QUINTO V. COMELC, GR
189698, DECEMBER 1, 2009
EN BANC
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DECISION
NACHURA, J.:
“In our predisposition to discover the ‘original intent’ of a
statute, courts become the unfeeling pillars of the status quo. Little
do we realize that statutes or even constitutions are bundles of compromises
thrown our way by their framers. Unless we exercise vigilance, the statute may
already be out of tune and irrelevant to our day.” It is in this light
that we should address the instant case.
Before the Court is a petition for prohibition and certiorari,
with prayer for the issuance of a temporary restraining order and a writ of
preliminary injunction, assailing Section 4(a) of Resolution No. 8678 of the
Commission on Elections (COMELEC). In view of pressing contemporary events, the
petition begs for immediate resolution.
The Antecedents
This controversy actually stems from the law authorizing the
COMELEC to use an automated election system (AES).
On December 22, 1997, Congress enacted Republic Act (R.A.) No.
8436, entitled “AN ACT AUTHORIZING THE COMMISSION ON ELECTIONS TO USE AN
AUTOMATED ELECTION SYSTEM IN THE MAY 11, 1998 NATIONAL OR LOCAL ELECTIONS AND
IN SUBSEQUENT NATIONAL AND LOCAL ELECTORAL EXERCISES, PROVIDING FUNDS THEREFOR
AND FOR OTHER PURPOSES.” Section 11 thereof reads:
SEC. 11. Official Ballot.—The Commission shall prescribe the
size and form of the official ballot which shall contain the titles of the
positions to be filled and/or the propositions to be voted upon in an
initiative, referendum or plebiscite. Under each position, the names of candidates
shall be arranged alphabetically by surname and uniformly printed using the
same type size. A fixed space where the chairman of the Board of Election
inspectors shall affix his/her signature to authenticate the official ballot
shall be provided.
Both sides of the ballots may be used when necessary.
For this purpose, the
deadline for the filing of certificate of candidacy/petition for
registration/manifestation to participate in the election shall not be later
than one hundred twenty (120) days before the elections: Provided,
That, any elective official, whether national or local, running for any office
other than the one which he/she is holding in a permanent capacity, except for
president and vice president, shall be deemed resigned only upon the start of
the campaign period corresponding to the position for which he/she is running: Provided,
further, That, unlawful acts or omissions applicable to a candidate shall
take effect upon the start of the aforesaid campaign period: Provided, finally, That, for
purposes of the May 11, 1998 elections, the deadline for filing of the
certificate of candidacy for the positions of President, Vice President,
Senators and candidates under the Party-List System as well as petitions for
registration and/or manifestation to participate in the Party-List System shall
be on February 9, 1998 while the deadline for the filing of certificate of
candidacy for other positions shall be on March 27, 1998.
The official ballots shall be printed by the National Printing
Office and/or the Bangko Sentral ng Pilipinas at the price comparable
with that of private printers under proper security measures which the
Commission shall adopt. The Commission may contract the services of private
printers upon certification by the National Printing Office/Bangko Sentral
ng Pilipinas that it cannot meet the printing requirements. Accredited
political parties and deputized citizens' arms of the Commission may assign
watchers in the printing, storage and distribution of official ballots.
To prevent the use of fake ballots, the Commission through the
Committee shall ensure that the serial number on the ballot stub shall be
printed in magnetic ink that shall be easily detectable by inexpensive hardware
and shall be impossible to reproduce on a photocopying machine and that
identification marks, magnetic strips, bar codes and other technical and
security markings, are provided on the ballot.
The official ballots shall be printed and distributed to each
city/municipality at the rate of one (1) ballot for every registered voter with
a provision of additional four (4) ballots per precinct.
Almost a decade thereafter, Congress amended the law on January 23,
2007 by enacting R.A. No. 9369, entitled “AN ACT AMENDING REPUBLIC ACT NO.
8436, ENTITLED ‘AN ACT AUTHORIZING THE COMMISSION ON ELECTIONS TO USE AN
AUTOMATED ELECTION SYSTEM IN THE MAY 11, 1998 NATIONAL OR LOCAL ELECTIONS AND
IN SUBSEQUENT NATIONAL AND LOCAL ELECTORAL EXERCISES, TO ENCOURAGE
TRANSPARENCY, CREDIBILITY, FAIRNESS AND ACCURACY OF ELECTIONS, AMENDING FOR THE
PURPOSE BATAS PAMPANSA BLG. 881, AS AMENDED, REPUBLIC ACT NO. 7166 AND OTHER
RELATED ELECTION LAWS, PROVIDING FUNDS THEREFOR AND FOR OTHER PURPOSES.’”
Section 13 of the amendatory law modified Section 11 of R.A. No. 8436, thus:
SEC. 13. Section 11 of Republic Act No. 8436 is hereby amended to
read as follows:
“Section 15. Official Ballot.—The Commission shall prescribe
the format of the electronic display and/or the size and form of the official
ballot, which shall contain the titles of the position to be filled and/or the
propositions to be voted upon in an initiative, referendum or plebiscite. Where
practicable, electronic displays must be constructed to present the names of
all candidates for the same position in the same page or screen, otherwise, the
electronic displays must be constructed to present the entire ballot to the
voter, in a series of sequential pages, and to ensure that the voter sees all
of the ballot options on all pages before completing his or her vote and to
allow the voter to review and change all ballot choices prior to completing and
casting his or her ballot. Under each position to be filled, the names of
candidates shall be arranged alphabetically by surname and uniformly indicated
using the same type size. The maiden or married name shall be listed in the
official ballot, as preferred by the female candidate. Under each proposition
to be vote upon, the choices should be uniformly indicated using the same font
and size.
“A fixed space where the chairman of the board of election
inspectors shall affix his/her signature to authenticate the official ballot
shall be provided.
“For this purpose, the Commission
shall set the deadline for the filing of certificate of candidacy/petition of
registration/manifestation to participate in the election. Any person who files
his certificate of candidacy within this period shall only be considered as a
candidate at the start of the campaign period for which he filed his
certificate of candidacy: Provided, That, unlawful acts or omissions
applicable to a candidate shall take effect only upon the start of the
aforesaid campaign period: Provided, finally, That
any person holding a public appointive office or
position, including active members of the armed forces, and officers and
employees in government-owned or -controlled corporations, shall be considered ipso
facto resigned from his/her office and must vacate the same at the start of
the day of the filing of his/her certificate of candidacy.
“Political parties may hold political conventions to nominate their
official candidates within thirty (30) days before the start of the period for
filing a certificate of candidacy.
“With respect to a paper-based election system, the official
ballots shall be printed by the National Printing Office and/or the Bangko
Sentral ng Pilipinas at the price comparable with that of private printers
under proper security measures which the Commission shall adopt. The Commission
may contract the services of private printers upon certification by the
National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet
the printing requirements. Accredited political parties and deputized citizens’
arms of the Commission shall assign watchers in the printing, storage and
distribution of official ballots.
“To prevent the use of fake ballots, the Commission through the
Committee shall ensure that the necessary safeguards, such as, but not limited
to, bar codes, holograms, color shifting ink, microprinting, are provided on
the ballot.
“The official ballots shall be printed and distributed to each
city/municipality at the rate of one ballot for every registered voter with a
provision of additional three ballots per precinct.”
Pursuant to its constitutional mandate to enforce and administer
election laws, COMELEC issued Resolution No. 8678, the Guidelines on the
Filing of Certificates of Candidacy (CoC) and Nomination of Official Candidates
of Registered Political Parties in Connection with the May 10, 2010 National
and Local Elections. Sections 4 and 5 of Resolution No. 8678 provide:
SEC. 4. Effects of Filing Certificates of Candidacy.—a) Any
person holding a public
appointive office or
position including active members of the Armed Forces of the Philippines, and
other officers and employees in government-owned or controlled corporations,
shall be considered ipso facto resigned from his office upon the filing
of his certificate of candidacy.
b) Any person holding an elective office or position shall not be considered resigned upon the filing of his certificate of
candidacy for the same or any other elective office or position.
SEC. 5. Period for filing Certificate of Candidacy.—The
certificate of candidacy shall be filed on regular days, from November 20 to
30, 2009, during office hours, except on the last day, which shall be until
midnight.
Alarmed that they will be deemed ipso facto resigned from
their offices the moment they file their CoCs, petitioners Eleazar P. Quinto
and Gerino A. Tolentino, Jr., who hold appointive positions in the government
and who intend to run in the coming elections, filed the instant
petition for prohibition and certiorari, seeking the declaration of the
afore-quoted Section 4(a) of Resolution No. 8678 as null and void.
The Petitioners’
Contention
Petitioners contend that the COMELEC gravely abused its discretion
when it issued the assailed Resolution. They aver that the advance filing of
CoCs for the 2010 elections is intended merely for the purpose of early
printing of the official ballots in order to cope with time limitations. Such
advance filing does not automatically make the person who filed the CoC a
candidate at the moment of filing. In fact, the law considers him a candidate
only at the start of the campaign period. Petitioners then assert that this
being so, they should not be deemed ipso facto resigned from their
government offices when they file their CoCs, because at such time they are not
yet treated by law as candidates. They should be considered resigned from their
respective offices only at the start of the campaign period when they are, by
law, already considered as candidates.
Petitioners also contend that Section 13 of R.A. No. 9369, the
basis of the assailed COMELEC resolution, contains two conflicting provisions.
These must be harmonized or reconciled to give effect to both and to arrive at
a declaration that they are not ipso facto resigned from their positions
upon the filing of their CoCs.
Petitioners further posit that the provision considering them as ipso
facto resigned from office upon the filing of their CoCs is discriminatory
and violates the equal protection clause in the Constitution.
The Respondent’s
Arguments
On the
procedural aspect of the petition, the Office of the Solicitor General (OSG),
representing respondent COMELEC, argues that petitioners have no legal standing
to institute the suit. Petitioners have not yet filed their CoCs, hence,
they are not yet affected by the assailed provision in the COMELEC resolution.
The OSG further claims that the petition is premature or unripe for judicial
determination. Petitioners have admitted that they are merely planning to
file their CoCs for the coming 2010 elections. Their interest in the present
controversy is thus merely speculative and contingent upon the filing of the
same. The OSG likewise contends that petitioners availed of the wrong remedy.
They are questioning an issuance of the COMELEC made in the exercise of the
latter’s rule-making power. Certiorari under Rule 65 is then an improper
remedy.
On the
substantive aspect, the OSG maintains that the COMELEC did not gravely abuse
its discretion in phrasing Section 4(a) of Resolution No. 8678 for it merely
copied what is in the law. The OSG, however, agrees with petitioners that there
is a conflict in Section 13 of R.A. No. 9369 that should be resolved. According
to the OSG, there seems to be no basis to consider appointive officials as ipso
facto resigned and to require them to vacate their positions on the same
day that they file their CoCs, because they are not yet considered as
candidates at that time. Further, this “deemed resigned” provision existed in Batas
Pambansa Bilang (B.P. Blg.) 881, and no longer finds a place in our
present election laws with the innovations brought about by the automated
system.
Our Ruling
I.
At first glance, the petition suffers from an incipient procedural
defect. What petitioners assail in their petition is a resolution issued by the
COMELEC in the exercise of its quasi-legislative power. Certiorari under
Rule 65, in relation to Rule 64, cannot be availed of, because it is a remedy
to question decisions, resolutions and issuances made in the exercise of a
judicial or quasi-judicial function. Prohibition is also
an inappropriate remedy, because what petitioners actually seek from the Court
is a determination of the proper construction of a statute and a declaration of
their rights thereunder. Obviously, their petition is one for declaratory relief, over which this Court
does not exercise original jurisdiction.
However, petitioners raise a challenge on the constitutionality of
the questioned provisions of both the COMELEC resolution and the law. Given
this scenario, the Court may step in and resolve the instant petition.
The transcendental nature and paramount importance of the issues raised
and the compelling state interest involved in their early resolution—the period
for the filing of CoCs for the 2010 elections has already started and hundreds
of civil servants intending to run for elective offices are to lose their
employment, thereby causing imminent and irreparable damage to their means of
livelihood and, at the same time, crippling the government’s manpower—further
dictate that the Court must, for propriety, if only from a sense of obligation,
entertain the petition so as to expedite the adjudication of all, especially
the constitutional, issues.
In any event, the Court has ample authority to set aside errors of
practice or technicalities of procedure and resolve the merits of a case.
Repeatedly stressed in our prior decisions is the principle that the Rules were
promulgated to provide guidelines for the orderly administration of justice,
not to shackle the hand that dispenses it. Otherwise, the courts would be
consigned to being mere slaves to technical rules, deprived of their judicial
discretion.
II.
To put things in their proper perspective, it is imperative that we
trace the brief history of the assailed provision. Section 4(a) of COMELEC
Resolution No. 8678 is a reproduction of the second proviso in the third
paragraph of Section 13 of R.A. No. 9369, which for ready reference is quoted
as follows:
For this purpose, the Commission shall set the deadline for the
filing of certificate of candidacy/petition for registration/manifestation to
participate in the election. Any person who files his certificate of candidacy
within this period shall only be considered as a candidate at the start of the
campaign period for which he filed his certificate of candidacy: Provided,
That, unlawful acts or omissions applicable to a candidate shall take effect
only upon the start of the aforesaid campaign period: Provided, finally, That any person holding a public appointive
office or position, including active members of the armed forces, and officers
and employees in government-owned or -controlled corporations, shall be
considered ipso facto resigned from his/her office and must vacate the
same at the start of the day of the filing of his/her certificate of candidacy.
Notably, this proviso is not present in Section 11 of R.A. No.
8436, the law amended by R.A. No. 9369. The proviso was lifted from Section 66
of B.P. Blg. 881 or the Omnibus Election Code (OEC) of the Philippines,
which reads:
Sec. 66. Candidates holding appointive office or position.—Any
person holding a public appointive office or position, including active members
of the Armed Forces of the Philippines,
and officers and employees in government-owned or controlled corporations,
shall be considered ipso facto resigned from his office upon the filing
of his certificate of candidacy.
It may be recalled—in inverse chronology—that earlier, Presidential
Decree No. 1296, or the 1978 Election Code, contained a similar provision,
thus—
SECTION 29. Candidates holding appointive office or position. —
Every person holding a public appointive office or position, including active
members of the Armed Forces of the Philippines, and officers and
employees in government-owned or controlled corporations, shall ipso facto
cease in his office or position on the date he files his certificate of
candidacy. Members of the Cabinet shall continue in the offices they presently
hold notwithstanding the filing of certificate of candidacy, subject to the
pleasure of the President of the Philippines.
Much earlier, R.A. No. 6388, or the Election Code of 1971, likewise
stated in its Section 23 the following:
SECTION 23. Candidates Holding Appointive Office or Position. —
Every person holding a public appointive office or position, including active
members of the Armed Forces of the Philippines and every officer or employee in
government-owned or controlled corporations, shall ipso facto cease in
his office or position on the date he files his certificate of candidacy:
Provided, That the filing of a certificate of candidacy shall not affect
whatever civil, criminal or administrative liabilities which he may have
incurred.
Going further back in history, R.A. No. 180, or the Revised
Election Code approved on June 21, 1947, also provided that—
SECTION 26. Automatic cessation of appointive officers and
employees who are candidates. — Every person holding a public appointive office
or position shall ipso facto cease in his office or position on the date
he files his certificate of candidacy.
During the Commonwealth era, Commonwealth Act (C.A.) No. 725,
entitled “AN ACT TO PROVIDE FOR THE NEXT ELECTION FOR PRESIDENT AND
VICE-PRESIDENT OF THE PHILIPPINES, SENATORS AND MEMBERS OF THE HOUSE OF
REPRESENTATIVES, AND APPROPRIATING THE NECESSARY FUNDS THEREFOR,” approved on
January 5, 1946, contained, in the last paragraph of its Section 2, the following:
A person occupying any civil office by appointment in the
government or any of its political subdivisions or agencies or government-owned
or controlled corporations, whether such office by appointive or elective,
shall be considered to have resigned from such office from the moment of the
filing of such certificate of candidacy.
Significantly, however, C.A. No. 666, entitled “AN ACT TO PROVIDE
FOR THE FIRST ELECTION FOR PRESIDENT AND VICE-PRESIDENT OF THE PHILIPPINES,
SENATORS, AND MEMBERS OF THE HOUSE OF REPRESENTATIVES, UNDER THE CONSTITUTION
AND THE AMENDMENTS THEREOF,” enacted without executive approval on June 22,
1941, the precursor of C.A. No. 725, only provided for automatic resignation of
elective, but not appointive, officials.
Nevertheless, C.A. No. 357, or the Election Code approved on August
22, 1938, had, in its Section 22, the same verbatim provision as Section 26 of
R.A. No. 180.
The earliest recorded Philippine law on the subject is Act No.
1582, or the Election Law enacted by the Philippine Commission in 1907, the
last paragraph of Section 29 of which reads:
Sec. 29. Penalties upon officers.— x x x.
No public officer shall offer himself as a candidate for election,
nor shall he be eligible during the time that he holds said public office to
election, at any municipal, provincial or Assembly election, except for
reelection to the position which he may be holding, and no judge of the Court
of First Instance, justice of the peace, provincial fiscal, or officer or
employee of the Bureau of Constabulary or of the Bureau of Education shall aid
any candidate or influence in any manner or take any part in any municipal,
provincial, or Assembly election under penalty of being deprived of his office
and being disqualified to hold any public office whatever for a term of five
years: Provided, however, That the foregoing provisions shall not be
construed to deprive any person otherwise qualified of the right to vote at any
election.
From this brief historical excursion, it may be gleaned that the
second proviso in the third paragraph of Section 13 of R.A. No. 9369—that
any person holding a public appointive office or position, including active
members of the armed forces, and officers, and employees in government-owned or
controlled corporations, shall be considered ipso facto resigned from his/her
office and must vacate the same at the start of the day of the filing of
his/her certificate of candidacy—traces its roots to the period of the
American occupation.
In fact, during the deliberations of Senate Bill No. 2231, the bill
later to be consolidated with House Bill No. 5352 and enacted as R.A. No. 9369,
Senator Richard Gordon, the principal author of the bill, acknowledged that the
said proviso in the proposed legislative measure is an old provision which was
merely copied from earlier existing legislation, thus—
Senator
Osmeña. May I just opine here and perhaps obtain the opinion of the
good Sponsor. This reads like, “ANY PERSON HOLDING [means currently]
A PUBLIC APPOINTIVE POSITION… SHALL BE CONSIDERED IPSO FACTO RESIGNED” [which
means that the prohibition extends only to appointive officials] “INCLUDING
ACTIVE MEMBERS OF THE ARMED FORCES, OFFICERS AND EMPLOYEES”… This is a
prohibition, Mr. President. This means if one is chairman of SSS or PDIC,
he is deemed ipso facto resigned when he files his certificate of
candidacy. Is that the intention?
Senator
Gordon. This is really an old provision, Mr. President.
Senator
Osmeña. It is in bold letters, so I think it was a Committee
amendment.
Senator
Gordon. No, it has always been there.
Senator
Osmeña. I see.
Senator
Gordon. I guess the intention is not to give them undue advantage,
especially certain people.
In that Senate deliberation, however, Senator Miriam
Defensor-Santiago expressed her concern over the inclusion of the said
provision in the new law, given that the same would be disadvantageous and
unfair to potential candidates holding appointive positions, while it grants a
consequent preferential treatment to elective officials, thus—
Senator
Santiago. On page 15, line 31, I know that this is a losing cause, so
I make this point more as a matter of record than of any feasible hope that it
can possibly be either accepted or if we come to a division of the House, it
will be upheld by the majority.
I am referring to page 15, line 21. The proviso begins: “PROVIDED
FINALLY, THAT ANY PERSON HOLDING A PUBLIC APPOINTIVE OFFICE…SHALL BE
CONSIDERED IPSO FACTO RESIGNED FROM HIS/HER OFFICE.”
The point that I made during the appropriate debate in the past in this Hall is
that there is, for me, no valid reason for exempting elective officials from
this inhibition or disqualification imposed by the law. If we are going
to consider appointive officers of the government, including AFP members and
officers of government-owned and controlled corporations, or any other member
of the appointive sector of the civil service, why should it not apply to the
elective sector for, after all, even senators and congressmen are members of
the civil service as well?
Further, it is self-serving for the Senate, or for the Congress in general, to
give an exception to itself which is not available to other similarly situated
officials of government. Of course, the answer is, the reason why we are
special is that we are elected. Since we are imposing a disqualification
on all other government officials except ourselves, I think, it is the better
part of delicadeza to inhibit ourselves as well, so that if we want to
stay as senators, we wait until our term expires. But if we want to
run for some other elective office during our term, then we have to be
considered resigned just like everybody else. That is my proposed
amendment. But if it is unacceptable to the distinguished Sponsor,
because of sensitivity to the convictions of the rest of our colleagues, I will
understand.
Senator
Gordon. Mr. President, I think the suggestion is well-thought of. It
is a good policy. However, this is something that is already in the old
law which was upheld by the Supreme court in a recent case that the rider was
not upheld and that it was valid.
The obvious inequality brought about by the provision on automatic
resignation of appointive civil servants must have been the reason why Senator
Recto proposed the inclusion of the following during the period of amendments:
“ANY PERSON WHO FILES HIS CERTIFICATE OF CANDIDACY WITHIN THIS PERIOD SHALL
ONLY BE CONSIDERED AS A CANDIDATE AT THE START OF THE CAMPAIGN PERIOD FOR WHICH
HE FILED HIS COC.” The said proviso
seems to mitigate the situation of disadvantage afflicting appointive officials
by considering persons who filed their CoCs as candidates only at the start of
the campaign period, thereby, conveying the tacit intent that persons holding
appointive positions will only be considered as resigned at the start of the
campaign period when they are already treated by law as candidates.
Parenthetically, it may be remembered that Section 67 of the OEC
and Section 11 of R.A. No. 8436 contained a similar provision on automatic
resignation of elective officials upon the filing of their CoCs for any office
other than that which they hold in a permanent capacity or for President or
Vice-President. However, with the enactment of R.A. No. 9006, or the Fair
Election Act, in 2001, this
provision was repealed by Section 14 of the said act.
There was, thus, created a situation of obvious discrimination against
appointive officials who were deemed ipso facto resigned from their
offices upon the filing of their CoCs, while elective officials were not.
This situation was incidentally addressed by the Court in Fariñas v. The Executive
Secretary when
it ruled that—
Section 14 of Rep. Act No. 9006
Is Not Violative of the Equal
Protection Clause of the Constitution
The petitioners’ contention, that the repeal of Section 67 of the
Omnibus Election Code pertaining to elective officials gives undue benefit to
such officials as against the appointive ones and violates the equal protection
clause of the constitution, is tenuous.
The equal protection of the law clause in the Constitution is not
absolute, but is subject to reasonable classification. If the groupings
are characterized by substantial distinctions that make real differences, one
class may be treated and regulated differently from the other. The Court has
explained the nature of the equal protection guarantee in this manner:
The equal protection of the law clause is against undue favor and
individual or class privilege, as well as hostile discrimination or the
oppression of inequality. It is not intended to prohibit legislation
which is limited either in the object to which it is directed or by territory
within which it is to operate. It does not demand absolute equality among
residents; it merely requires that all persons shall be treated alike, under
like circumstances and conditions both as to privileges conferred and
liabilities enforced. The equal protection clause is not infringed by
legislation which applies only to those persons falling within a specified
class, if it applies alike to all persons within such class, and reasonable
grounds exist for making a distinction between those who fall within such class
and those who do not.
Substantial distinctions clearly exist between elective officials
and appointive officials. The former occupy their office by virtue of the
mandate of the electorate. They are elected to an office for a definite term
and may be removed therefrom only upon stringent conditions. On the other hand,
appointive officials hold their office by virtue of their designation thereto
by an appointing authority. Some appointive officials hold their office
in a permanent capacity and are entitled to security of tenure while others
serve at the pleasure of the appointing authority.
Another substantial distinction between the two sets of officials
is that under Section 55, Chapter 8, Title I, Subsection A. Civil Service
Commission, Book V of the Administrative Code of 1987 (Executive Order No.
292), appointive officials, as officers and employees in the civil service, are
strictly prohibited from engaging in any partisan political activity or take
part in any election except to vote. Under the same provision, elective
officials, or officers or employees holding political offices, are obviously
expressly allowed to take part in political and electoral activities.
By repealing Section 67 but retaining Section 66 of the Omnibus
Election Code, the legislators deemed it proper to treat these two classes of
officials differently with respect to the effect on their tenure in the office
of the filing of the certificates of candidacy for any position other than
those occupied by them. Again, it is not within the power of the Court to
pass upon or look into the wisdom of this classification.
Since the classification justifying Section 14 of Rep. Act No.
9006, i.e., elected officials vis-a-vis appointive officials, is
anchored upon material and significant distinctions and all the persons
belonging under the same classification are similarly treated, the equal
protection clause of the Constitution is, thus, not infringed.
However, it must be remembered that the Court, in Fariñas,
was intently focused on the main issue of whether the repealing clause in the
Fair Election Act was a constitutionally proscribed rider, in that it
unwittingly failed to ascertain with stricter scrutiny the impact of the
retention of the provision on automatic resignation of persons holding
appointive positions (Section 66) in the OEC, vis-Ã -vis the equal protection
clause. Moreover, the Court’s vision in Fariñas was shrouded by
the fact that petitioners therein, Fariñas et al., never posed a direct
challenge to the constitutionality of Section 66 of the OEC. Fariñas et al.
rather merely questioned, on constitutional grounds, the repealing clause, or
Section 14 of the Fair Election Act. The Court’s afore-quoted declaration in Fariñas
may then very well be considered as an obiter dictum.
III.
The instant case presents a rare opportunity for the Court, in view
of the constitutional challenge advanced by petitioners, once and for all, to
settle the issue of whether the second proviso in the third paragraph of
Section 13 of R.A. No. 9369, a reproduction of Section 66 of the OEC, which, as
shown above, was based on provisions dating back to the American occupation, is
violative of the equal protection clause.
But before delving into the constitutional issue, we shall first
address the issues on legal standing and on the existence of an actual
controversy.
Central to the determination of locus standi is the question
of whether a party has alleged such a personal stake in the outcome of the controversy
as to assure that concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumination of difficult
constitutional questions. In this case,
petitioners allege that they will be directly affected by COMELEC Resolution
No. 8678 for they intend, and they all have the qualifications, to run in the
2010 elections. The OSG, for its part, contends that since petitioners have not
yet filed their CoCs, they are not yet candidates; hence, they are not yet
directly affected by the assailed provision in the COMELEC resolution.
The Court, nevertheless, finds that, while petitioners are not yet
candidates, they have the standing to raise the constitutional challenge,
simply because they are qualified voters. A restriction on candidacy, such as
the challenged measure herein, affects the rights of voters to choose their
public officials. The rights of voters and the rights of candidates do not lend
themselves to neat separation; laws that affect candidates always have at least
some theoretical, correlative effect on voters. The Court believes
that both candidates and voters may challenge, on grounds of equal protection,
the assailed measure because of its impact on voting rights.
In any event, in recent cases, this Court has relaxed the stringent
direct injury test and has observed a liberal policy allowing ordinary
citizens, members of Congress, and civil organizations to prosecute actions
involving the constitutionality or validity of laws, regulations and rulings.
We have also stressed in our prior decisions that the exercise by
this Court of judicial power is limited to the determination and resolution of
actual cases and controversies. The Court, in this
case, finds that an actual case or controversy exists between the petitioners
and the COMELEC, the body charged with the enforcement and administration of
all election laws. Petitioners have alleged in a precise manner that they would
engage in the very acts that would trigger the enforcement of the
provision—they would file their CoCs and run in the 2010 elections. Given that
the assailed provision provides for ipso facto resignation upon the
filing of the CoC, it cannot be said that it presents only a speculative or
hypothetical obstacle to petitioners’ candidacy.
IV.
Having hurdled what the OSG posed as obstacles to judicial review,
the Court now delves into the constitutional challenge.
It is noteworthy to point out that the right to run for public
office touches on two fundamental freedoms, those of expression and of
association.
This premise is best explained in Mancuso v. Taft, viz.:
Freedom of expression guarantees to the individual the opportunity
to write a letter to the local newspaper, speak out in a public park,
distribute handbills advocating radical reform, or picket an official building
to seek redress of grievances. All of these activities are protected by the
First Amendment if done in a manner consistent with a narrowly defined concept
of public order and safety. The choice of means will likely depend on the
amount of time and energy the individual wishes to expend and on his perception
as to the most effective method of projecting his message to the public. But
interest and commitment are evolving phenomena. What is an effective means for
protest at one point in time may not seem so effective at a later date. The
dilettante who participates in a picket line may decide to devote additional
time and resources to his expressive activity. As his commitment increases, the
means of effective expression changes, but the expressive quality remains
constant. He may decide to lead the picket line, or to publish the newspaper.
At one point in time he may decide that the most effective way to give
expression to his views and to get the attention of an appropriate audience is
to become a candidate for public office-means generally considered among the
most appropriate for those desiring to effect change in our governmental
systems. He may seek to become a candidate by filing in a general election as
an independent or by seeking the nomination of a political
party. And in the latter instance, the individual's expressive activity has two
dimensions: besides urging that his views be the views of the elected public
official, he is also attempting to become
a spokesman for a political party whose substantive program extends beyond the
particular office in question. But Cranston
has said that a certain type of its citizenry, the public employee, may not
become a candidate and may not engage in any campaign activity that promotes
himself as a candidate for public office. Thus the city has stifled what may be
the most important expression an individual can summon, namely that which he
would be willing to effectuate, by means of concrete public action, were he to
be selected by the voters.
It is impossible to ignore the additional fact that the right to
run for office also affects the freedom to associate. In Williams v. Rhodes, supra,
the Court used strict review to invalidate an Ohio election system that made it virtually
impossible for third parties to secure a place on the ballot. The Court found
that the First Amendment protected the freedom to associate by forming and
promoting a political party and that that freedom was infringed when the state
effectively denied a party access to its electoral machinery. The Cranston charter
provision before us also affects associational rights, albeit in a slightly
different way. An individual may decide to join or participate in an
organization or political party that shares his beliefs. He may even form a new
group to forward his ideas. And at some juncture his supporters and fellow
party members may decide that he is the ideal person to carry the group's
standard into the electoral fray. To thus restrict the options available to
political organization as the Cranston
charter provision has done is to limit the effectiveness of association; and
the freedom to associate is intimately related with the concept of making
expression effective. Party access to the ballot becomes less meaningful if
some of those selected by party machinery to carry the party's programs to the
people are precluded from doing so because those nominees are civil servants.
Whether the right to run for office is looked at from the point of
view of individual expression or associational effectiveness, wide
opportunities exist for the individual who seeks public office. The fact of
candidacy alone may open previously closed doors of the media. The candidate
may be invited to discuss his views on radio talk shows; he may be able to
secure equal time on television to elaborate his campaign program; the
newspapers may cover his candidacy; he may be invited to debate before various
groups that had theretofore never heard of him or his views. In short, the fact
of candidacy opens up a variety of communicative possibilities that are not
available to even the most diligent of picketers or the most loyal of party
followers. A view today, that running for public office is not an interest
protected by the First Amendment, seems to us an outlook stemming from an
earlier era when public office was the preserve of the professional and the
wealthy. Consequently we hold
that candidacy is both a protected First Amendment right and a fundamental
interest. Hence any legislative classification that significantly burdens that
interest must be subjected to strict equal protection review.
Here, petitioners’ interest in
running for public office, an interest protected by Sections 4 and 8 of Article
III of the Constitution, is breached by the proviso in Section 13 of R.A. No.
9369. It is now the opportune time for the Court to strike down the said
proviso for being violative of the equal protection clause and for being
overbroad.
In
considering persons holding appointive positions as ipso facto resigned
from their posts upon the filing of their CoCs, but not considering as resigned
all other civil servants, specifically the elective ones, the law unduly
discriminates against the first class. The fact alone that there is substantial
distinction between those who hold appointive positions and those occupying
elective posts, does not justify such differential treatment.
In order
that there can be valid classification so that a discriminatory
governmental act may pass the constitutional norm of equal protection, it is
necessary that the four (4) requisites of valid classification be complied
with, namely:
(1) It must be based upon substantial distinctions;
(2) It must be germane to the purposes of the law;
(3) It must not be limited to existing conditions only; and
(4) It must apply equally to all members of the class.
The first requirement means that there must be real and substantial
differences between the classes treated differently. As illustrated in the
fairly recent Mirasol v. Department of Public Works and Highways, a real and
substantial distinction exists between a motorcycle and other motor vehicles
sufficient to justify its classification among those prohibited from plying the
toll ways. Not all motorized vehicles are created equal—a two-wheeled vehicle
is less stable and more easily overturned than a four-wheel vehicle.
Nevertheless, the classification would still be invalid if it does
not comply with the second requirement—if it is not germane to the purpose of
the law. Justice Isagani A. Cruz (Ret.), in his treatise on constitutional law,
explains,
The classification, even if based on substantial distinctions, will still be
invalid if it is not germane to the purpose of the law. To illustrate, the
accepted difference in physical stamina between men and women will justify the
prohibition of the latter from employment as miners or stevedores or in other
heavy and strenuous work. On the basis of this same classification, however,
the law cannot provide for a lower passing average for women in the bar
examinations because physical strength is not the test for admission to the
legal profession. Imported cars may be taxed at a higher rate than locally
assembled automobiles for the protection of the national economy, but their
difference in origin is no justification for treating them differently when it
comes to punishing violations of traffic regulations. The source of the vehicle
has no relation to the observance of these rules.
The third
requirement means that the classification must be enforced not only for the
present but as long as the problem sought to be corrected continues to exist.
And, under the last requirement, the classification would be regarded as
invalid if all the members of the class are not treated similarly, both as to
rights conferred and obligations imposed.
Applying the
four requisites to the instant case, the Court finds that the differential
treatment of persons holding appointive offices as opposed to those holding
elective ones is not germane to the purposes of the law.
The obvious
reason for the challenged provision is to prevent the use of a governmental
position to promote one’s candidacy, or even to wield a dangerous or coercive
influence on the electorate. The measure is further aimed at promoting the
efficiency, integrity, and discipline of the public service by eliminating the
danger that the discharge of official duty would be motivated by political
considerations rather than the welfare of the public. The restriction is
also justified by the proposition that the entry of civil servants to the
electoral arena, while still in office, could result in neglect or inefficiency
in the performance of duty because they would be attending to their campaign
rather than to their office work.
If we accept
these as the underlying objectives of the law, then the assailed provision
cannot be constitutionally rescued on the ground of valid classification.
Glaringly absent is the requisite that the classification must be germane to
the purposes of the law. Indeed, whether one holds an appointive office or an
elective one, the evils sought to be prevented by the measure remain. For
example, the Executive Secretary, or any Member of the Cabinet for that matter,
could wield the same influence as the Vice-President who at the same time is
appointed to a Cabinet post (in the recent past, elected Vice-Presidents were
appointed to take charge of national housing, social welfare development, interior
and local government, and foreign affairs). With the fact that they both head
executive offices, there is no valid justification to treat them differently
when both file their CoCs for the elections. Under the present state of our
law, the Vice-President, in the example, running this time, let us say, for
President, retains his position during the entire election period and can still
use the resources of his office to support his campaign.
As to the danger of neglect, inefficiency or partisanship in the
discharge of the functions of his appointive office, the inverse could be just
as true and compelling. The public officer who files his certificate of
candidacy would be driven by a greater impetus for excellent performance to
show his fitness for the position aspired for.
Mancuso
v. Taft, cited above, explains
that the measure on automatic resignation, which restricts the rights of civil
servants to run for office—a right inextricably linked to their freedom of
expression and association, is not reasonably necessary to the satisfaction of
the state interest. Thus, in striking down a similar measure in the United States, Mancuso
succinctly declares—
In proceeding to the second stage of active equal protection
review, however, we do see some contemporary relevance of the Mitchell
decision. National Ass'n of Letter Carriers, supra. In order for the Cranston charter
provision to withstand strict scrutiny, the city must show that the exclusion
of all government employees from candidacy is necessary to achieve a compelling
state interest. And, as stated in Mitchell and other cases dealing with
similar statutes, see Wisconsin State Employees, supra; Broadrick, supra,
government at all levels has a substantial interest in protecting the integrity
of its civil service. It is obviously conceivable that the impartial character
of the civil service would be seriously jeopardized if people in positions of
authority used their discretion to forward their electoral ambitions rather
than the public welfare. Similarly if a public employee pressured other fellow
employees to engage in corrupt practices in return for promises of
post-election reward, or if an employee invoked the power of the office he was
seeking to extract special favors from his superiors, the civil service would
be done irreparable injury. Conversely, members of the public,
fellow-employees, or supervisors might themselves request favors from the
candidate or might improperly adjust their own official behavior towards him.
Even if none of these abuses actually materialize, the possibility of their
occurrence might seriously erode the public's confidence in its public
employees. For the reputation of impartiality is probably as crucial as the
impartiality itself; the knowledge that a clerk in the assessor's office who is
running for the local zoning board has access to confidential files which could
provide “pressure” points for furthering his campaign is destructive regardless
of whether the clerk actually takes advantage of his opportunities. For all of
these reasons we find that the state indeed has a compelling interest in
maintaining the honesty and impartiality of its public work force.
We
do not, however, consider the exclusionary measure taken by Cranston-a flat prohibition on office-seeking
of all kinds by all kinds of public employees-as even reasonably necessary to
satisfaction of this state interest. As Justice Marshall pointed out in Dunn
v. Blumstein, “[s]tatutes affecting constitutional rights must be
drawn with ‘precision.’” For three sets of reasons we conclude that the Cranston charter provision pursues its
objective in a far too heavy-handed manner and hence must fall under the equal
protection clause. First, we think the nature of the regulation-a broad
prophylactic rule-may be unnecessary to fulfillment of the city's objective.
Second, even granting some sort of prophylactic rule may be required, the
provision here prohibits candidacies for all types of public office, including
many which would pose none of the problems at which the law is aimed. Third,
the provision excludes the candidacies of all types of public employees,
without any attempt to limit exclusion to those employees whose positions make
them vulnerable to corruption and conflicts of interest.
There is thus no valid justification to treat appointive officials
differently from the elective ones. The classification simply fails to
meet the test that it should be germane to the purposes of the law. The
measure encapsulated in the second proviso of the third paragraph of Section 13
of R.A. No. 9369 and in Section 66 of the OEC violates the equal protection
clause.
V.
The
challenged provision also suffers from the infirmity of being overbroad.
First, the provision pertains to all civil servants holding
appointive posts without distinction as to whether they occupy high positions
in government or not. Certainly, a utility worker in the government will also
be considered as ipso facto resigned once he files his CoC for the 2010
elections. This scenario is absurd for, indeed, it is unimaginable how he can
use his position in the government to wield influence in the political
world.
While it may be admitted that most appointive officials who seek
public elective office are those who occupy relatively high positions in
government, laws cannot be legislated for them alone, or with them alone in
mind. For
the right to seek public elective office is universal, open and unrestrained,
subject only to the qualification standards prescribed in the Constitution and
in the laws.
These qualifications are, as we all know, general and basic so as to allow the
widest participation of the citizenry and to give free rein for the pursuit of
one’s highest aspirations to public office. Such is the essence of
democracy.
Second, the provision is directed to the activity of seeking any
and all public offices, whether they be partisan or nonpartisan in character,
whether they be in the national, municipal or barangay level. Congress
has not shown a compelling state interest to restrict the fundamental right
involved on such a sweeping scale.
Specific evils require specific treatments, not through overly
broad measures that unduly restrict guaranteed freedoms of the citizenry. After
all, sovereignty resides in the people, and all governmental power emanates
from them.
As to approaches less restrictive than a prophylactic rule, there exists
the device of the leave of absence.
Some system of leaves of absence would permit the public employee to take time
off to pursue his candidacy while assuring him his old job should his candidacy
be unsuccessful. Moreover, a leave of absence policy would eliminate many of
the opportunities for engaging in the questionable practices that the statute
is designed to prevent. While campaigning, the candidate would feel no conflict
between his desire for election and his publicly entrusted discretion, nor any
conflict between his efforts to persuade the public and his access to
confidential documents. But instead of adopting a reasonable leave of absence
policy, Cranston
has chosen a provision that makes the public employee cast off the security of
hard-won public employment should he desire to compete for elected office.
The city might also promote its interest in the integrity of the
civil service by enforcing, through dismissal, discipline, or criminal
prosecution, rules or statutes that treat conflict of interests, bribery, or
other forms of official corruption. By thus attacking the problem directly,
instead of using a broad prophylactic rule, the city could pursue its objective
without unduly burdening the First Amendment rights of its employees and the
voting rights of its citizens. Last term in Dunn v. Blumstein, the Supreme
Court faced an analogous question when the State of Tennessee asserted that the interest of
“ballot box purity” justified its imposition of one year and three month
residency requirements before a citizen could vote. Justice Marshall
stated, inter alia, that Tennessee
had available a number of criminal statutes that could be used to punish voter
fraud without unnecessary infringement on the newcomer's right to vote.
Similarly, it appears from the record in this case that the Cranston charter contains some provisions
that might be used against opportunistic public employees.
Even if some sort of prophylactic rule is necessary, we cannot say
that Cranston
has put much effort into tailoring a narrow provision that attempts to match
the prohibition with the problem. The charter forbids a Cranston public employee from running for any
office, anywhere. The prohibition is not limited to the local
offices of Cranston,
but rather extends to statewide offices and even to national offices. It is difficult for us to see that
a public employee running for the United States Congress poses quite the same
threat to the civil service as would the same employee if he were running for a
local office where the contacts and information provided by his job related
directly to the position he was seeking, and hence where the potential for
various abuses was greater. Nor does the Cranston
charter except the public employee who works in Cranston but aspires to office in another
local jurisdiction, most probably his town of residence. Here again the charter
precludes candidacies which can pose only a remote threat to the civil service.
Finally, the charter does not limit its prohibition to partisan office-seeking,
but sterilizes also those public employees who would seek nonpartisan elective
office. The statute reviewed in Mitchell was limited to partisan
political activity, and since that time other courts have found the
partisan-nonpartisan distinction a material one. See Kinnear, supra;
Wisconsin State Employees, supra; Gray v. Toledo, supra. While the
line between nonpartisan and partisan can often be blurred by systems whose
true characters are disguised by the names given them by their architects, it
seems clear that the concerns of a truly partisan office and the temptations it
fosters are sufficiently different from those involved in an office removed
from regular party politics to warrant distinctive treatment in a charter of
this sort.
The third and last area of excessive and overinclusive coverage of
the Cranston
charter relates not to the type of office sought, but to the type of employee
seeking the office. As Justice Douglas pointed out in his dissent in Mitchell,
330 U.S. at 120-126, 67 S.Ct. 556, restrictions on
administrative employees who either participate in decision-making or at least
have some access to information concerning policy matters are much more
justifiable than restrictions on industrial employees, who, but for the fact
that the government owns the plant they work in, are, for purposes of access to
official information, identically situated to all other industrial workers.
Thus, a worker in the Philadelphia mint could be
distinguished from a secretary in an office of the Department of Agriculture; so
also could a janitor in the public schools of Cranston be distinguished from an assistant
comptroller of the same city. A second line of distinction that focuses on the
type of employee is illustrated by the cases of Kinnear and Minielly,
supra. In both of these cases a civil service deputy decided to run for the
elected office of sheriff. The courts in both cases felt that the no-candidacy
laws in question were much too broad and indicated that perhaps the only
situation sensitive enough to justify a flat rule was one in which an inferior
in a public office electorally challenged his immediate superior. Given all
these considerations, we think Cranston
has not given adequate attention to the problem of narrowing the terms of its
charter to deal with the specific kinds of conflict-of-interest problems it
seeks to avoid.
We also do not find convincing the arguments that after-hours
campaigning will drain the energy of the public employee to the extent that he
is incapable of performing his job effectively and that inevitable on-the-job
campaigning and discussion of his candidacy will disrupt the work of others.
Although it is indisputable that the city has a compelling interest in the
performance of official work, the exclusion is not well-tailored to effectuate
that interest. Presumably the city could fire the
individual if he clearly shirks his employment responsibilities or disrupts the
work of others. Also, the efficiency rationale common to both arguments is
significantly underinclusive. It applies equally well to a number of
non-political, extracurricular activities that are not prohibited by the Cranston charter.
Finally, the connection between after-hours campaigning and the state interest
seems tenuous; in many cases a public employee would be able to campaign
aggressively and still continue to do his job well.
Incidentally, Clements v. Fashing sustained as
constitutional a provision on the automatic resignation of District Clerks,
County Clerks, County Judges, County Treasurers, Criminal District Attorneys,
County Surveyors, Inspectors of Hides and Animals, County Commissioners,
Justices of the Peace, Sheriffs, Assessors and Collectors of Taxes, District
Attorneys, County Attorneys, Public Weighers, and Constables if they announce
their candidacy or if they become candidates in any general, special or primary
election.
In Clements, it may be readily observed that a provision
treating differently particular officials, as distinguished from all others,
under a classification that is germane to the purposes of the law, merits the
stamp of approval from American courts. Not, however, a general and
sweeping provision, and more so one violative of the second requisite for a
valid classification, which is on its face unconstitutional.
On a final note, it may not be amiss to state that the Americans,
from whom we copied the provision in question, had already stricken down a
similar measure for being unconstitutional. It is high-time that we, too,
should follow suit and, thus, uphold fundamental liberties over age-old, but
barren, restrictions to such freedoms.
WHEREFORE, premises considered, the petition is GRANTED. The second proviso in the
third paragraph of Section 13 of Republic Act No. 9369, Section 66 of the
Omnibus Election Code and Section 4(a) of COMELEC Resolution No. 8678 are
declared as UNCONSTITUTIONAL.
SO ORDERED.
Petitioner Eleazar P. Quinto is the Undersecretary for Field Operations of the
Department of Environment and Natural Resources (DENR). He intends to run for
Representative in the 4th Congressional District of Pangasinan.
Petitioner Gerino A. Tolentino, Jr. is the OIC-Director of the Land Management
Bureau of the DENR. He likewise desires to run for City Councilor in the 4th
District of Manila. (Rollo, pp. 8-9.)
SECTION 1. Petition for certiorari.—When any tribunal, board or officer
exercising judicial or quasi-judicial functions has acted without or in excess
of its or his jurisdiction, or with grave abuse of discretion amounting to lack
or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and
adequate remedy in the ordinary course of law, a person aggrieved thereby may
file a verified petition in the proper court, alleging the facts with certainty
and praying that judgment be rendered annulling or modifying the proceedings of
such tribunal, board or officer, and granting such incidental reliefs as law
and justice may require. (See Patalinghug v. Commission on
Elections, G.R. No. 178767, January 30, 2008, 543 SCRA 175, 184-185.)
SECTION 1. Who may file petition.—Any person interested under a deed,
will, contract or other written instrument, or whose rights are affected by a
statute, executive order or regulation, ordinance, or any other governmental
regulation may, before breach or violation thereof, bring an action in the
appropriate Regional Trial Court to determine any question of construction or
validity arising, and for a declaration of his rights or duties,
thereunder. (See Almeda v. Bathala Marketing Industries, Inc.,
G.R. No. 150806, January 28, 2008, 542 SCRA 470, 478-479; John Hay Peoples
Alternative Coalition v. Lim, G.R. No. 119775, October 24, 2003, 414 SCRA
356, 369.)
MCC
Industrial Sales Corporation v. Ssangyong Corporation, G.R. No. 170633,
October 17, 2007, 536 SCRA 408, 433.
Entitled “AN ACT TO ENHANCE THE HOLDING OF FREE, ORDERLY, HONEST, PEACEFUL AND
CREDIBLE ELECTIONS THROUGH FAIR ELECTION PRACTICES,” approved on February 12,
2001.
SEC. 14 Repealing Clause.—Sections 67 and 85 of the Omnibus Election
Code (Batas Pambansa Blg. 881) and Sections 10 and 11 of Republic Act No. 6646
are hereby repealed. As a consequence, the first proviso in the third paragraph
of Section 11 of Republic Act No. 8436 is rendered ineffective. All laws,
presidential decrees, executive orders, rules and regulations, or any part
thereof inconsistent with the provisions of this Act are hereby repealed or
modified or amended accordingly.
David
v. Macapagal-Arroyo, G.R. Nos. 171396, 171409, 171485, 171483,
171400, 171489 and 171424, May 3, 2006, 489 SCRA 160, 218.
Dumlao
v. COMELEC, G.R. No. L-52245, January 22, 1980, 95 SCRA 392, 401. This case
explains the standards that have to be followed in the exercise of the power of
judicial review, namely: (1) the existence of an appropriate case; (2) an
interest personal and substantial by the party raising the constitutional
question; (3) the plea that the function be exercised at the earliest
opportunity; and (4) the necessity that the constitutional question be passed
upon in order to decide the case.
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