Aratea Penera Magallona Lim.docx

G.R. No. 195229 October 9, 2012 EFREN RACEL ARA TEA, Petitioner, vs. COMMISSiON ON ELECTIONS and ESTELA D. ANTlPOLO, Respondents. DECISION CARPIO, J.: The Case This is a special civil action for certiorari1 seeking to review and nullify the Resolution2 dated 2 February 2011 and the Order3 dated 12 January 2011 of the Commission on Elections (COMELEC) En Banc in Dra. Sigrid S. Rodolfo v. Romeo D. Lonzanida, docketed as SPA No. 09-158 (DC). The petition asserts that the COMELEC issued the Resolution and Order with grave abuse of discretion amounting to lack or excess of jurisdiction. The Facts Romeo D. Lonzanida (Lonzanida) and Estela D. Antipolo (Antipolo) were candidates for Mayor of San Antonio, Zambales in the May 2010 National and Local Elections. Lonzanida filed his certificate of candidacy on 1 December 2009.4 On 8 December 2009, Dra. Sigrid S. Rodolfo (Rodolfo) filed a petition under Section 78 of the Omnibus Election Code to disqualify Lonzanida and to deny due course or to cancel Lonzanida’s certificate of candidacy on the ground that Lonzanida was elected, and had served, as mayor of San Antonio, Zambales for four (4) consecutive terms immediately prior to the term for the May 2010 elections. Rodolfo asserted that Lonzanida made a false material representation in his certificate of candidacy when Lonzanida certified under oath that he was eligible for the office he sought election. Section 8, Article X of the 1987 Constitution5 and Section 43(b) of the Local Government Code6 both prohibit a local elective official from being elected and serving for more than three consecutive terms for the same position. The COMELEC Second Division rendered a Resolution7 on 18 February 2010 cancelling Lonzanida’s certificate of candidacy. Pertinent portions of the 18 February 2010 Resolution read: Respondent Lonzanida never denied having held the office of mayor of San Antonio, Zambales for more than nine consecutive years. Instead he raised arguments to forestall or dismiss the petition on the grounds other than the main issue itself. We find such arguments as wanting. Respondent Lonzanida, for holding the office of mayor for more than three consecutive terms, went against the three-term limit rule; therefore, he could not be allowed to run anew in the 2010 elections. It is time to infuse new blood in the political arena of San Antonio.

WHEREFORE, premises considered, the instant petition is hereby GRANTED. The Certificate of Candidacy of Respondent Romeo D. Lonzanida for the position of mayor in the municipality of San Antonio, Zambales is hereby CANCELLED. His name is hereby ordered STRICKEN OFF the list of Official Candidates for the position of Mayor of San Antonio, Zambales in May 10, 2010 elections. SO ORDERED.8 Lonzanida’s motion for reconsideration before the COMELEC En Banc remained pending during the May 2010 elections. Lonzanida and Efren Racel Aratea (Aratea) garnered the highest number of votes and were respectively proclaimed Mayor and Vice-Mayor. Aratea took his oath of office as Acting Mayor before Regional Trial Court (RTC) Judge Raymond C. Viray of Branch 75, Olongapo City on 5 July 2010.9 On the same date, Aratea wrote the Department of Interior and Local Government (DILG) and requested for an opinion on whether, as Vice-Mayor, he was legally required to assume the Office of the Mayor in view of Lonzanida’s disqualification. DILG Legal Opinion No. 117, S. 201010 stated that Lonzanida was disqualified to hold office by reason of his criminal conviction. As a consequence of Lonzanida’s disqualification, the Office of the Mayor was deemed permanently vacant. Thus, Aratea should assume the Office of the Mayor in an acting capacity without prejudice to the COMELEC’s resolution of Lonzanida’s motion for reconsideration. In another letter dated 6 August 2010, Aratea requested the DILG to allow him to take the oath of office as Mayor of San Antonio, Zambales. In his response dated 24 August 2010, then Secretary Jesse M. Robredo allowed Aratea to take an oath of office as "the permanent Municipal Mayor of San Antonio, Zambales without prejudice however to the outcome of the cases pending before the [COMELEC]."11 On 11 August 2010, the COMELEC En Banc issued a Resolution12 disqualifying Lonzanida from running for Mayor in the May 2010 elections. The COMELEC En Banc’s resolution was based on two grounds: first, Lonzanida had been elected and had served as Mayor for more than three consecutive terms without interruption; and second, Lonzanida had been convicted by final judgment of ten (10) counts of falsification under the Revised Penal Code. Lonzanida was sentenced for each count of falsification to imprisonment of four (4) years and one (1) day of prisión correccional as minimum, to eight (8) years and one (1) day of prisión mayor as maximum. The judgment of conviction became final on 23 October 2009 in the Decision of this Court in Lonzanida v. People,13 before Lonzanida filed his certificate of candidacy on 1 December 2009. Pertinent portions of the 11 August 2010 Resolution read:

Prescinding from the foregoing premises, Lonzanida, for having served as Mayor of San Antonio, Zambales for more than three (3) consecutive terms and for having been convicted by a final judgment of a crime punishable by more than one (1) year of imprisonment, is clearly disqualified to run for the same position in the May 2010 Elections. WHEREFORE, in view of the foregoing, the Motion for Reconsideration is hereby DENIED. SO ORDERED.14 On 25 August 2010, Antipolo filed a Motion for Leave to Intervene and to Admit Attached Petition-in-Intervention.15She claimed her right to be proclaimed as Mayor of San Antonio, Zambales because Lonzanida ceased to be a candidate when the COMELEC Second Division, through its 18 February 2010 Resolution, ordered the cancellation of his certificate of candidacy and the striking out of his name from the list of official candidates for the position of Mayor of San Antonio, Zambales in the May 2010 elections. In his Comment filed on 26 January 2011, Aratea asserted that Antipolo, as the candidate who received the second highest number of votes, could not be proclaimed as the winning candidate. Since Lonzanida’s disqualification was not yet final during election day, the votes cast in his favor could not be declared stray. Lonzanida’s subsequent disqualification resulted in a permanent vacancy in the Office of Mayor, and Aratea, as the duly-elected Vice-Mayor, was mandated by Section 4416 of the Local Government Code to succeed as Mayor. The COMELEC’s Rulings The COMELEC En Banc issued an Order dated 12 January 2011, stating: Acting on the "Motion for Leave to Intervene and to Admit Attached Petitionin-Intervention" filed by Estela D. Antipolo (Antipolo) and pursuant to the power of this Commission to suspend its Rules or any portion thereof in the interest of justice, this Commission hereby RESOLVES to: 1. GRANT the aforesaid Motion; 2. ADMIT the Petition-in-Intervention filed by Antipolo; 3. REQUIRE the Respondent, ROMEO DUMLAO LONZANIDA, as well as EFREN RACEL ARATEA, proclaimed Vice-Mayor of San Antonio, Zambales, to file their respective Comments on the Petition-in- Intervention within a non-extendible period of five (5) days from receipt thereof; 4. SET the above-mentioned Petition-in-Intervention for hearing on January 26, 2011 at 10:00 a.m. COMELEC Session Hall, 8th Floor, Palacio del Gobernador, Intramuros, Manila.

WHEREFORE, furnish copies hereof the parties for their information and compliance. SO ORDERED.17 In its Resolution dated 2 February 2011, the COMELEC En Banc no longer considered Lonzanida’s qualification as an issue: "It is beyond cavil that Lonzanida is not eligible to hold and discharge the functions of the Office of the Mayor of San Antonio, Zambales. The sole issue to be resolved at this juncture is how to fill the vacancy resulting from Lonzanida’s disqualification."18 The Resolution further stated: We cannot sustain the submission of Oppositor Aratea that Intervenor Antipolo could never be proclaimed as the duly elected Mayor of Antipolo [sic] for being a second placer in the elections. The teachings in the cases of Codilla vs. De Venecia and Nazareno and Domino vs. COMELEC, et al., while they remain sound jurisprudence find no application in the case at bar. What sets this case apart from the cited jurisprudence is that the notoriety of Lonzanida’s disqualification and ineligibility to hold public office is established both in fact and in law on election day itself. Hence, Lonzanida’s name, as already ordered by the Commission on February 18, 2010 should have been stricken off from the list of official candidates for Mayor of San Antonio, Zambales. WHEREFORE, in view of the foregoing, the Commission hereby: 1. Declares NULL and VOID the proclamation of respondent ROMEO D. LONZANIDA; 2. GRANTS the Petition for Intervention of Estela D. Antipolo; 3. Orders the immediate CONSTITUTION of a Special Municipal Board of Canvassers to PROCLAIM Intervenor Estela D. Antipolo as the duly elected Mayor of San Antonio, Zambales; 4. Orders Vice-Mayor Efren Racel Aratea to cease and desist from discharging the functions of the Office of the Mayor, and to cause a peaceful turn-over of the said office to Antipolo upon her proclamation; and 5. Orders the Office of the Executive Director as well as the Regional Election Director of Region III to cause the implementation of this Resolution and disseminate it to the Department of Interior and Local Government. SO ORDERED.19 Aratea filed the present petition on 9 February 2011. The Issues The manner of filling up the permanent vacancy in the Office of the Mayor of San Antonio, Zambales is dependent upon the determination of Lonzanida’s removal. Whether Lonzanida was disqualified under Section 68 of the

Omnibus Election Code, or made a false material representation under Section 78 of the same Code that resulted in his certificate of candidacy being void ab initio, is determinative of whether Aratea or Antipolo is the rightful occupant to the Office of the Mayor of San Antonio, Zambales. The dissenting opinions reverse the COMELEC’s 2 February 2011 Resolution and 12 January 2011 Order. They hold that Aratea, the duly elected ViceMayor of San Antonio, Zambales, should be declared Mayor pursuant to the Local Government Code’s rule on succession. The dissenting opinions make three grave errors: first, they ignore prevailing jurisprudence that a false representation in the certificate of candidacy as to eligibility in the number of terms elected and served is a material fact that is a ground for a petition to cancel a certificate of candidacy under Section 78; second, they ignore that a false representation as to eligibility to run for public office due to the fact that the candidate suffers from perpetual special disqualification is a material fact that is a ground for a petition to cancel a certificate of candidacy under Section 78; and third, they resort to a strained statutory construction to conclude that the violation of the three-term limit rule cannot be a ground for cancellation of a certificate of candidacy under Section 78, even when it is clear and plain that violation of the three-term limit rule is an ineligibility affecting the qualification of a candidate to elective office. The dissenting opinions tread on dangerous ground when they assert that a candidate’s eligibility to the office he seeks election must be strictly construed to refer only to the details, i.e., age, citizenship, or residency, among others, which the law requires him to state in his COC, and which he must swear under oath to possess. The dissenting opinions choose to view a false certification of a candidate’s eligibility on the three-term limit rule not as a ground for false material representation under Section 78 but as a ground for disqualification under Section 68 of the same Code. This is clearly contrary to well-established jurisprudence. The Court’s Ruling We hold that Antipolo, the alleged "second placer," should be proclaimed Mayor because Lonzanida’s certificate of candidacy was void ab initio. In short, Lonzanida was never a candidate at all. All votes for Lonzanida were stray votes. Thus, Antipolo, the only qualified candidate, actually garnered the highest number of votes for the position of Mayor. Qualifications and Disqualifications Section 65 of the Omnibus Election Code points to the Local Government Code for the qualifications of elective local officials. Paragraphs (a) and (c) of

Section 39 and Section 40 of the Local Government Code provide in pertinent part: Sec. 39. Qualifications. ‒ (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city or province x x x; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect. xxxx (c) Candidates for the position of mayor or vice-mayor of independent component cities, component cities, or municipalities must be at least twentyone (21) years of age on election day. xxxx Sec. 40. Disqualifications. - The following persons are disqualified from running for any elective local position: (a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence; (b) Those removed from office as a result of an administrative case; (c) Those convicted by final judgment for violating the oath of allegiance to the Republic; (d) Those with dual citizenship; (e) Fugitives from justice in criminal or non-political cases here or abroad; (f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code; and (g) The insane or feeble-minded. (Emphasis supplied) Section 12 of the Omnibus Election Code provides: Sec. 12. Disqualification. — Any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he was sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon or granted amnesty. The disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by competent authority that said insanity or incompetence had been removed or after the expiration of a period of five years from his service of sentence, unless within the same period he again becomes disqualified. (Emphasis supplied)

The grounds for disqualification for a petition under Section 68 of the Omnibus Election Code are specifically enumerated: Sec. 68. Disqualifications. ‒ Any candidate who, in an action or protest in which he is a party is declared by final decision by a competent court guilty of, or found by the Commission of having (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws. (Emphasis supplied) A petition for disqualification under Section 68 clearly refers to "the commission of prohibited acts and possession of a permanent resident status in a foreign country."20 All the offenses mentioned in Section 68 refer to election offenses under the Omnibus Election Code, not to violations of other penal laws. There is absolutely nothing in the language of Section 68 that would justify including violation of the three-term limit rule, or conviction by final judgment of the crime of falsification under the Revised Penal Code, as one of the grounds or offenses covered under Section 68. In Codilla, Sr. v. de Venecia,21 this Court ruled: [T]he jurisdiction of the COMELEC to disqualify candidates is limited to those enumerated in Section 68 of the Omnibus Election Code. All other election offenses are beyond the ambit of COMELEC jurisdiction. They are criminal and not administrative in nature. x x x Clearly, the violation by Lonzanida of the three-term limit rule, or his conviction by final judgment of the crime of falsification under the Revised Penal Code, does not constitute a ground for a petition under Section 68. False Material Representation Section 78 of the Omnibus Election Code states that a certificate of candidacy may be denied or cancelled when there is false material representation of the contents of the certificate of candidacy:

Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. ‒ A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by the person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twentyfive days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election. (Emphasis supplied) Section 74 of the Omnibus Election Code details the contents of the certificate of candidacy: Sec. 74. Contents of certificate of candidacy. ‒ The certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of the Batasang Pambansa, the province, including its component cities, highly urbanized city or district or sector which he seeks to represent; the political party to which he belongs; civil status; his date of birth; residence; his post office address for all election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to the best of his knowledge. x x x x (Emphasis supplied) A candidate for mayor in the 2010 local elections was thus required to provide 12 items of information in the certificate of candidacy:22 name; nickname or stage name; gender; age; place of birth; political party that nominated the candidate; civil status; residence/address; profession or occupation; post office address for election purposes; locality of which the candidate is a registered voter; and period of residence in the Philippines before 10 May 2010. The candidate also certifies four statements: a statement that the candidate is a natural born or naturalized Filipino citizen; a statement that the candidate is not a permanent resident of, or immigrant to, a foreign country; a statement that the candidate is eligible for the office he seeks election; and a statement of the candidate’s allegiance to the Constitution of the Republic of the Philippines.23 The certificate of candidacy should also be under oath, and filed within the period prescribed by law.

The conviction of Lonzanida by final judgment, with the penalty of prisión mayor, disqualifies him perpetually from holding any public office, or from being elected to any public office. This perpetual disqualification took effect upon the finality of the judgment of conviction, before Lonzanida filed his certificate of candidacy. The pertinent provisions of the Revised Penal Code are as follows: Art. 27. Reclusion perpetua. — x x x Prisión mayor and temporary disqualification. — The duration of the penalties of prisión mayor and temporary disqualification shall be from six years and one day to twelve years, except when the penalty of disqualification is imposed as an accessory penalty, in which case, it shall be that of the principal penalty. xxxx Art. 30. Effects of the penalties of perpetual or temporary absolute disqualification. — The penalties of perpetual or temporary absolute disqualification for public office shall produce the following effects: 1. The deprivation of the public offices and employments which the offender may have held, even if conferred by popular election. 2. The deprivation of the right to vote in any election for any popular elective office or to be elected to such office. 3. The disqualification for the offices or public employments and for the exercise of any of the rights mentioned. In case of temporary disqualification, such disqualification as is comprised in paragraphs 2 and 3 of this article shall last during the term of the sentence. 4. The loss of all rights to retirement pay or other pension for any office formerly held. Art. 31. Effects of the penalties of perpetual or temporary special disqualification. — The penalties of perpetual or temporary special disqualification for public office, profession or calling shall produce the following effects: 1. The deprivation of the office, employment, profession or calling affected. 2. The disqualification for holding similar offices or employments either perpetually or during the term of the sentence, according to the extent of such disqualification. Art. 32. Effects of the penalties of perpetual or temporary special disqualification for the exercise of the right of suffrage. — The perpetual or temporary special disqualification for the exercise of the right of suffrage shall deprive the offender perpetually or during the term of the sentence, according to the nature of said penalty, of the right to vote in any

popular election for any public office or to be elected to such office. Moreover, the offender shall not be permitted to hold any public office during the period of his disqualification. Art. 42. Prisión mayor — Its accessory penalties. — The penalty of prision mayor shall carry with it that of temporary absolute disqualification and that of perpetual special disqualification from the right of suffrage which the offender shall suffer although pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon. (Emphasis supplied) The penalty of prisión mayor automatically carries with it, by operation of law,24 the accessory penalties of temporary absolute disqualification and perpetual special disqualification. Under Article 30 of the Revised Penal Code, temporary absolute disqualification produces the effect of "deprivation of the right to vote in any election for any popular elective office or to be elected to such office.” The duration of temporary absolute disqualification is the same as that of the principal penalty of prisión mayor. On the other hand, under Article 32 of the Revised Penal Code, perpetual special disqualification means that "the offender shall not be permitted to hold any public office during the period of his disqualification,” which is perpetually. Both temporary absolute disqualification and perpetual special disqualification constitute ineligibilities to hold elective public office. A person suffering from these ineligibilities is ineligible to run for elective public office, and commits a false material representation if he states in his certificate of candidacy that he is eligible to so run. In Lacuna v. Abes (Lacuna),25 the Court, speaking through Justice J.B.L. Reyes, explained the import of the accessory penalty of perpetual special disqualification: On the first defense of respondent-appellee Abes, it must be remembered that appellee’s conviction of a crime penalized with prision mayor which carried the accessory penalties of temporary absolute disqualification and perpetual special disqualification from the right of suffrage (Article 42, Revised Penal Code); and Section 99 of the Revised Election Code disqualifies a person from voting if he had been sentenced by final judgment to suffer one year or more of imprisonment. The accessory penalty of temporary absolute disqualification disqualifies the convict for public office and for the right to vote, such disqualification to last only during the term of the sentence (Article 27, paragraph 3, & Article 30, Revised Penal Code) that, in the case of Abes, would have expired on 13 October 1961.

But this does not hold true with respect to the other accessory penalty of perpetual special disqualification for the exercise of the right of suffrage. This accessory penalty deprives the convict of the right to vote or to be elected to or hold public office perpetually, as distinguished from temporary special disqualification, which lasts during the term of the sentence. Article 32, Revised Penal Code, provides: Art. 32. Effects of the penalties of perpetual or temporary special disqualification for the exercise of the right of suffrage. — The perpetual or temporary special disqualification for the exercise of the right of suffrage shall deprive the offender perpetually or during the term of the sentence, according to the nature of said penalty, of the right to vote in any popular election for any public office or to be elected to such office. Moreover, the offender shall not be permitted to hold any public office during the period of disqualification. The word "perpetually" and the phrase "during the term of the sentence" should be applied distributively to their respective antecedents; thus, the word "perpetually" refers to the perpetual kind of special disqualification, while the phrase "during the term of the sentence" refers to the temporary special disqualification. The duration between the perpetual and the temporary (both special) are necessarily different because the provision, instead of merging their durations into one period, states that such duration is "according to the nature of said penalty" — which means according to whether the penalty is the perpetual or the temporary special disqualification. (Emphasis supplied) Clearly, Lacuna instructs that the accessory penalty of perpetual special disqualification "deprives the convict of the right to vote or to be elected to or hold public office perpetually.” The accessory penalty of perpetual special disqualification takes effect immediately once the judgment of conviction becomes final. The effectivity of this accessory penalty does not depend on the duration of the principal penalty, or on whether the convict serves his jail sentence or not. The last sentence of Article 32 states that "the offender shall not be permitted to hold any public office during the period of his [perpetual special] disqualification." Once the judgment of conviction becomes final, it is immediately executory. Any public office that the convict may be holding at the time of his conviction becomes vacant upon finality of the judgment, and the convict becomes ineligible to run for any elective public office perpetually. In the case of Lonzanida, he became ineligible perpetually to hold, or to run for, any elective public office from the time the judgment of conviction against him became final. The judgment of conviction was

promulgated on 20 July 2009 and became final on 23 October 2009, before Lonzanida filed his certificate of candidacy on 1 December 2009 . 26 Perpetual special disqualification is a ground for a petition under Section 78 of the Omnibus Election Code because this accessory penalty is an ineligibility, which means that the convict is not eligible to run for public office, contrary to the statement that Section 74 requires him to state under oath in his certificate of candidacy. As this Court held in Fermin v. Commission on Elections,27 the false material representation may refer to "qualifications or eligibility.” One who suffers from perpetual special disqualification is ineligible to run for public office. If a person suffering from perpetual special disqualification files a certificate of candidacy stating under oath that "he is eligible to run for (public) office," as expressly required under Section 74, then he clearly makes a false material representation that is a ground for a petition under Section 78. As this Court explained in Fermin: Lest it be misunderstood, the denial of due course to or the cancellation of the CoC is not based on the lack of qualifications but on a finding that the candidate made a material representation that is false, which may relate to the qualifications required of the public office he/she is running for. It is noted that the candidate states in his/her CoC that he/she is eligible for the office he/she seeks. Section 78 of the OEC, therefore, is to be read in relation to the constitutional and statutory provisions on qualifications or eligibility for public office. If the candidate subsequently states a material representation in the CoC that is false, the COMELEC, following the law, is empowered to deny due course to or cancel such certificate. Indeed, the Court has already likened a proceeding under Section 78 to a quo warranto proceeding under Section 253 of the OEC since they both deal with the eligibility or qualification of a candidate, with the distinction mainly in the fact that a "Section 78" petition is filed before proclamation, while a petition for quo warranto is filed after proclamation of the winning candidate.28(Emphasis supplied) Latasa, Rivera and Ong: The Three-Term Limit Rule as a Ground for Ineligibility Section 74 requires the candidate to certify that he is eligible for the public office he seeks election. Thus, Section 74 states that "the certificate of candidacy shall state that the person filing x x x is eligible for said office.” The three-term limit rule, enacted to prevent the establishment of political dynasties and to enhance the electorate’s freedom of choice,29 is found both in the Constitution30 and the law.31 After being elected and serving for three consecutive terms, an elective local official cannot seek immediate reelection

for the same office in the next regular election32 because he is ineligible. One who has an ineligibility to run for elective public office is not "eligible for [the] office." As used in Section 74, the word "eligible"33 means having the right to run for elective public office, that is, having all the qualifications and none of the ineligibilities to run for the public office. In Latasa v. Commission on Elections,34 petitioner Arsenio Latasa was elected mayor of the Municipality of Digos, Davao del Sur in 1992, 1995, and 1998. The Municipality of Digos was converted into the City of Digos during Latasa’s third term. Latasa filed his certificate of candidacy for city mayor for the 2001 elections. Romeo Sunga, Latasa’s opponent, filed before the COMELEC a "petition to deny due course, cancel certificate of candidacy and/or disqualification" under Section 78 on the ground that Latasa falsely represented in his certificate of candidacy that he is eligible to run as mayor of Digos City. Latasa argued that he did not make any false representation. In his certificate of candidacy, Latasa inserted a footnote after the phrase "I am eligible" and indicated "*Having served three (3) term[s] as municipal mayor and now running for the first time as city mayor." The COMELEC First Division cancelled Latasa’s certificate of candidacy for violation of the three-term limit rule but not for false material representation. This Court affirmed the COMELEC En Banc’s denial of Latasa’s motion for reconsideration. We cancelled Marino Morales’ certificate of candidacy in Rivera III v. Commission on Elections (Rivera).35 We held that Morales exceeded the maximum three-term limit, having been elected and served as Mayor of Mabalacat for four consecutive terms (1995 to 1998, 1998 to 2001, 2001 to 2004, and 2004 to 2007). We declared him ineligible as a candidate for the same position for the 2007 to 2010 term. Although we did not explicitly rule that Morales’ violation of the three-term limit rule constituted false material representation, we nonetheless granted the petition to cancel Morales’ certificate of candidacy under Section 78. We also affirmed the cancellation of Francis Ong’s certificate of candidacy in Ong v. Alegre,36 where the "petition to disqualify, deny due course and cancel" Ong’s certificate of candidacy under Section 78 was predicated on the violation of the three-term limit rule. Loong, Fermin and Munder: When Possession of a Disqualifying Condition is Not a Ground for a Petition for Disqualification It is obvious from a reading of the laws and jurisprudence that there is an overlap in the grounds for eligibility and ineligibility vis-à-vis qualifications and disqualifications. For example, a candidate may represent that he is a resident of a particular Philippine locality37 when he is actually a permanent

resident of another country.38 In cases of such overlap, the petitioner should not be constrained in his choice of remedy when the Omnibus Election Code explicitly makes available multiple remedies.39 Section 78 allows the filing of a petition to deny due course or to cancel a certificate of candidacy before the election, while Section 253 allows the filing of a petition for quo warranto after the election. Despite the overlap of the grounds, one should not confuse a petition for disqualification using grounds enumerated in Section 68 with a petition to deny due course or to cancel a certificate of candidacy under Section 78. The distinction between a petition under Section 68 and a petition under Section 78 was discussed in Loong v. Commission on Elections40 with respect to the applicable prescriptive period. Respondent Nur Hussein Ututalum filed a petition under Section 78 to disqualify petitioner Benjamin Loong for the office of Regional Vice-Governor of the Autonomous Government of Muslim Mindanao for false representation as to his age. The petition was filed 16 days after the election, and clearly beyond the prescribed 25 day period from the last day of filing certificates of candidacy. This Court ruled that Ututalum’s petition was one based on false representation under Section 78, and not for disqualification under Section 68. Hence, the 25-day prescriptive period provided in Section 78 should be strictly applied. We recognized the possible gap in the law: It is true that the discovery of false representation as to material facts required to be stated in a certificate of candidacy, under Section 74 of the Code, may be made only after the lapse of the 25-day period prescribed by Section 78 of the Code, through no fault of the person who discovers such misrepresentations and who would want the disqualification of the candidate committing the misrepresentations. It would seem, therefore, that there could indeed be a gap between the time of the discovery of the misrepresentation, (when the discovery is made after the 25-day period under Sec. 78 of the Code has lapsed) and the time when the proclamation of the results of the election is made. During this so-called "gap" the would-be petitioner (who would seek the disqualification of the candidate) is left with nothing to do except to wait for the proclamation of the results, so that he could avail of a remedy against the misrepresenting candidate, that is, by filing a petition for quo warranto against him. Respondent Commission sees this "gap" in what it calls a procedural gap which, according to it, is unnecessary and should be remedied. At the same time, it can not be denied that it is the purpose and intent of the legislative branch of the government to fix a definite time within which petitions of protests related to eligibility of candidates for elective offices

must be filed, as seen in Sections 78 and 253 of the Code. Respondent Commission may have seen the need to remedy this so-called “procedural gap", but it is not for it to prescribe what the law does not provide, its function not being legislative. The question of whether the time to file these petitions or protests is too short or ineffective is one for the Legislature to decide and remedy.41 In Fermin v. Commission on Elections,42 the issue of a candidate’s possession of the required one-year residency requirement was raised in a petition for disqualification under Section 68 instead of a petition to deny due course or to cancel a certificate of candidacy under Section 78. Despite the question of the one-year residency being a proper ground under Section 78, Dilangalen, the petitioner before the COMELEC in Fermin, relied on Section 5(C)(1) and 5(C)(3)(a)(4) of COMELEC Resolution No. 780043 and filed the petition under Section 68. In Fermin, we ruled that "a COMELEC rule or resolution cannot supplant or vary legislative enactments that distinguish the grounds for disqualification from those of ineligibility, and the appropriate proceedings to raise the said grounds."44 A petition for disqualification can only be premised on a ground specified in Section 12 or 68 of the Omnibus Election Code or Section 40 of the Local Government Code. Thus, a petition questioning a candidate’s possession of the required one-year residency requirement, as distinguished from permanent residency or immigrant status in a foreign country, should be filed under Section 78, and a petition under Section 68 is the wrong remedy. In Munder v. Commission on Elections,45 petitioner Alfais Munder filed a certificate of candidacy for Mayor of Bubong, Lanao del Sur on 26 November 2009. Respondent Atty. Tago Sarip filed a petition for Munder’s disqualification on 13 April 2010. Sarip claimed that Munder misrepresented that he was a registered voter of Bubong, Lanao del Sur, and that he was eligible to register as a voter in 2003 even though he was not yet 18 years of age at the time of the voter’s registration. Moreover, Munder’s certificate of candidacy was not accomplished in full as he failed to indicate his precinct and did not affix his thumb-mark. The COMELEC Second Division dismissed Sarip’s petition and declared that his grounds are not grounds for disqualification under Section 68 but for denial or cancellation of Munder’s certificate of candidacy under Section 78. Sarip’s petition was filed out of time as he had only 25 days after the filing of Munder’s certificate of candidacy, or until 21 December 2009, within which to file his petition. The COMELEC En Banc, however, disqualified Munder. In reversing the COMELEC Second Division, the COMELEC En Banc did not rule on the

propriety of Sarip’s remedy but focused on the question of whether Munder was a registered voter of Bubong, Lanao del Sur. This Court reinstated the COMELEC Second Division’s resolution. This Court ruled that the ground raised in the petition, lack of registration as voter in the locality where he was running as a candidate, is inappropriate for a petition for disqualification. We further declared that with our ruling in Fermin, we had already rejected the claim that lack of substantive qualifications of a candidate is a ground for a petition for disqualification under Section 68. The only substantive qualification the absence of which is a ground for a petition under Section 68 is the candidate’s permanent residency or immigrant status in a foreign country. The dissenting opinions place the violation of the three-term limit rule as a disqualification under Section 68 as the violation allegedly is "a status, circumstance or condition which bars him from running for public office despite the possession of all the qualifications under Section 39 of the [Local Government Code]." In so holding the dissenting opinions write in the law what is not found in the law. Section 68 is explicit as to the proper grounds for disqualification under said Section. The grounds for filing a petition for disqualification under Section 68 are specifically enumerated in said Section. However, contrary to the specific enumeration in Section 68 and contrary to prevailing jurisprudence, the dissenting opinions add to the enumerated grounds the violation of the three-term limit rule and falsification under the Revised Penal Code, which are obviously not found in the enumeration in Section 68. The dissenting opinions equate Lonzanida’s possession of a disqualifying condition (violation of the three-term limit rule) with the grounds for disqualification under Section 68. Section 68 is explicit as to the proper grounds for disqualification: the commission of specific prohibited acts under the Omnibus Election Code and possession of a permanent residency or immigrant status in a foreign country. Any other false representation regarding a material fact should be filed under Section 78, specifically under the candidate’s certification of his eligibility. In rejecting a violation of the three-term limit as a condition for eligibility, the dissenting opinions resort to judicial legislation, ignoring the verba legis doctrine and well-established jurisprudence on this very issue. In a certificate of candidacy, the candidate is asked to certify under oath his eligibility, and thus qualification, to the office he seeks election. Even though the certificate of candidacy does not specifically ask the candidate for the number of terms elected and served in an elective position, such fact is

material in determining a candidate’s eligibility, and thus qualification for the office. Election to and service of the same local elective position for three consecutive terms renders a candidate ineligible from running for the same position in the succeeding elections. Lonzanida misrepresented his eligibility because he knew full well that he had been elected, and had served, as mayor of San Antonio, Zambales for more than three consecutive terms yet he still certified that he was eligible to run for mayor for the next succeeding term. Thus, Lonzanida’s representation that he was eligible for the office that he sought election constitutes false material representation as to his qualification or eligibility for the office. Legal Duty of COMELEC to Enforce Perpetual Special Disqualification Even without a petition under Section 78 of the Omnibus Election Code, the COMELEC is under a legal duty to cancel the certificate of candidacy of anyone suffering from perpetual special disqualification to run for public office by virtue of a final judgment of conviction. The final judgment of conviction is judicial notice to the COMELEC of the disqualification of the convict from running for public office. The law itself bars the convict from running for public office, and the disqualification is part of the final judgment of conviction. The final judgment of the court is addressed not only to the Executive branch, but also to other government agencies tasked to implement the final judgment under the law. Whether or not the COMELEC is expressly mentioned in the judgment to implement the disqualification, it is assumed that the portion of the final judgment on disqualification to run for elective public office is addressed to the COMELEC because under the Constitution the COMELEC is duty bound to "enforce and administer all laws and regulations relative to the conduct of an election."46 The disqualification of a convict to run for elective public office under the Revised Penal Code, as affirmed by final judgment of a competent court, is part of the enforcement and administration of "all the laws" relating to the conduct of elections. Effect of a Void Certificate of Candidacy A cancelled certificate of candidacy void ab initio cannot give rise to a valid candidacy, and much less to valid votes.47 We quote from the COMELEC’s 2 February 2011 Resolution with approval: As early as February 18, 2010, the Commission speaking through the Second Division had already ordered the cancellation of Lonzanida’s certificate of candidacy, and had stricken off his name in the list of official candidates for the mayoralty post of San Antonio, Zambales. Thereafter, the Commission En

Banc in its resolution dated August 11, 2010 unanimously affirmed the resolution disqualifying Lonzanida. Our findings were likewise sustained by the Supreme Court no less. The disqualification of Lonzanida is not simply anchored on one ground. On the contrary, it was emphasized in our En Banc resolution that Lonzanida’s disqualification is two-pronged: first, he violated the constitutional fiat on the three-term limit; and second, as early as December 1, 2009, he is known to have been convicted by final judgment for ten (10) counts of Falsification under Article 171 of the Revised Penal Code. In other words, on election day, respondent Lonzanida’s disqualification is notoriously known in fact and in law. Ergo, since respondent Lonzanida was never a candidate for the position of Mayor [of] San Antonio, Zambales, the votes cast for him should be considered stray votes. Consequently, Intervenor Antipolo, who remains as the sole qualified candidate for the mayoralty post and obtained the highest number of votes, should now be proclaimed as the duly elected Mayor of San Antonio, Zambales.48 (Boldfacing and underscoring in the original; italicization supplied) Lonzanida's certificate of candidacy was cancelled because he was ineligible or not qualified to run for Mayor.1âwphi1Whether his certificate of candidacy is cancelled before or after the elections is immaterial because the cancellation on such ground means he was never a candidate from the very beginning, his certificate of candidacy being void ab initio. There was only one qualified candidate for Mayor in the May 201 0 elections - Anti polo, who therefore received the highest number of votes. WHEREFORE, the petition is DISMISSED. The Resolution dated 2 February 2011 and the Order dated 12 January 2011 of the COMELEC En Bane in SPA No. 09-158 (DC) are AFFIRMED. The COMELEC En Bane is DIRECTED to constitute a Special Municipal Board of Canvassers to proclaim Estela D. Antipolo as the duly elected Mayor of San Antonio, Zambales. Petitioner Efren Racel Aratea is ORDERED to cease and desist from discharging the functions of the Office of the Mayor of San Antonio, Zambales. SO ORDERED. ANTONIO T. CARPIO Associate Justice WE CONCUR: MARIA LOURDES P. A. SERENO Chief Justice (I join the dissent of J.B. Reyes) TERESITA PRESBITERO J. VELASCO, JR. CASTRO

J.

LEONARDO-DE

Associate Justice (see my ARTURO D. Associate Justice LUCAS P. Associate Justice ROBERTO A. Associate Justice JOSE PORTUGAL Associate Justice (with dissenting BIENVENIDO L. Associate Justice

Associate Justice dissent) DIOSDADO M. BRION Associate Justice

PERALTA

BERSAMIN MARIANO C. DEL CASTILLO Associate Justice ABAD MARTIN S. VILLARAMA, JR. Associate Justice PEREZ JOSE C. Associate Justice

MENDOZA

position) ESTELA M. PERLAS-BERNABE REYES Associate Justice

CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court. MARIA LOURDES P. A. SERENO Chief Justice Footnotes 1 Under Rule 64 in relation to Rule 65 of the 1997 Ru!es of Civil Procedure. 2 Rollo, pp. 34-39. Signed by Chairman Sixto S. Brillantes, Jr. (no part), and Commissioners Rene V. Sarmiento (with dissenting opinion), Niccdemo T. Ferrer, Lucenito N. Tagle, Armando C. Velasco (with dissenti11g opinion), Eiias R. Yusoph, and Gregorio Y. Larrazabal. 3 ld. at 32-33. Signed by Chairn:an .fuse A.R. Melo, and Commissioners Rene V. Sarmiento, Nicodenw T. Fen·er, Luccnito N. Tagle, Elias R. Yusoph. Armando C. Velasco, and Gregorio Y. Larrazabal. 4 Id. at 65. 5 Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms.

Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. 6 Sec. 43. Term of Office. ‒ x x x x (b) No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected. xxxx 7 Rollo, pp. 49-59. Penned by Commissioner Elias R. Yusoph, with Presiding Commissioner Nicodemo T. Ferrer and Commissioner Lucenito N. Tagle, concurring. 8 Id. at 58. 9 Id. at 96. 10 Id. at 94-95. Penned by Undersecretary Austere A. Panadero. 11 Id. at 97. 12 Id. at 60-67. Penned by Commissioner Armando C. Velasco, with Chairman Jose A. R. Melo and Commissioners Rene V. Sarmiento, Nicodemo T. Ferrer, Lucenito N. Tagle, Elias R. Yusoph, and Gregorio Y. Larrazabal, concurring. 13 G.R. Nos. 160243-52, 20 July 2009, 593 SCRA 273. 14 Rollo, p. 66. 15 Id. at 68-74. 16 Sec. 44. Permanent Vacancies in the Offices of the Governor, ViceGovernor, Mayor, and Vice-Mayor. – (a) If a permanent vacancy occurs in the office of the governor or mayor, the vicegovernor or vice-mayor concerned shall become the governor or mayor. x x x. 17 Rollo, pp. 32-33. 18 Id. at 36. 19 Id. at 37-38. Citations omitted. 20 Fermin v. Commission on Elections, G.R. Nos. 179695 and 182369, 18 December 2008, 574 SCRA 782, 794-795. 21 442 Phil. 139, 177-178 (2002). 22 http://www.comelec.gov.ph/downloadables/COC%202010/forms_fil ling_candidacy/mayor.pdf (accessed 21 March 2012). 23 I will support and defend the Constitution of the Republic of the Philippines and will maintain true faith and allegiance thereto. I will obey the laws, legal orders and decrees promulgated by the duly

constituted authorities. I impose this obligation upon myself voluntarily, without mental reservation or purpose of evasion. 24 People v. Silvallana, 61 Phil. 636 (1935). 25 133 Phil. 770, 773-774 (1968). 26 Rollo, p. 66. 27 Supra note 20. 28 Id. at 792-794. 29 See Borja, Jr. v. Commission on Elections, 356 Phil. 467 (1998). 30 Text provided in note 1. 31 Text provided in note 2. 32 See Socrates v. Commission on Elections, 440 Phil. 106 (2002). 33 The Oxford Dictionary of English (Oxford University Press 2010) defines the word "eligible" as "having a right to do or obtain something." 34 463 Phil. 296 (2003). 35 G.R. Nos. 167591 and 170577, 9 May 2007, 523 SCRA 41. 36 515 Phil. 442 (2006). 37 Under Section 39 of the Local Government Code, one of the "qualifications" for a local elective office is being "a resident therein for at least one (1) year immediately preceding the day of the election." 38 Under Section 68 of the Omnibus Election Code, one of the "disqualifications" for a candidate is being "a permanent resident of or an immigrant to a foreign country." 39 See discussion on the proceedings provided by the Omnibus Election Code in dealing with the qualifications of a candidate in Salcedo II v. COMELEC, 371 Phil. 377 (1999). See also Aznar v. Commission on Elections, 264 Phil. 307 (1990). 40 G.R. No. 93986, 22 December 1992, 216 SCRA 760. 41 Id. at 768-769. 42 Supra note 20. 43 Sec. 5. Procedure in filing petitions.—For purposes of the preceding section, the following procedure shall be observed: xxxx C. PETITION TO DISQUALIFY A CANDIDATE PURSUANT TO SEC. 68 OF THE OMNIBUS ELECTION CODE AND PETITION TO DISQUALIFY FOR LACK OF QUALIFICATIONS OR POSSESSING SOME GROUNDS FOR DISQUALIFICATION 1) A verified petition to disqualify a candidate pursuant to Sec. 68 of the OEC and the verified petition to disqualify a candidate for lack of qualifications or possessing some grounds for

disqualification may be filed on any day after the last day for filing of certificates of candidacy but not later than the date of proclamation. xxxx 3) The petition to disqualify a candidate for lack of qualification or possessing some grounds for disqualification, shall be filed in ten (10) legible copies with the concerned office mentioned in Sec. 3 hereof, personally or through a duly authorized representative by any person of voting age, or duly registered political party, organization or coalition of political parties on the grounds that any candidate does not possess all the qualifications of a candidate as provided for by the constitution or by existing law, or who possesses some grounds for disqualification. 3.a. Disqualification under existing election laws: 1. For not being a citizen of the Philippines; 2. For being a permanent resident of or an immigrant to a foreign country; 3. For lack of the required age; 4. For lack of residence; 5. For not being a registered voter; 6. For not being able to read and write; 7. In case of a party-list nominee, for not being a bona fide member of the party or organization which he seeks to represent for at least ninety (90) days immediately preceding the day of the election. 44 Supra note 20 at 798. 45 G.R. Nos. 194076 and 194160, 19 October 2011, 659 SCRA 256. 46 Section 2(1), Article IX-C, 1987 Constitution. 47 Bautista v. Commission on Elections, 359 Phil. 1, 16 (1998). See Miranda v. Abaya, 370 Phil. 642 (1999); Gador v. Commission on Elections, 184 Phil. 395 (1980). 48 Rollo, p. 37. The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION BRION, J.:

I dissent from the majority's (i) ruling that the violation of the threeterm limit rule is a ground for cancellation of a certificate of candidacy (Co C) and (ii) conclusion that private respondent Estela D. Anti polo, the "second placer" in the 2010 elections for the mayoralty post in San Antonio, Zambales, should be seated as Mayor. Romeo D. Lonzanida and Antipolo were among the four ( 4) candidates for the mayoralty position in San Antonio, Zambales in the May 10, 2010 elections. On December 8, 2009, Dr. Sigfrid S. Rodolfo filed a Petition to Disqualify/Deny Due Course or to Cancel CoC against Lonzanida with the Commission on Elections (COMELEC). The core of the petition against Lonzanida was his purported misrepresentation in his CoC by stating that he was eligible to run as mayor of San Antonio, Zambales, when in fact, he had already served for three consecutive terms. 1 On February 18, 2010, the COMELEC 2nd Division issued a Resolution cancelling Lonzanida's CoC and striking out his name from the official list of candidates for mayor on the ground that he had already served for three consecutive terms. 2 Lonzanida moved for the reconsideration of the ruling, which motion under the Rules of the COMELEC was elevated to the COMELEC en banc. The motion was not resolved before elections and on May 10, 2010, Lonzanida received the highest number of votes for the mayoralty post, while petitioner Efren Racel Aratea won the vice mayoralty position; they were duly proclaimed winners.3 Due to the COMELEC Resolution canceling Lonzanida’s CoC, Aratea wrote to the Department of the Interior and Local Government (DILG) to inquire whether, by law, he should assume the position of mayor, in view of the permanent vacancy created by the COMELEC 2nd Division’s ruling. The DILG favorably acted on Aratea’s request, and on July 5, 2010, he took his oath of office as mayor of San Antonio, Zambales.4 On August 11, 2010, the COMELEC en banc affirmed Lonzanida’s disqualification to run for another term. Apart from this ground, the COMELEC en banc also noted that Lonzanida was disqualified to run under Section 40 of the Local Government Code for having been convicted by final judgment for ten counts of falsification.5 On August 25, 2010, Antipolo filed a motion for leave to intervene, on the claim that she had a legal interest in the case as she was the only remaining qualified candidate for the position. She argued that she had the right to be proclaimed as the mayor considering that Lonzanida ceased to be a candidate when the COMELEC 2nd Division ordered the cancellation of his CoC and the

striking out of his name from the official list of candidates for the May 10, 2010 elections.6 On January 12, 2011, the COMELEC en banc issued an Order granting Antipolo’s motion for leave to intervene. In its February 2, 2012 Resolution, the COMELEC en banc granted Antipolo’s petition in intervention; declared null and void Lonzanida’s proclamation; ordered the constitution of a special Municipal Board of Canvassers to proclaim Antipolo as the duly elected Mayor; and ordered Aratea to cease and desist from discharging the functions of Mayor of San Antonio, Zambales. This gave rise to the present petition. The Issues The issues for the Court’s resolution are as follows: (1) What is the nature of the petition filed by Dr. Rodolfo before the COMELEC; (2) Did the COMELEC correctly dispose the case in accordance with the nature of the petition filed; (3) Who should be proclaimed as Mayor of San Antonio, Zambales – the "second placer" or the duly elected Vice-Mayor? I submit that the violation of the three-term limit rule cannot be a ground for the cancellation of a CoC. It is an appropriate ground for disqualification; thus, Dr. Rodolfo should be deemed to have filed a petition for disqualification, not a petition for the cancellation of Lonzanida’s CoC. The COMELEC’s cancellation of Lonzanida’s CoC was therefore erroneous. I reach this conclusion by using an approach that starts from a consideration of the nature of the CoC - the document that creates the status of a candidate and moves on to relevant concepts, specifically, disqualifications and its effects, remedies, effects of successful suits, and ultimately the three-term limit rule. I discussed this fully at length in the case of Talaga v. COMELEC.7 I hereby reiterate my Talaga discussions for ease of presentation. The CoC and the Qualifications for its Filing. A basic rule and one that cannot be repeated often enough is that the CoC is the document that creates the status of a candidate. In Sinaca v. Mula,8 the Court described the nature of a CoC as follows – A certificate of candidacy is in the nature of a formal manifestation to the whole world of the candidate's political creed or lack of political creed. It is a statement of a person seeking to run for a public office certifying that he announces his candidacy for the office mentioned and that he is eligible for the office, the name of the political party to which he belongs, if he belongs to any, and his post-office address for all election purposes being as well stated.

Both the 1973 and 1987 Constitutions left to Congress the task of providing the qualifications of local elective officials. Congress undertook this task by enacting Batas Pambasa Bilang (B.P. Blg.) 337 (Local Government Code or LGC), B.P. Blg. 881 (Omnibus Election Code or OEC) and, later, Republic Act (R.A.) No. 7160 (Local Government Code of 1991 or LGC 1991).9 Under Section 79 of the OEC, a political aspirant legally becomes a "candidate" only upon the due filing of his sworn CoC.10 In fact, Section 73 of the OEC makes the filing of the CoC a condition sine qua non for a person to "be eligible for any elective public office"11 – i.e., to be validly voted for in the elections. Section 76 of the OEC makes it a "ministerial duty" for a COMELEC official "to receive and acknowledge receipt of the certificate of candidacy"12filed. COMELEC Resolution No. 8678 provides what a CoC must contain or state:13 Section 2. Contents of certificate of candidacy. - The certificate of candidacy shall be under oath and shall state that the person filing it is announcing his candidacy for the office and constituency stated therein; that he is eligible for said office, his age, sex, civil status, place and date of birth, his citizenship, whether natural-born or naturalized; the registered political party to which he belongs; if married, the full name of the spouse; his legal residence, giving the exact address, the precinct number, barangay, city or municipality and province where he is registered voter; his post office address for election purposes; his profession or occupation or employment; that he is not a permanent resident or an immigrant to a foreign country; that he will support and defend the Constitution of the Republic of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, decrees, resolution, rules and regulations promulgated and issued by the duly-constituted authorities; that he assumes the foregoing obligations voluntarily without mental reservation or purpose of evasion; and that the facts stated in the certificate are true and correct to the best of his own knowledge. [italics supplied] From the point of view of the common citizen who wants to run for a local elective office, the above recital contains all the requirements that he must satisfy; it contains the basic and essential requirements applicable to all citizens to qualify for candidacy for a local elective office. These are their formal terms of entry to local politics. A citizen must not only possess all these requirements; he must positively represent in his CoC that he possesses them. Any falsity on these requirements constitutes a material misrepresentation that can lead to the cancellation of the CoC. On this point, Section 78 of the OEC provides:

Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. – A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by [any] person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twentyfive days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election. [italics, emphases and underscores ours] A necessarily related provision is Section 39 of LGC 1991 which states: Sec. 39. Qualifications. – (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sanggunian bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect. xxxx (c) Candidates for the position of Mayor or vice-mayor of independent component cities, component cities, or municipalities must be at least twentyone (21) years of age on election day. [italics ours] Notably, Section 74 of the OEC does not require any negative qualification except only as expressly required therein. A specific negative requirement refers to the representation that the would-be candidate is not a permanent resident nor an immigrant in another country. This requirement, however, is in fact simply part of the positive requirement of residency in the locality for which the CoC is filed and, in this sense, is not strictly a negative requirement. Neither does Section 74 require any statement that the would-be candidate does not possess any ground for disqualification specifically enumerated by law, as disqualification is a matter that the OEC and LGC 1991 separately deal with, as discussed below. Notably, Section 74 does not require a would-be candidate to state that he has not served for three consecutive terms in the same elective position immediately prior to the present elections. With the accomplishment of the CoC and its filing, a political aspirant officially acquires the status of a candidate and, at the very least, the prospect of holding public office; he, too, formally opens himself up to the complex political environment and processes. The Court cannot be more emphatic in holding "that the importance of a valid certificate of candidacy rests at the very core of the electoral process."14

Pertinent laws15 provide the specific periods when a CoC may be filed; when a petition for its cancellation may be brought; and the effect of its filing. These measures, among others, are in line with the State policy or objective of ensuring "equal access to opportunities for public service,"16 bearing in mind that the limitations on the privilege to seek public office are within the plenary power of Congress to provide.17 The Concept of Disqualification vis-à-visRemedy of Cancellation; and Effects ofDisqualification. To disqualify, in its simplest sense, is (1) to deprive a person of a power, right or privilege; or (2) to make him or her ineligible for further competition because of violation of the rules.18 It is in these senses that the term is understood in our election laws. Thus, anyone who may qualify or may have qualified under the general rules of eligibility applicable to all citizens (Section 74 of the OEC) may be deprived of the right to be a candidate or may lose the right to be a candidate (if he has filed his CoC) because of a trait or characteristic that applies to him or an act that can be imputed to him as an individual, separately from the general qualifications that must exist for a citizen to run for a local public office. Notably, the breach of the three-term limit is a trait or condition that can possibly apply only to those who have previously served for three consecutive terms in the same position sought immediately prior to the present elections. In a disqualification situation, the grounds are the individual traits or conditions of, or the individual acts of disqualification committed by, a candidate as provided under Sections 68 and 12 of the OEC and Section 40 of LGC 1991, and which generally have nothing to do with the eligibility requirements for the filing of a CoC.19 Sections 68 and 12 of the OEC (together with Section 40 of LGC 1991, outlined below) cover the following as traits, characteristics or acts of disqualification: (i) corrupting voters or election officials; (ii) committing acts of terrorism to enhance candidacy; (iii) overspending; (iv) soliciting, receiving or making prohibited contributions; (v) campaigning outside the campaign period; (vi) removal, destruction or defacement of lawful election propaganda; (vii) committing prohibited forms of election propaganda; (viii) violating rules and regulations on election propaganda through mass media; (ix) coercion of subordinates; (x) threats, intimidation, terrorism, use of fraudulent device or other forms of coercion; (xi) unlawful electioneering; (xii) release, disbursement or expenditure of public funds; (xiii) solicitation of votes or undertaking any propaganda on the day of the election; (xiv) declaration as an

insane; and (xv) committing subversion, insurrection, rebellion or any offense for which he has been sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude. Section 40 of LGC 1991, on the other hand, essentially repeats those already in the OEC under the following disqualifications: a. Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence; b. Those removed from office as a result of an administrative case; c. Those convicted by final judgment for violating the oath of allegiance to the Republic; d. Those with dual citizenship; e. Fugitives from justice in criminal or non-political cases here or abroad; f. Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code; and g. The insane or feeble-minded. Together, these provisions embody the disqualifications that, by statute, can be imputed against a candidate or a local elected official to deny him of the chance to run for office or of the chance to serve if he has been elected. A unique feature of "disqualification" is that under Section 68 of the OEC, it refers only to a "candidate," not to one who is not yet a candidate. Thus, the grounds for disqualification do not apply to a would-be candidate who is still at the point of filing his CoC. This is the reason why no representation is required in the CoC that the would-be candidate does not possess any ground for disqualification. The time to hold a person accountable for the grounds for disqualification is after attaining the status of a candidate, with the filing of the CoC. To sum up and reiterate the essential differences between the eligibility requirements and disqualifications, the former are the requirements that apply to, and must be complied by, all citizens who wish to run for local elective office; these must be positively asserted in the CoC. The latter refer to individual traits, conditions or acts applicable to specific individuals that serve as grounds against one who has qualified as a candidate to lose this status or privilege; essentially, they have nothing to do with a candidate’s CoC. When the law allows the cancellation of a candidate’s CoC, the law considers the cancellation from the point of view of those positive requirements that every citizen who wishes to run for office must

commonly satisfy. Since the elements of "eligibility" are common, the vice of ineligibility attaches to and affects both the candidate and his CoC. In contrast, when the law allows the disqualification of a candidate, the law looks only at the disqualifying trait or condition specific to the individual; if the "eligibility" requirements have been satisfied, the disqualification applies only to the person of the candidate, leaving the CoC valid. A previous conviction of subversion is the best example as it applies not to the citizenry at large, but only to the convicted individuals; a convict may have a valid CoC upon satisfying the eligibility requirements under Section 74 of the OEC, but shall nevertheless be disqualified. While the violation of the three-term rule is properly a ground for disqualification, it is a unique ground, constitutionally anchored at that, that sets it apart from and creates a distinction even from the ordinary grounds of disqualification. The succeeding discussions incorporate these intradisqualification distinctions on the grounds for disqualification, which in sum refer to (i) the period to file a petition and (ii) capability of substitution and (iii) on the application of the doctrine of rejection of second placer and the doctrine’s exceptions. Distinctions among (i) denying due course to or cancellation of a CoC, (ii) disqualification, and (iii) quo warranto The nature of the eligibility requirements for a local elective office and the disqualifications that may apply to candidates necessarily create distinctions on the remedies available, on the effects of lack of eligibility and on the application of disqualification. The remedies available are essentially: the cancellation of a CoC, disqualification from candidacy or from holding office, and quo warranto, which are distinct remedies with varying applicability and effects. For ease of presentation and understanding, their availability, grounds and effects are topically discussed below. As to the grounds: In the denial of due course to or cancellation of a CoC, the ground is essentially lack of eligibility under the pertinent constitutional and statutory provisions on qualifications or eligibility for public office;20 the governing provisions are Sections 78 and 69 of the OEC.21 In a disqualification case, as mentioned above, the grounds are traits, conditions, characteristics or acts of disqualification,22 individually applicable to a candidate, as provided under Sections 68 and 12 of B.P. Blg. 881; Section 40 of LGC 1991; and, as discussed below, Section 8, Article X of the Constitution. As previously discussed, the grounds for disqualification are

different from, and have nothing to do with, a candidate’s CoC although they may result in disqualification from candidacy whose immediate effect upon finality before the elections is the same as a cancellation. If they are cited in a petition filed before the elections, they remain as disqualification grounds and carry effects that are distinctly peculiar to disqualification. In a quo warranto petition, the grounds to oust an elected official from his office are ineligibility and disloyalty to the Republic of the Philippines. This is provided under Section 253 of the OEC and governed by the Rules of Court as to procedures. While quo warranto and cancellation share the same ineligibility grounds, they differ as to the time these grounds are cited. A cancellation case is brought before the elections, while a quo warranto is filed after and may still be filed even if a CoC cancellation case was not filed before elections. The only difference between the two proceedings is that, under section 78, the qualifications for elective office are misrepresented in the certificate of candidacy and the proceedings must be initiated before the elections, whereas a petition for quo warranto under section 253 may be brought on the basis of two grounds - (1) ineligibility or (2) disloyalty to the Republic of the Philippines, and must be initiated within ten days after the proclamation of the election results. Under section 253, a candidate is ineligible if he is disqualified to be elected to office, and he is disqualified if he lacks any of the qualifications for elective office.23 Note that the question of what would constitute acts of disqualification – under Sections 68 and 12 of the OEC and Section 40 of LGC 1991 – is best resolved by directly referring to the provisions involved. On the other hand, what constitutes a violation of the three-term limit rule under the Constitution has been clarified in our case law.24 The approach is not as straight forward in a petition to deny due course to or cancel a CoC and also to a quo warranto petition, which similarly covers the ineligibility of a candidate/elected official. In Salcedo II v. COMELEC,25 we ruled that – [I]n order to justify the cancellation of the certificate of candidacy under Section 78, it is essential that the false representation mentioned therein pertain to a material matter for the sanction imposed by this provision would affect the substantive rights of a candidate — the right to run for the elective post for which he filed the certificate of candidacy. Although the law does not specify what would be considered as a "material representation," the Court has interpreted this phrase in a line of decisions applying Section 78 of the Code. xxxx

Therefore, it may be concluded that the material misrepresentation contemplated by Section 78 of the Code refer to qualifications for elective office. This conclusion is strengthened by the fact that the consequences imposed upon a candidate guilty of having made a false representation in his certificate of candidacy are grave — to prevent the candidate from running or, if elected, from serving, or to prosecute him for violation of the election laws. It could not have been the intention of the law to deprive a person of such a basic and substantive political right to be voted for a public office upon just any innocuous mistake. [emphases ours, citation omitted] Thus, in addition to the failure to satisfy or comply with the eligibility requirements, a material misrepresentation must be present in a cancellation of CoC situation. The law apparently does not allow material divergence from the listed requirements to qualify for candidacy and enforces its edict by requiring positive representation of compliance under oath. Significantly, where disqualification is involved, the mere existence of a ground appears sufficient and a material representation assumes no relevance. As to the period for filing: The period to file a petition to deny due course to or cancel a CoC depends on the provision of law invoked. If the petition is filed under Section 78 of the OEC, the petition must be filed within twenty-five (25) days from the filing of the CoC.26 However, if the petition is brought under Section 69 of the same law, the petition must be filed within five (5) days from the last day of filing the CoC.27 On the other hand, the period to file a disqualification case is at any time before the proclamation of a winning candidate, as provided in COMELEC Resolution No. 8696.28 The three-term limit disqualification, because of its unique characteristics, does not strictly follow this time limitation and is discussed at length below. At the very least, it should follow the temporal limitations of a quo warranto petition which must be filed within ten (10) days from proclamation.29 The constitutional nature of the violation, however, argues against the application of this time requirement; the rationale for the rule and the role of the Constitution in the country’s legal order dictate that a petition should be allowed while a consecutive fourth-termer is in office. As to the effects of a successful suit: A candidate whose CoC was denied due course or cancelled is not considered a candidate at all. Note that the law fixes the period within which a CoC may be filed.30 After this period, generally no other person may join the election contest. A notable exception to this general rule is the rule on substitution. The application of the exception, however, presupposes a valid

CoC. Unavoidably, a "candidate" whose CoC has been cancelled or denied due course cannot be substituted for lack of a CoC, to all intents and purposes.31 Similarly, a successful quo warranto suit results in the ouster of an already elected official from office; substitution, for obvious reasons, can no longer apply. On the other hand, a candidate who was simply disqualified is merely prohibited from continuing as a candidate or from assuming or continuing to assume the functions of the office; substitution can thus take place under the terms of Section 77 of the OEC.32 However, a three-term candidate with a valid and subsisting CoC cannot be substituted if the basis of the substitution is his disqualification on account of his three-term limitation. Disqualification that is based on a breach of the three-term limit rule cannot be invoked as this disqualification can only take place after election where the three-term official emerged as winner. As in a quo warranto, any substitution is too late at this point. As to the effects of a successful suit on the right of the second placer in the elections: In any of these three remedies, the doctrine of rejection of the second placer applies for the simple reason that – To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates because in a field which excludes the disqualified candidate, the conditions would have substantially changed. We are not prepared to extrapolate the results under such circumstances.33 With the disqualification of the winning candidate and the application of the doctrine of rejection of the second placer, the rules on succession under the law accordingly apply. As an exceptional situation, however, the candidate with the second highest number of votes (second placer) may be validly proclaimed as the winner in the elections should the winning candidate be disqualified by final judgment before the elections, as clearly provided in Section 6 of R.A. No. 6646.34 The same effect obtains when the electorate is fully aware, in fact and in law and within the realm of notoriety, of the disqualification, yet they still voted for the disqualified candidate. In this situation, the electorate that cast the plurality of votes in favor of the notoriously disqualified candidate is simply deemed to have waived their right to vote.35

In a CoC cancellation proceeding, the law is silent on the legal effect of a judgment cancelling the CoC and does not also provide any temporal distinction. Given, however, the formal initiatory role a CoC plays and the standing it gives to a political aspirant, the cancellation of the CoC based on a finding of its invalidity effectively results in a vote for an inexistent "candidate" or for one who is deemed not to be in the ballot. Although legally a misnomer, the "second placer" should be proclaimed the winner as the candidate with the highest number of votes for the contested position. This same consequence should result if the cancellation case becomes final after elections, as the cancellation signifies non-candidacy from the very start, i.e., from before the elections. Violation of the three-term limit rule a. The Three-Term Limit Rule. The three-term limit rule is a creation of Section 8, Article X of the Constitution. This provision fixes the maximum limit an elective local official can consecutively serve in office, and at the same time gives the command, in no uncertain terms, that no such official shall serve for more than three consecutive terms. Thus, a three-term local official is barred from serving a fourth and subsequent consecutive terms. This bar, as a constitutional provision, must necessarily be read into and interpreted as a component part of the OEC under the legal reality that neither this Code nor the Local Government Code provides for the three-term limit rule’s operational details; it is not referred to as a ground for the cancellation of a CoC nor for the disqualification of a candidate, much less are its effects provided for. Thus, the need to fully consider, reconcile and harmonize the terms and effects of this rule with our election and other laws. b. Is the Rule an Eligibility Requirement or a Disqualification? In practical terms, the question – of whether the three-term limit rule is a matter of "eligibility" that must be considered in the filing of a CoC – translates to the need to state in a would-be candidate’s CoC application that he is eligible for candidacy because he has not served three consecutive terms immediately before filing his application. The wording of Section 8, Article X of the Constitution, however, does not justify this requirement as Section 8 simply sets a limit on the number of consecutive terms an official can serve. It does not refer to elections, much less does it bar a three-termer’s candidacy. As previously discussed, Section 74 of the OEC does not expressly require a candidate to assert the nonpossession of any disqualifying trait or condition, much less of a candidate’s

observance of the three-term limit rule. In fact, the assertion of a would-be candidate’s eligibility, as required by the OEC, could not have contemplated making a three-term candidate ineligible for candidacy since that disqualifying trait began to exist only later under the 1987 Constitution. What Section 8, Article X of the Constitution indisputably mandates is solely a bar against serving for a fourth consecutive term, not a bar against candidacy. Of course, between the filing of a CoC (that gives an applicant the status of a candidate) and assumption to office as an election winner is a wide expanse of election activities whose various stages our election laws treat in various different ways. Thus, if candidacy will be aborted from the very start (i.e., at the initial CoCfiling stage), what effectively takes place – granting that the thirdtermer possesses all the eligibility elements required by law – is a shortcut that is undertaken on the theory that the candidate cannot serve in any way if he wins a fourth term. I submit that while simple and efficient, essential legal considerations should dissuade the Court from using this approach. To make this shortcut is to incorporate into the law, by judicial fiat, a requirement that is not expressly there. In other words, such shortcut may go beyond allowable interpretation that the Court can undertake, and cross over into prohibited judicial legislation. Not to so hold, on the other hand, does not violate the three-term limit rule even in spirit, since its clear and undisputed mandate is to disallow serving for a fourth consecutive term; this objective is achieved when the local official does not win and can always be attained by the direct application of the law if he does win. Another reason, and an equally weighty one, is that a shortcut would run counter to the concept of commonality that characterizes the eligibility requirements; it would allow the introduction of an element that does not apply to all citizens as an entry qualification. Viewed from the prism of the general distinctions between eligibility and disqualification discussed above, the three-term limit is unavoidably a restriction that applies only to local officials who have served for three consecutive terms, not to all would-be candidates at large; it applies only to specific individuals who may have otherwise been eligible if not for the three-term limit rule and is thus a defect that attaches only to the candidate. In this sense, it cannot but be a disqualification and at that, a very specific one. That the prohibited fourth consecutive term can only take place after a threeterm local official wins his fourth term signifies too that the prohibition (and the resulting disqualification) only takes place after elections. This

circumstance, to my mind, supports the view that the threeterm limit rule does not at all involve itself with the matter of candidacy; it only regulates service beyond the limits the Constitution has set. Indeed, it is a big extrapolative leap for a prohibition that applies after election, to hark back and affect the initial election process for the filing of CoCs. Thus, on the whole, I submit that the legally sound view is not to bar a threetermer’s candidacy for a fourth term if the three-term limit rule is the only reason for the bar. In these lights, the three-term limit rule – as a bar against a fourth consecutive term – is effectively a disqualification against such service rather than an eligibility requirement.36 c. Filing of Petition and Effects. As a disqualification that can only be triggered after the elections, it is not one that can be implemented or given effect before such time. The reason is obvious; before that time, the gateway to the 4th consecutive term has not been opened because the four-term re-electionist has not won. This reality brings into sharp focus the timing of the filing of a petition for disqualification for breach of the three-term limit rule. Should a petition under the three-term limit rule be allowed only after the four-term official has won on the theory that it is at that point that the Constitution demands a bar? The timing of the filing of the petition for disqualification is a matter of procedure that primarily rests with the COMELEC. Of course, a petition for disqualification cannot be filed against one who is not yet a candidate as only candidates (and winners) can be disqualified. Hence, the filing should be done after the filing of the CoC. On the matter of the time limitations of its filing, I believe that the petition does not need to be hobbled by the terms of COMELEC Resolution No. 869637 because of the special nature and characteristics of the three-term limit rule – i.e., the constitutional breach involved; the fact that it can be effective only after a candidate has won the election; and the lack of specific provision of the election laws covering it. To be sure, a constitutional breach cannot be allowed to remain unattended because of the procedures laid down by administrative bodies. While Salcedo considers the remedy of quo warranto as almost the same as the remedy of cancellation on the question of eligibility, the fact that the remedies can be availed of only at particular periods of the election process signifies more than the temporal distinction. From the point of view of eligibility, one who merely seeks to hold public office through a valid candidacy cannot wholly be treated in the same manner as one who has won and is at the point of assuming or serving the office to which he was elected; the requirements to be eligible as a candidate are

defined by the election laws and by the local government code, but beyond these are constitutional restrictions on eligibility to serve. The three-term limit rule serves as the best example of this fine distinction; a local official who is allowed to be a candidate under our statutes but who is effectively in his fourth term should be considered ineligible to serve if the Court were to give life to the constitutional provision, couched in a strong prohibitory language, that "no such official shall serve for more than three consecutive terms." A possible legal stumbling block in allowing the filing of the petition before the election is the existence of a cause of action or prematurity at that point. If disqualification is triggered only after a three-termer has won, then it may be argued with some strength that a petition, filed against a respondent threeterm local official before he has won a fourth time, has not violated any law and does not give the petitioner the right to file a petition for lack of cause of action or prematurity. I take the view, however, that the petition does not need to be immediately acted upon and can merely be docketed as a cautionary petition reserved for future action if and when the three-term local official wins a fourth consecutive term. If the parties proceed to litigate without raising the prematurity or lack of cause of action as objection, a ruling can be deferred until after cause of action accrues; if a ruling is entered, then any decreed disqualification cannot be given effect and implemented until a violation of the three-term limit rule occurs. Unlike in an ordinary disqualification case (where a disqualification by final judgment before the elections against the victorious but disqualified candidate can catapult the second placer into office) and in a cancellation case (where the judgment, regardless of when it became final, against the victorious candidate with an invalid CoC similarly gives the "second placer" a right to assume office), a disqualification based on a violation of the threeterm limit rule sets up a very high bar against the second placer unless he can clearly and convincingly show that the electorate had deliberately and knowingly misapplied their votes. Rodolfo’s petition is properly one for disqualification On the basis of the above discussions, I vote to grant the present petition. Notwithstanding the caption of Dr. Rodolfo’s petition, his petition is properly one for disqualification, since he only alleged a violation of the three-term limit rule – a disqualification, not a cancellation issue. Thus, the nature and consequences of a disqualification petition are what we must recognize and give effect to in this case. This conclusion immediately impacts on Antipolo

who, as second placer and in the absence of any of the exceptions, must bow out of the picture under the doctrine of rejection of the second placer.38 First, as discussed above, a resulting disqualification based on a violation of the three-term limit rule cannot begin to operate until after the elections, where the three-term official emerged as victorious.39 There is no way that Antipolo, the second placer in the election, could assume the office of Mayor because no disqualification took effect before the elections against Lonzanida despite the decision rendered then. To reiterate, the prohibition against Lonzanida only took place after his election for his fourth consecutive term. At that point, the election was over and the people had chosen. With Lonzanida ineligible to assume office, the Vice-Mayor takes over by succession. Second, likewise, it has not been shown that the electorate deliberately and knowingly misapplied their votes in favor of Lonzanida, resulting in their disenfranchisement. Since a disqualification based on a violation of the threeterm limit rule does not affect a CoC that is otherwise valid, then Lonzanida remained a candidate who could be validly voted for in the elections.40 It was only when his disqualification was triggered that a permanent vacancy occurred in the office of the Mayor of San Antonio, Zambales. Under the LGC,41 it is Aratea, the duly elected Vice Mayor, who should serve as Mayor in place of the elected but disqualified Lonzanida. ARTURO D. BRION Associate Justice Footnotes 1 Rollo. p. 35 2 Id. at 49-59. 3 Id. at 93. 4 Id. at 96-97. 5 Id. at 64-66. 6 Id. at 71-72. 7 G.R. No. 196804. 8 373 Phil. 896, 908 (1999). 9 Prior to these laws, the applicable laws were the Revised Administrative Code of 1917, R.A. No. 2264 (An Act Amending the Laws Governing Local Governments by Increasing Their Autonomy and Reorganizing Provincial Governments); and B.P. Blg. 52 (An Act Governing the Election of Local Government Officials).

See, however, Section 15 of R.A. No. 8436, as amended. Penera v. Commission on Elections, G.R. No. 181613, November 25, 2009, 605 SCRA 574, 581-586, citing Lanot v. COMELEC, G.R. No. 164858, November 16, 2006, 507 SCRA 114. 11 Section 73 of B.P. Blg. 881 reads: Section 73. Certificate of candidacy. - No person shall be eligible for any elective public office unless he files a sworn certificate of candidacy within the period fixed herein. A person who has filed a certificate of candidacy may, prior to the election, withdraw the same by submitting to the office concerned a written declaration under oath. No person shall be eligible for more than one office to be filled in the same election, and if he files his certificate of candidacy for more than one office, he shall not be eligible for any of them. However, before the expiration of the period for the filing of certificates of candidacy, the person who has filed more than one certificate of candidacy may declare under oath the office for which he desires to be eligible and cancel the certificate of candidacy for the other office or offices. The filing or withdrawal of a certificate of candidacy shall not affect whatever civil, criminal or administrative liabilities which a candidate may have incurred. [italics supplied] Section 13 of R.A. No. 9369, however, adds that "[a]ny person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall effect only upon that start of the aforesaid campaign period[.]" (italics supplied) 12 See Cipriano v. Commission on Elections, 479 Phil. 677, 689 (2004). 13 The statutory basis is Section 74 of B.P. Blg. 881 which provides: Section 74. Contents of certificate of candidacy. - The certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of the Batasang Pambansa, the province, including its component cities, highly urbanized city or district or sector which he seeks to represent; the political party to which he belongs; civil status; his date of birth; residence; his post office address for all election purposes; his profession or occupation; 10

that he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to the best of his knowledge. Unless a candidate has officially changed his name through a court approved proceeding, a certificate shall use in a certificate of candidacy the name by which he has been baptized, or if has not been baptized in any church or religion, the name registered in the office of the local civil registrar or any other name allowed under the provisions of existing law or, in the case of a Muslim, his Hadji name after performing the prescribed religious pilgrimage: Provided, That when there are two or more candidates for an office with the same name and surname, each candidate, upon being made aware of such fact, shall state his paternal and maternal surname, except the incumbent who may continue to use the name and surname stated in his certificate of candidacy when he was elected. He may also include one nickname or stage name by which he is generally or popularly known in the locality. The person filing a certificate of candidacy shall also affix his latest photograph, passport size; a statement in duplicate containing his bio-data and program of government not exceeding one hundred words, if he so desires. 14 Miranda v. Abaya, 370 Phil. 642, 658 (1999). See also Bautista v. Commission on Elections, 359 Phil. 1 (1998). 15 Section 13 of R.A. No. 9369, COMELEC Resolution No. 8678 and Section 78 of B.P. Blg. 881. 16 1987 Constitution, Article II, Section 26. 17 See Pamatong v. Commission on Elections, G.R. No. 161872, April 13, 2004, 427 SCRA 96, 100-103. 18 Merriam-Webster’s 11th Collegiate Dictionary, p. 655. 19 If at all, only two grounds for disqualification under the Local Government Code may as well be considered for the cancellation of a CoC, viz.: those with dual citizenship and permanent residence in a foreign country, or those who have acquired the right to reside abroad and continue to avail of the same right after January 1, 1992. It may be

argued that these two disqualifying grounds likewise go into the eligibility requirement of a candidate, as stated under oath by a candidate in his CoC. 20 Fermin v. Commission on Elections, G.R. Nos. 179695 and 182369, December 18, 2008, 574 SCRA 782, 792-794. 21 See Section 7 of R.A. No. 6646. 22 Sections 68 and 12 of B.P. Blg. 881 cover these acts: (i) corrupting voters or election officials; (ii) committing acts of terrorism to enhance candidacy; (iii) over spending; (iv) soliciting, receiving or making prohibited contributions; (v) campaigning outside the campaign period; (vi) removal, destruction or defacement of lawful election propaganda; (vii) committing prohibited forms of election propaganda; (viii) violating rules and regulations on election propaganda through mass media; (ix) coercion of subordinates; (x) threats, intimidation, terrorism, use of fraudulent device or other forms of coercion; (xi) unlawful electioneering; (xii) release, disbursement or expenditure of public funds; (xiii) solicitation of votes or undertaking any propaganda on the day of the election; (xiv) declaration as an insane; and (xv) committing subversion, insurrection, rebellion or any offense for which he has been sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude. 23 Salcedo II v. COMELEC, 371 Phil. 377, 387 (1999), citing Aznar v. Commission on Elections, 185 SCRA 703 (1990). 24 Lonzanida v. Commission on Elections, G.R. No. 135150, July 28, 1999, 311 SCRA 602; Borja, Jr. v. Commission on Elections, 295 Phil. 157 (1998); Socrates v. COMELEC, 440 Phil. 107 (2002); Latasa v. Commission on Elections, G.R. No. 154829, December 10, 2003, 417 SCRA 601; Montebon v. Commission on Elections, G.R. No. 180444, April 9, 2008, 551 SCRA 50; and Aldovino, Jr. v. Commission on Elections, G.R. No. 184836, December 23, 2009, 609 SCRA 234.. 25 Supra note 23, at 386-389. 26 Loong v. Commission on Elections, G.R. No. 93986, December 22, 1992, 216 SCRA 760, 765-766. 27 Section 5(a) of R.A. No. 6646. 28 Section 4(B) of COMELEC Resolution No. 8696 reads: SEC. 4. Procedure in filing petitions. - For purposes of the preceding sections, the following procedure shall be observed: xxxx

B. PETITION TO DISOUALIFY A CANDIDATE PURSUANT TO SECTION 68 OF THE OMNIBUS ELECTION CODE AND PETITION TO DISOUALIFY FOR LACK OF OUALIFICATIONS OR POSSESSING SOME GROUNDS FOR DISQUALIFICATION 1. A verified petition to disqualify a candidate pursuant to Section 68 of the OEC and the verified petition to disqualify a candidate for lack of qualifications or possessing some grounds for disqualification may be filed on any day after the last day for filing of certificates of candidacy but not later than the date of proclamation. 29 Section 253 of the OEC. 30 Section 15 of R.A. No. 9369. 31 Miranda v. Abaya, supra note 14, at 658-660. 32 Section 77 of B.P. Blg. 881 expressly allows substitution of a candidate who is "disqualified for any cause." 33 Aquino v. Commission on Elections, G.R. No. 120265, September 18, 1995, 248 SCRA 400, 424. 34 Cayat v. Commission on Elections, G.R. Nos. 163776 and 165736, April 24, 2007, 522 SCRA 23, 43-47; Section 6 of R.A. No. 6646. 35 Grego v. Commission on Elections, G.R. No. 125955, June 19, 1997, 274 SCRA 481, 501. 36 Separate from these considerations is the possibility that the candidacy of a third-termer may be considered a nuisance candidacy under Section 69 of the OEC. Nuisance candidacy, by itself, is a special situation that has merited its own independent provision that calls for the denial or cancellation of the COC if the bases required by law are proven; thus, it shares the same remedy of cancellation for material misrepresentation on the eligibility requirements. The possibility of being a nuisance candidate is not discussed as it is not in issue in the case. 37 Supra note 28. 38 See: discussions at pp. 16, 18 – 20. 39 See: discussions at pp. 14 -15. 40 See: discussions at p. 16. 41 Section 44. The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION REYES, J.: I respectfully dissent from the majority opinion and offer my humble consideration of the issues presented in this case. The Issues In this case, the Court is called upon to resolve the following issues: 1. Whether the petitiOn filed before the Commission on Elections (COMELEC) is a petition to cancel a certificate of candidacy (COC) or a petition to disqualify; 2. Whether the COMELEC correctly disposed the case in accordance with the .. nature of the petition filed; and 3. Whether private respondent Estel a D. Anti polo (Anti polo) who obtained the second highest number of votes may be proclaimed the mayor of San Antonio, Zambales. The petition filed against RomeoLonzanida (Lonzanida) IS one fordisqualification and not forcancellation of COC. It is my view that the petition filed against Lonzanida is in the nature of a petition for disqualification. It is significant to note that the challenge to Lonzanida’s candidacy originated from a Petition to Disqualify/Deny Due Course to and/or Cancel the Certificate of Candidacy filed by Dra. Sigrid Rodolfo (Dra. Rodolfo), seeking the cancellation of the former’s COC on the ground of misrepresentation. Dra. Rodolfo alleged that Lonzanida made a material misrepresentation in his COC by stating that he was eligible to run as Mayor of San Antonio, Zambales when in fact he has already served for four (4) consecutive terms for the same position, in violation of Section 8, Article X of the 1987 Constitution and Section 43(b) of R.A. No. 7160.1 After evaluating the merits of the petition, the COMELEC Second Division issued the Resolution dated February 18, 2010 granting the petition, disposing thus: The three-term limit rule was initially proposed to be an absolute bar to any elective local government official from running for the same position after serving three consecutive terms. The said disqualification was primarily intended to forestall the accumulation of massive political power by an elective local government official in a given locality in order to perpetuate his tenure in office. Corollary to this, the need to broaden the choices of the electorate of the candidates who will run for office, and to infuse new blood in the political arena by disqualifying officials running for the same office after nine years of holding the same.

Respondent Lonzanida never denied having held the office of mayor of San Antonio, Zambales for more than nine consecutive years. Instead, he raised arguments to forestall or dismiss the petition on the grounds other than the main issue itself. We find such arguments as wanting. Respondent Lonzanida, for holding the office of mayor for more than three consecutive terms, went against the three-term limit rule; therefore, he could not be allowed to run anew in the 2010 elections. It is time to infuse new blood in the political arena of San Antonio. WHEREFORE, premises considered, the instant petition is hereby GRANTED. The Certificate of Candidacy of Respondent Romeo D. Lonzanida for the position of mayor in the municipality of San Antonio, Zambales is hereby CANCELLED. His name is hereby ordered STRICKEN OFF the list of Official Candidates for the position of Mayor of San Antonio, Zambales in the May 10, 2010 elections. SO ORDERED.2 (Citation omitted) Upon Lonzanida’s motion for reconsideration, the COMELEC en banc affirmed the ruling of the Second Division in its Resolution3 dated August 11, 2010 further noting that Lonzanida was even more disqualified to run in the elections by reason of a final judgment of conviction against him for a crime punishable for more than one (1) year of imprisonment, thus: It is likewise worth mentioning at this point that Lonzanida has been found by no less than the Supreme Court guilty beyond reasonable doubt of ten (10) counts of Falsification under Article 171 of the Revised Penal Code. We take judicial notice of the fact that the Supreme Court, in the case of Lonzanida vs. People of the Philippines, has affirmed the Resolution of the Sandiganbayan which contains the following dispositive portion: "WHEREFORE, premises considered, judgment is hereby rendered finding accused Mayor Romeo Lonzanida y Dumlao guilty of ten (10) counts of Falsification of Public Document defined and penalized under Article 171 par. 2 of the Revised Penal Code, and in the absence of any mitigating and aggravating circumstances, applying the Indeterminate Sentence Law, said accused is hereby sentenced to suffer in each of the cases the penalty of imprisonment of four (4) years and one (1) day of prision correccional as minimum to eight (8) years and one (1) day of pris[i]on mayor as maximum, and to pay a fine of [P]5,000.00, in each of the cases without subsidiary imprisonment in case of insolvency." Based on the above-mentioned affirmed Decision, Lonzanida shall suffer the penalty of imprisonment of four (4) years and one (1) day of prision correccional as minimum to eight (8) years and one (1) day of prision mayor

as maximum. In view of the said Decision, Lonzanida is, therefore, disqualified to run for any local elective position pursuant to Section 40(a) of the Local Government Code x x x: Prescinding from the foregoing premises, Lonzanida, for having served as Mayor of San Antonio, Zambales for more than three (3) consecutive terms and for having been convicted by a final judgment of a crime punishable by more than one (1) year of imprisonment, is clearly disqualified to run for the same position in the May 2010 Elections. WHEREFORE, in view of the foregoing the Motion for Reconsideration is hereby DENIED. SO ORDERED.4 (Citations omitted) In the foregoing dispositions, the COMELEC overlooked the distinction between the remedies presented before it. It bears stressing that while the petition filed by Dra. Rodolfo against Lonzanida was titled as a Petition to Disqualify/Deny due Course to and/or Cancel the Certificate of Candidacy, the designation pertains to two (2) different remedies: petition for disqualification and petition to deny due course or cancel a COC. In the recent case of Fermin v. Commission on Elections,5 this Court emphasized the distinctions between the two remedies which seemed to have been obliterated by the imprudent use of the terms in a long line of jurisprudence. In the said case, Umbra Ramil Bayam Dilangalen, a mayoralty candidate of Northern Kabuntalan in Shariff Kabunsuan, filed a petition for disqualification against Mike A. Fermin on the ground that he did not possess the required period of residency to qualify as candidate. This Court, speaking through Associate Justice Antonio Eduardo B. Nachura, held: Pivotal in the ascertainment of the timeliness of the Dilangalen petition is its proper characterization. As aforesaid, petitioner, on the one hand, argues that the Dilangalen petition was filed pursuant to Section 78 of the OEC; while private respondent counters that the same is based on Section 68 of the Code. After studying the said petition in detail, the Court finds that the same is in the nature of a petition to deny due course to or cancel a CoC under Section 78 of the OEC. The petition contains the essential allegations of a "Section 78" petition, namely: (1) the candidate made a representation in his certificate; (2) the representation pertains to a material matter which would affect the substantive rights of the candidate (the right to run for the election for which he filed his certificate); and (3) the candidate made the false representation with the intention to deceive the electorate as to his qualification for public office or deliberately attempted to mislead, misinform, or hide a fact which

would otherwise render him ineligible. It likewise appropriately raises a question on a candidate’s eligibility for public office, in this case, his possession of the one-year residency requirement under the law. Lest it be misunderstood, the denial of due course to or the cancellation of the CoC is not based on the lack of qualifications but on a finding that the candidate made a material representation that is false, which may relate to the qualifications required of the public office he/she is running for. It is noted that the candidate states in his/her CoC that he/she is eligible for the office he/she seeks. Section 78 of the OEC, therefore, is to be read in relation to the constitutional and statutory provisions on qualifications or eligibility for public office. If the candidate subsequently states a material representation in the CoC that is false, the COMELEC, following the law, is empowered to deny due course to or cancel such certificate. Indeed, the Court has already likened a proceeding under Section 78 to a quo warranto proceeding under Section 253 of the OEC since they both deal with the eligibility or qualification of a candidate, with the distinction mainly in the fact that a "Section 78" petition is filed before proclamation, while a petition for quo warranto is filed after proclamation of the winning candidate. At this point, we must stress that a "Section 78" petition ought not to be interchanged or confused with a "Section 68" petition. They are different remedies, based on different grounds, and resulting in different eventualities. Private respondent’s insistence, therefore, that the petition it filed before the COMELEC in SPA No. 07-372 is in the nature of a disqualification case under Section 68, as it is in fact captioned a "Petition for Disqualification," does not persuade the Court. The ground raised in the Dilangalen petition is that Fermin allegedly lacked one of the qualifications to be elected as mayor of Northern Kabuntalan, i.e., he had not established residence in the said locality for at least one year immediately preceding the election. Failure to meet the one-year residency requirement for the public office is not a ground for the "disqualification" of a candidate under Section 68. The provision only refers to the commission of prohibited acts and the possession of a permanent resident status in a foreign country as grounds for disqualification, x x x.6 (Citations omitted, and emphasis and italics supplied) It bears emphasizing that while both remedies aim to prevent a candidate from joining the electoral race, they are separate and distinct from each other. One remedy must not be confused with the other lest the consequences of a judgment for one be imposed for a judgment on the other to the prejudice of

the parties. They are governed by separate provisions of law, which provide for different sets of grounds, varying prescriptive periods and consequences. As to governing law, a petition to cancel the COC of a candidate is filed under Section 78 of the OEC which provides: Sec. 78. Petition to deny due course to or cancel a certificate of candidacy.  A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election. As mentioned in the above-stated provision, a petition under Section 78 may be filed if a candidate made a material representation in his COC with respect to the details which are required to be stated therein under Section 74 of the OEC which reads: Sec. 74. Contents of certificate of candidacy.  The certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of the Batasang Pambansa, the province, including its component cities, highly urbanized city or district or sector which he seeks to represent; the political party to which he belongs; civil status; his date of birth; residence; his post office address for all election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to the best of his knowledge. Unless a candidate has officially changed his name through a court approved proceeding, a certificate shall use in a certificate of candidacy the name by which he has been baptized, or if he has not been baptized in any church or religion, the name registered in the office of the local civil registrar or any other name allowed under the provisions of existing law or, in the case of a Muslim, his Hadji name after performing the prescribed religious pilgrimage: Provided, That when there are two or more candidates for an office with the same name and surname, each candidate, upon being made aware or such fact, shall state his paternal and maternal surname, except the incumbent who

may continue to use the name and surname stated in his certificate of candidacy when he was elected. He may also include one nickname or stage name by which he is generally or popularly known in the locality. In order to justify the cancellation of COC, it is essential that the false representation mentioned therein pertain to a material matter for the sanction imposed by this provision would affect the substantive rights of a candidate – the right to run for the elective post for which he filed the certificate of candidacy. Although the law does not specify what would be considered as a "material representation," the Court concluded that this refers to qualifications for elective office. It contemplates statements regarding age, residence and citizenship or non-possession of natural-born Filipino status. Furthermore, aside from the requirement of materiality, the false representation must consist of a deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible. In other words, it must be made with an intention to deceive the electorate as to one’s qualification for public office.7 On the other hand, a petition for disqualification may be filed under Section 68 of the OEC which states: Sec. 68. Disqualifications.  Any candidate who, in an action or protest in which he is a party is declared by final decision of a competent court guilty of, or found by the Commission of having: (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws. The same petition may also be filed pursuant to Section 12 of the OEC and Section 40 of the LGC which provide for other grounds for disqualification to run for public office, viz: Section 12 of the OEC Sec. 12. Disqualifications. – Any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for

subversion, insurrection, rebellion, or for any offense for which he has been sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon or granted amnesty. The disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by competent authority that said insanity or incompetence had been removed or after the expiration of a period of five years from his service or sentence, unless within the same period he again becomes disqualified. Section 40 of the LGC Sec. 40. Disqualifications.  The following persons are disqualified from running for any elective local position: (a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence; (b) Those removed from office as a result of an administrative case; (c) Those convicted by final judgment for violating the oath of allegiance to the Republic; (d) Those with dual citizenship; (e) Fugitives from justice in criminal or non-political cases here or abroad; (f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code; and (g) The insane or feeble-minded. Disqualification proceedings are initiated for the purpose of barring an individual from becoming a candidate or from continuing as a candidate for public office. In other words, the objective is to eliminate a candidate from the race either from the start or during its progress. On the other hand, proceedings for the cancellation of COC seek a declaration of ineligibility, that is, the lack of qualifications prescribed in the Constitution or the statutes for holding public office and the purpose of the proceedings for declaration of ineligibility is to remove the incumbent from office.8 In her petition, Dra. Rodolfo alleged that Lonzanida violated Section 8, Article X of the Constitution, replicated under Section 43(b) of the LGC, which provides for the proscription against occupying the same public office for more than three (3) consecutive terms to support her action to prevent the latter from pursuing his candidacy in the May 2010 elections. The core of her petition is the purported misrepresentation committed by Lonzanida in his

COC by stating he was eligible to run as Mayor of San Antonio, Zambales when in fact he has already served for the same position in 1998 to 2001, 2001 to 2004, 2004 to 2007 and 2007 to 2010. However, violation of the three-term limit is not stated as a ground for filing a petition under Section 78, Section 68 or Section 12 of the OEC or Section 40 of the LGC. In order to make a fitting disposition of the present controversy, it has to be determined whether the petition filed against Lonzanida is actually a petition for cancellation of COC or a petition for disqualification. To reiterate, the ground for filing a petition for cancellation of COC is basically a misrepresentation of the details required to be stated in the COC which, in Lonzanida’s case, pertain to the basic qualifications for candidates for local elective positions provided under Section 39 of the LGC which reads: Sec. 39. Qualifications.  (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect. xxxx (c) Candidates for the position of mayor or vice-mayor of independent component cities, component cities, or municipalities must be at least twentyone (21) years of age on election day. These basic requirements, which former Senator Aquilino Pimentel, the principal author of the LGC, termed as "positive qualifications"9 are the requisite status or circumstances which a local candidate must have at the time of filing of his COC. Essentially, the details required to be stated in the COC are the personal circumstances of the candidate, i.e., name/stagename, age, civil status, citizenship and residency, which serve as basis of his eligibility to become a candidate taking into consideration the standards set under the law. The manifest intent of the law in imposing these qualifications is to confine the right to participate in the elections to local residents who have reached the age when they can seriously reckon the gravity of the responsibility they wish to take on and who, at the same time, are heavily acquainted with the actual state and urgent demands of the community. On the other hand, the grounds for disqualification refer to acts committed by an aspiring local servant, or to a circumstance, status or condition which renders him unfit for public service. Contrary to the effect of Section 39 of the LGC, possession of any of the grounds for disqualification results to the

forfeiture of the right of a candidate to participate in the elections. Thus, while a person may possess the core eligibilities required under Section 39, he may still be prevented from running for a local elective post if he has any of the disqualifications stated in Section 40. The rationale behind prescribing these disqualifications is to limit the right to hold public office to those who are fit to exercise the privilege in order to preserve the purity of the elections.10 Based on the foregoing disquisition on the nature of the two remedies, I find that the violation of the three-term limit cannot be a ground for cancellation of COC. To emphasize, this remedy can only be pursued in cases of material misrepresentation in the COC, which are limited to the details that must be stated therein. Moreover, Antipolo’s contention that Lonzanida should be deemed to have made a misrepresentation in his COC when he stated that he was eligible to run when in fact he was not is inconsistent with the basic rule in statutory construction that provisions of a law should be construed as a whole and not as a series of disconnected articles and phrases. In the absence of a clear contrary intention, words and phrases in statutes should not be interpreted in isolation from one another. A word or phrase in a statute is always used in association with other words or phrases and its meaning may thus be modified or restricted by the latter.11 Thus, the statement in the COC which contains a declaration by the candidate that he is "eligible to the office he seeks to be elected to" must be strictly construed to refer only to the details pertaining to his qualifications, i.e., age, citizenship or residency, among others, which the law requires him to state in his COC which he must even swear under oath to possess. Considering that the number of terms for which a local candidate had served is not required to be stated in the COC, it cannot be a ground for a petition to cancel a COC. The question now is, can it be a ground for a petition for disqualification? I believe that it can. Pertinently, Section 8, Article X of the Constitution states: Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. (Emphasis ours) As it is worded, that a candidate for a local elective position has violated the three-term limit is a disqualification as it is a status, circumstance or condition which bars him from running for public office despite the possession of all the qualifications under Section 39 of the LGC.

It follows that the petition filed by Dra. Rodolfo against Lonzanida should be considered a petition for disqualification and not a petition to cancel a COC. Overlooking the delineation between the two remedies presents the danger of confusing the proper disposition of one for the other. Although both remedies may affect the status of candidacy of a person running for public office, the difference lies with the breadth of the effect. In Fermin, we elucidated, thus: While a person who is disqualified under Section 68 is merely prohibited to continue as a candidate, the person whose certificate is cancelled or denied due course under Section 78 is not treated as a candidate at all, as if he/she never filed a COC. Thus, in Miranda v. Abaya, this Court made the distinction that a candidate who is disqualified under Section 68 can validly be substituted under Section 77 of the OEC because he/she remains a candidate until disqualified; but a person whose COC has been denied due course or cancelled under Section 78 cannot be substituted because he/she is never considered a candidate.12 (Citations omitted and emphasis ours) In its Resolution dated February 18, 2010, the COMELEC, while finding that Lonzanida is disqualified to run as Mayor of San Antonio, Zambales for having served the same position for more than three (3) consecutive terms, ordered for the cancellation of Lonzanida’s COC. In effect, it cancelled Lonzanida’s COC on the basis of a ground which is fittingly a ground for a petition for disqualification, not for a petition to cancel a COC. The same holds true with respect to Lonzanidas’ conviction for ten (10) counts of falsification which was taken up by the COMELEC in resolving Lonzanida’s motion for reconsideration in its Resolution dated August 11, 2010 notwithstanding the fact that said ground was not even alleged in the petition filed by Dra. Rodolfo. A final judgment of disqualification before the elections is necessary before the votes cast in favor of a candidate be considered stray. Anent the effect of a judgment of disqualification, Section 72 of the OEC is clear. It states: Sec. 72. Effects of disqualification cases and priority. – x x x. xxxx Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. Nevertheless, if for any reason, a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, his violation of the provisions of the preceding sections shall not prevent his proclamation and assumption to office. (Emphasis ours)

The foregoing provision was reiterated in Section 6 of R.A. No. 6646, pertaining to "The Electoral Reforms Law of 1987," thus: Sec. 6. Effect of Disqualification Case.  Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. (Emphasis ours) It can be gathered from the foregoing that a judgment of disqualification against a candidate comes into full effect only upon attaining finality. Before that period, the candidate facing a disqualification case may still be voted for and even be proclaimed winner. After the judgment of disqualification has become final and executory, the effect on the status of his candidacy will depend on whether the finality took effect before or after the day of elections. If the judgment became final before the elections, he may no longer be considered a candidate and the votes cast in his favor are considered stray. On the other hand, if the judgment lapsed into finality after the elections, he is still considered a candidate and the votes cast in his name during the elections shall be counted in his favor. The requirement for a final judgment ultimately redounds to the benefit of the electorate who can still freely express their will by naming the candidate of their choice in their ballots without being delimited by the fact that one of the candidates is facing a disqualification case. It effectively thwarts indecent efforts of a less popular candidate in eliminating competition with the more popular candidate by mere expedient of filing a disqualification case against him. In the same manner, it ensures that an ineligible candidate, even after he was proclaimed the winner, can still be ousted from office and be replaced with the truly deserving one. In order not to frustrate these objectives by reason of the protracted conduct of the proceedings, the Rules provide that the COMELEC retains its jurisdiction even after elections, if for any reason no final judgment of disqualification is rendered before the elections, and the candidate facing disqualification is voted for and receives the highest number of votes. Thus, in Sunga v. COMELEC13 we enunciated: Clearly, the legislative intent is that the COMELEC should continue the trial and hearing of the disqualification case to its conclusion, i.e., until judgment is rendered thereon. The word "shall" signifies that this requirement of the law

is mandatory, operating to impose a positive duty which must be enforced. The implication is that the COMELEC is left with no discretion but to proceed with the disqualification case even after the election. x x x. x x x A candidate guilty of election offenses would be undeservedly rewarded, instead of punished, by the dismissal of the disqualification case against him simply because the investigating body was unable, for any reason caused upon it, to determine before the election if the offenses were indeed committed by the candidate sought to be disqualified. All that the erring aspirant would need to do is to employ delaying tactics so that the disqualification case based on the commission of election offenses would not be decided before the election. This scenario is productive of more fraud which certainly is not the main intent and purpose of the law.14 (Citation omitted) Without a final judgment, a candidate facing disqualification may still be proclaimed the winner and assume the position for which he was voted for. In the absence of an order suspending proclamation, the winning candidate who is sought to be disqualified is entitled to be proclaimed as a matter of law. This is clear from Section 6 of R.A. No. 6646 which provides that the proclamation of the candidate sought to be disqualified is suspended only if there is an order of the COMELEC suspending proclamation.15 The mere pendency of a disqualification case against a candidate, and a winning candidate at that, does not justify the suspension of his proclamation after winning in the election. To hold otherwise would unduly encourage the filing of baseless and malicious petitions for disqualification if only to effect the suspension of the proclamation of the winning candidate, not only to his damage and prejudice but also to the defeat of the sovereign will of the electorate, and for the undue benefit of undeserving third parties.16 The candidate receiving the second highest number of votes cannot be proclaimed the winner. It must be noted that after the issuance of the Resolution dated August 11, 2010, the COMELEC rendered two more issuances that are now being assailed in the instant petition – the Order dated January 12, 2011 and the Resolution dated February 2, 2011. During the interim period, the May 2010 election was held and Lonzanida received the highest number of votes and was proclaimed winner. Upon finality of the judgment of his disqualification, a permanent vacancy was created in the office of the mayor and Efren Racel Aratea (Aratea), the duly-elected Vice-Mayor of San Antonio, Zambales, assumed the position per authority granted to him by the DILG Secretary. Thereafter, on August 25, 2010, fourteen (14) days after the issuance of the Resolution dated August 11, 2010, Antipolo filed a motion to intervene and to

admit attached petition-in-intervention. Antipolo alleged that she has a legal interest in the matter in litigation being the only remaining qualified candidate for the office of the mayor of San Antonio, Zambales after Lonzanida’s disqualification.17 Having obtained the highest number of votes among the remaining qualified candidates for the position, she opined that she should be proclaimed the mayor of the locality.18Subsequently, the COMELEC en banc allowed Antipolo’s motion to intervene in its Order dated January 12, 2011, thus: Acting on the "Motion for Leave to Intervene and to Admit Attached Petitionin-Intervention" filed by Estela D. Antipolo (Antipolo) and pursuant to the power of this Commission to suspend its Rules or any portion thereof in the interest of justice, this Commission hereby RESOLVES to: 1. GRANT the aforesaid Motion; 2. ADMIT the Petition-in-Intervention filed by Antipolo; 3. REQUIRE the Respondent, ROMEO DUMLAO LONZANIDA, as well as EFREN RACEL ARATEA, proclaimed Vice-Mayor of San Antonio, Zambales, to file their respective Comments on the Petition-inIntervention within a nonextendible period of five (5) days from receipt hereof; and 4. SET the above-mentioned Petition-in-Intervention for hearing on January 26, 2011 at 10:00 a.m., COMELEC Session Hall, 8th Floor, Palacio del Gobernador, Intramuros, Manila.19 On February 2, 2011, the COMELEC en banc issued a Resolution nullifying Aratea’s proclamation as acting mayor and ordering him to cease and desist from discharging the duties of the office of the mayor. Further, it ordered for the constitution of a Special Board of Canvassers to proclaim Antipolo as the duly-elected Mayor of San Antonio, Zambales, ratiocinating as follows: It is beyond cavil that Lonzanida is not eligible to hold and discharge the functions of the Office of the Mayor of San Antonio, Zambales. The sole issue to be resolved at this juncture is how to fill the vacancy resulting from Lonzanida’s disqualification. Intervenor Antipolo claims that being the sole qualified candidate who obtained the highest number of votes, she should perforce be proclaimed as Mayor of San Antonio, Zambales. Oppositor Aratea on the other hand argues that Antipolo is a mere second placer who can never be proclaimed, and that the resulting vacancy should be filled in accordance with Section 44 of the Local Government Code of 1991. In order to judiciously resolve this issue however, we wish to emphasize the character of the disqualification of respondent Lonzanida.

As early as February 18, 2010, the Commission speaking through the Second Division had already ordered the cancellation of Lonzanida’s certificate of candidacy, and had stricken off his name in the list of official candidates for the mayoralty post of San Antonio, Zambales[.] Thereafter, the Commission En Banc in its resolution dated August 11, 2010 unanimously affirmed the resolution disqualifying Lonzanida. Our findings were likewise sustained by the Supreme Court no less. The disqualification of Lonzanida is not simply anchored on one ground. On the contrary, it was emphasized in our En Banc resolution that Lonzanida’s disqualification is two-pronged: first, he violated the constitutional fiat on the three-term limit; and second, as early as December 1, 2009, he is known to have been convicted by final judgment for ten (10) counts of Falsification under Article 171 of the Revised Penal Code. In other words, on election day, respondent Lonzanida’s disqualification is notoriously known in fact and in law. Ergo, since respondent was never a candidate for the position of Mayor, San Antonio, Zambales, the votes cast for him should be considered stray votes. Consequently, Intervenor Antipolo, who remains as the sole qualified candidate for the mayoralty post and obtained the highest number of votes should now be proclaimed as the duly[-]elected Mayor of San Antonio, Zambales. We cannot sustain the submission of Oppositor Aratea that Intervenor Antipolo could never be proclaimed as the duly elected Mayor of Antipolo [sic] for being a second placer in the elections. The teachings in the cases of Codilla vs. De Venecia and Nazareno and Domino vs. Comelec[,] et al., while they remain sound jurisprudence find no application in the case at bar. What sets this case apart from the cited jurisprudence is that the notoriety of Lonzanida’s disqualification and ineligibility to hold public office is established both in fact and in law on election day itself. Hence, Lonzanida’s name, as already ordered by the Commission on February 18, 2010 should have been stricken off from the list of official candidates for Mayor of San Antonio, Zambales.20 (Citations omitted) The foregoing ratiocination is illustrative of the complication that can result from the inability to distinguish the differences between a petition for disqualification and a petition for cancellation of COC. It bears emphasizing that in terms of effect, a judgment on a petition to cancel a COC touches the very eligibility of a person to qualify as a candidate such that an order for cancellation of his COC renders him a non-candidate as if he never filed a COC at all. The ripple effect is that all votes cast in his favor shall be considered stray. Thus, the candidate receiving the second highest number of votes may be proclaimed the winner as he is technically considered the candidate who

received the highest number of votes. Further, it is of no consequence if the judgment on the petition to cancel COC became final before or after the elections since the consequences of the same retroact to the date of filing of the COC. On the other hand, the breadth of the effect a judgment on a petition for disqualification is relatively less extensive. First, the effect of a judgment thereon is limited to preventing a candidate from continuing his participation in the electoral race or, if already proclaimed, to unseat from public office. Second, the judgment takes effect only upon finality which can occur either before or after the elections. If the judgment became final before the elections, the effect is similar to the cancellation of a COC. However, if the judgment became final after the elections, he is still considered an official candidate and may even be proclaimed winner should he receive the highest number of votes in the elections. In the event that he is finally ousted out of office, Section 44 of the LGC will govern the succession into the vacated office. Relating the foregoing principle to the instant case, Lonzanida is still considered an official candidate in the May 2010 elections notwithstanding the pendency of the disqualification case against him. The mere pendency of a disqualification case against him is not sufficient to deprive him of the right to be voted for because the law requires no less than a final judgment of disqualification. Consequently, the COMELEC should not have ordered for the proclamation Antipolo as Mayor of San Antonio, Zambales. It is well-settled that the disqualification of the winning candidate does not give the candidate who garnered the second highest number of votes the right to be proclaimed to the vacated post. In Aquino v. Commission on Elections,21 we had the occasion to explicate the rationale behind this doctrine. Thus: To contend that Syjuco should be proclaimed because he was the "first" among the qualified candidates in the May 8, 1995 elections is to misconstrue the nature of the democratic electoral process and the sociological and psychological underpinnings behind voters’ preferences. The result suggested by private respondent would lead not only to our reversing the doctrines firmly entrenched in the two cases of Labo vs. Comelec but also to a massive disenfranchisement of the thousands of voters who cast their vote in favor of a candidate they believed could be validly voted for during the elections. Had petitioner been disqualified before the elections, the choice, moreover, would have been different. The votes for Aquino given the acrimony which attended the campaign, would not have automatically gone to second placer Syjuco. The nature of the playing field would have substantially changed. To simplistically assume that the second placer would have received the other votes would be

to substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates because in a field which excludes the disqualified candidate, the conditions would have substantially changed. We are not prepared to extrapolate the results under such circumstances.22 (Citation omitted) xxxx We cannot, in another shift of the pendulum, subscribe to the contention that the runner-up in an election in which the winner has been disqualified is actually the winner among the remaining qualified candidates because this clearly represents a minority view supported only by a scattered number of obscure American state and English court decisions. These decisions neglect the possibility that the runner-up, though obviously qualified, could receive votes so measly and insignificant in number that the votes they receive would be tantamount to rejection. Theoretically, the "second placer" could receive just one vote. In such a case, it is absurd to proclaim the totally repudiated candidate as the voters’ "choice." Moreover, even in instances where the votes received by the second placer may not be considered numerically insignificant, voters preferences are nonetheless so volatile and unpredictable that the result among qualified candidates, should the equation change because of the disqualification of an ineligible candidate, would not be selfevident. Absence of the apparent though ineligible winner among the choices could lead to a shifting of votes to candidates other than the second placer. By any mathematical formulation, the runner-up in an election cannot be construed to have obtained a majority or plurality of votes cast where an "ineligible" candidate has garnered either a majority or plurality of the votes.23 (Citation omitted) Apparently, in its Resolution dated February 2, 2011, the COMELEC submits to the general rule that the second placer in the elections does not assume the post vacated by the winning candidate in the event that a final judgment of disqualification is rendered against the latter. However, it posits that the notoriety of Lonzanida’s disqualification and ineligibility to hold public office distinguishes the instant case from the throng of related cases upholding the doctrine. It anchored its ruling in the pronouncement we made in Labo, Jr. v. Commission on Elections,24 to wit: The rule would have been different if the electorate fully aware in fact and in law of a candidate’s disqualification so as to bring such awareness within the realm of notoriety, would nonetheless cast their votes in favor of the ineligible

candidate. In such case, the electorate may be said to have waived the validity and efficacy of their votes by notoriously misapplying their franchise or throwing away their votes, in which case, the eligible candidate obtaining the next higher number of votes may be deemed elected.25 The exception is predicated on the concurrence of two assumptions, namely: (1) the one who obtained the highest number of votes is disqualified; and (2) the electorate is fully aware in fact and in law of a candidate’s disqualification so as to bring such awareness within the realm of notoriety but nonetheless cast their votes in favor of the ineligible candidate. These assumptions however do not obtain in the present case. The COMELEC’s asseveration that the electorate of San Antonio, Zambales was fully aware of Lonzanida’s disqualification is purely speculative and conjectural.26 No evidence was ever presented to prove the character of Lonzanida’s disqualification particularly the fact that the voting populace was "fully aware in fact and in law" of Lonzanida’s alleged disqualification as to "bring such awareness within the realm of notoriety," in other words, that the voters intentionally wasted their ballots knowing that, in spite of their voting for him, he was ineligible.27 Therefore, it is an error for the COMELEC to apply the exception in Labo when the operative facts upon which its application depends are wanting. Finally, as regards the question on who should rightfully fill the permanent vacancy created in the office of the mayor, Section 44 of the LGC explicitly states: Sec. 44. Permanent Vacancies in the Offices of the Governor, ViceGovernor, Mayor, and Vice-Mayor. - If a permanent vacancy occurs in the office of the governor or mayor, the vice-governor or vice-mayor concerned shall become the governor or mayor. x x x. The law is couched without equivocation. In the event that a vacancy IS created in the office of the mayor, it is the duly-elected vice-mayor, petitioner Aratea in this case, who shall succeed as mayor. Clearly then, the COMELEC gravely abused its discretion in disregarding the law and established jurisprudence governing succession to local elective position and proclaiming private respondent Antipolo, a defeated candidate who received the second highest number of votes, as Mayor of San Antonio, Zambales. In view of the foregoing disquisitions, I respectfully vote to GRANT the petition. Necessarily, the Order dated January 12, 2011 and Resolution dated February 2, 2011 issued by public respondent Commission on Elections in SPA No. 09-158 (DC) should be REVERSED and SET ASIDE and private respondent Estela D. Antipolo's proclamation should

be ANNULLED. Petitioner Efren Racel Aratea, being the duly-elected ViceMayor, should be proclaimed Mayor of San Antonio, Zambales pursuant to the rule on succession under Section 44 of the Local Government Code of 1991. BIENVENIDO L. REYES Associate Justice G.R. No. 181613 November 25, 2009 ROSALINDA A. PENERA, Petitioner, vs. COMMISSION ON ELECTIONS and EDGAR T. ANDANAR, Respondents. RESOLUTION CARPIO, J.: We grant Rosalinda A. Penera’s (Penera) motion for reconsideration of this Court’s Decision of 11 September 2009 (Decision). The assailed Decision dismissed Penera’s petition and affirmed the Resolution dated 30 July 2008 of the COMELEC En Banc as well as the Resolution dated 24 July 2007 of the COMELEC Second Division. The Decision disqualified Penera from running for the office of Mayor in Sta. Monica, Surigao del Norte and declared that the Vice-Mayor should succeed Penera. In support of her motion for reconsideration, Penera submits the following arguments: 1. Penera was not yet a candidate at the time of the incident under Section 11 of RA 8436 as amended by Section 13 of RA 9369. 2. The petition for disqualification failed to submit convincing and substantial evidence against Penera for violation of Section 80 of the Omnibus Election Code. 3. Penera never admitted the allegations of the petition for disqualification and has consistently disputed the charge of premature campaigning. 4. The admission that Penera participated in a motorcade is not the same as admitting she engaged in premature election campaigning. Section 79(a) of the Omnibus Election Code defines a "candidate" as "any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy x x x." The second sentence, third paragraph, Section 15 of RA 8436, as amended by Section 13 of RA 9369, provides that "[a]ny person who files his certificate of candidacy within [the period for filing] shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy." The immediately succeeding proviso in the same third paragraph states that "unlawful acts or omissions

applicable to a candidate shall take effect only upon the start of the aforesaid campaign period." These two provisions determine the resolution of this case. The Decision states that "[w]hen the campaign period starts and [the person who filed his certificate of candidacy] proceeds with his/her candidacy, his/her intent turning into actuality, we can already consider his/her acts, after the filing of his/her COC and prior to the campaign period, as the promotion of his/her election as a candidate, hence, constituting premature campaigning, for which he/she may be disqualified."1 Under the Decision, a candidate may already be liable for premature campaigning after the filing of the certificate of candidacy but even before the start of the campaign period. From the filing of the certificate of candidacy, even long before the start of the campaign period, the Decision considers the partisan political acts of a person so filing a certificate of candidacy "as the promotion of his/her election as a candidate." Thus, such person can be disqualified for premature campaigning for acts done before the start of the campaign period. In short, the Decision considers a person who files a certificate of candidacy already a "candidate" even before the start of the campaign period. lawphil The assailed Decision is contrary to the clear intent and letter of the law. The Decision reverses Lanot v. COMELEC,2 which held that a person who files a certificate of candidacy is not a candidate until the start of the campaign period. In Lanot, this Court explained: Thus, the essential elements for violation of Section 80 of the Omnibus Election Code are: (1) a person engages in an election campaign or partisan political activity; (2) the act is designed to promote the election or defeat of a particular candidate or candidates; (3) the act is done outside the campaign period. The second element requires the existence of a "candidate." Under Section 79(a), a candidate is one who "has filed a certificate of candidacy" to an elective public office. Unless one has filed his certificate of candidacy, he is not a "candidate." The third element requires that the campaign period has not started when the election campaign or partisan political activity is committed. Assuming that all candidates to a public office file their certificates of candidacy on the last day, which under Section 75 of the Omnibus Election Code is the day before the start of the campaign period, then no one can be prosecuted for violation of Section 80 for acts done prior to such last day. Before such last day, there is no "particular candidate or candidates" to campaign for or against. On the day immediately after the last day of filing, the

campaign period starts and Section 80 ceases to apply since Section 80 covers only acts done "outside" the campaign period. Thus, if all candidates file their certificates of candidacy on the last day, Section 80 may only apply to acts done on such last day, which is before the start of the campaign period and after at least one candidate has filed his certificate of candidacy. This is perhaps the reason why those running for elective public office usually file their certificates of candidacy on the last day or close to the last day. There is no dispute that Eusebio’s acts of election campaigning or partisan political activities were committed outside of the campaign period. The only question is whether Eusebio, who filed his certificate of candidacy on 29 December 2003, was a "candidate" when he committed those acts before the start of the campaign period on 24 March 2004. Section 11 of Republic Act No. 8436 ("RA 8436") moved the deadline for the filing of certificates of candidacy to 120 days before election day. Thus, the original deadline was moved from 23 March 2004 to 2 January 2004, or 81 days earlier. The crucial question is: did this change in the deadline for filing the certificate of candidacy make one who filed his certificate of candidacy before 2 January 2004 immediately liable for violation of Section 80 if he engaged in election campaign or partisan political activities prior to the start of the campaign period on 24 March 2004? Section 11 of RA 8436 provides: SECTION 11. Official Ballot. – The Commission shall prescribe the size and form of the official ballot which shall contain the titles of the positions to be filled and/or the propositions to be voted upon in an initiative, referendum or plebiscite. Under each position, the names of candidates shall be arranged alphabetically by surname and uniformly printed using the same type size. A fixed space where the chairman of the Board of Election Inspectors shall affix his/her signature to authenticate the official ballot shall be provided. Both sides of the ballots may be used when necessary. For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/ manifestation to participate in the election shall not be later than one hundred twenty (120) days before the elections: Provided, That, any elective official, whether national or local, running for any office other than the one which he/she is holding in a permanent capacity, except for president and vice-president, shall be deemed resigned only upon the start of the campaign period corresponding to the position for which he/she is running: Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period: Provided,

finally, That, for purposes of the May 11, 1998 elections, the deadline for filing of the certificate of candidacy for the positions of President, Vice-President, Senators and candidates under the party-list system as well as petitions for registration and/or manifestation to participate in the party-list system shall be on February 9, 1998 while the deadline for the filing of certificate of candidacy for other positions shall be on March 27, 1998. The official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas at the price comparable with that of private printers under proper security measures which the Commission shall adopt. The Commission may contract the services of private printers upon certification by the National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the printing requirements. Accredited political parties and deputized citizens’ arms of the Commission may assign watchers in the printing, storage and distribution of official ballots. To prevent the use of fake ballots, the Commission through the Committee shall ensure that the serial number on the ballot stub shall be printed in magnetic ink that shall be easily detectable by inexpensive hardware and shall be impossible to reproduce on a photocopying machine, and that identification marks, magnetic strips, bar codes and other technical and security markings, are provided on the ballot. The official ballots shall be printed and distributed to each city/municipality at the rate of one (1) ballot for every registered voter with a provision of additional four (4) ballots per precinct. Under Section 11 of RA 8436, the only purpose for the early filing of certificates of candidacy is to give ample time for the printing of official ballots. This is clear from the following deliberations of the Bicameral Conference Committee: SENATOR GONZALES. Okay. Then, how about the campaign period, would it be the same[,] uniform for local and national officials? THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree to retaining it at the present periods. SENATOR GONZALES. But the moment one files a certificate of candidacy, he’s already a candidate, and there are many prohibited acts on the part of candidate. THE CHAIRMAN (REP. TANJUATCO). Unless we. . . . SENATOR GONZALES. And you cannot say that the campaign period has not yet began (sic). THE CHAIRMAN (REP. TANJUATCO). If we don’t provide that the filing of the certificate will not bring about one’s being a candidate.

SENATOR GONZALES. If that’s a fact, the law cannot change a fact. THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide that the filing of the certificate of candidacy will not result in that official vacating his position, we can also provide that insofar he is concerned, election period or his being a candidate will not yet commence. Because here, the reason why we are doing an early filing is to afford enough time to prepare this machine readable ballots. So, with the manifestations from the Commission on Elections, Mr. Chairman, the House Panel will withdraw its proposal and will agree to the 120-day period provided in the Senate version. THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr. Chairman. xxxx SENATOR GONZALES. How about prohibition against campaigning or doing partisan acts which apply immediately upon being a candidate? THE CHAIRMAN (REP. TANJUATCO). Again, since the intention of this provision is just to afford the Comelec enough time to print the ballots, this provision does not intend to change the campaign periods as presently, or rather election periods as presently fixed by existing law. THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be subject to the other prohibition. THE CHAIRMAN (REP. TANJUATCO). That’s right. THE ACTING CHAIRMAN (SEN. FERNAN). Okay. THE CHAIRMAN (REP. TANJUATCO). In other words, actually, there would be no conflict anymore because we are talking about the 120-day period before election as the last day of filing a certificate of candidacy, election period starts 120 days also. So that is election period already. But he will still not be considered as a candidate. Thus, because of the early deadline of 2 January 2004 for purposes of printing of official ballots, Eusebio filed his certificate of candidacy on 29 December 2003. Congress, however, never intended the filing of a certificate of candidacy before 2 January 2004 to make the person filing to become immediately a "candidate" for purposes other than the printing of ballots. This legislative intent prevents the immediate application of Section 80 of the Omnibus Election Code to those filing to meet the early deadline. The clear intention of Congress was to preserve the "election periods as x x x fixed by existing law" prior to RA 8436 and that one who files to meet the early deadline "will still not be considered as a candidate."3 (Emphasis in the original)

Lanot was decided on the ground that one who files a certificate of candidacy is not a candidate until the start of the campaign period. This ground was based on the deliberations of the legislators who explained the intent of the provisions of RA 8436, which laid the legal framework for an automated election system. There was no express provision in the original RA 8436 stating that one who files a certificate of candidacy is not a candidate until the start of the campaign period. When Congress amended RA 8436, Congress decided to expressly incorporate the Lanot doctrine into law, realizing that Lanot merely relied on the deliberations of Congress in holding that — The clear intention of Congress was to preserve the "election periods as x x x fixed by existing law" prior to RA 8436 and that one who files to meet the early deadline "will still not be considered as a candidate."4 (Emphasis supplied) Congress wanted to insure that no person filing a certificate of candidacy under the early deadline required by the automated election system would be disqualified or penalized for any partisan political act done before the start of the campaign period. Thus, in enacting RA 9369, Congress expressly wrote the Lanot doctrine into the second sentence, third paragraph of the amended Section 15 of RA 8436, thus: xxx For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition for registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers and employees in government-owned or -controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certificate of candidacy. (Boldfacing and underlining supplied) Congress elevated the Lanot doctrine into a statute by specifically inserting it as the second sentence of the third paragraph of the amended Section 15 of RA 8436, which cannot be annulled by this Court except on the sole ground of its unconstitutionality. The Decision cannot reverse Lanot without repealing this second sentence, because to reverse Lanot would mean repealing this second sentence.

The assailed Decision, however, in reversing Lanot does not claim that this second sentence or any portion of Section 15 of RA 8436, as amended by RA 9369, is unconstitutional. In fact, the Decision considers the entire Section 15 good law. Thus, the Decision is self-contradictory — reversing Lanot but maintaining the constitutionality of the second sentence, which embodies the Lanot doctrine. In so doing, the Decision is irreconcilably in conflict with the clear intent and letter of the second sentence, third paragraph, Section 15 of RA 8436, as amended by RA 9369. In enacting RA 9369, Congress even further clarified the first proviso in the third paragraph of Section 15 of RA 8436. The original provision in RA 8436 states — x x x Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period, x x x. In RA 9369, Congress inserted the word "only" so that the first proviso now reads — x x x Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period x x x. (Emphasis supplied) Thus, Congress not only reiterated but also strengthened its mandatory directive that election offenses can be committed by a candidate "only" upon the start of the campaign period. This clearly means that before the start of the campaign period, such election offenses cannot be so committed. When the applicable provisions of RA 8436, as amended by RA 9369, are read together, these provisions of law do not consider Penera a candidate for purposes other than the printing of ballots, until the start of the campaign period. There is absolutely no room for any other interpretation. We quote with approval the Dissenting Opinion of Justice Antonio T. Carpio: x x x The definition of a "candidate" in Section 79(a) of the Omnibus Election Code should be read together with the amended Section 15 of RA 8436. A "‘candidate’ refers to any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy by himself or through an accredited political party, aggroupment or coalition of parties." However, it is no longer enough to merely file a certificate of candidacy for a person to be considered a candidate because "any person who files his certificate of candidacy within [the filing] period shall only be considered a candidate at the start of the campaign period for which he filed his certificate of candidacy." Any person may thus file a certificate of candidacy on any day within the prescribed period for filing a certificate of candidacy yet that person shall be

considered a candidate, for purposes of determining one’s possible violations of election laws, only during the campaign period. Indeed, there is no "election campaign" or "partisan political activity" designed to promote the election or defeat of a particular candidate or candidates to public office simply because there is no "candidate" to speak of prior to the start of the campaign period. Therefore, despite the filing of her certificate of candidacy, the law does not consider Penera a candidate at the time of the questioned motorcade which was conducted a day before the start of the campaign period. x x x The campaign period for local officials began on 30 March 2007 and ended on 12 May 2007. Penera filed her certificate of candidacy on 29 March 2007. Penera was thus a candidate on 29 March 2009 only for purposes of printing the ballots. On 29 March 2007, the law still did not consider Penera a candidate for purposes other than the printing of ballots. Acts committed by Penera prior to 30 March 2007, the date when she became a "candidate," even if constituting election campaigning or partisan political activities, are not punishable under Section 80 of the Omnibus Election Code. Such acts are within the realm of a citizen’s protected freedom of expression. Acts committed by Penera within the campaign period are not covered by Section 80 as Section 80 punishes only acts outside the campaign period.5 The assailed Decision gives a specious reason in explaining away the first proviso in the third paragraph, the amended Section 15 of RA 8436 that election offenses applicable to candidates take effect only upon the start of the campaign period. The Decision states that: x x x [T]he line in Section 15 of Republic Act No. 8436, as amended, which provides that "any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period," does not mean that the acts constituting premature campaigning can only be committed, for which the offender may be disqualified, during the campaign period. Contrary to the pronouncement in the dissent, nowhere in said proviso was it stated that campaigning before the start of the campaign period is lawful, such that the offender may freely carry out the same with impunity. As previously established, a person, after filing his/her COC but prior to his/her becoming a candidate (thus, prior to the start of the campaign period), can already commit the acts described under Section 79(b) of the Omnibus Election Code as election campaign or partisan political activity, However, only after said person officially becomes a candidate, at the beginning of the campaign period, can said acts be given effect as premature campaigning under Section 80 of the Omnibus Election Code. Only after said person officially becomes a candidate, at the start of the campaign period, can his/her

disqualification be sought for acts constituting premature campaigning. Obviously, it is only at the start of the campaign period, when the person officially becomes a candidate, that the undue and iniquitous advantages of his/her prior acts, constituting premature campaigning, shall accrue to his/her benefit. Compared to the other candidates who are only about to begin their election campaign, a candidate who had previously engaged in premature campaigning already enjoys an unfair headstart in promoting his/her candidacy.6(Emphasis supplied) It is a basic principle of law that any act is lawful unless expressly declared unlawful by law. This is specially true to expression or speech, which Congress cannot outlaw except on very narrow grounds involving clear, present and imminent danger to the State. The mere fact that the law does not declare an act unlawful ipso facto means that the act is lawful. Thus, there is no need for Congress to declare in Section 15 of RA 8436, as amended by RA 9369, that political partisan activities before the start of the campaign period are lawful. It is sufficient for Congress to state that "any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period." The only inescapable and logical result is that the same acts, if done before the start of the campaign period, are lawful. In layman’s language, this means that a candidate is liable for an election offense only for acts done during the campaign period, not before. The law is clear as daylight — any election offense that may be committed by a candidate under any election law cannot be committed before the start of the campaign period. In ruling that Penera is liable for premature campaigning for partisan political acts before the start of the campaigning, the assailed Decision ignores the clear and express provision of the law. The Decision rationalizes that a candidate who commits premature campaigning can be disqualified or prosecuted only after the start of the campaign period. This is not what the law says. What the law says is "any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period." The plain meaning of this provision is that the effective date when partisan political acts become unlawful as to a candidate is when the campaign period starts. Before the start of the campaign period, the same partisan political acts are lawful. The law does not state, as the assailed Decision asserts, that partisan political acts done by a candidate before the campaign period are unlawful, but may be prosecuted only upon the start of the campaign period. Neither does the law state that partisan political acts done by a candidate before the campaign period are temporarily lawful, but becomes unlawful upon the start of the

campaign period. This is clearly not the language of the law. Besides, such a law as envisioned in the Decision, which defines a criminal act and curtails freedom of expression and speech, would be void for vagueness. Congress has laid down the law — a candidate is liable for election offenses only upon the start of the campaign period. This Court has no power to ignore the clear and express mandate of the law that "any person who files his certificate of candidacy within [the filing] period shall only be considered a candidate at the start of the campaign period for which he filed his certificate of candidacy." Neither can this Court turn a blind eye to the express and clear language of the law that "any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period." The forum for examining the wisdom of the law, and enacting remedial measures, is not this Court but the Legislature. This Court has no recourse but to apply a law that is as clear, concise and express as the second sentence, and its immediately succeeding proviso, as written in the third paragraph of Section 15 of RA 8436, as amended by RA 9369. WHEREFORE, we GRANT petitioner Rosalinda A. Penera’s Motion for Reconsideration. We SET ASIDE the Decision of this Court in G.R. No. 181613 promulgated on 11 September 2009, as well as the Resolutions dated 24 July 2007 and 30 January 2008 of the COMELEC Second Division and the COMELEC En Banc, respectively, in SPA No. 07-224. Rosalinda A. Penera shall continue as Mayor of Sta. Monica, Surigao del Norte. SO ORDERED. ANTONIO T. CARPIO Associate Justice WE CONCUR: REYNATO S. PUNO Chief Justice RENATO C. Associate Justice

CORONA CONCHITA CARPIO MORALES Associate Justice

MINITA V. CHICO-NAZARIO PRESBITERO J. VELASCO, JR. Associate Justice Associate Justice ANTONIO EDUARDO NACHURA Associate Justice ARTURO

D.

B. TERESITA J. LEONARDO-DE CASTRO Associate Justice BRION DIOSDADO

M.

PERALTA

Associate Justice LUCAS P. Associate Justice ROBERTO A. Associate Justice

Associate Justice BERSAMIN MARIANO C. DEL CASTILLO Associate Justice ABAD MARTIN S. VILLARAMA, JR. Associate Justice

CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court. REYNATO S. PUNO Chief Justice Footnotes 1 Decision, p. 23 (Boldfacing and underscoring supplied). 2 G.R. No. 164858, 16 November 2006, 507 SCRA 114. 3 Id. at 147-152. 4 Id. at 152. 5 Dissenting Opinion of Justice Antonio T. Carpio, pp. 4-6. 6 Decision, p. 24. The Lawphil Project - Arellano Law Foundation DISSENTING OPINION CHICO-NAZARIO, J.: On 11 September 2009, the Court rendered a Decision in the instant case disqualifying Rosalinda A. Penera from running as Mayor of Sta. Monica, Surigao Del Norte for engaging in the prohibited act of premature campaigning. Penera forthwith filed a Motion for Reconsideration1 of the above Decision, invoking the following arguments, to wit: 1) Penera was not yet a candidate at the time of the incident under Section 11 of Republic Act No. 8436, as amended by Section 13 of Republic Act No. 9369.2 2) Section 80 of the Omnibus Election Code was expressly repealed by Republic Act No. 9369.3

3) The petition for disqualification failed to submit convincing and substantial evidence against Penera for violation of Section 80 of the Omnibus Election Code.4 4) Penera never admitted the allegations of the petition for disqualification and has consistently disputed the charge of premature campaigning.5 5) The admission that Penera participated in a motorcade is not the same as admitting she engaged in premature election campaigning.6 I vote to deny the Motion for Reconsideration. Penera’s Motion for Reconsideration The basic issues in the Motion for Reconsideration were already passed upon in the Decision dated 11 September 2009 and no substantial arguments were raised. The grounds that: (1) Penera was not yet a candidate at the time of the incident under Section 11 of Republic Act No. 8436, as amended by Section 13 of Republic Act No. 9369; (2) Section 80 of the Omnibus Election Code was expressly repealed by Republic Act No. 9369; and (3) the petition for disqualification failed to submit convincing and substantial evidence against Penera for violation of Section 80 of the Omnibus Election Code are all reiterations of her previous arguments before the Court and the same had already been adequately addressed in the Decision dated 11 September 2009. Incidentally, Penera herself disclosed in her Motion for Reconsideration that she is the respondent in a criminal case filed by Edgar T. Andanar for the commission of election offenses in violation of the Omnibus Election Code, which is docketed as EO Case No. 08-99.7 Thus, the pronouncement in the Decision dated 11 September 2009 that the instant case should concern only the electoral aspect of the disqualification case finds more reason. As noted in the Decision, any discussion on the matter of Penera’s criminal liability for premature campaigning would have been preemptive and nothing more than obiter dictum. With respect to the assertion that Penera never admitted the allegations of the petition for disqualification and has consistently disputed the charge of premature campaigning, the same is utterly without merit. Penera admitted participating in the motorcade after filing her COC. What she merely denied and/or refuted were the minor details concerning the conduct of said motorcade. Likewise, Penera’s contention that her admission of participating in the motorcade in this case is not the same as admitting that she engaged in premature campaigning deserves scant consideration. Logically, to admit to

the elements constituting the offense of premature campaigning is to admit to the commission of the said offense. Precisely, it is the act of participating in the motorcade after the filing of her COC that constituted the prohibited act of premature campaigning in the instant case. Finally, the claim of Penera that not all motorcades are designed to promote the election of a candidate is unimpressive. Clearly, the context of the discussion on motorcades in the Decision dated 11 September 2009 was disregarded. The discussion pertained to motorcades conducted during election periods by candidates and their supporters. In such an instance, a motorcade assumes an entirely different significance and that is to promote a candidate. As held in the Decision dated 11 September 2009, the conduct of a motorcade during election periods is a form of election campaign or partisan political activity, falling squarely within the ambit of Section 79(b)(2) of the Omnibus Election Code, on "[h]olding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate[.]" The obvious purpose of the conduct of motorcades during election periods is to introduce the candidates and the positions to which they seek to be elected to the voting public; or to make them more visible so as to facilitate the recognition and recollection of their names in the minds of the voters come election time. The pretense that the motorcade was only a convoy of vehicles, which was entirely an unplanned event that dispersed eventually, does not hold water. After filing their certificates of candidacy, Rosalinda Penera and the other members of her political party conducted a motorcade and went around the different barangays in the municipality of Sta. Monica, Surigao Del Norte. The motorcade consisted of two (2) jeepneys and ten (10) motorcycles, which were all festooned with multi-colored balloons. There was marching music being played on the background and the individuals onboard the vehicles threw candies to the people they passed by along the streets. With the number of vehicles, the balloons, the background marching music, the candies on hand and the route that took them to the different barangays, the motorcade could hardly be considered as spontaneous and unplanned. Majority Opinion Although the majority opinion initially mentions the above-stated grounds of Penera’s Motion for Reconsideration, the same were not at all discussed. The Resolution of the majority purely involves an exposition of the grounds set

forth in the Dissenting Opinion of Justice Antonio T. Carpio to the Decision dated 11 September 2009. At the outset, the majority opinion highlights the relevant provisions of law defining the meaning of a candidate. Under Section 79(a) of the Omnibus Election Code, a candidate is "any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy by himself or through an accredited political party, aggroupment, or coalition of parties." On the other hand, the second sentence in the third paragraph of Section 15 of Republic Act No. 8436, as amended by Republic Act No. 9369, states that "[a]ny person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy." The first proviso in the same paragraph provides that "unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period." The majority opinion goes on to quote a paragraph in the Decision dated 11 September 2009, underscoring a portion of the same as follows: When the campaign period starts and said person proceeds with his/her candidacy, his/her intent turning into actuality, we can already consider his/her acts, after the filing of his/her [certificate of candidacy (COC)] and prior to the campaign period, as the promotion of his/her election as a candidate, hence, constituting premature campaigning, for which he/she may be disqualified. According to the interpretation of the majority of the above pronouncement, the Decision dated 11 September 2009 already considers a person who filed a COC a "candidate" even before the start of the campaign period. From the filing of the COC, even before the start of the campaign period, the ponente allegedly considers the partisan political acts of a person filing a COC "as the promotion of his/her election as a candidate." The majority clearly mistook the import of the above-quoted portion and read the same out of context. Absolutely nowhere in the Decision dated 11 September 2009 was it stated that a person who filed a COC is already deemed a candidate even before the start of the campaign period. To recall, the Court held in its Decision that Section 80 of the Omnibus Election Code, which defines the prohibited act of premature campaigning, was not repealed, expressly or impliedly, by Section 15 of Republic Act No. 8436, as amended. Section 80 of the Omnibus Election Code reads:

SECTION 80. Election campaign or partisan political activity outside campaign period. — It shall be unlawful for any person, whether or not a voter or candidate, or for any party, or association of persons, to engage in an election campaign or partisan political activity except during the campaign period: x x x. While relevant portions of Section 15 of Republic Act No. 8436, as amended by Republic Act No. 9369, provide: SECTION.15. Official Ballot. – x x x xxxx For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition of registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period[.] The Court harmonized and reconciled the above provisions in this wise: The following points are explanatory: First, Section 80 of the Omnibus Election Code, on premature campaigning, explicitly provides that "[i]t shall be unlawful for any person, whether or not a voter or candidate, or for any party, or association of persons, to engage in an election campaign or partisan political activity, except during the campaign period." Very simply, premature campaigning may be committed even by a person who is not a candidate. For this reason, the plain declaration in Lanot that "[w]hat Section 80 of the Omnibus Election Code prohibits is ‘an election campaign or partisan political activity’ by a ‘candidate’ ‘outside’ of the campaign period," is clearly erroneous. Second, Section 79(b) of the Omnibus Election Code defines election campaign or partisan political activity in the following manner: SECTION 79. Definitions. - As used in this Code: xxxx (b) The term "election campaign" or "partisan political activity" refers to an act designed to promote the election or defeat of a particular candidate or candidates to a public office which shall include: (1) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate;

(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate; (3) Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate for public office; (4) Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate; or (5) Directly or indirectly soliciting votes, pledges or support for or against a candidate. True, that pursuant to Section 15 of Republic Act No. 8436, as amended, even after the filing of the COC but before the start of the campaign period, a person is not yet officially considered a candidate. Nevertheless, a person, upon the filing of his/her COC, already explicitly declares his/her intention to run as a candidate in the coming elections. The commission by such a person of any of the acts enumerated under Section 79(b) of the Omnibus Election Code (i.e., holding rallies or parades, making speeches, etc.) can, thus, be logically and reasonably construed as for the purpose of promoting his/her intended candidacy. When the campaign period starts and said person proceeds with his/her candidacy, his/her intent turning into actuality, we can already consider his/her acts, after the filing of his/her COC and prior to the campaign period, as the promotion of his/her election as a candidate, hence, constituting premature campaigning, for which he/she may be disqualified. x x x (Underscoring supplied.) The last paragraph of the aforequoted portion of the Decision dated 11 September 2009 should be read together with, and qualified by, the paragraph immediately preceding it. Clearly, the ponente was quite explicit in stating that, after the filing of the COC but before the start of the campaign period, a person is not yet considered a candidate. After filing the COC, however, the commission by such person of the acts enumerated under Section 79(b) of the Omnibus Election Code can already be construed as being for the purpose of promoting his/her intended candidacy. Thereafter, it is only at the start of the campaign period, when said person is already a formal candidate, that the partisan political acts that he/she committed after the filing of the COC can already be considered as being for the promotion of his/her election as a candidate; hence, constituting premature campaigning. Reversal of Lanot v. Commission on Elections

The majority likewise ascribes error on the part of the ponente for reversing Lanot, which held that a person should be a candidate before premature campaigning may be committed. Resolved under the auspices of Republic Act No. 8436,8 the previous automation law, Lanot was allegedly decided on the ground that one who files a COC is not a candidate until the start of the campaign period. Supposably, Congress wanted to ensure that any person filing a COC under the early deadline required by the automated election system would not be disqualified for any partisan political act done prior to the start of the campaign period. In enacting Republic Act No. 9369, Congress expressly wrote the Lanot doctrine into the second sentence, third paragraph, Sec. 15 of Republic Act No. 8436, which states that "[a]ny person who files his certificate of candidacy within [the period for filing COCs] shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy." The majority, therefore, concludes that the ponente cannot reverse Lanot without repealing the above sentence, since to reverse Lanot would mean repealing the said sentence. The ponente, however, in reversing Lanot does not claim that the second sentence or any portion of Section 15 of RA 8436, as amended by RA 9369, is unconstitutional. Thus, the Decision dated 11 September 2009 is supposedly self-contradictory – reversing Lanot but maintaining the constitutionality of the second sentence, which embodies the Lanot doctrine. In so doing, the majority avers that the majority decision is irreconcilably in conflict with the clear intent and letter of the second sentence, third paragraph of Section 15 of Republic Act No. 8436, as amended by Republic Act No. 9369. The majority opinion arrives at an erroneous conclusion based on a faulty premise. Lanot was decided on the basis of the requirement therein that there must be first a candidate before the prohibited act of premature campaigning may be committed. In Lanot v. Commission on Elections,9 Lanot, et al., filed a petition for disqualification against the then Pasig City mayoralty candidate Vicente P. Eusebio for engaging in various forms of election campaign on different occasions outside of the designated campaign period after he filed his COC during the 2004 local elections. The Commission on Elections (COMELEC) Law Department recommended the disqualification of Eusebio for violation of Section 80 of the Omnibus Election Code, which recommendation was approved by the COMELEC First Division. The COMELEC en banc referred the

case back to the COMELEC Law Department to determine whether Eusebio actually committed the acts subject of the petition for disqualification. The Court, speaking through Justice Carpio, adjudged that Eusebio was not liable for premature campaigning given that the latter committed partisan political acts before he became a candidate. The Court construed the application of Section 11 of Republic Act No. 8463 vis-à-vis the provisions of Sections 80 and 79(a) of the Omnibus Election Code. Section 11 of Republic Act No. 8436 moved the deadline for the filing of certificates of candidacy to 120 days before election day. The Court ruled that the only purpose for the early filing of COCs was to give ample time for the printing of official ballots. Congress, however, never intended the early filing of a COC to make the person filing to become immediately a "candidate" for purposes other than the printing of ballots. This legislative intent prevented the immediate application of Section 80 of the Omnibus Election Code to those filing to meet the early deadline. The clear intention of Congress was to preserve the "election periods as x x x fixed by existing law" prior to Republic Act No. 8436 and that one who files to meet the early deadline "will still not be considered as a candidate."10 Simply stated, the Court adjudged in Lanot that when Eusebio filed his COC to meet the early deadline set by COMELEC, he did not thereby immediately become a candidate. Thus, there was no premature campaigning since there was no candidate to begin with. It is on this ground that the majority reversed Lanot. The ponente reiterates that the existence of a candidate is not necessary before premature campaigning may be committed. Section 80 of the Omnibus Election Code unequivocally provides that "[i]t shall be unlawful for any person, whether or not a voter or candidate, or for any party, or association of persons, to engage in an election campaign or partisan political activity, except during the campaign period." Very specific are the wordings of the law that the individual who may be held liable to commit the unlawful act of premature campaigning can be any person: a voter or non-voter, a candidate or a non-candidate. Furthermore, as already previously discussed, Section 80 of the Omnibus Election Code was not repealed by Section 15 of RA 8436, as amended by RA 9369. In construing the said provisions, as well as that of Section 79(a) of the Omnibus Election Code, which defines the meaning of the term candidate, the majority has settled that, after the filing of the COC but before the start of the campaign period, a person is yet to be considered a formal candidate. Nonetheless, by filing the COC, the person categorically and explicitly declares

his/her intention to run as a candidate. Thereafter, if such person commits the acts enumerated under Section 79(b) of the Omnibus Election Code, said acts can already be construed as for the purpose of promoting his/her intended candidacy.1avvphi1 Thus, contrary to the majority opinion, the Decision dated 11 September 2009 is not self-contradictory. The ponente can reverse Lanot and still uphold the second sentence, third paragraph of Section 15 of Republic Act No. 8436, as amended. The majority also stresses that in the enactment of Republic Act No. 9369, Congress inserted the word "only" to the first proviso in the third paragraph of Section 11 of Republic Act No. 8436 so that the same now reads: Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period. Thus, Congress even strengthened its mandatory directive that election offenses can be committed by a candidate "only" upon the start of the campaign period. Accusing the ponente of giving a specious reasoning in explaining the above proviso, the majority points out to the basic principle of law that any act is lawful, unless expressly declared as unlawful. Therefore, the majority claims that there was no need for Congress to declare in Section 15 of Republic Act No. 8436, as amended, that partisan political activities before the start of the campaign period are lawful. The logical conclusion is that partisan political acts, if done before the start of the campaign period, are lawful. According to the majority, any election offense that may be committed by a candidate under any election law cannot be committed before the start of the campaign period. The ponente takes exception to the above sweeping and unwarranted reasoning. Not all election offenses are required to be committed by a candidate and, like the prohibited act of premature campaigning, not all election offenses are required to be committed after the start of the campaign period. To reiterate, Section 80 of the Omnibus Election Code, which defines the prohibited act of premature campaigning is still good law despite the passage of Section 15 of Republic Act No. 8436, as amended. Precisely, the conduct of election campaign or partisan political activity before the campaign period is the very evil that Section 80 seeks to prevent. The majority opinion maintains its objection to the allegedly strained construction and/or interpretation of the ponente of the particular provisions involved in this case. With equal vehemence, however, the ponente adamantly rejects the majority’s absurd and unwarranted theory of repeal of Section 80

of the Omnibus Election Code put forth in both the Dissenting Opinion to the Decision dated 11 September 2009 and the Resolution of the majority. As the majority repeatedly pointed out, Section 15 of Republic Act No. 8436, as amended by Republic Act No. 9369, was enacted merely to give the COMELEC ample time for the printing of ballots. Section 80 of the Omnibus Election Code, on the other hand, is a substantive law which defines the prohibited act of premature campaigning, an election offense punishable with the gravest of penalties that can be imposed on a candidate, i.e., disqualification or, if elected, removal from office. If the majority opinion indignantly rejects the attempts of the ponente to reconcile the provisions of Section 80 of the Omnibus Election Code and Section 15 of Republic Act No. 8436, as amended, then why should they insist on repealing the former provision and not the latter? The ponente emphasizes that whether the election would be held under the manual or the automated system, the need for prohibiting premature campaigning – to level the playing field between the popular or rich candidates, on one hand, and the lesser-known or poorer candidates, on the other, by allowing them to campaign only within the same limited period – remains. Again, the choice as to who among the candidates will the voting public bestow the privilege of holding public office should not be swayed by the shrewd conduct, verging on bad faith, of some individuals who are able to spend resources to promote their candidacies in advance of the period slated for campaign activities. However, by virtue of the Resolution of the majority, premature campaigning will now be officially decriminalized and, as a consequence, the value and significance of having a campaign period will now be utterly negated. Thus, one year, five years or even ten years prior to the day of the elections, a person aspiring for public office may now engage in election campaign or partisan political activities to promote his candidacy, with impunity. All he needs to have is a very deep campaign war chest to be able to carry out this shrewd activity. Indeed, while fair elections has been dealt a fatal blow by the Resolution of the majority, it is fervently hoped that the writing of the Decision dated 11 September 2009 and this Dissenting Opinion will not be viewed as an effort made in vain if in the future the said Resolution can be revisited and somehow rectified. Premises considered, there is no reason to reverse and set aside the earlier ruling of the Court rendered in this case.

I, therefore, vote to DENY WITH FINALITY the Motion for Reconsideration filed by Rosalinda A. Penera on the Decision dated 11 September 2009. MINITA V. CHICO-NAZARIO Associate Justice Footnotes 1 Rollo, pp. 439-469. 2 Rollo, p. 441. 3 Rollo, p. 452. 4 Rollo, p. 455. 5 Rollo, p. 459. 6 Rollo, p. 465. 7 Rollo, p. 455. Under Section 7, Rule 4 of the Commission on Elections Rules of Procedure, EO stands for Election Offenses. 8 The relevant provision in Republic Act No. 8436 is Section 11, which pertinently provides: SECTION 11. Official ballot. – x x x xxxx For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/manifestation to participate in the election shall not be later than one hundred twenty (120) days before the elections: x x x: Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period[.] 9 G.R. No. 164858, 16 November 2006. 10 Lanot v. Commission on Elections, G.R. No. 164858, 16 November 2006, 507 SCRA 114, 152. The Lawphil Project - Arellano Law Foundation DISSENTING OPINION ABAD, J.: The Facts and the Case Petitioner Rosalinda Penera and respondent Edgar Andanar ran for mayor of Sta. Monica, Surigao Del Norte, during the May 14, 2007 elections. On March 29, 2007 a motorcade by petitioner Penera’s political party preceded the filing of her certificate of candidacy before the Municipal

Election Officer of Sta. Monica. Because of this, on April 2, 2007 Andanar filed with the Regional Election Director for Region 13 in SPA 07-224 a petition to disqualify1 Penera, among others,2 for engaging in election campaign before the start of the campaign period. Andanar claimed that Penera and her partymates went around Sta. Monica on March 29, announcing their candidacies and asking the people to vote for them in the coming elections. Answering the petition, Penera claimed that although a motorcade preceded the filing of her certificate of candidacy, she merely observed the usual practice of holding a motorcade on such momentous occasion, but which celebration ended soon after she filed her certificate. Penera claimed that no one made a speech during the event. All they had were lively background music and "a grand standing for the purpose of raising the hands of the candidates in the motorcade." The parties presented their position papers and other evidence in the case.3 Afterwards, the regional office forwarded its record to the Commission on Elections (COMELEC) in Manila where the case was raffled to the Second Division for resolution. But the elections of May 14, 2007 overtook it, with petitioner Penera winning the election for Mayor of Sta. Monica. She assumed office on July 2, 2007. On July 24, 2007 the COMELEC’s Second Division issued a resolution, disqualifying petitioner Penera from continuing as a mayoralty candidate in Sta. Monica on the ground that she engaged in premature campaigning in violation of Sections 80 and 68 of the Omnibus Election Code. The Second Division found that she, her partymates, and a bevy of supporters held a motorcade of two trucks and numerous motorcycles laden with balloons, banners, and posters that showed the names of their candidates and the positions they sought. One of the trucks had a public speaker that announced Penera’s candidacy for mayor. Petitioner Penera filed before the COMELEC en banc a motion for reconsideration4 of the Second Division’s July 24, 2007 resolution. The En Banc denied her motion on January 30, 2008.5 Still undeterred, Penera came up to this Court. On September 11, 2009 an almost evenly divided Court affirmed the ruling of the COMELEC. On motion for reconsideration, however, the number of votes shifted in favor of granting the petition and reversing the ruling of the COMELEC. The Issue The core issue that divided the Court is whether or not petitioner Penera’s act of campaigning for votes immediately preceding the filing of her certificate of candidacy on March 29, 2007 violates the prohibition in Section 80 of the

Omnibus Election Code against premature campaigning, with the result that she is disqualified from holding office in accordance with Section 68 of the Code. Discussion Section 80 of the Omnibus Election Code prohibits any person, whether a candidate or not, from engaging in election campaign or partisan political activity except during the campaign period fixed by law. Apart from its penal consequence, the law disqualifies any candidate who engages in premature campaigning from holding the office to which he was elected. Section 68 of the Code reads: SECTION. 68. Disqualifications. - Any candidate who, in an action or protest in which he is a party is declared by final decision of a competent court guilty of, or found by the Commission of having x x x (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office; x x x. (Underscoring supplied.) Since the COMELEC found petitioner Penera guilty of having led on March 29, 2007 a colorful and noisy motorcade that openly publicized her candidacy for mayor of Sta. Monica, this Court held in its original decision that the COMELEC correctly disqualified her from holding the office to which she was elected. The current majority of the Court claims, however, that with the passage of Republic Act (R.A.) 9369, a candidate who campaigns before the official campaign period may no longer be regarded as having committed an unlawful act that constitutes ground for disqualification. The majority’s reasoning is as follows: a. Section 79 (a) of the Omnibus Election Code states that a candidate is "any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy by himself or through an accredited political party, aggroupment, or coalition of parties." b. It is a person’s filing of a certificate of candidacy, therefore, that marks the beginning of his being a candidate. It is also such filing that marks his assumption of the responsibilities that goes with being a candidate. Before Penera filed her certificate of candidacy on March 29, 2007, she could not be regarded as having assumed the responsibilities of a "candidate." c. One of these responsibilities is the duty not to commit acts that are forbidden a candidate such as campaigning for votes before the start of the prescribed period for election campaigns. Premature campaigning is

a crime and constitutes a ground for disqualification from the office that the candidate seeks. d. But, with the amendment of Section 15 of R.A. 8436 by Section 13 of R.A. 9369, a person’s filing of a certificate of candidacy does not now automatically mark him as a "candidate." He shall be regarded a "candidate," says Section 15, only at the start of the campaign period. Further, the "unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period." It is significant that before the passage of R.A. 9369 a candidate for a local office had up to the day before the start of the campaign period (which in the case of a local election consists of 45 days before the eve of election day) within which to file his certificate of candidacy and, thus, be regarded as a "candidate." But the need for time to print the ballots with the names of the candidates on them under the automated election system prompted Congress to authorize the COMELEC to set a deadline for the filing of the certificates of candidacy long before the start of the campaign period. Thus, the pertinent portion of Section 15 of R.A. 8436, as amended, provides: SECTION 15. Official ballot. – xxxx For this purpose [the printing of ballots], the Commission shall set the deadline for the filing of certificate of candidacy/ petition for registration/ manifestation to participate in the election. x x x xxxx Evidently, while Congress was willing to provide for advance filing of certificates of candidacy, it did not want to impose on those who file early certificates the responsibilities of being already regarded as "candidates" even before the start of the campaign period. Thus, the same Section 15 provides further on: Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy; x x x. In Penera’s case, she filed her certificate of candidacy on March 29, 2007. Section 15 does not yet treat her as "candidate" then. Only at the start of the official campaign period on March 30, 2007 was she to be considered as such "candidate." To emphasize this, Congress provided further on in Section 15 that an early filer’s responsibility as a candidate begins only when the campaign period begins. Thus – Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period; x x x.

The current majority concludes from the above that from the time R.A. 9369 took effect on February 10, 2007 a person like petitioner Penera cannot be held liable as a "candidate" for engaging in premature election campaign before she filed her certificate of candidacy or even after she filed one since she may be regarded as a "candidate" only at the start of the campaign period on March 30, 2007. Consequently, since she was not yet a "candidate" on March 29, 2007 when she went around Sta. Monica campaigning for votes on her way to appearing before the election registrar to file her certificate of candidacy, she cannot be held liable for premature campaigning. But the fact that Penera was not yet a candidate before she actually handed in her certificate of candidacy to the designated COMELEC official does not exempt her from the prohibition against engaging in premature election campaign. Section 80 which imposes the ban ensnares "any person," even a non-candidate. Thus: SECTION 80. Election campaign or partisan political activity outside campaign period. — It shall be unlawful for any person, whether or not a voter or candidate, or for any party, or association of persons, to engage in an election campaign or partisan political activity except during the campaign period: x x x (Emphasis ours.) Essentially, the law makes the prohibition against premature campaigning apply to "any person" and "any party, or association of persons." This means that no one is exempt from the ban. The mention of the word "candidate" in the first grouping, i.e., "any person, whether or not a voter or candidate," merely stresses the point that even those with direct interest in a political campaign are not exempt from the ban. Consequently, even if Penera had not yet filed her certificate of candidacy, Section 80 covered her because she fell in the category of "any person." The provision of Section 15 of R.A. 8436, as amended, that regards Penera as a "candidate" only at the start of the campaign period on March 30, 2007 did not, therefore, exempt her from liability as a non-candidate engaging in premature election campaign. Here, candidate Penera has been found by the COMELEC to have violated Section 80 when, even before she was a candidate, she prematurely campaigned for votes for herself. The ground for her consequent disqualification—premature campaigning—already accrued by the time she filed her certificate of candidacy or when the official campaign period began. Consequently, she is disqualified under Section 68 from continuing as a candidate or, since she has been elected, from holding on to that office. Thus:

SECTION 68. Disqualifications. - Any candidate who, in an action or protest in which he is a party is declared by final decision of a competent court guilty of, or found by the Commission of having x x x (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office; x x x (Underscoring supplied.) Does this position contravene Section 15 of R.A. 8436, as amended, that regards Penera as a "candidate" only at the start of the campaign period on March 30, 2007? It does not because Section 80, which the Court seeks to enforce, is essentially intended as a ground for sanctioning "any person," not necessarily a candidate, who engages in premature election campaign. The real challenge to the current minority position, however, is the meaning that the Omnibus Election Code places on the term "election campaign." "The term ‘election campaign’ or ‘partisan political activity,’ says Section 79, "refers to an act designed to promote the election or defeat of a particular candidate or candidates to a public office." The object of the election campaign activity must be the "election or defeat of a particular candidate." When petitioner Penera practically said "vote for me" during the March 29 motorcade that she led around Sta. Monica, did she solicit votes for a "particular candidate?" The current majority holds that since, according to Section 79, a "candidate refers to any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy" and since Penera held her vote-solicitation motorcade before she filed her certificate of candidacy, she did not engage during the town motorcade in a campaign for the election of any "particular candidate." But this is being too literal. It is like saying that a woman cannot be held liable for parricide since the penal code uses the male pronoun in ascribing to the offender the acts that constitute the crime. Thus, the penal code says: Art. 246. Parricide. — Any person who shall kill his father, mother, or child, whether legitimate or illegitimate, or any of his ascendants, or descendants, or his spouse, shall be guilty of parricide and shall be punished by the penalty of reclusion perpetua to death. Yet, parricide, as everyone knows, can also be committed by a woman who shall kill her father, mother, or child, or her spouse. The spirit of the law intends to punish any person, male or female, who kills his or her ascendants, descendants, or spouse. Literalness must yield to evident legislative intent. Here, did Congress in enacting R.A. 9369 intend to abolish or repeal Section 80 of the Omnibus Election Code that prohibits election campaigns before the

start of the campaign period? It did not. Section 80 remains in the statute books and R.A. 9369 did not, directly or indirectly, touch it. The current majority of course claims, citing Section 15 of R.A. 8436, as amended, that "the effective date when partisan political acts become unlawful as to a candidate is when the campaign period starts. The pertinent portion of Section 15 says: Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period; x x x. If we were to abide by the view of the current majority, Congress ordained when it passed the above provision that it is only for unlawful acts or omissions committed during the campaign period that candidates could be punished. Consequently, if candidates take campaign funds from a foreign government6 or conspire with others to bribe voters7 just one day before the start of the campaign period, they cannot be prosecuted. A candidate under the theory of the current majority can freely commit a litany of other crimes relating to the election so long as he commits them before the start of the campaign period. Surely, R.A. 9369 did not intend to grant him immunity from prosecution for these crimes. The more reasonable reading of the provision—that unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the campaign period—is that Congress referred only to unlawful acts or omissions that could essentially be committed only during the campaign period. For how could a candidate commit unlawful "pre-campaign" acts during the campaign period? The unlawful act of engaging in premature election campaign under Section 80, in relation to Section 79 which defines the terms "candidate" and "election campaign," may be regarded as consisting of three elements: 1. A person acts to promote the election or defeat of another to a public office; 2. He commits the act before the start of the campaign period; and 3. The person whose election or defeat the offender seeks has filed a certificate of candidacy for the office. The first two elements could take place when the offender engages in premature election campaign for the person whose election or defeat he seeks to promote but who has not as yet filed his certificate of candidacy. Whereas, the third element—consisting in the latter person’s filing his certificate of candidacy—could take place later, close to the campaign period. The elements of a crime need not be present on a single occasion. In B.P. 22 cases, the issuer of the check may have knowingly issued a perfectly worthless

check to apply on account. But, until the check is dishonoured by the drawee bank, the crime of issuing a bouncing check is not deemed committed. The analogy is far from perfect but the point is that the offender under Section 80 knew fully when she shouted on the top of her voice, "vote for me as your mayor!" before she filed her certificate of candidacy that she was running for mayor. If she says she is not liable because she is technically not yet a candidate, the people should say, "Let us not kid each other!" Congress could not be presumed to have written a ridiculous rule. It is safe to assume that, in enacting R.A. 9369, Congress did not intend to decriminalize illegal acts that candidates and non-candidates alike could commit prior to the campaign period. Further, current majority’s view may doom the next generations. Congress enacted Section 80 because, historically, premature election campaigns begun even years before the election saps the resources of the candidates and their financial backers, ensuring considerable pay-back activities when the candidates are elected. Such lengthy campaigns also precipitate violence, corrupt the electorate, and divert public attention from the more vital needs of the country.8 Actually, practically all the principal stakeholders in the election, namely, the voters, the candidates, and the COMELEC, have since 1969 assumed that premature election campaign is not allowed. People generally wait for the campaign period to start before engaging in election campaign. Even today, after the passage of R.A. 9369, those aspiring to national offices have resorted to the so-called "infomercials" that attempt to enhance their popularities by showing their philosophies in life, what they have accomplished, and the affection with which ordinary people hold them. No one has really come out with ads soliciting votes for any particular candidate or person aspiring for a particular public office. They are all aware of Section 80. Parenthetically, the Supreme Court declared the law banning premature election campaign constitutional in Gonzales v. Commission on Elections9 only because the majority in the Court were unable to muster two-thirds votes to declare it unconstitutional. The freedom of expression has always loomed large in the mind of the Court. It would not be likely, therefore, for the Court to hastily declare every expression tending to promote a person’s chances in the elections as prohibited election campaigning. I vote to deny the motion for reconsideration. ROBERTO A. ABAD Associate JusticePenera vs. Commission on Elections, et al. G.R. No. 181613

25 (motion

November for

2009 reconsideration)

Facts: On 11 September 2009, the Supreme Court affirmed the COMELEC’s decision to disqualify petitioner Rosalinda Penera (Penera) as mayoralty candidate in Sta. Monica, Surigao del Norte, for engaging in election campaign outside the campaign period, in violation of Section 80 of Batas Pambansa Blg. 881 (the Omnibus Election Code). Penera moved for reconsideration, arguing that she was not yet a candidate at the time of the supposed premature campaigning, since under Section 15 of Republic Act No. 8436 (the law authorizing the COMELEC to use an automated election system for the process of voting, counting of votes, and canvassing/consolidating the results of the national and local elections), as amended by Republic Act No. 9369, one is not officially a candidate until the start of the campaign period. Issue: Whether or not Penera’s disqualification for engaging in premature campaigning should be reconsidered. Holding: Granting Penera’s motion for reconsideration, the Supreme Court En Banc held that Penera did not engage in premature campaigning and should, thus, not be disqualified as a mayoralty candidate. The Court said – (A) The Court’s 11 September 2009 Decision (or “the assailed Decision”) considered a person who files a certificate of candidacy already a “candidate” even before the start of the campaign period. This is contrary to the clear intent and letter of Section 15 of Republic Act 8436, as amended, which states that a person who files his certificate of candidacy will only be considered a candidate at the start of the campaign period, and unlawful acts or omissions applicable to a

candidate shall take effect only upon the start of such campaign period. Thus,

applying

said

law:

(1) The effective date when partisan political acts become unlawful as to a candidate is when the campaign period starts. Before the start of the campaign period, the same partisan political acts are lawful. (2) Accordingly, a candidate is liable for an election offense only for acts done during the campaign period, not before. In other words, election offenses can be committed by a candidate only upon the start of the campaign period. Before the start of the campaign period, such election offenses cannot be so committed. Since the law is clear, the Court has no recourse but to apply it. The forum for examining the wisdom of the law, and enacting remedial measures, is not the Court but the Legislature. (B) Contrary to the assailed Decision, Section 15 of R.A. 8436, as amended, does not provide that partisan political acts done by a candidate before the campaign period are unlawful, but may be prosecuted only upon the start of the campaign period. Neither does the law state that partisan political acts done by a candidate before the campaign period are temporarily lawful, but becomes unlawful upon the start of the campaign period. Besides, such a law as envisioned in the Decision, which defines a criminal act and curtails freedom of expression and speech, would be void for vagueness. (C) That Section 15 of R.A. 8436 does not expressly state that campaigning before the start of the campaign period is lawful, as the assailed Decision asserted, is of no moment. It is a basic principle of law that any act is lawful unless expressly declared unlawful by law. The mere fact that the law does not declare an act unlawful ipso facto means that the act is lawful. Thus, there is no need for Congress to declare in Section 15 of R.A. 8436 that partisan political activities before the start of the campaign period are lawful. It is sufficient for Congress to state that “any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period.” The only inescapable and logical result is that the same acts, if done before the start of the campaign period, are lawful.

(D) The Court’s 11 September 2009 Decision also reversed Lanot vs. COMELEC (G.R. No. 164858; 16 November 2006). Lanot was decided on the ground that one who files a certificate of candidacy is not a candidate until the start of the campaign period. This ground was based on the deliberations of the legislators who explained that the early deadline for filing certificates of candidacy under R.A. 8436 was set only to afford time to prepare the machine-readable ballots, and they intended to preserve the existing election periods, such that one who files his certificate of candidacy to meet the early deadline will still not be considered as a candidate. When Congress amended R.A. 8436, Congress decided to expressly incorporate the Lanot doctrine into law, thus, the provision in Section 15 of R.A. 8436 that a person who files his certificate of candidacy shall be considered a candidate only at the start of the campaign period. Congress wanted to insure that no person filing a certificate of candidacy under the early deadline required by the automated election system would be disqualified or penalized for any partisan political act done before the start of the campaign period. This provision cannot be annulled by the Court except on the sole ground of its unconstitutionality. The assailed Decision, however, did not claim that this provision is unconstitutional. In fact, the assailed Decision considered the entire Section 15 good law. Thus, the Decision was self-contradictory — reversing Lanot but maintaining the constitutionality of the said provision. EN BANC PROF. MERLIN M. MAGALLONA, G.R No. 187167 AKBAYAN PARTY-LIST REP. RISA HONTIVEROS, PROF. HARRY C. Present: ROQUE, JR., AND UNIVERSITY OF THE PHILIPPINES COLLEGE OF CORONA, C.J., LAW STUDENTS, ALITHEA CARPIO, BARBARA ACAS, VOLTAIRE VELASCO, JR., ALFERES, CZARINA MAY LEONARDO-DE CASTRO, ALTEZ, FRANCIS ALVIN ASILO, BRION, SHERYL BALOT, RUBY AMOR PERALTA,

BARRACA, JOSE JAVIER BAUTISTA, BERSAMIN, ROMINA BERNARDO, VALERIE DEL CASTILLO, PAGASA BUENAVENTURA, EDAN ABAD, MARRI CAETE, VANN ALLEN VILLARAMA, JR., DELA CRUZ, RENE DELORINO, PEREZ, PAULYN MAY DUMAN, SHARON MENDOZA, and ESCOTO, RODRIGO FAJARDO III, SERENO, JJ. GIRLIE FERRER, RAOULLE OSEN FERRER, CARLA REGINA GREPO, ANNA MARIE CECILIA GO, IRISH KAY KALAW, MARY ANN JOY LEE, MARIA LUISA MANALAYSAY, MIGUEL RAFAEL MUSNGI, MICHAEL OCAMPO, JAKLYN HANNA PINEDA, WILLIAM RAGAMAT, MARICAR RAMOS, ENRIK FORT REVILLAS, JAMES MARK TERRY RIDON, JOHANN FRANTZ RIVERA IV, CHRISTIAN RIVERO, DIANNE MARIE ROA, NICHOLAS SANTIZO, MELISSA CHRISTINA SANTOS, CRISTINE MAE TABING, VANESSA ANNE TORNO, MARIA ESTER VANGUARDIA, and MARCELINO VELOSO III, Petitioners, - versus HON. EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY, HON. ALBERTO ROMULO, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF FOREIGN AFFAIRS, HON. ROLANDO ANDAYA, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT, HON. DIONY VENTURA, IN HIS CAPACITY AS ADMINISTRATOR OF THE NATIONAL MAPPING &

RESOURCE INFORMATION AUTHORITY, and HON. HILARIO DAVIDE, JR., IN HIS CAPACITY AS REPRESENTATIVE OF THE PERMANENT MISSION OF THE REPUBLIC OF THE PHILIPPINES Promulgated: TO THE UNITED NATIONS, Respondents. July 16, 2011 x -----------------------------------------------------------------------------------------x DECISION CARPIO, J.: The Case This original action for the writs of certiorari and prohibition assails the constitutionality of Republic Act No. 95221 (RA 9522) adjusting the countrys archipelagic baselines and classifying the baseline regime of nearby territories. The Antecedents In 1961, Congress passed Republic Act No. 3046 (RA 3046)2 demarcating the maritime baselines of the Philippines as an archipelagic State.3 This law followed the framing of the Convention on the Territorial Sea and the Contiguous Zone in 1958 (UNCLOS I),4 codifying, among others, the sovereign right of States parties over their territorial sea, the breadth of which, however, was left undetermined. Attempts to fill this void during the second round of negotiations in Geneva in 1960 (UNCLOS II) proved futile. Thus, domestically, RA 3046 remained unchanged for nearly five decades, save for legislation passed in 1968 (Republic Act No. 5446 [RA 5446]) correcting typographical errors and reserving the drawing of baselines around Sabah in North Borneo.

In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now under scrutiny. The change was prompted by the need to make RA 3046 compliant with the terms of the United Nations Convention on the Law of the Sea (UNCLOS III),5 which the Philippines ratified on 27 February 1984.6 Among others, UNCLOS III prescribes the water-land ratio, length, and contour of baselines of archipelagic States like the Philippines7 and sets the deadline for the filing of application for the extended continental shelf.8 Complying with these requirements, RA 9522 shortened one baseline, optimized the location of some basepoints around the Philippine archipelago and classified adjacent territories, namely, the Kalayaan Island Group (KIG) and the Scarborough Shoal, as regimes of islands whose islands generate their own applicable maritime zones. Petitioners, professors of law, law students and a legislator, in their respective capacities as citizens, taxpayers or x x x legislators,9 as the case may be, assail the constitutionality of RA 9522 on two principal grounds, namely: (1) RA 9522 reduces Philippine maritime territory, and logically, the reach of the Philippine states sovereign power, in violation of Article 1 of the 1987 Constitution,10 embodying the terms of the Treaty of Paris11 and ancillary treaties,12 and (2) RA 9522 opens the countrys waters landward of the baselines to maritime passage by all vessels and aircrafts, undermining Philippine sovereignty and national security, contravening the countrys nuclear-free policy, and damaging marine resources, in violation of relevant constitutional provisions.13 In addition, petitioners contend that RA 9522s treatment of the KIG as regime of islands not only results in the loss of a large maritime area but also prejudices the livelihood of subsistence fishermen.14 To buttress their argument of territorial diminution, petitioners facially attack RA 9522 for what it excluded and included its failure to reference either the Treaty of Paris or Sabah and its use of UNCLOS IIIs framework of regime of islands to determine the maritime zones of the KIG and the Scarborough Shoal. Commenting on the petition, respondent officials raised threshold issues questioning (1) the petitions compliance with the case or controversy requirement for judicial review grounded on petitioners alleged lack of locus standi and (2) the propriety of the writs of certiorari and prohibition to assail the constitutionality of RA 9522. On the merits, respondents defended RA 9522 as the countrys compliance with the terms of UNCLOS III, preserving

Philippine territory over the KIG or Scarborough Shoal. Respondents add that RA 9522 does not undermine the countrys security, environment and economic interests or relinquish the Philippines claim over Sabah. Respondents also question the normative force, under international law, of petitioners assertion that what Spain ceded to the United States under the Treaty of Paris were the islands and all the waters found within the boundaries of the rectangular area drawn under the Treaty of Paris. We left unacted petitioners prayer for an injunctive writ. The Issues The petition raises the following issues: 1. Preliminarily 1. Whether petitioners possess locus standi to bring this suit; and 2. Whether the writs of certiorari and prohibition are the proper remedies to assail the constitutionality of RA 9522. 2. On the merits, whether RA 9522 is unconstitutional. The Ruling of the Court On the threshold issues, we hold that (1) petitioners possess locus standi to bring this suit as citizens and (2) the writs of certiorari and prohibition are proper remedies to test the constitutionality of RA 9522. On the merits, we find no basis to declare RA 9522 unconstitutional. On the Threshold Issues Petitioners Possess Locus Standi as Citizens Petitioners themselves undermine their assertion of locus standi as legislators and taxpayers because the petition alleges neither infringement of legislative prerogative15 nor misuse of public funds,16 occasioned by the passage and implementation of RA 9522. Nonetheless, we recognize petitioners locus

standi as citizens with constitutionally sufficient interest in the resolution of the merits of the case which undoubtedly raises issues of national significance necessitating urgent resolution. Indeed, owing to the peculiar nature of RA 9522, it is understandably difficult to find other litigants possessing a more direct and specific interest to bring the suit, thus satisfying one of the requirements for granting citizenship standing.17 The Writs of Certiorari and Prohibition Are Proper Remedies to Test the Constitutionality of Statutes In praying for the dismissal of the petition on preliminary grounds, respondents seek a strict observance of the offices of the writs of certiorari and prohibition, noting that the writs cannot issue absent any showing of grave abuse of discretion in the exercise of judicial, quasi-judicial or ministerial powers on the part of respondents and resulting prejudice on the part of petitioners.18 Respondents submission holds true in ordinary civil proceedings. When this Court exercises its constitutional power of judicial review, however, we have, by tradition, viewed the writs of certiorari and prohibition as proper remedial vehicles to test the constitutionality of statutes,19 and indeed, of acts of other branches of government.20 Issues of constitutional import are sometimes crafted out of statutes which, while having no bearing on the personal interests of the petitioners, carry such relevance in the life of this nation that the Court inevitably finds itself constrained to take cognizance of the case and pass upon the issues raised, non-compliance with the letter of procedural rules notwithstanding. The statute sought to be reviewed here is one such law. RA 9522 is Not Unconstitutional RA 9522 is a Statutory Tool to Demarcate the Countrys Maritime Zones and Continental Shelf Under UNCLOS III, not to Delineate Philippine Territory

Petitioners submit that RA 9522 dismembers a large portion of the national territory21 because it discards the pre-UNCLOS III demarcation of Philippine territory under the Treaty of Paris and related treaties, successively encoded in the definition of national territory under the 1935, 1973 and 1987 Constitutions. Petitioners theorize that this constitutional definition trumps any treaty or statutory provision denying the Philippines sovereign control over waters, beyond the territorial sea recognized at the time of the Treaty of Paris, that Spain supposedly ceded to the United States. Petitioners argue that from the Treaty of Paris technical description, Philippine sovereignty over territorial waters extends hundreds of nautical miles around the Philippine archipelago, embracing the rectangular area delineated in the Treaty of Paris.22 Petitioners theory fails to persuade us. UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a multilateral treaty regulating, among others, sea-use rights over maritime zones (i.e., the territorial waters [12 nautical miles from the baselines], contiguous zone [24 nautical miles from the baselines], exclusive economic zone [200 nautical miles from the baselines]), and continental shelves that UNCLOS III delimits.23 UNCLOS III was the culmination of decades-long negotiations among United Nations members to codify norms regulating the conduct of States in the worlds oceans and submarine areas, recognizing coastal and archipelagic States graduated authority over a limited span of waters and submarine lands along their coasts. On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III States parties to mark-out specific basepoints along their coasts from which baselines are drawn, either straight or contoured, to serve as geographic starting points to measure the breadth of the maritime zones and continental shelf. Article 48 of UNCLOS III on archipelagic States like ours could not be any clearer: Article 48. Measurement of the breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf. The breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf shall

be measured from archipelagic baselines drawn in accordance with article 47. (Emphasis supplied) Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to delimit with precision the extent of their maritime zones and continental shelves. In turn, this gives notice to the rest of the international community of the scope of the maritime space and submarine areas within which States parties exercise treaty-based rights, namely, the exercise of sovereignty over territorial waters (Article 2), the jurisdiction to enforce customs, fiscal, immigration, and sanitation laws in the contiguous zone (Article 33), and the right to exploit the living and non-living resources in the exclusive economic zone (Article 56) and continental shelf (Article 77). Even under petitioners theory that the Philippine territory embraces the islands and all the waters within the rectangular area delimited in the Treaty of Paris, the baselines of the Philippines would still have to be drawn in accordance with RA 9522 because this is the only way to draw the baselines in conformity with UNCLOS III. The baselines cannot be drawn from the boundaries or other portions of the rectangular area delineated in the Treaty of Paris, but from the outermost islands and drying reefs of the archipelago.24 UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or, as petitioners claim, diminution of territory. Under traditional international law typology, States acquire (or conversely, lose) territory through occupation, accretion, cession and prescription,25 not by executing multilateral treaties on the regulations of sea-use rights or enacting statutes to comply with the treatys terms to delimit maritime zones and continental shelves. Territorial claims to land features are outside UNCLOS III, and are instead governed by the rules on general international law.26 RA 9522s Use of the Framework of Regime of Islands to Determine the Maritime Zones of the KIG and the Scarborough Shoal, not Inconsistent with the Philippines Claim of Sovereignty Over these Areas

Petitioners next submit that RA 9522s use of UNCLOS IIIs regime of islands framework to draw the baselines, and to measure the breadth of the applicable maritime zones of the KIG, weakens our territorial claim over that area.27Petitioners add that the KIGs (and Scarborough Shoals) exclusion from the Philippine archipelagic baselines results in the loss of about 15,000 square nautical miles of territorial waters, prejudicing the livelihood of subsistence fishermen.28 A comparison of the configuration of the baselines drawn under RA 3046 and RA 9522 and the extent of maritime space encompassed by each law, coupled with a reading of the text of RA 9522 and its congressional deliberations, vis--vis the Philippines obligations under UNCLOS III, belie this view. The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA 9522 merely followed the basepoints mapped by RA 3046, save for at least nine basepoints that RA 9522 skipped to optimize the location of basepoints and adjust the length of one baseline (and thus comply with UNCLOS IIIs limitation on the maximum length of baselines). Under RA 3046, as under RA 9522, the KIG and the Scarborough Shoal lie outside of the baselines drawn around the Philippine archipelago. This undeniable cartographic fact takes the wind out of petitioners argument branding RA 9522 as a statutory renunciation of the Philippines claim over the KIG, assuming that baselines are relevant for this purpose. Petitioners assertion of loss of about 15,000 square nautical miles of territorial waters under RA 9522 is similarly unfounded both in fact and law. On the contrary, RA 9522, by optimizing the location of basepoints, increased the Philippines total maritime space (covering its internal waters, territorial sea and exclusive economic zone) by 145,216 square nautical miles, as shown in the table below:29 Extent of maritime area using RA 3046, as amended, taking into account the Treaty of Paris delimitation (in square nautical miles)

Extent of maritime area using RA 9522, taking into account UNCLOS III (in square nautical miles)

Internal or archipelagic 166,858 waters Territorial Sea

274,136

Exclusive Economic Zone TOTAL

171,435

32,106

382,669 440,994

586,210

Thus, as the map below shows, the reach of the exclusive economic zone drawn under RA 9522 even extends way beyond the waters covered by the rectangular demarcation under the Treaty of Paris. Of course, where there are overlapping exclusive economic zones of opposite or adjacent States, there will have to be a delineation of maritime boundaries in accordance with UNCLOS III.30

Further, petitioners argument that the KIG now lies outside Philippine territory because the baselines that RA 9522 draws do not enclose the KIG is negated by RA 9522 itself. Section 2 of the law commits to text the Philippines continued claim of sovereignty and jurisdiction over the KIG and the Scarborough Shoal: SEC. 2. The baselines in the following areas over which the Philippines likewise exercises sovereignty and jurisdiction shall be determined as Regime of Islands under the

Republic of the Philippines consistent with Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS): a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596 and b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied) Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the Philippine archipelago, adverse legal effects would have ensued. The Philippines would have committed a breach of two provisions of UNCLOS III. First, Article 47 (3) of UNCLOS III requires that [t]he drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago. Second, Article 47 (2) of UNCLOS III requires that the length of the baselines shall not exceed 100 nautical miles, save for three per cent (3%) of the total number of baselines which can reach up to 125 nautical miles.31 Although the Philippines has consistently claimed sovereignty over the and the Scarborough Shoal for several decades, these outlying areas are located at an appreciable distance from the nearest shoreline of the Philippine archipelago,33 such that any straight baseline loped around them from the nearest basepoint will inevitably depart to an appreciable extent from the general configuration of the archipelago. KIG32

The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-Santiago, took pains to emphasize the foregoing during the Senate deliberations: What we call the Kalayaan Island Group or what the rest of the world call[] the Spratlys and the Scarborough Shoal are outside our archipelagic baseline because if we put them inside our baselines we might be accused of violating the provision of international law which states: The drawing of such baseline shall not depart to any appreciable extent from the general configuration of the archipelago. So sa loob ng ating baseline, dapat magkalapit ang mga islands. Dahil malayo ang Scarborough Shoal, hindi natin masasabing malapit sila sa atin although we are still allowed by international law to claim them as our own.

This is called contested islands outside our configuration. We see that our archipelago is defined by the orange line which [we] call[] archipelagic baseline. Ngayon, tingnan ninyo ang maliit na circle doon sa itaas, that is Scarborough Shoal, itong malaking circle sa ibaba, that is Kalayaan Group or the Spratlys. Malayo na sila sa ating archipelago kaya kung ilihis pa natin ang dating archipelagic baselines para lamang masama itong dalawang circles, hindi na sila magkalapit at baka hindi na tatanggapin ng United Nations because of the rule that it should follow the natural configuration of the archipelago.34 (Emphasis supplied) Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS IIIs limits. The need to shorten this baseline, and in addition, to optimize the location of basepoints using current maps, became imperative as discussed by respondents: [T]he amendment of the baselines law was necessary to enable the Philippines to draw the outer limits of its maritime zones including the extended continental shelf in the manner provided by Article 47 of [UNCLOS III]. As defined by R.A. 3046, as amended by R.A. 5446, the baselines suffer from some technical deficiencies, to wit: 1. The length of the baseline across Moro Gulf (from Middle of 3 Rock Awash to Tongquil Point) is 140.06 nautical miles x x x. This exceeds the maximum length allowed under Article 47(2) of the [UNCLOS III], which states that The length of such baselines shall not exceed 100 nautical miles, except that up to 3 per cent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles. 2. The selection of basepoints is not optimal. At least 9 basepoints can be skipped or deleted from the baselines system. This will enclose an additional 2,195 nautical miles of water. 3. Finally, the basepoints were drawn from maps existing in 1968, and not established by geodetic survey methods. Accordingly, some of the points, particularly along the west coasts of Luzon down to Palawan were later found to be located either inland or

on water, not on low-water line and drying reefs as prescribed by Article 47.35 Hence, far from surrendering the Philippines claim over the KIG and the Scarborough Shoal, Congress decision to classify the KIG and the Scarborough Shoal as Regime[s] of Islands under the Republic of the Philippines consistent with Article 12136 of UNCLOS III manifests the Philippine States responsible observance of its pacta sunt servanda obligation under UNCLOS III. Under Article 121 of UNCLOS III, any naturally formed area of land, surrounded by water, which is above water at high tide, such as portions of the KIG, qualifies under the category of regime of islands, whose islands generate their own applicable maritime zones.37

Statutory Claim Over Sabah under RA 5446 Retained Petitioners argument for the invalidity of RA 9522 for its failure to textualize the Philippines claim over Sabah in North Borneo is also untenable. Section 2 of RA 5446, which RA 9522 did not repeal, keeps open the door for drawing the baselines of Sabah: Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as provided in this Act is without prejudice to the delineation of the baselines of the territorial sea around the territory of Sabah, situated in North Borneo, over which the Republic of the Philippines has acquired dominion and sovereignty. (Emphasis supplied)

UNCLOS III and RA 9522 not Incompatible with the Constitutions Delineation of Internal Waters

As their final argument against the validity of RA 9522, petitioners contend that the law unconstitutionally converts internal waters into archipelagic waters, hence subjecting these waters to the right of innocent and sea lanes passage under UNCLOS III, including overflight. Petitioners extrapolate that these passage rights indubitably expose Philippine internal waters to nuclear and maritime pollution hazards, in violation of the Constitution.38 Whether referred to as Philippine internal waters under Article I of the Constitution39 or as archipelagic waters under UNCLOS III (Article 49 [1]), the Philippines exercises sovereignty over the body of water lying landward of the baselines, including the air space over it and the submarine areas underneath. UNCLOS III affirms this: Article 49. Legal status of archipelagic waters, of the air space over archipelagic waters and of their bed and subsoil. 1. The sovereignty of an archipelagic State extends to the waters enclosed by the archipelagic baselinesdrawn in accordance with article 47, described as archipelagic waters, regardless of their depth or distance from the coast. 2. This sovereignty extends to the air space over the archipelagic waters, as well as to their bed and subsoil, and the resources contained therein. xxxx 4. The regime of archipelagic sea lanes passage established in this Part shall not in other respects affect the status of the archipelagic waters, including the sea lanes, or the exercise by the archipelagic State of its sovereignty over such waters and their air space, bed and subsoil, and the resources contained therein. (Emphasis supplied) The fact of sovereignty, however, does not preclude the operation of municipal and international law norms subjecting the territorial sea or archipelagic waters to necessary, if not marginal, burdens in the interest of maintaining unimpeded, expeditious international navigation, consistent with the international law principle of freedom of navigation. Thus, domestically,

the political branches of the Philippine government, in the competent discharge of their constitutional powers, may pass legislation designating routes within the archipelagic waters to regulate innocent and sea lanes passage.40 Indeed, bills drawing nautical highways for sea lanes passage are now pending in Congress.41 In the absence of municipal legislation, international law norms, now codified in UNCLOS III, operate to grant innocent passage rights over the territorial sea or archipelagic waters, subject to the treatys limitations and conditions for their exercise.42 Significantly, the right of innocent passage is a customary international law,43 thus automatically incorporated in the corpus of Philippine law.44 No modern State can validly invoke its sovereignty to absolutely forbid innocent passage that is exercised in accordance with customary international law without risking retaliatory measures from the international community. The fact that for archipelagic States, their archipelagic waters are subject to both the right of innocent passage and sea lanes passage45 does not place them in lesser footing vis--vis continental coastal States which are subject, in their territorial sea, to the right of innocent passage and the right of transit passage through international straits. The imposition of these passage rights through archipelagic waters under UNCLOS III was a concession by archipelagic States, in exchange for their right to claim all the waters landward of their baselines, regardless of their depth or distance from the coast, as archipelagic waters subject to their territorial sovereignty. More importantly, the recognition of archipelagic States archipelago and the waters enclosed by their baselines as one cohesive entity prevents the treatment of their islands as separate islands under UNCLOS III.46 Separate islands generate their own maritime zones, placing the waters between islands separated by more than 24 nautical miles beyond the States territorial sovereignty, subjecting these waters to the rights of other States under UNCLOS III.47 Petitioners invocation of non-executory constitutional provisions in Article II (Declaration of Principles and State Policies)48 must also fail. Our present state of jurisprudence considers the provisions in Article II as mere legislative guides, which, absent enabling legislation, do not embody judicially enforceable constitutional rights x x x.49 Article II provisions serve as guides in formulating and interpreting implementing legislation, as well as in

interpreting executory provisions of the Constitution. Although Oposa v. Factoran50 treated the right to a healthful and balanced ecology under Section 16 of Article II as an exception, the present petition lacks factual basis to substantiate the claimed constitutional violation. The other provisions petitioners cite, relating to the protection of marine wealth (Article XII, Section 2, paragraph 251) and subsistence fishermen (Article XIII, Section 752), are not violated by RA 9522. In fact, the demarcation of the baselines enables the Philippines to delimit its exclusive economic zone, reserving solely to the Philippines the exploitation of all living and non-living resources within such zone. Such a maritime delineation binds the international community since the delineation is in strict observance of UNCLOS III. If the maritime delineation is contrary to UNCLOS III, the international community will of course reject it and will refuse to be bound by it. UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III creates a sui generis maritime space the exclusive economic zone in waters previously part of the high seas. UNCLOS III grants new rights to coastal States to exclusively exploit the resources found within this zone up to 200 nautical miles.53 UNCLOS III, however, preserves the traditional freedom of navigation of other States that attached to this zone beyond the territorial sea before UNCLOS III. RA 9522 and the Philippines Maritime Zones Petitioners hold the view that, based on the permissive text of UNCLOS III, Congress was not bound to pass RA 9522.54 We have looked at the relevant provision of UNCLOS III55 and we find petitioners reading plausible. Nevertheless, the prerogative of choosing this option belongs to Congress, not to this Court. Moreover, the luxury of choosing this option comes at a very steep price. Absent an UNCLOS III compliant baselines law, an archipelagic State like the Philippines will find itself devoid of internationally acceptable baselines from where the breadth of its maritime zones and continental shelf is measured. This is recipe for a two-fronted disaster: first, it sends an open invitation to the seafaring powers to freely enter and exploit the resources in the waters and submarine areas around our archipelago; and second, it

weakens the countrys case in any international dispute over Philippine maritime space. These are consequences Congress wisely avoided. The enactment of UNCLOS III compliant baselines law for the Philippine archipelago and adjacent areas, as embodied in RA 9522, allows an internationally-recognized delimitation of the breadth of the Philippines maritime zones and continental shelf. RA 9522 is therefore a most vital step on the part of the Philippines in safeguarding its maritime zones, consistent with the Constitution and our national interest. WHEREFORE, we DISMISS the petition. SO ORDERED.

ANTONIO T. CARPIO Associate Justice WE CONCUR:

RENATO C. CORONA Chief Justice

(Pls. see concurring PRESBITERO J. VELASCO, JR. Associate Justice

opinion) TERESITA J. LEONARDODE CASTRO Associate Justice

ARTURO D. BRION Associate Justice

LUCAS P. BERSAMIN Associate Justice

DIOSDADO M. PERALTA Associate Justice

MARIANO C. DEL CASTILLO Associate Justice

I certify that Mr. Justice left his concurring ROBERTO A. ABAD Associate Justice

Abad MARTIN S. VILLARAMA, JR. vote. Associate Justice

(on JOSE PORTUGAL PEREZ Associate Justice

leave) JOSE C. MENDOZA Associate Justice

MARIA LOURDES P. A. SERENO Associate Justice

CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

RENATO C. CORONA Chief Justice

1Entitled An Act to Amend Certain Provisions of Republic Act No. 3046, as Amended by Republic Act No. 5446, to Define the Archipelagic Baselines of the Philippines, and for Other Purposes. 2 Entitled An Act to Define the Baselines of the Territorial Sea of the Philippines. 3 The third Whereas Clause of RA 3046 expresses the import of treating the Philippines as an archipelagic State: WHEREAS, all the waters around, between, and connecting the various islands of the Philippine archipelago, irrespective of their width or dimensions, have always been considered as necessary appurtenances of the land territory, forming part of the inland waters of the Philippines. 4 One of the four conventions framed during the first United Nations Convention on the Law of the Sea in Geneva, this treaty, excluding the Philippines, entered into force on 10 September 1964. 5 UNCLOS III entered into force on 16 November 1994. 6 The Philippines signed the treaty on 10 December 1982. 7 Article 47, paragraphs 1-3, provide: 1. An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1. 2. The length of such baselines shall not exceed 100 nautical miles, except that up to 3 per cent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles.

3. The drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago. (Emphasis supplied)

xxxx 8UNCLOS III entered into force on 16 November 1994. The deadline for the filing of application is mandated in Article 4, Annex II: Where a coastal State intends to establish, in accordance with article 76, the outer limits of its continental shelf beyond 200 nautical miles, it shall submit particulars of such limits to the Commission along with supporting scientific and technical data as soon as possible but in any case within 10 years of the entry into force of this Convention for that State. The coastal State shall at the same time give the names of any Commission members who have provided it with scientific and technical advice. (Underscoring supplied) In a subsequent meeting, the States parties agreed that for States which became bound by the treaty before 13 May 1999 (such as the Philippines) the ten-year period will be counted from that date. Thus, RA 9522, which took effect on 27 March 2009, barely met the deadline. 9 Rollo, p. 34. 10Which provides: The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines. 11Entered into between the Unites States and Spain on 10 December 1898 following the conclusion of the Spanish-American War. Under the terms of the treaty, Spain ceded to the United States the archipelago known as the Philippine Islands lying within its technical description. 12 The Treaty of Washington, between Spain and the United States (7 November 1900), transferring to the US the islands of Cagayan, Sulu, and Sibutu and the US-Great Britain Convention (2 January 1930) demarcating boundary lines between the Philippines and North Borneo. 13 Article II, Section 7, Section 8, and Section 16. 14 Allegedly in violation of Article XII, Section 2, paragraph 2 and Article XIII, Section 7 of the Constitution. 15 Kilosbayan, Inc. v. Morato, 320 Phil. 171, 186 (1995).

16 Pascual v. Secretary of Public Works, 110 Phil. 331 (1960); Sanidad v. COMELEC, 165 Phil. 303 (1976). 17Francisco, Jr. v. House of Representatives, 460 Phil. 830, 899 (2003) citing Kilosbayan, Inc. v. Guingona, Jr., G.R. No. 113375, 5 May 1994, 232 SCRA 110, 155-156 (1995) (Feliciano, J., concurring). The two other factors are: the character of funds or assets involved in the controversy and a clear disregard of constitutional or statutory prohibition. Id. 18. Rollo, pp. 144-147. 19See e.g. Aquino III v. COMELEC, G.R. No. 189793, 7 April 2010, 617 SCRA 623 (dismissing a petition for certiorari and prohibition assailing the constitutionality of Republic Act No. 9716, not for the impropriety of remedy but for lack of merit); Aldaba v. COMELEC, G.R. No. 188078, 25 January 2010, 611 SCRA 137 (issuing the writ of prohibition to declare unconstitutional Republic Act No. 9591); Macalintal v. COMELEC, 453 Phil. 586 (2003) (issuing the writs of certiorari and prohibition declaring unconstitutional portions of Republic Act No. 9189). 20See e.g. Neri v. Senate Committee on Accountability of Public Officers and Investigations, G.R. No. 180643, 25 March 2008, 549 SCRA 77 (granting a writ of certiorari against the Philippine Senate and nullifying the Senate contempt order issued against petitioner). 21 Rollo, p. 31. 22Respondents state in their Comment that petitioners theory has not been accepted or recognized by either the United States or Spain, the parties to the Treaty of Paris. Respondents add that no State is known to have supported this proposition. Rollo, p. 179. 23UNCLOS III belongs to that larger corpus of international law of the sea, which petitioner Magallona himself defined as a body of treaty rules and customary norms governing the uses of the sea, the exploitation of its resources, and the exercise of jurisdiction over maritime regimes. x x x x (Merlin M. Magallona, Primer on the Law of the Sea 1 [1997]) (Italicization supplied). 24 Following Article 47 (1) of UNCLOS III which provides: An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1. (Emphasis supplied)

25 Under the United Nations Charter, use of force is no longer a valid means of acquiring territory. 26 The last paragraph of the preamble of UNCLOS III states that matters not regulated by this Convention continue to be governed by the rules and principles of general international law. 27 Rollo, p. 51. 28 Id. at 51-52, 64-66. 29 Based on figures respondents submitted in their Comment (id. at 182). 30 Under Article 74. 31 See note 7. 32 Presidential Decree No. 1596 classifies the KIG as a municipality of Palawan. 33 KIG lies around 80 nautical miles west of Palawan while Scarborough Shoal is around 123 nautical west of Zambales. 34 Journal, Senate 14th Congress 44th Session 1416 (27 January 2009). 35 Rollo, p. 159. 36 Section 2, RA 9522. 37 Article 121 provides: Regime of islands. 1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide. 2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory. 3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf. 38 Rollo, pp. 56-57, 60-64. 39Paragraph 2, Section 2, Article XII of the Constitution uses the term archipelagic waters separately from territorial sea. Under UNCLOS III, an archipelagic State may have internal waters such as those enclosed by closing lines across bays and mouths of rivers. See Article 50, UNCLOS III. Moreover, Article 8 (2) of UNCLOS III provides: Where the establishment of a straight baseline in accordance with the method set forth in article 7 has the effect of enclosing as internal waters areas which had not previously been considered as such, a right of innocent passage as provided in this Convention shall exist in those waters. (Emphasis supplied) 40 Mandated under Articles 52 and 53 of UNCLOS III: Article 52. Right of innocent passage.

1. Subject to article 53 and without prejudice to article 50, ships of all States enjoy the right of innocent passage through archipelagic waters, in accordance with Part II, section 3. 2. The archipelagic State may, without discrimination in form or in fact among foreign ships, suspend temporarily in specified areas of its archipelagic waters the innocent passage of foreign ships if such suspension is essential for the protection of its security. Such suspension shall take effect only after having been duly published. (Emphasis supplied) Article 53. Right of archipelagic sea lanes passage. 1. An archipelagic State may designate sea lanes and air routes thereabove, suitable for the continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea. 2. All ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea lanes and air routes. 3. Archipelagic sea lanes passage means the exercise in accordance with this Convention of the rights of navigation and overflight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone. 4. Such sea lanes and air routes shall traverse the archipelagic waters and the adjacent territorial sea and shall include all normal passage routes used as routes for international navigation or overflight through or over archipelagic waters and, within such routes, so far as ships are concerned, all normal navigational channels, provided that duplication of routes of similar convenience between the same entry and exit points shall not be necessary. 5. Such sea lanes and air routes shall be defined by a series of continuous axis lines from the entry points of passage routes to the exit points. Ships and aircraft in archipelagic sea lanes passage shall not deviate more than

25 nautical miles to either side of such axis lines during passage, provided that such ships and aircraft shall not navigate closer to the coasts than 10 per cent of the distance between the nearest points on islands bordering the sea lane. 6. An archipelagic State which designates sea lanes under this article may also prescribe traffic separation schemes for the safe passage of ships through narrow channels in such sea lanes. 7. An archipelagic State may, when circumstances require, after giving due publicity thereto, substitute other sea lanes or traffic separation schemes for any sea lanes or traffic separation schemes previously designated or prescribed by it. 8. Such sea lanes and traffic separation schemes shall conform to generally accepted international regulations. 9. In designating or substituting sea lanes or prescribing or substituting traffic separation schemes, an archipelagic State shall refer proposals to the competent international organization with a view to their adoption. The organization may adopt only such sea lanes and traffic separation schemes as may be agreed with the archipelagic State, after which the archipelagic State may designate, prescribe or substitute them. 10. The archipelagic State shall clearly indicate the axis of the sea lanes and the traffic separation schemes designated or prescribed by it on charts to which due publicity shall be given. 11. Ships in archipelagic sea lanes passage shall respect applicable sea lanes and traffic separation schemes established in accordance with this article. 12. If an archipelagic State does not designate sea lanes or air routes, the right of archipelagic sea lanes passage may be exercised through the routes normally used for international navigation. (Emphasis supplied) 41Namely, House Bill No. 4153 and Senate Bill No. 2738, identically titled AN ACT TO ESTABLISH THE ARCHIPELAGIC SEA LANES IN THE PHILIPPINE ARCHIPELAGIC WATERS, PRESCRIBING THE RIGHTS AND OBLIGATIONS OF FOREIGN SHIPS AND AIRCRAFTS EXERCISING THE

RIGHT OF ARCHIPELAGIC SEA LANES PASSAGE THROUGH THE ESTABLISHED ARCHIPELAGIC SEA LANES AND PROVIDING FOR THE ASSOCIATED PROTECTIVE MEASURES THEREIN. 42 The relevant provision of UNCLOS III provides: Article 17. Right of innocent passage. Subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea. (Emphasis supplied) Article 19. Meaning of innocent passage. 1. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law. 2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities: (a) any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations; (b) any exercise or practice with weapons of any kind; (c) any act aimed at collecting information to the prejudice of the defence or security of the coastal State; (d) any act of propaganda aimed at affecting the defence or security of the coastal State; (e) the launching, landing or taking on board of any aircraft; (f) the launching, landing or taking on board of any military device; (g) the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State; (h) any act of willful and serious pollution contrary to this Convention;

(i) any fishing activities; (j) the carrying out of research or survey activities; (k) any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State; (l) any other activity not having a direct bearing on passage Article 21. Laws and regulations of the coastal State relating to innocent passage. 1. The coastal State may adopt laws and regulations, in conformity with the provisions of this Convention and other rules of international law, relating to innocent passage through the territorial sea, in respect of all or any of the following: (a) the safety of navigation and the regulation of maritime traffic; (b) the protection of navigational aids and facilities and other facilities or installations; (c) the protection of cables and pipelines; (d) the conservation of the living resources of the sea; (e) the prevention of infringement of the fisheries laws and regulations of the coastal State; (f) the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof; (g) marine scientific research and hydrographic surveys; (h) the prevention of infringement of the customs, fiscal, immigration or sanitary laws and regulations of the coastal State. 2. Such laws and regulations shall not apply to the design, construction, manning or equipment of foreign ships unless they are giving effect to generally accepted international rules or standards. 3. The coastal State shall give due publicity to all such laws and regulations. 4. Foreign ships exercising the right of innocent passage through the territorial sea shall comply with all such laws and regulations and all generally accepted

international regulations relating to the prevention of collisions at sea. 43The right of innocent passage through the territorial sea applies only to ships and not to aircrafts (Article 17, UNCLOS III). The right of innocent passage of aircrafts through the sovereign territory of a State arises only under an international agreement. In contrast, the right of innocent passage through archipelagic waters applies to both ships and aircrafts (Article 53 (12), UNCLOS III). 44Following Section 2, Article II of the Constitution: Section 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. (Emphasis supplied) 45Archipelagic sea lanes passage is essentially the same as transit passage through straits to which the territorial sea of continental coastal State is subject. R.R. Churabill and A.V. Lowe, The Law of the Sea 127 (1999). 46 Falling under Article 121 of UNCLOS III (see note 37). 47 Within the exclusive economic zone, other States enjoy the following rights under UNCLOS III: Article 58. Rights and duties of other States in the exclusive economic zone. 1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention. 2. Articles 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with this Part. xxxx Beyond the exclusive economic zone, other States enjoy the freedom of the high seas, defined under UNCLOS III as follows:

Article 87. Freedom of the high seas. 1. The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States: (a) freedom of navigation; (b) freedom of overflight; (c) freedom to lay submarine cables and pipelines, subject to Part VI; (d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI; (e) freedom of fishing, subject to the conditions laid down in section 2; (f) freedom of scientific research, subject to Parts VI and XIII. 2. These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area. 48 See note 13. 49 Kilosbayan, Inc. v. Morato, 316 Phil. 652, 698 (1995); Taada v. Angara, 338 Phil. 546, 580-581 (1997). 50 G.R. No. 101083, 30 July 1993, 224 SCRA 792. 51 The State shall protect the nations marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens. 52The State shall protect the rights of subsistence fishermen, especially of local communities, to the preferential use of the communal marine and fishing resources, both inland and offshore. It shall provide support to such fishermen through appropriate technology and research, adequate financial, production, and marketing assistance, and other services. The State shall also protect, develop, and conserve such resources. The protection shall extend to offshore fishing grounds of subsistence fishermen against foreign intrusion. Fishworkers shall receive a just share from their labor in the utilization of marine and fishing resources.

53This can extend up to 350 nautical miles if the coastal State proves its right to claim an extended continental shelf (see UNCLOS III, Article 76, paragraphs 4(a), 5 and 6, in relation to Article 77). 54 Rollo, pp. 67-69. 55Article 47 (1) provides: An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1. (Emphasis supplied) Facts: In March 2009, R.A. 9522 was enacted by the Congress to comply with the terms of the United Nations Convention on the Law of the Sea (UNCLOS III), which the Philippines ratified on February 27, 1984. Professor Merlin Magallona et al questioned the validity of RA 9522 as they contend, among others, that the law decreased the national territory of the Philippines. Some of their particular arguments are as follows: 1. RA 9522 reduces Philippine maritime territory, and logically, the reach of the Philippine state’s sovereign power, in violation of Article 1 of the 1987 Constitution, embodying the terms of the Treaty of Paris and ancillary treaties. 2. RA 9522 opens the country’s waters landward of the baselines to maritime passage by all vessels and aircrafts, undermining Philippine sovereignty and national security, contravening the country’s nuclear-free policy, and damaging marine resources, in violation of relevant constitutional provisions. 3. RA 9522’s treatmentof the KIG as “regime of islands” not only results in the loss of a large maritime area but also prejudices the livelihood of subsistence fishermen. Hence, petitioners files action for the writs of certiorari and prohibition assails the constitutionality of Republic Act No. 95221 (RA 9522) adjusting the country’s archipelagic baselines and classifying the baseline regime of nearby territories. Issues:

Whether or not RA 9522, the amendatory Philippine Baseline Law is unconstitutional. Discussions: The provision of Art I 198 Constitution clearly affirms the archipelagic doctrine, which we connect the outermost points of our archipelago with straight baselines and consider all the waters enclosed thereby as internal waters. RA 9522, as a Statutory Tool to Demarcate the Country’s Maritime Zones and Continental Shelf Under UNCLOS III, gave nothing less than an explicit definition in congruent with the archipelagic doctrine.

Rulings: No. The Court finds R.A. 9522 constitutional. It is a Statutory Tool to Demarcate the Country’s Maritime Zones and Continental Shelf Under UNCLOS III, not to Delineate Philippine Territory. It is a vital step in safeguarding the country’s maritime zones. It also allows an internationallyrecognized delimitation of the breadth of the Philippine’s maritime zones and continental shelf. Additionally, The Court finds that the conversion of internal waters into archipelagic waters will not risk the Philippines as affirmed in the Article 49 of the UNCLOS III, an archipelagic State has sovereign power that extends to the waters enclosed by the archipelagic baselines, regardless of their depth or distance from the coast. It is further stated that the regime of archipelagic sea lanes passage will not affect the status of its archipelagic waters or the exercise of sovereignty over waters and air space, bed and subsoil and the resources therein. The Court further stressed that the baseline laws are mere mechanisms for the UNCLOS III to precisely describe the delimitations. It serves as a notice to the international family of states and it is in no way affecting or producing any effect like enlargement or diminution of territories. G.R. No. 151445 April 11, 2002 Lim v. Executive Secretary Lessons Applicable:

Locus Standi, International Law v. Muncipal Law,

Certiorari, Laws

Incorporation Applicable:

Clause,

Treaties Constitution

FACTS: Pursuant to the Visiting Forces Agreement (VFA) signed in 1999, personnel from the armed forces of the United States of America started arriving in Mindanao to take partin "Balikatan 02-1” on January 2002. The Balikatan 021 exercises involves the simulation of joint military maneuvers pursuant to the Mutual Defense Treaty, a bilateral defense agreement entered into by the Philippines and the United States in 1951. The exercise is rooted from the international anti-terrorism campaign declared by President George W. Bush in reaction to the 3 commercial aircrafts hijacking that smashed into twin towers of the World Trade Center in New York City and the Pentagon building in Washington, D.C. allegedly by the al-Qaeda headed by the Osama bin Laden that occurred on September 11, 2001. Arthur D. Lim and Paulino P. Ersando as citizens, lawyers and taxpayers filed a petition for certiorari and prohibition attacking the constitutionality of the joint exercise. Partylists Sanlakas and Partido Ng Manggagawa as residents of Zamboanga and Sulu directly affected by the operations filed a petition-in-intervention. The Solicitor General commented the prematurity of the action as it is based only on a fear of future violation of the Terms of Reference and impropriety of availing of certiorari to ascertain a question of fact specifically interpretation of the VFA whether it is covers "Balikatan 02-1” and no question of constitutionality is involved. Moreover, there is lack of locus standi since it does not involve tax spending and there is no proof of direct personal injury. ISSUE: W/N the petition and the petition-in-intervention should prosper. HELD: NO. Petition and the petition-in-intervention are hereby DISMISSED without prejudice to the filing of a new petition sufficient in form and substance in the proper Regional Trial Court - Supreme Court is not a trier of

facts Doctrine of Importance to the Public Considering however the importance to the public of the case at bar, and in keeping with the Court's duty, under the 1987 Constitution, to determine whether or not the other branches of the government have kept themselves within the limits of the Constitution and the laws that they have not abused the discretion given to them, the Court has brushed aside technicalities of procedure and has taken cognizance of this petition. Although courts generally avoid having to decide a constitutional question based on the doctrine of separation of powers, which enjoins upon the department of the government a becoming respect for each other's act, this Court nevertheless resolves to take cognizance of the instant petition. Interpretation of Treaty The VFA permits United States personnel to engage, on an impermanent basis, in "activities," the exact meaning of which was left undefined. The expression is ambiguous, permitting a wide scope of undertakings subject only to the approval of the Philippine government. The sole encumbrance placed on its definition is couched in the negative, in that United States personnel must "abstain from any activity inconsistent with the spirit of this agreement, and in particular, from any political activity." All other activities, in other words, are fair game. To aid in this, the Vienna Convention on the Law of Treaties Article 31 SECTION 3 and Article 32 contains provisos governing interpretations of international agreements. It is clear from the foregoing that the cardinal rule of interpretation must involve an examination of the text, which is presumed to verbalize the parties' intentions. The Convention likewise dictates what may be used as aids to deduce the meaning of terms, which it refers to as the context of the treaty, as well as other elements may be taken into account alongside the aforesaid context. According to Professor Briggs, writer on the Convention, the distinction between the general rule of interpretation and the supplementary means of interpretation is intended rather to ensure that the supplementary means do not constitute an alternative, autonomous method

of interpretation divorced from the general rule. The meaning of the word “activities" was deliberately made that way to give both parties a certain leeway in negotiation. Thus, the VFA gives legitimacy to the current Balikatan exercises. Both the history and intent of the Mutual Defense Treaty and the VFA support the conclusion that combat-related activities -as opposed to combat itself -such as the one subject of the instant petition, are indeed authorized. The Terms of Reference are explicit enough. Paragraph 8 of section I stipulates that US exercise participants may not engage in combat "except in self-defense." ." The indirect violation is actually petitioners' worry, that in reality, "Balikatan 02-1" is actually a war principally conducted by the United States government, and that the provision on self-defense serves only as camouflage to conceal the true nature of the exercise. A clear pronouncement on this matter thereby becomes crucial. In our considered opinion, neither the MDT nor the VFA allow foreign troops to engage in an offensive war on Philippine territory. Under the salutary proscription stated in Article 2 of the Charter of the United Nations. Both the Mutual Defense Treaty and the Visiting Forces Agreement, as in all other treaties and international agreements to which the Philippines is a party, must be read in the context of the 1987 Constitution especially Sec. 2, 7 and 8 of Article 2: Declaration of Principles and State Policies in this case. The Constitution also regulates the foreign relations powers of the Chief Executive when it provides that "[n]o treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate." Even more pointedly Sec. 25 on Transitory Provisions which shows antipathy towards foreign military presence in the country, or of foreign influence in general. Hence, foreign troops are allowed entry into the Philippines only by way of direct exception. International Law vs. Fundamental Law and Municipal Laws Conflict arises then between the fundamental law and our obligations arising from international agreements. Philip Morris, Inc. v. Court of Appeals: “Withal, the fact that international law has been made part of the law of the land does not by any means imply the primacy of international law over national law in the municipal sphere. Under

the doctrine of incorporation as applied in most countries, rules of international law are given a standing equal, not superior, to national legislation.” From the perspective of public international law, a treaty is favored over municipal law pursuant to the principle of pacta sunt servanda. Hence, "[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith." Further, a party to a treaty is not allowed to "invoke the provisions of its internal law as justification for its failure to perform a treaty." Our Constitution espouses the opposing view as stated in section 5 of Article VIII: “The Supreme Court shall have the following powers: xxx (2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and order of lower courts in: (A) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.” Ichong v. Hernandez: “provisions of a treaty are always subject to qualification or amendment by a subsequent law, or that it is subject to the police power of the State” Gonzales v. Hechanova: “our Constitution authorizes the nullification of a treaty, not only when it conflicts with the fundamental law, but, also, when it runs counter to an act of Congress.” The foregoing premises leave us no doubt that US forces are prohibited / from engaging in an offensive war on Philippine territory.