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576 Phil. 357

EN BANC

[ G. R. No. 167011, April 30, 2008 ]

SPOUSES CARLOS S. ROMUALDEZ AND ERLINDA R. ROMUALDEZ, PETITIONERS, VS. COMMISSION ON ELECTIONS AND DENNIS GARAY, RESPONDENTS.

D E C I S I O N

CHICO-NAZARIO, J.:

This treats of the Petition for Review on Certiorari with a prayer for the issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction filed by petitioners Spouses Carlos S. Romualdez and Erlinda R. Romualdez seeking to annul and set aside the Resolutions, dated 11 June 2004[1] and 27 January 2005[2] of the Commission on Elections (COMELEC) in E.O. Case No. 2000-36. In the Resolution of 11 June 2004, the COMELEC En Banc directed the Law Department to file the appropriate Information with the proper court against petitioners Carlos S. Romualdez and Erlinda Romualdez for violation of Section 10(g) and (j)[3] in relation to Section 45(j)[4] of Republic Act No. 8189, otherwise known as The Voter's Registration Act of 1996.[5] Petitioners' Motion for Reconsideration thereon was denied.

The factual antecedents leading to the instant Petition are presented hereunder:

On 12 July 2000, private respondent Dennis Garay, along with Angelino Apostol[6] filed a Complaint-Affidavit[7] with the COMELEC thru the Office of the Election Officer in Burauen, Leyte, charging petitioners with violation of Section 261(y)(2)[8] and Section 261(y)(5)[9] of the Omnibus Election Code, similarly referred to as Batas Pambansa Blg. 881; and Section 12[10] of Republic Act No. 8189.

Private respondent deposed, inter alia, that: petitioners are of legal ages and residents of 113 Mariposa Loop, Mariposa Street, Bagong Lipunan ng Crame, Quezon City; on 9 May 2000 and 11 May 2000, petitioners Carlos S. Romualdez and Erlinda R. Romualdez, applied for registration as new voters with the Office of the Election Officer of Burauen, Leyte, as evidenced by Voter Registration Record Nos. 42454095 and 07902952, respectively; in their sworn applications, petitioners made false and untruthful representations in violation of Section 10[11] of Republic Act Nos. 8189, by indicating therein that they are residents of 935 San Jose Street, Burauen, Leyte, when in truth and in fact, they were and still are residents of 113 Mariposa Loop, Mariposa Street, Bagong Lipunan ng Crame, Quezon City, and registered voters of Barangay Bagong Lipunan ng Crame, District IV, Quezon City, Precinct No. 4419-A, as evidenced by Voter Registration Record Nos. 26195824 and 26195823; and that petitioners, knowing fully well said truth, intentionally and willfully, did not fill the blank spaces in said applications corresponding to the length of time which they have resided in Burauen, Leyte. In fine, private respondent charged petitioners, to wit:
Respondent-spouses, Carlos Sison Romualdez and Erlinda Reyes Romualdez committed and consummated election offenses in violation of our election laws, specifically, Sec. 261, paragraph (y), subparagraph (2), for knowingly making any false or untruthful statements relative to any data or information required in the application for registration, and of Sec. 261, paragraph (y), subparagraph (5), committed by any person who, being a registered voter, registers anew without filing an application for cancellation of his previous registration, both of the Omnibus Election Code (BP Blg. 881), and of Sec. 12, RA 8189 (Voter Registration Act) for failure to apply for transfer of registration records due to change of residence to another city or municipality."[12]
The Complaint-Affidavit contained a prayer that a preliminary investigation be conducted by the COMELEC, and if the evidence so warrants, the corresponding Information against petitioners be filed before the Regional Trial Court (RTC) for the prosecution of the same.

Petitioners filed a Joint Counter-Affidavit with Motion to Dismiss[13] dated 2 April 2001. They contended therein that they did not make any false or untruthful statements in their application for registration. They avowed that they intended to reside in Burauen, Leyte, since the year 1989. On 9 May 2000, they took actual residence in Burauen, Leyte, by leasing for five (5) years, the house of Juanito and Fe Renomeron at No. 935, San Jose Street in Burauen, Leyte. On even date, the Barangay District III Council of Burauen passed a Resolution of Welcome, expressing therein its gratitude and appreciation to petitioner Carlos S. Romualdez for choosing the Barangay as his official residence.[14]

On 28 November 2003, Atty. Maria Norina S. Tangaro-Casingal, COMELEC Investigating Officer, issued a Resolution, recommending to the COMELEC Law Department (Investigation and Prosecution Division), the filing of the appropriate Information against petitioners, disposing, thus:
PREMISES CONSIDERED, the Law Department (Investigation and Prosecution Division), RECOMMENDS to file the necessary information against Carlos Sison Romualdez before the proper Regional Trial Court for violation of Section 10 (g) and (j) in relation to Section 45 (j) of Republic Act 8189 and to authorize the Director IV of the Law Department to designate a Comelec Prosecutor to handle the prosecution of the case with the duty to submit periodic report after every hearing of the case.[15]
On 11 June 2004, the COMELEC En Banc found no reason to depart from the recommendatory Resolution of 28 November 2003, and ordered, viz:
WHEREFORE, premises considered, the Law Department is hereby directed to file the appropriate information with the proper court against respondents CARLOS S. ROMUALDEZ AND ERLINDA ROMUALDEZ for violation of Section 10 (g) and (j) in relation to Section 45 (j) of the Republic Act No. 8189.[16]
Petitioners filed a Motion for Reconsideration thereon.

Acting on the Motion, the COMELEC found no cogent reason to disturb the assailed En Banc Resolution of 11 June 2004,[17] rationalizing, thus:
However, perusal of the records reveal (sic) that the arguments and issues raised in the Motion for Reconsideration are merely a rehash of the arguments advanced by the Respondents in [their] Memorandum received by the Law Department on 17 April 2001, the same [w]as already considered by the Investigating Officer and was discussed in her recommendation which eventually was made as the basis for the En Banc's resolution.

As aptly observed by the Investigating Officer, the filing of request for the cancellation and transfer of Voting Registration Record does not automatically cancel the registration records. The fact remains that at the time of application for registration as new voter of the herein Respondents on May 9 and 11, 2001 in the Office of Election Officer of Burauen, Leyte their registration in Barangay 4419-A, Barangay Bagong Lipunan ng Crame Quezon City was still valid and subsisting.[18]
On 12 January 2006, Alioden D. Dalaig, Director IV, Law Department of the COMELEC filed with the RTC, Burauen, Leyte, separate Informations against petitioner Carlos S. Romualdez[19] for violation of Section 10(g), in relation to Section 45(j) of Republic Act No. 8189, and against petitioner Erlinda R. Romualdez[20] for violation of Section 10(g), in relation to Section 45(j) of Republic Act No. 8189, subsequently docketed as Crim. Case No. BN-06-03-4185 and Crim. Case No. BN-06-03-4183, respectively. Moreover, separate Informations for violation of Section 10(j), in relation to Section 45(j) of Republic Act No. 8189 were filed against petitioners.[21]

Hence, petitioners come to us via the instant Petition, submitting the following arguments:

I

RESPONDENT COMMISSION ON ELECTIONS GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF ITS JURISDICTION; and

II

COMELEC GRAVELY ABUSED ITS DISCRETION WHEN IT PREMISED ITS RESOLUTION ON A MISAPPREHENSION OF FACTS AND FAILED TO CONSIDER CERTAIN RELEVANT FACTS THAT WOULD JUSTIFY A DIFFERENT CONCLUSION.[22]
On 4 May 2006, petitioners filed a Motion Reiterating Prayer for Issuance of Writ of Preliminary Injunction and to Cite for Indirect Contempt,[23] alleging that two separate Informations, both dated 12 January 2006, were filed with the RTC by the COMELEC against petitioner Carlos S. Romualdez for violation of Section 10(j), in relation to Section 45(j) of Republic Act No. 8189, in Criminal Case No. BN-06-03-9184; and for violation of Section 10(g), in relation to Section 45(j) of Republic Act No. 8189, in Criminal Case No. BN-06-03-9185. Similarly, the Motion alleged that the COMELEC filed with the RTC, two separate Informations, both dated 12 January 2006, against petitioner Erlinda R. Romualdez, charging her with the same offenses as those charged against petitioner Carlos S. Romualdez, and thereafter, docketed as Criminal Case No. BN-06-03-9182, and No. BN-06-03-9183.

On 20 June 2006, this Court issued a Resolution[24] denying for lack of merit petitioners' Motion Reiterating Prayer for Issuance of Writ of Preliminary Injunction and to Cite for Indirect Contempt.

We shall now resolve, in seriatim, the arguments raised by petitioners.

Petitioners contend that the election offenses for which they are charged by private respondent are entirely different from those which they stand to be accused of before the RTC by the COMELEC. According to petitioners, private respondent's complaint charged them for allegedly violating, to wit: 1) Section 261(y)(2) and Section 261(y)(5) of the Omnibus Election Code, and 2) Section 12 of the Voter's Registration Act; however, the COMELEC En Banc directed in the assailed Resolutions, that they be charged for violations of Section 10(g) and (j), in relation to Section 45(j) of the Voter's Registration Act. Essentially, petitioners are of the view that they were not accorded due process of law. Specifically, their right to refute or submit documentary evidence against the new charges which COMELEC ordered to be filed against them. Moreover, petitioners insist that Section 45(j) of the Voter's Registration Act is vague as it does not refer to a definite provision of the law, the violation of which would constitute an election offense; hence, it runs contrary to Section 14(1)[25] and Section 14(2),[26] Article III of the 1987 Constitution.

We are not persuaded.

First. The Complaint-Affidavit filed by private respondent with the COMELEC is couched in a language which embraces the allegations necessary to support the charge for violation of Section 10(g) and (j), in relation to Section 45(j) of Republic Act No. 8189.

A reading of the relevant laws is in order, thus:

Section 10(g) and Section 10(j) of Republic Act No. 8189, provide as follows:
SEC. 10 - Registration of Voters.- A qualified voter shall be registered in the permanent list of voters in a precinct of the city or municipality wherein he resides to be able to vote in any election. To register as a voter, he shall personally accomplish an application form for registration as prescribed by the Commission in three (3) copies before the Election Officer on any date during office hours after having acquired the qualifications of a voter.

The application shall contain the following data:

x x x x

(g) Periods of residence in the Philippines and in the place of registration;

x x x x

(j) A statement that the application is not a registered voter of any precinct;

The application for registration shall contain three (3) specimen signatures of the applicant, clear and legible rolled prints of his left and right thumbprints, with four identification size copies of his latest photograph, attached thereto, to be taken at the expense of the Commission.

Before the applicant accomplishes his application for registration, the Election Officer shall inform him of the qualifications and disqualifications prescribed by law for a voter, and thereafter, see to it that the accomplished application contains all the data therein required and that the applicant's specimen signatures, fingerprints, and photographs are properly affixed in all copies of the voter's application.

Moreover, Section 45(j) of the same Act, recites, thus:

SEC. 45. Election Offense. - The following shall be considered election offenses under this Act:

x x x x

(j) Violation of any of the provisions of this Act.
Significantly, the allegations in the Complaint-Affidavit which was filed with the Law Department of the COMELEC, support the charge directed by the COMELEC En Banc to be filed against petitioners with the RTC. Even a mere perusal of the Complaint-Affidavit would readily show that Section 10 of Republic Act No. 8189 was specifically mentioned therein. On the matter of the acts covered by Section 10(g) and (j), the Complaint-Affidavit, spells out the following allegations, to wit:
  1. Respondent-spouses made false and untruthful representations in their applications (Annexes "B" and "C") in violation of the requirements of Section 10, RA 8189 (The Voter's Registration Act):

    5.1
    Respondent-spouses, in their sworn applications (Annexes "B" and "C", claimed to be residents of 935 San Jose [S]treet, Burauen, Leyte, when in truth and in fact, they were and still are residents of 113 Mariposa Loop, Mariposa [S]treet, Bagong Lipunan ng Crame, Quezon City and registered voters of Barangay Bagong Lipunan ng Crame, District IV, Quezon City, Precinct No. 4419-A, a copy of the Certification issued by Hon. Emmanuel V. Gozon, Punong Barangay, Bagong Lipunan ng Crame, Quezon City is hereto attached and made an integral part hereof, as Annex "D";


    5.2
    Respondent-spouses knowing fully well said truth, intentionally and willfully, did not fill the blank spaces in their applications (Annexes "B" and "C") corresponding to the length of time they have resided in Burauen, Leyte;

  2. Respondent-spouses, in (sic) all intents and purposes, were and still are residents and registered voters of Quezon City, as evidenced by Voter Registration Record Nos. 26195824 and 26195823, respectively; photocopies of which are hereto attached as Annexes "E" and "F"[.] Likewise, attached is a "Certification" (Annex "G") of Ms. Evelyn B. Bautista, Officer-in-Charge of the Office of the Election Officer, Fourth District, Quezon City, dated May 31, 2000, together with a certified copy of the computer print-out of the list of voters of Precinct No. 4419-A (Annex "G-1" ) containing the names of voters Carlos Romualdez and Erlinda Reyes Romualdez. The Certification reads as follows:

"THIS IS TO CERTIFY that as per office record MR. CARLOS ROMUALDEZ and MS. ERLINDA REYES ROMUALDEZ are registered voters of Barangay Bagong Lipunan ng Crame, District IV, Quezon City, Precinct Number 4419A with voters affidavit serial nos. 26195824 and 26195823, respectively.

This certification is issued for whatever legal purpose it may serve."

  1. Respondent-spouses, registered as new voters of the Municipality of Burauen, Leyte, [in spite of] the fact that they were and still are, registered voters of Quezon City as early as June 22, 1997;

    7.1 That, Double Registration is an election offense.



    A person qualified as a voter is only allowed to register once.



    If a person registers anew as a voter in spite of a subsisting registration, the new application for registration will be disapproved. The registrant is also liable not only for an election offense of double registration, but also for another election offense of knowingly making any false or untruthful statement relative to any data or information required in the application for registration.



    In fact, when a person applies for registration as a voter, he or she fills up a Voter Registration Record form in his or her own handwriting, which contains a Certification which reads:



    "I do solemnly swear that the above statements regarding my person are true and correct; that I possess all the qualifications and none of the disqualifications of a voter; that the thumbprints, specimen signatures and photographs appearing herein are mine; and that I am not registered as a voter in any other precinct."[27]

Petitioners cannot be said to have been denied due process on the claim that the election offenses charged against them by private respondent are entirely different from those for which they stand to be accused of before the RTC, as charged by the COMELEC. In the first place, there appears to be no incongruity between the charges as contained in the Complaint-Affidavit and the Informations filed before the RTC, notwithstanding the denomination by private respondent of the alleged violations to be covered by Section 261(y)(2) and Section 261(y)(5) of the Omnibus Election Code and Section 12 of Republic Act No. 8189. Evidently, the Informations directed to be filed by the COMELEC against petitioners, and which were, in fact, filed with the RTC, were based on the same set of facts as originally alleged in the private respondent's Complaint-Affidavit.

Petitioners buttress their claim of lack of due process by relying on the case of Lacson v. Executive Secretary.[28] Citing Lacson, petitioners argue that the real nature of the criminal charge is determined by the actual recital of facts in the Complaint or Information; and that the object of such written accusations was to furnish the accused with such a description of the charge against him, as will enable him to make his defense. Let it be said that, in Lacson, this court resolved the issue of whether under the allegations in the subject Informations therein, it is the Sandiganbayan or the Regional Trial Court which has jurisdiction over the multiple murder case against therein petitioner and intervenors. In Lacson, we underscored the elementary rule that the jurisdiction of a court is determined by the allegations in the Complaint or Information, and not by the evidence presented by the parties at the trial.[29] Indeed, in Lacson, we articulated that the real nature of the criminal charge is determined not from the caption or preamble of the Information nor from the specification of the provision of law alleged to have been violated, they being conclusions of law, but by the actual recital of facts in the Complaint or Information.[30]

Petitioners' reliance on Lacson, however, does not support their claim of lack of due process because, as we have said, the charges contained in private respondent's Complaint-Affidavit and the charges as directed by the COMELEC to be filed are based on the same set of facts. In fact, the nature of the criminal charges in private respondent's Complaint-Affidavit and that of the charges contained in the Informations filed with the RTC, pursuant to the COMELEC Resolution En Banc are the same, such that, petitioners cannot claim that they were not able to refute or submit documentary evidence against the charges that the COMELEC filed with the RTC. Petitioners were afforded due process because they were granted the opportunity to refute the allegations in private respondent's Complaint-Affidavit. On 2 April 2001, in opposition to the Complaint-Affidavit, petitioners filed a Joint Counter-Affidavit with Motion to Dismiss with the Law Department of the COMELEC. They similarly filed a Memorandum before the said body. Finding that due process was not dispensed with under the circumstances in the case at bar, we agree with the stance of the Office of the Solicitor General that petitioners were reasonably apprised of the nature and description of the charges against them. It likewise bears stressing that preliminary investigations were conducted whereby petitioners were informed of the complaint and of the evidence submitted against them. They were given the opportunity to adduce controverting evidence for their defense. In all these stages, petitioners actively participated.

The instant case calls to our minds Orquinaza v. People,[31] wherein the concerned police officer therein designated the offense charged as sexual harassment; but, the prosecutor found that there was no transgression of the anti-sexual harassment law, and instead, filed an Information charging therein petitioner with acts of lasciviousness. On a claim that there was deprivation of due process, therein petitioner argued that the Information for acts of lasciviousness was void as the preliminary investigation conducted was for sexual harassment. The court held that the designation by the police officer of the offense is not conclusive as it is within the competence of the prosecutor to assess the evidence submitted and determine therefrom the appropriate offense to be charged.

Accordingly, the court pronounced that the complaint contained all the allegations to support the charge of acts of lasciviousness under the Revised Penal Code; hence, the conduct of another preliminary investigation for the offense of acts of lasciviousness would be a futile exercise because the complainant would only be presenting the same facts and evidence which have already been studied by the prosecutor.[32] The court frowns upon such superfluity which only serves to delay the prosecution and disposition of the criminal complaint.[33]

Second. Petitioners would have this court declare Section 45(j) of Republic Act No. 8189 vague, on the ground that it contravenes the fair notice requirement of the 1987 Constitution, in particular, Section 14(1) and Section 14(2), Article III of thereof. Petitioners submit that Section 45(j) of Republic Act No. 8189 makes no reference to a definite provision of the law, the violation of which would constitute an election offense.

We are not convinced.

The void-for-vagueness doctrine holds that a law is facially invalid if men of common intelligence must necessarily guess at its meaning and differ as to its application.[34] However, this Court has imposed certain limitations by which a criminal statute, as in the challenged law at bar, may be scrutinized. This Court has declared that facial invalidation[35] or an "on-its-face" invalidation of criminal statutes is not appropriate.[36] We have so enunciated in no uncertain terms in Romualdez v. Sandiganbayan, [37] thus:
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing on their faces statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the established rule is that 'one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.' As has been pointed out, 'vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated [only] 'as applied' to a particular defendant.' (underscoring supplied)

To this date, the Court has not declared any penal law unconstitutional on the ground of ambiguity. While mentioned in passing in some cases, the void-for-vagueness concept has yet to find direct application in our jurisdiction. In Yu Cong Eng v. Trinidad, the Bookkeeping Act was found unconstitutional because it violated the equal protection clause, not because it was vague. Adiong v. Comelec decreed as void a mere Comelec Resolution, not a statute. Finally, Santiago v. Comelec held that a portion of RA 6735 was unconstitutional because of undue delegation of legislative powers, not because of vagueness.

Indeed, an on-its-face invalidation of criminal statutes would result in a mass acquittal of parties whose cases may not have even reached the courts. Such invalidation would constitute a departure from the usual requirement of actual case and controversy and permit decisions to be made in a sterile abstract context having no factual concreteness. In Younger v. Harris, this evil was aptly pointed out by the U.S. Supreme Court in these words:

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes, x x x ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided.

For this reason, generally disfavored is an on-its-face invalidation of statutes, described as a manifestly strong medicine to be employed sparingly and only as a last resort. In determining the constitutionality of a statute, therefore, its provisions that have allegedly been violated must be examined in the light of the conduct with which the defendant has been charged. (Emphasis supplied.)
At the outset, we declare that under these terms, the opinions of the dissent which seek to bring to the fore the purported ambiguities of a long list of provisions in Republic Act No. 8189 can be deemed as a facial challenge. An appropriate "as applied" challenge in the instant Petition should be limited only to Section 45 (j) in relation to Sections 10 (g) and (j) of Republic Act No. 8189--the provisions upon which petitioners are charged. An expanded examination of the law covering provisions which are alien to petitioners' case would be antagonistic to the rudiment that for judicial review to be exercised, there must be an existing case or controversy that is appropriate or ripe for determination, and not conjectural or anticipatory.

We further quote the relevant ruling in David v. Arroyo on the proscription anent a facial challenge:[38]
Moreover, the overbreadth doctrine is not intended for testing the validity of a law that reflects legitimate state interest in maintaining comprehensive control over harmful, constitutionally unprotected conduct. Undoubtedly, lawless violence, insurrection and rebellion are considered harmful and constitutionally unprotected conduct. In Broadrick v. Oklahoma, it was held:

It remains a matter of no little difficulty to determine when a law may properly be held void on its face and when such summary action is inappropriate. But the plain import of our cases is, at the very least, that facial overbreadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from pure speech toward conduct and that conduct even if expressive falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct.

Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their terms, seek to regulate only spoken words and again, that overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct. Here, the incontrovertible fact remains that PP 1017 pertains to a spectrum of conduct, not free speech, which is manifestly subject to state regulation.

Second, facial invalidation of laws is considered as manifestly strong medicine, to be used sparingly and only as a last resort, and is generally disfavored; The reason for this is obvious. Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a law may be applied will not be heard to challenge a law on the ground that it may conceivably be applied unconstitutionally to others, i.e., in other situations not before the Court. A writer and scholar in Constitutional Law explains further:

The most distinctive feature of the overbreadth technique is that it marks an exception to some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the unconstitutional aspects of the law by invalidating its improper applications on a case to case basis. Moreover, challengers to a law are not permitted to raise the rights of third parties and can only assert their own interests. In overbreadth analysis, those rules give way; challenges are permitted to raise the rights of third parties; and the court invalidates the entire statute on its face, not merely as applied for so that the overbroad law becomes unenforceable until a properly authorized court construes it more narrowly. The factor that motivates courts to depart from the normal adjudicatory rules is the concern with the chilling; deterrent effect of the overbroad statute on third parties not courageous enough to bring suit. The Court assumes that an overbroad laws very existence may cause others not before the court to refrain from constitutionally protected speech or expression. An overbreadth ruling is designed to remove that deterrent effect on the speech of those third parties.

In other words, a facial challenge using the overbreadth doctrine will require the Court to examine PP 1017 and pinpoint its flaws and defects, not on the basis of its actual operation to petitioners, but on the assumption or prediction that its very existence may cause others not before the Court to refrain from constitutionally protected speech or expression.

xxx xxx xxx

And third, a facial challenge on the ground of overbreadth is the most difficult challenge to mount successfully, since the challenger must establish that there can be no instance when the assailed law may be valid. Here, petitioners did not even attempt to show whether this situation exists.

Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. This, too, is unwarranted.

Related to the overbreadth doctrine is the void for vagueness doctrine which holds that a law is facially invalid if men of common intelligence must necessarily guess at its meaning and differ as to its application. It is subject to the same principles governing overbreadth doctrine. For one, it is also an analytical tool for testing on their faces statutes in free speech cases. And like overbreadth, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications.
Be that as it may, the test in determining whether a criminal statute is void for uncertainty is whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice.[39] This Court has similarly stressed that the vagueness doctrine merely requires a reasonable degree of certainty for the statute to be upheld - not absolute precision or mathematical exactitude.[40]

As structured, Section 45[41] of Republic Act No. 8189 makes a recital of election offenses under the same Act. Section 45(j) is, without doubt, crystal in its specification that a violation of any of the provisions of Republic Act No. 8189 is an election offense. The language of Section 45(j) is precise. The challenged provision renders itself to no other interpretation. A reading of the challenged provision involves no guesswork. We do not see herein an uncertainty that makes the same vague.

Notably, herein petitioners do not cite a word in the challenged provision, the import or meaning of which they do not understand. This is in stark contrast to the case of Estrada v. Sandiganbayan[42] where therein petitioner sought for statutory definition of particular words in the challenged statute. Even then, the Court in Estrada rejected the argument.

This Court reasoned:
The rationalization seems to us to be pure sophistry. A statute is not rendered uncertain and void merely because general terms are used therein, or because of the employment of terms without defining them; much less do we have to define every word we use. Besides, there is no positive constitutional or statutory command requiring the legislature to define each and every word in an enactment. Congress is not restricted in the form of expression of its will, and its inability to so define the words employed in a statute will not necessarily result in the vagueness or ambiguity of the law so long as the legislative will is clear, or at least, can be gathered from the whole act, which is distinctly expressed in the Plunder Law.

Moreover, it is a well-settled principle of legal hermeneutics that words of a statute will be interpreted in their natural, plain and ordinary acceptation and signification, unless it is evident that the legislature intended a technical or special legal meaning to those words. The intention of the lawmakers who are, ordinarily, untrained philologists and lexicographers to use statutory phraseology in such a manner is always presumed.
Perforce, this Court has underlined that an act will not be held invalid merely because it might have been more explicit in its wordings or detailed in its provisions, especially where, because of the nature of the act, it would be impossible to provide all the details in advance as in all other statutes.[43]

The evident intent of the legislature in including in the catena of election offenses the violation of any of the provisions of Republic Act No. 8189, is to subsume as punishable, not only the commission of proscribed acts, but also the omission of acts enjoined to be observed. On this score, the declared policy of Republic Act No. 8189 is illuminating. The law articulates the policy of the State to systematize the present method of registration in order to establish a clean, complete, permanent and updated list of voters. A reading of Section 45 (j) conjointly with the provisions upon which petitioners are charged, i.e., Sections 10 (g) and (j) would reveal that the matters that are required to be set forth under the aforesaid sections are crucial to the achievement of a clean, complete, permanent and updated list of voters. The factual information required by the law is sought not for mere embellishment.

There is a definitive governmental purpose when the law requires that such facts should be set forth in the application. The periods of residence in the Philippines and in the place of registration delve into the matter of residency, a requisite which a voter must satisfy to be deemed a qualified voter and registered in the permanent list of voters in a precinct of the city or municipality wherein he resides. Of even rationality exists in the case of the requirement in Section 10 (j), mandating that the applicant should state that he/she is not a registered voter of any precinct. Multiple voting by so-called flying voters are glaring anomalies which this country strives to defeat. The requirement that such facts as required by Section 10 (g) and Section 10 (j) be stated in the voter's application form for registration is directly relevant to the right of suffrage, which the State has the right to regulate.

It is the opportune time to allude to the case of People v. Gatchalian[44] where the therein assailed law contains a similar provision as herein assailed before us. Republic Act No. 602 also penalizes any person who willfully violates any of the provisions of the Act. The Court dismissed the challenged, and declared the provision constitutional. The Court in Gatchalian read the challenged provision, "any of the provisions of this [A]ct" conjointly with Section 3 thereof which was the pertinent portion of the law upon which therein accused was prosecuted. Gatchalian considered the terms as all-embracing; hence, the same must include what is enjoined in Section 3 thereof which embodies the very fundamental purpose for which the law has been adopted. This Court ruled that the law by legislative fiat intends to punish not only those expressly declared unlawful but even those not so declared but are clearly enjoined to be observed to carry out the fundamental purpose of the law.[45] Gatchalian remains good law, and stands unchallenged.

It also does not escape the mind of this Court that the phraseology in Section 45(j) is employed by Congress in a number of our laws.[46] These provisions have not been declared unconstitutional.

Moreover, every statute has in its favor the presumption of validity.[47] To justify its nullification, there must be a clear and unequivocal breach of the Constitution, and not one that is doubtful, speculative or argumentative.[48] We hold that petitioners failed to overcome the heavy presumption in favor of the law. Its constitutionality must be upheld in the absence of substantial grounds for overthrowing the same.

A salient point. Courts will refrain from touching upon the issue of constitutionality unless it is truly unavoidable and is the very lis mota. In the case at bar, the lis mota is the alleged grave abuse of discretion of the COMELEC in finding probable cause for the filing of criminal charges against petitioners.

Third. Petitioners maintain that the COMELEC En Banc, premised its finding on a misapprehension of facts, and committed grave abuse of discretion in directing the filing of Informations against them with the RTC.

We are once again unimpressed.

The constitutional grant of prosecutorial power in the COMELEC finds statutory expression under Section 265[49] of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code.[50] The task of the COMELEC whenever any election offense charge is filed before it is to conduct the preliminary investigation of the case, and make a determination of probable cause. Under Section 8(b), Rule 34 of the COMELEC Rules of Procedure, the investigating officer makes a determination of whether there is a reasonable ground to believe that a crime has been committed.[51] In Baytan v. COMELEC,[52] this Court, sufficiently elucidated on the matter of probable cause in the prosecution of election offenses, viz:
It is also well-settled that the finding of probable cause in the prosecution of election offenses rests in the COMELEC's sound discretion. The COMELEC exercises the constitutional authority to investigate and, where appropriate, prosecute cases for violation of election laws, including acts or omissions constituting election frauds, offense and malpractices. Generally, the Court will not interfere with such finding of the COMELEC absent a clear showing of grave abuse of discretion. This principle emanates from the COMELEC's exclusive power to conduct preliminary investigation of all election offenses punishable under the election laws and to prosecute the same, except as may otherwise be provided by law.[53]
It is succinct that courts will not substitute the finding of probable cause by the COMELEC in the absence of grave abuse of discretion. The abuse of discretion must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility.[54]

According to the COMELEC En Banc, the investigating officer, in the case at bar, held that there was sufficient cause for the filing of criminal charges against petitioners, and found no reason to depart therefrom. Without question, on May 9 and 11 of 2001, petitioners applied for registration as new voters with the Office of the Election Officer of Burauen, Leyte, notwithstanding the existence of petitioners' registration records as registered voters of Precinct No. 4419-A of Barangay Bagong Lipunan ng Crame, District IV, Quezon City. The directive by the COMELEC which affirmed the Resolution[55] of 28 November 2000 of Investigating Officer Atty. Tangaro-Casingal does not appear to be wanting in factual basis, such that a reasonably prudent man would conclude that there exists probable cause to hold petitioners for trial. Thus, in the aforesaid Resolution, the Investigating Officer, found:
A violation therefore of Section 10 of Republic Act No. 8189 is an election offense.

In the instant case, when respondents Carlos Romualdez and Erlinda Romualdez filed their respective applications for registration as new voters with the Office of the Election Officer of Burauen, Leyte on May 9 and 11, 2001, respectively, they stated under oath that they are not registered voters in other precinct (VRR Nos. 42454095 and 07902941). However, contrary to their statements, records show they are still registered voters of Precinct No. 4419-A, barangay Bagong Lipunan ng Crame, District IV, Quezon City, as per VRR Nos. 26195825 and 26195823. In other words, respondents' registration records in Quezon City is (sic) still in existence.

While it may be true that respondents had written the City Election Officer of District IV, Quezon City for cancellation of their voter's registration record as voter's (sic) therein, they cannot presume that the same will be favorably acted upon. Besides, RA 8189 provides for the procedure in cases of transfer of residence to another city/municipality which must be complied with, to wit:

"Section 12. Change of Residence to Another City or Municipality. - Any registered voter who has transferred residence to another city or municipality may apply with the Election Officer of his new residence for the transfer of his registration records.

The application for transfer of registration shall be subject to the requirements of notice and hearing and the approval of the Election Registration Board, in accordance with this Act. Upon approval, of the application for transfer, and after notice of such approval to the Election Officer of their former residence of the voter, said Election Officer shall transmit by registered mail the voter's registration record to the Election Officer of the voter's new residence."

They cannot claim ignorance of the abovestated provision on the procedure for transfer of registration records by reason of transferred new residence to another municipality. Based on the affidavit executed by one Eufemia S. Cotoner, she alleged that the refusal of the Assistant Election Officer Ms. Estrella Perez to accept the letter of respondents was due to improper procedure because respondents should have filed the required request for transfer with the Election Officer of Burauen, Leyte. Despite this knowledge, however, they proceeded to register as new voters of Burauen, Leyte, notwithstanding the existence of their previous registrations in Quezon City.

In their subsequent affidavit of Transfer of Voters Registration under Section 12 of Republic Act 8189, respondents admitted that they erroneously filed an application as a new voter (sic) with the office of the Election Officer of Burauen, Leyte, by reason of an honest mistake, which they now desire to correct. (underscoring ours).

Respondents lose sight of the fact that a statutory offense, such as violation of election law, is mala prohibita. Proof of criminal intent is not necessary. Good faith, ignorance or lack of malice is beside the point. Commission of the act is sufficient. It is the act itself that is punished.

x x x x

In view of the foregoing, the Law Department respectfully submits that there is probable cause to hold respondents Carlos Romualdez and Erlinda Romualdez for trial in violation of Section 10(g) and (j) in relation to Section 45(j) of Republic Act No. 8189. There is no doubt that they applied for registration as new voters of Burauen, Leyte consciously, freely and voluntarily.[56]
We take occasion to reiterate that the Constitution grants to the COMELEC the power to prosecute cases or violations of election laws. Article IX (C), Section 2 (6) of the 1987 Constitution, provides:
(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of voters; investigate and where appropriate, prosecute cases or violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices.
This power to prosecute necessarily involves the power to determine who shall be prosecuted, and the corollary right to decide whom not to prosecute.[57] Evidently, must this power to prosecute also include the right to determine under which laws prosecution will be pursued. The courts cannot dictate the prosecution nor usurp its discretionary powers. As a rule, courts cannot interfere with the prosecutor's discretion and control of the criminal prosecution.[58] Its rationale cannot be doubted. For the business of a court of justice is to be an impartial tribunal, and not to get involved with the success or failure of the prosecution to prosecute.[59] Every now and then, the prosecution may err in the selection of its strategies, but such errors are not for neutral courts to rectify, any more than courts should correct the blunders of the defense.[60]

Fourth. In People v. Delgado,[61] this Court said that when the COMELEC, through its duly authorized law officer, conducts the preliminary investigation of an election offense and upon a prima facie finding of a probable cause, files the Information in the proper court, said court thereby acquires jurisdiction over the case. Consequently, all the subsequent disposition of said case must be subject to the approval of the court. The records show that Informations charging petitioners with violation of Section 10(g) and (j), in relation to Section 45(j) of Republic Act No. 8189 had been filed with the RTC. The case must, thus, be allowed to take its due course.

It may be recalled that petitioners prayed for the issuance of a Temporary Restraining Order or Writ of Preliminary Injunction before this Court to restrain the COMELEC from executing its Resolutions of 11 June 2004 and 27 January 2005. In a Resolution dated 20 June 2006, this Court En Banc denied for lack of merit petitioners' Motion Reiterating Prayer for Issuance of Writ of Preliminary Injunction and to Cite for Indirect Contempt. Logically, the normal course of trial is expected to have continued in the proceedings a quo.

WHEREFORE, the Petition is DENIED. The assailed Resolutions, dated 11 June 2004 and 27 January 2005 of the COMELEC En Banc are AFFIRMED. Costs against petitioners.

SO ORDERED.

Quisumbing, Ynares-Santiago, Azcuna, Velasco, Jr., Reyes, Leonardo De Castro, and Brion, JJ., concur.
Puno, CJ., (Chairperson), join the dissent of J., Tinga.
Carpio, J., dissenting opinion.
Corona, J., certify that voted in favor of the majority opinion.
Tinga, J.,
dissenting opinion.
Austria-Martinez, Carpio-Morales, and Nachura, JJ., join the dissenting opinion of J., Carpio and Tinga.



* On leave.

[1] Penned by Commissioner Florentino A. Tuason, Jr. with the concurrence of Commissioners Rufino S. B. Javier, Mehol K. Sadain, Resurreccion Z. Borra, Virgilio O. Garcillano and Manuel A. Barcelona, Jr.; Rollo, pp. 23-27.

[2] Penned by Commissioner Virgilio O. Garcillano with the concurrence of Commissioners Mehol K. Sadain, Resurreccion Z. Borra, Florentino A. Tuason, Jr., and Manuel A. Barcelona, Jr. Chairman Benjamin S. Abalos and Commissioner Rufino S.B. Javier took no part. Rollo, pp. 28-30.

[3] SEC. 10. Registration of Voters. - A qualified voter shall be registered in the permanent list of voters in a precinct of the city or municipality wherein he resides to be able to vote in any election. To register as a voter, he shall personally accomplish an application form for registration as prescribed by the Commission in three (3) copies before the Election Officer on any date during office hours after having acquired the qualifications of a voter.
The application shall contain the following data:

a) Name, surname, middle name, and/or maternal surname;

b) Sex;

c) Date, and place of birth;

d) Citizenship;

e) Civil status, if married, name of spouse;

f) Profession, occupation or work;

g) Periods of residence in the Philippines and in the place of registration;

h) Exact address with the name of the street and house number for location in the precinct maps maintained by the local office of the Commission, or in case there is none, a brief description of his residence sitio and Barangay;

i) A statement that the applicant possesses all the qualifications of a voter;

j) A statement that the application is not a registered voter of any precinct; and

k) Such information or data as may be required by the Commission.
The application for registration shall contain three (3) specimen signatures of the applicant, clear and legible rolled prints of his left and right thumbprints, with four identification size copies of his latest photograph, attached thereto, to be taken at the expense of the Commission.

Before the applicant accomplishes his application for registration, the Election Officer shall inform him of the qualifications and disqualifications prescribed by law for a voter, and thereafter, see to it that the accomplished application contains all the data therein required and that the applicant's specimen signatures, fingerprints, and photographs are properly affixed in all copies of the voter's application.

[4] SEC. 45. Election Offense. - The following shall be considered election offenses under this Act.
a) to deliver, hand over, entrust or give, directly or indirectly, his voter's identification card to another in consideration of money or other benefit or promise; or take or accept such voter's identification card, directly or indirectly, by giving or causing the giving of money or other benefit or making or causing the making of a promise therefor;

b) to fail, without cause, to post or give any of the notices or to make any of the reports required under this Act;

c) to issue or cause the issuance of a voter's identification number to cancel or cause the cancellation thereof in violation of the provisions of this Act; or to refuse the issuance of registered voters their voter's identification card;

d) to accept an appointment, to assume office and to actually serve as a member of the Election Registration Board although ineligible thereto; to appoint such ineligible person knowing him to be ineligible;

e) to interfere with, impede, abscond for purposes of gain or to prevent the installation or use of computers and devices and the processing, storage, generation and transmission of registration data or information;

f) to gain, cause access to, use, alter, destroy, or disclose any computer data, program, system software, network, or any computer-related devices, facilities, hardware or equipment, whether classified or declassified;

g) failure to provide certified voters and deactivated voters list to candidates and heads or representatives of political parties upon written request as provided in Section 30 hereof;

h) failure to include the approved application form for registration of a qualified voter in the book of voters of a particular precinct or the omission of the name of a duly registered voter in the certified list of voters of the precinct where he is duly registered resulting in his failure to cast his vote during an election, plebiscite, referendum, initiative and/or recall. The presence of the former name in the book of voters or certified list of voters in precincts other than where he is duly registered shall not be an excuse hereof;

i) The posting of a list of voters outside or at the door of a precinct on the day of an election, plebiscite, referendum, initiative and/or recall and which list is different in contents from the certified list of voters being used by the Board of Election Inspectors; and

j) Violation of any of the provisions of this Act. (Italics supplied.)
[5] Entitled, "AN ACT PROVIDING FOR A GENERAL REGISTRATION OF VOTERS, ADOPTING A SYSTEM OF CONTINUING REGISTRATION, PRESCRIBING THE PROCEDURES THEREOF AND AUTHORIZING THE APPROPRIATION OF FUNDS THEREFOR."

[6] Angelino Apostol indicated in the Complaint-Affidavit that he is the Municipal Chairman of the Lakas-NUCD, a duly registered political party in the Municipality of Burauen, Leyte. However, on 5 March 2001, he withdrew as complainant due to medical reasons. See rollo, pp. 81, 108-111.

[7] Id. at 81-88.

[8] Sec. 261. Prohibited Acts. - The following shall be guilty of an election offense:
(y) On Registration of Voters:

x x x x

(2) Any person who knowingly makes any false or untruthful statement relative to any of the data or information required in the application for registration.
[9] Sec. 261. Prohibited Acts. - The following shall be guilty of an election offense;
(y) On Registration of Voters:

x x x x

(5) Any person who, being a registered voter, registers anew without filing an application for cancellation of his previous registration.
[10] SEC. 12. Change of Residence to Another City or Municipality. - Any registered voter who has transferred residence to another city or municipality may apply with the Election Officer of his new residence for the transfer of his registration records.

The application for transfer of registration shall be subject to the requirements of notice and hearing and the approval of the Election Registration Board, in accordance with this Act. Upon approval of the application for transfer, and after notice of such approval to the Election Officer of the former residence of the voter, said Election Officer shall transmit by registered mail the voter's registration record to the Election Officer of the voter's new residence.

[11] Supra note 3.

[12] Rollo, p. 87.

[13] Id. at 31-39.

[14] The Resolution of Welcome states, in part, to wit:
WHEREAS, Mr. Carlos "Caloy" S. Romualdez has established his official residence at No. 935 San Jose Street, Barangay District III, Burauen, Leyte, effective today, May 9th 2000. (Rollo, p. 44.)
[15] Id. at 26-27; 149.

[16] Id. at 27.

[17] Id. at 28-30.

[18] Id. at 29.

[19] The pertinent portion of the Information, reads, thus:

The undersigned accuses CARLOS SISON ROMUALDEZ, for violation of Section 10(g), in relation to Section 45(j) of Republic Act No. 8189, committed as follows:

That on or about May 9, 2000 during the continuing Registration of Voters under Republic Act No. 8189, in the Municipality of Burauen, Province of Leyte, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did, then and there, willfully and unlawfully, fail to fill up the required period of residence in the place of registration in his Voter Registration Record (VRR) No. 42454095 before the Election Registration Board (ERB) of said municipality, which constitute (sic) material misrepresentation in his application for registration as a new registrant at Precinct No. 11-A, Barangay District No. 3, in said municipality. (Id. at 221.)

[20] The Information, states, to wit:

The undersigned accuses ERLINDA REYES ROMUALDEZ, for violation of Section 10 (g), in relation to Section 45 (j) of Republic Act No. 8189, committed as follows:
That on or about May 11, 2000 during the continuing Registration of Voters under Republic Act No. 8189, in the Municipality of Burauen, Province of Leyte, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did, then and there, willfully and unlawfully, fail to fill up the required period of residence in the place of registration in her Voter Registration Record (VRR) No. 07902952 before the Election Registration Board (ERB) of said municipality, which constitute (sic) material misrepresentation in her application for registration as a new registrant at Precinct No. 11-A, Barangay District No. 3, in said municipality. (Id. at 227.)
[21] The Information against petitioner CARLOS SISON ROMUALDEZ, reads, in part:

The undersigned accuses CARLOS SISON ROMUALDEZ, for violation of Section 10(j), in relation to Section 45(j) of Republic Act No. 8189, committed as follows:
That on or about May 9, 2000 during the continuing Registration of Voters, under Republic Act No. 8189, in the Municipality of Burauen, Province of Leyte, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a registered voter at Precinct No. 4419A of Barangay Bagong Lipunan ng Crame, Quezon City, with Voter Registration Record (VRR) No. 26195824, did, then and there, willfully and unlawfully, file an application for registration on May 9, 2000 at Precinct No. 11-A of Barangay District III, Burauen, Leyte, as evidenced by Voter Registration Record (VRR) No. 42454095, where he declared under oath constituting material misrepresentation that he is not a registered voter in any precinct in the municipality, when in truth and in fact, he is a registered voter at Precinct No. 4419A of Barangay Bagong Lipunan ng Crame, Quezon City under Voter Registration Record (VRR) No. 26195824 dated June 22, 1997.
The Information against petitioner ERLINDA REYES ROMUALDEZ, for violation of Section 10(j), in relation to Section 45(j) of Republic Act No. 8189, committed as follows:
That on or about May 11, 2000 during the continuing Registration of Voters under Republic Act No. 8189, in the Municipality of Burauen, Province of Leyte, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a registered voter at Precinct No. 4419A of Barangay Bagong Lipunan ng Crame, Quezon City, with Voter Registration Record (VRR) No. 26195832, did, then and there, willfully and unlawfully, file an application for registration on May 11, 2000 in Barangay District III, Burauen, Leyte, as evidenced by Voter Registration Record (VRR) No. 07902952, where she declared under oath constituting material misrepresentation that she is not a registered voter in any precinct in the municipality, when in truth and in fact, she is a registered voter in Barangay Bagong Lipunan ng Crame, Quezon City under Voter Registration Record (VRR) No. 26195823 dated June 22, 1997. (Id. at 224-225.)
[22] Id. at 182, 187.

[23] Id. at 215.

[24] Id. at 235.

[25] Section 14 (1), Article III of the 1987 Constitution, provides, thus:

Section 14. (1) No person shall be held to answer for a criminal offense without due process of law.

[26] Section 14 (2). Article III of the 1987 Constitution states:
Section 14 (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable,
[27] Rollo, pp. 82-83.

[28] G.R. No. 128096, 20 January 1999, 301 SCRA 298.

[29] Id. at 325.

[30] Id. at 327.

[31] G.R. No. 165596, 17 November 2005, 475 SCRA 341.

[32] Id. at 349.

[33] Id.

[34] David v. Macapagal-Arroyo, G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489, and 171424, 3 May 2006, 489 SCRA 160, 239.

[35] A facial invalidation or a line-by-line scrutiny is an examination of the entire law, pinpointing its flaws and defects, not only on the basis of its actual operations to the parties involved, but on the assumption or prediction that its very existence may cause others not before the court to refrain from constitutionally protected speech, or on the ground that they may be applied to others not before the court whose activities are constitutionally protected. See David, supra.

[36] See Romualdez v. Sandiganbayan, G.R. No. 152259, 29 July 2004, 435 SCRA 371, 381-382. The Court in Romualdez, restated the void-for-vagueness doctrine, thus: "The void-for-vagueness doctrine states that "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to the application, violates the first essential of due process," citing the Separate Opinion of Mr. Justice Mendoza in Estrada v. Sandiganbayan, 421 Phil. 290, 429-430 (2001), citing Connally v. General Constr. Co., 269 U.S. 385, 391, 70 L. Ed. 328 (1926); in turn cited in Ermita-Malate Hotel and Motel Operators Association v. City Mayor, G.R. No. L-24693, 31 July 1967, 20 SCRA 849, 867.

[37] Id.

[38] Supra note 34.

[39] Estrada v. Sandiganbayan, id. at 352, citing State v. Hill, 189 Kan 403, 369 P2d 365, 91 ALR2d 750.

[40] Romualdez v. Sandiganbayan, supra.

[41] Section 45 of Republic Act No. 8189, reads, in full, viz:

SEC. 45. Election Offenses. - The following shall be considered election offenses under this Act
  1. to deliver, hand over, entrust or give, directly or indirectly, his voter's identification card to another in consideration of money or other benefit of promise; or take or accept such voter's identification card, directly or indirectly, by giving or causing the giving of money or other benefit or making or causing the making of a promise therefor;

  2. to fail, without cause, to post or give any of the notices or to make any of the reports required under this Act;

  3. to issue or cause the issuance of a voter's identification number or to cancel or cause the cancellation thereof in violation of the provisions of this Act; or to refuse the issuance of registered voters their voter's identification card;

  4. to accept an appointment, to assume office and to actually serve as a member of the Election Registration Board although ineligible thereto; to appoint such ineligible person knowing him to be ineligible;

  5. to interfere with, impede, abscond for purpose of gain or to prevent the installation or use of computers and devices and the processing, storage, generation, and transmission of registration data or information;

  6. to gain, cause access to, use, alter, destroy, or disclose any computer data, program, system software, network, or any computer-related devices, facilities, hardware or equipment, whether classified or declassified;

  7. failure to provide certified voters and deactivated voters list to candidates and heads of representatives of political parties upon written request as provided in Section 30 hereof;

  8. failure to include the approved application form for registration of a qualified voter in the book of voters of a particular precinct or the omission of the name of a duly registered voter in the certified list of voters of the precinct where he is duly registered resulting in his failure to cast his vote during an election, plebiscite, referendum, initiative and/or recall. The presence of the form or name in the book of voters or certified list of voters in precincts other than where he is duly registered shall not be an excuse hereof;

  9. the posting of a list of voters outside or at the door of a precinct on the day of an election, plebiscite, referendum, initiative and/or recall, and which list is different in contents from the certified list of voters being used by the Board of Election Inspectors; and

  10. Violation of any of the provisions of this Act.
[42] G.R. No. 148560, 421 Phil. 290 (2001).

[43] Supra Note 35 at 353.

[44] G.R. No. L-12011-14, 104 Phil. 664 (1958).

[45] Id. at 672.

[46] Section 124 (4) of Republic Act No. 6938, otherwise known as the Cooperative Code, reads:

"Any violation of any provision of this Code for which no penalty is imposed shall be punished by imprisonment of not less than six (6) months nor more than one (1) year and a fine of not less than One Thousand Pesos (P1,000.00) or both at the discretion of the Court."

Section 72 of Republic Act No. 8371, otherwise known as The Indigenous Peoples Rights Act, provides:

"Any person who commits violation of any of the provisions of this Act, such as, but not limited to xxx"

Section 12 of Republic Act No. 8762, otherwise known as the Retail Trade Liberalization Act, states:

"Any person who would be found guilty of violation of any provisions of this Act shall be punished by imprisonment of not less than six (6) years and one (1) day but not more than eight (8) years, and a fine of at least One Million (P1,000,000.00) but not more than Twenty Million (P20,000,000.00).

[47] See Philippine Judges Association v. Prado, G.R. No. 105371, 11 November 1993, 227 SCRA 703,705.

[48] Arceta v. Mangrobang, G.R. No. 152895, 15 June 2004.

[49] Section 265 of Batas Pambansa Blg. 881, reads:

SEC. 265. Prosecution. - The Commission shall, through its duly authorized legal officers, have the exclusive power to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same. The Commission may avail of the assistance of other prosecuting arms of the government: Provided, however, That in the event that the Commission fails to act on any complaint within four months from his filing, the complainant may file the complaint with the office of the fiscal or with the Department of Justice for proper investigation and prosecution, if warranted.

[50] Kilosbayan v. COMELEC, 345 Phil. 1141, 1168 (1997).

[51] Section 8(b), Rule 34, COMELEC Rules of Procedure, states as follows:

SEC. 8. Duty of Investigating Officer.- The preliminary investigation must be terminated within twenty (20) days after receipt of the counter-affidavits and other evidence of the respondents, and resolution thereof shall be made within five (5) days thereafter.

x x x x

(b) If the investigating officer finds cause to hold the respondent for trial, he shall prepare the resolution, and the corresponding information wherein he shall certify under oath that he has examined the complainant and his witnesses, that there is reasonable ground to believe that a crime has been committed and that the accused was informed of the complaint and of the evidence submitted against him and that he was given an opportunity to submit controverting evidence.

[52] 444 Phil. 812, 820 (2003).

[53] Id.

[54] Duero v. Court of Appeals, 424 Phil. 12, 20 (2002).

[55] Records, pp. 199-215.

[56] Rollo, pp. 25-26.

[57] Mapa v. Sandiganbayan, G.R. No. 100295, 26 April 1994, 231 SCRA 783.

[58] Alonzo v. Concepcion, A.M. No. RTC-04-1879, 17 January 2005, citing People v. Moll, 68 Phil. 626 (1939).

[59] Tanchanco v. Sandiganbayan, G.R. No. 141675-96, 25 November 2005.

[60] Id.

[61] G.R. Nos. 93419-32, 18 September 1990, 189 SCRA 715, 722.



DISSENTING OPINION


Tinga, J.:

This case presented itself with an alluring promise the rare opportunity to declare a penal provision unconstitutional and void for vagueness, in the process obliterating the impression, spawned by recent pronouncements of the Court based on an erroneous reading of applicable American jurisprudence, that such a denouement would not unfold in this jurisdiction. Quite lamentably, the majority prevented the promise from blossoming to fruition, perpetuating instead a grievous doctrinal error which is already the subject of strenuous criticism within the legal academe.[1]

A vague criminal statute at its core violates due process, as it deprives fair notice and standards to all - the citizens, the law enforcement officers, prosecutors and judges. The petition in this case has allowed the Court to engage in as thorough inquiry as there ever has been on the constitutional right to due process, to infuse vitality and sophistication in the litigation of such primordial right. Yet, in the end, instead of reinforcing a perspective more attuned to the fullest measure of the people's democratic rights, the Court has chosen not to rise to the challenge.

The petition should have been granted. The assailed Resolution of the Commission on Elections (COMELEC) directs the filing of criminal informations against petitioners Carlos and Erlinda Romualdez for violation of Section 10 (g) and (j) of Republic Act No. 8189 (Rep. Act 8189), also known as the Voter's Registration Act, in relation to Section 45(j) of the same law. It is Section 45(j) which criminalizes the violation of Section 10, as well as the violation of any and all other provisions of Rep. Act 8189, as an election offense. Yet in the final analysis, Section 45(j) is unconstitutional, violative as it is of the due process clause, and thus should be voided.

I.

The case stemmed from a complaint[2] dated 12 July 2000 filed with the Commission on Elections (COMELEC) Law Department by private respondents Dennis Garay and Angelino Apostol[3] against petitioners, spouses Carlos and Erlinda Romualdez. The complaint alleged that petitioners violated Sections 261(y)(2) and 261(y)(5) of the Omnibus Election Code, and Section 12(3) of Republic Act No. 8189 (Rep. Act 8189), also known as the Voter's Registration Act, such violations arising from the acts initiated by petitioners in registering as voters in Burauen, Leyte.

Petitioners had applied for registration as new voters with the Office of the Election Officer in Burauen on 9 and 11 May 2000, respectively. In their respective applications, petitioners stated that they were residents of 935 San Jose St., in Burauen. They left blank the space in the application form requiring them to state the years and months of their "period of residence" in the aforementioned municipality.[4] The complaint alleged that in truth petitioners were actually residents of 113 Mariposa Loop, Mariposa St., Bagong Lipunan ng Crame, Quezon City, as well as registered voters in Precinct No. 4419-A of Barangay Bagong Lipunan ng Crame, District IV, in Quezon City. To support this factual allegation, were various certifications issued by barangay and election officers of Quezon City,[5] as well as the Quezon City Voter Registration Records of the petitioners were attached to the complaint.[6]

The complaint further stated that oppositions had been filed against petitioners' application for registration in Burauen. In response thereto, petitioners filed with the Office of the Election Officer in Burauen various documents evincing not only their intent to transfer their registration as voters from Quezon City to Burauen, which was their new place of residence, but the actuality that they had began to formalize such transfer pursuant to Section 12 of Rep. Act No. 8189. Particularly, said documents include letters from petitioners to the election officer of Burauen manifesting their intent to transfer their registrations, as well as their respective Affidavits of Transfer of Voter's Registration under Section 12, Rep. Act 8189. Petitioners also explained that by reason of honest mistake, they had erroneously filed applications as new voters in Burauen, instead of as transferee voters.

The complaint likewise point out the particular provisions of law for which petitioners could be held accountable. Section 261(y)(2) and (y)(5) of the Omnibus Election Code respectively penalizes knowingly making any false or untruthful statements relative to any data or information required in the application for registration, and the re-registration anew by a previously registered voter without the filing of an application for cancellation of his previous registration. On the other hand, the failure to apply for transfer of registration records due to change of residence to another city or municipality was alleged to be in violation of Section 12 of Rep. Act No. 8189.

The matter was referred to the Commission on Elections and docketed as E.O. Case No. 2000-36. Petitioners filed a Joint Counter-Affidavit with Motion to Dismiss. They alleged that they had been intending to reside in Burauen since 1989, and they actually took up residence therein on 9 May 2000. They claimed having left unanswered the blank space for "period of residence" in their application for registration because they were unsure what period of residence was being required.[7] They also averred that as early as 18 April 2000, they had already written the election officer in Quezon City requesting the cancellation of their registration as voters in Barangay Bagong Lipunan ng Crame, but the Assistant Quezon City Election Officer had refused to acknowledge receipt of the same on the ground that the proper procedure was to file a request for transfer of voter's registration records with the election officer of Burauen. Petitioners noted that they did file an Application for Transfer of Registration Records in Burauen, and that the same was approved. Finally, they claimed that the filing of the case was politically motivated as petitioner Carlos Romualdez was a candidate for Congress in the second district of Leyte in the 2001 elections.

On 28 November 2003, the designated Investigating Officer assigned to hear the case, Atty. Maria Norina Tangaro-Casingal, issued a resolution recommending the prosecution of petitioners for the commission of an election offense, i.e., violation of Section 10(g) and (j) in relation to Section 45(j) of Rep. Act No. 8189. This recommendation was adopted by the COMELEC en banc in a Resolution[8] dated 3 February 2004.
Section 10 of Rep. Act No. 8189 states in part:

Sec. 10. Registration of Voters.--A qualified voter shall be registered in the permanent list of voters in a precinct of the city or municipality wherein he resides to be able to vote in any election. To register as a voter, he shall personally accomplish an application form for registration as prescribed by the Commission in three (3) copies before the Election Officer on any date during office hours after having acquired the qualifications of a voter.

The application shall contain the following data:

(a) Name, surname, middle name, and/or maternal surname;

(b) Sex;

(c) Date, and place of birth;

(d) Citizenship;

(e) Civil status, if married, name of spouse;

(f) Profession, occupation or work;

(g) Periods of residence in the Philippines and in the place of registration;

(h) Exact address with the name of the street and house number for location in the precinct maps maintained by the local office of the Commission, or in case there is none, a brief description of his residence, sitio, and barangay;

(i) A statement that the applicant possesses all the qualifications of a voter;

(j) A statement that the applicant is not a registered voter of any precinct; and

(k) Such information or data as may be required by the Commission. xxx
The COMELEC observed that a violation of Section 10 of Rep. Act No. 8189 is an election offense, pursuant to Section 45(j) of the same law, which reads:
Sec. 45. Election Offenses. - The following shall be considered election offenses under this Act:

x x x x

(j) Violation of the provisions of this Act.
The COMELEC found that petitioners violated Section 10 of Rep. Act No. 8189 in two ways. First, petitioners had stated under oath that they were not registered voters in any other precinct, when in fact, the records showed that they still were registered voters of Precinct No. 4419-A in Barangay Bagong Lipunan ng Crame, District IV, Quezon City, at the time they executed their application. The COMELEC pointed out that Section 12 of the same law provided for the procedure to be observed in cases of transfer of residence to another city/municipality, which involved an application for transfer of registration with the Election Officer of the new place of residence. Even though petitioners subsequently filed an application for transfer pursuant to Section 12, manifesting therein that they had erroneously filed an application as a new voter by reason of honest mistake, the COMELEC pointed out that a statutory offense such as the violation of election law is "mala prohibita" and that good faith, ignorance or lack of malice was "beside the point" in such cases.

Second, the COMELEC also stated that petitioners' failure to fill up the blank portion of their application on "period of residence" likewise constituted a violation of Section 10(g), which specifies that the applicant state the periods of residence in the Philippines and in the places of registration.

A motion for reconsideration filed by petitioners was denied by the COMELEC through a Resolution dated 27 January 2005.[9] As a result, the present petition was filed. While the petition was pending with this Court, two separate Informations dated 12 January 2006 were filed against each of the petitioners by the COMELEC with the Regional Trial Court of Burauen, and corresponding Orders of Arrest were issued by the trial court judge.

Petitioners allege before us that the COMELEC Resolution violates their constitutional right to due process, as well as their constitutional rights under Section 14(1) and (2), Article III of the Constitution. In that regard, they point out that while the complaint alleged violations of Sections 261(y)(2) and (5) of the Omnibus Election Code and Section 12 of Rep. Act 8189, they were charged instead with violation of different provisions of law altogether. Petitioners likewise argue that Section 45(j) of Rep. Act 8189 is "vague", as "it does not specifically refer to a definite provision of law the violation of which would constitute an election offense." The provision is thus "not the `fair notice' required by the Constitution for provisions of this Act."

Section 45(j) is vague. It does not provide "fair notice" to the citizenry and the standards for enforcement and adjudication. In precise legal terms, I submit that Section 45(j) violates the due process clause of the Constitution, and should accordingly be nullified.

II.

No person shall be deprived of life, liberty or property without due process of law. The due process clause makes legally operative our democratic rights, as it establishes freedom and free will as the normative human conditions which the State is bound to respect. Any legislated restrictions imposed by the State on life, liberty or property must be in accordance with due process of law. The scope of "due process," as we currently understand it, is admittedly ambitious, but in its elemental form, it encompasses aboriginal values ascribed to justice such as equity, prudence, humaneness and fairness.

Section 45(j) is vague. It does not provides "fair notice" to the citizentry, as well as the standards for enforcement and adjudication. Thus, the section violates the due process clause and thus deserves to be struck down.

The potency of the due process clause has depended on judicial refinement, to allow for the crystallization of its abstract ideals into a set of standards, from which a deliberate determination can be had whether the provision bears operative effect following a given set of facts. As a result, various subsets to due process have emerged, including the distinction between procedural due process and substantive due process. Stated very generally, substantive due process guarantees against the arbitrary exercise of state power, while procedural due process is a guarantee of procedural fairness.[10] Substantive and procedural due process are equally sacrosanct in the constitutional order, and a law that is infirm in either regard is wholly infirm.

Among the components of due process, particularly concerning penal statutes, is the fair notice requirement. The Court, through Justice Sarmiento, acknowledged in People v. Nazario[11] that a statute violates due process, and thus repugnant to the Constitution, if it fails "to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid."[12] Such flaw is one characteristic of a vague statute, the other being that "it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle."[13] Both attributes earmark a statute as "vague", the generally accepted definition of a vague statute being one that lacks comprehensible standards that people "of common intelligence must necessarily guess at its meaning and differ as to its application."[14]

Even though the "fair notice" rule is integral to due process itself, it finds realization in still another provision of our Bill of Rights. Section 14(2), Article III[15] assures that an accused is "to be informed of the nature and cause of the accusation against him." Both Justice Cruz and Fr. Bernas acknowledge that this constitutional right extends not only to the criminal information against the accused, but also to the language of the statute under which prosecution is pursued.[16] Yet our own jurisprudence has yet to expressly link the fair notice requirement with Section 14(2), Article III,[17] though this need not be a contestable point since the due process clause under Section 1, Article III already embodies the fair notice requirement.

As earlier stated, a penal statute that violates the fair notice requirement is marked by vagueness because it leaves its subjects to necessarily guess at its meaning and differ as to its application. What has emerged as the most contentious issue in the deliberations over this petition is whether such vagueness may lead to the nullification of a penal law. Our 2004 ruling in Romualdez v. Sandiganbayan[18] states: "It is best to stress at the outset that the overbreadth and the vagueness doctrines have special application only to free-speech cases. They are not appropriate for testing the validity of penal statutes."[19] The time has come to reconsider that statement. Rooted in unyielding formalism and deprived of guidance from basic constitutional tenets, that dicta disenchants the rights of free people, diminishing as it does, the basic right to due process.

III

A deeper analysis of the vagueness doctrine is in order.

Employing the terminology preferred by Collings, the vagueness doctrine is a specie of "unconstitutional uncertainty," which may involve "procedural due process uncertainty cases" and "substantive due process uncertainty cases."[20] "Procedural due process uncertainty" involves cases where the statutory language was so obscure that it failed to give adequate warning to those subject to its prohibitions as well as to provide proper standards for

adjudication.[21] Such a definition encompasses the vagueness doctrine.[22] This perspective rightly integrates the vagueness doctrine with the due process clause, a necessary interrelation since there is no constitutional provision that explicitly bars statutes that are "void-for-vagueness."

Void-for-vagueness derives from the basic tenet of criminal law that conduct may not be treated as criminal unless it has been so defined by an authority having the institutional competence to do so before it has taken place. It requires that a legislative crime definition be meaningfully precise.[23]

The inquiry into whether a criminal statute is "meaningfully precise" requires the affirmative satisfaction of two criteria. First, does the statute fairly give notice to those it seeks to bind of its strictures? Second, is the statute precise enough that it does not invite arbitrary and discriminatory enforcement by law enforcement authorities? Unless both criteria are satisfied, the statute is void for vagueness.

There are three concerns animating the vagueness doctrine. First, courts are rightly concerned that citizens be fairly warned of what behavior is being outlawed; second, courts are concerned because vague laws provide opportunities for arbitrary enforcement and put the enforcement decisions in the hands of police officers and prosecutors instead of legislatures; finally, where vague statutes regulate behavior that is even close to constitutionally protected, courts fear a chilling effect will impinge on constitutional rights.[24] These three interests have been deemed by the U.S. Supreme Court as important enough to justify total invalidation of a statute,[25] such invalidation warranted unless there is some intervening act that has eliminated the threat to those interests.[26]

In its essence, the vagueness doctrine is a critical implement to the fundamental role of the courts to rule justly and fairly.[27] Uncertainty in statutes enables persons to be penalized for acts which are not precisely defined in law as criminal, or for acts which are constitutionally protected but cast within an overbroad definition of a crime.

Our special focus now lies with the "void-for-vagueness" or "procedural due process uncertainty" rule. Two coordinate functions are served by the doctrine: guidance to the individual in planning his future conduct, and guidance to those adjudicating his rights and duties.[28] It is clear that some substantial degree of definiteness should be required of penal statutes, for if a person is to be charged with knowledge of all his rights and duties under a statute regardless of whether he has read or understood it, fundamental fairness requires that he be given at least the opportunity to discover its existence, its applicability, and its meaning. While the due process requirements of publication are designed to fill the first of those needs, the due process requirements of definiteness are designed to fill the latter two.[29]

The requirement of certainty arose from a fundamental common-law concept, a matter of fairness, and an element of due process of law.[30] No one will deny that a criminal statute should be definite enough to give notice of required conduct to those who would avoid its penalties, and to guide the judge in its application and the attorney defending those charged with its violation.[31] The rules must be definite enough to enable the judge to make rulings of law which are so closely referable to the statute as to assure consistency of application.[32] In addition, the statute must serve the individual as a guide to his future conduct, and it is said to be too indefinite if "men of common intelligence must necessarily guess at its meaning and differ as to its application."[33] If the statute does not provide adequate standards for adjudication, by which guilt or innocence may be determined, it will be struck down.[34]

The danger of a statute that suffers from the vagueness defect cannot be underestimated. Taken to the extreme, the absence of any clear and definite standards for conviction would leave the matter of freedom of the accused solely upon the discretion of the judge, to whom the language of the statute would offer no guide to adjudication. At worse, it could represent "the coercive force of society run loose at the whim of the [prosecutor] without adequate restraint at the level of the trial court (for want of standards by which to restrain), enforced against indigent and unrepresented defendants."[35] Indeed, the chances for acquittal as against a vague statute are significantly bettered depending on the skill of the defense counsel, and the poorer an accused is, the slimmer the chances that a skilled counsel would be within means. Void-for-vagueness statutes strike special impunity at the impoverished. They smack of unmitigated heedlessness of the lot of the likely victims of their built-in uncertainty, especially the underprivileged.

Romualdez,[36] cited by the ponencia, is unfortunately insensate to these constitutional concerns. That decision referenced Estrada v. Desierto[37] as basis for its response to the vagueness challenge. The ponencia in Estrada did adopt and incorporate the views stated by Justice Mendoza in his Separate Opinion, particularly, that "[t]he overbreadth and vagueness doctrines then have special application only to free speech cases...[t]hey are inapt for testing the validity of penal statutes... the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing `on their faces' statutes in free speech cases or, as they are called in American law, First Amendment cases. [t]hey cannot be made to do service when what is involved is a criminal statute."[38]

However, in his Separate Opinion to the Resolution (on the Motion for Reconsideration) dated 29 January 2002, Justice Mendoza acknowledged:
[L]et it be clearly stated that, when we said that `the doctrines of strict scrutiny, overbreadth and vagueness are analytical tools for testing `on their faces' statutes in free speech cases or, as they are called in American law, First Amendment cases [and therefore] cannot be made to do service when what is involved is a criminal statute,' we did not mean to suggest that the doctrines do not apply to criminal statutes at all. They do although they do not justify a facial challenge, but only an as-applied challenge, to those statutes... Neither did we mean to suggest that the doctrines justify facial challenges only in free speech or First Amendment cases. To be sure, they also justify facial challenges in cases under the Due Process and Equal Protection Clauses of the Constitution with respect to so-called `fundamental rights'..."[39]
In light of Justice Mendoza's subsequent clarification, it is a disputable matter whether Estrada established a doctrine that "void-for-vagueness or overbreadth challenges do not apply to penal statutes," the reference thereto in Romualdez notwithstanding. However, there is no doubt that Romualdez itself, which did not admit to a similar qualification or clarification, set forth a "doctrine" that "the overbreadth and the vagueness doctrines have special application only to free-speech cases [and] are not appropriate for testing the validity of penal statutes." As a result, the Office of the Solicitor General invokes Romualdez in its present Memorandum before the Court, and the petitioners in at least one other case now pending before this Court urges the reexamination of that doctrine.

The ponente has also cited in tandem with the Romualdez precedent this Separate Opinion of Justice Mendoza for the purpose of denominating the key issue as whether the vagueness doctrine can be utilized as an analytical tool to challenge the statute "on-its-face" or "as applied." Unfortunately, we can only engage that question if we acknowledge in the first place that the doctrine of vagueness can be applied to criminal statutes, because if not (as pronounced in Romualdez), there is no point in distinguishing between on-its-face and as-applied challenges. Moreover, this subsequent Separate Opinion, especially as it may distinguish from Justice Mendoza's earlier and more sweeping Separate Opinion, cannot be asserted as reflective of a doctrine announced by this Court. What works towards such effect is Romualdez, which again does not offer such clarificatory distinction, and which certainly does not concede, as Justice Mendoza eventually did, that "we did not mean to suggest that the doctrines [of void-for-vagueness] do not apply to criminal statutes at all" and that "neither did we mean that that doctrines do not justify facial challenges "in cases under the Due Process and Equal Protection Clauses of the Constitution with respect to the so-called `fundamental rights.'"

What we have thus seen is the queer instance of obiter in a latter case, Romualdez v. Sandiganbayan, making a doctrine of an obiter in an earlier case, Estrada v. Desierto.

Moreover, the controversial statement in Romualdez, as adopted from Estrada with respect to the vagueness challenge being applicable only to free speech cases, is simply not reflective of the American jurisprudential rule which birthed the vagueness doctrine in the first place.

The leading American case laying down the rules for the vagueness challenge is Connally v. General Construction Co.,[40] decided by the U.S. Supreme Court in 1926. It concerned a statute creating an eight (8)-hour workday in Oklahoma, through a provision which read:
'That not less than the current rate of per diem wages in the locality where the work is performed shall be paid to laborers, workmen, mechanics, prison guards, janitors in public institutions, or other persons so employed by or on behalf of the state, ... and laborers, workmen, mechanics, or other persons employed by contractors or subcontractors in the execution of any contract or contracts with the state, ... shall be deemed to be employed by or on behalf of the state. ...' (388)[41]
The statute further penalized violations thereof with a fine. A constitutional challenge to this statute was raised that the statutory provisions, "if enforced, will deprive plaintiff, its officers, agents and representatives, of their liberty and property without due process of law, in violation of the Fourteenth Amendment to the Federal Constitution; that they contain no ascertainable standard of guilt; that it cannot be determined with any degree of certainty what sum constitutes a current wage in any locality; and that the term 'locality' itself is fatally vague and uncertain." The U.S. Supreme Court agreed, holding:
That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well- recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. xxx[42]

The dividing line between what is lawful and unlawful cannot be left to conjecture. The citizen cannot be held to answer charges based upon penal statutes whose mandates are so uncertain that they will reasonably admit of different constructions. A criminal statute cannot rest upon an uncertain foundation. The crime, and the elements constituting it, must be so clearly expressed that the ordinary person can intelligently choose, in advance, what course it is lawful for him to pursue. Penal statutes prohibiting the doing of certain things, and providing a punishment for their violation, should not admit of such a double meaning that the citizen may act upon the one conception of its requirements and the courts upon another.'

We are of opinion that this provision presents a double uncertainty, fatal to its validity as a criminal statute. In the first place, the words 'current rate of wages' do not denote a specific or definite sum, but minimum, maximum, and intermediate amounts, indeterminately, varying from time to time and dependent upon the class and kind of work done, the efficiency of the workmen, etc., as the bill alleges is the case in respect of the territory surrounding the bridges under construction. The statutory phrase reasonably cannot be confined to any of these amounts, since it imports each and all of them. The current rate of wages' is not simple, but progressive-from so much (the minimum) to so much (the maximum), including all between; and to direct the payment of an amount which shall not be less than one of several different amounts, without saying which, is to leave the question of what is meant incapable of any definite answer. See People ex rel. Rodgers v. Coler, 166 N. Y. 1, 24-25, 59 N. E. 716, 52 L. R. A. 814, 82 Am. St. Rep. 605.

Nor can the question be solved by resort to the established canons of construction that enable a court to look through awkward or clumsy expression, or language wanting in precision, to the intent of the Legislature. For the vice of the statute here lies in the impossibility of ascertaining, by any reasonable test, that the Legislature meant one thing rather than another, and in the futility of an attempt to apply a requirement, which assumes the existence of a rate of wages single in amount, to a rate in fact composed of a multitude of gradations. To construe the phrase 'current rate of wages' as meaning either the lowest rate or the highest rate, or any intermediate rate, or, if it were possible to determine the various factors to be considered, an average of all rates, would be as likely to defeat the purpose of the Legislature as to promote it. See State v. Partlow, 91 N. C. 550, 553, 49 Am. Rep. 652; Commonwealth v. Bank of Pennsylvania, 3 Watts S. (Pa.) 173, 177.

In the second place, additional obscurity is imparted to the statute by the use of the qualifying word 'locality.' Who can say, with any degree of accuracy, what areas constitute the locality where a given piece of work is being done? Two men, moving in any direction from the place of operations, would not be at all likely to agree upon the point where they had passed the boundary which separated the locality of that work from the next locality. It is said that this question is settled for us by the decision of the state Supreme Court on rehearing in State v. Tibbetts, 205 P. 776, 779. But all the court did there was to define the word 'locality' as meaning 'place,' 'near the place,' 'vicinity,' or 'neighborhood.' Accepting this as correct, as of course we do, the result is not to remove the obscurity, but rather to offer a choice of uncertainties. The word 'neighborhood' is quite as susceptible of variation as the word 'locality.' Both terms are elastic and, dependent upon circumstances, may be equally satisfied by areas measured by rods or by miles. See Schmidt v. Kansas City Distilling Co., 90 Mo. 284, 296, 1 S. W. 865, 2 S. W. 417, 59 Am. Rep. 16; Woods v. Cochrane and Smith, 38 Iowa, 484, 485; State ex rel. Christie v. Meek, 26 Wash. 405, 407-408, 67 P. 76; Millville Imp. Co. v. Pitman, etc., Gas Co., 75 N. J. Law, 410, 412, 67 A. 1005; Thomas v. Marshfield, 10 Pick. (Mass.) 364, 367. The case last cited held that a grant of common to the inhabitants of a certain neighborhood was void because the term 'neighborhood' was not sufficiently certain to identify the grantees. In other connections or under other conditions the term 'locality' might be definite enough, but not so in a statute such as that under review imposing criminal penalties. Certainly, the expression 'near the place' leaves much to be desired in the way of a delimitation of boundaries; for it at once provokes the inquiry, 'How near?' And this element of uncertainty cannot here be put aside as of no consequence, for, as the rate of wages may vary-as in the present case it is alleged it does vary- among different employers and according to the relative efficiency of the workmen, so it may vary in different sections. The result is that the application of the law depends, not upon a word of fixed meaning in itself, or one made definite by statutory or judicial definition, or by the context or other legitimate aid to its construction, but upon the probably varying impressions of juries as to whether given areas are or are not to be included within particular localities. The constitutional guaranty of due process cannot be allowed to rest upon a support so equivocal.[43]
The statute in question did not involve a proscription on free speech, but a standard of wages with a corresponding financial penalty for violation thereof. Without any consideration to the notion that the "void-for-vagueness" challenge should be limited to free speech cases, the U.S. High Court accepted the notion that a vague statute could be invalidated and then proceeded to analyze whether the statute was indeed vague. The fact that the statute was invalidated makes it clear then that the "void-for-vagueness" challenge could be employed against a penal statute.

Within the next 73 years, the U.S. Supreme Court repeatedly invalidated penal statutes on the ground of "void-for-vagueness,"[44] in the cases of Cline v. Frink Dairy Co.,[45] Lanzetta v. State of New Jersey,[46] Papachristou v. City of Jacksonville,[47] Grayned v. City of Rockford[48], Smith v. Goguen[49] and Kolender v. Lawson.[50] More recently, in 1999, the U.S. Supreme Court reiterated the rule in City of Chicago v. Morales[51] as it invalidated an anti-loitering ordinance. The decision explained the ordinance as follows:
The ordinance creates a criminal offense punishable by a fine of up to $500, imprisonment for not more than six months, and a requirement to perform up to 120 hours of community service. Commission of the offense involves four predicates. First, the police officer must reasonably believe that at least one of the two or more persons present in a public place is a criminal street gang membe[r]. Second, the persons must be loitering, which the ordinance defines as remain[ing] in any one place with no apparent purpose. Third, the officer must then order all of the persons to disperse and remove themselves from the area. Fourth, a person must disobey the officer's order. If any person, whether a gang member or not, disobeys the officer's order, that person is guilty of violating the ordinance.[52]
In explaining why the ordinance suffered from the "void-for-vagueness" defect, the U.S. Supreme Court, through Senior Associate Justice John Paul Stevens, first attacked the statutory definition of "loitering:"
xxx The Illinois Supreme Court recognized that the term loiter may have a common and accepted meaning, 177 Ill. 2d, at 451, 687 N. E. 2d, at 61, but the definition of that term in this ordinance--to remain in any one place with no apparent purpose --does not. It is difficult to imagine how any citizen of the city of Chicago standing in a public place with a group of people would know if he or she had an apparent purpose. If she were talking to another person, would she have an apparent purpose? If she were frequently checking her watch and looking expectantly down the street, would she have an apparent purpose?

Since the city cannot conceivably have meant to criminalize each instance a citizen stands in public with a gang member, the vagueness that dooms this ordinance is not the product of uncertainty about the normal meaning of loitering, but rather about what loitering is covered by the ordinance and what is not. The Illinois Supreme Court emphasized the law's failure to distinguish between innocent conduct and conduct threatening harm. Its decision followed the precedent set by a number of state courts that have upheld ordinances that criminalize loitering combined with some other overt act or evidence of criminal intent. However, state courts have uniformly invalidated laws that do not join the term loitering with a second specific element of the crime.[53]
Next, the U.S. Supreme Court explained the principle of "fair notice" that necessitated the "void-for-vagueness" rule:
First, the purpose of the fair notice requirement is to enable the ordinary citizen to conform his or her conduct to the law. No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939). Although it is true that a loiterer is not subject to criminal sanctions unless he or she disobeys a dispersal order, the loitering is the conduct that the ordinance is designed to prohibit. If the loitering is in fact harmless and innocent, the dispersal order itself is an unjustified impairment of liberty. If the police are able to decide arbitrarily which members of the public they will order to disperse, then the Chicago ordinance becomes indistinguishable from the law we held invalid in Shuttlesworth v. Birmingham, an officer may issue an order only after prohibited conduct has already occurred, it cannot provide the kind of advance notice that will protect the putative loiterer from being ordered to disperse. Such an order cannot retroactively give adequate warning of the boundary between the permissible and the impermissible applications of the law.

xxx Lack of clarity in the description of the loiterer's duty to obey a dispersal order might not render the ordinance unconstitutionally vague if the definition of the forbidden conduct were clear, but it does buttress our conclusion that the entire ordinance fails to give the ordinary citizen adequate notice of what is forbidden and what is permitted. The Constitution does not permit a legislature to set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. United States v. Reese, 92 U. S. 214, 221 (1876). This ordinance is therefore vague not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all. Coates v. Cincinnati, 402 U. S. 611, 614 (1971).[54]
In her concurring opinion, Justice Sandra Day O'Connor offered this succinct restatement of the void-for-vagueness rule:
A penal law is void-for-vagueness if it fails to define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited or fails to establish guidelines to prevent arbitrary and discriminatory enforcement of the law. Kolender v . Lawson , 461 U. S. 352, 357 (1983). Of these, the more important aspect of vagueness doctrine `is ... the requirement that a legislature establish minimal guidelines to govern law enforcement.' Id., at 358 (quoting Smith v. Goguen, 415 U. S. 566, 574-575 (1974)). I agree that some degree of police discretion is necessary to allow the police to perform their peacekeeping responsibilities satisfactorily. See post, at 12 (dissenting opinion). A criminal law, however, must not permit policemen, prosecutors, and juries to conduct a standardless sweep ... to pursue their personal predilections. Kolender v. Lawson, supra, at 358 (quoting Smith v. Goguen, supra, at 575). [55]
Consider the lucid explanation of Gunther and Sullivan, which integrates the principles established by American jurisprudence on that point:
The concept of vagueness under the [freedom of expression clause in the] First Amendment [of the U.S. Constitution] draws on the procedural due process requirement of adequate notice, under which a law must convey `sufficient definite warning as to the proscribed conduct when measured by common understanding and practices." Jordan v. DeGeorge, 341 U.S. 223 (1951) A law will be void on its face for vagueness if persons "of common intelligence must necessarily guess at its meaning and differ as to its application." Connally v. General Construction Co., 269 U.S. 385 (1926). One of the purposes of this requirement is to ensure fair notice to the defendant. But the ban on vagueness protect not only liberty, but also equality and the separation of executive from legislative power through the prevention of selective enforcement. See Smith v. Goguen (415 U.S. 566): "We have recognized that the more important aspect of the vagueness doctrine is not actual notice, but the other principal element of the doctrine - the requirement that legislatures set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent arbitrary and discriminatory enforcement". xxx[56]
Prior to Romualdez, Philippine jurisprudence had recognized the susceptibility of penal statutes to the vagueness challenge, even if they did not pertain to the free exercise of speech. Nazario, earlier cited, was one such case. Another instance, was People v. Dela Piedra,[57] decided in 2001, where the Court announced:
Due process requires that the terms of a penal statute must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its. penalties. A criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute, or is so indefinite that it encourages arbitrary and erratic arrests and convictions, is void for vagueness. The constitutional vice in a vague or indefinite statute is the injustice to the accused in placing him on trial for an offense, the nature of which he is given no fair warning.[58]
Dela Piedra is inconsistent with the subsequent Romualdez doctrine, yet it embodies the correct basic proposition which is sensitive to the fundamentals of the due process clause. There was, and still is, no good or logical reason for Philippine jurisprudence to adopt an opposing rule from that in American jurisprudence in relation to the void-for-vagueness doctrine. Is the doctrine that "void-for-vagueness" cannot invalidate penal statutes somehow more appropriate to the Filipino mindset than to the American way? I really could not see any reason to foster the contrary rule unless it is the intent to effectively moot in the Philippines the right of a Filipino accused to be informed of the nature of the accusation against him/her through a penal law that defines the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited or establishes guidelines to prevent arbitrary and discriminatory enforcement of the law.

IV.

It is clear that a criminal statute may be nullified on the ground of void-for-vagueness. What are the requisites that must obtain before a suit predicated on such ground may be brought before the courts? Assuming that the suit successfully demonstrates the vagueness of the statute or provision of law, what remedy can the courts apply?

There are orthodox precepts in Philippine law that may find application in the resolution of void-for-vagueness cases. Long established in our jurisprudence are the four requisites for judicial inquiry: an actual case or controversy; the question of constitutionality must be raised by the proper party; the constitutional question must be raised at the earliest possible opportunity; and the constitutional question must be necessary to the determination of the case itself.[59] These requisites would accommodate instances such as those in the present case, where the constitutional challenge to the penal law is raised by the very persons who are charged under the questioned statute or provision.

On the premise that the statute in question contravenes the due process clause because it is vague, our jurisprudence likewise supplies the options for remedial measures which the Court can undertake. In essence, under Philippine jurisprudence, the courts possess a wide berth of discretion when confronted with a penal statute that is impermissibly vague. The general rule is that an unconstitutional act is not law; it confers no rights, imposes no duties, affords no protection, creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.[60] At the same time, there are doctrines in statutory construction that authorize the courts to allow the survival of the challenged statute or provision of law. It is a well-settled rule that a statute should be construed whenever possible in a manner that will avoid conflict with the Constitution.[61] Where a statute is reasonably susceptible of two constructions, one constitutional and the other unconstitutional, that construction in favor of its constitutionality shall be adopted while the construction that renders it invalid rejected.

Yet in the United States, even as the U.S. Supreme Court has long recognized vague penal laws as contrary to the due process clause,[62] it has also recognized special considerations when the assailed statute also infringes on the First Amendment. The U.S. Supreme Court, in Grayned v. City of Rockford,[63] expresses thus:
It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute abut[s] upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of [those] freedoms. Uncertain meanings inevitably lead citizens to `steer far wider of the unlawful zone' . . . than if the boundaries of the forbidden areas were clearly marked. [64]
One year after Grayned was decided in 1972, a divided U.S. Supreme Court handed down its decision in Broadrick v. Oklahoma,[65] a ruling that would have significant impact in the analysis of First Amendment cases. Significantly, Broadrick was the main case cited by Justice Mendoza in his Separate Opinion in Estrada v. Sandiganbayan in support of his assertion that "[t]he overbreadth and vagueness doctrines then have special application only to free speech cases."[66]

To understand Broadrick, it should be noted that under U.S. jurisprudence, the general rule is that "an individual has no standing to litigate the rights of third persons."[67] Another traditional rule is the "as applied" mode of judicial review which "tests the constitutionality of legislation as it is applied to particular facts on a case-by-case basis."[68] Both these traditional rules found an exception in the overbreadth doctrine, which is animated by the principle that "a government purpose to control or prevent activities constitutionally subject to regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms."[69] Particularly in regard to First Amendment cases, overbreadth carved exceptions to the traditional rules of constitutional litigation. "First, it results in the invalidation of a law `on its face' rather than `as applied' to a particular speaker."[70] "Second, overbreadth is an exception to the usual rules on standing xxx challengers are in effect permitted to raise the rights of third parties."[71]

In Broadrick, the U.S. Supreme Court found the opportunity to limit the application of the overbreadth doctrine. But the constitutional challenge made therein was not limited to overbreadth for question of vagueness was also raised against a state law restricting the partisan political activities of Oklahoma state employees. In dealing with the vagueness aspect, the majority opinion concluded that the challenged provisions were not impermissibly vague, applying the standard test set forth in cases such as Grayned.
Whatever other problems there are with 818, it is all but frivolous to suggest that the section fails to give adequate warning of what activities it proscribes or fails to set out explicit standards for those who must apply it. Grayned v. City of Rockford, supra, at 108. In the plainest language, it prohibits any state classified employee from being an officer or member of a partisan political club or a candidate for any paid public office. It forbids solicitation of contributions for any political organization, candidacy or other political purpose and taking part in the management or affairs of any political party or in any political campaign. Words inevitably contain germs of uncertainty and, as with the Hatch Act, there may be disputes over the meaning of such terms in 818 as partisan, or take part in, or affairs of political parties. But what was said in Letter Carriers, ante, at 578-579, is applicable here: there are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest. [72]
However, in ruling on the claim of overbreadth, Broadrick did not utilize any previously established test or standard, but instead pronounced a new standard of "substantial overbreadth", otherwise known as "strong medicine".[73] It is clear that the Court in Broadrick still recognized the distinction between vagueness and overbreadth, and resolved those two questions separately. Nonetheless, as is manifest in Justice Mendoza's Separate Opinion in Estrada, the impression is that the same doctrines apply to both vagueness and overbreadth, notwithstanding Broadrick. Why is that so?

As earlier explained, a vague penal statute is constitutionally offensive because it fails to give fair notice to those subjected to the regulation as to what conduct is precisely proscribed. On the other hand, a statute that suffers from overbreadth is one drawn so broadly, as it penalizes protected speech or behavior as well as such acts within the right of the State to prohibit. Thus, a statute that prohibits "the commission of illegal acts within state universities" is arguably vague, as it does not sufficiently define what exactly constitutes "illegal acts". On the other hand, a statute that proscribes "the commission of acts within state universities that help promote rebellion" is arguably overbroad. Such a statute may encompass not only those acts of rebellion within the ambit of the State to penalize, but also legitimate political expressions or criticisms of the State which are fundamentally guaranteed under the free expression clause.

Another material distinction. In the case of overbroad statutes, it is necessary to inquire into the potential applications of the legislation in order to determine whether it can be unconstitutionally applied.[74] In contrast, the constitutional flaws attached to a vague statute are evident on its face, as the textual language in itself is insufficient in defining the proscribed conduct.

Broadrick had alluded to the problems concerning legal standing with respect to overbreadth cases. Because the area involved was the First Amendment, litigants had traditionally been "permitted to challenge a statute not because their own right of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression."[75] Yet such expansive standing was problematic for the majority in Broadrick.
The consequence of our departure from traditional rules of standing in the First Amendment area is that any enforcement of a statute thus placed at issue is totally forbidden until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression. Application of the overbreadth doctrine in this manner is, manifestly, strong medicine.[76]
Thus, as a means of regulating standing in overbreadth cases, the U.S. Supreme Court announced in Broadrick:
[F]acial overbreadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from pure speech toward conduct and that conduct - even if expressive - falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect - at best a prediction - cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. xxx To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep. It is our view that 818 is not substantially overbroad and that whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied.
Broadrick jointly addressed the two concerns with respect to overbreadth cases - standing and the facial invalidation of statutes. It conceded that a successful overbreadth challenge necessitated the facial invalidation of the statute, a remedy characterized as "strong medicine". In order to limit the application of such "strong medicine", the U.S. Supreme Court declared that "the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep."[77]

Do the same concerns on the overbreadth doctrine that informed Broadrick extend as well to vagueness? It must be recognized that the problem of overbreadth has no integral relation to procedural due process, which is the fundamental constitutional problem brought forth by vagueness. Moreover, the overbreadth doctrine developed amidst concerns over restrictions on First Amendment rights and can be said was formulated to bolster the guarantee of free expression. It is not as clear that the same degree of concern over the right of free expression was key to the development of the vagueness doctrine, which after all, primarily offended a different constitutional value.

Since First Amendment values were at stake, the U.S. Supreme Court, prior to Broadrick, had found it necessary to relax the rules on standing with respect to overbreadth cases, a development which the subsequent Broadrick Court found disconcerting enough as to reverse direction. Yet contrary to the insinuation in Justice Mendoza's Estrada opinion, Broadrick should not bar challenges to vague penal statutes brought forth by those sought to be penalized under the assailed law. The restrictions on standing brought forth in Broadrick have no material relation to the legitimate concerns of a defendant who is being prosecuted under a law that defies the fair notice requirement under the due process clause.

A brief note, at this juncture. Justice Carpio offers his own analysis of "facial challenge" and "as-applied" challenge. His submission discusses both concepts from the perspective of standing, contending that the present suit cannot be considered as a "facial challenge", or a challenge against the constitutionality of a statute that is filed where the petitioner claims no actual violation of his own rights under the assailed statute, but relies instead on the potential violation of his or other persons' rights. Instead, according to Justice Carpio, the present suit may be considered as an "as-applied" challenge, the traditional approach where the petitioner raises the violation of his constitutional rights irrespective of the constitutional grounds cited.

I have no dispute with the characterization of the present suit as an "as-applied" challenge, as well as the statement that third-party standing to assail the constitutionality of statutes is impermissible as a general rule. Said positions can be accommodated following our traditional rules of standing in constitutional cases, even if these rules hardly employ the terms "facial challenge" or "as-applied challenge." The difficulty with the submission's preferred terms is that in United States jurisprudence, a "facial challenge" pertains not only to third-party standing in constitutional cases, but also the "facial invalidation" of statutes. This matter is problematic if we are to consider the holding of the U.S. Supreme Court in U.S. v. Salerno,[78] penned by the conservative Chief Justice Rehnquist.

In 1987, a divided U.S. Supreme Court ruled that the "facial challenge" is "the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid. [79] This characterization differs greatly from Justice Carpio's analysis that "facial challenge" only pertains to standing. Salerno has given rise to another implication to the "facial challenge" under American jurisprudence - that the nullification of a statute will be justified only if it is established that under no set of circumstances would the law remain valid. Interestingly, the Separate Opinion of Justice Mendoza in Estrada also favorably cites Salerno and the above-quoted declaration therein, a citation that adds to the confusion. Yet by simply distinguishing "facial challenge" (standing) from "facial invalidation" (adjudication on the merits), we can easily divorce this holding in Salerno from the aspect of standing, since there is no material relationship between the question of standing and the quoted-pronouncement in Salerno.

Evidently, if we are to accept the Salerno proposition, and declare that the "facial invalidation" is warranted only upon demonstration that under no set of circumstances will the challenged provision be constitutional, such a doctrine would stand as the Everest of judicial review. It would, among others, consequence in the affirmation of Section 45(j).

But should we accept the Salerno proposition? Tellingly, the declaration has not been met with unanimity in the American legal community. In a subsequent case, Washington v. Glucksberg[80], Justice John Paul Stevens noted in his concurring opinion that:
Upholding the validity of the federal Bail Reform Act of 1984, the Court stated in United States v. Salerno, 481 U.S. 739 (1987), that a facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid. Id., at 745. I do not believe the Court has ever actually applied such a strict standard, even in Salerno itself, and the Court does not appear to apply Salerno here. Nevertheless, the Court does conceive of respondents' claim as a facial challenge--addressing not the application of the statute to a particular set of plaintiffs before it, but the constitutionality of the statute's categorical prohibition against aid[ing] another person to attempt suicide. [81]
Further, in City of Chicago v. Morales[82], the U.S. Supreme Court refused to work within the parameters ostensibly set forth in Salerno. Held the U.S. Supreme Court through Justice Stevens: "There is no need, however, to decide whether the impact of the Chicago ordinance on constitutionally protected liberty alone would suffice to support a facial challenge under the overbreadth doctrine. For it is clear that the vagueness of this enactment makes a facial challenge appropriate. This is not an ordinance that simply regulates business behavior and contains a scienter requirement. It is a criminal law that contains no mens rea requirement, and infringes on constitutionally protected rights. When vagueness permeates the text of such a law, it is subject to facial attack."[83]

Moreover, the Salerno proposition is simply alien to the Philippine experience. Our jurisprudence has traditionally deigned to nullify or facially invalidate statutes or provisions thereof without need of considering whether "no set of circumstances exists under which the [law or provision] would be valid." Among recent examples of laws or legal provisions nullified as unconstitutional by this Court are B.P. Blg. 885,[84] the Marcos-issued Executive Order No. 626-A,[85]

Section 46 of Rep. Act No. 4670,[86] Rep. Act No. 7056,[87] provisions of the 2000 General Appropriations Act passed by Congress,[88] and most recently, Section 47 of P.D. 198.[89] Indeed, in a similar vein to the observations of Justice Stevens as to the American experience, the impossibly high standard set forth in Salerno has never been applied squarely in this jurisdiction.

If the auto-limiting philosophy set forth Salerno should have influence in this jurisdiction, it should only be to the effect that the remedy of constitutional nullification should be resorted to by the courts if there is no other means by which the unconstitutional defect of the law or legal provision can be treated. Then again, such a principle is already laid down by our accepted rules of statutory construction, such as that "a statute should be construed whenever possible in a manner that will avoid conflict with the Constitution", or that "where a statute is reasonably susceptible of two constructions, one constitutional and the other unconstitutional, that construction in favor of its constitutionality shall be adopted, and the construction that will render it invalid rejected."

Our own jurisprudence must expressly reject Salerno, if only because that case has fostered the impression that a "facial challenge," or a "facial invalidation" necessitates a demonstration that the law involved is unconstitutional in whatever application. Even though such impression is not universally accepted, our acceptance of the viability of either the "facial challenge" or "facial invalidation" in this jurisdiction without accompanying comment on Salerno might imply that the extremely high bar for judicial review set therein prevails in the Philippines.

In order to avoid any further confusion, especially that which may be brought about by Salerno, I had proposed during deliberations the following definitions for usage in Philippine jurisprudence:

As to standing

The ability of a petitioner to bring forth a suit challenging the constitutionality of an enactment or provisions thereof, even if the petitioner has yet not been directly injured by the application of the law in question, is referred to as a "facial challenge."

The ability of a petitioner to judicially challenge a law or provision of law that has been specifically applied against the petitioner is referred to as an "as-applied challenge."

As to adjudication on the merits

The nullification on constitutional grounds by the courts of a provision of law, or even of the entire statute altogether, is referred to as "facial invalidation."

The invalidation of the application of a provision of law or a statute only insofar as it applies to the petitioner and others similarly situated, without need to nullify the law or provision thereof, is referred to as "as-applied invalidation."

I submit that these terms provide a greater degree of clarity than simply using "facial challenge" and "as-applied challenge." My subsequent discussion shall hence utilize such terms as well.

V.

The Court, this time and through this case, should reassert that the vagueness challenge is viable against penal statutes. The vagueness challenge is a critical defense to all persons against criminal laws that are arbitrarily drawn, formulated without thoughtful deliberation, or designed to yield to the law enforcer the determination whether an offense has been committed. Section 45(j) of Rep. Act 8189 is indeed a textbook example of a vague penal clause. The ponencia submits that Section 45(j) does not suffer from the infirmity as it ostensibly establishes that violation of any provision of Rep. Act No. 8189 is an election offense. I cannot accept the proposition that the violation of just any provision of Rep. Act No. 8189, as Section 45(j) declares with minimal fanfare, constitutes an election offense punishable with up to six (6) years of imprisonment.

Section 45(j) categorizes the violation of any provision of Rep. Act 8189 as an election offense, thus effectively criminalizing such violations. Following Section 46 of the same law, any person found guilty of an election offense "shall be punished with imprisonment of not less than one (1) year but not more than six (6) years."

Virtually all of the 52 provisions of Rep. Act 8189 define an act, establishes a policy, or imposes a duty or obligation on a voter, election officer or a subdivision of government. Virtually all of these provisions are susceptible to violation, the only qualifier being that they incorporate a verb.

For example, Section 4 states that the "precinct-level list of voters shall be accompanied by an addition/deletion list for the purpose of updating the list." If the precinct-level list of voters is not accompanied by an addition/deletion list, an election offense is committed, according to Section 45(j). But if that is so, who commits the election offense? The COMELEC? What about if the attachment addition/deletion list was somehow alleged as not being geared towards updating the list? Would that constitute an election offense?

Under Section 37, a voter who was excluded from the certified list of voters due to inadvertence or registered with an erroneous or misspelled name may file a petition for an order directing that his name be entered or corrected. Such voter is also required to attach to a "certified copy of the registration record or identification car or the entry of his name in the certified list of voters used in the preceding election, together with the proof that his application was denied or not acted upon by the Election Registration Board." If the voter fails to attach any of these requirements, no matter the reason, an election offense as defined under Section 45(j) has been committed, and the voter may be sentenced to prison. As to what precisely are the elements of this particular crime, I am at a loss to define.

Even the most innocuous of oversights can be deemed as an election offense under Rep. Act 8189. For example, Section 10 requires that the applicant-voter submit four (4) identification-size copies of his/her latest photograph. If such voter submits only three (3) photos instead of four (4), then he/she is theoretically violating a provision of Rep. Act No. 8189, and is thus committing an election offense under Section 45(j) punishable by no less than one (1) year of imprisonment without the possibility of probation. Another example, Section 14 requires that the application for registration of a physically disabled person must be prepared by a relative within the fourth degree of consanguinity, the Election Officer, or a member of an accredited citizen's arm. If an elderly disabled widow has her trusted maid prepare the application for her, then an election offense is committed as such act violates a provision of Rep. Act No. 8189. The maid, or perhaps even the widow herself, may now face a prison term of no less than one (1) year.

In his Separate Opinion, Justice Carpio provides even more telling illustrative samples[90] of crimes under Rep. Act 8189 if the draft ponencia were upheld. Indeed, one can make a parlor game out of discerning all the possible acts that constitute a crime because of Section 45(j). Yet any entertainment that can be derived out of such exercise will be muted because the consequence involves prison terms.

The very absurdity of such implausible, yet legally possible prosecutions, lend doubt as to whether the legislature had truly intended such penal consequences. Because Section 45(j) is impermissibly vague, such doubts could be entertained, to consequences that are deleterious to our freedoms. If Section 45(j) were left by the Court as is, it would be a validation that our legislators so intended to penalize so trifling an offense.

Moreover, not only does the vagueness of Section 45(j) deprive the voters, election officials, or indeed any live person (since the provisions of Rep. Act 8189 are susceptible to violation by just about anybody) of fair notice as to what conduct is exactly proscribed and criminalized. It also leaves prosecutors and judges at a loss as to how exactly to prosecute or adjudge an election offense under Section 45(j).

We can reasonably presume that save for the specific election offenses under Section 45 (a) to (j) and the specific penal clause under Section 10 of Rep. Act 8189, all the other provisions of the law were not crafted with the intent to devise a penal provision. Outside of the bare text of the provision, it would be impossible to discern the precise elements of the crime, and since these provisions were not designed as penal provisions in the first place, there was no deliberate intent to design every subject-verb agreement as an element to a crime.

For example, Section 14 provides that with respect to illiterate or disabled applicants, "[t]he fact of illiteracy or disability shall be so indicated in the application [for registration]." Shorn of any criminal context, as it most assuredly was in the minds of the legislators, the clause merely required that the fact of illiteracy or disability should be indicated in the application. Seen benignly, the only concern of the provision is that such fact be manifested in the application. Since the provision does not even mandate that it be the applicant himself or herself who should make such indication, there would be no impediment for the election officer to make the indication in behalf of the applicant.

But if indeed that clause of Section 14 does actually embody an election offense, it would be virtually impossible for the prosecutor or the judge to ascertain the elements of such crime. Facially, there would appear only to be one element of the crime, the absence of any indication in the application of the fact of illiteracy or disability. But there is no indication on the face of the provision as to who exactly commits the crime. Neither is there clarity as to how exactly such crime is precisely committed.

It bears remembering that it is the second concern of the vagueness doctrine, that the statute is precise enough that it does not invite arbitrary and discriminatory enforcement by law enforcement authorities, that is perhaps the more important aspect of the doctrine. Section 45(j) is militantly offensive to that consideration.

Our Philippine criminal laws are predicated on crimes that have precisely defined elements, and the task of the judge is to determine whether these elements have been proven beyond reasonable doubt. For the most part, each crime currently defined in our penal laws consist of only a handful of elements, providing the judge a clearly defined standard for conviction or acquittal.

That is not the case for a penal provision predicated on "any violation of this Act." A legislative enactment can consist of 100 provisions. Each provision may describe just one act, right, duty or prohibition, or there could be several contained in just one provision. The catch-all penal provision ostensibly criminalizes the violation of any one right, duty, or prohibition, of which there could be hundreds in just one statute. Just any one of these possibly hundreds of acts mentioned in the law is an element of the consummated crime under the catch-all provision such as Section 45(j), thus greatly increasing the risk for conviction under such a provision. There could be literally hundreds of ways that a catch-all provision in just one law could become the source of imprisonment.

Obviously, broader standards lead to broader discretion on the part of judges. Some judges may tend towards a narrow application of a provision such as Section 45(j), while others might be inclined towards its broad application. What is certain is that no consistent trend will emerge in criminal prosecutions for violations of provisions such as Section 45(j), a development that will not bode well for the fair and consistent administration of justice. Provisions such as Section 45(j) do nothing for the efficient administration of justice. Since such a provision is laced with unconstitutional infirmity, I submit it is the task of the Court to say so, in order that the courts will need not be confronted with this hydra of statutory indeterminacy.

The COMELEC did point out that an election offense under Section 45(j) is malum prohibitum, which is a correct restatement of prevailing doctrine, yet a prospect that makes the provision even more disturbing. Returning to Section 14, the illiterate or disabled voter precisely requires special assistance because of his/her personal condition which impairs the ability to properly fill up the application form. As such, the likelihood of inadvertently failing to indicate the fact of illiteracy or disability is present. Since any criminal intent is irrelevant, any honest mistake unforgivable, just because Rep. Act 8189 embodies malum prohibitum offenses, the illiterate or disabled voter who inadvertently fails to indicate the fact of his/her impairment in the application simply has no defense against imprisonment, except the pity of the judge. And even then, such pity, if wielded, may exceed the discretion of the judge since the application of the malum prohibitum law simply calls for the execution of its penal clauses once the offense has been established. Dura lex sed lex, indeed.

VI.

I now wish to address certain points raised by the ponente in rebuttal of my arguments. The claim that the Court should not touch upon the constitutionality of Section 45(j) because it is not the lis mota of the case is, with due respect, absurd. While the ponencia claims that the lis mota of this case is the alleged grave abuse of discretion on the part of the COMELEC, it cannot be denied that the valid prosecution of the petitioners integrally depends on the constitutionality of Section 45(j). It appears that the real reason the majority refuses to acknowledge that the constitutionality of Section 45(j) is the lis mota is simply because they do not find that provision unconstitutional, as roundabout a path to reason as there ever has been.

The other contentions of the ponente submitted in rebuttal to my position warrant more extensive dissection.

A.

The ponente invokes People v. Gatchalian[91] in an attempt to convince that a "catch-all" penal provision is not inherently unconstitutional, since the Court in 1958, ruling 6-3, had sustained a criminal prosecution based on such a provision found in the since-repealed Minimum Wage Law[92]. However, with all due respect, the discussion fails to take into account distinguishing nuances and contexts that differentiate Gatchalian and its relevant statutes from the present case and Rep. Act No. 8189.

We cannot deny the fact that the void-for-vagueness constitutional challenge, as with some other standards of constitutional adjudication, had not yet found full fruition within our own jurisprudence at the time Gatchalian was decided in 1958, a year when the oldest members of the Court were still studying in law school, and the youngest among us still in short pants. Indeed, the jurisprudential appreciation then of our fundamental constitutional rights differed in several critical respects from our presently accepted standards. In 1958, evidence seized from unconstitutional searches and seizures were admissible into evidence, as the court adopted the exclusionary rule only in 1967 with Stonehill v. Diokno. In 1958, the suspension of that fundamental right - the privilege of the writ of habeas corpus - was still believed to be a political question which

could not be the subject of judicial inquiry, the adverse rule emerging only in 1971 with Lansang v. Garcia.[93] In 1958, there was yet no express recognition from this Court of a constitutional right to privacy independent from the right to liberty, such recognition came only in 1968 with Morfe v. Mutuc.[94] These are but a few of the more prominent examples that can be plumbed from our jurisprudence.

I raise this point for I respectfully submit that Gatchalian can conclusively settle the present case in favor of the ponente's position only if we believe in a static and unyielding theory of jurisprudence that blindly ignores the refreshing new insights and wisdoms each new generation gifts to civilization. Our own jurisprudential history indubitably reveals that this Court does not adhere to so rigid an ideology. A vote that Section 45(j) is constitutional only for the simple reason that a like-minded provision was sustained way back in 1958 would be premised on a philosophy utterly alien to the progressive traditions of the Supreme Court.

We need to view the questions now material at bar with a fresh perspective, with an understanding that we may need to break new ground if need be, to arrive at the proper and enlightened resolution of the question. Gatchalian cannot serve as crutch to sustain the constitutionality of Section 45(j). It is eminently possible to declare the nullity of Section 45(j) without having to invalidate the core reasoning and ultimate result of Gatchalian.

B.

In Gatchalian, the accused therein was prosecuted under Section 15(a) of the Minimum Wage Law. Said provision reads:
SEC. 15. Penalties and recovery of wage due under this Act. --

(a) Any person who willfully violates any of the provisions of this Act shall upon conviction thereof be subject to a fine of not more than two thousand pesos, or, upon second conviction, to imprisonment of not more then one year, or to both fine and imprisonment, in the discretion of the court.
The accused in Gatchalian was alleged to have violated, in particular, Section 3 of the Minimum Wage Law, which prescribed the minimum wage rates an employer "shall pay to each of his employees".

The key mark in Section 15 is its qualification that there must be a "willful violation of any of the provisions" of the Minimum Wage Law before a criminal prosecution can be had. This distinguishes from Section 45(j), which does not offer such a critical qualification of intent. The indispensable presence of "willful violation" as an element to the criminal offense supplies the penal statute with mens rea, an element which has been defined as a guilty mind, a guilty or wrongful purpose or criminal intent. In the 1998 case of City of Chicago v. Morales.[95] one of the cases which I have extensively cited, the U.S. Supreme Court had comfortably ruled that the U.S. Supreme Court has comfortably held that a criminal law that contains no mens rea requirement infringes on constitutionally protected rights.

Crucially, the Court majority[96] that decided Gatchalian expressly emphasized the fact that Section 15 expressly limited such prosecutions only to "willful violations" when it affirmed the provision.
It is clear from the above-quoted provisions that while Section 3 explicitly requires every owner of an establishment located outside of Manila or its environs to pay each of its employees P3.00 a day on the effective date of the Act, and one year thereafter P4.00 a day, Section 15 imposes both a criminal penalty for a willful violation of any of the above provisions and a civil liability for any underpayment of wages due an employee. The intention of the law is clear: to slap not only a criminal liability upon an erring employer for any willful violation of the acts sought to be enjoined but to attach concurrently a civil liability for any underpayment he may commit as a result thereof. The law speaks of a willful violation of any of the provisions of this Act, which is all-embracing, and the same must include what is enjoined in Section 3 thereof which embodies the very fundamental purpose for which the law has been adopted.[97]
Had the Court ruled Section 45(j) of the Voter's Registration Act unconstitutional, such pronouncement will not overturn or even be intellectually inconsistent with Gatchalian. For one, there are enough textual qualifications in Section 15 as opposed to Section 45(j) that spell the difference between a constitutional penal statute and a void one. Moreover, the same constitutional considerations we have and will fully consider in this petition were not addressed in Gatchalian.

The accused in Gatchalian had premised his motion to dismiss on two grounds: that Section 3 carried only a civil liability and did not constitute a criminal offense; and assuming that Section 3 did constitute a criminal offense, the same provision did not carry any penalty penalizing it.[98] These were the two distinct issues which were addressed by the majority, and also to which the three dissenters responded to. The difference between those issues as formulated in Gatchalian and those presently confronting us is self-evident.

Still, the accused in Gatchalian did offer the following argument that may be taken into account as we consider the present case. The argument pertains to the proper interpretation of Section 15(a), which the accused had argued would result in absurdity should it "be interpreted in a manner that would embrace a willful violation of any of the provisions of the law."[99] As recounted in Gatchalian:
Counsel for appellee however entertains a different interpretation. He contends that if Section 15(a) should be interpreted in a manner that would embrace a wilful violation of any of the provisions of the law we would have a situation where even the officials entrusted with its enforcement may be held criminally liable which is not contemplated in the law. Thus, he contends, the Secretary of Labor may be criminally prosecuted for willfully not using all available devices for investigation [Section 4(c)], for not presenting to the Wage Board all the evidence in his possession relating to the wages in the industries for which the Wage Board is appointed and other information relevant to the establishment of the minimum wage [Section 5(p)], and for not doing all other acts which the law requires him to do under Section 6. This, he emphasizes, is absurd and should not be entertained.[100]
The tenor of this argument is teasingly similar to that adopted by an esteemed colleague and myself in our respective submissions. The ponente has more or less responded dismissively towards this arguments, relying on comforting platitudes such as "the wisdom of a law is beyond this Court's function of inquiry."

Perhaps, considering that the ponente now relies on Gatchalian, it should be expected that the Gatchalian Court would have responded to the above-quoted argument in a like-manner. But it clearly did not. Instead, it emphasized:
To begin with, the Minimum Wage Law is a social legislation which has been adopted for the benefit of labor and as such it contains provisions that are enjoined to be observed by the employer. These provisions are substantive in nature and had been adopted for common observance by the persons affected. They cannot be eluded nor subverted lest the erring employer runs into the sanction of the law. On the other hand, the provisions adverted to by counsel are merely administrative in character which had been adopted to set the machinery by which the law is to be enforced. They are provisions established for observance by the officials entrusted with its enforcement. Failure to comply with them would therefore subject them merely to administrative sanction. They do not come under the penal clause embodied in Section 15(a). This is clearly inferred from Section 18(c), of Republic Act No. 602, which provides: Any official of the Government to whom responsibility in administration and enforcement has been delegated under this Act shall be removable on the sustaining of charges of malfeasance or non-feasance in office. This specific provision should be interpreted as qualifying the penal clause provided for in Section 15(a).[101]
The Court in Gatchalian plainly realized and acknowledged that there are limitations to the plausible application of Section 15(a), even if these were not textually committed in the provision itself. The most sweeping of these limitations is the admonition that those administrative officials charged with correlative rights and duties under the Minimum Wage Law could not be criminally liable under Section 15(a), despite the absence of any such clarificatory language in the law itself. I myself am not too comfortable with the methodology used by the Court in so qualifying, considering the absence of any statutory support that would have indubitably justified this conclusion.[102]

Yet if we were to examine this passage in the present context, where considerations on the question of void-for-vagueness have fully blossomed, the Court in Gatchalian expressly acknowledged that Section 15(a) would have been untenable in some applications, such as if an administrative officer were criminally charged under that provision. In effect, the Court tacitly acknowledged in Gatchalian that Section 15(a) was indeed void-for-vagueness, and that line of attack would have been viable to any administrative officer actually charged under that provision. It would have been one thing for the Court in Gatchalian to have approached that argument by responding that the wisdom of Section 15(a) was beyond judicial inquiry. That approach would have aligned with that of the ponente. Instead, Gatchalian rejected that approach and instead expressed an opinion that current-day commentators would appreciate as an embryonic formulation of the "void-as-applied" principle.

VII.

Since it has been established that Section 45(j) infringes on procedural due process, the final inquiry should be whether the nullification of Section 45(j) is warranted.

Given the problem of vagueness that attends to Section 45(j), is facial invalidation of the statute warranted?

The practical value of facial invalidation in this case cannot be discounted. Unless Section 45(j) is nullified, it may still be utilized as a means of criminal prosecution. Because there are dozens, if not hundreds, of different contexts under which a criminal offense may carved out of Section 45(j), limiting the challenges to the provision to "as-applied" and its case-by-case method will prove woefully inadequate in addressing the elemental lack of fair notice that plagues the provision.

The very vagueness of Section 45(j) makes it an ideal vehicle for political harassment. The election season will undoubtedly see a rise in the partisan political temperature, where competing candidates and their camps will employ every possible legal tactic to gain an advantage over the opponents. Among these possible tactics would be the disenfranchisement of voters who may be perceived as supporters of the other side; or the disqualification of election officers perceived as either biased or impartial enough to hamper a candidate with ill-motives.

The disenfranchisement of voters or the disqualification of election officers could be accomplished through prosecutions for election offenses. Even if these prosecutions do not see fruition, the mere filing of such charges could be enough to dampen enthusiasm in voting, or strike fear in conducting honest and orderly elections.

Unfortunately, Section 45(j) is an all too easy tool for mischief of this sort. One can invent any sort of prosecution using any provision of Rep. Act No. 8189 that would fall within the ambit of the offending Section 45(j). It would not even matter if the charge is meritorious or not, just the systematic filing of complaints based on Section 45(j) is sufficient to alter the political climate in any locality.

I find it odd, suspicious even, that the COMELEC is insisting on prosecution the petitioners on Section 45(j), and not the Omnibus Election Code. The acts for which they are charged are classified as an election offense under Section 261(y) of the Omnibus Election Code which specifically charges as election offenses "any person who knowingly makes any false or untruthful statement relative to any of the data or information required in the application for registration;" and "any voter who, being a registered voter, registers anew without filing an application for cancellation of his previous registration." I have no idea whether the COMELEC sees this case as a test case for prosecutions under Section 45(j). What I do know is that if the Court debunks the present challenge to Section 45(j), the COMELEC will be emboldened to pursue more prosecutions under Section 45(j), a prospect that would hearten the most partisan of political operatives. The result would not only be more frivolous complaints for violation of Section 45(j), but also an undue and utterly unnecessary temperature rise in the political climate.

It might be argued that a ruling that simply imposes an "as-applied invalidation" on Section 45(j) would sufficiently disquiet such concern. I disagree. Any room left for discretion or interpretation of Section 45(j) would be sufficient for one with intent to harass voters or election officials with the threat of prosecution under that provision. After all, just the mere filing of the complaint is enough to effect harassment. Besides, I submit that the acts already expressly criminalized as election offenses, whether under the Omnibus Election Code, or under Rep. Act No. 8189, already encompass the whole range of election offenses that could possibly be committed. The petitioners could have been charged instead with violating Section 261(y) of the Omnibus Election Code.

In recent years, Congress has chosen to employ phraseology similar to Section 45(j) in a number of laws, such as the Cooperative Code,[103] the Indigenous Peoples Rights Act,[104] and the Retail Trade Liberalization Act.[105] I know from my own experience that this is the product of a legislative predilection to utilize a standard template in the crafting of bills.

I have come to believe that this standard phraseology constitutes a dangerous trend, and a clear stand from this Court that Section 45(j) is unconstitutional for being void-for-vagueness would make the legislature think twice before employing such terminology in the laws that it passes. The problem is less obvious if the law in question contains only a few provisions, where any person can be reasonably expected to ascertain with ease what particular acts are made criminal. However, in more extensive laws such as Rep. Act No. 8189 or the especially long codes, such expectation could not be reasonably met. I am aware that compliance with the requisites for the publication of laws is considered legally sufficient for the purposes of notice to the public, but I submit that a measure of reason should be appreciated in evaluating that requirement. If a law runs 400 pages long, with each sentence detailing an act that is made criminal in nature, the doctrine "ignorance of the law excuses no one" should not be made a ready and convenient excuse, especially if, as in Rep. Act 8189, the act is made criminal only by implication of a provision such as Section 45(j).

We should think of the public good that would prevail if the Court makes the stand that Congress cannot criminalize a whole range of behavior by simply adding a multi-purpose, catch-all provision such as Section 45(j). Congress will be forced to deliberate which precise activities should be made criminal. Such deliberate thought leads to definitive laws that do not suffer the vice of void-for-vagueness. These definite laws will undoubtedly inform the people which acts are criminalized, a prospect wholly consonant with constitutional guarantees of fair notice and due process.

No doubt, Section 45(j) and its ilk in law are dangerous provisions. It would be best if the Court send a message that this intended prosecution of the petitioners could be accomplished only through the Omnibus Election Code, which after all specifically penalizes the acts for which they are alleged to have committed.

In the case at bar, an ideal resolution would be to grant the petition and void Section 45(j) and the COMELEC resolutions authorizing prosecution under it, but without prejudice to the authorization of prosecution of the petitioners under the Omnibus Election Code, assuming of course such a tack is still legally feasible.

This solution would satisfy whatever motivation there is to sanction the petitioners, yet at the same time make it clear to the COMELEC that prosecutions under Section 45(j) of Rep. Act No. 8189 cannot avail before this Court. At the same time, the Court would be able to reiterate comforting precepts - that prosecutions under criminal laws that specifically define and particularly criminalize the acts constituting the offense are preferred over those laws that broadly define criminal offenses; that the Court will not provide sanctuary to any abusive resort to Section 45(j) of Rep. Act No. 8189; and that would-be voters who neglect to pay great care to the process of voter registration will face the sanction of the law.

Sad to say, the majority's ruling today is beyond comprehension. No good will come out of it. For one, it opens a Pandora's box of all sorts of malicious wholesale prosecutions of innocent voters at the instance of political partisans desirous to abuse the law for electoral gain. It emboldens Congress to continue incorporating exactly the same provision in the laws it enacts, no matter how many hundreds of acts or provisions are contained in the particular statute. For that matter, it signals that vague penal laws are acceptable in this jurisdiction. Left unabated, the doctrine will be reflexively parroted by judges, lawyers and law students memorizing for their bar exams until it is accepted as the entrenched rule, even though it simply makes no sense. Bad folk wisdom handed down through the generations is soon regarded as gospel truth. I sincerely hope the same mistake is not made with the lamentable doctrine affirmed by the majority today.

I respectfully dissent.



[1] See R. Gorospe, I Constitutional Law: Notes and Readings on Bill of Rights, Citizenship and Suffrage (2006 ed.), at 307-308; G. Balderama, Dénouement Of The Human Security Act: Tremors In The Turbulent Odyssey Of Civil Liberties, LII U.S.T. L. Rev 1, 16-21. "There is an ever-increasing clamor among legal scholars in the Philippines pushing for a re-visit of the status quo of the `void for vagueness' doctrine being applied limitedly to cases involving freedom of speech." Balderama, id. at 16.

[2] Rollo, pp. 81-88.

[3] Who later withdrew as complainant, see id.at 23, 108.

[4] See id. at 90, 92.

[5] See id. at 91, 93-94, 97-98.

[6] Id. at 95-96.

[7] "Indeed, we [the petitioners], left that portion on `period of residence' blank because we were not sure what period of residence was being required. Was it our period of residence in Burauen, Leyte, as of the date we applied for registration as voters? Or, was it the period from 1989, when we first intended to establish our residence and domicile in Burauen, Leyte until the elections on May 14, 2001? Or, was it the period from May 2000 when we applied for registration, until May 14, 2001, the date of elections? The requirement was simply not clear." Joint Counter-Affidavit with Motion to Dismiss dated 2 April 2001, rollo, pp. 32-33.

[8] Resolution signed by COMELEC Chairman Benjamin S. Abalos, Sr., Rufino S.B. Javier, Mehol K. Sadain, Resurreccion Z. Borra, Florentino A. Tuason, Jr., Virgilio O. Garcillano, and Manuel A. Barcelona Jr.

[9] Signed by the same COMELEC Commissioners who signed the 3 February 2004 Resolution, with the exception of Chairman Abalos and Commissioner Javier, who this time took no part in the case.

[10] See E.Chemerinsky, Constitutional Law: Principles and Powers (2002 ed.) "Procedural due process, as the phrase implies, refers to the procedures that the government must follow before it deprives a person of life, liberty or property. Classic procedural due process issues concern what kind of notice and what form of hearing the government must provide when it takes a particular action. xxx Substantive due process, as that phrase connotes, asks whether the government has an adequate reason for taking away a person's life, liberty or property." Id. at 523-524.

[11] G.R. No. L-44143, 31 August 1988, 165 SCRA 186.

[12] Id. at 195.

[13] Id.

[14] Id.

[15] Parenthetically, we note that Section 14(1), Article III likewise states that "no person shall be held to answer for a criminal offense without due process of law," a seeming redundancy considering Section 1, Article III. However, Fr. Bernas explains the reason for the provision in this wise: "It was pointed out that the subject was already adequately covered by Section 1. The retention of the provision, however, was preferred for reasons extraneous to the substance of the provision. Commissioner Bernas noted: "I do not think it is timely to delete this now because we have just experienced a period when there was very little respect for due process in criminal proceedings. For us now to delete this might give the message to the people that we are reducing their rights.'" J. Bernas, I The Constitution of the Republic of the Philippines: A Commentary (2003 ed.), at 480.

[16] See Bernas supra note 15, at 506 (2003 ed); and I. Cruz, Constitutional Law, p. 334 (2007 ed).

[17] Indeed, in his 1987 commentaries on the Constitution, Fr. Bernas observed, with respect to Section 14, Article III, that "[t]he pre-occupation of the Court has been exclusively with the procedural aspect of the right. Hence, there has been no attempt, unlike the practice in American courts, to subsume the `void for vagueness' characterization of statutes under this constitutional guarantee." Bernas, supra note 15 at 387.

[18] G.R. No. 152259, 29 July 2004, 435 SCRA 371.

[19]Id. at 381-382.

[20] R. A. Collings, Jr., Unconstitutional Uncertainty - An Appraisal. 40 Cornell L. Q. 195, 196 (1954-1955).

[21] Id. at 196.

[22] On the other hand, "substantive due process uncertainty cases" pertain to cases where "statutory language [was] so broad and sweeping that it prohibited conduct protected by the Constitution, usually by the principles of the First Amendment," a definition which encompasses the "overbreadth" doctrine. Id. at 197.

[23] Jeffries, Jr., John Calvin, Legality, Vagueness and the Construction of Penal Statutes, 71 Va. L.Rev. 189, 196 (1985).

[24] S. Buck M. Rienzi, Federal Courts, Overbreadth, and Vagueness: Guiding Principles For Constitutional Challenges to Uninterpreted State Statutes, Utah Law Review (2002), p. 466; citing Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972).

[25] Id.

[26] Id. at 467.

[27] "In part, the vagueness doctrine is about fairness; it is unjust to punish a person without providing clear notice as to what conduct was prohibited. Vague laws also risk selective prosecution; under vague statutes and ordinances the government can choose to prosecute based on their views or politics." Chemerinsky, supra note 10 at 911.

[28] Collings, Jr., supra note 20 at 196.

[29] Note, Due Process Requirements of Definiteness in Statutes, 62 Harv. L. Rev. 77, 79 (1948).

[30] 21 Am Jur 2d, at 129.

[31] Collings, supra note 20 at 196.

[32] See Note, supra note 29 at 77.

[33] See id. at 78, 79.

[34] 21 Am Jur 2d, at 130.

[35] See Footnote No. 120, Note, The Void-for-Vagueness Doctrine in the Supreme Court , 109 U. Pa. L. Rev. 67 (1960).

[36] Supra note 18.

[37] 421 Phil. 290 (2001).

[38] Id. at 354.

[39] See Resolution, G.R. No. 148560, 29 January 2002, which may be found at http://www.supremecourt.gov.ph/resolutions/toc2002/..%5Cenbanc%5C2002%5CEjan%5C148560.htm (Last visited, 15 August 2007). Emphasis supplied.

[40] 269 U.S. 385, 393 (1926).

[41] Id. at 388.

[42] Id. at 391.

[43] Id. at 393-395.

[44] A fairly comprehensive overview of these cases may be seen at Romualdez v. Sandiganbayan, supra note 18, at 398-401; J. Tinga, Separate Opinion.

[45] 274 U.S. 445 (1927)

[46] 306 U.S. 451 (1939).

[47] 405 U.S. 156 (1972).

[48] 408 U.S. 104 (1972).

[49] 415 U.S. 566 (1974).

[50] 461 U.S. 352 (1983).

[51] 527 U.S. 41 (1999).

[52] Id. at 46-47.

[53] Id. at 56-58.

[54] Id. at 58-59.

[55] Id. at 64-65.

[56] K. Sullivan and G. Gunther, Constitutional Law (14th ed.) at 1289.

[57] 403 Phil. 31 (2001).

[58] Id. at 47-48.

[59] See Cruz, supra note 16, at 23; citing Dumlao v. COMELEC, 95 SCRA 392.

[60] Manila Motor Co., Inc. v. Flores, 99 Phil. 738, 739 (1956).

[61] See e.g., Teehankee v. Rovira, 75 Phil. 634, 643 (1945).

[62] See e.g., Connally v. General Constructions, supra note 40 at 391.

[63] 408 U.S. 104 (1972).

[64] Id. at 108-109. Emphasis supplied.

[65] 413 U.S. 601 (1973)

[66] Supra note 38, at 430-431.

[67] See U.S. v. Raines, 362 U.S. 17 (1960); Barrows v. Jackson, 346 U.S. 249 (1953).

[68] G. Stone, L. Seidman, C. Sunstein, and M. Tushnet. Constitutional Law (4th ed., 2001), at 1095.

[69] NAACP v. Alabama, 357 U.S. 449 (1958)

[70] Gunther and Sullivan, supra note 56, at 1288.

[71] Id. at 1289.

[72] Broadrick v. Oklahoma, supra note 65, at 607-609.

[73] See Stone, Seidman, Sunstein, and Tushnet, supra note 68, at 1097.

[74] "The first amendment overbreadth doctrine, on the other hand, tests the constitutionality of legislation in terms of its potential applications." G. Stone, L. Seidman, C. Sunstein, and M. Tushnet. Constitutional Law (4th ed., 2001), at 1095.

[75] Broadrick v. Oklahoma, supra note 65 at 612.

[76] Id. at 613.

[77] Id. at 615. In a subsequent case, City Council v. Taxpayers for Vincent,, 466 U.S. 789 (1984), the U.S. Supreme Court further clarified, "The concept of `substantial overbreadth' is not readily reduced to an exact definition. It is clear, however, that the mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge. On the contrary, [there] must be a realistic danger that the statute itself will significantly compromise First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds." Id., at 801.

[78] 481 U.S. 739 (1987).

[79] Id. at 745.

[80] 521 U.S. 702 (1997)

[81] Id., at 739-740, J. Stevens, concurring.

[82] Supra note 51.

[83] Id. at 55.

[84] See Tan v. COMELEC, 226 Phil. 624 (1986).

[85] See Ynot v. IAC, G.R. No. 74457, 20 March 1987, 148 SCRA 659.

[86] See People v. Dacuycoy, G.R. No. L-45127, 5 May 1989, 173 SCRA 90.

[87] See Osmeña v. COMELEC, G.R. No. 100318, 30 July 1991, 199 SCRA 750.

[88] See ACORD v. Zamora, G.R. No. 144256, 8 June 2005, 459 SCRA 578.

[89] See MCWD v. Adala, G.R. No.168914, 4 July 2007, 526 SCRA 465.

[90] See J. Carpio, Separate Opinion, infra.

[91] 104 Phil. 664 (1958).

[92] Republic Act No. 602.

[93] 149 Phil. 547 (1971).

[94] 130 Phil. 415 (1968).

[95] Supra note 51.


[96] Justices Bengzon, Montemayor and Alexander Reyes dissented.

[97] Supra note 91 at 668.

[98] Supra note 91 at 666.

[99] Supra note 91, at 673.

[100] Id.

[101] Id.

[102] The Court did draw on Section 18(c) of Republic Act No. 602, which prescribed administrative penalties on administrative officers on charges of malfeasance or non-feasance in office, and concluded that "this specific provision should be interpreted as qualifying the penal clause provided for in Section 15(a) [of the Minimum Wage Law]."

[103] See Sec. 124(4), Rep. Act No. 6938, which reads: "Any violation of any provision of this Code for which no penalty is imposed shall be punished by imprisonment of not less than six (6) months nor more than one (1) year and a fine of not less than One Thousand Pesos (P1,000.00) or both at the discretion of the Court."

[104] See Sec. 72, Rep. Act No. 8371, which reads in part: Any person who commits violation of any of the provisions of this Act, such as, but not limited to..."

[105] See Sec. 12, Rep. Act No. 8762, which reads: "Any person who would be found guilty of violation of any provision of this Act shall be punished by imprisonment of not less than six (6) years and one (1) day but not more than eight (8) years, and a fine of at least One Million (P1,000,000.00) but not more than Twenty Million (P20,000,000.00)."



DISSENTING OPINION


CARPIO, J.:

Petitioners are charged under two Informations for violation of Section 10(g) and (j)[1] in relation to Section 45(j) of Republic Act No. 8189.[2] RA No. 8189 does not state that violations of Section 10(g) and (j) are election offenses. However, Section 45(j) makes a blanket declaration that "[V]iolation of any of the provisions of this Act" is an election offense.

Petitioners now assail Section 45(j) as unconstitutional for vagueness as it does not refer to any particular provision of RA No. 8189. Petitioners claim a violation of their constitutional right under the due process clause.[3] Petitioners assert that a penal statute must provide "fair notice" of what is a criminal act and what is a lawful act. Petitioners claim that Section 45(j), a penal law that carries the penalty of imprisonment from one to six years,[4] violates their constitutional right to "fair notice" because it is vague.

The due process clause, which guarantees that no person shall be deprived of life, liberty or property without due process of law, requires that citizens are given sufficient notice or warning of what is lawful and unlawful conduct under a penal statute. To enforce this guarantee, courts have developed the void for vagueness doctrine. The void for vagueness doctrine expresses the rule that for an act to constitute a crime, the law must expressly and clearly declare such act a crime. A related doctrine is that penal statutes are construed strictly against the state and liberally in favor of the accused.

Petitioners' constitutional attack on Section 45(j) under the due process clause puts in issue two other requirements for the validity of a penal statute. First, a penal statute must prescribe an ascertainable standard of guilt to guide courts in adjudication.[5] Second, a penal statute must confine law enforcers within well-defined boundaries to avoid arbitrary or discriminatory enforcement of the law.[6]

Petitioners challenge the constitutionality of Section 45(j) "as applied" to them in a live case under which they face prosecution. This is the traditional "as applied" approach in challenging the constitutionality of any statute. In an "as applied" challenge, the petitioner who claims a violation of his constitutional right can raise any constitutional ground - whether absence of due process, lack of fair notice, lack of ascertainable standards, overbreadth, or vagueness.

The "as applied" approach embodies the rule that one can challenge the constitutionality of a statute only if he asserts a violation of his own rights. The rule prohibits one from challenging the constitutionality of the statute based solely on the violation of the rights of third persons not before the court. This rule is also known as the prohibition against third-party standing.

The U.S. Supreme Court has created a notable exception to the prohibition against third-party standing. Under the exception, a petitioner may mount a "facial" challenge to the constitutionality of a statute even if he claims no violation of his own rights under the assailed statute. To mount a "facial" challenge, a petitioner has only to show violation under the assailed statute of the rights of third parties not before the court. This exception allowing "facial" challenges, however, applies only to statutes involving free speech. The ground allowed for a "facial" challenge is overbreadth or vagueness of the statute. Thus, the U.S. Supreme Court declared:
x x x the Court has altered its traditional rules of standing to permit - in the First Amendment area - `attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.' x x x Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression.[7] (Emphasis supplied)
The rationale for this exception allowing a "facial" challenge is to counter the "chilling effect" on protected speech that comes from statutes violating free speech. A person who does not know whether his speech constitutes a crime under an overbroad or vague law may simply refuse to speak to avoid being charged of a crime. The overbroad or vague law chills him into silence.

Prof. Erwin Chemerinsky, a distinguished American textbook writer on Constitutional Law, explains clearly the exception of overbreadth to the rule prohibiting third-party standing in this manner:
The third exception to the prohibition against third-party standing is termed the "overbreadth doctrine." A person generally can argue that a statute is unconstitutional as it is applied to him or her; the individual cannot argue that a statute is unconstitutional as it is applied to third parties not before the court. For example, a defendant in a criminal trial can challenge the constitutionality of the law that is the basis for the prosecution solely on the claim that the statute unconstitutionally abridges his or her constitutional rights. The overbreadth doctrine is an exception to the prohibition against third-party standing. It permits a person to challenge a statute on the ground that it violates the First Amendment (free speech) rights of third parties not before the court, even though the law is constitutional as applied to that defendant. In other words, the overbreadth doctrine provides that: "Given a case or controversy, a litigant whose own activities are unprotected may nevertheless challenge a statute by showing that it substantially abridges the First Amendment rights of other parties not before the court."[8]
The overbreadth doctrine is closely related to the vagueness doctrine.[9] Both doctrines are often simultaneously invoked to mount "facial" challenges to statutes violating free speech.[10]

The doctrines of overbreadth and vagueness, as devices to mount "facial" challenges to penal or non-penal statutes violating free speech, are not applicable to the present petition for two reasons. First, petitioners here assert a violation of their own constitutional rights, not the rights of third-parties. Second, the challenged statute - Section 45(j) of RA No. 8189, does not involve free speech. Thus, any invocation of the doctrines of overbreadth and vagueness to mount a "facial" challenge in the present case is grossly misplaced.

Justice Vicente Mendoza's separate opinion in Estrada v. Sandiganbayan,[11] a case involving both "facial" and "as applied" challenges to specific provisions of the Anti-Plunder Law, correctly distinguished between the inapplicability of the "facial" challenge and the applicability of the "as applied" challenge in that case. Justice Mendoza succinctly stated, "As conduct - not speech - is its object, the challenged provision must be examined only "as applied" to the defendant, herein petitioner, and should not be declared unconstitutional for overbreadth or vagueness [under a "facial" challenge]." Justice Mendoza further explained in his separate opinion denying the motion for reconsideration:
x x x Accordingly, as the enforcement of the Anti-Plunder Law is not alleged to produce a chilling effect on freedom of speech or religion or some "fundamental rights" to be presently discussed, only such provisions can be challenged by petitioner as are sought to be applied to him. Petitioner cannot challenge the entire statute on its face. A contrary rule would permit litigation to turn on abstract hypothetical applications of a statute and disregard the wise limits placed on the judicial power by the Constitution. x x x (Emphasis supplied)[12]
In Romualdez v. Sandiganbayan,[13] petitioner Romualdez challenged the constitutionality of Section 5 of the Anti-Graft and Corrupt Practices Act for which petitioner Romualdez was being prosecuted. The case clearly involved an "as applied" challenge to the constitutionality of a statute. Thus, petitioner Romualdez could raise any constitutional ground, including overbreadth and vagueness, to strike down Section 5. Indeed, the Court in Romualdez stated that "the challenged provision must be examined only "as applied" to the defendant." After discussing the void for vagueness doctrine, the Court ruled that "the challenged provision is not vague," thus acknowledging that the constitutionality of a penal statute can be tested by the vagueness doctrine.

Unfortunately, the Court in Romualdez also stated: "It is best to stress at the outset that the overbreadth and the vagueness doctrines have special application only to free-speech cases. They are not appropriate for testing the validity of penal statutes." The Court concluded: "In sum, the Court holds that the challenged provision is not vague, and that in any event, the `overbreadth' and `void for vagueness' doctrines are not applicable to this case."

However, we must view these statements of the Court on the inapplicability of the overbreadth and vagueness doctrines to penal statutes as appropriate only insofar as these doctrines are used to mount "facial" challenges to penal statutes not involving free speech. These statements of the Court are also obiter dicta since Romualdez involved an "as applied" challenge and not a "facial" challenge to the constitutionality of a statute.

The present petition indisputably involves an "as applied" challenge to the constitutionality of Section 45(j) of RA No. 8189. As an "as applied" challenge, petitioners may raise any constitutional ground to strike down Section 45(j). In this "as applied" challenge, petitioners may invoke the overbreadth and vagueness doctrines to test the constitutionality of Section 45(j).

The threshold issue on the constitutionality of Section 45(j) now turns on three tests: First, does Section 45(j) give "fair notice" or warning to ordinary citizens as to what is criminal conduct and what is lawful conduct? Put differently, is Section 45(j) so vague that ordinary citizens must necessarily guess as to its meaning and differ as to its application?[14] Second, is Section 45(j) so vague that it prescribes no ascertainable standard of guilt to guide courts in judging those charged of its violation?[15] Third, is Section 45(j) so vague that law enforcers - the police and prosecutors - can arbitrarily or selectively enforce it?[16]

If Section 45(j) meets all the three tests, it complies with the due process clause and is therefore constitutional. If it fails any one of the three tests, then it is unconstitutional and the two Informations against petitioners based on Section 45(j) should be quashed.

RA No. 8189 contains 52 sections and some 235 sentences, 149 paragraphs, and 7,831 words. Section 45(j) of RA No. 8189 makes "violation of any of the provisions" of RA No. 8189 a criminal offense, in addition to violations expressly specified in Section 45(a) to (i).[17]

Section 45(j) of RA No. 8189 provides:

SEC. 45. Election Offenses. - The following shall be considered election offenses under this Act:
(a) x x x

x x x

(j) Violation of any of the provisions of this Act.

(Emphasis supplied)
Thus, the violation of any of the following provisions of RA No. 8189, not covered under Section 45(a) to (i), is a crime:

  1. Section 10, requiring that the voter's "application shall contain the following data," listing 11 data (a to k) to be written by the applicant. The 11th data required is "such information or data as may be required by the Commission." If the applicant fails to write the data required by the Commission, he commits a crime.

    Here, petitioners are charged with violating Section 10(g) and ((j) for their alleged failure to state in their application form the periods of their residence in the Philippines, as well as for allegedly falsely stating that they are not registered voters in any other precinct.

  2. Section 10, requiring that the "application for registration shall contain three (3) specimen signatures of the applicant, clear and legible rolled prints of his left and right thumbprints, with four identification size copies of his latest photograph x x x." If the applicant writes only two specimen signatures or his thumbprints are not clear and legible, he commits a crime.

  3. Section 11(e), stating that insane or incompetent persons "shall be disqualified from registering." If an insane or incompetent person registers as a voter, he commits a crime.

  4. Section 18, requiring that a challenge to an applicant for registration "shall be under oath." If the challenger fails to put his challenge under oath, he commits a crime.

  5. Section 27, requiring that the Election Registration Board "shall deactivate the registration and remove the registration records" of "any person who did not vote in the two (2) successive preceding regular elections." Members of the Election Registration Board commit a crime if they fail to do so.

  6. Section 29, requiring that the Election Registration Board "shall cancel the registration records of those who died as certified by the Local Civil Registrar." If the members of the Election Registration Board fail to do so, they commit a crime.

  7. Section 40, requiring that the Commission on Elections "shall reconstitute all registration records which have been lost or destroyed." If the members of the Commission on Elections fail to do so, they commit a crime.
By no means is the foregoing enumeration exhaustive. There are many more provisions of RA No. 8189 that may be violated by a voter, Election Officer, or other officials of the Commission on Elections without committing the "Election Offenses" specified in Section 45(a) to (i) of RA No. 8189. However, the ordinary citizen has no way of knowing which provisions of RA No. 8189 are covered by Section 45(j) even if he has before him a copy of RA No. 8189.

Even Judges and Justices will differ as to which provisions of RA No. 8189 fall under Section 45(j). The prosecution office of the Comelec has not specified which provisions of RA No. 8189 fall under Section 45(j). There is no legal textbook writer who has attempted to enumerate the provisions of RA No. 8189 that fall under Section 45(j). Members of the Commission on Elections will certainly dispute that failure by the Commission to reconstitute lost or destroyed registration records constitutes a crime on their part.

Under RA No. 8189, law enforcement officers have wide latitude to choose which provisions of the law to consider a crime since there is no specific enumeration of provisions falling under Section 45(j). Prosecutors can choose to prosecute only those who violate certain provisions of RA No. 8189. Judges trying violators of the law have no ascertainable standard to determine the guilt of a person accused of violating Section 45(j). There is no certainty which provisions of RA No. 8189 fall under Section 45(j).

Section 45(j) makes a blanket, unconditional declaration that "violation of any of the provisions" of RA No. 8189 constitutes a crime. In contrast, Section 45(b)[18] states that to constitute a crime the failure to give notice or to submit a report must be "without cause." Under Section 45(j), whether the violation or omission is with or without cause, the act constitutes a crime while under Section 45(b) a violation or omission for cause is not a crime.

Certainly, the lawmaker did not intend that trivial and harmless violations, or omissions for cause, should constitute a crime under Section 45(j). Unfortunately, there is no way of knowing with certainty what these trivial and harmless violations or omissions are. Everyone will have to guess as to what provisions fall under Section 45(j), and their guesses will most likely differ from each other.

The last paragraph of Section 4[19] of RA No. 8189 prohibits a change of the precinct assignment of a voter without the voter's written consent. This paragraph expressly declares, "Any violation thereof shall constitute an election offense which shall be punished in accordance with law." The prohibition against such change of precinct assignment is not one of the specific acts penalized under Section 45(a) to (i). Since such change of precinct assignment is expressly declared an election offense in Section 4 itself, such act is clearly a crime and merits the penalty prescribed in Section 46.

However, the provision in the last paragraph of Section 4 declaring a violation of such paragraph an election offense is not found in any other provision of RA No. 8189. The ordinary citizen will not know if the lawmaker also intended other provisions of RA No. 8189 to carry the same penal sanction, even in the absence of an express declaration that violation of such provisions is an election offense. This adds to the uncertainty of the ordinary citizen as to what constitutes criminal conduct and what constitutes lawful conduct under RA No. 8189.

A provision in an elaborate and detailed law that contains a catch-all provision making it a crime to violate any provision of such law does not give "fair notice" to the ordinary citizen on what constitutes prohibited conduct or permitted conduct under such law. Section 45(j) does not draw reasonably clear lines between lawful and unlawful conduct such that the ordinary citizen has no way of finding out what conduct is a prohibited act.[20] The ordinary citizen will have to guess which provisions of RA No. 8189, other than those mentioned in Section 45(a) to (i), carry a penal sanction.

If Section 45(j) had enumerated the specific provisions within its coverage, then reasonable clear lines would guide the ordinary citizen as to what acts are prohibited. Section 45(j) does not specify those provisions and thus fails to draw reasonable clear lines. If Section 45(j) is strictly applied, the ordinary citizen may simply decline to exercise his right of suffrage to avoid unintentionally committing a crime. Section 45(j) is a trap even to the most educated citizen.

There is no basis in the claim that since petitioners are being prosecuted under Section 45(j) in relation to Section 10 (g) and (j), there is no vagueness in the law under which petitioners are charged. Precisely, Section 45(j) does not specify Section 10(g) and (j) as some the provisions of RA No. 8189 that may be violated. Only the Information filed by the prosecutor mentions Section 10(g) and (j) as some of the provisions that may be violated under Section 45(j). The Information, however, is not part of RA No. 8189, and the prosecutor has no legislative power to amend Section 45(j) to cure its vagueness.

A penal law void for vagueness is not made valid by a specification in the Information correcting the vagueness in the law. No court of law has adopted a doctrine that the prosecutor has the power to correct a vagueness in a penal law. Whether a law is void for vagueness under an "as applied" challenge must be tested under the provisions of the law as found in the statute books, and not as interpreted by the prosecutor in the Information.

There is also no basis in the claim that any discussion on the possible provisions of RA No. 8189 that may fall within the coverage of Section 45(j) constitutes a "facial" challenge on such provisions of RA No. 8189. This is gross error. What is void for vagueness is the provision "violation of any of the provisions of this Act," and not any of the unnamed provisions that may be violated. No other provision in RA No. 8189 is being challenged as unconstitutional, only Section 45(j). The provisions possibly falling within the coverage of Section 45(j) must be discussed to illustrate that the ordinary citizen has no way of knowing with certitude what provisions of RA No. 8189 fall within the coverage of Section 45(j). The discussion shows that the ordinary citizen has no fair notice that these are the provisions falling within the coverage of Section 45(j). What is being challenged is the constitutionality of Section 45(j), which is so vague that it could cover any of the provisions discussed above.

In People v. Gatchalian,[21] the Court declared constitutional a provision penalizing "any person who wilfully violates any of the provisions" of the Minimum Wage Law. There, the Court stated:
x x x A study of the origin of our Minimum Wage Law (Republic Act 602) may be of help in arriving at an enlightened and proper interpretation of the provisions under consideration. Our research shows that this Act was patterned after the U. S. Fair Labor Standards Act of 1938, as amended, and so a comparative study of the pertinent provisions of both would be enlightening.

The pertinent provisions of the U. S. Fair Labor Standards Act of 1938, as amended, follow:

MINIMUM WAGES
SEC. 6. (a) Every employer shall pay to each of his employees who is engaged in commerce or in the production of goods for commerce wages at the following rates --

(1) not less than 75 cents an hour;

xxx xxx xxx

PROHIBITED ACTS

SEC. 15. (a) After the expiration of one hundred and twenty, days from the date of enactment of this Act, it shall be unlawful for any person --

(1) to transport, offer for transportation, ship, deliver, or sell in commerce, or to ship, deliver; or sell with knowledge that shipment or delivery or sale thereof in commerce is intended, any goods in the production of which any employee was employed in violation of section 6 or section 7, or in violation of any regulation or order of the Administrator issued under section 14; xxx

(2) to violate any of the provisions of section 6 or section 7, or any of the provisions of any regulation or order of the Administrator issued under section 14;

(3) to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or cause to be instituted any proceeding under or related to this Act, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee;

(4) to violate any of the provisions of section 11 (c) or any regulation or order made or continued in effect under the provisions of section 11 (d), or to make any statement, report, or record filed or kept pursuant. to the provisions of such section or of any regulation or order thereunder, knowing such statement, report, or record to be false in a material respect.

xxx xxx xxx

PENALTIES

SEC. 16. (a) Any person who willfully violates any of the provisions of section 15 shall upon conviction thereof be subject to a line of not more than P10,000, or to imprisonment for not more than six months, or both. No person shall be imprisoned under this subsection except for an offense committed after the conviction of such person for a prior offense under this subsection.

(b) Any employer who violates the provisions of section 6 or 7 of this Act shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in additional equal amount as liquidated damages. Action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought. The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant costs of the action.

The pertinent provisions of Republic Act 602 read:

SEC. 3. Minimum wage. -- (a) Every employer shall pay to each of his employees who is employed by an enterprise other than in agriculture wages at the rate of not less than --

xxx xxx xxx

(2) Three pesos a day on the effective date of this Act and for one year after the effective date, and thereafter P4 a day, for employees of establishments located outside of Manila or its environs: Provided, That this Act shall not apply to any retail or service enterprise that regularly employs not more than five employees.

SEC. 15. Penalties and recovery of wage due under this Act. -- (a) Any person who willfully violates any of the provisions of this Act shall upon conviction thereof be subject to a fine of not more than two thousand pesos, or, upon second conviction, to imprisonment of not more than one year, or to both fine and imprisonment, in the discretion of the court.

xxx xxx xxx

(e) Any employer who underpays an employee in violation of this Act shall be liable to the employee effected in the amount of the unpaid wages with legal interest. Action to recover such liability may be maintained in any competent court by anyone or more employees on behalf of himself or themselves. The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee which shall not exceed ten per cent of the amount awarded to the plaintiffs, unless the amount awarded is less than one hundred pesos, in which event the fee may be ten pesos, but not in excess of that amount. Payment of the amount found due to the plaintiffs shall be made directly to the plaintiffs, in the presence of a representative of the Secretary or of the Court. In the event payment is witnessed by the court or its representative, the Secretary shall be notified within ten days of payment that the payment has been made.

x x x
It should also be noted that while Section 16 of the Fair Labor Standards Act which provides for the penalties to be imposed for any willful violation of the provisions of the Act; specifically states that those penalties refer to acts declared unlawful under Section 15 of the same Act, our law does not contain such specification. It merely provides in Section 15 (a) that Any person who willfully violates any of the provisions of this Act shall upon conviction be subject to the penalty therein prescribed. This distinction is very revealing. It clearly indicates that while the Fair Labor Standards Act intends to subject to criminal action only acts that are declared unlawful, our law by legislative fiat intends to punish not only those expressly declared unlawful but even those not so declared but are clearly enjoined to be observed to carry out the fundamental purpose of the law. One such provision is undoubtedly that which refers to the payment of the minimum wage embodied in Section 3. This is the only rational interpretation that can be drawn from the attitude of our Congress in framing our law in a manner different from that appearing in the mother law.[22] (Boldfacing and underscoring supplied)
This Court must revisit Gatchalian's holding that makes a crime "not only those (acts) expressly declared unlawful but even those not so declared but are clearly enjoined to be observed to carry out the fundamental purpose of the law." Unlike the U.S. Fair Labor Standards Act after which our Republic Act No. 602 was patterned, RA 602 does not specify the provisions of the law the violation of which is declared unlawful. This Court must categorically rule that only acts expressly declared unlawful or prohibited by law, and penalized as such, are crimes. Acts not expressly declared unlawful or prohibited can never give rise to criminal liability. Any ambiguity in the law whether an act constitutes a crime is resolved in favor of the accused.

To punish as crimes acts not expressly declared unlawful or prohibited by law violates the Bill of Rights. First, the Constitution provides that "[N]o person shall be held to answer for a criminal offense without due process of law."[23] Due process requires that the law expressly declares unlawful, and punishes as such, the act for which the accused is held criminally liable. The void for vagueness doctrine is aimed precisely to enforce this fundamental constitutional right. Second, the Constitution provides that "[I]n all criminal prosecutions, the accused shall x x x enjoy the right x x x to be informed of the nature and cause of the accusation against him."[24] This right of the accused requires that the Information states the particular act the accused committed in violation of a specific provision of a law defining such act a crime.

A blanket and unconditional declaration that any violation of an elaborate and detailed law is a crime is too imprecise and indefinite, and fails to define with certitude and clarity what acts the law punishes as crimes. Such a shotgun approach to criminalizing human conduct is exactly what the void for vagueness doctrine outlaws, thus:
That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well-recognized requirement, consonant alike with the ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.

x x x

The dividing line between what is lawful and unlawful conduct cannot be left to conjecture. The citizen cannot be held to answer charges based upon penal statutes whose mandates are so uncertain that they will reasonably admit of different constructions. A criminal statute cannot rest upon an uncertain foundation. The crime, and the elements constituting it, must be so clearly expressed that the ordinary person can intelligently choose, in advance, what course it is lawful for him to pursue. x x x[25]
Section 45(j) is a penal statute. Penal statutes are construed strictly against the state and liberally in favor of the accused. The purpose is not to allow a guilty person to escape punishment through a technicality but to provide a precise definition of the prohibited act.[26] To constitute a crime, an act must come clearly within the spirit and letter of the penal statute.[27] Otherwise, the act is outside the coverage of the penal statute. An act is not a crime unless clearly made so by express provision of law. This Court has declared:
Criminal statutes are to be construed strictly. No person should be brought within their terms who is not clearly within them, nor should any act be pronounced criminal which is not made clearly so by the statute.[28] (Emphasis supplied)
Section 45(j) does not specify what provisions of RA No. 8189, if violated, carry a penal sanction. Section 45(j) merely states that "violation of any of the provisions" of RA No. 8189 is a crime. In addition to the provisions covered by Section 45(a) to (i), there are many other provisions of RA No. 8189 that are susceptible of violation. Section 45(j), however, does not specify which of these other provisions carry a penal sanction if violated. Thus, Section 45(j) fails to satisfy the requirement that for an act to be a crime it must clearly be made a crime by express provision of law.

The penal provisions of the Omnibus Election Code[29] (Code) are instructive. Section 261 of the Code enumerates what are the specific prohibited acts which constitute election offenses. Section 262[30] penalizes "Other election offenses" by specifying the specific sections of the Code the violation of which also constitutes election offenses. There is no room for guesswork as to what provisions the violation of which constitutes crimes. There is "fair notice" to all citizens of what acts are prohibited, and what acts are permitted, under the Code. Law enforcers have no discretion to choose what provisions are prohibited as criminal acts. Judges know with certainty what provisions of the Code carry penal sanctions.

This is not the case with Section 45(j) of RA No. 8189. Indisputably, Section 45(j) is so vague that it fails to give "fair notice" to ordinary citizens as to what conduct is a crime and what conduct is lawful under Section 45(j). Section 45(j) is also so vague that it fails to define the prohibited acts in a precise and clear manner, allowing law enforcers to enforce it arbitrarily while leaving courts no standard by which to adjudge the guilt of a person accused of violating it. This substantial vagueness in Section 45(j) violates the due process clause.

I therefore vote to declare Section 45(j) of RA No. 8189 UNCONSTITUTIONAL, and to GRANT the petition.



[1] Section 10(g) and (j) of RA No. 8189 provides:
SEC. 10. Registration of Voters. - x x x

The application shall contain the following data:

a) x x x

x x x

g) Periods of residence in the Philippines and in the place of registration;

x x x

j) A statement that the applicant is not a registered voter of any precinct;
[2] The Voter's Registration Act of 1996.

[3] Section 1, Article III of the Constitution provides:

No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.

[4] Section 46 of RA No. 8189 provides:

Section 46. Penalties. -- Any person found guilty of any election offense under this Act shall be punished with imprisonment of not less than one (1) year but not more than six (6) years and shall not be subject to probation. In addition, the guilty party shall be sentenced to suffer disqualification to hold public office and deprivation of the right of suffrage. If he is a foreigner, he shall be deported after the prison term has been served. Any political party found guilty shall be sentenced to pay a fine not less than one hundred thousand pesos (P100,000) but not more than five hundred thousand pesos (P500,000).

[5] People v. Nazario, No. L-44143, 31 August 1988, 165 SCRA186.

[6] Id.

[7] Broadrick v. Oklahoma, 413 U.S. 601 (1973). This case involved a non-penal statute that prohibited state employees from engaging in partisan political activities. The statute was declared neither substantially overbroad nor impermissibly vague, thus valid.

[8] Erwin Chemerinsky, CONSTITUTIONAL LAW, p. 86, 2nd Edition (2002).

[9] John E. Nowak and Ronal D. Rotunda write, "Closely related to the overbreadth doctrine is the void for vagueness doctrine. The problem of vagueness in statutes regulating speech activities is based on the same rationale as the overbreadth doctrine and the Supreme Court often speaks of them together." CONSTITUTIONAL LAW, p. 1070, 6th Edition (2000).

[10] See note 1, p. 917.

[11] 421 Phil. 290 (2001).

[12] Resolution dated 29 January 2002.

[13] 479 Phil. 265 (2004).

[14] Connally v. General Constr. Co., 269 U.S. 385 (1926), cited in Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila, No. L-24693, 31 July 1967, 20 SCRA 849.

[15] Grayned v. City of Rockford, 408 U.S. 104 (1972).

[16] Id.

[17] Section 45(a) to (i) provides:
Section 45. Election Offenses. -- The following shall be considered election offenses under this Act:

a) to deliver, hand over, entrust or give, directly or indirectly, his voter's identification card to another in consideration of money or other benefit or promise; or take or accept such voter's identification card directly or indirectly, by giving or causing the giving of money or other benefit or making or causing the making of a promise therefor;

b) to fail, without cause, to post or give any of the notices or to make any of the reports reacquire under this Act;

c) to issue or cause the issuance of a voter's identification number or to cancel or cause the cancellation thereof in violation of the provisions of this Act; or to refuse the issuance of registered voters their voter's identification card;

d) to accept an appointment, to assume office and to actually serve as a member of the Election Registration Board although ineligible thereto; to appoint such ineligible person knowing him to be ineligible;

e) to interfere with, impede, abscond for purposes of gain or to prevent the installation or use of computes and devices and the processing, storage, generation and transmission of registration data or information;

f) to gain, cause access to, use, alter, destroy, or disclose any computer data, program, system software, network, or any computer-related devices, facilities, hardware or equipment, whether classified or declassified;

g) failure to provide certified voters and deactivated voters list to candidates and heads or representatives of political parties upon written request as provided in Section 30 hereof;

h) failure to include the approved application form for registration of a qualified voter in the book of voters of a particular precinct or the omission of the name of a duly registered voter in the certified list of voters of the precinct where he is duly registered resulting in his failure to cast his vote during an election, plebiscite, referendum, initiative and/or recall. The presence of the form or name in the book of voters or certified list of voters in precincts other than where he is duly registered shall not be an excuse hereof;

i) The posting of a list of voters outside or at the door of a precinct on the day of an election, plebiscite, referendum, initiative and/or recall and which list is different in contents from the certified list of voters being used by the Board of Election Inspectors; and

x x x.
[18] Section 45(b) provides:
Section 45. Election Offenses. -- The following shall be considered election offenses under this Act:

a) x x x

b) to fail, without cause, to post or give any of the notices or to make any of the reports reacquired under this Act;

x x x. (Emphasis supplied)
[19] This paragraph provides:

The precinct assignment of a voter in the permanent list of voters shall not be changed or altered or transferred to another precinct without the express written consent of the voter: Provided, however, That the voter shall not unreasonably withhold such consent: Any violation thereof shall constitute an election offense which shall be punished in accordance with law. (Emphasis supplied)

[20] Smith v. Goguen, 415 U.S. 566 (1974).

[21] 104 Phil. 664 (1958).

[22] Id. at 668-672.

[23] Section 14(1), Article III, Constitution.

[24] Section 14(2), Article III, Constitution.

[25] Connally v. General Constr. Co., note 13. This case involved an eight-hour day labor statute which imposed penalties for its violation.

[26] People v. Purisima, 176 Phil. 186 (1978).

[27] Idos v. CA, 357 Phil. 198 (1998).

[28] United States v. Abad Santos, 36 Phil. 243, 246 (1917).

[29] Batas Blg. 881, as amended.

[30] Section 262 of the Omnibus Election Code provides:
Section 262. Other election offenses. -- Violation of the provisions, or pertinent portions, of the following sections of this Code shall constitute election offenses: Sections 9, 18, 74, 75, 76, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106 107, 108, 109, 110, 111, 112, 122, 123, 127, 128, 129, 132, 134, 135, 145, 148, 150, 152, 172, 173, 174, 178, 180, 182, 184, 185, 186, 189, 190, 191, 192, 194, 195, 196, 197, 198, 202, 203, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 223, 229, 230, 231, 233, 234, 235, 236, 239 and 240.

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