There are two new election law-related rulings of the Philippine Supreme Court that some legal advocates and media commentators find to be very controversial and unwise, including myself.
One refers to the new definition “premature campaigning” as a criminal offence (GR No. 181613, Penera v. Comelec, November 25, 2009; favorably acting on the motion for reconsideration of the petitioner).
The other refers to the legal effects of the filing of a certificate of candidacy by an appointive public official. I am reproducing below two news items in this regard. (ELEAZAR P. QUINTO and GERINO A. TOLENTINO, JR. vs. COMMISSION ON ELECTIONS, En Banc, G.R. No. 189698, December 1, 2009).
May I reproduce below two news items on the abovementioned matter from the Supreme Court website and a leading Philippine daily.
I am also presenting below an extensive digest of the doctrinal pronouncements of the Court in the aforecited two leading cases for legal research purposes of the visitors of this blog.
SC Holds Lawful Partisan Political Acts
as to a Candidate Before Campaign Period
Posted: November 25, 2009
By Jay B. Rempillo
(Supreme Court website – sc.judicairy.gov.ph)
The Supreme Court, by a 9-5 vote, today reinstated Rosalinda A. Penera as mayor of the municipality of Sta. Monica, Surigao del Norte as it granted her motion for reconsideration and set aside its September 11, 2009 decision, which earlier had affirmed her disqualification by the Commission on Elections (Comelec) for premature campaigning.
In a 16-page resolution penned by Justice Antonio T. Carpio, the Court En Banc also set aside the resolutions dated July 24, 2007 and January 30, 2008 by the Comelec Second Division and the Comelec en banc, respectively.
Concurring were Chief Justice Reynato S. Puno and Justices Renato C. Corona, Conchita Carpio Morales, Presbitero J. Velasco, Jr., Arturo D. Brion, Diosdado M. Peralta, Lucas P. Bersamin, and Martin S. Villarama, Jr.
“We grant Rosalinda A. Penera’s motion for reconsideration of this Court’s Decision of 11 September 2009…The assailed decision is contrary to the clear intent and letter of the law,” the Court said.
Penera’s disqualification stemmed from her alleged premature campaigning when she and her supported had a motorcade on March 29, 2007, a day before the start of the authorized campaign period for the May 2007 local and national elections.
The Court held that the assailed decision reverses its ruling in Lanot v. Comelec, wherein the Court held that a person who files a certificate of candidacy is not a candidate until the start of the campaign period. It noted that Congress had elevated the Lanot doctrine into law under RA 8436.
Under the September 11, 2009 decision, a candidate may already be liable for premature campaigning after the filing of the certificate of candidacy but even before the start of the campaign period. The same considers a person who files a certificate of candidacy already a “candidate” even before the start of the campaign period.
The Court ruled that under the law, “candidate” has been defined as “any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy” and that “any person who files certificate of candidacy within [the period for filing] shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy.” It stressed that when “the applicable provisions of RA 8436, as amended by RA 9369, and read together, these provisions of law do not consider Penera a candidate for purposes other than the printing of the ballots until the start of the campaign period.”
“In layman’s language, this means that a candidate is liable for an election offense only for acts done during the campaign period, not before. The law is clear as daylight – any election offense that may be committed by a candidate under any election law cannot be committed before the start of the campaign period. In ruling that Penera is liable for premature campaigning for partisan political acts before the start of the campaigning, the assailed Decision ignores the clear and express provision of the law,” the Court said.
The Court further said that what the law says is “any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period. The plain meaning of this provision is that the effective date when partisan political acts become unlawful as to a candidate is when the campaign period starts. Before the start of the campaign period, the same partisan political acts are lawful.”
Furthermore, the Court stressed that the law does not state that partisan political acts done by a candidate before the campaign period are unlawful, but may be prosecuted only upon the start of the campaign period.
“Congress has laid down the law – a candidate is liable for election offenses only upon the start of the campaign period. This Court has no power to ignore the clear and express mandate of the law that ‘any person who files his certificate of candidacy within [the filing] period shall only be considered a candidate at the start of the campaign period for which he filed his certificate of candidacy.’ Neither can this Court turn a blind eye to the express and clear language of the law that ‘any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period,’” said the Court.
Justice Minita V. Chico-Nazario wrote a dissenting opinion and was joined by Justices Antonio Eduardo B. Nachura, Teresita J. Leonardo-De Castro, and Mariano C. Del Castillo. Justice Roberto A. Abad wrote a separate dissenting opinion.
(See: GR No. 181613, Penera v. Comelec, November 25, 2009).
See:
http://sc.judiciary.gov.ph/news/courtnews%20flash/2009/11/11250901.php
SC: Gov’t execs need not quit after filing CoCs
By Norman Bordadora
Philippine Daily Inquirer
First Posted 03:29:00 12/02/2009
MANILA, Philippines—The Supreme Court on Tuesday struck down as unconstitutional those provisions in the election laws that consider appointed officials to be resigned once they filed their certificates of candidacy (CoCs), the court spokesperson said.
Deputy court administrator Jose Midas Marquez said the court en banc voted to consider those provisions violative of the equal protection clause under the Constitution.
Unlike elective officials, the appointive officials are mandated by law to resign after they file their CoCs.
“In considering persons holding appointive positions as ipso facto resigned from their posts upon the filing of their CoCs, but not considering as resigned all other civil servants, specifically the electives ones, the law unduly discriminates against the first class,” Marquez said, quoting from the decision.
“The fact alone that there is substantial distinction between those who hold appointive positions and those occupying elective posts, does not justify such differential treatment,” he added.
Associate Justice Antonio Eduardo Nachura penned the majority opinion in connection with a petition filed by election lawyer Romulo Macalintal in behalf of two officials of the Department of Environment and Natural Resources (DENR), Eleazar Quinto and Gerino Tolentino.
Puno dissents
Seven justices agreed with Nachura while six, including Chief Justice Reynato Puno, dissented, Marquez said.
Quinto and Tolentino, DENR undersecretary and director, respectively, have expressed their intention to run for congressional and local positions in the 2010 elections.
“According to the majority, the classification brought by the distinction is not germane to the purpose of the law, which is to preserve the integrity, efficiency, and discipline of civil service,” Marquez said.
As it is, elected officials continue to hold office until their respective terms end and they campaign while still holding on to their seats.
On the other hand, under the questioned election laws, appointed officials have to resign.
Appointing official has last say
Marquez answered in the affirmative when asked if appointed officials could stay on in their present positions even if they became official candidates for the 2010 elections.
That is, “until they are removed from office,” Marquez said, indicating that the appointing authority would have the last say on the tenure of those officials.
Asked whether appointed officials who have already resigned from their positions before filing their certificates of candidacy can get back their old posts in view of the court’s ruling, Marquez said: “It would be up to the appointing authority.”
Among those who recently resigned before filing their CoCs were administration standard-bearer and former Defense Secretary Gilberto Teodoro and his running mate, former Optical Media Board Chair Edu Manzano.
Marquez said the Supreme Court struck down as unconstitutional the second proviso in the third paragraph of Section 13 of the Automated Election Law, Section 4(a) of Commission on Elections Resolution No. 8678, and Section 66 of the Omnibus Election Code.
The automated election law and the Comelec resolution provide “[t]hat 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.”
Palace happy, relieved
Both provisions were lifted from Sec. 66 of the Omnibus Election Code, Marquez said.
Malacañang cheered the high court’s ruling.
“We welcome that. We are certainly relieved by it,” presidential political adviser Gabriel Claudio said.
He added: “Many of the Cabinet officials who have been considered as resigned if there was no such ruling from the Supreme Court would now be able to lend a few more months of credible service to the country and the people.”
Press Secretary Cerge Remonde said that Cabinet officials who had resigned to run for public office, including Teodoro, would no longer be taken back.
Ten others
“Those who have resigned and been replaced would not be reappointed,” Remonde said.
Among those who have resigned to run for public office were Public Works Secretary Hermogenes Ebdane Jr., Socioeconomic Planning Secretary Ralph Recto and Secretary Avelino Razon.
Remonde also said that 10 other Cabinet officials who were set to file their CoCs Tuesday had not tendered their resignation but would have to decide whether to resign eventually before the start of the campaign period.
“Now there’s no need to resign until I think you start campaigning,” Cabinet Secretary Silvestre Bello III, the only Cabinet official running for senator, said by phone. With a report from TJ Burgonio
See:
http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20091202-239647/SC-Govt-execs-need-not-quit-after-filing-CoCs
May I digest below the doctrinal pronouncements of the Court in the abovementioned cases.
ROSALINDA A. PENERA vs. COMELEC, et. al., En Banc, G.R. No. 181613, November 25, 2009
1. Section 79(a) of the Omnibus Election Code defines a “candidate” as “any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy x x x.” The second sentence, third paragraph, Section 15 of RA 8436, as amended by Section 13 of RA 9369, provides that “[a]ny person who files his certificate of candidacy within [the period for filing] shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy.” The immediately succeeding proviso in the same third paragraph states that “unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period.”
2. The Decision reverses Lanot v. COMELEC, which held that a person who files a certificate of candidacy is not a candidate until the start of the campaign period. In Lanot, this Court explained: Thus, the essential elements for violation of Section 80 of the Omnibus Election Code are: (1) a person engages in an election campaign or partisan political activity; (2) the act is designed to promote the election or defeat of a particular candidate or candidates; (3) the act is done outside the campaign period. The second element requires the existence of a “candidate.” Under Section 79(a), a candidate is one who “has filed a certificate of candidacy” to an elective public office. Unless one has filed his certificate of candidacy, he is not a “candidate.” The third element requires that the campaign period has not started when the election campaign or partisan political activity is committed.
3. Assuming that all candidates to a public office file their certificates of candidacy on the last day, which under Section 75 of the Omnibus Election Code is the day before the start of the campaign period, then no one can be prosecuted for violation of Section 80 for acts done prior to such last day. Before such last day, there is no “particular candidate or candidates” to campaign for or against. On the day immediately after the last day of filing, the campaign period starts and Section 80 ceases to apply since Section 80 covers only acts done “outside” the campaign period.
4. There is no dispute that Eusebio’s acts of election campaigning or partisan political activities were committed outside of the campaign period. The only question is whether Eusebio, who filed his certificate of candidacy on 29 December 2003, was a “candidate” when he committed those acts before the start of the campaign period on 24 March 2004.
5. Section 11 of Republic Act No. 8436 (“RA 8436”) moved the deadline for the filing of certificates of candidacy to 120 days before election day. Thus, the original deadline was moved from 23 March 2004 to 2 January 2004, or 81 days earlier. The crucial question is: did this change in the deadline for filing the certificate of candidacy make one who filed his certificate of candidacy before 2 January 2004 immediately liable for violation of Section 80 if he engaged in election campaign or partisan political activities prior to the start of the campaign period on 24 March 2004?
6. Section 11 of RA 8436 provides:
SECTION 11. Official Ballot. – The Commission shall prescribe the size and form of the official ballot which shall contain the titles of the positions to be filled and/or the propositions to be voted upon in an initiative, referendum or plebiscite. Under each position, the names of candidates shall be arranged alphabetically by surname and uniformly printed using the same type size. A fixed space where the chairman of the Board of Election Inspectors shall affix his/her signature to authenticate the official ballot shall be provided.
Both sides of the ballots may be used when necessary.
For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/ manifestation to participate in the election shall not be later than one hundred twenty (120) days before the elections: Provided, That, any elective official, whether national or local, running for any office other than the one which he/she is holding in a permanent capacity, except for president and vice-president, shall be deemed resigned only upon the start of the campaign period corresponding to the position for which he/she is running: Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period: Provided, finally, That, for purposes of the May 11, 1998 elections, the deadline for filing of the certificate of candidacy for the positions of President, Vice-President, Senators and candidates under the party-list system as well as petitions for registration and/or manifestation to participate in the party-list system shall be on February 9, 1998 while the deadline for the filing of certificate of candidacy for other positions shall be on March 27, 1998.
The official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas at the price comparable with that of private printers under proper security measures which the Commission shall adopt.
The Commission may contract the services of private printers upon certification by the National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the printing requirements. Accredited political parties and deputized citizens’ arms of the Commission may assign watchers in the printing, storage and distribution of official ballots.
To prevent the use of fake ballots, the Commission through the Committee shall ensure that the serial number on the ballot stub shall be printed in magnetic ink that shall be easily detectable by inexpensive hardware and shall be impossible to reproduce on a photocopying machine, and that identification marks, magnetic strips, bar codes and other technical and security markings, are provided on the ballot.
The official ballots shall be printed and distributed to each city/municipality at the rate of one (1) ballot for every registered voter with a provision of additional four (4) ballots per precinct.
7. Under Section 11 of RA 8436, the only purpose for the early filing of certificates of candidacy is to give ample time for the printing of official ballots. Thus, because of the early deadline of 2 January 2004 for purposes of printing of official ballots, Eusebio filed his certificate of candidacy on 29 December 2003. Congress, however, never intended the filing of a certificate of candidacy before 2 January 2004 to make the person filing to become immediately a “candidate” for purposes other than the printing of ballots. This legislative intent prevents the immediate application of Section 80 of the Omnibus Election Code to those filing to meet the early deadline. The clear intention of Congress was to preserve the “election periods as x x x fixed by existing law” prior to RA 8436 and that one who files to meet the early deadline “will still not be considered as a candidate.”
8. Lanot was decided on the ground that one who files a certificate of candidacy is not a candidate until the start of the campaign period. This ground was based on the deliberations of the legislators who explained the intent of the provisions of RA 8436, which laid the legal framework for an automated election system. There was no express provision in the original RA 8436 stating that one who files a certificate of candidacy is not a candidate until the start of the campaign period.
9. When Congress amended RA 8436, Congress decided to expressly incorporate the Lanot doctrine into law, realizing that Lanot merely relied on the deliberations of Congress in holding that — The clear intention of Congress was to preserve the “election periods as x x x fixed by existing law” prior to RA 8436 and that one who files to meet the early deadline “will still not be considered as a candidate.”
10. Congress wanted to insure that no person filing a certificate of candidacy under the early deadline required by the automated election system would be disqualified or penalized for any partisan political act done before the start of the campaign period. Thus, in enacting RA 9369, Congress expressly wrote the Lanot doctrine into the second sentence, third paragraph of the amended Section 15 of RA 8436, thus:
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. (Boldfacing and underlining supplied)
11. Congress elevated the Lanot doctrine into a statute by specifically inserting it as the second sentence of the third paragraph of the amended Section 15 of RA 8436, which cannot be annulled by this Court except on the sole ground of its unconstitutionality. The Decision cannot reverse Lanot without repealing this second sentence, because to reverse Lanot would mean repealing this second sentence.
12. The assailed Decision, however, in reversing Lanot does not claim that this second sentence or any portion of Section 15 of RA 8436, as amended by RA 9369, is unconstitutional. In fact, the Decision considers the entire Section 15 good law. Thus, the Decision is self-contradictory — reversing Lanot but maintaining the constitutionality of the second sentence, which embodies the Lanot doctrine. In so doing, the Decision is irreconcilably in conflict with the clear intent and letter of the second sentence, third paragraph, Section 15 of RA 8436, as amended by RA 9369.
13. In enacting RA 9369, Congress even further clarified the first proviso in the third paragraph of Section 15 of RA 8436. The original provision in RA 8436 states — xxx Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period, x x x. In RA 9369, Congress inserted the word “only” so that the first proviso now reads — xxx Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period x x x. Thus, Congress not only reiterated but also strengthened its mandatory directive that election offenses can be committed by a candidate “only” upon the start of the campaign period. This clearly means that before the start of the campaign period, such election offenses cannot be so committed.
14. When the applicable provisions of RA 8436, as amended by RA 9369, are read together, these provisions of law do not consider Penera a candidate for purposes other than the printing of ballots, until the start of the campaign period. There is absolutely no room for any other interpretation. We quote with approval the Dissenting Opinion of Justice Antonio T. Carpio:
x x x The definition of a “candidate” in Section 79(a) of the Omnibus Election Code should be read together with the amended Section 15 of RA 8436. A “‘candidate’ refers to any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy by himself or through an accredited political party, aggroupment or coalition of parties.” However, it is no longer enough to merely file a certificate of candidacy for a person to be considered a candidate because “any person who files his certificate of candidacy within [the filing] period shall only be considered a candidate at the start of the campaign period for which he filed his certificate of candidacy.” Any person may thus file a certificate of candidacy on any day within the prescribed period for filing a certificate of candidacy yet that person shall be considered a candidate, for purposes of determining one’s possible violations of election laws, only during the campaign period. Indeed, there is no “election campaign” or “partisan political activity” designed to promote the election or defeat of a particular candidate or candidates to public office simply because there is no “candidate” to speak of prior to the start of the campaign period. Therefore, despite the filing of her certificate of candidacy, the law does not consider Penera a candidate at the time of the questioned motorcade which was conducted a day before the start of the campaign period. x x x
15. The campaign period for local officials began on 30 March 2007 and ended on 12 May 2007. Penera filed her certificate of candidacy on 29 March 2007. Penera was thus a candidate on 29 March 2009 only for purposes of printing the ballots. On 29 March 2007, the law still did not consider Penera a candidate for purposes other than the printing of ballots. Acts committed by Penera prior to 30 March 2007, the date when she became a “candidate,” even if constituting election campaigning or partisan political activities, are not punishable under Section 80 of the Omnibus Election Code. Such acts are within the realm of a citizen’s protected freedom of expression. Acts committed by Penera within the campaign period are not covered by Section 80 as Section 80 punishes only acts outside the campaign period.
16. As previously established, a person, after filing his/her COC but prior to his/her becoming a candidate (thus, prior to the start of the campaign period), can already commit the acts described under Section 79(b) of the Omnibus Election Code as election campaign or partisan political activity, However, only after said person officially becomes a candidate, at the beginning of the campaign period, can said acts be given effect as premature campaigning under Section 80 of the Omnibus Election Code. Only after said person officially becomes a candidate, at the start of the campaign period, can his/her disqualification be sought for acts constituting premature campaigning. Obviously, it is only at the start of the campaign period, when the person officially becomes a candidate, that the undue and iniquitous advantages of his/her prior acts, constituting premature campaigning, shall accrue to his/her benefit. Compared to the other candidates who are only about to begin their election campaign, a candidate who had previously engaged in premature campaigning already enjoys an unfair headstart in promoting his/her candidacy. (Emphasis supplied)
17. It is a basic principle of law that any act is lawful unless expressly declared unlawful by law. This is specially true to expression or speech, which Congress cannot outlaw except on very narrow grounds involving clear, present and imminent danger to the State. The mere fact that the law does not declare an act unlawful ipso facto means that the act is lawful. Thus, there is no need for Congress to declare in Section 15 of RA 8436, as amended by RA 9369, that political partisan activities before the start of the campaign period are lawful. It is sufficient for Congress to state that “any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period.” The only inescapable and logical result is that the same acts, if done before the start of the campaign period, are lawful.
18. In layman’s language, this means that a candidate is liable for an election offense only for acts done during the campaign period, not before. The law is clear as daylight — any election offense that may be committed by a candidate under any election law cannot be committed before the start of the campaign period. In ruling that Penera is liable for premature campaigning for partisan political acts before the start of the campaigning, the assailed Decision ignores the clear and express provision of the law.
19. The law does not state, as the assailed Decision asserts, that partisan political acts done by a candidate before the campaign period are unlawful, but may be prosecuted only upon the start of the campaign period. Neither does the law state that partisan political acts done by a candidate before the campaign period are temporarily lawful, but becomes unlawful upon the start of the campaign period. This is clearly not the language of the law. Besides, such a law as envisioned in the Decision, which defines a criminal act and curtails freedom of expression and speech, would be void for vagueness.
20. Congress has laid down the law — a candidate is liable for election offenses only upon the start of the campaign period. This Court has no power to ignore the clear and express mandate of the law that “any person who files his certificate of candidacy within [the filing] period shall only be considered a candidate at the start of the campaign period for which he filed his certificate of candidacy.” Neither can this Court turn a blind eye to the express and clear language of the law that “any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period.”
21. The forum for examining the wisdom of the law, and enacting remedial measures, is not this Court but the Legislature. This Court has no recourse but to apply a law that is as clear, concise and express as the second sentence, and its immediately succeeding proviso, as written in the third paragraph of Section 15 of RA 8436, as amended by RA 9369.
May I digest below the new ruling re: the effects of filing of certificate of candidacy by an appointive public official.
ELEAZAR P. QUINTO and GERINO A. TOLENTINO, JR. vs. COMMISSION ON ELECTIONS, En Banc, G.R. No. 189698, December 1, 2009
1. This controversy actually stems from the law authorizing the COMELEC to use an automated election system (AES). On December 22, 1997, Congress enacted Republic Act (R.A.) No. 8436, entitled “AN ACT AUTHORIZING THE COMMISSION ON ELECTIONS TO USE AN AUTOMATED ELECTION SYSTEM IN THE MAY 11, 1998 NATIONAL OR LOCAL ELECTIONS AND IN SUBSEQUENT NATIONAL AND LOCAL ELECTORAL EXERCISES, PROVIDING FUNDS THEREFOR AND FOR OTHER PURPOSES.” Section 11 thereof reads:
SEC. 11. Official Ballot.—The Commission shall prescribe the size and form of the official ballot which shall contain the titles of the positions to be filled and/or the propositions to be voted upon in an initiative, referendum or plebiscite. Under each position, the names of candidates shall be arranged alphabetically by surname and uniformly printed using the same type size. A fixed space where the chairman of the Board of Election inspectors shall affix his/her signature to authenticate the official ballot shall be provided.
Both sides of the ballots may be used when necessary.
For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/manifestation to participate in the election shall not be later than one hundred twenty (120) days before the elections: Provided, That, any elective official, whether national or local, running for any office other than the one which he/she is holding in a permanent capacity, except for president and vice president, shall be deemed resigned only upon the start of the campaign period corresponding to the position for which he/she is running: Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period: Provided, finally, That, for purposes of the May 11, 1998 elections, the deadline for filing of the certificate of candidacy for the positions of President, Vice President, Senators and candidates under the Party-List System as well as petitions for registration and/or manifestation to participate in the Party-List System shall be on February 9, 1998 while the deadline for the filing of certificate of candidacy for other positions shall be on March 27, 1998.
The official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas at the price comparable with that of private printers under proper security measures which the Commission shall adopt. The Commission may contract the services of private printers upon certification by the National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the printing requirements. Accredited political parties and deputized citizens' arms of the Commission may assign watchers in the printing, storage and distribution of official ballots.
To prevent the use of fake ballots, the Commission through the Committee shall ensure that the serial number on the ballot stub shall be printed in magnetic ink that shall be easily detectable by inexpensive hardware and shall be impossible to reproduce on a photocopying machine and that identification marks, magnetic strips, bar codes and other technical and security markings, are provided on the ballot.
The official ballots shall be printed and distributed to each city/municipality at the rate of one (1) ballot for every registered voter with a provision of additional four (4) ballots per precinct.
2. Almost a decade thereafter, Congress amended the law on January 23, 2007 by enacting R.A. No. 9369, entitled “AN ACT AMENDING REPUBLIC ACT NO. 8436, ENTITLED ‘AN ACT AUTHORIZING THE COMMISSION ON ELECTIONS TO USE AN AUTOMATED ELECTION SYSTEM IN THE MAY 11, 1998 NATIONAL OR LOCAL ELECTIONS AND IN SUBSEQUENT NATIONAL AND LOCAL ELECTORAL EXERCISES, TO ENCOURAGE TRANSPARENCY, CREDIBILITY, FAIRNESS AND ACCURACY OF ELECTIONS, AMENDING FOR THE PURPOSE BATAS PAMPANSA BLG. 881, AS AMEMDED, REPUBLIC ACT NO. 7166 AND OTHER RELATED ELECTION LAWS, PROVIDING FUNDS THEREFOR AND FOR OTHER PURPOSES.’” Section 13 of the amendatory law modified Section 11 of R.A. No. 8436, thus:
SEC. 13. Section 11 of Republic Act No. 8436 is hereby amended to read as follows:
“Section 15. Official Ballot.—The Commission shall prescribe the format of the electronic display and/or the size and form of the official ballot, which shall contain the titles of the position to be filled and/or the propositions to be voted upon in an initiative, referendum or plebiscite. Where practicable, electronic displays must be constructed to present the names of all candidates for the same position in the same page or screen, otherwise, the electronic displays must be constructed to present the entire ballot to the voter, in a series of sequential pages, and to ensure that the voter sees all of the ballot options on all pages before completing his or her vote and to allow the voter to review and change all ballot choices prior to completing and casting his or her ballot. Under each position to be filled, the names of candidates shall be arranged alphabetically by surname and uniformly indicated using the same type size. The maiden or married name shall be listed in the official ballot, as preferred by the female candidate. Under each proposition to be vote upon, the choices should be uniformly indicated using the same font and size.
“A fixed space where the chairman of the board of election inspectors shall affix his/her signature to authenticate the official ballot shall be provided.
“For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition of registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers and employees in government-owned or -controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certificate of candidacy.
“Political parties may hold political conventions to nominate their official candidates within thirty (30) days before the start of the period for filing a certificate of candidacy.
“With respect to a paper-based election system, the official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas at the price comparable with that of private printers under proper security measures which the Commission shall adopt. The Commission may contract the services of private printers upon certification by the National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the printing requirements. Accredited political parties and deputized citizens’ arms of the Commission shall assign watchers in the printing, storage and distribution of official ballots.
“To prevent the use of fake ballots, the Commission through the Committee shall ensure that the necessary safeguards, such as, but not limited to, bar codes, holograms, color shifting ink, microprinting, are provided on the ballot.
“The official ballots shall be printed and distributed to each city/municipality at the rate of one ballot for every registered voter with a provision of additional three ballots per precinct.”
3. Pursuant to its constitutional mandate to enforce and administer election laws, COMELEC issued Resolution No. 8678, the Guidelines on the Filing of Certificates of Candidacy (CoC) and Nomination of Official Candidates of Registered Political Parties in Connection with the May 10, 2010 National and Local Elections. Sections 4 and 5 of Resolution No. 8678 provide:
SEC. 4. Effects of Filing Certificates of Candidacy.—a) Any person holding a public appointive office or position including active members of the Armed Forces of the Philippines, and other officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.
b) Any person holding an elective office or position shall not be considered resigned upon the filing of his certificate of candidacy for the same or any other elective office or position.
SEC. 5. Period for filing Certificate of Candidacy.—The certificate of candidacy shall be filed on regular days, from November 20 to 30, 2009, during office hours, except on the last day, which shall be until midnight.
4. Alarmed that they will be deemed ipso facto resigned from their offices the moment they file their CoCs, petitioners Eleazar P. Quinto and Gerino A. Tolentino, Jr., who hold appointive positions in the government and who intend to run in the coming elections, filed the instant petition for prohibition and certiorari, seeking the declaration of the afore-quoted Section 4(a) of Resolution No. 8678 as null and void.
Petitioners contend that the COMELEC gravely abused its discretion when it issued the assailed Resolution. They aver that the advance filing of CoCs for the 2010 elections is intended merely for the purpose of early printing of the official ballots in order to cope with time limitations. Such advance filing does not automatically make the person who filed the CoC a candidate at the moment of filing. In fact, the law considers him a candidate only at the start of the campaign period. Petitioners then assert that this being so, they should not be deemed ipso facto resigned from their government offices when they file their CoCs, because at such time they are not yet treated by law as candidates. They should be considered resigned from their respective offices only at the start of the campaign period when they are, by law, already considered as candidates.
Petitioners also contend that Section 13 of R.A. No. 9369, the basis of the assailed COMELEC resolution, contains two conflicting provisions. These must be harmonized or reconciled to give effect to both and to arrive at a declaration that they are not ipso facto resigned from their positions upon the filing of their CoCs.
Petitioners further posit that the provision considering them as ipso facto resigned from office upon the filing of their CoCs is discriminatory and violates the equal protection clause in the Constitution.
5. To put things in their proper perspective, it is imperative that we trace the brief history of the assailed provision. Section 4(a) of COMELEC Resolution No. 8678 is a reproduction of the second proviso in the third paragraph of Section 13 of R.A. No. 9369, which for ready reference is quoted as follows:
For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition for registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers and employees in government-owned or -controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certificate of candidacy.
6. Notably, this proviso is not present in Section 11 of R.A. No. 8436, the law amended by R.A. No. 9369. The proviso was lifted from Section 66 of B.P. Blg. 881 or the Omnibus Election Code (OEC) of the Philippines, which reads:
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 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.
7. It may be recalled—in inverse chronology—that earlier, Presidential Decree No. 1296, or the 1978 Election Code, contained a similar provision, thus—
SECTION 29. Candidates holding appointive office or position. — Every person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall ipso facto cease in his office or position on the date he files his certificate of candidacy. Members of the Cabinet shall continue in the offices they presently hold notwithstanding the filing of certificate of candidacy, subject to the pleasure of the President of the Philippines.
8. Much earlier, R.A. No. 6388, or the Election Code of 1971, likewise stated in its Section 23 the following:
SECTION 23. Candidates Holding Appointive Office or Position. — Every person holding a public appointive office or position, including active members of the Armed Forces of the Philippines and every officer or employee in government-owned or controlled corporations, shall ipso facto cease in his office or position on the date he files his certificate of candidacy: Provided, That the filing of a certificate of candidacy shall not affect whatever civil, criminal or administrative liabilities which he may have incurred.
9. Going further back in history, R.A. No. 180, or the Revised Election Code approved on June 21, 1947, also provided that—
SECTION 26. Automatic cessation of appointive officers and employees who are candidates. — Every person holding a public appointive office or position shall ipso facto cease in his office or position on the date he files his certificate of candidacy.
10. During the Commonwealth era, Commonwealth Act (C.A.) No. 725, entitled “AN ACT TO PROVIDE FOR THE NEXT ELECTION FOR PRESIDENT AND VICE-PRESIDENT OF THE PHILIPPINES, SENATORS AND MEMBERS OF THE HOUSE OF REPRESENTATIVES, AND APPROPRIATING THE NECESSARY FUNDS THEREFOR,” approved on January 5, 1946, contained, in the last paragraph of its Section 2, the following:
A person occupying any civil office by appointment in the government or any of its political subdivisions or agencies or government-owned or controlled corporations, whether such office by appointive or elective, shall be considered to have resigned from such office from the moment of the filing of such certificate of candidacy.
11. Significantly, however, C.A. No. 666, entitled “AN ACT TO PROVIDE FOR THE FIRST ELECTION FOR PRESIDENT AND VICE-PRESIDENT OF THE PHILIPPINES, SENATORS, AND MEMBERS OF THE HOUSE OF REPRESENTATIVES, UNDER THE CONSTITUTION AND THE AMENDMENTS THEREOF,” enacted without executive approval on June 22, 1941, the precursor of C.A. No. 725, only provided for automatic resignation of elective, but not appointive, officials.
12. Nevertheless, C.A. No. 357, or the Election Code approved on August 22, 1938, had, in its Section 22, the same verbatim provision as Section 26 of R.A. No. 180.
13. The earliest recorded Philippine law on the subject is Act No. 1582, or the Election Law enacted by the Philippine Commission in 1907, the last paragraph of Section 29 of which reads:
Sec. 29. Penalties upon officers.— x x x.
No public officer shall offer himself as a candidate for election, nor shall he be eligible during the time that he holds said public office to election, at any municipal, provincial or Assembly election, except for reelection to the position which he may be holding, and no judge of the Court of First Instance, justice of the peace, provincial fiscal, or officer or employee of the Bureau of Constabulary or of the Bureau of Education shall aid any candidate or influence in any manner or take any part in any municipal, provincial, or Assembly election under penalty of being deprived of his office and being disqualified to hold any public office whatever for a term of five years: Provided, however, That the foregoing provisions shall not be construed to deprive any person otherwise qualified of the right to vote at any election.
14. From this brief historical excursion, it may be gleaned that the second proviso in the third paragraph of Section 13 of R.A. No. 9369—that any person holding a public appointive office or position, including active members of the armed forces, and officers, and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certificate of candidacy—traces its roots to the period of the American occupation.
15. Parenthetically, it may be remembered that Section 67 of the OEC and Section 11 of R.A. No. 8436 contained a similar provision on automatic resignation of elective officials upon the filing of their CoCs for any office other than that which they hold in a permanent capacity or for President or Vice-President. However, with the enactment of R.A. No. 9006, or the Fair Election Act, in 2001, this provision was repealed by Section 14 of the said act. There was, thus, created a situation of obvious discrimination against appointive officials who were deemed ipso facto resigned from their offices upon the filing of their CoCs, while elective officials were not.
16. This situation was incidentally addressed by the Court in Fariñas v. The Executive Secretary when it ruled that—
Section 14 of Rep. Act No. 9006
Is Not Violative of the Equal
Protection Clause of the Constitution
The petitioners’ contention, that the repeal of Section 67 of the Omnibus Election Code pertaining to elective officials gives undue benefit to such officials as against the appointive ones and violates the equal protection clause of the constitution, is tenuous.
The equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable classification. If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from the other. The Court has explained the nature of the equal protection guarantee in this manner:
The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not.
Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority.
Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987 (Executive Order No. 292), appointive officials, as officers and employees in the civil service, are strictly prohibited from engaging in any partisan political activity or take part in any election except to vote. Under the same provision, elective officials, or officers or employees holding political offices, are obviously expressly allowed to take part in political and electoral activities.
By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators deemed it proper to treat these two classes of officials differently with respect to the effect on their tenure in the office of the filing of the certificates of candidacy for any position other than those occupied by them. Again, it is not within the power of the Court to pass upon or look into the wisdom of this classification.
Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis-a-vis appointive officials, is anchored upon material and significant distinctions and all the persons belonging under the same classification are similarly treated, the equal protection clause of the Constitution is, thus, not infringed.
17. However, it must be remembered that the Court, in Fariñas, was intently focused on the main issue of whether the repealing clause in the Fair Election Act was a constitutionally proscribed rider, in that it unwittingly failed to ascertain with stricter scrutiny the impact of the retention of the provision on automatic resignation of persons holding appointive positions (Section 66) in the OEC, vis-à-vis the equal protection clause. Moreover, the Court’s vision in Fariñas was shrouded by the fact that petitioners therein, Fariñas et al., never posed a direct challenge to the constitutionality of Section 66 of the OEC. Fariñas et al. rather merely questioned, on constitutional grounds, the repealing clause, or Section 14 of the Fair Election Act. The Court’s afore-quoted declaration in Fariñas may then very well be considered as an obiter dictum.
18. The instant case presents a rare opportunity for the Court, in view of the constitutional challenge advanced by petitioners, once and for all, to settle the issue of whether the second proviso in the third paragraph of Section 13 of R.A. No. 9369, a reproduction of Section 66 of the OEC, which, as shown above, was based on provisions dating back to the American occupation, is violative of the equal protection clause.
19. Here, petitioners’ interest in running for public office, an interest protected by Sections 4 and 8 of Article III of the Constitution, is breached by the proviso in Section 13 of R.A. No. 9369. It is now the opportune time for the Court to strike down the said proviso for being violative of the equal protection clause and for being overbroad.
In considering persons holding appointive positions as ipso facto resigned from their posts upon the filing of their CoCs, but not considering as resigned all other civil servants, specifically the elective ones, the law unduly discriminates against the first class. The fact alone that there is substantial distinction between those who hold appointive positions and those occupying elective posts, does not justify such differential treatment.
20. In order that there can be valid classification so that a discriminatory governmental act may pass the constitutional norm of equal protection, it is necessary that the four (4) requisites of valid classification be complied with, namely:
(1) It must be based upon substantial distinctions;
(2) It must be germane to the purposes of the law;
(3) It must not be limited to existing conditions only; and
(4) It must apply equally to all members of the class.
21. The classification, even if based on substantial distinctions, will still be invalid if it is not germane to the purpose of the law. To illustrate, the accepted difference in physical stamina between men and women will justify the prohibition of the latter from employment as miners or stevedores or in other heavy and strenuous work. On the basis of this same classification, however, the law cannot provide for a lower passing average for women in the bar examinations because physical strength is not the test for admission to the legal profession. Imported cars may be taxed at a higher rate than locally assembled automobiles for the protection of the national economy, but their difference in origin is no justification for treating them differently when it comes to punishing violations of traffic regulations. The source of the vehicle has no relation to the observance of these rules.
The third requirement means that the classification must be enforced not only for the present but as long as the problem sought to be corrected continues to exist. And, under the last requirement, the classification would be regarded as invalid if all the members of the class are not treated similarly, both as to rights conferred and obligations imposed.
Applying the four requisites to the instant case, the Court finds that the differential treatment of persons holding appointive offices as opposed to those holding elective ones is not germane to the purposes of the law.
22. The obvious reason for the challenged provision is to prevent the use of a governmental position to promote one’s candidacy, or even to wield a dangerous or coercive influence on the electorate. The measure is further aimed at promoting the efficiency, integrity, and discipline of the public service by eliminating the danger that the discharge of official duty would be motivated by political considerations rather than the welfare of the public. The restriction is also justified by the proposition that the entry of civil servants to the electoral arena, while still in office, could result in neglect or inefficiency in the performance of duty because they would be attending to their campaign rather than to their office work.
23. If we accept these as the underlying objectives of the law, then the assailed provision cannot be constitutionally rescued on the ground of valid classification. Glaringly absent is the requisite that the classification must be germane to the purposes of the law. Indeed, whether one holds an appointive office or an elective one, the evils sought to be prevented by the measure remain. For example, the Executive Secretary, or any Member of the Cabinet for that matter, could wield the same influence as the Vice-President who at the same time is appointed to a Cabinet post (in the recent past, elected Vice-Presidents were appointed to take charge of national housing, social welfare development, interior and local government, and foreign affairs). With the fact that they both head executive offices, there is no valid justification to treat them differently when both file their CoCs for the elections. Under the present state of our law, the Vice-President, in the example, running this time, let us say, for President, retains his position during the entire election period and can still use the resources of his office to support his campaign.
24. As to the danger of neglect, inefficiency or partisanship in the discharge of the functions of his appointive office, the inverse could be just as true and compelling. The public officer who files his certificate of candidacy would be driven by a greater impetus for excellent performance to show his fitness for the position aspired for.
25. There is thus no valid justification to treat appointive officials differently from the elective ones. The classification simply fails to meet the test that it should be germane to the purposes of the law. The measure encapsulated in the second proviso of the third paragraph of Section 13 of R.A. No. 9369 and in Section 66 of the OEC violates the equal protection clause.
26. The challenged provision also suffers from the infirmity of being overbroad.
First, the provision pertains to all civil servants holding appointive posts without distinction as to whether they occupy high positions in government or not. Certainly, a utility worker in the government will also be considered as ipso facto resigned once he files his CoC for the 2010 elections. This scenario is absurd for, indeed, it is unimaginable how he can use his position in the government to wield influence in the political world.
While it may be admitted that most appointive officials who seek public elective office are those who occupy relatively high positions in government, laws cannot be legislated for them alone, or with them alone in mind. For the right to seek public elective office is universal, open and unrestrained, subject only to the qualification standards prescribed in the Constitution and in the laws. These qualifications are, as we all know, general and basic so as to allow the widest participation of the citizenry and to give free rein for the pursuit of one’s highest aspirations to public office. Such is the essence of democracy.
Second, the provision is directed to the activity of seeking any and all public offices, whether they be partisan or nonpartisan in character, whether they be in the national, municipal or barangay level. Congress has not shown a compelling state interest to restrict the fundamental right involved on such a sweeping scale.
27. 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, Cranston has chosen a provision that makes the public employee cast off the security of hard-won public employment should he desire to compete for elected office.
I shall discuss the dissenting opinion of Chief Justice Reynato Puno in a separate blog next week.
