EN BANC
G.R. No. 189698
Eleazar Quinto, et al. v. Commission on Elections
Promulgated:
December 1, 2009
x ----------------------------------------------------------------------------------------
x
DISSENTING OPINION
CARPIO MORALES, J.
I
dissent from the majority opinion which declares as unconstitutional the second
proviso in the third paragraph of Section 13 of Republic Act No. 9369 (
SEC. 13. Section 11 of Republic Act No. 8436 is hereby amended to read as follows:
Sec. 15. x x x
x x x Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers, and employees in government-owned or-controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certification of candidacy. (underscoring supplied)
x x x x
- - - - -
SEC. 66. Candidates
holding appointive office or positions. - Any person holding a public
appointive office or position, including active members of the Armed Forces of
the
What
petitioners assail, however, is paragraph (a) of Section 4 of Comelec
Resolution No. 8678[1] (
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
(b) Any person holding an elective office or position shall not be considered resigned upon the filing of his certificate of candidacy for the same or any other elective office or position. (underscoring supplied)
As
presented by the ponencia, a parallel
provision on persons holding elective office or position existed in
Section 67 of the Omnibus Election Code (December 3, 1985) until it was
repealed by Republic Act No. 9006 (February 12, 2001) or the Fair Election Act. Prior to the repeal, the provision was
amplified by the first proviso of the third paragraph of Section 11 of Republic
Act No. 8436 (December 22, 1997) otherwise known as the Election Automation Law until said proviso was rendered ineffective
in 2001 by the Fair Election Act and was
totally abandoned in 2007 by the amendatory law of Republic Act No. 9369.
In
granting the petition, the ponencia eliminates
the ipso facto resignation from public office by an appointive public
official upon the filing of the certificate of candidacy, thereby removing the
distinction between one holding an appointive position and one holding an
elective position.
The
ponencia revisits Fariñas v. The
Executive Secretary,[2]
notwithstanding its submission that the discussion therein on the equal
protection clause was obiter dictum, albeit the issue was squarely raised therein.
The
ponencia adds that Fariñas
focused on the validity of the repeal of Section 67 (on elective positions) of
the Omnibus Election Code and never
posed a direct challenge to the constitutionality of retaining Section 66 (on
appointive positions) thereof. En
passant, I observe that neither is the constitutionality of Section 13 of
Republic Act No. 9369 and Section 66 of Batas Pambansa Blg. 881 challenged by petitioners
in the present case. What petitioners
assail is, it bears repeating, Section 4(a) of Comelec Resolution No. 8678.
In
Fariñas, the Court ruled:
The petitioners’ contention, that the repeal of Section 67 of the Omnibus Election Code pertaining to elective officials gives undue benefit to such officials as against the appointive ones and violates the equal protection clause of the constitution, is tenuous.
The equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable classification. If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from the other. The Court has explained the nature of the equal protection guarantee in this manner:
The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not.
Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority.
Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987 (Executive Order No. 292), appointive officials, as officers and 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.[3] (italics in the original; underscoring supplied)
Fariñas
pointed out at least three material and substantial distinctions that set apart
elective officials from appointive officials (i.e., mandate of the
electorate, removal from office only upon stringent conditions, no prohibition
against partisan political activity). The
ponencia does not dispute the presence of this set of distinctions as one of the
grounds for a classification to be valid and non-violative of the equal
protection clause.
The
ponencia does not correlate the impact of the prohibition against partisan
political activity on the provisions on ipso facto resignation. Section 55, Chapter 8, Title I, Subsection A,
Book V of the Administrative Code of 1987[4] reads:
Sec. 55. Political Activity. – No officer or employee in the Civil Service including members of the Armed Forces, shall engage, directly or indirectly, in any partisan political activity or take part in any election except to vote nor shall he use his official authority or influence to coerce the political activity of any other person or body. Nothing herein provided shall be understood to prevent any officer or employee from expressing his views on current political problems or issues, or from mentioning the names of his candidates for public office whom he supports: Provided, That public officers and employees holding political offices may take part in political and electoral activities but it shall be unlawful for them to solicit contributions from their subordinates or subject them to any of the acts involving subordinates prohibited in the Election Code. (underscoring supplied)
To
allow appointive officials to hang on
to their respective posts after filing
their certificate of candidacy will open the floodgates to countless charges of
violation of the prohibition on partisan political activity. The filing of the certificate of candidacy is
already deemed as a partisan political
activity, which also explains why the appointive official is considered
ipso facto resigned from public office upon the date of the filing of
the certificate of candidacy, and not the date of the start of the campaign
period. Pagano v. Nazarro, Jr.[5] teaches:
Clearly, the act of filing a Certificate of Candidacy while one is employed in the civil service constitutes a just cause for termination of employment for appointive officials. Section 66 of the Omnibus Election Code, in considering an appointive official ipso facto resigned, merely provides for the immediate implementation of the penalty for the prohibited act of engaging in partisan political activity. This provision was not intended, and should not be used, as a defense against an administrative case for acts committed during government service.[6] (emphasis and underscoring supplied)
The
Court cannot look into the wisdom of the classification, as it runs the risk of
either unduly magnifying the minutiae or viewing the whole picture with a
myopic lens. The Court cannot strike
down as unconstitutional the above-mentioned provisions without crossing the
path of said Section 55 of the Administrative Code, among other things,[7] on
political activity or without rebutting the apolitical nature of an appointive
office. Section 55, however, is, as
earlier stated, neither challenged in the present case, nor are Section 13 of
Republic Act No. 9369 and Section 66 of the Omnibus Election Code.
While
the ponencia admits that there are
substantial distinctions, it avers that the requisite that the classification
be germane to the purposes of the law is absent.
In
discussing the underlying objectives of the law, the majority opinion identifies
the evils sought to be prevented by the law and opines that these evils are
present in both elective and appointive public offices. Ultimately, the ponencia kills the law and spares the evils. It raises arguments that lend support more to
a parity of application of the ipso facto resignation than a parity
of non-application of the ipso facto resignation.
In
explaining Section 2 (4) of Article IX-B of the Constitution,[8] an
eminent constitutionalist elucidated that the general rule is “intended to keep
the Civil Service free of the deleterious effects of political partisanship.”[9] Political partisanship, meanwhile, is the
inevitable essence of a political office, elective positions included.
Unfortunately,
the ponencia does not refute the apolitical nature of an
appointive office. To the issues
surrounding the policy of reserving political activities to political officers,
the remedy is legislation.
The
ponencia proceeds to discuss the
right to run for public office in relation to the freedom of expression and of
association. It cites Mancuso v. Taft,[10] a
case decided by the United States Court of Appeals, First Circuit, involving a city
home rule charter in Rhode Island, to buttress its conclusion and to persuade[11]
that this jurisdiction too should follow suit.
In
The
Hatch Act has since been applied or copied in most states with respect to state
or local government employees. While the
spirit of the ruling in Mitchell has been questioned or overturned by
inferior courts in cases assailing similar state laws or city charters (such as
Mancuso), Mitchell has not, however, been overturned by
the U.S. Supreme Court. An inferior
court can never erode a Supreme Court decision.
Finally,
a public employee holding appointive office or position, by accepting a
non-political government appointment, binds himself to the terms and conditions
of employment fixed by law. In one case,
it was held that in government employment, “it is the legislature and, where properly
given delegated power, the administrative heads of government which fix the
terms and conditions of employment. And
this is effected through the statutes or administrative circulars, rules, and
regulations[,]”[15] part of
which is the setting of standards for allowable limitations in the exercise of
the rights of free expression and of assembly.[16]
WHEREFORE,
I vote to DISMISS the petition.
CONCHITA CARPIO
MORALES
Associate
Justice
[1] Entitled
“Guidelines on the Filing of Certificates of Candidacy (CoC) and Nomination of
Official Candidates of Registered Political Parties in connection with the
[2] 463 Phil. 179 (2003).
[3]
[4] Executive Order No. 292 (July 25, 1987).
[5] G.R.
No. 149072,
[6]
[7] Omnibus
Election Code, Sec. 261(i) on election offenses; Administrative Code of 1987, Sec 44(b)(26) on grounds for
disciplinary action.
[8] Sec. 2(4) reads: No officer or employee in the Civil Service shall engage, directly or indirectly, in any electioneering or partisan political campaign.
[9] Joaquin
G. Bernas, S.J., The 1987 Constitution of the Republic of the
[10] 476 F.2d 187, 190 (1973).
[11] Cases decided in foreign jurisdictions are merely persuasive in this jurisdiction.
[12] Formally cited as 5 USCA 7324, named after the bill’s sponsor, New Mexico Senator Carl Hatch.
[13] 330
[14] 413
[15] Social Security System Employees Association (SSSEA) v. Court of Appeals, G.R. No. 85279, July 28, 1989, 175 SCRA 686, 697 citing Alliance of Government Workers v. Minister of Labor, G.R. No. 60403, August 3, 1983, 124 SCRA 1; vide supra note 7.
[16] Jacinto v. CA, 346 Phil. 656, 669 (1997).