EN BANC
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ELEAZAR P. QUINTO and GERINO A. TOLENTINO, JR., Petitioners, - versus - COMMISSION ON ELECTIONS, Respondent. |
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G.R. No. 189698 Present: PUNO, C.J., CARPIO, CARPIO MORALES, CHICO-NAZARIO, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, ABAD, and VILLARAMA, JR., JJ.
Promulgated: December
1, 2009 |
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NACHURA, J.:
“In our predisposition to discover
the ‘original intent’ of a statute, courts become the unfeeling pillars of the status quo. Little do we realize that
statutes or even constitutions are bundles of compromises thrown our way by
their framers. Unless we exercise vigilance, the statute may already be out of
tune and irrelevant to our day.”[1] It
is in this light that we should address the instant case.
Before the Court is a petition for
prohibition and certiorari, with
prayer for the issuance of a temporary restraining order and a writ of
preliminary injunction, assailing Section 4(a) of Resolution No. 8678 of the
Commission on Elections (COMELEC). In view of pressing contemporary events, the
petition begs for immediate resolution.
The Antecedents
This controversy actually stems from
the law authorizing the COMELEC to use an automated election system (AES).
On December 22, 1997, Congress
enacted Republic Act (R.A.) No. 8436, entitled “AN
ACT AUTHORIZING THE COMMISSION ON ELECTIONS TO USE AN AUTOMATED ELECTION SYSTEM
IN THE MAY 11, 1998 NATIONAL OR LOCAL ELECTIONS AND IN SUBSEQUENT NATIONAL AND
LOCAL ELECTORAL EXERCISES, PROVIDING FUNDS THEREFOR AND FOR OTHER PURPOSES.”
Section 11 thereof reads:
SEC. 11. Official
Ballot.—The Commission shall prescribe the size and form of the official
ballot which shall contain the titles of the positions to be filled and/or the
propositions to be voted upon in an initiative, referendum or plebiscite. Under
each position, the names of candidates shall be arranged alphabetically by
surname and uniformly printed using the same type size. A fixed space where the
chairman of the Board of Election inspectors shall affix his/her signature to
authenticate the official ballot shall be provided.
Both sides of the ballots may be used when
necessary.
For
this purpose, the deadline for the filing of certificate of candidacy/petition
for registration/manifestation to participate in the election shall not be
later than one hundred twenty (120) days before the elections: Provided,
That, any elective official, whether national or local, running for any office
other than the one which he/she is holding in a permanent capacity, except for
president and vice president, shall be deemed resigned only upon the start of
the campaign period corresponding to the position for which he/she is running: Provided, further, That, unlawful acts
or omissions applicable to a candidate shall take effect upon the start of the
aforesaid campaign period: Provided, finally, That, for purposes of
the May 11, 1998 elections, the deadline for filing of the certificate of
candidacy for the positions of President, Vice President, Senators and
candidates under the Party-List System as well as petitions for registration
and/or manifestation to participate in the Party-List System shall be on
February 9, 1998 while the deadline for the filing of certificate of candidacy
for other positions shall be on March 27, 1998.
The official ballots shall be printed by the
National Printing Office and/or the Bangko
Sentral ng Pilipinas at the price comparable with that of private printers
under proper security measures which the Commission shall adopt. The Commission
may contract the services of private printers upon certification by the
National Printing Office/Bangko Sentral
ng Pilipinas that it cannot meet the printing requirements. Accredited
political parties and deputized citizens' arms of the Commission may assign
watchers in the printing, storage and distribution of official ballots.
To prevent the use of fake ballots, the
Commission through the Committee shall ensure that the serial number on the
ballot stub shall be printed in magnetic ink that shall be easily detectable by
inexpensive hardware and shall be impossible to reproduce on a photocopying
machine and that identification marks, magnetic strips, bar codes and other
technical and security markings, are provided on the ballot.
The official ballots shall be printed and
distributed to each city/municipality at the rate of one (1) ballot for every
registered voter with a provision of additional four (4) ballots per precinct.[2]
Almost a decade thereafter, Congress
amended the law on January 23, 2007 by enacting R.A. No. 9369, entitled “AN ACT AMENDING REPUBLIC ACT NO. 8436, ENTITLED ‘AN ACT AUTHORIZING THE
COMMISSION ON ELECTIONS TO USE AN AUTOMATED ELECTION SYSTEM IN THE MAY 11, 1998
NATIONAL OR LOCAL ELECTIONS AND IN SUBSEQUENT NATIONAL AND LOCAL ELECTORAL
EXERCISES, TO ENCOURAGE TRANSPARENCY, CREDIBILITY, FAIRNESS AND ACCURACY OF
ELECTIONS, AMENDING FOR THE PURPOSE BATAS PAMPANSA BLG. 881, AS AMEMDED,
REPUBLIC ACT NO. 7166 AND OTHER RELATED ELECTION LAWS, PROVIDING FUNDS THEREFOR
AND FOR OTHER PURPOSES.’” Section 13 of the amendatory law modified Section 11
of R.A. No. 8436, thus:
SEC. 13. Section 11 of Republic Act No. 8436 is
hereby amended to read as follows:
“Section 15. Official Ballot.—The
Commission shall prescribe the format of the electronic display and/or the size
and form of the official ballot, which shall contain the titles of the position
to be filled and/or the propositions to be voted upon in an initiative,
referendum or plebiscite. Where practicable, electronic displays must be
constructed to present the names of all candidates for the same position in the
same page or screen, otherwise, the electronic displays must be constructed to
present the entire ballot to the voter, in a series of sequential pages, and to
ensure that the voter sees all of the ballot options on all pages before
completing his or her vote and to allow the voter to review and change all
ballot choices prior to completing and casting his or her ballot. Under each
position to be filled, the names of candidates shall be arranged alphabetically
by surname and uniformly indicated using the same type size. The maiden or
married name shall be listed in the official ballot, as preferred by the female
candidate. Under each proposition to be vote upon, the choices should be
uniformly indicated using the same font and size.
“A fixed space where the chairman of the
board of election inspectors shall affix his/her signature to authenticate the
official ballot shall be provided.
“For
this purpose, the Commission shall set the deadline for the filing of
certificate of candidacy/petition of registration/manifestation to participate
in the election. Any person who files his certificate of candidacy within this
period shall only be considered as a candidate at the start of the campaign
period for which he filed his certificate of candidacy: Provided, That,
unlawful acts or omissions applicable to a candidate shall take effect only
upon the start of the aforesaid campaign period: Provided, finally, That
any person holding a public appointive office or position, including active
members of the armed forces, and officers and employees in government-owned or -controlled
corporations, shall be considered ipso facto resigned from his/her
office and must vacate the same at the start of the day of the filing of
his/her certificate of candidacy.
“Political parties may hold political
conventions to nominate their official candidates within thirty (30) days
before the start of the period for filing a certificate of candidacy.
“With respect to a paper-based election
system, the official ballots shall be printed by the National Printing Office
and/or the Bangko Sentral ng Pilipinas at the price comparable with that
of private printers under proper security measures which the Commission shall
adopt. The Commission may contract the services of private printers upon
certification by the National Printing Office/Bangko Sentral ng Pilipinas
that it cannot meet the printing requirements. Accredited political parties and
deputized citizens’ arms of the Commission shall assign watchers in the
printing, storage and distribution of official ballots.
“To prevent the use of fake ballots, the
Commission through the Committee shall ensure that the necessary safeguards,
such as, but not limited to, bar codes, holograms, color shifting ink,
microprinting, are provided on the ballot.
“The official ballots shall be printed and
distributed to each city/municipality at the rate of one ballot for every
registered voter with a provision of additional three ballots per precinct.”[3]
Pursuant to its constitutional mandate
to enforce and administer election laws, COMELEC issued Resolution No. 8678,[4]
the Guidelines on the Filing of Certificates of Candidacy (CoC) and Nomination
of Official Candidates of Registered Political Parties in Connection with the
May 10, 2010 National and Local Elections. Sections 4 and 5 of Resolution No.
8678 provide:
SEC. 4. Effects of Filing Certificates of Candidacy.—a) Any person holding a public appointive office or position including active members of the Armed Forces of the Philippines, and other officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.
b) Any person holding an elective office or position shall not be considered resigned upon the filing of his certificate of candidacy for the same or any other elective office or position.
SEC. 5. Period for filing Certificate of Candidacy.—The certificate of candidacy shall be filed on regular days, from November 20 to 30, 2009, during office hours, except on the last day, which shall be until midnight.
Alarmed that they will be deemed ipso facto resigned from their offices
the moment they file their CoCs, petitioners Eleazar P. Quinto and Gerino A.
Tolentino, Jr., who hold appointive positions in the government and who intend
to run in the coming elections,[5]
filed the instant petition for prohibition and certiorari, seeking the declaration of the afore-quoted Section
4(a) of Resolution No. 8678 as null and void.
The Petitioners’ Contention
Petitioners contend that the COMELEC
gravely abused its discretion when it issued the assailed Resolution. They aver
that the advance filing of CoCs for the 2010 elections is intended merely for
the purpose of early printing of the official ballots in order to cope with
time limitations. Such advance filing does not automatically make the person who
filed the CoC a candidate at the moment of filing. In fact, the law considers him
a candidate only at the start of the campaign period. Petitioners then assert
that this being so, they should not be deemed ipso facto resigned from their government offices when they file
their CoCs, because at such time they are not yet treated by law as candidates.
They should be considered resigned from their respective offices only at the
start of the campaign period when they are, by law, already considered as
candidates.[6]
Petitioners also contend that Section
13 of R.A. No. 9369, the basis of the assailed COMELEC resolution, contains two
conflicting provisions. These must be harmonized or reconciled to give effect
to both and to arrive at a declaration that they are not ipso facto resigned from their positions upon the filing of their
CoCs.[7]
Petitioners further posit that the
provision considering them as ipso facto
resigned from office upon the filing of their CoCs is discriminatory and
violates the equal protection clause in the Constitution.[8]
The Respondent’s Arguments
On
the procedural aspect of the petition, the Office of the Solicitor General
(OSG), representing respondent COMELEC, argues that petitioners have no legal
standing to institute the suit. Petitioners
have not yet filed their CoCs, hence, they are not yet affected by the assailed
provision in the COMELEC resolution. The OSG further claims that the petition
is premature or unripe for judicial determination. Petitioners have admitted that they are merely
planning to file their CoCs for the coming 2010 elections. Their interest in
the present controversy is thus merely speculative and contingent upon the
filing of the same. The OSG likewise contends that petitioners availed of the
wrong remedy. They are questioning an issuance of the COMELEC made in the
exercise of the latter’s rule-making power. Certiorari
under Rule 65 is then an improper remedy.[9]
On
the substantive aspect, the OSG maintains that the COMELEC did not gravely
abuse its discretion in phrasing Section 4(a) of Resolution No. 8678 for it
merely copied what is in the law. The OSG, however, agrees with petitioners that
there is a conflict in Section 13 of R.A. No. 9369 that should be resolved.
According to the OSG, there seems to be no basis to consider appointive
officials as ipso facto resigned and
to require them to vacate their positions on the same day that they file their
CoCs, because they are not yet considered as candidates at that time. Further,
this “deemed resigned” provision existed in Batas
Pambansa Bilang (B.P. Blg.) 881,
and no longer finds a place in our present election laws with the innovations
brought about by the automated system.[10]
Our Ruling
I.
At first glance, the petition suffers
from an incipient procedural defect. What petitioners assail in their petition
is a resolution issued by the COMELEC in the exercise of its quasi-legislative
power. Certiorari under Rule 65, in
relation to Rule 64, cannot be availed of, because it is a remedy to question decisions,
resolutions and issuances made in the exercise of a judicial or quasi-judicial
function.[11]
Prohibition is also an inappropriate remedy, because what petitioners actually
seek from the Court is a determination of the proper construction of a statute and
a declaration of their rights thereunder. Obviously, their petition is one for
declaratory relief,[12]
over which this Court does not exercise original jurisdiction.[13]
However, petitioners raise a challenge
on the constitutionality of the questioned provisions of both the COMELEC
resolution and the law. Given this scenario, the Court may step in and resolve
the instant petition.
The transcendental nature and paramount
importance of the issues raised and the compelling state interest involved in
their early resolution—the period for the filing of CoCs for the 2010 elections
has already started and hundreds of civil servants intending to run for
elective offices are to lose their employment, thereby causing imminent and
irreparable damage to their means of livelihood and, at the same time, crippling
the government’s manpower—further dictate that the Court must, for propriety,
if only from a sense of obligation, entertain the petition so as to expedite
the adjudication of all, especially the constitutional, issues.
In any event, the Court has ample
authority to set aside errors of practice or technicalities of procedure and
resolve the merits of a case. Repeatedly stressed in our prior decisions is the
principle that the Rules were promulgated to provide guidelines for the orderly
administration of justice, not to shackle the hand that dispenses it.
Otherwise, the courts would be consigned to being mere slaves to technical
rules, deprived of their judicial discretion.[14]
II.
To put things in their proper
perspective, it is imperative that we trace the brief history of the assailed
provision. Section 4(a) of COMELEC Resolution No. 8678 is a reproduction of the
second proviso in the third paragraph of Section 13 of R.A. No. 9369, which for
ready reference is quoted as follows:
For this purpose, the Commission shall set
the deadline for the filing of certificate of candidacy/petition for
registration/manifestation to participate in the election. Any person who files
his certificate of candidacy within this period shall only be considered as a
candidate at the start of the campaign period for which he filed his
certificate of candidacy: Provided, That, unlawful acts or omissions
applicable to a candidate shall take effect only upon the start of the
aforesaid campaign period: Provided,
finally, That any person holding a public appointive office or position,
including active members of the armed forces, and officers and employees in
government-owned or -controlled corporations, shall be considered ipso facto
resigned from his/her office and must vacate the same at the start of the day
of the filing of his/her certificate of candidacy.[15]
Notably, this proviso is not present
in Section 11 of R.A. No. 8436, the law amended by R.A. No. 9369. The proviso was
lifted from Section 66 of B.P. Blg.
881 or the Omnibus Election Code (OEC) of the
Sec.
66. Candidates holding appointive office
or position.—Any person holding a public appointive office or position, including
active members of the Armed Forces of the
It may be recalled—in inverse
chronology—that earlier, Presidential Decree No. 1296, or the 1978 Election
Code, contained a similar provision, thus—
SECTION
29. Candidates holding appointive office
or position. — Every person holding a public appointive office or position,
including active members of the Armed Forces of the
Much earlier, R.A. No. 6388, or the
Election Code of 1971, likewise stated in its Section 23 the following:
SECTION
23. Candidates Holding Appointive Office
or Position. — Every person holding a public appointive office or position,
including active members of the Armed Forces of the Philippines and every
officer or employee in government-owned or controlled corporations, shall ipso facto cease in his office or
position on the date he files his certificate of candidacy: Provided, That the
filing of a certificate of candidacy shall not affect whatever civil, criminal
or administrative liabilities which he may have incurred.
Going further back in history, R.A.
No. 180, or the Revised Election Code approved on June 21, 1947, also provided
that—
SECTION
26. Automatic cessation of appointive
officers and employees who are candidates. — Every person holding a public
appointive office or position shall ipso
facto cease in his office or position on the date he files his certificate
of candidacy.
During the Commonwealth era, Commonwealth
Act (C.A.) No. 725, entitled “AN ACT TO PROVIDE FOR THE NEXT ELECTION FOR
PRESIDENT AND VICE-PRESIDENT OF THE PHILIPPINES, SENATORS AND MEMBERS OF THE
HOUSE OF REPRESENTATIVES, AND APPROPRIATING THE NECESSARY FUNDS THEREFOR,”
approved on January 5, 1946, contained, in the last paragraph of its Section 2,
the following:
A person occupying any civil office by appointment in the government or any of its political subdivisions or agencies or government-owned or controlled corporations, whether such office by appointive or elective, shall be considered to have resigned from such office from the moment of the filing of such certificate of candidacy.
Significantly, however, C.A. No. 666,
entitled “AN ACT TO PROVIDE FOR THE FIRST ELECTION FOR PRESIDENT AND
VICE-PRESIDENT OF THE PHILIPPINES, SENATORS, AND MEMBERS OF THE HOUSE OF
REPRESENTATIVES, UNDER THE CONSTITUTION AND THE AMENDMENTS THEREOF,” enacted
without executive approval on June 22, 1941, the precursor of C.A. No. 725,
only provided for automatic resignation of elective, but not appointive,
officials.
Nevertheless, C.A. No. 357, or the
Election Code approved on August 22, 1938, had, in its Section 22, the same
verbatim provision as Section 26 of R.A. No. 180.
The earliest recorded Philippine law
on the subject is Act No. 1582, or the Election Law enacted by the Philippine
Commission in 1907, the last paragraph of Section 29 of which reads:
Sec. 29. Penalties upon officers.— x x x.
No public officer shall offer himself as a candidate for election, nor shall he be eligible during the time that he holds said public office to election, at any municipal, provincial or Assembly election, except for reelection to the position which he may be holding, and no judge of the Court of First Instance, justice of the peace, provincial fiscal, or officer or employee of the Bureau of Constabulary or of the Bureau of Education shall aid any candidate or influence in any manner or take any part in any municipal, provincial, or Assembly election under penalty of being deprived of his office and being disqualified to hold any public office whatever for a term of five years: Provided, however, That the foregoing provisions shall not be construed to deprive any person otherwise qualified of the right to vote at any election.
From this brief historical excursion,
it may be gleaned that the second proviso in the third paragraph of Section 13
of R.A. No. 9369—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—traces its roots to the
period of the American occupation.
In fact,
during the deliberations of Senate Bill No. 2231, the bill later to be
consolidated with House Bill No. 5352 and enacted as R.A. No. 9369, Senator Richard Gordon,
the principal author of the bill, acknowledged that the said proviso in the proposed
legislative measure is an old provision which was merely copied from earlier
existing legislation, thus—
Senator Osmeña. May I just opine here and perhaps obtain the
opinion of the good Sponsor. This reads
like, “ANY PERSON HOLDING [means
currently] A PUBLIC APPOINTIVE POSITION… SHALL BE CONSIDERED IPSO FACTO
RESIGNED” [which means that the prohibition extends only to appointive
officials] “INCLUDING ACTIVE MEMBERS OF THE ARMED FORCES, OFFICERS AND
EMPLOYEES”… This is a prohibition, Mr. President. This means if one is chairman of SSS or PDIC,
he is deemed ipso facto resigned when he files his certificate of
candidacy. Is that the intention?
Senator Gordon. This is really an old provision, Mr.
President.
Senator Osmeña. It is in bold letters, so I think it was a
Committee amendment.
Senator Gordon. No, it has always been there.
Senator Osmeña. I see.
Senator Gordon. I guess the intention is not to give them
undue advantage, especially certain people.
Senator Osmeña. All right.[16]
In that
Senate deliberation, however, Senator Miriam Defensor-Santiago expressed her
concern over the inclusion of the said provision in the new law, given that the
same would be disadvantageous and unfair to potential candidates holding
appointive positions, while it grants a consequent preferential treatment to
elective officials, thus—
Senator Santiago. On page 15, line 31, I know that this is a
losing cause, so I make this point more as a matter of record than of any
feasible hope that it can possibly be either accepted or if we come to a
division of the House, it will be upheld by the majority.
I
am referring to page 15, line 21. The
proviso begins: “PROVIDED FINALLY, THAT ANY PERSON HOLDING A PUBLIC APPOINTIVE
OFFICE…SHALL BE CONSIDERED IPSO FACTO RESIGNED FROM HIS/HER OFFICE.”
The
point that I made during the appropriate debate in the past in this Hall is
that there is, for me, no valid reason for exempting elective officials from
this inhibition or disqualification imposed by the law. If we are going to consider appointive
officers of the government, including AFP members and officers of
government-owned and controlled corporations, or any other member of the
appointive sector of the civil service, why should it not apply to the elective
sector for, after all, even senators and congressmen are members of the civil
service as well?
Further,
it is self-serving for the Senate, or for the Congress in general, to give an
exception to itself which is not available to other similarly situated
officials of government. Of course, the
answer is, the reason why we are special is that we are elected. Since we are imposing a disqualification on
all other government officials except ourselves, I think, it is the better part
of delicadeza to inhibit ourselves as
well, so that if we want to stay as senators, we wait until our term
expires. But if we want to run for some other elective
office during our term, then we have to be considered resigned just like
everybody else. That is my proposed
amendment. But if it is unacceptable to
the distinguished Sponsor, because of sensitivity to the convictions of the
rest of our colleagues, I will understand.
Senator Gordon. Mr. President, I think
the suggestion is well-thought of. It is
a good policy. However, this is
something that is already in the old law which was upheld by the Supreme court
in a recent case that the rider was not upheld and that it was valid.[17]
The
obvious inequality brought about by the provision on automatic resignation of
appointive civil servants must have been the reason why Senator Recto proposed
the inclusion of the following during the period of amendments: “ANY PERSON WHO
FILES HIS CERTIFICATE OF CANDIDACY WITHIN THIS PERIOD SHALL ONLY BE CONSIDERED
AS A CANDIDATE AT THE START OF THE CAMPAIGN PERIOD FOR WHICH HE FILED HIS COC.”[18]
The said proviso seems to mitigate the situation of disadvantage afflicting
appointive officials by considering persons who filed their CoCs as candidates
only at the start of the campaign period, thereby, conveying the tacit intent
that persons holding appointive positions will only be considered as resigned
at the start of the campaign period when they are already treated by law as
candidates.
Parenthetically,
it may be remembered that Section 67 of the OEC and Section 11 of R.A. No. 8436
contained a similar provision on automatic resignation of elective officials
upon the filing of their CoCs for any office other than that which they hold in
a permanent capacity or for President or Vice-President. However, with the
enactment of R.A. No. 9006, or the Fair Election Act,[19]
in 2001, this provision was repealed by Section 14[20]
of the said act. There was, thus, created a situation of obvious discrimination
against appointive officials who were deemed ipso facto resigned from their offices upon the filing of their
CoCs, while elective officials were not.
This
situation was incidentally addressed by the Court in Fariñas v. The Executive Secretary[21]
when it ruled that—
Section 14 of Rep.
Act No. 9006
Is Not Violative of
the Equal
Protection Clause
of the Constitution
The petitioners’ contention, that the repeal of Section 67
of the Omnibus Election Code pertaining to elective officials gives undue
benefit to such officials as against the appointive ones and violates the equal
protection clause of the constitution, is tenuous.
The equal protection of the law clause in the Constitution
is not absolute, but is subject to reasonable classification. If the groupings are characterized by
substantial distinctions that make real differences, one class may be treated
and regulated differently from the other. The Court has explained the nature of
the equal protection guarantee in this manner:
The equal protection of the law clause is against undue
favor and individual or class privilege, as well as hostile discrimination or
the oppression of inequality. It is not
intended to prohibit legislation which is limited either in the object to which
it is directed or by territory within which it is to operate. It does not demand absolute equality among residents;
it merely requires that all persons shall be treated alike, under like circumstances and conditions
both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed
by legislation which applies only to those persons falling within a specified
class, if it applies alike to all persons within such class, and reasonable
grounds exist for making a distinction between those who fall within such class
and those who do not.
Substantial distinctions clearly exist between elective
officials and appointive officials. The former occupy their office by virtue of
the mandate of the electorate. They are elected to an office for a definite
term and may be removed therefrom only upon stringent conditions. On the other
hand, appointive officials hold their office by virtue of their designation
thereto by an appointing authority. Some
appointive officials hold their office in a permanent capacity and are entitled
to security of tenure while others serve at the pleasure of the appointing
authority.
Another substantial distinction between the two sets of
officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil
Service Commission, Book V of the Administrative Code of 1987 (Executive Order
No. 292), appointive officials, as officers and employees in the civil service,
are strictly prohibited from engaging in any partisan political activity or
take part in any election except to vote.
Under the same provision, elective officials, or officers or employees
holding political offices, are obviously expressly allowed to take part in
political and electoral activities.
By repealing Section 67 but retaining Section 66 of the
Omnibus Election Code, the legislators deemed it proper to treat these two
classes of officials differently with respect to the effect on their tenure in
the office of the filing of the certificates of candidacy for any position
other than those occupied by them.
Again, it is not within the power of the Court to pass upon or look into
the wisdom of this classification.
Since the classification justifying Section 14 of Rep. Act
No. 9006, i.e., elected officials vis-a-vis appointive officials, is
anchored upon material and significant distinctions and all the persons
belonging under the same classification are similarly treated, the equal
protection clause of the Constitution is, thus, not infringed.[22]
However,
it must be remembered that the Court, in Fariñas,
was intently focused on the main issue of whether the repealing clause in the
Fair Election Act was a constitutionally proscribed rider, in that it unwittingly
failed to ascertain with stricter scrutiny the impact of the retention of the
provision on automatic resignation of persons holding appointive positions (Section
66) in the OEC, vis-à-vis the equal protection clause. Moreover, the Court’s vision in Fariñas was shrouded by the fact that petitioners
therein, Fariñas et al., never posed a direct challenge to the
constitutionality of Section 66 of the OEC. Fariñas et al. rather merely
questioned, on constitutional grounds, the repealing clause, or Section 14 of
the Fair Election Act. The Court’s afore-quoted declaration in Fariñas may then very well be considered
as an obiter dictum.
III.
The
instant case presents a rare opportunity for the Court, in view of the constitutional
challenge advanced by petitioners, once and for all, to settle the issue of whether
the second proviso in
the third paragraph of Section 13 of R.A. No. 9369, a reproduction of Section 66
of the OEC, which, as shown above, was based on provisions dating back to the
American occupation, is violative of the equal protection clause.
But before
delving into the constitutional issue, we shall first address the issues on
legal standing and on the existence of an actual controversy.
Central to the
determination of locus standi is the
question of whether a party has alleged such a personal stake in the outcome of
the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination
of difficult constitutional questions.[23]
In this case, petitioners allege that they will be directly affected by COMELEC
Resolution No. 8678 for they intend, and they all have the qualifications, to
run in the 2010 elections. The OSG, for its part, contends that since
petitioners have not yet filed their CoCs, they are not yet candidates; hence,
they are not yet directly affected by the assailed provision in the COMELEC
resolution.
The Court, nevertheless,
finds that, while petitioners are not yet candidates, they have the standing to
raise the constitutional challenge, simply because they are qualified voters. A
restriction on candidacy, such as the challenged measure herein, affects the
rights of voters to choose their public officials. The rights of voters and the
rights of candidates do not lend themselves to neat separation; laws that
affect candidates always have at least some theoretical, correlative effect on
voters.[24]
The Court believes that both candidates and voters may challenge, on grounds of
equal protection, the assailed measure
because of its impact on voting rights.[25]
In any event, in recent
cases, this Court has relaxed the stringent direct injury test and has observed
a liberal policy allowing ordinary citizens, members of Congress, and civil
organizations to prosecute actions involving the constitutionality or validity
of laws, regulations and rulings.[26]
We have also stressed in our prior
decisions that the exercise by this Court of judicial power is limited to the
determination and resolution of actual cases and controversies.[27]
The Court, in this case, finds that an actual case or controversy exists
between the petitioners and the COMELEC, the body charged with the enforcement
and administration of all election laws. Petitioners have alleged in a precise
manner that they would engage in the very acts that would trigger the
enforcement of the provision—they would file their CoCs and run in the 2010
elections. Given that the assailed provision provides for ipso facto resignation upon the filing of the CoC, it cannot be
said that it presents only a speculative or hypothetical obstacle to
petitioners’ candidacy.[28]
IV.
Having
hurdled what the OSG posed as obstacles to judicial review, the Court now
delves into the constitutional challenge.
It is
noteworthy to point out that the right to run for public office touches on two
fundamental freedoms, those of expression and of association. This premise is
best explained in Mancuso v. Taft,[29]
viz.:
Freedom
of expression guarantees to the individual the opportunity to write a letter to
the local newspaper, speak out in a public park, distribute handbills
advocating radical reform, or picket an official building to seek redress of
grievances. All of these activities are protected by the First Amendment if
done in a manner consistent with a narrowly defined concept of public order and
safety. The choice of means will likely depend on the amount of time and energy
the individual wishes to expend and on his perception as to the most effective
method of projecting his message to the public. But interest and commitment are
evolving phenomena. What is an effective means for protest at one point in time
may not seem so effective at a later date. The dilettante who participates in a
picket line may decide to devote additional time and resources to his
expressive activity. As his commitment increases, the means of effective
expression changes, but the expressive quality remains constant. He may decide
to lead the picket line, or to publish the newspaper. At one point in time he
may decide that the most effective way to give expression to his views and to
get the attention of an appropriate audience is to become a candidate for
public office-means generally considered among the most appropriate for those
desiring to effect change in our governmental systems. He may seek to become a
candidate by filing in a general election as an independent or
by seeking the nomination of a political party. And in the latter instance, the
individual's expressive activity has two dimensions: besides urging that his
views be the views of the elected public official, he is
also attempting to become a spokesman for a political party whose substantive
program extends beyond the particular office in question. But
It
is impossible to ignore the additional fact that the right to run for office also
affects the freedom to associate. In Williams v. Rhodes, supra, the
Court used strict review to invalidate an
Whether the right to run for office is looked at from the point of view of individual expression or associational effectiveness, wide opportunities exist for the individual who seeks public office. The fact of candidacy alone may open previously closed doors of the media. The candidate may be invited to discuss his views on radio talk shows; he may be able to secure equal time on television to elaborate his campaign program; the newspapers may cover his candidacy; he may be invited to debate before various groups that had theretofore never heard of him or his views. In short, the fact of candidacy opens up a variety of communicative possibilities that are not available to even the most diligent of picketers or the most loyal of party followers. A view today, that running for public office is not an interest protected by the First Amendment, seems to us an outlook stemming from an earlier era when public office was the preserve of the professional and the wealthy. Consequently we hold that candidacy is both a protected First Amendment right and a fundamental interest. Hence any legislative classification that significantly burdens that interest must be subjected to strict equal protection review.[30]
Here, petitioners’ interest in running for public office, an
interest protected by Sections 4 and 8 of Article III of the Constitution, is breached
by the proviso in Section 13 of R.A. No. 9369. It is now the opportune time for
the Court to strike down the said proviso for being violative of the equal
protection clause and for being overbroad.
In
considering persons holding appointive positions as ipso facto resigned from their posts upon the filing of their CoCs,
but not considering as resigned all other civil servants, specifically the
elective ones, the law unduly discriminates against the first class. The fact
alone that there is substantial distinction between those who hold appointive
positions and those occupying elective posts, does not justify such
differential treatment.
In
order that there can be valid classification so that a discriminatory governmental act may pass the constitutional
norm of equal protection, it is necessary that the four (4) requisites of valid
classification be complied with, namely:
(1) It must be based upon substantial
distinctions;
(2) It must be germane to the purposes of
the law;
(3) It must not be limited to existing
conditions only; and
(4) It must apply equally to all members
of the class.
The first requirement means that
there must be real and substantial differences between the classes treated
differently. As illustrated in the fairly recent Mirasol v. Department of Public Works and Highways,[31] a
real and substantial distinction exists between a motorcycle and other motor
vehicles sufficient to justify its classification among those prohibited from
plying the toll ways. Not all motorized vehicles are created equal—a
two-wheeled vehicle is less stable and more easily overturned than a four-wheel
vehicle.
Nevertheless, the classification
would still be invalid if it does not comply with the second requirement—if it
is not germane to the purpose of the law. Justice Isagani A. Cruz (Ret.), in
his treatise on constitutional law, explains,
The classification, even if based on substantial distinctions, will still be invalid if it is not germane to the purpose of the law. To illustrate, the accepted difference in physical stamina between men and women will justify the prohibition of the latter from employment as miners or stevedores or in other heavy and strenuous work. On the basis of this same classification, however, the law cannot provide for a lower passing average for women in the bar examinations because physical strength is not the test for admission to the legal profession. Imported cars may be taxed at a higher rate than locally assembled automobiles for the protection of the national economy, but their difference in origin is no justification for treating them differently when it comes to punishing violations of traffic regulations. The source of the vehicle has no relation to the observance of these rules.[32]
The
third requirement means that the classification must be enforced not only for
the present but as long as the problem sought to be corrected continues to exist.
And, under the last requirement, the classification would be regarded as
invalid if all the members of the class are not treated similarly, both as to
rights conferred and obligations imposed.[33]
Applying
the four requisites to the instant case, the Court finds that the differential
treatment of persons holding appointive offices as opposed to those holding
elective ones is not germane to the purposes of the law.
The
obvious reason for the challenged provision is to prevent the use of a governmental
position to promote one’s candidacy, or even to wield a dangerous or coercive
influence on the electorate. The measure is further aimed at promoting the
efficiency, integrity, and discipline of the public service by eliminating the
danger that the discharge of official duty would be motivated by political
considerations rather than the welfare of the public.[34]
The restriction is also justified by the proposition that the entry of civil
servants to the electoral arena, while still in office, could result in neglect
or inefficiency in the performance of duty because they would be attending to
their campaign rather than to their office work.
If
we accept these as the underlying objectives of the law, then the assailed
provision cannot be constitutionally rescued on the ground of valid
classification. Glaringly absent is the requisite that the classification must
be germane to the purposes of the law. Indeed, whether one holds an appointive office
or an elective one, the evils sought to be prevented by the measure remain. For
example, the Executive Secretary, or any Member of the Cabinet for that matter,
could wield the same influence as the Vice-President who at the same time is
appointed to a Cabinet post (in the recent past, elected Vice-Presidents were
appointed to take charge of national housing, social welfare development,
interior and local government, and foreign affairs). With the fact that they
both head executive offices, there is no valid justification to treat them
differently when both file their CoCs for the elections. Under the present
state of our law, the Vice-President, in the example, running this time, let us
say, for President, retains his position during the entire election period and
can still use the resources of his office to support his campaign.
As to the danger of neglect,
inefficiency or partisanship in the discharge of the functions of his
appointive office, the inverse could be just as true and compelling. The public officer who files his certificate
of candidacy would be driven by a greater impetus for excellent performance to
show his fitness for the position aspired for.
Mancuso v. Taft,[35]
cited above, explains that the measure on automatic resignation, which
restricts the rights of civil servants to run for office—a right inextricably
linked to their freedom of expression and association, is not reasonably
necessary to the satisfaction of the state interest. Thus, in striking down a
similar measure in the
In
proceeding to the second stage of active equal protection review, however, we
do see some contemporary relevance of the Mitchell decision. National
Ass'n of Letter Carriers, supra. In order for the
We do not, however, consider the
exclusionary measure taken by
There is thus no valid justification
to treat appointive officials differently from the elective ones. The classification simply fails to meet the
test that it should be germane to the purposes of the law. The measure encapsulated in the second
proviso of the third paragraph of Section 13 of R.A. No. 9369 and in Section 66
of the OEC violates the equal protection clause.
V.
The challenged provision also suffers
from the infirmity of being overbroad.
First, the
provision pertains to all civil servants holding appointive posts without
distinction as to whether they occupy high positions in government or not.
Certainly, a utility worker in the government will also be considered as ipso facto resigned once he files his
CoC for the 2010 elections. This scenario is absurd for, indeed, it is
unimaginable how he can use his position in the government to wield influence
in the political world.
While it
may be admitted that most appointive officials who seek public elective office
are those who occupy relatively high positions in government, laws cannot be
legislated for them alone, or with them alone in mind. For the right to seek public elective office
is universal, open and unrestrained, subject only to the qualification
standards prescribed in the Constitution and in the laws. These qualifications are, as we all know,
general and basic so as to allow the widest participation of the citizenry and
to give free rein for the pursuit of one’s highest aspirations to public
office. Such is the essence of
democracy.
Second,
the provision is directed to the activity of seeking any and all public offices,
whether they be partisan
or nonpartisan in character, whether they be in the national, municipal or barangay level. Congress has not shown a
compelling state interest to restrict the fundamental right involved on such a
sweeping scale.[36]
Specific
evils require specific treatments, not through overly broad measures that
unduly restrict guaranteed freedoms of the citizenry. After all, sovereignty
resides in the people, and all governmental power emanates from them.
Mancuso v. Taft,[37] on
this point, instructs—
As
to approaches less restrictive than a prophylactic rule, there exists the
device of the leave of absence.
Some system of leaves of absence would permit the public employee to take time
off to pursue his candidacy while assuring him his old job should his candidacy
be unsuccessful. Moreover, a leave of absence policy would eliminate many of
the opportunities for engaging in the questionable practices that the statute
is designed to prevent. While campaigning, the candidate would feel no conflict
between his desire for election and his publicly entrusted discretion, nor any
conflict between his efforts to persuade the public and his access to
confidential documents. But instead of adopting a reasonable leave of absence
policy,
The
city might also promote its interest in the integrity of the civil service by
enforcing, through dismissal, discipline, or criminal prosecution, rules or
statutes that treat conflict of interests, bribery, or other forms of official
corruption. By thus attacking the problem directly, instead of using a broad
prophylactic rule, the city could pursue its objective without unduly burdening
the First Amendment rights of its employees and the voting rights of its
citizens. Last term in Dunn v. Blumstein, the Supreme Court faced an analogous
question when the State of
Even
if some sort of prophylactic rule is necessary, we cannot say that
The
third and last area of excessive and overinclusive coverage of the
We
also do not find convincing the arguments that after-hours campaigning will
drain the energy of the public employee to the extent that he is incapable of
performing his job effectively and that inevitable on-the-job campaigning and
discussion of his candidacy will disrupt the work of others. Although it is
indisputable that the city has a compelling interest in the performance of
official work, the exclusion is not well-tailored to effectuate that interest. Presumably the city could fire the
individual if he clearly shirks his employment responsibilities or disrupts the
work of others. Also, the efficiency rationale common to both arguments is
significantly underinclusive. It applies equally well to a number of
non-political, extracurricular activities that are not prohibited by the
Incidentally,
Clements v. Fashing[39]
sustained as constitutional a provision on the automatic resignation of
District Clerks, County Clerks, County Judges, County Treasurers, Criminal
District Attorneys, County Surveyors, Inspectors of Hides and Animals, County
Commissioners, Justices of the Peace, Sheriffs, Assessors and Collectors of
Taxes, District Attorneys, County Attorneys, Public Weighers, and Constables if
they announce their candidacy or if they become candidates in any general,
special or primary election.
In Clements, it may be readily observed
that a provision treating differently particular officials, as distinguished
from all others, under a classification that is germane to the purposes of the
law, merits the stamp of approval from American courts. Not, however, a general and sweeping
provision, and more so one violative of the second requisite for a valid
classification, which is on its face unconstitutional.
On a final
note, it may not be amiss to state that the Americans, from whom we copied the
provision in question, had already stricken down a similar measure for being
unconstitutional. It is high-time that we, too, should follow suit and, thus,
uphold fundamental liberties over age-old, but barren, restrictions to such
freedoms.
WHEREFORE, premises considered, the petition is GRANTED. The second proviso in the third paragraph of Section 13 of Republic Act No. 9369, Section 66 of the Omnibus Election Code and Section 4(a) of COMELEC Resolution No. 8678 are declared as UNCONSTITUTIONAL.
SO ORDERED.
ANTONIO
EDUARDO B. NACHURA
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
|
ANTONIO T.
CARPIO Associate Justice
|
RENATO C.
CORONA Associate Justice |
CONCHITA
CARPIO MORALES
Associate Justice
|
MINITA V.
CHICO-NAZARIO Associate Justice
|
|
PRESBITERO
J. VELASCO, JR. Associate Justice
|
TERESITA
J. LEONARDO-DE CASTRO Associate Justice
|
|
ARTURO D.
BRION Associate Justice |
DIOSDADO
M. PERALTA Associate Justice |
|
LUCAS P.
BERSAMIN Associate Justice
|
MARIANO C.
Associate Justice
|
|
ROBERTO A.
ABAD Associate Justice |
MARTIN S.
VILLARAMA, JR. Associate Justice |
C E R T I F I
C A T I O N
Pursuant
to Section 13, Article VIII of the Constitution, I certify that the conclusions
in the above decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court.
REYNATO S. PUNO
Chief
Justice
[1] Salvacion v. Central Bank of the
[2] Emphasis supplied.
[3] Emphasis supplied.
[4] Promulgated on October 6, 2009.
[5] Petitioner Eleazar P. Quinto is the Undersecretary for Field Operations of the Department of Environment and Natural Resources (DENR). He intends to run for Representative in the 4th Congressional District of Pangasinan. Petitioner Gerino A. Tolentino, Jr. is the OIC-Director of the Land Management Bureau of the DENR. He likewise desires to run for City Councilor in the 4th District of Manila. (Rollo, pp. 8-9.)
[6] Rollo, pp. 10-13.
[7]
[8]
[9] Comment of the OSG, pp. 11-26.
[10]
[11] The
first paragraph of Sec. 1 of Rule 65 provides:
SECTION
1. Petition for certiorari.—When any
tribunal, board or officer exercising judicial or quasi-judicial functions has
acted without or in excess of its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and there is no appeal,
nor any plain, speedy, and adequate remedy in the ordinary course of law, a
person aggrieved thereby may file a verified petition in the proper court,
alleging the facts with certainty and praying that judgment be rendered
annulling or modifying the proceedings of such tribunal, board or officer, and
granting such incidental reliefs as law and justice may require. (See
Patalinghug v. Commission on Elections,
G.R. No. 178767, January 30, 2008, 543 SCRA 175, 184-185.)
[12] The
first paragraph of Sec. 1 of Rule 63 provides:
SECTION
1. Who may file petition.—Any person
interested under a deed, will, contract or other written instrument, or whose
rights are affected by a statute, executive order or regulation, ordinance, or
any other governmental regulation may, before breach or violation thereof,
bring an action in the appropriate Regional Trial Court to determine any
question of construction or validity arising, and for a declaration of his
rights or duties, thereunder. (See Almeda
v. Bathala Marketing Industries, Inc., G.R. No. 150806, January 28, 2008,
542 SCRA 470, 478-479; John Hay Peoples
Alternative Coalition v. Lim, G.R. No. 119775, October 24, 2003, 414 SCRA
356, 369.)
[13] Salvacion
v. Central Bank of the Philippines, supra note 1, at 39.
[14] MCC Industrial Sales Corporation v. Ssangyong Corporation, G.R. No. 170633, October 17, 2007, 536 SCRA 408, 433.
[15] Emphasis
supplied.
[16] Record of the Senate, Vol. III, Session No. 29, September 27, 2006, pp. 69-70.
[17] Record of the Senate, Vol. III, Session No. 12, August 16, 2006, pp. 71-72.
[18] Senate Records and Archives, 13th CP, 3rd Regular Session, Vol. III, August 1, 2006, p. 25.
[19] Entitled “AN ACT TO ENHANCE THE HOLDING OF FREE, ORDERLY, HONEST, PEACEFUL AND CREDIBLE ELECTIONS THROUGH FAIR ELECTION PRACTICES,” approved on February 12, 2001.
[20] Sec. 14 of R.A. No. 9006 provides:
SEC. 14 Repealing Clause.—Sections 67 and 85 of the Omnibus Election Code (Batas Pambansa Blg. 881) and Sections 10 and 11 of Republic Act No. 6646 are hereby repealed. As a consequence, the first proviso in the third paragraph of Section 11 of Republic Act No. 8436 is rendered ineffective. All laws, presidential decrees, executive orders, rules and regulations, or any part thereof inconsistent with the provisions of this Act are hereby repealed or modified or amended accordingly.
[21] 463 Phil. 179, 205-208 (2003).
[22] Citations omitted.
[23]
[24] Bullock
v. Carter, 405
[25] Mancuso v. Taft, 476 F.2d 187, 190 (1973).
[26] David v. Macapagal-Arroyo, G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489 and 171424, May 3, 2006, 489 SCRA 160, 218.
[27] Dumlao v. COMELEC, G.R. No. L-52245, January 22, 1980, 95 SCRA 392, 401. This case explains the standards that have to be followed in the exercise of the power of judicial review, namely: (1) the existence of an appropriate case; (2) an interest personal and substantial by the party raising the constitutional question; (3) the plea that the function be exercised at the earliest opportunity; and (4) the necessity that the constitutional question be passed upon in order to decide the case.
[28] Clements
v. Fashing, 457
[29] Supra note 25, at 195-196.
[30] Citations omitted.
[31] G.R. No. 158793, June 8, 2006, 490 SCRA 318, 351-352.
[32] Cruz, Constitutional Law (1998 ed.), p. 131.
[33]
[34] Fort
v. Civil Service Commission of the
[35] Supra note 25, at 198-199.
[36] Kinnear
v. City and
[37] Supra note 25, at 199-201.
[38] Citations omitted.
[39] Supra note 28.