G.R. No. 189698 – ELEAZAR P. QUINTO and GERINO A. TOLENTINO, JR., Petitioners, v. COMMISSION ON ELECTIONS, Respondent.

 

                                                                             Promulgated:

 

                  

                                                                             December 1, 2009

 

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DISSENTING OPINION

 

 

CARPIO, J.:

 

 

          I join Chief Justice Reynato S. Puno in his dissent. 

 

 

          The law is plain, clear and unequivocal that appointive public officialsare deemed automatically resigned from office upon filing their certificates of candidacy.  Paragraph 3, Section 11 of Republic Act No. 8436, as amended by Republic Act No. 9369, provides:

 

For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition of registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall effect only upon that start of the aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers, and employees in government-owned or-controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certificate of candidacy. (Emphasis supplied)

 

 

          The final proviso in paragraph 3, Section 11 of RA No. 8436, as amended, is a mere reiteration of Section 66 of the Omnibus Election Code, which provides:

 

          Section 66.      Candidates holding appointive office or positions. —  Any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso factoresigned from his office upon the filing of his certificate of candidacy.

 

 

Congress inserted the final proviso to clarify that Section 66 of the Omnibus Election Code still applies despite the second sentence in the paragraph 3 of Section 11, which states that a person who files a certificate of candidacy is considered a candidate only upon the start of the campaign period.

 

          The final proviso in paragraph 3, Section 11 of RA No. 8436, as amended, and Section 66 of the Omnibus Election Code are constitutional.    

 

          First.   Appointive public officials arecivil service officers or employees. Section 2(1), Article IX-B of the 1987 Constitution provides:  

 

The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters.

 

 

The Constitution expressly prohibits civil service officers and employees from engaging in any electioneering or partisan political activity. Section 2(4), Article IX-B of the 1987 Constitution provides:

         

            No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political activity.  (Emphasis supplied)

 

 

Since the Constitution also provides that suffrage “may be exercised by all citizens,”[1]  Section 2(4) of Article IX-B does not prohibit civil service officers and employees from voting.[2]  Thus, civil service officers and employees cannot engage in any electioneering or partisan political activity except to vote.   This is clear from the second paragraph of Section 3(3), Article XVI of the 1987 Constitution, which provides:

 

No member of the military shall engage directly or indirectly in any partisan political activity, except to vote.  (Emphasis supplied)

 

 

The Civil Service laws[3] implement this constitutional ban by stating that civil service officers and employees cannot engage in any partisan political activity except to vote.  Section 55, Chapter 7, Title I, Book V of the Administrative Code of 1987 provides:

 

          Section 55.      Political Activity. — No officer or employee in the Civil Service including members of the Armed Forces, shall engage directly or indirectly in any partisan political activity or take part in any election except to votenor shall he use his official authority or influence to coerce the political activity of any other person or body. xxx. (Emphasis supplied)   

 

         

          Likewise, the Omnibus Election Code penalizes civil service officers and employees who engage in any partisan political activity except to vote.  Section 261 (i) of the Omnibus Election Code states: 

 

            Section 261.    Prohibited Acts. — The following shall be guilty of an election offense: 

 

xxxx

            (i)         Intervention of public officers and employees. — Any officer or employee in the civil service, except those holding political offices; any officer, employee, or member of the Armed Forces of the Philippines, or any police force, special forces, home defense forces, barangay self-defense units and all other para-military units that now exist or which may hereafter be organized who, directly or indirectly, intervenes in any election campaign or engages in any partisan political activity, except to voteor to preserve public order, if he is a peace officer.  (Emphasis supplied)

 

 

Filing a certificate of candidacy is in itself a partisan political activity.   It is a public announcement that one is running for elective public office.  It is a necessary act for election to public office, and promotes one’s candidacy to public office.  Running for public office, or exercising the right to be voted for, is different from, and not part of, the right to vote.  The only partisan political activity allowed to civil service officers and employees is to vote. Filing a certificate of candidacy is a partisan political activity not allowed to civil service officers and employees. An appointive public official who files a certificate of candidacy violates the express constitutional ban on civil service officers from engaging in any partisan political activity except to vote.  

 

Thus, the law may validly provide that an appointive public official is automatically deemed resigned upon filing a certificate of candidacy. This merely implements the constitutional ban on civil service officers and employees from engaging in any partisan political activity except to vote.

 

Second. There is a substantial distinction between an appointive public official and an elective public official for purposes of considering only appointive public officials as deemed resigned upon the filing of certificate of candidacy.  Appointive public officials are chosen by the appointing power and not elected by the people. They do not have to renew their mandate periodically unlike elective public officials.  They also do not have term limits unlike elective public officials.  

 

Most important of all, the constitutional ban on civil service officers and employees from engaging in any partisan political activity applies to appointive public officials but not to elective public officials.  By the very nature of their office, elective public officials engage in partisan political activities almost all year round, even outside of the campaign period. , because of all these substantial distinctions, there is no violation of the equal protection clause when the law mandates that only appointive public officials, and not elective public officials, are deemed automatically resigned upon the filing of certificate of candidacy.  

 

Third.   The final provisoon the automatic resignation of appointive public officials in paragraph 3, Section 11 of RA No. 8436, as amended by RA No. 9369, qualifies the second sentencein paragraph 3 that, “Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy; xxx.”  In short, the final proviso clearly excludes appointive public officials from the operation of the second sentence.  This is the plain, clear and unequivocal language of the law. 

 

 

 

Fourth. The automatic resignation of appointive public officials upon the filing of certificate of candidacy has been in the statute books for more than 100 years. The earliest law on the matter is Act No. 1582 or the first Election Law enacted by the Philippine Commission in 1907. Section 29 of Act No. 1582[4] provides:

 

            Section 29. Penalties upon officers. --- xxx.

 

            No public officer shall offer himself as a candidate for election, nor shall he be eligible during the time that he holds said public office to election, at any municipal, provincial or Assembly election, except for reelection to the position which he may be holding,and no judge of the Court of First Instance xxx.  (Emphasis supplied)

 

Even this law allowed elective public officers who sought “reelection” to hold on to their office, distinguishing them from appointive public officials who were not allowed to hold on to their office if they sought election. 

 

          Fifth.   One can just imagine the anomaly, conflict and tension that will arise if the Provincial Director of the Philippine National Police, or the Philippine Army Commander whose troops are stationed within the province, will file a certificate of candidacy for governor of the province on 1 December 2009 for the 10 May  2010 elections.  If the PNP Provincial Director or Army Commander is not considered automatically resigned from office, he has until the start of the campaign period on 26 March 2010 to remain in his post, in command of hundreds, if not thousands, of fully-armed personnel.  This is a disaster waiting to happen.

 

In sum, appointive public officials can validly be deemed automatically resigned upon the filing of certificate of candidacy, as provided in the final proviso of paragraph 3, Section 11 of RA No. 8436, as amended by RA No. 9369, as well as in Section 66 of the Omnibus Election Code.  These provisions merely implement the constitutional ban in Section 2(4) of Article IX-B, and Section 3(3) of Article XVI, of the 1987 Constitution.

 

Accordingly, I vote to DISMISSthe petition. 

 

 

 

                                                                                                          ANTONIO T. CARPIO

                                                                    Associate Justice


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

[2]Both the 1935 and 1973 Constitutions contained the phrase “except to vote.”  Thus, Section 2, Article XII of the 1935 Constitution provides: “Section 2. Officers and employees in the Civil Service, including members of the armed forces, shall not engage directly or indirectly in partisan political activities or take part in any election except to vote.”  Section 5, Article XII-B of the 1973 Constitution provides: “Section 5. No officer or employee in the Civil Service, including members of the armed forces, shall engage directly or indirectly, in any partisan political activity or take part in any election except to vote.” 

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

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