621 Phil. 236

EN BANC

[ G.R. No. 189698, December 01, 2009 ]

ELEAZAR P. QUINTO AND GERINO A. TOLENTINO, JR., PETITIONERS, VS. COMMISSION ON ELECTIONS, RESPONDENT.

D E C I S I O N

NACHURA, J.:

"In our predisposition to discover the `original intent' of a statute, courts become the unfeeling pillars of the status quo. Little do we realize that statutes or even constitutions are bundles of compromises thrown our way by their framers. Unless we exercise vigilance, the statute may already be out of tune and irrelevant to our day."[1] It is in this light that we should address the instant case.

Before the Court is a petition for prohibition and certiorari, with prayer for the issuance of a temporary restraining order and a writ of preliminary injunction, assailing Section 4(a) of Resolution No. 8678 of the Commission on Elections (COMELEC). In view of pressing contemporary events, the petition begs for immediate resolution.

The Antecedents

This controversy actually stems from the law authorizing the COMELEC to use an automated election system (AES).

On December 22, 1997, Congress enacted Republic Act (R.A.) No. 8436, entitled "AN ACT AUTHORIZING THE COMMISSION ON ELECTIONS TO USE AN AUTOMATED ELECTION SYSTEM IN THE MAY 11, 1998 NATIONAL OR LOCAL ELECTIONS AND IN SUBSEQUENT NATIONAL AND LOCAL ELECTORAL EXERCISES, PROVIDING FUNDS THEREFOR AND FOR OTHER PURPOSES." Section 11 thereof reads:

SEC. 11. Official Ballot.--The Commission shall prescribe the size and form of the official ballot which shall contain the titles of the positions to be filled and/or the propositions to be voted upon in an initiative, referendum or plebiscite. Under each position, the names of candidates shall be arranged alphabetically by surname and uniformly printed using the same type size. A fixed space where the chairman of the Board of Election inspectors shall affix his/her signature to authenticate the official ballot shall be provided.

Both sides of the ballots may be used when necessary.

For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/manifestation to participate in the election shall not be later than one hundred twenty (120) days before the elections: Provided, That, any elective official, whether national or local, running for any office other than the one which he/she is holding in a permanent capacity, except for president and vice president, shall be deemed resigned only upon the start of the campaign period corresponding to the position for which he/she is running: Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period: Provided, finally, That, for purposes of the May 11, 1998 elections, the deadline for filing of the certificate of candidacy for the positions of President, Vice President, Senators and candidates under the Party-List System as well as petitions for registration and/or manifestation to participate in the Party-List System shall be on February 9, 1998 while the deadline for the filing of certificate of candidacy for other positions shall be on March 27, 1998.

The official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas at the price comparable with that of private printers under proper security measures which the Commission shall adopt. The Commission may contract the services of private printers upon certification by the National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the printing requirements. Accredited political parties and deputized citizens' arms of the Commission may assign watchers in the printing, storage and distribution of official ballots.

To prevent the use of fake ballots, the Commission through the Committee shall ensure that the serial number on the ballot stub shall be printed in magnetic ink that shall be easily detectable by inexpensive hardware and shall be impossible to reproduce on a photocopying machine and that identification marks, magnetic strips, bar codes and other technical and security markings, are provided on the ballot.

The official ballots shall be printed and distributed to each city/municipality at the rate of one (1) ballot for every registered voter with a provision of additional four (4) ballots per precinct.[2]

Almost a decade thereafter, Congress amended the law on January 23, 2007 by enacting R.A. No. 9369, entitled "AN ACT AMENDING REPUBLIC ACT NO. 8436, ENTITLED `AN ACT AUTHORIZING THE COMMISSION ON ELECTIONS TO USE AN AUTOMATED ELECTION SYSTEM IN THE MAY 11, 1998 NATIONAL OR LOCAL ELECTIONS AND IN SUBSEQUENT NATIONAL AND LOCAL ELECTORAL EXERCISES, TO ENCOURAGE TRANSPARENCY, CREDIBILITY, FAIRNESS AND ACCURACY OF ELECTIONS, AMENDING FOR THE PURPOSE BATAS PAMPANSA BLG. 881, AS AMEMDED, REPUBLIC ACT NO. 7166 AND OTHER RELATED ELECTION LAWS, PROVIDING FUNDS THEREFOR AND FOR OTHER PURPOSES.'" Section 13 of the amendatory law modified Section 11 of R.A. No. 8436, thus:

SEC. 13. Section 11 of Republic Act No. 8436 is hereby amended to read as follows:

"Section 15. Official Ballot.--The Commission shall prescribe the format of the electronic display and/or the size and form of the official ballot, which shall contain the titles of the position to be filled and/or the propositions to be voted upon in an initiative, referendum or plebiscite. Where practicable, electronic displays must be constructed to present the names of all candidates for the same position in the same page or screen, otherwise, the electronic displays must be constructed to present the entire ballot to the voter, in a series of sequential pages, and to ensure that the voter sees all of the ballot options on all pages before completing his or her vote and to allow the voter to review and change all ballot choices prior to completing and casting his or her ballot. Under each position to be filled, the names of candidates shall be arranged alphabetically by surname and uniformly indicated using the same type size. The maiden or married name shall be listed in the official ballot, as preferred by the female candidate. Under each proposition to be vote upon, the choices should be uniformly indicated using the same font and size.

"A fixed space where the chairman of the board of election inspectors shall affix his/her signature to authenticate the official ballot shall be provided.

"For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition of registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers and employees in government-owned or -controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certificate of candidacy.

"Political parties may hold political conventions to nominate their official candidates within thirty (30) days before the start of the period for filing a certificate of candidacy.

"With respect to a paper-based election system, the official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas at the price comparable with that of private printers under proper security measures which the Commission shall adopt. The Commission may contract the services of private printers upon certification by the National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the printing requirements. Accredited political parties and deputized citizens' arms of the Commission shall assign watchers in the printing, storage and distribution of official ballots.

"To prevent the use of fake ballots, the Commission through the Committee shall ensure that the necessary safeguards, such as, but not limited to, bar codes, holograms, color shifting ink, microprinting, are provided on the ballot.

"The official ballots shall be printed and distributed to each city/municipality at the rate of one ballot for every registered voter with a provision of additional three ballots per precinct."[3]

Pursuant to its constitutional mandate to enforce and administer election laws, COMELEC issued Resolution No. 8678,[4] the Guidelines on the Filing of Certificates of Candidacy (CoC) and Nomination of Official Candidates of Registered Political Parties in Connection with the May 10, 2010 National and Local Elections. Sections 4 and 5 of Resolution No. 8678 provide:

SEC. 4. Effects of Filing Certificates of Candidacy.--a) Any person holding a public appointive office or position including active members of the Armed Forces of the Philippines, and other officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.

b) Any person holding an elective office or position shall not be considered resigned upon the filing of his certificate of candidacy for the same or any other elective office or position.

SEC. 5. Period for filing Certificate of Candidacy.--The certificate of candidacy shall be filed on regular days, from November 20 to 30, 2009, during office hours, except on the last day, which shall be until midnight.

Alarmed that they will be deemed ipso facto resigned from their offices the moment they file their CoCs, petitioners Eleazar P. Quinto and Gerino A. Tolentino, Jr., who hold appointive positions in the government and who intend to run in the coming elections,[5] filed the instant petition for prohibition and certiorari, seeking the declaration of the afore-quoted Section 4(a) of Resolution No. 8678 as null and void.

The Petitioners' Contention

Petitioners contend that the COMELEC gravely abused its discretion when it issued the assailed Resolution. They aver that the advance filing of CoCs for the 2010 elections is intended merely for the purpose of early printing of the official ballots in order to cope with time limitations. Such advance filing does not automatically make the person who filed the CoC a candidate at the moment of filing. In fact, the law considers him a candidate only at the start of the campaign period. Petitioners then assert that this being so, they should not be deemed ipso facto resigned from their government offices when they file their CoCs, because at such time they are not yet treated by law as candidates. They should be considered resigned from their respective offices only at the start of the campaign period when they are, by law, already considered as candidates.[6]

Petitioners also contend that Section 13 of R.A. No. 9369, the basis of the assailed COMELEC resolution, contains two conflicting provisions. These must be harmonized or reconciled to give effect to both and to arrive at a declaration that they are not ipso facto resigned from their positions upon the filing of their CoCs.[7]

Petitioners further posit that the provision considering them as ipso facto resigned from office upon the filing of their CoCs is discriminatory and violates the equal protection clause in the Constitution.[8]

The Respondent's Arguments

On the procedural aspect of the petition, the Office of the Solicitor General (OSG), representing respondent COMELEC, argues that petitioners have no legal standing to institute the suit. Petitioners have not yet filed their CoCs, hence, they are not yet affected by the assailed provision in the COMELEC resolution. The OSG further claims that the petition is premature or unripe for judicial determination. Petitioners have admitted that they are merely planning to file their CoCs for the coming 2010 elections. Their interest in the present controversy is thus merely speculative and contingent upon the filing of the same. The OSG likewise contends that petitioners availed of the wrong remedy. They are questioning an issuance of the COMELEC made in the exercise of the latter's rule-making power. Certiorari under Rule 65 is then an improper remedy.[9]

On the substantive aspect, the OSG maintains that the COMELEC did not gravely abuse its discretion in phrasing Section 4(a) of Resolution No. 8678 for it merely copied what is in the law. The OSG, however, agrees with petitioners that there is a conflict in Section 13 of R.A. No. 9369 that should be resolved. According to the OSG, there seems to be no basis to consider appointive officials as ipso facto resigned and to require them to vacate their positions on the same day that they file their CoCs, because they are not yet considered as candidates at that time. Further, this "deemed resigned" provision existed in Batas Pambansa Bilang (B.P. Blg.) 881, and no longer finds a place in our present election laws with the innovations brought about by the automated system.[10]

Our Ruling

I.

At first glance, the petition suffers from an incipient procedural defect. What petitioners assail in their petition is a resolution issued by the COMELEC in the exercise of its quasi-legislative power. Certiorari under Rule 65, in relation to Rule 64, cannot be availed of, because it is a remedy to question decisions, resolutions and issuances made in the exercise of a judicial or quasi-judicial function.[11] Prohibition is also an inappropriate remedy, because what petitioners actually seek from the Court is a determination of the proper construction of a statute and a declaration of their rights thereunder. Obviously, their petition is one for declaratory relief,[12] over which this Court does not exercise original jurisdiction.[13]

However, petitioners raise a challenge on the constitutionality of the questioned provisions of both the COMELEC resolution and the law. Given this scenario, the Court may step in and resolve the instant petition.

The transcendental nature and paramount importance of the issues raised and the compelling state interest involved in their early resolution--the period for the filing of CoCs for the 2010 elections has already started and hundreds of civil servants intending to run for elective offices are to lose their employment, thereby causing imminent and irreparable damage to their means of livelihood and, at the same time, crippling the government's manpower--further dictate that the Court must, for propriety, if only from a sense of obligation, entertain the petition so as to expedite the adjudication of all, especially the constitutional, issues.

In any event, the Court has ample authority to set aside errors of practice or technicalities of procedure and resolve the merits of a case. Repeatedly stressed in our prior decisions is the principle that the Rules were promulgated to provide guidelines for the orderly administration of justice, not to shackle the hand that dispenses it. Otherwise, the courts would be consigned to being mere slaves to technical rules, deprived of their judicial discretion.[14]

II.

To put things in their proper perspective, it is imperative that we trace the brief history of the assailed provision. Section 4(a) of COMELEC Resolution No. 8678 is a reproduction of the second proviso in the third paragraph of Section 13 of R.A. No. 9369, which for ready reference is quoted as follows:
For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition for registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers and employees in government-owned or -controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certificate of candidacy.[15]

Notably, this proviso is not present in Section 11 of R.A. No. 8436, the law amended by R.A. No. 9369. The proviso was lifted from Section 66 of B.P. Blg. 881 or the Omnibus Election Code (OEC) of the Philippines, which reads:

Sec. 66. Candidates holding appointive office or position.--Any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.

It may be recalled--in inverse chronology--that earlier, Presidential Decree No. 1296, or the 1978 Election Code, contained a similar provision, thus--

SECTION 29. Candidates holding appointive office or position. -- Every person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall ipso facto cease in his office or position on the date he files his certificate of candidacy. Members of the Cabinet shall continue in the offices they presently hold notwithstanding the filing of certificate of candidacy, subject to the pleasure of the President of the Philippines.

Much earlier, R.A. No. 6388, or the Election Code of 1971, likewise stated in its Section 23 the following:

SECTION 23. Candidates Holding Appointive Office or Position. -- Every person holding a public appointive office or position, including active members of the Armed Forces of the Philippines and every officer or employee in government-owned or controlled corporations, shall ipso facto cease in his office or position on the date he files his certificate of candidacy: Provided, That the filing of a certificate of candidacy shall not affect whatever civil, criminal or administrative liabilities which he may have incurred.

Going further back in history, R.A. No. 180, or the Revised Election Code approved on June 21, 1947, also provided that--

SECTION 26. Automatic cessation of appointive officers and employees who are candidates. -- Every person holding a public appointive office or position shall ipso facto cease in his office or position on the date he files his certificate of candidacy.

During the Commonwealth era, Commonwealth Act (C.A.) No. 725, entitled "AN ACT TO PROVIDE FOR THE NEXT ELECTION FOR PRESIDENT AND VICE-PRESIDENT OF THE PHILIPPINES, SENATORS AND MEMBERS OF THE HOUSE OF REPRESENTATIVES, AND APPROPRIATING THE NECESSARY FUNDS THEREFOR," approved on January 5, 1946, contained, in the last paragraph of its Section 2, the following:
A person occupying any civil office by appointment in the government or any of its political subdivisions or agencies or government-owned or controlled corporations, whether such office by appointive or elective, shall be considered to have resigned from such office from the moment of the filing of such certificate of candidacy.

Significantly, however, C.A. No. 666, entitled "AN ACT TO PROVIDE FOR THE FIRST ELECTION FOR PRESIDENT AND VICE-PRESIDENT OF THE PHILIPPINES, SENATORS, AND MEMBERS OF THE HOUSE OF REPRESENTATIVES, UNDER THE CONSTITUTION AND THE AMENDMENTS THEREOF," enacted without executive approval on June 22, 1941, the precursor of C.A. No. 725, only provided for automatic resignation of elective, but not appointive, officials.

Nevertheless, C.A. No. 357, or the Election Code approved on August 22, 1938, had, in its Section 22, the same verbatim provision as Section 26 of R.A. No. 180.

The earliest recorded Philippine law on the subject is Act No. 1582, or the Election Law enacted by the Philippine Commission in 1907, the last paragraph of Section 29 of which reads:

Sec. 29. Penalties upon officers.-- x x x.

No public officer shall offer himself as a candidate for election, nor shall he be eligible during the time that he holds said public office to election, at any municipal, provincial or Assembly election, except for reelection to the position which he may be holding, and no judge of the Court of First Instance, justice of the peace, provincial fiscal, or officer or employee of the Bureau of Constabulary or of the Bureau of Education shall aid any candidate or influence in any manner or take any part in any municipal, provincial, or Assembly election under penalty of being deprived of his office and being disqualified to hold any public office whatever for a term of five years: Provided, however, That the foregoing provisions shall not be construed to deprive any person otherwise qualified of the right to vote at any election.

From this brief historical excursion, it may be gleaned that the second proviso in the third paragraph of Section 13 of R.A. No. 9369--that any person holding a public appointive office or position, including active members of the armed forces, and officers, and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certificate of candidacy--traces its roots to the period of the American occupation.

In fact, during the deliberations of Senate Bill No. 2231, the bill later to be consolidated with House Bill No. 5352 and enacted as R.A. No. 9369, Senator Richard Gordon, the principal author of the bill, acknowledged that the said proviso in the proposed legislative measure is an old provision which was merely copied from earlier existing legislation, thus--

Senator Osmeña. May I just opine here and perhaps obtain the opinion of the good Sponsor. This reads like, "ANY PERSON HOLDING [means currently] A PUBLIC APPOINTIVE POSITION... SHALL BE CONSIDERED IPSO FACTO RESIGNED" [which means that the prohibition extends only to appointive officials] "INCLUDING ACTIVE MEMBERS OF THE ARMED FORCES, OFFICERS AND EMPLOYEES"... This is a prohibition, Mr. President. This means if one is chairman of SSS or PDIC, he is deemed ipso facto resigned when he files his certificate of candidacy. Is that the intention?

Senator Gordon. This is really an old provision, Mr. President.

Senator Osmeña. It is in bold letters, so I think it was a Committee amendment.

Senator Gordon. No, it has always been there.

Senator Osmeña. I see.

Senator Gordon. I guess the intention is not to give them undue advantage, especially certain people.

Senator Osmeña. All right.[16]

In that Senate deliberation, however, Senator Miriam Defensor-Santiago expressed her concern over the inclusion of the said provision in the new law, given that the same would be disadvantageous and unfair to potential candidates holding appointive positions, while it grants a consequent preferential treatment to elective officials, thus--

Senator Santiago. On page 15, line 31, I know that this is a losing cause, so I make this point more as a matter of record than of any feasible hope that it can possibly be either accepted or if we come to a division of the House, it will be upheld by the majority.

I am referring to page 15, line 21. The proviso begins: "PROVIDED FINALLY, THAT ANY PERSON HOLDING A PUBLIC APPOINTIVE OFFICE...SHALL BE CONSIDERED IPSO FACTO RESIGNED FROM HIS/HER OFFICE."

The point that I made during the appropriate debate in the past in this Hall is that there is, for me, no valid reason for exempting elective officials from this inhibition or disqualification imposed by the law. If we are going to consider appointive officers of the government, including AFP members and officers of government-owned and controlled corporations, or any other member of the appointive sector of the civil service, why should it not apply to the elective sector for, after all, even senators and congressmen are members of the civil service as well?

Further, it is self-serving for the Senate, or for the Congress in general, to give an exception to itself which is not available to other similarly situated officials of government. Of course, the answer is, the reason why we are special is that we are elected. Since we are imposing a disqualification on all other government officials except ourselves, I think, it is the better part of delicadeza to inhibit ourselves as well, so that if we want to stay as senators, we wait until our term expires. But if we want to run for some other elective office during our term, then we have to be considered resigned just like everybody else. That is my proposed amendment. But if it is unacceptable to the distinguished Sponsor, because of sensitivity to the convictions of the rest of our colleagues, I will understand.

Senator Gordon. Mr. President, I think the suggestion is well-thought of. It is a good policy. However, this is something that is already in the old law which was upheld by the Supreme court in a recent case that the rider was not upheld and that it was valid.[17]

The obvious inequality brought about by the provision on automatic resignation of appointive civil servants must have been the reason why Senator Recto proposed the inclusion of the following during the period of amendments: "ANY PERSON WHO FILES HIS CERTIFICATE OF CANDIDACY WITHIN THIS PERIOD SHALL ONLY BE CONSIDERED AS A CANDIDATE AT THE START OF THE CAMPAIGN PERIOD FOR WHICH HE FILED HIS COC."[18] The said proviso seems to mitigate the situation of disadvantage afflicting appointive officials by considering persons who filed their CoCs as candidates only at the start of the campaign period, thereby, conveying the tacit intent that persons holding appointive positions will only be considered as resigned at the start of the campaign period when they are already treated by law as candidates.

Parenthetically, it may be remembered that Section 67 of the OEC and Section 11 of R.A. No. 8436 contained a similar provision on automatic resignation of elective officials upon the filing of their CoCs for any office other than that which they hold in a permanent capacity or for President or Vice-President. However, with the enactment of R.A. No. 9006, or the Fair Election Act,[19] in 2001, this provision was repealed by Section 14[20] of the said act. There was, thus, created a situation of obvious discrimination against appointive officials who were deemed ipso facto resigned from their offices upon the filing of their CoCs, while elective officials were not.

This situation was incidentally addressed by the Court in Fariñas v. The Executive Secretary[21] when it ruled that--

Section 14 of Rep. Act No. 9006
Is Not Violative of the Equal
Protection Clause of the Constitution

The petitioners' contention, that the repeal of Section 67 of the Omnibus Election Code pertaining to elective officials gives undue benefit to such officials as against the appointive ones and violates the equal protection clause of the constitution, is tenuous.

The equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable classification. If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from the other. The Court has explained the nature of the equal protection guarantee in this manner:
The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not.
Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority.

Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987 (Executive Order No. 292), appointive officials, as officers and employees in the civil service, are strictly prohibited from engaging in any partisan political activity or take part in any election except to vote. Under the same provision, elective officials, or officers or employees holding political offices, are obviously expressly allowed to take part in political and electoral activities.

By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators deemed it proper to treat these two classes of officials differently with respect to the effect on their tenure in the office of the filing of the certificates of candidacy for any position other than those occupied by them. Again, it is not within the power of the Court to pass upon or look into the wisdom of this classification.

Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis-a-vis appointive officials, is anchored upon material and significant distinctions and all the persons belonging under the same classification are similarly treated, the equal protection clause of the Constitution is, thus, not infringed.[22]

However, it must be remembered that the Court, in Fariñas, was intently focused on the main issue of whether the repealing clause in the Fair Election Act was a constitutionally proscribed rider, in that it unwittingly failed to ascertain with stricter scrutiny the impact of the retention of the provision on automatic resignation of persons holding appointive positions (Section 66) in the OEC, vis-à-vis the equal protection clause. Moreover, the Court's vision in Fariñas was shrouded by the fact that petitioners therein, Fariñas et al., never posed a direct challenge to the constitutionality of Section 66 of the OEC. Fariñas et al. rather merely questioned, on constitutional grounds, the repealing clause, or Section 14 of the Fair Election Act. The Court's afore-quoted declaration in Fariñas may then very well be considered as an obiter dictum.

III.

The instant case presents a rare opportunity for the Court, in view of the constitutional challenge advanced by petitioners, once and for all, to settle the issue of whether the second proviso in the third paragraph of Section 13 of R.A. No. 9369, a reproduction of Section 66 of the OEC, which, as shown above, was based on provisions dating back to the American occupation, is violative of the equal protection clause.

But before delving into the constitutional issue, we shall first address the issues on legal standing and on the existence of an actual controversy.

Central to the determination of locus standi is the question of whether a party has alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.[23] In this case, petitioners allege that they will be directly affected by COMELEC Resolution No. 8678 for they intend, and they all have the qualifications, to run in the 2010 elections. The OSG, for its part, contends that since petitioners have not yet filed their CoCs, they are not yet candidates; hence, they are not yet directly affected by the assailed provision in the COMELEC resolution.

The Court, nevertheless, finds that, while petitioners are not yet candidates, they have the standing to raise the constitutional challenge, simply because they are qualified voters. A restriction on candidacy, such as the challenged measure herein, affects the rights of voters to choose their public officials. The rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters.[24] The Court believes that both candidates and voters may challenge, on grounds of equal protection, the assailed measure because of its impact on voting rights.[25]

In any event, in recent cases, this Court has relaxed the stringent direct injury test and has observed a liberal policy allowing ordinary citizens, members of Congress, and civil organizations to prosecute actions involving the constitutionality or validity of laws, regulations and rulings.[26]

We have also stressed in our prior decisions that the exercise by this Court of judicial power is limited to the determination and resolution of actual cases and controversies.[27] The Court, in this case, finds that an actual case or controversy exists between the petitioners and the COMELEC, the body charged with the enforcement and administration of all election laws. Petitioners have alleged in a precise manner that they would engage in the very acts that would trigger the enforcement of the provision--they would file their CoCs and run in the 2010 elections. Given that the assailed provision provides for ipso facto resignation upon the filing of the CoC, it cannot be said that it presents only a speculative or hypothetical obstacle to petitioners' candidacy.[28]

IV.

Having hurdled what the OSG posed as obstacles to judicial review, the Court now delves into the constitutional challenge.

It is noteworthy to point out that the right to run for public office touches on two fundamental freedoms, those of expression and of association. This premise is best explained in Mancuso v. Taft,[29] viz.:

Freedom of expression guarantees to the individual the opportunity to write a letter to the local newspaper, speak out in a public park, distribute handbills advocating radical reform, or picket an official building to seek redress of grievances. All of these activities are protected by the First Amendment if done in a manner consistent with a narrowly defined concept of public order and safety. The choice of means will likely depend on the amount of time and energy the individual wishes to expend and on his perception as to the most effective method of projecting his message to the public. But interest and commitment are evolving phenomena. What is an effective means for protest at one point in time may not seem so effective at a later date. The dilettante who participates in a picket line may decide to devote additional time and resources to his expressive activity. As his commitment increases, the means of effective expression changes, but the expressive quality remains constant. He may decide to lead the picket line, or to publish the newspaper. At one point in time he may decide that the most effective way to give expression to his views and to get the attention of an appropriate audience is to become a candidate for public office-means generally considered among the most appropriate for those desiring to effect change in our governmental systems. He may seek to become a candidate by filing in a general election as an independent or by seeking the nomination of a political party. And in the latter instance, the individual's expressive activity has two dimensions: besides urging that his views be the views of the elected public official, he is also attempting to become a spokesman for a political party whose substantive program extends beyond the particular office in question. But Cranston has said that a certain type of its citizenry, the public employee, may not become a candidate and may not engage in any campaign activity that promotes himself as a candidate for public office. Thus the city has stifled what may be the most important expression an individual can summon, namely that which he would be willing to effectuate, by means of concrete public action, were he to be selected by the voters.

It is impossible to ignore the additional fact that the right to run for office also affects the freedom to associate. In Williams v. Rhodes, supra, the Court used strict review to invalidate an Ohio election system that made it virtually impossible for third parties to secure a place on the ballot. The Court found that the First Amendment protected the freedom to associate by forming and promoting a political party and that that freedom was infringed when the state effectively denied a party access to its electoral machinery. The Cranston charter provision before us also affects associational rights, albeit in a slightly different way. An individual may decide to join or participate in an organization or political party that shares his beliefs. He may even form a new group to forward his ideas. And at some juncture his supporters and fellow party members may decide that he is the ideal person to carry the group's standard into the electoral fray. To thus restrict the options available to political organization as the Cranston charter provision has done is to limit the effectiveness of association; and the freedom to associate is intimately related with the concept of making expression effective. Party access to the ballot becomes less meaningful if some of those selected by party machinery to carry the party's programs to the people are precluded from doing so because those nominees are civil servants.

Whether the right to run for office is looked at from the point of view of individual expression or associational effectiveness, wide opportunities exist for the individual who seeks public office. The fact of candidacy alone may open previously closed doors of the media. The candidate may be invited to discuss his views on radio talk shows; he may be able to secure equal time on television to elaborate his campaign program; the newspapers may cover his candidacy; he may be invited to debate before various groups that had theretofore never heard of him or his views. In short, the fact of candidacy opens up a variety of communicative possibilities that are not available to even the most diligent of picketers or the most loyal of party followers. A view today, that running for public office is not an interest protected by the First Amendment, seems to us an outlook stemming from an earlier era when public office was the preserve of the professional and the wealthy. Consequently we hold that candidacy is both a protected First Amendment right and a fundamental interest. Hence any legislative classification that significantly burdens that interest must be subjected to strict equal protection review.[30]

Here, petitioners' interest in running for public office, an interest protected by Sections 4 and 8 of Article III of the Constitution, is breached by the proviso in Section 13 of R.A. No. 9369. It is now the opportune time for the Court to strike down the said proviso for being violative of the equal protection clause and for being overbroad.

In considering persons holding appointive positions as ipso facto resigned from their posts upon the filing of their CoCs, but not considering as resigned all other civil servants, specifically the elective ones, the law unduly discriminates against the first class. The fact alone that there is substantial distinction between those who hold appointive positions and those occupying elective posts, does not justify such differential treatment.

In order that there can be valid classification so that a discriminatory governmental act may pass the constitutional norm of equal protection, it is necessary that the four (4) requisites of valid classification be complied with, namely:
(1) It must be based upon substantial distinctions;
(2) It must be germane to the purposes of the law;
(3) It must not be limited to existing conditions only; and
(4) It must apply equally to all members of the class.
The first requirement means that there must be real and substantial differences between the classes treated differently. As illustrated in the fairly recent Mirasol v. Department of Public Works and Highways,[31] a real and substantial distinction exists between a motorcycle and other motor vehicles sufficient to justify its classification among those prohibited from plying the toll ways. Not all motorized vehicles are created equal--a two-wheeled vehicle is less stable and more easily overturned than a four-wheel vehicle.

Nevertheless, the classification would still be invalid if it does not comply with the second requirement--if it is not germane to the purpose of the law. Justice Isagani A. Cruz (Ret.), in his treatise on constitutional law, explains,

The classification, even if based on substantial distinctions, will still be invalid if it is not germane to the purpose of the law. To illustrate, the accepted difference in physical stamina between men and women will justify the prohibition of the latter from employment as miners or stevedores or in other heavy and strenuous work. On the basis of this same classification, however, the law cannot provide for a lower passing average for women in the bar examinations because physical strength is not the test for admission to the legal profession. Imported cars may be taxed at a higher rate than locally assembled automobiles for the protection of the national economy, but their difference in origin is no justification for treating them differently when it comes to punishing violations of traffic regulations. The source of the vehicle has no relation to the observance of these rules.[32]

The third requirement means that the classification must be enforced not only for the present but as long as the problem sought to be corrected continues to exist. And, under the last requirement, the classification would be regarded as invalid if all the members of the class are not treated similarly, both as to rights conferred and obligations imposed.[33]

Applying the four requisites to the instant case, the Court finds that the differential treatment of persons holding appointive offices as opposed to those holding elective ones is not germane to the purposes of the law.

The obvious reason for the challenged provision is to prevent the use of a governmental position to promote one's candidacy, or even to wield a dangerous or coercive influence on the electorate. The measure is further aimed at promoting the efficiency, integrity, and discipline of the public service by eliminating the danger that the discharge of official duty would be motivated by political considerations rather than the welfare of the public.[34] The restriction is also justified by the proposition that the entry of civil servants to the electoral arena, while still in office, could result in neglect or inefficiency in the performance of duty because they would be attending to their campaign rather than to their office work.

If we accept these as the underlying objectives of the law, then the assailed provision cannot be constitutionally rescued on the ground of valid classification. Glaringly absent is the requisite that the classification must be germane to the purposes of the law. Indeed, whether one holds an appointive office or an elective one, the evils sought to be prevented by the measure remain. For example, the Executive Secretary, or any Member of the Cabinet for that matter, could wield the same influence as the Vice-President who at the same time is appointed to a Cabinet post (in the recent past, elected Vice-Presidents were appointed to take charge of national housing, social welfare development, interior and local government, and foreign affairs). With the fact that they both head executive offices, there is no valid justification to treat them differently when both file their CoCs for the elections. Under the present state of our law, the Vice-President, in the example, running this time, let us say, for President, retains his position during the entire election period and can still use the resources of his office to support his campaign.

As to the danger of neglect, inefficiency or partisanship in the discharge of the functions of his appointive office, the inverse could be just as true and compelling. The public officer who files his certificate of candidacy would be driven by a greater impetus for excellent performance to show his fitness for the position aspired for.

Mancuso v. Taft,[35] cited above, explains that the measure on automatic resignation, which restricts the rights of civil servants to run for office--a right inextricably linked to their freedom of expression and association, is not reasonably necessary to the satisfaction of the state interest. Thus, in striking down a similar measure in the United States, Mancuso succinctly declares--

In proceeding to the second stage of active equal protection review, however, we do see some contemporary relevance of the Mitchell decision. National Ass'n of Letter Carriers, supra. In order for the Cranston charter provision to withstand strict scrutiny, the city must show that the exclusion of all government employees from candidacy is necessary to achieve a compelling state interest. And, as stated in Mitchell and other cases dealing with similar statutes, see Wisconsin State Employees, supra; Broadrick, supra, government at all levels has a substantial interest in protecting the integrity of its civil service. It is obviously conceivable that the impartial character of the civil service would be seriously jeopardized if people in positions of authority used their discretion to forward their electoral ambitions rather than the public welfare. Similarly if a public employee pressured other fellow employees to engage in corrupt practices in return for promises of post-election reward, or if an employee invoked the power of the office he was seeking to extract special favors from his superiors, the civil service would be done irreparable injury. Conversely, members of the public, fellow-employees, or supervisors might themselves request favors from the candidate or might improperly adjust their own official behavior towards him. Even if none of these abuses actually materialize, the possibility of their occurrence might seriously erode the public's confidence in its public employees. For the reputation of impartiality is probably as crucial as the impartiality itself; the knowledge that a clerk in the assessor's office who is running for the local zoning board has access to confidential files which could provide "pressure" points for furthering his campaign is destructive regardless of whether the clerk actually takes advantage of his opportunities. For all of these reasons we find that the state indeed has a compelling interest in maintaining the honesty and impartiality of its public work force.

We do not, however, consider the exclusionary measure taken by Cranston-a flat prohibition on office-seeking of all kinds by all kinds of public employees-as even reasonably necessary to satisfaction of this state interest. As Justice Marshall pointed out in Dunn v. Blumstein, "[s]tatutes affecting constitutional rights must be drawn with `precision.'" For three sets of reasons we conclude that the Cranston charter provision pursues its objective in a far too heavy-handed manner and hence must fall under the equal protection clause. First, we think the nature of the regulation-a broad prophylactic rule-may be unnecessary to fulfillment of the city's objective. Second, even granting some sort of prophylactic rule may be required, the provision here prohibits candidacies for all types of public office, including many which would pose none of the problems at which the law is aimed. Third, the provision excludes the candidacies of all types of public employees, without any attempt to limit exclusion to those employees whose positions make them vulnerable to corruption and conflicts of interest.

There is thus no valid justification to treat appointive officials differently from the elective ones. The classification simply fails to meet the test that it should be germane to the purposes of the law. The measure encapsulated in the second proviso of the third paragraph of Section 13 of R.A. No. 9369 and in Section 66 of the OEC violates the equal protection clause.

V.

The challenged provision also suffers from the infirmity of being overbroad.

First, the provision pertains to all civil servants holding appointive posts without distinction as to whether they occupy high positions in government or not. Certainly, a utility worker in the government will also be considered as ipso facto resigned once he files his CoC for the 2010 elections. This scenario is absurd for, indeed, it is unimaginable how he can use his position in the government to wield influence in the political world.

While it may be admitted that most appointive officials who seek public elective office are those who occupy relatively high positions in government, laws cannot be legislated for them alone, or with them alone in mind. For the right to seek public elective office is universal, open and unrestrained, subject only to the qualification standards prescribed in the Constitution and in the laws. These qualifications are, as we all know, general and basic so as to allow the widest participation of the citizenry and to give free rein for the pursuit of one's highest aspirations to public office. Such is the essence of democracy.

Second, the provision is directed to the activity of seeking any and all public offices, whether they be partisan or nonpartisan in character, whether they be in the national, municipal or barangay level. Congress has not shown a compelling state interest to restrict the fundamental right involved on such a sweeping scale.[36]

Specific evils require specific treatments, not through overly broad measures that unduly restrict guaranteed freedoms of the citizenry. After all, sovereignty resides in the people, and all governmental power emanates from them.

Mancuso v. Taft,[37] on this point, instructs--

As to approaches less restrictive than a prophylactic rule, there exists the device of the leave of absence. Some system of leaves of absence would permit the public employee to take time off to pursue his candidacy while assuring him his old job should his candidacy be unsuccessful. Moreover, a leave of absence policy would eliminate many of the opportunities for engaging in the questionable practices that the statute is designed to prevent. While campaigning, the candidate would feel no conflict between his desire for election and his publicly entrusted discretion, nor any conflict between his efforts to persuade the public and his access to confidential documents. But instead of adopting a reasonable leave of absence policy, Cranston has chosen a provision that makes the public employee cast off the security of hard-won public employment should he desire to compete for elected office.

The city might also promote its interest in the integrity of the civil service by enforcing, through dismissal, discipline, or criminal prosecution, rules or statutes that treat conflict of interests, bribery, or other forms of official corruption. By thus attacking the problem directly, instead of using a broad prophylactic rule, the city could pursue its objective without unduly burdening the First Amendment rights of its employees and the voting rights of its citizens. Last term in Dunn v. Blumstein, the Supreme Court faced an analogous question when the State of Tennessee asserted that the interest of "ballot box purity" justified its imposition of one year and three month residency requirements before a citizen could vote. Justice Marshall stated, inter alia, that Tennessee had available a number of criminal statutes that could be used to punish voter fraud without unnecessary infringement on the newcomer's right to vote. Similarly, it appears from the record in this case that the Cranston charter contains some provisions that might be used against opportunistic public employees.

Even if some sort of prophylactic rule is necessary, we cannot say that Cranston has put much effort into tailoring a narrow provision that attempts to match the prohibition with the problem. The charter forbids a Cranston public employee from running for any office, anywhere. The prohibition is not limited to the local offices of Cranston, but rather extends to statewide offices and even to national offices. It is difficult for us to see that a public employee running for the United States Congress poses quite the same threat to the civil service as would the same employee if he were running for a local office where the contacts and information provided by his job related directly to the position he was seeking, and hence where the potential for various abuses was greater. Nor does the Cranston charter except the public employee who works in Cranston but aspires to office in another local jurisdiction, most probably his town of residence. Here again the charter precludes candidacies which can pose only a remote threat to the civil service. Finally, the charter does not limit its prohibition to partisan office-seeking, but sterilizes also those public employees who would seek nonpartisan elective office. The statute reviewed in Mitchell was limited to partisan political activity, and since that time other courts have found the partisan-nonpartisan distinction a material one. See Kinnear, supra; Wisconsin State Employees, supra; Gray v. Toledo, supra. While the line between nonpartisan and partisan can often be blurred by systems whose true characters are disguised by the names given them by their architects, it seems clear that the concerns of a truly partisan office and the temptations it fosters are sufficiently different from those involved in an office removed from regular party politics to warrant distinctive treatment in a charter of this sort.

The third and last area of excessive and overinclusive coverage of the Cranston charter relates not to the type of office sought, but to the type of employee seeking the office. As Justice Douglas pointed out in his dissent in Mitchell, 330 U.S. at 120-126, 67 S.Ct. 556, restrictions on administrative employees who either participate in decision-making or at least have some access to information concerning policy matters are much more justifiable than restrictions on industrial employees, who, but for the fact that the government owns the plant they work in, are, for purposes of access to official information, identically situated to all other industrial workers. Thus, a worker in the Philadelphia mint could be distinguished from a secretary in an office of the Department of Agriculture; so also could a janitor in the public schools of Cranston be distinguished from an assistant comptroller of the same city. A second line of distinction that focuses on the type of employee is illustrated by the cases of Kinnear and Minielly, supra. In both of these cases a civil service deputy decided to run for the elected office of sheriff. The courts in both cases felt that the no-candidacy laws in question were much too broad and indicated that perhaps the only situation sensitive enough to justify a flat rule was one in which an inferior in a public office electorally challenged his immediate superior. Given all these considerations, we think Cranston has not given adequate attention to the problem of narrowing the terms of its charter to deal with the specific kinds of conflict-of-interest problems it seeks to avoid.

We also do not find convincing the arguments that after-hours campaigning will drain the energy of the public employee to the extent that he is incapable of performing his job effectively and that inevitable on-the-job campaigning and discussion of his candidacy will disrupt the work of others. Although it is indisputable that the city has a compelling interest in the performance of official work, the exclusion is not well-tailored to effectuate that interest. Presumably the city could fire the individual if he clearly shirks his employment responsibilities or disrupts the work of others. Also, the efficiency rationale common to both arguments is significantly underinclusive. It applies equally well to a number of non-political, extracurricular activities that are not prohibited by the Cranston charter. Finally, the connection between after-hours campaigning and the state interest seems tenuous; in many cases a public employee would be able to campaign aggressively and still continue to do his job well.[38]

Incidentally, Clements v. Fashing[39] sustained as constitutional a provision on the automatic resignation of District Clerks, County Clerks, County Judges, County Treasurers, Criminal District Attorneys, County Surveyors, Inspectors of Hides and Animals, County Commissioners, Justices of the Peace, Sheriffs, Assessors and Collectors of Taxes, District Attorneys, County Attorneys, Public Weighers, and Constables if they announce their candidacy or if they become candidates in any general, special or primary election.

In Clements, it may be readily observed that a provision treating differently particular officials, as distinguished from all others, under a classification that is germane to the purposes of the law, merits the stamp of approval from American courts. Not, however, a general and sweeping provision, and more so one violative of the second requisite for a valid classification, which is on its face unconstitutional.

On a final note, it may not be amiss to state that the Americans, from whom we copied the provision in question, had already stricken down a similar measure for being unconstitutional. It is high-time that we, too, should follow suit and, thus, uphold fundamental liberties over age-old, but barren, restrictions to such freedoms.

WHEREFORE, premises considered, the petition is GRANTED. The second proviso in the third paragraph of Section 13 of Republic Act No. 9369, Section 66 of the Omnibus Election Code and Section 4(a) of COMELEC Resolution No. 8678 are declared as UNCONSTITUTIONAL.

SO ORDERED.

Corona, Chico-Nazario, Velasco, Jr., Leonardo-De Castro, Brion, Bersamin, and Del Castillo, JJ., concur.
Puno, C.J., pls. see dissent.
Carpio, and Carpio Morales, JJ., see dissenting opinion
Peralta, Abad, and Villarama, Jr., JJ., joins the dissent of C.J. Puno.



[1] Salvacion v. Central Bank of the Philippines, G.R. No. 94723, August 21, 1997, 278 SCRA 27, 28.

[2] Emphasis supplied.

[3] Emphasis supplied.

[4] Promulgated on October 6, 2009.

[5] Petitioner Eleazar P. Quinto is the Undersecretary for Field Operations of the Department of Environment and Natural Resources (DENR). He intends to run for Representative in the 4th Congressional District of Pangasinan. Petitioner Gerino A. Tolentino, Jr. is the OIC-Director of the Land Management Bureau of the DENR. He likewise desires to run for City Councilor in the 4th District of Manila. (Rollo, pp. 8-9.)

[6] Rollo, pp. 10-13.

[7] Id. at 11.

[8] Id. at 12-13.

[9] Comment of the OSG, pp. 11-26.

[10] Id. at 27-40.

[11] The first paragraph of Sec. 1 of Rule 65 provides:

SECTION 1. Petition for certiorari.--When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. (See Patalinghug v. Commission on Elections, G.R. No. 178767, January 30, 2008, 543 SCRA 175, 184-185.)

[12] The first paragraph of Sec. 1 of Rule 63 provides:

SECTION 1. Who may file petition.--Any person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation may, before breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any question of construction or validity arising, and for a declaration of his rights or duties, thereunder. (See Almeda v. Bathala Marketing Industries, Inc., G.R. No. 150806, January 28, 2008, 542 SCRA 470, 478-479; John Hay Peoples Alternative Coalition v. Lim, G.R. No. 119775, October 24, 2003, 414 SCRA 356, 369.)

[13] Salvacion v. Central Bank of the Philippines, supra note 1, at 39.

[14] MCC Industrial Sales Corporation v. Ssangyong Corporation, G.R. No. 170633, October 17, 2007, 536 SCRA 408, 433.

[15] Emphasis supplied.

[16] Record of the Senate, Vol. III, Session No. 29, September 27, 2006, pp. 69-70.

[17] Record of the Senate, Vol. III, Session No. 12, August 16, 2006, pp. 71-72.

[18] Senate Records and Archives, 13th CP, 3rd Regular Session, Vol. III, August 1, 2006, p. 25.

[19] Entitled "AN ACT TO ENHANCE THE HOLDING OF FREE, ORDERLY, HONEST, PEACEFUL AND CREDIBLE ELECTIONS THROUGH FAIR ELECTION PRACTICES," approved on February 12, 2001.

[20] Sec. 14 of R.A. No. 9006 provides:

SEC. 14 Repealing Clause.--Sections 67 and 85 of the Omnibus Election Code (Batas Pambansa Blg. 881) and Sections 10 and 11 of Republic Act No. 6646 are hereby repealed. As a consequence, the first proviso in the third paragraph of Section 11 of Republic Act No. 8436 is rendered ineffective. All laws, presidential decrees, executive orders, rules and regulations, or any part thereof inconsistent with the provisions of this Act are hereby repealed or modified or amended accordingly.

[21] 463 Phil. 179, 205-208 (2003).

[22] Citations omitted.

[23] Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736, 755.

[24] Bullock v. Carter, 405 U.S. 134, 143 (1972).

[25] Mancuso v. Taft, 476 F.2d 187, 190 (1973).

[26] David v. Macapagal-Arroyo, G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489 and 171424, May 3, 2006, 489 SCRA 160, 218.

[27] Dumlao v. COMELEC, G.R. No. L-52245, January 22, 1980, 95 SCRA 392, 401. This case explains the standards that have to be followed in the exercise of the power of judicial review, namely: (1) the existence of an appropriate case; (2) an interest personal and substantial by the party raising the constitutional question; (3) the plea that the function be exercised at the earliest opportunity; and (4) the necessity that the constitutional question be passed upon in order to decide the case.

[28] Clements v. Fashing, 457 U.S. 957, 960; 102 S.Ct. 2836, 2843 (1982).

[29] Supra note 25, at 195-196.

[30] Citations omitted.

[31] G.R. No. 158793, June 8, 2006, 490 SCRA 318, 351-352.

[32] Cruz, Constitutional Law (1998 ed.), p. 131.

[33] Id. at 131-132.

[34] Fort v. Civil Service Commission of the County of Alameda, 61 Cal.2d 331, 336; 392 P.2d 385, 388; 38 Cal.Rptr. 625, 628 (1964).

[35] Supra note 25, at 198-199.

[36] Kinnear v. City and County of San Francisco, 61 Cal.2d 341, 343; 392 P.2d 391, 392; 38 Cal.Rptr. 631, 632 (1964).

[37] Supra note 25, at 199-201.

[38] Citations omitted.

[39] Supra note 28.





DISSENTING OPINION

PUNO, C.J.:

The case at bar is a Petition for Certiorari and Prohibition with Prayer for Temporary Restraining Order and/or Writ of Preliminary Injunction seeking to nullify Section 4(a) of Resolution No. 8678 of the Commission on Elections (COMELEC) insofar as it decrees that "[a]ny person holding a public appointive office or position ... shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy."

I.

On October 6, 2009, the COMELEC issued Resolution No. 8678[1] (Resolution 8678) which lays down the rules and guidelines on the filing of certificates of candidacy and nomination of official candidates of registered political parties in connection with the May 10, 2010 National and Local Elections.

Resolution 8678 provides, among others, the effects of filing certificates of candidacy, viz.:

SECTION 4. Effects of Filing Certificates of Candidacy.- a) Any person holding a public appointive office or position including active members of the Armed Forces of the Philippines, and other officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.

b) Any person holding an elective office or position shall not be considered resigned upon the filing of his certificate of candidacy for the same or any other elective office or position.[2]

Under Section 4(a) of said Resolution, incumbent public appointive officials (including active members of the Armed Forces of the Philippines) and other officers and employees in government-owned or controlled corporations are deemed ipso facto resigned from their respective offices upon the filing of their respective certificates of candidacy. In contrast, Section 4(b) of the same Resolution provides that incumbent elected officials shall not be considered resigned upon the filing of their respective certificates of candidacy for the same or any other elective office or position.

On October 19, 2009, petitioners Eleazar P. Quinto and Gerino A. Tolentino - both incumbent public appointive officials aspiring for elective office in the forthcoming 2010 elections[3] - filed the present Petition for Certiorari and Prohibition with Prayer for Temporary Restraining Order and/or Writ of Preliminary Injunction, seeking the nullification of Section 4(a) of Resolution 8678, and a declaration by this Court that any person holding a public appointive office or position including active members of the Armed Forces of the Philippines, and other officers and employees in government-owned-and-controlled corporations, shall be considered as ipso facto resigned only upon the start of the campaign period for which they filed their certificates of candidacy.

II.

Petitioners contend that the COMELEC acted with grave abuse of discretion when it decreed in the assailed Section 4(a) of Resolution 8678 that an appointive government official shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.[4]

Section 4(a) contravenes
existing laws and
jurisprudence on the matter.


Petitioners point out that under existing law and jurisprudence, a government official who files his certificate of candidacy (within the advanced period fixed by COMELEC) is considered a candidate only from the onset of the campaign period for which his certificate of candidacy was filed, and not upon the mere filing thereof.[5]

Section 11 of Republic Act No. 8436[6] ("RA 8436"), as amended by Republic Act No. 9369[7] ("RA 9369"), expressly provides:

SEC. 15. Official Ballot. - The Commission shall prescribe the format of the electronic display and/or the size and form of the official ballot, which shall contain the titles of the position to be and/or the proposition to be voted upon in an initiative, referendum or plebiscite x x x

x x x x

For this purpose, the Commission shall set the deadline for the filing of the certificate of candidacy/petition of registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon that start of the campaign period: Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers and employees in government-owned or-controlled corporations, shall be considered
ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certification of candidacy.

x x x x (italics supplied)

Petitioners note that in Lanot vs. COMELEC,[8] we clarified that, consistent with the legislative intent, the advance filing of the certificate of candidacy mandated by RA 8436, as amended by RA 9369, is required only to provide ample time for the printing of official ballots; it does not make the person filing a certificate of candidacy a candidate, except only for ballot-printing purposes.[9]

In this regard, petitioners contend that since, by law, a government official who files his certificate of candidacy is considered a candidate only upon the onset of the campaign period for which the certificate was filed, correspondingly, the attendant consequences of candidacy - including that of being deemed to have ipso facto resigned from one's office, when and if applicable - should take effect only upon the onset of the relevant campaign period.[10] Thus, appointive officials should be considered ipso facto resigned only upon the start of the campaign period for which their respective certificates of candidacy were filed.[11]

Petitioners insist that this interpretation is the better approach since it reconciles and harmonizes the perceived conflict between that portion of Section 13 of RA 9369 which states that "[a]ny person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy" and the subsequent proviso in the same section which states that "any person holding a public appointive office or position x x x shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her candidacy," in a manner that is consistent with the apparent intent of the legislature to treat an appointive government official who files his certificate of candidacy as a candidate only at the start of the campaign period.[12]

Section 4(a) violates the equal
protection clause of the
Constitution.


Petitioners also point out that while Section 4(a) of RA 9369 considers incumbent appointive government officials who file their respective certificates of candidacy as "ipso facto resigned" from their offices upon the filing of their certificates of candidacy, a different rule is imposed in the case of incumbent elected officials who, under Section 4(b) of the same law, are not deemed resigned upon the filing of their respective certificates of candidacy for the same or any other elective office or position.[13]

Petitioners contend that such differential treatment constitutes discrimination that is violative of the equal protection clause of the Constitution.[14]

III.

At the outset, it must be noted that the constitutional challenge was raised only with respect to Section 4(a) of Resolution 8678, and solely on equal protection terms. Nevertheless, in resolving the present petition, the ponencia extends its analysis to two other provisions of law - (a) Section 13 of RA 9369, particularly the proviso thereof which states that "any person holding a public appointive office or position, including active members of the armed forces, and officers and employees in government-owned or-controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certification of candidacy," and (b) Section 66 of the Omnibus Election Code. It then proceeds to strike down said provisions not only on equal protection grounds, but on overbreadth terms as well.

However, it must be noted that constitutional judgments are justified only out of the necessity of adjudicating rights in particular cases between the litigants before the Court.[15] This principle reflects the conviction that under our constitutional system, courts are not roving commissions assigned to pass judgment on the validity of the nation's laws[16] on matters which have not been squarely put in issue.

In striking down these provisions of law, the ponencia ruled that:

(1) These provisions violate the equal protection clause inasmuch as the differential treatment therein of persons holding appointive offices as opposed to those holding elective positions is not germane to the purposes of the law; and

(2) These provisions are unconstitutionally overbroad insofar as they seek to limit the candidacy of all civil servants holding appointive posts without distinction as to whether or not they occupy high/influential positions in the government, and insofar as they seek to limit the activity of seeking any and all public offices, whether they be partisan or nonpartisan in character, or whether they be in the national, municipal or barangay level. According to the ponencia, Congress has not shown a compelling state interest to restrict the fundamental right involved on such a sweeping scale.
For reasons explained below, I am constrained to dissent.

IV.

Before proceeding to discuss the petition in light of the manner in which the majority disposed of the case, it is necessary to first examine the legislative and jurisprudential history of the long-standing rule on deemed resignations, as embodied in the assailed Section 4(a) of Resolution 8678, in order to gain a proper understanding of the matter at hand.

PRE-BATAS PAMBANSA BLG. 881:

The law on deemed resignations of public officials who participate as candidates in electoral exercises, finds its genesis in Act No. 1582, or the 1907 Election Law, the relevant portion of which reads:

Sec. 29. Penalties upon officers. - x x x x

No public officer shall offer himself as a candidate, nor shall he be eligible during the time that he holds said public office to election, at any municipal, provincial or Assembly election, except for reelection to the position which he may be holding, and no judge of the Court of First Instance, justice of peace, provincial fiscal, or officer or employee of the Bureau of Constabulary or of the Bureau of Education shall aid any candidate or influence in any manner or take part in any municipal, provincial or Assembly election under penalty of being deprived of his office and being disqualified to hold any public office whatever for a term of five years: Provided, however, That the foregoing provision shall not be construed to deprive any person otherwise qualified of the right to vote at any election.

Subsequently, the original rule on deemed resignations was bifurcated into two separate provisions of law - one for appointive officials, and another for elected officials - although the essence of the original rule was preserved for both groups.

For appointive officials, Section 22 of Commonwealth Act No. 357 provided that:

Every person holding a public appointive office or position shall ipso facto cease in his office or position on the date he files his certificate of candidacy.

As for elected officials, the last paragraph of Section 2 of Commonwealth Act No. 666 stated:

Any elective provincial, municipal, or city official running for an office, other than the one for which he has been lastly elected, shall be considered resigned from his office from the moment of the filing of his certificate of candidacy.

These rules were substantially reiterated in Republic Act No. 180,[17] or the Revised Election Code of 1947, which provides in relevant part:

SECTION 26. Automatic cessation of appointive officers and employees who are candidates. -- Every person holding a public appointive office or position shall ipso facto cease in his office or position on the date he files his certificate of candidacy.

SECTION 27. Candidate holding office. -- Any elective provincial, municipal, or city official running for an office, other than the one which he is actually holding, shall be considered resigned from his office from the moment of the filing of his certificate of candidacy.

However, as may be noticed, Section 27 of the Revised Election Code of 1947 introduced an amendment to the rule in respect of elected officials. While Section 2 of Commonwealth Act No. 666 used the phrase "...office, other than the one for which he has been lastly elected," Section 27 spoke of "an office, other than the one which he is actually holding." To be sure, this change was not without purpose. As we explained in Salaysay v. Castro, et al.:[18]

Before the enactment of section 27 of the Revised Election Code, the law in force covering the point or question in controversy was section 2, Commonwealth Act No. 666. Its burden was to allow an elective provincial, municipal, or city official such as Mayor, running for the same office to continue in office until the expiration of his term. The legislative intention as we see it was to favor re-election of the incumbent by allowing him to continue in his office and use the prerogatives and influence thereof in his campaign for re-election and to avoid a break in or interruption of his incumbency during his current term and provide for continuity thereof with the next term of office if re-elected.

But section 2, Commonwealth Act No. 666 had reference only to provincial and municipal officials duly elected to their offices and who were occupying the same by reason of said election at the time that they filed their certificates of candidacy for the same position. It did not include officials who hold or occupy elective provincial and municipal offices not by election but by appointment. x x x

x x x x

However, this was exactly the situation facing the Legislature in the year 1947 after the late President Roxas had assumed office as President and before the elections coming up that year. The last national elections for provincial and municipal officials were held in 1940, those elected therein to serve up to December, 1943. Because of the war and the occupation by the Japanese, no elections for provincial and municipal officials could be held in 1943. Those elected in 1940 could not hold-over beyond 1943 after the expiration of their term of office because according to the views of the Executive department as later confirmed by this Court in the case of Topacio Nueno vs. Angeles, 76 Phil., 12, through Commonwealth Act No. 357, Congress had intended to suppress the doctrine or rule of hold-over. So, those provincial and municipal officials elected in 1940 ceased in 1943 and their offices became vacant, and this was the situation when after liberation, President Osmeña took over as Chief Executive. He filled these vacant positions by appointment. When President Roxas was elected in 1946 and assumed office in 1947 he replaced many of these Osmeña appointees with his own men. Naturally, his Liberal Party followers wanted to extend to these appointees the same privilege of office retention thereto given by section 2, Commonwealth Act No. 666 to local elective officials. It could not be done because section 2, Commonwealth Act No. 666 had reference only to officials who had been elected. So, it was decided by President Roxas and his party to amend said section 2, Commonwealth Act No. 666 by substituting the phrase "which he is actually holding", for the phrase "for which he has been lastly elected" found in section 2 of Commonwealth Act No. 666.

x x x x

The purpose of the Legislature in making the amendment, in our opinion, was to give the benefit or privilege of retaining office not only to those who have been elected thereto but also to those who have been appointed; stated differently, to extend the privilege and benefit to the regular incumbents having the right and title to the office either by election or by appointment. There can be no doubt, in our opinion, about this intention. We have carefully examined the proceedings in both Houses of the Legislature. The minority Nacionalista members of Congress bitterly attacked this amendment, realizing that it was partisan legislation intended to favor those officials appointed by President Roxas; but despite their opposition the amendment was passed.

x x x x

We repeat that the purpose of the Legislature in enacting section 27 of the Revised Election Code was to allow an official to continue occupying an elective provincial, municipal or city office to which he had been appointed or elected, while campaigning for his election as long as he runs for the same office. He may keep said office continuously without any break, through the elections and up to the expiration of the term of the office. By continuing in office, the office holder was allowed and expected to use the prerogatives, authority and influence of his office in his campaign for his election or re-election to the office he was holding. Another intention of the Legislature as we have hitherto adverted to was to provide for continuity of his incumbency so that there would be no interruption or break, which would happen if he were required to resign because of his filing his certificate of candidacy.[19] (italics supplied)

In that case, the Court was faced with the issue of whether a Vice Mayor, merely acting as Mayor because of the temporary disability of the regular incumbent, comes under the provision and exception of Section 27 of the Revised Election Code of 1947. Ruling that a Vice Mayor acting as Mayor does not "actually hold the office" of Mayor within the meaning of Section 27, we denied the Petition for Prohibition with Preliminary Injunction in this wise:

x x x A Vice Mayor acts as Mayor only in a temporary, provisional capacity. This tenure is indefinite, uncertain and precarious. He may act for a few days, for a week or a month or even longer. But surely there, ordinarily, is no assurance or expectation that he could continue acting as Mayor, long, indefinitely, through the elections and up to the end of the term of the office because the temporary disability of the regular, incumbent Mayor may end any time and he may resume his duties.

VICE-MAYOR ACTING AS MAYOR, OUTSIDE
LEGAL CONTEMPLATION

The case of a Vice-Mayor acting as Mayor could not have been within the contemplation and the intent of the Legislature because as we have already stated, that lawmaking body or at least the majority thereof intended to give the benefits and the privilege of section 27 to those officials holding their offices by their own right and by a valid title either by election or by appointment, permanently continuously and up to the end of the term of the office, not to an official neither elected nor appointed to that office but merely acting provisionally in said office because of the temporary disability of the regular incumbent. In drafting and enacting section 27, how could the Legislature have possibly had in mind a Vice-Mayor acting as Mayor, and include him in its scope, and accord him the benefits of retaining the office of Mayor and utilizing its authority and influence in his election campaign, when his tenure in the office of Mayor is so uncertain, indefinite and precarious that there may be no opportunity or occasion for him to enjoy said benefits, and how could Congress have contemplated his continuing in the office in which he is acting, when the very idea of continuity is necessarily in conflict and incompatible with the uncertainty, precariousness and temporary character of his tenure in the office of Mayor?

x x x x

MEANING OF PHRASE "RESIGNED FROM HIS OFFICE"

Section 27 of Republic Act No. 180 in providing that a local elective official running for an office other than the one he is actually holding, is considered resigned from his office, must necessarily refer to an office which said official can resign, or from which he could be considered resigned, even against his will. For instance, an incumbent Mayor running for the office of Provincial Governor must be considered as having resigned from his office of Mayor. He must resign voluntarily or be compelled to resign. It has to be an office which is subject to resignation by the one occupying it. Can we say this of a Vice-Mayor acting as Mayor? Can he or could he resign from the office of Mayor or could he be made to resign therefrom No. As long as he holds the office of Vice-Mayor to which he has a right and legal title, he, cannot resign or be made to resign from the office of Mayor because the law itself requires that as Vice- Mayor he must act as Mayor during the temporary disability of the regular or incumbent Mayor. If he cannot voluntarily resign the office of Mayor in which he is acting temporarily, or could not be made to resign therefrom, then the provision of section 27 of the Code about resignation, to him, would be useless, futile and a dead letter. In interpreting a law, we should always avoid a construction that would have this result, for it would violate the fundamental rule that every legislative act should be interpreted in order to give force and effect to every provision thereof because the Legislature is not presumed to have done a useless act.

x x x x

ANOTHER EXAMPLE

The regular incumbent Mayor files his certificate of candidacy for the same office of Mayor. Then he goes on leave of absence or falls sick and the Vice-Mayor acts in his place, and while thus acting he also files his certificate of candidacy for the same office of Mayor. Then the Vice-Mayor also goes on leave or falls sick or is suspended, and because the regular Mayor is still unable to return to office, under section 2195 of the Revised Administrative Code, the councilor who at the last general elections received the highest number of votes, acts as Mayor and while thus acting he also files his certificate of candidacy for the office of Mayor. The Vice-Mayor also campaigns for the same post of Mayor claiming like the herein petitioner that he did not lose his office of Vice-Mayor because he filed his certificate of candidacy while acting as Mayor and thus was actually holding the office of Mayor. Using the same argument, the councilor who had previously acted as Mayor also campaigns for his election to the same post of Mayor while keeping his position as councilor. Thus we would have this singular situation of three municipal officials occupying three separate and distinct offices, running for the same office of Mayor, yet keeping their different respective offices, and strangely enough two of those offices (Vice- Mayor and Councilor) are different from the office of Mayor they are running for. Could that situation have been contemplated by the Legislature in enacting section 27 of the Revised Election Code? We do not think so, and yet that would happen if the contention of the petitioner about the meaning of "actually holding office" is to prevail.

x x x x

TWO OFFICIALS "ACTUALLY HOLDING" THE SAME
ELECTIVE OFFICE

We have already said that a Mayor under temporary disability continues to be Mayor (Gamalinda vs. Yap * No. L-6121, May 30, 1953) and actually holds the office despite his temporary disability to discharge the duties of the office; he receives full salary corresponding to his office, which payment may not be legal if he were not actually holding the office, while the Vice-Mayor acting as Mayor does not receive said salary but is paid only a sum equivalent to it (section 2187, Revised Administrative Code). Now, if a Mayor under temporary disability actually holds the office of Mayor and the Vice-Mayor acting as Mayor, according to his claim is also actually holding the office of Mayor, then we would have the anomalous and embarrassing situation of two officials actually holding the very same local elective office. Considered from this view point, and to avoid the anomaly, it is to us clear that the Vice-Mayor should not be regarded as holding the office of Mayor but merely acting for the regular incumbent, a duty or right as an incident to his office of Vice-Mayor and not as an independent right or absolute title to the office by reason of election or appointment.

x x x x

EXCEPTION TO BE CONSTRUED STRICTLY

Section 26 of the Revised Election Code provides that every person holding an appointive office shall ipso facto cease in his office on the date he files his certificate of candidacy. Then we have section 27 of the same Code as well as section 2 of Commonwealth Act No. 666 which it amended, both providing that local elective officials running for office shall be considered resigned from their posts, except when they run for the same office they are occupying or holding. It is evident that the general rule is that all Government officials running for office must resign. The authority or privilege to keep one's office when running for the same office is the exception. It is a settled rule of statutory construction that an exception or a proviso must be strictly construed specially when considered in an attempt to ascertain the legislative intent.

x x x x

Applying this rule, inasmuch as petitioner herein claimed the right to retain his office under the exception above referred to, said claim must have to be judged strictly, -- whether or not his mere acting in the office of Mayor may be legally interpreted as actually holding the same so as to come within the exception. As we have already observed, literally and generally speaking, since he is discharging the duties and exercising the powers of the office of Mayor he might be regarded as actually holding the office; but strictly speaking and considering the purpose and intention of the Legislature behind section 27 of the Revised Election Code, he may not and cannot legitimately be considered as actually holding the office of Mayor.

RETENTION OF OFFICE

We have, heretofore[,] discussed the case as regards the resignation of an office holder from his office by reason of his running for an office different from it; and our conclusion is that it must be an office that he can or may resign or be considered resigned from; and that the office of Mayor is not such an office from the stand point of a Vice-Mayor. Let us now consider the case from the point of view of retaining his office because he is running for the same office, namely -- retention of his office. As we have already said, the Legislature intended to allow an office holder and incumbent to retain his office provided that he runs for the same. In other words, he is supposed to retain the office before and throughout the elections and up to the expiration of the term of the office, without interruption. Can a Vice-Mayor acting as Mayor be allowed or expected to retain the office of Mayor? The incumbent Mayor running for the same office can and has a right to keep and retain said office up to the end of his term. But a Vice-Mayor merely acting as Mayor and running for said office of Mayor, may not and cannot be expected to keep the office up to the end of the term, even assuming that by acting as Mayor he is actually holding the office of Mayor, for the simple reason that his holding of the same is temporary, provisional and precarious and may end any time when the incumbent Mayor returns to duty. Naturally, his temporary holding of the office of Mayor cannot be the retention or right to keep the office intended by the Legislature in section 27 of Republic Act No. 180. So that, neither from the point of view of resignation from the office of Mayor nor the standpoint of retention of said office, may a Vice-Mayor acting as Mayor, like herein petitioner, come within the provisions and meaning of section 27 of the Election Code, particularly the exception in it.[20] (italics supplied)

In contrast, Castro v. Gatuslao[21] dealt with the issue of whether a Vice Mayor who had filed a certificate of candidacy for reelection to the same post, and who on the next day became Mayor, due to vacancy in the mayoralty, comes within the sphere of action of Section 27 of Republic Act No. 180. We ruled in the negative, as follows:

The last words of said section, "shall be considered resigned from the moment of the filing of his certificate of candidacy", indicates that the moment of such filing is the point of time to be referred to for the operation and application of the statute, and for the determination of its essential prerequisite, to wit, that the official involved shall file his candidacy for an office other than that which he is actually holding. The law nowhere mentions or refers to positions that the candidate might hold either before or after the filing of the certificate of candidacy.

What office was petitioner Castro actually holding on September 8, 1955, when he filed his certificate of candidacy? Vice-Mayor of Manapla. For what office did he run and file his certificate of candidacy? For Vice-Mayor of Manapla. Clearly, then, he was a candidate for a position that he was actually holding at the time he filed his certificate of candidacy, for "actually" necessarily refers to that particular moment; hence, he should not be considered resigned or deemed to have forfeited his post. Deprivation of office without fault of the holder is not to be lightly presumed nor extended by implication.

That the petitioner came later to hold another office by operation of law, does not alter the case. The wording of the law plainly indicates that only the date of filing of the certificate of candidacy should be taken into account. The law does not make the forfeiture dependent upon future contingencies, unforeseen and unforeseeable, since the vacating is expressly made effective as of the moment of the filing of the certificate of candidacy, and there is nothing to show that the forfeiture is to operate retroactively. The statute does not decree that an elective municipal official must be considered resigned if he runs for an office other than the one held by him at or subsequently to the filing of his certificate of candidacy; neither does it declare that he must vacate if he runs for an office other than the one actually held by him at any time before the day of the election.

Since the law did not divest the petitioner Castro of his position of Vice-Mayor, he was entitled to the mayoralty of Manapla when that post became vacant the next day; and as his assumption of that office did not make herein petitioner hold a post different from that for which he became a candidate at the time his certificate of candidacy was filed, he did not forfeit the office of Mayor; therefore the respondent could not legally appoint another mayor for Municipality of Manapla. Petitioner's case becomes the more meritorious when it is considered that he was elevated from Vice-Mayor to Mayor by operation of law and not by his own will.[22] (italics supplied)

As to the nature of the forfeiture of office, Section 27 of the Revised Election Code is clear: it is automatic and permanently effective upon the filing of the certificate of candidacy for another office.[23] Only the moment and act of filing are considered.[24] Once the certificate is filed, the seat is forfeited forever and nothing save a new election or appointment can restore the ousted official, even if the certificate itself be subsequently withdrawn.[25]

Moving forward, Republic Act No. 6388,[26] or the Election Code of 1971, imposed similar provisos on appointive and elective officials, as follows:

SECTION 23. Candidates Holding Appointive Office or Position. -- Every person holding a public appointive office or position, including active members of the Armed Forces of the Philippines and every officer or employee in government-owned or controlled corporations, shall ipso-facto cease in his office or position on the date he files his certificate of candidacy: Provided, That the filing of a certificate of candidacy shall not affect whatever civil, criminal or administrative liabilities which he may have incurred.

SECTION 24. Candidate Holding Elective Office. -- Any elective provincial, sub-provincial, city, municipal or municipal district officer running for an office other than the one which he is holding in a permanent capacity shall be considered ipso facto resigned from his office from the moment of the filing of his certificate of candidacy.

Every elected official shall take his oath of office on the day his term of office commences, or within ten days after his proclamation if said proclamation takes place after such day. His failure to take his oath of office as herein provided shall be considered forfeiture of his right to the new office to which he has been elected unless said failure is for a cause or causes beyond his control.

However, the Election Code of 1971 was subsequently repealed by Presidential Decree No. 1296,[27] or the 1978 Election Code. The latter law provided the same rule on deemed resignations of appointive officials, with the added exception that Cabinet members shall continue in their offices, subject to the pleasure of the President. Section 29 of the 1978 Election Code thus states:

SECTION 29. Candidates holding appointive office or position. -- Every person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall ipso facto cease in his office or position on the date he files his certificate of candidacy. Members of the Cabinet shall continue in the offices they presently hold notwithstanding the filing of certificate of candidacy, subject to the pleasure of the President of the Philippines.

With respect to elected officials, the 1978 Election Code initially provided a different rule. Instead of deeming them ipso facto resigned from office upon filing their certificates of candidacy, they were merely considered on forced leave of absence, viz.:

SECTION 30. Candidates holding political office. -- Governors, mayors, members of the various sanggunians, or barangay officials, shall, upon filing of a certificate of candidacy, be considered on forced leave of absence from office.

Almost two years later, however, President Marcos anticipated that applying "... Section 30 in the local elections on January 30, 1980, may give rise to chaos and confusion due to the difficulty of designating promptly and immediately the replacements of such officials to assure the continuity and stability of local governments."[28] He accordingly issued Presidential Decree No. 1659[29] and Presidential Decree No. 1659-A,[30] which reverted to the former rule on deemed resignations. Consequently, elected provincial, city, municipal, or municipal district officers who ran for offices other than the ones which they were holding, were considered ipso facto resigned from their respective offices upon the filing of their certificates of candidacy, as follows:

SEC. 1. Candidate holding elective office. -- Any person occupying an elective provincial, city, municipal, or municipal district position who runs for an office other than the one which he is holding shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy: Provided, however, That during the pendency of the election, the President of the Philippines may appoint in an acting capacity said candidate to the office for which he filed a certificate of candidacy and which has been rendered vacant by virtue of the operation of the preceding provision of this section.[31]

BATAS PAMBANSA BLG. 881:

On December 3, 1985, President Marcos approved Batas Pambansa Blg. 881, or the Omnibus Election Code.[32] The pertinent provisions provide in relevant part:

SECTION 66. Candidates holding appointive office or positions. -- Any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.

SECTION 67. Candidates holding elective office. -- Any elective official, whether national or local, running for any office other than the one which he is holding in a permanent capacity, except for President and Vice-President, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.

As may be gleaned therefrom, the Omnibus Election Code substantially retained the rules on deemed resignations for both elected and appointive officials, except that:

(1) Cabinet members were no longer considered a unique class of appointive officials who may, subject to the pleasure of the President, continue in their offices notwithstanding the filing of their certificates of candidacy;

(2) The rule covering elected officials was expanded to include those holding national offices;

(3) Nevertheless, the rule covering elected officials carved out an exception insofar as the presidency and vice presidency are concerned, such that an elected official who was running for President or Vice-President, was not considered ipso facto resigned from his office upon the filing of his certificate of candidacy.

In Dimaporo v. Mitra, et al.,[33] this Court elucidated on the changes made in respect of elected officials (i.e., (2) and (3) enumerated above) by adverting to the plenary deliberations of the Batasang Pambansa, thus:

It must be noted that only in B.P. Blg. 881 are members of the legislature included in the enumeration of elective public officials who are to be considered resigned from office from the moment of the filing of their certificates of candidacy for another office, except for President and Vice-President. The advocates of Cabinet Bill No. 2 (now Section 67, Article IX of B.P. Blg. 881) elucidated on the rationale of this inclusion, thus:[34]

MR. PALMARES: In the old Election Code, Your Honor, in the 1971 Election Code, the provision seems to be different -- I think this is in Section 24 of Article III.

Any elective provincial, sub-provincial, city, municipal or municipal district officer running for an office other than the one which he is holding in a permanent capacity shall be considered ipso facto resigned from his office from the moment of the filing of his certificate of candidacy.

May I know, Your Honor, what is the reason of the Committee in departing or changing these provisions of Section 24 of the old Election Code and just adopting it en toto? Why do we have to change it? What could possibly be the reason behind it, or the rationale behind it?

MR. PEREZ (L.): I have already stated the rationale for this, Mr. Speaker, but I don't mind repeating it. The purpose is that the people must be given the right to choose any official who belongs to, let us say, to the Batasan if he wants to run for another office. However, because of the practice in the past where members of the legislature ran for local offices, but did not assume the office, because of that spectacle the impression is that these officials were just trifling with the mandate of the people. They have already obtained a mandate to be a member of the legislature, and they want to run for mayor or for governor and yet when the people give them that mandate, they do not comply with that latter mandate, but still preferred (sic) to remain in the earlier mandate. So we believe, Mr. Speaker, that the people's latest mandate must be the one that will be given due course. . . .

Assemblyman Manuel M. Garcia, in answer to the query of Assemblyman Arturo Tolentino on the constitutionality of Cabinet Bill No. 2, said:[35]

MR. GARCIA (M.M.): Thank you, Mr. Speaker.

Mr. Speaker, on the part of the Committee, we made this proposal based on constitutional grounds. We did not propose this amendment mainly on the rationale as stated by the Gentlemen from Manila that the officials running for office other than the ones they are holding will be considered resigned not because of abuse of facilities of power or the use of office facilities but primarily because under our Constitution, we have this new chapter on accountability of public officers. Now, this was not in the 1935 Constitution. It states that (sic) Article XIII, Section 1 -- 'Public office is a public trust. Public officers and employees shall serve with the highest degree of responsibility, integrity, loyalty and efficiency and shall remain accountable to the people.'

Now, what is this significance of this new provision on accountability of public officers? This only means that all elective public officials should honor the mandate they have gotten from the people. Thus, under our Constitution, it says that: 'Members of the Batasan shall serve for the term of 6 years, in the case of local officials and 6 years in the case of barangay officials.['] Now, Mr. Speaker, we have precisely included this as part of the Omnibus Election Code because a Batasan Member who hold (sic) himself out with the people and seek (sic) their support and mandate should not be allowed to deviate or allow himself to run for any other position unless he relinquishes or abandons his office. Because his mandate to the people is to serve for 6 years. Now, if you allow a Batasan or a governor or a mayor who was mandated to serve for 6 years to file for an office other than the one he was elected to, then, that clearly shows that he has not (sic) intention to service the mandate of the people which was placed upon him and therefore he should be considered ipso facto resigned. I think more than anything that is the accountability that the Constitution requires of elective public officials. It is not because of the use or abuse of powers or facilities of his office, but it is because of the Constitution itself which I said under the 1973 Constitution called and inserted this new chapter on accountability.

Now, argument was said that the mere filing is not the intention to run. Now, what is it for? If a Batasan Member files the certificate of candidacy, that means that he does not want to serve, otherwise, why should he file for an office other than the one he was elected to? The mere fact therefore of filing a certificate should be considered the overt act of abandoning or relinquishing his mandate to the people and that he should therefore resign if he wants to seek another position which he feels he could be of better service.

As I said, Mr. Speaker, I disagree with the statements of the Gentleman from Manila because the basis of this Section 62 is the constitutional provision not only of the fact that Members of the Batasan and local officials should serve the entire 6-year term for which we were elected, but because of this new chapter on the accountability of public officers not only to the community which voted him to office, but primarily because under this commentary on accountability of public officers, the elective public officers must serve their principal, the people, not their own personal ambition. And that is the reason, Mr. Speaker, why we opted to propose Section 62 where candidates or elective public officers holding offices other than the one to which they were elected, should be considered ipso facto resigned from their office upon the filing of the certificate of candidacy.[36] (emphasis in the original)

Corollarily, Dimaporo v. Mitra, et al. involved Mohamad Ali Dimaporo, who was elected Representative for the Second Legislative District of Lanao del Sur during the 1987 congressional elections. He took his oath of office on January 9, 1987 and thereafter performed the duties and enjoyed the rights and privileges pertaining thereto. Three years later, he filed with the COMELEC a Certificate of Candidacy for the position of Regional Governor of the Autonomous Region in Muslim Mindanao. Upon being informed of this development, the Speaker and Secretary of the House of Representatives excluded Dimaporo's name from the Roll of Members of the House of Representatives pursuant to Section 67 of the Omnibus Election Code. Having lost in the 1990 elections, petitioner expressed his intention to the Speaker of the House of Representatives "to resume performing my duties and functions as elected Member of Congress," but he failed in his bid to regain his seat.

We sustained Dimaporo's forfeiture of his congressional seat. Holding that the concept of voluntary renunciation of office under Section 7, Article VI of the Constitution is broad enough to include the situation envisioned in Section 67 of the Omnibus Election Code, we ruled:

That the act, contemplated in Section 67, Article IX of 8.P. Blg. 881, of filing a certificate of candidacy for another office constitutes an overt, concrete act of voluntary renunciation of the elective office presently being held is evident from this exchange between the Members of Parliament Arturo Tolentino and Jose Roño:

"MR. ROÑO:
My reasonable ground is this: if you will make the person . . . my, shall we say, basis is that in one case the person is intending to run for an office which is different from his own, and therefore it should be considered, at least from the legal significance, an intention to relinquish his office.

MR. TOLENTINO:
Yes.

MR. ROÑO:
And in the other, because he is running for the same position, it is otherwise.

MR. TOLENTINO:
Yes, but what I cannot see is why are you going to compel a person to quit an office which he is only intending to leave? A relinquishment of office must be clear, must be definite.

MR. ROÑO:
Yes, sir. That's precisely, Mr. Speaker, what I am saying that while I do not disagree with the conclusion that the intention cannot be enough, but I am saying that the filing of the certificate of candidacy is an overt act of such intention. It's not just an intention: it's already there."

In Monroy vs. Court of Appeals, a case involving Section 27 of R.A. No. 180 above-quoted, this Court categorically pronounced that "forfeiture (is) automatic and permanently effective upon the filing of the certificate of candidacy for another office. Only the moment and act of filing are considered. Once the certificate is filed, the seat is forever forfeited and nothing save a new election or appointment can restore the ousted official. Thus, as We had occasion to remark, through Justice J.B.L. Reyes, in Castro vs. Gatuslao:

". . . 'The wording of the law plainly indicates that only the date of filing of the certificate of candidacy should be taken into account. The law does not make the forfeiture dependent upon future contingencies, unforeseen and unforeseeable, since the vacating is expressly made as of the moment of the filing of the certificate of candidacy....'"

As the mere act of filing the certificate of candidacy for another office produces automatically the permanent forfeiture of the elective position being presently held, it is not necessary, as petitioner opines, that the other position be actually held. The ground for forfeiture in Section 13, Article VI of the 1987 Constitution is different from the forfeiture decreed in Section 67, Article IX of B.P. Blg. 881, which is actually a mode of voluntary renunciation of office under Section 7, par. 2 of Article VI of the Constitution.

The legal effects of filing a certificate of candidacy for another office having been spelled out in Section 67, Article IX, B.P. Blg. 881 itself, no statutory interpretation was indulged in by respondents Speaker and Secretary of the House of Representatives in excluding petitioner's name from the Roll of Members. The Speaker is the administrative head of the House of Representatives and he exercises administrative powers and functions attached to his office. As administrative officers, both the Speaker and House Secretary-General perform ministerial functions. It was their duty to remove petitioner's name from the Roll considering the unequivocal tenor of Section 67, Article IX, B.P. Blg. 881. When the Commission on Elections communicated to the House of Representatives that petitioner had filed his certificate of candidacy for regional governor of Muslim Mindanao, respondents had no choice but to abide by the clear and unmistakable legal effect of Section 67, Article IX of B.P. Blg. 881. It was their ministerial duty to do so. These officers cannot refuse to perform their duty on the ground of an alleged invalidity of the statute imposing the duty. The reason for this is obvious. It might seriously hinder the transaction of public business if these officers were to be permitted in all cases to question the constitutionality of statutes and ordinances imposing duties upon them and which have not judicially been declared unconstitutional. Officers of the government from the highest to the lowest are creatures of the law and are bound to obey it.[37]

Aguinaldo, et al. v. Commission on Elections[38] provided the occasion to revisit that issue. In that case, petitioners sought to prevent the COMELEC from enforcing Section 67 on the ground that it was violative of the Constitution in that it effectively shortens the terms of office of elected officials. We, however, fully reiterated the applicability of the doctrine of voluntary renunciation announced in Dimaporo v. Mitra, et al.

Further to the rule on appointive officials, PNOC Energy Development Corporation, et al. v. National Labor Relations Commission, et al.[39] held that an employee in a government-owned or -controlled corporation without an original charter (and therefore not covered by Civil Service Law) still falls within the scope of Section 66 of the Omnibus Election Code. We ruled:

When the Congress of the Philippines reviewed the Omnibus Election Code of 1985, in connection with its deliberations on and subsequent enactment of related and repealing legislation -- i.e., Republic Acts Numbered 7166: "An Act Providing for Synchronized National and Local Elections and for Electoral Reforms, Authorizing Appropriations Therefor, and for Other Purposes" (effective November 26, 1991), 6646: "An Act Introducing Additional Reforms in the Electoral System and for Other Purposes" (effective January 5, 1988) and 6636: "An Act Resetting the Local Elections, etc." (effective November 6, 1987), it was no doubt aware that in light of Section 2(1), Article IX of the 1987 Constitution: (a) government-owned or controlled corporations were of two (2) categories -- those with original charters, and those organized under the general law -- and (b) employees of these corporations were of two (2) kinds -- those covered by the Civil Service Law, rules and regulations because employed in corporations having original charters, and those not subject to Civil Service Law but to the Labor Code because employed in said corporations organized under the general law, or the Corporation Code. Yet Congress made no effort to distinguish between these two classes of government-owned or controlled corporations or their employees in the Omnibus Election Code or subsequent related statutes, particularly as regards the rule that an any employee "in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy."

Be this as it may, it seems obvious to the Court that a government-owned or controlled corporation does not lose its character as such because not possessed of an original charter but organized under the general law. If a corporation's capital stock is owned by the Government, or it is operated and managed by officers charged with the mission of fulfilling the public objectives for which it has been organized, it is a government-owned or controlled corporation even if organized under the Corporation Code and not under a special statute; and employees thereof, even if not covered by the Civil Service but by the Labor Code, are nonetheless "employees in government-owned or controlled corporations," and come within the letter of Section 66 of the Omnibus Election Code, declaring them "ipso facto resigned from . . . office upon the filing of . . . (their) certificate of candidacy."

What all this imports is that Section 66 of the Omnibus Election Code applies to officers and employees in government-owned or controlled corporations, even those organized under the general laws on incorporation and therefore not having an original or legislative charter, and even if they do not fall under the Civil Service Law but under the Labor Code. In other words, Section 66 constitutes just cause for termination of employment in addition to those set forth in the Labor Code, as amended.[40] (italics supplied)

REPUBLIC ACT NO. 8436:

RA 8436 was silent on the rule in respect of appointive officials. Therefore, the governing law on the matter is still the one provided under the Omnibus Election Code. Hence, any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.

On the other hand, RA 8436 modified the rule in respect of the automatic resignation of elected officials running for any office other than the ones they were currently holding in a permanent capacity, except the presidency and the vice presidency. Whereas, under the Omnibus Election Code they were considered ipso facto resigned from office upon filing their certificates of candidacy, RA 8436 considered them resigned only upon the start of the campaign period corresponding to the positions for which they are running, viz.:

SECTION 11. Official Ballot. -- x x x

x x x x

For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/manifestation to participate in the election shall not be later than one hundred twenty (120) days before the elections: Provided, That, any elective official, whether national or local, running for any office other than the one which he/she is holding in a permanent capacity, except for president and vice-president, shall be deemed resigned only upon the start of the campaign period corresponding to the position for which he/she is running: Provided, further, That, x x x. (italics supplied)

In temporal terms, however, the distinction is more apparent than real.

RA 8436 authorized the COMELEC to use an automated election system in the 1998 election and succeeding elections. Considering that automation requires a pre-printed ballot, the legislators deemed it necessary to move the deadline for the filing of certificates of candidacy to 120 days before election day. If the reckoning point of the automatic resignation was not moved to the start of the campaign period, then elected officials running for any office other than the ones they were holding in a permanent capacity (except the presidency and the vice presidency), were going to be considered resigned as early as 120 days before the election, leaving their constituents bereft of public officials for an extended period of time.

This was the evil sought to be avoided by the legislators when they transferred the reckoning period of deemed resignations from the time the certificate of candidacy is filed (under the pre-RA 8436 regime) to the start of the campaign period (under RA 8436). After all, RA 8436 did not alter the campaign periods provided under existing election laws. Consequently, the end result is that the particular point in time (vis-à-vis election day) at which an elected official is considered resigned under RA 8436, is not significantly different from the point in time at which an elected official was considered resigned prior to RA 8436.

The deliberations of the Bicameral Conference Committee on this point are instructive:[41]

THE CHAIRMAN (REP. TANJUATCO). Further to the question of the Deputy Speaker, the comment of this representation concerning the filing of certificate of candidacy in 2001, I suggest should also be applied to 1998, in the sense that the mere filing of the certificate of candidacy at an earlier date should not result in the loss of the office by a person running for a position other than what he is holding, nor the restrictions that will apply to a candidate. Would the Senate agree to that?

THE CHAIRMAN (SEN. FERNAN). You know, that particular proviso, we eliminated.

SEN. GONZALES. Yes.

THE CHAIRMAN (SEN. FERNAN). Because some Senators felt that it will be applied to them and they would be considered resigned, ano? But it was earlier manifested that it will be worded in such a way that it will not apply to those running for [the] presidency and vice-presidency.

SEN. GONZALES. That is the present law.

THE CHAIRMAN (SEN. FERNAN). Yeah, that is the present law. So, the present law will be maintained but the concern about the inclusion of that particular provision is because they don't want a long period for them to be considered resigned. In other words, if you file your certificate of candidacy on January 11 and you are already considered resigned, there is a long gap until election day.

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

THE CHAIRMAN (SEN. FERNAN). They were hoping that it will be limited only to 45 days before election.

THE CHAIRMAN (REP. TANJUATCO). In the case of non-national candidates.

THE CHAIRMAN (SEN. FERNAN). Non-national. I mean, what would you feel?

THE CHAIRMAN (REP. TANJUATCO). Just to clarify to our Senate counterparts, there was no intention on the part of the House to withdraw the provision in existing law that the Senator running for president or vice-president will not be deemed resigned even if he files his certificate of candidacy for those offices. The only reason why the provision adverted to was included was, as the distinguished Chairman mentioned, to avoid the situation where the constituency of that official filing that certificate of candidacy will be bereft of an official that that constituency elected for a three-year period.

THE CHAIRMAN (SEN. FERNAN). So, the phraseology is, "Provided that the candidate who is aspiring for an elective office other than his incumbent position or the presidency or the vice-presidency, shall be deemed resigned forty-five (45) days before elections."

THE CHAIRMAN (REP. TANJUATCO). Or maybe using the word "under existing law".

REP. ABUEG. Mr. Chairman.

THE CHAIRMAN (REP. TANJUATCO). Our expert.

REP. ABUEG. To make it clear, while in the Senate version this was deleted, in order to remove any doubt, we can provide here the exception that, "except for the Office[s] of the President and Vice President, a candidate who is aspiring for an elected position other than his incumbent position shall be deemed resigned forty-five (45) days before the election." So, that will leave no room for doubt that the exemption existing is also carried in this proposed bill, proposed law.

THE CHAIRMAN (SEN. FERNAN). x x x Okay. So, if we agree, provided that it excludes those aspiring for the presidency and vice-presidency.

THE CHAIRMAN (REP. TANJUATCO). Yeah.

REP. DAZA. Mr. Chairman, in other words, we will keep the exception that for those running for president or vice-president, there is no resignation. x x x

x x x x

THE CHAIRMAN (REP. TANJUATCO). Let's start to categorize it first. Insofar as elections from x x x 2001 and thereafter are concerned, Comelec has agreed that [the] 120-day period would be sufficient to print the ballots. But again since we don't want to bring about a situation where an official who has been elected by his constituency for a term of three years to be removed from office way, way before the start of the campaign period, we would ask that the proviso that he will not be deemed resigned from the office, if he is deemed resigned under existing law, should be - that he will be deemed resigned only at the start of the campaign period.

x x x x

We are not altering the present rule concerning resignations as a result of filing of certificates of candidacy. As a matter of fact, we are providing this so that the existing rule [in respect of the proximity of the "deemed resignation" to the election] will not be changed.

THE ACTING CHAIRMAN (SEN. FERNAN). Okay. So, instead of saying "deemed resigned 45 days before the elections", it should be "at the start of the campaign period".

THE CHAIRMAN (REP. TANJUATCO). At the start of the campaign period.

THE ACTING CHAIRMAN (SEN. FERNAN). Deemed resigned at the start of the campaign period.

THE CHAIRMAN (REP. TANJUATCO). For which he is running.

THE ACTING CHAIRMAN (SEN. FERNAN). And then we will also exclude the presidency or vice presidency as provided by existing law?

THE CHAIRMAN (REP. TANJUATCO). That's right, Mr. Chairman.

THE ACTING CHAIRMAN (SEN. FERNAN). Okay. So, that's sufficiently - that's clarified.

x x x x

THE ACTING CHAIRMAN (SEN. FERNAN). x x x

Now, the Senate Panel will note, and we would like to invite the attention of [the] House [Panel] that we eliminated - the Senate eliminated the proviso: "That candidates who are aspiring for an elective office other than his incumbent position shall be deemed resigned forty-five (45) days before election." It was explained to us earlier by the House Panel...

THE CHAIRMAN (REP. TANJUATCO). Hindi kami nami-mersonal dito. (Laughter)

THE ACTING CHAIRMAN (SEN. FERNAN). ... that the idea there was not to hit the Senators running for the presidency. (Laughter)

THE CHAIRMAN (REP. TANJUATCO). Now, the intention of the House was to avoid the situation where candidates running for an office other than what they are holding, will be considered resigned much earlier than anticipated by their constituents who elected them for the period.

x x x x

THE CHAIRMAN (REP. TANJUATCO). The only reason why we included this was to obviate a situation where incumbents running for a position other than what they're holding and other than for president or vice president will immediately be considered, or very early during his term[,] considered resigned.

SENATOR ROCO. Hindi ano eh - because wala namang epekto iyan sa deadline.

THE CHAIRMAN (REP. TANJUATCO). Mayroon.

MR. FERNANDO. May deadline po, because under Section 67 [of the Omnibus Election Code], if you file your certificate of candidacy for the position other than what you're holding, you're already considered resigned and yet you cannot campaign. So with the recommendation of Congressman Tanjuatco, you can still serve during the period from January 11, if we set it January 11, until February 10 when the campaign period starts, or...

THE CHAIRMAN (REP. TANJUATCO). Or even beyond if you're running for local office.

MS. (sic) FERNANDO. Or beyond March 25 if you run for local. So it's beneficial, it will not adversely affect any candidate.

THE CHAIRMAN (SEN. FERNAN). So in this connection then, may I just say something, `no. Earlier this morning when Ding... when the Chairman gave this clarification, I felt that the objection has been, to a certain extent, removed so that this is the phraseology now that it was tentatively agreed: "For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/manifestation to participate in the election shall not be later than one hundred twenty (120) days before the election provided that the candidate who is aspiring for an elective office other than his incumbent position or the presidency or the vice presidency" ... Because of the existing law. "...shall be deemed resigned at the start of the campaign."

THE CHAIRMAN (REP. TANJUATCO). Only upon the start.

THE CHAIRMAN (SEN. FERNAN). Only upon the start of the campaign period.

Now, I do not know how it strikes the other members of the Senate panel.

SEN. ROCO. What is the phraseology of the present law?

THE CHAIRMAN (SEN. FERNAN). The present, as far as the Senate version... Ah, yeah, go ahead.

SEN. ROCO. Sixty-seven.

THE CHAIRMAN (REP. TANJUATCO). "Any elective official, whether national or local[,] running for any office other than the one which he is holding in a permanent capacity, except for President and Vice-President, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy."

Iyon ang umiiral ngayon. Ngayon, in our bill, since there is an early filing of certificate of candidacy, if there is no qualification, he will be considered resigned at a very early stage.

SEN. ROCO. Why don't we use those words and add provision of ano, for the local. Just retain those words para we don't invent new phraseology. Tingnan mo ang 67. Provided... Ang proviso mo will begin with the present law.

THE CHAIRMAN (SEN. (sic) TANJUATCO). Hindi. Ganito ang gawin natin.

SEN. ROCO. O, sige.

THE CHAIRMAN (REP. TANJUATCO). Same thing, `no[.]Any elective official, whether national or local[,] running for any office other than the one which he is holding in a permanent capacity, except for President and Vice-President, shall be considered ipso facto resigned from his office only upon the start of the campaign period corresponding to the position for which he is running. (italics supplied)

REPUBLIC ACT NO. 9006:

Republic Act No. 9006,[42] or the Fair Election Act, was silent on the rule in respect of appointive officials. Therefore, the governing law is still the one provided under the Omnibus Election Code, i.e., any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.

However, the Fair Election Act expressly repealed, among others, Section 67 of Batas Pambansa Blg. 881, or the Omnibus Election Code, and rendered ineffective the proviso in RA 8436 relating to the automatic resignations of elected officials, as follows:

SECTION 14. Repealing Clause. -- Sections 67 and 85 of the Omnibus Election Code (Batas Pambansa Blg. 881) and Sections 10 and 11 of Republic Act No. 6646 are hereby repealed. As a consequence, the first proviso in the third paragraph of Section 11 of Republic Act No. 8436 is rendered ineffective. All laws, presidential decrees, executive orders, rules and regulations, or any part thereof inconsistent with the provisions of this Act are hereby repealed or modified or amended accordingly. (italics supplied)

It is worthy to note that the express repeal of Section 67 of the Omnibus Election Code may be considered superfluous, as this has already been impliedly repealed (for inconsistency) by RA 8436. As previously mentioned, officials were considered ipso facto resigned from office upon filing their certificates of candidacy under the Omnibus Election Code, whereas RA 8436 considered them resigned only upon the start of the campaign period corresponding to the positions for which they are running. Section 67 may nevertheless have been expressly mentioned in the repealing clause to clarify legislative intent, because automated elections (the subject matter of RA 8436) have not yet come to pass. In any event, Republic Act No. 9006 rendered ineffective the proviso in RA 8436 relating to the automatic resignations of elected officials.

In effect, the repealing clause of the Fair Election Act allows elected officials to run for another office without forfeiting the office they currently hold. This conclusion is supported by the February 7, 2001 deliberations of the Senate, when the Conference Committee Report on the disagreeing provisions of House Bill No. 9000 and Senate Bill No. 1742 was considered, thus:[43]

The Presiding officer [Sen. Sotto]. May we know the effect as far as the other positions are concerned - elective officials are concerned?

Senator Roco. What we have done, Mr. President, is everybody who is elected can run for any other position that he may desire without forfeiting his seat.

We have reversed the old election law[, and now] an elected official is not required to forfeit his seat simply because he is running for another position. (italics supplied)

This is further confirmed by Section 26 of Comelec Resolution No. 3636,[44] which states:

SECTION 26. Effect of Filing Certificate of Candidacy by Elective Officials. -- Any elective official, whether national or local[,] who has filed a certificate of candidacy for the same or any other office shall not be considered resigned from his office.

In Fariñas, et al. v. Executive Secretary, et al.,[45] Section 14 of Republic Act No. 9006 was challenged on the ground, among others, that it was violative of the equal protection clause of the constitution. The petitioners contended that Section 14 discriminated against appointive officials. By the repeal of Section 67, an elected official who runs for office other than the one which he is holding is no longer considered ipso facto resigned therefrom upon filing his certificate of candidacy. Elected officials continue in public office even as they campaign for reelection or election for another elective position. On the other hand, Section 66 has been retained; thus, the limitation on appointive officials remains -- they are still considered ipso facto resigned from their offices upon the filing of their certificates of candidacy.

We held that there was no violation of the equal protection clause because substantial distinctions exist between the two sets of officials. Elected officials cannot, therefore, be similarly treated as appointive officials. Equal protection simply requires that all persons or things similarly situated are treated alike, both as to rights conferred and responsibilities imposed.

REPUBLIC ACT NO. 9369:

RA 9369 amended RA 8436. It provides, in relevant part:

SECTION 13. Section 11 of Republic Act No. 8436 is hereby amended to read as follows:

"SEC. 15. Official Ballot. -- x x x

For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition for registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers and employees in government-owned or -controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certificate of candidacy.

x x x x (italics supplied)

As may be noticed, RA 9369 expressly provides that appointive officials are considered ipso facto resigned from their offices and must vacate the same at the start of the day of the filing of their certificates of candidacy. However, this rule is a mere restatement of Section 66 of the Omnibus Election Code, the prevailing law in this regard.

On the other hand, RA 9369 is silent with respect to elected officials. The rule under the Fair Election Act (i.e., that elected officials may run for another position without forfeiting their seats) is therefore applicable.

From these rules, Section 4 of COMELEC Resolution 8678 was derived.

V.

After a review of the legislative and case history of the law on deemed resignations of public officials, I now turn to the case at bar.

At the core of the controversy is Section 4(a) of COMELEC Resolution No. 8678, which is reproduced below for easy reference:

Section 4. Effects of Filing Certificates of Candidacy.- a) Any person holding a public appointive office or position including active members of the Armed Forces of the Philippines, and other officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.

b) Any person holding an elective office or position shall not be considered resigned upon the filing of his certificate of candidacy for the same or any other elective office or position. (italics supplied)

Petitioners contend that Section 4(a) is null and void on the ground that: (a) it contravenes existing law and jurisprudence on the matter, and (b) it violates the equal protection clause of the Constitution.

The ponencia upholds these contentions, extends its analysis to two other provisions of law - (a) the second proviso in the third paragraph of Section 13 of RA 9369, and (b) Section 66 of the Omnibus Election Code - and proceeds to strike down said provisions not only on equal protection grounds, but on overbreadth terms as well.

Upon a considered review of the relevant laws and jurisprudence, I am constrained to strongly dissent on all points.

Section 4(a) is consistent with
existing laws and
jurisprudence on the matter.


Contrary to petitioners' assertion, Section 4(a) of COMELEC Resolution No. 8678 is a faithful reflection of the present state of the law and jurisprudence on the matter.

As the discussion on the legislative history of Section 4(a) has shown, the current state of the law on deemed resignations of public officials is as follows:

Incumbent Appointive Official - Under Section 13 of RA 9369, which reiterates what is provided in Section 66 of the Omnibus Election Code, any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or-controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.

Incumbent Elected Official - Upon the other hand, pursuant to Section 14 of RA 9006 or the Fair Election Act, which repealed Section 67 of the Omnibus Election Code and rendered ineffective Section 11 of R.A. 8436 insofar as it considered an elected official as resigned only upon the start of the campaign period corresponding to the positions for which they are running, an elected official is not deemed to have resigned from his office upon the filing of his certificate of candidacy for the same or any other elected office or position. In effect, an elected official may run for another position without forfeiting his seat.

Clearly, Section 4(a) of COMELEC Resolution No. 8678 merely reiterates the foregoing rules on deemed resignations of incumbent public officials.

Petitioners, however, hasten to point out that the same Section 13 of RA 9369 provides that any person who files his certificate of candidacy (within the advanced period fixed by COMELEC) shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy. Guided by the pronouncement of this Court in Lanot v. COMELEC[46] that the advance filing of the certificate of candidacy is required only to provide ample time for the printing of official ballots, and that such advance filing does not make the person a candidate except only for ballot-printing purposes, [47] petitioners contend that the attendant consequences of candidacy - including that of being deemed ipso facto resigned from one's office, when and if applicable - should take effect only upon the onset of the campaign period for which the certificate of candidacy was filed, since it is only at this point in time that said government official is, by law, considered to be a candidate.[48] Thus, according to petitioners, appointive officials should be considered ipso facto resigned from the office they are holding only upon the start of the campaign period.[49]

Petitioners maintain that this interpretation is the better approach, since it reconciles and harmonizes the perceived conflict between that portion of Section 13 of RA 9369, which states that "[a]ny person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy" and the subsequent proviso in the same section which provides that "any person holding a public appointive office or position x x x shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her candidacy," in a manner that is consistent with the apparent intent of the legislators to treat an appointive government official who files his certificate of candidacy as a candidate only at the start of the campaign period.[50]

However, this argument fails to consider that the second proviso was precisely carved out as an exception to the general rule, in keeping with the principle that appointive officials are prohibited from engaging in any partisan political activity and taking part in any election, except to vote.[51] Specific provisions of a particular law should be harmonized not only with the other provisions of the same law, but with the provisions of other existing laws as well.[52] Interpretare et concordare leges legibus est optimus interpretandi modus.

In Pagano v. Nazarro, Jr., et al.,[53] we ruled that the act of filing a certificate of candidacy while one is employed in the civil service constitutes a just cause for termination of employment for appointive officials. Section 66 of the Omnibus Election Code, in considering an appointive official ipso facto resigned, merely provides for the immediate implementation of the penalty for the prohibited act of engaging in partisan political activity. Held this Court:

Petitioner relies on Section 66 of the Omnibus Election Code to exculpate her from an administrative charge. The aforementioned provision reads:

Any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.

Section 66 of the Omnibus Election Code should be read in connection with Sections 46 (b) (26) and 55, Chapters 6 and 7, Subtitle A, Title I, Book V of the Administrative Code of 1987:

Section 44. Discipline: General Provisions:

xxx xxx xxx

(b) The following shall be grounds for disciplinary action:

xxx xxx xxx

(26) Engaging directly or indirectly in partisan political activities by one holding a non-political office.

xxx xxx xxx

Section 55. Political Activity. -- No officer or employee in the Civil Service including members of the Armed Forces, shall engage directly or indirectly in any partisan political activity or take part in any election except to vote nor shall he use his official authority or influence to coerce the political activity of any other person or body.

Clearly, the act of filing a Certificate of Candidacy while one is employed in the civil service constitutes a just cause for termination of employment for appointive officials. Section 66 of the Omnibus Election Code, in considering an appointive official ipso facto resigned, merely provides for the immediate implementation of the penalty for the prohibited act of engaging in partisan political activity. This provision was not intended, and should not be used, as a defense against an administrative case for acts committed during government service.[54]

Section 4(a) is not violative of
the Equal Protection Clause
of the Constitution


Petitioners' equal protection challenge was sustained by the ponencia on three grounds, viz.:

(1) Our disquisition in Farinas, et al. v. Executive Secretary, et al.[55] on the apparent unfairness of the rules on deemed resignations is not doctrine, but mere obiter dictum;

(2) Mancuso v. Taft,[56] a 1973 United States Court of Appeals case, struck down as unconstitutional a similar deemed resignation provision; and

(3) The differential treatment of persons holding appointive offices as opposed to those holding elective offices is not germane to the purpose of the law.

I shall discuss these grounds in seriatim.

i. Pronouncement in Farinas, et al. v. Executive Secretary, et al.
Not Obiter Dictum

An obiter dictum has been defined as a remark or opinion uttered, `by the way.'[57] It is a statement of the court concerning a question which was not directly before it.[58] It is language unnecessary to a decision, a ruling on an issue not raised, or an opinion of a judge which does not embody the resolution or determination of the court, and is made without argument or full consideration of the point.[59] It is an expression of opinion by the court or judge on a collateral question not directly involved,[60] or not necessary for the decision.[61] Accordingly, it lacks the force of an adjudication and should not ordinarily be regarded as such.[62]

Prescinding from these principles, our pronouncement on the equal protection issue in Farinas, et al. v. Executive Secretary, et al.[63] cannot be characterized as obiter dictum.

The ponencia bases its conclusion on the premise that the "main issue" in Farinas, on which the Court was "intently focused," was whether the repealing clause in the Fair Election Act was a constitutionally proscribed rider.[64] Consequently, the ponencia continues, the matter of the equal protection claim was only "incidentally addressed,"[65] such that we "unwittingly failed to ascertain with stricter scrutiny the impact of the retention of the provision on automatic resignation of persons holding appointive positions (Section 66) in the OEC, vis-à-vis the equal protection clause."[66] It also asserts that the petitioners in Farinas "never posed a direct challenge to the constitutionality of Section 66 of the Omnibus Election Code."[67]

With due respect, this view fails to recognize that the equal protection implications of Section 14 of the Fair Election Act, in relation to Sections 66 and 67 of the Omnibus Election Code, were squarely raised before the Court, thus -

The Petitioners' Case

The petitioners now come to the Court alleging in the main that Section 14 of Rep. Act No. 9006, insofar as it repeals Section 67 of the Omnibus Election Code, is unconstitutional for being in violation of Section 26(1), Article VI of the Constitution, requiring every law to have only one subject which should be expressed in its title.

According to the petitioners, the inclusion of Section 14 repealing Section 67 of the Omnibus Election Code in Rep. Act No. 9006 constitutes a proscribed rider. x x x

The petitioners also assert that Section 14 of Rep. Act No. 9006 violates the equal protection clause of the Constitution because it repeals Section 67 only of the Omnibus Election Code, leaving intact Section 66 thereof which imposes a similar limitation to appointive officials, thus:
SEC. 66. Candidates holding appointive office or position. -- Any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.
They contend that Section 14 of Rep. Act No. 9006 discriminates against appointive officials. By the repeal of Section 67, an elective official who runs for office other than the one which he is holding is no longer considered ipso facto resigned therefrom upon filing his certificate of candidacy. Elective officials continue in public office even as they campaign for reelection or election for another elective position. On the other hand, Section 66 has been retained; thus, the limitation on appointive officials remains -- they are still considered ipso facto resigned from their offices upon the filing of their certificates of candidacy.

The petitioners assert that Rep. Act No. 9006 is null and void in its entirety as irregularities attended its enactment into law. x x x

Finally, the petitioners maintain that Section 67 of the Omnibus Election Code is a good law; hence, should not have been repealed. x x x[68] (italics supplied)

to which we responded:

Section 14 of Rep. Act No. 9006 Is Not Violative of the Equal Protection Clause of the Constitution

The petitioners' contention, that the repeal of Section 67 of the Omnibus Election Code pertaining to elective officials gives undue benefit to such officials as against the appointive ones and violates the equal protection clause of the constitution, is tenuous.

The equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable classification. If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from the other. The Court has explained the nature of the equal protection guarantee in this manner:
The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not.
Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority.

Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987 (Executive Order No. 292), appointive officials, as officers and employees in the civil service, are strictly prohibited from engaging in any partisan political activity or [taking] part in any election except to vote. Under the same provision, elective officials, or officers or employees holding political offices, are obviously expressly allowed to take part in political and electoral activities.

By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators deemed it proper to treat these two classes of officials differently with respect to the effect on their tenure in the office of the filing of the certificates of candidacy for any position other than those occupied by them. Again, it is not within the power of the Court to pass upon or look into the wisdom of this classification.

Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis-a-vis appointive officials, is anchored upon material and significant distinctions and all the persons belonging under the same classification are similarly treated, the equal protection clause of the Constitution is, thus, not infringed.[69]

That Farinas likewise dealt with the issue of whether Section 14 of the Fair Election Act is a constitutionally proscribed rider, is wholly peripheral to the doctrinal value of our pronouncement on the equal protection challenge. The fact remains that the Court's disquisition on that matter was prompted by an issue clearly raised before us, one that cannot, by any means, be construed as "a collateral question not directly involved"[70] with the case.

To be sure, an adjudication on any point within the issues presented by the case cannot be considered as obiter dictum.[71] This rule applies to all pertinent questions, which are presented and decided in the regular course of the consideration of the case, and led up to the final conclusion, and to any statement as to the matter on which the decision is predicated.[72] For that reason, a point expressly decided does not lose its value as a precedent because the disposition of the case is, or might have been, made on some other ground, or even though, by reason of other points in the case, the result reached might have been the same if the court had held, on the particular point, otherwise than it did.[73] As we held in Villanueva, Jr. v. Court of Appeals, et al.:[74]

... A decision which the case could have turned on is not regarded as obiter dictum merely because, owing to the disposal of the contention, it was necessary to consider another question, nor can an additional reason in a decision, brought forward after the case has been disposed of on one ground, be regarded as dicta. So, also, where a case presents two (2) or more points, any one of which is sufficient to determine the ultimate issue, but the court actually decides all such points, the case as an authoritative precedent as to every point decided, and none of such points can be regarded as having the status of a dictum, and one point should not be denied authority merely because another point was more dwelt on and more fully argued and considered, nor does a decision on one proposition make statements of the court regarding other propositions dicta.[75] (italics supplied)

I respectfully submit, therefore, that our pronouncement in Farinas in respect of the equal protection issue finds cogent application in this case. Stare decisis et non quieta movere.

ii. Mancuso v. Taft Has Been Overruled

The ponencia begins its discussion with the claim that the right to run for public office is "inextricably linked" with two fundamental freedoms - those of freedom and association. It then extensively cites Mancuso v. Taft,[76] a decision of the First Circuit of the United States Court of Appeals promulgated on March 1973, to buttress its ruling. On this point, Mancuso asserts that "[c]andidacy is both a protected First Amendment right and a fundamental interest. Hence[,] any legislative classification that significantly burdens that interest must be subjected to strict equal protection review."

It must be noted, however, that while the United States Supreme Court has held that the fundamental rights include freedom of speech[77] and freedom of association,[78] it has never recognized a fundamental right to express one's political views through candidacy.[79] Bart v. Telford[80] states quite categorically that "[t]he First Amendment does not in terms confer a right to run for public office, and this court has held that it does not do so by implication either." Newcomb v. Brennan[81] further instructs:

Although the Supreme Court has frequently invalidated state action which infringed a candidate's interest in seeking political office, it "has not heretofore attached such fundamental status to candidacy as to invoke a rigorous standard of review." Rather, it has relied on the right of association guaranteed by the First Amendment in holding that state action which denies individuals the freedom to form groups for the advancement of political ideas, as well as the freedom to campaign and vote for the candidates chosen by those groups, is unconstitutional absent a strong subordinating interest.[82] These decisions indicate that plaintiff's interest in seeking office, by itself, is not entitled to constitutional protection.[83] Moreover, since plaintiff has not alleged that by running for Congress he was advancing the political ideas of a particular set of voters, he cannot bring his action under the rubric of freedom of association which the Supreme Court has embraced. (italics supplied)

As to the applicable standard of judicial scrutiny, Bullock v. Carter[84] holds that the existence of barriers to a candidate's access to the ballot "does not of itself compel close scrutiny," and that the Court "has not heretofore attached such fundamental status to candidacy as to invoke a rigorous standard of review."[85]

These principles attain added significance as we examine the legal status of Mancuso v. Taft.

Briefly, that case involved Kenneth Mancuso, a full-time police officer and classified civil service employee of the City of Cranston, Rhode Island. He filed as a candidate for nomination as representative to the Rhode Island General Assembly on October 19, 1971, and subsequently initiated a suit challenging the constitutionality of §14.09(c) of the City Home Rule Charter which prohibits "continuing in the classified service of the city after becoming a candidate for nomination or election to any public office." The district court ruled in his favor, for which reason the city officials appealed. Applying strict equal protection review, the United States Court of Appeals held that the Cranston charter provision pursues its objective (of maintaining the honesty and impartiality of its public work force) in a far too heavy-handed manner and must therefore fall under the equal protection clause, viz.:

Whether the right to run for office is looked at from the point of view of individual expression or associational effectiveness, wide opportunities exist for the individual who seeks public office. x x x Consequently[,] we hold that candidacy is both a protected First Amendment right and a fundamental interest. Hence any legislative classification that significantly burdens that interest must be subjected to strict equal protection review.

x x x x

x x x It is obviously conceivable that the impartial character of the civil service would be seriously jeopardized if people in positions of authority used their discretion to forward their electoral ambitions rather than the public welfare. Similarly if a public employee pressured other fellow employees to engage in corrupt practices in return for promises of post-election reward, or if an employee invoked the power of the office he was seeking to extract special favors from his superiors, the civil service would be done irreparable injury. Conversely, members of the public, fellow-employees, or supervisors might themselves request favors from the candidate or might improperly adjust their own official behavior towards him. Even if none of these abuses actually materialize, the possibility of their occurrence might seriously erode the public's confidence in its public employees. For the reputation of impartiality is probably as crucial as the impartiality itself; the knowledge that a clerk in the assessor's office who is running for the local zoning board has access to confidential files which could provide "pressure" points for furthering his campaign is destructive regardless of whether the clerk actually takes ad-vantage of his opportunities. For all of these reasons we find that the state indeed has a compelling interest in maintaining the honesty and impartiality of its public work force.

We do not, however, consider the exclusionary measure taken by Cranston-a flat prohibition on office-seeking of all kinds by all kinds of public employees-as even reasonably necessary to satisfaction of this state interest. As Justice Marshall pointed out in Dunn v. Blumstein, "[s]tatutes affecting constitutional rights must be drawn with `precision'". For three sets of reasons we conclude that the Cranston charter provision pursues its objective in a far too heavy-handed manner and hence must fall under the equal protection clause. First, we think the nature of the regulation-a broad prophylactic rule-may be unnecessary to fulfillment of the city's objective. Second, even granting some sort of prophylactic rule may be required, the provision here prohibits candidacies for all types of public office, including many which would pose none of the problems at which the law is aimed. Third, the provision excludes the candidacies of all types of public employees, without any attempt to limit exclusion to those employees whose positions make them vulnerable to corruption and conflicts of interest.

As to approaches less restrictive than a prophylactic rule, there exists the device of the leave of absence. Some system of leaves of absence would permit the public employee to take time off to pursue his candidacy while assuring him his old job should his candidacy be unsuccessful. Moreover, a leave of absence policy would eliminate many of the opportunities for engaging in the questionable practices that the statute is designed to prevent. While campaigning, the candidate would feel no conflict between his desire for election and his publicly entrusted discretion, nor any conflict between his efforts to persuade the public and his access to confidential documents. But instead of adopting a reasonable leave of absence policy, Cranston has chosen a provision that makes the public employee cast off the security of hard-won public employment should he desire to compete for elected office.

The city might also promote its interest in the integrity of the civil service by enforcing, through dismissal, discipline, or criminal prosecution, rules or statutes that treat conflict of interests, bribery, or other forms of official corruption. By thus attacking the problem directly, instead of using a broad prophylactic rule, the city could pursue its objective without unduly burdening the First Amendment rights of its employees and the voting rights of its citizens. x x x (citations omitted)

Three months after Mancuso, or on June 1973, the United States Supreme Court decided United States Civil Service Commission, et al. v. National Association of Letter Carriers AFL-CIO, et al.[86] and Broadrick, et al. v. State of Oklahoma, et al.[87]

Letter Carriers was a declaratory judgment action brought by the National Association of Letter Carriers, certain local Democratic and Republican political committees, and six individual federal employees, who asserted on behalf of themselves and all federal employees, that Section 9(a) of the Hatch Act, prohibiting federal employees from taking "an active part in political management or in political campaigns," was unconstitutional on its face.[88] A divided three-judge court held the section unconstitutional, but this ruling was reversed by the United States Supreme Court in this wise:

Until now, the judgment of Congress, the Executive, and the country appears to have been that partisan political activities by federal employees must be limited if the Government is to operate effectively and fairly, elections are to play their proper part in representative government, and employees themselves are to be sufficiently free from improper influences. The restrictions so far imposed on federal employees are not aimed at particular parties, groups, or points of view, but apply equally to all partisan activities of the type described. They discriminate against no racial, ethnic, or religious minorities. Nor do they seek to control political opinions or beliefs, or to interfere with or influence anyone's vote at the polls.

But, as the Court held in Pickering v. Board of Education,[89] the government has an interest in regulating the conduct and `the speech of its employees that differ(s) significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the (employee), as a citizen, in commenting upon matters of public concern and the interest of the (government), as an employer, in promoting the efficiency of the public services it performs through its employees.' Although Congress is free to strike a different balance than it has, if it so chooses, we think the balance it has so far struck is sustainable by the obviously important interests sought to be served by the limitations on partisan political activities now contained in the Hatch Act.

It seems fundamental in the first place that employees in the Executive Branch of the Government, or those working for any of its agencies, should administer the law in accordance with the will of Congress, rather than in accordance with their own or the will of a political party. They are expected to enforce the law and execute the pro-grams of the Government without bias or favoritism for or against any political party or group or the members thereof. A major thesis of the Hatch Act is that to serve this great end of Government-the impartial execution of the laws-it is essential that federal employees, for example, not take formal positions in political parties, not undertake to play substantial roles in partisan political campaigns, and not run for office on partisan political tickets. Forbidding activities like these will reduce the hazards to fair and effective government.

There is another consideration in this judgment: it is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent.

Another major concern of the restriction against partisan activities by federal employees was perhaps the immediate occasion for enactment of the Hatch Act in 1939. That was the conviction that the rapidly expanding Government work force should not be employed to build a powerful, invincible, and perhaps corrupt political machine. The experience of the 1936 and 1938 campaigns convinced Congress that these dangers were sufficiently real that substantial barriers should be raised against the party in power-or the party out of power, for that matter-using the thousands or hundreds of thousands of federal employees, paid for at public expense, to man its political structure and political campaigns.

A related concern, and this remains as important as any other, was to further serve the goal that employment and advancement in the Government service not depend on political performance, and at the same time to make sure that Government employees would be free from pres-sure and from express or tacit invitation to vote in a certain way or perform political chores in order to curry favor with their superiors rather than to act out their own beliefs. It may be urged that prohibitions against coercion are sufficient protection; but for many years the joint judgment of the Executive and Congress has been that to protect the rights of federal employees with respect to their jobs and their political acts and beliefs it is not enough merely to forbid one employee to attempt to influence or coerce another. For example, at the hearings in 1972 on proposed legislation for liberalizing the prohibition against political activity, the Chairman of the Civil Service Commission stated that `the prohibitions against active participation in partisan political management and partisan political campaigns constitute the most significant safeguards against coercion . . ..' Perhaps Congress at some time will come to a different view of the realities of political life and Government service; but that is its current view of the matter, and we are not now in any position to dispute it. Nor, in our view, does the Constitution forbid it.

Neither the right to associate nor the right to participate in political activities is absolute in any event.[90] x x x

x x x x

As we see it, our task is not to destroy the Act if we can, but to construe it, if consistent with the will of Congress, so as to comport with constitutional limitations. (italics supplied)

Broadrick, on the other hand, was a class action brought by certain Oklahoma state employees seeking a declaration that a state statute regulating political activity by state employees was invalid. Section 818 of Oklahoma's Merit System of Personnel Administration Act restricts the political activities of the state's classified civil servants in much the same manner that the Hatch Act proscribes partisan political activities of federal employees.[91] It states, among others, that "[n]o employee in the classified service shall be ... a candidate for nomination or election to any paid public office..." Violation of Section 18 results in dismissal from employment, possible criminal sanctions and limited state employment ineligibility. The Supreme Court ruled that Section 18 is constitutional, thus:

Appellants do not question Oklahoma's right to place even-handed restrictions on the partisan political conduct of state employees. Appellants freely concede that such restrictions serve valid and important state interests, particularly with respect to attracting greater numbers of qualified people by insuring their job security, free from the vicissitudes of the elective process, and by protecting them from `political extortion. Rather, appellants maintain that however permissible, even commendable, the goals of s 818 may be, its language is unconstitutionally vague and its prohibitions too broad in their sweep, failing to distinguish between conduct that may be proscribed and conduct that must be permitted. For these and other reasons, appellants assert that the sixth and seventh paragraphs of s 818 are void in toto and cannot be enforced against them or anyone else.

We have held today that the Hatch Act is not impermissibly vague.[92] We have little doubt that s 818 is similarly not so vague that `men of common intelligence must necessarily guess at its meaning.'[93] Whatever other problems there are with s 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. 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 s 818 as `partisan,' or `take part in,' or `affairs of' political parties. But what was said in Letter Carriers, 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.' x x x

x x x x

[Appellants] nevertheless maintain that the statute is overbroad and purports to reach protected, as well as unprotected conduct, and must therefore be struck down on its face and held to be incapable of any constitutional application. We do not believe that the overbreadth doctrine may appropriately be invoked in this manner here.

x x x x

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. It has been employed by the Court sparingly and only as a last resort. x x x

x x x But the plain import of our cases is, at the very least, that facial over-breadth 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. 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 s 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.

Unlike ordinary breach-of-the peace statutes or other broad regulatory acts, s 818 is directed, by its terms, at political expression which if engaged in by private persons would plainly be protected by the First and Fourteenth Amendments. But at the same time, s 818 is not a censorial statute, directed at particular groups or viewpoints. The statute, rather, seeks to regulate political activity in an even-handed and neutral manner. As indicted, such statutes have in the past been subject to a less exacting overbreadth scrutiny. Moreover, the fact remains that s 818 regulates a substantial spectrum of conduct that is as manifestly subject to state regulation as the public peace or criminal trespass. This much was established in United Public Workers v. Mitchell, and has been unhesitatingly reaffirmed today in Letter Carriers. Under the decision in Letter Carriers, there is no question that s 818 is valid at least insofar as it forbids classified employees from: soliciting contributions for partisan candidates, political parties, or other partisan political purposes; becoming members of national, state, or local committees of political parties, or officers or committee members in partisan political clubs, or candidates for any paid public office; taking part in the management or affairs of any political party's partisan political campaign; serving as delegates or alternates to caucuses or conventions of political parties; addressing or taking an active part in partisan political rallies or meetings; soliciting votes or assisting voters at the polls or helping in a partisan effort to get voters to the polls; participating in the distribution of partisan campaign literature; initiating or circulating partisan nominating petitions; or riding in caravans for any political party or partisan political candidate.

x x x It may be that such restrictions are impermissible and that s 818 may be susceptible of some other improper applications. But, as presently construed, we do not believe that s 818 must be discarded in toto because some persons' arguably protected conduct may or may not be caught or chilled by the statute. Section 818 is not substantially overbroad and it not, therefore, unconstitutional on its face. (italics supplied)

Broadrick, likewise, held that the statute did not violate the equal protection clause by singling out classified service employees for restrictions on political expression, while leaving unclassified personnel free from such. The court reasoned that the state legislature must have some leeway in determining which of its employment positions required these restrictions.

Accordingly, Letter Carriers and Broadrick teach us that: (i) the state has interests as employer in regulating the speech of its employees that differ significantly from those it possesses in regulating the speech of the citizenry in general; (ii) the courts must therefore balance the legitimate interest of employee free expression against the interests of the employer in promoting efficiency of public services; (iii) if the employees' expression interferes with maintenance of efficient and regularly functioning services, the limitation on speech is not unconstitutional; and (iv) the Legislature is to be given some flexibility or latitude in ascertaining which positions are to be covered by any statutory restrictions.[94]

It is against this factual backdrop that Magill v. Lynch,[95] a 1977 decision of the First Circuit of the United States Court of Appeals, gains prominence. Noteworthy, this case concerned a similar law, and was decided by the same court that decided Mancuso.

Magill involved Pawtucket, Rhode Island firemen who ran for city office in 1975. Pawtucket's "Little Hatch Act" prohibits city employees from engaging in a broad range of political activities. Becoming a candidate for any city office is specifically proscribed,[96] the violation being punished by removal from office or immediate dismissal. The firemen brought an action against the city officials on the ground that that the provision of the city charter was unconstitutional. However, the court, fully cognizant of Letter Carriers and Broadrick, took the position that Mancuso had since lost considerable vitality. It observed that the view that political candidacy was a fundamental interest which could be infringed upon only if less restrictive alternatives were not available, was a position which was no longer viable, since the Supreme Court (finding that the government's interest in regulating both the conduct and speech of its employees differed significantly from its interest in regulating those of the citizenry in general) had given little weight to the argument that prohibitions against the coercion of government employees were a less drastic means to the same end, deferring to the judgment of Congress, and applying a "balancing" test to determine whether limits on political activity by public employees substantially served government interests which were "important" enough to outweigh the employees' First Amendment rights.[97]

It must be noted that the Court of Appeals ruled in this wise even though the election in Magill was characterized as nonpartisan, as it was reasonable for the city to fear, under the circumstances of that case, that politically active bureaucrats might use their official power to help political friends and hurt political foes. Ruled the court:

The question before us is whether Pawtucket's charter provision, which bars a city employee's candidacy in even a nonpartisan city election, is constitutional. The issue compels us to extrapolate two recent Supreme Court decisions, Civil Service Comm'n v. Nat'l Ass'n of Letter Carriers and Broadrick v. Oklahoma. Both dealt with laws barring civil servants from partisan political activity. Letter Carriers reaffirmed United Public Workers v. Mitchell, upholding the constitutionality of the Hatch Act as to federal employees. Broadrick sustained Oklahoma's "Little Hatch Act" against constitutional attack, limiting its holding to Oklaho-ma's construction that the Act barred only activity in partisan politics. In Mancuso v. Taft, we assumed that proscriptions of candidacy in nonpartisan elections would not be constitutional. Letter Carriers and Broadrick compel new analysis.

x x x x

What we are obligated to do in this case, as the district court recognized, is to apply the Court's interest balancing approach to the kind of nonpartisan election revealed in this record. We believe that the district court found more residual vigor in our opinion in Mancuso v. Taft than remains after Letter Carriers. We have particular reference to our view that political candidacy was a fundamental interest which could be trenched upon only if less restrictive alternatives were not available. While this approach may still be viable for citizens who are not government employees, the Court in Letter Carriers recognized that the government's interest in regulating both the conduct and speech of its employees differs significantly from its interest in regulating those of the citizenry in general. Not only was United Public Workers v. Mitchell "unhesitatingly" reaffirmed, but the Court gave little weight to the argument that prohibitions against the coercion of government employees were a less drastic means to the same end, deferring to the judgment of the Congress. We cannot be more precise than the Third Circuit in characterizing the Court's approach as "some sort of 'balancing' process".[98] It appears that the government may place limits on campaigning by public employees if the limits substantially serve government interests that are "important" enough to outweigh the employees' First Amendment rights. x x x (italics supplied)

Upholding the constitutionality of the law in question, the Magill court detailed the major governmental interests discussed in Letter Carriers and applied them to the Pawtucket provision as follows:

In Letter Carriers[,] the first interest identified by the Court was that of an efficient government, faithful to the Congress rather than to party. The district court discounted this interest, reasoning that candidates in a local election would not likely be committed to a state or national platform. This observation undoubtedly has substance insofar as allegiance to broad policy positions is concerned. But a different kind of possible political intrusion into efficient administration could be thought to threaten municipal government: not into broad policy decisions, but into the particulars of administration favoritism in minute decisions affecting welfare, tax assessments, municipal contracts and purchasing, hiring, zoning, licensing, and inspections. Just as the Court in Letter Carriers identified a second governmental interest in the avoidance of the appearance of "political justice" as to policy, so there is an equivalent interest in avoiding the appearance of political preferment in privileges, concessions, and benefits. The appearance (or reality) of favoritism that the charter's authors evidently feared is not exorcised by the nonpartisan character of the formal election process. Where, as here, party support is a key to successful campaigning, and party rivalry is the norm, the city might reasonably fear that politically active bureaucrats would use their official power to help political friends and hurt political foes. This is not to say that the city's interest in visibly fair and effective administration necessarily justifies a blanket prohibition of all employee campaigning; if parties are not heavily involved in a campaign, the danger of favoritism is less, for neither friend nor foe is as easily identified.

A second major governmental interest identified in Letter Carriers was avoiding the danger of a powerful political machine. The Court had in mind the large and growing federal bureaucracy and its partisan potential. The district court felt this was only a minor threat since parties had no control over nominations. But in fact candidates sought party endorsements, and party endorsements proved to be highly effective both in determining who would emerge from the primary election and who would be elected in the final election. Under the prevailing customs, known party affiliation and support were highly significant factors in Pawtucket elections. The charter's authors might reasonably have feared that a politically active public work force would give the incumbent party, and the incumbent workers, an unbreakable grasp on the reins of power. In municipal elections especially, the small size of the electorate and the limited powers of local government may inhibit the growth of interest groups powerful enough to outbalance the weight of a partisan work force. Even when nonpartisan issues and candidacies are at stake, isolated government employees may seek to influence voters or their co-workers improperly; but a more real danger is that a central party structure will mass the scattered powers of government workers behind a single party platform or slate. Occasional misuse of the public trust to pursue private political ends is tolerable, especially be-cause the political views of individual employees may balance each other out. But party discipline eliminates this diversity and tends to make abuse systematic. Instead of a handful of employees pressured into advancing their immediate superior's political ambitions, the entire government work force may be expected to turn out for many candidates in every election. In Pawtucket, where parties are a continuing presence in political campaigns, a carefully orchestrated use of city employees in support of the incumbent party's candidates is possible. The danger is scarcely lessened by the openness of Pawtucket's nominating procedure or the lack of party labels on its ballots.

The third area of proper governmental interest in Letter Carriers was ensuring that employees achieve advancement on their merits and that they be free from both coercion and the prospect of favor from political activity. The district court did not address this factor, but looked only to the possibility of a civil servant using his position to influence voters, and held this to be no more of a threat than in the most nonpartisan of elections. But we think that the possibility of coercion of employees by superiors remains as strong a factor in municipal elections as it was in Letter Carriers. Once again, it is the systematic and coordinated exploitation of public servants for political ends that a legislature is most likely to see as the primary threat of employees' rights. Political oppression of public employees will be rare in an entirely nonpartisan system. Some superiors may be inclined to ride herd on the politics of their employees even in a nonpartisan context, but without party officials looking over their shoulders most supervisors will prefer to let employees go their own ways.

In short, the government may constitutionally restrict its employees' participation in nominally nonpartisan elections if political parties play a large role in the campaigns. In the absence of substantial party involvement, on the other hand, the interests identified by the Letter Carriers Court lose much of their force. While the employees' First Amendment rights would normally outbalance these diminished interests, we do not suggest that they would always do so. Even when parties are absent, many employee campaigns might be thought to endanger at least one strong public interest, an interest that looms larger in the context of municipal elections than it does in the national elections considered in Letter Carriers. The city could reasonably fear the prospect of a subordinate running directly against his superior or running for a position that confers great power over his superior. An employee of a federal agency who seeks a Congressional seat poses less of a direct challenge to the command and discipline of his agency than a fireman or policeman who runs for mayor or city council. The possibilities of internal discussion, cliques, and political bargaining, should an employee gather substantial political support, are considerable. (citations omitted)

The court, however, remanded the case to the district court for further proceedings in respect of the petitioners' overbreadth charge. Noting that invalidating a statute for being overbroad is "not to be taken lightly, much less to be taken in the dark," the court held:

The governing case is Broadrick, which introduced the doctrine of "substantial" overbreadth in a closely analogous case. Under Broadrick, when one who challenges a law has engaged in constitutionally unprotected conduct (rather than unprotected speech) and when the challenged law is aimed at unprotected conduct, "the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Two major uncertainties attend the doctrine: how to distinguish speech from conduct, and how to define "substantial" overbreadth. We are spared the first inquiry by Broadrick itself. The plaintiffs in that case had solicited support for a candidate, and they were subject to discipline under a law proscribing a wide range of activities, including soliciting contributions for political candidates and becoming a candidate. The Court found that this combination required a substantial overbreadth approach. The facts of this case are so similar that we may reach the same result without worrying unduly about the sometimes opaque distinction between speech and conduct.

The second difficulty is not so easily disposed of. Broadrick found no substantial over-breadth in a statute restricting partisan campaigning. Pawtucket has gone further, banning participation in nonpartisan campaigns as well. Measuring the substantiality of a statute's overbreadth apparently requires, inter alia, a rough balancing of the number of valid applications compared to the number of potentially invalid applications. Some sensitivity to reality is needed; an invalid application that is far-fetched does not deserve as much weight as one that is probable. The question is a matter of degree; it will never be possible to say that a ratio of one invalid to nine valid applications makes a law substantially over-broad. Still, an overbreadth challenger has a duty to provide the court with some idea of the number of potentially invalid applications the statute permits. Often, simply reading the statute in the light of common experience or litigated cases will suggest a number of probable invalid applications. But this case is different. Whether the statute is overbroad depends in large part on the number of elections that are insulated from party rivalry yet closed to Pawtucket employees. For all the record shows, every one of the city, state, or federal elections in Pawtucket is actively contested by political parties. Certainly the record suggests that parties play a major role even in campaigns that often are entirely nonpartisan in other cities. School committee candidates, for example, are endorsed by the local Democratic committee.

The state of the record does not permit us to find overbreadth; indeed such a step is not to be taken lightly, much less to be taken in the dark. On the other hand, the entire focus below, in the short period before the election was held, was on the constitutionality of the statute as applied. Plaintiffs may very well feel that further efforts are not justified, but they should be afforded the opportunity to demonstrate that the charter forecloses access to a significant number of offices, the candidacy for which by municipal employees would not pose the possible threats to government efficiency and integrity which Letter Carriers, as we have interpreted it, deems significant. Accordingly, we remand for consideration of plaintiffs' overbreadth claim. (italics supplied, citations omitted)

Clearly, Letter Carriers, Broadrick, and Magill demonstrate beyond doubt that Mancuso v. Taft, which was heavily relied upon by the ponencia, has effectively been overruled. [99] As it is no longer good law, the ponencia's exhortation that we should follow Mancuso "[since] the Americans, from whom we copied the provision in question, had already stricken down a similar measure for being unconstitutional[,]" is misplaced and unwarranted.

Thus, in the instant case, I respectfully submit that Section 13 of RA 9369, which reiterates Section 66 of the Omnibus Election Code, is not violative of the equal protection clause. It is crystal clear that these deemed resignation provisions substantially serve governmental interests (i.e., (i) efficient civil service faithful to the government and the people rather than to party, (ii) avoiding the appearance of "political justice" as to policy, (iii) avoiding the danger of a powerful political machine, and (iv) ensuring that employees achieve advancement on their merits and that they be free from both coercion and the prospect of favor from political activity), which are important enough to outweigh the non-fundamental right of appointive officials and employees to seek elective office.

Instead of the overruled case of Mancuso, we should take heed of the ruling in Adams v. Supreme Court of Pennsylvania,[100] viz.:

The relevant authorities provide that federal and state officials may regulate the First Amendment rights of various government employees to an extent greater than is appropriate for regular citizens. The issue is not whether a "compelling state interest" supports the relevant law. Rather, the proper test involves a balance between the individual's First Amendment rights and the interests the government has at stake.[101] In Morial v. Judicial Commission of the State of Louisiana,[102] the Court of Appeals for the Fifth Circuit held that this principle extends to state judicial officers. Furthermore, the precedent provided the rationale for resolving Adams's argument.

It must be conceded that "resign to run" laws place substantial burdens on a potential candidate's right to seek office. Yet the "chilling" effect of these provisions should not be exaggerated, since they do not reach a wide variety of other activities protected by the First Amendment guarantee of free speech. The statutes, moreover, serve important state interests. For example, they help prevent the abuse of judicial office by candidates and former candidates and they safeguard the appearances of propriety. Finally, as the Morial court noted, the less-restrictive alternative of a forced leave of absence would not be sufficient to guard the state's interests, because the danger of corruption, real or perceived, would persist with regard to defeated candidates on their return to the bench. Weighing these considerations, it must be concluded that the Morial analysis is compelling and the "resign to run" law is constitutional. (italics supplied)

iii. Classification Germane to the
Purposes of the Law

Equal protection requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed.[103] It does not require the universal application of the laws on all persons or things without distinction.[104] What the clause simply requires is equality among equals as determined according to a valid classification.[105] By classification is meant the grouping of persons or things similar to each other in certain particulars and different from all others in these same particulars.[106]

The test for a valid classification is reasonableness,[107] which criterion is complied with upon a showing of the following:

(1) The classification rests on substantial distinctions;
(2) It is germane to the purposes of the law;
(3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same class.[108]

In the main, the ponencia admits the presence of the first, third and fourth requisites. It, however, holds that the differential treatment of persons holding appointive offices as opposed to those holding elective offices is not germane to the purpose of the law.

I respectfully disagree.

Preliminarily, the equal protection clause is satisfied so long as there is a plausible policy reason for the classification.[109] The statute is accorded a strong presumption of validity, and the challenger must bear the burden of showing that the act creates a classification that is "palpably arbitrary or capricious;"[110] otherwise, the legislative determination as to what is a sufficient distinction to warrant the classification will not be overthrown.[111] The challenger must refute all possible rational bases for the differing treatment, whether or not the Legislature cited those bases as reasons for the enactment.[112] The case law is to uphold the statute if we "can conceive of any reason to justify the classification;"[113] that the constitutionality of the law must be sustained even if the reasonableness of the classification is "fairly debatable."[114]

The ponencia readily acknowledges the rationale behind the deemed resignation provision. It holds:

The obvious reason for the challenged provision is to prevent the use of a governmental position to promote one's candidacy, or to even wield a dangerous or coercive influence on the electorate. The measure is further aimed at promoting the efficiency, integrity, and discipline of the public service by eliminating the danger that the discharge of official duty would be motivated by political considerations rather than the welfare of the public. The restriction is also justified by the proposition that the entry of civil servants to the electoral arena, while still in office, could result in the neglect or inefficiency in the performance of duty because they would be attending to their campaign rather than to their office work.[115] (citation omitted)

Nevertheless, the ponencia faults Section 13 of Republic Act No. 9369 and Section 66 of the Omnibus Election Code because "whether one holds an appointive office or an elective one, the evils sought to be prevented by the measure remain." The ponencia explains:

... For example, the Executive Secretary, or any Member of the Cabinet for that matter, could wield the same influence as the Vice-President who at the same time is appointed to a Cabinet post (in the recent past, elected Vice-Presidents were appointed to take charge of national housing, social welfare development, interior and local government, and foreign affairs). With the fact that they both head executive offices, there is no valid justification to treat them differently when both file their [Certificates of Candidacy] for the elections. Under the present state of our law, the Vice-President, in the example, running this time, let us say, for President, retains his position during the entire election period and can still use the resources of his office to support his campaign.[116]

This reasoning, however, fails to appreciate the well-settled rule that, by itself, the fact that a legislative classification is underinclusive will not render it unconstitutionally arbitrary or invidious.[117] The Legislature is free to choose to remedy only part of a problem, as it may "select one phase of a field and apply a remedy there, neglecting the others."[118] Stated differently, there is no constitutional requirement that regulation must reach each and every class to which it might be applied;[119] that the Legislature must be held rigidly to the choice of regulating all or none.[120] The state is free to regulate one step at a time, recognizing degrees of harm and addressing itself to phases of a problem which presently seem most acute to the legislative mind.[121] For when the Legislature creates a statute, it is not required to solve all the evils of a particular wrong in one fell swoop.[122] New Jersey State League of Municipalities, et al. v. State of New Jersey[123] succinctly states the principle thus:

It is axiomatic that in attempting to remedy an injustice, the Legislature need not address every manifestation of the evil at once; it may proceed "one step at a time."[124] Thus, "remedial legislation need not be `all-or-nothing,'[;] ... the Legislature can decide that to start somewhere is better than to start nowhere."[125] Therefore, it is not necessarily fatal that a law is underinclusive by failing to include some who share characteristics of the included class, so long as there is a rational justification for excluding part of the affected class.[126]

The Legislature in addressing an issue must invariably draw lines and make choices, thereby creating some inequity as to those included or excluded. As long as "the bounds of reasonable choice" are not exceeded, the courts must defer to the legislative judgment.[127] We may not strike down a law merely because the legislative aim would have been more fully achieved by expanding the class.[128] We must determine whether there is a reasonable basis for the Legislature's choice and not substitute our own judgment for that of the Legislature.[129]

Correspondingly, it is not sufficient grounds for invalidation that we may find that the statute's distinction is unfair, underinclusive, unwise, or not the best solution from a public-policy standpoint; rather, we must find that there is no reasonably rational reason for the differing treatment.[130]

In the instant case, is there a rational justification for excluding elected officials from the operation of the deemed resigned provisions? I submit that there is.

An election is the embodiment of the popular will, perhaps the purest expression of the sovereign power of the people.[131] It involves the choice or selection of candidates to public office by popular vote.[132] Considering that elected officials are put in office by their constituents for a definite term, it may justifiably be said that they were excluded from the ambit of the deemed resigned provisions in utmost respect for the mandate of the sovereign will of the people. In other words, complete deference is accorded to the will of the electorate that they be served by such officials until the end of the term for which they were elected. In contrast, there is no such expectation insofar as appointed officials are concerned.

The dichotomized treatment of appointive and elective officials is therefore germane to the purposes of the law. For the law was made not merely to preserve the integrity, efficiency, and discipline of the public service; the Legislature, whose wisdom is outside the rubric of judicial scrutiny, also thought it wise to balance this with the competing, yet equally compelling, interest of deferring to the sovereign will.

Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code are not overbroad.

Apart from sustaining petitioners' equal protection challenge, the ponencia took an unwarranted step further and struck down Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code for being unconstitutionally overbroad in two respects, viz:

(1) The assailed provisions limit the candidacy of all civil servants holding appointive posts without due regard for the type of position being held by the employee seeking an elective post and the degree of influence that may be attendant thereto;[133] and

(2) The assailed provisions limit the candidacy of any and all civil servants holding appointive positions without due regard for the type of office being sought, whether it be partisan or nonpartisan in character, or in the national, municipal or barangay level.[134]

For reasons discussed below, I respectfully submit that Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code are not unconstitutionally overbroad and must therefore remain fully operative.

i. Limitation on Candidacy Regardless of
Incumbent Appointive Official's Position, is Valid


The ponencia declares that the assailed provisions are overly broad because they are made to apply indiscriminately to all civil servants holding appointive posts, without due regard for the type of position being held by the employee running for elective office and the degree of influence that may be attendant thereto.

Apparently, the ponencia assumes that the evils sought to be prevented by the assailed provisions are made possible only when the incumbent appointive official running for elective office holds a position of influence. For this reason, it would limit the application of the challenged restriction solely to incumbent appointive officials in positions of influence.

Regrettably, the ponencia manifestly fails to take into account a different kind of possible threat to the government created by the partisan potential of a large and growing bureaucracy: the danger of systematic abuse perpetuated by a "powerful political machine" that has amassed "the scattered powers of government workers" so as to give itself, and its incumbent workers an "unbreakable grasp on the reins of power."[135]

Attempts by government employees to wield influence over others or to make use of their respective positions (apparently) to promote their own candidacy may seem tolerable - even innocuous - particularly when viewed in isolation from other similar attempts by other government employees. Yet it would be decidedly foolhardy to discount the equally (if not more) realistic and dangerous possibility that such seemingly disjointed attempts, when taken together, constitute a veiled effort on the part of a reigning political party to advance its own agenda through a "carefully orchestrated use of [appointive and/or elective] officials"[136] coming from various levels of the bureaucracy.

I respectfully submit that the avoidance of such a "politically active public work force"[137] which could give a political machine an "unbreakable grasp on the reins of power"[138] is reason enough to impose a restriction on the candidacies of all appointive public officials without further distinction as to the type of positions being held by such employees or the degree of influence that may be attendant thereto.

ii. Limitation on Candidacy
Regardless of Type of Office Sought, is Valid


The ponencia also maintains that the assailed provisions are overly broad because they are made to apply indiscriminately to all civil servants holding appointive offices, without due regard for the type of elective office being sought, whether it be partisan or nonpartisan in character, or in the national, municipal or barangay level.[139]

Adhering to the view that "the concerns of a truly partisan office and the temptations it fosters are sufficiently different from those involved in an office removed from regular party politics [so as] to warrant distinctive treatment"[140] in a statute similar to the ones being assailed, the ponencia would have the challenged restriction on candidacy apply only in situations where the elective office sought is partisan in character. To the extent, therefore, that it supposedly operates to preclude even candidacies for nonpartisan elective offices, the ponencia pronounces the challenged restriction as overbroad.

Again, I respectfully disagree. A careful review, however, of the assailed provisions and related laws on the matter will readily show that the perceived overbreadth is more apparent than real.

A perusal of Resolution 8678 will immediately disclose that the rules and guidelines set forth therein refer to the filing of certificates of candidacy and nomination of official candidates of registered political parties, in connection with the May 10, 2010 National and Local Elections.[141] Obviously, these rules and guidelines, including the restriction in Section 4(a) of Resolution 8678, were issued specifically for purposes of the May 10, 2010 National and Local Elections, which, it must be noted, are decidedly partisan in character. Thus, it is clear that the restriction in Section 4(a) of RA 8678 applies only to the candidacies of appointive officials vying for partisan elective posts in the May 10, 2010 National and Local Elections. On this score alone, the overbreadth challenge leveled against Section 4(a) is clearly unsustainable.

Similarly, a fair reading of Section 13 of RA 9369 and Section 66 of the Omnibus Election Code, in conjunction with other related laws on the matter, will confirm that these provisions are likewise not intended to apply to elections for nonpartisan public offices.

The only elections which are relevant to the issue at bar are the elections for barangay offices, since these are the only elections in this country which involve nonpartisan public offices.[142]

In this regard, it is well to note that from as far back as the enactment of the Omnibus Election Code in 1985, Congress has intended that these nonpartisan barangay elections should be governed by special rules, including a separate rule on deemed resignations which is found in Section 39 of the Omnibus Election Code. Said provision states:

Section 39. Certificate of Candidacy. - No person shall be elected punong barangay or kagawad ng sangguniang barangay unless he files a sworn certificate of candidacy in triplicate on any day from the commencement of the election period but not later than the day before the beginning of the campaign period in a form to be prescribed by the Commission. The candidate shall state the barangay office for which he is a candidate.

x x x x

Any elective or appointive municipal, city, provincial or national official or employee, or those in the civil or military service, including those in government-owned or-controlled corporations, shall be considered automatically resigned upon the filing of certificate of candidacy for a barangay office.

Since barangay elections are governed by a separate deemed resignation rule, under the present state of law, there would be no occasion to apply the restriction on candidacy found in Section 66 of the Omnibus Election Code, and later reiterated in the proviso of Section 13 of RA 9369, to any election other than a partisan one. For this reason, the overbreadth challenge raised against Section 66 of the Omnibus Election Code and Section 13 of RA 9369 must again fail.

In any event, assuming, for the sake of argument, that Section 66 of the Omnibus Election Code and the corresponding proviso in Section 13 of RA 9369 are general rules intended to apply also to elections for nonpartisan public offices, it is respectfully submitted that the overbreadth challenge mounted against said provisions would be just as futile.

In the first place, the view that Congress is limited to controlling only partisan behavior has not received judicial imprimatur. As previously discussed, the ruling case law in the United States tells us that the government has an interest in regulating the conduct and speech of its employees that differs significantly from those it possesses in connection with regulation of the speech of the citizenry in general.[143]

Moreover, in order to have a statute declared as unconstitutional or void on its face for being overly broad, particularly where, as in this case, "conduct" and not "pure speech" is involved, the overbreadth must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep.[144]

In operational terms, measuring the substantiality of a statute's overbreadth would entail, among other things, a rough balancing of the number of valid applications compared to the number of potentially invalid applications.[145] In this regard, some sensitivity to reality is needed; an invalid application that is far-fetched does not deserve as much weight as one that is probable.[146] The question is a matter of degree.[147] Thus, assuming for the sake of argument that the partisan-nonpartisan distinction is valid and necessary such that a statute which fails to make this distinction is susceptible to an overbreadth attack, the overbreadth challenge presently mounted must demonstrate or provide this Court with some idea of the number of potentially invalid elections (i.e., the number of elections that were insulated from party rivalry but were nevertheless closed to appointive employees) that may in all probability result from the enforcement of the statute.[148]

The record of the case at bar, however, does not permit us to find overbreadth. Borrowing from the words of Magill, indeed, such a step is not to be taken lightly, much less to be taken in the dark,[149] especially since an overbreadth finding in this case would effectively prohibit the state from enforcing an otherwise valid measure against conduct that is admittedly within its power to proscribe.[150]

At this juncture, it is well to note that the application of the overbreadth doctrine in the analysis of statutes that purportedly attempt to restrict or burden the exercise of a First Amendment right is manifestly strong medicine that must be employed by the Court sparingly, and only as a last resort.[151] This is because 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, thereby increasing the possible harm to society that may result from permitting some unprotected speech or conduct to go unpunished.

Thus, claims of facial overbreadth have been entertained only where, in the judgment of the court, the possible harm to society in permitting some unprotected speech or conduct to go unpunished is outweighed by the possibility that the protected speech of others may be muted, and perceived grievances left to fester because of the possible inhibitory effects of overly broad statutes.[152] Also, facial overbreadth has not been invoked where a limiting construction could be placed on the challenged statute, and where the court could conceive of readily apparent constructions which would cure, or at least substantially reduce, the alleged overbreadth of the statute.[153]

I respectfully submit that the probable harm to society in permitting incumbent appointive officials to remain in office even as they actively pursue elective posts far outweighs the less likely evil of having arguably protected candidacies curtailed because of the possible inhibitory effect of a potentially overly broad statute. Thus, while the challenged provisions may deter protected conduct to some unknown extent, that effect - at best a prediction - cannot, with confidence, justify invalidating these statutes in toto and so prohibit the State from enforcing them against conduct that is concededly within its power and interest to proscribe.[154]

Where the historic or likely frequency of a statute's conceivably impermissible applications is relatively low, it may be more appropriate to guard against the statute's conceivably impermissible applications through case-by-case adjudication rather than through facial invalidation.[155]

A last word

The importance of the coming May 2010 national and local elections cannot be overstated. The country cannot afford an election which will be perceived as neither free nor fair. It is the bounden duty of this Court to protect the integrity of our electoral process from any suspicion of partisan bias. The people should see judges and justices wearing judicial and not political robes. A court that cannot elevate itself above politics cannot protect the rule of law.

Accordingly, I vote to DISMISS the petition.



[1] Guidelines on the Filing of Certificates of Candidacy and Nomination of Official Candidates of Registered Political Parties in Connection with the May 10, 2010 National and Local Elections; Annex A, Petition.

[2] Rollo, p. 23.

[3] Eleazar P. Quinto is the incumbent Undersecretary for Field Operations of the Department of Environment and Natural Resources; he intends to run for the position of Member, House Representatives for the 4th District of Pangasinan in the forthcoming 2010 elections. On the other hand, Gerino A. Tolentino is the incumbent OIC-Director, Land Management Bureau; he intends to run for the position of City Councilor for the 4th District of the City of Manila in the forthcoming 2010 elections.

[4] Rollo, p. 3.

[5] Id., pp. 5-7.

[6] Republic Act No. 8436 is entitled, "An Act Authorizing the Commission on Elections to Use and Automated Election System in the May 11, 1998 National or Local Elections and in Subsequent National and Local Electoral Exercises, Providing Funds Therefor and for Other Purposes. It took effect on December 22, 1997.

[7] Republic Act No. 9369 is entitled, "An Act Amending Republic Act No. 8436, Entitled "An Act Authorizing the Commission on Elections to use an Automated Election System in the May 11, 1998 National or Local Elections and in Subsequent National and Local Electoral Exercises, to Encourage Transparency, Credibility, Fairness and Accuracy of Elections, Amending for the Purpose Batas Pambansa Blg. 881, as amended, Republic Act No. 7166 and Other Related Election Laws, Providing Funds Therefor and for Other Purposes. It took effect on January 23, 2007.

[8] Henry P. Lanot, substituted by Mario S. Raymundo, and Charmie Q. Benavides v. Commission on Elections, et al., G.R. No. 164858, November 16, 2006, 507 SCRA 114.

[9] Rollo, p.10, citing Lanot v. COMELEC, id.

[10] Id. at p. 12.

[11] Id.

[12] Id. at 11-12.

[13] Id.

[14] Id. at 12-13.

[15] Broadrick v. Oklahoma, 413 U.S. 601, 606, 93 S.Ct. 2908, 2912, 37 L.Ed.2d 830 (1973).

[16] Id.

[17] Effective June 21, 1947. This expressly repealed Commonwealth Act No. 357 and Commonwealth Act No. 666, viz.:

SECTION 190. Repeal of laws. -- Commonwealth Acts Numbered Three hundred and fifty-seven, Six hundred and fifty-seven, Six hundred and sixty-six, Seven hundred and twenty-five, and all other acts or parts of acts inconsistent with this Code are hereby repealed.

[18] G.R. No. L-9669, January 31, 1956, 98 Phil. 364.

[19] Id. at 369-371.

[20] Id. at 371-381.

[21] G.R. No. L-9688, January 19, 1956, 98 Phil. 194.

[22] Id. at 195-197.

[23] Monroy v. Court of Appeals, et al., G.R. No. L-23258, July 1, 1967, 20 SCRA 620, 625.

[24] Id.

[25] Id.

[26] Effective September 2, 1971. This expressly repealed the Revised Election Code of 1947, thus:

SECTION 249. Repealing Clause. -- Republic Act Numbered One hundred and eighty, otherwise known as the "Revised Election Code," as amended, and Republic Act Numbered Three thousand five hundred and eighty-eight, as amended, are hereby repealed. All other laws, executive orders, rules and regulations, or parts thereof, inconsistent with the provisions of this Code are hereby repealed, amended or modified accordingly.

[27] Effective February 7, 1978. The Election Code of 1971 was expressly repealed pursuant to Section 202 of the 1978 Election Code, which states:

SECTION 202. Repealing Clause. -- The Election Code of 1971 is hereby repealed, and all other laws, executive orders, rules and regulations, or parts thereof inconsistent with the provisions of this Code are also repealed, amended or modified accordingly.

[28] The pertinent Whereas clauses of Presidential Decree No. 1659 provide:

WHEREAS, under the above quoted provision of Section 30 of the 1978 Election Code, governors, mayors, sangguniang members or barangay officials are "considered or forced leave of absence from office" upon filing of a certificate of candidacy irrespective of whether these officials are running for the same office which they are holding or for another office;

WHEREAS, it is anticipated that applying the aforequoted provision of Section 30 in the local elections on January 30, 1980, may give rise to chaos and confusion due to the difficulty of designating promptly and immediately the replacements of such officials to assure the continuity and stability of local governments.

[29] Effective December 29, 1979. Presidential Decree No. 1659 is entitled "DEFINING THE STATUS OF OFFICIALS OCCUPYING ELECTIVE POSITIONS WHO RUN FOR OFFICE OTHER THAN THAT WHICH THEY ARE HOLDING."

[30] Effective December 29, 1979. Presidential Decree No. 1659-A is entitled "AMENDING SECTION ONE OF PRESIDENTIAL DECREE NUMBERED SIXTEEN HUNDRED FIFTY-NINE."

[31] Section 1, Presidential Decree No. 1659-A.

N.B. Both Presidential Decree No. 1659 and Presidential Decree No. 1659-A were issued on December 29, 1979. The former amended the 1978 Election Code in this wise:

SECTION 1. Candidate holding elective office. -- Any person occupying an elective provincial, city, municipal, or municipal district position who runs for an office other than the one which he is holding shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy; Provided, however, That during the pendency of the election, the President may appoint said candidate to the office for which he filed a certificate of candidacy.

However, a minor amendment was effected by Presidential Decree No. 1659-A to clarify that the appointment of the candidate in an acting capacity to the office for which he filed a certificate of candidacy applies only when such office had been rendered vacant by virtue of the deemed resignation of the person who previously held the office (i.e., if the previous official ran for an office other than that which he was holding, and was therefore deemed ipso facto resigned upon the filing of his certificate of candidacy.)

[32] The Omnibus Election Code repealed the 1978 Election Code, thus:

SECTION 282. Repealing clause. -- Presidential Decree No. 1296, otherwise known as The 1978 Election Code, as amended, is hereby repealed. All other election laws, decrees, executive orders, rules and regulations, or parts thereof, inconsistent with the provisions of this Code are hereby repealed, except Presidential Decree No. 1618 and Batas Pambansa Blg. 20 governing the election of the members of the Sangguniang Pampook of Regions IX and XII.

[33] G.R. No. 96859, October 15, 1991, 202 SCRA 779.

[34] Records of the Batasang Pambansa, 8 October 1985.

[35] Records of the Batasang Pambansa, 21 October 1985.

[36] Dimaporo v. Mitra et al., supra note 33 at 787-789.

[37] Id. at 793-795.

[38] G.R. No. 132774, June 21, 1999, 308 SCRA 770.

[39] G.R. No. 100947, May 31, 1993, 222 SCRA 831.

[40] Id. at 840-841.

[41] Records of the Bicameral Conference Committee, December 16, 1997, pp. 42-46, 55-57, 131-139.

[42] Effective March 20, 2001. Republic Act No. 9006 is entitled "AN ACT TO ENHANCE THE HOLDING OF FREE, ORDERLY, HONEST, PEACEFUL AND CREDIBLE ELECTIONS THROUGH FAIR ELECTION PRACTICES."

[43] Records of the Senate, February 7, 2001, p. 177.

[44] Issued on March 1, 2001. COMELEC Resolution No. 3636 is entitled "RULES AND REGULATIONS IMPLEMENTING REPUBLIC ACT NO. 9006 OTHERWISE KNOWN AS "FAIR ELECTION ACT" FOR THE MAY 14, 2001 NATIONAL AND LOCAL ELECTIONS."

[45] G.R. No. 147387, December 10, 2003, 417 SCRA 503.

[46] Supra note 8.

[47] Rollo, p.10, citing Lanot v. COMELEC, id.

[48] Id. at 12.

[49] Id.

[50] Id. at 11-12.

[51] Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987 provides:

Section 55. Political Activity. -- No officer or employee in the Civil Service including members of the Armed Forces, shall engage directly or indirectly in any partisan political activity or take part in any election except to vote nor shall he use his official authority or influence to coerce the political activity of any other person or body.

Additionally, Sections 46(b)(26), Chapter 6, Subtitle A, Title I, Book V of the same Code provides:

Section 44. Discipline: General Provisions:

x x x x

(b) The following shall be grounds for disciplinary action:

x x x x

(26) Engaging directly or indirectly in partisan political activities by one holding a non-political office.

x x x x

[52] Corona, et al. v. Court of Appeals, et al., G.R. No. 97356, September 30, 1992, 214 SCRA 378, 392.

[53] G.R. No. 149072, September 21, 2007, 533 SCRA 623.

[54] Id. at 635-636.

[55] Infra.

[56] 476 F.2d 187 (1973).

[57] In re Hess, 23 A. 2d. 298, 301, 20 N.J. Misc. 12.

[58] Id.

[59] Lawson v. United States, 176 F2d 49, 51, 85 U.S. App. D.C. 167.

[60] Crescent Ring Co. v. Traveler's Indemnity Co., 132 A. 106, 107, 102 N.J. Law 85.

[61] Du Bell v. Union Central Life Ins. Co., 29, So. 2d 709, 712; 211 La. 167; Auyong Hian v. Court of Tax Appeals, 59 SCRA 110, 120 (1974).

[62] Morales v. Paredes, 55 Phil. 565, 567; Cinco, et al. v. Sandiganbayan, et al., G.R. Nos. 92362-67, October 15, 1991, 202 SCRA 726, 736.

[63] Supra note 45.

[64] Majority Decision, p. 17.

[65] Id. at 15.

[66] Id. at 17.

[67] Id.

[68] Farinas, et al. v. Executive Secretary, et al., supra note 45 at 512-513.

[69] Id. at 525-528.

[70] Crescent Ring Co. v. Traveler's Indemnity Co, supra note 60.

[71] Villanueva, Jr. v. Court of Appeals, et al., G.R. No. 142947, March 19, 2002, 379 SCRA 463, 469 citing 21 Corpus Juris Secundum §190.

[72] Id. at 469-470.

[73] Id. at 470.

[74] Id.

[75] Id.

[76] Infra.

[77] Grosjean v. American Press Co., 297 U.S. 233, 243, 56 S.Ct. 444, 446, 80 L.Ed. 660 (1936).

[78] Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 544, 83 S.Ct. 889, 892-93, 9 L.Ed.2d 929 (1963).

[79] Carver v. Dennis, 104 F.3d 847, 65 USLW 2476 (1997); American Constitutional Law Foundation, Inc. v. Meyer, 120 F.3d 1092, 1101 (1997); NAACP, Los Angeles Branch v. Jones, 131 F.3d 1317, 1324 (1997); Brazil-Breashears v. Bilandic, 53 F.3d 789, 792 (1995). See also Bullock v. Carter, 405 U.S. 134, 143, 92 S.Ct. 849, 855-56, 31 L.Ed.2d 92 (1972), quoted in Clements v. Fashing, 457 U.S. 957, 963, 102 S.Ct. 2836, 2843, 73 L.Ed.2d 508 (1982).

[80] 677 F.2d 622, 624 (1982).

[81] 558 F.2d 825 (1977).

[82] See, e.g., Buckley v. Valeo, 424 U.S. 1, 39-59, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam); Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972); Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968).

[83] See Developments in the Law Elections, 88 Harv.L.Rev. 1111, 1135 n. 81, 1218 (1975).

[84] Supra note 79.

[85] Id. See also Clements v. Fashing, supra note 79.

[86] 413 U.S. 548, 93 S.Ct. 2880 (1973).

[87] 413 U.S. 601, 93 S.Ct. 2908 (1973).

[88] The provision states:
An employee in an Executive agency or an individual employed by the government of the District of Columbia may not-

(1) use his official authority or influence for the purpose of interfering with or affecting the result of an election; or

(2) take an active part in political management or in political campaigns. `For the purpose of this subsection, the phrase `an active part in political management or in political campaigns' means those acts of political management or political campaigning which were prohibited on the part of employees in the competitive service before July 19, 1940, by determinations of the Civil Service Commission under the rules prescribed by the President.
[89] 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968).

[90] See, e.g., Rosario v. Rockefeller, 410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1 (1973); Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 999, 31 L.Ed.2d 274 (1972); Bullock v. Carter, 405 U.S. 134, 140-141, 92 S.Ct. 849, 854-855, 31 L.Ed.2d 92 (1972); Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971); Williams v. Rhodes, 393 U.S. 23, 30-31, 89 S.Ct. 5, 10-11, 21 L.Ed.2d 24 (1968).

[91] The section reads as follows:
(1) No person in the classified service shall be appointed to, or demoted or dismissed from any position in the classified service, or in any way favored or discriminated against with respect to employment in the classified service because of his political or religious opinions or affiliations, or because of race, creed, color or national origin or by reason of any physical handicap so long as the physical handicap does not prevent or render the employee less able to do the work for which he is employed.

(2) No person shall use or promise to use, directly or indirectly, any official authority or influence, whether possessed or anticipated, to secure or attempt to secure for any person an appointment or advantage in appointment to a position in the classified service, or an increase in pay or other advantage in employment in any such position, for the purpose of influencing the vote or political action of any person, or for consideration; provided, however, that letters of inquiry, recommendation and reference by public employees of public officials shall not be considered official authority or influence unless such letter contains a threat, intimidation, irrelevant, derogatory or false information.

(3) No person shall make any false statement, certificate, mark, rating, or report with regard to any test, certification or appointment made under any provision of this Act or in any manner commit any fraud preventing the impartial execution of this Act and rules made hereunder.

(4) No employee of the department, examiner, or other person shall defeat, deceive, or obstruct any person in his or her right to examination, eligibility, certification, or appointment under this law, or furnish to any person any special or secret information for the purpose of effecting (sic) the rights or prospects of any person with respect to employment in the classified service.

(5) No person shall, directly or indirectly, give, render, pay, offer, solicit, or accept any money, service, or other valuable consideration for or on account of any appointment, proposed appointment, promotion, or proposed promotion to, or any advantage in, a position in the classified service.

(6) No employee in the classified service, and no member of the Personnel Board shall, directly or indirectly, solicit, receive, or in any manner be concerned in soliciting or receiving any assessment, subscription or contribution for any political organization, candidacy or other political purpose; and no state officer or state employee in the unclassified service shall solicit or receive any such assessment, subscription or contribution from an employee in the classified service.

(7) No employee in the classified service shall be a member of any national, state or local committee of a political party, or an officer or member of a committee of a partisan political club, or a candidate for nomination or election to any paid public office, or shall take part in the management or affairs of any political party or in any political campaign, except to exercise his right as a citizen privately to express his opinion and to cast his vote.

(8) Upon a showing of substantial evidence by the Personnel Director that any officer or employee in the state classified service, has knowingly violate any of the provisions of this Section, the State Personnel Board shall notify the officer or employee so charged and the appointing authority under whose jurisdiction the officer or employee serves. If the officer or employee so desires, the State Personnel Board shall hold a public hearing, or shall authorize the Personnel Director to hold a public hearing, and submit a transcript thereof, together with a recommendation, to the State Personnel Board. Relevant witnesses shall be allowed to be present and testify at such hearings. If the officer or employee shall be found guilty by the State Personnel Board of the violation of any provision of this Section, the Board shall direct the appointing authority to dismiss such officer or employee; and the appointing authority so directed shall comply.
[92] United States Civil Service Commission v. National Association of Letter Carriers, AFL-CIO, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796.

[93] Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). See Grayned v. City of Rockford, 408 U.S. 104, 108-114, 92 S.Ct. 2294, 2298-2302, 33 L.Ed.2d 222 (1972); Colten v. Kentucky, 407 U.S. 104, 110-111, 92 S.Ct. 1953, 1957-1958, 32 L.Ed.2d 584 (1972); Cameron v. Johnson, 390 U.S. 611, 616, 88 S.Ct. 1335, 1338, 20 L.Ed.2d 182 (1968).

[94] See also Anderson v. Evans, 660 F2d 153 (1981).

[95] 560 F.2d 22 (1977).

[96] The relevant charter provisions read as follows:
x x x x

(5) No appointed official, employee or member of any board or commission of the city, shall be a member of any nation-al, state or local committee of a political party or organization, or an officer of a partisan political organization, or take part in a political campaign, except his right privately to express his opinion and to cast his vote.

(6) No appointed official or employee of the city and no member of any board or commission shall be a candidate for nomination or election to any public office, whether city, state or federal, except elected members of boards or commissions running for re-election, unless he shall have first resigned his then employment or office.

x x x x

[97] See also Davis, R., Prohibiting Public Employee from Running for Elective Office as Violation of Employee's Federal Constitutional Rights, 44 A.L.R. Fed. 306.

[98] Alderman v. Philadelphia Housing Authority, 496 F.2d 164, 171 n. 45 (1974).

[99] Fernandez v. State Personnel Board, et al., 175 Ariz. 39, 852 P.2d 1223 (1993).

[100] 502 F.Supp. 1282 (1980).

[101] Broadrick v. Oklahoma, 413 U.S. 601, 606, 93 S.Ct. 2908, 2912, 37 L.Ed.2d 830 (1973) (state civil service); United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 564, 93 S.Ct. 2880, 2889, 37 L.Ed.2d 796 (1973) (federal civil service); Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1969) (public school teachers); Blameuser v. Andrews, 630 F.2d 538 at 542-543 (7th Cir., 1980) (military officers).

[102] 565 F.2d at 299-303.

[103] Ichong v. Hernandez, 101 Phil. 1155, 1164 (1957); Sison v. Ancheta, et al., G.R. No. L-59431, July 25, 1984, 130 SCRA 654, 662; Association of Small Landowners in the Philippines v. Secretary of Agrarian Reform, G.R. No. 78742, July 14, 1989, 175 SCRA 343, 375.

[104] The Philippine Judges Association, et al. v. Prado, et al., G.R. No. 105371, November 11, 1993, 227 SCRA 703, 712.

[105] Id.

[106] Id.

[107] The National Police Commission v. De Guzman, et al., G.R. No. 106724, February 9, 1994, 229 SCRA 801, 809.

[108] People v. Cayat, 68 Phil. 12, 18 (1939).

[109] Nordlinger v. Hahn, 505 U.S. 1, 112 S.Ct. 2326, 2332, 120 L.Ed.2d 1 (1992).

[110] Chamber of Commerce of the U.S.A. v. New Jersey, 89 N.J. 131, 159, 445 A.2d 353 (1982).

[111] Werner v. Southern California Associated Newspapers, 35 Cal.2d 121, 216 P.2d 825 (1950).

[112] Id.

[113] Newark Superior Officers Ass'n v. City of Newark, 98 N.J. 212, 227, 486 A.2d 305 (1985).

[114] Id.; New Jersey State League of Municipalities, et al. v. State of New Jersey, 257 N.J.Super. 509, 608 A.2d 965 (1992).

[115] Majority Decision, pp. 22-23.

[116] Id. at 23.

[117] De Guzman, et al. v. Commission on Elections, G.R. No. 129118, July 19, 2000, 336 SCRA 188, 197; City of St. Louis v. Liberman, 547 S.W.2d 452 (1977); First Bank & Trust Co. v. Board of Governors of Federal Reserve System, 605 F.Supp. 555 (1984); Richardson v. Secretary of Labor, 689 F.2d 632 (1982); Holbrook v. Lexmark International Group, Inc., 65 S.W.3d 908 (2002).

[118] Cleland v. National College of Business, 435 U.S. 213, 220, 98 S.Ct. 1024, 55 L.Ed.2d 225 (1978) citing Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 489, 75 S.Ct. 461, 99 L.Ed. 563 (1955); Holbrook v. Lexmark International Group, Inc., id.; People v. Silva 27 Cal.App.4th 1160, 1170-1171, 33 Cal.Rptr.2d 181 (1994); People v. Fitch, 55 Cal.App.4th 172, 63 Cal.Rptr.2d 753 (1997).

[119] State v. Ewing, 518 S.W.2d 643 (1975); Werner v. Southern California Associated Newspapers, supra note 111.

[120] State v. Ewing, id.; Lutz v. Araneta, 98 Phil. 148, 153 (1955); Tolentino v. Secretary of Finance, et al., G.R. No. 115455, August 25, 1994, 235 SCRA 630, 684; De Guzman, et al. v. Commission on Elections, supra note 117; Re: (a) Request of Assistant Court Administrators for Upgrading of their Rank, Salary and Privileges upon the Effectivity of Republic Act No. 9282 Elevating the Court of Tax Appeals to the Level of the Court of Appeals and (b) Grant of Special Distortion Allowance to Positions in the Judiciary with Rank of Judges of Metropolitan Trial Courts, Assistant Clerk of Court of the Court of Appeals and Division Clerks of Court of the Court of Appeals, A.M. No. 03-10-05-SC, October 1, 2004, 440 SCRA 16, 31; Werner v. Southern California Associated Newspapers, supra note 111.

[121] State v. Ewing, id.; Williamson v. Lee Optical of Oklahoma, supra note 118.

[122] Chicago National League Ball Club, Inc. v. Thompson, 108 Ill.2d 357, 91 Ill.Dec. 610, 483 N.E.2d 1245 (1985); People v. Adams, 144 Ill.2d 381, 581 N.E.2d 637, 163 Ill.Dec. 483 (1991).

[123] Supra note 114.

[124] Greenberg v. Kimmelman, 99 N.J. 552, 577, 494 A.2d 294 (1985).

[125] Drew Assocs. of N.J., L.P. v. Travisano, 122 N.J. 249, 258, 584 A.2d 807 (1991).

[126] Piscataway Tp. Bd. of Ed. v. Caffiero, 86 N.J. 308, 324-25, 431 A.2d 799 (1981); ADA Financial Serv. Corp. v. New Jersey, 174 N.J.Super. 337, 348, 416 A.2d 908 (1979).

[127] Taxpayers Ass'n of Weymouth Tp. v. Weymouth Tp., 80 N.J. 6, 40, 364 A.2d 1016 (1976).

[128] Robbiani v. Burke, 77 N.J. 383, 392-93, 390 A.2d 1149 (1978).

[129] Drew Assocs. of N.J., L.P. v. Travisano, supra note 125.

[130] New Jersey State League of Municipalities, et al. v. State of New Jersey, supra note 114.

[131] Taule v. Santos, et al., G.R. No. 90336, August 12, 1991, 200 SCRA 512, 519.

[132] Id.

[133] Majority Decision, pp. 25-26.

[134] Id.

[135] Magill v. Lynch, supra note 95.

[136] Id.

[137] Id.

[138] Id.

[139] Majority Opinion, p. 26.

[140] Id. at 27, citing Mancuso v. Taft, supra note 56.

[141] See rollo, p.3 where the titular heading, as well as the first paragraph of Resolution 8678, refers to the contents of said Resolution as the "guidelines on the filing of certificates of candidacy and nomination of official candidates of registered political parties in connection with the May 10, 2010 National and Local Elections."

[142] The Sangguniang Kabataan elections, although nonpartisan in character, are, arguably, not relevant to the present inquiry because they are unlikely to involve the candidacies of appointive public officials.

[143] Smith v. Ehrlich, 430 F. Supp. 818 (1976).

[144] Broadrick v. Oklahoma, supra note 87.

[145] Magill v. Lynch, supra note 95.

[146] Id.

[147] Id.

[148] Id.

[149] Id.

[150] Broadrick v. Oklahoma, supra note 87.

[151] Id.

[152] Id.

[153] Mining v. Wheeler, 378 F. Supp. 1115 (1974).

[154] Broadrick v. Oklahoma, supra note 87.

[155] Aiello v. City of Wilmington, Delaware, 623 F.2d 845 (1980).





DISSENTING OPINION

CARPIO, J.:

I join Chief Justice Reynato S. Puno in his dissent.

The law is plain, clear and unequivocal that appointive public officialsare deemed automatically resigned from office upon filing their certificates of candidacy. Paragraph 3, Section 11 of Republic Act No. 8436, as amended by Republic Act No. 9369, provides:

For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition of registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall effect only upon that start of the aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers, and employees in government-owned or-controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certificate of candidacy. (Emphasis supplied)

The final proviso in paragraph 3, Section 11 of RA No. 8436, as amended, is a mere reiteration of Section 66 of the Omnibus Election Code, which provides:

Section 66. Candidates holding appointive office or positions. -- Any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso factoresigned from his office upon the filing of his certificate of candidacy.

Congress inserted the final proviso to clarify that Section 66 of the Omnibus Election Code still applies despite the second sentence in the paragraph 3 of Section 11, which states that a person who files a certificate of candidacy is considered a candidate only upon the start of the campaign period.

The final proviso in paragraph 3, Section 11 of RA No. 8436, as amended, and Section 66 of the Omnibus Election Code are constitutional.

First. Appointive public officials arecivil service officers or employees. Section 2(1), Article IX-B of the 1987 Constitution provides:

The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters.

The Constitution expressly prohibits civil service officers and employees from engaging in any electioneering or partisan political activity. Section 2(4), Article IX-B of the 1987 Constitution provides:

No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political activity. (Emphasis supplied)

Since the Constitution also provides that suffrage "may be exercised by all citizens,"[1] Section 2(4) of Article IX-B does not prohibit civil service officers and employees from voting.[2] Thus, civil service officers and employees cannot engage in any electioneering or partisan political activity except to vote. This is clear from the second paragraph of Section 3(3), Article XVI of the 1987 Constitution, which provides:

No member of the military shall engage directly or indirectly in any partisan political activity, except to vote. (Emphasis supplied)

The Civil Service laws[3] implement this constitutional ban by stating that civil service officers and employees cannot engage in any partisan political activity except to vote. Section 55, Chapter 7, Title I, Book V of the Administrative Code of 1987 provides:

Section 55. Political Activity. -- No officer or employee in the Civil Service including members of the Armed Forces, shall engage directly or indirectly in any partisan political activity or take part in any election except to votenor shall he use his official authority or influence to coerce the political activity of any other person or body. xxx. (Emphasis supplied)

Likewise, the Omnibus Election Code penalizes civil service officers and employees who engage in any partisan political activity except to vote. Section 261 (i) of the Omnibus Election Code states:

Section 261. Prohibited Acts. -- The following shall be guilty of an election offense:

xxxx

(i) Intervention of public officers and employees. -- Any officer or employee in the civil service, except those holding political offices; any officer, employee, or member of the Armed Forces of the Philippines, or any police force, special forces, home defense forces, barangay self-defense units and all other para-military units that now exist or which may hereafter be organized who, directly or indirectly, intervenes in any election campaign or engages in any partisan political activity, except to voteor to preserve public order, if he is a peace officer. (Emphasis supplied)

Filing a certificate of candidacy is in itself a partisan political activity. It is a public announcement that one is running for elective public office. It is a necessary act for election to public office, and promotes one's candidacy to public office. Running for public office, or exercising the right to be voted for, is different from, and not part of, the right to vote. The only partisan political activity allowed to civil service officers and employees is to vote. Filing a certificate of candidacy is a partisan political activity not allowed to civil service officers and employees. An appointive public official who files a certificate of candidacy violates the express constitutional ban on civil service officers from engaging in any partisan political activity except to vote.

Thus, the law may validly provide that an appointive public official is automatically deemed resigned upon filing a certificate of candidacy. This merely implements the constitutional ban on civil service officers and employees from engaging in any partisan political activity except to vote.

Second. There is a substantial distinction between an appointive public official and an elective public official for purposes of considering only appointive public officials as deemed resigned upon the filing of certificate of candidacy. Appointive public officials are chosen by the appointing power and not elected by the people. They do not have to renew their mandate periodically unlike elective public officials. They also do not have term limits unlike elective public officials.

Most important of all, the constitutional ban on civil service officers and employees from engaging in any partisan political activity applies to appointive public officials but not to elective public officials. By the very nature of their office, elective public officials engage in partisan political activities almost all year round, even outside of the campaign period. , because of all these substantial distinctions, there is no violation of the equal protection clause when the law mandates that only appointive public officials, and not elective public officials, are deemed automatically resigned upon the filing of certificate of candidacy.

Third. The final provisoon the automatic resignation of appointive public officials in paragraph 3, Section 11 of RA No. 8436, as amended by RA No. 9369, qualifies the second sentencein paragraph 3 that, "Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy; xxx." In short, the final proviso clearly excludes appointive public officials from the operation of the second sentence. This is the plain, clear and unequivocal language of the law.

Fourth. The automatic resignation of appointive public officials upon the filing of certificate of candidacy has been in the statute books for more than 100 years. The earliest law on the matter is Act No. 1582 or the first Election Law enacted by the Philippine Commission in 1907. Section 29 of Act No. 1582[4] provides:

Section 29. Penalties upon officers. --- xxx.

No public officer shall offer himself as a candidate for election, nor shall he be eligible during the time that he holds said public office to election, at any municipal, provincial or Assembly election, except for reelection to the position which he may be holding,and no judge of the Court of First Instance xxx. (Emphasis supplied)

Even this law allowed elective public officers who sought "reelection" to hold on to their office, distinguishing them from appointive public officials who were not allowed to hold on to their office if they sought election.

Fifth. One can just imagine the anomaly, conflict and tension that will arise if the Provincial Director of the Philippine National Police, or the Philippine Army Commander whose troops are stationed within the province, will file a certificate of candidacy for governor of the province on 1 December 2009 for the 10 May 2010 elections. If the PNP Provincial Director or Army Commander is not considered automatically resigned from office, he has until the start of the campaign period on 26 March 2010 to remain in his post, in command of hundreds, if not thousands, of fully-armed personnel. This is a disaster waiting to happen.

In sum, appointive public officials can validly be deemed automatically resigned upon the filing of certificate of candidacy, as provided in the final proviso of paragraph 3, Section 11 of RA No. 8436, as amended by RA No. 9369, as well as in Section 66 of the Omnibus Election Code. These provisions merely implement the constitutional ban in Section 2(4) of Article IX-B, and Section 3(3) of Article XVI, of the 1987 Constitution.

Accordingly, I vote to DISMISSthe petition.



[1] Section 1, Article V of the 1987 Constitution provides: "Section 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage."

[2] Both the 1935 and 1973 Constitutions contained the phrase "except to vote." Thus, Section 2, Article XII of the 1935 Constitution provides: "Section 2. Officers and employees in the Civil Service, including members of the armed forces, shall not engage directly or indirectly in partisan political activities or take part in any election except to vote." Section 5, Article XII-B of the 1973 Constitution provides: "Section 5. No officer or employee in the Civil Service, including members of the armed forces, shall engage directly or indirectly, in any partisan political activity or take part in any election except to vote."

[3] Section 29 of the Civil Service Act of 1959 (RA No. 2260) provides: "Section 29. Political Activity. -- Officers and employees in the civil service, whether in the competitive or classified, or non-competitive or unclassified service, shall not engage directly or indirectly in partisan political activities or take part in any election except to vote. xxx. " Similar provisions appear in the charters of government agencies. Section 5, Article XII-B of the 1973 Constitution also provides: "No officer or employee in the Civil Service, including members of the armed forces, shall engage directly or indirectly, in any partisan political activity or take part in any election except to vote."

[4] Section 29 of Act No. 1582 is quoted in the ponencia.





DISSENTING OPINION

CARPIO MORALES, J.

I dissent from the majority opinion which declares as unconstitutional the second proviso in the third paragraph of Section 13 of Republic Act No. 9369 (January 23, 2007) and Section 66 of Batas Pambansa Blg. 881 (December 3, 1985) or the Omnibus Election Code, respectively quoted as follows:

SEC. 13. Section 11 of Republic Act No. 8436 is hereby amended to read as follows:

Sec. 15. x x x

x x x Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers, and employees in government-owned or-controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certification of candidacy. (underscoring supplied)

x x x x
- - - - -

SEC. 66. Candidates holding appointive office or positions. - Any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. (underscoring supplied)

What petitioners assail, however, is paragraph (a) of Section 4 of Comelec Resolution No. 8678[1] (October 6, 2009) which mirrors the above-quoted provisions. Section 4 thereof provides:

SEC. 4. Effects of Filing Certificates of Candidacy.- a) Any person holding a public appointive office or position including active members of the Armed Forces of the Philippines, and other officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.

(b) Any person holding an elective office or position shall not be considered resigned upon the filing of his certificate of candidacy for the same or any other elective office or position. (underscoring supplied)

As presented by the ponencia, a parallel provision on persons holding elective office or position existed in Section 67 of the Omnibus Election Code (December 3, 1985) until it was repealed by Republic Act No. 9006 (February 12, 2001) or the Fair Election Act. Prior to the repeal, the provision was amplified by the first proviso of the third paragraph of Section 11 of Republic Act No. 8436 (December 22, 1997) otherwise known as the Election Automation Law until said proviso was rendered ineffective in 2001 by the Fair Election Act and was totally abandoned in 2007 by the amendatory law of Republic Act No. 9369.

In granting the petition, the ponencia eliminates the ipso facto resignation from public office by an appointive public official upon the filing of the certificate of candidacy, thereby removing the distinction between one holding an appointive position and one holding an elective position.

The ponencia revisits Fariñas v. The Executive Secretary,[2] notwithstanding its submission that the discussion therein on the equal protection clause was obiter dictum, albeit the issue was squarely raised therein.

The ponencia adds that Fariñas focused on the validity of the repeal of Section 67 (on elective positions) of the Omnibus Election Code and never posed a direct challenge to the constitutionality of retaining Section 66 (on appointive positions) thereof. En passant, I observe that neither is the constitutionality of Section 13 of Republic Act No. 9369 and Section 66 of Batas Pambansa Blg. 881 challenged by petitioners in the present case. What petitioners assail is, it bears repeating, Section 4(a) of Comelec Resolution No. 8678.

In Fariñas, the Court ruled:

The petitioners' contention, that the repeal of Section 67 of the Omnibus Election Code pertaining to elective officials gives undue benefit to such officials as against the appointive ones and violates the equal protection clause of the constitution, is tenuous.

The equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable classification. If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from the other. The Court has explained the nature of the equal protection guarantee in this manner:

The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not.

Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority.

Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987 (Executive Order No. 292), appointive officials, as officers and employees in the civil service, are strictly prohibited from engaging in any partisan political activity or take part in any election except to vote. Under the same provision, elective officials, or officers or employees holding political offices, are obviously expressly allowed to take part in political and electoral activities.

By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators deemed it proper to treat these two classes of officials differently with respect to the effect on their tenure in the office of the filing of the certificates of candidacy for any position other than those occupied by them. Again, it is not within the power of the Court to pass upon or look into the wisdom of this classification.

Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis-a-vis appointive officials, is anchored upon material and significant distinctions and all the persons belonging under the same classification are similarly treated, the equal protection clause of the Constitution is, thus, not infringed.[3] (italics in the original; underscoring supplied)

Fariñas pointed out at least three material and substantial distinctions that set apart elective officials from appointive officials (i.e., mandate of the electorate, removal from office only upon stringent conditions, no prohibition against partisan political activity). The ponencia does not dispute the presence of this set of distinctions as one of the grounds for a classification to be valid and non-violative of the equal protection clause.

The ponencia does not correlate the impact of the prohibition against partisan political activity on the provisions on ipso facto resignation. Section 55, Chapter 8, Title I, Subsection A, Book V of the Administrative Code of 1987[4] reads:

Sec. 55. Political Activity. - No officer or employee in the Civil Service including members of the Armed Forces, shall engage, directly or indirectly, in any partisan political activity or take part in any election except to vote nor shall he use his official authority or influence to coerce the political activity of any other person or body. Nothing herein provided shall be understood to prevent any officer or employee from expressing his views on current political problems or issues, or from mentioning the names of his candidates for public office whom he supports: Provided, That public officers and employees holding political offices may take part in political and electoral activities but it shall be unlawful for them to solicit contributions from their subordinates or subject them to any of the acts involving subordinates prohibited in the Election Code. (underscoring supplied)

To allow appointive officials to hang on to their respective posts after filing their certificate of candidacy will open the floodgates to countless charges of violation of the prohibition on partisan political activity. The filing of the certificate of candidacy is already deemed as a partisan political activity, which also explains why the appointive official is considered ipso facto resigned from public office upon the date of the filing of the certificate of candidacy, and not the date of the start of the campaign period. Pagano v. Nazarro, Jr.[5] teaches:

Clearly, the act of filing a Certificate of Candidacy while one is employed in the civil service constitutes a just cause for termination of employment for appointive officials. Section 66 of the Omnibus Election Code, in considering an appointive official ipso facto resigned, merely provides for the immediate implementation of the penalty for the prohibited act of engaging in partisan political activity. This provision was not intended, and should not be used, as a defense against an administrative case for acts committed during government service.[6] (emphasis and underscoring supplied)

The Court cannot look into the wisdom of the classification, as it runs the risk of either unduly magnifying the minutiae or viewing the whole picture with a myopic lens. The Court cannot strike down as unconstitutional the above-mentioned provisions without crossing the path of said Section 55 of the Administrative Code, among other things,[7] on political activity or without rebutting the apolitical nature of an appointive office. Section 55, however, is, as earlier stated, neither challenged in the present case, nor are Section 13 of Republic Act No. 9369 and Section 66 of the Omnibus Election Code.

While the ponencia admits that there are substantial distinctions, it avers that the requisite that the classification be germane to the purposes of the law is absent.

In discussing the underlying objectives of the law, the majority opinion identifies the evils sought to be prevented by the law and opines that these evils are present in both elective and appointive public offices. Ultimately, the ponencia kills the law and spares the evils. It raises arguments that lend support more to a parity of application of the ipso facto resignation than a parity of non-application of the ipso facto resignation.

In explaining Section 2 (4) of Article IX-B of the Constitution,[8] an eminent constitutionalist elucidated that the general rule is "intended to keep the Civil Service free of the deleterious effects of political partisanship."[9] Political partisanship, meanwhile, is the inevitable essence of a political office, elective positions included.

Unfortunately, the ponencia does not refute the apolitical nature of an appointive office. To the issues surrounding the policy of reserving political activities to political officers, the remedy is legislation.

The ponencia proceeds to discuss the right to run for public office in relation to the freedom of expression and of association. It cites Mancuso v. Taft,[10] a case decided by the United States Court of Appeals, First Circuit, involving a city home rule charter in Rhode Island, to buttress its conclusion and to persuade[11] that this jurisdiction too should follow suit.

In U.S. jurisdiction, however, the Hatch Act of 1939[12] which imposes limitations on the political activities of federal government employees is still considered good law. It prohibits government employees from running for or holding public office or participating in the campaign management for another. On two occasions, the Hatch Act has been brought to the US Supreme Court, both times based on First Amendment arguments that the prohibitions were unduly restrictive on the private constitutional liberties of government employees. The statute was upheld in both cases, United Public Workers of America v. Mitchell,[13] and United States Civil Service Commission v National Association of Letter Carriers.[14]

The Hatch Act has since been applied or copied in most states with respect to state or local government employees. While the spirit of the ruling in Mitchell has been questioned or overturned by inferior courts in cases assailing similar state laws or city charters (such as Mancuso), Mitchell has not, however, been overturned by the U.S. Supreme Court. An inferior court can never erode a Supreme Court decision.

Finally, a public employee holding appointive office or position, by accepting a non-political government appointment, binds himself to the terms and conditions of employment fixed by law. In one case, it was held that in government employment, "it is the legislature and, where properly given delegated power, the administrative heads of government which fix the terms and conditions of employment. And this is effected through the statutes or administrative circulars, rules, and regulations[,]"[15] part of which is the setting of standards for allowable limitations in the exercise of the rights of free expression and of assembly.[16]

WHEREFORE, I vote to DISMISS the petition.



[1] Entitled "Guidelines on the Filing of Certificates of Candidacy (CoC) and Nomination of Official Candidates of Registered Political Parties in connection with the May 10, 2010 National and Local Elections."

[2] 463 Phil. 179 (2003).

[3] Id. at 205-208.

[4] EXECUTIVE ORDER No. 292 (July 25, 1987).

[5] G.R. No. 149072, September 21, 2007, 533 SCRA 622.

[6] Id. at 635-636.

[7] OMNIBUS ELECTION CODE, Sec. 261(i) on election offenses; ADMINISTRATIVE CODE of 1987, Sec 44(b)(26) on grounds for disciplinary action.

[8] Sec. 2(4) reads: No officer or employee in the Civil Service shall engage, directly or indirectly, in any electioneering or partisan political campaign.

[9] JOAQUIN G. BERNAS, S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY (1996), p. 919.

[10] 476 F.2d 187, 190 (1973).

[11] Cases decided in foreign jurisdictions are merely persuasive in this jurisdiction.

[12] Formally cited as 5 USCA 7324, named after the bill's sponsor, New Mexico Senator Carl Hatch.

[13] 330 US 75 (1947).

[14] 413 US 548 (1973).

[15] Social Security System Employees Association (SSSEA) v. Court of Appeals, G.R. No. 85279, July 28, 1989, 175 SCRA 686, 697 citing Alliance of Government Workers v. Minister of Labor, G.R. No. 60403, August 3, 1983, 124 SCRA 1; vide supra note 7.

[16] Jacinto v. CA, 346 Phil. 656, 669 (1997).



Source: Supreme Court E-Library
This page was dynamically generated by the E-Library Content Management System (E-LibCMS)