of the husband and wife."
The relevance of "citizenship" or "nationality" to Civil Law is best exemplified in Article 15 of the Civil Code, stating that -
"Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the
Philippines, even though living abroad" -
that explains the need to incorporate in the code a reiteration of the Constitutional provisions on citizenship. Similarly, citizenship
is significant in civil relationships found in different parts of the Civil Code, 39 such as on successional rights and family relations.40 In
adoption, for instance, an adopted child would be considered the child of his adoptive parents and accorded the same rights as their
legitimate child but such legal fiction extended only to define his rights under civil law 41 and not his political status.
Civil law provisions point to an obvious bias against illegitimacy. This discriminatory attitude may be traced to the Spanish family
and property laws, which, while defining proprietary and successional rights of members of the family, provided distinctions in the
rights of legitimate and illegitimate children. In the monarchial set-up of old Spain, the distribution and inheritance of titles and
wealth were strictly according to bloodlines and the concern to keep these bloodlines uncontaminated by foreign blood was
paramount.
These distinctions between legitimacy and illegitimacy were codified in the Spanish Civil Code, and the invidious discrimination
survived when the Spanish Civil Code became the primary source of our own Civil Code. Such distinction, however, remains and
should remain only in the sphere of civil law and not unduly impede or impinge on the domain of political law.
The proof of filiation or paternity for purposes of determining his citizenship status should thus be deemed independent from and
not inextricably tied up with that prescribed for civil law purposes. The Civil Code or Family Code provisions on proof of filiation or
paternity, although good law, do not have preclusive effects on matters alien to personal and family relations. The ordinary rules on
evidence could well and should govern. For instance, the matter about pedigree is not necessarily precluded from being applicable
by the Civil Code or Family Code provisions.
Section 39, Rule 130, of the Rules of Court provides -
"Act or Declaration about pedigree. The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of
another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the
relationship between the two persons is shown by evidence other than such act or declaration. The word `pedigree’ includes
relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of
the relatives. It embraces also facts of family history intimately connected with pedigree."
For the above rule to apply, it would be necessary that (a) the declarant is already dead or unable to testify, (b) the pedigree of a
person must be at issue, (c) the declarant must be a relative of the person whose pedigree is in question, (d) declaration must be
made before the controversy has occurred, and (e) the relationship between the declarant and the person whose pedigree is in
question must be shown by evidence other than such act or declaration.
Thus, the duly notarized declaration made by Ruby Kelley Mangahas, sister of Bessie Kelley Poe submitted as Exhibit 20 before the
COMELEC, might be accepted to prove the acts of Allan F. Poe, recognizing his own paternal relationship with FPJ, i.e, living
together with Bessie Kelley and his children (including respondent FPJ) in one house, and as one family -
"I, Ruby Kelley Mangahas, of legal age and sound mind, presently residing in Stockton, California, U.S.A., after being sworn in
accordance with law do hereby declare that:
"1. I am the sister of the late Bessie Kelley Poe.
"2. Bessie Kelley Poe was the wife of Fernando Poe, Sr.
"3. Fernando and Bessie Poe had a son by the name of Ronald Allan Poe, more popularly known in the Philippines as `Fernando Poe,
Jr.,’ or `FPJ’.
"4. Ronald Allan Poe `FPJ’ was born on August 20, 1939 at St. Luke's Hospital, Magdalena Street, Manila.
"x x x xxx xxx
"7. Fernando Poe Sr., and my sister Bessie, met and became engaged while they were students at the University of the Philippines in
1936. I was also introduced to Fernando Poe, Sr., by my sister that same year.
"8. Fernando Poe, Sr., and my sister Bessie had their first child in 1938.
"9. Fernando Poe, Sr., my sister Bessie and their first three children, Elizabeth, Ronald, Allan and Fernando II, and myself lived
together with our mother at our family's house on Dakota St. (now Jorge Bocobo St.), Malate until the liberation of Manila in 1945,
except for some months between 1943-1944.
"10. Fernando Poe, Sr., and my sister, Bessie, were blessed with four (4) more children after Ronald Allan Poe.
"x x x xxx xxx
"18. I am executing this Declaration to attest to the fact that my nephew, Ronald Allan Poe is a natural born Filipino, and that he is
the legitimate child of Fernando Poe, Sr.
"Done in City of Stockton, California, U.S.A., this 12th day of January 2004.
Ruby Kelley Mangahas Declarant DNA Testing
In case proof of filiation or paternity would be unlikely to satisfactorily establish or would be difficult to obtain, DNA testing, which
examines genetic codes obtained from body cells of the illegitimate child and any physical residue of the long dead parent could be
resorted to. A positive match would clear up filiation or paternity. In Tijing vs. Court of Appeals,42 this Court has acknowledged the
strong weight of DNA testing -
"Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways available. Fortunately,
we have now the facility and expertise in using DNA test for identification and parentage testing. The University of the Philippines
Natural Science Research Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using short
tandem repeat (STR) analysis. The analysis is based on the fact that the DNA of a child/person has two (2) copies, one copy from the
mother and the other from the father. The DNA from the mother, the alleged father and the child are analyzed to establish
parentage. Of course, being a novel scientific technique, the use of DNA test as evidence is still open to challenge. Eventually, as
the appropriate case comes, courts should not hesitate to rule on the admissibility of DNA evidence. For it was said, that courts
should apply the results of science when competently obtained in aid of situations presented, since to reject said result is to deny
progress."
Petitioner’s Argument For Jurisprudential Conclusiveness
Petitioner would have it that even if Allan F. Poe were a Filipino citizen, he could not have transmitted his citizenship to respondent
FPJ, the latter being an illegitimate child. According to petitioner, prior to his marriage to Bessie Kelley, Allan F. Poe, on July 5,
1936, contracted marriage with a certain Paulita Gomez, making his subsequent marriage to Bessie Kelley bigamous and respondent
FPJ an illegitimate child. The veracity of the supposed certificate of marriage between Allan F. Poe and Paulita Gomez could be
most doubtful at best. But the documentary evidence introduced by no less than respondent himself, consisting of a birth certificate
of respondent and a marriage certificate of his parents showed that FPJ was born on 20 August 1939 to a Filipino father and an
American mother who were married to each other a year later, or on 16 September 1940. Birth to unmarried parents would make
FPJ an illegitimate child. Petitioner contended that as an illegitimate child, FPJ so followed the citizenship of his mother, Bessie
Kelley, an American citizen, basing his stand on the ruling of this Court in Morano vs. Vivo,43 citing Chiongbian vs. de Leo44 and Serra
vs. Republic.45
On the above score, the disquisition made by amicus curiae Joaquin G. Bernas, SJ, is most convincing; he states -
"We must analyze these cases and ask what the lis mota was in each of them. If the pronouncement of the Court on jus sanguinis
was on the lis mota, the pronouncement would be a decision constituting doctrine under the rule of stare decisis. But if the
pronouncement was irrelevant to the lis mota, the pronouncement would not be a decision but a mere obiter dictum which did not
establish doctrine. I therefore invite the Court to look closely into these cases.
"First, Morano vs. Vivo. The case was not about an illegitimate child of a Filipino father. It was about a stepson of a Filipino, a
stepson who was the child of a Chinese mother and a Chinese father. The issue was whether the stepson followed the naturalization
of the stepfather. Nothing about jus sanguinis there. The stepson did not have the blood of the naturalized stepfather.
"Second, Chiongbian vs. de Leon. This case was not about the illegitimate son of a Filipino father. It was about a legitimate son of a
father who had become Filipino by election to public office before the 1935 Constitution pursuant to Article IV, Section 1(2) of the
1935 Constitution. No one was illegitimate here.
"Third, Serra vs. Republic. The case was not about the illegitimate son of a Filipino father. Serra was an illegitimate child of a
Chinese father and a Filipino mother. The issue was whether one who was already a Filipino because of his mother who still needed
to be naturalized. There is nothing there about invidious jus sanguinis.
"Finally, Paa vs. Chan.46 This is a more complicated case. The case was about the citizenship of Quintin Chan who was the son of
Leoncio Chan. Quintin Chan claimed that his father, Leoncio, was the illegitimate son of a Chinese father and a Filipino mother.
Quintin therefore argued that he got his citizenship from Leoncio, his father. But the Supreme Court said that there was no valid
proof that Leoncio was in fact the son of a Filipina mother. The Court therefore concluded that Leoncio was not Filipino. If Leoncio
was not Filipino, neither was his son Quintin. Quintin therefore was not only not a natural-born Filipino but was not even a Filipino.
"The Court should have stopped there. But instead it followed with an obiter dictum. The Court said obiter that even if Leoncio,
Quintin's father, were Filipino, Quintin would not be Filipino because Quintin was illegitimate. This statement about Quintin, based
on a contrary to fact assumption, was absolutely unnecessary for the case. x x x It was obiter dictum, pure and simple, simply
repeating the obiter dictum in Morano vs. Vivo.
"x x x xxx xxx
"Aside from the fact that such a pronouncement would have no textual foundation in the Constitution, it would also violate the
equal protection clause of the Constitution not once but twice. First, it would make an illegitimate distinction between a legitimate
child and an illegitimate child, and second, it would make an illegitimate distinction between the illegitimate child of a Filipino
father and the illegitimate child of a Filipino mother.
"The doctrine on constitutionally allowable distinctions was established long ago by People vs. Cayat.47 I would grant that the
distinction between legitimate children and illegitimate children rests on real differences. x x x But real differences alone do not
justify invidious distinction. Real differences may justify distinction for one purpose but not for another purpose.
"x x x What is the relevance of legitimacy or illegitimacy to elective public service? What possible state interest can there be for
disqualifying an illegitimate child from becoming a public officer. It was not the fault of the child that his parents had illicit liaison.
Why deprive the child of the fullness of political rights for no fault of his own? To disqualify an illegitimate child from holding an
important public office is to punish him for the indiscretion of his parents. There is neither justice nor rationality in that. And if
there is neither justice nor rationality in the distinction, then the distinction transgresses the equal protection clause and must be
reprobated."
The other amici curiae, Mr. Justice Vicente Mendoza (a former member of this Court), Professor Ruben Balane and Dean Martin
Magallona, at bottom, have expressed similar views. The thesis of petitioner, unfortunately hinging solely on pure obiter dicta,
should indeed fail.
Where jurisprudence regarded an illegitimate child as taking after the citizenship of its mother, it did so for the benefit the child. It
was to ensure a Filipino nationality for the illegitimate child of an alien father in line with the assumption that the mother had
custody, would exercise parental authority and had the duty to support her illegitimate child. It was to help the child, not to
prejudice or discriminate against him.
The fact of the matter – perhaps the most significant consideration – is that the 1935 Constitution, the fundamental law prevailing
on the day, month and year of birth of respondent FPJ, can never be more explicit than it is. Providing neither conditions nor
distinctions, the Constitution states that among the citizens of the Philippines are "those whose fathers are citizens of the
Philippines." There utterly is no cogent justification to prescribe conditions or distinctions where there clearly are none provided.
In Sum –
(1) The Court, in the exercise of its power of judicial review, possesses jurisdiction over the petition in G. R. No. 161824, filed under
Rule 64, in relation to Rule 65, of the Revised Rules of Civil Procedure. G.R. No. 161824 assails the resolution of the COMELEC for
alleged grave abuse of discretion in dismissing, for lack of merit, the petition in SPA No. 04-003 which has prayed for the
disqualification of respondent FPJ from running for the position of President in the 10 th May 2004 national elections on the
contention that FPJ has committed material representation in his certificate of candidacy by representing himself to be a natural-
born citizen of the Philippines.
(2) The Court must dismiss, for lack of jurisdiction and prematurity, the petitions in G. R. No. 161434 and No. 161634 both having
been directly elevated to this Court in the latter’s capacity as the only tribunal to resolve a presidential and vice-presidential
election contest under the Constitution. Evidently, the primary jurisdiction of the Court can directly be invoked only after, not
before, the elections are held.
(3) In ascertaining, in G.R. No. 161824, whether grave abuse of discretion has been committed by the COMELEC, it is necessary to
take on the matter of whether or not respondent FPJ is a natural-born citizen, which, in turn, depended on whether or not the
father of respondent, Allan F. Poe, would have himself been a Filipino citizen and, in the affirmative, whether or not the alleged
illegitimacy of respondent prevents him from taking after the Filipino citizenship of his putative father. Any conclusion on the
Filipino citizenship of Lorenzo Pou could only be drawn from the presumption that having died in 1954 at 84 years old, Lorenzo
would have been born sometime in the year 1870, when the Philippines was under Spanish rule, and that San Carlos, Pangasinan, his
place of residence upon his death in 1954, in the absence of any other evidence, could have well been his place of residence before
death, such that Lorenzo Pou would have benefited from the "en masse Filipinization" that the Philippine Bill had effected in 1902.
That citizenship (of Lorenzo Pou), if acquired, would thereby extend to his son, Allan F. Poe, father of respondent FPJ. The 1935
Constitution, during which regime respondent FPJ has seen first light, confers citizenship to all persons whose fathers are Filipino
citizens regardless of whether such children are legitimate or illegitimate.
(4) But while the totality of the evidence may not establish conclusively that respondent FPJ is a natural-born citizen of the
Philippines, the evidence on hand still would preponderate in his favor enough to hold that he cannot be held guilty of having made
a material misrepresentation in his certificate of candidacy in violation of Section 78, in relation to Section 74, of the Omnibus
Election Code. Petitioner has utterly failed to substantiate his case before the Court, notwithstanding the ample opportunity given
to the parties to present their position and evidence, and to prove whether or not there has been material misrepresentation,
which, as so ruled in Romualdez-Marcos vs. COMELEC,48 must not only be material, but also deliberate and willful.
WHEREFORE, the Court RESOLVES to DISMISS –
1. G. R. No. 161434, entitled "Maria Jeanette C. Tecson and Felix B. Desiderio, Jr., Petitioners, versus Commission on Elections,
Ronald Allan Kelley Poe (a.k.a. "Fernando Poe, Jr.,) and Victorino X. Fornier, Respondents," and G. R. No. 161634, entitled "Zoilo
Antonio Velez, Petitioner, versus Ronald Allan Kelley Poe, a.k.a. Fernando Poe, Jr., Respondent," for want of jurisdiction.
2. G. R. No. 161824, entitled "Victorino X. Fornier, Petitioner, versus Hon. Commission on Elections and Ronald Allan Kelley Poe, also
known as Fernando Poe, Jr.," for failure to show grave abuse of discretion on the part of respondent Commission on Elections in
dismissing the petition in SPA No. 04-003.
No Costs.
SO ORDERED.

SEPARATE OPINION
DAVIDE, JR. C.J.:
The procedural and factual antecedents of these consolidated cases are as follows:
On 9 January 2004, petitioner Victorino X. Fornier filed with public respondent Commission on Elections (COMELEC) a petition to
disqualify private respondent Fernando Poe, Jr. (FPJ) and to deny due course to or cancel his certificate of candidacy for the
position of President in the forthcoming 10 May 2004 presidential elections. As a ground therefore, he averred that FPJ committed
falsity in a material representation in his certificate of candidacy in declaring that he is a natural-born Filipino citizen when in truth
and in fact he is not, since he is the illegitimate son of Bessie Kelley, an American citizen, and Allan Poe, a Spanish national. The
case was docketed as COMELEC Case SPA No. 04-003 and assigned to the COMELEC’s First Division.
At the hearing before the First Division of the COMELEC, petitioner Fornier offered FPJ’s record of birth to prove that FPJ was born
on 20 August 1939 to Bessie Kelley, an American citizen, and Allan Poe, who was then married to Paulita Gomez. Upon the other
hand, FPJ tried to establish that his father was a Filipino citizen whose parents, although Spanish nationals, were Filipino citizens.
He adduced in evidence a copy of the marriage contract of Allan Poe and Bessie Kelley, showing that they were married on 16
September 1940 in Manila.
In its Resolution of 23 January 2004, the First Division of the COMELEC dismissed COMELEC Case SPA No. 04-003 for lack of merit. It
declared that COMELEC’s jurisdiction is limited to all matters relating to election, returns and qualifications of all elective regional,
provincial and city officials, but not those of national officials like the President. It has, however, jurisdiction to pass upon the issue
of citizenship of national officials under Section 78 of the Omnibus Election Code on petitions to deny due course or cancel
certificates of candidacy on the ground that any material representation contained therein is false. It found that the evidence
adduced by petitioner Fornier is not substantial, and that FPJ did not commit any falsehood in material representation when he
stated in his certificate of candidacy that he is a natural-born Filipino citizen.
His motion for reconsideration filed before the COMELEC en banc having been denied, petitioner Fornier filed a petition with this
Court, which was docketed as G.R. No. 161824.
Meanwhile, petitioners Maria Jeanette C. Tecson and Felix B. Desiderio, Jr. came to this Court via a special civil action for certiorari
under Rule 65 of the Rules of Court, docketed as G.R. No. 161434, to challenge the jurisdiction of the COMELEC over the issue of the
citizenship of FPJ. They assert that only this Court has jurisdiction over the issue in light of the last paragraph of Section 4 of Article
VII of the Constitution, which provides:
The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election returns, and qualifications of the
President or Vice-President, and may promulgate its rules for the purpose.
On 29 January 2004 petitioner Velez filed a similar petition, which was docketed as G.R. No. 161634.
The core issues in these consolidated cases, as defined by the Court during the oral argument, are as follows:
(1) Whether the COMELEC has jurisdiction over petitions to deny due course to or cancel certificates of candidacy of Presidential
candidates;
(2) Whether the Supreme Court has jurisdiction over the petitions of (a) Tecson, et al., (b) Velez, and (c) Fornier; and
(3) Whether respondent FPJ is a Filipino citizen, and if so, whether he is a natural-born Filipino citizen.
These consolidated petitions must be dismissed.
Both the petitions of Tecson and Velez invoke the jurisdiction of this Court as provided for in the last paragraph of Section 4 of
Article VII of the Constitution, and raise the issue of the ineligibility of a candidate for President on the ground that he is not a
natural-born citizen of the Philippines. The actions contemplated in the said provision of the Constitution are post-election
remedies, namely, regular election contests and quo warranto. The petitioner should have, instead, resorted to pre-election
remedies, such as those prescribed in Section 68 (Disqualifications), in relation to Section 72; Section 69 (Nuisance candidates); and
Section 78 (Petition to deny course to or cancel a certificate of candidacy), in relation to Section 74, of the Omnibus Election Code,
which are implemented in Rules 23, 24 and 25 of the COMELEC Rules of Procedure. These pre-election remedies or actions do not,
however, fall within the original jurisdiction of this Court.
Under the Omnibus Election Code and the COMELEC Rules of Procedure, the COMELEC has the original jurisdiction to determine in an
appropriate proceeding whether a candidate for an elective office is eligible for the office for which he filed his certificate of
candidacy or is disqualified to be a candidate or to continue such candidacy because of any of the recognized grounds for
disqualification. Its jurisdiction over COMELEC SPA No. 04-003 is, therefore, beyond question.
Upon the other hand, this Court has jurisdiction over Fornier’s petition (G.R. No. 161824) under Section 7 of Article IX-A of the
Constitution, which provides:
Section 7. Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within sixty days
from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the
filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless
otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme
Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.
This Court can also take cognizance of the issue of whether the COMELEC committed grave abuse of discretion amounting to lack or
excess of jurisdiction in issuing the challenged resolution in COMELEC SPA No. 04-003 by virtue of Section 1 of Article VIII of the
Constitution, which reads as follows:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of nay branch or instrumentality of the Government.
On the issue of whether private respondent FPJ is a natural-born Filipino citizen, the following facts have been established by a
weighty preponderance of evidence either in the pleadings and the documents attached thereto or from the admissions of the
parties, through their counsels, during the oral arguments:
1. FPJ was born on 20 August 1939 in Manila, Philippines.
2. FPJ was born to Allan Poe and Bessie Kelley.
3. Bessie Kelley and Allan Poe were married on 16 September 1940.
4. Allan Poe was a Filipino because his father, Lorenzo Poe, albeit a Spanish subject, was not shown to have declared his allegiance
to Spain by virtue of the Treaty of Paris and the Philippine Bill of 1902.
From the foregoing it is clear that respondent FPJ was born before the marriage of his parents. Thus, pursuant to the Civil Code then
in force, he could either be (a) a natural child if both his parents had no legal impediments to marry each other; or (b) an
illegitimate child if, indeed, Allan Poe was married to another woman who was still alive at the time FPJ was born.
Petitioner Fornier never alleged that Allan Poe was not the father of FPJ. By revolving his case around the illegitimacy of FPJ,
Fornier effectively conceded paternity or filiation as a non-issue. For purposes of the citizenship of an illegitimate child whose
father is a Filipino and whose mother is an alien, proof of paternity or filiation is enough for the child to follow the citizenship of his
putative father, as advanced by Fr. Joaquin Bernas, one of the amici curiae. Since paternity or filiation is in fact admitted by
petitioner Fornier, the COMELEC committed no grave abuse of discretion in holding that FPJ is a Filipino citizen, pursuant to
paragraph 3 of Section 1 of Article IV of the 1935 Constitution, which reads:
Section 1. The following are citizens of the Philippines:
…
(3) Those whose fathers are citizens of the Philippines.
I agree with the amici curiae that this provision makes no distinction between legitimate and illegitimate children of Filipino
fathers. It is enough that filiation is established or that the child is acknowledged or recognized by the father.
DISSENTING OPINION
CARPIO, J.:
I dissent from the majority opinion.
The Antecedent Proceedings
Petitioner Fornier filed before the Commission on Elections ("Comelec") a "Petition for Disqualification of Presidential Candidate
Ronald Allan Kelley Poe a.k.a. Fernando Poe, Jr." on the ground that Fernando Poe, Jr. ("FPJ") is not a natural-born Philippine
citizen. The Comelec First Division dismissed the petition, ruling that petitioner failed to present substantial evidence that FPJ
committed "any material misrepresentation when he stated in his Certificate of Candidacy that he is a natural-born citizen." On
motion for reconsideration, the Comelec En Banc affirmed the ruling of the First Division. Petitioner Fornier now assails the Comelec
En Banc resolution under Rule 64 in relation to Rule 65 of the Rules of Court.
The Undisputed Facts
The undisputed facts are based on two documents and the admission of FPJ. The first document is the Birth Certificate of FPJ,
showing he was born on 20 August 1939. The Birth Certificate is an evidence of FPJ.[1] The second document is the Marriage
Certificate of Allan F. Poe and Bessie Kelley, showing that their marriage took place on 16 September 1940. The Marriage Certificate
is also an evidence of FPJ.[2] Moreover, FPJ admits that his mother Bessie Kelley was an American citizen.[3]
Based on these two documents and admission, the undisputed facts are: (1) FPJ was born out of wedlock and therefore
illegitimate,[4] and (2) the mother of FPJ was an American citizen.
The Issues
The issues raised in Fornier’s petition are:
(a) Whether the Court has jurisdiction over the petition to disqualify FPJ as a candidate for President on the ground that FPJ is not a
natural-born Philippine citizen;
(b) Whether FPJ is a natural-born citizen of the Philippines.
Jurisdiction
The Comelec has jurisdiction to determine initially the qualifications of all candidates. Under Section 2(1), Article IX-C of the
Constitution, the Comelec has the power and function to "[E]nforce and administer all laws and regulations relative to the conduct
of an election." The initial determination of who are qualified to file certificates of candidacies with the Comelec clearly falls within
this all-encompassing constitutional mandate of the Comelec. The conduct of an election necessarily includes the initial
determination of who are qualified under existing laws to run for public office in an election. Otherwise, the Comelec’s certified list
of candidates will be cluttered with unqualified candidates making the conduct of elections unmanageable. For this reason, the
Comelec weeds out every presidential election dozens of candidates for president who are deemed nuisance candidates by the
Comelec.[5]
Section 2(3), Article IX-C of the Constitution also empowers the Comelec to "[D]ecide, except those involving the right to vote, all
questions affecting elections x x x." The power to decide "all questions affecting elections" necessarily includes the power to decide
whether a candidate possesses the qualifications required by law for election to public office. This broad constitutional power and
function vested in the Comelec is designed precisely to avoid any situation where a dispute affecting elections is left without any
legal remedy. If one who is obviously not a natural-born Philippine citizen, like Arnold Schwarzenneger, runs for President, the
Comelec is certainly not powerless to cancel the certificate of candidacy of such candidate. There is no need to wait until after the
elections before such candidate may be disqualified.
Under Rule 25 on "Disqualification of Candidates" of the Comelec Rules of Procedure, a voter may question before the Comelec the
qualifications of any candidate for public office. Thus, Rule 25 provides:
Section 1. 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.
Section 2. Who May File Petition for Disqualification. — Any citizen of voting age, or duly registered political party, organization or
coalition of political parties may file with the Law Department of the Commission a petition to disqualify a candidate on grounds
provided by law. (Emphasis supplied)
The Comelec adopted its Rules of Procedure pursuant to its constitutional power to promulgate its own rules of procedure[6] to
expedite the disposition of cases or controversies falling within its jurisdiction.
The Comelec has ruled upon the qualifications of candidates, even if the Constitution provides that some other body shall be the
"sole judge" of the qualifications of the holders of the public offices involved. The Court has upheld the jurisdiction of Comelec to
issue such rulings,[7] even when the issue is the citizenship of a candidate.[8] Thus, the Comelec has jurisdiction to determine
initially if FPJ meets the citizenship qualification to run for President.
However, the Comelec En Banc, in its scanty resolution, failed to state the factual bases of its ruling. The Comelec En Banc also
failed to rule conclusively on the issue presented – whether FPJ is a natural-born Philippine citizen. The Comelec En Banc affirmed
the First Division ruling that "[W]e feel we are not at liberty to finally declare whether or not the respondent is a natural-born
citizen." In short, the Comelec En Banc allowed a candidate for President to run in the coming elections without being convinced
that the candidate is a natural-born Philippine citizen. Clearly, the Comelec En Banc acted with grave abuse of discretion. Under
Section 1, Article VIII, as well as Section 5, Article VIII, of the Constitution, the Court has jurisdiction to hear and decide the issue in
a petition for certiorari under Rule 64 in relation to Rule 65.
To hold that the Court acquires jurisdiction to determine the qualification of a candidate for President only after the elections
would lead to an absurd situation. The Court would have to wait for an alien to be elected on election day before he could be
disqualified to run for President. If the case is not decided immediately after the election, an alien who wins the election may even
assume office as President before he is finally disqualified. Certainly, this is not what the Constitution says when it provides that
"[N]o person may be elected President unless he is a natural-born citizen of the Philippines."[9] The clear and specific language of
the Constitution prohibits the election of one who is not a natural-born citizen. Thus, the issue of whether a candidate for President
is a natural-born Philippine citizen must be decided before the election.
Governing Laws
Since FPJ was born on 20 August 1939, his citizenship at the time of his birth depends on the Constitution and statutes in force at
the time of his birth.[10] FPJ’s citizenship at the time of his birth in 1939, applying the laws in force in 1939, determines whether
he is a natural-born Philippine citizen.
Natural-born Philippine citizens are "those who are citizens of the Philippines from birth without having to perform any act to
acquire or perfect their Philippine citizenship."[11] If a person has to perform an act, such as proving in an administrative or judicial
proceeding, that an event subsequent to his birth transpired thus entitling him to Philippine citizenship, such person is not a natural
born citizen.[12]
The 1935 Constitution and the Spanish Civil Code, the laws in force in 1939, are the governing laws that determine whether a person
born in 1939 is a Philippine citizen at the time of his birth in 1939. Any subsequent legislation cannot change the citizenship at birth
of a person born in 1939 because such legislation would violate the constitutional definition of a natural-born citizen as one who is a
Philippine citizen from birth. In short, one who is not a Philippine citizen at birth in 1939 cannot be declared by subsequent
legislation a natural-born citizen.
General Principles
A legitimate child of a Filipino father follows the citizenship of the father. A child born within wedlock is presumed to be the son of
the father[13] and thus carries the blood of the father. Under the doctrine of jus sanguinis, as provided for in Section 1(3), Article III
of the 1935 Constitution, a legitimate child, by the fact of legitimacy, automatically follows the citizenship of the Filipino father.
An illegitimate child, however, enjoys no presumption at birth of blood relation to any father unless the father acknowledges the
child at birth.[14] The law has always required that "in all cases of illegitimate children, their filiation must be duly proved."[15] The
only legally known parent of an illegitimate child, by the fact of illegitimacy, is the mother of the child who conclusively carries the
blood of the mother. Thus, unless the father acknowledges the illegitimate child at birth, the illegitimate child can only acquire the
citizenship of the only legally known parent - the mother.
However, if the Filipino father is legally known because the filiation (blood relation of illegitimate child to the father) of the child to
the Filipino father is established in accordance with law, the child follows the citizenship of the Filipino father. This gives effect,
without discrimination between legitimate and illegitimate children, to the provision of the 1935 Constitution that "[T]hose whose
fathers are citizens of the Philippines"[16] are Philippine citizens.
Nature of Citizenship
If the Filipino father acknowledges the illegitimate child at birth, the child is a natural-born Philippine citizen because no other act
after his birth is required to acquire or perfect his Philippine citizenship. The child possesses all the qualifications to be a Philippine
citizen at birth.
If the Filipino father acknowledges the child after birth, the child is a Philippine citizen as of the time of the acknowledgment. In
this case, the child does not possess all the qualifications to be a Philippine citizen at birth because an act - the acknowledgement
of the Filipino father - is required for the child to acquire or perfect his Philippine citizenship. Statutory provisions on retroactivity
of acknowledgment cannot be given effect because they would be contrary to the constitutional definition of natural- born citizens
as those who are Philippine citizens at birth without having to perform any act to acquire or perfect their Philippine citizenship.
If the illegitimacy of a child is established, there is no presumption that the child has the blood of any man who is supposed to be
the father. There is only a conclusive presumption that the child has the blood of the mother. If an illegitimate child claims to have
the blood of a man who is supposed to be the child’s father, such blood relation must be established in accordance with proof of
filiation as required by law.
Where the illegitimate child of an alien mother claims to follow the citizenship of the putative father, the burden is on the
illegitimate child to establish a blood relation to the putative Filipino father since there is no presumption that an illegitimate child
has the blood of the putative father. Even if the putative father admits paternity after the birth of the illegitimate child, there must
be an administrative or judicial approval that such blood relation exists upon proof of paternity as required by law.
Citizenship, being a matter of public and State interest, cannot be conferred on an illegitimate child of an alien mother on the mere
say so of the putative Filipino father. The State has a right to examine the veracity of the claim of paternity. Otherwise, the grant
of Philippine citizenship to an illegitimate child of an alien mother is left to the sole discretion of the putative Filipino father. For
example, a Philippine citizen of Chinese descent can simply claim that he has several illegitimate children in China. The State
cannot be required to grant Philippine passports to these supposed illegitimate children born in China of Chinese mothers just
because the putative Filipino father acknowledges paternity of these illegitimate children. There must be either an administrative
or judicial determination that the claim of the putative Filipino father is true.
The case of the illegitimate Vietnamese children, born in Vietnam of Vietnamese mothers and allegedly of Filipino fathers, is
illustrative. These children grew up in Vietnam, many of them studying there until high school. These children grew up knowing they
were Vietnamese citizens. In 1975, a Philippine Navy vessel brought them, together with their Vietnamese mothers, to the
Philippines as Saigon fell to the communists. The mothers of these children became stateless when the Republic of (South) Vietnam
ceased to exist in 1975. The Department of Justice rendered Opinion No. 49 dated 3 May 1995 that being children of Filipino fathers,
these Vietnamese children, even if illegitimate, are Philippine citizens under Section 1(3), Article IV of the 1935 Constitution and
Section 1(2), Article III of the 1973 Constitution. This Opinion is cited by FPJ as basis for his claim of being a natural-born Philippine
citizen.[17] However, this Opinion categorically stated that before the illegitimate Vietnamese children may be considered Filipino
citizens "it is necessary in every case referred to that such paternity be established by sufficient and convincing documentary
evidence."[18]
In short, the illegitimate child must prove to the proper administrative or judicial authority the paternity of the alleged Filipino
father by "sufficient and convincing documentary evidence." Clearly, an administrative or judicial act is necessary to confer on the
illegitimate Vietnamese children Philippine citizenship. The mere claim of the illegitimate child of filiation to a Filipino father, or
the mere acknowledgment of the alleged Filipino father, does not automatically confer Philippine citizenship on the child. The State
must be convinced of the veracity of such claim and approve the same. Since the illegitimate Vietnamese children need to perform
an act to acquire or perfect Philippine citizenship, they are not natural-born Philippine citizens. They become Philippine citizens
only from the moment the proper administrative or judicial authority approve and recognize their filiation to their alleged Filipino
fathers.
The rationale behind requiring that only natural-born citizens may hold certain high public offices[19] is to insure that the holders of
these high public offices grew up knowing they were at birth citizens of the Philippines. In their formative years they knew they
owed from birth their allegiance to the Philippines. In case any other country claims their allegiance, they would be faithful and
loyal to the Philippines of which they were citizens from birth. This is particularly true to the President who is the commander-in-
chief of the armed forces.[20] The President of the Philippines must owe, from birth, allegiance to the Philippines and must have
grown up knowing that he was a citizen of the Philippines at birth. The constitutional definition of a natural-born Philippine citizen
would lose its meaning and efficacy if one who was at birth recognized by law as an alien were declared forty years later[21] a
natural-born Philippine citizen just because his alleged Filipino father subsequently admitted his paternity.
Proof of Filiation
Article 131[22] of the Spanish Civil Code, the law in force in 1939, recognized only the following as proof of filiation of a natural
child:
a. acknowledgment in a record of birth;
b. acknowledgment in a will;
c. acknowledgment in some other public document.
To establish his Philippine citizenship at birth, FPJ must present either an acknowledgement in a record of birth, or an
acknowledgment in some other public document executed at the time of his birth. An acknowledgment executed after birth does
not make one a citizen at birth but a citizen from the time of such acknowledgment since the acknowledgment is an act done after
birth to acquire or perfect Philippine citizenship.
After the birth of one who is not a natural-born Philippine citizen, a subsequent legislation liberalizing proof of filiation cannot apply
to such person to make him a natural-born citizen. A natural-born Philippine citizen is expressly defined in the Constitution as one
who is a citizen at birth. If a person is not a citizen at birth, no subsequent legislation can retroactively declare him a citizen at
birth since it would violate the constitutional definition of a natural-born citizen.
Burden of Proof
Any person who claims to be a citizen of the Philippines has the burden of proving his Philippine citizenship. Any person who claims
to be qualified to run for President because he is, among others, a natural-born Philippine citizen, has the burden of proving he is a
natural-born citizen. Any doubt whether or not he is natural-born citizen is resolved against him. The constitutional requirement of
a natural-born citizen, being an express qualification for election as President, must be complied with strictly as defined in the
Constitution. As the Court ruled in Paa v. Chan: [23]
It is incumbent upon a person who claims Philippine citizenship to prove to the satisfaction of the Court that he is really a Filipino.
No presumption can be indulged in favor of the claimant of Philippine citizenship, and any doubt regarding citizenship must be
resolved in favor of the State.
Since the undisputed facts show that FPJ is an illegitimate child, having been born out of wedlock, the burden is on FPJ to prove his
blood relation to his alleged Filipino father. An illegitimate child enjoys no presumption of blood relation to any father. Such blood
relationship must be established in the appropriate proceedings in accordance with law.
Private party litigants cannot stipulate on the Philippine citizenship of a person because citizenship is not a private right or
property, but a matter of public and State interest. Even if petitioner Fornier admits that FPJ, although illegitimate, is the son of
Allan F. Poe, such admission cannot bind the State for the purpose of conferring on FPJ the status of a natural-born Philippine
citizen or even of a naturalized citizen. Certainly, the Court will not recognize a person as a natural-born Philippine citizen just
because the private party litigants have admitted or stipulated on such a status. In the present case, the Solicitor General, as
representative of the Government, is strongly disputing the status of FPJ as a natural-born Philippine citizen.
Legitimation
Under Article 123[24] of the Spanish Civil Code, legitimation took effect as of the date of marriage. There was no retroactivity of
the effects of legitimation on the rights of the legitimated child. Thus, a legitimated child acquired the rights of a legitimate child
only as of the date of marriage of the natural parents. Allan F. Poe and Bessie Kelley were married on 16 September 1940 while FPJ
was born more than one year earlier on 20 August 1939. Assuming that Allan F. Poe was FPJ’s natural father, the effects of
legitimation did not retroact to the birth of FPJ on 20 August 1939.
Besides, legitimation vests only civil, not political rights, to the legitimated child. As the Court held in Ching Leng:[25]
The framers of the Civil Code had no intention whatsoever to regulate therein political questions. Hence, apart from reproducing
the provisions of the Constitution on citizenship, the Code contains no precept thereon except that which refers all matters of
"naturalization", as well as those related to the "loss and reacquisition of citizenship" to "special laws." Consistently with this policy,
our Civil Code does not include therein any rule analogous to Articles 18 to 28 of the Civil Code of Spain, regulating citizenship.
(Underscoring in the original)
Clearly, even assuming that the marriage of Allan F. Poe and Bessie Kelley legitimated FPJ, such legitimation did not vest
retroactively any civil or political rights to FPJ.
Treaty of Paris of 1898 and Philippine Bill of 1902
FPJ admits that his grandfather, Lorenzo Pou, was a Spanish citizen who came to the Philippines from Spain.[26] To benefit from the
mass naturalization under the Treaty of Paris of 1898 and the Philippine Bill of 1902, FPJ must prove that Lorenzo Pou was an
inhabitant and resident of the Philippines on 11 April 1899. Once it is established that Lorenzo Pou was an inhabitant and resident of
the Philippines on 11 April 1899, then he is presumed to have acquired Philippine citizenship under the Treaty of Paris of 1898 and
the Philippine Bill of 1902.[27] Being an inhabitant and resident of the Philippines on 11 April 1899 is the determinative fact to fall
under the coverage of the Treaty of Paris of 1898 and the Philippine Bill of 1902.[28]
There is, however, no evidence on record that Lorenzo Pou was a Philippine inhabitant and resident on 11 April 1899. The date of
arrival of Lorenzo Pou in the Philippines is not known. If he arrived in the Philippines after 11 April 1899, then he could not benefit
from the mass naturalization under the Treaty of Paris of 1898 and the Philippine Bill of 1902. There is also no evidence that Lorenzo
Pou was naturalized as a Philippine citizen after 11 April 1899. Thus, there can be no presumption that Lorenzo Pou was a Philippine
citizen.
There is also no evidence on record that Allan F. Poe, the son of Lorenzo Pou and the alleged father of FPJ, was naturalized as a
Philippine citizen. Thus, based on the evidence adduced there is no legal basis for claiming that Allan F. Poe is a Philippine citizen.
Nevertheless, there is no need to delve further into this issue since the Court can decide this case without determining the
citizenship of Lorenzo Pou and Allan F. Poe. Whether or not Lorenzo Pou and Allan F. Poe were Philippine citizens is not material in
resolving whether FPJ is a natural-born Philippine citizen.
Convention on the Rights of the Child
The Philippines signed the Convention on the Rights of the Child on 26 January 1990 and ratified the same on 21 August 1990. The
Convention defines a child to mean "every human being below the age of eighteen years unless, under the law applicable to the
child, majority is attained earlier." Obviously, FPJ cannot invoke the Convention since he is not a child as defined in the Convention,
and he was born half a century before the Convention came into existence. FPJ’s citizenship at birth in 1939 could not in any way be
affected by the Convention which entered into force only on 2 September 1990.
The Convention has the status of a municipal law[29] and its ratification by the Philippines could not have amended the express
requirement in the Constitution that only natural-born citizens of Philippines are qualified to be President. While the Constitution
apparently favors natural-born citizens over those who are not, that is the explicit requirement of the Constitution which neither
the Executive Department nor the Legislature, in ratifying a treaty, could amend. In short, the Convention cannot amend the
definition in the Constitution that natural-born citizens are "those who are citizens of the Philippines from birth without having to
perform any act to acquire or perfect their Philippine citizenship."
In any event, the Convention guarantees a child "the right to acquire a nationality,"[30] and requires States Parties to "ensure the
implementation" of this right, "in particular where the child would otherwise be stateless."[31] Thus, as far as nationality or
citizenship is concerned, the Convention guarantees the right of the child to acquire a nationality so that he may not be stateless.
The Convention does not guarantee a child a citizenship at birth, but merely "the right to acquire a nationality" in accordance with
municipal law. When FPJ was born in 1939, he was apparently under United States law an American citizen at birth.[32] After his
birth FPJ also had the right to acquire Philippine citizenship by proving his filiation to his alleged Filipino father in accordance with
Philippine law. At no point in time was FPJ in danger of being stateless. Clearly, FPJ cannot invoke the Convention to claim he is a
natural-born Philippine citizen.
The Doctrine in Ching Leng v. Galang
The prevailing doctrine today is that an illegitimate child of a Filipino father and an alien mother follows the citizenship of the alien
mother as the only legally known parent. The illegitimate child, even if acknowledged and legally adopted by the Filipino father,
cannot acquire the citizenship of the father. The Court made this definitive doctrinal ruling in Ching Leng v. Galang,[33] which
involved the illegitimate minor children of a naturalized Filipino of Chinese descent with a Chinese woman, Sy An. The illegitimate
children were later on jointly adopted by the naturalized Filipino and his legal wife, So Buan Ty.
The facts in Ching Leng as quoted by the Court from the trial court’s decision are as follows:
After the petitioner Ching Leng Alias Ching Ban Lee obtained judgment in this Court dated May 2, 1950 granting his petition for
naturalization, he together with his wife So Buan Ty filed another petition also in this Court in Special Proc. No. 1216 for the
adoption of Ching Tiong Seng, Ching Liong Ding, Victoria Ching Liong Yam, Sydney Ching and Ching Tiong An, all minors and
admittedly the illegitimate children of petitioner Ching Leng with one Sy An, a Chinese citizen. Finding the petition for adoption
proper, this Court granted the same in a decision dated September 12, 1950, declaring the said minors free from all legal obligations
of obedience and maintenance with respect to their mother Sy An and to all legal intents and purposes the children of the adopter
Ching Leng alias Ching Ban Lee and So Buan Ty with all the legal rights and obligations provided by law.
On September 29, 1955, Ching Leng took his oath of allegiance and became therefore a full pledge (sic) Filipino citizen. Believing
now that his adopted illegitimate children became Filipino citizens by virtue of his naturalization, petitioner Ching Leng addressed a
communication to the respondent Commissioner of Immigration requesting that the alien certificate of registration of the said
minors be cancelled. (Bold underscoring supplied)
In Ching Leng, the Court made a definitive ruling on the meaning of "minor child or children" in Section 15 of the Naturalization
Law,[34] as well as the meaning of children "whose parents are citizens of the Philippines" under the Constitution. The Court
categorically ruled that these children refer to legitimate children only, and not to illegitimate children. Thus, the Court held:
It is claimed that the phrases "minor children" and "minor child", used in these provisions, include adopted children. The argument is
predicated upon the theory that an adopted child is, for all intents and purposes, a legitimate child. Whenever, the word "children"
or "child" is used in statutes, it is generally understood, however, to refer to legitimate children, unless the context of the law and
its spirit indicate clearly the contrary. Thus, for instance, when the Constitution provides that "those whose parents are citizens of
the Philippines, "and "those whose mothers are citizens of the Philippines," who shall elect Philippine citizenship "upon reaching the
age of majority", are citizens of the Philippines (Article IV, Section 1, subdivisions 3 and 4), our fundamental law clearly refers to
legitimate children (Chiong Bian vs. De Leon, 46 Off. Gaz., 3652-3654; Serra v. Republic, L-4223, May 12, 1952).
Similarly, the children alluded to in said section 15 are those begotten in lawful wedlock, when the adopter, at least is the father. In
fact, illegitimate children are under the parental authority of the mother and follow her nationality, not that of the illegitimate
father (U.S. vs. Ong Tianse, 29 Phil. 332, 335-336; Santos Co vs. Gov’t of the Philippines, 52 Phil. 543, 544; Serra v. Republic, supra;
Gallofin v. Ordoñez, 70 Phil. 287; Quimsuan vs. Republic, L-4693, Feb. 16, 1953). Although, adoption gives "to the adopted person
the same rights and duties as if he were a legitimate child of the adopter", pursuant to said Article 341 of our Civil Code, we have
already seen that the rights therein alluded to are merely those enumerated in Article 264, and do not include the acquisition of the
nationality of the adopter.
Moreover, as used in said section 15 of the Naturalization Law, the term "children" could not possibly refer to those whose relation
to the naturalized person is one created by legal fiction, as, for instance, by adoption, for, otherwise, the place and time of birth of
the child would be immaterial. The fact that the adopted persons involved in the case at bar are illegitimate children of appellant
Ching Leng does not affect substantially the legal situation before us, for, by legal fiction, they are now being sought to be given the
status of legitimate children of said appellant, despite the circumstance that the Civil Code of the Philippine does not permit their
legitimation. (Bold underscoring supplied)
Ching Leng, penned by Justice Roberto Concepcion in October 1958, was a unanimous decision of the Court En Banc. Subsequent
Court decisions, including Paa v. Chan[35] and Morano et al. v. Vivo,[36] have cited the doctrine laid down in Ching Leng that the
provision in the 1935 Constitution stating "those whose fathers are citizens of the Philippines" refers only to legitimate children.
When the 1973 and 1987 Constitutions were drafted, the framers did not attempt to change the intent of this provision, even as they
were presumably aware of the Ching Leng doctrine.
Nevertheless, I believe that it is now time to abandon the Ching Leng doctrine. The inexorable direction of the law, both
international and domestic in the last 100 years, is to eliminate all forms of discrimination between legitimate and illegitimate
children. Where the Constitution does not distinguish between legitimate and illegitimate children, we should not also distinguish,
especially when private rights are not involved as in questions of citizenship. Abandoning the Ching Leng doctrine upholds the equal
protection clause of the Constitution. Abandoning the Ching Leng doctrine is also in compliance with our treaty obligation under the
Covenant on the Rights of Children mandating States Parties to eliminate all forms of discrimination based on the status of children,
save of course those distinctions prescribed in the Constitution itself like the reservation of certain high public offices to natural-
born citizens.
Abandoning the Ching Leng doctrine does not mean, however, that an illegitimate child of a Filipino father and an alien mother
automatically becomes a Philippine citizen at birth. We have repeatedly ruled that an illegitimate child does not enjoy any
presumption of blood relation to the alleged father until filiation or blood relation is proved as provided by law.[37] Article 887 of
the Civil Code expressly provides that "[I]n all cases of illegitimate children, their filiation must be duly proved." The illegitimate
child becomes a Philippine citizen only from the time he establishes his blood relation to the Filipino father. If the blood relation is
established after the birth of the illegitimate child, then the child is not a natural-born Philippine citizen since an act is required
after birth to acquire or perfect his Philippine citizenship.
Conclusion
In conclusion, private respondent Fernando Poe, Jr. is not a natural-born Philippine citizen since there is no showing that his alleged
Filipino father Allan F. Poe acknowledged him at birth. The Constitution defines a natural-born citizen as a Philippine citizen "from
birth without having to perform any act to acquire or perfect" his Philippine citizenship. Private respondent Fernando Poe, Jr. does
not meet this citizenship qualification.
Therefore, I vote to grant the petition of Victorino X. Fornier. However, I vote to dismiss the petitions of Maria Jeanette C. Tecson,
Felix B. Desiderio, Jr. and Zoilo Antonio Velez on the ground that their direct petitions invoking the jurisdiction of the Court under
Section 4, paragraph 7, Article VII of the Constitution are premature, there being no election contest in this case.

G.R. Nos. 211789-90 March 17, 2015

DR. REY B. AQUINO, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
DECISION
BRION, J.:
We resolve in this petition for certiorari and prohibition1 the challenge to the October 19, 20122 and February 18, 20143 resolutions
of respondent Commission on Elections (COMELEC) sitting En Banc, in E.O. Case No. 10-003 and E.O. Case No. 10-008.
The October 19, 2012 resolution, among others, directed the COMELEC’s Law Department to file the appropriate information against
petitioner Dr. Rey B. Aquinofor violation of COMELEC Resolution No. 87374 in relation to Section 261(h) of the Batas Pambansa Blg.
881 (BP 881) (the Omnibus Election Code of the Philippines).The February 18, 2014 resolution, in turn, affirmed in toto the October
19, 2012 resolution.
The Factual Antecedents
On January 8, 2010, Aquino, as President and Chief Executive Officer of the Philippine Health Insurance Corporation (PHIC),issued
PhilHealth Special Order No. 16, Series of 2010 (reassignment order)5 directing the reassignment of several PHIC officers and
employees.
The pertinent portion of PhilHealth SO No. 16-20106 reads:
08 January 2010
SPECIAL ORDER
No. 16, s. 2010
Subject: Re-Assignment of PhilHealth Officials
In the interest of the service and further enhance organizational efficiency and synergy, the following PhilHealth officials and
personnel are hereby re-assigned to the offices opposite their names. This is also being made to strengthen PhilHealth’s
organizational capability by providing opportunities to its key personnel for professional growth and development in strategic
management, which is imperative in view of the impending vacancies in crucial 3rd level positions.
xxxx
By virtue of this Order, the above named officers are bound to perform all the duties and functions required in their respective
assignments and shall receive the corresponding allowances.
This Order shall take effect immediately.
DR. REY B. AQUINO
President and CEO
On the same date, Aquino released the reassignment order, via the PHIC’s intranet service, to all PHIC officers and employees,
including the following: (1) Dennis Adre, PHIC Regional Vice-President (VP); (2) Masiding Alonto, PHIC Regional VP; and (3)
Khaliquzzaman M. Macabato, PHIC Assistant Regional VP.
On January 11, 2010, Aquino issued an Advisory implementing the reassignment order. The Advisory directed these officers to,
among others, "report to their new regional assignments; or to the central office; or to other areas, as the case may be, not later
than five (5) working days from the date of issuance of the reassignment order or January 15, 2010 for officers transferred,
reassigned or designated to various posts located in the central office; and/or ten (10) working days from the ADVISORY or January
22, 2010, in the case of those reassigned or transferred from a regional office to another or from the central office to a regional
office and vice versa."7 In view of the reassignment order and its directive, Dean Rudyard A. Avila III, consultant to the Chairman of
the Board of PHIC and former Secretary of the PHIC Board of Directors, filed before the COMELEC on January 18, 2010, a complaint
against Aquino and Melinda C. Mercado, PHIC Officer-in-Charge, Executive VPand Chief Operating Officer, for violation of COMELEC
Resolution No. 8737in relation to Section 261(h) of BP 881. The case was docketed as E.O. Case No. 10-003.
On February 1, 2010, Adre, Alonto and Macabato, along with Romeo D. Albertoand Johnny Y. Sychua (PHIC Regional VPs) likewise
filed before the COMELEC a similar complaint for violation of Resolution No. 8737 in relation to Section 261(h) of BP 881 against Tito
M. Mendiola, PHIC Senior VP for Operations Sector, and Ruben John A. Basa, PHIC Group VP for Corporate Affairs. The case was
docketed as E.O. Case No. 10-008.
E.O. Case No. 10-003 and E.O. Case No. 10-008 were subsequently consolidated (consolidated COMELEC complaints).
Meanwhile, Aquino wrote the COMELEC a letter dated January 11, 2010,8 asking for a "categorical declaration that the issuance of
and transition to the respective office designations of concerned officers x x x is beyond the purview of COMELEC Resolution No.
8737 x x x." He posited that the reassignment order is beyond the coverage of this COMELEC resolution as he issued it on January
8,2010, or prior to the start of the election period that began on January 11, 2010. Aquino reiterated this request in his letter dated
February 26, 2010.9
On March 29, 2010, Aquino filed a petition10 before the COMELEC reiterating his request and maintaining that PhilHealth SO No. 16-
2010 is beyond the coverage of Resolution No. 8737. This case was docketed as E.M. Case No. 10-018.
The assailed COMELEC resolutions
1. The October 19, 2012 resolution11
The COMELEC directed its Law Department to file the appropriate information against Aquino for violation of Resolution No. 8737 in
relation to Section 261(h) of BP 881; it dismissed, for lack of merit, the complaint against Mercado, Mendiola, and Basa.
The COMELEC declared that Aquino violated Section 261(h) of BP 881 when he directed the transfer/reassignment of the PHIC
officers and employees within the declared election period without its prior approval. It pointed out that Section 261(h) considers an
election offense for "any public official who makes or causes the transfer or detail whatever of any public officer or employee in
the civil service x x x within the election period except upon prior approval of the Commission."
Citing Regalado, Jr. v. Court of Appeals,12 the COMELEC explained in this regard that "the words ‘transfer’ and ‘detail’ [in Section
261(h) of BP 881] are modified by the word ‘whatever’ x x x [such that] any movement of personnel from one station to another
during the election, whether or not in the same office or agency, is covered by the prohibition."13
The COMELEC pointed out, too, that in promulgating Resolution No. 8737, it merely laid down the guidelines relative to the transfer,
detail or reassignment of officers and employees of the civil service for the January 10, 2010 to June 9, 2010 election period set for
the May 10, 2010 National and Local Elections (May 10, 2010 elections) which guidelines still fall well within the provisions of Section
261(h) of BP 881. It emphasized that Resolution No. 8737 merely reiterated Section 261(h)’s prohibition and the requirement of prior
COMELEC approval in any case of personnel transfers or details; and provided penalties in case of violation of the prohibition.
In this case, the COMELEC noted that while the facts at first glance would support Aquino’s contention that the reassignment order
is beyond the coverage of the election transfer ban as Aquino issued it on January 8, 2010, its implementation was carried out after
the transfer ban had already set in. Moreover, the circumstances surrounding its issuance supports the conclusion that Aquino
violated the transfer ban, i.e., Aquino issued the reassignment order late in the afternoon of January 8, 2010, which was a Friday;
he issued the guidelines implementing the transfer/reassignment order only on January 11, 2010, after the transfer ban had taken
effect; and, even after the election period had already started, he still issued several transfer/reassignment orders from January 21
to February 15, 2010,14 absent the required prior COMELEC approval.
In short, the COMELEC found a prima facie case against Aquino for violation of Resolution No. 8737 in relation to Section 261(h) of
BP 881 because while the reassignment order was issued on January 8, 2010, or prior to the start of the transfer ban, its
implementation took effect after the transfer ban had already set in. To the COMELEC, a transfer/reassignment order must be
issued and implemented prior to the start of the election period to be excluded from the coverage of the transfer ban. Any
personnel action issued and/or implemented during the election period must have prior COMELEC approval to be valid; otherwise,
such personnel action is illegal and renders liable the person who made or caused the movement.
The COMELEC dismissed the complaint against the other respondents because: (1) the documents on record bear only Aquino’s
signature; and (2) conspiracy among them was not alleged nor proved.
On December 7, 2012, Aquino sought reconsideration15 of the COMELEC’s October 19, 2012 resolution. He argued that what he
directed when he issued the order was only a reassignment, not a transfer, which is not covered by the transfer ban. In this regard,
he pointed to Civil Service Commission Memorandum Circular No. 2,series of 2005, and the Court’s ruling in Tapispisan v. Court of
Appeals16 to support his position.
He argued, too, that he issued the directive outside of or before the start of the election period, i.e., on January 8, 2010.
Lastly, he pointed out that he thrice sought from the COMELEC the required approvals as early as January 11, 2010; as of the date of
the filing of this motion, the COMELEC has yet to act on his letter-requests.
2. The February 18, 2014 resolution17
The COMELEC affirmed in toto the October 19, 2012 resolution.
The COMELEC agreed with the complainants’ position and ruled that the word "whatever" in Section 261(h) of BP 881 expanded the
coverage of the prohibition so as to include any movement of personnel, including reassignment, among others. In fact, to dispel any
ambiguity as regards Section 261(h)’s prohibition, Resolution No. 8737 defined the word "transfer" as including any personnel action.
Accordingly, the COMELEC held that insofar as the prohibition provision (under Section 261[h] of BP881) is concerned, the terms
"transfer" and "reassignment" have similar legal consequences. Lastly, the COMELEC emphasized that only a prima facie finding of
violation or probable cause is required for purposes of filing an Information for an election offense. In Aquino’s case, the facts show
such prima facie case against him for violation of Section 261(h) of BP 881. COMELEC resolution on Aquino’s petition (E.M. Case No.
10-018)
In a resolution dated August 20, 2010,18 the COMELEC First Division denied Aquino’s petition (for declaration of the non-coverage of
the reassignment order under the transfer ban) and directed the COMELEC’s Law department to conduct preliminary investigation to
determine whether Aquino committed an election offense for violation of Resolution No. 8737 in relation to Section 261(h) of BP
881.
The First Division agreed that Section 261(h) of BP 881 and Resolution No. 8737 do not render illegal per se the transfer of a
government officer or employee during election period and that the law, in fact, recognizes the inherent prerogative of the
appointing authority to effect such transfers or details whenever necessary to meet the exigencies of the public service.
It nevertheless pointed out that the transfers or details in this case were effected without the required prior COMELEC approval
which sufficiently renders Aquino liable for violation of Resolution No. 8737 in relation with Section 261(h).
The Petition
Aquino essentially argues that, first, the COMELEC exceeded its authority to implement the election laws when, in interpreting
Section 261(h) of BP 881, it added reassignments as a covered offense when the prohibitions speaks only of transfer and detail. To
him, the COMELEC could not legally and validly add a third mode of personnel action and hold him accountable for its violation,
when the legislative intent clearly and specifically prohibited only transfer and detail from among the several modes of personnel
action enumerated under the various laws governing the civil service, i.e., Presidential Decree (PD) No. 807 and Executive Order
(EO) No. 292.
He argues that while the COMELEC indeed has the exclusive authority to implement the election laws, and with it the authority to
issue rules and regulations to supply details or clarify gaps in the law, it cannot validly extend what these laws provide without
running afoul of the basic precept that the power to make laws is exclusively lodged in the legislature.
Thus, Aquino takes exception to the COMELEC’s reliance in Regalado19 arguing that the term "whatever" was added simply to modify
the term "detail" (which it immediately follows) or both the terms "detail and/or transfer;" the addition of the term "whatever" was
never meant to include within the coverage of the prohibition any mode of personnel action other than transfer and detail.
Then too, he points out that the Court, in Regalado, declared the transfer as falling within the prohibition’s coverage because
although made in the exigencies of public service, it was, in fact, used for electioneering purposes or to harass subordinates of
different political persuasion.
In this case, he argues that none of the complaining PHIC officer/personnel even alleged a situation similar to those in Regalado.
Hence, the COMELEC cannot hold him criminally liable for an act that the law does not prohibit under the maxim nullum crimen sine
lege.
Second, the reassignment order did not violate Section 261(h) of BP 881 because he issued it on January 8,2010, or before the start
of the election period on January 10, 2010. Hepoints out that by its terms, the "reassignments" were immediately executory; it was
also released and disseminated via the PHIC’s intranet service and facsimiles, to all concerned officers and employees on the same
date of issue.
Further, he argues that Section 3 of BP 881 fixes the start of the election period at ninety (90) days before the day of the election,
not one hundred and twenty (120) days before, which the COMELEC set in Resolution No. 8737. Hence, the election period for the
May 10, 2010 elections should have commenced on February 9, 2010, not January 10, 2010.
At any rate, Aquino argues that the COMELEC’s resolutions and directive to file criminal action against him were premature and
without legal basis. He points out that, if only to comply with the legal requirement of prior COMELEC approval, he had thrice
requested20 the COMELEC for exemption from Resolution No. 8737. To this date and despite the issuance of the October 19, 2012
and February18, 2014 resolutions, his request remains pending before the COMELEC En Banc.21 He insists that the resolution of his
request/petition for exemption is necessary as the issues raised therein were prejudicial questions to the issues in the consolidated
COMELEC complaints.
The Case for the COMELEC
The COMELEC, through the Solicitor General, argues22 that it has the power to prosecute any reassignment of officers and
employees in the civil service made during the election period. In this regard, it points out that the words "transfer" and "detail" are
precisely modified by the word "whatever" such that any movement of personnel from one station to another, whether or not in the
same office or agency, is covered by the prohibition under Resolution No. 8737 in relation to Section 261(h) of BP 881. Such
personnel action necessarily includes "reassignment." In addition, the COMELEC defends that it did not act with grave abuse of
discretion when it directed its law department to file the appropriate information against Aquino for violation of Resolution No.
8737 in relation to Section 261(h) of BP 881. It points out that: (1) Aquino issued the reassignment order during the election period,
absent its prior approval; and (2) it did not err in fixing the election period for the May 10, 2010 elections and in implementing
Resolution No. 8737.
Relying on Regalado, the COMELEC reasons that for an act to fall under Section 261(h) of BP 881, two elements must concur: (1) a
public officer or employee is transferred or detailed within the election period as fixed by it; and (2) the transfer or detail was
effected without its prior approval pursuant to its implementing rules and regulations.
In this case, it argues that both elements were present. First, while the reassignment order was issued on January 8, 2010, it
actually became effective only on January 11, 2010, well within the election period. To this end, it points out that: (1) the Order
was issued at about four-thirty in the afternoon (4:30 pm) when it was already too late to be implemented; (2) the complainants in
the consolidated complaints received a copy of the Order only on January 11, 2010; (3) Aquino issued the Advisory likewise only on
January 11, 2010; and (4) Aquino issued other reassignment orders between January 21 and February 15, 2010.23
In other words, the COMELEC submits that if a reassignment order was implemented during the election period, even if issued prior
thereto as in this case, it is still covered by the election ban on personnel transfer.
Second, Aquino issued the reassignment order without its prior approval. To the COMELEC, Aquino’s January 11, 2010 and February
26, 2010 letters, as well as his March 18,2010 petition (for exemption from the election transfer ban) could not have rectified the
deficiency because the letter-requests were submitted and filed long after the election ban had already taken effect; and the
petition for exemption was filed long after the complaints were filed against him.
Lastly, the COMELEC argues that the election period which it fixed for the May 10, 2010 election is valid and legal pursuant to its
authority under Section 3 of BP 881. The period fixed is likewise valid,24 pursuant to Section 12 of Resolution No. 873725 in relation
to Section 52(m) of BP 88126 and Section 30 of Republic Act (RA) No. 6646.27
The Issues
The basic issues before us are whether: the COMELEC validly issued Resolution No. 8737 that defined transfer, as contemplated
under Section 261(h) of BP 881, to include all personnel action including reassignments; and if so, whether the COMELEC validly
found prima facie case against Aquino for violation of Resolution No. 8737 in relation to Section 261(h).
The Court's Ruling
Preliminary Considerations
In assailing the COMELEC’s October 19, 2012 and February 18, 2014 resolutions, Aquino comes to this Court via Rule 64 in relation to
Rule 65 of the Rules of Court.
As a Rule 64 petition (viewed from a Rule 65 approach), the Court’s standard of review is "grave abuse of discretion" or such
"capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction. Mere abuse of discretion is not enough; the
abuse of discretion must be patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty
enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by
reason of passion and hostility."28 A lower court or tribunal’s violation of the Constitution, law or existing jurisprudence29 or their
use of wrong or irrelevant considerations in deciding an issue is sufficient to taint their action with grave abuse of discretion.30
In this petition, Aquino ascribes grave abuse of discretion on the part of the COMELEC as it found prima facie case to indict him for
violation of Resolution No. 8737 in relation to Section 261(h) of BP 881. He presents the following main arguments:
1. The COMELEC exceeded its rule-making authority when it issued Resolution No. 8737 that expanded the coverage of Section
261(h) of BP 881;
2. The reassignment order is beyond the coverage of Section 261(h) of BP 881 because he issued it before the start of the election
period; and
3. The COMELEC prematurely issued its resolutions (finding prima facie case against him) as the COMELEC had, then, yet to resolve
his request for exemption from the coverage of Resolution No. 8737.
We approach these arguments with the consideration of the distinct role that the COMELEC plays in our government structure. We
consider as well the considerable latitude which the Constitution and the laws grant it as it ensures the accomplishment of the great
objective for which it was created – free, orderly and honest elections.31 We recognize this legal reality and concede that we have
no general powers of supervision over the COMELEC except those which the Constitution specifically grants to us, i.e., to review its
decisions, orders, and rulings within the limited terms of a petition for certiorari.32
Thus, in this Rule 64 petition, the scope of our review is limited to the question: whether the COMELEC’s exercise of its powers as it
issued the prima-facie-case-finding resolution and Resolution No. 8737 was without or in excess of jurisdiction, or with grave abuse
of discretion amounting to lack or excess of jurisdiction.
Aquino’s petition must prosper if the COMELEC, in appreciating and calibrating the evidence as it arrived at the assailed resolutions,
exceeded its authority or exercised its discretion in an excessive, arbitrary, and gravely abusive manner. The grant of the petition
based on these asserted violations in effect recognizes that, in acting as it did, the COMELEC committed errors of the level that
effectively affected its jurisdiction.
Aquino’s petition must fail, however, if the COMELEC’s acts, even though viewed erroneous under the terms of the asserted
violations, were still well within the limits of its powers under the Constitution and relevant statutes. The Court must, in such case,
recognize the COMELEC’s exercise of its discretion in issuing the assailed resolutions to be proper and well within its jurisdiction.
Viewed in this light, we GRANT the petition; we find grave abuse of discretion on the part of the COMELEC in the manner that it
found prima facie case against Aquino for violation of Resolution No. 8737 in relation to Section 261(h) of BP 881.
A. COMELEC Resolution No. 8737 is valid
1. The COMELEC’s enforcement and
administration power and rule-making power
To determine the validity of Resolution No. 8737, we first discuss some of the basic precepts touching on the powers granted to the
COMELEC as it fulfills its mandate under the Constitution and statutes.
We begin with the Constitution – the fundamental law to which all laws must conform. The pertinent provisions read:
ARTICLE IX
CONSTITUTIONAL COMMISSIONS
A. COMMON PROVISIONS
xxxx
Section 6. Each Commission en banc may promulgate its own rules concerning pleadings and practice before it or before any of its
offices. Such rules however shall not diminish, increase, or modify substantive rights.
xxxx
C. THE COMMISSION ON ELECTIONS
Section 2.The Commission on Elections shall exercise the following powers and functions:
(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and
recall.
[emphases and underscoring supplied]
By statute, BP 881 provides:
Article VII
THE COMMISSION ON ELECTIONS
Sec. 52. Powers and functions of the Commission on elections. – In addition to the powers and functions conferred upon it by the
Constitution, the Commission shall have exclusive charge of the enforcement and administration of all laws relative to the conduct
of elections for the purpose of ensuring free, orderly and honest elections, and shall:
xxxx
(c) Promulgate rules and regulations implementing the provisions of this Code or other laws which the Commission is required to
enforce and administer x x x x.
[emphases supplied]
A common and clear conclusion that we can gather from these provisions is the obvious and unequivocal intent of the framers of the
Constitution and of the law to grant the COMELEC with powers, necessary and incidental to achieve the objective of ensuring free,
orderly, honest, peaceful and credible elections.
Thus, expressly, the Constitution and the laws grant the COMELEC with the power, first and foremost, to "[e]nforce and administer
all laws and regulations relative to the conduct of an election," and second, to "promulgate rules and regulations." Together, these
powers ensure that the COMELEC is well armed to properly enforce and implement the election laws and enable it to fill in the
situational gaps which the law does not provide for or which the legislature had not foreseen.
In exercising these powers and fulfilling its mandate, the COMELEC, in addition, must necessarily interpret the provisions of the law
that they are to enforce and for which they will craft the guidelines. Thus, to this extent and in this sense, the COMELEC likewise
exercises the power of legal interpretation pursuant to the legal principle that the grant of a power includes all the powers
necessary for the exercise of the power expressly given.
Like all grant of powers, however, the grant to the COMELEC of its express – enforcement and administration, and rule-making – and
implied – interpretative – powers are not without limitations. The exercise of these powers should always be read in conjunction
with, not in isolation from, the Constitution and the laws from where it draws the power.
2. The COMELEC did not exceed the
exercise of its rule-making power;
reassignment is included in the
prohibition pursuant to the phrase
"transfer or detail whatever"
In Resolution No. 8737, the COMELEC defined the phrase "transfer or detail whatever" found in Section 261(h) of BP 881 as including
any personnel action, i.e., "reassignment." Aquino questions this COMELEC interpretation as an unwarranted expansion of the legal
prohibition which he argues renders the COMELEC liable for grave abuse of discretion.
We agree with the questioned COMELEC interpretation of the phrase "transfer or detail whatever."
a. The COMELEC’s interpretation,
pursuant to our Regalado ruling,
is consistent with the constitutional
and legislative intent
A necessary starting point in considering how we are to interpret the phrase "transfer or detail whatever" is the legal provisions
involved – BP 881 and the various laws governing the civil service.
On the one hand, Aquino argues that the laws on the civil service should govern in the interpretation of the phrase. Under this
approach, the term "whatever" is viewed as modifying only either the term "detail" (which it immediately follows) or both the terms
"detail and/or transfer." In such case, "reassignments," which is a distinct mode of personnel action under the civil service laws, are
automatically excluded.
On the other hand, the COMELEC holds the position that the phrase "transfer or detail whatever" should be interpreted in the light of
the general objectives of our election laws. Under this approach, the terms transfer and detail, as modified by the term whatever,
are to be understood in their general sense such that any movement of personnel from one station to another, including
"reassignments," is covered by the prohibition.
In Regalado, Jr. v. Court of Appeals,33 the Court already clarified the interpretation of the term whatever as used in Section 261(h)
of BP 881 in relation to the terms transfer and detail. In agreeing with the Solicitor General’s position, this Court declared that the
terms transfer and detail are modified by the term whatever such that "any movement of personnel from one station to another,
whether or not in the same office or agency, during the election period is covered by the prohibition."34
Read in the light of this ruling, we affirm the COMELEC’s interpretation of the phrase "transfer or detail whatever" as we find the
Regalado interpretation consistent with the legislative intent. Indeed, as used in Section 261(h) of BP 881, the term whatever should
be not be read strictly in conjunction with only either the term transfer or the term detail; nor should the phrase transfer or detail
whatever be read in isolation from the purpose of the legal prohibition. Rather, consistent with our rules in reading provisions of
law, the term – whatever – as well as the phrase – transfer or detail whatever– should be understood within the broader context of
the purpose of BP881. They should likewise be understood within the context of all other laws that the COMELEC is required to
administer and enforce. This is the proper approach that anyone, including this Court, should take when reading Section 261(h), as
well as all other provisions of BP 881 and other election laws.
From this perspective, we reiterate our observation in Regalado that any personnel action, when caused or made during the election
period, can be used for electioneering or to harass subordinates with different political persuasions. This possibility – of being used
for electioneering purposes or to harass subordinates – created by any movement of personnel during the election period is precisely
what the transfer ban seeks to prevent.
Thus, it is immaterial whether or not the personnel action has in fact been actually used for electioneering purposes or whether
there has been any allegation in the complaint to this effect. The mere existence of such plausibility for electioneering is the reason
that animated the legal prohibition against any personnel action, including transfers and reassignments, during the election period.
To our mind, the interpretation that includes any form of personnel action, such as reassignment, within the coverage of the phrase
precisely guards against any such electioneering and political harassment situations. This interpretation also more vigorously
enforces the aim not only of BP 881, but more importantly of the Constitution to secure free, orderly, honest, peaceful, and
credible elections.
Thus, to reiterate and emphasize – the election law’s prohibition on transfer or detail covers any movement of personnel from one
station to another, whether or not in the same office or agency when made or caused during the election period.
b. Its interpretation is also
consistent with basic statutory
construction rules
In addition to what has been discussed, we affirm the COMELEC’s interpretation as it is more in keeping with the following basic
statutory construction rules:
First, that a word, phrase or provision in a statute should be construed not in isolation with but in relation to the whole law. The
clauses and phrases of a statute must not be taken as detached and isolated expressions; but the whole and every part of it must be
construed in fixing the meaning of any of its parts in order to produce a harmonious whole.35 In short, all the words of a statute
must be taken into consideration in order to ascertain and to animate the intention of the law making bodies. Ut magis valeat quam
pereat.
In this light, Aquino’s interpretation – that the term whatever and the transfer ban itself refers to either only the term transfer or
the term detail, or only to both these terms – would obviously violate this well-known canon as it essentially views the phrase
transfer or detail whatever in isolation from the entire statute.
Second, that the words of a statute are to be understood in their natural, plain, and ordinary acceptation and the signification that
they have in common use, and are to be given their ordinary meaning, unless otherwise specifically provided.36
When, as in this case, the specific provision in which it was used or the various provisions of the statute when read as a whole do not
betray a legislative intent to give the term a different sense or a technical meaning, the term whatever as used under Section 261(h)
should, therefore, be understood in its ordinary or common sense.
As commonly understood, the term whatever means "anything at all: any of various other things that might also be mentioned;" or
"something similar but hard to identify with certainty."37 Based on this definition, whatever would have served no purpose were we
to accept Aquino’s constrained interpretation. This is because any of the various other forms of personnel action, under the laws
governing the civil service that would have been covered by the prohibition (with its use of the term whatever), will automatically
be excluded by Section 261(h)’s use of the terms transfer and detail.
In fact, if we were to follow the logic of Aquino’s argument, the only form of personnel action that Section 261(h) would prohibit
are transfer and detail; any other form of personnel action are and will simply be allowed. This strict interpretation is clearly and
undoubtedly wrong for as we pointed out above, the interpretation that includes any form of personnel action under the phrase not
only guards against any electioneering and political harassment situations that the prohibition seeks to avoid. It enforces more
vigorously the aim of securing free, orderly, honest, peaceful, and credible elections to effectuate and safeguard the will of the
electorate in choosing their representatives.
In short, Aquino’s interpretation will only render the term whatever a mere surplusage if the legislature intended to limit the
prohibition to transfer or detail only as defined by the laws governing the civil service.
Third, that special legal provisions prevail over general ones.38 Our civil service system is currently governed by PD 807,39
otherwise known as the Civil Service Decree, and EO 29240 or the Administrative Code of 1987.
PD 807 provides for the organization of the Civil Service Commission, its powers and functions, and all other matters related to the
civil service and the Commission. Its primary intent and purpose is to establish a career service which ensures that appointment in
the civil service is made only according to merit and fitness, and to establish a progressive system of personnel administration as
well as measures that promote morale and the highest degree of responsibility, integrity, loyalty, efficiency, and professionalism in
the Civil Service.41
EO 292, on the other hand, was enacted to incorporate in a unified document the major structural, functional, and procedural
principles and rules of governance.42 Essentially, EO 292 provides the basic rules that will generally govern the organization and
operation of the government.
Together, these laws operate to ensure the efficient and organized operation and administration of the government and of its
various departments and offices, particularly of the executive branch. As a necessary tool to the government’s efficient operation,
these laws also ensure that only the fit, in terms of their satisfaction of the formal and informal qualifications, occupy positions in
the government and discharge public duties.
When what is involved, however, is the exercise of the right to vote and be voted for – a particular right guaranteed to all citizens of
the Philippines – the laws governing the administration of the government and of the civil service play only a minor, and perhaps,
insignificant role. With regard to this particular and peculiar right and the entire system by which this right is exercised and
protected, what governs are our various election laws, foremost of which is BP 881.
Thus, in reading and interpreting the provisions governing election offenses, we should consider the terms of the election laws
themselves and how they operate as a whole. As a necessary and indispensable tool in this interpretation process, we must likewise
consider these provisions in the light of the constitutional and legislative goal of attaining free, honest, and peaceful elections. It is
only through these considerations that the right to vote and to be voted for is positively guaranteed.
Under these considerations and with particular regard to election offenses, BP 881 serves as a special law that is consistent with our
basic statutory construction rules and prevails over the more general laws governing the civil service. In other words, the treatment
by the laws governing the civil service of the terms "transfer, detail and reassignment" as distinct modes of personnel action does
not and cannot control the interpretation of laws dealing with election and election offenses, including the interpretation of Section
261(h) ofBP 881, unless otherwise specifically provided.
In sum, we find the COMELEC’s exercise of its discretion – in ruling that reassignments fall within the coverage of the prohibited
transfers or details– to be well within its jurisdiction.
To reiterate in clear terms, the prohibition on transfer or detail whatever during the election period under Section 261(h) of BP 881
covers any personnel action including reassignments.
3. The "120-day before and 30-day
after" election period was validly
fixed by the COMELEC pursuant to
its rule-making power
As a general rule, the period of election starts at ninety (90) days before and ends thirty (30) days after the election date pursuant
to Section 9, Article IX-C of the Constitution and Section 3 of BP 881. This rule, however, is not without exception. Under these
same provisions, the COMELEC is not precluded from setting a period different from that provided thereunder.
In this case, the COMELEC fixed the election period for the May 10, 2010 Elections at 120 days before and 30 days after the day of
the election. We find this period proper as we find no arbitrariness in the COMELEC’s act of fixing an election period longer than the
period fixed in the Constitution and BP 881. For one, the COMELEC fixed the longer period of 120-days-before-and-30-days-
afterpursuant to Section 9, Article IX-C of the Constitution and Section 3 of BP 881. Also, Resolution No. 8737, through which the
COMELEC fixed this alternate period of election, is valid as it was issued pursuant to the COMELEC’s valid exercise of its rule-making
power (under Section 6, Article IX-A of the Constitution and Section 52[c] of BP 881). Too, Resolution No. 8737 is valid as it complied
with the publication requirement. Note that per the record, Resolution No. 8737 was published twice – on December 31, 2009 in the
Philippine Daily Inquirer and on January 4, 2010 in the Daily Tribune.43
B. The facts and the clear terms of the law
does not support the COMELEC’s
prima facie finding of violation of
Resolution No. 8737 in relation to
Section 261(h) of BP 881
Under Section 261(h) of BP 881,a person commits the election offense of violation of the election transfer ban when he makes or
causes the transfer or detail whatever of any official or employee of the government during the election period absent prior
approval of the COMELEC.
By its terms, Section 261(h) provides at once the elements of the offense and its exceptions. The elements are: (1) the making or
causing of a government official or employee’s transfer or detail whatever; (2) the making or causing of the transfer or detail
whatever was made during the election period; and (3) these acts were made without the required prior COMELEC approval. As this
provision operates, the making or causing of the movement of personnel during the election period but without the required
COMELEC approval is covered by the prohibition and renders the responsible person liable for the offense. Conversely, the making or
causing (of the movement of personnel) before or after the election period even without the required COMELEC approval, or during
the election period but with the required COMELEC approval are not covered by the prohibition and do not render the responsible
person liable for this election offense.
A critical point to consider in determining whether or not Aquino may be held liable under this provision is the interpretation of the
phrase made or caused and the extent to which the prohibition (on transfer or detail whatever) applies to his case. Factually, it is
likewise imperative to consider the date when Aquino made or caused the reassignment of the affected PHIC officers and
employees.
Make is defined as "to cause to exist. To do, perform, or execute; as to make an issue, to make oath, to make a presentment. To do
in form of law; to perform with due formalities; to execute in legal form; as to make answer, to make a return or report. To execute
as one’s act or obligation; to prepare and sign; to issue; to sign, execute, and deliver."44
Cause, on the other hand, is defined as "each separate antecedent of an event. Something that precedes and brings about an effect
or result. A reason for an action or condition x x x x an agent that brings about something. That which in some manner is
accountable for condition that brings about an effect or that produces a cause for the resultant action or state."45
Significantly, the terms make and cause indicate one and the same thing – the beginning, the start of something, a precursor; it
pertains to an act that brings about a desired result. If we read these definitions within the context of Section 261(h) of BP 881, the
legal prohibition on transfer or detail undoubtedly affects only those acts that go into the making or causing or to the antecedent
acts. Any act that occurs or is performed after the antecedent act of making or causing or those acts performed to carry out an
event or result desired by the antecedent acts, such as the actual or physical act of transferring, are no longer the concern of the
legal prohibition.
When viewed in terms of how transfer or reassignments of government officers and employees are usually carried into place, this act
of making or causing often consists in the act of issuing the transfer or reassignment order. To issue something means "to discharge,
produce, send out, publish, put into circulation, come out,"46 "to send forth; to emit; to promulgate; as an officer issues orders,
process issues from a court."47 In this sense, the act of issuing entails the mechanical act of drafting or writing the order, by the
issuing official himself or through a subordinate; the signing of the order; and completed with its release as addressed to the
concerned officer or employee.
During this phase of the entire transfer or reassignment process, the official responsible for issuing the order plays an active role at
its center. The issuing of the order are his very acts. Thus, if the orders are issued prior to the start of the election period, they are
automatically rendered beyond the coverage of the prohibition and the issuing official cannot be held liable for violation of Section
261(h) of BP 881. Conversely, if the orders are issued during the election period and without COMELEC approval, these are covered
by the prohibition and renders the issuing official liable for violation of Section 261(h).
Once the transfer or reassignment order is issued, the making or causing as the defining act that determines whether a government
official may be held liable under Section 261(h) is deemed completed. The completion of this phase likewise ends the active role the
issuing official plays. Thus, the transfer or reassignment process moves to the next phase – the implementation of the order. By
definition, implement refers to "the act of fulfilling or performing."48
At the implementation phase of the transfer or reassignment process, the issuing official shifts to passive participation. The
government officer or employee to whom the order is addressed takes on the active role in performing the duties needed to
implement the order.
During the implementation phase, the addressee may immediately comply with the order ―assume the post and discharge its duties
―or may delay compliance; or choose not to comply at all. In these situations, the issuing official has no immediate and actual
control of the addressee’s action.
While the issuing official holds disciplinary power over the addressee in case of delay or non-compliance, the exercise of his
disciplining authority over the erring employee would come after the fact – delay or non-compliance.
In short, during the making or causing phase of the entire transfer or reassignment process – from drafting the order, to its signing,
up to its release – the issuing official plays a very real and active role. Once the transfer or reassignment order is issued, the active
role is shifted to the addressee of the order who should now carry out the purpose of the order. At this level – the implementation
phase – the issuing official’s only role is to see to it that the concerned officer or employee complies with the order. The issuing
official may only exert discipline upon the addressee who refuses to comply with the order.
Following these considerations, we find that the COMELEC gravely abused its discretion in this case based on the following facts:
First, Aquino made or caused the reassignment of the concerned PHIC officers and employees before the election period.
Second, Aquino sent out, via the PHIC’s intranet service, the reassignment order to all affected PHIC officers and employees before
the election period.
Third, the reassignment order was complete in its terms, as it enumerated clearly the affected PHIC officers and employees as well
as their respective places of reassignments, and was made effective immediately or on the day of its issue, which was likewise
before the election period. Fourth, the subsequent orders that Aquino issued were not reassignment orders per se contrary to the
COMELEC’s assessment. Rather, they were, in fact, simply either orders of retention, i.e., orders addressed to the incumbent
officer-occupant of the affected position to effectively maintain the status quo and continue performing the duties of the position
while the reassigned officer or employee had not yet assumed or had been refusing to assume the position and its duties; or orders
of temporary discharge of additional duties, i.e., orders addressed to the officer occupying the position next in rank to discharge the
duties of the affected position while the reassigned officer or employee had not yet assumed or had been refusing to assume the
position and its duties.
Retention of duties and temporary discharge of additional duties do not contemplate or involve any movement of personnel,
whether under any of the various forms of personnel action enumerated under the laws governing the civil service or otherwise.
Hence, these subsequent orders could not be covered by the legal prohibition on transfers or detail.
Based on these clear facts, Aquino completed the act of making or causing the reassignment of the affected PHIC officers and
employees before the start of the election period. In this sense, the evils sought to be addressed by Section 261 (h) of BP 881 is kept
intact by the timely exercise of his management prerogative in rearranging or reassigning PHIC personnel within its various offices
necessary for the PHIC's efficient and smooth operation. As Aquino's acts of issuing the order fell outside the coverage of the transfer
prohibition, he cannot be held liable for violation of Section 261(h).
In sum, the COMELEC gravely abused its discretion when, firstly, it used wrong or irrelevant considerations when it sought to hold
Aquino liable for violation of Section 261 (h) for issuing orders that were clearly not for reassignment, but which were simply orders
for retention of position or orders for temporary discharge of additional duties.
Secondly, the COMELEC also went beyond the clear contemplation and intention of the law and of existing jurisprudence when it
included within the prohibition's coverage the implementation aspect of the reassignment process - acts that were obviously no
longer within his active and immediate control and beyond the ambit of making or causing to which the prohibition applies.
In view of this conclusion, we no longer find it necessary to discuss the other issues or matters raised in this petition.
WHEREFORE, in the light of these considerations, we hereby GRANT the petition. We REVERSE and SET ASIDE the resolutions dated
October 19, 2012, and February 18, 2014, of the Commission on Elections in E.O. Case No. 10-003 and E.O. Case No. 10-008. The
complaints against petitioner Dr. Rey B. Aquino for violation of RA 8737 in relation to Section 261(h) of BP 881 are hereby dismissed.
SO ORDERED.

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. Barnette1
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
November 11, 20092 (the First Assailed Resolution) and December 16, 20093 (the Second Assailed Resolution) in SPP No. 09-228 (PL)
(collectively, the Assailed Resolutions). The case has its roots in the COMELEC’s refusal to accredit Ang Ladlad as a party-list
organization under Republic Act (RA) No. 7941, otherwise known as the Party-List System Act.4
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 Ladlad
again filed a Petition5 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 Elections.6
Ang Ladlad laid out its national membership base consisting of individual members and organizational supporters, and outlined its
platform of governance.7
On November 11, 2009, after admitting the petitioner’s 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 person’s 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 Petition’s 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 disregards decency 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 State’s avowed duty under Section 13,
Article II of the Constitution to protect our youth from moral and spiritual degradation.8
When Ang Ladlad sought reconsideration,9 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 Ladlad’s 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 under-
representation and marginalization, it cannot be said that Ladlad’s 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 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.
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
nation’s – 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 society’s understanding, tolerance, and acceptance of LGBT’s 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
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 group’s 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 Petition’s 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 x
x x or anything else x x x which shocks, defies or disregards decency or morality x x x." These are all unlawful. 10
On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the Assailed Resolutions and direct the COMELEC to
grant Ang Ladlad’s 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
12:00 noon of January 11, 2010.11 Instead of filing a Comment, however, the OSG filed a Motion for Extension, requesting that it be
given until January 16, 2010 to Comment.12 Somewhat surprisingly, the OSG later filed a Comment in support of petitioner’s
application.13 Thus, in order to give COMELEC the opportunity to fully ventilate its position, we required it to file its own
comment.14 The COMELEC, through its Law Department, filed its Comment on February 2, 2010. 15
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
Assailed Resolutions.16
Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion to Intervene or to Appear as Amicus Curiae,
attaching thereto its Comment-in-Intervention.17 The CHR opined that the denial of Ang Ladlad’s petition 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 CHR’s motion to intervene.
On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene18 which motion was granted on February 2, 2010.19
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 Ladlad’s petition and argued that the COMELEC erred in denying petitioner’s application for
registration since there was no basis for COMELEC’s 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 petitioner’s 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 COMELEC’s field personnel.
Our Ruling
We grant the petition.
Compliance with the Requirements of the Constitution and Republic Act No. 7941
The COMELEC denied Ang Ladlad’s 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
explicitly ruled in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections,20 "the enumeration of marginalized and under-
represented 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
"save for a few isolated places in the country, petitioner does not exist in almost all provinces in the country."21
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 petitioner’s accreditation mentioned or even alluded to in the Assailed Resolutions. This, in itself, is quite
curious, considering that the reports of petitioner’s 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
respondent’s theory, and a serious violation of petitioner’s right to procedural due process.
Nonetheless, we find that there has been no misrepresentation. A cursory perusal of Ang Ladlad’s 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
in its electronic discussion group.22 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)
§ Can’t 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 Men’s Support Group (GMSG) – Metro Manila
§ Gay United for Peace and Solidarity (GUPS) – Lanao del Norte
§ Iloilo City Gay Association – Iloilo City
§ Kabulig Writer’s 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
§ Women’s Bisexual Network – Metro Manila
§ Zamboanga Gay Association – Zamboanga City23
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 COMELEC’s findings are to be believed, petitioner does not even exist in Quezon
City, which is registered as Ang Ladlad’s 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 COMELEC’s 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 Ladlad’s morality, or
lack thereof.
Religion as the Basis for Refusal to Accept Ang Ladlad’s 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 matters."24
Clearly, "governmental reliance on religious justification is inconsistent with this policy of neutrality." 25 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
must act for secular purposes and in ways that have primarily secular effects. As we held in Estrada v. Escritor: 26
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,
provided it does not offend compelling state interests. 27
Public Morals as a Ground to Deny Ang Ladlad’s 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:
Petitioner’s 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
civilized society. Any society without a set of moral precepts is in danger of losing its own existence. 28
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 accepted public morals" have not been convincingly transplanted into the realm of law. 29
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 group’s members have committed or are committing immoral acts." 30
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
the gays." Certainly this is not the intendment of the law. 31
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 petitioner’s 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 COMELEC’s 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
local ordinance, a civil action, or abatement without judicial proceedings. 32 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 Ladlad’s 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. Respondent’s
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,
"consists in the same treatment of similar persons."33 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
circumstances.34
Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the
classification as long as it bears a rational relationship to some legitimate government end.35 In Central Bank Employees Association,
Inc. v. Banko Sentral ng Pilipinas,36 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 a law unless there is a showing of a clear and unequivocal breach of the Constitution." 37
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 COMELEC’s 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 COMELEC’s 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 OSG’s position that homosexuals are a class in themselves for the purposes of the equal
protection clause.38 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
position through normal democratic means.39 It is in the public square that deeply held convictions and differing opinions should be
distilled and deliberated upon. As we held in Estrada v. Escritor: 40
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 one’s 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
violates public morality does not justify criminalizing same-sex conduct.41 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
foreign and international texts.42 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 Court’s 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
always accompany an unpopular viewpoint."43
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
ideas may seem shocking or unacceptable to the authorities or the majority of the population. 44 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
everyone concerned.45 Only if a political party incites violence or puts forward policies that are incompatible with democracy does it
fall outside the protection of the freedom of association guarantee. 46
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 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 Ladlad’s 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 x47
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 COMELEC’s 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 petitioner’s 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
should be construed to include "sexual orientation."48 Additionally, a variety of United Nations bodies have declared discrimination
on the basis of sexual orientation to be prohibited under various international agreements. 49
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
legislative provisions which exclude any group or category of persons from elective office. 50
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
petitioner’s invocation of the Yogyakarta Principles (the Application of International Human Rights Law In Relation to Sexual
Orientation and Gender Identity),51 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
Court of Justice.52 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
desires, without the support of either State practice or opinio juris. 53
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 Court’s 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 petitioner’s
application for party-list accreditation.
SO ORDERED.

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 clause1 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 Ladlad’s petition for registration as a sectoral party principally on the ground that it "tolerates immorality which
offends religious (i.e., Christian2 and Muslim3) beliefs." To be sure, the COMELEC’s 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
clauses prohibit the state from establishing a religion, including the morality it sanctions."4 As we explained in Estrada v. Escritor,5
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 matters of religion; governmental reliance upon religious justification is inconsistent with this policy of neutrality.6
(citations omitted and italics supplied)
Consequently, the assailed resolutions of the COMELEC are violative of the constitutional directive that no religious test shall be
required for the exercise of civil or political rights.7 Ang Ladlad’s 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"8 with religion by arguing that we "cannot ignore our
strict religious upbringing, whether Christian or Muslim"9 since the "moral precepts espoused by [these] religions have slipped into
society and … are now publicly accepted moral norms."10 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,
the law is vulnerable to constitutional attack on privacy grounds. 11 These alleged "generally accepted public morals" have not, in
reality, crossed over from the religious to the secular sphere.
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
in the landmark case of Lawrence v. Texas,12 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 liberty of all,
not to mandate our own moral code."13
SECOND. The COMELEC capitalized on Ang Ladlad’s definition of the term "sexual orientation,"14 as well as its citation of the number
of Filipino men who have sex with men,15 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 one’s identity that is central to any concept of liberty"
cannot truly be exercised in a vacuum; we all depend on the "emotional enrichment from close ties with others."16 As Mr. Justice
Blackmun so eloquently said in his stinging dissent in Bowers v. Hardwick 17 (overturned by the United States Supreme Court
seventeen years later in Lawrence v. Texas18):
Only the most willful blindness could obscure the fact that sexual intimacy is "a sensitive, key relationship of human existence,
central to family life, community welfare, and the development of human personality[.]" 19 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 the
freedom an individual has to choose the form and nature of these intensely personal bonds. 20
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 be condemned because it is different."21 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. 22 Liberty presumes an autonomy of self that includes freedom of
thought, belief, expression, and certain intimate conduct. 23 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
process clause.24 At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of
the mystery of human life.25 Beliefs about these matters could not define the attributes of personhood were they formed under
compulsion of the State.26 Lawrence v. Texas27 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)
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
showing of a clear and unequivocal breach of the Constitution. 28 However, Central Bank Employees Association, Inc. v. Bangko
Sentral ng Pilipinas,29 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-à-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,
low-salaried 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
right affected.30
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 tailored to serve a compelling governmental interest.31 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
ancestry.32 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. 33 In such a case, the State bears a heavy
burden of justification, and the government action will be closely scrutinized in light of its asserted purpose. 34
On the other hand, if the classification, while not facially invidious, nonetheless gives rise to recurring constitutional difficulties, or
if a classification disadvantages a "quasi-suspect class," it will be treated under intermediate or heightened review. 35 To survive
intermediate scrutiny, the law must not only further an important governmental interest and be substantially related to that
interest, but the justification for the classification must be genuine and must not depend on broad generalizations. 36 Noteworthy,
and of special interest to us in this case, quasi-suspect classes include classifications based on gender or illegitimacy. 37
If neither strict nor intermediate scrutiny is appropriate, then the statute will be tested for mere rationality. 38 This is a relatively
relaxed standard reflecting the Court’s awareness that the drawing of lines which creates distinctions is peculiarly a legislative task
and an unavoidable one.39 The presumption is in favor of the classification, of the reasonableness and fairness of state action, and of
legitimate grounds of distinction, if any such grounds exist, on which the State acted. 40
Instead of adopting a rigid formula to determine whether certain legislative classifications warrant more demanding constitutional
analysis, the United States Supreme Court has looked to four factors,41 thus:
(1) The history of invidious discrimination against the class burdened by the legislation; 42
(2) Whether the characteristics that distinguish the class indicate a typical class member's ability to contribute to society;43
(3) Whether the distinguishing characteristic is "immutable" or beyond the class members' control; 44 and
(4) The political power of the subject class.45
These factors, it must be emphasized, are not constitutive essential elements of a suspect or quasi-suspect class, as to individually
demand a certain weight.46 The U.S. Supreme Court has applied the four factors in a flexible manner; it has neither required, nor
even discussed, every factor in every case.47 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
abstract logic, must be the primary guide.48
In any event, the first two factors – history of intentional discrimination and relationship of classifying characteristic to a person's
ability to contribute – have always been present when heightened scrutiny has been applied. 49 They have been critical to the
analysis and could be considered as prerequisites to concluding a group is a suspect or quasi-suspect class.50 However, the last two
factors – immutability of the characteristic and political powerlessness of the group – are considered simply to supplement the
analysis as a means to discern whether a need for heightened scrutiny exists. 51
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
orientation.52 One cannot, in good faith, dispute that gay and lesbian persons historically have been, and continue to be, the target
of purposeful and pernicious discrimination due solely to their sexual orientation. 53 Paragraphs 6 and 7 of Ang Ladlad’s 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 one’s 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
likely than others to reflect deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective." 54
A second relevant consideration is whether the character-in-issue is related to the person’s ability to contribute to society. 55
Heightened scrutiny is applied when the classification bears no relationship to this ability; the existence of this factor indicates the
classification is likely based on irrelevant stereotypes and prejudice. 56 Insofar as sexual orientation is concerned, it is gainful to
repair to Kerrigan v. Commissioner of Public Health,57 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 society.58
Unlike the characteristics unique to those groups, however, "homosexuality bears no relation at all to [an] individual's ability to
contribute fully to society."59 Indeed, because an individual's homosexual orientation "implies no impairment in judgment, stability,
reliability or general social or vocational capabilities"; 60 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
antipathy"61 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
orientation.62
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
control.63 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
persons of the same sex.64
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
burdens should bear some relationship to individual responsibility.’"65 However, the constitutional relevance of the immutability
factor is not reserved to those instances in which the trait defining the burdened class is absolutely impossible to change.66 That is,
the immutability prong of the suspectness inquiry surely is satisfied when the identifying trait is "so central to a person's identity
that it would be abhorrent for government to penalize a person for refusing to change [it]." 67
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 identity. 68
Consequently, because sexual orientation "may be altered [if at all] only at the expense of significant damage to the individual’s
sense of self," classifications based thereon "are no less entitled to consideration as a suspect or quasi-suspect class than any other
group that has been deemed to exhibit an immutable characteristic."69 Stated differently, sexual orientation is not the type of
human trait that allows courts to relax their standard of review because the barrier is temporary or susceptible to self-help.70
The final factor that bears consideration is whether the group is "a minority or politically powerless." 71 However, the political
powerlessness factor of the level-of-scrutiny inquiry does not require a showing of absolute political powerlessness. 72 Rather, the
touchstone of the analysis should be "whether the group lacks sufficient political strength to bring a prompt end to the prejudice
and discrimination through traditional political means."73
Applying this standard, it would not be difficult to conclude that gay persons are entitled to heightened constitutional protection
despite some recent political progress.74 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
legislative enactments alone will suffice to eliminate that discrimination.75 Furthermore, insofar as the LGBT community plays a role
in the political process, it is apparent that their numbers reflect their status as a small and insular minority.76
It is therefore respectfully submitted that any state action singling lesbians, gays, bisexuals and trans-genders out for disparate
treatment is subject to heightened judicial scrutiny to ensure that it is not the product of historical prejudice and stereotyping.77
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
the class of persons affected78 (that is, lesbian, gay, bisexual and trans-gendered individuals). In our constitutional system, status-
based classification undertaken for its own sake cannot survive. 79
FOURTH. It has been suggested that the LGBT community cannot participate in the party-list system because it is not a
"marginalized and underrepresented sector" enumerated either in the Constitution 80 or Republic Act No. (RA) 7941.81 However, this
position is belied by our ruling in Ang Bagong Bayani-OFW Labor Party v. COMELEC,82 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 State’s benevolence" and denying them
the right to "participate directly [in the mainstream of representative democracy] in the enactment of laws designed to benefit
them."83 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

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 nation’s 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 RA1 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
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 Court’s 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
Bayani-OFW Labor Party v. Commission on Elections:2
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 candidate-
organization 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 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 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 OSG’s 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 one’s constituency; indeed, it is likely to
arise more directly from the number and amount of one’s 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 a whole) be determined? Chief Justice Reynato S. Puno’s opinion3 in Barangay Association for National Advancement and
Transparency (BANAT) v. Commission on Elections4 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 nation’s 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
bond, that is, specific sectors subject of specific provisions in the Constitution, namely, labor, 5 peasant,6 urban poor,7 indigenous
cultural communities,8 women,9 youth,10 veterans,11 fisherfolk,12 elderly,13 handicapped,14 overseas workers15 and professionals.16
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
what appears upon its face.17
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
professionals."18
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 Party’s 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
7941."19
For this reason, I submit the majority’s 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 candidate-
organization 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 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 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.20 (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
Court’s 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
mentioned.21 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
the family resemblances that would characterize them?22
Based on the language of the Constitution and of RA 7941 and considering the pronouncements of this Court in Ang Bagong Bayani-
OFW 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 people’s
organizations, unless such people’s organizations represent sectors mentioned in Section 5 of RA 7941)23 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, petitioner’s 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,
an emergent awareness is but a confirmation of lack of traditional and historical recognition. 24 Moreover, even the majority admits
that there is no "clear cut consensus favorable to gay rights claims."25
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….26
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 Court’s 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 Court’s 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 petitioner’s 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 best.27 But persuading one’s 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 nation’s 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 Court’s 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

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
Elections (COMELEC),1 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 Ladlad’s 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 COMELEC’s 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
R.A. 7941.2 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 COMELEC’s frame of mind in adjudicating applications for accreditation.
But, the COMELEC’s 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 Court’s 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
underrepresented."3
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 term—marginalized and underrepresented—from 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
others to this list: the fisherfolk, the elderly, the handicapped, the veterans, the overseas workers, and the professionals. 4 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 *Narrow Specifically Defined Groups

Definition Definition
Working Class Labor Carpenters, security guards, microchip
factory workers, barbers, tricycle drivers
Economically Urban Informal settlers, the jobless, persons displaced by domestic wars
Deprived Poor

The Vulnerable Women Working women, battered women,

victims of slavery
Work Impaired Handi- Deaf and dumb, the blind, people on wheelchairs
Capped

*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
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, 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 sub-group 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
(LGBTs). Applying the universally accepted estimate that one out of every 10 persons is an LGBT of a certain kind, 5 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 Ladlad’s 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. 195649 April 16, 2013

CASAN MACODE MAQUILING, Petitioner,
vs.
COMMISSION ON ELECTIONS, ROMMEL ARNADO y CAGOCO, LINOG G. BALUA, Respondents.
DECISION
SERENO, CJ.:
THE CASE
This is a Petition for Certiorari ender Rule 64 in conjunction with Rule 65 of the Rules of Court to review the Resolutions of the
Commission on Elections (COMELEC). The Resolution1 in SPA No. 10-1 09(DC) of the COMELEC First Division dated 5 October 201 0 is
being assailed for applying Section 44 of the Local Government Code while the Resolution 2 of the COMELEC En Banc dated 2 February
2011 is being questioned for finding that respondent Rommel Arnado y Cagoco (respondent Arnado/Arnado) is solely a Filipino citizen
qualified to run for public office despite his continued use of a U.S. passport.
FACTS
Respondent Arnado is a natural born Filipino citizen. 3 However, as a consequence of his subsequent naturalization as a citizen of the
United States of America, he lost his Filipino citizenship. Arnado applied for repatriation under Republic Act (R.A.) No. 9225 before
the Consulate General of the Philippines in San Franciso, USA and took the Oath of Allegiance to the Republic of the Philippines on
10 July 2008.4 On the same day an Order of Approval of his Citizenship Retention and Re-acquisition was issued in his favor.5
The aforementioned Oath of Allegiance states:
I, Rommel Cagoco Arnado, solemnly swear that I will support and defend the Constitution of the Republic of the Philippines and obey
the laws and legal orders promulgated by the duly constituted authorities of the Philippines and I hereby declare that I recognize
and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I impose this
obligation upon myself voluntarily without mental reservation or purpose of evasion. 6
On 3 April 2009 Arnado again took his Oath of Allegiance to the Republic and executed an Affidavit of Renunciation of his foreign
citizenship, which states:
I, Rommel Cagoco Arnado, do solemnly swear that I absolutely and perpetually renounce all allegiance and fidelity to the UNITED
STATES OF AMERICA of which I am a citizen, and I divest myself of full employment of all civil and political rights and privileges of
the United States of America.
I solemnly swear that all the foregoing statement is true and correct to the best of my knowledge and belief. 7
On 30 November 2009, Arnado filed his Certificate of Candidacy for Mayor of Kauswagan, Lanao del Norte, which contains, among
others, the following statements:
I am a natural born Filipino citizen / naturalized Filipino citizen.
I am not a permanent resident of, or immigrant to, a foreign country.
I am eligible for the office I seek to be elected to.
I will support and defend the Constitution of the Republic of the Philippines and will maintain true faith and allegiance thereto. I
will obey the laws, legal orders and decrees promulgated by the duly constituted authorities.
I impose this obligation upon myself voluntarily without mental reservation or purpose of evasion. 8
On 28 April 2010, respondent Linog C. Balua (Balua), another mayoralty candidate, filed a petition to disqualify Arnado and/or to
cancel his certificate of candidacy for municipal mayor of Kauswagan, Lanao del Norte in connection with the 10 May 2010 local and
national elections.9
Respondent Balua contended that Arnado is not a resident of Kauswagan, Lanao del Norte and that he is a foreigner, attaching
thereto a certification issued by the Bureau of Immigration dated 23 April 2010 indicating the nationality of Arnado as "USA-
American."10To further bolster his claim of Arnado’s US citizenship, Balua presented in his Memorandum a computer-generated
travel record11 dated 03 December 2009 indicating that Arnado has been using his US Passport No. 057782700 in entering and
departing the Philippines. The said record shows that Arnado left the country on 14 April 2009 and returned on 25 June 2009, and
again departed on 29 July 2009, arriving back in the Philippines on 24 November 2009.
Balua likewise presented a certification from the Bureau of Immigration dated 23 April 2010, certifying that the name "Arnado,
Rommel Cagoco" appears in the available Computer Database/Passenger manifest/IBM listing on file as of 21 April 2010, with the
following pertinent travel records:
DATE OF Arrival : 01/12/2010
NATIONALITY : USA-AMERICAN
PASSPORT : 057782700
DATE OF Arrival : 03/23/2010
NATIONALITY : USA-AMERICAN
PASSPORT : 05778270012
On 30 April 2010, the COMELEC (First Division) issued an Order 13 requiring the respondent to personally file his answer and
memorandum within three (3) days from receipt thereof.
After Arnado failed to answer the petition, Balua moved to declare him in default and to present evidence ex-parte.
Neither motion was acted upon, having been overtaken by the 2010 elections where Arnado garnered the highest number of votes
and was subsequently proclaimed as the winning candidate for Mayor of Kauswagan, Lanao del Norte.
It was only after his proclamation that Arnado filed his verified answer, submitting the following documents as evidence: 14
1. Affidavit of Renunciation and Oath of Allegiance to the Republic of the Philippines dated 03 April 2009;
2. Joint-Affidavit dated 31 May 2010 of Engr. Virgil Seno, Virginia Branzuela, Leoncio Daligdig, and Jessy Corpin, all neighbors of
Arnado, attesting that Arnado is a long-time resident of Kauswagan and that he has been conspicuously and continuously residing in
his family’s ancestral house in Kauswagan;
3. Certification from the Punong Barangay of Poblacion, Kauswagan, Lanao del Norte dated 03 June 2010 stating that Arnado is a
bona fide resident of his barangay and that Arnado went to the United States in 1985 to work and returned to the Philippines in
2009;
4. Certification dated 31 May 2010 from the Municipal Local Government Operations Office of Kauswagan stating that Dr. Maximo P.
Arnado, Sr. served as Mayor of Kauswagan, from January 1964 to June 1974 and from 15 February 1979 to 15 April 1986; and
5. Voter Certification issued by the Election Officer of Kauswagan certifying that Arnado has been a registered voter of Kauswagan
since 03 April 2009.
THE RULING OF THE COMELEC FIRST DIVISION
Instead of treating the Petition as an action for the cancellation of a certificate of candidacy based on misrepresentation,15 the
COMELEC First Division considered it as one for disqualification. Balua’s contention that Arnado is a resident of the United States
was dismissed upon the finding that "Balua failed to present any evidence to support his contention," 16 whereas the First Division still
could "not conclude that Arnado failed to meet the one-year residency requirement under the Local Government Code."17
In the matter of the issue of citizenship, however, the First Division disagreed with Arnado’s claim that he is a Filipino citizen. 18
We find that although Arnado appears to have substantially complied with the requirements of R.A. No. 9225, Arnado’s act of
consistently using his US passport after renouncing his US citizenship on 03 April 2009 effectively negated his Affidavit of
Renunciation.
xxxx
Arnado’s continued use of his US passport is a strong indication that Arnado had no real intention to renounce his US citizenship and
that he only executed an Affidavit of Renunciation to enable him to run for office. We cannot turn a blind eye to the glaring
inconsistency between Arnado’s unexplained use of a US passport six times and his claim that he re-acquired his Philippine
citizenship and renounced his US citizenship. As noted by the Supreme Court in the Yu case, "a passport is defined as an official
document of identity and nationality issued to a person intending to travel or sojourn in foreign countries." Surely, one who truly
divested himself of US citizenship would not continue to avail of privileges reserved solely for US nationals. 19
The dispositive portion of the Resolution rendered by the COMELEC
First Division reads:
WHEREFORE, in view of the foregoing, the petition for disqualification and/or to cancel the certificate of candidacy of Rommel C.
Arnado is hereby GRANTED. Rommel C. Arnado’s proclamation as the winning candidate for Municipal Mayor of Kauswagan, Lanao
del Nore is hereby ANNULLED. Let the order of succession under Section 44 of the Local Government Code of 1991 take effect. 20
The Motion for Reconsideration and
the Motion for Intervention
Arnado sought reconsideration of the resolution before the COMELEC En Banc on the ground that "the evidence is insufficient to
justify the Resolution and that the said Resolution is contrary to law."21 He raised the following contentions:22
1. The finding that he is not a Filipino citizen is not supported by the evidence consisting of his Oath of Allegiance and the Affidavit
of Renunciation, which show that he has substantially complied with the requirements of R.A. No. 9225;
2. The use of his US passport subsequent to his renunciation of his American citizenship is not tantamount to a repudiation of his
Filipino citizenship, as he did not perform any act to swear allegiance to a country other than the Philippines;
3. He used his US passport only because he was not informed of the issuance of his Philippine passport, and that he used his
Philippine passport after he obtained it;
4. Balua’s petition to cancel the certificate of candidacy of Arnado was filed out of time, and the First Division’s treatment of the
petition as one for disqualification constitutes grave abuse of discretion amounting to excess of jurisdiction; 23
5. He is undoubtedly the people’s choice as indicated by his winning the elections;
6. His proclamation as the winning candidate ousted the COMELEC from jurisdiction over the case; and
7. The proper remedy to question his citizenship is through a petition for quo warranto, which should have been filed within ten
days from his proclamation.
Petitioner Casan Macode Maquiling (Maquiling), another candidate for mayor of Kauswagan, and who garnered the second highest
number of votes in the 2010 elections, intervened in the case and filed before the COMELEC En Banc a Motion for Reconsideration
together with an Opposition to Arnado’s Amended Motion for Reconsideration. Maquiling argued that while the First Division
correctly disqualified Arnado, the order of succession under Section 44 of the Local Government Code is not applicable in this case.
Consequently, he claimed that the cancellation of Arnado’s candidacy and the nullification of his proclamation, Maquiling, as the
legitimate candidate who obtained the highest number of lawful votes, should be proclaimed as the winner.
Maquiling simultaneously filed his Memorandum with his Motion for Intervention and his Motion for Reconsideration. Arnado opposed
all motions filed by Maquiling, claiming that intervention is prohibited after a decision has already been rendered, and that as a
second-placer, Maquiling undoubtedly lost the elections and thus does not stand to be prejudiced or benefitted by the final
adjudication of the case.
RULING OF THE COMELEC EN BANC
In its Resolution of 02 February 2011, the COMELEC En Banc held that under Section 6 of Republic Act No. 6646, the Commission
"shall continue with the trial and hearing of the action, inquiry or protest even after the proclamation of the candidate whose
qualifications for office is questioned."
As to Maquiling’s intervention, the COMELEC En Banc also cited Section 6 of R.A. No. 6646 which allows intervention in proceedings
for disqualification even after elections if no final judgment has been rendered, but went on further to say that Maquiling, as the
second placer, would not be prejudiced by the outcome of the case as it agrees with the dispositive portion of the Resolution of the
First Division allowing the order of succession under Section 44 of the Local Government Code to take effect.
The COMELEC En Banc agreed with the treatment by the First Division of the petition as one for disqualification, and ruled that the
petition was filed well within the period prescribed by law,24 having been filed on 28 April 2010, which is not later than 11 May
2010, the date of proclamation.
However, the COMELEC En Banc reversed and set aside the ruling of the First Division and granted Arnado’s Motion for
Reconsideration, on the following premises:
First:
By renouncing his US citizenship as imposed by R.A. No. 9225, the respondent embraced his Philippine citizenship as though he never
became a citizen of another country. It was at that time, April 3, 2009, that the respondent became a pure Philippine Citizen again.
xxxx
The use of a US passport … does not operate to revert back his status as a dual citizen prior to his renunciation as there is no law
saying such. More succinctly, the use of a US passport does not operate to "un-renounce" what he has earlier on renounced. The First
Division’s reliance in the case of In Re: Petition for Habeas Corpus of Willy Yu v. Defensor-Santiago, et al. is misplaced. The
petitioner in the said case is a naturalized citizen who, after taking his oath as a naturalized Filipino, applied for the renewal of his
Portuguese passport. Strict policy is maintained in the conduct of citizens who are not natural born, who acquire their citizenship by
choice, thus discarding their original citizenship. The Philippine State expects strict conduct of allegiance to those who choose to be
its citizens. In the present case, respondent is not a naturalized citizen but a natural born citizen who chose greener pastures by
working abroad and then decided to repatriate to supposedly help in the progress of Kauswagan. He did not apply for a US passport
after his renunciation. Thus the mentioned case is not on all fours with the case at bar.
xxxx
The respondent presented a plausible explanation as to the use of his US passport. Although he applied for a Philippine passport, the
passport was only issued on June 18, 2009. However, he was not notified of the issuance of his Philippine passport so that he was
actually able to get it about three (3) months later. Yet as soon as he was in possession of his Philippine passport, the respondent
already used the same in his subsequent travels abroad. This fact is proven by the respondent’s submission of a certified true copy
of his passport showing that he used the same for his travels on the following dates: January 31, 2010, April 16, 2010, May 20, 2010,
January 12, 2010, March 31, 2010 and June 4, 2010. This then shows that the use of the US passport was because to his knowledge,
his Philippine passport was not yet issued to him for his use. As probably pressing needs might be undertaken, the respondent used
whatever is within his control during that time.25
In his Separate Concurring Opinion, COMELEC Chairman Sixto Brillantes cited that the use of foreign passport is not one of the
grounds provided for under Section 1 of Commonwealth Act No. 63 through which Philippine citizenship may be lost.
"The application of the more assimilative principle of continuity of citizenship is more appropriate in this case. Under said principle,
once a person becomes a citizen, either by birth or naturalization, it is assumed that he desires to continue to be a citizen, and this
assumption stands until he voluntarily denationalizes or expatriates himself. Thus, in the instant case respondent after reacquiring
his Philippine citizenship should be presumed to have remained a Filipino despite his use of his American passport in the absence of
clear, unequivocal and competent proof of expatriation. Accordingly, all doubts should be resolved in favor of retention of
citizenship."26
On the other hand, Commissioner Rene V. Sarmiento dissented, thus:
Respondent evidently failed to prove that he truly and wholeheartedly abandoned his allegiance to the United States. The latter’s
continued use of his US passport and enjoyment of all the privileges of a US citizen despite his previous renunciation of the afore-
mentioned citizenship runs contrary to his declaration that he chose to retain only his Philippine citizenship. Respondent’s
submission with the twin requirements was obviously only for the purpose of complying with the requirements for running for the
mayoralty post in connection with the May 10, 2010 Automated National and Local Elections.
Qualifications for elective office, such as citizenship, are continuing requirements; once any of them is lost during his incumbency,
title to the office itself is deemed forfeited. If a candidate is not a citizen at the time he ran for office or if he lost his citizenship
after his election to office, he is disqualified to serve as such. Neither does the fact that respondent obtained the plurality of votes
for the mayoralty post cure the latter’s failure to comply with the qualification requirements regarding his citizenship.
Since a disqualified candidate is no candidate at all in the eyes of the law, his having received the highest number of votes does not
validate his election. It has been held that where a petition for disqualification was filed before election against a candidate but
was adversely resolved against him after election, his having obtained the highest number of votes did not make his election valid.
His ouster from office does not violate the principle of vox populi suprema est lex because the application of the constitutional and
statutory provisions on disqualification is not a matter of popularity. To apply it is to breath[e] life to the sovereign will of the
people who expressed it when they ratified the Constitution and when they elected their representatives who enacted the law.27
THE PETITION BEFORE THE COURT
Maquiling filed the instant petition questioning the propriety of declaring Arnado qualified to run for public office despite his
continued use of a US passport, and praying that Maquiling be proclaimed as the winner in the 2010 mayoralty race in Kauswagan,
Lanao del Norte.
Ascribing both grave abuse of discretion and reversible error on the part of the COMELEC En Banc for ruling that Arnado is a Filipino
citizen despite his continued use of a US passport, Maquiling now seeks to reverse the finding of the COMELEC En Banc that Arnado is
qualified to run for public office.
Corollary to his plea to reverse the ruling of the COMELEC En Banc or to affirm the First Division’s disqualification of Arnado,
Maquiling also seeks the review of the applicability of Section 44 of the Local Government Code, claiming that the COMELEC
committed reversible error in ruling that "the succession of the vice mayor in case the respondent is disqualified is in order."
There are three questions posed by the parties before this Court which will be addressed seriatim as the subsequent questions hinge
on the result of the first.
The first question is whether or not intervention is allowed in a disqualification case.
The second question is whether or not the use of a foreign passport after renouncing foreign citizenship amounts to undoing a
renunciation earlier made.
A better framing of the question though should be whether or not the use of a foreign passport after renouncing foreign citizenship
affects one’s qualifications to run for public office.
The third question is whether or not the rule on succession in the Local Government Code is applicable to this case.
OUR RULING
Intervention of a rival candidate in a
disqualification case is proper when
there has not yet been any
proclamation of the winner.
Petitioner Casan Macode Maquiling intervened at the stage when respondent Arnado filed a Motion for Reconsideration of the First
Division Resolution before the COMELEC En Banc. As the candidate who garnered the second highest number of votes, Maquiling
contends that he has an interest in the disqualification case filed against Arnado, considering that in the event the latter is
disqualified, the votes cast for him should be considered stray and the second-placer should be proclaimed as the winner in the
elections.
It must be emphasized that while the original petition before the COMELEC is one for cancellation of the certificate of candidacy
and / or disqualification, the COMELEC First Division and the COMELEC En Banc correctly treated the petition as one for
disqualification.
The effect of a disqualification case is enunciated in Section 6 of R.A. No. 6646:
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.
Mercado v. Manzano28
clarified the right of intervention in a disqualification case. In that case, the Court said:
That petitioner had a right to intervene at that stage of the proceedings for the disqualification against private respondent is clear
from Section 6 of R.A. No. 6646, otherwise known as the Electoral Reforms Law of 1987, which provides: 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 guilt is strong. Under this provision, intervention may be allowed in
proceedings for disqualification even after election if there has yet been no final judgment rendered. 29
Clearly then, Maquiling has the right to intervene in the case. The fact that the COMELEC En Banc has already ruled that Maquiling
has not shown that the requisites for the exemption to the second-placer rule set forth in Sinsuat v. COMELEC30 are present and
therefore would not be prejudiced by the outcome of the case, does not deprive Maquiling of the right to elevate the matter before
this Court.
Arnado’s claim that the main case has attained finality as the original petitioner and respondents therein have not appealed the
decision of the COMELEC En Banc, cannot be sustained. The elevation of the case by the intervenor prevents it from attaining
finality. It is only after this Court has ruled upon the issues raised in this instant petition that the disqualification case originally
filed by Balua against Arnado will attain finality.
The use of foreign passport after renouncing one’s foreign citizenship is a positive and voluntary act of representation as to
one’s nationality and citizenship; it does not divest Filipino citizenship regained by repatriation but it recants the Oath of
Renunciation required to qualify one to run for an elective position.
Section 5(2) of The Citizenship Retention and Re-acquisition Act of 2003 provides:
Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all
attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions:
xxxx
(2)Those seeking elective public in the Philippines shall meet the qualification for holding such public office as required by the
Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation
of any and all foreign before any public officer authorized to administer an oath.
x x x31
Rommel Arnado took all the necessary steps to qualify to run for a public office. He took the Oath of Allegiance and renounced his
foreign citizenship. There is no question that after performing these twin requirements required under Section 5(2) of R.A. No. 9225
or the Citizenship Retention and Re-acquisition Act of 2003, he became eligible to run for public office.
Indeed, Arnado took the Oath of Allegiance not just only once but twice: first, on 10 July 2008 when he applied for repatriation
before the Consulate General of the Philippines in San Francisco, USA, and again on 03 April 2009 simultaneous with the execution of
his Affidavit of Renunciation. By taking the Oath of Allegiance to the Republic, Arnado re-acquired his Philippine citizenship. At the
time, however, he likewise possessed American citizenship. Arnado had therefore become a dual citizen.
After reacquiring his Philippine citizenship, Arnado renounced his American citizenship by executing an Affidavit of Renunciation,
thus completing the requirements for eligibility to run for public office.
By renouncing his foreign citizenship, he was deemed to be solely a Filipino citizen, regardless of the effect of such renunciation
under the laws of the foreign country.32
However, this legal presumption does not operate permanently and is open to attack when, after renouncing the foreign citizenship,
the citizen performs positive acts showing his continued possession of a foreign citizenship. 33
Arnado himself subjected the issue of his citizenship to attack when, after renouncing his foreign citizenship, he continued to use
his US passport to travel in and out of the country before filing his certificate of candidacy on 30 November 2009. The pivotal
question to determine is whether he was solely and exclusively a Filipino citizen at the time he filed his certificate of candidacy,
thereby rendering him eligible to run for public office.
Between 03 April 2009, the date he renounced his foreign citizenship, and 30 November 2009, the date he filed his COC, he used his
US passport four times, actions that run counter to the affidavit of renunciation he had earlier executed. By using his foreign
passport, Arnado positively and voluntarily represented himself as an American, in effect declaring before immigration authorities of
both countries that he is an American citizen, with all attendant rights and privileges granted by the United States of America.
The renunciation of foreign citizenship is not a hollow oath that can simply be professed at any time, only to be violated the next
day. It requires an absolute and perpetual renunciation of the foreign citizenship and a full divestment of all civil and political rights
granted by the foreign country which granted the citizenship.
Mercado v. Manzano34 already hinted at this situation when the Court declared:
His declarations will be taken upon the faith that he will fulfill his undertaking made under oath. Should he betray that trust, there
are enough sanctions for declaring the loss of his Philippine citizenship through expatriation in appropriate proceedings. In Yu v.
Defensor-Santiago, we sustained the denial of entry into the country of petitioner on the ground that, after taking his oath as a
naturalized citizen, he applied for the renewal of his Portuguese passport and declared in commercial documents executed abroad
that he was a Portuguese national. A similar sanction can be taken against anyone who, in electing Philippine citizenship, renounces
his foreign nationality, but subsequently does some act constituting renunciation of his Philippine citizenship.
While the act of using a foreign passport is not one of the acts enumerated in Commonwealth Act No. 63 constituting renunciation
and loss of Philippine citizenship,35 it is nevertheless an act which repudiates the very oath of renunciation required for a former
Filipino citizen who is also a citizen of another country to be qualified to run for a local elective position.
When Arnado used his US passport on 14 April 2009, or just eleven days after he renounced his American citizenship, he recanted his
Oath of Renunciation36 that he "absolutely and perpetually renounce(s) all allegiance and fidelity to the UNITED STATES OF
AMERICA"37 and that he "divest(s) himself of full employment of all civil and political rights and privileges of the United States of
America."38
We agree with the COMELEC En Banc that such act of using a foreign passport does not divest Arnado of his Filipino citizenship,
which he acquired by repatriation. However, by representing himself as an American citizen, Arnado voluntarily and effectively
reverted to his earlier status as a dual citizen. Such reversion was not retroactive; it took place the instant Arnado represented
himself as an American citizen by using his US passport.
This act of using a foreign passport after renouncing one’s foreign citizenship is fatal to Arnado’s bid for public office, as it
effectively imposed on him a disqualification to run for an elective local position.
Arnado’s category of dual citizenship is that by which foreign citizenship is acquired through a positive act of applying for
naturalization. This is distinct from those considered dual citizens by virtue of birth, who are not required by law to take the oath of
renunciation as the mere filing of the certificate of candidacy already carries with it an implied renunciation of foreign citizenship.39
Dual citizens by naturalization, on the other hand, are required to take not only the Oath of Allegiance to the Republic of the
Philippines but also to personally renounce foreign citizenship in order to qualify as a candidate for public office.
By the time he filed his certificate of candidacy on 30 November 2009, Arnado was a dual citizen enjoying the rights and privileges
of Filipino and American citizenship. He was qualified to vote, but by the express disqualification under Section 40(d) of the Local
Government Code,40 he was not qualified to run for a local elective position.
In effect, Arnado was solely and exclusively a Filipino citizen only for a period of eleven days, or from 3 April 2009 until 14 April
2009, on which date he first used his American passport after renouncing his American citizenship.
This Court has previously ruled that:
Qualifications for public office are continuing requirements and must be possessed not only at the time of appointment or election
or assumption of office but during the officer's entire tenure. Once any of the required qualifications is lost, his title may be
seasonably challenged. x x x.41
The citizenship requirement for elective public office is a continuing one. It must be possessed not just at the time of the
renunciation of the foreign citizenship but continuously. Any act which violates the oath of renunciation opens the citizenship issue
to attack.
We agree with the pronouncement of the COMELEC First Division that "Arnado’s act of consistently using his US passport effectively
negated his "Affidavit of Renunciation."42 This does not mean, that he failed to comply with the twin requirements under R.A. No.
9225, for he in fact did.
It was after complying with the requirements that he performed positive acts which effectively disqualified him from running for an
elective public office pursuant to Section 40(d) of the Local Government Code of 1991.
The purpose of the Local Government Code in disqualifying dual citizens from running for any elective public office would be
thwarted if we were to allow a person who has earlier renounced his foreign citizenship, but who subsequently represents himself as
a foreign citizen, to hold any public office.
Arnado justifies the continued use of his US passport with the explanation that he was not notified of the issuance of his Philippine
passport on 18 June 2009, as a result of which he was only able to obtain his Philippine passport three (3) months later.43
The COMELEC En Banc differentiated Arnado from Willy Yu, the Portuguese national who sought naturalization as a Filipino citizen
and later applied for the renewal of his Portuguese passport. That Arnado did not apply for a US passport after his renunciation does
not make his use of a US passport less of an act that violated the Oath of Renunciation he took. It was still a positive act of
representation as a US citizen before the immigration officials of this country.
The COMELEC, in ruling favorably for Arnado, stated "Yet, as soon as he was in possession of his Philippine passport, the respondent
already used the same in his subsequent travels abroad."44 We cannot agree with the COMELEC. Three months from June is
September. If indeed, Arnado used his Philippine passport as soon as he was in possession of it, he would not have used his US
passport on 24 November 2009.
Besides, Arnado’s subsequent use of his Philippine passport does not correct the fact that after he renounced his foreign citizenship
and prior to filing his certificate of candidacy, he used his US passport. In the same way that the use of his foreign passport does not
undo his Oath of Renunciation, his subsequent use of his Philippine passport does not undo his earlier use of his US passport.
Citizenship is not a matter of convenience. It is a badge of identity that comes with attendant civil and political rights accorded by
the state to its citizens. It likewise demands the concomitant duty to maintain allegiance to one’s flag and country. While those who
acquire dual citizenship by choice are afforded the right of suffrage, those who seek election or appointment to public office are
required to renounce their foreign citizenship to be deserving of the public trust. Holding public office demands full and undivided
allegiance to the Republic and to no other.
We therefore hold that Arnado, by using his US passport after renouncing his American citizenship, has recanted the same Oath of
Renunciation he took. Section 40(d) of the Local Government Code applies to his situation. He is disqualified not only from holding
the public office but even from becoming a candidate in the May 2010 elections.
We now resolve the next issue.
Resolving the third issue necessitates revisiting Topacio v. Paredes45 which is the jurisprudential spring of the principle that a
second-placer cannot be proclaimed as the winner in an election contest. This doctrine must be re-examined and its soundness once
again put to the test to address the ever-recurring issue that a second-placer who loses to an ineligible candidate cannot be
proclaimed as the winner in the elections.
The Facts of the case are as follows:
On June 4, 1912, a general election was held in the town of Imus, Province of Cavite, to fill the office of municipal president. The
petitioner, Felipe Topacio, and the respondent, Maximo Abad, were opposing candidates for that office. Topacio received 430 votes,
and Abad 281. Abad contested the election upon the sole ground that Topacio was ineligible in that he was reelected the second
time to the office of the municipal president on June 4, 1912, without the four years required by Act No. 2045 having intervened.46
Abad thus questioned the eligibility of To p a c i o on the basis of a statutory prohibition for seeking a second re-election absent the
four year interruption.
The often-quoted phrase in Topacio v. Paredes is that "the wreath of victory cannot be transferred from an ineligible candidate to
any other candidate when the sole question is the eligibility of the one receiving a plurality of the legally cast ballots." 47
This phrase is not even the ratio decidendi; it is a mere obiter dictum. The Court was comparing "the effect of a decision that a
candidate is not entitled to the office because of fraud or irregularities in the elections x x x with that produced by declaring a
person ineligible to hold such an office."
The complete sentence where the phrase is found is part of a comparison and contrast between the two situations, thus:
Again, the effect of a decision that a candidate is not entitled to the office because of fraud or irregularities in the elections is quite
different from that produced by declaring a person ineligible to hold such an office. In the former case the court, after an
examination of the ballots may find that some other person than the candidate declared to have received a plurality by the board of
canvassers actually received the greater number of votes, in which case the court issues its mandamus to the board of canvassers to
correct the returns accordingly; or it may find that the manner of holding the election and the returns are so tainted with fraud or
illegality that it cannot be determined who received a plurality of the legally cast ballots. In the latter case, no question as to the
correctness of the returns or the manner of casting and counting the ballots is before the deciding power, and generally the only
result can be that the election fails entirely. In the former, we have a contest in the strict sense of the word, because of the
opposing parties are striving for supremacy. If it be found that the successful candidate (according to the board of canvassers)
obtained a plurality in an illegal manner, and that another candidate was the real victor, the former must retire in favor of the
latter. In the other case, there is not, strictly speaking, a contest, as the wreath of victory cannot be transferred from an ineligible
candidate to any other candidate when the sole question is the eligibility of the one receiving a plurality of the legally cast ballots.
In the one case the question is as to who received a plurality of the legally cast ballots; in the other, the question is confined to the
personal character and circumstances of a single individual.48 (Emphasis supplied)
Note that the sentence where the phrase is found starts with "In the other case, there is not, strictly speaking, a contest" in contrast
to the earlier statement, "In the former, we have a contest in the strict sense of the word, because of the opposing parties are
striving for supremacy."
The Court in Topacio v. Paredes cannot be said to have held that "the wreath of victory cannot be transferred from an ineligible
candidate to any other candidate when the sole question is the eligibility of the one receiving a plurality of the legally cast ballots."
A proper reading of the case reveals that the ruling therein is that since the Court of First Instance is without jurisdiction to try a
disqualification case based on the eligibility of the person who obtained the highest number of votes in the election, its jurisdiction
being confined "to determine which of the contestants has been duly elected" the judge exceeded his jurisdiction when he "declared
that no one had been legally elected president of the municipality of Imus at the general election held in that town on 4 June 1912"
where "the only question raised was whether or not Topacio was eligible to be elected and to hold the office of municipal
president."
The Court did not rule that Topacio was disqualified and that Abad as the second placer cannot be proclaimed in his stead. The
Court therein ruled:
For the foregoing reasons, we are of the opinion and so hold that the respondent judge exceeded his jurisdiction in declaring in
those proceedings that no one was elected municipal president of the municipality of Imus at the last general election; and that said
order and all subsequent proceedings based thereon are null and void and of no effect; and, although this decision is rendered on
respondents' answer to the order to show cause, unless respondents raised some new and additional issues, let judgment be entered
accordingly in 5 days, without costs. So ordered.49
On closer scrutiny, the phrase relied upon by a host of decisions does not even have a legal basis to stand on. It was a mere
pronouncement of the Court comparing one process with another and explaining the effects thereof. As an independent statement,
it is even illogical.
Let us examine the statement:
"x x x the wreath of victory cannot be transferred from an ineligible candidate to any other candidate when the sole question is the
eligibility of the one receiving a plurality of the legally cast ballots."
What prevents the transfer of the wreath of victory from the ineligible candidate to another candidate?
When the issue being decided upon by the Court is the eligibility of the one receiving a plurality of the legally cast ballots and
ineligibility is thereafter established, what stops the Court from adjudging another eligible candidate who received the next highest
number of votes as the winner and bestowing upon him that "wreath?"
An ineligible candidate who receives the highest number of votes is a wrongful winner. By express legal mandate, he could not even
have been a candidate in the first place, but by virtue of the lack of material time or any other intervening circumstances, his
ineligibility might not have been passed upon prior to election date. Consequently, he may have had the opportunity to hold himself
out to the electorate as a legitimate and duly qualified candidate. However, notwithstanding the outcome of the elections, his
ineligibility as a candidate remains unchanged. Ineligibility does not only pertain to his qualifications as a candidate but necessarily
affects his right to hold public office. The number of ballots cast in his favor cannot cure the defect of failure to qualify with the
substantive legal requirements of eligibility to run for public office.
The popular vote does not cure the
ineligibility of a candidate.
The ballot cannot override the constitutional and statutory requirements for qualifications and disqualifications of candidates. When
the law requires certain qualifications to be possessed or that certain disqualifications be not possessed by persons desiring to serve
as elective public officials, those qualifications must be met before one even becomes a candidate. When a person who is not
qualified is voted for and eventually garners the highest number of votes, even the will of the electorate expressed through the
ballot cannot cure the defect in the qualifications of the candidate. To rule otherwise is to trample upon and rent asunder the very
law that sets forth the qualifications and disqualifications of candidates. We might as well write off our election laws if the voice of
the electorate is the sole determinant of who should be proclaimed worthy to occupy elective positions in our republic.
This has been, in fact, already laid down by the Court in Frivaldo v. COMELEC 50 when we pronounced:
x x x. The fact that he was elected by the people of Sorsogon does not excuse this patent violation of the salutary rule limiting
public office and employment only to the citizens of this country. The qualifications prescribed for elective office cannot be erased
by the electorate alone.
The will of the people as expressed through the ballot cannot cure the vice of ineligibility, especially if they mistakenly believed, as
in this case, that the candidate was qualified. Obviously, this rule requires strict application when the deficiency is lack of
citizenship. If a person seeks to serve in the Republic of the Philippines, he must owe his total loyalty to this country only, abjuring
and renouncing all fealty and fidelity to any other state. 51 (Emphasis supplied)
This issue has also been jurisprudentially clarified in Velasco v. COMELEC52 where the Court ruled that the ruling in Quizon and Saya-
ang cannot be interpreted without qualifications lest "Election victory x x x becomes a magic formula to bypass election eligibility
requirements."53
We have ruled in the past that a candidate’s victory in the election may be considered a sufficient basis to rule in favor of the
candidate sought to be disqualified if the main issue involves defects in the candidate’s certificate of candidacy. We said that while
provisions relating to certificates of candidacy are mandatory in terms, it is an established rule of interpretation as regards election
laws, that mandatory provisions requiring certain steps before elections will be construed as directory after the elections, to give
effect to the will of the people. We so ruled in Quizon v. COMELEC and Saya-ang v. COMELEC:
The present case perhaps presents the proper time and opportunity to fine-tune our above ruling. We say this with the realization
that a blanket and unqualified reading and application of this ruling can be fraught with dangerous significance for the rule of law
and the integrity of our elections. For one, such blanket/unqualified reading may provide a way around the law that effectively
negates election requirements aimed at providing the electorate with the basic information to make an informed choice about a
candidate’s eligibility and fitness for office.
The first requirement that may fall when an unqualified reading is made is Section 39 of the LGC which specifies the basic
qualifications of local government officials. Equally susceptive of being rendered toothless is Section 74 of the OEC that sets out
what should be stated in a COC. Section 78 may likewise be emasculated as mere delay in the resolution of the petition to cancel or
deny due course to a COC can render a Section 78 petition useless if a candidate with false COC data wins. To state the obvious,
candidates may risk falsifying their COC qualifications if they know that an election victory will cure any defect that their COCs may
have. Election victory then becomes a magic formula to bypass election eligibility requirements. (Citations omitted)
What will stop an otherwise disqualified individual from filing a seemingly valid COC, concealing any disqualification, and employing
every strategy to delay any disqualification case filed against him so he can submit himself to the electorate and win, if winning the
election will guarantee a disregard of constitutional and statutory provisions on qualifications and disqualifications of candidates?
It is imperative to safeguard the expression of the sovereign voice through the ballot by ensuring that its exercise respects the rule
of law. To allow the sovereign voice spoken through the ballot to trump constitutional and statutory provisions on qualifications and
disqualifications of candidates is not democracy or republicanism. It is electoral anarchy. When set rules are disregarded and only
the electorate’s voice spoken through the ballot is made to matter in the end, it precisely serves as an open invitation for electoral
anarchy to set in.1âwphi1
Maquiling is not a second-placer as
he obtained the highest number of
votes from among the qualified
candidates.
With Arnado’s disqualification, Maquiling then becomes the winner in the election as he obtained the highest number of votes from
among the qualified candidates.
We have ruled in the recent cases of Aratea v. COMELEC54 and Jalosjos v. COMELEC55 that a void COC cannot produce any legal
effect.
Thus, the votes cast in favor of the ineligible candidate are not considered at all in determining the winner of an election.
Even when the votes for the ineligible candidate are disregarded, the will of the electorate is still respected, and even more so. The
votes cast in favor of an ineligible candidate do not constitute the sole and total expression of the sovereign voice. The votes cast in
favor of eligible and legitimate candidates form part of that voice and must also be respected.
As in any contest, elections are governed by rules that determine the qualifications and disqualifications of those who are allowed to
participate as players. When there are participants who turn out to be ineligible, their victory is voided and the laurel is awarded to
the next in rank who does not possess any of the disqualifications nor lacks any of the qualifications set in the rules to be eligible as
candidates.
There is no need to apply the rule cited in Labo v. COMELEC56 that when the voters are well aware within the realm of notoriety of a
candidate’s disqualification and still cast their votes in favor said candidate, then the eligible candidate obtaining the next higher
number of votes may be deemed elected. That rule is also a mere obiter that further complicated the rules affecting qualified
candidates who placed second to ineligible ones.
The electorate’s awareness of the candidate’s disqualification is not a prerequisite for the disqualification to attach to the
candidate. The very existence of a disqualifying circumstance makes the candidate ineligible. Knowledge by the electorate of a
candidate’s disqualification is not necessary before a qualified candidate who placed second to a disqualified one can be proclaimed
as the winner. The second-placer in the vote count is actually the first-placer among the qualified candidates.
That the disqualified candidate has already been proclaimed and has assumed office is of no moment. The subsequent
disqualification based on a substantive ground that existed prior to the filing of the certificate of candidacy voids not only the COC
but also the proclamation.
Section 6 of R.A. No. 6646 provides:
Section 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.
There was no chance for Arnado’s proclamation to be suspended under this rule because Arnado failed to file his answer to the
petition seeking his disqualification. Arnado only filed his Answer on 15 June 2010, long after the elections and after he was already
proclaimed as the winner.
The disqualifying circumstance surrounding Arnado’s candidacy involves his citizenship. It does not involve the commission of
election offenses as provided for in the first sentence of Section 68 of the Omnibus Election Code, the effect of which is to
disqualify the individual from continuing as a candidate, or if he has already been elected, from holding the office.
The disqualifying circumstance affecting Arnado is his citizenship. As earlier discussed, Arnado was both a Filipino and an American
citizen when he filed his certificate of candidacy. He was a dual citizen disqualified to run for public office based on Section 40(d)
of the Local Government Code.
Section 40 starts with the statement "The following persons are disqualified from running for any elective local position." The
prohibition serves as a bar against the individuals who fall under any of the enumeration from participating as candidates in the
election.
With Arnado being barred from even becoming a candidate, his certificate of candidacy is thus rendered void from the beginning. It
could not have produced any other legal effect except that Arnado rendered it impossible to effect his disqualification prior to the
elections because he filed his answer to the petition when the elections were conducted already and he was already proclaimed the
winner.
To hold that such proclamation is valid is to negate the prohibitory character of the disqualification which Arnado possessed even
prior to the filing of the certificate of candidacy. The affirmation of Arnado's disqualification, although made long after the
elections, reaches back to the filing of the certificate of candidacy. Arnado is declared to be not a candidate at all in the May 201 0
elections.
Arnado being a non-candidate, the votes cast in his favor should not have been counted. This leaves Maquiling as the qualified
candidate who obtained the highest number of votes. Therefore, the rule on succession under the Local Government Code will not
apply.
WHEREFORE, premises considered, the Petition is GRANTED. The Resolution of the COMELEC En Bane dated 2 February 2011 is
hereby ANNULLED and SET ASIDE. Respondent ROMMEL ARNADO y CAGOCO is disqualified from running for any local elective
position. CASAN MACODE MAQUILING is hereby DECLARED the duly elected Mayor of Kauswagan, Lanao del Norte in the 10 May 2010
elections.
This Decision is immediately executory.
Let a copy of this Decision be served personally upon the parties and the Commission on Elections.
No pronouncement as to costs.
SO ORDERED.

DISSENTING OPINION
BRION, J.:
I maintain my dissent and vote to reconsider the Court’s April 16, 2013 Decision. I so vote for the reasons stated in my main Dissent,
some of which I restate below for emphasis. Most importantly, I believe that the majority’s ruling runs counter to the policy behind
Republic Act No. (RA) 92251, is legally illogical and unsound, and should thus be reversed.
a) The assailed Decision rules on a situation of doubt and in the relatively uncharted area of application where RA 9225 overlaps
with our election laws. It reverses the Commission on Elections (COMELEC) ruling that respondent Rommel C. Arnado’s use of his
United States (U.S.) passport was isolated and did not affect his renunciation of his previous U.S. citizenship and his re-acquisition of
Filipino citizenship. These, to my mind, should have been the starting points in the Court’s consideration of the present case and the
motion for reconsideration.
b) After complying with the twin requirements of RA 9225, Arnado not only became a "pure" Filipino citizen but also became eligible
to run for public office. To be sure, the majority in fact concedes that Arnado’s use of his U.S. passport is not a ground for loss of
Filipino citizenship under Commonwealth Act No. 63 as the law requires express renunciation and not by implication or inference
from conduct. Why the norm will be any different with respect to the loss of citizenship rights is, to my mind, a question that the
majority ruling left hanging and unanswered as it disregards a directly related jurisprudential landmark – Aznar v. Commission on
Elections2 - where the Court ruled that the mere fact that therein respondent Emilio Mario Renner Osmeña was a holder of a
certificate that he is an American did not mean that he was no longer a Filipino, and that an application for an alien certificate of
registration did not amount to a renunciation of his Philippine citizenship. Through the Court’s ruling in the present case (that by
Arnado’s isolated use of his U.S. passport, he is reverted to the status of a dual citizen), the Court effectively reversed Aznar and,
under murky facts and the flimsiest of reasons, created a new ground for the loss of the political rights of a Filipino citizen.
c) In a situation of doubt, doubts should be resolved in favor of full Filipino citizenship since the thrust of RA 9225 is to encourage
the return to Filipino citizenship of natural-born Filipinos who lost their Philippine citizenship through their acquisition of another
citizenship.3 Note in this regard that Arnado consciously and voluntarily gave up a very much sought after citizenship status in favor
of returning to full Filipino citizenship and participating in Philippine governance.
From the perspective of our election laws, doubts should also be resolved in favor of Arnado since his election to the office of Mayor
of Kauswagan, Lanao del Norte was never in doubt. The present voters of Kauswagan, Lanao del Norte have eloquently spoken and
approved Arnado’s offer of service not only once but twice – in 2010 and now in 2013. Note that the present case was very much
alive in the minds of the Kauswagan voters in the immediately past May 13, 2013 elections, yet they again voted Arnado into office.
d) To reiterate what I have stated before, under RA 9225, natural-born citizens who were deemed to have lost their Philippine
citizenship because of their naturalization as citizens of a foreign country and who subsequently complied with the requirements of
RA 9225 are deemed not to have lost their Philippine citizenship. RA 9225 cured and negated the presumption made under CA 63.
Hence, as in Japzon v. Commission on Elections,4 Arnado assumed "pure" Philippine citizenship again after taking the Oath of
Allegiance and executing an Oath of Renunciation of his American citizenship under RA 9225.
In this light, the proper framing of the main issue in this case should be whether Arnado’s use of his U.S. passport affected his status
as a "pure" Philippine citizen. In question form – did Arnado’s use of a U.S. passport amount to a ground under the law for the loss of
his Filipino citizenship under CA 63 or his rights thereunder or, alternatively, the retention of his dual citizenship status?
That Arnado’s use of his U.S. passport amounts to an express renunciation of his Filipino citizenship or some of his rights as a citizen
– when its use was an isolated act that he sufficiently explained and fully justified – is not a conclusion that is easy to accept under
the available facts of the case and the prevailing law. I emphasize that the law requires express renunciation in order to lose
Philippine citizenship. The term means a renunciation that is made distinctly and explicitly and is not left to inference or
implication; it is a renunciation manifested by direct and appropriate language, as distinguished from that which is inferred from
conduct.5 The appreciation of Arnado’s use of his U.S. passport should not depart from this norm, particularly in a situation of
doubt.
Aznar, already cited above, presents a clear and vivid example, taken from jurisprudence, of what "express renunction" is not. The
Court ruled that the mere fact that Osmeña was a holder of a certificate that he is an American did not mean that he is no longer a
Filipino, and that an application for an alien certificate of registration did not amount to a renunciation of his Philippine citizenship.
In the present case, other than the use of his U.S. passport in two trips to and from the U.S., the record does not bear out any
indication, supported by evidence, of Arnado’s intention to re-acquire U.S. citizenship. In the absence of clear and affirmative acts
of re-acquisition of U.S. citizenship either by naturalization or by express acts (such as the re-establishment of permanent residency
in the U.S.), Arnado’s use of his U.S. passport cannot but be considered an isolated act that did not undo his renunciation of his U.S.
citizenship. What he might in fact have done was to violate American law on the use of passports, but this is a matter irrelevant to
the present case. Thus, Arnado remains to be a "pure" Filipino citizen and the loss of his Philippine citizenship or of citizenship rights
cannot be presumed or inferred from his isolated act of using his U.S. passport for travel purposes.
I do not dispute that an Oath of Renunciation is not an empty or formal ceremony that can be perfunctorily professed at any given
day, only to be disregarded on the next. As a mandatory requirement under Section 5(2) of RA 9225, it allows former natural-born
Filipino citizens who were deemed to have lost their Philippine citizenship by reason of naturalization as citizens of a foreign
country to enjoy full civil and political rights, foremost among them, the privilege to run for public office.
It is another matter, however, to say that Arnado effectively negated his Oath of Renunciation when he used his U.S. passport for
travel to the U.S. To reiterate, if only for emphasis, Arnado sufficiently justified the use of his U.S. passport despite his renunciation
of his U.S. citizenship: when he travelled on April 14, 2009, June 25, 2009 and July 29, 2009, he had no Philippine passport that he
could have used to travel to the U.S. to attend to the business and other affairs that he was leaving. If at all, he could be faulted for
using his U.S. passport by the time he returned to the Philippines on November 24, 2009 because at that time, he had presumably
received his Philippine passport. However, given the circumstances of Arnado's use and that he consistently used his Philippine
passport for travel after November 24, 2009, the true character of his use of his U.S. passport stands out and cannot but be an
isolated and convenient act that did not negate his Oath of Renunciation.
In these lights, I maintain the conclusion that no basis exists to overturn the ruling of the COMELEC for grave abuse of discretion; its
ruling was neither capricious nor arbitrary as it had basis in law and in fact.
e) With the Court’s assailed pronouncement and its underlying negative policy implication, the Court has effectively left Arnado "[A]
MAN WITHOUT A COUNTRY"6 - neither a U.S. citizen by U.S. law, nor a Filipino citizen with full political rights despite his compliance
with all the requirements of RA 9225. The only justification given for the treatment was the isolated use of Arnado’s old U.S.
passport in traveling between the U.S. and the Philippines before the duly applied for Philippine passport could be issued. Under this
situation, read in the context of the election environment under which Japzon v. Commission on Elections 7 was made, the following
ruling was apparently lost on the majority:
Finally, when the evidence of x x x lack of residence qualification of a candidate for an elective position is weak or inconclusive and
it clearly appears that the purpose of the law would not be thwarted by upholding the victor’s right to the office, the will of the
electorate should be respected. For the purpose of election laws is to give effect to, rather than frustrate, the will of the voters. x x
x In this case, Japzon failed to substantiate his claim that Ty is ineligible to be Mayor of the Municipality of General Macarthur,
Eastern Samar, Philippines.8
For all these reasons, I urge the Court to reconsider its position in the assailed April 16, 2013 Decision and grant Rommel C. Arnado’s
motion for reconsideration.

P.E.T. Case No. 001 February 13, 1996

MIRIAM DEFENSOR-SANTIAGO, protestant,
vs.
FIDEL VALDEZ RAMOS, protestee.
RESOLUTION
In her motion of 16 August 1995, reiterated in her Comment of 29 August 1995, Protestant Miriam Defensor-Santiago prayed that the
revision of ballots in the remaining precincts of the pilot areas be dispensed with and the revision process in the pilot areas be
deemed completed.
We deferred action on that motion and required the Protestant and the Protestee to submit their respective memoranda on the
issue of whether this case had been rendered moot by the election of the Protestant as a Senator in the May 1995 election and her
assumption of office as such on 30 June 1995.
The Protestant answers this issue in the negative. Relying on Sibulo vda. de De Mesa vs. Mencias,1 Lomugdang vs. Javier,2 and De
Castro vs. Ginete,3 she asserts that an election contest involves not only an adjudication and settlement of the private interests of
the rival candidates, but more importantly, the paramount need to dispel, once and for all, the uncertainty that beclouds the true
choice of the electorate. Hence, it is imbued with public interest and should be pursued to its final conclusion to determine the
bona fide winner. She further asserts that an election case may be rendered moot only if the term of the contested office has
expired,4 thus her election as Senator and assumption of office as such cannot, under the rule laid down in Moraleja vs. Relova,5 be
construed as an abandonment of the instant protest. Finally, she alleges that this Court has departed from the orthodox view that a
case should be dismissed if it has been mooted. 6
For his part, the Protestee submits that there is strong legal basis for this Tribunal to rule that the Protestant is deemed to have
abandoned the instant protest, in light of the ruling in Dimaporo vs. Mitra7 which construed Section 67, Article IX of B.P. Blg. 881
(Omnibus Election Code).8 He submits, however, that public interest requires that this protest be resolved on the merits considering
that: (a) it involves a matter of paramount and grave public interest; and (b) it was filed merely to keep Protestant Santiago in the
limelight in preparation for her Senatorial campaign. He likewise claims that a resolution on the merits would confirm his victory in
the 11 May 1992 presidential election and prove that the instant protest is unfounded. Further more, it would establish guiding and
controlling principles or doctrines with respect to presidential election protest cases, thereby educating the bench and the bar and
preventing the indiscriminate filing of baseless protest cases.
We cannot subscribe to the view of the Protestee that by filing her certificate of candidacy for Senator Protestant Santiago ipso
facto forfeited her claim to the office of President pursuant to Section 67 of B.P. Blg. 881. Plainly, the said section applies
exclusively to an incumbent elective official who files a certificate of candidacy for any office "other than the one he is holding in a
permanent capacity." Even more plain is that the Protestant was not the incumbent President at the time she filed her certificate of
candidacy for Senator nor at any time before that. Thus, the holding in Dimaporo does not apply to the Protestant.
Neither do we find any convincing logic to the Protestee's proposition that this case should nevertheless be resolved on the merits
because its filing was done in bad faith, i.e., merely to keep the Protestant in the limelight in preparation for her Senatorial
campaign. If that were so, then public interest would be served if this case were put to an abrupt end after the Protestant won a
seat in the Senate. Finally, neither do we find any cogent nor compelling reason to proceed with this case, in the event that we find
it to be moot, simply to establish guiding and controlling principles or doctrines with respect to election protests involving the office
of the President or the Vice-President.
I.
The key then to the resolution of the aforestated issue is the consideration of public interest and public policy and their
encompassing effects on election cases which have been unequivocally expressed in the cases cited by the Protestant.
In Sibulo vda. de De Mesa vs. Mencias,9 this Court stated:
It is axiomatic that an election contest, involving as it does not only the adjudication and settlement of the private interests of the
rival candidates but also the paramount need of dispelling once and for all the uncertainty that beclouds the real choice of the
electorate with respect to who shall discharge the prerogatives of the offices within their gift, is a proceeding imbued with public
interest which raises it onto a plane over and above ordinary civil actions. For this reason, broad perspectives of public policy
impose upon courts the imperative duty to ascertain by all means within their command who is the real candidate elected in as
expeditious a manner as possible, without being fettered by technicalities and procedural barriers to the end that the will of the
people may not be frustrated (Ibasco vs. Ilao, et al., G.R. L-17512, December 29, 1960; Reforma vs. De Luna, G.R. L-13242, July 31,
1958). So inextricably intertwined are the interests of the contestants and those of the public that there can be no gainsaying the
logic of the proposition that even the voluntary cessation in office of the protestee not only does not ipso facto divest him or the
character of an adversary in the contest inasmuch as he retains a party interest to keep his political opponent out of the office and
maintain therein his successor, but also does not in any manner impair or detract from the jurisdiction of the court to pursue the
proceeding to its final conclusion (De Los Angeles vs. Rodriguez, 46 Phil. 595, 597; Salcedo vs. Hernandez, 62 Phil. 584, 587; Galves
vs. Maramba, G.R. L-13206).
Upon the same principle, the death of the protestee De Mesa did not abate the proceedings in the election protest filed against him,
and it may be stated as a rule that an election contest survives and must be prosecuted to final judgment despite the death of the
protestee. (In Silverio vs. Castro, 19 SCRA 520 [1967], where the trial court proceeded with the trial of an election protest and
decided it even if the protestee had already died and his Vice-Mayor had assumed office by succession, this Court, instead of
dismissing the appeal brought on behalf of the deceased protestee, required the Vice-Mayor to intervene on the side of the
appellant)
In Lomugdang vs. Javier,10 this Court declared:
Determination of what candidate has been in fact elected is a matter clothed with public interest, wherefore, public policy demands
that an election contest, duly commenced, be not abated by the death of the contestant. We have squarely so ruled in Sibulo vda.
de Mesa vs. Judge Mencias, G.R. No. L-24583, October 26, 1966, in the same spirit that led this Court to hold that the ineligibility of
the protestant is not a defense (Caesar vs. Garrido, 53 Phil. 57), and that the protestee's cessation in office is not a ground for the
dismissal of the contest nor detract the Court's jurisdiction to decide the case (Angeles vs. Rodriguez, 46 Phil. 595; Salcedo vs.
Hernandez, 62 Phil. 584).
In the same Sibulo case, already cited, this Court likewise ruled that by virtue of Section 7, Republic Act 2264, the vice-mayor elect
has the status of a real party in interest in the continuation of the proceedings and is entitled to intervene therein. For if the
protest succeeds and the protestee is unseated, the vice mayor succeeds to the office of mayor that becomes vacant if the duly
elected cannot assume the post.
In Moraleja vs. Relova,11 this Court ruled:
As to the contention that by accepting such appointment as Technical Assistant, protestant has abandoned his protest, all that need
be said is that once the court has acquired jurisdiction over an election contest, the public interest involved demands that the true
winner be known without regard to the wishes or acts of the parties, so much so that there can be no default, compromise nor
stipulation of facts in this kind of cases. (Francisco, How To Try Election Cases, p. 163, citing Civilio v. Tomacruz, 62 Phil. 689). In
the same manner that the acceptance by the protestee of an appointment to another position is not a ground for dismissal of the
protest (Philippine Law on Elections by Martin, 1970 ed., pp. 258-259, citing Calvo v. Maramba, G.R. No. L-13206, January 7, 1918)
like the resignation of the protestee from the contested office (Angeles v. Rodriguez, 46 Phil. 595), simply because it is of public
interest that the real winner be known, neither can the acceptance of a more or less temporary employment, such as that of a
technical assistant of the Vice-Governor, which is a primarily confidential position, be considered as inconsistent with protestant's
determination to protect and pursue the public interest involved in the matter of who is the real choice of the electorate. In such
instances, the plight of protestant may be viewed in the same light as that of an employee who has been illegally dismissed and
who, to find means to support himself and family while he prosecutes his case for reinstatement, accepts a temporary employment
elsewhere. Such employee is not deemed to have abandoned the position he seeks to recover. (Tan v. Gimenez, et al. G.R. No. L-
12525, February 19, 1960, 107 Phil. 17; Potot v. Bagano, G.R. No. L-2456, January 25, 1949, 82 Phil. 679). Of course, the case of
protestant who accepts a permanent appointment to a regular office could be different, but We are not ruling on it here.
In De Castro vs. Ginete,12 this Court stated:
The purpose of an election protest is to ascertain whether the candidate proclaimed elected by the board of canvassers is really the
lawful choice of the electorate. What is sought in an election protest is the correction of the canvass of the votes, which is the basis
of the proclamation of the winning candidate. An election contest involves a public office in which the public has an interest.
Certainly, the act of a losing candidate of recognizing the one who is proclaimed the winner should not bar the losing candidate
from questioning the validity of the election of the winner in the manner provided by law.
The factual milieu in these cases is not on all fours with the instant protest.
In Sibulo vda. de De Mesa, as in the later case of Silverio vs. Castro,13 the protestee had been proclaimed the winning mayoralty
candidate and had assumed office, and then died during the pendency of the election protest. While in Lomugdang, it was the
protestant who died during the pendency of the protest.
In Moraleja, the election protest survived the protestant's acceptance of temporary employment during the pendency of his election
protest. Likewise, in De los Angeles vs. Rodriguez,14 cited in Sibulo vda. de De Mesa, an election protest was continued despite the
resignation from office of the protestee.
Finally, in De Castro, the only issue presented was whether the protest should be dismissed on the ground of estoppel. In this
proceeding, the protestant congratulated the protestee after the latter was proclaimed the winner by the board of canvassers and
even exhorted those present during the inauguration and installation into office of the protestee to support the latter's
administration.
May the above dicta apply to the case of Protestant Santiago who assumed the office of Senator after her election as such in the 8
May 1995 election? This question was impliedly raised but not resolved in Moraleja. For after holding that the acceptance by the
protestant therein of a temporary appointment during the pendency of his protest did not amount to an abandonment thereof, nor
could it be considered inconsistent with his determination to protect and pursue the public interest involved in the election protest,
this Court noted: "Of course, the case of a protestant who accepts a permanent appointment to a regular office could be different,
but We are not ruling on it here."15
Indeed, it would be entirely different where the protestant pursued the new position through a popular election, as in the case of
Protestant Santiago who filed a certificate of candidacy for Senator in the 8 May 1995 election, campaigned for such office, and
submitted herself to be voted upon. She knew that the term of office of the Senators who would then be elected would be six years,
to commence at noon on the thirtieth day of June next following their election 16 and to end at noon of 30 June 2001. Knowing her
high sense of integrity and candor, it is most unlikely that during her campaign, she promised to serve the electorate as Senator,
subject to the outcome of this protest. In short, she filed her certificate of candidacy for the Senate without any qualification,
condition, or reservation.
In so doing, she entered into a political contract with the electorate that if elected, she would assume the office of Senator,
discharge its functions and serve her constituency as such for the term for which she was elected. These are givens which are in full
accord with the principle enshrined in the Constitution that, public office is a public trust, and public officers and employees must
at all times be accountable to the people and serve them with utmost responsibility, integrity, loyalty and efficiency. 17
Indeed, it has been aptly said:
It is impossible that government shall be carried on, and the functions of civil society exercised, without the aid and intervention of
public servants or officers, and every person, therefore, who enters into civil society and avails himself of the benefits and
protection of the government, must owe to this society, or, in other words, to the public, at least a social duty to bear his share of
the public burdens, by accepting and performing, under reasonable circumstances, the duties of those public offices to which he
may be lawfully chosen.18
In this jurisdiction, an elected public official may even be held criminally liable should he refuse to discharge an elective office.19
The term of office of the Senators elected in the 8 May 1995 election is six years, the first three of which coincides with the last
three years of the term of the President elected in the 11 May 1992 synchronized elections. The latter would be Protestant
Santiago's term if she would succeed in proving in the instant protest. that she was the true winner in the 1992 elections. In
assuming the office of Senator then, the Protestant has effectively abandoned or withdrawn this protest, or at the very least, in the
language of Moraleja, abandoned her "determination to protect and pursue the public interest involved in the matter of who is the
real choice of the electorate." Such abandonment or withdrawal operates to render moot the instant protest. Moreover, the
dismissal of this protest would serve public interest as it would dissipate the aura of uncertainty as to the results of the 1992
presidential election, thereby enhancing the all too crucial political stability of the nation during this period of national recovery.
It must also be stressed that under the Rules of the Presidential Electoral Tribunal, an election protest may be summarily dismissed,
regardless of the public policy and public interest implications thereof, on the following grounds:
(1) The petition is insufficient in form and substance;
(2) The petition is filed beyond the periods provided in Rules 14 and 15 hereof;
(3) The filing fee is not paid within the periods provided for in these Rules;
(4) The cash deposit, or the first P100,000.00 thereof, is not paid within 10 days after the filing of the protest; and
(5) The petition or copies thereof and the annexes thereto filed with the Tribunal are not clearly legible. 20
Other grounds for a motion to dismiss, e.g., those provided in the Rules of Court which apply in a suppletory character, 21 may
likewise be pleaded as affirmative defenses in the answer. After which, the Tribunal may, in its discretion, hold a preliminary
hearing on such grounds.22 In sum, if an election protest may be dismissed on technical grounds, then it must be, for a decidedly
stronger reason, if it has become moot due to its abandonment by the Protestant.
II.
There is yet another reason why this case should now be dismissed.
This Tribunal cannot close its eyes to the fact that the Protestant has decided to waive the revision of the remaining unrevised
ballots from 4,017 precincts out of the 17,527 precincts of the designated three pilot areas. This is an unabashed reversal from her
original stand in her Motion and Manifestation dated 18 October 1993. Taking this into account, this Tribunal declared in its
resolution of 21 October 1993:
After deliberating on the foregoing pleadings and the arguments of the parties, the Tribunal rules for the Protestant insofar as the
revision of the remaining ballot boxes from her pilot areas are concerned, and against the immediate application of Rule 61 of the
Rules of the Tribunal to the Protestee in respect of the Counter-Protest.
At this stage of the proceedings in this case it cannot be reasonably determined whether the revised ballots are "considerable"
enough to establish a trend either in favor of or against the Protestant as would justify an appropriate action contemplated in Rule
61 of the Rules of the Tribunal, or whether the unrevised ballots from said areas would not, in the language of the Protestant,
"materially affect the result of the representative sample of the ballot boxes so far revised." As to the 1,300 ballot boxes from
Makati, the proper time to raise the objections to the ballot boxes and its contents would be during the revision stage.
Consequently, we resolved therein to:
A. ORDER the revision of the remaining unrevised ballot boxes enumerated in the aforequoted paragraph A of the 5 October 1993
Resolution and for that purpose to DIRECT the Acting Clerk of Court of the Tribunal to collect said ballot boxes and other election
documents and paraphernalia from their respective custodians in the event that their revisions in connection with other election
protests in which they are involved have been terminated, and if such revisions are not yet completed, to coordinate with the
appropriate tribunal or court in which such other election protests are pending and which have already obtained custody of the
ballot boxes and started revision with the end in view of either seeking expeditious revisions in such other election protests or
obtaining the custody of the ballot boxes and related election documents and paraphernalia for their immediate delivery to the
Tribunal; and
B. REQUIRE the Protestant to inform the Tribunal, within ten (10) days from receipt hereof, if after the completion of the revision of
the ballots from her pilot areas she would present evidence in connection therewith.
Until the present, however, the Protestant has not informed the Tribunal whether after the completion of the revision of the ballots
from her pilot areas, she still intends to present evidence in connection therewith. This failure then, is nothing short of a manifest
indication that she no longer intends to do so.
It is entirely irrelevant at this stage of the proceedings that the Protestant's revisors discovered in the course of the revisions alleged
irregularities in 13,510 out of the 17,525 contested precincts in the pilot areas and have objected to thousands of ballots cast in
favor of the Protestee. Revision is merely the first stage, and not the alpha and omega, of an election contest. In no uncertain terms
then, this Tribunal declared in its resolution of 18 March 1993 that:
Protestant knows only too well, being a lawyer and a former judge herself, that the revision phase of her protest is but the first
stage in the resolution of her electoral protest and that the function of the revisors is very limited. In her 12 February 1993
Comment on Protestee's 5 February 1993 Urgent Motion for the issuance of a resolution which, inter alia, would clarify that revisors
may observe the objections and/or claims made by the revisors of the other party as well as the ballots subject thereof, and record
such observations in a form to be provided for that purpose, Protestant unequivocally stated:
8. Further, the principle and plan of the RPET [Rules of the Presidential Electoral Tribunal] is to subdivide the entire election
contest into various stages. Thus, the first stage is the Revision Proper. Second is the technical examination if so desired by either
party. Third is the reception of evidence. And Fourth, is the filing of parties' memoranda.
and described the function of the revisors as "solely to examine and segregate the ballots according to which ballots they would like
to contest or object (contested ballots) and those which they admit or have no objections (uncontested ballots)." Indeed, revisors do
not have any judicial discretion; their duties are merely clerical in nature (Hontiveros vs. Altavas, 24 Phil. 632 [1913]). In fact, their
opinion or decision on the more crucial or critical matter of what ballots are to be contested or not does not even bind the Tribunal
(Yalung vs. Atienza, 52 Phil. 781 [1929]; Olano vs. Tibayan, 53 Phil. 168 [1929]). Thus, no undue importance may be given to the
revision phase of an election contest. It can never serve as a logical or an acceptable basis for the conclusion that massive fraud or
irregularities were committed during an election or that a Protestant had won in said election. If that were so, a Protestant may
contest all ballot boxes and, in the course of the revision thereof, object for any imagined ground whatsoever, even if the same be
totally unfounded and ridiculous to all ballots credited to the Protestee; and then, at the end of the day, said Protestant may even
announce to the whole world that contrary to what is reflected in the election returns, Protestee had actually lost the elections.
All told, a dismissal of this election protest is inevitable.
III.
However, three Members of the Tribunal outrightly disagree with the foregoing disquisitions. Hence, a reply to the important points
they raise is in order.
Mr. Justice Puno's perception that the majority would dismiss this "election protest as moot and academic on two (2) grounds: first,
that the findings of irregularities made by the revisors of the protestant in the course of the revision of ballots in 13,510 contested
precincts are entirely irrelevant; and second, she abandoned her protest when she filed her certificate of candidacy in the 8 May
1995 senatorial elections," is inaccurate. The dispositive portion of this resolution leaves no room for any doubt or
miscomprehension that the dismissal is based on the ground that the protest "has been rendered moot and academic by its
abandonment or withdrawal by the Protestant as a consequence of her election and assumption of office as Senator and her
discharge of the duties and functions thereof." There is, therefore, ONLY ONE reason or ground why the protest has been rendered
moot and academic, i.e., it has been abandoned or withdrawn. This was the very issue upon which the parties were required, in the
resolution of 26 September 1995, to submit their respective memoranda.
The majority neither conveyed, asserted nor even suggested, as Mr. Justice Puno has apparently understood, that this protest has
become moot and academic because the finding of irregularities by the Protestant's revisors in the course of the revision of the
ballots in 13,510 contested precincts in the pilot areas are "entirely irrelevant," and that the Protestant has abandoned this protest
by filing a certificate of candidacy for the office of Senator in the 8 May 1995 elections. The majority's views on "irrelevancy" and "on
the filing of the certificate of candidacy" are not the grounds themselves, but parts only of the arguments to strengthen the
conclusion reached, i.e., abandonment. Otherwise stated, in order to make the point crystal clear, the majority never held that the
irrelevancy of the finding of irregularities is a ground why this protest has become moot and academic. It only declared that the
Protestant's: (a) waiver of revision of the unrevised ballots from the remaining 4,017 contested precincts in the pilot areas; and (b)
failure to comply with the resolution of 21 October 1995 requiring her to inform the Tribunal within ten days from notice if she
would still present evidence after completion of the revision of the ballots from her pilot areas rendered such "findings" of
irregularities entirely irrelevant considering the Tribunal's disquisitions on what revision is in its 18 March 1993 resolution.
In his dissent, Mr. Justice Puno lifted the words "entirely irrelevant"; from the fourth paragraph under the heading "II" of this
Resolution. It must, however, be stressed that the said paragraph is inexorably linked to the preceding two paragraphs relating to
the above-mentioned waiver and non-compliance, which provide the major premises for the fourth paragraph; more concretely, the
latter is nothing more than the logical conclusion which the major premises support.
The reasons adduced by Mr. Justice Puno for the Protestant's turn-around are mere speculations. In any event, the protestant's
possible "belief . . . that the contested ballots in 13,500 precincts when properly appreciated will sufficiently establish her electoral
victory," cannot stand against her previous insistence to proceed with the revision of the remaining unrevised ballots and the
aforementioned finding of the Tribunal in its resolution of 21 October 1993. The Tribunal is not to blame for "the slow pace of the
protest," if at all she so believes in such a state of things. Neither can the thought of cutting costs be a valid reason. The Protestant
knew from the outset that the revision of the ballots in the pilot areas was a crucial phase of this protest because, under Rule 61 of
the Rules of the Tribunal, the protest could forthwith be dismissed if the Tribunal were convinced that she would probably fail to
make out a case but only after examination of the ballots from the pilot areas and the evaluation of the evidence offered in
connection therewith. It goes without saying that every ballot then in the pilot areas counts.
Then too, it was never the view of the majority that the Protestant's filing of the certificate of candidacy for a seat in the Senate in
the 8 May 1995 election was the sole and exclusive operative act for what Mr. Justice Puno perceives to be the majority's second
ground why this protest has become moot and academic. To the majority, such filing was only the initial step in a series of acts
performed by the Protestant to convincingly evince her abandonment of this protest, viz., campaigning for the office of Senator,
assumption of such office after her election and her discharge of the duties and functions of the said office. Precisely, in the
resolution of 26 September 1995, this Court directed the Protestant and the Protestee to submit their respective memoranda on the
issue
[o]f whether or not the protest has not been rendered moot and academic by the election of the Protestant as Senator and her
subsequent assumption of office as such on 30 June 1995. (emphasis supplied)
As to the concept of abandonment, Mr. Justice Puno and Mr. Justice Kapunan cite Black's Law Dictionary and the cases of Roebuck
vs. Mecosta Country Road Commission,23 Dober vs. Ukase Inv. Co., 24 and McCall vs. Cull,25 cited therein. We have turned to the
primary sources of these cases, meticulously perused them, and found none materially significant to this protest.
The first two cases above refer to abandonment of property. Roebuck involved the issue of whether a roadway had been abandoned
by the Mecosta Road Commission. The Court therein held that in order for there to be an abandonment of land dedicated to public
use, two elements must concur, viz., (a) intention to relinquish the right or property, but without intending to transfer title to any
particular person; and (b) the external act which such intention is carried into effect. While Dober, on the issue of whether the
plaintiff therein abandoned a certain property, quoted Corpus Juris that the intention to abandon must be determined from the
facts and circumstances of the case. There must be a clear, unequivocal and decisive act of the party to constitute abandonment in
respect of a right secured an act done which shows a determination in the individual not to have a benefit which is designed for him.
It is, of course, settled that a public office is not deemed property. 26
Only McCall involved the issue of abandonment of office. It is stated therein as follows:
Abandonment is a matter of intention and, when thought of in connection with an office, implies that the occupant has quit the
office and ceased to perform its duties. As long as he continues to discharge the duties of the office, even though his source of title
is two appointments, one valid and the other invalid, it cannot be said he has abandoned it. It was said in Steingruber v. City of San
Antonio, Tex. Com. App., 220 S.W. 77, 78: "A public office may be abandoned. Abandonment is a species of resignation. Resignation
and abandonment are voluntary acts. The former is a formal relinquishment; the latter a relinquishment through non-user.
Abandonment implies non-user, but non-user does not, of itself, constitute abandonment. The failure to perform the duties
pertaining to the office must be with actual or imputed intention on the part of the officer to abandon and relinquish the office.
The intention may be inferred from the acts and conduct of the party, and is a question of fact. Abandonment may result from an
acquiescence by the officer in his wrongful removal or discharge, but, as in other cases of abandonment, the question of intention is
involved.
Strictly speaking, McCall is inapplicable to this protest for, as correctly stated in the dissent of Mr. Justice Kapunan, the Protestant
could not abandon the office of President which she was not holding at the time she filed the certificate of candidacy for Senator.
But the majority of the Tribunal never declared, nor even implied, that she abandoned the office of President because it knew that
she had yet nothing to abandon. Precisely, she filed this protest to be declared the winner for that office, to thereafter assume and
perform the duties thereof, and exercise the powers appertaining thereto. What the Tribunal explicitly states is that the Protestant
abandoned this Protest, thereby rendering this protest moot.
Mr. Justice Puno also insists that abandonment raises a question of fact and that the Tribunal cannot resolve it "for lack of
competent evidence"; moreover, he notes that the Protestee "has not adduced evidence which can be the basis for a finding that she
intentionally abandoned her protest; on the contrary, the Protestee does not want the protest to be dismissed on a technicality but
prays that it be decided on the merits." Suffice it to say that the Protestant herself has not denied nor questioned the following
facts, which by themselves, constitute overwhelming proof of the intention to abandon the protest:
(a) Filing of a certificate of candidacy for Senator for the 8 May 1995 elections;
(b) Campaigning for the office of Senator in such election;
(c) Taking her oath of office as Senator upon the commencement of the term therefor;
(d) Assumption of office as Senator; and
(e) Discharge and performance of the duties appertaining to the office of Senator.
These acts speak for themselves res ipsa loquitur to negate any proposition that the Protestant has not abandoned this protest.
Thus, what initially appears to be the correct view in the dissent is, in the final analysis, misplaced. This must also be the verdict
upon the following pronouncements of Mr. Justice Puno:
A more fundamental reason prevents me from joining the majority. With due respect, I submit that the majority ruling on
abandonment is inconsistent with the doctrine that an election contest is concerned less with the private interest of the candidates
but more with public interest. Under a republican regime of government, the overarching object of an election contest is to seek
and enforce the judgment of the people on who should govern them. It is not a happenstance that the first declaration of policy of
our Constitution underlines in bright that "sovereignty resides in the people and all government authority emanates from them." The
first duty of a citizen as a particle of sovereignty in a democracy is to exercise his sovereignty just as the first duty of any reigning
government is to uphold the sovereignty of the people at all cost. Thus, in Moraleja vs. Relova, we emphatically held that ". . . once
the court has acquired jurisdiction over an election contest, the public interest involved demands that the true winner be known
without regard to the wishes or acts of the parties so much so that there can be no default, compromise nor stipulation of facts in
this kind of cases." Wisely, this Tribunal has consistently demurred from dismissing election contests even on the ground of death of
the protestee or the protestant.
The majority appears to stray away from this lodestar of our Constitution. It will dismiss the case at bar even while the protestee
and the protestant are yet alive, even while the term of the 1992 president-elect has yet to expire, and even while the protestee
and the protestant together plead, that the Tribunal should determine the true will of the people by deciding their dispute on the
merit[s] and not on technicalities that trifle with the truth. I submit that it is the better stance for the Tribunal to decide this
election contest on the merit[s] and vindicate the political judgment of the people which far surpasses in significance all other
considerations. Our duty to tell the people who have the right to govern them cannot depend on the uncertain oscillations of politics
of the litigants as often times they are directed by the wind of convenience, and not by the weal of the public.
For one, the majority has, in no uncertain terms, demonstrated the dissimilarities in the factual settings of the instant protest vis-a-
vis the earlier cases that enunciated the doctrine relied on by Mr. Justice Puno. Then, too, it must be reiterated, to avoid further
miscomprehension, that the Moraleja ruling even conceded that the matter of abandonment "could be different" if the petitioner
therein had accepted "a permanent appointment to a regular office" during the pendency of his protest. In short, Moraleja in fact
intimates abandonment of an election protest if, in the meantime, the Protestant accepts a permanent appointment to a regular
office. If that be so, then would it be, and for weightier reasons, against a protestant who voluntarily sought election to an office
whose term would extend beyond the expiry date of the term of the contested office, and after winning the said election, took her
oath and assumed office and thereafter continuously serves it.
In Moraleja, the Supreme Court was meticulous in excluding abandonment from the enumeration of specific "acts or wishes" of the
parties which must be disregarded because of the public interest component of an election protest. As reflected in the above
quotation from Mr. Justice Puno's dissent, only default, compromise, or stipulation of facts are included.
Finally, with all due respect, the above pronouncement of Mr. Justice Puno forgets that, as distinctly pointed out in the early part of
this Resolution, the Rules of the Tribunal allow summary dismissal of election protests even for less important grounds, to repeat,
such as the petition filed with the Tribunal or the annexes attached thereto are not clearly legible, or the filing fees and cash
deposits were not filed within the periods fixed in the Rules,27 and the additional provision for dismissal under Rule 61. All these
provisions of the Rules would then be put to naught or, at the very least, modified or amended in a way not authorized by the Rules,
if the theory of Mr. Justice Puno be accepted. Such theory would unreasonably bind the Tribunal to the technical minutiae of trial
on the merits to bring to their ultimate end all protests or contests filed before it including those filed by candidates who even
forgot to vote for themselves and obtained no votes in the final count, but, unable to accept defeat, filed a protest claiming
massive fraud and irregularities, vote-buying, and terrorism. Consequently, all the time and energy of the Justices of the Supreme
Court would be spent appreciating millions of revised ballots to the prejudice of their regular judicial functions in the Court, as the
electoral protest of every Juan, Pedro, and Jose who lost in the presidential elections would have to be heard on the merits. Public
policy abhors such a scenario and no public good stands to be thereby served.
WHEREFORE, the Tribunal hereby resolved to
(1) GRANT the Protestant's Motion of 16 August 1995 to dispense with the revision of ballots and other election documents in the
remaining precincts of the pilot areas;
(2) DISMISS the instant election protest, since it has been rendered moot and academic by its abandonment or withdrawal by the
Protestant as a consequence of her election and assumption of office as Senator and her discharge of the duties and functions
thereof; and
(3) DISMISS, as a consequence, the Protestee's Counter-Protest.
No pronouncements as to costs.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero and Hermosisima, Jr., JJ., concur.
Melo, J., concurs in the result.
Panganiban, J., took no part.

Separate Opinions
PADILLA, J., concurring and dissenting:
I concur in the Tribunal's Resolution dismissing the present protest and, as a consequence, the counter-protest. My concurrence is
anchored not on the merits of the protest and counter-protest since they have not reached the period of appreciation or evaluation
of the ballots nor on the failure of protestant to comply with procedural requirements, but simply upon the protestant's assumption
and discharge of office as a Senator of the Republic after the 8 May 1995 elections.
Protestant's candidacy for Senator in the 8 May 1995 elections, her election to said office and her actual assumption and discharge
of the office, combined to constitute, in my view, a supervening fact that rendered moot and academic her present protest
because, if she were to pursue her present protest (without such supervening fact) and, if she were to win the protest, her term of
office as President of the Philippines would in any case expire on 30 June 1998. When she, however, chose to run for Senator in the
8 May 1995 elections, which was after her filing of the present protest, she knew that, if elected, her term of office as Senator
would expire only on 30 June 2001. Therefore, as a successful protestant in this case, she could be President only up to 30 June
1998. What happens then to the last three (3) years of her term as Senator, i.e., 30 June 1998 to 30 June 2001? There would be a
void, a hiatus or vacuum because after serving as President up to 30 June 1998, she can no longer assume the office of Senator from
30 June 1998 to 30 June 2001. There would likewise be a void, a hiatus or vacuum in her term of office as Senator from the time she
assumes the presidency to 30 June 1998 (assuming she were to win the present protest). Thus, by continuing this protest, there
could result an ensuing vacuum in the office of Senator, to which position protestant has been duly elected subsequent to the filing
of her present protest. And yet, natura vacuum abhorret. (Nature abhors a vacuum).
Public policy-wise, it is also not fair to the people to elect a Senator for six (6) years and yet, he or she will serve for less than that
period. In other words; by voluntarily opting to become a Senator of the land with a term of office expiring on 30 June 2001,
protestant must be deemed to have abandoned this protest which, if successfully pursued, would at most bring her only up to 30
June 1998 in the office of the President, with the last three (3) years of her term as Senator going to waste, in terms of loss of
people's representation in the Senate.
I repeat that in this protest, protestant seeks to be declared as the truly elected President up to 30 June 1998. In the 8 May 1995
elections, however, she was elected Senator for a term ending on 30 June 2001. As Senator, she has become a member of the
legislative department of government impressed with the duty, among others, to fiscalize the executive. She cannot, in my view,
opt to fiscalize the executive until she herself becomes the executive, at which point, she will abandon the fiscalizing duty
entrusted to her by the people. She must choose only one of the two (2) positions involved; she cannot have both within overlapping
periods of time. And she, in fact, made the choice becoming and qualifying as a Senator of the Republic from 30 June 1995 to 30
June 2001.
It appears clear that the people (electorate) expect her to perform dutifully, creditably and successfully in the position of her last
and most recent choice.
She should, in my considered view, be deemed to have abandoned or waived her claim to the Presidency of the Republic, at least
until 30 June 1998, when she can run for the said office without relinquishing or forfeiting her seat as Senator (See Sec. 67, Art. IX,
BP 881).
Bellosillo, J., concurs.

Dissenting Opinions
PUNO, J., dissenting:
The presidential election of May 11, 1992 was a watershed in our political history. The first presidential election after the EDSA
revolution, it was a test to determine whether our people were ready to reexercise their sovereignty vitiated during the
authoritarian years. It was also a test to ascertain the capability of government to hold clean, honest, and credible elections. It
attracted the keen interest of many and no less than seven (7) candidates vied for the presidency.1 After the smoke of election
battle cleared, candidate Fidel V. Ramos was proclaimed winner. He garnered 5,342,571 votes while candidate M. Defensor-Santiago
took the second place as she obtained 4,465,173 votes. 2 Soon, murmurs and whispers of fraud filled the air with all the candidates,
including the winner, alleging that they were victims of election irregularities. The losers were urged to seek judicial relief but only
M. Defensor-Santiago dared to file an election protest; a remedy derisively dismissed by some as a chase of a chimera. The others
left their grievance to the tribunal of the people's conscience.
Mrs. Santiago formally filed her election protest on July 20, 1992. Paragraph 3 of her Protest capsulizes her cause of action, viz.:
xxx xxx xxx
3. In violation of the Constitution and specific statutory provisions, the protestee in conspiracy with top officials of the then reigning
administration used government funds like the rebel returnee funds, the BALGU AND NALGU funds, among others, and government
facilities like radio and television networks as well as transportation facilities to campaign for the protestee and buy out whole
slates of candidates, voters, watchers and members of the board of election inspectors/tellers, election registrars and other
Comelec officials, other strategic officials in government as well as other individuals to manipulate, tamper, change, replace, alter,
switch ballots and election returns and other election documents including certificates of canvass and statement of votes by
precinct and municipality, print ballots and stuff them in ballot boxes, the results of the election in favor of the protestee.
On September 22, 1992, after the filing of the Answer of the protestee containing a counter protest, this Tribunal ordered the
protestant to pinpoint the three (3) areas that "best exemplify the frauds and irregularities committed in the 1992 presidential
election." The protestant specified the pilot areas as Metro Manila, Pampanga, and Zamboanga involving a total of seventeen
thousand five hundred twenty-seven (17,527) precincts. Revision of ballots in these pilot areas proceeded though it suffered some
delay primarily because the same ballots were also used as evidence in the election protest filed by Cielo Macapagal-Salgado against
Bren Giuao involving the governorship of Pampanga and the election protest filed by Augusto Syjuco against Joker Arroyo involving
the then lone congressional seat in Makati.
On August 16, 1995, protestant filed a Motion alleging that the ballots and other election documents in thirteen thousand five
hundred ten (13,510) precincts out of the seventeen thousand five hundred twenty-seven (17,527) precincts in the pilot areas had
already been revised. She prayed ". . . that the revision of ballots and other election documents in the remaining precincts of the
pilot areas be dispensed with and the revision process of the pilot areas be deemed completed." We deferred our ruling on the
prayer of the protestant.
It is of public notice that the protestant filed her certificate of candidacy in the election of May 8, 1995 for senator. She won and
was proclaimed and now discharges the duties of the office.
The majority would dismiss protestant's election protest as moot and academic on two (2) grounds: first, that the findings of
irregularities made by the revisors of the protestant in the course of the revision of ballots in 13,510 contested precincts are entirely
irrelevant; and second, she abandoned her protest when she filed her certificate of candidacy in the May 8, 1995 senatorial
elections.
With due respect, I dissent.
The majority holds that "it is entirely irrelevant at this stage of the proceedings that the protestant's revisors discovered in the
course of the revisions alleged irregularities in 13,510 out of the 17,525 contested precincts in the pilot areas." The majority noted
the protestant's decision to waive the revision of the remaining unrevised ballots from 4,017 precincts. It also noted the failure of
the protestant to inform the Tribunal whether she still intends to present additional evidence after the completion of the revision of
the ballots from the pilot areas.
I will not count against the protestant her decision to waive revision of the ballots from 4,017 precincts. Without engaging in
speculation, it seems to me obvious that the protestant made the waiver because of her belief, rightly or wrongly, that the
contested ballots in 13,500 precincts when properly appreciated will sufficiently establish her electoral victory. It is also apparent
that the protestant is wary of the slow pace of the protest and she felt that the waiver will at least shorten the lengthening odds of
time against her. Indubitably too, the waiver will enable her to cut the cost of her protest.
Nor will I make any adverse inference from the alleged failure of the protestant to inform this Tribunal whether she would still be
presenting evidence to support the allegations of fraud and irregularities made by her revisors. The records show that in a motion
dated August 16, 1995, she prayed that the revision of ballots in the remaining precincts of the pilot areas be deemed completed.
The Tribunal has not acted on this motion, hence, the process of revision of ballots is not formally finished. Since the Tribunal has
not formally declared the termination of the process of revision, it is not timely for protestant to manifest whether or not she would
adduce further evidence to prove her claim of fraud and irregularities. In any event, if the Tribunal entertains any doubt on the
matter it should issue an Order requiring the protestant to make clear whether or not she intends to exercise her right to present
further evidence. Valuable rights need not be lost on the basis of equivocal acts and omissions.
Prescinding from these premises, I will not dismiss as entirely irrelevant the allegations of the revisors of the protestant that they
discovered in the course of the revision irregularities in 13,510 precincts in the pilot areas. The protestant still has the opportunity
to adduce further evidence to prove her case. She can still undertake to make a technical examination of the ballots through
handwriting experts. She can still present the testimonies of witnesses like voters, watchers, inspectors and others who have
knowledge of the alleged fraud and irregularities. She can still submit a memorandum of facts and law to clinch her case. It is only
after the protestant has been afforded the opportunity to exercise these rights that the Tribunal can proceed to examine the
contested ballots. Then and only then can the Tribunal rule whether or not the protestant failed to make a case.
It can be assumed arguendo that the protestant has lost her right to present additional evidence by her failure to invoke it within a
reasonable time. Even then, I submit that the non-presentation of further evidence is not necessarily fatal. Certain types of fraud
and irregularities can be proved without the testimonies of handwriting experts or the testimonies of voters, watchers, inspectors
and others who witnessed the same. There are fraud and irregularities which are patent on the face of the ballots and other
election documents and paraphernalia. Ballots that are marked, ballots that are spurious, ballots written by the same hand, a ballot
written by different hands, tampered tally sheets, false list of voters, falsified election returns, and other election documents can
be appreciated without need of evidence aliunde. For this reason, the Tribunal cannot evade the duty to examine the protested
ballots for the ballots are the best evidence to enable the court to determine the votes obtained by the protestant and the
protestee.3 Needless to state, until the Tribunal examines and appreciates the protested ballots it cannot dismiss the protest.
I do not also subscribe to the ruling of the majority that the protestant abandoned her protest when she ran for Senator and
discharged her duties. Abandonment in law means "voluntary relinquishment of all right, title, claim . . . with the intention of not
reclaiming it,"4 In ascertaining abandonment, whether in election, property, or criminal litigations, ". . . intention is the first and
paramount object of inquiry for there can be no abandonment without the intent to abandon."5 Intention is subjective and can be
inferred from the acts and conduct of a person. It is a question of fact. 6
In the case at bar, the Tribunal cannot resolve this question of fact for lack of competent evidence. The protestee has not adduced
evidence to prove acts and omissions of the protestant which can be the basis for a finding that she intentionally abandoned her
protest. Indeed, the protestee does not want the protest to be dismissed on a technicality but prays that it be decided on the
merits. The lack of competent evidence on record notwithstanding, the majority ruled, to wit:
. . . She knew that the term of office of the Senators who would then be elected would be six (6) years, to commence at noon on
the thirtieth day of June next following their election and to end at noon of 30 June 2001. Knowing her high sense of integrity and
candor, it is most unlikely that during her campaign she promised to serve the electorate as Senator, subject to the outcome of this
protest. In short, she filed her certificate of candidacy for the Senate without any qualification, condition or reservation. (Emphasis
supplied).
Clearly, the majority merely relied on a deduction to support its conclusion that the protestant did not make any promise to serve
the electorate as a Senator subject to the outcome of this protest. It deduced this conclusion from its knowledge of protestant's
"high sense of integrity and candor." The argument is a non sequitur. If the protestant has candor, the conclusion ought to be that
she should have bared to the electorate the pendency of her protest.
A more fundamental reason prevents me from joining the majority. With due respect, I submit that the majority ruling on
abandonment is inconsistent with the doctrine that an election contest is concerned less with the private interest of the candidates
but more with public interest. Under a republican regime of government, the overarching object of an election contest is to seek
and enforce the judgment of the people on who should govern them. It is not a happenstance that the first declaration of policy of
our Constitution underlines in bright that "sovereignty resides in the people and all government authority emanates from them."7
The first duty of a citizen as a particle of sovereignty in a democracy is to exercise his sovereignty just as the first duty of any
reigning government is to uphold the sovereignty of the people at all cost. Thus, in Moraleja vs. Relova,8 we emphatically held that
". . . once the court has acquired jurisdiction over an election contest, the public interest involved demands that the true winner be
known without regard to the wishes or acts of the parties so much so that there can be no default, compromise nor stipulation of
facts in this kind of cases." Wisely, this Tribunal has consistently demurred from dismissing election contests even on the ground of
death of the protestee or the protestant.9
The majority appears to stray away from this lodestar of our Constitution. It will dismiss the case at bar even while the protestee
and the protestant are yet alive, even while the term of the 1992 president-elect has yet to expire, and even while the protestee
and the protestant together plead that the Tribunal should determine the true will of the people by deciding their dispute on the
merit and not on technicalities that trifle with the truth. I submit that it is the better stance for the Tribunal to decide this election
contest on the merit and vindicate the political judment of the people which far surpasses in significance all other considerations.
Our duty to tell the people who have the right to govern them cannot depend on the uncertain oscillations of politics of the litigants
as often times they are directed by the wind of convenience, and not by the weal of the public.
I proffer this postulate only because of the dominant public interest involved in the case at bar. This case does not involve an
obscure office but the presidency. It concerns the first presidential election after the EDSA revolution. Only 877,398 votes separate
the protestee and the protestant. Ballots in 13,500 precincts are contested by the revisors of the protestant which if found correct
can materially affect the results of the election. The protestant has charged that nationwide irregularities were committed in the
elections. The protestee, on the other hand, dismisses the protest as merely intended to keep the protestant in the limelight in
preparation for her senatorial campaign. Even the protestee has pleaded that the protest be tried on its merit as it involves a
matter of paramount and grave public interest. Considering these distinct facts, the Tribunal should not dismiss the protest on the
ground of mootness.
To be sure, the majority cultures the thesis that the dismissal of the case at bar will ". . . serve public interest, as it would dissipate
the aura of uncertainty on the results of the 1992 presidential election." Dismissing the case on the tenuous technicality that it has
become moot and academic will not tell the people who really won the last presidential election. Only the light of truth can pierce
the uncertainty that has enveloped its results. It is with reason that the protestant has been joined by the protestee in the plea that
this Tribunal decide their case on its merit so that once and for all, its result will be free from the badgerings of doubt. I join their
plea for the people deserve the whole truth and in an election context a half-truth is a lie. I vote to continue hearing the election
protest at bar and decide it on the merit without unnecessary delay.
Francisco, J., concurs.

VITUG, J., dissenting:

With all due respect, I find it rather difficult to agree with my peers on the dismissal by the Presidential Electoral Tribunal of P.E.T.
Case No. 001 simply for its being moot and academic.
It seems clear to me that neither the protestant nor the protestee would want the case dismissed outrightly on a technicality. The
parties have expressed, both to their honor and credit, the view that it would instead be best to have the protest resolved on its
merits in order to dispel any cloud of uncertainty on the choice of the electorate. The people themselves, I should think, are no less
than keen in wanting to see the outcome of the protest. I am hardput, in fact, in trying to reconcile the resolution of the Tribunal
with the pronouncement repeatedly made by the Supreme Court in previous cases, i.e., that an election contest not only concerns
an adjudication of private interests but also calls for an imperative response to a paramount public need. Let it be here stressed
that the office in question pertains to the highest position of the land.
The submission that the protestant is deemed to have abandoned her protest because she ran in the May 1995 elections for the
position of, and was proclaimed and so eventually took office as, Senator of the Republic is a conclusion, I fear, I am unable to
share. Abandonment is personal, and it must be manifested in unequivocal terms by the person charged with it. If, as it so appears,
the protestant has not to date "informed the tribunal whether (or not) after the completion of the revision of the ballots from her
pilot areas she would present evidence in connection therewith," then the tribunal must act on this basis and decide on whatever it
may have on hand with equal opportunity to the protestee to make his own submission of evidence if still desired.
Considering that there appears to be no constitutional proscriptions involved, I vote to allow the tribunal to proceed with a final
determination on the merits of the protest rather than a dismissal on the mere ground of abandonment.

KAPUNAN, J., dissenting:

I beg to disagree with the thesis that P.E.T. Case No. 001 has been rendered moot and academic as a consequence of the
protestant's election and assumption of office as Senator. The majority in support of its proposition asserts that "(I)n assuming the
office of Senator, the herein Protestant has effectively abandoned or withdrawn this protest . . ." From this premise, the majority
concludes that such abandonment or withdrawal operates to render moot and academic the instant election protest.
When the protestant ran for the Senate last year, she was not the President of the country and there was nothing to relinquish.
Abandonment is the giving up of a thing absolutely, indicating "intention to forsake or relinquish" the same. 1 In relation to public
office, abandonment "must be total and under such circumstance as clearly to indicate an absolute relinquishment."2 That is not the
situation here, because when the protestant ran for presidency, she was not even an elective official and there was no position to
abandon.
Neither do I subscribe to the majority's theory that by filing her certificate of candidacy for the Senate, campaigning for said office
and submitting herself to be voted upon in the elections, the protestant "had entered into a political contract with the electorate
that if elected, she would assume the office of Senator, discharge its functions, and serve her constituency as such for the term for
which she was elected." First, there is no evidence that she made such promise. On the contrary, I believe, she had made herself
clear during the 1995 Senatorial campaign that she was not abandoning her protest, meaning that in the event she would be
declared the winner in the 1992 Presidential elections, she may opt to assume the Presidency, thus shortening her term of office as
Senator. When the voters made their choice for the Senate, they were fully aware that the protestant may not serve the full term of
her office if she wins her protest. Despite this, the voters elected her as Senator. Second, if by filing her certificate of candidacy as
Senator and campaigning for said office, she entered into a contract with the electorate that she will serve the full term of her
office as Senator, in the same token, by filing her certificate of candidacy for the Presidency and campaigning for that office, she
must necessarily have entered into a contract with the electorate that she will serve the full term of the Presidency if elected.
Third, there has been several cases where members of Congress gave up their positions before their terms of office expired to
accept appointments in the cabinet or other high-profile positions. To mention a few, the present Secretary of Justice Teofisto
Guingona gave up his Senate seat a few years ago to become Executive Secretary. Congressman Salvador Escudero has just been
named the new Secretary of Agriculture. Yet, there has not been any murmur that said officials have violated any political contract
with the electorate that elected them to Congress.
Moreover, expecting candidates to sit out and wait during the entire period in which a protest is resolved is unrealistic, and consigns
our most promising men and women in this country to limbo. In many cases, election protests have not been decided promptly for
reasons not necessarily attributable to the electoral bodies. In some instances, the protest had remained undecided before the term
of the disputed office had run out. Given these circumstances, it would be utterly unjust for protestants to do nothing, not accept
or run for public office, and simply wait for the protests to be decided, lest they be deemed to have abandoned them. This would be
tantamount to a denial of the right to run for public office.
The majority would seem to imply that the protestant also abandoned her protest when she (a) waived the revision of the remaining
unrevised ballots from 4,017 precincts and, (b) failed to inform the Tribunal whether she still intends to present additional evidence
after the completion of the revision of the ballots from the pilot areas.
I would not so sweepingly conclude that the protestant abandoned her election protest by her act alone of waiving the revision of
the remaining ballots. Her waiver could have been due to reasons other than that the majority speculatively imputes to her. It could
have been based on her belief that the contested ballots in the 13,500 precincts, if and when properly appreciated, would
sufficiently substantiate the allegations in her petition. Or she could have been impelled by the desire to expedite the electoral
proceedings and minimize her expenses.
With regard to the protestant's failure to inform the Tribunal whether she still intends to present additional evidence after the
completion of the revision of the ballots from the pilot areas (as embodied in the resolution dated 21 October 1993), her "omission,"
likewise, does not amount to a waiver or abandonment of her election protest. Resolution of election cases, it must be stressed, is a
continuous process albeit divided into various stages. These stages revision, technical examination, presentation of evidence and
submission of memoranda are but parts of one whole procedure. Except for the technical examination of the ballots, wherein the
parties are expressly given discretion whether or not to move for one3 after completion of each stage, the proceedings necessarily
move to the next step. The procedure will run its natural course pursuant to the rules of the Presidential Electoral Tribunal (PET).
Since the phases or stages in the electoral protest are laid down in the rules, the parties are supposed to act in accordance with the
sequential order of the proceedings without being required to manifest formally at each stage if they are willing to proceed to the
next one. Hence, waiver of one stage or the remaining stages cannot be impliedly imputed to a party unless there is a manifest
intentional and unequivocal statement or action to this effect. The least the Tribunal should have done was to direct the protestant
to show cause why her protest should not be dismissed for failure to file the required information, which liberal process the Tribunal
customarily accords the parties to find out the reasons for the omission.
The protest cannot, therefore, be lawfully dismissed under Section 61 of the PET rules. Bear in mind that not only revision of the
ballots but also reception of evidence4 is required before the Tribunal can dismiss an election protest on the grounds that "the
protestant will most probably fail to make out his case." In the instant protest, the revision of the ballots has hardly been completed
and presentation of evidence, undoubtedly the most crucial aspect of the proceedings, has yet to commence. To utilize Section 61
of the PET rules to justify dismissal of the instant case at this early stage of the proceedings is to jump the gun on both the
protestant and the protestee.
It should be stressed that no less than the protestee himself has strongly and unequivocably expressed the sentiment in his
memorandum that the protest be resolved on its merits because it involves a matter of paramount and grave public interest and its
resolution would confirm his victory in the presidential election and that it would establish guiding and controlling principles or
doctrines with respect to presidential election protest cases, thereby educating the bench and the bar and preventing indiscriminate
filing of baseless protest cases a commendable gesture in adherence to democratic processes.
Ours is a democracy where sovereignty resides in the people whose sovereign will is expressed through the ballot. It is, therefore, of
paramount public interest that the electoral dispute be settled. Resolving the protest by the mere wave of the judicial wand
without touching on the merits is not fair to the protestant. It is not fair to the Tribunal whose disposition of the case without solid
facts to support it would raise more questions that it could answer and create needless speculations about its motives however well-
intentioned they may be. It is not fair to the people who deserve to know, without the slightest doubt, who they really elected as
President in the 1992 elections. It is, certainly, not fair to the protestee who should not be deprived the opportunity to remove once
and for all whatever cloud that may have been cast on his election as President.
Having granted the protestant's motion of August 16, 1995 to dispense with the revision of ballots and other election documents in
the remaining precincts of the pilot areas where fraud was allegedly rampant, we ought to proceed to the next step, by giving both
parties a chance to present their evidence. Under Rule 61 of the Rules of the Presidential Electoral Tribunal, if, after examination
and proof of such evidence we would be convinced that the protestant would most probably fail to make out her case, then the case
could be dismissed at once. This process would take a little more time, but it is solution which is fair and just to everyone and is the
best way to finally resolve the doubt surrounding the 1992 presidential elections, thus help pave the way to true political stability
and national recovery.
I, therefore, vote to continue with the hearing of the election protest and decide it expeditiously.
Mendoza, J., concurs.

P.E.T. CASE No. 002 March 29, 2005

RONALD ALLAN POE a.k.a. FERNANDO POE, JR., Protestant,
vs.
GLORIA MACAPAGAL-ARROYO, Protestee.
RESOLUTION
QUISUMBING, J.:
The moving finger writes, says Omar Khayyam in the Rubayyat, and having writ, moves on. Nor all your piety nor wit, adds the
poet, could lure it back to cancel half a line; nor all your tears wash out a word of it.
Such is my view on the providential case for our consideration.
Before this Electoral Tribunal, composed pursuant to the Constitution, by all the fifteen members of the Supreme Court, is a matter
of first impression. We are tasked not only to determine, as originally prayed for, who between the Protestant and the Protestee
was the true winner in the May 10, 2004 Presidential Elections, but also to decide now whether the Protestant’s widow (Mrs. Jesusa
Sonora Poe, popularly known as the cinema star Susan Roces) could intervene and/or substitute for the deceased party, assuming
arguendo that the protest could survive his death.
If one were guided by folk wisdom expressed in the adage that in a democracy, the voice of the people is the voice of God, then it
would appear our task had been made easy by fateful events. Past midnight, in the early hours of June 24, 2004, the Congress as the
representatives of the sovereign people and acting as the National Board of Canvassers, in a near-unanimous roll-call vote,
proclaimed Mrs. Gloria Macapagal Arroyo (GMA) the duly elected President of the Philippines. She obtained 12,905,808 votes, as
against 11,782,232 votes for the second-placer, the movie actor Fernando Poe, Jr. (FPJ).1 She took her Oath of Office before the
Chief Justice of the Supreme Court on June 30, 2004.
Refusing to concede defeat, the second-placer in the elections, Mr. FPJ, filed seasonably an election protest before this Electoral
Tribunal on July 23, 2004. Mrs. GMA, through counsel, filed her Answer with Counter Protest on August 5, 2004. As counsels for the
parties exchanged lively motions to rush the presentation of their respective positions on the controversy, an act of God intervened.
On December 14, 2004, the Protestant died in the course of his medical treatment at St. Luke’s Hospital. The medical certificate,
filed by counsel as part of the Notice of Death of the Protestant, showed that he died of cardio-pulmonary arrest, secondary to
cerebral infarction.
However, neither the Protestee’s proclamation by Congress nor the death of her main rival as a fortuitous intervening event,
appears to abate the present controversy in the public arena. Instead, notice may be taken of periodic mass actions,
demonstrations, and rallies raising an outcry for this Tribunal to decide the electoral protest of Mr. FPJ against Mrs. GMA once and
for all. The oracular function of this Tribunal, it would appear, needs to be fully exercised to make manifest here and abroad who is
the duly elected leader of the Filipino nation. All these, despite the fact that the submissions by the parties on their respective
sides in the protest and the counter-protest are thus far, far from completed.
Needless to stress, this Tribunal cannot shirk its constitutional duty. Yet, neither could it go beyond its mandate under the
Constitution and the law. Further, this Tribunal is guided by its Rules, as well as the Rules of Court in a suppletory manner.
Considering the transcendental importance of the electoral contest involving the Presidency, a rush to judgment is simply out of the
question. Yet decide the matter we must, without further delay, to prevent popular unrest and avoid further destabilization of
government at the highest level.
Together with the formal Notice of the Death of Protestant, his counsel has submitted to the Tribunal, dated January 10, 2005, a
"MANIFESTATION with URGENT PETITION/MOTION to INTERVENE AS A SUBSTITUTE FOR DECEASED PROTESTANT FPJ," by the widow,
Mrs. Jesusa Sonora Poe, who signed the verification and certification therein.
As movant/intervenor, Mrs. FPJ claims that because of the untimely demise of her husband and in representation not only of her
deceased husband but more so because of the paramount interest of the Filipino people, there is an urgent need for her to continue
and substitute for her late husband in the election protest initiated by him to ascertain the true and genuine will of the electorate
in the 2004 elections. In support of her assertion, she cites De Castro v. Commission on Elections,2 and Lomugdang v. Javier,3 to the
effect that the death of the protestant does not constitute a ground for the dismissal of the contest nor oust the trial court of the
jurisdiction to decide the election contest. She stresses nevertheless that even if the instant protest case succeeds, she is cognizant
that as a mere substitute she cannot succeed, assume or be entitled to said elective office, and her utmost concern is not personal
but one that involves the public’s interest. She prays, however, that if subsequently determined that the protestee Gloria
Macapagal-Arroyo did not get the highest number of votes for president, for protestee to be disallowed from remaining in office,
and thus prevented from exercising the powers, duties, responsibilities and prerogatives reserved only to the duly-elected president
or her legitimate successor.
In her Comment, the Protestee, Mrs. GMA, relying on Vda. de De Mesa v. Mencias4 and subsequent cases including analogous cases
decided by the House of Representatives Electoral Tribunal (HRET), asserts that the widow of a deceased candidate is not the
proper party to replace the deceased protestant since a public office is personal and not a property that passes on to the heirs. She
points out that the widow has no legal right to substitute for her husband in an election protest, since no such right survives the
husband, considering that the right to file an election protest is personal and non-transmissible.
Protestee also contends Mrs. FPJ cannot substitute for her deceased husband because under the Rules of the Presidential Electoral
Tribunal, only the registered candidates who obtained the 2nd and 3rd highest votes for the presidency may contest the election of
the president and patently, Mrs. FPJ did not receive the 2nd and 3rd highest votes for she was not even a candidate for the
presidency in the election that is being contested.
Citing pertinent PET Rules, protestee also stresses that this Tribunal has no jurisdiction over actions of surviving spouses to ascertain
the vote of the electorate as the Tribunal has jurisdiction only over election protests and quo warranto cases.
According to protestee, movant/intervenor Mrs. FPJ cannot use "the public interest" to justify her request to be substituted for her
husband. "Public interest", i.e. the need to dispel uncertainty over the real choice of the electorate, is applicable only in election
contests, not in an action to merely "ascertain the true and genuine will of the people." She asserts that the only case herein
cognizable by this Tribunal is an election protest involving a protestant and a protestee, not between the electorate and the
protestee. Citing analogous HRET cases, protestee avers that in a case where the protestant, the primary adversary in an election
protest case dies, the public interest in said protest dies with him.
Protestee also contends that in the adversarial nature of a protest case where one of the parties dies, a correct ruling cannot be had
because the dead protestant could no longer refute his adversary’s allegations because death has rendered him hors de combat.
Further citing Defensor-Santiago v. Ramos,5 protestee points out that this Tribunal, nonetheless, confirmed its power to dismiss an
electoral case on technical grounds. She adds that if the Tribunal can do so on a technicality, all the more it could for a stronger
reason, that of protestant’s death.
In her Reply, movant/intervenor argues that reference of protestee to the HRET case of Abadilla v. Ablan,6 was erroneous inasmuch
as said case was a congressional protest and the controlling case is De Castro. She likewise contends that protestant failed to
distinguish between a right to an office which protestant concedes is personal and non-transmissible vis-à-vis the right to pursue the
process which is not personal but imbued with public interest. She likewise stresses that the death of the protestant abolished the
personal/private character of the protest, as protestant’s right to assume if he prevails, necessarily disappears, and the same
cannot be transferred to anyone else, protestant’s widow included. She insists, however, that the public interest remains. Further,
movant/intervenor posits that the protest having been commenced cannot be abated by the death of the protestant and the only
real issue is the determination of the proper substitute. She avers that the Tribunal’s rule is clear on who can commence and
initiate a protest compared to the persons who can initiate a quo warranto. She admits that in the former, only the second and third
placers in the presidential election are authorized to commence the contest, while in the latter, any voter may initiate the petition.
She contends that with no personal interest involved, any registered voter can continue the duly-commenced protest as the real-
party-in-interest which is analogous to a quo warranto. She contradicts protestee and insists that allowing "any voter" to substitute
just like in a quo warranto will not open the floodgate to whimsical protests, and the imagined political instability feared by
protestee will even more be pronounced if the protest is dismissed. Movant/intervenor reiterates that the issue at hand involves just
the continuation of proceedings by allowing substitution and the taking over by the substitute of the prosecution of the protest
already "duly commenced."
Plainly, the issue here is: May the widow substitute/intervene for the protestant who died during the pendency of the latter’s
protest case?
The fundamental rule applicable in a presidential election protest is Rule 14 of the PET Rules. It provides,
Rule 14. Election Protest.–Only the registered candidate for President or for Vice-President of the Philippines who received the
second or third highest number of votes may contest the election of the President or the Vice-President, as the case may be, by
filing a verified petition with the Clerk of the Presidential Electoral Tribunal within thirty (30) days after the proclamation of the
winner.
Pursuant to this rule, only two persons, the 2nd and 3rd placers, may contest the election. By this express enumeration, the rule
makers have in effect determined the real parties in interest concerning an on-going election contest. It envisioned a scenario
where, if the declared winner had not been truly voted upon by the electorate, the candidate who received that 2 nd or the 3rd
highest number of votes would be the legitimate beneficiary in a successful election contest.
This Tribunal, however, does not have any rule on substitution nor intervention but it does allow for the analogous and suppletory
application of the Rules of Court, decisions of the Supreme Court, and the decisions of the electoral tribunals.7
Rule 3, Section 16 is the rule on substitution in the Rules of Court. 8 This rule allows substitution by a legal representative. It can be
gleaned from the citation of this rule that movant/intervenor seeks to appear before this Tribunal as the legal
representative/substitute of the late protestant prescribed by said Section 16. However, in our application of this rule to an election
contest, we have every time ruled that a public office is personal to the public officer and not a property transmissible to the heirs
upon death.9 Thus, we consistently rejected substitution by the widow or the heirs in election contests where the protestant dies
during the pendency of the protest. In Vda. de De Mesa v. Mencias,10 we recognized substitution upon the death of the protestee but
denied substitution by the widow or heirs since they are not the real parties in interest. Similarly, in the later case of De la Victoria
v. Commission on Elections,11 we struck down the claim of the surviving spouse and children of the protestee to the contested office
for the same reason. Even in analogous cases before other electoral tribunals, 12 involving substitution by the widow of a deceased
protestant, in cases where the widow is not a real party in interest, we denied substitution by the wife or heirs.
This is not to say that death of the protestant necessarily abates the pending action. We have held as early as Vda. de De Mesa
(1966) that while the right to a public office is personal and exclusive to the public officer, an election protest is not purely personal
and exclusive to the protestant or to the protestee such that the death of either would oust the court of all authority to continue
the protest proceedings.13 Hence, we have allowed substitution and intervention but only by a real party in interest. A real party in
interest is the party who would be benefited or injured by the judgment, and the party who is entitled to the avails of the suit.14 In
Vda. de De Mesa v. Mencias15 and Lomugdang v. Javier,16 we permitted substitution by the vice-mayor since the vice-mayor is a real
party in interest considering that if the protest succeeds and the protestee is unseated, the vice-mayor succeeds to the office of the
mayor that becomes vacant if the one duly elected cannot assume office. In contrast, herein movant/intervenor, Mrs. FPJ, herself
denies any claim to the august office of President. Thus, given the circumstances of this case, we can conclude that protestant’s
widow is not a real party in interest to this election protest.
We are not unaware that a contest before election tribunals has two aspects. First, it is in pursuit of one’s right to a public office,
and second, it is imbued with public interest.
Indeed the personal aspect of the case is inextricably linked with the public interest. For an election protest involves not merely
conflicting private aspirations but is imbued with public interest which raises it into a plane over and above ordinary civil actions.17
But herein movant/intervenor, Mrs. FPJ, has overly stressed that it is with the "paramount public interest" in mind that she desires
"to pursue the process" commenced by her late husband. She avers that she is "pursuing the process" to determine who truly won the
election, as a service to the Filipino people. We laud her noble intention and her interest to find out the true will of the electorate.
However, nobility of intention is not the point of reference in determining whether a person may intervene in an election protest.
Rule 19, Section 1 of the Rules of Court18 is the applicable rule on intervention in the absence of such a rule in the PET Rules. In
such intervention, the interest which allows a person to intervene in a suit must be in the matter of litigation and of such direct and
immediate character that the intervenor will either gain or lose by the effect of the judgment. In this protest, Mrs. FPJ will not
immediately and directly benefit from the outcome should it be determined that the declared president did not truly get the highest
number of votes. We fully appreciate counsel’s manifestation that movant/intervenor herself claims she has no interest in assuming
the position as she is aware that she cannot succeed to the presidency, having no legal right to it. Yet thus far, in this case, no real
parties such as the vice-presidential aspirants in the 2004 elections, have come forward to intervene, or to be substituted for the
deceased protestant. In our view, if persons not real parties in the action could be allowed to intervene, proceedings will be
unnecessarily complicated, expensive and interminable – and this is not the policy of the law.19 It is far more prudent to abide by
the existing strict limitations on intervention and substitution under the law and the rules.
Conformably then with the law, the rules and prevailing jurisprudence, this Tribunal finds no justifiable reason to grant the
petition/motion for intervention and substitution.
WHEREFORE, the motion of movant/intervenor JESUSA SONORA POE a.k.a. SUSAN ROCES to intervene and substitute for the
deceased protestant is DENIED for lack of merit.
Acting on the protest and considering the Notice of the Death, submitted by counsel of protestant RONALD ALLAN POE, a.k.a.
FERNANDO POE, JR., we also resolve that Presidential Electoral Tribunal Case No. 002, entitled Ronald Allan Poe a.k.a. Fernando
Poe, Jr. v. Gloria Macapagal-Arroyo, should be as it is hereby DISMISSED on the ground that no real party in interest has come
forward within the period allowed by law, to intervene in this case or be substituted for the deceased protestant.
No pronouncement as to costs.
SO ORDERED.