Friday, October 28, 2011

a gigantic fraud on the people

An initiative that gathers signatures from the people without first showing to the people the full text of the proposed amendments is most likely a deception, and can operate as a gigantic fraud on the people. That is why the Constitution requires that an initiative must be "directly proposed by the people x x x in a petition" - meaning that the people must sign on a petition that contains the full text of the proposed amendments. On so vital an issue as amending the nation's fundamental law, the writing of the text of the proposed amendments cannot be hidden from the people under a general or special power of attorney to unnamed, faceless, and unelected individuals.

The Constitution entrusts to the people the power to directly propose amendments to the Constitution. This Court trusts the wisdom of the people even if the members of this Court do not personally know the people who sign the petition. However, this trust emanates from a fundamental assumption: the full text of the proposed amendment is first shown to the people before they sign the petition, not after they have signed the petition.

In short, the Lambino Group's initiative is void and unconstitutional because it dismally fails to comply with the requirement of Section 2, Article XVII of the Constitution that the initiative must be "directly proposed by the people through initiative upon a petition."

G.R. No. 174153 October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO, TOGETHER WITH 6,327,952 REGISTERED VOTERS, Petitioners,vs.THE COMMISSION ON ELECTIONS, Respondent.

AMENDMENT and REVISION

Courts have long recognized the distinction between an amendment and a revision of a constitution. One of the earliest cases that recognized the distinction described the fundamental difference in this manner:

[T]he very term "constitution" implies an instrument of a permanent and abiding nature, and the provisions contained therein for its revision indicate the will of the people that the underlying principles upon which it rests, as well as the substantial entirety of the instrument, shall be of a like permanent and abiding nature. On the other hand, the significance of the term "amendment" implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed.35 (Emphasis supplied)

Revision broadly implies a change that alters a basic principle in the constitution, like altering the principle of separation of powers or the system of checks-and-balances. There is also revision if the change alters the substantial entirety of the constitution, as when the change affects substantial provisions of the constitution. On the other hand, amendment broadly refers to a change that adds, reduces, or deletes without altering the basic principle involved. Revision generally affects several provisions of the constitution, while amendment generally affects only the specific provision being amended.

In California where the initiative clause allows amendments but not revisions to the constitution just like in our Constitution, courts have developed a two-part test: the quantitative test and the qualitative test. The quantitative test asks whether the proposed change is "so extensive in its provisions as to change directly the 'substantial entirety' of the constitution by the deletion or alteration of numerous existing provisions."36 The court examines only the number of provisions affected and does not consider the degree of the change.

The qualitative test inquires into the qualitative effects of the proposed change in the constitution. The main inquiry is whether the change will "accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision."37 Whether there is an alteration in the structure of government is a proper subject of inquiry. Thus, "a change in the nature of [the] basic governmental plan" includes "change in its fundamental framework or the fundamental powers of its Branches."38 A change in the nature of the basic governmental plan also includes changes that "jeopardize the traditional form of government and the system of check and balances."39

Under both the quantitative and qualitative tests, the Lambino Group's initiative is a revision and not merely an amendment. Quantitatively, the Lambino Group's proposed changes overhaul two articles - Article VI on the Legislature and Article VII on the Executive - affecting a total of 105 provisions in the entire Constitution.40 Qualitatively, the proposed changes alter substantially the basic plan of government, from presidential to parliamentary, and from a bicameral to a unicameral legislature.

A change in the structure of government is a revision of the Constitution, as when the three great co-equal branches of government in the present Constitution are reduced into two. This alters the separation of powers in the Constitution. A shift from the present Bicameral-Presidential system to a Unicameral-Parliamentary system is a revision of the Constitution. Merging the legislative and executive branches is a radical change in the structure of government.

The abolition alone of the Office of the President as the locus of Executive Power alters the separation of powers and thus constitutes a revision of the Constitution. Likewise, the abolition alone of one chamber of Congress alters the system of checks-and-balances within the legislature and constitutes a revision of the Constitution.

By any legal test and under any jurisdiction, a shift from a Bicameral-Presidential to a Unicameral-Parliamentary system, involving the abolition of the Office of the President and the abolition of one chamber of Congress, is beyond doubt a revision, not a mere amendment. On the face alone of the Lambino Group's proposed changes, it is readily apparent that the changes will radically alter the framework of government as set forth in the Constitution. Father Joaquin Bernas, S.J., a leading member of the Constitutional Commission, writes:

An amendment envisages an alteration of one or a few specific and separable provisions. The guiding original intention of an amendment is to improve specific parts or to add new provisions deemed necessary to meet new conditions or to suppress specific portions that may have become obsolete or that are judged to be dangerous. In revision, however, the guiding original intention and plan contemplates a re-examination of the entire document, or of provisions of the document which have over-all implications for the entire document, to determine how and to what extent they should be altered. Thus, for instance a switch from the presidential system to a parliamentary system would be a revision because of its over-all impact on the entire constitutional structure. So would a switch from a bicameral system to a unicameral system be because of its effect on other important provisions of the Constitution

Lambino, et al. vs. COMELEC (G.R. No. 174153, 25 October 2006) – Digest

On 15 February 2006, the group of Raul Lambino and Erico Aumentado (“Lambino Group”) commenced gathering signatures for an initiative petition to change the 1987 Constitution. On 25 August 2006, the Lambino Group filed a petition with the Commission on Elections (COMELEC) to hold a plebiscite that will ratify their initiative petition under Section 5(b) and (c) and Section 7 of Republic Act No. 6735 or the Initiative and Referendum Act. The proposed changes under the petition will shift the present Bicameral-Presidential system to a Unicameral-Parliamentary form of government.

The Lambino Group claims that: (a) their petition had the support of 6,327,952 individuals constituting at least 12% of all registered voters, with each legislative district represented by at least 3% of its registered voters; and (b) COMELEC election registrars had verified the signatures of the 6.3 million individuals.

The COMELEC, however, denied due course to the petition for lack of an enabling law governing initiative petitions to amend the Constitution, pursuant to the Supreme Court’s ruling in Santiago vs. Commission on Elections. The Lambino Group elevated the matter to the Supreme Court, which also threw out the petition.

1. The initiative petition does not comply with Section 2, Article XVII of the Constitution on direct proposal by the people

Section 2, Article XVII of the Constitution is the governing provision that allows a people’s initiative to propose amendments to the Constitution. While this provision does not expressly state that the petition must set forth the full text of the proposed amendments, the deliberations of the framers of our Constitution clearly show that: (a) the framers intended to adopt the relevant American jurisprudence on peoples initiative; and (b) in particular, the people must first see the full text of the proposed amendments before they sign, and that the people must sign on a petition containing such full text.

The essence of amendments “directly proposed by the people through initiative upon a petition” is that the entire proposal on its face is a petition by the people. This means two essential elements must be present.

First, the people must author and thus sign the entire proposal. No agent or representative can sign on their behalf.

Second, as an initiative upon a petition, the proposal must be embodied in a petition.

These essential elements are present only if the full text of the proposed amendments is first shown to the people who express their assent by signing such complete proposal in a petition. The full text of the proposed amendments may be either written on the face of the petition, or attached to it. If so attached, the petition must state the fact of such attachment. This is an assurance that every one of the several millions of signatories to the petition had seen the full text of the proposed amendments before – not after – signing.

Moreover, “an initiative signer must be informed at the time of signing of the nature and effect of that which is proposed” and failure to do so is “deceptive and misleading” which renders the initiative void.

In the case of the Lambino Group’s petition, there’s not a single word, phrase, or sentence of text of the proposed changes in the signature sheet. Neither does the signature sheet state that the text of the proposed changes is attached to it. The signature sheet merely asks a question whether the people approve a shift from the Bicameral-Presidential to the Unicameral- Parliamentary system of government. The signature sheet does not show to the people the draft of the proposed changes before they are asked to sign the signature sheet. This omission is fatal.

An initiative that gathers signatures from the people without first showing to the people the full text of the proposed amendments is most likely a deception, and can operate as a gigantic fraud on the people. That’s why the Constitution requires that an initiative must be “directly proposed by the people x x x in a petition” – meaning that the people must sign on a petition that contains the full text of the proposed amendments. On so vital an issue as amending the nation’s fundamental law, the writing of the text of the proposed amendments cannot be hidden from the people under a general or special power of attorney to unnamed, faceless, and unelected individuals.

2. The initiative violates Section 2, Article XVII of the Constitution disallowing revision through initiatives

Article XVII of the Constitution speaks of three modes of amending the Constitution. The first mode is through Congress upon three-fourths vote of all its Members. The second mode is through a constitutional convention. The third mode is through a people’s initiative.

Section 1 of Article XVII, referring to the first and second modes, applies to “any amendment to, or revision of, this Constitution.” In contrast, Section 2 of Article XVII, referring to the third mode, applies only to “amendments to this Constitution.” This distinction was intentional as shown by the deliberations of the Constitutional Commission. A people’s initiative to change the Constitution applies only to an amendment of the Constitution and not to its revision. In contrast, Congress or a constitutional convention can propose both amendments and revisions to the Constitution.

Does the Lambino Group’s initiative constitute an amendment or revision of the Constitution? Yes. By any legal test and under any jurisdiction, a shift from a Bicameral-Presidential to a Unicameral-Parliamentary system, involving the abolition of the Office of the President and the abolition of one chamber of Congress, is beyond doubt a revision, not a mere amendment.

Courts have long recognized the distinction between an amendment and a revision of a constitution. Revision broadly implies a change that alters a basic principle in the constitution, like altering the principle of separation of powers or the system of checks-and-balances. There is also revision if the change alters the substantial entirety of the constitution, as when the change affects substantial provisions of the constitution. On the other hand, amendment broadly refers to a change that adds, reduces, or deletes without altering the basic principle involved. Revision generally affects several provisions of the constitution, while amendment generally affects only the specific provision being amended.

Where the proposed change applies only to a specific provision of the Constitution without affecting any other section or article, the change may generally be considered an amendment and not a revision. For example, a change reducing the voting age from 18 years to 15 years is an amendment and not a revision. Similarly, a change reducing Filipino ownership of mass media companies from 100% to 60% is an amendment and not a revision. Also, a change requiring a college degree as an additional qualification for election to the Presidency is an amendment and not a revision.

The changes in these examples do not entail any modification of sections or articles of the Constitution other than the specific provision being amended. These changes do not also affect the structure of government or the system of checks-and-balances among or within the three branches.

However, there can be no fixed rule on whether a change is an amendment or a revision. A change in a single word of one sentence of the Constitution may be a revision and not an amendment. For example, the substitution of the word “republican” with “monarchic” or “theocratic” in Section 1, Article II of the Constitution radically overhauls the entire structure of government and the fundamental ideological basis of the Constitution. Thus, each specific change will have to be examined case-by-case, depending on how it affects other provisions, as well as how it affects the structure of government, the carefully crafted system of checks-and-balances, and the underlying ideological basis of the existing Constitution.

Since a revision of a constitution affects basic principles, or several provisions of a constitution, a deliberative body with recorded proceedings is best suited to undertake a revision. A revision requires harmonizing not only several provisions, but also the altered principles with those that remain unaltered. Thus, constitutions normally authorize deliberative bodies like constituent assemblies or constitutional conventions to undertake revisions. On the other hand, constitutions allow people’s initiatives, which do not have fixed and identifiable deliberative bodies or recorded proceedings, to undertake only amendments and not revisions.

In California where the initiative clause allows amendments but not revisions to the constitution just like in our Constitution, courts have developed a two-part test: the quantitative test and the qualitative test. The quantitative test asks whether the proposed change is so extensive in its provisions as to change directly the substantial entirety of the constitution by the deletion or alteration of numerous existing provisions. The court examines only the number of provisions affected and does not consider the degree of the change.

The qualitative test inquires into the qualitative effects of the proposed change in the constitution. The main inquiry is whether the change will “accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision.” Whether there is an alteration in the structure of government is a proper subject of inquiry. Thus, “a change in the nature of [the] basic governmental plan” includes change in its fundamental framework or the fundamental powers of its Branches. A change in the nature of the basic governmental plan also includes changes that jeopardize the traditional form of government and the system of check and balances.

Under both the quantitative and qualitative tests, the Lambino Group initiative is a revision and not merely an amendment. Quantitatively, the Lambino Group proposed changes overhaul two articles – Article VI on the Legislature and Article VII on the Executive – affecting a total of 105 provisions in the entire Constitution. Qualitatively, the proposed changes alter substantially the basic plan of government, from presidential to parliamentary, and from a bicameral to a unicameral legislature.

A change in the structure of government is a revision of the Constitution, as when the three great co-equal branches of government in the present Constitution are reduced into two. This alters the separation of powers in the Constitution. A shift from the present Bicameral-Presidential system to a Unicameral-Parliamentary system is a revision of the Constitution. Merging the legislative and executive branches is a radical change in the structure of government. The abolition alone of the Office of the President as the locus of Executive Power alters the separation of powers and thus constitutes a revision of the Constitution. Likewise, the abolition alone of one chamber of Congress alters the system of checks-and-balances within the legislature and constitutes a revision of the Constitution.

The Lambino Group theorizes that the difference between “amendment” and “revision” is only one of procedure, not of substance. The Lambino Group posits that when a deliberative body drafts and proposes changes to the Constitution, substantive changes are called “revisions” because members of the deliberative body work full-time on the changes. The same substantive changes, when proposed through an initiative, are called “amendments” because the changes are made by ordinary people who do not make an “occupation, profession, or vocation” out of such endeavor. The SC, however, ruled that the express intent of the framers and the plain language of the Constitution contradict the Lambino Group’s theory. Where the intent of the framers and the language of the Constitution are clear and plainly stated, courts do not deviate from such categorical intent and language.

3. A revisit of Santiago vs. COMELEC is not necessary

The petition failed to comply with the basic requirements of Section 2, Article XVII of the Constitution on the conduct and scope of a peoples initiative to amend the Constitution. There is, therefore, no need to revisit this Courts ruling in Santiago declaring RA 6735 incomplete, inadequate or wanting in essential terms and conditions to cover the system of initiative to amend the Constitution. An affirmation or reversal of Santiago will not change the outcome of the present petition. It settled that courts will not pass upon the constitutionality of a statute if the case can be resolved on some other grounds.

Even assuming that RA 6735 is valid, this will not change the result here because the present petition violates Section 2, Article XVII of the Constitution, which provision must first be complied with even before complying with RA 6735. Worse, the petition violates the following provisions of RA 6735:

a. Section 5(b), requiring that the people must sign the petition as signatories. The 6.3 million signatories did not sign the petition or the amended petition filed with the COMELEC. Only Attys. Lambino, Donato and Agra signed the petition and amended petition.

b. Section 10(a), providing that no petition embracing more than one subject shall be submitted to the electorate. The proposed Section 4(4) of the Transitory Provisions, mandating the interim Parliament to propose further amendments or revisions to the Constitution, is a subject matter totally unrelated to the shift in the form of government.

LIMITATIONS ON THE POWER OF IMPEACHMENT

Respondent House of Representatives counters that under Section 3 (8) of Article XI, it is clear and unequivocal that it and only it has the power to make and interpret its rules governing impeachment. Its argument is premised on the assumption that Congress has absolute power to promulgate its rules. This assumption, however, is misplaced.
Section 3 (8) of Article XI provides that “The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section.” Clearly, its power to promulgate its rules on impeachment is limited by the phrase “to effectively carry out the purpose of this section.” Hence, these rules cannot contravene the very purpose of the Constitution which said rules were intended to effectively carry out. Moreover, Section 3 of Article XI clearly provides for other specific limitations on its power to make rules, viz:
Section 3. (1) x x x
(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof.
(3) A vote of at least one-third of all the Members of the House shall be necessary to either affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded.
(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed.
(5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year.

It is basic that all rules must not contravene the Constitution which is the fundamental law. If as alleged Congress had absolute rule making power, then it would by necessary implication have the power to alter or amend the meaning of the Constitution without need of referendum.
In Osmeña v. Pendatun, this Court held that it is within the province of either House of Congress to interpret its rules and that it was the best judge of what constituted “disorderly behavior” of its members. However, in Paceta v. Secretary of the Commission on Appointments, Justice (later Chief Justice) Enrique Fernando, speaking for this Court and quoting Justice Brandeis in United States v. Smith, declared that where the construction to be given to a rule affects persons other than members of the Legislature, the question becomes judicial in nature. In Arroyo v. De Venecia, quoting United States v. Ballin, Joseph & Co., Justice Vicente Mendoza, speaking for this Court, held that while the Constitution empowers each house to determine its rules of proceedings, it may not by its rules ignore constitutional restraints or violate fundamental rights, and further that there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained.

“seven pillars” of limitations of the power of judicial review

In Demetria v. Alba, this Court, through Justice Marcelo Fernan cited the “seven pillars” of limitations of the power of judicial review, enunciated by US Supreme Court Justice Brandeis in Ashwander v. TVA as follows:
1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary proceeding, declining because to decide such questions ‘is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.’
2. The Court will not ‘anticipate a question of constitutional law in advance of the necessity of deciding it.’ . . . ‘It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.’
3. The Court will not ‘formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.’
4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter. Appeals from the highest court of a state challenging its decision of a question under the Federal Constitution are frequently dismissed because the judgment can be sustained on an independent state ground.
5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation. Among the many applications of this rule, none is more striking than the denial of the right of challenge to one who lacks a personal or property right. Thus, the challenge by a public official interested only in the performance of his official duty will not be entertained . . . In Fairchild v. Hughes, the Court affirmed the dismissal of a suit brought by a citizen who sought to have the Nineteenth Amendment declared unconstitutional. In Massachusetts v. Mellon, the challenge of the federal Maternity Act was not entertained although made by the Commonwealth on behalf of all its citizens.
6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.
7. When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided (citations omitted).
The foregoing “pillars” of limitation of judicial review, summarized in Ashwander v. TVA from different decisions of the United States Supreme Court, can be encapsulated into the following categories:
1. that there be absolute necessity of deciding a case
2. that rules of constitutional law shall be formulated only as required by the facts of the case
3. that judgment may not be sustained on some other ground
4. that there be actual injury sustained by the party by reason of the operation of the statute
5. that the parties are not in estoppel
6. that the Court upholds the presumption of constitutionality.
As stated previously, parallel guidelines have been adopted by this Court in the exercise of judicial review:
1. actual case or controversy calling for the exercise of judicial power
2. the person challenging the act must have “standing” to challenge; he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement
3. the question of constitutionality must be raised at the earliest possible opportunity
4. the issue of constitutionality must be the very lis mota of the case.

the CHR is not among the class of Constitutional Commissions

From the 1987 Constitution and the Administrative Code, it is abundantly clear that the CHR is not among the class of Constitutional Commissions. As expressed in the oft-repeated maxim expressio unius est exclusio alterius, the express mention of one person, thing, act or consequence excludes all others. Stated otherwise, expressium facit cessare tacitum what is expressed puts an end to what is implied.[21

Nor is there any legal basis to support the contention that the CHR enjoys fiscal autonomy. In essence, fiscal autonomy entails freedom from outside control and limitations, other than those provided by law. It is the freedom to allocate and utilize funds granted by law, in accordance with law, and pursuant to the wisdom and dispatch its needs may require from time to time.[22 In Blaquera v. Alcala and Bengzon v. Drilon,[23 it is understood that it is only the Judiciary, the Civil Service Commission, the Commission on Audit, the Commission on Elections, and the Office of the Ombudsman, which enjoy fiscal autonomy. Thus, in Bengzon,[24 we explained:

As envisioned in the Constitution, the fiscal autonomy enjoyed by the Judiciary, the Civil Service Commission, the Commission on Audit, the Commission on Elections, and the Office of the Ombudsman contemplates a guarantee of full flexibility to allocate and utilize their resources with the wisdom and dispatch that their needs require. It recognizes the power and authority to levy, assess and collect fees, fix rates of compensation not exceeding the highest rates authorized by law for compensation and pay plans of the government and allocate and disburse such sums as may be provided by law or prescribed by them in the course of the discharge of their functions.

. . .

The Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence and flexibility needed in the discharge of their constitutional duties. The imposition of restrictions and constraints on the manner the independent constitutional offices allocate and utilize the funds appropriated for their operations is anathema to fiscal autonomy and violative not only of the express mandate of the Constitution but especially as regards the Supreme Court, of the independence and separation of powers upon which the entire fabric of our constitutional system is based. In the interest of comity and cooperation, the Supreme Court, [the] Constitutional Commissions, and the Ombudsman have so far limited their objections to constant reminders. We now agree with the petitioners that this grant of autonomy should cease to be a meaningless provision. (Emphasis supplied.)

Neither does the fact that the CHR was admitted as a member by the Constitutional Fiscal Autonomy Group (CFAG) ipso facto clothed it with fiscal autonomy. Fiscal autonomy is a constitutional grant, not a tag obtainable by membership.

We note with interest that the special provision under Rep. Act No. 8522, while cited under the heading of the CHR, did not specifically mention CHR as among those offices to which the special provision to formulate and implement organizational structures apply, but merely states its coverage to include Constitutional Commissions and Offices enjoying fiscal autonomy.

SECOND DIVISION

G.R. No. 155336. November 25, 2004

COMMISSION ON HUMAN RIGHTS EMPLOYEES ASSOCIATION (CHREA) Represented by its President, MARCIAL A. SANCHEZ, JR., Petitioner, v. COMMISSION ON HUMAN RIGHTS, Respondent.

WHEN SALARY GRADE IS NOT CONTROLLING

As proposed by the Committee, the Sandiganbayan shall exercise original jurisdiction over cases assigned to it only in instances where one or more of the principal accused are officials occupying the positions of regional director and higher or are otherwise classified as Grade 27 and higher by the Compensation and Classification Act of 1989, whether in a permanent, acting or interim capacity at the time of the commission of the offense. The jurisdiction, therefore, refers to a certain grade upwards, which shall remain with the Sandiganbayan.
The President of the Philippines and other impeachable officers such as the justices of the Supreme Court and constitutional commissions are not subject to the original jurisdiction of the Sandiganbayan during their incumbency.
The bill provides for an extensive listing of other public officers who will be subject to the original jurisdiction of the Sandiganbayan. It includes, among others, Members of Congress, judges and justices of all courts.
x x x
Indeed, it is a basic precept in statutory construction that the intent of the legislature is the controlling factor in the interpretation of a statute. From the congressional records and the text of Rep. Acts No. 7975 and 8294, the legislature undoubtedly intended the officials enumerated in (a) to (g) of Section 4 a.(1) of P.D. No. 1606, as amended by the aforesaid subsequent laws, to be included within the original jurisdiction of the Sandiganbayan.
Following this disquisition, the paragraph of Section 4 which provides that if the accused is occupying a position lower than SG 27, the proper trial court has jurisdiction, can only be properly interpreted as applying to those cases where the principal accused is occupying a position lower than SG 27 and not among those specifically included in the enumeration in Section 4 a. (1)(a) to (g). Stated otherwise, except for those officials specifically included in Section 4 a. (1) (a) to (g), regardless of their salary grades, over whom the Sandiganbayan has jurisdiction, all other public officials below SG 27 shall be under the jurisdiction of the proper trial courts “where none of the principal accused are occupying positions corresponding to SG 27 or higher.” By this construction, the entire Section 4 is given effect. The cardinal rule, after all, in statutory construction is that the particular words, clauses and phrases should not be studied as detached and isolated expressions, but the whole and every part of the statute must be considered in fixing the meaning of any of its parts and in order to produce a harmonious whole. And courts should adopt a construction that will give effect to every part of a statute, if at all possible. Ut magis valeat quam pereat or that construction is to be sought which gives effect to the whole of the statute – its every word.

EN BANC
[G.R. No. 143047. July 14, 2004]
RICARDO S. INDING, petitioner, vs. THE HONORABLE SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES, respondents.

jurisdiction of the sandiganbayan

For an offense to fall under the exclusive original jurisdiction of the Sandiganbayan, the following requisites must concur: (1) the offense committed is a violation of (a) R.A. 3019, as amended (the Anti-Graft and Corrupt Practices Act), (b) R.A. 1379 (the law on ill-gotten wealth), (c) Chapter II, Section 2, Title VII, Book II of the Revised Penal Code (the law on bribery), (d) Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986 (sequestration cases), or (e) other offenses or felonies whether simple or complexed with other crimes; (2) the offender committing the offenses in items (a), (b), (c) and (e) is a public official or employee[42] holding any of the positions enumerated in paragraph A of Section 4; and (3) the offense committed is in relation to the office.[43]

x x x

In Montilla v. Hilario,[46] this Court held that for an offense to be committed in relation to the office, the relation between the crime and the office must be direct and not accidental, such that the offense cannot exist without the office.
People v. Montejo,[47] by way of exception, enunciated the principle that although public office is not an element of the offense charged, as long as the offense charged in the information is intimately connected with the office of the offender and perpetrated while he was in the performance, though improper or irregular, of his official functions, the accused is held to have been indicted for an offense committed in relation to his office.
These rulings were reiterated in Sanchez v. Demetriou,[48] Republic v. Asuncion,[49] Cunanan v. Arceo,[50] People v. Magallanes,[51] Alarilla v. Sandiganbayan [52] and Soller v. Sandiganbayan.[53]
That the jurisdiction of a court is determined by the allegations in the complaint or information, and not by the evidence presented by the parties at the trial,[54] is settled.
As early as 1954, we pronounced that “the factor that characterizes the charge is the actual recital of the facts.” “The real nature of the criminal charge is determined not from the caption or preamble of the information nor from the specification of the provision of law alleged to have been violated, they being conclusions of law, but by the actual recital of facts in the complaint or information.”[55] (Emphasis and underscoring supplied)

THIRD DIVISION
[G.R. No. 154886. July 28, 2005]
LUDWIG H. ADAZA, petitioner, vs. SANDIGANBAYAN (the First DIVISION composed of Justices GREGORIO S. ONG, CATALINO R. CASTANEDA, JR. and FRANCISCO H. VILLARUZ, JR. and THE PEOPLE OF THE PHILIPPINES represented by SPECIAL PROSECUTION OFFICE, respondents.

preventive suspension for a period of ninety (90) days

Petitioners raise the sole issue of whether or not the respondent Sandiganbayan gravely abused its discretion amounting to lack or excess of jurisdiction in ordering their preventive suspension. Petitioners contend that the issuance of the preventive suspension order is violative of their constitutional right to due process as they were denied the opportunity to question the validity of the criminal proceedings against them; that there was no pre-suspension hearing to determine the validity of the information; that the proceedings leading to the filing of the Information were irregular, and that there was only one (1) complaint-affidavit but the charges resulted to the filing of three (3) Informations.
The contentions are untenable.
It has been a settled rule that it is mandatory for the Sandigabayan to place under preventive suspension a public officer accused before it. The imposition of suspension is not automatic or self-operative since the accused is given adequate opportunity to challenge the validity or regularity of the criminal proceedings against him. But once proper determination of the validity of the Information has been made, it becomes the ministerial duty of the court to forthwith issue the order of preventive suspension. The rule on the matter is specific and categorical and leaves no room for interpretation.11 Segovia vs. Sandiganbayan, 288 SCRA 328; Socrates vs. Sandiganbayan, 253 SCRA 773; Bolastig vs. Sandiganbayan, 235 SCRA 103; Gonzaga vs. Sandiganbayan, 201 SCRA 417; People vs. Albano, 163 SCRA 511. The court trying a case has neither discretion nor duty to determine whether preventive suspension is required to prevent the accused from using his office to intimidate witnesses or frustrate his prosecution or continue committing malfeasance in office.12 Bolastig vs. Sandiganbayan, supra.
Is should be noted that petitioners filed their "Opposition to the Motion to Suspend Accused, with Prayer for the Court to have a Second Look on the Prosecution’s Weak and Shallow Evidence" alleging that the motion rested and shallow grounds, i.e., there was no solid evidence to justify the suspension. Respondent Sandiganbayan, in the assailed Resolution of August 16, 2000, stated that petitioners, in effect, assailed the validity of the Informations basically on the ground that there is no basis for the finding of a prima facie case. And as pointed out by the prosecution, upon petitioners’ arraignment, they had, in effect, acceded to the validity of the Informations filed against them.
Petitioners further argue that they were deprived of full-blown preliminary investigation and a chance to present evidence. They claim that a mere ocular inspection of the project sites will settle once and for all the existence or non-existence of the projects. They likewise allege that the denial of their Motion to refer the cases to the Commission on Audit contributed to a violation of their right to due process. The matter raised by the petitioners are evidentiary facts which are matters of defense and better addressed in a full-blown trial.
It should be noted that in the assailed Resolution, the Sandiganbayan found the Informations "valid and sufficient" and that the duly authorized prosecution officer certified that a preliminary investigation was conducted in these cases. It has been consistently held that "neither will the absence of a preliminary investigation, assuming that it is necessary to conduct a new one, affect the validity of the information" filed against petitioners. It does not impair the validity of the criminal information or render it defective. Dismissal of the case is not the remedy.13 Socrates vs. Sandiganbayan, 253 SCRA 773. Further. "(O)nce the information is found to be sufficient in form and substance, then the court must issue the order of suspension as a matter of course. There are no ifs and buts about it. This is because a preventive suspension is not a penalty. It is not imposed as a result of judicial proceedings."14 Segovia vs. Sandiganbayan, supra citing Bayot vs. Sandiganbayan, 128 SCRA 383 and Libanan vs. Sandiganbayan, 163 SCRA 163.
This being the case, the Court is satisfied that the Fourth Division of the Sandiganbayan, after upholding the validity of the Informations against herein petitioners, correctly ordered their preventive suspension for a period of ninety (90) days. Public policy is involved in preventively suspending a public officer charged under a valid information. The protection of public interest will prevail over the private interest of the accused.15 Socrates vs. Sandiganbayan, supra citing Bayot vs. Sandiganbayan, supra.

[G.R. No. 145030. December 11, 2000]
TEOFILO G. PANTALEON, JR., et al. vs. REP. OF THE PHIL., et al.
THIRD DIVISION

The power to investigate and to prosecute granted by law to the Ombudsman is plenary and unqualified.

Indeed, this Court has reconsidered the said ruling and held that the Ombudsman has powers to prosecute not only graft cases within the jurisdiction of the Sandiganbayan but also those cognizable by the regular courts. It held:
The power to investigate and to prosecute granted by law to the Ombudsman is plenary and unqualified. It pertains to any act or omission of any public officer or employee when such act or omission appears to be illegal, unjust, improper or inefficient. The law does not make a distinction between cases cognizable by the Sandiganbayan and those cognizable by regular courts. It has been held that the clause “any illegal act or omission of any public official” is broad enough to embrace any crime committed by a public officer or employee.
The reference made by RA 6770 to cases cognizable by the Sandiganbayan, particularly in Section 15(1) giving the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan, and Section 11(4) granting the Special Prosecutor the power to conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan, should not be construed as confining the scope of the investigatory and prosecutory power of the Ombudsman to such cases.
Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan. The law defines such primary jurisdiction as authorizing the Ombudsman “to take over, at any stage, from any investigatory agency of the government, the investigation of such cases.” The grant of this authority does not necessarily imply the exclusion from its jurisdiction of cases involving public officers and employees cognizable by other courts. The exercise by the Ombudsman of his primary jurisdiction over cases cognizable by the Sandiganbayan is not incompatible with the discharge of his duty to investigate and prosecute other offenses committed by public officers and employees. Indeed, it must be stressed that the powers granted by the legislature to the Ombudsman are very broad and encompass all kinds of malfeasance, misfeasance and non-feasance committed by public officers and employees during their tenure of office.
Moreover, the jurisdiction of the Office of the Ombudsman should not be equated with the limited authority of the Special Prosecutor under Section 11 of RA 6770. The Office of the Special Prosecutor is merely a component of the Office of the Ombudsman and may only act under the supervision and control and upon authority of the Ombudsman. Its power to conduct preliminary investigation and to prosecute is limited to criminal cases within the jurisdiction of the Sandiganbayan. Certainly, the lawmakers did not intend to confine the investigatory and prosecutory power of the Ombudsman to these types of cases. The Ombudsman is mandated by law to act on all complaints against officers and employees of the government and to enforce their administrative, civil and criminal liability in every case where the evidence warrants. To carry out this duty, the law allows him to utilize the personnel of his office and/or designate any fiscal, state prosecutor or lawyer in the government service to act as special investigator or prosecutor to assist in the investigation and prosecution of certain cases. Those designated or deputized to assist him work under his supervision and control. The law likewise allows him to direct the Special prosecutor to prosecute cases outside the Sandiganbayan’s jurisdiction in accordance with Section 11(4c) of RA 6770.

SECOND DIVISION
[G.R. Nos. 145957-68. January 25, 2002]
OFFICE OF THE OMBUDSMAN, petitioner, vs. RUBEN ENOC, SUSANA B. ABAWAG, DOMINADOR D. DALA, CARLOS L. DENIA, ELVIRA I. LIM, TEODORO YOS, DIOMEDES E. MIRAFUENTES, JOSEFINA L. TUNGAL, EMMA L. BERNALES, LETICIA LAGUNSAY, and EVANGELINE GALLITO, respondents.

the Ombudsman has the constitutional power to directly remove from government service an erring public official

whether or not the disciplinary power of the Ombudsman is indeed merely recommendatory in nature, as ruled by the CA.

The answer, as laid out by recent jurisprudence, is a resounding NO. As this Court has already held in Ledesma v. CA and Estarija v. Ranada, the so-called Tapiador “doctrine,” upon which the assailed CA decisions are based, is mere obiter.
Tapiador takes note of the following Section of the Constitution:

Section 13. The Office of the Ombudsman shall have the following powers, functions, and duties:

xxx xxx xxx

(3) Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith. (Emphasis supplied)

The word “recommend” must be taken in conjunction with the phrase “and ensure compliance therewith.” In Ledesma v. CA, supra, we had this to say:

x x x [A] cursory reading of Tapiador reveals that the main point of the case was the failure of the complainant therein to present substantial evidence to prove the charges of the administrative case. The statement that made reference to the power of the Ombudsman is, at best, merely an obiter dictum and, as it is unsupported by sufficient explanation, is susceptible to varying interpretations, as what precisely is before us in this case. Hence, it cannot be cited as a doctrinal declaration of this Court nor is it safe from judicial examination. (Emphasis supplied)

In Estarija v. Ranada, we reiterated our pronouncements in Ledesma and went on to categorically state:

x x x [T]he Constitution does not restrict the powers of the Ombudsman in Section 13, Article XI of the 1987 Constitution, but allows the Legislature to enact a law that would spell out the powers of the Ombudsman. Through the enactment of Rep. Act No. 6770, specifically Section 15, par. 3, the lawmakers gave the Ombudsman such powers to sanction erring officials and employees, except members of Congress, and the Judiciary. To conclude, we hold that Sections 15, 21, 22 and 25 of Republic Act No. 6770 are constitutionally sound. The powers of the Ombudsman are not merely recommendatory. His office was given teeth to render this constitutional body not merely functional but also effective. Thus, we hold that under Republic Act No. 6770 and the 1987 Constitution, the Ombudsman has the constitutional power to directly remove from government service an erring public official other than a member of Congress and the Judiciary. (Emphasis supplied)

In G.R. Nos. 160410 and 161099, the CA affirmed the findings of facts by the Ombudsman, relying only on the Tapiador obiter to reverse and set aside the Ombudsman's actions as being beyond the ambit of his authority. There is no question, therefore, that the assailed decisions in those cases should be annulled and the Ombudsman's decisions therein reinstated.

However, G.R. No. 158672 and G.R. Nos. 160605,160627 confront us with additional issues to tackle. We shall now specifically address these cases one at a time.

Re: G.R. No. 158672 -

In CA-G.R. SP No. 70137 (Hinampas case), the CA did not solely rely on the Tapiador obiter in reversing and setting aside the OOMB's decision. In arriving at its decision, the CA reasoned that reliance in good faith on the documents submitted to respondents by the contractors, coupled with lack of undue injury to the government, cannot give rise to administrative liability. Further, the CA found that res judicata bars the OOMB from exercising its administrative disciplinary authority since the allegedly same case had already been resolved and disposed of by the DPWH.

Res judicata cannot be made to apply in CA-G.R. SP No. 70137 (Hinampas case). It is apparent from the facts on record that the Ombudsman had already acquired jurisdiction over the case when the DPWH learned of it. DPWH was only furnished a copy of the complaint filed with the OOMB when it decided to conduct its own inquiry based on the same complaint. Furthermore, the DPWH’s investigation did not qualify as a quasi-judicial proceeding wherein necessarily respondents are named, offenses are charged, and parties are heard. The DPWH proceeding was just a fact-finding investigation and the resultant finding therein cannot act as a bar to the Ombudsman's decision.

In an administrative proceeding, the quantum of proof required for a finding of guilt is only substantial evidence, meaning that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. Further, precedents teach us that the factual findings of the OOMB, when supported by substantial evidence, are conclusive, and such findings made by an administrative body which has acquired expertise are accorded not only respect but even finality.

Hence, the CA decision assailed in G.R. No. 158672 must also be reversed and set aside, and the decision of the Ombudsman finding respondents Hinampas and Cabanos guilty of grave misconduct, gross neglect of duty and conduct prejudicial to the best interest of the service, should be reinstated.

Re: G.R. Nos. 160605 and 160627 -

When there is substantial evidence in support of the Ombudsman's decision, that decision will not be overturned. However, the Danao cases present an instance where there is no substantial evidence to back up the OOMB's decision. Hence, in CA-G.R. SP No. 72790, the CA was correct in setting aside the OOMB decision in this case. As the appellate court elucidated:

But then, on the basis of the records, these PDS on which the [OOMB's] Decision dated September 19, 2000 (September 26, 2001) as well as the Order dated February 27, 2002 are based is being questioned by herein petitioner to be not the PDS that he has submitted to the Bureau of Customs and the Office of the Civil Service Commission. Hence, the entries appearing therein are doubtful.

That being the case, [the OOMB] cannot correctly make the PDS as a basis of its decision since the same is questionable there being no report yet made by the NBI as to whether the handwriting contained therein is genuine and belonging to petitioner especially in view of the report of the NBI dated May 16, 2002 regarding 2 of the 5 PDS submitted by [Rojas] to the [OOMB] to the effect that the thumbmarks appearing thereon are impressed by a different person which, in effect, support the stand of petitioner that the subject PDS herein were not submitted or filed by him with the Bureau of Customs and the Office of the CSC. In fact, the presumption of regularity in the performance of one's duty is not applicable in this case considering that being disputable it has been contradicted by the Partial Report of the NBI dated May 16, 2002. (Emphasis supplied)


OMBUDSMAN V. MONTEALTO, EN BANC, G.R. No. 160410, August 7, 2007

Wednesday, October 26, 2011

sample mcq

Gloria G. Lastimosa is First Assistant Provincial Prosecutor of Cebu. Because she and the Provincial Prosecutor refused, or at any rate failed, to file a criminal charge against a municipal mayor as ordered by the Ombudsman, an administrative complaint for grave misconduct, insubordination, gross neglect of duty and maliciously refraining from prosecuting crime was filed against her and the Provincial Prosecutor and a charge for indirect contempt was brought against them, both in the Office of the Ombudsman.
Which of the following is true? (a) the Ombudsman cannot suspend her as she is under the Secretary of Justice (b) she cannot be compelled to file a criminal case since she is convinced that there is no probable cause (c) she can be placed under preventive suspension by the Ombudsman (d) Office of the Ombudsman has no jurisdiction over the case against the mayor because the crime involved (rape) was not committed in relation to a public office. For this reason it is argued that the Office of the Ombudsman has no authority to place her and Provincial Prosecutor Kintanar under preventive suspension for refusing to follow his orders and to cite them for indirect contempt for such refusal (e) The Prosecutor can be designated or deputized to assist the Ombudsman and shall then be under his supervision and control.

Sunday, October 23, 2011

Is it legal for aliens to own lands in the Philippines?

Aliens, as a general rule, are not allowed to own real property in the Philippines. By “alien”, we don’t mean creatures from outer space, but persons who are citizens of other countries. By “general rule”, we mean that there are certain exceptions, and two of such exceptions are discussed below.
The prohibition on foreigners owning Philippine lands is embodied in no less than the Philippine Constitution. This, in fact, is one of the usual reason cited by those who want to revise or amend the Constitution. The Constitution provides:
“Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain.” (Article XII, Section 7)
It’s clear from this provision that private land may be transferred only to persons or entitles who/which has the capacity “to acquire or hold lands of the public domain.” Those who are qualified to acquire or hold lands of the public domain are as follows:
1. Filipino citizens.
2. Corporations at least 60% of the capital of which is owned by Filipinos.
In other words, the Constitution explicitly prohibits non-Filipinos from acquiring or holding title to private lands. Among the exceptions are as follows: (1) transfer to an alien by way of legal succession; or (2) if the acquisition was made by a former natural-born citizen. The 1987 Constitution provides that:
“Notwithstanding the provisions of Section 7 of this Article, a natural-born citizen of the Philippines who has lost his Philippine citizenship may be a transferee of private lands, subject to limitations provided by law.” (Art. XII, Sec. 8)
The Supreme Court reiterated this general rule in a recent case (Borromeo vs. Descallar, G.R. No. 159310, 24 February 2009). The Court also reiterated the consistent ruling that if land is invalidly transferred to an alien who subsequently becomes a Filipino citizen or transfers it to a Filipino, the flaw in the original transaction is considered cured and the title of the transferee is rendered valid.
There are other exceptions to the prohibition on aliens owning real property in the Philippines, like full ownership by foreigners of condominium units, but this shall be the subject of future discussions.

ELECTION LAW PROBLEMS AND ANSWERS

1. Petitioner Luis Malaluan and private respondent Joseph Evangelista were both mayoralty candidates in the Municipality of Kidapawan, North Cotabato, in the Synchronized National and Local Elections held on May 11, 1992. Private respondent Joseph Evangelista was proclaimed by the Municipal Board of Canvassers as the duly elected Mayor for having garnered 10,498 votes as against petitioner’s 9,792 votes. Evangelista was, thus, said to have a winning margin of 706 votes. But, on May 22, 1992, petitioner filed an election protest with the Regional Trial Court contesting 64 out of the total 181 precincts of the said municipality. The trial court declared petitioner as the duly elected municipal mayor of Kidapawan, North Cotabato with a plurality of 154 votes. Acting without precedent, the court found private respondent liable not only for Malaluan’s protest expenses but also for moral and exemplary damages and attorney’s fees. The Omnibus Election Code provides that “actual or compensatory damages may be granted in all election contests or in quo warranto proceedings in accordance with law.” COMELEC Rules of Procedure provide that “in all election contests the Court may adjudicate damages and attorney’s fees as it may deem just and as established by the evidence if the aggrieved party has included such claims in his pleadings.”
QUESTION: Is the award for damages proper? Explain your answer.

ANSWER:No. To recapitulate, Section 259 of the Omnibus Election Code only provides for the granting in election cases of actual and compensatory damages in accordance with law. The victorious party in an election case cannot be indemnified for expenses which he has incurred in an electoral contest in the absence of a wrongful act or omission or breach of obligation clearly attributable to the losing party. Evidently, if any damage had been suffered by private respondent due to the execution ofjudgment pending appeal, that damage may be said to be equivalent to damnum absque injuria, which is, damage without injury, or damage or injury inflicted without injustice, or loss or damage without violation of a legal right, or a wrong done to a man for which the law provides no remedy.(LUIS MALALUAN, petitioner, vs. COMMISSION ON ELECTIONS and JOSEPH EVANGELISTA, respondents. [G.R. No. 120193. March 6, 1996])

2. Petitioner was proclaimed Mayor of Gloria, Oriental Mindoro during the May 8, 1995 elections.In the same elections, private respondent was proclaimed Vice-Mayor of the same municipality.On May 19, 1995, petitioner’s rival candidate, the late Nicolas M. Jamilla, filed an election protest before the Regional Trial Court of Pinamalayan, Oriental Mindoro.During the pendency of said contest, Jamilla died. Four days after such death or on December 19, 1995, the trial court dismissed the election protest ruling as it did that “[a]s this case is personal, the death of the protestant extinguishes the case itself. The issue or issues brought out in this protest have become moot and academic.”QUESTION: (A) Is said contest a personal action extinguished upon the death of the real party in interest? (B) If not, what is the mandatory period within which to effectuate the substitution of parties?
ANSWER: (A)NOT PROPER. JIMMY S. DE CASTRO, petitioner, vs. THE COMMISSION ON ELECTIONS and AMANDO A. MEDRANO, respondents. [G.R. No. 125249. February 7, 1997] An election contest, after all, involves not merely conflicting private aspirations but is imbued with paramount public interests. As we have held in the case of Vda. de De Mesa v. Mencias:
“x x x. It is axiomatic that an election contest, involving as it does not only the adjudication and settlement of the private interests of the rival candidates but also the paramount need of dispelling once and for all the uncertainty that beclouds the real choice of the electorate with respect to who shall discharge the prerogatives of the offices within their gift, is a proceeding imbued with public interest which raises it onto a plane over and above ordinary civil actions. For this reason, broad perspectives of public policy impose upon courts the imperative duty to ascertain by all means within their command who is the real candidate elected in as expeditious a manner as possible, without being fettered by technicalities and procedural barriers to the end that the will of the people may not be frustrated (Ibasco vs. Ilao, et al., G.R. L-17512, December 29, 1960; Reforma vs. De Luna, G.R. L-13242, July 31, 1958). So inextricably intertwined are the interests of the contestants and those of the public that there can be no gainsaying the logic of the proposition that even the voluntary cessation in office of the protestee not only does not ipso facto divest him of the character of an adversary in the contest inasmuch as he retains a party interest to keep his political opponent out of the office and maintain therein his successor, but also does not in any manner impair or detract from the jurisdiction of the court to pursue the proceeding to its final conclusion (De Los Angeles vs. Rodriguez, 46 Phil. 595, 597; Salcedo vs. Hernandez, 62 Phil. 584, 587; Galves vs. Maramba, G.R. L-13206).(B) WITHIN 30 DAYS.” To finally dispose of this case, we rule that the filing by private respondent of his Omnibus Petition/Motion on January 15, 1996, well within a period of thirty days from December 19, 1995 when Jamilla’s counsel informed the trial court of Jamilla’s death, was in compliance with Section 17, Rule 3 of the Revised Rules of Court. Since the Rules of Court, though not generally applicable to election cases, may however be applied by analogy or in a suppletory character, private respondent was correct to rely thereon.”


3. Luisa Cargada ran for president and lost in favor of Jose Decanto. She filed an election protest and while the revision of the ballots was still pending, she ran for a senatorial position in the coming elections. She won and was proclaimed as a senator. President Jose Decanto then filed a motion to dismiss the election protest on the ground that it has become moot and academic. QUESTION: Is his contention correct? Will the election protest be dismissed? ON what grounds?

ANSWER: On the technical ground of abandonment, the election protest must be dismissed. In assuming the office of Senator then, the Protestant has effectively abandoned or withdrawn this protest, or at the very least, in the language of Moraleja, abandoned her “determination to protect and pursue the public interest involved in the matter of who is the real choice of the electorate.” Such abandonment or withdrawal operates to render moot the instant protest. Moreover, the dismissal of this protest would serve public interest as it would dissipate the aura of uncertainty as to the results of the 1992 presidential election, thereby enhancing the all-to crucial political stability of the nation during this period of national recovery. It must also be stressed that under the Rules of the Presidential Electoral Tribunal, an election protest may be summarily dismissed, regardless of the public policy and public interest implications thereof, on the following grounds: (1) The petition is insufficient in form and substance; (2) The petition is filed beyond the periods provided in Rules 14 and 15 hereof; (3) The filing fee is not paid within the periods provided for in these Rules; (4) The cash deposit, or the first P 100,000.00 thereof, is not paid within 10 days after the filing of the protest; and (5) The petition or copies thereof and the annexes thereto filed with the Tribunal are not clearly legible. Other grounds for a motion to dismiss, e.g., those provided in the Rules of Court which apply in a suppletory character, may likewise be pleaded as affirmative defenses in the answer. After which, the Tribunal may, in its discretion, hold a preliminary hearing on such grounds. In sum, if an election be dismissed on technical grounds, then it must be, for a decidedly stronger reason, if it has become moot due to its abandonment by the Protestant. MIRIAM DEFENSOR-SANTIAGO, protestant, vs. FIDEL VALDEZ RAMOS, protestee. [P.E.T. Case No. 001. February 13, 1996]

4. . For a natural born Filipino, who reacquired his Philippine citizenship under RA 9225, in order for him to run for public office, what requirements must be complied by him?

ANSWER:For a natural born Filipino, who reacquired or retained his Philippine citizenship under Republic Act No. 9225, to run for public office, he must: (1) meet the qualifications for holding such public office as required by the Constitution and existing laws; and (2) make a personal and sworn renunciation of any and all foreign citizenships before any public officer authorized to administer an oath. (Japson v. COMELEC G.R. No. 180088, Jan 19, 2009)

5. In Papandayan, Jr. v. Commission on Elections, the Supreme Court provided a summation of the different principles and concepts in jurisprudence relating to the residency qualification for elective local officials. State these principles.

ANSWER: In Papandayan, Jr. v. Commission on Elections, the Court provided a summation of the different principles and concepts in jurisprudence relating to the residency qualification for elective local officials. Pertinent portions of the ratio in Papandayan are reproduced below:

Our decisions have applied certain tests and concepts in resolving the issue of whether or not a candidate has complied with the residency requirement for elective positions. The principle of animus revertendi has been used to determine whether a candidate has an “intention to return” to the place where he seeks to be elected. Corollary to this is a determination whether there has been an “abandonment” of his former residence which signifies an intention to depart therefrom. In Caasi v. Court of Appeals, this Court set aside the appealed orders of the COMELEC and the Court of Appeals and annulled the election of the respondent as Municipal Mayor of Bolinao, Pangasinan on the ground that respondent’s immigration to the United States in 1984 constituted an abandonment of his domicile and residence in the Philippines. Being a green card holder, which was proof that he was a permanent resident or immigrant of the United States, and in the absence of any waiver of his status as such before he ran for election on January 18, 1988, respondent was held to be disqualified under §68 of the Omnibus Election Code of the Philippines (Batas Pambansa Blg. 881).

In Co v. Electoral Tribunal of the House of Representatives, respondent Jose Ong, Jr. was proclaimed the duly elected representative of the 2nd District of Northern Samar. The House of Representatives Electoral Tribunal (HRET) upheld his election against claims that he was not a natural born Filipino citizen and a resident of Laoang, Northern Samar. In sustaining the ruling of the HRET, this Court, citing Faypon v. Quirino, applied the concept of animus revertendi or “intent to return,” stating that his absence from his residence in order to pursue studies or practice his profession as a certified public accountant in Manila or his registration as a voter other than in the place where he was elected did not constitute loss of residence. The fact that respondent made periodical journeys to his home province in Laoag revealed that he always had animus revertendi.

In Abella v. Commission on Elections and Larrazabal v. Commission on Elections, it was explained that the determination of a person’s legal residence or domicile largely depends upon the intention that may be inferred from his acts, activities, and utterances. In that case, petitioner Adelina Larrazabal, who had obtained the highest number of votes in the local elections of February 1, 1988 and who had thus been proclaimed as the duly elected governor, was disqualified by the COMELEC for lack of residence and registration qualifications, not being a resident nor a registered voter of Kananga, Leyte. The COMELEC ruled that the attempt of petitioner Larrazabal to change her residence one year before the election by registering at Kananga, Leyte to qualify her to run for the position of governor of the province of Leyte was proof that she considered herself a resident of Ormoc City. This Court affirmed the ruling of the COMELEC and held that petitioner Larrazabal had established her residence in Ormoc City, not in Kananga, Leyte, from 1975 up to the time that she ran for the position of Provincial Governor of Leyte on February 1, 1988. There was no evidence to show that she and her husband maintained separate residences, i.e., she at Kananga, Leyte and her husband at Ormoc City. The fact that she occasionally visited Kananga, Leyte through the years did not signify an intention to continue her residence after leaving that place.

In Romualdez v. RTC, Br. 7, Tacloban City, the Court held that “domicile” and “residence” are synonymous. The term “residence,” as used in the election law, imports not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention. “Domicile” denotes a fixed permanent residence to which when absent for business or pleasure, or for like reasons, one intends to return. In that case, petitioner Philip G. Romualdez established his residence during the early 1980’s in Barangay Malbog, Tolosa, Leyte. It was held that the sudden departure from the country of petitioner, because of the EDSA People’s Power Revolution of 1986, to go into self-exile in the United States until favorable conditions had been established, was not voluntary so as to constitute an abandonment of residence. The Court explained that in order to acquire a new domicile by choice, there must concur (1) residence or bodily presence in the new locality, (2) an intention to remain there, and (3) an intention to abandon the old domicile. There must be animus manendi coupled with animus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of residence must be voluntary; and the residence at the place chosen for the new domicile must be actual.


6. Facts: Ciceron P. Altarejos was a candidate for mayor in the Municipality of San Jacinto, Masbate in the 10 May 2004 national and local elections. On 15 January 2004, Jose Almiñe Altiche and Vernon Versoza, registered voters of San Jacinto, Masbate, filed with the COMELEC, a petition to disqualify and to deny due course or cancel the certificate of candidacy of Altajeros on the ground that he is not a Filipino citizen and that he made a false representation in his certificate of candidacy that “[he] was not a permanent resident of or immigrant to a foreign country.” Almiñe, et. al. alleged that based on a letter from the Bureau of Immigration dated 25 June 2001, Altajeros was a holder of a permanent U.S. resident visa, an Alien Certificate of Registration E139507 issued on 3 November 1997, and an Immigration Certificate of Residence 320846 issued on 3 November 1997 by the Bureau of Immigration. On 26 January 2004, Altajeros filed an Answer stating, among others, that he did not commit false representation in his application for candidacy as mayor because as early as 17 December 1997, he was already issued a Certificate of Repatriation by the Special Committee on Naturalization, after he filed a petition for repatriation pursuant to Republic Act 8171. Thus, Altajeros claimed that his Filipino citizenship was already restored, and he was qualified to run as mayor in the 10 May 2004 elections. Altajeros sought the dismissal of the petition. Atty. Zacarias C. Zaragoza, Jr., regional election director for Region V and hearing officer of the case, recommended that Altarejos be disqualified from being a candidate for the position of mayor of San Jacinto, Masbate in the 10 May 2004 national and local elections; on the ground that Altajeros failed to prove that he has fully complied with requirements of Section 2 of Republic Act 8171 to perfect his repatriation and reacquire his Filipino citizenship inasmuch as he has not submitted any document to prove that he has taken his oath of allegiance to the Republic of the Philippines and that he has registered his fact of repatriation in the proper civil registry and in the Bureau of Immigration. In its Resolution promulgated on 22 March 2004, the COMELEC, First Division, adopted the findings and recommendation of Director Zaragoza. On 25 March 2004, Altajeros filed a motion for reconsideration. On 7 May 2004, the COMELEC en banc promulgated a resolution denying the motion for reconsideration for utter lack of merit. On 10 May 2004, the election day itself, Altajeros filed the petition for certiorari with the Supreme Court.
Issue: Whether Altajeros is eligible to run as mayor of San Jacinto, Masbate, in light of his repatriation under RA 8171.

Held: Section 2 of Republic Act 8171 provides that "Repatriation shall be effected by taking the necessary oath of allegiance to the Republic of the Philippines and registration in the proper civil registry and in the Bureau of Immigration. The Bureau of Immigration shall thereupon cancel the pertinent alien certificate of registration and issue the certificate of identification as Filipino citizen to the repatriated citizen." The law is clear that repatriation is effected “by taking the oath of allegiance to the Republic of the Philippines and registration in the proper civil registry and in the Bureau of Immigration.” Hence, in addition to taking the Oath of Allegiance to the Republic of the Philippines, the registration of the Certificate of Repatriation in the proper civil registry and the Bureau of Immigration is a prerequisite in effecting the repatriation of a citizen. Herein, Altajeros took his Oath of Allegiance on 17 December 1997, but his Certificate of Repatriation was registered with the Civil Registry of Makati City only after 6 years or on 18 February 2004, and with the Bureau of Immigration on 1 March 2004. Altajeros, therefore, completed all the requirements of repatriation only after he filed his certificate of candidacy for a mayoralty position, but before the elections. Republic Act 8171 has impliedly repealed Presidential Decree 725. They cover the same subject matter: Providing for the repatriation of Filipino women who have lost their Philippine citizenship by marriage to aliens and of natural-born Filipinos. The Court’s ruling in Frivaldo v. Commission on Elections that repatriation retroacts to the date of filing of one’s application for repatriation subsists. Accordingly, Altajeros’s repatriation retroacted to the date he filed his application in 1997. He was, therefore, qualified to run for a mayoralty position in the government in the 10 May 2004 elections. Apparently, the COMELEC was cognizant of this fact since it did not implement the assailed Resolutions disqualifying Altajeros to run as mayor of San Jacinto, Masbate. However, considering that Altajeros failed to prove before the COMELEC that he had complied with the requirements of repatriation,as he submitted the necessary documents proving compliance with the requirements of repatriation only during his motion for reconsideration, when the COMELEC en banc could no longer consider said evidence. It is, therefore, incumbent upon candidates for an elective office, who are repatriated citizens, to be ready with sufficient evidence of their repatriation in case their Filipino citizenship is questioned to prevent a repetition of the present case. (Altajeros vs. Commission on Elections[GR 163256, 10 November 2004]En Banc, Azcuna (J))

7. Facts: On 31 December 2003, Ronald Allan Kelly Poe, also known as Fernando Poe, Jr. (FPJ), filed his certificate of candidacy for the position of President of the Republic of the Philippines under the Koalisyon ng Nagkakaisang Pilipino (KNP) Party, in the 2004 national elections. In his certificate of candidacy, FPJ, representing himself to be a natural-born citizen of the Philippines, stated his name to be "Fernando Jr.," or "Ronald Allan" Poe, his date of birth to be 20 August 1939 and his place of birth to be Manila. Victorino X. Fornier, (GR 161824) initiated, on 9 January 2004, a petition (SPA 04-003) before the Commission on Elections (COMELEC) to disqualify FPJ and to deny due course or to cancel his certificate of candidacy upon the thesis that FPJ made a material misrepresentation in his certificate of candidacy by claiming to be a natural-born Filipino citizen when in truth, according to Fornier, his parents were foreigners; his mother, Bessie Kelley Poe, was an American, and his father, Allan Poe, was a Spanish national, being the son of Lorenzo Pou, a Spanish subject. Granting, Fornier asseverated, that Allan F. Poe was a Filipino citizen, he could not have transmitted his Filipino citizenship to FPJ, the latter being an illegitimate child of an alien mother. Fornier based the allegation of the illegitimate birth of FPJ on two assertions: (1) Allan F. Poe contracted a prior marriage to a certain Paulita Gomez before his marriage to Bessie Kelley and, (2) even if no such prior marriage had existed, Allan F. Poe, married Bessie Kelly only a year after the birth of FPJ. On 23 January 2004, the COMELEC dismissed SPA 04-003 for lack of merit. 3 days later, or on 26 January 2004, Fornier filed his motion for reconsideration. The motion was denied on 6 February 2004 by the COMELEC en banc. On 10 February 2004, Fornier assailed the decision of the COMELEC before the Supreme Court conformably with Rule 64, in relation to Rule 65, of the Revised Rules of Civil Procedure. The petition likewise prayed for a temporary restraining order, a writ of preliminary injunction or any other resolution that would stay the finality and/or execution of the COMELEC resolutions. The other petitions, later consolidated with GR 161824, would include GR 161434 and GR 161634, both challenging the jurisdiction of the COMELEC and asserting that, under Article VII, Section 4, paragraph 7, of the 1987 Constitution, only the Supreme Court had original and exclusive jurisdiction to resolve the basic issue on the case.
Issue: Whether FPJ was a natural born citizen, so as to be allowed to run for the office of the President of the Philippines.
Held: Section 2, Article VII, of the 1987 Constitution expresses that "No person may be elected President unless he is a natural-born citizen of the Philippines, a registered voter, able to read and write, at least forty years of age on the day of the election, and a resident of the Philippines for at least ten years immediately preceding such election." The term "natural-born citizens," is defined to include "those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship." Herein, the date, month and year of birth of FPJ appeared to be 20 August 1939 during the regime of the 1935 Constitution. Through its history, four modes of acquiring citizenship - naturalization, jus soli, res judicata and jus sanguinis – had been in vogue. Only two, i.e., jus soli and jus sanguinis, could qualify a person to being a “natural-born” citizen of the Philippines. Jus soli, per Roa vs. Collector of Customs (1912), did not last long. With the adoption of the 1935 Constitution and the reversal of Roa in Tan Chong vs. Secretary of Labor (1947), jus sanguinis or blood relationship would now become the primary basis of citizenship by birth. Considering the reservations made by the parties on the veracity of some of the entries on the birth certificate of FPJ and the marriage certificate of his parents, the only conclusions that could be drawn with some degree of certainty from the documents would be that (1) The parents of FPJ were Allan F. Poe and Bessie Kelley; (2) FPJ was born to them on 20 August 1939; (3) Allan F. Poe and Bessie Kelley were married to each other on 16 September, 1940; (4) The father of Allan F. Poe was Lorenzo Poe; and (5) At the time of his death on 11 September 1954, Lorenzo Poe was 84 years old. The marriage certificate of Allan F. Poe and Bessie Kelley, the birth certificate of FPJ, and the death certificate of Lorenzo Pou are documents of public record in the custody of a public officer. The documents have been submitted in evidence by both contending parties during the proceedings before the COMELEC. But while the totality of the evidence may not establish conclusively that FPJ is a natural-born citizen of the Philippines, the evidence on hand still would preponderate in his favor enough to hold that he cannot be held guilty of having made a material misrepresentation in his certificate of candidacy in violation of Section 78, in relation to Section 74, of the Omnibus Election Code. Fornier has utterly failed to substantiate his case before the Court, notwithstanding the ample opportunity given to the parties to present their position and evidence, and to prove whether or not there has been material misrepresentation, which, as so ruled in Romualdez-Marcos vs. COMELEC, must not only be material, but also deliberate and willful. The petitions were dismissed.( Tecson vs. Commission onElections[GR 151434, 3 March 2004]; also Velez vs. Poe [GR 161823] and Fornier vs.Commission on Elections [GR 151824]En Banc

8.The Board of Canvasser by reason of their negligence proclaimed the wrong candidate despite the oral protest made during the proclamation. They were charged for an election offense and after trial on the merits, the trial court rendered a decision, the dispositive portion of which reads:
"WHEREFORE, in view of all the foregoing considerations:In Criminal Case No. 1886, the Court finds the accused Florezil Agujetas, Salvador Bijis and Benjamin Miano GUILTY beyond reasonable doubt as principals for violation of Section 231, second paragraph, of Batas Pambansa Blg. 881, as amended, otherwise known as the "Omnibus Election Code of the Philippines", and hereby sentences each of them to ONE (1) YEAR IMPRISONMENT which shall not be subject to probation. In addition, they are sentenced to suffer disqualification to hold public office and deprivation of the right of suffrage. Said accused are ordered to pay, jointly and severally, Erlinda Irigo the amounts of P50,000.00 as actual damages, P15,000.00 as and for attorney's fees, and P100,000.00 as moral damages, plus the costs of the proceedings.
"Let copies hereof be furnished the Honorable Chairman, Commission on Elections, and the Honorable Secretaries of Justice and Education, Culture and Sports.
QUESTION: Is the judgment correct with respect to the criminal and civil liability of the Board of Canvassers? Explain your answer and if possible cite a case to support your answer.

ANSWER: PROPER. "Sec. 231. - Canvass by the board. - The board of canvassers shall meet not later than six o'clock in the afternoon of election day at the place designated by the Commission to receive the election returns and to immediately canvass those that may have already been received. It shall meet continuously from day to day until the canvass is completed, and may adjourn but only for the purpose of awaiting the other election returns from other polling places within its jurisdiction. Each time the board adjourns, it shall make a total of all the votes canvassed so far for each candidate for each office, furnishing the Commission in Manila by the fastest means of communication a certified copy thereof, and making available the data contained therein to the mass media and other interested parties. As soon as the other election returns are delivered, the board shall immediately resume canvassing until all the returns have been canvassed.
"The respective board of canvassers shall prepare a certificate of canvass duly signed and affixed with the imprint of the thumb of the right hand of each member, supported by a statement of the votes and received by each candidate in each polling place and, on the basis thereof, shall proclaim as elected the candidates who obtained the highest number of votes cast in the province, city municipality or barangay. Failure to comply with this requirement shall constitute an election offense. FLOREZIL AGUJETAS and SALVADOR BIJIS, petitioners, vs. COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents. [G.R. No. 106560. August 23, 1996]

9. RICARDO "BOY" CANICOSA and SEVERINO LAJARA were candidates for mayor in Calamba, Laguna, during the 8 May 1995 elections. After obtaining a majority of some 24,000 votes 1 Lajara was proclaimed winner by the Municipal Board of Canvassers. On 15 May 1995 Canicosa filed with the Commission on Elections (COMELEC) a Petition to Declare Failure of Election and to Declare Null and Void the Canvass and Proclamation because of alleged widespread frauds and anomalies in casting and counting of votes, preparation of election returns, violence, threats, intimidation, vote buying, unregistered voters voting, and delay in the delivery of election documents and paraphernalia from the precincts to the Office of the Municipal Treasurer. Canicosa particularly averred that: (a) the names of the registered voters did not appear in the list of voters in their precincts; (b) more than one-half of the legitimate registered voters were not able to vote with strangers voting in their stead; (c) he was credited with less votes than he actually received; (d) control data of the election returns was not filed up in some precincts; (e) ballot boxes brought to the Office of the Municipal Treasurer were unsecured, i.e., without padlocks nor self-locking metal seals; and, (f) there was delay in the delivery of election returns
QUESTION: 1.Based on said grounds, will there be a “failure of election”? How will you resolve the issues from (a) to (e)?
ANSWER: There is no failure of election. Clearly, there are only three (3) instances where a failure of election may be declared, namely: (a) the election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud, or other analogous causes; (b) the election in any polling place had been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud, or other analogous causes; or (c) after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect on account of force majeure. violence, terrorism, fraud, or other analogous causes.
None of the grounds invoked by Canicosa falls under any of those enumerated. Canicosa bewails that the names of the registered voters in the various precincts did not appear in their respective lists of voters. But this is not a ground to declare a failure of election. The filing of a petition for declaration of failure of election therefore is not the proper remedy. The day following the last day for registration of voters, the poll clerk delivers a certified list of voters to the election registrar, election supervisor and the COMELEC, copies of which are open to public inspection. On the same day, the poll clerk ports a copy of the list of registered voters in each polling place. Each member of the board of election inspectors retains a copy of the list which may be inspected by the public in their residence or in their office during office hours. 2
Fifteen (15) days before the regular elections on 8 May 1995 the final list of voters was posted in each precinct pursuant to Sec. 148 of R.A. No. 7166. Based on the lists thus posted Canicosa could have filed a petition for inclusion of registered voters with the regular courts. The question of inclusion or exclusion from the list of voters involves the right to vote 3 which is not within the power and authority of COMELEC to rule upon. The determination of whether one has the right to vote is a justiciable issue properly cognizable by our regular courts. Section 138, Art. XII, of the Omnibus Election Code states;
Sec. 138. Jurisdiction in inclusion and exclusion cases. � The municipal and metropolitan trial courts shall have original and exclusive jurisdiction over all matters of inclusion and exclusion of voters from the list in their respective municipalities or cities. Decisions of the municipal or metropolitan trial courts may be appealed directly by the aggrieved party to the proper regional trial court within five days from receipts of notice thereof, otherwise said decision of the municipal or metropolitan trial court shall decide the appeal within ten days from the time the appeal was received and its decision shall be immediately final and executory. No motion for reconsideration shall be entertained by the courts (Sec. 37, PD 1896, as amended).
On the other hand, Canicosa could have also filed with the COMELEC a verified complaint seeking the annulment of the book of voters pursuant to Sec. 10, of R.A. No. 7166:
Sec. 10. Annulment of the List of Voters. � Any book of voters the preparation of which has been affected with fraud, bribery, forgery, impersonation, intimidation, force or any other similar irregularity or which is statistically improbable may be annulled after due notice and hearing by the Commission motu propio or after the filing of a verified complaint: Provided, that no order, ruling or decision annulling a book of voters shall be executed within sixty (60) days before an election.
If indeed the situation herein described was common in almost all of the 557 precincts as alleged by Canicosa, 4 then it was more expedient on his part to avail of the remedies provided by law in order to maintain the integrity of the election. Since Canicosa failed to resort to any of the above options, the permanent list of voters as finally corrected before the election remains conclusive on the question as to who had the right to vote in that election, although not in subsequent elections. 5
Canicosa also avers that more than one-half (1/2) of the legitimate registered voters were not able to vote, instead, strangers voted in their behalf. Again, this is not a ground which warrants a declaration of failure of election. Canicosa was allowed to appoint a watcher in every precinct. The watcher is empowered by law to challenge any illegal voter. Thus, Secs. 199 and 202, Art. XVII, of the Omnibus Election Code, provide:
Sec. 199. Challenges 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 identity of the voter . . .
Sec. 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 claim of Canicosa that he was credited with less votes than he actually received and that the control date of the election returns was not filled up should have been raised in the first instance before the board of election inspectors or board of canvassers. Section 179, Art. XV, of the Omnibus Election Code clearly provides for the rights and duties of watchers �
Sec. 179. Rights and duties of watchers. � . . . The watchers . . . shall have the right to witness and inform themselves of the proceedings of the board of election inspectors . . . 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 certificates as to the filing of such protest and/or of the resolution thereon . . . 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 . . .
To safeguard and maintain the sanctity of election returns, Sec. 212, Art. XVIII, of the Omnibus Election Code states �
Sec. 212. Election returns. � . . . 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.
Furthermore, it is provided in Sec. 215 of the Omnibus Election Code
that �
Sec. 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 votes received by a candidate upon request of the watchers. All members of the board of election inspectors shall sign the certificate.
Supplementing the preceding provisions, Secs. 16 and 17 of RA No. 6646 also require �
Sec. 16. Certificate of votes. � After the counting of the votes cast in the precinct and announcement of the results of the election, and before leaving the polling place, the board of election inspectors shall issue a certificate of votes upon request of the duly accredited watchers . . .
Sec. 17. Certificate of Votes as Evidence. � The provisions of Secs. 235 and 236 of Batas Pambansa Blg. 881 notwithstanding, the certificate of votes shall be admissible in evidence to prove tampering, alteration, falsification or anomaly committed in the election returns concerned . . .
From the foregoing provisions, it is clear that in case of inconsistency as to the number of votes written in the election returns and the certificate of votes, a petition for correction of election returns must immediately be filed with COMELEC by all or a majority of the members of the board of election inspectors or any candidate affected by the error or mistake. In order to make out a case for correction of election returns, there must be an error and at least a majority of the members of the board of election inspectors agrees that such error existed. Canicosa never mentioned that he petitioned for the correction of the election returns before the COMELEC.
Canicosa complains that the election returns were delivered late and the ballot boxes brought to the Office of the Municipal Treasurer unsecured, i.e., without padlocks nor self-locking metal seals. These bare allegations cannot impel us to declare failure of election. Assuming that the election returns were delivered late, we still cannot see why we should declare a failure to elect. The late deliveries did not convert the election held in Calamba into a mockery or farce to make us conclude that there was indeed a failure of election.
In fine, the grounds cited by Canicosa in his petition do not fall under any of the instances enumerated in Sec. 6 of the Omnibus Election Code. In Mitmug v. Commission on Elections 6 we ruled that before COMELEC can act on a verified petition seeking to declare a failure of election, at least two (2) conditions must concur: (a) no voting has taken place in the precincts on the date fixed by law, or even if there was voting, the election nevertheless resulted in failure to elect; and, (b) the votes that were not cast would affect the result of the election. From the face of the instant petition, it is readily apparent than an election took place and that it did not result in a failure to elect. 7
Canicosa finally insists that it was error on the part of COMELEC sitting en banc to rule on his petition. He maintains that his petition should have first been heard by a division of COMELEC and later by the COMELEC en banc upon motion for reconsideration, pursuant to Sec. 3, Art. IX-C, of the Constitution. 8
But this provision applies only when the COMELEC acts in the exercise of its adjudicatory or quasi-judicial functions and not when it merely exercises purely administrative functions. To reiterate, the grounds cited by Canicosa in his petition are that: (a) the names of the registered voters did not appear in the list of voters in their respective precincts; (b) more than one-half of the legitimate registered voters were not able to vote with strangers voting in their stead; (c) he was credited with less votes than he actually received; (d) the control data of the election returns was not filled up in some precincts; (e) ballot boxes brought to the Office of the Municipal Treasurer were unsecured, i.e., without padlocks nor self-locking metal seals; and, (f) there was delay in the delivery of election returns.
Clearly, all these matters require the exercise by the COMELEC of its administrative functions. Section 2, Art. IX-C, of the 1987 Constitution grants extensive administrative powers to the COMELEC with regard to the enforcement and administration of all laws and regulations relative to the conduct of elections. Likewise, Sec. 52 of BP Blg. 881, otherwise known as the Omnibus Election Code, states:
Sec. 52. Powers and functions of the Commission on Elections. � In addition to the powers and functions conferred upon it by the Constitution, the Commission shall have exclusive charge of the enforcement and administrative of all laws relative to the conduct of elections of the purposes of ensuring free, orderly and honest elections . . .
Quite obviously, it is only in the exercise of its adjudicatory or quasi-judicial powers that the COMELEC is mandated to hear and decide cases first by Division and then, upon motion for reconsideration, by the COMELEC en banc. This is when it is jurisdictional. In the instant case, as aforestated, the issues presented demand only the exercise by the COMELEC of its administrative functions.
The COMELEC exercises direct and immediate supervision and control over national and local officials or employees, including members of any national or local law enforcement agency and instrumentality of the government required by law to perform duties relative to the conduct of elections. Its power of direct supervision and control includes the power to review, modify or set aside any act of such national and local officials. 9 It exercises immediate supervision and control over the members of the boards of election inspectors and canvassers. Its statutory power of supervision and control includes the power to revise, reverse or set aside the action of the boards, as well as to do what the boards should have done, even if questions relative thereto have not been elevated to it by an aggrieved party, for such power includes the authority to initiate motu proprio or by itself such steps or actions as may be required pursuant to law. 10
Specifically, Canicosa alleged that he was credited with less votes than the actually received. But he did not raise any objection before the Municipal Board of Canvassers; instead, he went directly to the COMELEC. He now claims, after the COMELEC en banc dismissed his petition, that it was error on the part of COMELEC to rule on his petition while sitting en banc.
We have already disposed of this issue in Castromayor v. Commission on Elections 11 thus �
It should be pinpointed out, in this connection, that what is involved here is a simple problem of arithmetic. The Statement of Votes is merely a tabulation per precinct of the votes obtained by the candidates as reflected in the election returns. In making the correction in computation, the MBC will be acting in an administrative capacity, under the control and supervision of the COMELEC. Hence, any question pertaining to the proceedings of the MBC may be raised directly to the COMELEC en banc in the exercise of its constitutional function to decide questions affecting elections.
Moreover, it is expressly provided in Rule 27, Sec. 7, of the Comelec Rules of Procedure that any party dissatisfied with the ruling of the board of canvassers shall have a right to appeal to the COMELEC en banc:
Sec. 7. Correction of Errors in Tabulation or Tallying of Results by the Board of Canvassers. � (a) Where it is clearly shown before proclamation that manifest errors were committed in the tabulation or tallying or election returns, or certificates of canvass, during the canvassing as where (1) a copy of the election returns of one precinct or two or more copies of a certificate of canvass were tabulated more than once, (2) two copies of the election returns or certificate of canvass were tabulated separately, (3) there was a mistake in the adding or copying of the figures into the certificate of canvass or into the statement of votes by precinct, or (4) so-called election returns from non-existent precincts were included in the canvass, the board may motu proprio, or upon verified petition by any candidate, political party, organization or coalition of political parties, after due notice and hearing, correct the errors committed . . . (h) The appeal shall be heard and decided by the Commission en banc.
The Tatlonghari v. Commission on Elections 12 it was made to appear in the Certificate of Canvass of Votes and Proclamation of the Winning Candidates that respondent therein received 4,951 votes or more than what he actually obtained. In resolving the case we ruled that the correction of the manifest mistake in mathematical addition calls for a mere clerical task of the board of canvassers. The remedy invoked was purely administrative. In Feliciano vs. Lugay 13 we categorized the issue concerning registration of voters, which Canicosa cited as a ground in his petition for declaration of failure of election, as an administrative question. Likewise, questions as to whether elections have been held or whether certain returns were falsified or manufactured and therefore should be excluded from the canvass do not involve the right to vote. Such questions are properly within the administrative jurisdiction of COMELEC, 14 hence, may be acted upon directly by the COMELEC en banc without having to pass through any of its divisions.( G.R. No. 120318 December 5, 1997RICARDO "BOY" CANICOSA, petitioner, vs.COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF CALAMBA, LAGUNA and SEVERINO LAJARA, respondents.

10. Petitioner and private respondent were the candidates for vice-mayor of the City of Parañaque in the May 11, 1998 election. On May 19, 1998, the city board of canvassers proclaimed private respondent, Florencio M. Bernabe, Jr., the winner for having garnered a total of Seventy One Thousand Nine Hundred Seventy Seven (71,977) votes of the total votes cast for the vice-mayoralty position. On the other hand, petitioner, Tomas T. Banaga, Jr., received the second highest number of votes for the said position, with Sixty Eight Thousand Nine Hundred Seventy (68,970) of the total votes cast. Thus, the difference between the votes received by the private respondent and the petitioner is three thousand seven (3,007) votes.
Dissatisfied, petitioner filed with the COMELEC on May 29, 1998, an action denominated as “Petition to Declare Failure of Elections and/or For Annulment of Elections”, alleging that:
“3. xxx the local elections for the office of Vice-Mayor in the City of Parañaque, Metro Manila, held on 11 May 1998, amounts to a denigration of the expression of the true will of the people, as it was tainted with widespread election anomalies which constitutes election fraud. The local elections for the position of Vice-Mayor in the City of Parañaque, Metro Manila, was replete with election offenses, specifically vote buying and flying voters being allowed to vote. Moreover, during the canvassing of votes before the Board of Canvasser, numerous Election Returns were discovered to contain glaring discrepancies and are replete with blatant omissions, not to mention the fact that numerous election returns appeared to be tampered with. All told, it is readily apparent that the portion of the Election Returns pertaining to the position of Vice-Mayor in the City of Parañaque, appear to be altered, falsified or fabricated.
QUESTIONS: (A) Is the petition tenable?
(B) What are the three instances where a failure of election may be declared?
© What are the two conditions which must concur before the COMELEC can act on a verified petition seeking to declare a failure of election?


ANSWERS: (A) Not tenable.
(b) There are three instances where a failure of election may be declared, namely, (a) the election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud or other analogous causes; (b) the election in any polling place has been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud or other analogous causes; or (c) after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect on account of force majeure, violence, terrorism, fraud or other analogous causes. In these instances, there is a resulting failure to elect. This is obvious in the first two scenarios, where the election was not held and where the election was suspended. As to the third scenario, where the preparation and the transmission of the election returns give rise to the consequence of failure to elect must as aforesaid, is interpreted to mean that nobody emerged as a winner.
© Before the COMELEC can act on a verified petition seeking to declare a failure of election two conditions must concur, namely (1) no voting took place in the precinct or precincts on the date fixed by law, or even if there was voting, the election resulted in a failure to elect; and (2) the votes not cast would have affected the result of the election. Note that the cause of such failure of election could only be any of the following: force majeure, violence, terrorism, fraud or other analogous causes. [G.R. No. 134696. July 31, 200]TOMAS T. BANAGA, JR., petitioner, vs. COMMISSION ON ELECTIONS and FLORENCIO M. BERNABE, JR., respondents


PART II. BASIC QUESTIONS

1. Which body has jurisdiction over the following:
(a) investigation of election offenses
(b) trying election offenses
(c) petition to cancel certificate of candidacy
(d) Barangay election protest
(e) Pre-proclamation controversy

2. Will the determination of the MTC in the exclusion proceeding preclude the COMELEC from determining the candidate’s residency qualification requirement? (see p.279).
3. State some of the grounds for the suspension of the canvass of election returns. (see. p. 406)
4. The general rule is that the COMELEC has no power over pre-proclamation cases in election contest for President, Vice-President and Members of Congress. State at least two exceptions. (see. p. 427)
5. What is the remedy in case there has been a manifest error in the computation of votes,which would affect the result of the election and there has been a proclamation of the candidate who was favored by the error? (see p. 447)
6. The general rule is that a pre-proclamation controversy must be filed with the COMELEC before a proclamation of the winning candidate is made. What is the exception to this rule? (see p. 478, 515)
7. Concerning the quo warranto petition concerning a provincial elective position pursuant to Sec. 21 of the rules, state the following: (a) who files it? (b) on what grounds? (c) where to file it specifically on what department of the COMELEC? (E) within what period? (see p. 532)
8. State whether the following mark shall invalidate the ballot or not: (a) forget me not (p. 346) (b) That’s all (c) wala na (p. 347) (d) placing an “x” mark to the left of a name of a candidate and another “x” after said name, in a ballot which is otherwise neat and filled with only a few names (p. 348) (e) writing the notation “marked ballot” on the ballot (p. 349)
9. If all the copies of the returns are falsified and the identity and integrity of the ballot boxes involved are open to doubt, what should be the remedy of the candidate affected? (see p. 409 , the certificate of votes may be used)
10. State at least three instances when a proclamation made by the board of canvassers is null and void. (see p. 416).