ELECTION LAW

CHAPTER 6

CAMPAIGN

SECTION 79. Definitions. (BP 881)

-As used in this Code:

(a) The term "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;

(b) The term "election campaign" or "partisan political activity" refers to an act designed to promote the election or defeat of a particular candidate or candidates to a public office which shall include:

(1) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate;

(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate;

(3) Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate for public office;

(4) Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate; or

(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.

The foregoing enumerated acts if performed for the purpose of enhancing the chances of aspirants for nomination for candidacy to a public office by a political party, aggroupment, or coalition of parties shall not be considered as election campaign or partisan election activity.

Public expressions or opinions or discussions of probable issues in a forthcoming election or on attributes of or criticisms against probable candidates proposed to be nominated in a forthcoming political party convention shall not be construed as part of any election campaign or partisan political activity contemplated under this Article.

INCLUDED

PROHIBITED

SECTION 80.  Election campaign or partisan political activity outside campaign period.

— It shall be unlawful for any person, whether or not a voter or candidate, or for any party, or association of persons, to engage in an election campaign or partisan political activity except during the campaign period: Provided, That political

parties may hold political conventions or meetings to nominate their official candidates within thirty days before the commencement of the campaign period and forty-five days for Presidential and Vice-Presidential election. (Sec. 35, 1978 EC)

EXCLUDED

CASE:

1. LANOT v. COMELEC

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. 164858             November 16, 2006

HENRY P. LANOT, substituted by MARIO S. RAYMUNDO, Petitioner, CHARMIE Q. BENAVIDES, Petitioner-Intervenor, vs.COMMISSION ON ELECTIONS and VICENTE P. EUSEBIO, Respondents.

D E C I S I O N

CARPIO, J.:

The Case

This is a petition for certiorari1 assailing the Resolution dated 20 August 2004,2 the Resolution dated 21 May 20043 of the Commission on Elections (COMELEC) En Banc, and the Advisory dated 10 May 20044 of COMELEC Chairman Benjamin S. Abalos ("Chairman Abalos") in SPA No. 04-288.

The 10 May 2004 Advisory of Chairman Abalos enjoined Acting National Capital Region (NCR) Regional Director Esmeralda Amora-Ladra ("Director Ladra") from implementing the COMELEC First Division’s 5 May 2004 Resolution.5 The 5 May 2004 Resolution ordered (1) the disqualification of respondent Vicente P. Eusebio ("Eusebio") as a candidate for Pasig City Mayor in the 10 May 2004 elections, (2) the deletion of Eusebio’s name from the certified list of candidates for Pasig City Mayor, (3) the consideration of votes for Eusebio as stray, (4) the non-inclusion of votes for Eusebio in the canvass, and (5) the filing of the necessary information against Eusebio by the COMELEC Law Department.

The 21 May 2004 Order of the COMELEC En Banc set aside the 11 May 2004 Order of the COMELEC En Banc6and directed the Pasig City Board of Canvassers to proclaim the winning candidate for Pasig City Mayor without prejudice to the final outcome of Eusebio’s disqualification case. The 11 May 2004 Order suspended the proclamation of Eusebio in the event that he would receive the winning number of votes.

Finally, the 20 August 2004 COMELEC En Banc resolution set aside the 5 May 2004 Resolution of the COMELEC First Division7 and nullified the corresponding order. The COMELEC

En Banc referred the case to the COMELEC Law Department to determine whether Eusebio actually committed the acts subject of the petition for disqualification.

The Facts

On 19 March 2004, Henry P. Lanot ("Lanot"), Vener Obispo ("Obispo"), Roberto Peralta ("Peralta"), Reynaldo dela Paz ("dela Paz"), Edilberto Yamat ("Yamat"), and Ram Alan Cruz ("Cruz") (collectively, "petitioners"), filed a petition for disqualification8 under Sections 68 and 80 of the Omnibus Election Code against Eusebio before the COMELEC. Lanot, Obispo, and Eusebio were candidates for Pasig City Mayor, while Peralta, dela Paz, Yamat, and Cruz were candidates for Pasig City Councilor in the 10 May 2004 elections. The case was docketed as SPA (NCR-RED) No. C04-008.

Petitioners alleged that Eusebio engaged in an election campaign in various forms on various occasions outside of the designated campaign period, such as (1) addressing a large group of people during a medical mission sponsored by the Pasig City government; (2) uttering defamatory statements against Lanot; (3) causing the publication of a press release predicting his victory; (4) installing billboards, streamers, posters, and stickers printed with his surname across Pasig City; and (5) distributing shoes to schoolchildren in Pasig public schools to induce their parents to vote for him.

In his Answer filed on 29 March 2004,9 Eusebio denied petitioners’ allegations and branded the petition as a harassment case. Eusebio further stated that petitioners’ evidence are merely fabricated.

Director Ladra conducted hearings on 2, 5 and 7 April 2004 where she received the parties’ documentary and testimonial evidence. Petitioners submitted their memorandum10 on 15 April 2004, while Eusebio submitted his memorandum11 on 16 April 2004.

The Ruling of the Regional Director

On 4 May 2004, Director Ladra submitted her findings and recommendations to the COMELEC. Director Ladra recommended that:

WHEREFORE, in view of the foregoing, undersigned respectfully recommends that the instant petition beGRANTED. Consequently, pursuant to Section 68 (a) and (e) of the Omnibus Election Code, respondentVICENTE P. EUSEBIO shall be DISQUALIFIED to run for the position of Mayor, Pasig City for violation of Section 80 of the Omnibus Election Code.

Further, undersigned respectfully recommends that the instant case be referred to the Law Department for it to conduct a preliminary investigation on the possible violation by the respondent of Sec. 261 (a) of the Omnibus Election Code.12

The Ruling of the COMELEC

In a resolution dated 5 May 2004, or five days before the elections, the COMELEC First Division adopted the findings

and recommendation of Director Ladra. The dispositive portion of the resolution read:

WHEREFORE, in view of the foregoing, the Commission (FIRST DIVISION) RESOLVED as it hereby RESOLVESto ORDER:

1. the disqualification of respondent VICENTE P. EUSEBIO from being a candidate for mayor of Pasig City in the May 10, 2004 elections;

2. the Election Officers of District I and District II of Pasig City to DELETE and CANCEL the name of respondent VICENTE P. EUSEBIO from the certified list of candidates for the City Offices of Pasig City for the May 10, 2004 elections;

3. the Board of Election Inspectors of all the precincts comprising the City of Pasig not to count the votes cast for respondent VICENTE EUSEBIO, the same being cast for a disqualified candidate and therefore must be considered stray;

4. the City Board of Canvassers of Pasig City not to canvass the votes erroneously cast for the disqualified candidate respondent VICENTE P. EUSEBIO, in the event that such votes were recorded in the election returns[;]

5. the Regional Director of NCR, and the Election Officers of Pasig City to immediately implement the foregoing directives[;]

6. the Law Department through its Director IV, Atty. ALIODEN DALAIG to file the necessary information against Vicente P. Eusebio before the appropriate court.

This Resolution is immediately executory unless restrained by the Commission En Banc.13 (Emphasis in the original)

In a Very Urgent Advisory14 dated 8 May 2004, or two days before the elections, Chairman Abalos informed the following election officers of the resolution of the COMELEC First Division: Director Ladra; Atty. Romeo Alcazar, Acting Election Officer of the First District of Pasig City; Ms. Marina Gerona, Acting Election Officer of the Second District of Pasig City; and all Chairmen and Members of the Board of Election Inspectors and City Board of Canvassers of Pasig City (collectively, "pertinent election officers"). Director Ladra repeated the dispositive portion of the 5 May 2004 resolution in a Memorandum15 which she issued the next day. On 9 May 2004, Eusebio filed a motion for reconsideration16 of the resolution of the COMELEC First Division.

On election day itself, Chairman Abalos issued the first of the three questioned COMELEC issuances. In a memorandum, Chairman Abalos enjoined Director Ladra from implementing the COMELEC First Division’s 5 May 2004 resolution due to Eusebio’s motion for reconsideration. The 10 May 2004 memorandum stated:

Considering the pendency of a Motion for Reconsideration timely filed by Respondent, Vicente P. Eusebio[,] with the Commission En Banc, you are hereby ENJOINED from implementing the Resolution promulgated on May 5, 2004, in the x x x case until further orders from the Commission En Banc.17 (Emphasis in the original)

On 11 May 2004, the day after the elections, petitioners Lanot, Peralta, dela Paz, Yamat, and Cruz filed before the COMELEC En Banc a motion to suspend the counting and canvassing of votes and the proclamation of the winning mayoral candidate for Pasig City.18 Without waiting for Eusebio’s opposition, the COMELEC En Banc partially denied the motion on the same day. The dispositive portion of the Order declared:

WHEREFORE, in view of the foregoing, the Commission En Banc DENIES the motion for suspension of the counting of votes and the canvassing of votes. However, in order not to render moot and academic the issues for final disposition by the En Banc and considering that on the basis of the Resolution of the FIRST DIVISION, the evidence of respondent’s guilt is strong, the Commission En Banc hereby ORDERS to SUSPEND, UNTIL FURTHER ORDERS OF THE COMMISSION, the proclamation of respondent in the event he receives the winning number of votes.19 (Emphasis in the original)

On 12 May 2004, Eusebio filed his opposition to petitioners’ motion.

On 21 May 2004, the COMELEC En Banc issued the second questioned issuance. The order quoted from the motion for advisory opinion of the Pasig City Board of Canvassers which reported that 98% of the total returns of Pasig City had been canvassed and that there were only 32 uncanvassed returns involving 6,225 registered voters. Eusebio had 119,693 votes while Lanot had 108,941 votes. Thus, the remaining returns would not affect Eusebio’s lead over Lanot. The COMELEC En Banc stated its "established policy" to "expedite the canvass of votes and proclamation of winning candidates to ease the post election tension and without prejudice to [its] action in [the] x x x case"20 and resolved to declare Eusebio as Pasig City Mayor. The dispositive portion of the 21 May 2004 Order read:

WHEREFORE, this Commission RESOLVED, as it hereby RESOLVES, to LIFT AND SET ASIDE the order suspending the proclamation of the respondent.

FURTHER, the City Board of Canvassers is DIRECTED to complete [the] canvass and immediately proceed with the proclamation of the winning candidate for Mayor of Pasig City without prejudice to the final outcome of the case entitled, "Henry P. Lanot, et al., vs. Vicente Eusebio[, "] docketed as SPA No. 04-288.21 (Emphasis in the original)

Eusebio was proclaimed as Pasig City Mayor on 23 May 2004 based on the 21 May 2004 Order.1âwphi1 On 25 June and 6 July 2004, the COMELEC En Banc conducted hearings on Eusebio’s motion for reconsideration of the 5 May 2004 COMELEC First Division resolution. On 6 August 2004, Lanot

filed a motion to annul Eusebio’s proclamation and to order his proclamation instead.22

On 20 August 2004, the COMELEC En Banc promulgated the third questioned issuance. The COMELEC En Banc invoked Section 1 of COMELEC Resolution No. 2050 ("Resolution 2050") and this Court’s rulings in Albaña v. COMELEC,23 Lonzanida v. COMELEC,24 and Sunga v. COMELEC25 in justifying the annulment of the order to disqualify Eusebio and the referral of the case to the Law Department for preliminary investigation. The dispositive portion stated:

WHEREFORE, PREMISES CONSIDERED, the resolution promulgated by the First Division dated 8 May 2004 on the above-captioned case, affirming the recommendation of the Regional Director (NCR) to disqualify herein respondent, is hereby SET ASIDE, and the corresponding ORDER issued thereunder, ANNULLED. Accordingly, this case is referred to the Law Department for investigation to finally determine [whether] the acts complained of were in fact committed by respondent Eusebio.26 (Emphasis in the original)

Hence, this petition.

The Issues

Lanot alleged that as the COMELEC’s issuances are not supported by substantial evidence and are contrary to law and settled jurisprudence, the COMELEC committed grave abuse of discretion amounting to lack of or excess of jurisdiction. Lanot raised the following issues before this Court:

A. WHETHER PUBLIC RESPONDENT COMELEC, IN ISSUING [ITS] RESOLUTION DATED AUGUST 20, 2004, ACTED WITH GRAVE ABUSE OF DISCRETION OR LACK OR IN EXCESS OF JURISDICTION

1. by setting aside the Resolution of Disqualification promulgated by its First Division on May 5, 2004 affirming the recommendation of the Regional Election Director (NCR) to disqualify Respondent, and by annulling the order issued thereunder,

a) erroneously, whimsically and maliciously ADOPTED and APPLIED Sections 1 and 2 of Rule 2050 to this case,

b) capriciously VIOLATED COMELEC Resolution 6452 and Sec. 6, R.A. 6646,

c) erroneously, whimsically and capriciously ARROGATED unto themselves a quasi-judicial legislation, and

d) erroneously and maliciously MISAPPLIED the Albaña and Sunga cases to the case at bar;

2. by referring the case to the Law Department for investigation, it illegally, erroneously and maliciously DISMISSED the electoral aspect of the case and whimsically VIOLATED Resolution 6452 and Section 6 of RA 6646;

3. by disregarding the Order of disqualification, it erroneously and whimsically IGNORED and DISREGARDED the inchoate right of petitioner as the winning party.

B. WHETHER PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OF DISCRETION OR IN EXCESS OR LACK OF JURISDICTION IN ISSUING ITS RESOLUTION DATED MAY 21, 2004

1. by lifting and setting aside the Order of suspension of proclamation by winning candidate issued on May 11, 2004, it erroneously and intentionally and whimsically DISREGARDED the strong evidence of guilt of Respondent to warrant the suspension of his proclamation and erroneously and capriciously VIOLATED Resolution of May 11, 2004.

C. WHETHER CHAIRMAN BENJAMIN ABALOS OF THE COMELEC ACTED WITH GRAVE ABUSE OF POWER, AUTHORITY OR DISCRETION OR LACK OR IN EXCESS OF JURISDICTION

1. by unilaterally enjoining the implementation of the Order of Respondent’s disqualification despite the condition therein that it could only be restrained by the Commission En Banc, and whether or not he illegally, erroneously and blatantly whimsically grabbed the exclusive adjudicatory power of the Commission En Banc.

D. WHETHER RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN CAPRICIOUSLY DISREGARDING THE RESOLUTION OF MAY 5, 2004 AS ALREADY FINAL AND EXECUTED AND IN FAILING TO ORDER THE PROCLAMATION OF PETITIONER.

E. a) WHETHER THERE ARE PREPONDERANT EVIDENCE TO WARRANT RESPONDENT EUSEBIO’S DISQUALIFICATION.

b) WHETHER RESPONDENT EUSEBIO SHOULD BE DEEMED DISQUALIFIED WITH FOUR (4) AFFIRMATIVE VOTES OF COMMISSIONERS, TWO (2) VOTES FROM COMMISSIONERS BORRA AND GARCILLANO WHO VOTED FOR THE DISQUALIFICATION IN THE MAY 5, 2004

RESOLUTION (ANNEX "B") AND TWO (2) VOTES FROM COMMISSIONERS TUAZON, JR. AND SADAIN WHO VOTED TO DISQUALIFY HIM IN THEIR DISSENTING OPINION (ANNEX "A-1") SHOULD REFERRAL OF THE CASE TO THE LAW DEPARTMENT BY RESPONDENT COMELEC BE DECLARED A PATENT NULLITY.

F. IN CASE OF DISQUALIFICATION OF RESPONDENT EUSEBIO, WHETHER PETITIONER LANOT CAN BE PROCLAIMED AND ALLOWED TO SIT AS MAYOR-ELECT, AND WHETHER THE DOCTRINES IN TOPACIO, CODILLA, JR., LABO AND OTHERS APPLY IN THIS CASE.27

The Ruling of the Court

The petition has no merit.

Parties to the Present Petition

On 13 April 2005, during the pendency of this case, an unidentified person shot and killed Lanot in Pasig City. It seemed that, like an endangered specie, the disqualification case would be extinguished by Lanot’s death. However, on 27 April 2005, Lanot’s counsel manifested, over Eusebio’s objections, that Mario S. Raymundo ("Raymundo"), a registered voter and former Mayor of Pasig City, is Lanot’s substitute in this case. Also, on 25 August 2005, Charmie Q. Benavides ("Benavides"), a Pasig City mayoral candidate and the third placer in the 10 May 2004 elections, filed a petition-in-intervention. Benavides asked whether she could be proclaimed Pasig City Mayor because she is the surviving qualified candidate with the highest number of votes among the remaining candidates.

The law and the COMELEC rules have clear pronouncements that the electoral aspect of a disqualification case is not rendered inutile by the death of petitioner, provided that there is a proper substitution or intervention of parties while there is a pending case. On Raymundo’s substitution, any citizen of voting age is competent to continue the action in Lanot’s stead.28 On Benavides’ intervention, Section 6 of Republic Act No. 6646, or the Electoral Reforms Law of 1987 ("Electoral Reforms Law of 1987"), allows intervention in proceedings for disqualification even after elections if no final judgment has been rendered. Although Eusebio was already proclaimed as Pasig City Mayor, Benavides could still intervene, as there was still no final judgment in the proceedings for disqualification.29

The case for disqualification exists, and survives, the election and proclamation of the winning candidate because an outright dismissal will unduly reward the challenged candidate and may even encourage him to employ delaying tactics to impede the resolution of the disqualification case until after he has been proclaimed.30 The exception to the rule of retention of jurisdiction after proclamation applies when the challenged candidate becomes a member of the House of Representatives or of the Senate, where the appropriate electoral tribunal would have jurisdiction. There is no law or jurisprudence which says that intervention or substitution may only be done prior to the proclamation of the winning candidate. A substitution is not barred by prescription because the action was filed on time by the person who died and who is being substituted. The same rationale applies to a petition-in-intervention.

COMELEC’s Grave Abuse of Discretion

Propriety of Including Eusebio’s Name in the Pasig City Mayoral Candidates and of the Counting of Votes and Canvassing of Election Returns

In its 5 May 2004 resolution, the COMELEC First Division ordered the pertinent election officials to delete and cancel Eusebio’s name from the certified list of Pasig City mayoral candidates, not to count votes cast in Eusebio’s favor, and not to include votes cast in Eusebio’s favor in the canvass of election returns. Eusebio filed a motion for reconsideration of the resolution on 9 May 2004. Hence, COMELEC Chairman

Abalos issued a memorandum on 10 May 2004 which enjoined the pertinent election officials from implementing the 5 May 2004 resolution. In a Resolution dated 11 May 2004, the COMELEC En Banc subsequently ratified and adopted Chairman Abalos’ 10 May 2004 memorandum when it denied Lanot’s motion to suspend the counting of votes and canvassing of election returns.

Lanot claims that Chairman Abalos whimsically grabbed the adjudicatory power of the COMELEC En Banc when he issued the 10 May 2004 memorandum. Lanot asserts that the last sentence in the dispositive portion of the COMELEC First Division’s 5 May 2004 Resolution, "[t]his Resolution is immediately executory unless restrained by the Commission En Banc," should have prevented Chairman Abalos from acting on his own.

Lanot’s claim has no basis, especially in light of the 11 May 2004 Resolution of the COMELEC En Banc. The COMELEC En Banc’s explanation is apt:

Suspension of these proceedings is tantamount to an implementation of the Resolution of the FIRST DIVISION which had not yet become final and executory by reason of the timely filing of a Motion for Reconsideration thereof. A disposition that has not yet attained finality cannot be implemented even through indirect means.31

Moreover, Chairman Abalos’ 10 May 2004 memorandum is merely an advisory required by the circumstances at the time. Eusebio filed a motion for reconsideration on 9 May 2004, and there was not enough time to resolve the motion for reconsideration before the elections. Therefore, Eusebio was not yet disqualified by final judgment at the time of the elections. Section 6 of the Electoral Reforms Law of 1987 provides that "[a] candidate who has been declared by final judgment to be disqualified shall not be voted for, and

the votes cast for him shall not be counted." Under Section 13 of the COMELEC Rules of Procedure, a decision or resolution of a Division in a special action becomes final and executory after the lapse of fifteen days following its promulgation while a decision or resolution of the COMELEC En Banc becomes final and executory after five days from its promulgation unless restrained by this Court.

Propriety of the Lifting of the Suspension of Eusebio’s Proclamation

In the same 11 May 2004 Resolution, the COMELEC En Banc ordered the suspension of Eusebio’s proclamation in the event he would receive the winning number of votes. Ten days later, the COMELEC En Banc set aside the 11 May 2004 order and directed the Pasig City Board of Canvassers to proclaim Eusebio as the winning candidate for Pasig City Mayor. The COMELEC relied on Resolutions 7128 and 712932 to justify the counting of Eusebio’s votes and quoted from the Resolutions as follows:

Resolution No. 7128 -

x x x x

NOW THEREFORE, the Commission RESOLVED, as it hereby RESOLVES, to adopt certain policies and to direct all Board of Canvassers, as follows:

1. to speed up its canvass and proclamation of all winning candidates except under the following circumstances:

a. issuance of an order or resolution suspending the proclamation;

b. valid appeal[s] from the rulings of the board in cases where appeal is allowed and the subject appeal will affect the results of the elections;

x x x x.

Resolution No. 7129

x x x x

NOW THEREFORE, the Commission on Elections, by virtue of the powers vested in it by the Constitution, the Omnibus Election Code and other elections laws, has RESOLVED, as it hereby RESOLVES, to refrain from granting motions and petitions seeking to postpone proclamations by the Board of Canvassers and other pleadings with similar purpose unless they are grounded on compelling reasons, supported by convincing evidence and/or violative of the canvassing procedure outlined in Resolution No. 6669.

We agree with Eusebio that the COMELEC En Banc did not commit grave abuse of discretion in issuing its 21 May 2004 order. The COMELEC has the discretion to suspend the proclamation of the winning candidate during the pendency of a disqualification case when evidence of his guilt is strong.33 However, an order suspending the proclamation of a winning candidate against whom a disqualification case is filed is merely provisional in nature and can be lifted when warranted by the evidence.34

Propriety of the Dismissal of theDisqualification Case and of theReferral to the COMELECLaw Department

Lanot filed the petition for disqualification on 19 March 2004, a little less than two months before the 10 May 2004 elections. Director Ladra conducted hearings on the petition for disqualification on 2, 5 and 7 April 2004. Director Ladra submitted her findings and recommendations to the COMELEC on 4 May 2004. The COMELEC First Division issued a resolution adopting Director Ladra’s recommendations on 5 May 2004. Chairman Abalos informed the pertinent election officers of the COMELEC First Division’s resolution through an Advisory dated 8 May 2004. Eusebio filed a Motion for Reconsideration on 9 May 2004. Chairman Abalos issued a memorandum to Director Ladra on election day, 10 May 2004, and enjoined her from implementing the 5 May 2004 COMELEC First Division resolution. The petition for disqualification was not yet finally resolved at the time of the elections. Eusebio’s votes were counted and canvassed, after which Eusebio was proclaimed as the winning candidate for

Pasig City Mayor. On 20 August 2004, the COMELEC En Banc set aside the COMELEC First Division’s order and referred the case to the COMELEC Law Department.

In its 20 August 2004 resolution, the COMELEC En Banc relied heavily on the timing of the filing of the petition. The COMELEC En Banc invoked Section 1 of Resolution No. 2050, which states:

1. Any complaint for the disqualification of a duly registered candidate based upon any of the grounds specifically enumerated under Section 68 of the Omnibus Election Code, filed directly with the Commission before an election in which the respondent is a candidate, shall be inquired into by the Commission for the purpose of determining whether the acts complained of have in fact been committed. Where the inquiry by the Commission results in a finding before election, that the respondent candidate did in fact commit the acts complained, the Commission shall order the disqualification of the respondent candidate from continuing as such candidate.

In case such complaint was not resolved before the election, the Commission may motu proprio, or on motion of any of the parties, refer the complaint to the Law Department of the Commission as the instrument of the latter in the exercise of its exclusive power to conduct a preliminary investigation of all cases involving criminal infractions of the election laws. Such recourse may be availed of irrespective of whether the respondent has been elected or has lost in the election. (Emphasis added)

The COMELEC also quoted from Sunga v. COMELEC to justify its referral of the disqualification case to its Law Department.

x x x We discern nothing in COMELEC Resolution No. 2050 declaring, ordering or directing the dismissal of a disqualification case filed before the election but which remained unresolved after the election. What the Resolution mandates in such a case is for the Commission to refer the complaint to its Law Department for investigation to determine whether the acts complained of have in fact been committed by the candidate sought to be disqualified. The findings of the Law Department then become the basis for disqualifying the erring candidate. This is totally different from the other two situations contemplated by Resolution No. 2050, i.e., a disqualification case filed after the election but before the proclamation of winners and that filed after the election and the proclamation of winners, wherein it was specifically directed by the same Resolution to be dismissed as a disqualification case.35

For his part, Eusebio asserts that the COMELEC has the prerogative to refer the disqualification case to its Law Department. Thus, no grave abuse of discretion can be imputed to the COMELEC. Moreover, the pendency of a case before the Law Department for purposes of preliminary investigation should be considered as continuation of the COMELEC’s deliberations.

However, contrary to the COMELEC En Banc’s reliance on Resolution No. 2050 in its 20 August 2004 resolution, the

prevailing law on the matter is Section 6 of the Electoral Reforms Law of 1987. Any rule or action by the COMELEC should be in accordance with the prevailing law. Section 6 of the Electoral Reforms Law of 1987 provides:

Section 6. Effect of Disqualification Case. — Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. (Emphasis added)

Moreover, this Court’s ruling in Sunga was further explained in Bagatsing v. COMELEC,36 thus:

The COMELEC in Sunga obviously misapplied Resolution No. 2050 in dismissing the disqualification case therein simply because it remained unresolved before the election and, in lieu thereof, referring it to its Law Department for possible criminal prosecution of the respondent for violation of the election laws. Notably, there is nothing in paragraph 1 of Resolution No. 2050 which directs the dismissal of the disqualification case not resolved before the election. It says the COMELEC "may motu prop[r]io or on motion of any of the parties, refer the complaint to the Law Department of the Commission as an instrument of the latter in the exercise of its exclusive power to conduct a preliminary investigation of all cases involving criminal infractions of the election laws." The referral to the Law Department is discretionary on the part of the COMELEC and in no way may it be interpreted that the COMELEC will dismiss the disqualification case or will no longer continue with the hearing of the same. The reason for this is that a disqualification case may have two (2) aspects, the administrative, which requires only a preponderance of evidence to prove disqualification, and the criminal, which necessitates proof beyond reasonable doubt to convict. Where in the opinion of the COMELEC, the acts which are grounds for disqualification also constitute a criminal offense or offenses, referral of the case to the Law Department is proper.

x x x x

It bears stressing that the Court in Sunga recognized the difference between a disqualification case filed before and after an election when, as earlier mentioned, it stated that the referral of the complaint for disqualification where the case is filed before election "is totally different from the other two situations contemplated by Resolution No. 2050, i.e., a disqualification case filed after the election but before the proclamation of winners and that filed after the election and the proclamation of winners, wherein it was specifically directed by the same Resolution to be dismissed as a disqualification case."

Indeed, the 20 August 2004 resolution of the COMELEC En Banc betrayed its misunderstanding of the two aspects of a disqualification case. The electoral aspect of a disqualification case determines whether the offender should be disqualified from being a candidate or from holding office. Proceedings are summary in character and require only clear preponderance of evidence. An erring candidate may be disqualified even without prior determination of probable cause in a preliminary investigation. The electoral aspect may proceed independently of the criminal aspect, and vice-versa.

The criminal aspect of a disqualification case determines whether there is probable cause to charge a candidate for an election offense. The prosecutor is the COMELEC, through its Law Department, which determines whether probable cause exists.37 If there is probable cause, the COMELEC, through its Law Department, files the criminal information before the proper court. Proceedings before the proper court demand a full-blown hearing and require proof beyond reasonable doubt to convict.38 A criminal conviction shall result in the disqualification of the offender, which may even include disqualification from holding a future public office.39

The two aspects account for the variance of the rules on disposition and resolution of disqualification cases filed before or after an election. When the disqualification case is filed before the elections, the question of disqualification is raised before the voting public. If the candidate is disqualified after the election, those who voted for him assume the risk that their votes may be declared stray or invalid. There is no such risk if the petition is filed after the elections.40 The COMELEC En Banc erred when it ignored the electoral aspect of the disqualification case by setting aside the COMELEC First Division’s resolution and referring the entire case to the COMELEC Law Department for the criminal aspect.

Moreover, the COMELEC En Banc’s act and Eusebio’s assertions lose sight of the provisions of Resolution No. 6452 ("Resolution 6452"), "Rules Delegating to COMELEC Field Officials the Hearing and Reception of Evidence of Disqualification Cases Filed in Connection with the May 10, 2004 National and Local Elections; Motu ProprioActions and Disposition of Disqualification Cases," promulgated on 10 December 2003. The pertinent portions of Resolution 6452 provide:

Section 1. Delegation of reception of evidence. — The Commission hereby designates its field officials who are members of the Philippine Bar to hear and receive evidence in the following petitions:

x x x

c. Petition to disqualify a candidate pursuant to Sec. 68 of the Omnibus Election Code and disqualify a candidate for lack of qualifications or possessing same grounds for disqualification;

x x x

Sec. 2. Suspension of the Comelec Rules of Procedure. — In the interest of justice and in order to attain speedy disposition

of cases, the Comelec Rules of Procedure or any portion thereof inconsistent herewith is hereby suspended.

Sec. 3. Where to file petitions. — The petitions shall be filed with the following offices of the Commission:

x x x

b. For x x x local positions including highly-urbanized cities, in the National Capital Region, with the Regional Election Director of said region;

x x x

PROVIDED, in cases of highly-urbanized cities the filing of petitions for disqualification shall be with the Office of the Regional Election Directors. x x x

x x x x

The Regional Election Directors concerned shall hear and receive evidence strictly in accordance with the procedure and timeliness herein provided.

Sec. 5. Procedure in filing petitions. — For purposes of the preceding section, the following procedure shall be observed:

x x x x

C. PETITION TO DISQUALIFY A CANDIDATE PURSUANT TO SEC. 68 OF THE OMNIBUS ELECTION CODE AND PETITION TO DISQUALIFY FOR LACK OF QUALIFICATIONS OR POSSESSING SAME GROUNDS FOR DISQUALIFICATION

1. The verified petition to disqualify a candidate pursuant to Sec. 68 of the Omnibus Election Code x x x may be filed any day after the last day [of] filing of certificates of candidacy but not later than the date of proclamation.

2. The petition to disqualify a candidate pursuant to Sec. 68 of the Omnibus Election Code shall be filed in ten (10) legible copies with the concerned office mentioned in Sec. 3 personally or through a duly authorized representative by any citizen of voting age, or duly registered political party, organization or coalition of political parties against any candidate who, in an action or protest in which he is a party, is declared by final decision of a competent court guilty of, or found by the Commission of:

2.a having given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; or

x x x

2.d having solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104 of the Omnibus Elections Code; or

2.e having violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v and cc sub-paragraph 6 of the Omnibus

Election Code, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office.

x x x x

Indeed, what the COMELEC did in its 20 August 2004 resolution was contrary to "the interest of justice and x x x speedy disposition of cases." Resolution No. 2050 referring the electoral aspect to the Law Department is procedurally inconsistent with Resolution 6452 delegating reception of evidence of the electoral aspect to the Regional Election Director. The investigation by the Law Department under Resolution No. 2050 produces the same result as the investigation under Resolution 6452 by the Regional Election Director. Commissioner Tuason’s dissent underscored the inconsistency between the avowed purpose of Resolution 6452 and the COMELEC En Banc’s 20 August 2004 resolution:

x x x [T]he preliminary investigation for purposes of finding sufficient ground for [Eusebio’s] disqualification, has already been accomplished by the RED-NCR prior to the election. There also appears no doubt in my mind, that such recommendation of the investigating officer, RED-NCR, was substantive and legally sound. The First Division agreed with the result of the investigation/recommendation, with the facts of the case clearly distilled in the assailed resolution. This, I likewise found to be in accord with our very own rules and the jurisprudential doctrines aforestated. There could be no rhyme and reason then to dismiss the electoral aspect of the case (i.e., disqualification) and refer the same to the Law Department for preliminary investigation. As held in Sunga, clearly, the legislative intent is that the COMELEC should continue the trial and hearing of the disqualification case to its conclusion, i.e., until judgment is rendered thereon. The criminal aspect of the case is an altogether different issue.

Sunga said the reason is obvious: A candidate guilty of election offenses would be undeservedly rewarded, instead of punished, by the dismissal of the disqualification case against him simply because the investigating body was unable, for any reason caused upon it, to determine before the election if the offenses were indeed committed by the candidate sought to be disqualified. All that the erring aspirant would need to do is to employ delaying tactics so that the disqualification case based on the commission of election offenses would not be decided before the election. This scenario is productive of more fraud which certainly is not the main intent and purpose of the law.41

We agree with Lanot that the COMELEC committed grave abuse of discretion when it ordered the dismissal of the disqualification case pending preliminary investigation of the COMELEC Law Department. A review of the COMELEC First Division’s 5 May 2004 resolution on Eusebio’s disqualification is in order, in view of the grave abuse of discretion committed by the COMELEC En Banc in its 20 August 2004 resolution.

Rightful Pasig City Mayor

Eusebio’s Questioned Acts

We quote the findings and recommendations of Director Ladra as adopted by the COMELEC First Division:

The questioned acts of [Eusebio] are as follows:

1) The speech uttered on February 14, 2004 during the meeting dubbed as "Lingap sa Barangay" in Barangay San Miguel, Pasig City wherein [Eusebio] allegedly asked the people to vote for him and solicited for their support x x x:

x x x x

2) Another speech given on March 17, 2004 in ROTC St., Rosario, Pasig City wherein [Eusebio] again allegedly uttered defamatory statements against co-[candidate] Lanot and campaigned for his (respondent’s) and his group’s candidacy.

x x x x

3) He caused to be published in leading newspapers about a survey allegedly done by Survey Specialist, Inc. showing him to be leading in the mayoralty race in Pasig City.

x x x x

4) He paid a political advertisement in the Philippine Free Press in the amount of P193,660.00 as published in its issue dated February 7, 2004.

x x x x

5) The display of billboards containing the words "Serbisyo Eusebio" and "ST" which means "Serbisyong Totoo" before the start of the campaign period.

x x x x

6) Posters showing the respondent and his running mate Yoyong Martirez as well those showing the name "KA ENTENG EUSEBIO" and "BOBBY EUSEBIO" in connection with the dengue project were posted everywhere even before the start of the campaign period.

x x x x

7) Streamers bearing the words "Pasig City is for PEACE" were likewise displayed with the two letters "E" prominently written.

x x x x

8) Stickers of [Eusebio] were likewise pasted all over the city before the start of the campaign period.

x x x x

9) [Eusebio] engaged in vote-buying by distributing shoes to the students while telling the parents that by way of gratitude, they should vote for him.

x x x x (Emphasis in the original)42

Eusebio argues that: (1) Lanot is in estoppel for participating in the proceedings before the COMELEC Law Department; (2) Lanot abandoned the present petition also because of his participation in the proceedings before the COMELEC Law Department; and (3) Lanot is guilty of forum-shopping. These arguments fail for lack of understanding of the two aspects of disqualification cases. The proceedings before the COMELEC Law Department concern the criminal aspect, while the proceedings before this Court concern the electoral aspect, of disqualification cases. The proceedings in one may proceed independently of the other.

Eusebio is correct when he asserts that this Court is not a trier of facts. What he overlooks, however, is that this Court may review the factual findings of the COMELEC when there is grave abuse of discretion and a showing of arbitrariness in the COMELEC’s decision, order or resolution.43 We find that the COMELEC committed grave abuse of discretion in issuing its 20 August 2004 resolution.

Our review of the factual findings of the COMELEC, as well as the law applicable to this case, shows that there is no basis to disqualify Eusebio. Director Ladra recommended the disqualification of Eusebio "for violation of Section 80 of the Omnibus Election Code." The COMELEC First Division approved Director Ladra’s recommendation and disqualified Eusebio. Section 80 of the Omnibus Election Code provides:

SECTION 80. Election campaign or partisan political activity outside campaign period. — It shall be unlawful for any person, whether or not a voter or candidate, or for any party, or association of persons, to engage in an election campaign or partisan political activity except during the campaign period: Provided, That political parties may hold political conventions or meetings to nominate their official candidates within thirty days before the commencement of the campaign period and forty-five days for Presidential and Vice-Presidential election. (Emphasis supplied)

What Section 80 of the Omnibus Election Code prohibits is "an election campaign or partisan political activity" by a "candidate" "outside" of the campaign period. Section 79 of the same Code defines "candidate," "election campaign" and "partisan political activity" as follows:

SECTION 79. Definitions. — As used in this Code:

(a) The term "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;

(b) The term "election campaign" or "partisan political activity" refers to an act designed to promote the election or defeat of a particular candidate or candidates to a public office which shall include:

(1) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate;

(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate;

(3) Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate for public office;

(4) Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate; or

(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.

The foregoing enumerated acts if performed for the purpose of enhancing the chances of aspirants for nomination for candidacy to a public office by a political party, aggroupment, or coalition of parties shall not be considered as election campaign or partisan election activity.

Public expressions or opinions or discussions of probable issues in a forthcoming election or on attributes of or criticisms against probable candidates proposed to be nominated in a forthcoming political party convention shall not be construed as part of any election campaign or partisan political activity contemplated under this Article.

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.

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.

Thus, if all candidates file their certificates of candidacy on the last day, Section 80 may only apply to acts done on such last day, which is before the start of the campaign period and after at least one candidate has filed his certificate of candidacy. This is perhaps the reason why those running for elective public office usually file their certificates of candidacy on the last day or close to the last day.

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.

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?

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.44 (Emphasis added)

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. This is clear from the following deliberations of the Bicameral Conference Committee:

SENATOR GONZALES. Okay. Then, how about the campaign period, would it be the same[,] uniform for local and national officials?

THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree to retaining it at the present periods.

SENATOR GONZALES. But the moment one files a certificate of candidacy, he’s already a candidate, and there are many prohibited acts on the part of candidate.

THE CHAIRMAN (REP. TANJUATCO). Unless we. . . .

SENATOR GONZALES. And you cannot say that the campaign period has not yet began [sic].

THE CHAIRMAN (REP. TANJUATCO). If we don’t provide that the filing of the certificate will not bring about one’s being a candidate.

SENATOR GONZALES. If that’s a fact, the law cannot change a fact.

THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide that the filing of the certificate of candidacy will not result in that official vacating his position, we can also provide that insofar he is concerned, election period or his being a candidate will not yet commence. Because here, the reason why we are doing an early filing is to afford enough time to prepare this machine readable ballots.

So, with the manifestations from the Commission on Elections, Mr. Chairman, the House Panel will withdraw its proposal and will agree to the 120-day period provided in the Senate version.

THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr. Chairman.

x x x x

SENATOR GONZALES. How about prohibition against campaigning or doing partisan acts which apply immediately upon being a candidate?

THE CHAIRMAN (REP. TANJUATCO). Again, since the intention of this provision is just to afford the Comelec enough time to print the ballots, this provision does not intend to change the campaign

periods as presently, or rather election periods as presently fixed by existing law.

THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be subject to the other prohibition.

THE CHAIRMAN (REP. TANJUATCO). That’s right.

THE ACTING CHAIRMAN (SEN. FERNAN). Okay.

THE CHAIRMAN (REP. TANJUATCO). In other words, actually, there would be no conflict anymore because we are talking about the 120-day period before election as the last day of filing a certificate of candidacy, election period starts 120 days also. So that is election period already. But he will still not be considered as a candidate.45(Emphasis added)

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."

Under Section 3(b) of the Omnibus Election Code, the applicable law prior to RA 8436, the campaign period for local officials commences 45 days before election day. For the 2004 local elections, this puts the start of the campaign period on 24 March 2004. This also puts the last day for the filing of certificate of candidacy, under the law prior to RA 8436, on 23 March 2004. Eusebio is deemed to have filed his certificate of candidacy on

this date for purposes other than the printing of ballots because this is the interpretation of Section 80 of the Omnibus Election Code most favorable to one charged of its violation. Since Section 80 defines a criminal offense,46 its provisions must be construed liberally in favor of one charged of its violation. Thus, Eusebio became a "candidate" only on 23 March 2004 for purposes other than the printing of ballots.

Acts committed by Eusebio prior to his being a "candidate" on 23 March 2004, even if constituting election campaigning or partisan political activities, are not punishable under Section 80 of the Omnibus Election Code. Such acts are protected as part of freedom of expression of a citizen before he becomes a

candidate for elective public office. Acts committed by Eusebio on or after 24 March 2004, or during the campaign period, are not covered by Section 80 which punishes only acts outside the campaign period.

We now examine the specific questioned acts of Eusebio whether they violate Section 80 of the Omnibus Election Code.

We begin with the 14 February 2004 and the 17 March 2004 speeches of Eusebio:

1) The speech uttered on February 14, 2004 during the meeting dubbed as "Lingap sa Barangay" in Barangay San Miguel, Pasig City wherein [Eusebio] allegedly asked the people to vote for him and solicited for their support x x x:

2) Another speech given on March 17, 2004 in ROTC St., Rosario, Pasig City wherein [Eusebio] again allegedly uttered defamatory statements against co-[candidate] Lanot and campaigned for his (respondent’s) and his group’s candidacy.47 (Emphasis in the original)

The 14 February 2004 and 17 March 2004 speeches happened before the date Eusebio is deemed to have filed his certificate of candidacy on 23 March 2004 for purposes other than the printing of ballots. Eusebio, not being a candidate then, is not liable for speeches on 14 February 2004 and 17 March 2004 asking the people to vote for him.

The survey showing Eusebio leading in the mayoralty race was published before Eusebio was deemed to have filed his certificate of candidacy on 23 March 2004. Thus:

3) He caused to be published in leading newspapers about a survey allegedly done by Survey Specialist, Inc. showing him to be leading in the mayoralty race in Pasig City.

x x x x

They also presented Certification issued by Mr. Diego Cagahastian, News Editor of Manila Bulletin dated 10 March 2004 and Mr. Isaac G. Belmonte, Editor-in-Chief of Philippine Star dated March 2, 2004 to the effect that the articles in question came from the camp of [Eusebio].48 (Emphasis in the original)

Eusebio is not liable for this publication which was made before he became a candidate on 23 March 2004.

The political advertisement in the Philippine Free Press issue of 7 February 2004 was also made before Eusebio became a candidate on 23 March 2004. Thus:

4) He paid a political advertisement in the Philippine Free Press in the amount of P193,660.00 as published in its issue dated February 7, 2004.49 (Emphasis in the original)

The display of Eusebio’s billboards, posters, stickers, and streamers, as well as his distribution of free shoes, all happened also before Eusebio became a candidate on 23 March 2004. Thus:

5) The display of billboards containing the words "Serbisyo Eusebio" and "ST" which means "Serbisyong Totoo" before the start of the campaign period.

x x x x

6) Posters showing the respondent and his running mate Yoyong Martinez as well those showing the name "KA ENTENG EUSEBIO" and "BOBBY EUSEBIO" in connection with the dengue project were posted everywhere even before the start of the campaign period.

x x x x

Petitioners’ witnesses Alfonso Cordova and Alfredo Lacsamana as well as Hermogenes Garcia stated in their respective affidavits marked as Exhs. "L" and "L-1" that the pictures were taken on March 3, 7 & 8, 2004.

x x x x

7) Streamers bearing the words "Pasig City is for PEACE" were likewise displayed with the two letters "E" prominently written.

x x x x

Said streamers were among those captured by the camera of the petitioners’ witnesses Hermogenes Garcia and Nelia Sarmiento before the start of the campaign period.

8) Stickers of [Eusebio] were likewise pasted all over the city before the start of the campaign period.

x x x x

9) [Eusebio] engaged in vote-buying by distributing shoes to the students while telling the parents that by way of gratitude, they should vote for him.

The affidavits of Ceferino Tantay marked as Exh. "M" and Flor Montefalcon, Norie Altiche and Myrna Verdillo marked as Exh. "O" are uncontroverted. Their statement that free shoes were given to the students of Rizal High School was corroborated by the Manila Bulletin issue of February 6, 2004 which showed the picture of the respondent delivering his speech before a group of students.

x x x x50 (Emphasis in the original)

Based on the findings of Director Ladra, the questioned acts attributed to Eusebio all occurred before the start of the campaign period on 24 March 2004. Indeed, Director Ladra applied Section 80 of the Omnibus Election Code against Eusebio precisely because Eusebio committed these acts "outside" of the campaign period. However, Director Ladra erroneously assumed that Eusebio became a "candidate," for purposes of Section 80, when Eusebio filed his certificate of candidacy on 29 December 2003.

Under Section 11 of RA 8436, Eusebio became a "candidate," for purposes of Section 80 of the Omnibus Election Code, only on 23 March 2004, the last day for filing certificates of

candidacy. Applying the facts - as found by Director Ladra and affirmed by the COMELEC First Division - to Section 11 of RA 8436, Eusebio clearly did not violate Section 80 of the Omnibus Election Code which requires the existence of a "candidate," one who has filed his certificate of candidacy, during the commission of the questioned acts.

Eusebio asserts that Section 11 of RA 8436 exculpates him from any liability for the questioned acts.1âwphi1 Eusebio points out that Section 11 contains the following proviso:

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

Eusebio theorizes that since the questioned acts admittedly took place before the start of the campaign period, such acts are not "unlawful acts or omissions applicable to a candidate."

We find no necessity to apply in the present case this proviso in Section 11 of RA 8436. Eusebio’s theory legalizes election campaigning or partisan political activities before the campaign period even if a person has already filed his certificate of candidacy based on the election periods under existing laws prior to RA 8436. Under Eusebio’s theory, Section 11 of RA 8436 punishes unlawful acts applicable to a candidate only if committed during the campaign period.

By definition, the election offense in Section 80 of the Omnibus Election Code cannot be committed during the campaign period. On the other hand, under Eusebio’s theory, unlawful acts applicable to a candidate cannot be committed outside of the campaign period. The net result is to make the election offense in Section 80 physically impossible to commit at any time. We shall leave this issue for some other case in the future since the present case can be resolved without applying the proviso in Section 11 of RA 8436.

Effect of Eusebio’s PossibleDisqualification

As second placer, Lanot prayed that he be proclaimed as the rightful Pasig City Mayor in the event of Eusebio’s disqualification. As third placer, Benavides, on the other hand, prays that she be proclaimed as the rightful Pasig City Mayor in the event of Eusebio’s disqualification and in view of Lanot’s death. Even if we assume Eusebio’s disqualification as fact, we cannot grant either prayer.

The disqualification of the elected candidate does not entitle the candidate who obtained the second highest number of votes to occupy the office vacated because of the disqualification.51 Votes cast in favor of a candidate who obtained the highest number of votes, against whom a petition for disqualification was filed before the election, are presumed to have been cast in the belief that he was qualified. For this reason, the second placer cannot be declared elected.52

The exception to this rule rests on two assumptions. First, the one who obtained the highest number of votes is disqualified. Second, the voters are so fully aware in fact and in law of a candidate’s disqualification to bring such awareness within the

realm of notoriety but nonetheless the voters still cast their votes in favor of the ineligible candidate.53 Lanot and Benavides failed to prove that the exception applies in the present case. Thus, assuming for the sake of argument that Eusebio is disqualified, the rule on succession provides that the duly elected Vice-Mayor of Pasig City shall succeed in Eusebio’s place.54

WHEREFORE, we DISMISS the petition. We find no grave abuse of discretion in the 10 May 2004 Advisory of Chairman Benjamin S. Abalos and in the 21 May 2004 Order of the Commission on Elections En Banc. We SET ASIDE the 20 August 2004 Resolution of the Commission En Banc since respondent Vicente P. Eusebio did not commit any act which would disqualify him as a candidate in the 10 May 2004 elections.

SO ORDERED.

LAWFUL ELECTION PROPAGANDA

Section 3. Lawful Election Propaganda. (RA 9006)

– Election propaganda, whether on television, cable television, radio, newspapers or any other medium is hereby allowed for all registered political parties, national, regional, sectoral parties or organizations participating under the party list elections and for all bona fide candidates seeking national and local elective positions subject to the limitation on authorized expenses of candidates and political parties, observance of truth in advertising and to the supervision and regulation by the Commission on Elections (COMELEC).

For the purpose of this Act, lawful election propaganda shall include:

3.1. Pamphlets, leaflets, cards, decals, stickers or other written or printed materials the size of which does not exceed eight and one half inches in width and fourteen inches in length;

3.2. Handwritten or printed letters urging voters to vote for or against any particular political party or candidate for public office;

3.3. Cloth, paper or cardboard posters, whether framed or posted, with an area not exceeding two (2) feet by three (3) feet, except that, at the site and on the occasion of a public meeting or rally, or in announcing the holding of said meeting or rally, streamers not exceeding three (3) feet by eight (8) feet in size, shall be allowed: Provided, That said streamers may be displayed five (5) days before the date of the meeting or rally and shall be removed within twenty-four (24) hours after said meeting or rally;

3.4. Paid advertisements in print or broadcast media: Provided, That the advertisements shall follow the requirements set forth in Section 4 of this Act; and

3.5. All other forms of election propaganda not prohibited by the Omnibus Election Code or this Act.

SECTION 82. Lawful election propaganda. (BP 881)

— Lawful election propaganda shall include:

(a) Pamphlets, leaflets, cards, decals, stickers or other written or printed materials of a size not more than eight and one-half inches in width and fourteen inches in length;

(b) Handwritten or printed letters urging voters to vote for or against any particular candidate;

(c) Cloth, paper or cardboard posters, whether framed or posted, with an area exceeding two feet by three feet, except that, at the site and on the occasion of a public meeting or rally, or in announcing the holding of said meeting or rally, streamers not exceeding three feet by eight feet in size, shall be allowed: Provided, That said streamers may not be displayed except one week before the date of the meeting or rally and that it shall be removed within seventy-two hours after said meeting or rally; or

(d) All other forms of election propaganda not prohibited by this Code as the Commission may authorize after due notice to all interested parties and hearing where all the interested parties were given an equal opportunity to be heard: Provided, That the Commission's authorization shall be published in two newspapers of general circulation throughout the nation for at least twice within one week after the authorization has been granted. (Sec. 37, 1978 EC)

CASES:

2. ADIONG v. COMELEC

EN BANC

[G.R. No. 103956. March 31, 1992.]

BLO UMPAR ADIONG, petitioner, vs. COMMISSION ON ELECTIONS, respondent.

Romulo R. Macalintal for petitioner.

SYLLABUS

1. POLITICAL LAW; ELECTIONS; PROHIBITION ON POSTING OF DECALS AND STICKERS ON MOBILE PLACES (SECTION 15 (a) AND SECTION 21 (f) OF COMELEC RESOLUTION NO. 2347); NULL AND VOID. — The COMELEC's prohibition on posting of decals and stickers on "mobile" places whether public or private except in designated areas provided for by the COMELEC itself is null and void on constitutional grounds.

2. ID.; ID.; ID.; INFRINGEMENT OF FREEDOM OF SPEECH AND EXPRESSION. — COMELEC Resolution No. 2347 unduly infringes on the citizen's fundamental right of free speech enshrined in the Constitution (Sec. 4, Article III). There is no public interest substantial enough to warrant the kind of restriction involved in this case. There are various concepts surrounding the freedom of speech clause which we have adopted as part and parcel of our own Bill of Rights provision on this basic freedom. All of the protections expressed in the Bill of Rights are important but we have accorded to free

speech the status of a preferred freedom. (Thomas v. Collins, 323 US 516, 89 L. Ed. 430 [1945]; Mutuc v. Commission on Elections, 36 SCRA 228 [1980]). This qualitative significance of freedom of expression arises from the fact that it is the matrix, the indispensable condition of nearly every other freedom. (Palko v. Connecticut, 302 U.S. 319 [1937]; Salonga v. Paño, 134 SCRA 438 [1985]). It is difficult to imagine how the other provisions of the Bill of Rights and the right to free elections may be guaranteed if the freedom to speak and to convince or persuade is denied and taken away. We have also ruled that the preferred freedom of expression calls all the more for the utmost respect when what may be curtailed is the dissemination of information to make more meaningful the equally vital right of suffrage. (Mutuc v. Commission on Elections, supra)

3. ID.; ID.; ID.; SUBSTANTIAL GOVERNMENT INTEREST AND PUBLIC INTEREST, NOT THREATENED; CLEAR AND PRESENT DANGER RULE, NOT PRESENT. — The regulation in the present case is of a different category. The promotion of a substantial Government interest is not clearly shown. "A government regulation is sufficiently justified if it is within the constitutional power of the Government, if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedom is no greater than is essential to the furtherance of that interest. (Id., at 377, 20 L Ed 2d 672, 88 S. Ct 1673." (City council v. Taxpayers For Vincent, 466 US 789, 80 L Ed 2d 772, 104 S. Ct 2118 [1984]) The posting of decals and stickers in mobile places like cars and other moving vehicles does not endanger any substantial government interest. There is no clear public interest threatened by such activity so as to justify the curtailment of the cherished citizen's right of free speech and expression. Under the clear and present danger rule not only must the danger be patently clear and pressingly present but the evil sought to be avoided must be so substantive as to justify a clamp over one's mouth or a writing instrument to be stilled: "The case confronts us again with the duty our system places on the Court to say where the individual's freedom ends and the State's power begins. Choice on that border, now as always delicate, is perhaps more so where the usual presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the first Amendment ... That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions and it is the character of the right, not of the limitation, which determines what standard governs the choice .... For these reasons any attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or remotely but by clear and present danger. The rational connection between the remedy provided and the evil to be curbed, which in other context might support legislation against attack on due process grounds, will not suffice. These rights rest on firmer foundation. Accordingly, whatever occasion would restrain orderly discussion and persuasion, at appropriate time and place, must have clear support in public danger, actual or impending. Only the greatest abuses, endangering permanent interests, give occasion for permissible limitation. (Thomas V. Collins,

323 US 516 [1945]." Significantly, the freedom of expression curtailed by the questioned prohibition is not so much that of the candidate or the political party. The regulation strikes at the freedom of an individual to express his preference and, by displaying it on his car, to convince others to agree with him. A sticker may be furnished by a candidate but once the car owner agrees to have it placed on his private vehicle, the expression becomes a statement by the owner, primarily his own and not of anybody else. If, in the National Press Club case, the Court was careful to rule out restrictions on reporting by newspaper or radio and television stations and commentators or columnists as long as these are not covertly paid-for advertisements or purchased opinions with less reason can we sanction the prohibition against a sincere manifestation of support and a proclamation of belief by an individual person who pastes a sticker or decal on his private property.

4. ID.; ID.; DEBATE ON PUBLIC ISSUES SHOULD BE OPEN. — We have adopted the principle that debate on public issues should be uninhibited, robust, and wide open and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials. (New York Times Co. v. Sullivan 376 U.S. 254, 11 L. Ed. 2d 686 [1964]; cited in the concurring opinion of then Chief Justice Enrique Fernando in Babst v.National Intelligence Board, 132 SCRA 316 [1984]. Too many restrictions will deny to people the robust, uninhibited, and wide open debate, the generating of interest essential if our elections will truly be free, clean, and honest.

5. ID.; ID.; FREEDOM OF SPEECH AND INFORMATION PREVAILS. — When faced with border line situations where freedom to speak by a candidate or party and freedom to know on the part of the electorate are invoked against actions intended for maintaining clean and free elections, the police, local officials and COMELEC should lean in favor of freedom. For in the ultimate analysis, the freedom of the citizen and the State's power to regulate are not antagonistic. There can be no free and honest elections if in the efforts to maintain them, the freedom to speak and the right to know are unduly curtailed.

6. ID.; ID.; REGULATION OF ELECTION ACTIVITY, LIMITED; TEST OF VALIDITY. — The regulation of election activity has its limits. We examine the limits of regulation and not the limits of free speech. The carefully worded opinion of the Court, through Mr. Justice Feliciano, shows that regulation of election campaign activity may not pass the test of validity if it is too general in its terms or not limited in time and scope in its application, if it restricts one's expression of belief in a candidate or one's opinion of his or her qualifications, if it cuts off the flow of media reporting, and if the regulatory measure bears no clear and reasonable nexus with the constitutionally sanctioned objective.

7. ID.; ID.; SECTION 15 (a) AND SECTION 21 (f) COMELEC RESOLUTION NO. 2347 VOID FOR OVERBREADTH. — Second — the questioned prohibition premised on the statute and as couched in the resolution is void for overbreadth. A statute is considered void for overbreadth when "it offends the constitutional principle that a governmental purpose to control

or prevent activities constitutionally subject to state regulations may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." (Zwickler v. Koota, 19 L ed 2d 444 [1967]). "In a series of decisions this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.

8. ID.; ID.; ID.; RESTRICTION PROVIDED THEREIN VIOLATES DUE PROCESS CLAUSE. — The resolution prohibits the posting of decals and stickers not more than eight and one-half (8-½) inches in width and fourteen (14) inches in length in any place, including mobile places whether public or private except in areas designated by the COMELEC. Verily, the restriction as to where the decals and stickers should be posted is so broad that it encompasses even the citizen's private property, which in this case is a privately-owned vehicle. In consequence of this prohibition, another cardinal rule prescribed by the Constitution would be violated. Section 1, Article III of the Bill of Rights provides "that no person shall be deprived of his property without due process of law." Property is more than the mere thing which a person owns, it includes the right to acquire, use, and dispose of it; and the Constitution, in the 14th Amendment, protects these essential attributes. Property is more than the mere thing which a person owns. It is elementary that it includes the right to acquire, use, and dispose of it. The Constitution protects these essential attributes of property. Holde v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780. 790, 18 Sup. CXt. Rep. 383. Property consists of the free use, enjoyment, and disposal of a person's acquisitions without control or diminution save by the law of the land. 1 Cooley's Bl. Com. 127." (Buchanan v. Warley 245 US 60 [1917])

 

9. ID.; ID.; ID.; PROHIBITION DEPRIVES CITIZEN OF RIGHT TO FREE SPEECH AND INFORMATION. — "We have to consider the fact that in the posting of decals and stickers on cars and other moving vehicles, the candidate needs the consent of the owner of the vehicle. In such a case, the prohibition would not only deprive the owner who consents to such posting of the decals and stickers the use of his property but more important, in the process, it would deprive the citizen of his right to free speech and information. Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the preservation of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved. The danger of distribution can so easily be controlled by traditional legal methods leaving to each householder the full right to decide whether he will receive strangers as visitors, that stringent prohibition can serve no purpose but that forbidden by the constitution, the naked restriction of the dissemination of ideas." (Martin v. City of strutters, Ohio, 319 U.S. 141; 87 L. ed. 1313 [1943]) The preference of the citizen becomes crucial in this kind of election propaganda not the financial resources of

the candidate. Whether the candidate is rich and, therefore, can afford to dole-out more decals and stickers or poor and without the means to spread out the same number of decals and stickers is not as important as the right of the owner to freely express his choice and exercise his right of free speech. The owner can even prepare his own decals or stickers for posting on his personal property. To strike down this right and enjoin it is impermissible encroachment of his liberties.

10. ID.; ID.; RA 6646, SECTION 11; RIGHT TO PROPERTY JOINED BY LIBERTY INTEREST; REGULATION, NOT JUSTIFIED. — The right to property may be subject to a greater degree of regulation but when this right is joined by a "liberty" interest, the burden of justification on the part of the Government must be exceptionally convincing and irrefutable. The burden is not met in this case. Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting or display of election propaganda in any place, whether public or private except in the common poster areas sanctioned by COMELEC. This means that a private person cannot post his own crudely prepared personal poster on his own front door or on a post in his yard. While the COMELEC will certainly never require the absurd, there are no limits to what overzealous and partisan police officers, armed with a copy of the statute or regulation, may do. The provisions allowing regulation are so loosely worded that they inclose the posting of decals or stickers in the privacy of one's living room or bedroom. This is delegation running riot. As stated by Justice Cardozo in his concurrence in Panama Refining Co. v. Ryan (293 U.S. 388; 79 L. Ed. 46 [1935], "The delegated power is unconfined and vagrant . . . This is delegation running riot. No such plenitude of power is susceptible of transfer."

11. ID.; ID.; ARTICLE 11 SECTION 26 AND ARTICLE XII SECTION 1 IN RELATION TO ARTICLE IX (c) SECTION 4 OF THE CONSTITUTION; NOT IMPAIRED BY POSTING OF DECALS AND STICKERS ON PRIVATE VEHICLES. — The constitutional objective to give a rich candidate and a poor candidate equal opportunity to inform the electorate as regards their candidacies, mandated by Article II Section 26 and Article XIII Section 1 in relation to Article IX (c) Section 4 of the Constitution, is not impaired by posting decals and stickers on cars and other private vehicles. Compared to the paramount interest of the State in guaranteeing freedom of expression, any financial considerations behind the regulation are of marginal significance. Under Section 26 Article II of the Constitution, "The State shall guarantee equal access to opportunities for public service, . . . while under Section 1, Article XIII thereof "The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power nor the common good."

12. ID.; ID.; SECTION 15 (a) AND SECTION 21 (f) OF COMELEC RESOLUTION NO. 2347; PROHIBITION BECOMES CENSORSHIP, NOT JUSTIFIED BY CONSTITUTION. — In sum, the prohibition on posting of decals and stickers on "mobile" places whether public or private except in the authorized areas designated by the

COMELEC becomes censorship which cannot be justified by the Constitution: ". . . The concept of the Constitution as the fundamental law, setting forth the criterion for the validity of any public act whether proceeding from the highest official or the lowest functionary, is a postulate of our system of government. That is to manifest fealty to the rule of law, with priority accorded to that which occupies the topmost rung in the legal hierarchy. The three departments of government in the discharge of the functions with which it is entrusted have no choice but to yield obedience to its commands. Whatever limits it imposes must be observed. Congress in the enactment of statutes must ever be on guard lest the restrictions on its authority, either substantive or formal, be transcended. The Presidency in the execution of the laws cannot ignore or disregard what it ordains. In its task of applying the law to the facts as found in deciding cases, the judiciary is decreed by the fundamental law. Even its power of judicial review to pass upon the validity of the acts of the coordinate branches in the course of adjudication is a logical corollary of this basic principle that the Constitution is paramount. It overrides any governmental measure that fails to live up to its mandates. Thereby there is a recognition of its being the supreme law." (Mutuc v. Commission on Elections, supra)

13. ID.; ID.; FREEDOM OF SPEECH AND INFORMATION, CALLS FOR MORE LIBERAL INTERPRETATION. — The unusual circumstances of this year's national and local elections call for a more liberal interpretation of the freedom to speak and the right to know. It is not alone the widest possible dissemination of information on platforms and programs which concern us. Nor are we limiting ourselves to protecting the unfettered interchange of ideas to bring about political change. (Cf. New York Times v. Sullivan, supra) The big number of candidates and elective positions involved has resulted in the peculiar situation where almost all voters cannot name half or even two-thirds of the candidates running for Senator. The public does not know whoare aspiring to be elected to public office. There are many candidates whose names alone evoke qualifications, platforms, programs and ideologies which the voter may accept or reject. When a person attaches a sticker with such candidate's name on his car bumper, he is expressing more than the name; he is espousing ideas.

D E C I S I O N

GUTIERREZ, JR., J p:

The specific issue in this petition is whether or not the Commission on Elections (COMELEC) may prohibit the posting of decals and stickers on "mobile" places, public or private, and limit their location or publication to the authorized posting areas that it fixes. LLphil

On January 13, 1992, the COMELEC promulgated Resolution No. 2347 pursuant to its powers granted by the Constitution, the Omnibus Election Code, Republic Acts Nos. 6646 and 7166 and other election laws.

Section 15(a) of the resolution provides:

"SEC. 15. Lawful Election Propaganda. — The following are lawful election propaganda:

(a) Pamphlets, leaflets, cards, decals, stickers, handwritten or printed letters, or other written or printed materials not more than eight and one-half (8-1/2) inches in width and fourteen (14) inches in length Provided, That decals and stickers may be posted only in any of the authorized posting areas provided in paragraph (f) of Section 21 hereof."

Section 21 (f) of the same resolution provides:

"SEC. 21(f) Prohibited forms of election propaganda. —

It is unlawful:

xxx xxx xxx

(f) To draw, paint, inscribe, post, display or publicly exhibit any election propaganda in any place, whether public or private, mobile or stationary, except in the COMELEC common posted areas and/or billboards, at the campaign headquarters of the candidate or political party, organization or coalition, or at the candidate's own residential house or one of his residential houses, if he has more than one: Provided, that such posters or election propaganda shall not exceed two (2) feet by three (3) feet in size." (Emphasis supplied)

xxx xxx xxx

The statutory provisions sought to be enforced by COMELEC are Section 82 of the Omnibus Election Code on lawful election propaganda which provides:

"Lawful election propaganda. — Lawful election propaganda shall include:

(a) Pamphlets, leaflets, cards, decals, stickers or other written or printed materials of a size not more than eight and one-half inches in width and fourteen inches in length;

(b) Handwritten or printed letters urging voters to vote for or against any particular candidate;

(c) Cloth, paper or cardboard posters, whether framed or posted, with an area not exceeding two feet by three feet, except that, at the site and on the occasion of a public meeting or rally, or in announcing the holding of said meeting or rally, streamers not exceeding three feet by eight feet in size, shall be allowed: Provided, That said streamers may not be displayed except one week before the date of the meeting or rally and that it shall be removed within seventy-two hours after said meeting or rally; or

(d) All other forms of election propaganda not prohibited by this Code as the Commission may authorize after due notice to all interested parties and hearing where all the interested parties were given an equal opportunity to be heard: Provided, That the Commission's authorization shall be published in two newspapers of general circulation throughout the nation for at least twice within one week after the authorization has been granted. (Section 37, 1978 EC).

 

and Section 11(a) of Republic Act No. 6646 which provides:

"Prohibited Forms of Election Propaganda. — In addition to the forms of election propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful: (a) to draw, paint, inscribe, write, post, display or publicly exhibit any election propaganda in any place, whether private, or public, except in the common poster areas and/or billboards provided in the immediately preceding section, at the candidate's own residence, or at the campaign headquarters of the candidate or political party: Provided, That such posters or election propaganda shall in no case exceed two (2) feet by three (3) feet in area: Provided Further, That at the site of and on the occasion of a public meeting or rally, streamers, not more than two (2) and not exceeding three (3) feet by eight (8) feet each may be displayed five (5) days before the date of the meeting or rally, and shall be removed within twenty-four (24) hours after said meeting or rally; . . . (Emphasis supplied)

Petitioner Blo Umpar Adiong, a senatorial candidate in the May 11, 1992 elections now assails the COMELEC's Resolution insofar as it prohibits the posting of decals and stickers in "mobile" places like cars and other moving vehicles. According to him such prohibition is violative of Section 82 of theOmnibus Election Code and Section 11(a) of Republic Act No. 6646. In addition, the petitioner believes that with the ban on radio, television and print political advertisements, he, being a neophyte in the field of politics stands to suffer grave and irreparable injury with this prohibition. The posting of decals and stickers on cars and other moving vehicles would be his last medium to inform the electorate that he is a senatorial candidate in the May 11, 1992 elections. Finally, the petitioner states that as of February 22, 1992 (the date of the petition) he has not received any notice from any of the Election Registrars in the entire country as to the location of the supposed "Comelec Poster Areas."

The petition is impressed with merit. The COMELEC's prohibition on posting of decals and stickers on "mobile" places whether public or private except in designated areas provided for by the COMELEC itself is null and void on constitutional grounds.

First — the prohibition unduly infringes on the citizen's fundamental right of free speech enshrined in the Constitution (Sec. 4, Article III) There is no public interest substantial enough to warrant the kind of restriction involved in this case.

There are various concepts surrounding the freedom of speech clause which we have adopted as part and parcel of our own Bill of Rights provision on this basic freedom.

All of the protections expressed in the Bill of Rights are important but we have accorded to free speech the status of a preferred freedom. (Thomas v. Collins, 323 US 516, 89 L. Ed. 430 [1945]; Mutuc v. Commission on Elections, 36 SCRA 228 [1970]).

This qualitative significance of freedom of expression arises from the fact that it is the matrix, the indispensable condition of nearly every other freedom. (Palko v. Connecticut 302 U.S. 319 [1937]; Salonga v. Paño, 134 SCRA 438 [1985]) It is difficult to imagine how the other provisions of the Bill of Rights and the right to free elections may be guaranteed if the freedom to speak and to convince or persuade is denied and taken away.

We have adopted the principle that debate on public issues should be uninhibited, robust, and wide open and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials. (New York Times Co. v. Sullivan 376 U.S. 254, 11 L. Ed. 2d 686 [1964]; cited in the concurring opinion of then Chief Justice Enrique Fernando in Babst v. National Intelligence Board, 132 SCRA 316 [1984]). Too many restrictions will deny to people the robust, uninhibited, and wide open debate, the generating of interest essential if our elections will truly be free, clean, and honest.

We have also ruled that the preferred freedom of expression calls all the more for the utmost respect when what may be curtailed is the dissemination of information to make more meaningful the equally vital right of suffrage. (Mutuc v. Commission on Elections, supra)

The determination of the limits of the Government's power to regulate the exercise by a citizen of his basic freedoms in order to promote fundamental public interests or policy objectives is always a difficult and delicate task. The so-called balancing of interests — individual freedom on one hand and substantial public interests on the other — is made even more difficult in election campaign cases because the Constitution also gives specific authority to the Commission on Elections to supervise the conduct of free, honest, and orderly elections.

We recognize the fact that under the Constitution, the COMELEC during the election period is granted regulatory powers vis-a-vis the conduct and manner of elections, to wit:

"SEC. 4. The Commission may, during the election period supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants special privileges, or concessions granted by the government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable equal rates therefore, for public information campaigns and forms among candidates in connection with the object of holding free, orderly, honest, peaceful and credible elections " (Article IX (c) section 4)

The variety of opinions expressed by the members of this Court in the recent case of National Press Club v. Commission on Elections (G.R. No. 102653, March 5, 1991) and its companion cases underscores how difficult it is to draw a dividing line between permissible regulation of election campaign activities and indefensible repression committed in

the name of free and honest elections. In the National Press Club case, the Court had occasion to reiterate the preferred status of freedom of expression even as it validated COMELEC regulation of campaigns through political advertisements. The gray area is rather wide and we have to go on a case to case basis. LLpr

There is another problem involved. Considering that the period of legitimate campaign activity is fairly limited and, in the opinion of some, too short, it becomes obvious that unduly restrictive regulations may prove unfair to affected parties and the electorate.

For persons who have to resort to judicial action to strike down requirements which they deem inequitable or oppressive, a court case may prove to be a hollow remedy. The judicial process, by its very nature, requires time for rebuttal, analysis and reflection. We cannot act instantly on knee-jerk impulse. By the time we revoke an unallowably restrictive regulation or ruling, time which is of the essence to a candidate may have lapsed and irredeemable opportunities may have been lost.

When faced with border line situations where freedom to speak by a candidate or party and freedom to know on the part of the electorate are invoked against actions intended for maintaining clean and free elections, the police, local officials and COMELEC should lean in favor of freedom. For in the ultimate analysis, the freedom of the citizen and the State's power to regulate are not antagonistic. There can be no free and honest elections if in the efforts to maintain them, the freedom to speak and the right to know are unduly curtailed. LLphil

There were a variety of opinions expressed in the National Press Club v. Commission on Elections (supra) case but all of us were unanimous that regulation of election activity has its limits. We examine the limits of regulation and not the limits of free speech. The carefully worded opinion of the Court, through Mr. Justice Feliciano, shows that regulation of election campaign activity may not pass the test of validity if it is too general in its terms or not limited in time and scope in its application, if it restricts one's expression of belief in a candidate or one's opinion of his or her qualifications, if it cuts off the flow of media reporting, and if the regulatory measure bears no clear and reasonable nexus with the constitutionally sanctioned objective.

Even as the Court sustained the regulation of political advertisements, with some rather strong dissents, in National Press Club, we find the regulation in the present case of a different category. The promotion of a substantial Government interest is not clearly shown.

"A government regulation is sufficiently justified if it is within the constitutional power of the Government, if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. (Id., at 377, 20 L Ed 2d 672, 88 S Ct 1673." (City Council v. Taxpayers For Vincent, 466 US 789, 80 L Ed 2d 772, 104 S Ct 2118 [1984])

The posting of decals and stickers in mobile places like cars and other moving vehicles does not endanger any substantial government interest. There is no clear public interest threatened by such activity so as to justify the curtailment of the cherished citizen's right of free speech and expression. Under the clear and present danger rule not only must the danger be patently clear and pressingly present but the evil sought to be avoided must be so substantive as to justify a clamp over one's mouth or a writing instrument to be stilled: LLjur

"The case confronts us again with the duty our system places on the Court to say where the individual's freedom ends and the State's power begins. Choice on that border, now as always delicate, is perhaps more so where the usual presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the First Amendment . . . That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions and it is the character of the right, not of the limitation, which determines what standard governs the choice . . .

 

For these reasons any attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or remotely, but by clear and present danger. The rational connection between the remedy provided and the evil to be curbed, which in other context might support legislation against attack on due process grounds, will not suffice. These rights rest on firmer foundation. Accordingly, whatever occasion would restrain orderly discussion and persuasion, at appropriate time and place, must have clear support in public danger, actual or impending. Only the greatest abuses, endangering permanent interests, give occasion for permissible limitation. (Thomas V. Collins, 323 US 516 [1945]." (Emphasis supplied)

Significantly, the freedom of expression curtailed by the question prohibition is not so much that of the candidate or the political party. The regulation strikes at the freedom of an individual to express his preference and, by displaying it on his car, to convince others to agree with him. A sticker may be furnished by a candidate but once the car owner agrees to have it placed on his private vehicle, the expression becomes a statement by the owner, primarily his own and not of anybody else. If, in the National Press Club case, the Court was careful to rule out restrictions on reporting by newspapers or radio and television stations and commentators or columnists as long as these are not correctly paid-for advertisements or purchased opinions with less reason can sanction the prohibition against a sincere manifestation of support and a proclamation of belief by an individual person who pastes a sticker or decal on his private property.

Second — the questioned prohibition premised on the statute and as couched in the resolution is void for overbreadth.

A statute is considered void for overbreadth when "it offends the constitutional principle that a governmental purpose to

control or prevent activities constitutionally subject to state regulations may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." (Zwickler v. Koota, 19 L ed 2d 444 [1967]).

"In a series of decisions this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.

In Lovell v. Griffin , 303 US 444, 82 L ed 949, 58 S Ct. 666, the Court invalidated an ordinance prohibiting all distribution of literature at any time or place in Griffin, Georgia, without a license, pointing out that so broad an interference was unnecessary to accomplish legitimate municipal aims. In Schneider v. Irvington, 308 US 147, 84 L ed 155, 60 S Ct.. 146, the Court dealt with ordinances of four different municipalities which either banned or imposed prior restraints upon the distribution of handbills. In holding the ordinances invalid, the court noted that where legislative abridgment of 'fundamental personal rights and liberties' is asserted, ' the courts should be astute to examine the effect of the challenged legislation. Mere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions.' 308 US, at 161. In Cantwell v. Connecticut, 310 US 296, 84 L ed 1213, 60 S Ct. 900, 128 ALR 1352, the Court said that '[c]onduct remains subject to regulation for the protection of society,' but pointed out that in each case 'the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom." (310 US at 304) (Shelton v. Tucker, 364 US 479 [1960])

The resolution prohibits the posting of decals and stickers not more than eight and one-half (8-1/2) inches in width and fourteen (14) inches in length in any place, including mobile places whether public or private except in areas designated by the COMELEC. Verily, the restriction as to where the decals and stickers should be posted is so broad that it encompasses even citizen's private property, which in this case is a privately-owned vehicle. In consequence of this prohibition, another cardinal rule prescribed by the Constitution would be violated. Section 1, Article III of the Bill of Rights provides that no person shall be deprived of his property without due process of law.

"Property is more than the mere thing which a person owns, it includes the right to acquire, use, and dispose of it; and the Constitution, in the 14th Amendment, protects these essential attributes.

Property is more than the mere thing which a person owns. It is elementary that it includes the right to acquire, use, and dispose of it. The Constitution protects these essential attributes of property. Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists of the free use, enjoyment, and disposal of a person's acquisitions

without control or diminution save by the law of the land. 1 Cooley's Bl. Com. 127." (Buchanan v. Warley 245 US 60 [1917])

As earlier stated, we have to consider the fact that in the posting of decals and stickers on cars and other moving vehicles, the candidate needs the consent of the owner of the vehicle. In such a case, the prohibition would not only deprive the owner who consents to such posting of the decals and stickers the use of his property but more important, in the process, it would deprive the citizen of his right to free speech and information:

"Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the preservation of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved. The danger of distribution can so easily be controlled by traditional legal methods leaving to each householder the full right to decide whether he will receive strangers as visitors, that stringent prohibition can serve no purpose but that forbidden by the constitution, the naked restriction of the dissemination of ideas." (Martin v. City of Struthers, Ohio, 319 U.S. 141; 87 L. ed. 1313 [1943])

The right to property may be subject to a greater degree of regulation but when this right is joined by a "liberty" interest, the burden of justification on the part of the Government must be exceptionally convincing and irrefutable. The burden is not met in this case. LexLia

Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting or display of election propaganda in any place, whether public or private, except in the common poster areas sanctioned by COMELEC. This means that a private person cannot post his own crudely prepared personal poster on his own front door or on a post in his yard. While the COMELEC will certainly never require the absurd, there are no limits to what overzealous and partisan police officers, armed with a copy of the statute or regulation, may do. LexLib

The provisions allowing regulations are so loosely worded that they include the posting of decals or stickers in the privacy of one's living room or bedroom. This is delegation running riot. As stated by Justice Cardozo in his concurrence in Panama Refining Co. v. Ryan (293 U.S. 388; 79 L. Ed. 446 [1935]), "The delegated power is unconfined and vagrant. . . This is delegation running riot. No such plentitude of power is susceptible of transfer."

Third — the constitutional objective to give a rich candidate and a poor candidate equal opportunity to inform the electorate as regards their candidacies, mandated by Article II, Section 26 and Article XIII, Section 1 in relation to Article IX (c) Section 4 of the Constitution, is not impaired by posting decals and stickers on cars and other private vehicles. Compared to the paramount interest of the State in guaranteeing freedom of expression, any financial considerations behind the regulation are of marginal significance. LLpr

Under section 26, Article II of the Constitution, "The State shall guarantee equal access to opportunities for public service, . . . while under section 1, Article XIII thereof "The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good." (Emphasis supplied)

It is to be reiterated that the posting of decals and stickers on cars, calesas, tricycles, pedicabs and other moving vehicles needs the consent of the owner of the vehicle. Hence, the preference of the citizen becomes crucial in this kind of election propaganda not the financial resources of the candidate. Whether the candidate is rich and, therefore, can afford to doleout more decals and stickers or poor and without the means to spread out the number of decals and stickers is not as important as the right of the owner to freely express his choice and exercise his right of free speech. The owner can even prepare his own decals or stickers for posting on his personal property. To strike down this right and enjoin it is impermissible encroachment of his liberties.

In sum, the prohibition on posting of decals and stickers on "mobile" places whether public or private except in the authorized areas designated by the COMELEC becomes censorship which cannot be justified by the Constitution:

". . . The concept of the Constitution as the fundamental law, setting forth the criterion for the validity of any public act whether proceeding from the highest official or the lowest functionary, is a postulate of our system of government. That is to manifest fealty to the rule of law, with priority accorded to that which occupies the topmost rung in the legal hierarchy. The three departments of government in the discharge of the functions with which it is entrusted have no choice but to yield obedience to its commands. Whatever limits it imposes must be observed. Congress in the enactment of statutes must ever be on guard lest the restrictions on its authority, either substantive or formal, be transcended. The Presidency in the execution of the laws cannot ignore or disregard what it ordains. In its task of applying the law to the facts as found in deciding cases, the judiciary is called upon to maintain inviolate what is decreed by the fundamental law. Even its power of judicial review to pass upon the validity of the acts of the coordinate branches in the course of adjudication is a logical corollary of this basic principle that the Constitution is paramount. It overrides any governmental measure that fails to live up to its mandates. Thereby there is a recognition of its being the supreme law." (Mutuc v. Commission on Elections, supra)

 

The unusual circumstances of this year's national and local elections call for a more liberal interpretation of the freedom to speak and the right to know. It is not alone the widest possible dissemination of information on platforms and programs which concern us. Nor are we limiting ourselves to protecting the unfettered interchange of ideas to bring about political change. (Cf. New York Times v. Sullivan, supra) The big number of

candidates and elective positions involved has resulted in the peculiar situation where almost all voters cannot name half or even two-thirds of the candidates running for Senator. The public does not know who are aspiring to be elected to public office.

There are many candidates whose names alone evoke qualification, platforms, programs and ideologies which the voter may accept or reject. When a person attaches a sticker with such a candidate's name on his car bumper, he is expressing more than the name; he is espousing ideas. Our view of the validity of the challenged regulation includes its effects in today's particular circumstances. We are constrained to rule against the COMELEC prohibition.

WHEREFORE, the petition is hereby GRANTED. The portion of Section 15(a) of Resolution No. 2347 of the Commission on Elections providing that "decals and stickers may be posted only in any of the authorized posting areas provided in paragraph (f) of Section 21 hereof" is DECLARED NULL and VOID.

SO ORDERED.

Narvasa, C.J., Melencio-Herrera, Paras, Padilla, Bidin, Griño-Aquino, Medialdea, Regalado, Davide, Jr., Romero and Nocon, JJ., concur.

Feliciano and Bellosillo, JJ., is on leave.

||| (Adiong v. COMELEC, G.R. No. 103956, [March 31, 1992])

3. ABS-CBN v. COMELEC

EN BANC

[G.R. No. 133486. January 28, 2000.]

ABS-CBN BROADCASTING CORPORATION, petitioner, vs. COMMISSION ON ELECTIONS, respondent.

Quiason Makalintal Barot Torres & Ibarra for petitioner.

The Solicitor General for respondent.

SYNOPSIS

This is a petition for certiorari under Rule 65 of the Rules of Court filed by ABS-CBN Broadcasting Corporation assailing the COMELEC En Banc Resolution No. 98-1419 dated April 21, 1998 approving the issuance of a restraining order to stop petitioner ABS-CBN or any other groups, its agents or representatives from conducting exit survey and to authorize the Honorable Chairman to issue the same. Because of the issuance of this resolution, petitioner filed the instant case, and on May 9, 1998, the Court issued the temporary restraining order prayed for by petitioner. The lone issue to be resolved in this case is whether or not the respondent Comelec acted with grave abuse of discretion amounting to lack or excess of jurisdiction when it approved the issuance of a restraining order enjoining the petitioner or any other group, its agents or

representatives from conducting exit polls during the May 11, 1998 elections.

The Supreme Court found the petition meritorious. The Court ruled that the holding of exit polls and the dissemination of their results through mass media constitute an essential part of the freedoms of speech and of the press. Hence, the Comelec cannot ban them totally in the guise of promoting clean, honest, orderly and credible elections. Moreover, the Comelec's concern with the possible noncommunicative effect of exit polls — disorder and confusion in the voting centers — does not justify a total ban on them. Undoubtedly, the assailed Comelec Resolution was too broad, since its application is without qualification as to whether the polling is disruptive or not. Concededly, the Omnibus Election Code prohibits disruptive behaviors around the voting centers. There was no showing, however, that exit polls or the means to interview voters cause chaos in voting centers. Neither had any evidence been presented proving that the presence of exit poll reporters near the election precincts tended to create disorder or confuse the voters. Accordingly, the petition was granted and the temporary restraining order issued by the Court was made permanent.

SYLLABUS

1. POLITICAL LAW; CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF SPEECH AND OF THE PRESS; NATURE AND SCOPE THEREOF. — The freedom of expression is a fundamental principle of our democratic government. It "is a 'preferred' right and, therefore, stands on a higher level than substantive economic or other liberties. . . . [T]his must be so because the lessons of history, both political and legal, illustrate that freedom of thought and speech is the indispensable condition of nearly every other form of freedom." Our Constitution clearly mandates that no law shall be passed abridging the freedom of speech or of the press. In the landmark case Gonzales v. Comelec, this Court enunciated that at the very least, free speech and a free press consist of the liberty to discuss publicly and truthfully any matter of public interest without prior restraint. The freedom of expression is a means of assuring individual self-fulfillment, of attaining the truth, of securing participation by the people in social and political decision-making, and of maintaining the balance between stability and change. It represents a profound commitment to the principle that debates on public issues should be uninhibited, robust, and wide open. It means more than the right to approve existing political beliefs or economic arrangements, to lend support to official measures, or to take refuge in the existing climate of opinion on any matter of public consequence. And paraphrasing the eminent Justice Oliver Wendell Holmes, we stress that the freedom encompasses the thought we hate, no less than the thought we agree with. DTAaCE

2. ID.; ID.; ID.; ID.; LIMITATIONS; CLEAR AND PRESENT DANGER TEST. — This Court adheres to the "clear and present danger" test. It implicitly did in its earlier decisions in Primicias v. Fugoso and American Bible Society v. City of Manila; as well as in later ones, Vera v. Arca, Navarro v. Villegas, Imbong v. Ferrer, Blo Umpar Adiong v. Comelec and,

more recently, in Iglesia ni Cristo v. MTRCB. In setting the standard or test for the "clear and present danger" doctrine, the Court echoed the words of Justice Holmes: "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree." A limitation on the freedom of expression may be justified only by a danger of such substantive character that the state has a right to prevent. Unlike in the "dangerous tendency" doctrine, the danger must not only be clear but also present. "Present" refers to the time element; the danger must not only be probable but very likely to be inevitable. The evil sought to be avoided must be so substantive as to justify a clamp over one's mouth or a restraint of a writing instrument.

3. ID.; ID.; ID.; ID.; JUSTIFICATION FOR RESTRICTION. — Doctrinally, the Court has always ruled in favor of the freedom of expression, and any restriction is treated an exemption. The power to exercise prior restraint is not to be presumed; rather the presumption is against its validity. And it is respondent's burden to overthrow such presumption. Any act that restrains speech should be greeted with furrowed brows, so it has been said. To justify a restriction, the promotion of a substantial government interest must be clearly shown. Thus: "A government regulation is sufficiently justified if it is within the constitutional power of the government, if it furthers an important or substantial government interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." Hence, even though the government's purposes are legitimate and substantial, they cannot be pursued by means that broadly stifle fundamental personal liberties, when the end can be more narrowly achieved.

4. ID.; ID.; ID.; ID.; TOTAL BAN ON EXIT POLL NOT JUSTIFIED. — The Comelec's concern with the possible noncommunicative effect of exit polls — disorder and confusion in the voting centers — does not justify a total ban on them. Undoubtedly, the assailed Comelec Resolution is too broad, since its application is without qualification as to whether the polling is disruptive or not. Concededly, the Omnibus Election Code prohibits disruptive behavior around the voting centers. There is no showing, however, that exit polls or the means to interview voters cause chaos in voting centers. Neither has any evidence been presented proving that the presence of exit poll reporters near an election precinct tends to create disorder or confuse the voters. Moreover, the prohibition incidentally prevents the collection of exit poll data and their use for any purpose. The valuable information and ideas that could be derived from them, based on the voters' answers to the survey questions will forever remain unknown and unexplored. Unless the ban is restrained, candidates, researchers, social scientists and the electorate in general would be deprived of studies on the impact of current events and of election-day and other factors on voters' choices. In Daily Herald Co. vs. Munro, the US Supreme Court held that

a statute, one of the purposes of which was to prevent the broadcasting of early returns, was unconstitutional because such purpose was impermissible, and the statute was neither narrowly tailored to advance a state interest nor the least restrictive alternative. Furthermore, the general interest of the State in insulating voters from outside influences is insufficient to justify speech regulation. Just as curtailing election-day broadcasts and newspaper editorials for the reason that they might indirectly affect the voters' choices is impermissible, so is regulating speech via an exit poll restriction. The absolute ban imposed by the Comelec cannot, therefore, be justified. It does not leave open any alternative channel of communication to gather the type of information obtained through exit polling. On the other hand, there are other valid and reasonable ways and means to achieve the Comelec end of avoiding or minimizing disorder and confusion that may be brought about by exit surveys.

5. ID.; ID.; ID.; ID.; EXIT POLLS DO NOT TRANSGRESS THE SANCTITY AND SECRECY OF THE BALLOT. — The contention of public respondent that exit polls indirectly transgress the sanctity and the secrecy of the ballot is off-tangent to the real issue. Petitioner does not seek access to the ballots cast by the voters. The ballot system of voting is not at issue here. The reason behind the principle of ballot secrecy is to avoid vote buying through voter identification. Thus, voters are prohibited from exhibiting the contents of their official ballots to other persons, from making copies thereof, or from putting distinguishing marks thereon so as to be identified. Also proscribed is finding out contents of the ballots cast by particular voters or disclosing those of disabled or illiterate voters who have been assisted. Clearly, what is forbidden is the association of voters with their respective votes, for the purpose of assuring that the votes have been cast in accordance with the instructions of a third party. This result cannot, however, be achieved merely through the voters' verbal and confidential disclosure to a pollster of whom they have voted for. In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the revelation of whom an elector has voted for is not compulsory, but voluntary. Voters may also choose not to reveal their identities. Indeed, narrowly tailored countermeasures may be prescribed by the Comelec, so as to minimize or suppress incidental problems in the conduct of exit polls, without transgressing the fundamental rights of our people.

 

VITUG, J., separate opinion:

CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO FREE SPEECH AND INFORMATION; NOT ILLIMITABLE AND IMMUNE FROM THE VALID EXERCISE OF AN EVER DEMANDING AND PERVASIVE POLICE POWER. — While I understand what the ponencia is saying quite laudably, I also appreciate, upon the other hand, the concern of the Commission on Elections, i.e., that the conduct of exit polls can have some adverse effects on the need to preserve the sanctity of the ballot. The Commission performs an indispensable task of ensuring free, honest, and orderly elections and of guarding against any frustration of the true will

of the people. Expectedly, it utilizes all means available within its power and authority to prevent the electoral process from being manipulated and rendered an absurdity. Like my colleagues, I greatly prize the freedom of expression but, so also, I cherish no less the right of the people to express their will by means of the ballot. In any case, I must accept the reality that the right to information and free speech is not illimitable and immune from the valid exercise of an ever demanding and pervasive police power. Whether any kind of restraint should be upheld or declared invalid in the proper balancing of interest is one that must be resolved at any given moment, not on perceived circumstances, but on prevailing facts. aDIHCT

KAPUNAN, J., dissenting opinion:

1. POLITICAL LAW; CONSTITUTIONAL LAW; RIGHT TO FREE SPEECH; IF THE RIGHT TO FREE SPEECH COLLIDES WITH A NORM OF CONSTITUTIONAL STATURE, THE RULE ON HEAVY PRESUMPTION OF INVALIDITY DOES NOT APPLY. — The majority opinion cites the general rule that any restrictions to freedom of expression would be burdened with a presumption of invalidity and should be greeted with "furrowed brows." While this has been the traditional approach, this rule does not apply where, as in this case, the Comelec exercised its Constitutional functions of securing the secrecy and sanctity of the ballots and ensuring the integrity of the elections. Thus, Mr. Justice Feliciano in National Press Club (NPC) v. Comelec wrote: The technical effect of Article IX (C) (4) of the Constitution may be seem to be that no presumption of invalidity arises in respect of supervisory or regulatory authority on the part of the COMELEC for the purpose of securing equal opportunity among candidates for political office, although such supervision or regulation may result in some limitation of the right of free speech and free press. For supervision or regulation of the operations of media enterprises is scarcely conceivable without such accompanying limitation. Thus, the applicable rule is the general, time honored one — that a statute is presumed to be constitutional and that the party asserting its unconstitutionality must discharge the burden of clearly and convincingly proving that assertion. The NPC decision holds that if the right to free speech collides with a norm of constitutional stature, the rule on heavy presumption of invalidity does not apply.

2. ID.; ID.; ID.; IF NO PRESUMPTION OF INVALIDITY ARISES, THERE IS NO OCCASION FOR THE APPLICATION OF THE CLEAR AND PRESENT DANGER TEST. — Our Constitution mandates the Comelec to enforce and administer laws and regulations relative to the conduct of elections and to secure the secrecy and sanctity of the ballots to ensure orderly, honest, credible and peaceful elections. This Constitutional provision effectively displaces the general presumption of invalidity in favor of the presumption that Comelec acted in the exercise of its constitutionally mandated powers. If no presumption of invalidity arises, I see no occasion for the application of the "clear and present danger test." As this Court, through Mr. Justice Mendoza, succinctly observed: . . . the clear-and-present danger test is not, however, a sovereign remedy for all free speech problems. As

has been pointed out by a thoughtful student of constitutional law, it was originally formulated for the criminal law and only later appropriated for free speech cases. For the criminal law is necessarily concerned with the line at which innocent preparation ends and guilty conspiracy or attempt begins. Clearly, it is inappropriate as a test for determining the constitutional validity of law which, like §11(b) of R.A. No. 6646, are not concerned with the content of political ads but only with their incidents. To apply the clear-and-present danger test to such regulatory measures would be like using a sledgehammer to drive a nail when a regular hammer is all that is needed.

D E C I S I O N

PANGANIBAN, J p:

The holding of exit polls and the dissemination of their results through mass media constitute an essential part of the freedoms of speech and of the press. Hence, the Comelec cannot ban them totally in the guise of promoting clean, honest, orderly and credible elections. Quite the contrary, exit polls — properly conducted and publicized — can be vital tools in eliminating the evils of election-fixing and fraud. Narrowly tailored countermeasures may be prescribed by the Comelec so as to minimize or suppress the incidental problems in the conduct of exit polls, without transgressing in any manner the fundamental rights of our people.

The Case and the Facts

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court assailing Commission on Elections (Comelec) en banc Resolution No. 98-1419 1dated April 21, 1998. In the said Resolution, the poll body

"RESOLVED to approve the issuance of a restraining order to stop ABS-CBN or any other groups, its agents or representatives from conducting such exit survey and to authorize the Honorable Chairman to issue the same."

The Resolution was issued by the Comelec allegedly upon "information from [a] reliable source that ABS-CBN (Lopez Group) has prepared a project, with PR groups, to conduct radio-TV coverage of the elections . . . and to make [an] exit survey of the . . . vote during the elections for national officials particularly for President and Vice President, results of which shall be [broadcast] immediately." 2 The electoral body believed that such project might conflict with the official Comelec count, as well as the unofficial quick count of the National Movement for Free Elections (Namfrel). It also noted that it had not authorized or deputized Petitioner ABS-CBN to undertake the exit survey.

On May 9, 1998, this Court issued the Temporary Restraining Order prayed for by petitioner. We directed the Comelec to cease and desist, until further orders, from implementing the assailed Resolution or the restraining order issued pursuant thereto, if any. In fact, the exit polls were actually conducted and reported by media without any difficulty or problem.

The Issues

Petitioner raises this lone issue: "Whether or not the Respondent Commission acted with grave abuse of discretion amounting to a lack or excess of jurisdiction when it approved the issuance of a restraining order enjoining the petitioner or any [other group], its agents or representatives from conducting exit polls during the . . . May 11 elections." 3

In his Memorandum, 4 the solicitor general, in seeking to dismiss the Petition, brings up additional issues: (1) mootness and (2) prematurity, because of petitioner's failure to seek a reconsideration of the assailed Comelec Resolution. LibLex

The Court's Ruling

The Petition 5 is meritorious.

Procedural Issues:

Mootness and Prematurity

The solicitor general contends that the petition is moot and academic, because the May 11, 1998 election has already been held and done with. Allegedly, there is no longer any actual controversy before us.

The issue is not totally moot. While the assailed Resolution referred specifically to the May 11, 1998 election, its implications on the people's fundamental freedom of expression transcend the past election. The holding of periodic elections is a basic feature of our democratic government. By its very nature, exit polling is tied up with elections. To set aside the resolution of the issue now will only postpone a task that could well crop up again in future elections. 6

In any event, in Salonga v. Cruz Pano, the Court had occasion to reiterate that it "also has the duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. It has the symbolic function of educating bench and bar on the extent of protection given by constitutional guarantees." 7 Since the fundamental freedoms of speech and of the press are being invoked here, we have resolved to settle, for the guidance of posterity, whether they likewise protect the holding of exit polls and the dissemination of data derived therefrom.

The solicitor general further contends that the Petition should be dismissed for petitioner's failure to exhaust available remedies before the issuing forum, specifically the filing of a motion for reconsideration.

This Court, however, has ruled in the past that this procedural requirement may be glossed over to prevent a miscarriage of justice, 8 when the issue involves the principle of social justice or the protection of labor, 9 when the decision or resolution sought to be set aside is a nullity, 10 or when the need for relief is extremely urgent and certiorari is the only adequate and speedy remedy available. 11

The instant Petition assails a Resolution issued by the Comelec en banc on April 21, 1998, only twenty (20) days before the election itself. Besides, the petitioner got hold of a copy thereof only on May 4, 1998. Under the circumstances,

there was hardly enough opportunity to move for a reconsideration and to obtain a swift resolution in time for the May 11, 1998 elections. Moreover, not only is time of the essence; the Petition involves transcendental constitutional issues. Direct resort to this Court through a special civil action for certiorari is therefore justified.

 

Main Issue:

Validity of Conducting Exit Polls

An exit poll is a species of electoral survey conducted by qualified individuals or group of individuals for the purpose of determining the probable result of an election by confidentially asking randomly selected voters whom they have voted for, immediately after they have officially cast their ballots. The results of the survey are announced to the public, usually through the mass media, to give an advance overview of how, in the opinion of the polling individuals or organizations, the electorate voted. In our electoral history, exit polls had not been resorted to until the recent May 11, 1998 elections.

In its Petition, ABS-CBN Broadcasting Corporation maintains that it is a responsible member of the mass media, committed to report balanced election-related data, including "the exclusive results of Social Weather Station (SWS) surveys conducted in fifteen administrative regions."

It argues that the holding of exit polls and the nationwide reporting of their results are valid exercises of the freedoms of speech and of the press. It submits that, in precipitately and unqualifiedly restraining the holding and the reporting of exit polls, the Comelec gravely abused its discretion and grossly violated the petitioner's constitutional rights.

Public respondent, on the other hand, vehemently denies that, in issuing the assailed Resolution, it gravely abused its discretion. It insists that the issuance thereof was "pursuant to its constitutional and statutory powers to promote a clean, honest, orderly and credible May 11, 1998 elections"; and "to protect, preserve and maintain the secrecy and sanctity of the ballot." It contends that "the conduct of exit surveys might unduly confuse and influence the voters," and that the surveys were designed "to condition the minds of people and cause confusion as to who are the winners and the [losers] in the election," which in turn may result in "violence and anarchy."

Public respondent further argues that "exit surveys indirectly violate the constitutional principle to preserve the sanctity of the ballots," as the "voters are lured to reveal the contents of ballots," in violation of Section 2, Article V of the Constitution; 12 and relevant provisions of the Omnibus Election Code. 13 It submits that the constitutionally protected freedoms invoked by petitioner "are not immune to regulation by the State in the legitimate exercise of its police power," such as in the present case.

The solicitor general, in support of the public respondent, adds that the exit polls pose a "clear and present danger of destroying the credibility and integrity of the electoral process,"

considering that they are not supervised by any government agency and can in general be manipulated easily. He insists that these polls would sow confusion among the voters and would undermine the official tabulation of votes conducted by the Commission, as well as the quick count undertaken by the Namfrel.

Admittedly, no law prohibits the holding and the reporting of exit polls. The question can thus be more narrowly defined: May the Comelec, in the exercise of its powers, totally ban exit polls? In answering this question, we need to review quickly our jurisprudence on the freedoms of speech and of the press.

Nature and Scope of Freedomsof Speech and of the Press

The freedom of expression is a fundamental principle of our democratic government. It "is a 'preferred' right and, therefore, stands on a higher level than substantive economic or other liberties. . . . [T]his must be so because the lessons of history, both political and legal, illustrate that freedom of thought and speech is the indispensable condition of nearly every other form of freedom." 14

Our Constitution clearly mandates that no law shall be passed abridging the freedom of speech or of the press. 15 In the landmark case Gonzales v.Comelec, 16 this Court enunciated that at the very least, free speech and a free press consist of the liberty to discuss publicly and truthfully any matter of public interest without prior restraint. LLpr

The freedom of expression is a means of assuring individual self-fulfillment, of attaining the truth, of securing participation by the people in social and political decision-making, and of maintaining the balance between stability and change. 17 It represents a profound commitment to the principle that debates on public issues should be uninhibited, robust, and wide open. 18 It means more than the right to approve existing political beliefs or economic arrangements, to lend support to official measures, or to take refuge in the existing climate of opinion on any matter of public consequence. And paraphrasing the eminent Justice Oliver Wendell Holmes, 19 we stress that the freedom encompasses the thought we hate, no less than the thought we agree with.

Limitations

The realities of life in a complex society, however, preclude an absolute exercise of the freedoms of speech and of the press. Such freedoms could not remain unfettered and unrestrained at all times and under all circumstances. 20 They are not immune to regulation by the State in the exercise of its police power. 21 While the liberty to think is absolute, the power to express such thought in words and deeds has limitations.

In Cabansag v. Fernandez 22 this Court had occasion to discuss two theoretical tests in determining the validity of restrictions to such freedoms, as follows:

"These are the 'clear and present danger' rule and the 'dangerous tendency' rule. The first, as interpreted in a number of cases, means that the evil consequence of the comment or

utterance must be 'extremely serious and the degree of imminence extremely high' before the utterance can be punished. The danger to be guarded against is the 'substantive evil' sought to be prevented. . . ." 23

"The 'dangerous tendency' rule, on the other hand, . . . may be epitomized as follows: If the words uttered create a dangerous tendency which the state has a right to prevent, then such words are punishable. It is not necessary that some definite or immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that such acts be advocated in general terms. Nor is it necessary that the language used be reasonably calculated to incite persons to acts of force, violence, or unlawfulness. It is sufficient if the natural tendency and probable effect of the utterance be to bring about the substantive evil which the legislative body seeks to prevent." 24

Unquestionably, this Court adheres to the "clear and present danger" test. It implicitly did in its earlier decisions in Primicias v. Fugoso 25 and American Bible Society v. City of Manila; 26 as well as in later ones, Vera v. Arca, 27 Navarro v. Villegas, 28 Imbong v. Ferrer, 29 Blo Umpar Adiong v. Comelec 30 and, more recently, in Iglesia ni Cristo v. MTRCB. 31 In setting the standard or test for the "clear and present danger" doctrine, the Court echoed the words of Justice Holmes: "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree." 32

A limitation on the freedom of expression may be justified only by a danger of such substantive character that the state has a right to prevent. Unlike in the "dangerous tendency" doctrine, the danger must not only be clear but also present. "Present" refers to the time element; the danger must not only be probable but very likely to be inevitable. 33 The evil sought to be avoided must be so substantive as to justify a clamp over one's mouth or a restraint of a writing instrument. 34

Justification for aRestriction

Doctrinally, the Court has always ruled in favor of the freedom of expression, and any restriction is treated an exemption. The power to exercise prior restraint is not to be presumed; rather the presumption is against its validity. 35 And it is respondent's burden to overthrow such presumption. Any act that restrains speech should be greeted with furrowed brows, 36 so it has been said. Cdpr

To justify a restriction, the promotion of a substantial government interest must be clearly shown. 37 Thus:

"A government regulation is sufficiently justified if it is within the constitutional power of the government, if it furthers an important or substantial government interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First

Amendment freedoms is no greater than is essential to the furtherance of that interest." 38

Hence, even though the government's purposes are legitimate and substantial, they cannot be pursued by means that broadly stifle fundamental personal liberties, when the end can be more narrowly achieved. 39

The freedoms of speech and of the press should all the more be upheld when what is sought to be curtailed is the dissemination of information meant to add meaning to the equally vital right of suffrage. 40 We cannot support any ruling or order "the effect of which would be to nullify so vital a constitutional right as free speech." 41 When faced with borderline situations in which the freedom of a candidate or a party to speak or the freedom of the electorate to know is invoked against actions allegedly made to assure clean and free elections, this Court shall lean in favor of freedom. For in the ultimate analysis, the freedom of the citizen and the State's power to regulate should not be antagonistic. There can be no free and honest elections if, in the efforts to maintain them, the freedom to speak and the right to know are unduly curtailed. 42

 

True, the government has a stake in protecting the fundamental right to vote by providing voting places that are safe and accessible. It has the duty to secure the secrecy of the ballot and to preserve the sanctity and the integrity of the electoral process. However, in order to justify a restriction of the people's freedoms of speech and of the press, the state's responsibility of ensuring orderly voting must far outweigh them.

These freedoms have additional importance, because exit polls generate important research data which may be used to study influencing factors and trends in voting behavior. An absolute prohibition would thus be unreasonably restrictive, because it effectively prevents the use of exit poll data not only for election-day projections, but also for long-term research. 43

Comelec Ban onExit Polling

In the case at bar, the Comelec justifies its assailed Resolution as having been issued pursuant to its constitutional mandate to ensure a free, orderly, honest, credible and peaceful election. While admitting that "the conduct of an exit poll and the broadcast of the results thereof [are] . . . an exercise of press freedom," it argues that "[p]ress freedom may be curtailed if the exercise thereof creates a clear and present danger to the community or it has a dangerous tendency." It then contends that "an exit poll has the tendency to sow confusion considering the randomness of selecting interviewees, which further make[s] the exit poll highly unreliable. The probability that the results of such exit poll may not be in harmony with the official count made by the Comelec . . . is ever present. In other words, the exit poll has a clear and present danger of destroying the credibility and integrity of the electoral process."

Such arguments are purely speculative and clearly untenable. First, by the very nature of a survey, the interviewees or participants are selected at random, so that the results will as much as possible be representative or reflective of the general sentiment or view of the community or group polled.Second, the survey result is not meant to replace or be at par with the official Comelec count. It consists merely of the opinion of the polling group as to who the electorate in general has probably voted for, based on the limited data gathered from polled individuals. Finally, not at stake here are the credibility and the integrity of the elections, which are exercises that are separate and independent from the exit polls. The holding and the reporting of the results of exit polls cannot undermine those of the elections, since the former is only part of the latter. If at all, the outcome of one can only be indicative of the other.

The Comelec's concern with the possible noncommunicative effect of exit polls — disorder and confusion in the voting centers — does not justify a total ban on them. Undoubtedly, the assailed Comelec Resolution is too broad, since its application is without qualification as to whether the polling is disruptive or not. 44 Concededly, the Omnibus Election Code prohibits disruptive behavior around the voting centers. 45 There is no showing, however, that exit polls or the means to interview voters cause chaos in voting centers. Neither has any evidence been presented proving that the presence of exit poll reporters near an election precinct tends to create disorder or confuse the voters.

Moreover, the prohibition incidentally prevents the collection of exit poll data and their use for any purpose. The valuable information and ideas that could be derived from them, based on the voters' answers to the survey questions will forever remain unknown and unexplored. Unless the ban is restrained, candidates, researchers, social scientists and the electorate in general would be deprived of studies on the impact of current events and of election-day and other factors on voters' choices.

In Daily Herald Co. v. Munro, 46 the US Supreme Court held that a statute, one of the purposes of which was to prevent the broadcasting of early returns, was unconstitutional because such purpose was impermissible, and the statute was neither narrowly tailored to advance a state interest nor the least restrictive alternative. Furthermore, the general interest of the State in insulating voters from outside influences is insufficient to justify speech regulation. Just as curtailing election-day broadcasts and newspaper editorials for the reason that they might indirectly affect the voters' choices is impermissible, so is regulating speech via an exit poll restriction. 47

The absolute ban imposed by the Comelec cannot, therefore, be justified. It does not leave open any alternative channel of communication to gather the type of information obtained through exit polling. On the other hand, there are other valid and reasonable ways and means to achieve the Comelec end of avoiding or minimizing disorder and confusion that may be brought about by exit surveys.

For instance, a specific limited area for conducting exit polls may be designated. Only professional survey groups may be

allowed to conduct the same. Pollsters may be kept at a reasonable distance from the voting center. They may be required to explain to voters that the latter may refuse to be interviewed, and that the interview is not part of the official balloting process. The pollsters may further be required to wear distinctive clothing that would show they are not election officials. 48 Additionally, they may be required to undertake an information campaign on the nature of the exercise and the results to be obtained therefrom. These measures, together with a general prohibition of disruptive behavior, could ensure a clean, safe and orderly election. prcd

For its part, Petitioner ABS-CBN explains its survey methodology as follows: (1) communities are randomly selected in each province; (2) residences to be polled in such communities are also chosen at random; (3) only individuals who have already voted, as shown by the indelible ink on their fingers, are interviewed; (4) the interviewers use no cameras of any sort; (5) the poll results are released to the public only on the day after the elections. 49 These precautions, together with the possible measures earlier stated, may be undertaken to abate the Comelec's fear, without consequently and unjustifiably stilling the people's voice.

With the foregoing premises, we conclude that the interest of the state in reducing disruption is outweighed by the drastic abridgment of the constitutionally guaranteed rights of the media and the electorate. Quite the contrary, instead of disrupting elections, exit polls — properly conducted and publicized — can be vital tools for the holding of honest, orderly, peaceful and credible elections; and for the elimination of election-fixing, fraud and other electoral ills.

Violation of Ballot Secrecy

The contention of public respondent that exit polls indirectly transgress the sanctity and the secrecy of the ballot is off-tangent to the real issue. Petitioner does not seek access to the ballots cast by the voters. The ballot system of voting is not at issue here.

The reason behind the principle of ballot secrecy is to avoid vote buying through voter identification. Thus, voters are prohibited from exhibiting the contents of their official ballots to other persons, from making copies thereof, or from putting distinguishing marks thereon so as to be identified. Also proscribed is finding out the contents of the ballots cast by particular voters or disclosing those of disabled or illiterate voters who have been assisted. Clearly, what is forbidden is the association of voters with their respective votes, for the purpose of assuring that the votes have been cast in accordance with the instructions of a third party. This result cannot, however, be achieved merely through the voters' verbal and confidential disclosure to a pollster of whom they have voted for.

In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the revelation of whom an elector has voted for is not compulsory, but voluntary. Voters may also choose not to reveal their identities. Indeed, narrowly tailored countermeasures may be prescribed by the Comelec, so as to

minimize or suppress incidental problems in the conduct of exit polls, without transgressing the fundamental rights of our people. cdrep

WHEREFORE, the Petition is GRANTED, and the Temporary Restraining Order issued by the Court on May 9, 1998 is made PERMANENT. Assailed Minute Resolution No. 98-1419 issued by the Comelec en banc on April 21, 1998 is hereby NULLIFIED and SET ASIDE. No costs.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Quisumbing, Purisima, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.

Melo and Mendoza, JJ., join separate opinion of J. Vitug.

Vitug, J., see separate opinion.

Kapunan, J., see dissenting opinion.

Pardo, J ., took no part.

||| (ABS-CBN Broadcasting Corp. v. COMELEC, G.R. No. 133486, [January 28, 2000], 380 PHIL 780-804)

4. SWS v. COMELEC

EN BANC

[G.R. No. 147571. May 5, 2001.]

SOCIAL WEATHER STATIONS, INCORPORATED and KAMAHALAN PUBLISHING CORPORATION, doing business as MANILA STANDARD,petitioners, vs. COMMISSION ON ELECTIONS, respondent.

D E C I S I O N

MENDOZA, J p:

Petitioner, Social Weather Stations, Inc. (SWS), is a private non-stock, non-profit social research institution conducting surveys in various fields, including economics, politics, demography, and social development, and thereafter processing, analyzing, and publicly reporting the results thereof. On the other hand, petitioner Kamahalan Publishing Corporation publishes the Manila Standard, a newspaper of general circulation, which features newsworthy items of information including election surveys.

Petitioners brought this action for prohibition to enjoin the Commission on Elections from enforcing §5.4 of R.A. No. 9006 (Fair Election Act), which provides:

Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven (7) days before an election.

The term "election surveys" is defined in §5.1 of the law as follows:

Election surveys refer to the measurement of opinions and perceptions of the voters as regards a candidate's popularity, qualifications, platforms or a matter of public discussion in relation to the election, including voters' preference for candidates or publicly discussed issues during the campaign period (hereafter referred to as "Survey").

To implement §5.4, Resolution 3636, §24(h), dated March 1, 2001, of the COMELEC enjoins —

Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven (7) days before an election.

Petitioner SWS states that it wishes to conduct an election survey throughout the period of the elections both at the national and local levels and release to the media the results of such survey as well as publish them directly. Petitioner Kamahalan Publishing Corporation, on the other hand, states that it intends to publish election survey results up to the last day of the elections on May 14, 2001.

Petitioners argue that the restriction on the publication of election survey results constitutes a prior restraint on the exercise of freedom of speech without any clear and present danger to justify such restraint. They claim that SWS and other pollsters conducted and published the results of surveys prior to the 1992, 1995, and 1998 elections up to as close as two days before the election day without causing confusion among the voters and that there is neither empirical nor historical evidence to support the conclusion that there is an immediate and inevitable danger to the voting process posed by election surveys. They point out that no similar restriction is imposed on politicians from explaining their opinion or on newspapers or broadcast media from writing and publishing articles concerning political issues up to the day of the election. Consequently, they contend that there is no reason for ordinary voters to be denied access to the results of election surveys which are relatively objective. ETHaDC

Respondent Commission on Elections justifies the restrictions in §5.4 of R.A. No. 9006 as necessary to prevent the manipulation and corruption of the electoral process by unscrupulous and erroneous surveys just before the election. It contends that (1) the prohibition on the publication of election survey results during the period proscribed by law bears a rational connection to the objective of the law, i.e., the prevention of the debasement of the electoral process resulting from manipulated surveys, bandwagon effect, and absence of reply; (2) it is narrowly tailored to meet the "evils" sought to be prevented; and (3) the impairment of freedom of expression is minimal, the restriction being limited both in duration, i.e., the last 15 days before the national election and the last 7 days before a local election, and in scope as it does not prohibit election survey results but only require timeliness. Respondent claims that in National Press Club v. COMELEC, 1 a total ban on political advertisements, with candidates being merely

allocated broadcast time during the so-called COMELEC space or COMELEC hour, was upheld by this Court. In contrast, according to respondent, it states that the prohibition in §5.4 of R.A. No. 9006 is much more limited.

For reasons hereunder given, we hold that §5.4 of R.A. No. 9006 constitutes an unconstitutional abridgment of freedom of speech, expression, and the press.

To be sure, §5.4 lays a prior restraint on freedom of speech, expression, and the press by prohibiting the publication of election survey results affecting candidates within the prescribed periods of fifteen (15) days immediately preceding a national election and seven (7) days before a local election. Because of the preferred status of the constitutional rights of speech, expression, and the press, such a measure is vitiated by a weighty presumption of invalidity. 2 Indeed, "any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity. . . . The Government 'thus carries a heavy burden of showing justification for the enforcement of such restraint.'" 3 There is thus a reversal of the normal presumption of validity that inheres in every legislation.

Nor may it be argued that because of Art. IX-C, §4 of the Constitution, which gives the COMELEC supervisory power to regulate the enjoyment or utilization of franchise for the operation of media of communication, no presumption of invalidity attaches to a measure like §5.4. For as we have pointed out in sustaining the ban on media political advertisements, the grant of power to the COMELEC under Art. IX-C, §4 is limited to ensuring "equal opportunity, time, space, and the right to reply" as well as uniform and reasonable rates of charges for the use of such media facilities for "public information campaigns and forums among candidates." 4 This Court stated:

The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no presumption of invalidity arises in respect of exercises of supervisory or regulatory authority on the part of the Comelec for the purpose of securing equal opportunity among candidates for political office, although such supervision or regulation may result in some limitation of the rights of free speech and free press. 5

MR. JUSTICE KAPUNAN dissents. He rejects as inappropriate the test of clear and present danger for determining the validity of §5.4. Indeed, as has been pointed out in Osmeña v. COMELEC, 6 this test was originally formulated for the criminal law and only later appropriated for free speech cases. Hence, while it may be useful for determining the validity of laws dealing with inciting to sedition or incendiary speech, it may not be adequate for such regulations as the one in question. For such a test is concerned with questions of the gravity and imminence of the danger as basis for curtailing free speech, which is not the case of §5.4 and similar regulations.

Instead, MR. JUSTICE KAPUNAN purports to engage in a form of balancing by "weighing and balancing the circumstances to determine whether public interest [in free, orderly, honest, peaceful and credible elections] is served by

the regulation of the free enjoyment of the rights" (page 7). After canvassing the reasons for the prohibition, i.e., to prevent last-minute pressure on voters, the creation of bandwagon effect to favor candidates, misinformation, the "junking" of weak and "losing" candidates by their parties, and the form of election cheating called "dagdag-bawas" and invoking the State's power to supervise media of information during the election period (pages 11-16), the dissenting opinion simply concludes: ACTEHI

Viewed in the light of the legitimate and significant objectives of Section 5.4, it may be seen that its limiting impact on the rights of free speech and of the press is not unduly repressive or unreasonable. Indeed, it is a mere restriction, not an absolute prohibition, on the publication of election surveys. It is limited in duration; it applies only during the period when the voters are presumably contemplating whom they should elect and when they are most susceptible to such unwarranted persuasion. These surveys may be published thereafter. (Pages 17-18)

The dissent does not, however, show why, on balance, these considerations should outweigh the value of freedom of expression. Instead, reliance is placed on Art. IX-C, §4. As already stated, the purpose of Art. IX-C, §4 is to "ensure equal opportunity, time, and space and the right of reply, including reasonable, equal rates therefor for public information campaigns and forums among candidates." Hence the validity of the ban on media advertising. It is noteworthy that R.A. No. 9006, §14 has lifted the ban and now allows candidates to advertise their candidacies in print and broadcast media. Indeed, to sustain the ban on the publication of survey results would sanction the censorship of all speaking by candidates in an election on the ground that the usual bombasts and hyperbolic claims made during the campaigns can confuse voters and thus debase the electoral process.

In sum, the dissent has engaged only in a balancing at the margin. This form of ad hoc balancing predictably results in sustaining the challenged legislation and leaves freedom of speech, expression, and the press with little protection. For anyone who can bring a plausible justification forward can easily show a rational connection between the statute and a legitimate governmental purpose. In contrast, the balancing of interest undertaken by then Justice Castro in Gonzales v. COMELEC, 7 from which the dissent in this case takes its cue, was a strong one resulting in his conclusion that §50-B of R.A. No. 4880, which limited the period of election campaign and partisan political activity, was an unconstitutional abridgment of freedom of expression.

 

Nor can the ban on election surveys be justified on the ground that there are other countries — 78, according to the Solicitor General, while the dissent cites 28 — which similarly impose restrictions on the publication of election surveys. At best this survey is inconclusive. It is noteworthy that in the United States no restriction on the publication of election survey results exists. It cannot be argued that this is because the United States is a mature democracy. Neither are there laws imposing an embargo on survey results, even for a limited period, in

other countries. As pointed out by petitioners, the United Kingdom, Austria, Belgium, Denmark, Estonia, Finland, Iceland, Ireland, Latvia, Malta, Macedonia, the Netherlands, Norway, Sweden, and Ukraine, some of which are no older nor more mature than the Philippines in political development, do not restrict the publication of election survey results.

What test should then be employed to determine the constitutional validity of §5.4? The United States Supreme Court, through Chief Justice Warren, held in United States v. O'Brien:

[A] government regulation is sufficiently justified [1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms [of speech, expression and press] is no greater than is essential to the furtherance of that interest. 8

This is so far the most influential test for distinguishing content-based from content-neutral regulations and is said to have "become canonical in the review of such laws." 9 It is noteworthy that the O'Brien test has been applied by this Court in at least two cases. 10

Under this test, even if a law furthers an important or substantial governmental interest, it should be invalidated if such governmental interest is "not unrelated to the suppression of free expression." Moreover, even if the purpose is unrelated to the suppression of free speech, the law should nevertheless be invalidated if the restriction on freedom of expression is greater than is necessary to achieve the governmental purpose in question.

Our inquiry should accordingly focus on these two considerations as applied to §5.4.

First. Sec. 5.4 fails to meet criterion [3] of the O'Brien test because the causal connection of expression to the asserted governmental interest makes such interest "not unrelated to the suppression of free expression." By prohibiting the publication of election survey results because of the possibility that such publication might undermine the integrity of the election, §5.4 actually suppresses a whole class of expression, while allowing the expression of opinion concerning the same subject matter by newspaper columnists, radio and TV commentators, armchair theorists, and other opinion makers. In effect, §5.4 shows a bias for a particular subject matter, if not viewpoint, by preferring personal opinion to statistical results. The constitutional guarantee of freedom of expression means that "the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." 11 The inhibition of speech should be upheld only if the expression falls within one of the few unprotected categories dealt with in Chaplinsky v.New Hampshire, 12 thus:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These

include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. [S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

Nor is there justification for the prior restraint which §5.4 lays on protected speech. In Near v. Minnesota, 13 it was held:

[The] protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. . . . No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government . . . . ACcaET

Thus, contrary to the claim of the Solicitor General, the prohibition imposed by §5.4 cannot be justified on the ground that it is only for a limited period and is only incidental. The prohibition may be for a limited time, but the curtailment of the right of expression is direct, absolute, and substantial. It constitutes a total suppression of a category of speech and is not made less so because it is only for a period of fifteen (15) days immediately before a national election and seven (7) days immediately before a local election.

This sufficiently distinguishes §5.4 from R.A. No. 6646, §11(b), which this Court found to be valid in National Press Club v. COMELEC 14 and Osmeña v.COMELEC. 15 For the ban imposed by R.A. No. 6646, §11(b) is not only authorized by a specific constitutional provision, 16 but it also provided an alternative so that, as this Court pointed out in Osmeña, there was actually no ban but only a substitution of media advertisements by the COMELEC space and COMELEC hour.

Second. Even if the governmental interest sought to be promoted is unrelated to the suppression of speech and the resulting restriction of free expression is only incidental, §5.4 nonetheless fails to meet criterion [4] of the O'Brien test, namely, that the restriction be not greater than is necessary to further the governmental interest. As already stated, §5.4 aims at the prevention of last-minute pressure on voters, the creation of bandwagon effect, "junking" of weak or "losing" candidates, and resort to the form of election cheating called "dagdag-bawas." Praiseworthy as these aims of the regulation might be, they cannot be attained at the sacrifice of the fundamental right of expression, when such aim can be more narrowly pursued by punishing unlawful acts, rather than speech because of apprehension that such speech creates the danger of such evils. Thus, under the Administrative Code of 1987, 17 the COMELEC is given the power:

To stop any illegal activity, or confiscate, tear down, and stop any unlawful, libelous, misleading or false election propaganda, after due notice and hearing.

This is surely a less restrictive means than the prohibition contained in §5.4. Pursuant to this power of the COMELEC, it can confiscate bogus survey results calculated to mislead voters. Candidates can have their own surveys conducted. No right of reply can be invoked by others. No principle of equality is involved. It is a free market to which each candidate brings his ideas. As for the purpose of the law to prevent bandwagon effects, it is doubtful whether the Government can deal with this natural-enough tendency of some voters. Some voters want to be identified with the "winners." Some are susceptible to the herd mentality. Can these be legitimately prohibited by suppressing the publication of survey results which are a form of expression? It has been held that "[mere] legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions." 18

To summarize then, we hold that §5.4 is invalid because (1) it imposes a prior restraint on the freedom of expression, (2) it is a direct and total suppression of a category of expression even though such suppression is only for a limited period, and (3) the governmental interest sought to be promoted can be achieved by means other than the suppression of freedom of expression.

On the other hand, the COMELEC contends that under Art. IX-A, §7 of the Constitution, its decisions, orders, or resolutions may be reviewed by this Court only by certiorari. The flaws in this argument is that it assumes that its Resolution 3636, dated March 1, 2001 is a "decision, order, or resolution" within the meaning of Art. IX-A, §7. Indeed, counsel for COMELEC maintains that Resolution 3636 was "rendered" by the Commission. However, the Resolution does not purport to adjudicate the right of any party. It is not an exercise by the COMELEC of its adjudicatory power to settle the claims of parties. To the contrary, Resolution 3636 clearly states that it is promulgated to implement the provisions of R.A. No. 9006. Hence, there is no basis for the COMELEC's claim that this petition for prohibition is inappropriate. Prohibition has been found appropriate for testing the constitutionality of various election laws, rules, and regulations. 19

WHEREFORE, the petition for prohibition is GRANTED and §5.4 of R.A. No. 9006 and §24(h) of COMELEC Resolution 3636, dated March 1, 2001, are declared unconstitutional.

SO ORDERED.

||| (Social Weather Stations, Inc. v. COMELEC, G.R. No. 147571, [May 5, 2001], 409 PHIL 571-617)

5. CHAVEZ v. COMELEC

EN BANC

[G.R. No. 162777. August 31, 2004.]

FRANCISCO I. CHAVEZ, petitioner, vs. COMMISSION ON ELECTIONS, represented by its Chairman, BENJAMIN S. ABALOS, ESMERALDA AMORA-LADRA, in her capacity as Acting Director IV, National Capital Judicial Region, Commission on Elections, and the SOLICITOR GENERAL, respondents.

D E C I S I O N

AZCUNA, J p:

In this petition for prohibition with prayer for the issuance of a writ of preliminary injunction, Francisco I. Chavez stands as a taxpayer and a citizen asking this Court to enjoin the Commission on Elections (COMELEC) from enforcing Section 32 of its Resolution No. 6520, dated January 6, 2004. The assailed provision is, as follows:

Section 32. All propaganda materials such as posters, streamers, stickers or paintings on walls and other materials showing the picture, image, or name of a person, and all advertisements on print, in radio or on television showing the image or mentioning the name of a person, who subsequent to the placement or display thereof becomes a candidate for public office shall be immediately removed by said candidate and radio station, print media or television station within 3 days after the effectivity of these implementing rules; otherwise, he and said radio station, print media or television station shall be presumed to have conducted premature campaigning in violation of Section 80 of the Omnibus Election Code.

Petitioner Chavez, on various dates, entered into formal agreements with certain establishments to endorse their products. On August 18, 2003, he authorized a certain Andrew So to use his name and image for 96° North, a clothing company. Petitioner also signed Endorsement Agreements with Konka International Plastics Manufacturing Corporation and another corporation involved in the amusement and video games business, G-Box. These last two agreements were entered into on October 14, 2003 and November 10, 2003, respectively. Pursuant to these agreements, three billboards were set up along the Balintawak Interchange of the North Expressway. One billboard showed petitioner promoting the plastic products of Konka International Plastics Manufacturing Corporation, and the other two showed petitioner endorsing the clothes of 96° North. One more billboard was set up along Roxas Boulevard showing petitioner promoting the game and amusement parlors of G-Box.

On December 30, 2003, however, petitioner filed his certificate of candidacy for the position of Senator under Alyansa ng Pag-asa, a tripartite alliance of three political parties: PROMDI, REPORMA, and Aksyon Demokratiko.

On January 6, 2004, respondent COMELEC issued Resolution No. 6520, which contained Section 32, the provision assailed herein. On January 21, 2004, petitioner was directed to comply with the said provision by the COMELEC's Law Department. He replied, on January 29, 2004, by requesting the COMELEC

that he be informed as to how he may have violated the assailed provision. He sent another letter dated February 23, 2004, this time asking the COMELEC that he be exempted from the application of Section 32, considering that the billboards adverted to are mere product endorsements and cannot be construed as paraphernalia for premature campaigning under the rules. IEHTaA

The COMELEC answered petitioner's request by issuing another letter, dated February 27, 2004, wherein it ordered him to remove or cause the removal of the billboards, or to cover them from public view pending the approval of his request.

Feeling aggrieved, petitioner Chavez asks this Court that the COMELEC be enjoined from enforcing the assailed provision. He urges this Court to declare the assailed provision unconstitutional as the same is allegedly (1) a gross violation of the non-impairment clause; (2) an invalid exercise of police power; (3) in the nature of an ex-post facto law; (4) contrary to the Fair Elections Act; and (5) invalid due to overbreadth.

Is Section 32 of COMELEC Resolution No. 6520 an invalid exercise of police power? Petitioner argues that the billboards, while they exhibit his name and image, do not at all announce his candidacy for any public office nor solicit support for such candidacy from the electorate. They are, he claims, mere product endorsements and not election propaganda. Prohibiting, therefore, their exhibition to the public is not within the scope of the powers of the COMELEC, he concludes.

This Court takes a contrary view. Police power, as an inherent attribute of sovereignty, is the power to prescribe regulations to promote the health, morals, peace, education, good order, or safety, and the general welfare of the people. 1 To determine the validity of a police measure, two questions must be asked: (1) Does the interest of the public in general, as distinguished from those of a particular class, require the exercise of police power? and (2) Are the means employed reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals?

A close examination of the assailed provision reveals that its primary objectives are to prohibit premature campaigning and to level the playing field for candidates of public office, to equalize the situation between popular or rich candidates, on one hand, and lesser-known or poorer candidates, on the other, by preventing the former from enjoying undue advantage in exposure and publicity on account of their resources and popularity. The latter is a valid reason for the exercise of police power as held in National Press Club v. COMELEC, 2 wherein the petitioners questioned the constitutionality of Section 11(b) of Republic Act No. 6646, which prohibited the sale or donation of print space and air time "for campaigning or other political purposes," except to the COMELEC. The obvious intention of this provision is to equalize, as far as practicable, the situations of rich and poor candidates by preventing the former from enjoying the undue advantage offered by huge campaign "war chests." This Court ruled therein that this objective is of special importance and urgency in a country which, like ours, is characterized by extreme disparity in income distribution between the economic elite and the rest of society, and by the

prevalence of poverty, with so many of our population falling below the poverty line.

Moreover, petitioner cannot claim that the subject billboards are purely product endorsements and do not announce nor solicit any support for his candidacy. Under the Omnibus Election Code, "election campaign" or "partisan political activity" is defined as an act designed to promote the election or defeat of a particular candidate or candidates to a public office. Activities included under this definition are:

(1) Forming organizations, associations, clubs, committees, or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate;

(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate;

(3) Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate for public office;

(4) Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate; or

(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate. 3 (emphasis ours)

It is true that when petitioner entered into the contracts or agreements to endorse certain products, he acted as a private individual and had all the right to lend his name and image to these products. However, when he filed his certificate of candidacy for Senator, the billboards featuring his name and image assumed partisan political character because the same indirectly promoted his candidacy. Therefore, the COMELEC was acting well within its scope of powers when it required petitioner to discontinue the display of the subject billboards. If the subject billboards were to be allowed, candidates for public office whose name and image are used to advertise commercial products would have more opportunity to make themselves known to the electorate, to the disadvantage of other candidates who do not have the same chance of lending their faces and names to endorse popular commercial products as image models. Similarly, an individual intending to run for public office within the next few months, could pay private corporations to use him as their image model with the intention of familiarizing the public with his name and image even before the start of the campaign period. This, without a doubt, would be a circumvention of the rule against premature campaigning: HCSEcI

Sec. 80. Election campaign or partisan political activity outside campaign period. — It shall be unlawful for any person, whether or not a voter or candidate, or for any party, or association of persons, to engage in an election campaign or partisan political activity except during the campaign period . . . 4

Article IX(C)(4) of the Constitution provides:

Sec. 4. The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections.

Under the abovementioned Constitutional provision, the COMELEC is expressly authorized to supervise or regulate the enjoyment or utilization of all media communication or information to ensure equal opportunity, time, and space. All these are aimed at the holding of free, orderly, honest, peaceful, and credible elections.

 

Neither is Section 32 of Resolution No. 6520 a gross violation of the non-impairment clause. The non-impairment clause of the Constitution must yield to the loftier purposes targeted by the Government. 5 Equal opportunity to proffer oneself for public office, without regard to the level of financial resources one may have at his disposal, is indeed of vital interest to the public. The State has the duty to enact and implement rules to safeguard this interest. Time and again, this Court has said that contracts affecting public interest contain an implied reservation of the police power as a postulate of the existing legal order. This power can be activated at anytime to change the provisions of the contract, or even abrogate it entirely, for the promotion or protection of the general welfare. Such an act will not militate against the impairment clause, which is subject to and limited by the paramount police power. 6

Furthermore, this Court notes that the very contracts entered into by petitioner provide that the endorser's photograph and image shall be utilized in whatever form, mode and manner "in keeping with norms of decency, reasonableness, morals and law;" 7 and in whatever form, mode and manner not contrary to law and norms of decency," 8 and "in whatever form, mode and manner in keeping with norms of decency, reasonableness, morals and law."9

Petitioner also claims that Section 32 of Resolution No. 6520 is in the nature of an ex post facto law. He urges this Court to believe that the assailed provision makes an individual criminally liable for an election offense for not removing such advertisement, even if at the time the said advertisement was exhibited, the same was clearly legal. Hence, it makes a person, whose name or image is featured in any such advertisement, liable for premature campaigning under the Omnibus Election Code. 10 A close scrutiny of this rationale, however, demonstrates its lack of persuasiveness. Section 32, although not penal in nature, defines an offense and prescribes a penalty for said offense. Laws of this nature must operate prospectively, except when they are favorable to

the accused. It should be noted, however, that the offense defined in the assailed provision is not the putting up of "propaganda materials such as posters, streamers, stickers or paintings on walls and other materials showing the picture, image or name of a person, and all advertisements on print, in radio or on television showing the image or mentioning the name of a person, who subsequent to the placement or display thereof becomes a candidate for public office." Nor does it prohibit or consider an offense the entering of contracts for such propaganda materials by an individual who subsequently becomes a candidate for public office. One definitely does not commit an offense by entering into a contract with private parties to use his name and image to endorse certain products prior to his becoming a candidate for public office. The offense, as expressly prescribed in the assailed provision, is the non-removal of the described propaganda materials three (3) days after the effectivity of COMELEC Resolution No. 6520. If the candidate for public office fails to remove such propaganda materials after the given period, he shall be liable under Section 80 of the Omnibus Election Code for premature campaigning. Indeed, nowhere is it indicated in the assailed provision that it shall operate retroactively. There is, therefore, no ex post facto law in this case.

Next, petitioner urges that Section 32 is a violation of the Fair Elections Act. According to him, under this law, billboards are already permitted as lawful election propaganda. He claims, therefore, that the COMELEC, in effectively prohibiting the use of billboards as a form of election propaganda through the assailed provision, violated the Fair Elections Act. Petitioner's argument is not tenable. The Solicitor General rightly points out that the assailed provision does not prohibit billboards as lawful election propaganda. It only regulates their use to prevent premature campaigning and to equalize, as much as practicable, the situation of all candidates by preventing popular and rich candidates from gaining undue advantage in exposure and publicity on account of their resources and popularity. 11 Moreover, by regulating the use of such election propaganda materials, the COMELEC is merely doing its duty under the law. Under Sections 3 and 13 of the Fair Elections Act, all election propaganda are subject to the supervision and regulation by the COMELEC:

SECTION 3.  Lawful Election Propaganda. — Election propaganda, whether on television, cable television radio, newspapers or any other medium is hereby allowed for all registered political parties, national, regional, sectoral parties or organizations participating under the party list elections and for all bona fide candidates seeking national and local elective positions subject to the limitation on authorized expenses of candidates and political parties observance of truth in advertising and to the supervision and regulation by the Commission on Elections (COMELEC).

For the purpose of this Act, lawful election propaganda shall include:

3.1. Pamphlets, leaflets, cards, decals, stickers or other written or printed materials the size of which does not exceed eight and one half inches in width and fourteen inches in length;

3.2. Handwritten or printed letters urging voters to vote for or against any particular political party or candidate for public office;

3.3. Cloth, paper or cardboard posters whether framed or posted, with an area not exceeding two (2) feet by three (3) feet, except that, at the site and on the occasion of a public meeting or rally, or in announcing the holding of said meeting or rally, streamers not exceeding three (3) feet by eight (8) feet in size, shall be allowed: Provided, That said streamers may be displayed five (5) days before the date of the meeting or rally and shall be removed within twenty-four (24) hours after said meeting or rally; DaIACS

3.4. Paid advertisements in print or broadcast media: Provided, That the advertisements shall follow the requirements set forth in Section 4 of this Act; and

3.5. All other forms of election propaganda not prohibited by the Omnibus Election Code or this Act.

xxx xxx xxx

SECTION 13. Authority of the COMELEC to Promulgate Rules; Election Offenses. — The COMELEC shall promulgate and furnish all political parties and candidates and the mass media entities the rules and regulations for the implementation of this Act, consistent with the criteria established in Article IX-C, Section 4 of the Constitution and Section 86 of the Omnibus Election Code (Batas Pambansa Blg. 881).

Rules and regulations promulgated by the COMELEC under and by authority of this Section shall take effect on the seventh day after their publication in at least two (2) daily newspapers of general circulation. Prior to effectivity of said rules and regulations, no political advertisement or propaganda for or against any candidate or political party shall be published or broadcast through mass media.

Violation of this Act and the rules and regulations of the COMELEC issued to implement this Act shall be an election offense punishable under the first and second paragraphs of Section 264 of the Omnibus Election Code (Batas Pambansa Blg. 881).

Finally, petitioner contends that Section 32 of COMELEC Resolution No. 6520 is invalid because of overbreadth.

A statute or regulation is considered void for overbreadth when it offends the constitutional principle that a governmental purpose to control or prevent activities constitutionally subject to State regulations may not be achieved by means that sweep unnecessarily broadly and thereby invade the area of protected freedoms. 12

The provision in question is limited in its operation both as to time and scope. It only disallows the continued display of a person's propaganda materials and advertisements after he has filed a certificate of candidacy and before the start of the campaign period. Said materials and advertisements must also show his name and image.

There is no blanket prohibition of the use of propaganda materials and advertisements. During the campaign period, these may be used subject only to reasonable limitations necessary and incidental to achieving the purpose of preventing premature campaigning and promoting equality of opportunities among all candidates.

The provision, therefore, is not invalid on the ground of overbreadth.

WHEREFORE, the petition is DISMISSED and Section 32 of COMELEC Resolution No. 6520 is declared valid and constitutional. The prayer for a Temporary Restraining Order and/or a Writ of Preliminary Injunction is hereby DENIED. No costs.

SO ORDERED.

||| (Chavez v. COMELEC, G.R. No. 162777, [August 31, 2004])

RA. 7166 SYNCHRONIZED ELECTIONS LAW OF 1991

SECTION 13. Authorized Expenses of Candidates and Political Parties. — The aggegate amount that a candidate or registered political party may spend for election campaign shall be as follows:

(a) For candidates. — Ten pesos (P10.00) for President and Vice-President; and for other candidates, Three Pesos (P3.00) for every voter currently registered in the constituency where he filed his certificate of candidacy: Provided, That, a candidate without any political party and without support from any political party may be allowed to spend Five Pesos (P5.00) for every such voter; and

(b) For political parties. — Five pesos (P5.00) for every voter currently registered in the constituency or constituencies where it has official candidates.

Any provision of law to the contrary notwithstanding, any contribution in cash or in kind to any candidate or political party or coalition of parties for campaign purposes, duly reported to the Commission shall not be subject to the payment of any gift tax.

SECTION 14. Statement of Contributions and Expenditures: Effect of Failure to File Statement. — Every candidate and treasurer of the political party shall, within thirty (30) days after the day of the election, file in duplicate with the offices of the Commission the full, true and itemized statement of all contributions and expenditures in connection with the election.

No person elected to any public office shall enter upon the duties of his office until he has filed the statement of contributions and expenditures herein required.

The same prohibition shall apply if the political party which nominated the winning candidate fails to file the statement required herein within the period prescribed by this Act.

Except candidates for elective barangay office, failure to file the statements or reports in connection with electoral contributions and expenditures are required herein shall constitute an administrative offense for which the offenders shall be liable to pay an administrative fine ranging from One thousand pesos (P1,000.00) to Thirty thousand pesos (P30,000.00), in the discretion of the Commission.

The fine shall be paid within thirty (30) days from receipt of notice of such failure; otherwise, it shall be enforceable by a writ of execution issued by the Commission against the properties of the offender.

It shall be the duty of every city or municipal election registrar to advise in writing, by personal delivery or registered mail, within five (5) days from the date of election all candidates residing in his jurisdiction to comply with their obligation to file their statements of contributions and expenditures.

For the commission of a second or subsequent offense under this section, the administrative fine shall be from Two thousand pesos (P2,000.00) to Sixty thousand pesos (P60,000.00), in the discretion of the Commission. In addition, the offender shall be subject to perpetual disqualification to hold public office.

||| (Synchronized Elections Law of 1991, REPUBLIC ACT NO. 7166, [1991])

CASE:

6. PILAR v. COMELEC

EN BANC

[G.R. No. 115245. July 11, 1995.]

JUANITO C. PILAR, petitioner, vs. COMMISSION ON ELECTION, respondent.

Diosdado G. Gozar for petitioner.

The Solicitor General for respondent.

SYLLABUS

1. ELECTION LAW; STATEMENT OF CONTRIBUTION AND EXPENDITURE; THE TERM "EVERY CANDIDATE" MAKES NO DISTINCTION OR QUALIFICATION. — Section 14 of R.A. No. 7166 states that "every candidate" has the obligation to file his statement of contributions and expenditures. Well-recognized is the rule that where the law does not distinguish, courts should not distinguish. Ubi lex non distinguit nec nos distinguere debemos. No distinction is to be made in the application of a law where none is indicated. In the case at bench, as the law makes no distinction or qualification as to whether the candidate pursued his candidacy or withdrew the same, the term "every candidate" must be deemed to refer not only to a candidate who pursued his campaign, but also to one who withdrew his candidacy. The COMELEC, the body tasked with the enforcement and administration of all laws and

regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall (The Constitution of the Republic of the Philippines, Art. IX(C), Sec. 2[1]), issued Resolution No. 2348 in implementation or interpretation of the provisions of Republic Act No. 7166 on election contributions and expenditures. Section 13 of Resolution No. 2348 categorically refers to "all candidates who filed their certificates of candidacy."

2. ID.; ID.; MANDATORY. — Section 14 of the law uses the word "shall." As a general rule, the use of the word "shall" in a statute implies that the statute is mandatory, and imposes a duty which may be enforced, particularly if public policy is in favor of this meaning or where public interest is involved. We apply the general rule.

3. ID.; ID.; ID.; REASON THEREFOR. — The state has an interest in seeing that the electoral process is clean, and ultimately expressive of the true will of the electorate. One way of attaining such objective is to pass legislation regulating contributions and expenditures of candidates, and compelling the publication of the same. Admittedly, contributions and expenditures are made for the purpose of influencing the results of the elections. Thus, laws and regulations prescribe what contributions are prohibited, or unlawful, and what expenditures are authorized or lawful. Such statutes are not peculiar to the Philippines. In "corrupt and illegal practices acts" of several states in the United States, as well as in federal statutes, expenditures of candidates are regulated by requiring the filing of statements of expenses and by limiting the amount of money that may be spent by a candidate. Some statutes also regulate the solicitation of campaign contributions. These laws are designed to compel publicity with respect to matters contained in the statements and to prevent, by such publicity, the improper use of moneys devoted by candidates to the furtherance of their ambitions. These statutes also enable voters to evaluate the influences exerted on behalf of candidates by the contributors, and to furnish evidence of corrupt practices for annulment of elections. State courts have also ruled that such provisions are mandatory as to the requirement of filing. It is not improbable that a candidate who withdrew his candidate has accepted contributions and incurred expenditures, even in the short span of his campaign. The evil sought to be prevented by the law is not all too remote. It is noteworthy that Resolution No. 2348 even contemplates the situation where a candidate may not have received any contribution or made any expenditure. Such a candidate is not excused from filing a statement, and is in fact required to file a statement of that effect. Under Section 15 of Resolution No. 2348, it is provided that "[i]f a candidate or treasurer of the party has received no contribution, made no expenditure, or has no pending obligation, the statement shall reflect such fact."

4. ID.; ID.; DUTY THERETO, NOT EXTINGUISHED BY CANDIDATES WITHDRAWAL OF CANDIDACY. — We note that under the fourth paragraph of Section 73 of the B.P. Blg. 881 or the Omnibus Election Code of the Philippines, it is provided that "[t]he filing or withdrawal of certificate of candidacy shall not affect whatever civil, criminal or administrative liabilities which a candidate may have incurred."

Petitioner's withdrawal of his candidacy did not extinguish his liability for the administrative fine.

D E C I S I O N

QUIASON, J p:

This is a petition for certiorari under Rule 65 of the Revised Rules of Court assailing the Resolution dated April 28, 1994 of the Commission on Elections (COMELEC) in UND No. 94-040.

I

On March 22, 1992, petitioner Juanito C. Pilar filed his certificate of candidacy for the position of member of the Sangguniang Panlalawigan of the Province of Isabela.

On March 25, 1992, petitioner withdrew his certificate of candidacy.

In M.R. Nos. 93-2654 and 94-0065 dated November 3, 1993 and February 13, 1994 respectively, the COMELEC imposed upon petitioner the fine of Ten Thousand Pesos (P10,000.00) for failure to file his statement of contributions and expenditures.

In M.R. No. 94-0594 dated February 24, 1994, the COMELEC denied the motion for reconsideration of petitioner and deemed final M. R. Nos. 93-2654 and 94-0065 (Rollo, p. 14).

Petitioner went to the COMELEC En Banc (UND No. 94-040), which denied the petition in a Resolution dated April 28, 1994 (Rollo, pp. 10-13).

Hence, this petition for certiorari.

We dismiss the petition.

II

Section 14 of R.A. No. 7166 entitled "An Act Providing for Synchronized National and Local Elections and for Electoral Reforms, Authorizing Appropriations Therefore, and for Other Purposes" provides as follows:

"Statement of Contributions and Expenditures: Effect of Failure to File Statement. Every candidate and treasurer of the political party shall, within thirty (30) days after the day of the election, file in duplicate with the offices of the Commission the full, true and itemized statement of all contributions and expenditures in connection with the election.

"No person elected to any public office shall enter upon the duties of his office until he has filed the statement of contributions and expenditures herein required.

"The same prohibition shall apply if the political party which nominated the winning candidate fails to file the statement required herein within the period prescribed by this Act.

"Except candidates for elective barangay office, failure to file the statements or reports in connection with electoral contributions and expenditures as required herein shall

constitute an administrative offense for which the offenders shall be liable to pay an administrative fine ranging from One Thousand Pesos (P1,000.00) to Thirty Thousand Pesos (P30,000.00), in the discretion of the Commission.

"The fine shall be paid within thirty (30) days from receipt of notice of such failure; otherwise, it shall be enforceable by a writ of execution issued by the Commission against the properties of the offender.

"It shall be the duty of every city or municipal election registrar to advise in writing, by personal delivery or registered mail, within five (5) days from the date of election all candidates residing in his jurisdiction to comply with their obligation to file their statements of contributions and expenditures.

"For the commission of a second or subsequent offense under this Section, the administrative fine shall be from Two Thousand Pesos (P2,000.00) to Sixty Thousand Pesos (P60,000.00), in the discretion of the Commission. In addition, the offender shall be subject to perpetual disqualification to hold public office" (Emphasis supplied).

To implement the provisions of law relative to election contributions and expenditures, the COMELEC promulgated on January 13, 1992Resolution No. 2348 (Re: Rules and Regulations Governing Electoral Contributions and Expenditures in Connection with the National and Local Elections on May 11, 1992). The pertinent provisions of said Resolution are:

"Sec. 13 Statement of contributions and expenditures: Reminders to candidates to file statements. Within five (5) days from the day of the election, the Law Department of the Commission, the regional election director of the National Capital Region, the provincial election supervisors and the election registrars shall advise in writing by personal delivery or registered mail all candidates who filed their certificates of candidacy with them to comply with their obligation to file their statements of contribution and expenditures in connection with the elections. Every election registrar shall also advise all candidates residing in his jurisdiction to comply with said obligation." (Emphasis supplied)

"Sec. 17. Effect of failure to file statement. (a) No person elected to any public office shall enter upon the duties of his office until he has filed the statement of contributions and expenditures herein required.

"The same prohibition shall apply if the political party which nominated the winning candidates fails to file the statement required within the period prescribed by law.

"(b) Except candidates for elective barangay office, failure to file statements or reports in connection with the electoral contributions and expenditures as required herein shall constitute an administrative offense for which the offenders shall be liable to pay an administrative fine ranging from One Thousand Pesos (P1,000.00) to Thirty Thousand Pesos (P30,000.00), in the discretion of the Commission.

"The fine shall be paid within thirty (30) days from receipt of notice of such failure; otherwise, it shall be enforceable by a writ of execution issued by the Commission against the properties of the offender.

"For the commission of a second or subsequent offense under this section, the administrative fine shall be from Two Thousand Pesos (P2,000.00) to Sixty Thousand Pesos (P60,000.00), in the discretion of the Commission. In addition, the offender shall be subject to perpetual disqualification to hold public office."

 

Petitioner argues that he cannot be held liable for failure to file a statement of contributions and expenditures because he was a "non-candidate," having withdraw his certificate of candidacy three days after its filing. Petitioner posits that "it is . . . clear from the law that the candidate must have entered the political contest, and should have either won or lost." (Rollo, p. 39)

Petitioner's argument is without merit.

Section 14 of R. A. No. 7166 states that "every candidate" has the obligation to file his statement of contributions and expenditures.

Well-recognized is the rule that where the law does not distinguished, courts should not distinguished. Ubi lex non distinguit nec nos distinguere debemos (Philippine British Assurance Co. Inc. v. Intermediate Appellate Court, 150 SCRA 520 [1987]; cf. Olfato v. Commission on Election, 103 SCRA 741 [1981]). No distinction is to be made in the application of a law where none is indicated (Lo Cham v. Ocampo, 77 Phil. 636 [1946]).

In the case at bench, as the law makes no distinction or qualification as to whether the candidate pursued his candidacy or withdrew the same, the term "every candidate" must be deemed to refer not only to a candidate who pursued his campaign, but also to one who withdrew his candidacy.

The COMELEC, the body tasked with the enforcement and administration of all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall (The Constitution of the Republic of the Philippines, Art. IX(C), Sec. 2[1]), issued Resolution No. 2348 in implementation or interpretation of the provisions of Republic Act No. 7166 on election contributions and expenditures. Section 13 of Resolution No. 2348 categorically refers to "all candidates who filed their certificates of candidacy."

Furthermore, Section 14 of the law uses the word "shall." As a general rule, the use the word "shall" in a statute implies that the statute is mandatory, and imposes a duty which may be enforced, particularly if public policy is in favor of this meaning or where public interest is involved. We apply the general rule (Baranda v. Gustilo, 165 SCRA 757 [1988]; Diokno v. Rehabilitation Finance Corporation, 91 Phil. 608 [1952]).

The state has an interest in seeing that the electoral process is clean, and ultimately expressive of the true will of the electorate. One way of attaining such objective is t to pass legislation regulating contributions and expenditures of candidates, and compelling the publication of the same. Admittedly, contributions and expenditures are made for the purpose of influencing the results of the elections (B.P. Blg. 881, Sec. 94; Resolution No. 2348, Sec. 1). Thus, laws and regulations prescribe what contributions are prohibited (B.P. Blg. 881, Sec. 95; Resolution No. 2348, Sec. 4), or unlawful (B.P. Blg. 881, Sec. 96), and what expenditures are authorized (B.P. Blg. 881, Sec. 102; R.A. No. 7166, Sec. 13; Resolution No. 2348, Sec. 7) or lawful (Resolution No. 2348, Sec. 8).

Such statutes are not peculiar to the Philippines. In "corrupt and illegal practices acts" of several states in the United States, as well as in federal statutes, expenditures of candidates are regulated by requiring the filing of statements of expenses and by limiting the amount of money that may be spent by a candidate. Some statutes also regulate the solicitation of campaign contributions (26 Am Jur 2d, Elections S 287). These laws are designed to compel publicity with respect to matters contained in the statements and to prevent, by such publicity, the improper use of moneys devoted by candidates to the furtherance of their ambitions (26 Am Jur 2d, Elections S 289). These statutes also enable voters to evaluate the influences exerted on behalf of candidates by the contributors, and to furnish evidence of corrupt practices for annulment of elections (Sparkman v. Saylor [Court of Appeals of Kentucky], 180 Ky. 263, 202 S.W. 649 [1918]).

State courts have also ruled that such provisions are mandatory as to the requirement of filing (State ex rel. Butchofsky v. Crawford [Court of Civil Appeals of Texas], 269 S. W. 2d 536 [1954]; Best v. Sidebottom, 270 Ky. 423, 109 S.W. 2d 826 [1937]; Sparkman v. Saylor, supra.)

It is not improbable that a candidate who withdrew his candidacy has accepted contributions and incurred expenditures, even in the short span of his campaign. The evil sought to be prevented by the law is not all too remote.

It is noteworthy that Resolution No. 2348 even contemplates the situation where a candidate may not have received any contribution or made any expenditure. Such a candidate is not excused from filing a statement, and is in fact required to file a statement to that effect. Under Section 15 of Resolution No. 2348, it is provided that "[i]f a candidate or treasurer of the party has received no contribution, made no expenditure, or has no pending obligation, the statement shall reflect such fact."

Lastly, we note that under the fourth paragraph of Section 73 of the B.P. Blg. 881 or the Omnibus Election Code of the Philippines, it is provided that "[t]he filing or withdrawal of certificate of candidacy shall not affect whatever civil, criminal or administrative liabilities which a candidate may have incurred." Petitioner's withdrawal of his candidacy did not extinguish his liability for the administrative fine.

WHEREFORE, the petition is DISMISSED.

||| (Pilar v. COMELEC, G.R. No. 115245, [July 11, 1995], 315 PHIL 851-860)

ARTICLE XV

Watchers

SECTION 178. Official watchers of candidates.

— Every registered political party, coalition of political parties and every independent candidate shall each be entitled to one watcher in every polling place.

No person shall be appointed watcher unless he is a qualified voter of the city or municipality, of good reputation and shall not have been convicted by final judgment of any election offense or of any other crime, must know how to read and write Pilipino, English, Spanish or any of the prevailing local dialects, and not related within the fourth civil degree of consanguinity or affinity to the chairman or any member of the board of election inspectors in the polling place where he seeks appointment as a watcher.

Each candidate, political party or coalition of political parties shall designate in every province, highly urbanized city or district in the Metropolitan Manila area, a representative authorized to appoint watchers, furnishing the provincial election supervisor or the city election registrar, as the case may be, the names of such representatives. The provincial election supervisors shall furnish the municipal election registrars and election registrars of component cities with the list of such representatives.

In the case of Metropolitan Manila, the designation of the persons authorized to appoint watchers shall be filed with the Commission, which shall furnish the list of such representatives to the respective city and municipal election registrars. (Sec. 26, BP 697, with amendments) cdt

SECTION 179. Rights and duties of watchers.

— Upon entering the polling place, the watchers shall present and deliver to the chairman of the board of election inspectors his appointment, and forthwith, his name shall be recorded in the minutes with a notation under his signature that he is not disqualified under the second paragraph of Section 178. The appointments of the watchers shall bear the personal signature or the facsimile signature of the candidate or the duly authorized representatives of the political party or coalition of political parties who appointed him or of organizations authorized by the Commission under Section 180. The watchers shall have the right to stay in the space reserved for them inside the polling place. They shall have the right to witness and inform themselves of the proceedings of the board of election inspectors, including its proceedings during the registration of voters, to take notes of what they may see or hear, to take photographs of the proceedings and incidents, if any, during the counting of votes, as well as of election returns, tally boards and ballot boxes, to file a protest against any irregularity or violation of law which they believe may have

been committed by the board of election inspectors or by any of its members or by any persons, to obtain from the board of election inspectors a certificate as to the filing of such protest and/or of the resolution thereon, to read the ballots after they shall have been read by the chairman, as well as the election returns after they shall have been completed and signed by the members of the board of election inspectors without touching them, but they shall not speak to any member of the board of election inspectors, or to any voter, or among themselves, in such a manner as would distract the proceedings, and to be furnished with a certificate of the number of votes in words and figures cast for each candidate, duly signed and thumbmarked by the chairman and all the members of the board of election inspectors. Refusal of the chairman and the members of the board of election inspectors to sign and furnish such certificate shall constitute an election offense and shall be penalized under this Code. (Sec. 28, BP 697)

SECTION 180. Other watchers.

— The duly accredited citizens arm of the Commission shall be entitled to appoint a watcher in every polling place. Other civic, religious, professional, business, service, youth and any other similar organizations, with prior authority of the Commission, shall be entitled collectively to appoint one watcher in every polling place. (Sec. 27, BP 697 with amendments)

ELECTION PROPER

CASTING OF VOTES

SECTION 196. Preparation of ballots for illiterate and disabled persons.

A voter who is illiterate or physically unable to prepare the ballot by himself may be assisted in the preparation of his ballot by a relative, by affinity or consanguinity within the fourth civil degree or if he has none, by any person of his confidence who belong to the same household or any member of the board of election inspectors, except the two party members:

Provided, That no voter shall be allowed to vote as illiterate or physically disabled unless it is so indicated in his registration record: 

Provided, further, That in no case shall an assistor assist more than three times except the non-party members of the board of election inspectors.

The person thus chosen shall prepare the ballot for the illiterate or disabled voter inside the voting booth.

The person assisting shall bind himself in a formal document under oath to fill out the ballot strictly in accordance with the instructions of the voter and not to reveal the contents of the ballot prepared by him.

Violation of this provision shall constitute an election offense. (Sec. 141, 1978 EC)

AUTHENTICATION OF BALLOTS (RA 7166)

Section 24. Signature of Chairman at the Back of Every Ballot.

In every case before delivering an official ballot to the voter, the chairman of the board of election inspectors shall, in the presence of the voter, affix his signature at the back thereof. Failure to so authenticate shall be noted in the minutes of the board of election inspectors and shall constitute an election offense punishable under Section 263 and 264 of the Omnibus Election Code.

CASE:

LIBANAN v. HRET

EN BANC

[G.R. No. 129783. December 22, 1997.]

MARCELINO C. LIBANAN, petitioner, vs. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and JOSE T. RAMIREZ, respondents.

Cesar A. Sevilla & Associates for petitioner.

The Solicitor General for public respondent.

SYNOPSIS

Petitioner Marcelino Libanan and private respondent Jose Ramirez were among the candidates for the lone congressional of Eastern Samar in the May 1995 elections. After the canvass of the returns, the Provincial Board of Canvassers of Eastern Samar proclaimed respondent Ramirez. Petitioner Libanan seasonably filed an election protest before the House of Representatives Electoral Tribunal (HRET). The evidence and the issues submitted by the parties for consideration by the HRET related mainly to the proper appreciation of the ballots objected to, or claimed by, the parties during the revision. The HRET affirmed the proclamation of private respondent Jose Tan Ramirez. Petitioner Libanan moved for reconsideration of the decision of the HRET arguing, among other grounds, that the absence of the Board of Election Inspectors (BEI) Chairman's signature at the back of the ballots could not but indicate that the ballots were spurious and not those issued to the voters during the elections. The HRET denied with finality petitioner's motion for reconsideration. Hence, the present petition.

The Supreme Court dismissed-the petition. The Court ruled that Section 24 of R.A. No. 7166, the applicable law, does not provide that a ballot not so authenticated shall thereby deemed spurious. The law merely renders the BEI Chairman accountable for such failure. What should, instead be given weight is the consistent rule laid down by HRET that a ballot is considered valid and genuine for as long as it bears any of the following authenticated marks, to wit: (a) the COMELEC watermark, or (b) the signature or initials, or thumbprint of the chairman of the BEI; and, (c) in those cases where the COMELEC watermarks are blurred or not readily apparent to the naked eye, the presence of red and blue fibers in the ballot. It is only when none of these marks appears extant that the ballot can be considered spurious and subject to rejection.

SYLLABUS

STATUTES; STATUTORY CONSTRUCTION; SECTION 24 OF R.A. 7166 CONSTRUED; SAID PROVISION DOES NOT .PROVIDE THAT A BALLOT WHICH IS NOT SO AUTHENTICATED SHALL THEREBY BE :DEEMED SPURIOUS; IT MERELY RENDERS THE BOARD OF ELECTION INSPECTORS (BEI) ACCOUNTABLE FOR SUCH FAILURE; APPLICABLE PRINCIPLES. — Section 24 of R.A. 7166 does not provide that a ballot which is not so; authenticated shall thereby be deemed spurious. The law merely renders the BEI Chairman accountable for such failure. The courts may not, in the guise of interpretation, enlarge the scope of a statute and embrace situations neither provided nor intended by the lawmakers. Where the words and phrases of a statute are not obscure and ambiguous, the meaning and intention of the legislature should be determined from the language employed, and where there is no ambiguity in the words, there should be no room for construction.

D E C I S I O N

VITUG, J p:

The 28th May 1997 decision of the House of Representatives Electoral Tribunal ("HRET"), which affirmed the proclamation of herein private respondent Jose Tan Ramirez declaring him to be the duly elected Representative of Eastern Samar for having obtained the plurality of votes over petitioner Marcelino Libanan, and the 20th June 1997 resolution of the HRET, which denied with finality petitioner's motion for reconsideration, are sought to be annulled in this special civil action for certiorari. LLpr

Petitioner Marcelino Libanan and private respondent Jose Ramirez were among the candidates for the lone congressional seat of Eastern Samar in the May 1995 elections. After the canvass of the returns was made on 13 May 1995, the Provincial Board of Canvassers of Eastern Samar proclaimed respondent Ramirez to have been duly elected Representative of the District with a total of forty-one thousand five hundred twenty-three (41,523) votes, compared to petitioner's forty thousand eight hundred sixty-nine (40,869) votes, or a margin of six hundred fifty-four (654) votes over those of petitioner.

Petitioner Libanan seasonably filed an election protest before the HRET claiming, among other things, that the 08th May 1995 elections in Eastern Samar were marred by massive electoral irregularities perpetrated or instigated by respondent Ramirez, as well as his leaders and followers, in the twenty-three (23) municipalities of the lone district of Eastern Samar with the aid, in various instances, of peace officers supposedly charged with maintaining an orderly and honest election. Petitioner contested seventy-nine (79) precincts in five (5) municipalities. He also maintained that the election returns and/or ballots in certain precincts were tampered with, substituted, or systematically marked in favor of respondent Ramirez. Libanan prayed that, after due proceedings, the HRET should issue an order to annul the election and proclamation of Ramirez and to thereafter so proclaim petitioner as the duly elected Representative of the Lone District of Eastern Samar.

In his answer and counter-protest, with a petition for preliminary hearing on the special and affirmative defenses, respondent Ramirez denied the charges. He counter-protested the results of the elections in certain precincts where, he claimed, Libanan engaged in massive vote buying, lansadera, terrorism and tearing of the list of voters to disenfranchise voters therein listed. Accordingly, he prayed, inter alia, for the dismissal of the protest and the confirmation of his election as the duly elected representative of the Lone District of Eastern Samar.

After some peripheral issues were settled by the HRET, the revision of ballots in the protested precincts commenced on 20 February 1996. The HRET noted that Libanan contested a total of seventy-nine (79) precincts. It was noted during the revision, however, that six (6) of the contested precincts, namely, Precincts Nos. 14, 15, 16, 18, 19 and 20 of Arteche, were found to have been merged during the 08 May 1995 elections into three (3) precincts, i.e., Precincts Nos. 14 and 19, Precincts Nos. 15 and 16 and Precincts Nos. 18 and 20. Thus, only seventy-six (76) ballot boxes were actually opened for

revision, one of which, Precinct No. 4-1 of Guiuan, did not contain any ballot.

On 22 February 1996, while the revision of the counter-protested precincts was being held, Ramirez filed an "Urgent Motion to Withdraw/Abandon Counter-Protest in Specific Municipalities/Precincts" praying that he be granted leave to withdraw and abandon partially his counter-protest in certain precincts. 1 Libanan filed an opposition thereto but the motion was eventually granted by the Chairman of the HRET and subsequently confirmed in a resolution by the tribunal.

On 21 March 1996, the HRET designated a Hearing Commissioner and a Deputy Hearing Commissioner for the reception of evidence. Following that reception, the respective memoranda of Libanan and Ramirez were filed.

The evidence and the issues submitted by the parties for consideration by the HRET related mainly to the proper appreciation of the ballots objected to, or claimed by, the parties during the revision. No evidence was presented in support of the other allegations of the protest (like the alleged tampering of election returns) and of the counter-protest (such as the alleged tearing of some of the pages of the computerized list of voters to disenfranchise legitimate voters and the use of goons to terrorize and compel voters to vote for Libanan), nor were these issues discussed in the memoranda of the parties. The HRET thus concentrated, such as can be rightly expected, its attention to the basic appreciation of ballots. 2

The particular matter focused in this petition deals with what petitioner claims to be spurious ballots; on this score, the HRET has explained:

"No spurious ballot was found in this case. For a ballot to be rejected for being spurious, the ballot must not have any of the following authenticating marks: a) the COMELEC watermark; b) the signatures or initial of the BEI Chairman at the back of the ballot; and c) red and blue fibers. In the present case, all the ballots examined by the Tribunal had COMELEC watermarks.

"The Tribunal did not adopt protestant's submission in his Memorandum that the absence of thumbmark or BEI Chairman's signature at the back of the ballot rendered the ballot spurious. The applicable law on this issue is Sec. 24, R.A. 7166. It reads:

"'In every case before delivering an official ballot to the voter, the Chairman of the Board of Election Inspectors shall, in the presence of the voter, affix his signature at the back thereof. Failure to so authenticate shall be noted in the minutes of the board of election inspectors and shall constitute an election offense punishable under Section 263 and 264 of the Omnibus Election Code.'

"As may be gleaned above, unlike the provision of Section 210 of the Omnibus Election Code where the BEI Chairman was required to affix his right thumbmark at the back of the ballot

immediately after it was counted, the present law no longer requires the same.

"Anent the BEI Chairman's signature, while Section 24 of R.A. 7166 provides that failure to authenticate the ballot shall constitute an election offense, there is nothing in the said law which provides that ballots not so authenticated shall be considered invalid. In fact, the members of the Committee on Suffrage and Electoral Reforms agreed during their deliberation on the subject that the absence of the BEI Chairman's signature at the back of the ballot will not per se make a ballot spurious.

"Moreover, while Rep. Palacol, then Chairman of the Committee on Suffrage and Electoral Reforms, mentioned during his sponsorship speech that one of the salient features of the bill filed was 'to require the chairman of the Board of Election Inspectors to authenticate a ballot given to a voter by affixing his signature on (sic) the back thereof and to consider any ballot as spurious,' R.A. 7166, as approved, does not contain any provision to that effect. Clearly, therefore, the Congress as a whole (House of Representatives and Senate) failed to adopt the proposal of Rep. Palacol that ballots without the BEI Chairman's signature at the back will be declared spurious. What is clearly provided under the said law is the sanction imposable upon an erring Chairman of the BEI, and not the disenfranchisement of the voter." 3

 

In its assailed decision, the HRET ruled in favor of respondent Ramirez; it concluded:

"WHEREFORE, in light of the foregoing, the Tribunal Resolved to DISMISS the instant election protest, including the parties' mutual claims for damages and attorney's fee; AFFIRM the proclamation of Protestee Jose Tan Ramirez; and DECLARE him to be the duly elected Representative of the Lone District of Eastern Samar, for having obtained a plurality of 143 votes over second placer Protestant Marcelino Libanan." 4

Petitioner Libanan moved for a reconsideration of the decision of the HRET arguing, among other grounds, 5 that the absence of the BEI Chairman's signature at the back of the ballots could not but indicate that the ballots were not those issued to the voters during the elections. He averred that the law would require the Chairman of the BEI to authenticate or sign the ballot before issuing it to the voter. Acting on petitioner's motion for reconsideration, the HRET credited petitioner Libanan with thirty (30) votes because of the error in the computation of the base figure and rejected twelve (12) ballots for respondent Ramirez. Respondent Ramirez, nevertheless, remained to be the winner with a lead of ninety-nine (99) votes in his favor. As regards the absence of BEI Chairman's signature at the back of the ballots, the HRET stressed:

"Fraud is not presumed. It must be sufficiently established. Moreover, Section 211 of the Omnibus Election Code provides in part that 'in the reading and appreciation of ballots, every ballot shall be presumed to be valid unless there is clear and good reason to justify its rejection.' In the instant case, there is

no evidence to support protestant's allegation that the ballots he enumerated in his Motion for Reconsideration are substitute ballots. The absence of the BEI Chairman's signature at the back of the ballot cannot be an indication of ballot switching or substitution. At best, such absence of BEI Chairman's signature is a prima facie evidence that the BEI Chairmen concerned were derelict in their duty of authenticating the ballots. Such omission, as stated in the Decision, is not fatal to the validity of the ballots. 6

Thus, the present recourse.

A perusal of the grounds raised by petitioner to annul the HRET decision and resolution boils down to the issue of whether or not the HRET committed grave abuse of discretion in ruling that the absence of the signature of the Chairman of the BEI in the ballots did not render the ballots spurious.

Petitioner Libanan contends that the three hundred eleven (311) ballots (265 of which have been for private respondent Ramirez) without the signature of the Chairman of the BEI, but which had the COMELEC watermarks and/or colored fibers, should be invalidated. It is the position of petitioner that the purpose of the law in requiring the BEI Chairman to affix his signature at the back of the ballot when he issues it to the voter is "to authenticate" the ballot and, absent that signature, the ballot must be considered spurious.

Prefatorily, the Court touches base on its jurisdiction to review and pass upon decisions or resolutions of the electoral tribunals.

The Constitution mandates that the House of Representatives Electoral Tribunal and the Senate Electoral Tribunal shall each, respectively, be the sole judge of all contests relating to the election, returns and qualifications of their respective members. 7 In Lazatin vs. HRET , 8 the Court has observed that —

"The use of the word 'sole' emphasizes the exclusive character of the jurisdiction conferred. The exercise of the power by the Electoral Commission under the 1935 Constitution has been described as 'intended to be as complete and unimpaired as if it had remained originally in the legislature.' Earlier this grant of power to the legislature was characterized by Justice Malcolm as ''full, clear and complete.' Under the amended 1935 Constitution, the power was unqualifiedly reposed upon the Electoral Tribunal and it remained as full, clear and complete as that previously granted the Legislature and the Electoral Commission. The same may be said with regard to the jurisdiction of the Electoral Tribunals under the 1987 Constitution." 9

The Court has stressed that ". . . so long as the Constitution grants the HRET the power to be the sole judge of all contests relating to the election, returns and qualifications of members of the House of Representatives, any final action taken by the HRET on a matter within its jurisdiction shall, as a rule, not be reviewed by this Court . . . the power granted to the Electoral Tribunal . . . excludes the exercise of any authority on the part of this Court that would in any wise restrict it or curtail it or even affect the same."

The Court did recognize, of course, its power of judicial review in exceptional cases. In Robles vs. HRET , 10 the Court has explained that while the judgments of the Tribunal are beyond judicial interference, the Court may do so, however, but only "in the exercise of this Court's so-called extraordinary jurisdiction, . . . upon a determination that the Tribunal's decision or resolution was rendered without or in excess of its jurisdiction, or with grave abuse of discretion or paraphrasing Morrero, upon a clear showing of such arbitrary and improvident use by the Tribunal of its power as constitutes a denial of due process of law, or upon a demonstration of a very clear unmitigated error, manifestly constituting such grave abuse of discretion that there has to be a remedy for such abuse."

In the old, but still relevant, case of Morrero vs. Bocar, 11 the Court has ruled that the power of the Electoral Commission "is beyond judicial interference except, in any event, upon a clear showing of such arbitrary and improvident use of power as will constitute a denial of due process." The Court does not, to paraphrase it in Co vs. HRET , 12 venture into the perilous area of correcting perceived errors of independent branches of the Government; it comes in only when it has to vindicate a denial of due process or correct an abuse of discretion so grave or glaring that no less than the Constitutionitself calls for remedial action.

In the instant controversy, it would appear that the HRET "reviewed and passed upon the validity of all the ballots in the protested and counter-protested precincts, including those not contested and claimed by the parties." 13 The Tribunal, added, that (t)his course of action was adopted not only to give effect to the intent of each and every voter, but also to rectify any mistake in appreciation, deliberate or otherwise, committed at the precinct level and overlooked during the revision stage of this case." 14 In holding that the absence of the signature of the Chairman of the BEI at the back of the ballot does not invalidate it, the HRET has ratiocinated in this wise: LLphil

"No spurious ballot was found in this case. For a ballot to be rejected for being spurious, the ballot must not have any of the following authenticating marks: a) the COMELEC watermark; b) the signatures or initial of the BEI Chairman at the back of the ballot; and c) red and blue fibers. In the present case, all the ballots examined by the Tribunal had COMELEC watermarks.

"xxx xxx xxx

"Anent the BEI Chairman's signature, while Section 24 of R.A. 7166 provides that failure to authenticate the ballot shall constitute an election offense, there is nothing in the said law

which provides that ballots not so authenticated shall be considered invalid. In fact, the members of the Committee on Suffrage and Electoral Reforms agreed during their deliberation on the subject that the absence of the BEI Chairman's signature at the back of the ballot will not per se make a ballot spurious.

"Moreover, while Rep. Palacol, then Chairman of the Committee on Suffrage and Electoral Reforms, mentioned during his sponsorship speech that one of the salient features of the bill filed was to require the chairman of the Board of Election Inspectors to authenticate a ballot given to a voter by affixing his signature on (sic) the back thereof and to consider any ballot as spurious,' R.A. 7166, as approved, does not contain any provision to that effect. Clearly, therefore, the Congress as a whole (House of Representatives and Senate) failed to adopt the proposal of Rep. Palacol that ballots without the BEI Chairman's signature at the back will be declared spurious. What is clearly provided under the said law is the sanction imposable upon an erring Chairman of the BEI, and not the disenfranchisement of the voter." 15

The pertinent provision of the law, Section 24 of R.A.. No. 7166, provides:

"SEC. 24. Signature of Chairman at the back of Every Ballot. — In every case before delivering an official ballot to the voter, the Chairman of the Board of Election Inspectors shall, in the presence of the voter, affix his signature at the back thereof. Failure to authenticate shall be noted in the minutes of the Board of Election Inspectors and shall constitute an election offense punishable under Section 263 and 264 of the Omnibus Election Code."

There is really nothing in the above law to the effect that a ballot which is not so authenticated shall thereby be deemed spurious. The law merely renders the BEI Chairman accountable for such failure. The courts may not, in the guise of interpretation, enlarge the scope of a statute and embrace situations neither provided nor intended by the lawmakers. Where the words and phrases of a statute are not obscure and ambiguous, the meaning and intention of the legislature should be determined from the language employed, and where there is no ambiguity in the words, there should be no room for construction. 16

As so aptly observed by the Solicitor-General, House Bill ("HB") No. 34811 (which later became R.A. No. 7166), approved by the House of Representatives on third reading, was a consolidation of different bills. Two of the bills consolidated and considered in drafting H.B. No. 34811 were H.B. 34639 and H.B. No. 34660. Section 22 of the two latter bills provided that:

 

"In every case before delivering an official ballot to the voter, the chairman of the Board of Election Inspectors shall, in the presence of the voter, affix his signature at the back thereof. Any ballot which is not so authenticated shall be deemed

spurious. Failure to so authenticate shall constitute an election offense." 17

During the deliberation of the Committee on Suffrage and Electoral Reforms, held on 08 August 1991, the members agreed to delete the phrase "Any ballot which is not so authenticated shall be deemed spurious." Pertinent portions of the transcript of stenographic notes ("TSN") taken during the Meeting of the Committee on Suffrage and Electoral Reforms read:

"THE CHAIRMAN. Yes, Congressman Mercado.

"HON. MERCADO. I think, Section 22, we go to the intent of the provision. I think the intent here is to sanction the inspector so I would propose a compromise. The ballot should not be deemed as spurious. However, it would rather be failure of the inspector to, or the chairman to affix his signature would rather be a circumstance which would aggravate the crime, which would aggravate the election offense, on the part of the inspector, but not to disenfranchise the voter. Because the intention here is to punish the election inspector for not affixing the signature. Why should we punish the voter? So I think the compromise here . . .

"THE CHAIRMAN. A serious election offense.

"HON. MERCADO. Yes, it should be a serious election offense on the part of the chairman for not affixing the signature, but not to make the ballot spurious.

"HON. RONO. Mr. Chairman.

"THE CHAIRMAN. Yes, Congressman Rono.

"HON. RONO. One thing that we have to guard against is when we deal with the ballot and the right to suffrage, we should not really make law that would prevent the flexibility of the Commission on Elections, and the Supreme Court from getting other extraneous efforts to confirm authenticity or the spuriousness of the ballot, by making a provision that by that single mistake or inadvertence of the chairman we make the ballot automatically spurious is dangerous. It should be. . . what I'm saying is that the Commission or the proper bodies by which this matter will be taken up may consider it as one of the evidences of spuriousness but not per se or ipso facto it becomes; it should look for other extraneous evidence. So what I am suggesting is let us give them this kind of flexibility before we determine or before we say that this ballot is spurious, we give the COMELEC some flexibility in the determination of other extraneous evidence.

"HON. GARCIA. May I offer a suggestion?

"THE CHAIRMAN. Yes, Congressman Garcia.

"HON. GARCIA. That the fact that a ballot does not contain the signature, I think, initial will not be sufficient, the signature of the Chairman should be noted in the minutes. Noted in the minutes. So that in case of protest, there is basis.

"HON. RONO. Oo may basis na. lyon lang. I think that would solve our problem.

"THE CHAIRMAN. Yes, Mr. Chairman.

"MR. MONSOD. Your honor, we're willing to accept that amendment. Take out that sentence spurious, with the introduction of the proposed measure . . ." 18

The TSN of the proceedings of the Bicameral Conference Committee on Election Law, held on 29 October 1991, in turn, would show these exchanges:

"CHAIRMAN GONZALEZ. Are there anything more?

"HON. ROCO. There is a section in the Senate version about the ballot being signed at the back.

"CHAIRMAN GONZALEZ. Counter side.

"HON. ROCO. If it is not signed then it is being spurious which is a very dangerous, I (think) (it) is a very dangerous provision and so. . .

"MR MONSOD. We agree with the House version that anyway when chairman of BEI doesn't sign subject to an election offense. But it should not be a basis for disenfranchisement of the voter. So, we believe we set this in the hearings in the House that we should strike out that sentence that says that this ballot is automatically spurious." 19

Thus, the final draft, which was later to become R.A. No. 7166, no longer included the provision "Any ballot not so authenticated shall be deemed spurious." The intention of the legislature even then was quite evident.

The reliance on Bautista vs. Castro 20 by petitioner, is misdirected. It must be stressed that B.P. Blg. 222, 21 otherwise known as the "Barangay Election Act of 1982," approved on 25 March 1982, itself categorically expresses that it shall only be "applicable to the election of barangay officials." Section 14 ofB.P. Blg. 222 and its implementing rule in Section 36 of COMELEC Resolution No. 1539 have both provided:

Section 14 of B.P. 222:

"Sec. 14. Official barangay ballots. — The official barangay ballots shall be provided by the city or municipality concerned of a size and color to be prescribed by the Commission on Elections.

"Such official ballot shall, before it is handed to the voter at the voting center, be authenticated in the presence of the voter, the other Tellers, and the watchers present by the Chairman of the Board of Election Tellers who shall affix his signature at the back thereof."

Section 36 of COMELEC Resolution No. 1539:

"Sec. 36. Procedure in the casting of votes. — . . .

"b. Delivery of ballot. — Before delivering the ballot to the voter, the chairman shall, in the presence of the voter, the other members of the board and the watchers present, affix his signature at the back thereof and write the serial number of the ballot in the space provided in the ballot, beginning with No. '1' for the first ballot issued, and so on consecutively for the succeeding ballots, which serial number shall be entered in the corresponding space of the voting record. He shall then fold the ballot once, and without removing the detachable coupon, deliver it to the voter, together with a ball pen.

"xxx xxx xxx

"e. Returning the ballot. (1) In the presence of all the members of the Board, the voter shall affix his right hand thumbmark on the corresponding space in the detachable coupon, and shall give the folded ballot to the chairman. (2) The chairman shall without unfolding the ballot or looking at its contents, and in the presence of the voter and all the members of the Board, verify if it bears his signature and the same serial number recorded in the voting record. (3) If the ballot is found to be authentic, the voter shall then be required to imprint his right hand thumbmark on the proper space in the voting record. (4) The chairman shall then detach the coupon and shall deposit the folded ballot in the compartment for valid ballot and the coupon in the compartment for spoiled ballots. (5) The voter shall then leave the voting center.

"f. When ballot may be considered spoiled. Any ballot returned to the chairman with its coupon already detached, or which does not bear the signature of the chairman, or any ballot with a serial number that does not tally with the serial number of the ballot delivered to the voter as recorded in the voting record, shall be considered as spoiled and shall be marked and signed by the members of the board and shall not be counted." 22

The difference in the rules may not be too difficult to discern. The stringent requirements in B.P. Blg. 222 should be justifiable considering that the official barangay ballots would be provided by the city or municipality concerned with the COMELEC merely prescribing their size and color. Thus, the official ballots in B.P. Blg. 222, being supplied and furnished by the local government themselves, the possibility of the ballots being easily counterfeited might not have been discounted. The absence of authenticating marks prescribed by law i.e., the signature of the chairman of the Board of Election Tellers at the back of the ballot, could have well been really thought of to be fatal to the validity of the ballot.

Section 24 of R.A. No. 7166, upon the other hand, contains no similar stringent provisions such as that seen in Section 36(f) of COMELEC Resolution No. 1539. The pertinent part in Resolution No. 2676 on the requirement of the signature of the chairman is found in Section 73 thereof which merely provides:

"Sec. 73. Signature of chairman at the back of every ballot. — In every case, the chairman of the board shall, in the presence of the voter, authenticate every ballot by affixing his signature at the back thereof before delivering it to the voter. FAILURE TO SO AUTHENTICATE SHALL BE NOTED IN THE

MINUTES OF THE BOARD AND SHALL CONSTITUTE AN ELECTION OFFENSE."

Again, in Resolution No. 2738, 23 promulgated by the COMELEC on 03 January 1995, 24 which implemented, among other election laws, R.A. No. 7166(that governed the election for Members of the House of Representatives held on 08 May 1995), the relevant provision is in Section 13 which itself has only stated:

"Sec. 13. Authentication of the ballot. — Before delivering a ballot to the voter, the chairman of the board shall, in the presence of the voter, affix his signature at the back thereof."

It would appear evident that the ruling in Bautista vs. Castro was prompted because of the express declaration in Section 36(f) of COMELEC Resolution No. 1539, implementing Section 14 of B.P. Blg. 222, that: "Any ballot returned to the chairman . . . which does not bear the signature of the chairman . . . shall be considered as spoiled . . . and shall not be counted." This Court thus stated in Bautista: cda

"The law (Sec. 14 of B.P. Blg. 222) and the rules implementing it (Sec. 36 of Comelec Res. No. 1539) leave no room for interpretation. The absence of the signature of the Chairman of the Board of Election Tellers in the ballot given to a voter as required by law and the rules as proof of the authenticity of said ballot is fatal. This requirement is mandatory for the validity of the said ballot."

It should be noteworthy that in an unsigned 03rd April 1990 resolution, in "Jolly Fernandez vs. COMELEC," 25 the Court en banc had the opportunity to debunk the argument that all ballots not signed at the back thereof by the Chairman and the Poll Clerk were to be considered spurious for non-compliance with Section 15 of R.A. No. 6646, 26 i.e., "The Electoral Reforms Law of 1987," reading as follows:

 

"Sec. 15. Signature of Chairman and Poll Clerk at the Back of Every Ballot. — In addition to the preliminary acts before the voting as enumerated in Section 191 of Batas Pambansa Blg. 881, the chairman and the poll clerk of the board of election inspectors shall affix their signatures at the back of each and every official ballot to be used during the voting. A certification to that effect must be entered in the minutes of the voting."

The Court declared:

"The cardinal objective in the appreciation of the ballots is to discover and give effect to the intention of the voter. That intention would be nullified by the strict interpretation of the said section as suggested by the petitioner for it would result in the invalidation of the ballot even if duly accomplished by the voter, and simply because of an omission not imputable to him but to the election officials. The citizen cannot be deprived of his constitutional right of suffrage on the specious ground that other persons were negligent in performing their own duty, which in the case at bar was purely ministerial and technical, by no means mandatory but a mere antecedent measure intended to authenticate the ballot. A contrary ruling would

place a premium on official ineptness and make it possible for a small group of functionaries, by their negligence — or, worse, their deliberate inaction — to frustrate the will of the electorate." 27

Petitioner Libanan suggests that the Court might apply the "ruling" of respondent HRET in the case of Yap vs. Calalay (HRET Case No. 95-026). He states that it is the HRET itself, ironically, that deals the coup de grace to its ruling in HRET Case No. 95-020." The "ruling" cited by petitioner is actually a "Confidential Memorandum," 28 dated 28 April 1997, from a certain Atty. Emmanuel Mapili addressed to "PA Committees in HRET Case No. 95-026 (Yap vs. Calalay)" which has for its subject "(n)ew rulings to be followed in the appreciation of ballots in HRET Case No. 95-026 (Yap vs. Calalay) and other concerns." Petitioner Libanan quotes the pertinent portion of the said Memorandum, viz.:

"WHEREFORE, the Tribunal Resolved that the following rules and guidelines on the appreciation of ballots shall be given effect in the resolution of this case and shall be applied prospectively to other pending cases:

"1. The absence of the signature of the BEI Chairman at the back of the ballot shall nullify the same and all the votes therein shall not be counted in favor of any candidate." 29

Reliance by petitioner on this alleged "ruling," obviously deserves scant consideration. What should, instead, be given weight is the consistent rule laid down by the HRET that a ballot is considered valid and genuine for as long as it bears any one of these authenticating marks, to wit: (a) the COMELEC watermark, or (b) the signature or initials, or thumbprint of the Chairman of the BEI; and, (c) in those cases where the COMELEC watermarks are blurred or not readily apparent to the naked eye, the presence of red and blue fibers in the ballots. 30 It is only when none of these marks appears extant that the ballot can be considered spurious and subject to rejection.

It is quite clear, in the opinion of the Court, that no grave abuse of discretion has been committed by respondent House of Representatives Electoral Tribunal in its issuance of the assailed decision and resolution.

One other important point. Regarding the membership of certain Justices of this Court in the HRET and their participation in the resolution of the instant petition, the Court sees no conflict at all, and it, therefore, rejects the offer of inhibition by each of the concerned justices. As early as Vera vs. Avelino, 31this Court, confronted with a like situation, has said unequivocally:

". . . Mulling over this, we experience no qualmish feelings about the coincidence. Their designation to the electoral tribunals deducted not a whit from their functions as members of this Supreme Court, and did not disqualify them in this litigation. Nor will their deliverances hereat on a given question operate to prevent them from voting in the electoral forum on identical questions; because the Constitution, establishing no incompatibility between the two roles, naturally did not

contemplate, nor want, justices opining one way here, and thereafter holding otherwise, pari materia, in the electoral tribunal, or vice-versa." 32

Such has thus been, and so it is to be in this petition, as well as in the cases that may yet come before the Court.

WHEREFORE, the instant petition is DISMISSED.

||| (Libanan v. House of Representatives Electoral Tribunal, G.R. No. 129783, [December 22, 1997], 347 PHIL 797-814)

PUNZALAN v. COMELEC

EN BANC

[G.R. No. 126669. April 27, 1998.]

ERNESTO M. PUNZALAN, petitioner, vs. COMMISSION ON ELECTIONS and FERDINAND D. MENESES, respondents.

[G.R. No. 127900. April 27, 1998.]

FERDINAND D. MENESES, petitioner, vs. COMMISSION ON ELECTIONS and ERNESTO M. PUNZALAN, respondents.

[G.R. No. 128800. April 27, 1998.]

ERNESTO M. PUNZALAN, petitioner, vs. COMMISSION ON ELECTIONS and FERDINAND D. MENESES, respondents.

[G.R. No. 132435. April 27, 1998.]

ERNESTO M. PUNZALAN, petitioner, vs. COMMISSION ON ELECTIONS and FERDINAND D. MENESES, respondents.

Punzalan Tiongson & Lising and Romulo C. Felizmena for Ernesto Punzalan.

Pete Quirino Cuadra for Ferdinand Meneses.

SYNOPSIS

Danilo Manalastas, Ferdinand Meneses and Ernesto Punzalan were among the four candidates for mayor of Mexico, Pampanga during the May 8, 1995 elections. The Municipal Board of Canvassers (MBC) proclaimed Meneses as the duly elected mayor. Manalastas and Punzalan each filed their own election protests that were consolidated and were jointly tried by the RTC of San Fernando, Pampanga. After hearing the election protests, the trial court rendered judgment in favor of Punzalan, who was declared winner of the elections. Meneses filed a notice of appeal with the COMELEC while Manalastas did not appeal. Punzalan filed a motion for execution pending appeal with the trial court and was granted by the latter. After several petitions, some of which even reached the Supreme Court, the COMELEC finally issued a

resolution setting aside the trial court's decision and affirming the proclamation of Meneses by the MBC as the duly elected mayor of Mexico, Pampanga. Punzalan filed a motion for reconsideration of the aforesaid resolution, which was denied. Hence, this petition for certiorari with preliminary injunction and a prayer for the issuance of a temporary restraining order to set aside the COMELEC's resolution. TCaEAD

The Supreme Court dismissed the petition. The Court upheld the findings of the COMELEC, stressing the well-founded rule that laws and election statutes governing election contests especially appreciation of ballots must be liberally construed to the end that the will of the electorate in the choice of public officials may not be defeated by technical infirmities. An election protest is imbued with public interest so much so that the need to dispel uncertainties which becloud the real choice of the people is imperative.

SYLLABUS

1. POLITICAL LAW; ELECTION LAW; REPUBLIC ACT NO. 7166; FAILURE BY THE BOARD OF ELECTION INSPECTORS CHAIRMAN TO AFFIX HIS SIGNATURE AT THE BACK OF THE BALLOT DOES NOT INVALIDATE THE BALLOT ITSELF; RATIONALE. — While Section 24 of Republic Act No. 7166, otherwise known as "An Act Providing For Synchronized National and Local Elections and For Electoral Reforms," requires the BEI chairman to affix his signature at the back of the ballot, the mere failure to do so does not invalidate the same although it may constitute an election offense imputable to said BEI chairman. Nowhere in said provision does it state that the votes contained therein shall be nullified. It is a well-settled rule that the failure of the BEI chairman or any of the members of the board to comply with their mandated administrative responsibility, i.e., signing, authenticating and thumbmarking of ballots, should not penalize the voter with disenfranchisement, thereby frustrating the will of the people. In the recent case of Marcelino C. Libanan vs. House of Representatives Electoral Tribunal and Jose T. Ramirez, this Court affirmed the ruling of the Tribunal in Libanan vs. Ramirez to the effect that a ballot without BEI chairman's signature at the back is valid and not spurious, provided that it bears any one of the these other authenticating marks, to wit: (a) the COMELEC watermark; and (b) in those cases where the COMELEC watermarks are blurred or not readily apparent, the presence of red and blue fibers in the ballots. The Court explained in this wise: What should, instead, be given weight is the consistent rule laid down by the HRET that a ballot is considered valid and genuine for as long as it bears any one of these authenticating marks, to wit: (a) the COMELEC watermark, or (b) the signature or initials, or thumbprint of the Chairman of the BEI; and (c) in those cases where the COMELEC watermarks are blurred or not readily apparent to the naked eye, the presence of red or blue fibers in the ballots. It is only when none of these marks appears extant that the ballot can be considered spurious and subject to rejection. Similarly, Section 211 of Batas Pambansa Blg. 881; otherwise known as the "Omnibus Election Code of the Philippines" provides that in the reading and appreciation of ballots, every ballot shall be presumed to be valid unless there is a clear and good reason to justify its rejection. Certainly, the

inefficiency of an election officer in failing to affix his signature at the back of the ballot does not constitute as a good and clear reason to justify the rejection of a ballot.

2. ID.; ID.; COMMISSION ON ELECTIONS (COMELEC); MATTERS FALLING WITHIN ITS JURISDICTION SHOULD NOT BE INTERFERED WITH BY THE COURT. — The appreciation of the contested ballots and election documents involves a question of fact best left to the determination of the COMELEC, a specialized agency tasked with the supervision of elections all over the country. It is the constitutional commission vested with the exclusive original jurisdiction over election contests involving regional, provincial and city officials, as well as appellate jurisdiction over election protests involving elective municipal and barangay officials. Consequently, in the absence of grave abuse of discretion or any jurisdiction infirmity or error of law, the factual findings, conclusions, rulings and decisions rendered by the said Commission on matters falling within its competence shall not be interfered with by this Court. cIHCST

3. ID.; ID.; ID.; NEED NOT CONDUCT AN ADVERSARIAL PROCEEDING OR A HEARING TO DETERMINE THE AUTHENTICITY OF BALLOTS OR THE HANDWRITING FOUND THEREON; RATIONALE. — It is axiomatic that the COMELEC need not conduct an adversarial proceeding or a hearing to determine the authenticity of ballots or the handwriting found thereon. Neither does it need to solicit the help of handwriting experts in examining or comparing the handwriting. In fact, even evidence aliunde is not necessary to enable the Commission to determine the authenticity of the ballots and the genuineness of the handwriting on the ballots as an examination of the ballots themselves is already sufficient. Section 22 of Rule 132 of the Revised Rules on Evidence explicitly authorizes the court, by itself, to make a comparison of the disputed handwriting "with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge." Consequently, the examination of the ballots themselves by the COMELEC should not be brushed aside. Section 23, Rule 132 of the Rules of Court explicitly authorizes the court (the COMELEC in this case) to make itself the comparison of the disputed handwriting "with writings admitted as genuine by the party whom the evidence is offered." Expert opinions are not ordinarily conclusive in the sense that they must be accepted as true on the subject of their testimony, but are generally regarded as purely advisory in character; the courts may place whatever weight they choose upon such testimony and may reject it, if they find that it is consistent with the facts in the case or otherwise unreasonable.

4. ID.; ID.; LAWS AND STATUTES GOVERNING ELECTION CONTESTS MUST BE LIBERALLY CONSTRUED; RATIONALE. — This Court as a well-founded rule ensconced in our jurisprudence that laws and statutes governing election contests especially appreciation of ballots must be liberally construed to the end that the will of the electorate in the choice of public officials may not be defeated by technical infirmities. An election protest is imbued with public interest so much so that the need to dispel uncertainties which becloud the real choice of the people is imperative. EIcSTD

D E C I S I O N

KAPUNAN, J p:

Danilo Manalastas, Ferdinand Meneses and Ernesto Punzalan were among the four (4) candidates for mayor of the municipality of Mexico, Pampanga during the May 8, 1995 elections. cdrep

On May 24, 1995, the Municipal Board of Canvassers (MBC) proclaimed Ferdinand Meneses as the duly elected mayor, having garnered a total of 10,301 votes against Danilo Manalastas' 9,317 votes and Ernesto Punzalan's 8,612 votes.

On May 30, 1995, Danilo Manalastas filed an election protest docketed as Election Case No. E-005-95 before the Regional Trial Court of San Fernando, Pampanga, challenging the results of the elections in the municipality's forty-seven (47) precincts. 1 In due time, Ferdinand Meneses filed his answer with counter protest impugning the results in twenty-one (21) precincts 2 of the 47 protested by Manalastas.

On June 2, 1995, Ernesto Punzalan filed his own election protest docketed as Election Case No. E-006-95, also before the RTC in San Fernando, Pampanga, questioning the results of the elections in one hundred and fifty seven (157) precincts. 3 Meneses, on his part, filed an answer with counter-protest with respect to ninety-six (96) precincts 4 of the 157 protested by Punzalan.

Since the two (2) election protests involved the same parties and subject matter, they were ordered consolidated and were jointly tried by the RTC of San Fernando Pampanga, Branch 44.

Succinctly, the election contests sought the nullification of the election of Meneses allegedly due to massive fraud, irregularities and other illegal electoral practices during the registration and the voting as well as during the counting of votes such as:

a. the registration of flying voters;

b. the preparation of ballots by persons other than the registered electors concerned;

 

c. the use of electoral fraudulent practice such as the 'lansadera;'

d. false reading of votes for the petitioner/protestant;

e. the counting of illegal and marked ballots and stray votes as votes for the respondent/protestee;

f. switching of ballots in favor of respondent/protestee;

g. tampering with the ballots for the petitioner/protestant after having been cast, so as to annul the same or to substitute therefor illegal votes for respondent/protestee,

h. the adding of more votes to those actually counted for the respondent/protestee and the reducing of the votes actually counted for the petitioner/protestant in the preparation of the corresponding election return;

i. groups of two or more ballots for the respondent/protestee were written each group, by only one (1) person;

j. one (1) ballot for the respondent/protestee written by two or more persons. 5

By way of counter-protest to the two (2) election protests, Meneses alleged that he, too, was a victim of massive fraud and illegal electoral practices such as:

a) The preparation of the ballots by persons other than the registered electors concerned;

b) The use of electoral fraudulent practice known as the 'lansadera;'

c) False reading of votes for the protestee;

d) The counting of illegal and marked ballots and stray votes for the protestant;

c) Switching of ballots in favor of protestant;

f) Tampering with the ballots for the Protestee after having been cast, so as to annul the same or to substitute therefor illegal votes for the protestant;

g) The adding of more votes to those actually counted for the protestant and the reducing of the votes actually counted for the protestee in the preparation of the corresponding election returns;

h) Group of two (2) or more ballots for protestant were written, each group, by only one (1) person;

i) One (1) ballot for the protestant written by two (2) or more persons. 6

Finding the protests and counter-protests sufficient in form and substance, the trial court ordered a revision of the ballots. The result of said physical count coincided with the figures reflected in the election returns, thus: Meneses — 10,301 votes; Manalastas — 9,317 votes; and Punzalan — 8,612 votes.cdrep

After hearing the election protests, the trial court rendered judgment on September 23, 1996 with the following findings, viz: that massive fraud, illegal electoral practices and serious anomalies marred the May 8, 1995 elections; that ballots, election returns and tally sheets pertaining to Precinct Nos. 8, 20, 41, 53, 68, 68-A and 70 "disappeared under mysterious circumstances;" and that filled-up ballots with undetached lower stubs and groups of ballots with stubs cut out with scissors were found inside ballot boxes. Because of these irregularities, the trial court was constrained to examine the contested ballots and the handwritings appearing thereon and came up with the declaration that Punzalan. was the

winner in the elections. The dispositive portion of the decision reads:

WHEREFORE, premises considered, judgment is hereby rendered:

1. In EPC No. E-005-95 — declaring Ferdinand D. Meneses as having garnered 7,719 votes or 33 votes more than the 7,686 votes received by Danilo D. Manalastas and dismissing the instant protest.

2. In EPC No. E-006-95 — declaring Ernesto M. Punzalan as the duly elected Municipal Mayor of Mexico, Pampanga. Protestee Ferdinand D. Meneses is hereby ordered to vacate his position and to cease and desist from further discharging the duties and functions officially vested in the Office of the Municipal Mayor of Mexico, Pampanga which now and henceforth, unless otherwise disqualified by law, are conferred unto and in favor of Ernesto M. Punzalan, who is hereby ordered to act, perform and discharge the duties, functions and responsibilities and all incidents appertaining to and in connection with the Office of the Municipal Mayor of Mexico, Pampanga, immediately and after he shall have taken his oath of office as such.

3. The counterclaims interposed by Ferdinand D. Meneses in both cases are hereby dismissed.

The authorities concerned are hereby ordered to enforce, implement and assist in the enforcement and implementation of this Decision immediately after Ernesto M. Punzalan shall have had taken his oath of office.

As soon as this Decision becomes final, let notice thereof be sent to the Commission on Elections, Department of Interior and Local Governments and Commission on Audit.

Without pronouncement as to costs.

SO ORDERED. 7

Immediately thereafter, Meneses filed a notice of appeal from the aforesaid decision declaring Punzalan as the duly elected mayor of Mexico, Pampanga. The case was docketed as EAC No. 48-96 by the COMELEC. Manalastas did not appeal from the said decision.

On October 1, 1996, Punzalan filed a motion for execution pending appeal with the RTC in San Fernando, Pampanga. On the same day, the COMELEC issued an order directing the RTC to elevate the entire records of the case.

On October 10, 1996, the RTC issued an order which granted Punzalan's motion for execution pending appeal. On the same date, Meneses filed before the COMELEC a petition for certiorari and prohibition with prayer for the issuance of temporary restraining order (TRO) and/or preliminary injunction, docketed as SPR No. 47-96, seeking the nullification of the RTC's order of execution pending appeal.

On October 11, 1996, the COMELEC issued a TRO enjoining the RTC from enforcing its Order dated October 10, 1996.

On October 22, 1996, Meneses filed with the COMELEC a motion for contempt against Punzalan, alleging that the latter was holding the office of mayor of Mexico, Pampanga in violation of the TRO issued by the COMELEC.

On October 28, 1996, Punzalan filed before this Court a petition for certiorari, prohibition and declaratory relief with application for a writ of preliminary injunction and temporary restraining order, docketed as G.R. No. 126669, to set aside the COMELEC's TRO issued on October 11, 1996.

On November 7, 1996, the COMELEC issued two (2) orders, one which submitted for resolution Meneses' application for a writ of preliminary injunction and motion for contempt and another which granted a writ of preliminary injunction enjoining the enforcement of the RTC's order of execution dated October 10, 1996.

On November 12, 1996, this Court issued a TRO directing the COMELEC to cease and desist from enforcing the TRO it issued on October 11, 1996 in SPR No. 47-96.

On November 21, 1996, Punzalan filed before this Court a supplement to the petition seeking to declare as void the COMELEC's preliminary prohibitory and mandatory injunction and to declare Meneses in contempt of court.

On January 9, 1997, the COMELEC issued an order which dispositively read as follows:

Considering that the 7 November 1996 preliminary injunction of the Commission was pursuant to its 11 October 1996 temporary restraining order, which was specifically covered by the Supreme Court's temporary restraining order, the Commission will respect and abide by the order of the Supreme Court. Considering, however, that the temporary restraining order of the Supreme Court relates only to the implementation of the order of execution of judgment pending appeal of the Regional Trial Court, the Commission finds no legal impediment to proceed with the resolution of the main action for certiorari pending before it and shall act accordingly.

On January 30, 1997, the COMELEC issued an order stating that: 1) it need not act on Meneses' motion reiterating the prayer to suspend pendente litethe implementation of the Order dated January 9, 1997, and 2) the Order dated January 9, 1997 shall take effect thirty (30) days from notice thereof to the parties.

On February 10, 1997, Meneses filed with this Court a petition for certiorari with prayer for the issuance of a temporary restraining order and/or writ of preliminary injunction, docketed as G.R. No. 127900, which sought to set aside the COMELEC Orders dated January 9 and 30, 1997.

On April 24, 1997, the COMELEC issued a resolution granting the petition of Meneses to set aside the RTC's order of execution pending appeal and allowing Meneses to continue to discharge the duties and functions of municipal mayor of Mexico, Pampanga, without prejudice to the resolution of his pending appeal from the RTC's decision.

On April 28, 1997, Punzalan filed with this Court a petition for certiorari, docketed as G.R. No. 128000, which sought to nullify the COMELEC's Resolution dated April 24, 1997.

On December 8, 1997, the COMELEC promulgated a resolution in EAC No. 48-96 setting aside the trial court's decision and affirming the proclamation of Meneses by the MBC as the duly elected mayor of Mexico, Pampanga, thusly:

WHEREFORE, premises considered, the decision of the court a quo in Election Protest Case No. E-006-95 declaring protestant-appellee Ernesto M.Punzalan as the duly elected Mayor of the Municipality of Mexico, Pampanga in the May 8, 1995 local elections is hereby ANNULLED and SET-ASIDE.

ACCORDINGLY, the Commission [First Division] hereby AFFIRMS the proclamation of protestee-appellant Ferdinand D. Meneses by the Municipal Board of Canvassers as the duly elected Mayor of Mexico, Pampanga but with the modification that protestee-appellant received only 9,864 votes, or a deduction of 437 votes from his original 10,301 votes. Further, this Commission [First Division] hereby COMMANDS protestant-appellee Ernesto M.Punzalan to RELINQUISH his post in favor of protestee-appellant Ferdinand Meneses immediately upon finality of this Resolution. 8

Punzalan filed a motion for reconsideration of the aforesaid resolution. In its Resolution dated February 13, 1998, the COMELEC denied said motion for lack of merit.

Hence, this petition for certiorari with preliminary injunction and a prayer for the issuance of a temporary restraining order, filed on February 16, 1998 and docketed as G.R. No. 132435, to set aside the COMELEC's resolutions of December 8, 1997 and February 13, 1998. Thus, petitioner alleges:

 

1. that the decision (resolution) in question is tainted with grave abuse of discretion amounting to lack of jurisdiction;

2. that it was rendered in disregard of law and the evidence;

3. that the decision (resolution) in question is a 'prejudged decision;' and

4. that the decision (resolution) in question is the culmination of a series of acts of the public respondent favoring the private respondent. 9

First. Punzalan maintains that the COMELEC acted with grave abuse of discretion in declaring as valid the ballots credited to Meneses which did not bear the signature of the BEI chairman at the back thereof, invoking the ruling of this Court in Bautista v. Castro 10 wherein it was held that the absence of the signature of the BEI chairman in the ballot given to a voter as required by law and the rules as proof of the authenticity of said ballot is fatal.

This contention is not meritorious.

While Section 24 11 of Republic Act No. 7166, otherwise known as "An Act Providing For Synchronized National and Local Elections and For Electoral Reforms," requires the BEI chairman to affix his signature at the back of the ballot, the mere failure to do so does not invalidate the same although it may constitute an election offense imputable to said BEI chairman. Nowhere in said provision does it state that the votes contained therein shall be nullified. It is a well-settled rule that the failure of the BEI chairman or any of the members of the board to comply with their mandated administrative responsibility, i.e., signing, authenticating and thumbmarking of ballots, should not penalize the voter with disenfranchisement, thereby frustrating the will of the people. 12

In the recent case of Marcelino C . Libanan v. House of Representatives Electoral Tribunal and Jose T . Ramirez, 13 this Court affirmed the ruling of the Tribunal in Libanan v. Ramirez 14 to the effect that a ballot without BEI chairman's signature at the back is valid and not spurious, provided that it bears any one of these other authenticating marks, to wit: (a) the COMELEC watermark; and (b) in those cases where the COMELEC watermarks are blurred or not readily apparent, the presence of red and blue fibers in the ballots. The Court explained in this wise:

What should, instead, be given weight is the consistent rule laid down by the HRET that a ballot is considered valid and genuine for as long as it bears any one of these authenticating marks, to wit: (a) the COMELEC watermark, or (b) the signature or initials, or thumbprint of the Chairman of the BEI; and (c) in those cases where the COMELEC watermarks are blurred or not readily apparent to the naked eye, the presence of red or blue fibers in the ballots. It is only when none of these marks appears extant that the ballot can be considered spurious and subject to rejection.

Similarly, Section 211 of Batas Pambansa Blg. 881, otherwise known as the "Omnibus Election Code of the Philippines" provides that in the reading and appreciation of ballots, every ballot shall be presumed to be valid unless there is a clear and good reason to justify its rejection. Certainly, the inefficiency of an election officer in failing to affix his signature at the back of the ballot does not constitute as a good and clear reason to justify the rejection of a ballot.

Second. Punzalan contends that the COMELEC committed grave abuse of discretion in declaring valid (a) the ballots wherein the signatures of the BEI chairmen were different from their respective signatures appearing on several COMELEC documents, (b) those group of ballots allegedly written by one (1) hand and (c) a number of single ballots written by two (2) persons. He argues that the trial court's findings on the authenticity of said handwritings must prevail over the findings of the COMELEC because: 1) the finding of the Regional Trial Court was based first on the findings of the revisors with the assistance of an expert witness in the person of Atty. Desiderio Pagui; (2) the finding of the Regional Trial Court was arrived at after an adversarial proceeding where both parties were represented by their lawyers and the expert witness was cross-examined; and (3) on the other hand, the findings of the public respondent were made unilaterally, without any hearing and

without the presence of the lawyers of the parties and of the parties themselves.15

These arguments fail to persuade us.

The appreciation of the contested ballots and election documents involves a question of fact best left to the determination of the COMELEC, a specialized agency tasked with the supervision of elections all over the country. It is the constitutional commission vested with the exclusive original jurisdiction over election contests involving regional, provincial and city officials, as well as appellate jurisdiction over election protests involving elective municipal and barangay officials. Consequently, in the absence of grave abuse of discretion or any jurisdictional infirmity or error of law, the factual findings, conclusions, rulings and decisions rendered by the said Commission on matters falling within its competence shall not be interfered with by this Court. 16

Anent Punzalan's assertion that the trial court's finding which was arrived at after an adversarial proceeding wherein an expert witness testified and was cross-examined, should not be interfered with by the COMELEC whose finding was arrived at without the benefit of a hearing or the aid of an expert, it is axiomatic that the COMELEC need not conduct an adversarial proceeding or a hearing to determine the authenticity of ballots or the handwriting found thereon. Neither does it need to solicit the help of handwriting experts in examining or comparing the handwriting. 17 In fact, even evidence aliunde is not necessary to enable the Commission to determine the authenticity of the ballots and the genuineness of the handwriting on the ballots as an examination of the ballots themselves is already sufficient. 18

In Erni v. COMELEC , 19 we held that:

. . . With respect to the contention that a technical examination of the ballots should have been ordered to determine whether they had been written by two or more persons, or in groups written by only one hand, we hold that the Commission en banc did not commit an abuse of its discretion in denying petitioner-protestee's request. The rule is settled that the Commission itself can make the determination without the need of calling handwriting experts.

Nor was evidence aliunde necessary to enable the Commission to determine the genuineness of the handwriting on the ballots, an examination of the ballots themselves being sufficient. . . 20

In Bocobo v. COMELEC, 21 we likewise ruled that:

. . . Handwriting experts, while probably useful, are not indispensable in examining or comparing handwriting; this can be done by the COMELEC itself. We have ruled that evidence aliunde is not allowed to prove that a ballot is marked, an inspection of the ballot itself being sufficient (Penson v. Parungao, 52 Phil. 718). . . 22

In the case at bar, the opinion of Atty. Pagui, who was claimed to be a handwriting expert, was not binding upon the COMELEC especially so where the question involved the mere

similarity or dissimilarity of handwritings which could be determined by a comparison of existing signatures or handwriting.23 Section 22 of Rule 132 of the Revised Rules on Evidence explicitly authorizes the court, by itself, to make a comparison of the disputed handwriting "with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge."

In Lorenzo v. Diaz, 24 this Court enumerated the tools to aid one in the examination of handwriting, thus:

The authenticity of a questioned signature cannot be determined solely upon its general characteristics, similarities or dissimilarities with the genuine signature. Dissimilarities as regards spontaneity, rhythm , presence of the pen, loops in the strokes, signs of stops, shades, etc., that may be found between the questioned signature and the genuine one are not decisive on the question of the former's authenticity. The result of examination of questioned handwriting, even with the benefit of aid of experts and scientific instruments, is, at best, inconclusive. There are other factors that must be taken into consideration. The position of the writer, the condition of the surface on which the paper where the questioned signature is written is placed, his state of mind, feelings and nerves, and the kind of pen and/or paper used, played an important role on the general appearance of the signature. Unless, therefore, there is, in a given case, absolute absence, or manifest dearth, or direct or circumstantial competent evidence of the character of a questioned handwriting, much weight should not be given to characteristic similarities, or dissimilarities, between the questioned handwriting and an authentic one. 25

Indeed, the haste and pressure, the rush and excitement permeating the surroundings of polling places could certainly affect the handwriting of both the voters and the election officers manning the said precincts. The volume of work to be done and the numerous documents to be filled up and signed must likewise be considered. Verily, minor and insignificant variations in handwriting must be perceived as indicia of genuineness rather than of falsity.

In Go Fay v. Bank of the Philippine Islands, 26 this Court held that carelessness, spontaneity, unpremeditation, and speed in signing are evidence of genuineness. In U .S. v. Kosel, 27 it was ruled that dissimilarity in certain letters in a handwriting may be attributed to the mental and physical condition of the signer and his position when he signed. Grief, anger,. vexation, stimulant, pressure and weather have some influence in one's writing. Because of these, it is an accepted fact that it is very rare that two (2) specimens of a person's signature are exactly alike.

 

On the issue of the genuineness of the handwriting on the ballots, it is observed that the specimens examined by Atty. Desiderio A. Pagui, presented byPunzalan as an expert witness, were mere certified true copies of the ballots and documents concerned. 28 This fact raised a cloud of doubt and made the findings suspect. Consequently, the examination of

the ballots themselves by the COMELEC should not be brushed aside. Section 23, Rule 132 of the Rules of Court explicitly authorizes the court (the COMELEC in this case) to make itself the comparison of the disputed handwriting "with writings admitted as genuine by the party whom the evidence is offered."

Expert opinions are not ordinarily conclusive in the sense that they must be accepted as true on the subject of their testimony, but are generally regarded as purely advisory in character, the courts may place whatever weight they choose upon such testimony and may reject it, if they find that it is consistent with the facts in the case or otherwise unreasonable. 29

In the same manner, whether or not certain ballots were marked had been addressed by the COMELEC by personally and actually examining the ballots themselves. We find no compelling reasons to disturb its findings.

In closing, we would like to stress a well-founded rule ensconced in our jurisprudence that laws and statutes governing election contests especially appreciation of ballots must be liberally construed to the end that the will of the electorate in the choice of public officials may not be defeated by technical infirmities. 30 An election protest is imbued with public interest so much so that the need to dispel uncertainties which becloud the real choice of the people is imperative.

Prescinding from the foregoing, we find that respondent COMELEC did not act with grave abuse of discretion in G.R. No. 132435. The petitions in G.R. Nos. 126669, 127900 and 128800 are rendered moot by the preceding disquisition.

WHEREFORE, premises considered, the petition in G.R. No. 132435 is hereby DISMISSED. The status quo order issued by this Court on February 24, 1998 is LIFTED. The petitions in G.R. Nos. 126669, 127900 and 128800 are rendered moot and academic by the foregoing disquisition. cdrep

Further, this decision is immediately executory in view of the shortness of time between now and the next elections and to prevent the case from becoming moot and academic.

SO ORDERED.

Narvasa, C .J ., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Mendoza, Panganiban, Martinez, Quisumbing and Purisima, JJ., concur.

||| (Punzalan v. Commission on Elections, G.R. No. 126669, 127900, 128800, 132435, [April 27, 1998], 538 PHIL 538-557)

SECTION 199. Challenge of illegal voters.

(a) Any voter, or watcher may challenge any person offering to vote for not being registered, for using the name of another or suffering from existing disqualification. In such case, the board of election inspectors shall satisfy itself as to whether or not the

ground for the challenge is true by requiring proof of registration or the identity of the voter; and

(b) No voter shall be required to present his voter's affidavit on election day unless his identity is challenged. His failure or inability to produce his voter's affidavit upon being challenged, shall not preclude him from voting if his identity be shown from the photograph, fingerprints, or specimen signatures in his approved application in the book of voters or if he is identified under oath by a member of the board of election inspectors and such identification shall be reflected in the minutes of the board.

SECTION 200. Challenge based on certain illegal acts.

Any voter or watcher may challenge any voter offering to vote on the ground that the challenged person has received or expects to receive, has paid, offered or promised to pay, has contributed, offered or promised to contribute money or anything of value as consideration for his vote or for the vote of another; that he has made or received a promise to influence the giving or withholding of any such vote or that he has made a bet or is interested directly or indirectly in a bet which depends upon the result of the election. The challenged person shall take a prescribed oath before the board of election inspectors that he has not committed any of the acts alleged in the challenge. Upon the taking of such oath, the challenge shall be dismissed and the challenged voter shall be allowed to vote, but in case of his refusal to take such oath, the challenge shall be sustained and he shall not be allowed to vote. (Sec. 145, 1978 EC) cda

SECTION 201. Admission of challenged vote immaterial in criminal proceedings.

The admission of the challenged vote under the two preceding sections shall not be conclusive upon any court as to the legality of the registration of the voter challenged or his vote in a criminal action against such person for illegal registration or voting. (Sec. 146, 1978 EC)

SECTION 202. Record of challenges and oaths.

The poll clerk shall keep a prescribed record of challenges and oaths taken in connection therewith and the resolution of the board of election inspectors in each case and, upon the termination of the voting, shall certify that it contains all the challenges made. The original of this record shall be attached to the original copy of the minutes of the voting as provided in the succeeding section. (Sec. 147, 1978 EC)

BOARD OF ELECTION INSPECTORS

SECTION 164. Composition and appointment of board of election inspectors.

At least thirty days before the date when the voters list is to be prepared in accordance with this Code, in the case of a regular election or fifteen days before a special election, the Commission shall, directly or through its duly authorized

representatives, constitute a board of election inspectors for each precinct to be composed of a chairman and a poll clerk who must be public school teachers, priority to be given to civil service eligibles, and two members, each representing the two accredited political parties. The appointment shall state the precinct to which they are assigned and the date of the appointment.

SECTION 165. Oath of the members of the board of election inspectors.

The members of the board of election inspectors, whether permanent, substitute or temporary, shall before assuming their office, take and sign an oath upon forms prepared by the Commission, before an officer authorized to administer oaths or, in his absence, before any other member of the board of election inspectors present, or in case no one is present, they shall take it before any voter. The oaths shall be sent immediately to the city or municipal treasurer. (Sec. 157, 1971 EC)

SECTION 166. Qualification of members of the board of election inspectors.

No person shall be appointed chairman, member or substitute member of the board of election inspectors unless he is of good moral character and irreproachable reputation, a registered voter of the city or municipality, has never been convicted of any election offense or of any other crime punishable by more than six months of imprisonment, or if he has pending against him an information for any election offense. He must be able to speak and write English or the local dialect. (Sec. 114, 1978 EC)

SECTION 167. Disqualification.

No person shall serve as chairman or member of the board of election inspectors if he is related within the fourth civil degree of consanguinity or affinity to any member of the board of election inspectors or to any candidate to be voted for in the polling place or his spouse. (Sec. 115, 1978 EC)

SECTION 168. Powers of the board of election inspectors.

The board of election inspectors shall have the following powers and functions:

a. Conduct the voting and counting of votes in their respective polling places;

b. Act as deputies of the Commission in the supervision and control of the election in the polling places wherein they are assigned, to assure the holding of the same in a free, orderly and honest manner; and

c. Perform such other functions prescribed by this Code or by the rules and regulations promulgated by the Commission. (Sec. 116,1978 EC)

POST ELECTION

COUNTING OF VOTES

SECTION 206. Counting to be public and without interruption.

As soon as the voting is finished, the board of election inspectors shall publicly count in the polling place the votes cast and ascertain the results. The board of election inspectors shall not adjourn or postpone or delay the count until it has been fully completed, unless otherwise ordered by the Commission.

The Commission, in the interest of free, orderly, and honest elections, may order the board of election inspectors to count the votes and to accomplish the election returns and other forms prescribed under this Code in any other place within a public building in the same municipality or city: Provided, That the said public building shall not be located within the perimeter of or inside a military or police camp or reservation nor inside a prison compound. (Sec. 150, 1978 EC)

Section 25. Manner of Counting Votes. (RA 7166)

In addition to the requirement in the fourth paragraph of Section 12 of Republic Act No. 6646 ad Section 210 of the Omnibus Election Code, in reading the individual official ballots during the counting, the chairman, the poll clerk and the third member shall assume such positions as to provide the watchers and the members of the public as may be conveniently accommodated in the polling place, an unimpeded view of the ballot being read by the chairman, of the election return and the tally board being simultaneously accomplished by the poll clerk and the third member respectively, without touching any of these election documents. The table shall be cleared of all unnecessary writing paraphernalia. Any violation of this requirement shall constitute an election offense punishable under Sections 263 and 264 of the Omnibus Election Code.

RULE ON APPLICATION OF BALLOTS

SECTION 211. Rules for the appreciation of ballots.

In the reading and appreciation of ballots, every ballot shall be presumed to be valid unless there is clear and good reason to justify its rejection. The board of election inspectors shall observe the following rules, bearing in mind that the object of the election is to obtain the expression of the voters' will:

1. Where only the first name of a candidate or only his surname is written, the vote for such candidate is valid, if there is no other candidate with the same first name or surname for the same office.

2. Where only the first name of a candidate is written on the ballot, which when read, has a sound similar to the surname of another candidate, the vote shall be counted in favor of the candidate with such surname. If there are two or more candidates with the same full name, first name or surname and one of them is the incumbent, and on the ballot is written only

such full name, first name or surname, the vote shall be counted in favor of the incumbent.

3. In case the candidate is a woman who uses her maiden or married surname or both and there is another candidate with the same surname, a ballot bearing only such surname shall be counted in favor of the candidate who is an incumbent.

4. When two or more words are written on the same line on the ballot, all of which are the surnames of two or more candidates, the same shall not be counted for any of them, unless one is a surname of an incumbent who has served for at least one year in which case it shall be counted in favor of the latter.

          When two or more words are written on different lines on the ballot all of which are the surnames of two or more candidates bearing the same surname for an office for which the law authorizes the election of more than one and there are the same number of such surnames written as there are candidates with that surname, the vote shall be counted in favor of all the candidates bearing the surname.

5. When on the ballot is written a single word which is the first name of a candidate and which is at the same time the surname of his opponent, the vote shall be counted in favor of the latter.

6. When two words are written on the ballot, one of which is the first name of the candidate and the other is the surname of his opponent, the vote shall not be counted for either.

7. A name or surname incorrectly written which, when read, has a sound similar to the name or surname of a candidate when correctly written shall be counted in his favor; cdasia

8. When a name of a candidate appears in a space of the ballot for an office for which he is a candidate and in another space for which he is not a candidate, it shall be counted in his favor for the office for which he is a candidate and the vote for the office for which he is not a candidate shall be considered as stray, except when it is used as a means to identify the voter, in which case, the whole ballot shall be void.

If the word or words written on the appropriate blank on the ballot is the identical name or surname or full name, as the case may be, of two or more candidates for the same office none of whom is an incumbent, the vote shall be counted in favor of that candidate to whose ticket belong all the other candidates voted for in the same ballot for the same constituency.

9. When in a space in the ballot there appears a name of a candidate that is erased and another clearly written, the vote is valid for the latter.

10. The erroneous initial of the first name which accompanies the correct surname of a candidate, the erroneous initial of the surname accompanying the correct first name of a candidate, or the erroneous middle initial of the candidate shall not annul the vote in favor of the latter.

11. The fact that there exists another person who is not a candidate with the first name or surname of a candidate shall not prevent the adjudication of the vote of the latter.

12. Ballots which contain prefixes such as "Sir.", "Mr.", "Datu", "Don", "Ginoo", "Hon.", "Gob." or suffixes like "Hijo", "Jr.", "Segundo", are valid.

13. The use of the nicknames and appellations of affection and friendship, if accompanied by the first name or surname of the candidate, does not annul such vote, except when they were used as a means to identify the voter, in which case the whole ballot is invalid: Provided, That if the nickname used is unaccompanied by the name or surname of a candidate and it is the one by which he is generally or popularly known in the locality, the name shall be counted in favor of said candidate, if there is no other candidate for the same office with the same nickname.

14. Any vote containing initials only or which is illegible or which does not sufficiently identify the candidate for whom it is intended shall be considered as a stray vote but shall not invalidate the whole ballot.

15. If on the ballot is correctly written the first name of a candidate but with a different surname, or the surname of the candidate is correctly written but with different first name, the vote shall not be counted in favor of any candidate having such first name and/or surname but the ballot shall be considered valid for other candidates.

16. Any ballot written with crayon, lead pencil, or in ink, wholly or in part, shall be valid.

17. Where there are two or more candidates voted for in an office for which the law authorizes the election of only one, the vote shall not be counted in favor of any of them, but this shall not affect the validity of the other votes therein.

18. If the candidates voted for exceed the number of those to be elected, the ballot is valid, but the votes shall be counted only in favor of the candidates whose names were firstly written by the voter within the spaces provided for said office in the ballot until the authorized number is covered.

19. Any vote in favor of a person who has not filed a certificate of candidacy or in favor of a candidate for an office for which he did not present himself shall be considered as a stray vote but it shall not invalidate the whole ballot.

20. Ballots containing the name of a candidate printed and pasted on a blank space of the ballot or affixed thereto through any mechanical process are totally null and void. cdasia

21. Circles, crosses or lines put on the spaces on which the voter has not voted shall be considered as signs to indicate his desistance from voting and shall not invalidate the ballot.

22. Unless it should clearly appear that they have been deliberately put by the voter to serve as identification marks, commas, dots, lines, or hyphens between the first name and surname of a candidate, or in other parts of the ballot, traces of

the letter "T", "J", and other similar ones, the first letters or syllables of names which the voter does not continue, the use of two or more kinds of writing and unintentional or accidental flourishes, strokes, or strains, shall not invalidate the ballot.

23. Any ballot which clearly appears to have been filled by two distinct persons before it was deposited in the ballot box during the voting is totally null and void.

24. Any vote cast in favor of a candidate who has been disqualified by final judgment shall be considered as stray and shall not be counted but it shall not invalidate the ballot.

25. Ballots wholly written in Arabic in localities where it is of general use are valid. To read them, the board of election inspectors may employ an interpreter who shall take an oath that he shall read the votes correctly.

26. The accidental tearing or perforation of a ballot does not annul it.

27. Failure to remove the detachable coupon from a ballot does not annul such ballot.

28. A vote for the President shall also be a vote for the Vice-President running under the same ticket of a political party, unless the voter votes for a Vice-President who does not belong to such party. (Sec. 155, 1978 EC)

SECTION 212. Election returns.

The board of election inspectors shall prepare the election returns simultaneously with the counting of the votes in the polling place as prescribed in Section 210 hereof. The return shall be prepared in sextuplicate. The recording of votes shall be made as prescribed in said section. The entry of votes in words and figures for each candidate shall be closed with the signature and the clear imprint of the thumbmark of the right hand of all the members, likewise to be affixed in full view of the public, immediately after the last vote recorded or immediately after the name of the candidate who did not receive any vote.

The returns shall also show the date of the election, the polling place, the barangay and the city of municipality in which it was held, the total number of ballots found in the compartment for valid ballots, the total number of valid ballots withdrawn from the compartment for spoiled ballots because they were erroneously placed therein, the total number of excess ballots, the total number of marked or void ballots, and the total number of votes obtained by each candidate, writing out the said number in words and figures and, at the end thereof, the board of election inspectors shall certify that the contents are correct. The returns shall be accomplished in a single sheet of paper, but if this is not possible, additional sheets may be used which shall be prepared in the same manner as the first sheet and likewise certified by the board of election inspectors.

The Commission shall take steps so that the entries on the first copy of the election returns are clearly reproduced on the

second, third, fourth, fifth, and sixth copies thereof, and for this purpose the Commission shall use a special kind of paper.

Immediately upon the accomplishment of the election returns, each copy thereof shall be sealed in the presence of the watchers and the public, and placed in the proper envelope, which shall likewise be sealed and distributed as herein provided (Sec. 156, 1978 EC) cda

Any election return with a separately printed serial number or which bears a different serial number from that assigned to the particular polling place concerned shall not be canvassed. This is to be determined by the board of canvassers prior to its canvassing on the basis of the certification of the provincial, city or municipal treasurer as to the serial number of the election return assigned to the said voting precinct, unless the Commission shall order in writing for its canvassing, stating the reason for the variance in serial numbers.

If the signatures and/or thumbmarks of the members of the board of election inspectors or some of them as required in this provision are missing in the election returns, the board of canvassers may summon the members of the board of election inspectors concerned to complete the returns. (Sec. 156, 1978 EC)

SECTION 213. Proclamation of the result of the election in the polling place.

Upon the completion of the election returns, the chairman of the board of election inspectors shall orally and publicly announce the total number of votes received in the election in the polling place by each and every one of the candidates, stating their corresponding office. (Sec. 157, 1978 EC)

SECTION 215. Board of election inspectors to issue a certificate of the number of votes polled by the candidates for an office to the watchers.

After the announcement of the results of the election and before leaving the polling place, it shall be the duty of the board of election inspectors to issue a certificate of the number of the votes received by a candidate upon request of the watchers. All the members of the board of election inspectors shall sign the certificate. (Sec. 159, 1978 EC)

ARTICLE XX

Pre-proclamation Controversies

SECTION 241. Definition.

A pre-proclamation controversy refers to any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission, or any matter raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of the election returns.

SECTION 242. Commission's exclusive jurisdiction of all pre-proclamation controversies.

The Commission shall have exclusive jurisdiction of all pre-proclamation controversies. It may motu proprio or upon written petition, and after due notice and hearing, order the partial or total suspension of the proclamation of any candidate-elect or annual partially or totally any proclamation, if one has been made, as the evidence shall warrant in accordance with the succeeding sections.

SECTION 243. Issues that may be raised in pre-proclamation controversy.

The following shall be proper issues that may be raised in a pre-proclamation controversy: 

(a) Illegal composition or proceedings of the board of canvassers;

(b) The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Section 233, 234, 235 and 236 of this Code;

(c) The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic; and

(d) When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates.

SECTION 244. Contested composition or proceedings of the board. — When the composition or proceedings of the board of canvassers are contested, the board of canvassers shall, within twenty-four hours, make a ruling thereon with notice to the contestant who, if adversely affected, may appeal the matter to the Commission within five days after the ruling with proper notice to the board of canvassers. After due notice and hearing, the Commission shall decide the case within ten days from the filing thereof. During the pendency of the case, the board of canvassers shall suspend the canvass until the Commission orders the continuation or resumption thereof and citing their reasons or grounds therefor.

SECTION 245. Contested election returns. — Any candidate, political party or coalition of political parties, contesting the inclusion or exclusion in the canvass of any election returns on any of the grounds authorized under this article or in Sections 234, 235 and 236 of Article XIX shall submit their verbal objections to the chairman of the board of canvassers at the time the questioned returns is presented for inclusion or exclusion, which objections shall be noted in the minutes of the canvassing.

The board of canvassers upon receipt of any such objections shall automatically defer the canvass of the contested returns and shall proceed to canvass the rest of the returns which are not contested by any party.

Within twenty-four hours from and after the presentation of a verbal objection, the same shall be submitted in written form to the board of canvassers. Thereafter, the board of canvassers shall take up each contested return, consider the written objections thereto and summarily rule thereon. Said ruling shall be made oral initially and then reduced to writing by the board within twenty-four hours from the time the oral ruling is made. cd

Any party adversely affected by an oral ruling on its/his objection shall immediately state orally whether it/he intends to appeal said ruling. The said intent to appeal shall be stated in the minutes of the canvassing. If a party manifests its intent to appeal, the board of canvassers shall set aside the return and proceed to rule on the other contested returns. When all the contested returns have been ruled upon by it, the board of canvassers shall suspend the canvass and shall make an appropriate report to the Commission, copy furnished the parties.

The board of canvassers shall not proclaim any candidate as winner unless authorized by the Commission after the latter has ruled on the objections brought to it on appeal by the losing party and any proclamation made in violation hereof shall be void ab initio, unless the contested returns will not adversely affect the results of the election.

SECTION 246. Summary proceedings before the Commission. — All pre-proclamation controversies shall be heard summarily by the Commission after due notice and hearing, and its decisions shall be executory after the lapse of five days from receipt by the losing party of the decision of the Commission, unless restrained by the Supreme Court. (Sec. 55, BP 697)

SECTION 247. Partial proclamation. — Notwithstanding the pendency of any pre-proclamation controversy, the Commission may, motuproprio or upon the filing of a verified petition and after due notice and hearing, order the proclamation of other winning candidates whose election will not be affected by the outcome of the controversy. (Sec. 56, BP 697)

SECTION 248. Effect of filing petition to annual or to suspend the proclamation. — The filing with the Commission of a petition to annual or to suspend the proclamation of any candidate shall suspend the running of the period within which to file an election protest or quo warranto proceedings.

 

CASES:

LAGUMBAY v. COMELEC

EN BANC

[G.R. No. L-25444. January 31, 1966.]

WENCESLAO RANCAP LAGUMBAY, petitioner, vs. THE COMMISSION ON ELECTIONS and CESAR CLIMACO, respondents.

Wenceslao R. Lagumbay for the petitioner.

Ambrosio Padilla for the respondents.

SYLLABUS

1. ELECTION LAWS; JURISDICTION; ELECTION FRAUDS. — Frauds in the holding of election should be settled by the corresponding courts or electoral tribunals where testimonial or documentary evidence is necessary; but where the fraud is so palpable from the return itself, there is no reason to give itprima facie value.

2. ID.; ID.; FALSE OR FABRICATED RETURNS; DUTY OF THE COMMISSION ON ELECTIONS TO REJECT THEM. — Where the returns were obviously false or fabricated, the Commission on Elections has the power and duty to reject them.

D E C I S I O N

BENGZON, J p:

This petition prays for revision of an order of the Commission on Elections declining to reject the returns of certain precincts of some municipalities in Mindanao. The Constitution provides for review by this Court of the rulings of the said Commission.

The matter being urgent, and having reached the conclusion that the returns of certain questioned precincts were "obviously manufactured" within the meaning of pertinent jurisprudence, particularly Mitchell vs. Stevens,1 we issued on December 24, 1965, a short resolution upholding the Commission's power and duty to reject the returns of about fifty precincts.

"It appearing therein that — contrary to all statistical probabilities — in the first set, in each precinct the number of registered voters equalled the number of ballots and the number of votes reportedly cast and tallied for each and every candidate of the Liberal Party, the party in power; whereas, all the candidates of the Nacionalista Party got exactly zero; and in the second set, — again contrary to all statistical probabilities — all the reported votes were for candidates of the Liberal Party, all of whom were credited with exactly the same number of votes in each precinct, ranging from 240 in one precinct to 650 in another precinct; whereas, all the candidates of the Nacionalista Party were given exactly zero in all said precincts."

We opined that the election result in said precincts as reported, was utterly improbable and clearly incredible. For it is not likely, in the ordinary course of things, that all the electors of one precinct would, as one man, vote for all the eight candidates of the Liberal Party, without giving a single vote to one of the eight candidates of the Nacionalista Party. Such extraordinary coincidence was quite impossible to believe, knowing that the Nacionalista Party had and has a nationwide organization, with branches in every province, and was, in previous years, the party in power in these islands.

We also know from our experience in examining ballots in the three Electoral Tribunals (Presidential, Senate, and House)

that a large portion of the electors do not fill all the blanks for senators in their ballots. Indeed, this observation is confirmed by the big differences in the votes received by the eight winning senators in this as well as in previous national elections;2 almost a million votes between the first place and the eight. Furthermore, in 1965, the total number of electors who cast their votes was 6,833,369 (more or less). If every voter had written eight names on his ballot, the total number of votes cast for all the candidates would be that number multiplied by 8, namely 54,666,952. But the total number of votes tallied for the candidates for senator amounted to 49,374,942 only. The difference between the two sums represents the number of ballots that did not contain eight names for senators. In other words, some 5 million ballots did not carry eight names. Of course, this is a rough estimate, because some ballots may have omitted more names, in which case, the number of incomplete ballots would be less. But the general idea and the statistical premise is there.

The same statistical result is deducible from the 1963 election data: total number of electors who voted, 7,712,019; if each of them named eight senators, the total votes tallied should have been 61,696,152, and yet the total number tallied for all the senatorial candidates was 45,812,470 only. A greater number of incomplete ballots.

It must be noted that this is not an instance wherein one return gives to one candidate all the votes in the precinct, even as it gives exactly zero to the other. This is not a case where some senatorial candidates obtain zero exactly, while some others receive a few scattered votes. Here, all the eightcandidates of one party garnered all the votes, each of them receiving exactly the same number; whereas all the eight candidates of the other party got precisely nothing.

The main point to remember is that there is no blockvoting nowadays.

What happened to the vote of the Nacionalista inspector? There was one in every precinct. Evidently, either he became a traitor to his party, or was made to sign a false return by force or other illegal means. If he signed voluntarily, but in breach of faith, the Nacionalista inspector betrayed his party; and, any voting or counting of ballots therein, was a sham and a mockery of the national suffrage.

Hence, denying prima facie recognition to such returns on the ground that they are manifestly fabricated or falsified, would constitute a practical approach to the Commission's mission to insure free and honest elections.

In Mitchell vs. Stevens, supra, the returns showed a noticeable excess of votes over the number of registered voters, and the court rejected the returns as obviously "manufactured". Why? The excess could have been due to the fact that, disregarding all pertinent data, the election officers wrote the number of votes their fancy dictated; and so the return was literally a "manufactured", "fabricated" return. Or maybe because persons other than voters, were permitted to take part and vote; or because registered voters cast more than one ballot each, or because those in charge of the tally sheet falsified

their counts. Hence, as the Mitchell decision concluded, the returns were "not true returns . . . but simply manufactured evidences of an attempt to defeat the popular will." All these possibilities and/or probabilities were plain fraudulent practices, resulting in misrepresentation of the election outcome. "Manufactured" was the word used. "Fabricated" or "false" could as well have been employed.

The same ratio decidendi applies to the situation in the precincts herein mentioned. These returns were obviously false or fabricated — prima facie. Let us take for example, precinct No. 3 of Andong, Lanao del Sur. There were 648 registered voters. According to such return all the eight candidates of the Liberal Party got 648 each,3 and the eight Nacionalista candidates got exactly zero. We hold such return to be evidently fraudulent or false because of the inherent improbability of such a result — against statistical probabilities — specially because at least one vote should have been received by the Nacionalista candidates, i. e., the vote of the Nacionalista inspector. It is, of course, "possible" that such inspector did not like his party's senatorial line-up; but it is not probable that he disliked all of such candidates, and it is not likely that he favored all the eight candidates of the Liberal Party. Therefore, most probably, he was made to sign an obviously false return, or else he betrayed his party, in which case, the election therein — if any — was no more than a barefaced fraud and a brazen contempt of the popular polls.

Of course we agree that frauds in the holding of the election should be handled — and finally settled — by the corresponding courts or electoral tribunals. That is the general rule, where testimonial or documentary evidence, is necessary; but where the fraud is so palpable from the return itself (res ipsa loquitur — the thing speaks for itself), there is no reason to accept it and give it prima facie value.

At any rate, fraud or no fraud, the verdict in these fifty precincts may ultimately be ascertained before the Senate Electoral Tribunal.4 All we hold now, is that the returns show "prima facie" that they do not reflect true and valid reports of regular voting. The contrary may be shown by candidate Climaco — in the corresponding election protest.

The well-known delay in the adjudication of election protests often gave the successful contestant a mere pyrrhic victory, i.e., a vindication when the term of office is about to expire, or has expired. And so the notion has spread among candidates for public office that the "important thing" is the proclamation; and to win it, they or their partisans have tolerated or abetted the tampering or the "manufacture" of election returns just to get the proclamation, and then let the victimized candidate to file the protest, and spend his money to work for an empty triumph.

It is generally admitted that the practice has prevailed in all previous elections. Never was the point pressed upon us in a more clear-cut manner. And without, in any way, modifying our stand as outlined in the Nacionalista Party vs. Commission decision, we feel the mores of the day require application — even extension — of the principle in the Mitchel decision, which is realistic and commonsensical even as it strikes a blow

at such pernicious "grab-the- proclamation-prolong-the-protest" slogan of some candidates or parties.

It is strongly urged that the results reported in these returns are quite "possible", bearing in mind the religious or political control of some leaders in the localities affected. We say, possible, not probable. It is possible to win the sweepstakes ten times; but not probable. Anyway, judges are not disposed to believe that such "control" has proved so powerful as to convert the electors into mere sheep or robots voting as ordered. Their reason and conscience refuse to believe that 100% of the voters in such precincts abjectly yet lawfully surrendered their precious freedom to choose the senators of this Republic.

 

Indeed, social scientists might wonder whether courts could, consistently with morality and public policy,5 render judgment acknowledging such "control" or validating such "controlled votes" or candidate Climaco chose to call them.

In view of the foregoing, and overlooking some intemperate language which detracts from the force of the arguments, we hereby deny the motion to reconsider our resolution of December 24, 1965, as well as the petition for a re-hearing.

Concepcion, Reyes, J.B.L., Dizon and Makalintal, JJ., concur.

Regala, Bautista Angelo, Zaldivar and Bengzon, JJ., dissent.

||| (Lagumbay v. COMELEC, G.R. No. L-25444, [January 31, 1966], 122 PHIL 1274-1291)

UTUTALUM v COMELEC

EN BANC

[G.R. Nos. 84843-44. January 22, 1990.]

NURHUSSEIN A. UTUTALUM, petitioner, vs. COMMISSION ON ELECTIONS and ARDEN S. ANNI, respondents.

Pedro Q. Quadra for petitioner.

Brillantes, Nachura, Navarro & Arcilla Law Offices for private respondent.

D E C I S I O N

MELENCIO-HERRERA, J p:

Petitioner, Nurhussein A. Ututalum, prays for the reversal, on the ground of grave abuse of discretion, of the 19 April and 31 August 1988 Resolutions of public respondent Commission on Elections (COMELEC), in Case Nos. SP 87-469 and 87-497, which declined to reject the election returns from all the precincts of the Municipality of Siasi, Sulu, in the last 30 May 1987 Congressional elections and to annul respondent Arden S. Anni's proclamation.

The undisputed facts follow:

1. Petitioner Ututalum and private respondent, Arden S. Anni, were among the candidates in the last 30 May 1987 Congressional elections for the Second District of Sulu. 30 May was the date reset by the COMELEC from the 11 May 1987 elections.

2. The election returns from Siasi showed that Petitioner Ututalum obtained four hundred and eighty-two (482) votes while respondent Anni received thirty-five thousand five hundred and eighty-one (35,581) votes out of the thirty-nine thousand eight hundred and one (39,801) registered voters (pp. 13,187, Rollo). If the returns of Siasi were excluded, Petitioner Ututalum would have a lead of 5,301 votes. prLL

3. On 4 June 1987, during the canvass of votes, Petitioner Ututalum, without availing of verbal objections, filed written objections to the returns from Siasi on the ground that they "appear to be tampered with or falsified" owing to the "great excess of votes" appearing in said returns. He then claimed that multiplying the 42 precincts of Siasi by 300 voters per precinct, there should have been only 12,600 registered voters and not 36,663 voters who cast their votes, thereby exceeding the actual authorized voters by 23,947 "ghost voters." (In his Petition, however, he admits that an error was committed since "in the May 30, 1987 elections, Siasi had 148 precincts" (p. 6, Rollo). He then prayed for the exclusion from the canvass of any election returns from Siasi.

4. On the same day, 4 June, the Provincial Board of Canvassers of Sulu dismissed petitioner's objections because they had been "filed out of time or only after the Certificate of Canvass had already been canvassed by the Board and because the grounds for the objection were not one of those enumerated in Section 243 of the Election Code" (See Order, p. 155, Rollo). Also on the same day, 4 June 1987, petitioner filed with the Board of Canvassers his Notice of Appeal from said Resolution to the COMELEC.

5. On 5 June 1987, petitioner filed his first Petition with the COMELEC seeking a declaration of failure of elections in the Municipality of Siasi and other mentioned municipalities; that the COMELEC annul the elections in Siasi and conduct another election thereat; and order the Provincial Board of Canvassers to desist from proclaiming any candidate pending a final determination of the Petition.

6. On 8 June 1987, the Provincial Board of Canvassers forwarded Petitioner's appeal as well as its Order dismissing the written objections to the COMELEC, with the request for authority to proclaim Respondent Anni as the winning candidate.

7. On 11 June 1987, in Case No. SPC 87-180, the COMELEC resolved that there was no failure of elections in the 1st and 2nd Districts of Sulu except in specified precincts in the 1st District. dctai

8. On 14 June 1987, the Sulu Provincial Board of Canvassers proclaimed respondent Anni as the winner. He subsequently

took his oath of office and entered upon the discharge of its functions in July 1987.

9. On 16 June 1987, petitioner filed a second Petition with the COMELEC praying for the annulment of Respondent Anni's proclamation and for his own proclamation as Congressman for the Second District of Sulu.

10. While those two petitions were pending, one Lupay Loong, a candidate for Governor of Sulu, filed a verified Petition with the COMELEC to annul the List of Voters of Siasi, for purposes of the election of local government officials (docketed as SPC Case No. 87-624, p. 9, Rollo). This Petition was opposed by Respondent Anni. Petitioner Ututalum was not a party to this proceeding.

On 16 January 1988, the COMELEC issued, in said SPC 87-624, a Resolution annulling the Siasi List of Voters "on the ground of massive irregularities committed in the preparation thereof and being statistically improbable", and ordering a new registration of voters for the local elections of 15 February 1988 (p. 41 Rollo). cdll

Said Resolution was affirmed by this Court in Anni vs. COMELEC, G.R. No. 81398, 26 January 1988 (p. 43, Rollo). A new Registry List was subsequently prepared yielding only 12,555 names (p. 228, Rollo).

11. Immediately after having been notified of the annulment of the previous Siasi List of Voters, Petitioner Ututalum filed a supplemental pleading with the COMELEC entreating that such annulment be considered and applied by the Commission in resolving his two Petitions against Respondent Anni (p. 319, Rollo).

12. On 19 April 1988, in a consolidated Per Curiam Resolution, the COMELEC (First Division) denied Petitioner Ututalum's two Petitions "for lack of merit, with the advise (sic) that he may file an election contest before the proper forum, if so desired." Declared the COMELEC inter alia:

"While we believe that there was padding of the registry list of voters in Siasi, yet to annul all the votes in this municipality for purposes of the May 30, 1987 elections would disenfranchise the good or valid votes. As held in Espaldon vs. Comelec (G.R. No. L-78987, August 25, 1987), this Commission is not the proper forum nor is it a proper ground in a pre-proclamation controversy, to wit:

"Padded voter's list, massive fraud and terrorism is clearly not among the issues that may be raised in a pre-proclamation controversy. They are proper grounds for an election protest."

Petitioner Ututalum is now before us assailing the foregoing Resolution.

Petitioner contends that the issue he raised before the COMELEC actually referred to "obviously manufactured returns," a proper subject matter for a pre-proclamation controversy and, therefore, cognizable by the COMELEC, in accordance with Section 243 of the Omnibus Election Code, which provides:

"Sec. 243. The following shall be the issues that may be raised in a pre-proclamation controversy:

xxx xxx xxx

"c) The election returns were prepared under duress, threats, coercion or intimidation or they are obviously manufactured or not authentic; (emphasis supplied)

xxx xxx xxx

Further, that the election returns from Siasi should be excluded from the canvass of the results since its original List of Voters had already been finally annulled; and, lastly, that there is no need to re-litigate in an election protest the matter of annulment of the Registry List, this being already a "fait accompli."

It is our considered view, however, that given the factual setting, it can not justifiably be contended that the Siasi returns, per se, were "obviously manufactured" and, thereby, a legitimate issue in a pre-proclamation controversy. It is true that in Lagumbay vs. COMELEC (L-2544, 31 January 1966, 16 SCRA 175), relied upon heavily by Petitioner Ututalum, this Court ruled that the returns are obviously manufactured where they show a great excess of votes over what could have been legally cast. The Siasi returns, however, do not show prima facie that on the basis of the old List of Voters, there is actually a great excess of votes over what could have been legally cast considering that only 36,000 persons actually voted out of the 39,801 voters. Moreover, the Lagumbay case dealt with the "manufacture" of returns by those charged with their preparation as shown prima facie on the questioned returns themselves. Not so in this case which deals with the preparation of the registry list of voters, a matter that is not reflected on the face of said returns. Cdpr

Basically, therefore, petitioner's cause of action is the padding of the Siasi List of Voters, which, indeed, is not a listed ground for a pre-proclamation controversy.

"SEC. 243. Issues that may be raised in pre-proclamation controversy. — The following shall be proper issues that may be raised in a pre-proclamation controversy:

(a) Illegal composition or proceedings of the board of canvassers;

(b) The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sections 233,234, 235 and 236 of this Code;

(c) The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic; and

(d) When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates."

As pointed out in Espaldon vs. COMELEC, L-78987, 25 August 1987:

"Padded voters' list, massive fraud, and terrorism are clearly not among the issues that may be raised in a pre-proclamation controversy. They are proper grounds for an election protest." cdtai

And as held in the case of Bautista vs. COMELEC, G.R. No. 78994, March 10, 1988:

"The scope of pre-proclamation controversy is limited to the issues enumerated under Section 243 of the Omnibus Election Code. The enumeration therein of the issues that may be raised in a pre-proclamation controversy is restrictive and exclusive" (see also Sanchez vs. COMELEC, G.R. No. L-78461, 12 August 1987, 153 SCRA 67).

But petitioner insists that the new Registry List should be considered and applied by the COMELEC as the legal basis in determining the number of votes which could be legally cast in Siasi. To allow the COMELEC to do so retroactively, however, would be to empower it to annul a previous election because of the subsequent annulment of a questioned registry in a proceeding where petitioner himself was not a party. This cannot be done. In the case ofBashier vs. COMELEC (L-33692, 24 February 1972, 43 SCRA 238), this Court categorically ruled:

 

"The subsequent annulment of the voting list in a separate proceeding initiated motu proprio by the Commission and in which the protagonists here were not parties, cannot retroactively and without due process result in nullifying accepted election returns in a previous election simply because such returns came from municipalities where the precinct books of voters were ordered annulled due to irregularities in their preparation."

Besides, the List of Voters used in the 1987 Congressional elections was then a validly existing and still unquestioned permanent Registry List. Then, it was the only legitimate roster which could be used as basis for voting. There was no prior petition to set it aside for having been effected with fraud, intimidation, force, or any other similar irregularity in consonance with Section 145 of the Omnibus Election Code. 1 That list must then be considered conclusive evidence of persons who could exercise the right of suffrage in a particular election (Abendante vs. Relato, 94 Phil. 8; Medenilla vs. Kayanan, L-28448-49, 30 July 1971, 40 SCRA 154). LibLex

Moreover, the preparation of a voter's list is not a proceeding before the Board of Canvassers. A pre-proclamation controversy is limited to challenges directed against the Board of Canvassers, not the Board of Election Inspectors (Sanchez vs. COMELEC, ante), and such challenges should relate to specified election returns against which petitioner should have made specific verbal objections (Sec. 245, Omnibus Election Code; Pausing vs. Yorac, et al., G.R. No.

82700, 4 August 1988, Endique vs. COMELEC, G.R. Nos. 82020-21, 22 November 1988), but did not.

That the padding of the List of Voters may constitute fraud, or that the Board of Election Inspectors may have fraudulently conspired in its preparation, would not be a valid basis for a pre-proclamation controversy either. For, whenever irregularities, such as fraud, are asserted, the proper course of action is an election protest.

"Such irregularities as fraud, vote-buying and terrorism are proper grounds in an election contest but may not as a rule be invoked to declare a failure of election and to disenfranchise the greater number of the electorate through the misdeeds, precisely, of only a relative few. Otherwise, elections will never be carried out with the resultant disenfranchisement of the innocent voters, for the losers will always cry fraud and terrorism" (GAD vs. COMELEC, G.R. No. 78302, May 26, 1987, 150 SCRA 665).

Petitioner Ututalum's other submission is that the Siasi returns should be excluded since the List of Voters on which it was based has been conclusively annulled. He thus asks for the application of the rule on res judicata. This is neither possible. Aside from the fact that the indispensable requisites of res judicata, namely, identity of parties, of subject matter, and of cause of action are not all present, the ruling desired would, as the COMELEC had opined, disenfranchise the good and valid votes in the Congressional elections of 30 May 1987.

Finally, this Petition has to fail if only on the basis of the equally important doctrine enunciated in Padilla vs. COMELEC (L-68351-52, 9 July 1985,137 SCRA 424), reiterated in Baldo vs. COMELEC (G.R. No. 83205,14 July 1988) that:

"Where the respondent had already been proclaimed as the elected representative of the contested congressional district, and has long assumed office and has been exercising the powers, functions, and duties appurtenant to said office, the remedy of the petitioner lies with the House of Representatives Electoral Tribunal. The pre-proclamation controversy becomes moot and academic."

and in the more recent case of Antonio vs. COMELEC (G.R. No. 84678, 29 March 1989):

"Where the winning candidates have been proclaimed, the pre-proclamation controversies cease. A pre-proclamation controversy is no longer viable at this point in time and should be dismissed. The proper remedy thereafter is an election protest before the proper forum. Recourse to such remedy would settle the matter in controversy conclusively and once and for all."

Having arrived at the foregoing conclusions, a discussion of the other peripheral issues raised has been rendered unnecessary. cdphil

WHEREFORE, this Petition for Certiorari is hereby DISMISSED and the assailed Resolutions are AFFIRMED. No costs.

SO ORDERED.

Fernan, C.J., Narvasa, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino, Medialdea and Regalado, JJ., concur.

||| (Ututalum v. COMELEC, G.R. Nos. 84843-44, [January 22, 1990], 260 PHIL 354-364)

ARTICLE XXI

Election Contests

SECTION 249. Jurisdiction of the Commission. — The Commission shall be the sole judge of all contests relating to the elections, returns, and qualifications of all Members of the Batasang Pambansa, elective regional, provincial and city officials. (Art. XII-C, Sec. 2(b), Const.; Art. XIV, Sec. 58, BP 697)

SECTION 250. Election contests for Batasang Pambansa, regional, provincial and city offices. — A sworn petition contesting the election of any Member of the Batasang Pambansa or any regional, provincial or city official shall be filed with the Commission by any candidate who has duly filed a certificate of candidacy and has been voted for the same office, within ten days after the proclamation of the results of the election. (Art. XIV, Sec. 59, BP 697)

SECTION 251. Election contests for municipal offices. — A sworn petition contesting the election of a municipal officer shall be filed with the proper regional trial court by any candidate who has duly filed a certificate of candidacy and has been voted for the same office, within ten days after proclamation of the results of the election. (Art. XVIII, Sec. 190, 1978 EC)

SECTION 252. Election contest for barangay offices. — A sworn petition contesting the election of a barangay officer shall be filed with the proper municipal or metropolitan trial court by any candidate who has duly filed a certificate of candidacy and has been voted for the same office, within ten days after the proclamation of the results of the election. The trial court shall decide the election protest within fifteen days after the filing thereof. The decision of the municipal or metropolitan trial court may be appealed within ten days from receipt of a copy thereof by the aggrieved party to the regional trial court which shall decide the case within thirty days from its submission, and whose decisions shall be final. (Art. XVIII, Sec.191, 1978 EC; Sec. 20, BP 222)

SECTION 253. Petition for quo warranto. — Any voter contesting the election of any Member of the Batasang Pambansa, regional, provincial, or city officer on the ground of ineligibility or of disloyalty to the Republic of the Philippines shall file a sworn petition for quo warranto with the Commission within ten days after the proclamation of the results of the election. (Art. XIV, Sec. 60, BP 697; Art. XVIII, Sec. 189, par. 2, 1978 EC)

Any voter contesting the election of any municipal or barangay officer on the ground of ineligibility or of disloyalty

to the Republic of the Philippines shall file a sworn petition for quo warranto with the regional trial court or metropolitan or municipal trial court, respectively, within ten days after the proclamation of the results of the election. (Art. XVIII, Sec. 189, par. 2, 1978 EC) acd

SECTION 254. Procedure in election contests. — The Commission shall prescribe the rules to govern the procedure and other matters relating to election contests pertaining to all national, regional, provincial, and city offices not later than thirty days before such elections. Such rules shall provide a simple and inexpensive procedure for the expeditious disposition of election contests and shall be published in at least two newspapers of general circulation. (Art. XVIII, Sec. 192, 1978 EC; Art. XIV, Sec. 62, BP 697)

However, with respect to election contests involving municipal and barangay offices the following rules of procedure shall govern:

(a) Notice of the protest contesting the election of a candidate for a municipal or barangay office shall be served upon the candidate by means of a summons at the postal address stated in his certificate of candidacy except when the protestee, without waiting for the summons, has made the court understand that he has been notified of the protest or has filed his answer hereto;

(b) The protestee shall answer the protest within five days after receipt of the summons, or, in case there has been no summons from the date of his appearance and in all cases before the commencement of the hearing of the protest or contest. The answer shall deal only with the election in the polling places which are covered by the allegations of the contest;

(c) Should the protestee desire to impugn the votes received by the protestant in other polling places, he shall file a counter-protest within the same period fixed for the answer serving a copy thereof upon the protestant by registered mail or by personal delivery or through the sheriff;

(d) The protestant shall answer the counter-protest within five days after notice;

(e) Within the period of five days counted from the filing of the protest any other candidate for the same office may intervene in the case as other contestants and ask for affirmative relief in his favor by a petition in intervention, which shall be considered as another contest, except that it shall be substantiated within the same proceedings. The protestant or protestee shall answer the protest in intervention within five days after notice;

(f) If no answer shall be filed to the contest, counter-protest, or to the protest in intervention, within the time limits respectively fixed, a general denial shall be deemed to have been entered;

(g) In election contest proceedings, the permanent registry list of voters shall be conclusive in regard to the question as to who had the right to vote in said election. cdasia

SECTION 255. Judicial counting of votes in election contest. — Where allegations in a protest or counter-protest so warrant, or whenever in the opinion of the court the interests of justice so require, it shall immediately order the book of voters, ballot boxes and their keys, ballots and other documents used in the election be brought before it and that the ballots be examined and the votes recounted. (Sec. 221, 1971 EC)

 SECTION 256. Appeals. — Appeals from any decision rendered by the regional trial court under Section 251 and paragraph two, Section 253 hereof with respect to quo warranto petitions filed in election contests affecting municipal officers, the aggrieved party may appeal to the Intermediate Appellate Court within five days after receipt of a copy of the decision. No motion for reconsideration shall be entertained by the court. The appeal shall be decided within sixty days after the case has been submitted for decision. (Art. XVIII, Sec. 196, 1978 EC)

SECTION 257. Decision in the Commission. — The Commission shall decide all election cases brought before it within ninety days from the date of their submission for decision. The decision of the Commission shall become final thirty days after receipt of judgment. (Art. XII, C, Sec. 3, Const.; Art. XVIII, Sec. 193, 1978 EC)

SECTION 258. Preferential disposition of contests in courts. — The courts, in their respective cases, shall give preference to election contests over all other cases, except those of habeas corpus, and shall without delay, hear and, within thirty days from the date of their submission for decision, but in every case within six months after filing, decide the same. (Art. XVIII, Sec. 197, 1978 EC)

SECTION 259. Actual or compensatory damages. — Actual or compensatory damages may be granted in all election contests or in quo warranto proceedings in accordance with law.

SECTION 260. Notice of decisions. — The clerk of court and the corresponding official in the Commission before whom an election contest or a quo warranto proceeding has been instituted or where the appeal of said case has been taken shall notify immediately the President of the Philippines of the final disposition thereof. In election contests involving provincial, city, municipal, or barangay offices, notice of such final disposition shall also be sent to the secretary of the local sanggunian concerned. If the decision be that none of the parties has been legally elected, said official shall certify such decision to the President of the Philippines and, in appropriate cases, to the Commission. (Art. XVIII, Sec. 198, 1978 EC)

 

ARTICLE XXII

Election Offenses

 

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

(a) Vote-buying and vote-selling. — (1) Any person who gives, offers or promises money or anything of value, gives or promises any office or employment, franchise or grant, public or private, or makes or offers to make an expenditure, directly or indirectly, or cause an expenditure to be made to any person, association, corporation, entity, or community in order to induce anyone or the public in general to vote for or against any candidate or withhold his vote in the election, or to vote for or against any aspirant for the nomination or choice of a candidate in a convention or similar selection process of a political party.

(2) Any person, association, corporation, group or community who solicits or receives, directly or indirectly, any expenditure or promise of any office or employment, public or private, for any of the foregoing considerations. (Par. (a), Sec. 178, 1978 EC)

(b) Conspiracy to bribe voters. — Two or more persons, whether candidates or not, who come to an agreement concerning the commission of any violation of paragraph (a) of this section and decide to commit it. (Par. (b), Id.)

(c) Wagering upon result of election. — Any person who bets or wagers upon the outcome of, or any contingency connected with an election. Any money or thing of value or deposit of money or thing of value situated anywhere in the Philippines put as such bet or wager shall be forfeited to the government. (Par. (c), Id.)

(d) Coercion of subordinates. — (1) Any public officer, or any officer of any public or private corporation or association, or any head, superior, or administrator of any religious organization, or any employer or land-owner who coerces or intimidates or compels, or in any manner influence, directly or indirectly, any of his subordinates or members or parishioners or employees or house helpers, tenants, overseers, farm helpers, tillers, or lease holders to aid, campaign or vote for or against any candidate or any aspirant for the nomination or selection of candidates.

(2) Any public officer or any officer of any commercial, industrial, agricultural, economic or social enterprise or public or private corporation or association, or any head, superior or administrator of any religious organization, or any employer or landowner who dismisses or threatens to dismiss, punishes or threatens to punish by reducing his salary, wage or compensation, or by demotion, transfer, suspension, separation, excommunication, ejectment, or causing him annoyance in the performance of his job or in his membership, any subordinate member or affiliate, parishioner, employee or house helper, tenant, overseer, farm helper, tiller, or lease holder, for disobeying or not complying with any of the acts ordered by the former to aid, campaign or vote for or against any candidate, or any aspirant for the nomination or selection of candidates. (Par. (d), Id.)

(e) Threats, intimidation, terrorism, use of fraudulent device or other forms of coercion. — Any person who, directly or indirectly, threatens, intimidates or actually causes, inflicts or produces any violence, injury, punishment, damage, loss or

disadvantage upon any person or persons or that of the immediate members of his family, his honor or property, or uses any fraudulent device or scheme to compel or induce the registration or refraining from registration of any voter, or the participation in a campaign or refraining or desistance from any campaign, or the casting of any vote or omission to vote, or any promise of such registration, campaign, vote, or omission therefrom. (Par. (e), Id.)

(f) Coercion of election officials and employees. — Any person who, directly or indirectly, threatens, intimidates, terrorizes or coerces any election official or employee in the performance of his election functions or duties. (New)

(g) Appointment of new employees, creation of new position, promotion, or giving salary increases. — During the period of forty-five days before a regular election and thirty days before a special election, (1) any head, official or appointing officer of a government office, agency or instrumentality, whether national or local, including government-owned or controlled corporations, who appoints or hires any new employee, whether provisional, temporary or casual, or creates and fills any new position, except upon prior authority of the Commission. The Commission shall not grant the authority sought unless, it is satisfied that the position to be filled is essential to the proper functioning of the office or agency concerned, and that the position shall not be filled in a manner that may influence the election.

As an exception to the foregoing provisions, a new employee may be appointed in case of urgent need: Provided, however, That notice of the appointment shall be given to the Commission within three days from the date of the appointment. Any appointment or hiring in violation of this provision shall be null and void.

(2) Any government official who promotes, or gives any increase of salary or remuneration or privilege to any government official or employee, including those in government-owned or controlled corporations. (Par. (f), Sec. 178, 1978 EC)

(h) Transfer of officers and employees in the civil service. — Any public official who makes or causes any transfer or detail whatever of any officer or employee in the civil service including public school teachers, within the election period except upon prior approval of the Commission. (Par. (g), Id.)

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

(j) Undue influence. — It is unlawful for any person to promise any office or employment, public or private, or to make or offer

to make an expenditure, directly or indirectly, or to cause an expenditure to be made to any person, association, corporation or entity, which may induce anyone or the public in general either to vote or withhold his vote, or to vote for or against any candidate in any election or any aspirant for the nomination or selection of an official candidate in a convention of a political party. It is likewise unlawful for any person, association, corporation or community, to solicit or receive, directly or indirectly, any expenditure or promise or any office, or employment, public or private, for any of the foregoing considerations. (Sec. 53, 1971 EC)

(k) Unlawful electioneering. — It is unlawful to solicit votes or undertake any propaganda on the day of registration before the board of election inspectors and on the day of election, for or against any candidate or any political party within the polling place and with a radius of thirty meters thereof. (Sec. 56, 1971 EC)

(l) Prohibition against dismissal of employees, laborers, or tenants. — No employee or laborer shall be dismissed, nor a tenant be ejected from his landholdings for refusing or failing to vote for any candidate of his employer or landowner. Any employee, laborer or tenant so dismissed or ejected shall be reinstated and the salary or wage of the employee or laborer, or the share of the harvest of the tenant, shall be restored to the aggrieved party upon application to the proper court. (Sec. 74, 1971 EC) 

(m) Appointment or use of special policemen, special agents, confidential agents or the like. — During the campaign period, on the day before and on election day, any appointing authority who appoints or any person who utilizes the services of special policemen, special agents, confidential agents or persons performing similar functions; persons previously appointed as special policemen, special agents, confidential agents or persons performing similar functions who continue acting as such, and those who fail to turn over their firearms, uniforms, insignias and other badges of authority to the proper officer who issued the same.

At the start of the aforementioned period, the barangay chairman, municipal mayor, city mayor, provincial governor, or any appointing authority shall submit to the Commission a complete list of all special policemen, special agents, confidential agents or persons performing similar functions in the employ of their respective political subdivisions, with such particulars as the Commission may require. (Par. (h), Sec. 178, 1978 EC)

(n) Illegal release of prisoners before and after election. — The Director of the Bureau of Prisons, any provincial warden, the keeper of the jail or the person or persons required by law to keep prisoners in their custody who illegally orders or allows any prisoner detained in the national penitentiary, or the provincial, city or municipal jail to leave the premises thereof sixty days before and thirty days after the election. The municipal or city warden, the provincial warden, the keeper of the jail or the person or persons required by law to keep prisoners in their custody shall post in three conspicuous public places a list of the prisoners or detention prisoners under their

care. Detention prisoners must be categorized as such. (Par. (i), Id.) acd

(o) Use of public funds, money deposited in trust, equipment, facilities owned or controlled by the government for an election campaign. — Any person who uses under any guise whatsoever, directly or indirectly, (1) public funds or money deposited with, or held in trust by, public financing institutions or by government offices, banks, or agencies; (2) any printing press, radio, or television station or audio-visual equipment operated by the Government or by its divisions, sub-divisions, agencies or instrumentalities, including government-owned or controlled corporations, or by the Armed Forces of the Philippines; or (3) any equipment, vehicle, facility, apparatus, or paraphernalia owned by the government or by its political subdivisions, agencies including government-owned or controlled corporations, or by the Armed Forces of the Philippines for any election campaign or for any partisan political activity. (Par. (j) Id.)

(p) Deadly weapons. — Any person who carries any deadly weapon in the polling place and within a radius of one hundred meters thereof during the days and hours fixed by law for the registration of voters in the polling place, voting, counting of votes, or preparation of the election returns. However, in cases of affray, turmoil, or disorder, any peace officer or public officer authorized by the Commission to supervise the election is entitled to carry firearms or any other weapon for the purpose of preserving order and enforcing the law. (Par. (k), Id.)

(q) Carrying firearms outside residence or place of business. — Any person who, although possessing a permit to carry firearms, carries any firearms outside his residence or place of business during the election period, unless authorized in writing by the Commission: Provided, That a motor vehicle, water or air craft shall not be considered a residence or place of business or extension hereof. (Par. (l), Id.)

This prohibition shall not apply to cashiers and disbursing officers while in the performance of their duties or to persons who by nature of their official duties, profession, business or occupation habitually carry large sums of money or valuables.

(r) Use of armored land, water or air craft. — Any person who uses during the campaign period, on the day before and on election day, any armored land, water or air craft, provided with any temporary or permanent equipment or any other device or contraption for the mounting or installation of cannons, machine guns and other similar high caliber firearms, including military type tanks, half trucks, scout trucks, armored trucks, of any make or model, whether new, reconditioned, rebuilt or remodelled: Provided, That banking or financial institutions and all business firms may use not more than two armored vehicles strictly for, and limited to, the purpose of transporting cash, gold bullion or other valuables in connection with their business from and to their place of business, upon previous authority of the Commission. (Par. (m), Id.)

(s) Wearing of uniforms and bearing arms. — During the campaign period, on the day before and on election day, any member of security or police organization of government

agencies, commissions, councils, bureaus, offices, or government-owned or controlled corporations, or privately-owned or operated security, investigative, protective or intelligence agencies, who wears his uniform or uses his insignia, decorations or regalia, or bears arms outside the immediate vicinity of his place of work: Provided, That this prohibition shall not apply when said member is in pursuit of a person who has committed or is committing a crime in the premises he is guarding; or when escorting or providing security for the transport of payrolls, deposits, or other valuables; or when guarding the residence of private persons or when guarding private residences, buildings or offices: Provided, further, That in the last case prior written approval of the Commission shall be obtained. The Commission shall decide all applications for authority under this paragraph within fifteen days from the date of the filing of such application. (Par. (n), Id.) cda

During the same period, and ending thirty days thereafter any member of the Armed Forces of the Philippines, special, forces, home defense forces,barangay self-defense units and all other para-military units that now exist or which may hereafter be organized who wears his uniform or bears arms outside the camp, garrison or barracks to which he is assigned or detailed or outside their homes, in case of members of para-military units, unless (1) the President of the Philippines shall have given previous authority therefor, and the Commission notified thereof in writing, or (2) the Commission authorizes him to do so, which authority it shall give only when necessary to assist it in maintaining free, orderly and honest elections, and only after notice and hearing. All personnel of the Armed Forces authorized by the President or the Commission to bear arms or wear their uniforms outside their camps and all police and peace officers shall bear their true name, rank and serial number, if any, stitched in block letters on a white background on the left breast of their uniform, in letters and numbers of a clearly legible design at least two centimeters tall, which shall at all times remain visible and uncovered. (Sec. 64, par. (a), BP 697)

During the election period, whenever the Commission finds it necessary for the promotion of free, orderly, honest and peaceful elections in a specific area, it shall confiscate or order the confiscation of firearms of any member or members of the Armed Forces of the Philippines, police forces, home defense forces, barangay self-defense units, and all other para-military units that now exist, or which may hereafter be organized, or any member or members of the security or police organization, government ministries, commissions, councils, bureaus, offices, instrumentalities, or government-owned or controlled corporations and other subsidiaries, or of any member or members of privately owned or operated security, investigative, protective or intelligence agencies performing identical or similar functions. (Id.)

(t) Policemen and provincial guards acting as bodyguards or security guards. — During the campaign period, on the day before and on election day, any member of the city or municipal police force, any provincial or sub-provincial guard, any member of the Armed Forces of the Philippines, special forces, home defense forces, barangay self-defense units and

all other para-military units that now exist or which may hereafter be organized who acts as bodyguard or security guard of any public official, candidate or any other person, and any of the latter who utilizes the services of the former as bodyguard or security guard: Provided, That, after due notice and hearing, when the life and security of a candidate is in jeopardy, the Commission is empowered to assign at the candidate's choice, any member of the Philippine Constabulary or the police force of any municipality within the province to act as his bodyguard or security guard in a number to be determined by the Commission but not to exceed three per candidate: Provided, however, That when the circumstances require immediate action, the Commission may issue a temporary order allowing the assignment of any member of the Philippine Constabulary or the local police force to act as bodyguard or security guard of the candidate, subject to confirmation or revocation. (Par. (o), Sec. 178, 1978 EC) cdasia

(u) Organization or maintenance of reaction forces, strike forces, or other similar forces. — Any person who organizes or maintains a reaction force, strike force or similar force during the election period.

The heads of all reaction forces, strike forces, or similar forces shall, not later than forty-five days before the election, submit to the Commission a complete list of all members thereof with such particulars as the Commission may require. (Sec. 65, 1971 EC; Sec. 64 (b) BP 697)

(v) Prohibition against release, disbursement or expenditure of public funds. — Any public official or employee including barangay officials and those of government-owned or controlled corporations and their subsidiaries, who, during forty-five days before a regular election and thirty days before a special election, releases, disburses or expends any public funds for:

 (1) Any and all kinds of public works, except the following:

(a) Maintenance of existing and/or completed public works project: Provided, That not more than the average number of laborers or employees already employed therein during the six-month period immediately prior to the beginning of the forty-five day period before election day shall be permitted to work during such time: Provided, further, That no additional laborers shall be employed for maintenance work within the said period of forty-five days;

(b) Work undertaken by contract through public bidding held, or by negotiated contract awarded, before the forty-five day period before election:Provided, That work for the purpose of this section undertaken under the so-called "takay" or "paquiao" system shall not be considered as work by contract;

(c) Payment for the usual cost of preparation for working drawings, specifications, bills of materials, estimates, and other procedures preparatory to actual construction including the purchase of materials and equipment, and all incidental expenses for wages of watchmen and other laborers employed for such work in the central office and field storehouses before

the beginning of such period: Provided, That the number of such laborers shall not be increased over the number hired when the project or projects were commenced; and

(d) Emergency work necessitated by the occurrence of a public calamity, but such work shall be limited to the restoration of the damaged facility.

No payment shall be made within five days before the date of election to laborers who have rendered services in projects or works except those falling under subparagraphs (a), (b), (c), and (d), of this paragraph.

This prohibition shall not apply to ongoing public works projects commenced before the campaign period or similar projects under foreign agreements. For purposes of this provision, it shall be the duty of the government officials or agencies concerned to report to the Commission the list of all such projects being undertaken by them.

(2) The Ministry of Social Services and Development and any other office in other ministries of the government performing functions similar to said ministry, except for salaries of personnel, and for such other routine and normal expenses, and for such other expenses as the Commission may authorize after due notice and hearing. Should a calamity or disaster occur, all releases normally or usually coursed through the said ministries and offices of other ministries shall be turned over to, and administered and disbursed by, the Philippine National Red Cross, subject to the supervision of the Commission on Audit or its representatives, and no candidate or his or her spouse or member of his family within the second civil degree of affinity or consanguinity shall participate, directly or indirectly, in the distribution of any relief or other goods to the victims of the calamity or disaster; and acd

(3) The Ministry of Human Settlements and any other office in any other ministry of the government performing functions similar to said ministry, except for salaries of personnel and for such other necessary administrative or other expenses as the Commission may authorize after due notice and hearing.

(w) Prohibition against construction of public works, delivery of materials for public works and issuance of treasury warrants and similar devices. — During the period of forty-five days preceding a regular election and thirty days before a special election, any person who (a) undertakes the construction of any public works, except for projects or works exempted in the preceding paragraph; or (b) issues, uses or avails of treasury warrants or any device undertaking future delivery of money, goods or other things of value chargeable against public funds. (Sec. 64 (d), BP 697)

(x) Suspension of elective provincial, city, municipal or barangay officer. — The provisions of law to the contrary notwithstanding during the election period, any public official who suspends, without prior approval of the Commission, any elective provincial, city, municipal or barangay officer, unless said suspension will be for purposes of applying the "Anti-Graft and Corrupt Practices Act" in relation to the suspension and

removal of elective officials; in which case the provisions of this section shall be inapplicable. (Sec. 64 (o), Id.)

(y) On Registration of Voters:

(1) Any person who, having all the qualifications and none of the disqualifications of a voter, fails without justifiable excuse to register as a voter in an election, plebiscite or referendum in which he is qualified to vote. (Par. (p), Sec. 178, 1978 EC)

(2) Any person who knowingly makes any false or untruthful statement relative to any of the data or information required in the application for registration. (Par. (q), Id.)

(3) Any person who deliberately imprints or causes the imprinting of blurred or indistinct fingerprints on any of the copies of the application for registration or on the voter's affidavit; or any person in charge of the registration of voters who deliberately or through negligence, causes or allows the imprinting of blurred or indistinct fingerprints on any of the aforementioned registration forms, or any person who tampers with the fingerprints in said registration records. (Sec. 231 (5), 1971 EC)

(4) Any member of the board of election inspectors who approves any application which on its face shows that the applicant does not possess all the qualifications prescribed by law for a voter; or who disapproves any application which on its face shows that the applicant possesses all such qualifications. (Par. (r), Sec. 178, 1978 EC)

(5) Any person who, being a registered voter, registers anew without filing an application for cancellation of his previous registration. (Par. (s), Id.)

(6) Any person who registers in substitution for another whether with or without the latter's knowledge or consent. (Par. (t), Id.)

(7) Any person who tampers with or changes without authority any data or entry in any voter's application for registration. (Par. (u), Id.)

(8) Any person who delays, hinders or obstructs another from registering. (Par. (v), Id.)

(9) Any person who falsely certifies or identifies another as a bona fide resident of a particular place or locality for the purpose of securing the latter's registration as a voter. (Par. (w), Id.)

(10) Any person who uses the voter's affidavit of another for the purpose of voting, whether or not he actually succeeds in voting. (Par.(aa), Sec. 178, 1978 EC)

(11) Any person who places, inserts or otherwise includes, as approved application for registration in the book of voters or in the provincial or national central files of registered voters, the application of any fictitious voter or any application that has not been approved; or removes from, or otherwise takes out of the book of voters or the provincial or national central files of registered voters any duly approved voter's application, except

upon lawful order of the Commission, or of a competent court or after proper cancellation as provided in Sections 122, 123, 124 and 125 hereof. (Par. (bb), Sec. 178, 1978 EC)

(12) Any person who transfers or causes the transfer of the registration record of a voter to the book of voters of another polling place, unless said transfer was due to a change of address of the voter and the voter was duly notified of his new polling place. (New) cd

(13) Any person who asks, demands, takes, accepts or possesses, directly or indirectly, the voter's affidavit of another, in order to induce the latter to withhold his vote, or to vote for or against any candidate in an election or any issue in a plebiscite or referendum. It shall be presumed prima facie that the asking, demanding, taking, accepting, or possessing is with such intent if done within the period beginning ten days before election day and ending ten days after election day, unless the voter's affidavit of another and the latter are both members of the same family. (Par. (cc), Id.)

(14) Any person who delivers, hands over, entrusts, gives, directly or indirectly his voter's affidavit to another in consideration of money or other benefit or promises thereof, or takes or accepts such voter's affidavit directly or indirectly, by giving or causing the giving of money or other benefit or making or causing the making of a promise thereof. (Par. (a), Subpar. 8, Sec. 231, 1971 EC)

(15) Any person who alters in any manner, tears, defaces, removes or destroys any certified list of voters. (Par. (dd), Sec. 178, 1978 EC)

(16) Any person who takes, carries or possesses any blank or unused registration form already issued to a city or municipality outside of said city or municipality except as otherwise provided in this Code or when directed by express order of the court or of the Commission. (Par. (a), Subpar. 15, Sec. 231, 1971 EC)

(17) Any person who maliciously omits, tampers or transfers to another list the name of a registered voter from the official list of voters posted outside the polling place.

(z) On voting:

(1) Any person who fails to cast his vote without justifiable excuse. (Par. (ee), Sec. 178, 1978 EC)

(2) Any person who votes more than once in the same election, or who, not being a registered voter, votes in an election. (Par. (ff), Id.)

(3) Any person who votes in substitution for another whether with or without the latter's knowledge and/or consent. (Par. (gg), Id.)

(4) Any person who, not being illiterate or physically disabled, allows his ballot to be prepared by another, or any person who prepares the ballot of another who is not illiterate or physically disabled, with or without the latter's knowledge and/or consent (Par. (a), Subpar. 24, Sec. 231, 1971 EC with amendments)

(5) Any person who avails himself of any means of scheme to discover the contents of the ballot of a voter who is preparing or casting his vote or who has just voted. (Par. (hh), Sec. 178, 1978 EC)

 

(6) Any voter who, in the course of voting, uses a ballot other than the one given by the board of election inspectors or has in his possession more than one official ballot. (Par. (ii), Id.)

(7) Any person who places under arrest or detains a voter without lawful cause, or molests him in such a manner as to obstruct or prevent him from going to the polling place to cast his vote or from returning home after casting his vote, or to compel him to reveal how he voted. (Par. (jj), Id.)

(8) Any member of the board of election inspectors charged with the duty of reading the ballot during the counting of votes who deliberately omits to read the vote duly written on the ballot, or misreads the vote actually written thereon or reads the name of a candidate where no name is written on the ballot. (Par. (kk), Id.) cdt

(9) Any member of the board of election inspectors charged with the duty of tallying the votes in the tally board or sheet, election returns or other prescribed form who deliberately fails to record a vote therein or records erroneously the votes as read, or records a vote where no such vote has been read by the chairman. (Par. (ll), Id.)

(10) Any member of a board of election inspectors who has made possible the casting of more votes than there are registered voters.

(11) Any person who, for the purpose of disrupting or obstructing the election process or causing confusion among the voters, propagates false and alarming reports or information or transmits or circulates false orders, directives or messages regarding any matter relating to the printing of official ballots, the postponement of the election, the transfer of polling place or the general conduct of the election. (Par. (oo), Id.)

(12) Any person who, without legal authority, destroys, substitutes or takes away from the possession of those having legal custody thereof, or from the place where they are legally deposited, any election form or document or ballot box which contains official ballots or other documents used in the election. (Par. (qq), Sec. 178, 1978 EC)

(13) Any person having legal custody of the ballot box containing the official ballots used in the election who opens or destroys said box or removes or destroys its contents without or against the order of the Commission or who, through his negligence, enables any person to commit any of the aforementioned acts, or takes away said ballot box from his custody. (Par. (rr), Id.)

(14) Any member of the board of election inspectors who knowingly uses ballots other than the official ballots, except in

those cases where the use of emergency ballots is authorized. (Par. (tt), Id.)

(15) Any public official who neglects or fails to properly preserve or account for any ballot box, documents and forms received by him and kept under his custody. (Par. (uu), Id.)

(16) Any person who reveals the contents of the ballot of an illiterate or disabled voter whom he assisted in preparing a ballot. (Par. (vv), Id.)

(17) Any person who, without authority, transfers the location of a polling place. (Par. (ww), Id.)

(18) Any person who, without authority, prints or causes the printing of any ballot or election returns that appears as official ballots or election returns or who distributes or causes the same to be distributed for use in the election, whether or not they are actually used. (Par. (aaa), Id.)

(19) Any person who, without authority, keeps, uses or carries out or causes to be kept, used or carried out, any official ballot or election returns or printed proof thereof, type-form mould, electro-type printing plates and any other plate, numbering machines and other printing paraphernalia being used in connection with the printing of official ballots or election returns. (Par. (bbb), Id.)

(20) Any official or employee of any printing establishment or of the Commission or any member of the committee in charge of the printing of official ballots or election returns who causes official ballots or election returns to be printed in quantities exceeding those authorized by the Commission or who distributes, delivers, or in any manner disposes of or causes to be distributed, delivered, or disposed of, any official ballot or election returns to any person or persons not authorized by law or by the Commission to receive or keep official ballots or election returns or who sends or causes them to be sent to any place not designated by law or by the Commission. (Par. (ccc), Id.)

(21) Any person who, through any act, means or device, violates the integrity of any official ballot or election returns before or after they are used in the election. (Par. (ddd), Id.)

(22) Any person who removes, tears, defaces or destroys any certified list of candidates posted inside the voting booths during the hours of voting. (New)

(23) Any person who holds or causes the holding of an election on any other day than that fixed by law or by the Commission, or stops any election being legally held. (Par. (pp), Id.) asia dc

(24) Any person who deliberately blurs his fingerprint in the voting record. (New)

(aa) On Canvassing:

(1) Any chairman of the board of canvassers who fails to give due notice of the date, time and place of the meeting of said board to the candidates, political parties and/or members of the board.

(2) Any member of the board of canvassers who proceeds with the canvass of the votes and/or proclamation of any candidate which was suspended or annulled by the Commission. (New)

(3) Any member of the board of canvassers who proceeds with the canvass of votes and/or proclamation of any candidate in the absence of quorum, or without giving due notice of the date, time and place of the meeting of the board to the candidates, political parties, and/or other members of the board. (New)

(4) Any member of the board of canvassers who, without authority of the Commission, uses in the canvass of votes and/or proclamation of any candidate any document other than the official copy of the election returns. (New)

(bb) Common to all boards of election inspectors and boards of canvassers:

(1)  Any member of any board of election inspectors or board of canvassers who deliberately absents himself from the meetings of said body for the purpose of obstructing or delaying the performance of its duties or functions. (Par. (zz), Sec. 178, 1978 EC)

(2) Any member of any board of election inspectors or board of canvassers who, without justifiable reason, refuses to sign and certify any election form required by this Code or prescribed by the Commission although he was present during the meeting of the said body. (Par. (yy), Id.)

(3) Any person who, being ineligible for appointment as member of any board of election inspectors or board of canvassers, accepts an appointment to said body, assumes office, and actually serves as a member thereof, or any public officer or any person acting in his behalf who appoints such ineligible person knowing him to be ineligible. (Par. (xx), Id.)

(4) Any person who, in the presence or within the hearing of any board of election inspectors or board of canvassers during any of its meetings, conducts himself in such a disorderly manner as to interrupt or disrupt the work or proceedings to the end of preventing said body from performing its functions, either partly or totally. (Par. (nn), Id.)

(5) Any public official or person acting in his behalf who relieves any member of any board of election inspectors or board of canvassers or who changes or causes the change of the assignments of any member of said board of election inspectors or board of canvassers without authority of the Commission. (Par. (ss), Id.) cdt

(cc) On candidacy and campaign:

(1) Any political party which holds political conventions or meetings to nominate its official candidates earlier than the period fixed in this Code. (Par. (eee), Sec. 178, 1978 EC)

(2) Any person who abstracts, destroys or cancels any certificate of candidacy duly filed and which has not been cancelled upon order of the Commission. (Par. (fff), Id.)

(3) Any person who misleads the board of election inspectors by submitting any false or spurious certificate of candidacy or document to the prejudice of a candidate. (Par. (fff), Id.)

(4) Any person who, being authorized to receive certificates of candidacy, receives any certificate of candidacy outside the period for filing the same and makes it appear that said certificate of candidacy was filed on time; or any person who, by means of fraud, threat, intimidation, terrorism or coercion, causes or compels the commission of said act. (New)

(5)  Any person who, by any device or means, jams, obstructs or interferes with a radio or television broadcast of any lawful political program. (Par. (ggg), Id.)

(6) Any person who solicits votes or undertakes any propaganda, on the day of election, for or against any candidate or any political party within the polling place or within a radius of thirty meters thereof. (Par. (hhh), Id.)

(dd) Other prohibitions:

(1) Any person who sells, furnishes, offers, buys, serves or takes intoxicating liquor on the days fixed by law for the registration of voters in the polling place, or on the day before the election or on election day: Provided, That hotels and other establishments duly certified by the Ministry of Tourism as tourist oriented and habitually in the business of catering to foreign tourists may be exempted for justifiable reasons upon prior authority of the Commission: Provided, further, That foreign tourists taking intoxicating liquor in said authorized hotels or establishments are exempted from the provisions of this subparagraph. asia dc

(2) Any person who opens in any polling place or within a radius of thirty meters thereof on election day and during the counting of votes, booths or stalls of any kind for the sale, dispensing or display of wares, merchandise or refreshments, whether solid or liquid, or for any other purposes.

(3) Any person who holds on election day, fairs, cockfights, boxing, horse races, jai-alai or any other similar sports. (Par. (iii), Id.) 

(4) Refusal to carry election mail matter. — Any operator or employee of a public utility or transportation company operating under a certificate of public convenience, including government-owned or controlled postal service or its employees or deputized agents who refuse to carry official election mail matters free of charge during the election period. In addition to the penalty prescribed herein, such refusal shall constitute a ground for cancellation or revocation of certificate of public convenience or franchise. (Par. (kkk), Id.)

(5) Prohibition against discrimination in the sale of air time. — Any person who operates a radio or television station who without justifiable cause discriminates against any political party, coalition or aggroupment of parties or any candidate in the sale of air time. In addition to the penalty prescribed herein, such refusal shall constitute a ground for cancellation or revocation of the franchise.

SECTION 262. Other election offenses. — Violation of the provisions, or pertinent portions, of the following sections of this Code shall constitute election offenses: Sections 9, 18, 74, 75, 76, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106 107, 108, 109, 110, 111, 112, 122, 123, 127, 128, 129, 132, 134, 135, 145, 148, 150, 152, 172, 173, 174, 178, 180, 182, 184, 185, 186, 189, 190, 191, 192, 194, 195, 196, 197, 198, 202, 203, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 223, 229, 230, 231, 233, 234, 235, 236, 239 and 240.