G.R. No. 189698 - ELEAZAR P. QUINTO AND
GERINO A. TOLENTINO, JR. v. COMMISSION ON ELECTIONS
Promulgated:
December
1, 2009
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DISSENTING OPINION
PUNO, C.J.:
The case at bar is a Petition for
Certiorari and Prohibition with Prayer for Temporary Restraining Order and/or
Writ of Preliminary Injunction seeking to nullify Section 4(a) of Resolution
No. 8678 of the Commission on Elections (COMELEC) insofar as it decrees that
“[a]ny person holding a public appointive office or position … shall be
considered ipso facto resigned from
his office upon the filing of his certificate of candidacy.”
I.
On October 6, 2009, the COMELEC
issued Resolution No. 8678[1]
(Resolution 8678) which lays down the rules and guidelines on the filing of
certificates of candidacy and nomination of official candidates of registered
political parties in connection with the May 10, 2010 National and Local
Elections.
Resolution 8678 provides, among
others, the effects of filing certificates of candidacy, viz.:
SECTION 4. Effects of Filing
Certificates of Candidacy.- a) Any
person holding a public appointive office or position including active members
of the Armed Forces of the
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.[2]
Under Section 4(a) of said
Resolution, incumbent public appointive officials (including active members of
the Armed Forces of the Philippines) and other officers and employees in
government-owned or controlled corporations are deemed ipso facto resigned from
their respective offices upon the filing of their respective certificates of
candidacy. In contrast, Section 4(b) of the same Resolution provides that
incumbent elected officials shall not be considered resigned upon the filing of
their respective certificates of candidacy for the same or any other elective
office or position.
On October 19, 2009, petitioners
Eleazar P. Quinto and Gerino A. Tolentino – both incumbent public appointive
officials aspiring for elective office in the forthcoming 2010 elections[3] –
filed the present Petition for Certiorari and Prohibition with Prayer for
Temporary Restraining Order and/or Writ of Preliminary Injunction, seeking the
nullification of Section 4(a) of Resolution 8678, and a declaration by this
Court that any person holding a public appointive office or position including
active members of the Armed Forces of the Philippines, and other officers and
employees in government-owned-and-controlled corporations, shall be considered
as ipso facto resigned only upon the
start of the campaign period for which they filed their certificates of
candidacy.
II.
Petitioners
contend that the COMELEC acted with grave abuse of discretion when it decreed
in the assailed Section 4(a) of Resolution 8678 that an appointive government
official shall be considered ipso facto resigned from his office upon the
filing of his certificate of candidacy.[4]
Section 4(a)
contravenes existing laws and jurisprudence on the matter.
Petitioners point out that under
existing law and jurisprudence, a government official who files his certificate
of candidacy (within the advanced period fixed by COMELEC) is considered a
candidate only from the onset of the campaign period for which his certificate
of candidacy was filed, and not upon the mere filing thereof.[5]
Section 11 of Republic Act No. 8436[6] (“RA
8436”), as amended by Republic Act No. 9369[7] (“RA
9369”), expressly provides:
SEC. 15. Official
Ballot. – The Commission shall prescribe the format of the electronic
display and/or the size and form of the official ballot, which shall contain
the titles of the position to be and/or the proposition to be voted upon in an
initiative, referendum or plebiscite x x x
x x x x
For this purpose, the Commission shall set the
deadline for the filing of the certificate of candidacy/petition of
registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period
shall only be considered as a candidate at the start of the campaign period for
which he filed his certificate of candidacy: Provided, That, unlawful acts
or omissions applicable to a candidate shall take effect only upon that start
of the campaign period: Provided, finally, That any person holding a public
appointive office or position, including active members of the armed forces,
and officers and employees in government-owned or-controlled corporations,
shall be considered
ipso facto resigned from his/her
office and must vacate the same at the start of the day of the filing of
his/her certification of candidacy.
x x x x (italics supplied)
Petitioners note that in Lanot vs. COMELEC,[8] we
clarified that, consistent with the legislative intent, the advance filing of
the certificate of candidacy mandated by RA 8436, as amended by RA 9369, is
required only to provide ample time for the printing of official ballots; it
does not make the person filing a certificate of candidacy a candidate, except
only for ballot-printing purposes.[9]
In this regard, petitioners contend
that since, by law, a government official who files his certificate of
candidacy is considered a candidate only upon the onset of the campaign period
for which the certificate was filed, correspondingly, the attendant
consequences of candidacy – including that of being deemed to have ipso facto resigned from one’s office, when and if
applicable – should take effect only upon the onset of the relevant
campaign period.[10] Thus, appointive officials should be
considered ipso facto resigned only upon the start of the campaign period for
which their respective certificates of candidacy were filed.[11]
Petitioners insist that this
interpretation is the better approach since it reconciles and harmonizes the
perceived conflict between that portion of Section 13 of RA 9369 which states
that “[a]ny person who files his certificate of candidacy within this period
shall only be considered as a candidate at the start of the campaign period for
which he filed his certificate of candidacy” and the subsequent proviso in the
same section which states that “any
person holding a public appointive
office or position x x x shall be
considered ipso facto resigned from his/her office and must vacate the same at
the start of
the day of the filing of his/her candidacy,” in a
manner that is consistent with the apparent intent of the legislature to treat
an appointive government official who files his certificate of candidacy as a
candidate only at the start of the campaign period.[12]
Section 4(a)
violates the equal protection clause of the Constitution.
Petitioners also point out that while
Section 4(a) of RA 9369 considers incumbent appointive government officials who
file their respective certificates of candidacy as “ipso facto resigned” from
their offices upon the filing of their certificates of candidacy, a different
rule is imposed in the case of incumbent elected officials who, under Section
4(b) of the same law, are not deemed resigned upon the filing of
their respective certificates of candidacy for the same or any other elective
office or position.[13]
Petitioners contend that such
differential treatment constitutes discrimination that is violative of the
equal protection clause of the Constitution.[14]
III.
At the outset, it must be noted that the
constitutional challenge was raised only with respect to Section 4(a) of
Resolution 8678, and solely on equal protection terms. Nevertheless, in
resolving the present petition, the ponencia
extends its analysis to two other provisions of law – (a) Section 13 of RA
9369, particularly the proviso thereof which states that “any person holding a
public appointive office or position, including active members of the armed
forces, and officers and employees in government-owned 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,” and (b) Section 66 of the Omnibus Election Code.
It then proceeds to strike down said provisions not only on equal protection
grounds, but on overbreadth terms as well.
However, it must be noted that
constitutional judgments are justified only out of the necessity of
adjudicating rights in particular cases between the litigants before the Court.[15] This
principle reflects the conviction that under our constitutional system, courts
are not roving commissions assigned to pass judgment on the validity of the
nation’s laws[16] on matters which have not
been squarely put in issue.
In striking down these provisions of
law, the ponencia ruled that:
(1) These provisions violate the equal
protection clause inasmuch as the differential treatment therein of persons
holding appointive offices as opposed to those holding elective positions is
not germane to the purposes of the law; and
(2) These provisions are
unconstitutionally overbroad insofar as they seek to limit the candidacy of all
civil servants holding appointive posts without distinction as to whether or
not they occupy high/influential positions in the government, and insofar as
they seek to limit the activity of seeking any and all public offices, whether
they be partisan or nonpartisan in character, or whether they be in the
national, municipal or barangay level. According to the ponencia, Congress has not shown a compelling state interest to
restrict the fundamental right involved on such a sweeping scale.
For reasons explained below, I am
constrained to dissent.
IV.
Before proceeding to discuss the
petition in light of the manner in which the majority disposed of the case, it
is necessary to first examine the legislative and jurisprudential history of
the long-standing rule on deemed resignations, as embodied in the assailed
Section 4(a) of Resolution 8678, in order to gain a proper understanding of the
matter at hand.
Pre-Batas Pambansa Blg. 881:
The law on deemed resignations of
public officials who participate as candidates in electoral exercises, finds
its genesis in Act No. 1582, or the 1907 Election Law, the relevant portion of
which reads:
Sec. 29. Penalties upon officers. – x x x x
No public officer shall offer himself as a candidate,
nor shall he be eligible during the time that he holds said public office to
election, at any municipal, provincial or Assembly election, except for
reelection to the position which he may be holding, and no judge of the Court
of First Instance, justice of peace, provincial fiscal, or officer or employee
of the Bureau of Constabulary or of the Bureau of Education shall aid any
candidate or influence in any manner or take part in any municipal, provincial
or Assembly election under penalty of being deprived of his office and being
disqualified to hold any public office whatever for a term of five years:
Provided, however, That the foregoing provision shall not be construed to
deprive any person otherwise qualified of the right to vote at any election.
Subsequently,
the original rule on deemed resignations was bifurcated into two separate
provisions of law – one for appointive officials, and another for elected officials
– although the essence of the original rule was preserved for both groups.
For appointive officials, Section 22
of Commonwealth Act No. 357 provided that:
Every person holding a
public appointive office or position shall ipso facto cease in his office or
position on the date he files his certificate of candidacy.
As
for elected officials, the last paragraph of Section 2 of Commonwealth Act No.
666 stated:
Any elective provincial,
municipal, or city official running for an office, other than the one for which
he has been lastly elected, shall be considered resigned from his office from
the moment of the filing of his certificate of candidacy.
These rules were substantially
reiterated in Republic Act No. 180,[17] or
the Revised Election Code of 1947, which provides in relevant part:
SECTION 26. Automatic
cessation of appointive officers and employees who are candidates. — Every
person holding a public appointive office or position shall ipso facto cease in
his office or position on the date he files his certificate of candidacy.
SECTION 27. Candidate
holding office. — Any elective provincial, municipal, or city official running
for an office, other than the one which he is actually holding, shall be
considered resigned from his office from the moment of the filing of his
certificate of candidacy.
However,
as may be noticed, Section 27 of the Revised Election Code of 1947 introduced
an amendment to the rule in respect of elected officials. While Section 2 of
Commonwealth Act No. 666 used the phrase “…office, other than the one for which he has been lastly elected,” Section 27 spoke of “an office, other
than the one which he is actually
holding.” To be sure, this change was not without purpose. As we explained
in Salaysay v. Castro, et al.:[18]
Before the enactment of section 27 of the Revised
Election Code, the law in force covering the point or question in controversy
was section 2, Commonwealth Act No. 666. Its burden was to allow an elective
provincial, municipal, or city official such as Mayor, running for the same
office to continue in office until the expiration of his term. The legislative
intention as we see it was to favor re-election of the incumbent by allowing
him to continue in his office and use the prerogatives and influence thereof in
his campaign for re-election and to avoid a break in or interruption of his
incumbency during his current term and provide for continuity thereof with the
next term of office if re-elected.
But section 2, Commonwealth Act No. 666 had reference
only to provincial and municipal officials duly elected to their offices and
who were occupying the same by reason of said election at the time that they
filed their certificates of candidacy for the same position. It did not include officials who hold or
occupy elective provincial and municipal offices not by election but by
appointment. x x x
x x x x
However, this was exactly the situation facing the
Legislature in the year 1947 after the late President Roxas had assumed office
as President and before the elections coming up that year. The last national
elections for provincial and municipal officials were held in 1940, those
elected therein to serve up to December, 1943. Because of the war and the
occupation by the Japanese, no elections for provincial and municipal officials
could be held in 1943. Those elected in 1940 could not hold-over beyond 1943
after the expiration of their term of office because according to the views of
the Executive department as later confirmed by this Court in the case of
Topacio Nueno vs. Angeles, 76 Phil., 12, through Commonwealth Act No. 357,
Congress had intended to suppress the doctrine or rule of hold-over. So, those
provincial and municipal officials elected in 1940 ceased in 1943 and their
offices became vacant, and this was the situation when after liberation,
President Osmeña took over as Chief Executive. He filled these vacant positions
by appointment. When President Roxas was
elected in 1946 and assumed office in 1947 he replaced many of these Osmeña
appointees with his own men. Naturally, his Liberal Party followers wanted to
extend to these appointees the same privilege of office retention thereto given
by section 2, Commonwealth Act No. 666 to local elective officials. It could
not be done because section 2, Commonwealth Act No. 666 had reference only to
officials who had been elected. So, it was decided by President Roxas and his
party to amend said section 2, Commonwealth Act No. 666 by substituting the
phrase "which he is actually holding", for the phrase "for which
he has been lastly elected" found in section 2 of Commonwealth Act No.
666.
x x x x
The purpose of the Legislature in making the
amendment, in our opinion, was to give the benefit or privilege of retaining
office not only to those who have been elected thereto but also to those who
have been appointed; stated differently,
to extend the privilege and benefit to the regular incumbents having the right
and title to the office either by election or by appointment. There can be
no doubt, in our opinion, about this intention. We have carefully examined the
proceedings in both Houses of the Legislature. The minority Nacionalista
members of Congress bitterly attacked this amendment, realizing that it was
partisan legislation intended to favor those officials appointed by President
Roxas; but despite their opposition the amendment was passed.
x x x x
We repeat that the purpose of the Legislature in
enacting section 27 of the Revised Election Code was to allow an official to
continue occupying an elective provincial, municipal or city office to which he
had been appointed or elected, while campaigning for his election as long as he
runs for the same office. He may keep said office continuously without any
break, through the elections and up to the expiration of the term of the
office. By continuing in office, the
office holder was allowed and expected to use the prerogatives, authority and
influence of his office in his campaign for his election or re-election to the
office he was holding. Another intention of the Legislature as we have hitherto
adverted to was to provide for continuity of his incumbency so that there would
be no interruption or break, which would happen if he were required to resign
because of his filing his certificate of candidacy.[19]
(italics supplied)
In that case, the Court was faced
with the issue of whether a Vice Mayor, merely acting as Mayor because of the
temporary disability of the regular incumbent, comes under the provision and
exception of Section 27 of the Revised Election Code of 1947. Ruling that a
Vice Mayor acting as Mayor does not “actually hold the office” of Mayor within
the meaning of Section 27, we denied the Petition for Prohibition with
Preliminary Injunction in this wise:
x x x A Vice Mayor acts as
Mayor only in a temporary, provisional capacity. This tenure is indefinite,
uncertain and precarious. He may act for a few days, for a week or a month or
even longer. But surely there, ordinarily, is no assurance or expectation that
he could continue acting as Mayor, long, indefinitely, through the elections
and up to the end of the term of the office because the temporary disability of
the regular, incumbent Mayor may end any time and he may resume his duties.
VICE-MAYOR ACTING AS MAYOR,
OUTSIDE
LEGAL CONTEMPLATION
The case of a Vice-Mayor
acting as Mayor could not have been within the contemplation and the intent of
the Legislature because as we have already stated, that lawmaking body or at
least the majority thereof intended to give the benefits and the privilege of
section 27 to those officials holding their offices by their own right and by a
valid title either by election or by appointment, permanently continuously and
up to the end of the term of the office, not to an official neither elected nor
appointed to that office but merely acting provisionally in said office because
of the temporary disability of the regular incumbent. In drafting and enacting
section 27, how could the Legislature
have possibly had in mind a Vice-Mayor acting as Mayor, and include him in its
scope, and accord him the benefits of retaining the office of Mayor and
utilizing its authority and influence in his election campaign, when his tenure
in the office of Mayor is so uncertain, indefinite and precarious that there
may be no opportunity or occasion for him to enjoy said benefits, and how could
Congress have contemplated his continuing in the office in which he is acting,
when the very idea of continuity is necessarily in conflict and incompatible
with the uncertainty, precariousness and temporary character of his tenure in
the office of Mayor?
x x
x x
MEANING OF PHRASE
"RESIGNED FROM HIS OFFICE"
Section 27 of Republic Act No. 180 in providing that a local elective
official running for an office other than the one he is actually holding, is
considered resigned from his office, must necessarily refer to an office which
said official can resign, or from which he could be considered resigned, even
against his will. For instance, an incumbent Mayor running for the office of Provincial
Governor must be considered as having resigned from his office of Mayor. He
must resign voluntarily or be compelled to resign. It has to be an office which
is subject to resignation by the one occupying it. Can we say this of a
Vice-Mayor acting as Mayor? Can he or could he resign from the office of Mayor
or could he be made to resign therefrom No. As long as he holds the office of
Vice-Mayor to which he has a right and legal title, he, cannot resign or be
made to resign from the office of Mayor because the law itself requires that as
Vice- Mayor he must act as Mayor during the temporary disability of the regular
or incumbent Mayor. If he cannot
voluntarily resign the office of Mayor in which he is acting temporarily, or
could not be made to resign therefrom, then the provision of section 27 of the
Code about resignation, to him, would be useless, futile and a dead letter.
In interpreting a law, we should always avoid a construction that would have
this result, for it would violate the fundamental rule that every legislative
act should be interpreted in order to give force and effect to every provision
thereof because the Legislature is not presumed to have done a useless act.
x x
x x
ANOTHER EXAMPLE
The regular incumbent Mayor
files his certificate of candidacy for the same office of Mayor. Then he goes
on leave of absence or falls sick and the Vice-Mayor acts in his place, and
while thus acting he also files his certificate of candidacy for the same office
of Mayor. Then the Vice-Mayor also goes on leave or falls sick or is suspended,
and because the regular Mayor is still unable to return to office, under
section 2195 of the Revised Administrative Code, the councilor who at the last
general elections received the highest number of votes, acts as Mayor and while
thus acting he also files his certificate of candidacy for the office of Mayor.
The Vice-Mayor also campaigns for the same post of Mayor claiming like the
herein petitioner that he did not lose his office of Vice-Mayor because he
filed his certificate of candidacy while acting as Mayor and thus was actually
holding the office of Mayor. Using the same argument, the councilor who had
previously acted as Mayor also campaigns for his election to the same post of
Mayor while keeping his position as councilor. Thus we would have this singular
situation of three municipal officials occupying three separate and distinct
offices, running for the same office of Mayor, yet keeping their different
respective offices, and strangely enough two of those offices (Vice- Mayor and
Councilor) are different from the office of Mayor they are running for. Could
that situation have been contemplated by the Legislature in enacting section 27
of the Revised Election Code? We do not think so, and yet that would happen if
the contention of the petitioner about the meaning of "actually holding
office" is to prevail.
x x
x x
TWO OFFICIALS "ACTUALLY
HOLDING" THE SAME
ELECTIVE OFFICE
We have already said that a
Mayor under temporary disability continues to be Mayor (Gamalinda vs.
x x
x x
EXCEPTION TO BE CONSTRUED
STRICTLY
Section 26 of the Revised
Election Code provides that every person holding an appointive office shall
ipso facto cease in his office on the date he files his certificate of
candidacy. Then we have section 27 of the same Code as well as section 2 of
Commonwealth Act No. 666 which it amended, both providing that local elective
officials running for office shall be considered resigned from their posts,
except when they run for the same office they are occupying or holding. It is evident that the general rule is that
all Government officials running for office must resign. The authority or
privilege to keep one's office when running for the same office is the
exception. It is a settled rule of statutory construction that an exception or
a proviso must be strictly construed specially when considered in an attempt to
ascertain the legislative intent.
x x
x x
Applying this rule, inasmuch
as petitioner herein claimed the right to retain his office under the exception
above referred to, said claim must have to be judged strictly, — whether or not
his mere acting in the office of Mayor may be legally interpreted as actually
holding the same so as to come within the exception. As we have already
observed, literally and generally speaking, since he is discharging the duties
and exercising the powers of the office of Mayor he might be regarded as
actually holding the office; but strictly speaking and considering the purpose
and intention of the Legislature behind section 27 of the Revised Election
Code, he may not and cannot legitimately be considered as actually holding the
office of Mayor.
RETENTION OF OFFICE
We have, heretofore[,]
discussed the case as regards the resignation of an office holder from his
office by reason of his running for an office different from it; and our
conclusion is that it must be an office that he can or may resign or be
considered resigned from; and that the office of Mayor is not such an office
from the stand point of a Vice-Mayor. Let us now consider the case from the
point of view of retaining his office because he is running for the same
office, namely — retention of his office. As we have already said, the
Legislature intended to allow an office holder and incumbent to retain his
office provided that he runs for the same. In other words, he is supposed to
retain the office before and throughout the elections and up to the expiration
of the term of the office, without interruption. Can a Vice-Mayor acting as
Mayor be allowed or expected to retain the office of Mayor? The incumbent Mayor
running for the same office can and has a right to keep and retain said office
up to the end of his term. But a Vice-Mayor merely acting as Mayor and running
for said office of Mayor, may not and cannot be expected to keep the office up
to the end of the term, even assuming that by acting as Mayor he is actually
holding the office of Mayor, for the simple reason that his holding of the same
is temporary, provisional and precarious and may end any time when the
incumbent Mayor returns to duty. Naturally, his temporary holding of the office
of Mayor cannot be the retention or right to keep the office intended by the
Legislature in section 27 of Republic Act No. 180. So that, neither from the
point of view of resignation from the office of Mayor nor the standpoint of
retention of said office, may a Vice-Mayor acting as Mayor, like herein
petitioner, come within the provisions and meaning of section 27 of the
Election Code, particularly the exception in it.[20]
(italics supplied)
In
contrast, Castro v. Gatuslao[21]
dealt with the issue of whether a Vice Mayor who had filed a certificate of
candidacy for reelection to the same post, and who on the next day became
Mayor, due to vacancy in the mayoralty, comes within the sphere of action of
Section 27 of Republic Act No. 180. We ruled in the negative, as follows:
The last words of said
section, "shall be considered resigned from the moment of the filing of
his certificate of candidacy", indicates that the moment of such filing is the point of time to be referred to for
the operation and application of the statute, and for the determination of its
essential prerequisite, to wit, that the official involved shall file his
candidacy for an office other than that which he is actually holding. The law
nowhere mentions or refers to positions that the candidate might hold either
before or after the filing of the certificate of candidacy.
What office was petitioner
Castro actually holding on September 8, 1955, when he filed his certificate of
candidacy? Vice-Mayor of Manapla. For what office did he run and file his
certificate of candidacy? For Vice-Mayor of Manapla. Clearly, then, he was a
candidate for a position that he was actually holding at the time he filed his
certificate of candidacy, for "actually" necessarily refers to that
particular moment; hence, he should not be considered resigned or deemed to
have forfeited his post. Deprivation of office without fault of the holder is
not to be lightly presumed nor extended by implication.
That the petitioner came later to hold another office by operation of
law, does not alter the case. The wording of the law plainly indicates that
only the date of filing of the certificate of candidacy should be taken into
account. The law does not make the forfeiture dependent upon future
contingencies, unforeseen and unforeseeable, since the vacating is expressly
made effective as of the moment of the filing of the certificate of candidacy,
and there is nothing to show that the forfeiture is to operate retroactively. The statute does not
decree that an elective municipal official must be considered resigned if he
runs for an office other than the one held by him at or subsequently to the
filing of his certificate of candidacy; neither does it declare that he must
vacate if he runs for an office other than the one actually held by him at any
time before the day of the election.
Since the law did not divest
the petitioner Castro of his position of Vice-Mayor, he was entitled to the
mayoralty of Manapla when that post became vacant the next day; and as his
assumption of that office did not make herein petitioner hold a post different
from that for which he became a candidate at the time his certificate of
candidacy was filed, he did not forfeit the office of Mayor; therefore the
respondent could not legally appoint another mayor for Municipality of Manapla.
Petitioner's case becomes the more meritorious when it is considered that he
was elevated from Vice-Mayor to Mayor by operation of law and not by his own
will.[22] (italics
supplied)
As to the nature of the forfeiture of
office, Section 27 of the Revised Election Code is clear: it is automatic and
permanently effective upon the filing of the certificate of candidacy for
another office.[23] Only the moment and act
of filing are considered.[24] Once
the certificate is filed, the seat is forfeited forever and nothing save a new
election or appointment can restore the ousted official, even if the
certificate itself be subsequently withdrawn.[25]
Moving forward, Republic Act No.
6388,[26] or
the Election Code of 1971, imposed similar provisos on appointive and elective
officials, as follows:
SECTION 23. Candidates Holding Appointive Office or
Position. — Every person holding a public appointive office or position,
including active members of the Armed Forces of the Philippines and every
officer or employee in government-owned or controlled corporations, shall
ipso-facto cease in his office or position on the date he files his certificate
of candidacy: Provided, That the filing of a certificate of candidacy shall not
affect whatever civil, criminal or administrative liabilities which he may have
incurred.
SECTION 24. Candidate Holding Elective Office. — Any
elective provincial, sub-provincial, city, municipal or municipal district
officer running for an office other than the one which he is holding in a
permanent capacity shall be considered ipso facto resigned from his office from
the moment of the filing of his certificate of candidacy.
Every elected official shall
take his oath of office on the day his term of office commences, or within ten days
after his proclamation if said proclamation takes place after such day. His
failure to take his oath of office as herein provided shall be considered
forfeiture of his right to the new office to which he has been elected unless
said failure is for a cause or causes beyond his control.
However, the Election Code of 1971
was subsequently repealed by Presidential Decree No. 1296,[27] or
the 1978 Election Code. The latter law provided the same rule on deemed
resignations of appointive officials, with the added exception that Cabinet
members shall continue in their offices, subject to the pleasure of the
President. Section 29 of the 1978 Election Code thus states:
SECTION 29. Candidates
holding appointive office or position. — Every person holding a public appointive
office or position, including active members of the Armed Forces of the
With respect to elected officials,
the 1978 Election Code initially provided a different rule. Instead of deeming
them ipso facto resigned from office upon filing their certificates of
candidacy, they were merely considered on forced leave of absence, viz.:
SECTION 30. Candidates holding political office. —
Governors, mayors, members of the various sanggunians, or barangay officials,
shall, upon filing of a certificate of candidacy, be considered on forced leave
of absence from office.
Almost
two years later, however, President Marcos anticipated that applying “...
Section 30 in the local elections on January 30, 1980, may give rise to chaos
and confusion due to the difficulty of designating promptly and immediately the
replacements of such officials to assure the continuity and stability of local
governments.”[28] He accordingly issued
Presidential Decree No. 1659[29] and
Presidential Decree No. 1659-A,[30]
which reverted to the former rule on deemed resignations. Consequently, elected
provincial, city, municipal, or municipal district officers who ran for offices
other than the ones which they were holding, were considered ipso facto
resigned from their respective offices upon the filing of their certificates of
candidacy, as follows:
SEC. 1. Candidate holding
elective office. — Any person occupying an elective provincial, city,
municipal, or municipal district position who runs for an office other than the
one which he is holding shall be considered ipso facto resigned from his office
upon the filing of his certificate of candidacy: Provided, however, That during
the pendency of the election, the President of the Philippines may appoint in
an acting capacity said candidate to the office for which he filed a
certificate of candidacy and which has been rendered vacant by virtue of the
operation of the preceding provision of this section.[31]
Batas Pambansa Blg. 881:
On December 3, 1985, President Marcos
approved Batas Pambansa Blg. 881, or the Omnibus Election Code.[32] The
pertinent provisions provide in relevant part:
SECTION 66. Candidates holding appointive office or positions.
— Any person holding a public appointive office or position, including active
members of the Armed Forces of the
SECTION 67. Candidates holding elective office. — Any
elective official, whether national or local, running for any office other than
the one which he is holding in a permanent capacity, except for President and
Vice-President, shall be considered ipso facto resigned from his office upon
the filing of his certificate of candidacy.
As may be gleaned therefrom, the
Omnibus Election Code substantially retained the rules on deemed resignations
for both elected and appointive officials, except that:
(1) Cabinet members were no
longer considered a unique class of appointive officials who may, subject to
the pleasure of the President, continue in their offices notwithstanding the
filing of their certificates of candidacy;
(2) The rule covering elected
officials was expanded to include those holding national offices;
(3) Nevertheless, the rule
covering elected officials carved out an exception insofar as the presidency
and vice presidency are concerned, such that an elected official who was
running for President or Vice-President, was not considered ipso facto resigned from his office upon the filing
of his certificate of candidacy.
In Dimaporo v. Mitra, et al.,[33] this Court elucidated on the changes made in respect of elected officials (i.e., (2) and (3) enumerated above) by
adverting to the plenary deliberations of the Batasang Pambansa, thus:
It must be noted that only
in B.P. Blg. 881 are members of the legislature included in the enumeration of
elective public officials who are to be considered resigned from office from
the moment of the filing of their certificates of candidacy for another office,
except for President and Vice-President. The advocates of Cabinet Bill No. 2
(now Section 67, Article IX of B.P. Blg. 881) elucidated on the rationale of
this inclusion, thus:[34]
MR. PALMARES: In the old
Election Code, Your Honor, in the 1971 Election Code, the provision seems to be
different — I think this is in Section 24 of Article III.
Any elective provincial,
sub-provincial, city, municipal or municipal district officer running for an
office other than the one which he is holding in a permanent capacity shall be
considered ipso facto resigned from his office from the moment of the filing of
his certificate of candidacy.
May I know, Your Honor, what
is the reason of the Committee in departing or changing these provisions of
Section 24 of the old Election Code and just adopting it en toto? Why do we
have to change it? What could possibly be the reason behind it, or the
rationale behind it?
MR. PEREZ (L.): I have
already stated the rationale for this, Mr. Speaker, but I don't mind repeating
it. The purpose is that the people must
be given the right to choose any official who belongs to, let us say, to the
Batasan if he wants to run for another office. However, because of the practice
in the past where members of the legislature ran for local offices, but did not
assume the office, because of that spectacle the impression is that these
officials were just trifling with the mandate of the people. They have already
obtained a mandate to be a member of the legislature, and they want to run for
mayor or for governor and yet when the people give them that mandate, they do
not comply with that latter mandate, but still preferred (sic) to remain in the
earlier mandate. So we believe, Mr. Speaker, that the people's latest mandate
must be the one that will be given due course. . . .
Assemblyman Manuel M.
Garcia, in answer to the query of Assemblyman Arturo Tolentino on the
constitutionality of Cabinet Bill No. 2, said:[35]
MR. GARCIA (M.M.): Thank
you, Mr. Speaker.
Mr. Speaker, on the part of
the Committee, we made this proposal based on constitutional grounds. We did
not propose this amendment mainly on the rationale as stated by the Gentlemen
from Manila that the officials running for office other than the ones they are
holding will be considered resigned not
because of abuse of facilities of power or the use of office facilities but
primarily because under our Constitution, we have this new chapter on
accountability of public officers. Now, this was not in the 1935
Constitution. It states that (sic)
Article XIII, Section 1 — 'Public office is a public trust. Public officers and
employees shall serve with the highest degree of responsibility, integrity,
loyalty and efficiency and shall remain accountable to the people.'
Now, what is this significance of this new provision on accountability
of public officers? This only means that all elective public officials should
honor the mandate they have gotten from the people. Thus, under our
Constitution, it says that: 'Members of the Batasan shall serve for the term of
6 years, in the case of local officials and 6 years in the case of barangay
officials.[’] Now, Mr. Speaker, we have precisely included this as part of the
Omnibus Election Code because a Batasan
Member who hold (sic) himself out with the people and seek (sic) their support
and mandate should not be allowed to deviate or allow himself to run for any
other position unless he relinquishes or abandons his office. Because his
mandate to the people is to serve for 6 years. Now, if you allow a Batasan or a
governor or a mayor who was mandated to serve for 6 years to file for an office
other than the one he was elected to, then, that clearly shows that he has not
(sic) intention to service the mandate of the people which was placed upon him
and therefore he should be considered ipso facto resigned. I think more
than anything that is the accountability that the Constitution requires of
elective public officials. It is not because of the use or abuse of powers or
facilities of his office, but it is because of the Constitution itself which I
said under the 1973 Constitution called and inserted this new chapter on
accountability.
Now, argument was said that
the mere filing is not the intention to run. Now, what is it for? If a Batasan Member files the certificate of
candidacy, that means that he does not want to serve, otherwise, why should he
file for an office other than the one he was elected to? The mere fact
therefore of filing a certificate should be considered the overt act of
abandoning or relinquishing his mandate to the people and that he should
therefore resign if he wants to seek another position which he feels he could
be of better service.
As I said, Mr. Speaker, I
disagree with the statements of the Gentleman from Manila because the basis of
this Section 62 is the constitutional provision not only of the fact that
Members of the Batasan and local officials should serve the entire 6-year term
for which we were elected, but because of this new chapter on the
accountability of public officers not only to the community which voted him to
office, but primarily because under this
commentary on accountability of public officers, the elective public officers
must serve their principal, the people, not their own personal ambition.
And that is the reason, Mr. Speaker, why we opted to propose Section 62 where candidates
or elective public officers holding offices other than the one to which they
were elected, should be considered ipso facto resigned from their office upon
the filing of the certificate of candidacy.[36]
(emphasis in the original)
Corollarily, Dimaporo v. Mitra, et al. involved Mohamad Ali Dimaporo, who was
elected Representative for the Second Legislative District of Lanao del Sur
during the 1987 congressional elections. He took his oath of office on January
9, 1987 and thereafter performed the duties and enjoyed the rights and
privileges pertaining thereto. Three years later, he filed with the COMELEC a
Certificate of Candidacy for the position of Regional Governor of the
Autonomous Region in Muslim Mindanao. Upon being informed of this development,
the Speaker and Secretary of the House of Representatives excluded Dimaporo’s
name from the Roll of Members of the House of Representatives pursuant to
Section 67 of the Omnibus Election Code. Having lost in the 1990 elections,
petitioner expressed his intention to the Speaker of the House of
Representatives “to resume performing my duties and functions as elected Member
of Congress,” but he failed in his bid to regain his seat.
We sustained Dimaporo’s forfeiture of
his congressional seat. Holding that the concept of voluntary renunciation of
office under Section 7, Article VI of the Constitution is broad enough to
include the situation envisioned in Section 67 of the Omnibus Election Code, we
ruled:
That the act, contemplated
in Section 67, Article IX of 8.P. Blg. 881, of filing a certificate of
candidacy for another office constitutes an overt, concrete act of voluntary
renunciation of the elective office presently being held is evident from this
exchange between the Members of Parliament Arturo Tolentino and Jose Roño:
"MR. ROÑO:
My reasonable ground is
this: if you will make the person . . . my, shall we say, basis is that in one
case the person is intending to run for an office which is different from his
own, and therefore it should be considered, at least from the legal
significance, an intention to relinquish his office.
MR. TOLENTINO:
Yes.
MR. ROÑO:
And in the other, because he
is running for the same position, it is otherwise.
MR. TOLENTINO:
Yes, but what I cannot see
is why are you going to compel a person to quit an office which he is only
intending to leave? A relinquishment of office must be clear, must be definite.
MR. ROÑO:
Yes, sir. That's precisely,
Mr. Speaker, what I am saying that while I do not disagree with the conclusion
that the intention cannot be enough, but I am saying that the filing of the
certificate of candidacy is an overt act of such intention. It's not just an
intention: it's already there."
In Monroy vs. Court of
Appeals, a case involving Section 27 of R.A. No. 180 above-quoted, this Court
categorically pronounced that "forfeiture (is) automatic and permanently
effective upon the filing of the certificate of candidacy for another office.
Only the moment and act of filing are considered. Once the certificate is
filed, the seat is forever forfeited and nothing save a new election or
appointment can restore the ousted official. Thus, as We had occasion to
remark, through Justice J.B.L. Reyes, in Castro vs. Gatuslao:
“. . . 'The wording of the
law plainly indicates that only the date of filing of the certificate of
candidacy should be taken into account. The law does not make the forfeiture
dependent upon future contingencies, unforeseen and unforeseeable, since the
vacating is expressly made as of the moment of the filing of the certificate of
candidacy....'”
As the mere act of filing
the certificate of candidacy for another office produces automatically the
permanent forfeiture of the elective position being presently held, it is not
necessary, as petitioner opines, that the other position be actually held. The
ground for forfeiture in Section 13, Article VI of the 1987 Constitution is
different from the forfeiture decreed in
Section 67, Article IX of B.P.
Blg. 881, which is
actually a mode of
voluntary renunciation of
office under Section 7, par. 2 of Article VI of the Constitution.
The legal effects of filing
a certificate of candidacy for another office having been spelled out in
Section 67, Article IX, B.P. Blg. 881 itself, no statutory interpretation was
indulged in by respondents Speaker and Secretary of the House of
Representatives in excluding petitioner's name from the Roll of Members. The
Speaker is the administrative head of the House of Representatives and he
exercises administrative powers and functions attached to his office. As
administrative officers, both the Speaker and House Secretary-General perform
ministerial functions. It was their duty to remove petitioner's name from the
Roll considering the unequivocal tenor of Section 67, Article IX, B.P. Blg.
881. When the Commission on Elections communicated to the House of
Representatives that petitioner had filed his certificate of candidacy for
regional governor of Muslim Mindanao, respondents had no choice but to abide by
the clear and unmistakable legal effect of Section 67, Article IX of B.P. Blg.
881. It was their ministerial duty to do so. These officers cannot refuse to
perform their duty on the ground of an alleged invalidity of the statute
imposing the duty. The reason for this is obvious. It might seriously hinder
the transaction of public business if these officers were to be permitted in
all cases to question the constitutionality of statutes and ordinances imposing
duties upon them and which have not judicially been declared unconstitutional.
Officers of the government from the highest to the lowest are creatures of the
law and are bound to obey it.[37]
Aguinaldo, et al. v. Commission on
Elections[38] provided the
occasion to revisit that issue. In that case, petitioners sought to prevent the
COMELEC from enforcing Section 67 on the ground that it was violative of the
Constitution in that it effectively shortens the terms of office of elected
officials. We, however, fully reiterated the applicability of the doctrine of
voluntary renunciation announced in Dimaporo
v. Mitra, et al.
Further to the rule on appointive
officials, PNOC Energy Development
Corporation, et al. v. National Labor Relations Commission, et al.[39] held
that an employee in a government-owned or -controlled corporation without an
original charter (and therefore not covered by Civil Service Law) still falls
within the scope of Section 66 of the Omnibus Election Code. We ruled:
When the Congress of the Philippines reviewed the
Omnibus Election Code of 1985, in connection with its deliberations on and
subsequent enactment of related and repealing legislation — i.e., Republic Acts
Numbered 7166: "An Act Providing for Synchronized National and Local
Elections and for Electoral Reforms, Authorizing Appropriations Therefor, and
for Other Purposes" (effective November 26, 1991), 6646: "An Act
Introducing Additional Reforms in the Electoral System and for Other
Purposes" (effective January 5, 1988) and 6636: "An Act Resetting the
Local Elections, etc." (effective November 6, 1987), it was no doubt aware
that in light of Section 2(1), Article IX of the 1987 Constitution: (a)
government-owned or controlled corporations were of two (2) categories — those
with original charters, and those organized under the general law — and (b)
employees of these corporations were of two (2) kinds — those covered by the
Civil Service Law, rules and regulations because employed in corporations
having original charters, and those not subject to Civil Service Law but to the
Labor Code because employed in said corporations organized under the general
law, or the Corporation Code. Yet Congress made no effort to distinguish
between these two classes of government-owned or controlled corporations or
their employees in the Omnibus Election Code or subsequent related statutes,
particularly as regards the rule that an any employee "in government-owned
or controlled corporations, shall be considered ipso facto resigned from his
office upon the filing of his certificate of candidacy."
Be this as it
may, it seems obvious to the Court that a government-owned or controlled
corporation does not lose its character as such because not possessed of an
original charter but organized under the general law. If a corporation's capital stock is owned by the
Government, or it is operated and managed by officers charged with the mission
of fulfilling the public objectives for which it has been organized, it is a
government-owned or controlled corporation even if organized under the
Corporation Code and not under a special statute; and employees thereof, even if not covered by the Civil Service but by the
Labor Code, are nonetheless "employees in government-owned or controlled
corporations," and come within the letter of Section 66 of the Omnibus
Election Code, declaring them "ipso facto resigned from . . . office upon
the filing of . . . (their) certificate of candidacy."
What all this imports is that Section 66 of the
Omnibus Election Code applies to officers and employees in government-owned or
controlled corporations, even those organized under the general laws on
incorporation and therefore not having an original or legislative charter, and
even if they do not fall under the Civil Service Law but under the Labor Code.
In other words, Section 66 constitutes just cause for termination of employment
in addition to those set forth in the Labor Code, as amended.[40]
(italics supplied)
Republic Act No. 8436:
RA 8436 was silent on the rule in
respect of appointive officials. Therefore, the governing law on the matter is
still the one provided under the Omnibus Election Code. Hence, any person
holding a public appointive office or position, including active members of the
Armed Forces of the Philippines, and officers and employees in government-owned
or controlled corporations, shall be considered ipso facto resigned from his
office upon the filing of his certificate of candidacy.
On the other hand, RA 8436 modified
the rule in respect of the automatic resignation of elected officials running
for any office other than the ones they were currently holding in a permanent
capacity, except the presidency and the vice presidency. Whereas, under the
Omnibus Election Code they were considered ipso facto resigned from office upon
filing their certificates of candidacy,
RA 8436 considered them resigned only
upon the start of the campaign period corresponding to the positions for
which they are running, viz.:
SECTION 11.
Official Ballot. — x x x
x x
x x
For this purpose, the deadline
for the filing of certificate of candidacy/petition for
registration/manifestation to participate in the election shall not be later
than one hundred twenty (120) days before the elections: Provided, That, any elective official, whether national or
local, running for any office other than the one which he/she is holding in a
permanent capacity, except for president and vice-president, shall be deemed
resigned only upon the start of the campaign period corresponding to the
position for which he/she is running: Provided, further, That, x x x. (italics supplied)
In temporal terms, however, the distinction is more apparent than
real.
RA 8436 authorized the COMELEC to use
an automated election system in the 1998 election and succeeding elections.
Considering that automation requires a pre-printed ballot, the legislators
deemed it necessary to move the deadline for the filing of certificates of
candidacy to 120 days before election day. If the reckoning point of the
automatic resignation was not moved to the start of the campaign period, then
elected officials running for any office other than the ones they were holding
in a permanent capacity (except the presidency and the vice presidency), were
going to be considered resigned as early as 120 days before the election,
leaving their constituents bereft of public officials for an extended period of
time.
This was the evil sought to be
avoided by the legislators when they transferred the reckoning period of deemed
resignations from the time the certificate of candidacy is filed (under the
pre-RA 8436 regime) to the start of the campaign period (under RA 8436). After
all, RA 8436 did not alter the campaign periods provided under existing
election laws. Consequently, the end result is that the particular point in
time (vis-à-vis election day) at which an elected official is considered
resigned under RA 8436, is not significantly different from the point in time
at which an elected official was considered resigned prior to RA 8436.
The deliberations of the Bicameral
Conference Committee on this point are instructive:[41]
THE CHAIRMAN (REP.
TANJUATCO). Further to the question of the Deputy Speaker, the comment of this
representation concerning the filing of certificate of candidacy in 2001, I
suggest should also be applied to 1998, in the sense that the mere filing of
the certificate of candidacy at an earlier date should not result in the loss
of the office by a person running for a position other than what he is holding,
nor the restrictions that will apply to a candidate. Would the Senate agree to
that?
THE CHAIRMAN (SEN. FERNAN).
You know, that particular proviso, we eliminated.
SEN. GONZALES. Yes.
THE CHAIRMAN (SEN. FERNAN).
Because some Senators felt that it will be applied to them and they would be
considered resigned, ano? But it was earlier manifested that it will be worded
in such a way that it will not apply to those running for [the] presidency and
vice-presidency.
SEN. GONZALES. That is the
present law.
THE CHAIRMAN (SEN. FERNAN).
Yeah, that is the present law. So, the
present law will be maintained but the concern about the inclusion of that
particular provision is because they don’t want a long period for them to be
considered resigned. In other words, if you file your certificate of candidacy
on January 11 and you are already considered resigned, there is a long gap
until election day.
THE CHAIRMAN (REP.
TANJUATCO). That’s right.
THE CHAIRMAN (SEN. FERNAN). They were hoping that it will be limited
only to 45 days before election.
THE CHAIRMAN (REP.
TANJUATCO). In the case of non-national candidates.
THE CHAIRMAN (SEN. FERNAN).
Non-national. I mean, what would you feel?
THE CHAIRMAN (REP.
TANJUATCO). Just to clarify to our Senate counterparts, there was no intention
on the part of the House to withdraw the provision in existing law that the
Senator running for president or vice-president will not be deemed resigned
even if he files his certificate of candidacy for those offices. The only reason why the provision adverted
to was included was, as the distinguished Chairman mentioned, to avoid the
situation where the constituency of that official filing that certificate of
candidacy will be bereft of an official that that constituency elected for a
three-year period.
THE CHAIRMAN (SEN. FERNAN).
So, the phraseology is, “Provided that the candidate who is aspiring for an
elective office other than his incumbent position or the presidency or the
vice-presidency, shall be deemed resigned forty-five (45) days before
elections.”
THE CHAIRMAN (REP.
TANJUATCO). Or maybe using the word “under existing law”.
REP. ABUEG. Mr. Chairman.
THE CHAIRMAN (REP.
TANJUATCO). Our expert.
REP. ABUEG. To make it
clear, while in the Senate version this was deleted, in order to remove any
doubt, we can provide here the exception that, “except for the Office[s] of the
President and Vice President, a candidate who is aspiring for an elected
position other than his incumbent position shall be deemed resigned forty-five
(45) days before the election.” So, that will leave no room for doubt that the
exemption existing is also carried in this proposed bill, proposed law.
THE CHAIRMAN (SEN. FERNAN).
x x x Okay. So, if we agree, provided that it excludes those aspiring for the
presidency and vice-presidency.
THE CHAIRMAN (REP.
TANJUATCO). Yeah.
REP. DAZA. Mr. Chairman, in
other words, we will keep the exception that for those running for president or
vice-president, there is no resignation. x x x
x x
x x
THE CHAIRMAN (REP.
TANJUATCO). Let’s start to categorize it first. Insofar as elections from x x x
2001 and thereafter are concerned, Comelec has agreed that [the] 120-day period
would be sufficient to print the ballots. But
again since we don’t want to bring about a situation where an official who has
been elected by his constituency for a term of three years to be removed from
office way, way before the start of the campaign period, we would ask that the
proviso that he will not be deemed resigned from the office, if he is deemed
resigned under existing law, should be – that he will be deemed resigned only
at the start of the campaign period.
x x x x
We are not altering the
present rule concerning resignations as a result of filing of certificates of
candidacy. As a matter of fact, we are providing
this so that the existing rule [in respect of the proximity of the “deemed
resignation” to the election] will not be changed.
THE ACTING CHAIRMAN (SEN.
FERNAN). Okay. So, instead of saying “deemed resigned 45 days before the
elections”, it should be “at the start of the campaign period”.
THE CHAIRMAN (REP.
TANJUATCO). At the start of the campaign period.
THE ACTING CHAIRMAN (SEN.
FERNAN). Deemed resigned at the start of the campaign period.
THE CHAIRMAN (REP.
TANJUATCO). For which he is running.
THE ACTING CHAIRMAN (SEN.
FERNAN). And then we will also exclude the presidency or vice presidency as
provided by existing law?
THE CHAIRMAN (REP.
TANJUATCO). That’s right, Mr. Chairman.
THE ACTING CHAIRMAN (SEN.
FERNAN). Okay. So, that’s sufficiently – that’s clarified.
x x
x x
THE ACTING CHAIRMAN (SEN.
FERNAN). x x x
Now, the Senate Panel will
note, and we would like to invite the attention of [the] House [Panel] that we
eliminated – the Senate eliminated the proviso: “That candidates who are aspiring
for an elective office other than his incumbent position shall be deemed
resigned forty-five (45) days before election.” It was explained to us earlier
by the House Panel...
THE CHAIRMAN (REP.
TANJUATCO). Hindi kami nami-mersonal dito. (Laughter)
THE ACTING CHAIRMAN (SEN.
FERNAN). ... that the idea there was not to hit the Senators running for the
presidency. (Laughter)
THE CHAIRMAN (REP.
TANJUATCO). Now, the intention of the
House was to avoid the situation where candidates running for an office other
than what they are holding, will be considered resigned much earlier than
anticipated by their constituents who elected them for the period.
x x x x
THE CHAIRMAN (REP.
TANJUATCO). The only reason why we
included this was to obviate a situation where incumbents running for a
position other than what they’re holding and other than for president or vice
president will immediately be considered, or very early during his term[,]
considered resigned.
SENATOR ROCO. Hindi ano eh –
because wala namang epekto iyan sa deadline.
THE CHAIRMAN (REP.
TANJUATCO). Mayroon.
MR. FERNANDO. May deadline po, because under Section 67
[of the Omnibus Election Code], if you file your certificate of candidacy for
the position other than what you’re holding, you’re already considered resigned
and yet you cannot campaign. So with the recommendation of Congressman
Tanjuatco, you can still serve during the period from January 11, if we set it
January 11, until February 10 when the campaign period starts, or...
THE CHAIRMAN (REP.
TANJUATCO). Or even beyond if you’re
running for local office.
MS. (sic) FERNANDO. Or beyond March 25 if you run for local. So it’s
beneficial, it will not adversely affect any candidate.
THE CHAIRMAN (SEN. FERNAN).
So in this connection then, may I just say something, ‘no. Earlier this morning
when Ding... when the Chairman gave this clarification, I felt that the
objection has been, to a certain extent, removed so that this is the
phraseology now that it was tentatively agreed: “For this purpose, the deadline
for the filing of certificate of candidacy/petition for
registration/manifestation to participate in the election shall not be later
than one hundred twenty (120) days before the election provided that the
candidate who is aspiring for an elective office other than his incumbent
position or the presidency or the vice presidency” ... Because of the existing
law. “...shall be deemed resigned at the start of the campaign.”
THE CHAIRMAN (REP.
TANJUATCO). Only upon the start.
THE CHAIRMAN (SEN. FERNAN).
Only upon the start of the campaign period.
Now, I do not know how it
strikes the other members of the Senate panel.
SEN. ROCO. What is the
phraseology of the present law?
THE CHAIRMAN (SEN. FERNAN). The
present, as far as the Senate version... Ah, yeah, go ahead.
SEN. ROCO. Sixty-seven.
THE CHAIRMAN (REP.
TANJUATCO). “Any elective official, whether national or local[,] running for
any office other than the one which he is holding in a permanent capacity,
except for President and Vice-President, shall be considered ipso facto
resigned from his office upon the filing of his certificate of candidacy.”
Iyon ang
umiiral ngayon. Ngayon, in our bill, since there is an early filing of
certificate of candidacy, if there is no qualification, he will be considered
resigned at a very early stage.
SEN. ROCO. Why don’t we use
those words and add provision of ano, for the local. Just retain those words
para we don’t invent new phraseology. Tingnan mo ang 67. Provided... Ang
proviso mo will begin with the present law.
THE CHAIRMAN (SEN. (sic) TANJUATCO). Hindi. Ganito ang
gawin natin.
SEN. ROCO. O, sige.
THE CHAIRMAN (REP.
TANJUATCO). Same thing, ‘no[.]Any elective official, whether national or
local[,] running for any office other than the one which he is holding in a
permanent capacity, except for President and Vice-President, shall be
considered ipso facto resigned from his office only upon the start of the
campaign period corresponding to the position for which he is running. (italics
supplied)
Republic Act No. 9006:
Republic Act No. 9006,[42] or
the Fair Election Act, was silent on the rule in respect of appointive
officials. Therefore, the governing law is still the one provided under the
Omnibus Election Code, i.e., any
person holding a public appointive office or position, including active members
of the Armed Forces of the
However, the Fair Election Act
expressly repealed, among others, Section 67 of Batas Pambansa Blg. 881, or the
Omnibus Election Code, and rendered ineffective the proviso in RA 8436 relating
to the automatic resignations of elected officials, as follows:
SECTION 14. Repealing Clause. — Sections 67 and 85 of the Omnibus Election Code (Batas Pambansa
Blg. 881) and Sections 10 and 11 of Republic Act No. 6646 are hereby repealed.
As a consequence, the first proviso in
the third paragraph of Section 11 of Republic Act No. 8436 is rendered
ineffective. All laws, presidential decrees, executive orders, rules and
regulations, or any part thereof inconsistent with the provisions of this Act
are hereby repealed or modified or amended accordingly. (italics supplied)
It is worthy to note that the express
repeal of Section 67 of the Omnibus Election Code may be considered
superfluous, as this has already been impliedly repealed (for inconsistency) by
RA 8436. As previously mentioned, officials were considered ipso facto resigned
from office upon filing their
certificates of candidacy under the Omnibus Election Code, whereas RA 8436
considered them resigned only upon the
start of the campaign period corresponding to the positions for which they
are running. Section 67 may nevertheless have been expressly mentioned in the
repealing clause to clarify legislative intent, because automated elections
(the subject matter of RA 8436) have not yet come to pass. In any event,
Republic Act No. 9006 rendered ineffective the proviso in RA 8436 relating to
the automatic resignations of elected officials.
In effect, the repealing clause of
the Fair Election Act allows elected officials to run for another office
without forfeiting the office they currently hold. This conclusion is supported
by the February 7, 2001 deliberations of the Senate, when the Conference
Committee Report on the disagreeing provisions of House Bill No. 9000 and
Senate Bill No. 1742 was considered, thus:[43]
The Presiding officer [Sen.
Sotto]. May we know the effect as far as the other positions are concerned –
elective officials are concerned?
Senator Roco. What we have
done, Mr. President, is everybody who is
elected can run for any other position that he may desire without forfeiting
his seat.
We have
reversed the old election law[, and now] an elected official is not required to
forfeit his seat simply because he is running for another position. (italics supplied)
This is further confirmed by Section 26
of Comelec Resolution No. 3636,[44]
which states:
SECTION 26. Effect of Filing Certificate of Candidacy by
Elective Officials. — Any elective official, whether national or local[,] who
has filed a certificate of candidacy for the same or any other office shall not
be considered resigned from his office.
In Fariñas, et al. v. Executive Secretary, et al.,[45]
Section 14 of Republic Act No. 9006 was challenged on the ground, among others,
that it was violative of the equal protection clause of the constitution. The
petitioners contended that Section 14 discriminated against appointive
officials. By the repeal of Section 67, an elected official who runs for office
other than the one which he is holding is no longer considered ipso facto
resigned therefrom upon filing his certificate of candidacy. Elected officials
continue in public office even as they campaign for reelection or election for
another elective position. On the other hand, Section 66 has been retained;
thus, the limitation on appointive officials remains — they are still
considered ipso facto resigned from their offices upon the filing of their
certificates of candidacy.
We held that there was no violation
of the equal protection clause because substantial distinctions exist between
the two sets of officials. Elected officials cannot, therefore, be similarly
treated as appointive officials. Equal protection simply requires that all
persons or things similarly situated are treated alike, both as to rights
conferred and responsibilities imposed.
Republic Act No. 9369:
RA 9369 amended RA 8436. It provides,
in relevant part:
SECTION 13. Section 11 of Republic Act No. 8436 is hereby
amended to read as follows:
"SEC. 15. Official Ballot. — x x x
For this purpose, the Commission
shall set the deadline for the filing of certificate of candidacy/petition for
registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period
shall only be considered as a candidate at the start of the campaign period for
which he filed his certificate of candidacy: Provided, That, unlawful acts
or omissions applicable to a candidate shall take effect only upon the start of
the aforesaid campaign period: Provided,
finally, That any person holding a public appointive office or position,
including active members of the armed forces, and officers and employees in
government-owned or -controlled corporations, shall be considered ipso facto
resigned from his/her office and must vacate the same at the start of the day
of the filing of his/her certificate of candidacy.
x x x x (italics supplied)
As may
be noticed, RA 9369 expressly provides that appointive officials are considered
ipso facto resigned from their offices and must vacate the same at the start of
the day of the filing of their certificates of candidacy. However, this rule is
a mere restatement of Section 66 of the Omnibus Election Code, the prevailing
law in this regard.
On the other hand, RA 9369 is silent
with respect to elected officials. The rule under the Fair Election Act (i.e., that elected officials may run for
another position without forfeiting their seats) is therefore applicable.
From these rules, Section 4 of
COMELEC Resolution 8678 was derived.
V.
After a review of the legislative and
case history of the law on deemed resignations of public officials, I now turn
to the case at bar.
At the core of the controversy is
Section 4(a) of COMELEC Resolution No. 8678, which is reproduced below for easy
reference:
Section 4. Effects of Filing
Certificates of Candidacy.- a) Any person
holding a public appointive office or position including active members of the
Armed Forces of the
b) Any person holding an elective office or position shall not be considered resigned upon the filing of his certificate of candidacy for the same or any other elective office or position. (italics supplied)
Petitioners contend that Section 4(a)
is null and void on the ground that: (a) it contravenes existing law and
jurisprudence on the matter, and (b) it violates the equal protection clause of
the Constitution.
The ponencia upholds these contentions, extends its analysis to two
other provisions of law – (a) the second proviso in the third paragraph of
Section 13 of RA 9369, and (b) Section 66 of the Omnibus Election Code – and
proceeds to strike down said provisions not only on equal protection grounds,
but on overbreadth terms as well.
Upon a considered review of the
relevant laws and jurisprudence, I am constrained to strongly dissent on all
points.
Section 4(a)
is consistent with existing laws and jurisprudence on the matter.
Contrary to petitioners’ assertion,
Section 4(a) of COMELEC Resolution No. 8678 is a faithful reflection of the
present state of the law and jurisprudence on the matter.
As the discussion on the legislative
history of Section 4(a) has shown, the current state of the law on deemed
resignations of public officials is as follows:
Incumbent Appointive Official - Under Section 13 of RA 9369, which reiterates what is
provided in Section 66 of the Omnibus Election Code, any person holding a
public appointive office or position, including active members of the Armed
Forces of the Philippines, and officers and employees in government-owned
or-controlled corporations, shall be considered ipso facto resigned from his
office upon the filing of his certificate of candidacy.
Incumbent Elected Official – Upon the other hand, pursuant to Section 14 of RA 9006 or
the Fair Election Act, which repealed Section 67 of the Omnibus Election Code
and rendered ineffective Section 11 of R.A. 8436 insofar as it considered an
elected official as resigned only upon the start of the campaign period
corresponding to the positions for which they are running, an elected official
is not deemed to have resigned from his office upon the filing of his
certificate of candidacy for the same or any other elected office or position.
In effect, an elected official may run for another position without forfeiting
his seat.
Clearly, Section 4(a) of COMELEC
Resolution No. 8678 merely reiterates the foregoing rules on deemed
resignations of incumbent public officials.
Petitioners, however, hasten to point
out that the same Section 13 of RA 9369 provides that any person who files his
certificate of candidacy (within the advanced period fixed by COMELEC) shall
only be considered as a candidate at the start of the campaign period for which
he filed his certificate of candidacy. Guided by the pronouncement of this
Court in Lanot v. COMELEC[46] that
the advance filing of the certificate of candidacy is required only to
provide ample time for the printing of official ballots, and that such advance
filing does not make the person a candidate except only for ballot-printing
purposes, [47] petitioners contend that
the attendant consequences of candidacy – including that of being deemed ipso
facto resigned from one’s office,
when and if applicable – should take effect only upon the onset of the campaign
period for which the certificate of candidacy was filed, since it is only at
this point in time that said government official is, by law, considered to be a
candidate.[48] Thus, according to petitioners, appointive
officials should be considered ipso facto resigned from the office they are
holding only upon the start of the campaign period.[49]
Petitioners maintain that this
interpretation is the better approach, since it reconciles and harmonizes the
perceived conflict between that portion of Section 13 of RA 9369, which states
that “[a]ny person who files his certificate of candidacy within this period
shall only be considered as a candidate at the start of the campaign period for
which he filed his certificate of candidacy” and the subsequent proviso in the
same section which provides that “any person holding a public appointive office
or position x x x shall be considered ipso facto resigned from his/her office
and must vacate the same at the start of the day of the filing of his/her
candidacy,” in a manner that is consistent with the apparent intent of the
legislators to treat an appointive government official who files his
certificate of candidacy as a candidate only at the start of the campaign
period.[50]
However, this argument fails to
consider that the second proviso was precisely carved out as an exception to
the general rule, in keeping with the principle that appointive officials are
prohibited from engaging in any partisan political activity and taking part in
any election, except to vote.[51]
Specific provisions of a particular law should be harmonized not only with the
other provisions of the same law, but with the provisions of other existing
laws as well.[52] Interpretare et concordare leges legibus est optimus interpretandi
modus.
In Pagano v. Nazarro, Jr., et al.,[53] we
ruled that the act of filing a certificate of candidacy while one is employed
in the civil service constitutes a just cause for termination of employment for
appointive officials. Section 66 of the Omnibus Election Code, in considering
an appointive official ipso facto resigned, merely provides for the immediate
implementation of the penalty for the prohibited act of engaging in partisan
political activity. Held this Court:
Petitioner relies on Section
66 of the Omnibus Election Code to exculpate her from an administrative charge.
The aforementioned provision reads:
Any person holding a public
appointive office or position, including active members of the Armed Forces of
the Philippines, and officers and employees in government-owned or controlled
corporations, shall be considered ipso facto resigned from his office upon the
filing of his certificate of candidacy.
Section 66 of the Omnibus
Election Code should be read in connection with Sections 46 (b) (26) and 55,
Chapters 6 and 7, Subtitle A, Title I, Book V of the Administrative Code of
1987:
Section 44. Discipline:
General Provisions:
xxx xxx xxx
(b) The
following shall be grounds for disciplinary action:
xxx xxx xxx
(26) Engaging
directly or indirectly in partisan political activities by one holding a
non-political office.
xxx xxx xxx
Section 55. Political Activity. — No officer or
employee in the Civil Service including members of the Armed Forces, shall
engage directly or indirectly in any partisan political activity or take part
in any election except to vote nor shall he use his official authority or
influence to coerce the political activity of any other person or body.
Clearly, the act of filing a
Certificate of Candidacy while one is employed
in the civil
service constitutes a just cause for termination of
employment for appointive
officials. Section 66 of the Omnibus Election Code, in considering an
appointive official ipso facto resigned, merely provides for the immediate implementation
of the penalty for the prohibited act of engaging in partisan political
activity. This provision was not intended, and should not be used, as a defense
against an administrative case for acts committed during government service.[54]
Section 4(a)
is not violative of the Equal Protection Clause of the Constitution
Petitioners’ equal protection
challenge was sustained by the ponencia on
three grounds, viz.:
(1) Our disquisition in Farinas, et al. v. Executive Secretary, et
al.[55] on
the apparent unfairness of the rules on deemed resignations is not doctrine,
but mere obiter dictum;
(2) Mancuso v. Taft,[56] a 1973 United States Court of Appeals
case, struck down as unconstitutional a similar deemed resignation provision;
and
(3) The differential treatment of persons
holding appointive offices as opposed to those holding elective offices is not
germane to the purpose of the law.
I shall discuss these grounds in seriatim.
i.
Pronouncement in Farinas,
et al. v. Executive Secretary, et al.
Not Obiter Dictum
An obiter dictum has been defined as a remark or opinion uttered, ‘by
the way.’[57] It is a statement of the
court concerning a question which was not directly before it.[58] It is
language unnecessary to a decision, a ruling on an issue not raised, or an
opinion of a judge which does not embody the resolution or determination of the
court, and is made without argument or full consideration of the point.[59] It
is an expression of opinion by the court or judge on a collateral question not
directly involved,[60] or
not necessary for the decision.[61]
Accordingly, it lacks the force of an adjudication and should not ordinarily be
regarded as such.[62]
Prescinding from these principles, our pronouncement on the equal
protection issue in Farinas, et al. v.
Executive Secretary, et al.[63] cannot be characterized
as obiter dictum.
The ponencia bases its conclusion on the premise that the “main issue”
in Farinas, on which the Court was “intently focused,” was whether the repealing clause in the Fair Election Act was a
constitutionally proscribed rider.[64]
Consequently, the ponencia continues,
the matter of the equal protection claim was only “incidentally addressed,”[65] such
that we “unwittingly failed to ascertain with stricter scrutiny the impact of
the retention of the provision on automatic resignation of persons holding
appointive positions (Section 66) in the OEC, vis-à-vis the equal protection
clause.”[66] It also asserts that the
petitioners in Farinas “never posed
a direct challenge to the constitutionality of Section 66 of the Omnibus
Election Code.”[67]
With due respect, this view fails to
recognize that the equal protection implications of Section 14 of the Fair
Election Act, in relation to Sections 66 and 67 of the Omnibus Election Code,
were squarely raised before the
Court, thus –
The Petitioners’ Case
The petitioners now come to
the Court alleging in the main that Section 14 of Rep. Act No. 9006, insofar as
it repeals Section 67 of the Omnibus Election Code, is unconstitutional for
being in violation of Section 26(1), Article VI of the Constitution, requiring
every law to have only one subject which should be expressed in its title.
According to the petitioners,
the inclusion of Section 14 repealing Section 67 of the Omnibus Election Code
in Rep. Act No. 9006 constitutes a proscribed rider. x x x
The petitioners also assert that Section 14 of Rep. Act No. 9006
violates the equal protection clause of the Constitution because it repeals
Section 67 only of the Omnibus Election Code, leaving intact Section 66 thereof
which imposes a similar limitation to appointive officials, thus:
SEC. 66. Candidates holding appointive office or position. — Any person
holding a public appointive office or position, including active members of the
Armed Forces of the
They contend that Section 14 of Rep. Act No. 9006 discriminates against
appointive officials. By the repeal of Section 67, an elective official who
runs for office other than the one which he is holding is no longer considered
ipso facto resigned therefrom upon filing his certificate of candidacy.
Elective officials continue in public office even as they campaign for
reelection or election for another elective position. On the other hand,
Section 66 has been retained; thus, the limitation on appointive officials
remains — they are still considered ipso facto resigned from their offices upon
the filing of their certificates of candidacy.
The petitioners assert that
Rep. Act No. 9006 is null and void in its entirety as irregularities attended
its enactment into law. x x x
Finally, the petitioners
maintain that Section 67 of the Omnibus Election Code is a good law; hence,
should not have been repealed. x x x[68]
(italics supplied)
to which we responded:
Section 14 of
Rep. Act No. 9006 Is Not Violative of the Equal Protection Clause of the
Constitution
The petitioners' contention, that the repeal of
Section 67 of the Omnibus Election Code pertaining to elective officials gives
undue benefit to such officials as against the appointive ones and violates the
equal protection clause of the constitution, is tenuous.
The equal protection of the law clause in the
Constitution is not absolute, but is subject to reasonable classification. If
the groupings are characterized by substantial distinctions that make real
differences, one class may be treated and regulated differently from the other.
The Court has explained the nature of the equal protection guarantee in this
manner:
The equal protection of the law clause is against
undue favor and individual or class privilege, as well as hostile
discrimination or the oppression of inequality. It is not intended to prohibit
legislation which is limited either in the object to which it is directed or by
territory within which it is to operate. It does not demand absolute equality
among residents; it merely requires that all persons shall be treated alike,
under like circumstances and conditions both as to privileges conferred and
liabilities enforced. The equal protection clause is not infringed by
legislation which applies only to those persons falling within a specified
class, if it applies alike to all persons within such class, and reasonable
grounds exist for making a distinction between those who fall within such class
and those who do not.
Substantial distinctions clearly exist between
elective officials and appointive officials. The former occupy their office by
virtue of the mandate of the electorate. They are elected to an office for a
definite term and may be removed therefrom only upon stringent conditions. On
the other hand, appointive officials hold their office by virtue of their
designation thereto by an appointing authority. Some appointive officials hold
their office in a permanent capacity and are entitled to security of tenure
while others serve at the pleasure of the appointing authority.
Another substantial distinction between the two sets
of officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil
Service Commission, Book V of the Administrative Code of 1987 (Executive Order
No. 292), appointive officials, as officers and employees in the civil service,
are strictly prohibited from engaging in any partisan political activity or
[taking] part in any election except to vote. Under the same provision,
elective officials, or officers or employees holding political offices, are
obviously expressly allowed to take part in political and electoral activities.
By repealing Section 67 but retaining Section 66 of
the Omnibus Election Code, the legislators deemed it proper to treat these two
classes of officials differently with respect to the effect on their tenure in
the office of the filing of the certificates of candidacy for any position
other than those occupied by them. Again, it is not within the power of the
Court to pass upon or look into the wisdom of this classification.
Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis-a-vis appointive officials, is anchored upon material and significant distinctions and all the persons belonging under the same classification are similarly treated, the equal protection clause of the Constitution is, thus, not infringed.[69]
That Farinas likewise dealt
with the issue of whether Section 14 of the Fair Election Act is a
constitutionally proscribed rider, is wholly peripheral to the doctrinal value
of our pronouncement on the equal protection challenge. The fact remains that
the Court’s disquisition on that matter was prompted by an issue clearly raised
before us, one that cannot, by any means, be construed as “a collateral
question not directly involved”[70] with
the case.
To be sure, an adjudication on any
point within the issues presented by the case cannot be considered as obiter dictum.[71] This
rule applies to all pertinent questions, which are presented and decided in the
regular course of the consideration of the case, and led up to the final
conclusion, and to any statement as to the matter on which the decision is
predicated.[72] For that reason, a point
expressly decided does not lose its value as a precedent because the
disposition of the case is, or might have been, made on some other ground, or
even though, by reason of other points in the case, the result reached might
have been the same if the court had held, on the particular point, otherwise
than it did.[73] As we held in Villanueva, Jr. v. Court of Appeals, et al.:[74]
… A decision
which the case could have turned on is not regarded as obiter dictum merely
because, owing to the disposal of the contention, it was necessary to consider
another question, nor can an additional reason in a decision, brought forward after the
case has been disposed of on one ground, be regarded as dicta. So, also, where
a case presents two (2) or more points, any one of which is sufficient to
determine the ultimate issue, but the court actually decides all such points, the case as an authoritative precedent as to
every point decided, and none of such points can be regarded as having the status
of a dictum, and one point should not be denied authority merely because
another point was more dwelt on and more fully argued and considered, nor
does a decision on one proposition make statements of the court regarding other
propositions dicta.[75]
(italics supplied)
I respectfully submit, therefore,
that our pronouncement in Farinas in
respect of the equal protection issue finds cogent application in this case. Stare decisis et non quieta movere.
ii.
Mancuso v.
Taft Has Been Overruled
The ponencia begins its discussion with the claim that the right to run
for public office is “inextricably linked” with two fundamental freedoms –
those of freedom and association. It then extensively cites Mancuso v. Taft,[76] a
decision of the First Circuit of the United States Court of Appeals promulgated
on March 1973, to buttress its ruling. On this point, Mancuso asserts that
“[c]andidacy is both a protected First Amendment right and a fundamental
interest. Hence[,] any legislative classification that significantly burdens
that interest must be subjected to strict equal protection review.”
It must be noted, however, that while
the United States Supreme Court has held that the fundamental rights include
freedom of speech[77] and
freedom of association,[78] it has never recognized a fundamental right
to express one’s political views through candidacy.[79] Bart v. Telford[80]
states quite categorically that “[t]he First Amendment does not in terms confer
a right to run for public office, and this court has held that it does not do
so by implication either.” Newcomb v.
Brennan[81] further instructs:
Although the Supreme Court
has frequently invalidated state action which infringed a candidate's interest
in seeking political office, it “has not heretofore attached such fundamental
status to candidacy as to invoke a rigorous standard of review.” Rather, it has
relied on the right of association guaranteed by the First Amendment in holding
that state action which denies individuals the freedom to form groups for the
advancement of political ideas, as well as the freedom to campaign and vote for
the candidates chosen by those groups, is unconstitutional absent a strong
subordinating interest.[82]
These decisions indicate that plaintiff's
interest in seeking office, by itself, is not entitled to constitutional
protection.[83] Moreover, since plaintiff has not alleged
that by running for Congress he was advancing the political ideas of a
particular set of voters, he cannot bring his action under the rubric of
freedom of association which the Supreme Court has embraced. (italics
supplied)
As to the applicable standard of
judicial scrutiny, Bullock v. Carter[84]
holds that the existence of barriers to a candidate’s access to the ballot
“does not of itself compel close scrutiny,” and that the Court “has not
heretofore attached such fundamental status to candidacy as to invoke a
rigorous standard of review.”[85]
These principles attain added
significance as we examine the legal status of Mancuso v. Taft.
Briefly, that case involved Kenneth
Mancuso, a full-time police officer and classified civil service employee of
the City of Cranston, Rhode Island. He filed as a candidate for nomination as
representative to the Rhode Island General Assembly on October 19, 1971, and
subsequently initiated a suit challenging the constitutionality of §14.09(c) of
the City Home Rule Charter which prohibits “continuing in the classified
service of the city after becoming a candidate for nomination or election to
any public office.” The district court ruled in his favor, for which reason the
city officials appealed. Applying strict equal protection review, the United
States Court of Appeals held that the
Whether the right to run for
office is looked at from the point of view of individual expression or
associational effectiveness, wide opportunities exist for the individual who
seeks public office. x x x Consequently[,] we hold that candidacy is both a
protected First Amendment right and a fundamental interest. Hence any
legislative classification that significantly burdens that interest must be
subjected to strict equal protection review.
x x x x
x x x It is obviously
conceivable that the impartial character of the civil service would be
seriously jeopardized if people in positions of authority used their discretion
to forward their electoral ambitions rather than the public welfare. Similarly
if a public employee pressured other fellow employees to engage in corrupt
practices in return for promises of post-election reward, or if an employee
invoked the power of the office he was seeking to extract special favors from
his superiors, the civil service would be done irreparable injury. Conversely,
members of the public, fellow-employees, or supervisors might themselves
request favors from the candidate or might improperly adjust their own official
behavior towards him. Even if none of these abuses actually materialize, the
possibility of their occurrence might seriously erode the public's confidence
in its public employees. For the reputation of impartiality is probably as
crucial as the impartiality itself; the knowledge that a clerk in the
assessor's office who is running for the local zoning board has access to
confidential files which could provide “pressure” points for furthering his
campaign is destructive regardless of whether the clerk actually takes
ad-vantage of his opportunities. For all of these reasons we find that the
state indeed has a compelling interest in maintaining the honesty and
impartiality of its public work force.
We do not, however, consider
the exclusionary measure taken by
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. x x x (citations
omitted)
Three months after Mancuso, or on June 1973, the United
States Supreme Court decided United
States Civil Service Commission, et al. v. National Association of Letter
Carriers AFL-CIO, et al.[86] and Broadrick, et al. v. State of Oklahoma, et al.[87]
Letter Carriers was a declaratory judgment action brought by the
National Association of Letter Carriers, certain local Democratic and
Republican political committees, and six individual federal employees, who
asserted on behalf of themselves and all federal employees, that Section 9(a)
of the Hatch Act, prohibiting federal employees from taking “an active part in
political management or in political campaigns,” was unconstitutional on its
face.[88] A divided three-judge court held the
section unconstitutional, but this ruling was reversed by the United States
Supreme Court in this wise:
Until now, the judgment of
Congress, the Executive, and the country appears to have been that partisan
political activities by federal employees must be limited if the Government is
to operate effectively and fairly, elections are to play their proper part in
representative government, and employees themselves are to be sufficiently free
from improper influences. The restrictions so far imposed on federal employees
are not aimed at particular parties, groups, or points of view, but apply
equally to all partisan activities of the type described. They discriminate
against no racial, ethnic, or religious minorities. Nor do they seek to control
political opinions or beliefs, or to interfere with or influence anyone's vote
at the polls.
But, as the Court held in Pickering v. Board of Education,[89]
the government has an interest in regulating the conduct and ‘the speech of its
employees that differ(s) significantly from those it possesses in connection
with regulation of the speech of the citizenry in general. The problem in any
case is to arrive at a balance between the interests of the (employee), as a
citizen, in commenting upon matters of public concern and the interest of the
(government), as an employer, in promoting the efficiency of the public services
it performs through its employees.’ Although Congress is free to strike a
different balance than it has, if it so chooses, we think the balance it has so
far struck is sustainable by the obviously important interests sought to be
served by the limitations on partisan political activities now contained in the
Hatch Act.
It seems fundamental in the
first place that employees in the Executive Branch of the Government, or those
working for any of its agencies, should administer the law in accordance with
the will of Congress, rather than in accordance with their own or the will of a
political party. They are expected to enforce the law and execute the pro-grams
of the Government without bias or favoritism for or against any political party
or group or the members thereof. A major thesis of the Hatch Act is that to
serve this great end of Government-the impartial execution of the laws-it is
essential that federal employees, for example, not take formal positions in
political parties, not undertake to play substantial roles in partisan
political campaigns, and not run for office on partisan political tickets.
Forbidding activities like these will reduce the hazards to fair and effective
government.
There is another
consideration in this judgment: it is not only important that the Government
and its employees in fact avoid practicing political justice, but it is also
critical that they appear to the public to be avoiding it, if confidence in the
system of representative Government is not to be eroded to a disastrous extent.
Another major concern of the
restriction against partisan activities by federal employees was perhaps the
immediate occasion for enactment of the Hatch Act in 1939. That was the
conviction that the rapidly expanding Government work force should not be
employed to build a powerful, invincible, and perhaps corrupt political
machine. The experience of the 1936 and 1938 campaigns convinced Congress that
these dangers were sufficiently real that substantial barriers should be raised
against the party in power-or the party out of power, for that matter-using the
thousands or hundreds of thousands of federal employees, paid for at public
expense, to man its political structure and political campaigns.
A related concern, and this
remains as important as any other, was to further serve the goal that
employment and advancement in the Government service not depend on political
performance, and at the same time to make sure that Government employees would
be free from pres-sure and from express or tacit invitation to vote in a
certain way or perform political chores in order to curry favor with their
superiors rather than to act out their own beliefs. It may be urged that
prohibitions against coercion are sufficient protection; but for many years the
joint judgment of the Executive and Congress has been that to protect the
rights of federal employees with respect to their jobs and their political acts
and beliefs it is not enough merely to forbid one employee to attempt to
influence or coerce another. For example, at the hearings in 1972 on proposed
legislation for liberalizing the prohibition against political activity, the
Chairman of the Civil Service Commission stated that ‘the prohibitions against
active participation in partisan political management and partisan political
campaigns constitute the most significant safeguards against coercion . . ..’
Perhaps Congress at some time will come to a different view of the realities of
political life and Government service; but that is its current view of the matter,
and we are not now in any position to dispute it. Nor, in our view, does the
Constitution forbid it.
Neither the right to
associate nor the right to participate in political activities is absolute in
any event.[90] x x
x
x x
x x
As we see it, our task is
not to destroy the Act if we can, but to construe it, if consistent with the
will of Congress, so as to comport with constitutional limitations. (italics
supplied)
Broadrick, on the other hand, was a
class action brought by certain
Appellants do not question Oklahoma's right to place even-handed
restrictions on the partisan political conduct of state employees. Appellants
freely concede that such restrictions serve valid and important state
interests, particularly with respect to attracting greater numbers of qualified
people by insuring their job security, free from the vicissitudes of the
elective process, and by protecting them from ‘political extortion. Rather,
appellants maintain that however permissible, even commendable, the goals of s
818 may be, its language is unconstitutionally vague and its prohibitions too
broad in their sweep, failing to distinguish between conduct that may be
proscribed and conduct that must be permitted. For these and other reasons,
appellants assert that the sixth and seventh paragraphs of s 818 are void in
toto and cannot be enforced against them or anyone else.
We have held today that the Hatch Act is not
impermissibly vague.[92]
We have little doubt that s 818 is similarly not so vague that ‘men of common
intelligence must necessarily guess at its meaning.’[93]
Whatever other problems there are with s 818, it is all but frivolous to
suggest that the section fails to give adequate warning of what activities it
proscribes or fails to set out ‘explicit standards' for those who must apply
it. In the plainest language, it prohibits any state classified employee from
being ‘an officer or member’ of a ‘partisan political club’ or a candidate for
‘any paid public office.’ It forbids solicitation of contributions ‘for any
political organization, candidacy or other political purpose’ and taking part
‘in the management or affairs of any political party or in any political
campaign.’ Words inevitably contain germs of uncertainty and, as with the Hatch
Act, there may be disputes over the meaning of such terms in s 818 as
‘partisan,’ or ‘take part in,’ or ‘affairs of’ political parties. But what was
said in Letter Carriers, is
applicable here: ‘there are limitations in the English language with respect to
being both specific and manageably brief, and it seems to us that although the
prohibitions may not satisfy those intent on finding fault at any cost, they
are set out in terms that the ordinary person exercising ordinary common sense
can sufficiently understand and comply with, without sacrifice to the public
interest.' x x x
x x x x
[Appellants] nevertheless maintain that the statute is
overbroad and purports to reach protected, as well as unprotected conduct, and
must therefore be struck down on its face and held to be incapable of any
constitutional application. We do not believe that the overbreadth doctrine may
appropriately be invoked in this manner here.
x x x x
The consequence of our
departure from traditional rules of standing in the First Amendment area is
that any enforcement of a statute thus placed at issue is totally forbidden
until and unless a limiting construction or partial invalidation so narrows it
as to remove the seeming threat or deterrence to constitutionally protected
expression. Application of the overbreadth doctrine in this manner is,
manifestly, strong medicine. It has been employed by the Court sparingly and
only as a last resort. x x x
x x x But the plain import of our cases is, at the very
least, that facial over-breadth adjudication is an exception to our traditional
rules of practice and that its function,
a limited one at the outset, attenuates as the otherwise unprotected behavior
that it forbids the State to sanction moves from ‘pure speech’ toward conduct
and that conduct-even if expressive-falls within the scope of otherwise valid
criminal laws that reflect legitimate state interests in maintaining
comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded,
may deter protected speech to some unknown extent, there comes a point where
that effect-at best a prediction-cannot, with confidence, justify invalidating
a statute on its face and so prohibiting a State from enforcing the statute
against conduct that is admittedly within its power to proscribe. To put the matter another way, particularly
where conduct and not merely speech is involved, we believe that the
overbreadth of a statute must not only be real, but substantial as well, judged
in relation to the statute's plainly legitimate sweep. It is our view that
s 818 is not substantially overbroad and that whatever overbreadth may exist
should be cured through case-by-case analysis of the fact situations to which
its sanctions, assertedly, may not be applied.
Unlike ordinary breach-of-the peace statutes or other broad regulatory
acts, s 818 is directed, by its terms, at political expression which if engaged
in by private persons would plainly be protected by the First and Fourteenth
Amendments. But at the same time, s 818 is not a censorial statute, directed at
particular groups or viewpoints. The statute, rather, seeks to regulate
political activity in an even-handed and neutral manner. As indicted, such
statutes have in the past been subject to a less exacting overbreadth scrutiny.
Moreover, the fact remains that s 818 regulates a substantial spectrum of
conduct that is as manifestly subject to state regulation as the public peace
or criminal trespass. This much was established in United
Public Workers v. Mitchell, and has been unhesitatingly reaffirmed today in
Letter Carriers. Under the decision
in Letter Carriers, there is no
question that s 818 is valid at least insofar as it forbids classified
employees from: soliciting contributions for partisan candidates, political
parties, or other partisan political purposes; becoming members of national,
state, or local committees of political parties, or officers or committee
members in partisan political clubs, or candidates for any paid public office;
taking part in the management or affairs of any political party's partisan
political campaign; serving as delegates or alternates to caucuses or
conventions of political parties; addressing or taking an active part in
partisan political rallies or meetings; soliciting votes or assisting voters at
the polls or helping in a partisan effort to get voters to the polls;
participating in the distribution of partisan campaign literature; initiating
or circulating partisan nominating petitions; or riding in caravans for any
political party or partisan political candidate.
x x x It may be that such restrictions are impermissible and that s 818 may
be susceptible of some other improper applications. But, as presently
construed, we do not believe that s 818 must be discarded in toto because some
persons’ arguably protected conduct may or may not be caught or chilled by the
statute. Section 818 is not substantially overbroad and it not, therefore,
unconstitutional on its face. (italics supplied)
Broadrick, likewise, held that the
statute did not violate the equal protection clause by singling out classified
service employees for restrictions on political expression, while leaving
unclassified personnel free from such. The court reasoned that the state
legislature must have some leeway in determining which of its employment
positions required these restrictions.
Accordingly, Letter Carriers and Broadrick
teach us that: (i) the state has interests as employer in regulating the speech
of its employees that differ significantly from those it possesses in
regulating the speech of the citizenry in general; (ii) the courts must
therefore balance the legitimate interest of employee free expression against
the interests of the employer in promoting efficiency of public services; (iii)
if the employees’ expression interferes with maintenance of efficient and
regularly functioning services, the limitation on speech is not
unconstitutional; and (iv) the Legislature is to be given some flexibility or
latitude in ascertaining which positions are to be covered by any statutory
restrictions.[94]
It
is against this factual backdrop that Magill
v. Lynch,[95] a 1977 decision of the First Circuit of the United States Court of
Appeals, gains prominence. Noteworthy, this case concerned a similar law, and
was decided by the same court that decided
Mancuso.
Magill involved
It must be noted that the Court of
Appeals ruled in this wise even though the election in Magill was characterized
as nonpartisan, as it was reasonable
for the city to fear, under the circumstances of that case, that politically
active bureaucrats might use their official power to help political friends and
hurt political foes. Ruled the court:
The question before us is
whether Pawtucket's charter provision, which bars a city employee's candidacy
in even a nonpartisan city election, is constitutional. The issue compels us to
extrapolate two recent Supreme Court decisions, Civil Service Comm'n v. Nat'l Ass'n of Letter Carriers and Broadrick v. Oklahoma. Both dealt with
laws barring civil servants from partisan political activity. Letter Carriers reaffirmed United Public Workers v. Mitchell,
upholding the constitutionality of the Hatch Act as to federal employees.
Broadrick sustained
x x x x
What we are obligated to do
in this case, as the district court recognized, is to apply the Court’s interest balancing approach to the kind of
nonpartisan election revealed in this record. We believe that the district court found more residual vigor in our
opinion in Mancuso v. Taft than remains after Letter Carriers. We have
particular reference to our view that political candidacy was a fundamental
interest which could be trenched upon only if less restrictive alternatives
were not available. While this approach may still be viable for citizens who
are not government employees, the Court in Letter Carriers recognized that the
government's interest in regulating both the conduct and speech of its
employees differs significantly from its interest in regulating those of the
citizenry in general. Not only was United Public Workers v. Mitchell
"unhesitatingly" reaffirmed, but the Court gave little weight to the
argument that prohibitions against the coercion of government employees were a
less drastic means to the same end, deferring to the judgment of the Congress.
We cannot be more precise than the Third Circuit in characterizing the Court's
approach as "some sort of 'balancing' process".[98]
It appears that the government may place limits on campaigning by public
employees if the limits substantially serve government interests that are
"important" enough to outweigh the employees' First Amendment rights.
x x x (italics supplied)
Upholding the constitutionality of
the law in question, the Magill court
detailed the major governmental interests discussed in Letter Carriers and
applied them to the Pawtucket provision as follows:
In Letter Carriers[,] the first interest identified by the Court was
that of an efficient government, faithful to the Congress rather than to party.
The district court discounted this interest, reasoning that candidates in a local election would not
likely be committed to a state or national platform. This observation
undoubtedly has substance insofar as allegiance to broad policy positions is
concerned. But a different kind of possible political intrusion into efficient
administration could be thought to threaten municipal government: not into
broad policy decisions, but into the particulars of administration favoritism
in minute decisions affecting welfare, tax assessments, municipal contracts and
purchasing, hiring, zoning, licensing, and inspections. Just as the Court in Letter Carriers identified a second
governmental interest in the avoidance of the appearance of "political
justice" as to policy, so there is an equivalent interest in avoiding the
appearance of political preferment in privileges, concessions, and benefits.
The appearance (or reality) of favoritism that the charter's authors evidently
feared is not exorcised by the nonpartisan character of the formal election
process. Where, as here, party support is a key to successful campaigning, and
party rivalry is the norm, the city might reasonably fear that politically
active bureaucrats would use their official power to help political friends and
hurt political foes. This is not to say that the city's interest in visibly
fair and effective administration necessarily justifies a blanket prohibition
of all employee campaigning; if parties are not heavily involved in a campaign,
the danger of favoritism is less, for neither friend nor foe is as easily
identified.
A second major governmental
interest identified in Letter Carriers
was avoiding the danger of a powerful political machine. The Court had in mind
the large and growing federal bureaucracy and its partisan potential. The
district court felt this was only a minor threat since parties had no control
over nominations. But in fact candidates sought party endorsements, and party
endorsements proved to be highly effective both in determining who would emerge
from the primary election and who would be elected in the final election. Under
the prevailing customs, known party affiliation and support were highly
significant factors in
The third area of proper
governmental interest in Letter Carriers
was ensuring that employees achieve advancement on their merits and that they
be free from both coercion and the prospect of favor from political activity.
The district court did not address this factor, but looked only to the
possibility of a civil servant using his position to influence voters, and held
this to be no more of a threat than in the most nonpartisan of elections. But
we think that the possibility of coercion of employees by superiors remains as
strong a factor in municipal elections as it was in Letter Carriers. Once again, it is the systematic and coordinated
exploitation of public servants for political ends that a legislature is most
likely to see as the primary threat of employees' rights. Political oppression
of public employees will be rare in an entirely nonpartisan system. Some
superiors may be inclined to ride herd on the politics of their employees even
in a nonpartisan context, but without party officials looking over their
shoulders most supervisors will prefer to let employees go their own ways.
In short, the government may
constitutionally restrict its employees' participation in nominally nonpartisan
elections if political parties play a large role in the campaigns. In the
absence of substantial party involvement, on the other hand, the interests
identified by the
The court, however, remanded the case
to the district court for further proceedings in respect of the petitioners’
overbreadth charge. Noting that invalidating a statute for being overbroad is
“not to be taken lightly, much less to be taken in the dark,” the court held:
The governing case is Broadrick, which introduced the doctrine
of "substantial" overbreadth in a closely analogous case. Under Broadrick, when one who challenges a law
has engaged in constitutionally unprotected conduct (rather than unprotected
speech) and when the challenged law is aimed at unprotected conduct, "the
overbreadth of a statute must not only be real, but substantial as well, judged
in relation to the statute's plainly legitimate sweep." Two major
uncertainties attend the doctrine: how to distinguish speech from conduct, and
how to define "substantial" overbreadth. We are spared the first
inquiry by Broadrick itself. The
plaintiffs in that case had solicited support for a candidate, and they were
subject to discipline under a law proscribing a wide range of activities,
including soliciting contributions for political candidates and becoming a
candidate. The Court found that this combination required a substantial
overbreadth approach. The facts of this case are so similar that we may reach
the same result without worrying unduly about the sometimes opaque distinction
between speech and conduct.
The second difficulty is not
so easily disposed of. Broadrick
found no substantial over-breadth in a statute restricting partisan
campaigning.
The state of the record does not permit us to find overbreadth; indeed
such a step is not to be taken lightly, much less to be taken in the dark. On the other hand, the
entire focus below, in the short period before the election was held, was on
the constitutionality of the statute as applied. Plaintiffs may very well feel
that further efforts are not justified, but
they should be afforded the opportunity to demonstrate that the charter
forecloses access to a significant number of offices, the candidacy for which
by municipal employees would not pose the possible threats to government
efficiency and integrity which Letter Carriers, as we have interpreted it, deems
significant. Accordingly, we remand for consideration of plaintiffs'
overbreadth claim. (italics supplied, citations omitted)
Clearly, Letter Carriers,
Broadrick, and Magill demonstrate
beyond doubt that Mancuso v. Taft, which
was heavily relied upon by the ponencia, has
effectively been overruled. [99] As it is no longer good law, the ponencia’s exhortation that we should
follow Mancuso “[since] the
Americans, from whom we copied the provision in question, had already stricken
down a similar measure for being unconstitutional[,]” is misplaced and
unwarranted.
Thus, in the instant case, I
respectfully submit that Section 13 of RA 9369, which reiterates Section 66 of
the Omnibus Election Code, is not
violative of the equal protection clause. It is crystal clear that these
deemed resignation provisions substantially
serve governmental interests (i.e.,
(i) efficient civil service faithful to the government and the people rather
than to party, (ii) avoiding the appearance of “political justice” as to
policy, (iii) avoiding the danger of a powerful political machine, and (iv)
ensuring that employees achieve advancement on their merits and that they be
free from both coercion and the prospect of favor from political activity), which are important enough to outweigh
the non-fundamental right of appointive
officials and employees to seek elective office.
Instead of the overruled case of
Mancuso, we should take heed of the ruling in Adams v. Supreme Court of Pennsylvania,[100] viz.:
The relevant authorities
provide that federal and state officials may regulate the First Amendment
rights of various government employees to an extent greater than is appropriate
for regular citizens. The issue is not whether a “compelling state interest”
supports the relevant law. Rather, the proper test involves a balance between
the individual's First Amendment rights and the interests the government has at
stake.[101] In Morial v. Judicial Commission of the State
of Louisiana,[102]
the Court of Appeals for the Fifth Circuit held that this principle extends to
state judicial officers. Furthermore, the precedent provided the rationale for
resolving
It must be conceded that
"resign to run" laws place substantial burdens on a potential
candidate's right to seek office. Yet the
"chilling" effect of these provisions should not be exaggerated,
since they do not reach a wide variety of other activities protected by the
First Amendment guarantee of free speech. The statutes, moreover, serve important
state interests. For example, they help prevent the abuse of judicial
office by candidates and former candidates and they safeguard the appearances
of propriety. Finally, as the Morial
court noted, the less-restrictive alternative of a forced leave of absence
would not be sufficient to guard the state's interests, because the danger of
corruption, real or perceived, would persist with regard to defeated candidates
on their return to the bench. Weighing these considerations, it must be
concluded that the Morial analysis is compelling and the "resign to
run" law is constitutional. (italics supplied)
iii.
Classification Germane to the
Purposes of
the Law
Equal protection requires that all
persons or things similarly situated should be treated alike, both as to rights
conferred and responsibilities imposed.[103] It
does not require the universal application of the laws on all persons or things
without distinction.[104]
What the clause simply requires is equality among equals as determined
according to a valid classification.[105] By
classification is meant the grouping of persons or things similar to each other
in certain particulars and different from all others in these same particulars.[106]
The test for a valid classification
is reasonableness,[107]
which criterion is complied with upon a showing of the following:
(1) The classification rests on
substantial distinctions;
(2) It is germane to the purposes of the
law;
(3) It is not limited to existing
conditions only; and
(4) It applies equally to all members of
the same class.[108]
In the main, the ponencia admits the presence of the first, third and fourth
requisites. It, however, holds that the
differential treatment of persons holding appointive offices as opposed to
those holding elective offices is not germane to the purpose of the law.
I respectfully disagree.
Preliminarily, the equal protection
clause is satisfied so long as there is a plausible policy reason for the
classification.[109] The
statute is accorded a strong presumption of validity, and the challenger must
bear the burden of showing that the act creates a classification that is
“palpably arbitrary or capricious;”[110]
otherwise, the legislative determination as to what is a sufficient distinction
to warrant the classification will not be overthrown.[111] The challenger must refute all possible rational bases for the
differing treatment, whether or not the Legislature cited those bases as
reasons for the enactment.[112] The
case law is to uphold the statute if we “can conceive of any reason to justify
the classification;”[113]
that the constitutionality of the law must be sustained even if the
reasonableness of the classification is “fairly debatable.”[114]
The ponencia readily acknowledges the rationale behind the deemed
resignation provision. It holds:
The obvious reason for the
challenged provision is to prevent the use of a governmental position to
promote one’s candidacy, or to even wield a dangerous or coercive influence on
the electorate. The measure is further aimed at promoting the efficiency,
integrity, and discipline of the public service by eliminating the danger that
the discharge of official duty would be motivated by political considerations
rather than the welfare of the public. The restriction is also justified by the
proposition that the entry of civil servants to the electoral arena, while
still in office, could result in the neglect or inefficiency in the performance
of duty because they would be attending to their campaign rather than to their
office work.[115]
(citation omitted)
Nevertheless, the ponencia faults Section 13 of Republic Act No. 9369 and
Section 66 of the Omnibus Election Code because “whether one holds an
appointive office or an elective one, the evils sought to be prevented by the
measure remain.” The ponencia explains:
… For example, the Executive Secretary, or any Member
of the Cabinet for that matter, could wield the same influence as the
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
[Certificates of Candidacy] for the elections. Under the present state of our
law, the Vice-President, in the example, running this time, let us say, for
President, retains his position during the entire election period and can still
use the resources of his office to support his campaign.[116]
This
reasoning, however, fails to appreciate the well-settled rule that, by itself,
the fact that a legislative classification
is underinclusive will not render it unconstitutionally arbitrary or invidious.[117] The
Legislature is free to choose to remedy only part of a problem, as it may
“select one phase of a field and apply a remedy there, neglecting the others.”[118]
Stated differently, there is no
constitutional requirement that regulation must reach each and every class to
which it might be applied;[119] that the Legislature must be held rigidly
to the choice of regulating all or none.[120] The state is free to regulate one step at a
time, recognizing degrees of harm and addressing itself to phases of a problem
which presently seem most acute to the legislative mind.[121] For
when the Legislature creates a statute, it is not required to solve all the
evils of a particular wrong in one fell swoop.[122] New Jersey
State League of Municipalities, et al. v. State of New Jersey[123] succinctly states the principle thus:
It is axiomatic that in
attempting to remedy an injustice, the Legislature need not address every
manifestation of the evil at once; it may proceed “one step at a time.”[124]
Thus, “remedial legislation need not be ‘all-or-nothing,’[;] ... the
Legislature can decide that to start somewhere is better than to start
nowhere.”[125]
Therefore, it is not necessarily fatal that a law is underinclusive by failing
to include some who share characteristics of the included class, so long as
there is a rational justification for excluding part of the affected class.[126]
The Legislature in
addressing an issue must invariably draw lines and make choices, thereby
creating some inequity as to those included or excluded. As long as “the bounds
of reasonable choice” are not exceeded, the courts must defer to the
legislative judgment.[127]
We may not strike down a law merely because the legislative aim would have been
more fully achieved by expanding the class.[128]
We must determine whether there is a reasonable basis for the Legislature's
choice and not substitute our own judgment for that of the Legislature.[129]
Correspondingly, it is not sufficient grounds for invalidation that we
may find that the statute’s distinction is unfair, underinclusive, unwise, or
not the best solution from a public-policy standpoint; rather, we must find
that there is no reasonably rational reason for the differing treatment.[130]
In the instant case, is there a rational justification for excluding
elected officials from the operation of the deemed resigned provisions? I
submit that there is.
An election is the embodiment of the
popular will, perhaps the purest expression of the sovereign power of the
people.[131] It involves the choice
or selection of candidates to public office by popular vote.[132]
Considering that elected officials are put in office by their constituents for a definite term, it may justifiably
be said that they were excluded from the ambit of the deemed resigned
provisions in utmost respect for the mandate of the sovereign will of the
people. In other words, complete deference is accorded to the will of the
electorate that they be served by such officials until the end of the term for
which they were elected. In contrast, there is no such expectation insofar as
appointed officials are concerned.
The dichotomized treatment of appointive and elective officials is
therefore germane to the purposes of the law. For the law was made not merely
to preserve the integrity, efficiency, and discipline of the public service;
the Legislature, whose wisdom is outside the rubric of judicial scrutiny, also
thought it wise to balance this with the competing, yet equally compelling,
interest of deferring to the sovereign will.
Section 4(a)
of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus
Election Code are not overbroad.
Apart from sustaining petitioners’
equal protection challenge, the ponencia took
an unwarranted step further and
struck down Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section
66 of the Omnibus Election Code for being unconstitutionally overbroad in two
respects, viz:
(1)
The assailed provisions limit the candidacy of all civil servants holding
appointive posts without due regard for the type of position being held by the
employee seeking an elective post and the degree of influence that may be
attendant thereto;[133] and
(2)
The assailed provisions limit the candidacy of any and all civil servants
holding appointive positions without due regard for the type of office being
sought, whether it be partisan or nonpartisan in character, or in the national,
municipal or barangay level.[134]
For reasons discussed below, I
respectfully submit that Section 4(a) of Resolution 8678, Section 13 of RA
9369, and Section 66 of the Omnibus Election Code are not unconstitutionally
overbroad and must therefore remain fully operative.
i.
Limitation on Candidacy Regardless of
Incumbent
Appointive Official’s Position, is Valid
The ponencia declares that the assailed
provisions are overly broad because they are made to apply indiscriminately to
all civil servants holding appointive posts, without due regard for the type of
position being held by the employee running for elective office and the degree
of influence that may be attendant thereto.
Apparently, the ponencia assumes that the evils sought to be prevented by the
assailed provisions are made possible only when the incumbent appointive
official running for elective office holds a position of influence. For this
reason, it would limit the application of the challenged restriction solely to
incumbent appointive officials in positions of influence.
Regrettably, the ponencia manifestly fails to take into account a different kind of
possible threat to the government created by the partisan potential of a large
and growing bureaucracy: the danger of
systematic abuse perpetuated by a “powerful political machine” that has
amassed “the scattered powers of government workers” so as to give itself, and
its incumbent workers an “unbreakable grasp on the reins of power.”[135]
Attempts by government employees to
wield influence over others or to make use of their respective positions
(apparently) to promote their own candidacy may seem tolerable – even innocuous
– particularly when viewed in isolation from other similar attempts by other
government employees. Yet it would be decidedly foolhardy to discount the
equally (if not more) realistic and dangerous possibility that such seemingly
disjointed attempts, when taken together, constitute a veiled effort on the
part of a reigning political party to advance its own agenda through a
“carefully orchestrated use of [appointive and/or elective] officials”[136]
coming from various levels of the bureaucracy.
I respectfully submit that the avoidance of such a “politically active
public work force”[137] which could give a
political machine an “unbreakable grasp on the reins of power”[138] is reason enough to
impose a restriction on the candidacies of all appointive public officials
without further distinction as to the type of positions being held by such
employees or the degree of influence that may be attendant thereto.
ii.
Limitation on Candidacy
Regardless
of Type of Office Sought, is Valid
The ponencia also maintains that the assailed provisions are overly broad
because they are made to apply indiscriminately to all civil servants holding
appointive offices, without due regard for the type of elective office being
sought, whether it be partisan or nonpartisan in character, or in the national,
municipal or barangay level.[139]
Adhering to the view that “the
concerns of a truly partisan office and the temptations it fosters are
sufficiently different from those involved in an office removed from regular
party politics [so as] to warrant distinctive treatment”[140] in
a statute similar to the ones being assailed, the ponencia would have the challenged restriction on candidacy apply
only in situations where the elective office sought is partisan in character.
To the extent, therefore, that it supposedly operates to preclude even
candidacies for nonpartisan elective offices, the ponencia pronounces the challenged restriction as overbroad.
Again, I respectfully disagree. A careful review, however, of the assailed
provisions and related laws on the matter will readily show that the perceived
overbreadth is more apparent than real.
A perusal of Resolution 8678 will
immediately disclose that the rules and guidelines set forth therein refer to
the filing of certificates of candidacy and nomination of official candidates
of registered political parties, in
connection with the May 10, 2010 National and Local Elections.[141] Obviously, these rules and guidelines,
including the restriction in Section 4(a) of Resolution 8678, were issued
specifically for purposes of the May 10, 2010 National and Local Elections,
which, it must be noted, are decidedly partisan
in character. Thus, it is clear that the restriction in Section 4(a) of RA
8678 applies only to the candidacies of appointive officials vying for partisan elective posts in the May 10,
2010 National and Local Elections. On this score alone, the overbreadth
challenge leveled against Section 4(a) is clearly unsustainable.
Similarly, a fair reading of Section
13 of RA 9369 and Section 66 of the Omnibus Election Code, in conjunction with
other related laws on the matter, will confirm that these provisions are
likewise not intended to apply to elections for nonpartisan public offices.
The
only elections which are relevant to the issue at bar are the elections for barangay
offices, since these are the only elections in this country which involve nonpartisan public offices.[142]
In this regard, it is well to note
that from as far back as the enactment of the Omnibus Election Code in 1985,
Congress has intended that these nonpartisan barangay elections should be
governed by special rules, including a separate rule on deemed resignations
which is found in Section 39 of the Omnibus Election Code. Said provision
states:
Section 39. Certificate of Candidacy. – No person shall
be elected punong barangay or kagawad ng
sangguniang barangay unless he files a sworn certificate of candidacy in
triplicate on any day from the commencement of the election period but not
later than the day before the beginning of the campaign period in a form to be
prescribed by the Commission. The candidate shall state the barangay office for
which he is a candidate.
x x x x
Any elective or appointive municipal,
city, provincial or national official or employee, or those in the civil or
military service, including those in government-owned or-controlled
corporations, shall be considered automatically resigned upon the filing of
certificate of candidacy for a barangay office.
Since barangay elections are governed
by a separate deemed resignation rule, under the present state of law, there
would be no occasion to apply the restriction on candidacy found in Section 66
of the Omnibus Election Code, and later reiterated in the proviso of Section 13
of RA 9369, to any election other than a partisan
one. For this reason, the overbreadth challenge raised against Section 66 of
the Omnibus Election Code and Section 13 of RA 9369 must again fail.
In any event, assuming, for the sake
of argument, that Section 66 of the Omnibus Election Code and the corresponding
proviso in Section 13 of RA 9369 are general rules intended to apply also to
elections for nonpartisan public offices, it is respectfully submitted that the
overbreadth challenge mounted against said provisions would be just as futile.
In
the first place, the view that Congress is limited to controlling only partisan
behavior has not received judicial imprimatur.
As previously discussed, the ruling case law in the United States tells
us that the government has an interest in regulating the conduct and speech of
its employees that differs significantly from those it possesses in connection
with regulation of the speech of the citizenry in general.[143]
Moreover, in order to have a statute
declared as unconstitutional or void on its face for being overly broad,
particularly where, as in this case, “conduct” and not “pure speech” is
involved, the overbreadth must not only be real, but substantial as well,
judged in relation to the statute’s plainly legitimate sweep.[144]
In operational terms, measuring the
substantiality of a statute’s overbreadth would entail, among other things, a
rough balancing of the number of valid applications compared to the number of
potentially invalid applications.[145] In
this regard, some sensitivity to reality is needed; an invalid application that
is far-fetched does not deserve as much weight as one that is probable.[146] The
question is a matter of degree.[147]
Thus, assuming for the sake of argument that the partisan-nonpartisan
distinction is valid and necessary such that a statute which fails to make this
distinction is susceptible to an overbreadth attack, the overbreadth challenge
presently mounted must demonstrate or provide this Court with some idea of the
number of potentially invalid elections (i.e.,
the number of elections that were insulated from party rivalry but were
nevertheless closed to appointive employees) that may in all probability result
from the enforcement of the statute.[148]
The record of the case at bar,
however, does not permit us to find overbreadth. Borrowing from the words of Magill, indeed, such a step is not to be taken lightly, much less to be
taken in the dark,[149]
especially since an overbreadth finding in this case would effectively prohibit
the state from enforcing an otherwise valid measure against conduct that is
admittedly within its power to proscribe.[150]
At this juncture, it is well to note
that the application of the overbreadth doctrine in the analysis of statutes
that purportedly attempt to restrict or burden the exercise of a First
Amendment right is manifestly strong medicine that must be employed by the
Court sparingly, and only as a last resort.[151]
This is because any enforcement of a statute thus placed at issue is totally
forbidden until and unless a limiting construction or partial invalidation so
narrows it as to remove the seeming threat or deterrence to constitutionally
protected expression, thereby increasing the possible harm to society that may
result from permitting some unprotected speech or conduct to go unpunished.
Thus,
claims of facial overbreadth have been entertained only where, in the judgment
of the court, the possible harm to society in permitting some unprotected
speech or conduct to go unpunished is outweighed by the possibility that the
protected speech of others may be muted, and perceived grievances left to
fester because of the possible inhibitory effects of overly broad statutes.[152] Also, facial overbreadth has not been invoked
where a limiting construction could be placed on the challenged statute, and
where the court could conceive of readily apparent constructions which would
cure, or at least substantially reduce, the alleged overbreadth of the statute.[153]
I
respectfully submit that the probable harm to society in permitting incumbent
appointive officials to remain in office even as they actively pursue elective
posts far outweighs the less likely evil of having arguably protected
candidacies curtailed because of the possible inhibitory effect of a
potentially overly broad statute. Thus, while the challenged provisions may
deter protected conduct to some unknown extent, that effect – at best a
prediction – cannot, with confidence, justify invalidating these statutes in toto and so prohibit the State from
enforcing them against conduct that is concededly within its power and interest
to proscribe.[154]
Where
the historic or likely frequency of a statute’s conceivably impermissible
applications is relatively low, it may be more appropriate to guard against the
statute’s conceivably impermissible applications through case-by-case
adjudication rather than through facial invalidation.[155]
A last word
The
importance of the coming May 2010 national and local elections cannot be
overstated. The country cannot afford an
election which will be perceived as neither free nor fair. It is the bounden duty of this Court to
protect the integrity of our electoral process from any suspicion of partisan
bias. The people should see judges and
justices wearing judicial and not political robes. A court that cannot elevate itself above
politics cannot protect the rule of law.
Accordingly,
I vote to DISMISS the petition.
REYNATO
S. PUNO
Chief Justice
[1] Guidelines on the Filing of Certificates of Candidacy and Nomination of Official Candidates of Registered Political Parties in Connection with the May 10, 2010 National and Local Elections; Annex A, Petition.
[2] Rollo, p. 23.
[3]
Eleazar P. Quinto is the incumbent Undersecretary for Field Operations of the
Department of Environment and Natural Resources; he intends to run for the
position of Member, House Representatives for the 4th District of
Pangasinan in the forthcoming 2010 elections. On the other hand, Gerino A.
Tolentino is the incumbent OIC-Director, Land Management Bureau; he intends to
run for the position of City Councilor for the 4th District of the
City of
[4] Rollo, p. 3.
[5]
[6] Republic Act No. 8436 is entitled, “An Act Authorizing the Commission on Elections to Use and 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. It took effect on December 22, 1997.
[7] Republic Act No. 9369 is 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 Pambansa Blg. 881, as amended, Republic Act No. 7166 and Other Related Election Laws, Providing Funds Therefor and for Other Purposes. It took effect on January 23, 2007.
[8] Henry P. Lanot, substituted by Mario S. Raymundo, and Charmie Q. Benavides v. Commission on Elections, et al., G.R. No. 164858, November 16, 2006, 507 SCRA 114.
[9] Rollo, p.10, citing Lanot v. COMELEC, id.
[10]
[11]
[12]
[13]
[14]
[15] Broadrick v.
[16]
[17] Effective June 21, 1947. This expressly repealed Commonwealth Act No. 357 and Commonwealth Act No. 666, viz.:
SECTION 190. Repeal of laws. — Commonwealth Acts Numbered Three hundred and fifty-seven, Six hundred and fifty-seven, Six hundred and sixty-six, Seven hundred and twenty-five, and all other acts or parts of acts inconsistent with this Code are hereby repealed.
[18] G.R. No. L-9669, January 31, 1956, 98 Phil. 364.
[19]
[20]
[21] G.R. No. L-9688, January 19, 1956, 98 Phil. 194.
[22]
[23] Monroy v. Court of Appeals, et al., G.R. No. L-23258, July 1, 1967, 20 SCRA 620, 625.
[24]
[25]
[26] Effective September 2, 1971. This expressly repealed the Revised Election Code of 1947, thus:
SECTION 249. Repealing Clause. — Republic Act Numbered One hundred and eighty, otherwise known as the "Revised Election Code," as amended, and Republic Act Numbered Three thousand five hundred and eighty-eight, as amended, are hereby repealed. All other laws, executive orders, rules and regulations, or parts thereof, inconsistent with the provisions of this Code are hereby repealed, amended or modified accordingly.
[27] Effective February 7, 1978. The Election Code of 1971 was expressly repealed pursuant to Section 202 of the 1978 Election Code, which states:
SECTION 202. Repealing Clause. — The Election Code of 1971 is hereby repealed, and all other laws, executive orders, rules and regulations, or parts thereof inconsistent with the provisions of this Code are also repealed, amended or modified accordingly.
[28] The pertinent Whereas clauses of Presidential Decree No. 1659 provide:
WHEREAS, under the above quoted provision of Section 30 of the 1978 Election Code, governors, mayors, sangguniang members or barangay officials are "considered or forced leave of absence from office" upon filing of a certificate of candidacy irrespective of whether these officials are running for the same office which they are holding or for another office;
WHEREAS, it is anticipated that applying the aforequoted provision of Section 30 in the local elections on January 30, 1980, may give rise to chaos and confusion due to the difficulty of designating promptly and immediately the replacements of such officials to assure the continuity and stability of local governments.
[29] Effective December 29, 1979. Presidential Decree No. 1659 is entitled “DEFINING THE STATUS OF OFFICIALS OCCUPYING ELECTIVE POSITIONS WHO RUN FOR OFFICE OTHER THAN THAT WHICH THEY ARE HOLDING.”
[30] Effective December 29, 1979. Presidential Decree No. 1659-A is entitled “AMENDING SECTION ONE OF PRESIDENTIAL DECREE NUMBERED SIXTEEN HUNDRED FIFTY-NINE.”
[31] Section 1, Presidential Decree No. 1659-A.
N.B. Both Presidential Decree No. 1659 and Presidential Decree No. 1659-A were issued on December 29, 1979. The former amended the 1978 Election Code in this wise:
SECTION 1. Candidate holding elective office. — Any person occupying an elective provincial, city, municipal, or municipal district position who runs for an office other than the one which he is holding shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy; Provided, however, That during the pendency of the election, the President may appoint said candidate to the office for which he filed a certificate of candidacy.
However, a minor amendment was effected by Presidential Decree No. 1659-A to clarify that the appointment of the candidate in an acting capacity to the office for which he filed a certificate of candidacy applies only when such office had been rendered vacant by virtue of the deemed resignation of the person who previously held the office (i.e., if the previous official ran for an office other than that which he was holding, and was therefore deemed ipso facto resigned upon the filing of his certificate of candidacy.)
[32] The Omnibus Election Code repealed the 1978 Election Code, thus:
SECTION 282. Repealing clause. — Presidential Decree No. 1296, otherwise known as The 1978 Election Code, as amended, is hereby repealed. All other election laws, decrees, executive orders, rules and regulations, or parts thereof, inconsistent with the provisions of this Code are hereby repealed, except Presidential Decree No. 1618 and Batas Pambansa Blg. 20 governing the election of the members of the Sangguniang Pampook of Regions IX and XII.
[33] G.R. No. 96859, October 15, 1991, 202 SCRA 779.
[34] Records of the Batasang Pambansa, 8 October 1985.
[35] Records of the Batasang Pambansa, 21 October 1985.
[36] Dimaporo v. Mitra et al., supra note 33 at 787-789.
[37]
[38] G.R. No. 132774, June 21, 1999, 308 SCRA 770.
[39] G.R. No. 100947, May 31, 1993, 222 SCRA 831.
[40]
[41] Records of the Bicameral Conference Committee, December 16, 1997, pp. 42-46, 55-57, 131-139.
[42] Effective March 20, 2001. Republic Act No. 9006 is entitled “AN ACT TO ENHANCE THE HOLDING OF FREE, ORDERLY, HONEST, PEACEFUL AND CREDIBLE ELECTIONS THROUGH FAIR ELECTION PRACTICES.”
[43] Records of the Senate, February 7, 2001, p. 177.
[44] Issued on March 1, 2001. COMELEC Resolution No. 3636 is entitled “RULES AND REGULATIONS IMPLEMENTING REPUBLIC ACT NO. 9006 OTHERWISE KNOWN AS "FAIR ELECTION ACT" FOR THE MAY 14, 2001 NATIONAL AND LOCAL ELECTIONS.”
[45] G.R. No. 147387, December 10, 2003, 417 SCRA 503.
[46] Supra note 8.
[47] Rollo, p.10, citing Lanot v. COMELEC, id.
[48]
[49]
[50]
[51] Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, 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 vote nor shall he use his official authority or influence to coerce the political activity of any other person or body.
Additionally, Sections 46(b)(26), Chapter 6, Subtitle A, Title I, Book V of the same Code provides:
Section 44. Discipline: General Provisions:
x x x x
(b) The following shall be grounds for disciplinary action:
x x x x
(26) Engaging directly or indirectly in partisan political activities by one holding a non-political office.
x x x x
[52]
[53] G.R. No. 149072, September 21, 2007, 533 SCRA 623.
[54] Id. at 635-636.
[55] Infra.
[56] 476 F.2d 187 (1973).
[57] In re Hess, 23 A. 2d. 298, 301, 20 N.J. Misc. 12.
[58]
[59] Lawson v.
[60] Crescent Ring Co. v. Traveler's Indemnity Co.,
132 A. 106, 107, 102 N.J. Law 85.
[61] Du Bell v. Union Central Life Ins. Co.,
29, So. 2d 709, 712; 211
[62] Morales v. Paredes, 55 Phil. 565, 567; Cinco, et al. v. Sandiganbayan, et al., G.R.
Nos. 92362-67, October 15, 1991, 202 SCRA 726, 736.
[63] Supra note 45.
[64] Majority Decision, p. 17.
[65]
[66]
[67]
[68] Farinas, et al. v. Executive Secretary, et al., supra note 45 at 512-513.
[69]
[70] Crescent Ring
[71] Villanueva, Jr. v. Court of Appeals, et al., G.R. No. 142947, March 19, 2002, 379 SCRA
463, 469 citing 21 Corpus Juris
Secundum §190.
[72]
[73]
[74]
[75]
[76] Infra.
[77] Grosjean v. American Press Co., 297
[78] Gibson v.
[79] Carver v. Dennis, 104 F.3d 847, 65 USLW
2476 (1997); American Constitutional Law
Foundation, Inc. v. Meyer, 120 F.3d 1092, 1101 (1997); NAACP,
[80] 677 F.2d 622, 624 (1982).
[81] 558 F.2d 825 (1977).
[82] See, e.g.,
Buckley v. Valeo, 424 U.S. 1, 39-59,
96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam); Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92
(1972); Williams v. Rhodes, 393 U.S.
23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968).
[83] See Developments in the Law Elections, 88 Harv.L.Rev. 1111, 1135 n.
81, 1218 (1975).
[84] Supra note 79.
[85]
[86] 413
[87] 413
[88] The provision states:
An employee in an Executive agency
or an individual employed by the government of the
(1) use his official authority or
influence for the purpose of interfering with or affecting the result of an
election; or
(2) take an active part in political
management or in political campaigns. ‘For the purpose of this subsection, the
phrase ‘an active part in political management or in political campaigns' means
those acts of political management or political campaigning which were
prohibited on the part of employees in the competitive service before July 19,
1940, by determinations of the Civil Service Commission under the rules
prescribed by the President.
[89] 391
[90] See, e.g.,
Rosario v. Rockefeller, 410 U.S. 752,
93 S.Ct. 1245, 36 L.Ed.2d 1 (1973); Dunn
v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 999, 31 L.Ed.2d 274 (1972); Bullock v. Carter, 405 U.S. 134,
140-141, 92 S.Ct. 849, 854-855, 31 L.Ed.2d 92 (1972); Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554
(1971); Williams v. Rhodes, 393 U.S. 23,
30-31, 89 S.Ct. 5, 10-11, 21 L.Ed.2d 24 (1968).
[91] The section reads as follows:
(1) No person in the classified
service shall be appointed to, or demoted or dismissed from any position in the
classified service, or in any way favored or discriminated against with respect
to employment in the classified service because of his political or religious
opinions or affiliations, or because of race, creed, color or national origin
or by reason of any physical handicap so long as the physical handicap does not
prevent or render the employee less able to do the work for which he is
employed.
(2) No person shall use or promise
to use, directly or indirectly, any official authority or influence, whether
possessed or anticipated, to secure or attempt to secure for any person an
appointment or advantage in appointment to a position in the classified
service, or an increase in pay or other advantage in employment in any such
position, for the purpose of influencing the vote or political action of any
person, or for consideration; provided, however, that letters of inquiry,
recommendation and reference by public employees of public officials shall not
be considered official authority or influence unless such letter contains a
threat, intimidation, irrelevant, derogatory or false information.
(3) No person shall make any false
statement, certificate, mark, rating, or report with regard to any test,
certification or appointment made under any provision of this Act or in any
manner commit any fraud preventing the impartial execution of this Act and
rules made hereunder.
(4) No employee of the department,
examiner, or other person shall defeat, deceive, or obstruct any person in his
or her right to examination, eligibility, certification, or appointment under
this law, or furnish to any person any special or secret information for the
purpose of effecting (sic) the rights or prospects of any person with respect
to employment in the classified service.
(5) No person shall, directly or
indirectly, give, render, pay, offer, solicit, or accept any money, service, or
other valuable consideration for or on account of any appointment, proposed
appointment, promotion, or proposed promotion to, or any advantage in, a
position in the classified service.
(6) No employee in the classified
service, and no member of the Personnel Board shall, directly or indirectly,
solicit, receive, or in any manner be concerned in soliciting or receiving any
assessment, subscription or contribution for any political organization,
candidacy or other political purpose; and no state officer or state employee in
the unclassified service shall solicit or receive any such assessment,
subscription or contribution from an employee in the classified service.
(7) No employee in the classified
service shall be a member of any national, state or local committee of a
political party, or an officer or member of a committee of a partisan political
club, or a candidate for nomination or election to any paid public office, or
shall take part in the management or affairs of any political party or in any
political campaign, except to exercise his right as a citizen privately to
express his opinion and to cast his vote.
(8) Upon a showing of substantial
evidence by the Personnel Director that any officer or employee in the state
classified service, has knowingly violate any of the provisions of this
Section, the State Personnel Board shall notify the officer or employee so
charged and the appointing authority under whose jurisdiction the officer or
employee serves. If the officer or employee so desires, the State Personnel
Board shall hold a public hearing, or shall authorize the Personnel Director to
hold a public hearing, and submit a transcript thereof, together with a recommendation,
to the State Personnel Board. Relevant witnesses shall be allowed to be present
and testify at such hearings. If the officer or employee shall be found guilty
by the State Personnel Board of the violation of any provision of this Section,
the Board shall direct the appointing authority to dismiss such officer or
employee; and the appointing authority so directed shall comply.
[92]
[93] Connally v. General Construction Co.,
269
[94] See also Anderson v. Evans, 660 F2d 153 (1981).
[95] 560 F.2d 22 (1977).
[96] The relevant charter provisions read as follows:
x x x x
(5) No appointed official, employee or member of any board or commission of the city, shall be a member of any nation-al, state or local committee of a political party or organization, or an officer of a partisan political organization, or take part in a political campaign, except his right privately to express his opinion and to cast his vote.
(6) No appointed official or employee of the city and no member of any board or commission shall be a candidate for nomination or election to any public office, whether city, state or federal, except elected members of boards or commissions running for re-election, unless he shall have first resigned his then employment or office.
x x x x
[97] See also
Davis, R., Prohibiting Public Employee
from Running for Elective Office as Violation of Employee’s Federal
Constitutional Rights, 44 A.L.R. Fed. 306.
[98] Alderman v.
[99] Fernandez v. State
Personnel Board, et al., 175
[100] 502
F.Supp. 1282 (1980).
[101] Broadrick v. Oklahoma, 413 U.S. 601,
606, 93 S.Ct. 2908, 2912, 37 L.Ed.2d 830 (1973) (state civil service); United States Civil Service Commission v.
National Association of Letter Carriers, 413 U.S. 548, 564, 93 S.Ct. 2880,
2889, 37 L.Ed.2d 796 (1973) (federal civil service); Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731,
1734, 20 L.Ed.2d 811 (1969) (public school teachers); Blameuser v. Andrews, 630 F.2d 538 at 542-543 (7th Cir., 1980)
(military officers).
[102] 565
F.2d at 299-303.
[103] Ichong v. Hernandez, 101 Phil. 1155,
1164 (1957); Sison v. Ancheta, et al.,
G.R. No. L-59431, July 25, 1984, 130 SCRA 654, 662; Association of Small Landowners in the
[104] The Philippine Judges Association, et al. v.
Prado, et al., G.R. No. 105371, November 11, 1993, 227 SCRA 703, 712.
[105]
[106]
[107] The National Police Commission v. De Guzman, et al., G.R. No. 106724, February 9, 1994,
229 SCRA 801, 809.
[108] People v. Cayat, 68 Phil. 12, 18 (1939).
[109] Nordlinger v. Hahn, 505
[110] Chamber of Commerce of the
[111] Werner v.
[112]
[113]
[114]
[115] Majority Decision, pp. 22-23.
[116]
[117] De Guzman, et al. v. Commission on Elections,
G.R. No. 129118, July 19, 2000, 336 SCRA 188, 197; City of St. Louis v. Liberman, 547 S.W.2d 452 (1977); First Bank & Trust Co. v. Board of
Governors of Federal Reserve System, 605 F.Supp. 555 (1984);
[118] Cleland v. National College of Business,
435
[119] State v. Ewing, 518 S.W.2d 643 (1975); Werner v. Southern California Associated
Newspapers, supra note 111.
[120] State v. Ewing, id.; Lutz v. Araneta, 98 Phil. 148, 153
(1955); Tolentino v. Secretary of
Finance, et al., G.R. No. 115455, August 25, 1994, 235 SCRA 630, 684; De Guzman, et al. v. Commission on Elections,
supra note 117; Re: (a) Request of Assistant Court Administrators for Upgrading of
their Rank, Salary and Privileges upon the Effectivity of Republic Act No. 9282
Elevating the Court of Tax Appeals to the Level of the Court of Appeals and (b)
Grant of Special Distortion Allowance to Positions in the Judiciary with Rank
of Judges of Metropolitan Trial Courts, Assistant Clerk of Court of the Court
of Appeals and Division Clerks of Court of the Court of Appeals, A.M. No.
03-10-05-SC, October 1, 2004, 440 SCRA 16, 31; Werner v. Southern California Associated Newspapers, supra note 111.
[121] State v. Ewing, id.; Williamson
v. Lee Optical of Oklahoma, supra
note 118.
[122] Chicago National League Ball Club, Inc. v.
Thompson, 108 Ill.2d 357, 91 Ill.Dec. 610, 483 N.E.2d 1245 (1985); People v.
[123] Supra note 114.
[124] Greenberg v. Kimmelman, 99 N.J. 552,
577, 494 A.2d 294 (1985).
[125] Drew Assocs. of N.J., L.P. v. Travisano,
122 N.J. 249, 258, 584 A.2d 807 (1991).
[126] Piscataway Tp. Bd. of Ed. v. Caffiero,
86 N.J. 308, 324-25, 431 A.2d 799 (1981);
[127] Taxpayers Ass'n of
[128] Robbiani v. Burke, 77 N.J. 383, 392-93,
390 A.2d 1149 (1978).
[129] Drew Assocs. of N.J., L.P. v. Travisano,
supra note 125.
[130] New Jersey State League of Municipalities, et al. v. State of New Jersey, supra note 114.
[131] Taule v.
[132]
[133] Majority Decision, pp. 25-26.
[134] Id.
[135] Magill v. Lynch, supra note 95.
[136]
[137]
[138]
[139] Majority Opinion, p. 26.
[140]
[141] See rollo, p.3 where the titular heading, as well as the first paragraph of Resolution 8678, refers to the contents of said Resolution as the “guidelines on the filing of certificates of candidacy and nomination of official candidates of registered political parties in connection with the May 10, 2010 National and Local Elections.”
[142] The
Sangguniang Kabataan elections,
although nonpartisan in character, are, arguably, not relevant to the present
inquiry because they are unlikely to involve the candidacies of appointive
public officials.
[143] Smith v. Ehrlich, 430 F. Supp. 818 (1976).
[144] Broadrick v. Oklahoma, supra note 87.
[145] Magill v. Lynch, supra note 95.
[146]
[147]
[148]
[149]
[150] Broadrick v. Oklahoma, supra note 87.
[151]
[152]
[153] Mining v. Wheeler, 378 F. Supp. 1115 (1974).
[154] Broadrick v. Oklahoma, supra note 87.
[155] Aiello v. City of Wilmington, Delaware, 623 F.2d 845 (1980).