[ G.R. No. 134096. March 3, 1999] JOSEPH PETER S. SISON, petitioner, vs. COMMISSION ON ELECTIONS, respondents .

D E C I S I O NROMERO, J.: Before this Court is a petition for certiorari under Rule 65 of the Revised Rules of Court which impugns the Resolution[1] of public respondent Commission on Elections (COMELEC) dated June 22, 1998 that dismissed petitioner Joseph Peter S. Sison's earlier petition[2] in SPC No. 98-134, entitled In the Matter of the Petition to Suspend the Canvassing of Votes and/or Proclamation in Quezon City and to Declare a Failure of Elections.

It appears that while the election returns were being canvassed by the Quezon City Board of Canvassers but before the winning candidates were proclaimed, petitioner commenced suit before the COMELEC by filing a petition seeking to suspend the canvassing of votes and/or proclamation in Quezon City and to declare a failure of elections. The said petition was supposedly filed pursuant to Section 6[3] of the Omnibus Election Code (Batas Pambansa Blg. 881, as amended) on the ground of massive and orchestrated fraud and acts analogous thereto which occurred after the voting and during the preparation of election returns and in the custody or canvass thereof, which resulted in a failure to elect.[4]

In support of his allegation of massive and orchestrated fraud, petitioner cited specific instances which are summarized and set forth below:

1. The Board of Canvassers announced that election returns with no inner seal would be included in the canvass;

2. Board of Election Inspectors brought home copies of election returns meant for the City Board of Canvassers;

3. Petitioner, through counsel, raised written objections to the inclusion in the canvass of election returns which were either tampered with, altered or falsified, or otherwise not authentic;

4. According to the minutes of the City Board of Canvassers, there were precincts with missing election returns;

5. Several election returns with no data on the number of votes cast for vice mayoralty position;

6. Highly suspicious persons sneaking in some election returns and documents into the canvassing area;

7. Concerned citizen found minutes of the counting, keys, locks and metal seal in the COMELEC area for disposal as trash;

8. Board of Election Inspectors have volunteered information that they placed the copy of the election returns meant for the City Board of Canvassers in the ballot boxes deposited with the City Treasurer allegedly due to fatigue and lack of sleep;

9. Ballot boxes were never in the custody of the COMELEC and neither the parties nor their watchers were allowed to enter the restricted area where these boxes passed through on the way to the basement of the City Hall where they were supposedly kept; and

10. In the elections in Barangay New Era, there was a clear pattern of voting which would show that the election returns were manufactured and that no actual voting by duly qualified voters took place therein.

While the petition was pending before the COMELEC, the City Board of Canvassers proclaimed the winners of the elections in Quezon City, including the winning candidate for the post of vice mayor. On June 22, 1998, the COMELEC promulgated its challenged resolution dismissing the petition before it on the ground (1) that the allegations therein were not supported by sufficient evidence, and (2) that the grounds recited were not among the pre-proclamation issues set fourth in Section 17 of Republic Act No. 7166.[5]

Hence, this petition.

Alleging that COMELEC overstepped the limits of reasonable exercise of discretion in dismissing SPC No. 98-134, petitioner argues in the main that the electoral body failed to afford him basic due process, that is, the right to a hearing and presentation of evidence before ruling on his petition. He then proceeded to argue that the election returns

themselves, as well as the minutes of the canvassing committee of the City Board of Canvassers were, by themselves, sufficient evidence to support the petition.

Upon a meticulous study of the parties arguments together with the pertinent statutory provisions and jurisprudence, this Court is of the opinion that there is no compelling reason why we should withhold ourimprimatur from the questioned resolution.

At the outset, we notice that petitioner exhibits an ambivalent stand as to what exactly is the nature of the remedy he availed of at the time he initiated proceedings before the COMELEC in SPC No. 98-134. At the start, he anchors his initiatory petition under Section 6[6] of the Omnibus Election Code regarding failure of elections but he later builds his case as a pre-proclamation controversy which is covered by Sections 241-248 of the Omnibus Election Code, as amended by R.A. No. 7166.[7] In this respect, the rule is, what conjointly determine the nature of a pleading are the allegations therein made in good faith, the stage of the proceeding at which it is filed, and the primary objective of the party filing the same.

In any case, petitioner nonetheless cannot succeed in either of the remedies he opted to pursue. Recently, in Matalam v. Commission on Elections,[8] we have already declared that a pre-proclamation controversy is not the same as an action for annulment of election results or declaration of failure of elections, founded as they are on different grounds.

Under the pertinent codal provision of the Omnibus Election Code, there are only three (3) instances where a failure of elections may be declared, namely: (a) the election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud, or other analogous causes; (b) the election in any polling place had been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud, or other analogous causes; or (c) after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect on account of force majeure, violence, terrorism , fraud, or other analogous causes. [9] (Underscoring supplied) We have painstakingly examined petitioners petition before the COMELEC but found nothing therein that could support an action for declaration of failure of elections. He never alleged at all that elections were either not held or suspended. Furthermore, petitioners claim of failure to elect stood as a bare conclusion bereft of any substantive support to describe just exactly how the failure to elect came about.

With respect to pre-proclamation controversy, it is well to note that the scope of pre-proclamation controversy is only limited to the issues enumerated under Section 243[10] of the Omnibus Election Code, and the enumeration therein is restrictive and exclusive.[11] The reason underlying the delimitation both of substantive ground and procedure is the policy of the election law that pre-proclamation controversies should be summarily decided, consistent with the law's desire that the canvass and proclamation be delayed as little as possible. [12] That is why such questions which require more deliberate and necessarily longer consideration, are left for examination in the corresponding election protest.[13]

However, with the proclamation of the winning candidate for the position contested, the question of whether the petition raised issues proper for a pre-proclamation controversy is already of no consequence since the well-entrench rule in such situation is that a pre-proclamation case before the COMELEC is no longer viable, the more appropriate remedies being a regular election protest or a petition for quo warranto.[14] We have carefully reviewed all recognized exceptions[15] to the foregoing rule but found nothing that could possibly apply to the instant case based on the recitations of the petition. What is more, in paragraph 3 of the COMELECs Omnibus Resolution No. 3049 (Omnibus Resolution on Pending Cases) dated June 29, 1998, it is clearly stated therein that All other pre-proclamation cases x x x shall be deemed terminated pursuant to Section 16, R. A. 7166.[16] (Underscoring supplied). Section 16 which is referred to in the aforecited omnibus resolution refers to the termination of pre-proclamation cases when the term of the office involved has already begun, which is precisely what obtains here. We are, of course, aware that petitioner cites the said omnibus resolution in maintaining that his petition is one of those cases which should have remained active pursuant to paragraph 4 thereof.That exception, however, operates only when what is involved is not a pre-proclamation controversy such as petitions for disqualification, failure of elections or analogous cases. But as we have earlier declared, his petition, though assuming to seek a declaration of failure of elections, is actually a case of pre-proclamation controversy and, hence, not falling within the ambit of the exception. In any case, that omnibus resolution would not have been applied in the first place because that was issued posterior to the date when the herein challenge resolution was promulgated which is June 22, 1998. There was no provision that such omnibus resolution should have retroactive effect.

Finally, as to petitioners claim that he was deprived of his right to due process in that he was not allowed to present his evidence before the COMELEC to support his petition, the same must likewise fail.

First, we note that his citation of Section 242 of the Omnibus Election Code as basis for his right to present evidence is misplaced. The phrase after due notice refers only to a situation where the COMELEC decides and, in fact, takes steps to either partially or totally suspend or annul the proclamation of any candidate-elect. Verba legis non est recedendum. From the words of the statute there should be no departure. The statutory provision cannot be expanded to embrace any other situation not contemplated therein such as the one at bar where the COMELEC is not taking any step to suspend or annul a proclamation.

Second, presentation of evidence before the COMELEC is not at all indispensable in order to satisfy the demands of due process. Under the amendment introduced by R.A. No. 7166, particularly Section 18 thereof, all that is required now is that the COMELEC shall dispose of pre-proclamation controversies on the basis of the records and evidence elevated to it by the board of canvassers. This is but in keeping with the policy of the law that cases of this nature should be summarily decided and the will of the electorate as reflected on the election returns be determined as speedily as possible. What exactly those records and evidence are upon which the COMELEC based its resolution and how they have been appreciated in respect of their sufficiency, are beyond this Courts scrutiny. But we have reason to believe, owing to the presumption of regularity of performance of official duty and the precept that factual findings of the COMELEC based on its assessments and duly supported by gathered evidence, are conclusive upon the court, that the COMELEC did arrive at its conclusion with due regard to the available evidence before it. That this is so can, in fact, be gleaned from petitioners own allegation and admission in his petition that the election returns themselves as well as the minutes of the Canvassing Committees and the City Board of Canvassers x x x are in the possession of the COMELEC. [17] He even cites paragraph (g), Section 20 of the Omnibus Election Code to validate such allegation. Hence, it is not really correct to say that the COMELEC acted without evidentiary basis at all or that petitioner was deprived of his right to due process.

WHEREFORE, finding no grave abuse of discretion amounting to lack or excess of jurisdiction on the part of public respondent Commission on Elections (COMELEC), the instant petition is hereby DISMISSED.Consequently, the resolution of COMELEC in SPC No. 98-134 dated June 22, 1998 is AFFIRMED.

No costs.

SO ORDERED.

DATU ANDAL S. AMPATUAN, BIMBO Q. SINSUAT, SR., IBRAHIM B. BIRUAR, ALONTO B. DAUDIE, MICHAEKL B. DIRANGAREN, ASNAWIS S. LIMBONA, RUSSMAN Q. SINSUAT, ZALNUDIN M. ABUTAZIL, DATUWATA U. ADZIS, BORGIVA T. DATU-MANONG, FREDDIE G. MANGUDADATU and ABBAS A. PENDATUN, JR., petitioners, vs . COMMISSION ON ELECTIONS, DATU ZACARIA A. CANDAO, DATU NORODIN M. MATALAM, KHARIS M. BARAGUIR, PAGRAS D. BIRUAR, CAHAR PENDAT IBAY, PATULA O. TIOLO, MARHOMSAL K. LAUBAN, MENTANG T. KABAGANI, ELIZABETH C. MASUKAT, GAPOR A. RAJAMUDA, SAID S. SALIK and LINTATO G. SANDIGAN, respondents .

D E C I S I O NPARDO, J.:The case is a petition for certiorari and prohibition under Rule 64 in relation to Rule 65 of the Revised Rules of Court with preliminary injunction or temporary restraining order[1] to nullify and set aside two (2) orders dated July 26, 2001[2] and August 28, 2001[3] of the Commission on Elections (COMELEC), ordering a random technical examination of pertinent election paraphernalia and other documents in several municipalities in the province of Maguindanao to determine a failure of elections.

Petitioners[4] and respondents[5] were candidates for the provincial elective positions in the province of Maguindanao in the May 14, 2001 election. Petitioner Ampatuan and respondentCandao contended for the position of governor. The slate of Ampatuan emerged as winners as per election returns.

On May 23, 2001, respondents filed a petition with the Comelec for the annulment of election results and/or declaration of failure of elections[6] in several municipalities[7] in the province ofMaguindanao. They claimed that the elections were completely sham and farcical. The ballots were filled-up en masse by a few persons the night before election day, and in some precincts, the ballot boxes, official ballots and other election paraphernalia were not delivered at all.[8]

On May 25, 2001, the Comelec issued an order suspending the proclamation of the winning candidates for congressman of the second district, governor, vice-governor and board members of Maguindanao.[9]

On May 30, 2001, petitioners filed with the Comelec a motion to lift the suspension of proclamation. [10] On June 14, 2001, the Comelec issued an order lifting the suspension of proclamation of the winning candidates for governor, vice-governor and board members of the first and second districts.[11] Consequently, the Provincial Board of Canvassers proclaimed petitioners winners.[12]

On June 16, 2001, respondents filed with the Supreme Court a petition to set aside the Comelec order dated June 14, 2001, and preliminary injunction to suspend the effects of the proclamation of the petitioners. [13] Meantime, petitioners assumed their respective offices on June 30, 2001. On July 17, 2001, the Court resolved to deny respondents petition.[14]

Petitioners assumption into office notwithstanding, on July 26, 2001, the Comelec ordered the consolidation of respondents petition for declaration of failure of elections with SPA Nos. 01-244, 01-332, 01-360, 01-388 and 01-390.[15] The COMELEC further ordered a random technical examination on four to seven precincts per municipality on the thumb-marks and signatures of the voters who voted and affixed in their voters registration records, and forthwith directed the production of relevant election documents in these municipalities.[16]

On August 28, 2001, the Comelec issued another order[17] directing the continuation of the hearing and disposition of the consolidated SPAs on the failure of elections and other incidents related thereto. It likewise ordered the continuation of the technical examination of election documents as authorized in the July 26, 2001 order. On September 27, 2001, the Comelec issued an order outlining the procedure to be followed in the technical examination.[18]

On September 26, 2001, petitioners filed the present petition.[19] They claimed that by virtue of their proclamation pursuant to the June 14, 2001 order issued by the Comelec, the proper remedy available to respondents was not a petition for declaration of failure of elections but an election protest. The former is heard summarily while the latter involves a full-blown trial. Petitioners argued that the manner by which the technical examination is to be conducted[20] would defeat the summary nature of a petition for declaration of failure of elections.

On October 5, 2001, petitioners filed a motion[21] reiterating their request for a temporary restraining order to enjoin the implementation of the July 26, 2001 and August 28, 2001 Comelecorders.

On October 22, 2001, the Comelec issued an order suspending the implementation of the two (2) assailed orders, the pertinent portion of which reads as follows:

The Commission, in view of the pendency of G. R. No. 149803 xxx, requiring it to comment within ten (10) days from notice, hereby suspends implementation of its orders of July 26, 2001 and August 28, 2001 in deference to the resolution of said court.[22]

However, on November 13, 2001, the Comelec issued another order lifting the suspension.[23]

On November 20, 2001, we issued a temporary restraining order, to wit:

xxx the Court Resolved to (a) ISSUE the TEMPORARY RESTRAINING ORDER prayed for, effective immediately and continuing until further orders from this Court, ordering the respondent Commission on Elections to CEASE and DESIST from ordering the lifting of the suspended implementation orders dated 26 July 2001 and 28 August 2001 in SPA No. 01-323 xxx.[24]

The main issue to be resolved is whether the Commission on Elections was divested of its jurisdiction to hear and decide respondents petition for declaration of failure of elections after petitioners had been proclaimed.

We deny the petition.

Petitioners submit that by virtue of their proclamation as winners, the only remedy left for private respondents is to file an election protest, in which case, original jurisdiction lies with the regular courts. Petitioners cited several rulings that an election protest is the proper remedy for a losing candidate after the proclamation of the winning candidate.[25]

However, the authorities petitioners relied upon involved pre-proclamation controversies. In Loong v. Commission on Elections,[26] we ruled that a pre-proclamation controversy is not the same as an action for annulment of election results, or failure of elections. These two remedies were more specifically distinguished in this wise:

While, however, the Comelec is restricted, in pre-proclamation cases, to an examination of the election returns on their face and is without jurisdiction to go beyond or behind them and investigate election irregularities, theComelec is duty bound to investigate allegations of fraud, terrorism, violence, and other analogous causes in actions for annulment of election results or for declaration of failure of elections, as the Omnibus Election Code denominates the same. Thus, the Comelec, in the case of actions for annulment of election results or declaration of failure of elections, may conduct technical examination of election documents and compare and analyze voters signatures and thumbprints in order to determine whether or not the elections had indeed been free, honest and clean.[27]

The fact that a candidate proclaimed has assumed office does not deprive the Comelec of its authority to annul any canvass and illegal proclamation.[28] In the case at bar, we cannot assume that petitioners proclamation and assumption into office on June 30, 2001, was legal precisely because the conduct by which the elections were held was put in issue by respondents in their petition for annulment of election results and/or declaration of failure of elections.

Respondents allegation of massive fraud and terrorism that attended the May 14, 2001 election in the affected municipalities cannot be taken lightly as to warrant the dismissal of their petition by the Comelec on the simple pretext that petitioners had been proclaimed winners. We are not unmindful of the fact that a pattern of conduct observed in past elections has been the pernicious grab-the-proclamation-prolong-the-protest slogan of some candidates or parties such that even if the protestant wins, it becomes a mere pyrrhic victory, i.e., a vindication when the term of office is about to expire or has expired. xxx We have but to reiterate the oft-cited rule that the validity of a proclamation may be challenged even after the irregularly proclaimed candidate has assumed office.[29]

Petitioners likewise rely on the case of Typoco , Jr. v. Commission on Elections .[30] This Court held that Comelec committed no grave abuse of discretion in dismissing a petition for declaration of failure of elections. However, we made a pronouncement that the dismissal was proper since the allegations in the petition did not justify a declaration of failure of elections.Typocos relief was for Comelec to order a recount of the votes cast, on account of the falsified election returns, which is properly the subject of an election contest.[31]

Respondents petition for declaration of failure of elections, from which the present case arose, exhaustively alleged massive fraud and terrorism that, if proven, could warrant a declaration of failure of elections. Thus:

4.1. The elections in at least eight (8) other municipalities xxx were completely sham and farcical. There was a total failure of elections in these municipalities, in that in most of these municipalities, no actual voting was done by the real, legitimate voters on election day itself but voting was made only by few persons who prepared in advance, and en masse, the ballots the day or the night before election and, in many precincts, there was completely no voting because of the non-delivery of ballot boxes, official ballots and other election paraphernalia; and in certain municipalities, while some semblance of voting was conducted on election day, there was widespread fraudulent counting and/or counting under very irregular circumstances and/or tampering and manufacture of election returns which completely bastardized the sovereign will of the people. These illegal and fraudulent acts of desecration of the electoral process were perpetrated to favor and benefit respondents. These acts were, by and large, committed with the aid and/or direct participation of military elements who were deployed to harass, intimidate or coerce voters and the supporters or constituents of herein petitioners, principally, of re-electionist Governor Datu Zacaria Candao. Military units and personnel visibly, openly and flagrantly violated election laws and regulations by escorting people or elements engaged in the illegal, advanced preparation of ballots and election returns and, at times, manning the polling places or precincts themselves and/or staying within the prohibited radius. Ballot boxes and other election paraphernalia were brought not to the precincts or voting centers concerned but somewhere else where massive manufacture of ballots and election documents were perpetrated.[32]

The Comelec en banc has the authority to annul election results and/or declare a failure of elections. [33] Section 6 of the Omnibus Election Code further provides that:

Section 6. Failure of election.- If, on account of force majeure, violence, terrorism, fraud, or other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election of failure to elect.

Elucidating on the concept of failure of election, we held that:

xxx before Comelec can act on a verified petition seeking to declare a failure of election, two (2) conditions must concur: first, no voting has taken place in the precincts concerned on the date fixed by law or, even if there was voting, the election nevertheless resulted in a failure to elect; and second, the votes cast would affect the result of the election. In Loong vs. Commission on Elections, this Court added that the cause of such failure of election should have been any of the following: force majeure, violence, terrorism, fraud or other analogous cases.[34]

In another case, we ruled that while it may be true that election did take place, the irregularities that marred the counting of votes and the canvassing of the election returns resulted in a failure to elect.[35]

In the case at bar, the Comelec is duty-bound to conduct an investigation as to the veracity of respondents allegations of massive fraud and terrorism that attended the conduct of the May 14, 2001 election. It is well to stress that the Comelec has started conducting the technical examination on November 16, 2001. However, by an urgent motion for a temporary restraining order filed by petitioners, in virtue of which we issued a temporary restraining order on November 20, 2001, the technical examination was held in abeyance until the present. In order not to frustrate the ends of justice, we lift the temporary restraining order and allow the technical examination to proceed with deliberate dispatch.

WHEREFORE, the petition is hereby DISMISSED. The temporary restraining order issued on November 20, 2001 is DISSOLVED. The Commission on Elections is directed to proceed with the hearing of the consolidated petitions and the technical examination as outlined in its September 27, 2001 order with deliberate dispatch. No costs.

SO ORDERED.

G.R. Nos. L-32613-14 December 27, 1972PEOPLE OF THE PHILIPPINES, petitioner, vs.HON. SIMEON. FERRER (in his capacity as Judge of the Court of First Instance of Tarlac, Branch I), FELICIANO CO alias LEONCIO CO alias "Bob," and NILO S. TAYAG alias Romy Reyes alias "Taba," respondents. CASTRO, J.:pI. Statement of the Case

Posed in issue in these two cases is the constitutionality of the Anti-Subversion Act, 1 which outlaws the Communist Party of the Philippines and other "subversive associations," and punishes any person who "knowingly, willfully and by overt acts affiliates himself with, becomes or remains a member" of the Party or of any other similar "subversive" organization.

On March 5, 1970 a criminal complaint for violation of section 4 of the Anti-Subversion Act was filed against the respondent Feliciano Co in the Court of First Instance of Tarlac. On March 10 Judge Jose C. de Guzman conducted a preliminary investigation and, finding a prima facie case against Co, directed the Government prosecutors to file the corresponding information. The twice-amended information, docketed as Criminal Case No. 27, recites:

That on or about May 1969 to December 5, 1969, in the Municipality of Capas, Province of Tarlac, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, feloniously became an officer and/or ranking leader of the Communist Party of the Philippines, an outlawed and illegal organization aimed to overthrow the Government of the Philippines by means of force, violence, deceit, subversion, or any other illegal means for the purpose of establishing in the Philippines a totalitarian regime and placing the government under the control and domination of an alien power, by being an instructor in the Mao Tse Tung University, the training school of recruits of the New People's Army, the military arm of the said Communist Party of the Philippines.

That in the commission of the above offense, the following aggravating circumstances are present, to wit:

(a) That the crime has been committed in contempt of or with insult to public authorities;

(b) That the crime was committed by a band; and afford impunity.

(c) With the aid of armed men or persons who insure or afford impunity.

Co moved to quash on the ground that the Anti-Subversion Act is a bill of attainder.

Meanwhile, on May 25, 1970, another criminal complaint was filed with the same court, sharing the respondent Nilo Tayag and five others with subversion. After preliminary investigation was had, an information was filed, which, as amended, reads:

The undersigned provincial Fiscal of Tarlac and State Prosecutors duly designated by the Secretary of Justice to collaborate with the Provincial Fiscal of Tarlac, pursuant to the Order dated June 5, above entitled case, hereby accuse Nilo S. Tayag, alias Romy Reyes alias TABA, ARTHUR GARCIA, RENATO (REY) CASIPE, ABELARDO GARCIA, MANUEL ALAVADO, BENJAMIN BIE alias COMMANDER MELODY and several JOHN DOES, whose identities are still unknown, for violation of REPUBLIC ACT No. 1700, otherwise known as the Anti-Subversion Law, committed as follows:

That in or about March 1969 and for sometime prior thereto and thereafter, in the Province of Tarlac, within the jurisdiction of this Honorable Court, and elsewhere in the Philippines, the above-named accused knowingly,

willfully and by overt acts organized, joined and/or remained as offices and/or ranking leaders, of the KABATAANG MAKABAYAN, a subversive organization as defined in Republic Act No. 1700; that BENJAMIN BIE and COMMANDER MELODY, in addition thereto, knowingly, willfully and by over acts joined and/or remained as a member and became an officer and/or ranking leader not only of the Communist Party of the Philippines but also of the New People's Army, the military arm of the Communist Party of the Philippines; and that all the above-named accused, as such officers and/or ranking leaders of the aforestated subversive organizations, conspiring, confederating and mutually helping one another, did then and there knowingly, willfully and feloniously commit subversive and/or seditious acts, by inciting, instigating and stirring the people to unite and rise publicly and tumultuously and take up arms against the government, and/or engage in rebellious conspiracies and riots to overthrow the government of the Republic of the Philippines by force, violence, deceit, subversion and/or other illegal means among which are the following:

1. On several occasions within the province of Tarlac, the accused conducted meetings and/or seminars wherein the said accused delivered speeches instigating and inciting the people to unite, rise in arms and overthrow the Government of the Republic of the Philippines, by force, violence, deceit, subversion and/or other illegal means; and toward this end, the said accused organized, among others a chapter of the KABATAANG MAKABAYAN in barrio Motrico, La Paz, Tarlac for the avowed purpose of undertaking or promoting an armed revolution, subversive and/or seditious propaganda, conspiracies, and/or riots and/or other illegal means to discredit and overthrow the Government of the Republic of the Philippines and to established in the Philippines a Communist regime.

2. The accused NILO TAYAG alias ROMY REYES alias TABA, together with FRANCISCO PORTEM alias KIKO Gonzales and others, pursued the above subversive and/or seditious activities in San Pablo City by recruiting members for the New People's Army, and/or by instigating and inciting the people to organize and unite for the purpose of overthrowing the Government of the Republic of the Philippines through armed revolution, deceit, subversion and/or other illegal means, and establishing in the Philippines a Communist Government.

That the following aggravating circumstances attended the commission of the offense: (a) aid of armed men or persons to insure or afford impunity; and (b) craft, fraud, or disguise was employed.

On July 21, 1970 Tayag moved to quash, impugning the validity of the statute on the grounds that (1) it is a bill of attainder; (2) it is vague; (3) it embraces more than one subject not expressed in the title thereof; and (4) it denied him the equal protection of the laws.

Resolving the constitutional issues raised, the trial court, in its resolution of September 15, 1970, declared the statute void on the grounds that it is a bill of attainder and that it is vague and overboard, and dismissed the informations against the two accused. The Government appealed. We resolved to treat its appeal as a special civil action for certiorari.

II. Is the Act a Bill of Attainder?

Article III, section 1 (11) of the Constitution states that "No bill of attainder or ex port facto law shall be enacted." 2A bill of attainder is a legislative act which inflicts punishment without trial. 3 Its essence is the substitution of a legislative for a judicial determination of guilt. 4 The constitutional ban against bills of attainder serves to implement the principle of separation of powers 5 by confining legislatures to rule-making 6 and thereby forestalling legislative usurpation of the judicial function. 7 History in perspective, bills of attainder were employed to suppress unpopular causes and political minorities, 8 and it is against this evil that the constitutional prohibition is directed. The singling out of a definite class, the imposition of a burden on it, and a legislative intent, suffice to stigmatizea statute as a bill of attainder. 9

In the case at bar, the Anti-Subversion Act was condemned by the court a quo as a bill of attainder because it "tars and feathers" the Communist Party of the Philippines as a "continuing menace to the freedom and security of the country; its existence, a 'clear, present and grave danger to the security of the Philippines.'" By means of the Act, the trial court said,

Congress usurped "the powers of the judge," and assumed "judicial magistracy by pronouncing the guilt of the CCP without any of the forms or safeguards of judicial trial." Finally, according to the trial court, "if the only issue [to be determined] is whether or not the accused is a knowing and voluntary member, the law is still a bill of attainder because it has expressly created a presumption of organizational guilt which the accused can never hope to overthrow."

1. When the Act is viewed in its actual operation, it will be seen that it does not specify the Communist Party of the Philippines or the members thereof for the purpose of punishment. What it does is simply to declare the Party to be an organized conspiracy for the overthrow of the Government for the purposes of the prohibition, stated in section 4, against membership in the outlawed organization. The term "Communist Party of the Philippines" issued solely for definitional purposes. In fact the Act applies not only to the Communist Party of the Philippines but also to "any other organization having the same purpose and their successors." Its focus is not on individuals but on conduct. 10

This feature of the Act distinguishes it from section 504 of the U.S. Federal Labor-Management Reporting and Disclosure Act of 1959 11 which, in U.S. vs. Brown, 12 was held to be a bill of attainder and therefore unconstitutional. Section 504 provided in its pertinent parts as follows:

(a) No person who is or has been a member of the Communist Party ... shall serve —

(1) as an officer, director, trustee, member of any executive board or similar governing body, business agent, manager, organizer, or other employee (other than as an employee performing exclusively clerical or custodial duties) of any labor organization.

during or for five years after the termination of his membership in the Communist Party....

(b) Any person who willfully violates this section shall be fined not more than $10,000 or imprisoned for not more than one year, or both.

This statute specified the Communist Party, and imposes disability and penalties on its members. Membership in the Party, without more, ipso facto disqualifies a person from becoming an officer or a member of the governing body of any labor organization. As the Supreme Court of the United States pointed out:

Under the line of cases just outlined, sec. 504 of the Labor Management Reporting and Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly possesses power under the Commerce Clause to enact legislation designed to keep from positions affecting interstate commerce persons who may use of such positions to bring about political strikes. In section 504, however, Congress has exceeded the authority granted it by the Constitution. The statute does not set forth a generally applicable rule decreeing that any person who commits certain acts or possesses certain characteristics (acts and characteristics which, in Congress' view, make them likely to initiate political strikes) shall not hold union office, and leaves to courts and juries the job of deciding what persons have committed the specified acts or possessed the specified characteristics. Instead, it designates in no uncertain terms the persons who possess the feared characteristics and therefore cannot hold union office without incurring criminal liability — members of the Communist Party.

Communist Party v. Subversive Activities Control Board, 367 US 1, 6 L ed 2d 625, 81 S CT 1357, lend a support to our conclusion. That case involved an appeal from an order by the Control Board ordering the Communist Party to register as a "Communist-action organization," under the Subversive Activities Control Act of 1950, 64 Stat 987, 50 USC sec. 781 et seq. (1958 ed). The definition of "Communist-action organization" which the Board is to apply is set forth in sec. 3 of the Act:

[A]ny organization in the United States ... which (i)is substantially directed, dominated, or controlled by the foreign government or foreign organization controlling the world Communist movement referred to in section 2

of this title, and(ii) operates primarily to advance the objectives of such world Communist movement... 64 Stat 989, 50 USC sec. 782 (1958 ed.)

A majority of the Court rejected the argument that the Act was a bill of attainder, reasoning that sec. 3 does not specify the persons or groups upon which the deprivations setforth in the Act are to be imposed, but instead sets forth a general definition. Although the Board has determined in 1953 that the Communist Party was a "Communist-action organization," the Court found the statutory definition not to be so narrow as to insure that the Party would always come within it:

In this proceeding the Board had found, and the Court of Appeals has sustained its conclusion, that the Communist Party, by virtud of the activities in which it now engages, comes within the terms of the Act. If the Party should at anytime choose to abandon these activities, after it is once registered pursuant to sec. 7, the Act provides adequate means of relief. (367 US, at 87, 6 L ed 2d at 683)

Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally unnecessary to charge Communists in court, as the law alone, without more, would suffice to secure their punishment. But the undeniable fact is that their guilt still has to be judicially established. The Government has yet to prove at the trial that the accused joined the Party knowingly, willfully and by overt acts, and that they joined the Party, knowing its subversive character and with specific intent to further its basic objective, i.e., to overthrow the existing Government by force deceit, and other illegal means and place the country under the control and domination of a foreign power.

As to the claim that under the statute organizationl guilt is nonetheless imputed despite the requirement of proof of knowing membership in the Party, suffice it to say that is precisely the nature of conspiracy, which has been referred to as a "dragneet device" whereby all who participate in the criminal covenant are liable. The contention would be correct if the statute were construed as punishing mere membership devoid of any specific intent to further the unlawful goals of the Party. 13 But the statute specifically required that membership must be knowing or active, with specific intent to further the illegal objectives of the Party. That is what section 4 means when it requires that membership, to be unlawful, must be shown to have been acquired "knowingly, willfully and by overt acts." 14 The ingredient of specific intent to pursue the unlawful goals of the Party must be shown by "overt acts." 15 This constitutes an element of "membership" distinct from the ingredient of guilty knowledge. The former requires proof of direct participation in the organization's unlawful activities, while the latter requires proof of mere adherence to the organization's illegal objectives.

2. Even assuming, however, that the Act specifies individuals and not activities, this feature is not enough to render it a bill of attainder. A statute prohibiting partners or employees of securities underwriting firms from serving as officers or employees of national banks on the basis of a legislative finding that the persons mentioned would be subject to the temptation to commit acts deemed inimical to the national economy, has been declared not to be a bill of attainder. 16 Similarly, a statute requiring every secret, oath-bound society having a membership of at least twenty to register, and punishing any person who becomes a member of such society which fails to register or remains a member thereof, was declared valid even if in its operation it was shown to apply only to the members of the Ku Klux Klan. 17

In the Philippines the validity of section 23 (b) of the Industrial Peace Act, 18 requiring labor unions to file with the Department of Labor affidavits of union officers "to the effect that they are not members of the Communist Party and that they are not members of any organization which teaches the overthrow of the Government by force or by any illegal or unconstitutional method," was upheld by this Court. 19

Indeed, it is only when a statute applies either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial does it become a bill of attainder. 20 It is upon this ground that statutes which disqualified those who had taken part in the rebellion against the Government of the United States during the Civil War from holding office, 21 or from exercising their profession, 22 or which prohibited the payment of further compensation to individuals named in the Act on the basis of a finding that they had engages in subversive activities,23 or which made it a crime for a member of the Communist Party to serve as an officer or employee of a labor union, 24have been invalidated as bills of attainder.

But when the judgment expressed in legislation is so universally acknowledged to be certain as to be "judicially noticeable," the legislature may apply its own rules, and judicial hearing is not needed fairly to make such determination. 25

In New York ex rel. Bryant vs. Zimmerman, 26 the New York legislature passed a law requiring every secret, oath-bound society with a membership of at least twenty to register, and punishing any person who joined or remained a member of such a society failing to register. While the statute did not specify the Ku Klux Klan, in its operation the law applied to the KKK exclusively. In sustaining the statute against the claim that it discriminated against the Ku Klux Klan while exempting other secret, oath-bound organizations like masonic societies and the Knights of Columbus, the United States Supreme Court relied on common knowledge of the nature and activities of the Ku Klux Klan. The Court said:

The courts below recognized the principle shown in the cases just cited and reached the conclusion that the classification was justified by a difference between the two classes of associations shown by experience, and that the difference consisted (a) in a manifest tendency on the part of one class to make the secrecy surrounding its purpose and membership a cloak for acts and conduct inimical to personal rights and public welfare, and (b) in the absence of such a tendency on the part of the other class. In pointing out this difference one of the courts said of the Ku Klux Klan, the principal association in the included class: "It is a matter of common knowledge that this organization functions largely at night, its members disguised by hoods and gowns and doing things calculated to strike terror into the minds of the people;" and later said of the other class: "These organizations and their purposes are well known, many of them having been in existence for many years. Many of them are oath-bound and secret. But we hear no complaint against them regarding violation of the peace or interfering with the rights of others." Another of the courts said: "It is a matter of common knowledge that the association or organization of which the relator is concededly a member exercises activities tending to the prejudice and intimidation of sundry classes of our citizens. But the legislation is not confined to this society;" and later said of the other class: "Labor unions have a recognized lawful purpose. The benevolent orders mentioned in the Benevolent Orders Law have already received legislative scrutiny and have been granted special privileges so that the legislature may well consider them beneficial rather than harmful agencies." The third court, after recognizing "the potentialities of evil in secret societies," and observing that "the danger of certain organizations has been judicially demonstrated," — meaning in that state, — said: "Benevolent orders, labor unions and college fraternities have existed for many years, and, while not immune from hostile criticism, have on the whole justified their existence."

We assume that the legislature had before it such information as was readily available including the published report of a hearing, before a committee of the House of Representatives of the 57th Congress relating to the formation, purposes and activities of the Klu Klux Klan. If so it was advised — putting aside controverted evidence — that the order was a revival of the Ku Klux Klan of an earlier time with additional features borrowed from the Know Nothing and the A. P. A. orders of other periods; that its memberships was limited to native-born, gentile, protestant whites; that in part of its constitution and printed creed it proclaimed the widest freedom for all and full adherence to the Constitution of the United States; in another exacted of its member an oath to shield and preserve "white supremacy;" and in still another declared any person actively opposing its principles to be "a dangerous ingredient in the body politic of our country and an enemy to the weal of our national commonwealth;" that it was conducting a crusade against Catholics, Jews, and Negroes, and stimulating hurtful religious and race prejudices; that it was striving for political power and assuming a sort of guardianship over the administration of local, state and national affairs; and that at times it was taking into its own hands the punishment of what some of its members conceived to be crimes. 27

In the Philippines the character of the Communist Party has been the object of continuing scrutiny by this Court. In 1932 we found the Communist Party of the Philippines to be an illegal association. 28 In 1969 we again found that the objective of the Party was the "overthrow of the Philippine Government by armed struggle and to establish in the Philippines a communist form of government similar to that of Soviet Russia and Red China." 29 More recently, in Lansang vs. Garcia, 30we noted the growth of the Communist Party of the Philippines and the organization of Communist fronts among youth organizations such as the Kabataang Makabayan (KM) and the emergence of the New People's Army. After meticulously reviewing the evidence, we said: "We entertain, therefore, no doubts about the existence of a sizeable

group of men who have publicly risen in arms to overthrow the government and have thus been and still are engaged in rebellion against the Government of the Philippines.

3. Nor is it enough that the statute specify persons or groups in order that it may fall within the ambit of the prohibition against bills of attainder. It is also necessary that it must apply retroactively and reach past conduct. This requirement follows from the nature of a bill of attainder as a legislative adjudication of guilt. As Justice Frankfurter observed, "frequently a bill of attainder was ... doubly objectionable because of its ex post factofeatures. This is the historic explanation for uniting the two mischiefs in one clause — 'No Bill of Attainder or ex post facto law shall be passed.' ... Therefore, if [a statute] is a bill of attainder it is also an ex post facto law. But if it is not an ex post facto law, the reasons that establish that it is not are persuasive that it cannot be a bill of attainder." 31

Thus in Gardner vs. Board of Public Works, 32 the U.S. Supreme Court upheld the validity of the Charter of the City of Los Angeles which provided:

... [N]o person shall hold or retain or be eligible for any public office or employment in the service of the City of Los Angeles, in any office or department thereof, either elective or appointive, who has within five (5) years prior to the effective date of this section advised, advocated, or taught, or who may, after this section becomes effective, become a member of or affiliated with any group, society, association, organization or party which advises, advocates or teaches or has within said period of five (5) years advised, advocated, or taught the overthrow by force or violence of the Government of the United States of America or of the State of California.

In upholding the statute, the Court stressed the prospective application of the Act to the petitioner therein, thus:

... Immaterial here is any opinion we might have as to the charter provision insofar as it purported to apply restrospectively for a five-year period to its effective date. We assume that under the Federal Constitution the Charter Amendment is valid to the extent that it bars from the city's public service persons who, subsequently to its adoption in 1941, advise, advocate, or reach the violent overthrow of the Government or who are or become affiliated with any group doing so. The provisions operating thus prospectively were a reasonable regulation to protect the municipal service by establishing an employment qualification of loyalty to the State and the United States.

... Unlike the provisions of the charter and ordinance under which petitioners were removed, the statute in the Lovett case did not declare general and prospectively operative standards of qualification and eligibility for public employment. Rather, by its terms it prohibited any further payment of compensationto named individuals or employees. Under these circumstances, viewed against the legislative background, the statutewas held to have imposed penalties without judicial trial.

Indeed, if one objection to the bill of attainder is thatCongress thereby assumed judicial magistracy, them it mustbe demonstrated that the statute claimed to be a bill of attainderreaches past conduct and that the penalties it imposesare inescapable. As the U.S. Supreme Court observedwith respect to the U.S. Federal Subversive Activities ControlAct of 1950:

Nor is the statute made an act of "outlawry" or of attainderby the fact that the conduct which it regulates is describedwith such particularity that, in probability, few organizationswill come within the statutory terms. Legislatures may act tocurb behaviour which they regard as harmful to the public welfare,whether that conduct is found to be engaged in by manypersons or by one. So long as the incidence of legislation issuch that the persons who engage in the regulated conduct, bethey many or few, can escape regulation merely by altering thecourse of their own present activities, there can be no complaintof an attainder. 33

This statement, mutatis mutandis, may be said of theAnti-Subversion Act. Section 4 thereof expressly statesthat the prohibition therein applies only to acts committed"After the approval of this Act." Only those who "knowingly,willfully and by overt acts affiliate themselves with,become or remain members of the Communist Party of thePhilippines and/or its successors or of any subversive association"after June 20, 1957, are punished. Those whowere members of the Party or of any other subversive associationat the time of the enactment of the law, weregiven the opportunity of purging themselves of liability byrenouncing in writing and under oath their membershipin the Party. The law expressly provides that such renunciationshall operate to exempt such persons from penalliability. 34 The penalties prescribed by the Act are thereforenot inescapable.

III. The Act and the Requirements of Due Process

1. As already stated, the legislative declaration in section 2 of the Act that the Communist Party of the Philippinesis an organized conspiracy for the overthrow of theGovernment is inteded not to provide the basis for a legislativefinding of guilt of the members of the Party butrather to justify the proscription spelled out in section 4. Freedom of expression and freedom of association are sofundamental that they are thought by some to occupy a"preferred position" in the hierarchy of constitutional values. 35 Accordingly, any limitation on their exercise mustbe justified by the existence of a substantive evil. This isthe reason why before enacting the statute in question Congressconducted careful investigations and then stated itsfindings in the preamble, thus:

... [T]he Communist Party of the Philippines althoughpurportedly a political party, is in fact an organized conspiracyto overthrow the Government of the Republic of the Philippinesnot only by force and violence but also by deceit, subversionand other illegal means, for the purpose of establishing in thePhilippines a totalitarian regime subject to alien dominationand control;

... [T]he continued existence and activities of the CommunistParty of the Philippines constitutes a clear, present andgrave danger to the security of the Philippines;

... [I]n the face of the organized, systematice and persistentsubversion, national in scope but international in direction,posed by the Communist Party of the Philippines and its activities,there is urgent need for special legislation to cope withthis continuing menace to the freedom and security of the country.

In truth, the constitutionality of the Act would be opento question if, instead of making these findings in enactingthe statute, Congress omitted to do so.

In saying that by means of the Act Congress has assumed judicial magistracy, the trial courd failed to takeproper account of the distinction between legislative fact and adjudicative fact. Professor Paul Freund elucidatesthe crucial distinction, thus:

... A law forbidding the sale of beverages containingmore than 3.2 per cent of alcohol would raise a question of legislativefact, i.e., whether this standard has a reasonable relationto public health, morals, and the enforcement problem. Alaw forbidding the sale of intoxicating beverages (assuming itis not so vague as to require supplementation by rule-making)would raise a question of adjudicative fact, i.e., whether thisor that beverage is intoxicating within the meaning of the statuteand the limits on governmental action imposed by the Constitution. Of course what we mean by fact in each case is itselfan ultimate conclusion founded on underlying facts and oncriteria of judgment for weighing them.

A conventional formulation is that legislative facts — those facts which are relevant to the legislative judgment — will not be canvassed save to determine whether there is a rationalbasis for believing that they exist, while adjudicativefacts — those which tie the legislative enactment to the litigant — are to be demonstrated and found according to the ordinarystandards prevailing for judicial trials. 36

The test formulated in Nebbia vs. new York, 37 andadopted by this Court in Lansang vs. Garcia, 38 is that 'if laws are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination to that effect renders a court functus officio." The recital of legislative findings implements this test.

With respect to a similar statement of legislative findingsin the U.S. Federal Subversive Activities Control Actof 1950 (that "Communist-action organizations" are controlledby the foreign government controlling the worldCommunist movement and that they operate primarily to"advance the objectives of such world Communist movement"),the U.S. Supreme Court said:

It is not for the courts to reexamine the validity of theselegislative findings and reject them....They are the productof extensive investigation by Committes of Congress over morethan a decade and a half. Cf. Nebbia v. New York, 291 U.S.502, 516, 530. We certainly cannot dismiss them as unfoundedirrational imaginings. ... And if we accept them, as we mustas a not unentertainable appraisal by Congress of the threatwhich Communist organizations pose not only to existing governmentin the United States, but to the United States as asovereign, independent Nation. ...we must recognize that thepower of Congress to regulate Communist organizations of thisnature is extensive. 39

This statement, mutatis mutandis, may be said of thelegislative findings articulated in the Anti-Subversion Act.

That the Government has a right to protect itself againstsubversion is a proposition too plain to require elaboration.Self-preservation is the "ultimate value" of society. It surpasses and transcendes every other value, "forif a society cannot protect its very structure from armedinternal attack, ...no subordinate value can be protected" 40 As Chief Justice Vinson so aptly said in Dennis vs. United States: 41

Whatever theoretical merit there may be to the argumentthat there is a 'right' to rebellion against dictatorial governmentsis without force where the existing structure of government provides for peaceful and orderly change. We rejectany principle of governmental helplessness in the face of preparationfor revolution, which principle, carried to its logical conclusion,must lead to anarchy. No one could conceive that it isnot within the power of Congress to prohibit acts intended tooverthrow the government by force and violence.

2. By carefully delimiting the reach of the Act to conduct (as explicitly described in sectin 4 thereof), Congressreaffirmed its respect for the rule that "even throughthe governmental purpose be legitimate and substantial,that purpose cannot be pursued by means that broadly stiflefundamental personal liberties when the end can be more narrowly achieved." 42 The requirement of knowing membership,as distinguished from nominalmembership, hasbeen held as a sufficient basis for penalizing membershipin a subversive organization. 43 For, as has been stated:

Membership in an organization renders aid and encouragement to the organization; and when membership is acceptedor retained with knowledge that the organization is engaged inan unlawful purpose, the one accepting or retaining membershipwith such knowledge makes himself a party to the unlawfulenterprise in which it is engaged. 44

3. The argument that the Act is unconstitutionallyoverbroad because section 2 merely speaks of "overthrow"of the Government and overthrow may be achieved by peaceful means, misconceives the function of the phrase"knowingly, willfully and by overt acts" in section 4. Section 2 is merely a legislative declaration; the definitionsof and the penalties prescribed for the different acts prescribedare stated in section 4 which requires that membershipin the Communist Party of the Philippines, to be unlawful, must be acquired "knowingly, willfully and by overt acts." Indeed, the first "whereas" clause makes clear thatthe overthrow contemplated is "overthrow not only by forceand violence but also be deceit, subversion and other illegalmeans." The absence of this qualificatio in section 2 appearsto be due more to an oversight rather than to deliberateomission.

Moreover, the word "overthrow' sufficiently connotesthe use of violent and other illegal means. Only in a metaphoricalsense may one speak of peaceful overthrow ofgovernments, and certainly the law does not speak in metaphors.In the case of the Anti-Subversion Act, the use ofthe word "overthrow" in a metaphorical sense is hardlyconsistent with the clearly delineated objective of the "overthrow,"namely, "establishing in the Philippines a totalitarianregime and place [sic] the Government under thecontrol and domination of an alien power." What thisCourt once said in a prosecution for sedition is appropos: "The language used by the appellant clearly imported anoverthrow of the Government by violence, and it should beinterpreted in the plain and obvious sense in which it wasevidently intended to be understood. The word 'overthrow'could not have been intended as referring to an ordinarychange by the exercise of the elective franchise. The useof the whip [which the accused exhorted his audience to useagainst the Constabulary], an instrument designed toleave marks on the sides of adversaries, is inconsistentwith the mild interpretation which the appellant wouldhave us impute to the language." 45

IV. The Act and the Guaranty of Free Expression

As already pointed out, the Act is aimed against conspiracies to overthrow the Government by force, violence orother illegal means. Whatever interest in freedom of speechand freedom of association is infringed by the prohibitionagainst knowing membership in the Communist Party ofthe Philippines, is so indirect and so insubstantial as to beclearly and heavily outweighed by the overriding considerationsof national security and the preservartion of democraticinstitutions in his country.

The membership clause of the U.S. Federal Smith Actis similar in many respects to the membership provision ofthe Anti-Subversion Act. The former provides:

Whoever organizes or helps or attempts to organize anysociety, group, or assembly of persons who teach, advocate, orencourage the overthrow or destruction of any such governmentby force or violence; or becomes or is a member of, or affiliatedwith, any such society, group or assembly of persons, knowingthe purpose thereof —

Shall be fined not more than $20,000 or imprisoned notmore than twenty years, or both, and shall be ineligible for emplymentby the United States or any department or agencythereof, for the five years next following his conviction.... 46

In sustaining the validity of this provision, the "Court said in Scales vs. United States: 47

It was settled in Dennis that advocacy with which we arehere concerned is not constitutionally protected speech, and itwas further established that a combination to promote suchadvocacy, albeit under the aegis of what purports to be a politicalparty, is not such association as is protected by the firstAmendment. We can discern no reason why membership, whenit constitutes a purposeful form of complicity in a group engagingin this same forbidden advocacy, should receive anygreater degree of protection from the guarantees of that Amendment.

Moreover, as was held in another case, where the problemsof accommodating the exigencies of self-preservationand the values of liberty are as complex and intricate as inthe situation described in the legislative findings stated inthe U.S. Federal Subversive Activities Control Act of 1950,the legislative judgment as to how that threat may best bemet consistently with the safeguards of personal freedomsis not to be set aside merely because the judgment of judgeswould, in the first instance, have chosen other methods. 48 For in truth, legislation, "whether it restrains freedom tohire or freedom to speak, is itself an effort at compromisebetween the claims of the social order and individual freedom,and when the legislative compromise in either case isbrought to the judicial test the court stands one step removedfrom the conflict and its resolution through law." 49

V. The Act and its Title

The respondent Tayag invokes the constitutional commandthat "no bill which may be enacted into law shall embrace more than one subject which shall be expressed in the title of the bill." 50

What is assailed as not germane to or embraced in thetitle of the Act is the last proviso of section 4 which reads:

And provided, finally, That one who conspires with anyother person to overthrow the Government of the Republic ofthe Philippines, or the government of any of its political subdivisionsby force, violence, deceit, subversion or illegal means,for the purpose of placing such Government or political subdivisionunder the control and domination of any lien power, shallbe punished by prision correccional to prision mayor with allthe accessory penalties provided therefor in the same code.

It is argued that the said proviso, in reality, punishes notonly membership in the Communist Party of the Philippinesor similar associations, but as well "any conspiracyby two persons to overthrow the national or any local governmentby illegal means, even if their intent is not to establisha totalitarian regime, burt a democratic regime, evenif their purpose is not to place the nation under an aliencommunist power, but under an alien democratic power likethe United States or England or Malaysia or even an anti-communistpower like Spain, Japan, Thailand or Taiwanor Indonesia."

The Act, in addition to its main title ("An Act to Outlawthe Communist Party of the Philippines and SimilarAssociations, Penalizing Membership Therein, and forOther Purposes"), has a short title. Section 1 providesthat "This Act shall be known as the Anti-Subversion Act."Together with the main title, the short title of the statuteunequivocally indicates that the subject matter is subversionin general which has for its fundamental purpose the substitutionof a foreign totalitarian regime in place of theexisting Government and not merely subversion by Communistconspiracies..

The title of a bill need not be a catalogue or an indexof its contents, and need not recite the details of the Act. 51 It is a valid title if it indicates in broad but clear termsthe nature, scope, and consequences of the proposed lawand its operation. 52 A narrow or technical construction isto be avoided, and the statute will be read fairly and reasonablyin order not to thwart the legislative intent. We holdthat the Anti-Subversion Act fully satisfies these requirements.

VI. Conclusion and Guidelines

In conclusion, even as we uphold the validity of theAnti-Subversion Act, we cannot overemphasize the needfor prudence and circumspection in its enforcement, operatingas it does in the sensitive area of freedom of expressionand belief. Accordingly, we set the following basic guidelines to be observed in any prosecution under the Act.The Government, in addition to proving such circumstancesas may affect liability, must establish the following elementsof the crime of joining the Communist Party of the Philippinesor any other subversive association:

(1) In the case of subversive organizations other thanthe Communist Party of the Philippines, (a) that thepurpose of the organization is to overthrow the presentGovernment of the Philippines and to establish in thiscountry a totalitarian regime under the domination of aforeign power; (b) that the accused joined such organization;and (c) that he did so knowingly, willfully and byovert acts; and

(2) In the case of the Communist Party of the Philippines,(a) that the CPP continues to pursue the objectiveswhich led Congress in 1957 to declare it to be an organizedconspiracy for the overthrow of the Government by illegalmeans for the purpose of placing the country under thecontrol of a foreign power; (b) that the accused joined theCPP; and (c) that he did so willfully, knowingly and byovert acts.

We refrain from making any pronouncement as to thecrime or remaining a member of the Communist Party ofthe Philippines or of any other subversive association: weleave this matter to future determination.

ACCORDINGLY, the questioned resolution of September15, 1970 is set aside, and these two cases are herebyremanded to the court a quo for trial on the merits. Costs de oficio.

A.M. No. RTJ-94-1208 January 26, 1995JACINTO MAPPALA, complainant, vs.JUDGE CRISPULO A. NUÑEZ, Regional Trial Court, Branch 22, Cabagan, Isabela, respondent. QUIASON, J.: This is an administrative complaint filed by Jacinto Mappala against Judge Crispulo A. Nuñez, the presiding judge of the Regional Trial Court, Branch 22, Cabagan, Isabela for gross inefficiency, serious misconduct and violation of the code of Judicial Ethics.

I

In 1989, the Provincial prosecutor of Isabela filed: (1) an information against Alejandro Angoluan for illegal possession of a firearm in violation of P.D. No. 1866 (Criminal Case No. 22-954); (2) an information against Angoluan and five other co-accused for frustrated murder (Criminal Case No. 22-955); and (3) an information against Alejandro and Honorato Angoluan for violation of the Omnibus election code (Criminal Case No. 22-965). The complaining witness in Criminal Case No. 22-955 was Jacinto Mappala, the complainant against respondent in this administrative case. All the actions were consolidated and assigned to the Regional Trial Court, Branch 22, Cabagan, Isabela, presided by respondent.

On December 20, 1993, respondent rendered a consolidated decision in the aforementioned cases, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing facts and considerations, in Criminal Case No. 955, this Court finds that the accused ALEJANDRO ANGOLUAN is GUILTY beyond reasonable doubt of the crime of Frustrated Homicide. The prescribed penalty is six (6) years and one (1) day to twelve (12) years orprision mayor. Applying the Indeterminate Sentence Law, the minimum should be taken from the penalty one (1) degree lower which is prision correcional. He is therefore sentenced to suffer imprisonment from TWO (2) YEARS and FOUR (4) MONTHS of Prision Correcional as Minimum, to SIX (6) YEARS and ONE (1) DAY of Prision Mayor as maximum and to pay the complainant Jacinto Mappala the sum of P18,514.00 representing hospitalization and medical expenses; and to pay the costs. The accused Honorato Angoluan, Bienvenido Angoluan, Jr., Zaldy Angoluan, Teodoro Zipagan, Jr., and Ramon Soriano are hereby ACQUITTED FOR INSUFFICIENCY OF EVIDENCE.

In Criminal Case No. 954, this Court finds the accused ALEJANDRO ANGOLUAN "GUILTY" beyond reasonable doubt of the crime of Illegal Possession of Firearms in Violation of P.D. No. 1866.

Presidential Decree No. 1866 is a special law. The penalty imposed is governed by the Indeterminate Sentence Law, Section 1 of which provides:

Sec. 1 . . . If the offense is punished by other law, the court shall sentence the accused to an indeterminate sentence, the maximum of which shall not exceed the maximum fixed by law and the minimum shall not be less than the minimum term prescribed by the same.

The prescribed penalty for Illegal Possession of Firearms under P.D. 1866 is Reclusion Temporal toReclusion Perpetua. The Court hereby sentences him to an imprisonment from TWELVE (12) YEARS and ONE (1) DAY to SEVENTEEN (17) YEARS, FOUR (4) MONTHS and ONE (1) DAY. The firearm, Exhibit "H", is forfeited to the government.

And in Criminal Case No. 965, for Violation of the Omnibus election Code against Alejandro Angoluan and Honorato Angoluan, this Court finds both accused "NOT GUILTY" of the crime and therefore are ACQUITTED (Rollo, pp. 45-46).

The said decision is now on appeal before the Court of Appeals.

In his letter-complaint dated March 28, 1994, complainant alleged that while the trial of the three cases was terminated in December 1992 and the last pleading in the case, the prosecution's memorandum, was submitted on May 27, 1993, respondent rendered his decision only on December 20, 1993 (Rollo, p. 14).

Complainant charged respondent with: (1) gross inefficiency for rendering the decision beyond the reglementary period of ninety days or seven months after the cases were submitted for decision; (2) serious misconduct for acquitting Alejandro Angoluan of violation of the Omnibus Election Code in Criminal Case No. 22-965; and (3) violation of the Code of Judicial Ethics for giving credence to the alibi of the accused Rizaldy Angoluan in Criminal Case No. 22-955 in the absence of any corroborating testimony of any witness (Rollo, pp. 10-11). Complainant likewise accused respondent of accepting bribes in connection with cases pending before him (Rollo, p. 11).

In his comment, respondent averred that the three actions involved grave offenses that required more time in the preparation of the decision. He alleged that he had to await the memorandum of the public prosecutors who requested additional time for the submission thereof (Rollo, p. 6).

He justified the acquittal of Alejandro of violation of the Election Law in Criminal Case No. 965 on the ground that ". . . the firearm was not taken from his person within the precinct but was not taken . . . more than 50 meters away from the precinct" (Rollo, p. 7).

Furthermore, he claimed that what the law considered as a crime was the "carrying of firearms within (50) or 100 meters away from the precinct. The firearm was not taken from the accused within the 50 or 100 meters distance from the precinct because in truth and in fact the said firearm was surrendered by the accused two (2) days after the elections. The mistake in the distance is merely a clerical error. But be it 50 meters or 100 meters, still the accused could not be convicted under the said provision, specifically Section 261, Subsection (p) of Article XXII of the Omnibus election Code" (Rollo, p. 7).

Respondent claimed that the charge of violation of the Code of Judicial Ethics was utterly irresponsible and baseless, being the handiwork of a disgruntled litigant with the purpose of discrediting his reputation ( Rollo, pp. 7-8).

Respondent denied having received bribes.

II

As to complainant's charge of gross inefficiency, we find that respondent rendered the decision beyond the reglementary period of ninety days, reckoned from May 27, 1993, the date when the last pleading was filed.

We are not impressed with respondent's excuse that it took time to resolve the three consolidated actions involving grave offenses. If respondent required more time to resolve the cases, he is not without recourse. He should have asked for more time to decide the cases from this Court, giving the justification therefor.

In Alfonso-Cortes v. Maglalang, 227 SCRA 482 (1993), we emphasized "for the guidance of the judges manning our courts, that cases pending before their salas must be decided within the aforementioned period and that failure to observe said rule constitutes a ground for administrative sanction against the defaulting judge" (citing Marcelino v. Cruz, Jr., 121 SCRA 51 [1983]).

Respondent acquitted Alejandro Angoluan of violation of Section 261 (p) of the Omnibus Election Code.

Said provision reads as follows:

Deadly weapons. — Any person who carries any deadly weapon in the polling place and within a radius of one hundred meters thereof during the days and hours fixed by law for the registration of voters in the polling place, voting, counting of votes, or preparation of the election returns. However, in cases of affray, turmoil, or disorder, any peace officer or public officer authorized by the Commission to supervise the election is entitled to carry firearms or any other weapon for the purpose of preserving and enforcing the law.

In his decision, respondent found that Alejandro shot complainant herein inside Precinct No. 2 located at the elementary school building in Santo Tomas, Isabela, during the barangay elections on March 28, 1989. Respondent also found that Alejandro was the one who surrendered the gun. To respondent, the surrender of the weapon was an implied admission that it was the one used by Alejandro in shooting complainant. Inspite of all these findings, respondent acquitted Alejandro of illegally carrying a deadly weapon inside a precinct on the theory that the gun was not seized from him while he was the precinct. According to respondent:

. . . With respect to the other accused Alejandro Angoluan, although there is evidence to prove that he shot the complainant Jacinto Mappala, the gun which he allegedly used was surrendered by him two (2) days after the incident and he was not apprehended in possession of the gun within 100 meters radius of the precinct. This Court believes that he should not be prosecuted (sic) in violation of Article 22, Section 261, Subsection (p) of the Omnibus Election Code (Rollo, p. 45; Emphasis supplied).

To support a conviction under Section 261(p) of the Omnibus election Code, it is not necessary that the deadly weapon should have been seized from the accused while he was in the precinct or within a radius of 100 meters therefrom. It is enough that the accused carried the deadly weapon "in the polling place and within a radius of one hundred meters thereof" during any of the specified days and hours. After respondent himself had found that the prosecution had established these facts, it is difficult to understand why he acquitted Alejandro of the charge of violation of Section 261(p) of the Omnibus election Code.

The charge of serious misconduct and violation of the Code of Judicial Ethics in connection with the acquittal of Rizaldy Angoluan after sustaining his defense of alibi pertains to respondent's judicial functions in the appreciation and evaluation of evidence. there is not enough evidence to set aside said finding of fact.

For failure of complainant to substantiate his charge that respondent accepted monetary favors in resolving the cases pending before him, we dismiss the same. While the Judiciary is in the process of cleansing its ranks, we do not favor complaints based on mere hearsay.

WHEREFORE, respondent is FINED Five Thousand Pesos (P5,000.00), to be paid within thirty days from receipt hereof, with a WARNING that a repetition of the same or of acts calling for disciplinary action will be dealt with more severely.

SO ORDERED.

Padilla, Davide, Jr., Bellosillo and Kapunan, JJ., concur.

[G.R. No. 42290. February 16, 1935.]THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee , v. GONZALO FUENTES, Defendant-Appellant . Pedro Sabido, Cornelio T. Villareal and Hilarion Jarencio for Appellant . Solicitor-General Hilado for Appellee . D E C I S I O NVICKERS, J.:The defendant appeals from a decision of Judge Braulio Bejasa in the Court of First Instance of capiz, finding him guilty of having violated section 416 of the Election Law by carrying a revolver within fifty meters of the polling place of precinct No. 5 in the municipality of Pilar on election day, and sentencing him to suffer imprisonment for thirty days and to pay a fine of P50, with subsidiary imprisonment in case of insolvency, and the costs.

The defendant, who was a special agent of the Philippine Constabulary, contends that he stopped his automobile in front of the municipal building of Pilar for the purpose of delivering to Major Agdamag a revolver that the defendant had taken that day from one Tomas de Martin, who had no license therefor; that he did not know there was a polling place near where he parked his motor car; that he was sixty-three meters from the electoral college when the revolver was taken from him by Jose E. Desiderio, a representative of the Secretary of the Interior.

The evidence shows, however, that the defendant was only ten or twelve meters from the polling place when he was found standing near his automobile with a revolver in his belt, and that the municipal building could not be seen from the polling place; that the defendant was at the time employed as a chauffeur by a senator for that district, and that he had been sent to Pontevedra, a municipality adjoining Pilar. The defendant did not arrest Tomas de Martin, nor does it appear that he caused him to be prosecuted. Tomas de Martin was not called as a witness in this case. Furthermore there is one other fact of record which completely discredits the testimony of the defendant. Major Agdamag, to whom the defendant claims he intended to deliver the revolver, was not the provincial commander of Capiz, but an officer sent from Cebu to Capiz for the purpose of supervising the elections in that province; and taking into consideration the intelligence of the defendant and the nature of his employment, we cannot believe that he did not know the location of the polling place in question. The intent of the defendant in carrying the revolver within the prohibited distance from the polling place is immaterial. (People v. Bayona, p. 181, ante.)

The decision appealed from is affirmed, with the costs against the Appellant.

Avanceña, C.J., Street, Abad Santos and Hull, JJ., concur.

G.R. No. 94521 October 28, 1991OLIVER O. LOZANO, petitioner, vs.HON. COMMISSIONER HAYDEE B. YORAC OF THE COMMISSION ON ELECTIONS, respondents . G.R. No. 94626 October 28, 1991OLIVER O. LOZANO , petitioner, vs.COMMISSIONER ON ELECTIONS and JEJOMAR C. BINAY, respondents . REGALADO, J.:pPetitioner Oliver L. Lozano filed these two special civil actions for certiorari, namely: G.R. No. 94521 which seeks the review of the undated order 1 of respondent Commissioner Haydee B. Yorac denying the motion for her voluntary inhibition and/or disqualification in SPC No. 88-040, entitled "Oliver O. Lozano, et al. vs. Mayor Jejomar C. Binay"; and G.R. No. 94626 which prays for a reversal of the en banc resolution 2 promulgated by respondent Commission on Elections (COMELEC) on August 7, 1990 3 dismissing the disqualification petition and criminal complaint for vote buying against respondent Mayor Jejomar C. Binay in connection with the January 18, 1988 local elections, and its minute resolution of August 15, 1990 4denying due course to petitioner's motion for reconsideration.

The backdrop of this case on record reveals the following antecedent facts:

1. On January 11, 1988, prior to the January 18, 1988 local elections, petitioner and Bernadette Agcorpa, a registered voter of Makati, filed with the COMELEC a petition for disqualification against then candidate for mayor Jejomar C. Binay on the ground that respondent Binay used P9.9 million of municipal funds to enhance his candidacy and his entire ticket under the Lakas ng Bansa.

2. The disqualification case was assigned to the Second Division of the COMELEC composed of Commissioner Haydee B. Yorac, as presiding officer, and Commissioners Andres R. Flores and Magdara B. Dimaampao, as members.

3. The Second Division, through its Presiding Commissioner, referred the case to the Law Department of respondent commission for preliminary investigation of the criminal aspect. On February 4, 1988, Binay filed his counter-affidavit with said department.

4. On June 21, 1988, petitioner filed an Omnibus Motion praying for the inhibition and/or disqualification of Commissioners Yorac and Africa. This was the first of several motions for inhibition filed by petitioner before respondent commission. Petitioner also prayed that the disqualification petition be referred for consideration en banc. Commissioner Yorac denied the motion for inhibition. On August 10, 1988, the COMELEC en banc denied the prayer that the case be heard en banc, ruling that "no substantial reason exists why this case should be taken en banc; and considering finally that the case is set for hearing by the Second Division."

5. On October 26, 1988, petitioner Lozano himself filed a motion to disqualify Commissioner Yorac because she postponed motu proprio a hearing set on the ground that she will study the issue of jurisdiction. Said motion was denied.

6. On November 3, 1988, the COMELEC en banc promulgated Resolution No. 2050 which provides that petitions for disqualification filed prior to the January 18, 1988 local elections based on Section 68 of the Omnibus Election Code but not resolved before the elections shall be referred for preliminary investigation to the Law Department which shall submit its report to the Commission en banc. Pursuant to said resolution, the Second Division on even date referred back the disqualification case against respondent Binay to the Law Department "before taking any action thereon."

7. On November 8, 1988, petitioner filed another motion praying that the disqualification case be heard and decided en banc invoking therein COMELEC Resolution No. 2050. Instead of issuing a formal resolution, respondent COMELEC authorized then Chairman Hilario G. Davide, Jr. (now a member of this Court) to reply to petitioner's counsel.

8. On May 23, 1990, the Law Department submitted its investigation report 5 recommending that criminal charges be filed against respondent Binay for violation of Section 261(a) of the Omnibus Election Code, as follows:

PREMISES CONSIDERED, the Law Department (Investigation and Prosecution Division) RECOMMENDS as follows:

1. To file the necessary information against Mayor Jejomar Binay before the proper Regional Trial Court of the National Capital Region for violation of Section 261(a) of the Omnibus Election Code, the prosecution thereof to be handled by the Special Prosecution Committee;

2. To dismiss the charge against Mayor Jejomar Binay for threats and intimidation under Section 261(e) of the Omnibus Election Code for lack of evidence; and

3. To dismiss the charge against Conchitina Bernardo for insufficiency of evidence.

9. On July 2, 1990, petitioner filed a motion praying that the disqualification case be, resolved jointly with the investigation report of the Law Department.

10 On July 9, 1990, petitioner filed a third motion for the voluntary inhibition and/or disqualification of Commissioner Yorac for having issued a previous memorandum addressed to the chairman and members of respondent commission expressing her opinion that Binay should first be convicted by the regular courts of the offense of vote buying before he could be disqualified. The full text of said memorandum 6 reads:

I submit for the Commission's consideration the matter of the procedural problems in the above case.

The chronology of events, so far as this case is concerned, is as follows:

1. SPC No. 88-040 for the disqualification of Jejomar Binay, then candidate for Mayor of Makati was filed on January 11, 1988. It was assigned to the second Division.

2. On July 29, 1988, petitioners filed a motion to set the case for hearing alleging that the Commission on Audit (COA) had officially confirmed the allegations of the complainants.

3. Hearings were actually conducted on August 11, September 12, October 12 and October 19, 1988.

4. On November 3, 1988, the Commission en banc adopted Resolution No. 88-2050, which, inter aliaprovides that:

1. . . .

In case such complaint was not resolved before the election, the commission may motu proprio, or on motion of any of the parties, refer the complaint to the Law Department of the Commission as an instrument of the latter in the exercise of its exclusive power to conduct a preliminary investigation of all cases involving criminal infractions of the election laws. Such recourse may be availed of irrespective of whether the respondent has been elected or has lost in the election;

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3. The Law Department shall terminate the preliminary investigation within thirty (30) days from receipt of the referral and shall submit its study, report and recommendation to the Commission en banc within five (5) days from the conclusion of the preliminary investigation. If it makes a prima facie finding of guilt, it shall submit with such study the information for filing with the appropriate court.

5. On the same date, conformable with Resolution No. 88-2050, the Second Division referred SPC No. 88-040 to the Law Department.

6. In the course of the investigation by the Law Department, the case became entangled with procedural difficulties the resolution of which has been sought in the Second Division.

My own personal thinking on the matter is that since the preliminary investigation is the determination of criminal liability, with the administrative consequence of removal imposable only as long term sanction, i.e., after final criminal conviction, the matter of procedure in the preliminary investigation is one that should be addressed to the commission en banc rather than to either of its divisions.

11. On August 2, 1990, petitioner received a notice setting the promulgation of judgment en banc for August 6, 1990. Petitioner on August 3, 1990 filed an objection to the promulgation of judgment en banc, allegedly because there was no showing that the case was referred to the commission en banc upon unanimous vote of all the members of the Second Division.

12. In its aforestated August 7, 1990 resolution which is herein assailed, the COMELEC en banc dismissed the petition for disqualification and the criminal complaint for vote buying against respondent Binay. During the promulgation of judgment, petitioner asked that the same be suspended until after the resolution of the legal issues raised involving constitutional and jurisdictional questions. Commissioner Yorac was likewise requested by petitioner to decide the motion for her inhibition. In her undated order subject of the petition in G.R. No. 94521, as stated in limine, Commissioner Yorac denied the motion for for inhibition, stating that:

During the deliberations on this case, I seriously considered inhibiting myself from participating and voting despite the flimsy basis which was cited for it. But I became convinced, from the information that was coming in, that the motion was really part of a numbers game, being played out on the basis of information emanating from the Commission itself as to the developments in the deliberation and the voting. Reliable information also shows that approaches have been made to influence the voting.

It is for this reason that I do not inhibit myself from the voting in this case consistent with my reading of the law and the evidence.

13. The aforesaid resolution of August 7, 1990 dismissed the petition for disqualification for lack of merit. The motion for reconsideration filed by herein petitioner was denied in a resolution dated August 15, 1990, on the ground that "pursuant to Section 1(d), Rule 13 of the Comelec Rules of Procedure, a motion for reconsideration of an en banc ruling of the Commission is one of the prohibited pleadings, and therefore not allowed under the Rules.

Succinctly condensed, the petition filed against respondents COMELEC and Binay raises the following issues:

1. Contrary to the requirement under Section 2, Rule 3 of the COMELEC Rules of Procedure, SPC No. 88-040 was referred to the Comission en banc without the required unanimous vote of all the members of the Second Division.

2. The minute resolution of August 15, 1990 is null and void for having been issued without prior notice to the parties and without fixing a date for the promulgation thereof.

3. Respondent commission committed a grave abuse of discretion amount to lack of jurisdiction in not finding Binay guilty of vote- buying, contrary to the evidence presented by petitioner. 7

In G.R. No. 94521, this Court issued on August 16, 1990 a temporary restraining order 8 ordering respondent Commissioner Yorac to cease and desist from participating in the deliberation and resolution of the motion for reconsideration dated August 9, 1990 filed in SPC No. 88-040, entitled "Oliver O. Lozano, et al. vs. Jejomar Binay." The order was served in the office of Commissioner Yorac on August 17, 1990 at 11:25 A.M. 9 It appears, however, that the motion for reconsideration was denied by respondent commission en banc in a resolution dated August 15, 1990, copy of which was served on petitioner on August 17, 1990 at 12:35 P.M. Consequently, the issue on the inhibition and disqualification of Commissioner Yorac has been rendered moot and academic.

Granting arguendo that the petition for inhibition of Commissioner Yorac has not been mooted by the resolution en banc dismissing the main case for disqualification, petitioner's postulation that she should have inhibited herself form hearing the main case, for allegedly having prejudged the case when she advanced the opinion that respondent Binay could only be disqualified after conviction by the regional trial court, is of exiguous validity. In the first place, the COMELEC Rules of Procedure, specifically Section 1, Rule 4 thereof, prohibits a member from, among others, sitting in a case in which he has proof. There is no showing that the memorandum wherein Commissioner Yorac rendered her opinion was ever made public either by publication or dissemination of the same to the public. Furthermore, the opinion of Commissioner Yorac was based on prior cases for disqualification filed with the COMELEC wherein prior conviction of the respondent was considered a condition sine qua non for the filing of the disqualification case. 10 We accordingly find no compelling reason to inhibit Commissioner Yorac from participating in the hearing and decision of the case.

Similarly, we find the petition in G.R. No. 94626 devoid of merit. Petitioner first avers that under Section 2, Rule 3 of the COMELEC Rules of Procedure, a case pending in a division may be referred to and decided by the Commission en banc only on a unanimous vote of all the members of the division. It is contended that SPC No. 88-040 which was pending before the COMELEC's Second Division was referred to the Commission en banc without the required unanimous vote of all the division members, petitioner alleging that Commissioner Andres R. Flores voted for the referral of the petition for disqualification to the division. It is, therefore, the submission of petitioner that the resolution of the Commission en banc dated August 17, 1990 is null and void for lack of jurisdiction and for being unconstitutional.

The argument of petitioner is not well taken. COMELEC Resolution No. 1050 issued by the commission en banc on November 3, 1988 is the applicable law in this disqualification case. It provides:

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RESOLVED, as it hereby resolves, to formulate the following rules governing the disposition of cases of disqualification filed by virtue of Section 68 of the Omnibus Election Code in relation to Section 6 of R.A. 6646 otherwise known as the Electoral Reforms Law of 1987:

1. Any complaint for the disqualification of a duly registered candidate based upon any of the grounds specifically enumerated under Section 68 of the Omnibus Election Code, filed directly with the Commission before an election in which the respondent is a candidate, shall be inquired into by the Commission for the purpose of determining whether the acts complained of have in fact been committed. Where the inquiry by the Commission results in a finding before election, that

the respondent candidate did in fact commit the acts complained (of), the Commission shall order the disqualification of the respondent candidate from continuing as such candidate.

In case such complaint was not resolved before the election, the Commission may motu proprio, or on motion of any of the parties, refer the complaint to the Law Department of the Commission as the instrument of the latter in the exercise of its exclusive power to conduct a preliminary investigation of all cases involving criminal infractions of the election laws. Such recourse may be availed of irrespective of whether the respondent has been elected or has lost in the election.

2. Any complaint for disqualification based on Section 68 of the Omnibus Election Code in relation to Section 6 of the Rep. Act No. 6646 filed after the election against a candidate who has already been proclaimed as winner shall be dismissed as a disqualification case. However, the complaint shall be referred for preliminary investigation to the Law Department of the Commission.

Where a similar complaint is filed after election but before proclamation of the respondent candidate, the complaint shall, nevertheless, be dismissed as a disqualification case. However, the complaint shall be referred for preliminary investigation to the Law Department. If, before proclamation, the Law Department makes a prima facie finding of guilt and the corresponding information has been filed with the appropriate trial court, the complainant may file a petition for suspension of the proclamation of the respondent with the court before which the criminal case is pending and the said court may order the suspension of the proclamation if the evidence of guilt is strong.

3. The Law Department shall terminate the preliminary investigation within thirty (30) days from receipt of the referral and shall submit its study, report and recommendation to the Commission en banc within five (5) days from the conclusion of the preliminary investigation. If it makes a prima faciefinding of guilt, it shall submit with such study the information for filing with the appropriate court. 11

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Contrary to petitioner's submission that said resolution has been repealed by the COMELEC Rules of Procedure which took effect on November 15, 1988, there is nothing in the resolution which appears to be inconsistent with the procedural rules issued by the COMELEC.

Firstly, Resolution No. 2050 was passed by reason of the variance in opinions of the members of respondent commission on matters of procedure in dealing with cases of disqualification filed pursuant to Section 68 of the Omnibus Election Code in relation to Section 6 of Republic Act No. 6646, or the Electoral Reforms Law of 1987, and the manner of disposing of the same had not been uniform. Hence, the COMELEC decided to lay down a definite policy in the disposition of these disqualification cases. Within this purpose in mind, the Commission en banc adopted Resolution No. 2050. The transitory provision under Section 2, Rule 44 of the COMELEC Rules of Procedure provides that these rules shall govern all cases pending at the time of effectivity thereof, except to the extent that in the opinion of the commission, or the court in appropriate cases, an application would not be feasible or would work injustice, in which event the former procedure shall apply. We believe that Resolution No. 2050 qualifies and should be considered as an exception to the generally retroactive effect of said rules.

Secondly, prior to the issuance of Resolution No. 2050, petitioner had filed several motions with the Second Division asking for the referral of the disqualification case to the Commission en banc. After the COMELEC en banc issued Resolution No. 2050, petitioner filed another motion for the referral of the case to the Commission en banc, specifically invoking Resolution No. 2050. 12 In the words of petitioner in his said motion, under the aforesaid resolution, "once the petition for disqualification is forwarded to the Law Department, the case is deemed en banc because the report is submitted En

banc by the law Department." Petitioner having invoked the jurisdiction of the Commission en banc is now estopped from questioning the same after obtaining an adverse judgment therefrom.

Thirdly, Commissioner Andres R. Flores, who opined that the disqualification case should first be resolved by the Second Division, has since then clarified his position after he was reminded that Resolution No. 2050, which he had admittedly "completely forgotten" had "laid down a definite policy on the disposition of disqualification cases contemplated in Section 68 of the Omnibus Election Code. 13

Lastly, Resolution No. 2050 specifically mandates a definite policy and procedure for disqualification cases. The COMELEC Rules of Procedure speak of special actions, which include disqualification cases, in general. Hence, as between a specific and a general rule, the former shall necessarily prevail.

Anent the propriety of the issuance of the resolution denying petitioner's motion for reconsideration, suffice it to say that the requirement of notice in the promulgation of resolutions and decisions of the COMELEC embodied in Section 5 of Rule 18 of the Rules does not apply in the case at bar for the simple reason that a motion for reconsideration of an en banc ruling, resolution, order or decision is not allowed under Section 1, Rule 13 thereof.

Respondent COMELEC, in dismissing the petition for disqualification and in holding that respondent Binay is not guilty of vote buying, ruled as follows:

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The commission concurs with the findings of the Law Department on enumeration Nos. 2 and 3 but rejects exception to the recommendation for prosecution of respondent Binay under No. 1 therefor, it appearing that there is a clear misappreciation of the evidence submitted considering the inconsistencies in the testimonies of material witnesses for the petitioners, as well as the correct interpretation and application of the law cited as basis for the prosecution of respondent Binay.

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The seventeen (17) Affidavits submitted by petitioners attached to their original petition for disqualification dated January 11, 1988, differ form the twenty (20) affidavits attached to the memorandum of petitioners filed with the Commission (Second Division) on August 22, 1988. The records of the case do not show that these seventeen (17) affidavits attached to the original petition were affirmed by the affiants during the investigation conducted by the Law Department of this Commission. Of the twenty (20) affidavits appended to the Memorandum of August 22, 1988, only five (5) of the affiants were able to affirm their testimonies before hearing officer Alioden Dalaig of the Law Department of this Commission . . .

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In his counter affidavit, respondent Jejomar C. Binay denied the allegations in the petition for disqualification and interposed the defense that:

The Christmas gift-giving is an annual project of the Municipal Government of Makati ever since the time of Mayors Estrella and Yabut in the spirit of yuletide season wherein basic and essential items are distributed to the less fortunate and indigent residents of Makati out of funds appropriated for the purpose duly budgeted and subject to audit by the Commission on Audit and

same were prepared sometime on October 1987 long before I filed my certificate of candidacy and ceased to be the Acting Mayor of Makati, . . .

The alleged ticket bearing my name, assuming its existence, indicates nothing of significance except that of a Christmas and New Year greeting and is not suggestive of anything which may be considered or interpreted to be political in nature such as indorsing my candidacy for that matter. . . .

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It is undisputed that at the time the supposed "gift-giving" transpired between the periods of December 22-30, 1987, respondent Binay was no longer Mayor of the Municipality of Makati having resigned from the position on December 2, 1987, to pursue his candidacy for re-election to the same position. The OIC Mayor of Makati on the dates complained of, December 22-30, 1987, was OIC Mayor Sergio S. Santos who stated in his affidavit dated February 4, 1988, that he was Officer-in-Charge of Makati, Metro Manila, from December 2, 1987 to February 2, 1988, and that as such he implemented on December 18, 1987 the municipal government's annual and traditional distribution of Christmas gifts.

There is ample evidence to show that it was not respondent Binay who "gave" the plastic bags containing Christmas gifts to the witnesses who executed affidavits for the petitioners. The "giver" was in fact the Municipality of Makati. And this is evidenced by the following documents attached to the records of this case:

1) Certification dated January 11, 1988 issued by OIC Roberto A. Chang attached as Annex A to respondent Binay's counter affidavit dated February 5, 1988.

2) COA Report dated January 11, 1988 attached as Annex "R" to the pleading denominated as Motion to Set Hearing filed by complainant Oliver Lozano dated July 26, 1988, filed in connection with SPC No. 88-040 for disqualification against respondent Binay;

The findings of the COA Report itself (dated June 21, 1988) upon which petitioners rely heavily in their disqualifications case against respondent Binay, identify the "giver" of the Christmas gifts as the Municipality of Makati and not respondent Binay. . . .

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Respondent Binay's allegation that the gift-giving was an annual project of the Municipal Government of Makati was not denied nor disputed by the petitioners who in fact made capital of the aforequoted findings of the Commission on Audit in their charge against respondent Binay for alleged misuse of public funds. Also, petitioners in their latest pleading filed with the Commission on July 2, 1990, entitled "Motion To Resolve The Disqualification Case Jointly With The Investigation Report of the Law Department" instead of rebutting respondent Binay's allegation that the Christmas gift giving is an annual project of the Municipal Government of Makati ever since the time of Mayors Estrella and Yabut, merely stated that:

. . . Assuming arguendo that Mayor Estrella had practiced this gift-giving every Christmas, the fact is, that there had been no electoral campaign on-going during such distribution and/or no election was scheduled during Mayor Estrella's tenure.

"This is also true in the case of Mayor Yabut."

More Petitioners' documentary evidence, among which are Exhibits "A", "A-1"; "A-2"; "A-20";"B"; "B-1"; "B-2"; "B-25"; "C-1"; "C-2"; "C-27"; "D"; "E" and "F", all show indubitably that the Christmas packages which were distributed between the periods of December 22-30, 1987, were ordered, purchased and paid for by the Municipality of Makati and not by respondent Binay. There is more than prima facieproofs to show that those gift packages received by the witnesses for petitioners were intended as Christmas presents to Makati's indigents in December 1988.

It would therefore appear from the evidence submitted by the petitioners themselves that the giver, if any, of the Christmas gifts which were received by the witnesses for the petitioners was in fact, the Municipality of Makati and not respondent Jejomar C. Binay. The presence of respondent Binay, if at all true at the time the gifts were distributed by the Municipality of Makati to the recipients of the Christmas gifts, was incidental. It did not make respondent Binay as the "giver" of those Christmas gifts. Nor did the giving of such gifts by the Municipal Government of Makati influence the recipients to vote for respondent Binay considering that the affiants themselves who testified for the petitioners admitted and were aware that the gift packages came from the Municipality of Makati and not from respondent Jejomar C. Binay.

The foregoing conclusion is confirmed by petitioners' witnesses in the persons of Lolita Azcarraga, Johnson Carillo, Rommel Capalungan, Renato Leonardo, Manuel Allado, Edwin Pascua, Wilberto Torres, Apolonio De Jesus, Caridad Reposar, Artemus Runtal and Jose Ermino who, in their sworn statements, uniformly described the gift package as labelled with the words "Pamaskong Handog ng Makati", a clear indication that the "giver" of the Christmas gifts was indeed the Municipality of Makati and not respondent Binay.

There is one aspect of this case which somehow lends credence to respondent Binay's claim that the instant petition is a political harassment. It is noted by the commission that while the criminal indictment against respondent Binay is for alleged violation of Section 261 (a) of the Omnibus Election Code, petitioners did not implead as party respondents the affiants who received the Christmas packages apparently in exchange for their votes. The law on "vote buying" [Section 261 (a)supra] also penalizes "vote-buying" and "vote-selling", then the present indictment should have been pursued against both respondent Binay and against the affiants, against the former for buying votes and against the latter for selling the votes. 14

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We uphold the foregoing factual findings, as well as the conclusions reached by respondent COMELEC, in dismissing the petition for the disqualification of respondent Binay. No clear and convincing proof exists to show that respondent Binay was indeed engaged in vote buying. The traditional gift-giving of the Municipality of Makati during the Christmas season is not refuted. That it was implemented by respondent Binay as OIC Mayor of Makati at that time does not sufficiently establish that respondent was trying to influence and induce his constituents to vote for him. This would be stretching the interpretation of the law too far. Petitioner deduces from this act of gift-giving that respondent was buying the votes of the Makati residents. It requires more than a mere tenuous deduction to prove the offense of vote-buying. There has to be concrete and direct evidence or, at least, strong circumstantial evidence to support the charge that respondent was indeed engaged in vote-buying. We are convinced that the evidence presented, as swell as the facts obtaining in the case at bar, do not warrant such finding.

Finally, we have consistently held that under the 1935 and 1973 Constitutions, and the same is true under the present one, this court cannot review the factual findings of the Commission on Elections absent a grave abuse of discretion and a showing of arbitratriness in its decision, order or resolution. Thus:

The principal relief sought by petitioner is predicated on the certiorari jurisdication of this court as provided in Section 11, Article XII-C, 1973 Constitution. It is, as explained in Aratuc vs. Commission on Elections, "not as broad as it used to be" under the old Constitution and it "should be confined to instances of grave abuse of discretion amounting to patent and substantial denial of due process." Moreover, the legislative construction of the constitutional provision has narrowed down "the scope and extent of the inquiry the Court is supposed to undertake to what is strictly the office of certiorarias distinguished from review." And in Lucman vs. Dimaporo, a case decided under the Constitution of 1935, this Court speaking through then Chief Justice Concepcion, ruled that "this Court can not . . . review rulings or findings of fact of the Commission on Elections," as there is "no reason to believe that the framers of our Constitution intended to place the [said] Commission — created and explicitly made "independent" by the Constitution itself — on a lower level" than statutory administrative organs (whose factual findings are not "disturbed by courts of justice, except when there is absolutely no evidence or no substantial evidence in support of such findings.") Factual matters were deemed not proper for consideration in proceedings brought either "as an original action for certiorari or as an appeal by certiorari. . . [for] the main issue in . . . certiorari is one of jurisdiction — lack of jurisdiction or grave abuse of discretion amounting to excess of jurisdiction" while "petitions for review oncertiorari are limited to the consideration of questions of law."

The aforementioned rule was reiterated in the cases of Ticzon and Bashier. Indeed, as early as the year 1938, applying Section 4, Article VI of the 1935 Constitution, this Court held that the Electoral Commission's "exclusive jurisdiction" being clear from the language of the provision, "judgment rendered . . . in the exercise of such an acknowledged power is beyond judicial interference, except "upon a clear showing of such arbitrary and improvement use of the power as will constitute a denial of due process of law." Originally lodged in the legislature, that exclusive function of being the "sole judge" of contests "relating to the election, returns, and qualifications "of members of the legislature was transferred "in its totality" to the Electoral Commission by the 1935 Constitution. That grant of power, to use the language of the late justice Jose P. Laurel, "was intended to be as complete and unimpaired as if it had remained originally in the legislature . . . " . . .

. . . A review of the respondent Commission's factual findings/conclusions made on the basis of the evidence evaluated is urged by the petitioner, "if only to guard against or prevent any possible misuse or abuse of power." To do so would mean "digging into the merits and unearthing errors of judgment" rendered on matters within the exclusive function of the Commission, which is proscribed by the Aratuc and other decisions of this Court. . . . 15

The charge against respondent Binay for alleged malversation of public funds should be threshed out and adjudicated in the appropriate proceeding and forum having jurisdiction over the same. Consequently, it was properly dismissed by the Commission on Elections.

WHEREFORE, the questioned order of respondent Commissioner Haydee B. Yorac in G.R. No. 94521 and the challenged resolutions of respondent Commission on Elections subject of the petition in G.R. No. 94626 are hereby AFFIRMED. The temporary restraining order issued in G.R. No. 94521 is hereby LIFTED and SET ASIDE.

SO ORDERED.

G.R. No. 87743 August 21, 1990ROBERT F. ONG, petitioner vs.MARIA TERESITA HERRERA-MARTINEZ, THE CITY COUNCIL OF MANILA and THE CITY TREASURER OF MANILA, respondents.

PARAS, J.:Petitioner Robert F. Ong assails the appointment and assumption of duties as Councilor in the City Council of Manila of respondent Ma. Teresita Herrera-Martinez, in place of deceased Councilor Saturnino Herrera who represented the Third District of Manila.

It appears that Saturnino Herrera, who was the father of respondent Martinez, was one of the Liberal Party candidates duly elected as Councilor for Manila's Third District in the local elections of January 18, 1988. He performed his duties as such councilor until his death on October 14, 1988, thus leaving the position open for the appointment of a qualified replacement from the same political party where the deceased councilor belonged.

Petitioner, who was a defeated candidate of the Liberal Party in the Third District of Manila, on the strength of an indorsement by the Treasurer of the said party in the district which was allegedly supported by 80% of the ward leaders of the party of the same district as embodied in their resolution, was appointed on February 9, 1989 as member of the Sangguniang Panglunsod (City Council) by the Secretary of Local Government to fill the vacancy created by the late Councilor Saturnino Herrera. On the same date, petitioner took his oath of office as such councilor after which the Secretary of Local Government informed Mayor Gemiliano Lopez, Jr. and Vice-Mayor and Presiding Officer Danilo Lacuna of the appointment of petitioner. Likewise, in his lst Indorsement of March 13, 1989, the Undersecretary of Local Government forwarded petitioner's appointment to Presiding Officer of the City Council Danilo Lacuna.

In the regular session of the City Council held on March 9, 1989, said Council, acting on the letter of the Secretary of Local Government dated February 9, 1989 informing them of the four appointments including that of petitioner, moved to exclude petitioner and the other appointees from the session hall. In the subsequent session of the Council on March 14, 1989, petitioner and his co-appointees were formally excluded from the session hall with sixteen (16) councilors voting for such exclusion and none against it, with the rest of the Council members abstaining.

The records show that respondent Martinez went through the legal formalities or standard procedure prior to her appointment to the vacated position subject of this. controversy.

Thus, on November 4, 1988, nine out of the eleven incumbent LP Councilors in the City Council endorsed the appointment of respondent per their resolution. This resolution was forwarded to the Office of the Chairman of the Liberal Party, Manila Chapter.

On March 1, 1989, aforesaid Chairman, in turn, nominated respondent for appointment per his letter-nomination to President Corazon Aquino thru the Secretary of Local Government. On March 8, 1989, Senate President Jovito Salonga as National Head of the Liberal Party was furnished with a copy of this letter-nomination.

On March 13, 1989, Congressman Leonardo Fuguso as President of the LP Third District Chapter also nominated respondent to National President Salonga of the Party. President Salonga, in turn, nominated respondent to Secretary Luis Santos of the Department of Local Government pursuant to Section 50 of the Local Government Code.

On March 17, 1989, Secretary Santos, acting for the President, issued an appointment to respondent.

Then on March 21, 1989, the first session day after respondent's appointment, the City Council, by a vote of twenty-four members in favor with no member opposing recognized her as member of said Council.

Finally, the Presiding Officer of the City Council directed its Secretariat to include the name of respondent in the payroll of the City Council.

Respondent thus assumed and performed her duties as Councilor for the Third District of Manila until the restraining order of the Court issued on April 20, 1989 was received by respondent.

This petition now seeks to annul the appointment of respondent Martinez and to declare petitioner to be the holder of the position of Councilor in place of deceased Saturnino Herrera.

Petitioner anchors his appeal on the following grounds:

1. The Secretary of the Department of Local Government, in appointing respondent Martinez on March 17, 1989, violated the election ban on appointments under Res. No. 2054 of the Comelec dated December 7, 1988 since her appointment was not cleared for exemption from the election ban and, therefore, the same was made beyond and in excess of the Secretary's authority and by reason of which, the appointment is null and void.

2. Respondent Martinez is not a member of the Liberal Party and cannot be appointed to the position of Councilor, a vacancy created by the death of a member of said Party.

3. Petitioner's appointment is valid, complete and beyond recall.

4. Petitioner is entitled to the position held by respondent. Respondent, on the other hand, argues:

1. Petitioner misled the Court in claiming that he has a right to the contested position. His appointment was indorsed only by the Treasurer of the LP Chapter, 3rd District of Manila. The Treasurer's indorsement was not known nor authorized by the head of the LP in said district. Neither was the nomination brought to the attention of the Chairman of the LP, Manila Chapter. The proper procedure was not observed by petitioner. The unauthorized action of petitioner cannot be cured or ratified by an alleged resolution of 80% of ward leaders and which resolution was adopted long after the appointment of petitioner. Hence, petitioner's appointment was void from the very beginning for lack of authority of the Treasurer who nominated him.

Contrary to petitioner's claim, respondent also contends that the former has not assumed office; neither has he exercised or performed the functions of the position because he was prevented from doing so by the outright refusal of the City Council to recognize his appointment.

2. Petitioner has no right to the position and for which reason, he lacks the legal personality to institute the present petition for quo warranto, mandamus and prohibition.

While petitioner claims that he took his oath on February 9, 1989 which was a calculated move to avoid the election ban on appointments, he used a Residence Certificate issued on February 22, 1989 only. This means that he could not have taken his alleged oath before the issuance of the residence certificate.

3. The appointment of respondent possesses all the requisites of a valid appointment according to legal and regular procedures. She avers that her appointment was indorsed by nine out of eleven LP incumbent councilors and that her nomination was favorably indorsed by the Liberal Party hierarchy from the Chairman of the Third District, thru the Chairman of the Manila Chapter up to the National President of the LP; and, that she was duly appointed on the basis of the series of nominations of the LP hierarchy.

4. The appointment of respondent is not covered by the election ban contemplated under Sec. 261 (g) of the Omnibus Election Code.

The case for respondent appears meritorious. Respondent had gone through the regular and standard nomination process which had been officially acknowledged by the Secretary of Local Government.

Sec. 50 of the Local Government Code specifically provides:

In case of permanent vacancy in the sangguniang panlalawigan, sangguniang panglungsod, sangguniang bayan or sangguniang barangay, the President of the Philippines, upon recommendation of the Minister of Local Government, shall appoint a qualified person to fill the vacancy in the sangguniang panlalawigan and sangguniang panglunsod of highly urbanized and component cities; the governor, in the case of sangguniang bayan members; or the city or municipal mayor, in the case of sangguniang barangay members. Except for the sangguniang barangay, the appointee shall come from the political party of the sangguniang member who caused the vacancy, and shall serve the unexpired term of the vacant office. (Emphasis supplied)

Since deceased Councilor Saturnino Herrera who had caused the contested vacancy comes from the Liberal Party, it follows that his mode of replacement should be governed by the standing rules of the aforenamed Party.

Thus, We quote the pertinent sections of the 1967 Liberal Party Revised Rules (1971 Reprint furnished by the Comelec):

Rule 32. Approval of Resolution of District, Provincial, City of Municipal Government . Resolutions adopted by provincial, district, city or municipal committee shall not be final unless approved by the National Directorate, the Executive Committee, or the Party President. (Under Chapter Ill on The Manila City Special Rules)

Thus, too, Section A (3) of Rule 10 of the Liberal Party Rules (on the Powers of the National Directorate) provides:

3) To choose and proclaim official candidates of the Party for provincial positions, and whenever necessary, convenient or proper, also for Municipal and City positions, in accordance with the requirements of these Rules.

Conformably with the aforequoted provisions of the Liberal Party Rules, all resolutions, which may include resolutions nominating replacements for deceased city councilors, should first be approved either by the National Directorate, the Executive Committee or the Party President in order that said resolutions could be considered final and valid.

Logically and by analogy, the National Directorate or in its stead, the Executive Committee or the Party President may choose and nominate the party's proposed appointee, from among its members, to the position vacated by a deceased city councilor.

Correspondingly, We quote hereunder the body of the letter-nomination of the then LP National President Jovito R. Salonga explicitly manifesting the full support of the party hierarchy for herein respondent. Thus —

I hereby nominate in behalf of the Liberal Party of which I am the incumbent President Ms. Maria Teresita Herrera-Martinez, to take the place of Councilor Saturnino C. Herrera of the Liberal Party who passed away on October 14,1988.

Ms. Martinez is likewise the recommendee of the Liberal Party, Manila Chapter headed by former Assemblyman Lito Atienza. She is also recommended by Congressman Leonardo Fuguso. Please be advised that the Liberal Party, under which the late Councilor Saturnino C. Herrera was elected, has no nominee to the vacated position other than Ms. Maria Teresita Herrera-Martinez. This is also to serve notice that no other person is authorized to nominate any LP member to any vacancy in the City Council of Manila." (Emphasis supplied)

Acting on the solid recommendation of the LP hierarchy, from the district level up to the national level, the Secretary of Local Government correspondingly issued the letter-appointment to respondent Martinez, the pertinent portion of which reads as follows:

Upon the recommendation of the President of the Liberal Party and the Chapter President of the Liberal Party, 3rd District of the City of Manila, and pursuant to the provisions of existing laws, you are hereby appointed member of the Sangguniang Panglungsod, City of Manila, Vice Councilor Saturnino C. Herrera. (Emphasis supplied)

Notably, respondent's appointment was accepted or recognized by the City Council in its session of March 21, 1989. The minutes of said session reveal that twenty-four (24) councilors voted to accept the appointment of respondent and not a single member objected to or opposed the acceptance. Right then and there, the Presiding Officer announced the acceptance of respondent's appointment and the Chair directed the Secretariat to include her name as a new member of the City Council.

In the case of petitioner, however, a very different scenario took place. The letter dated February 9, 1989 of Secretary Luis Santos informing Vice-Mayor and Presiding Officer Lacuna that he had appointed petitioner and three other appointees, carried a request that due recognition be accorded to them, particularly petitioner as member of the Council. Petitioner and the other appointees, as per minutes of the Council's session of March 9, 1989, were excluded from the session hall by reason of the seconded motion of the Majority Floor Leader. In the subsequent session of the Council on March 14, 1989, petitioner and his co-appointees were formally excluded from the session hall when sixteen (1 6) members of the Council voted in favor of their exclusion and no one against it. Significantly, such exclusion meant that the City Council refused to recognize their appointments.

As a conclusive confirmation of the non-recognition of petitioner's defective appointment, the Secretary of Local Government recalled the former's appointment in his letter of March 17, 1989. The letter thus reads:

Dear Mr. Ong:

In connection with our letter of February 9,1989, appointing you as Sangguniang Panglunsod member of the City of Manila as a consequence of the death of Councilor Saturnino C. Herrera, please be informed that we are recalling said appointment it appearing that you were not recommended for the position by the appropriate leader of the Liberal Party as mandated by the sub-section b(1) Rule XIX of the, Rules and Regulations Implementing the Local Government Code (Batas Pambansa Blg. 337). (Emphasis supplied)

Both petitioner and respondent have invoked the election ban imposed under Sec. 261 (g) of the Omnibus Election Code. The election ban covered the period from February 11 to March 27, 1989 by reason of the Barangay election held on March 28, 1989. Both parties have capitalized on the prohibitive provision for the purpose of having their respective appointments declared illegal or null and void.

Sec. 261 (g) of the Omnibus Election Code provides thus:

(g) Appointment of new employees, creation of new position, promotion, or giving salary increases. During the period of forty- five days before a regular election and thirty days before a special election, (1) any head, official or appointing officer of a government office, agency or instrumentality, whether national or local, including government-owned or controlled corporations, who appoints or hires any new employee whether provisional, temporary or casual, or creates and fills any new position, except upon prior authority of the Commission. The Commission shall not grant the authority sought unless, it is satisfied that the position to be filled is essential to the proper functioning of the office or agency concerned, and that the position shall not be filled in a manner that may influence the election.

As an exception to the foregoing provisions, a new employee may be appointed in case of urgent need: Provided, however, That notice of the appointment shall be given to the Commission within three days from the date of the appointment. Any appointment or hiring in violation of this provision shall be null and void.

The aforequoted provision does not apply to both assailed appointments because of the following reason:

The permanent vacancy for councilor exists and its filling up is governed by the Local Government Code while the appointment referred to in the election ban provision is covered by the Civil Service Law.

For having satisfied the formal requisites and procedure for appointment as Councilor, which is an official position outside the contemplation of the election ban, respondent's appointment is declared valid.

The issue on the alleged discrepancy between the dates of petitioner's oath and his residence certificate need not be tackled now because it will not anymore affect the recalled appointment of petitioner. If ever, the matter casts a doubt on petitioner's credibility and honesty.

WHEREFORE, the petition is hereby DISMISSED, and the temporary restraining order is correspondingly LIFTED.

SO ORDERED.

DOMINADOR REGALADO, JR., petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents . Spped D E C I S I O NMENDOZA, J.:This is a petition for review on certiorari of the decision[1] of the Court of Appeals affirming the ruling of the Regional Trial Court, Branch 38, Negros Oriental, which found petitioner Dominador Regalado, Jr. guilty of violating 261(h) of the Batas Pambansa Blg. 881 (Omnibus Election Code), as amended.[2]

The Information against petitioner alleged: Josp-ped

That on or about January 25, 1988, at Tanjay, Negros Oriental, Philippines, and within the jurisdiction of this Honorable Court, said accused DOMINADOR S. REGALADO, JR., [as] OIC Mayor of the Municipality of Tanjay, Negros Oriental, did then and there unlawfully, feloniously and illegally TRANSFER one MRS. EDITHA P. BARBA, a permanent Nursing Attendant, Grade I, in the Office of the [M]ayor of Tanjay, from her permanent assignment to a very remote Barangay of Sto. Nio during the election period and without obtaining prior permission or clearance from the Commission on Elections, Manila.

The evidence for the prosecution shows that on January 15, 1987, complainant Editha Barba was appointed nursing attendant in the Rural Health Office of Tanjay, Negros Oriental by then Officer-In-Charge Mayor Rodolfo Navarro.[3] Although she was detailed at, and received her salary from, the Office of the Mayor, she reported for work at the Puriculture Center, Poblacion, Tanjay. As Navarro decided to run for mayor of Tanjay in the January 18, 1988 elections, petitioner Dominador Regalado, Jr. was appointed substitute OIC-Mayor. His brother, Arturo S. Regalado, was also a mayoralty candidate.

Petitioners brother won in the elections. Four days later, on January 22, 1988, petitioner, still sitting as OIC-Mayor, issued a memorandum to Barba informing her that effective January 25, 1988, she would be reassigned from Poblacion, Tanjay to Barangay Sto. Nio,[4] about 25 kilometers from Poblacion.[5] The transfer was made without the prior approval of the Commission on Elections (COMELEC). Barba continued to report at the Puriculture Center, Poblacion, Tanjay, however. Hence, on February 18, 1988, petitioner issued another memorandum to Barba directing her to explain, within 72 hours, why she refuses to comply with the memorandum of January 22, 1988.[6]Spp-edjo

In response, Barba, on February 21, 1988, sent a letter to petitioner protesting her transfer which she contended was illegal.[7] She then filed, on February 16, 1988, a complaint[8] against petitioner for violation of 261(h) of the Omnibus Election Code, as amended, and after preliminary investigation, the Provincial Election Officer of Negros Oriental, Atty. Gerardo Lituanas, charged petitioner before the Regional Trial Court, Branch 38, Negros Oriental.

On September 27, 1991, the lower court rendered a decision, the dispositive portion of which states:[9]

Finding the accused guilty beyond reasonable doubt of a violation of Section 261, paragraph (h), of the Omnibus Election Code, the accused Dominador S. Regalado, Jr., is sentenced to undergo imprisonment for an indeterminate period ranging from one (1) year minimum to three (3) years maximum without the benefit of probation and to suffer disqualification to hold public office and deprivation of the right of suffrage. He is further sentenced to indemnify the offended party, Editha P. Barba, as civil liability arising from the offense charged[,] in the sum of Five Hundred (P500.00) Pesos . . . . for moral damages. Mi-so

As petitioners motion for reconsideration was denied,[10] he elevated the matter to the Court of Appeals, which, on February 3, 1994, affirmed the lower courts decision. He moved for a reconsideration, but his motion was likewise denied, hence this appeal.

Petitioner alleges that

I. THE PUBLIC RESPONDENT FAILED TO CONSIDER THE ORGANIZATIONAL STRUCTURE OF THE RURAL HEALTH UNIT OF THE MUNICIPALITY OF TANJAY, NEGROS ORIENTAL, VIZ-A-VIZ, THE LETTERS OF APPOINTMENT OF PRIVATE RESPONDENT.

II. THE MEMORANDUM DID NOT EFFECT A TRANSFER, BUT MERELY A "RE-ASSIGNMENT" OF PRIVATE RESPONDENT.

III. EXIGENCIES OF SERVICE WERE NOT ACCOUNTED FOR.[11]

Petitioners contentions have no merit.

First. The two elements of the offense prescribed under 261(h) of the Omnibus Election Code, as amended, are: (1) a public officer or employee is transferred or detailed within the election period as fixed by the COMELEC, and (2) the transfer or detail was effected without prior approval of the COMELEC in accordance with its implementing rules and regulations.[12]Ne-xold

The implementing rule involved is COMELEC Resolution No. 1937,[13] which pertinently provides:

Section 1. Prohibited Acts.

. . . .

Effective November 19, 1987 up to February 17, 1988, no public official shall make or cause any transfer or detail whatsoever of any officer or employee in the Civil Service, including public school teachers, except upon prior approval of the Commission.

Section 2. Request for authority of the Commission. - Any request for . . . . approval to make or cause any transfer or detail must be submitted in writing to the Commission stating all the necessary data and reason for the same which must satisfy the Commission that the position is essential to the proper functioning of the office or agency concerned, and that the . . . . filling thereof shall not in any manner influence the election.

Petitioner admits that he issued the January 22, 1988 memorandum within the election period set in Resolution No. 1937 without the prior approval of the COMELEC. He contends, however, that he did not violate 261(h) because he merely effected a "re-assignment" and not a "transfer" of personnel by moving Barba from one unit or place of designation (Poblacion, Tanjay) to another (Sto. Nio, Tanjay) of the same office, namely, the Rural Health Office of Tanjay, Negros Oriental.[14] In support of his contention, he relies upon the following portions of 24 of P.D. No. 807 (Civil Service Law):[15]Man-ikx

(c) Transfer a movement from one position to another which is of equivalent rank, level, or salary without break of service involving the issuance of an appointment.

. . . .

(g) Reassignment an employee may be reassigned from one organizational unit to another in the same agency. Provided, that such reassignment shall not involve a reduction in rank, status, or salary.

Petitioner, however, ignores the rest of 24(c) which provides that:

[A transfer] shall not be considered disciplinary when made in the interest of the public service, in which case, the employee concerned shall be informed of the reasons therefor. If the employee believes that there is no justification for the transfer, he may appeal his case to the Commission.

The transfer may be from one department or agency to another or from one organizational unit to another in the same department or agency: Provided, however, That any movement from the non-career service to the career service shall not be considered a transfer. (Emphasis added) Manik-s

Thus, contrary to petitioners claim, a transfer under 24(c) of P.D. No. 807 in fact includes personnel movement from one organizational unit to another in the same department or agency.

Moreover, 261(h) of B.P. No. 881, as amended, provides that it is an election offense for

Any public official who makes or causes any transfer or detail whatever of any officer or employee in the civil service including public school teachers, within the election period except upon prior approval of the Commission. (Emphasis added)

As the Solicitor General notes, "the word transfer or detail, as used [above], is modified by the word whatever. This indicates that any movement of personnel from one station to another, whether or not in the same office or agency, during the election is covered by the prohibition."[16]

Finally, the memorandum itself issued by petitioner to Barba on January 22, 1988 stated that the latter was being "transferred," thus:[17]Man-ikan

Effective Monday, January 25, 1988, your assignment as Nursing Attendant will be transferred from RHU I Tanjay Poblacion to Barangay Sto. Nio, this Municipality.

You are hereby directed to perform the duties and functions as such immediately in that area.

For strict compliance.(Emphasis added)

Second. Petitioner next contends that his order to transfer Barba to Barangay Sto. Nio was prompted by the lack of health service personnel therein and that this, in effect, constitutes sufficient justification for his non-compliance with 261(h).[18]

The contention has no merit.

It may well be that Barangay Sto. Nio in January 1988 was in need of health service personnel. Nonetheless, this fact will not excuse the failure of petitioner to obtain prior approval from the COMELEC for the movement of personnel in his office.

Indeed, appointing authorities can transfer or detail personnel as the exigencies of public service require. [19] However, during election period, as such personnel movement could be used for electioneering or even to harass subordinates who are of different political persuasion, 261(h) of the Omnibus Election Code, as amended, prohibits the same unless approved by the COMELEC.

Third. The award of P500,000.00 as moral damages to Barba must be deleted. Under 264, par. 1 of the Omnibus Election Code, as amended, the only imposable penalties for the commission of any of the election offenses thereunder by an individual are Ol-dmiso

imprisonment of not less than one year but not more than six years [which] shall not be subject to probation. In addition, the guilty party shall be sentenced to suffer disqualification to hold public office and deprivation of the right of suffrage.

WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the MODIFICATION that the award of moral damages is deleted. Nc-m

SO ORDERED.

COMMISSION ON ELECTIONS, petitioner, vs . HON LUCENITO N. TAGLE, Presiding Judge, Regional Trial Court, Branch 20, Imus, Cavite, respondent .

D E C I S I O NDAVIDE, JR., C.J.:In this special civil action for certiorari and mandamus, petitioner Commission on Elections (COMELEC) seeks the nullification of the orders of 16 March 2001[1] and 9 May 2001[2] of respondent Judge Lucenito N. Tagle of the Regional Trial Court (RTC), Branch 20, Imus, Cavite, denying petitioners motion to dismiss Criminal Cases Nos. 7950-00 to 7959-00 and 7980-00 and motion for reconsideration, respectively.

During the 11 May 1998 elections, Florentino A. Bautista ran for the position of mayor in the Municipality of Kawit, Cavite. On 8 July 1998, he filed with the COMELEC a complaint against then incumbent mayor Atty. Federico Poblete, Bienvenido Pobre, Reynaldo Aguinaldo, Arturo Ganibe, Leonardo Llave, Diosdado del Rosario, Manuel Ubod, Angelito Peregrino, Mario Espiritu, Salvador Olaes and Pedro Paterno, Jr., for violation of Section 261 (a) and (b) of the Omnibus Election Code. The complaint was supported by the separate affidavits of forty-four (44) witnesses attesting to the vote-buying activities of the respondents and was docketed as E.O. Case No. 98-219.

On 25 February 1999, upon the recommendation of its Law Department, the COMELEC en banc issued a resolution[3] directing the filing of the necessary information against the respondents in E.O. Case No. 98-219 and authorizing the Director IV of the Law Department to designate a COMELEC prosecutor to handle the prosecution of the cases and to file the appropriate motion for the preventive suspension of the respondents.

The Law Department filed the corresponding information against the respondents in E.O. Case No. 98-219 before the RTC, Branch 90, Imus, Cavite, which was docketed as Criminal Case No. 7034-99.

Before the trial of Criminal Case No. 7034-99 commenced, or on 2 December 1999, a complaint was filed by Innocencio Rodelas and Gerardo Macapagal with the Office of the Provincial Prosecutor in Imus, Cavite, for violation of Section 261(a) of the Omnibus Election Code against the witnesses in the criminal case for vote-buying, who were the witnesses in E.O. Case No. 98-219. The complaint was docketed as I.S. No. 1-99-1080.

On 10 April 2000, the Office of the Provincial Prosecutor resolved to file separate informations for vote-selling in the various branches of the RTC in Imus, Cavite, against the respondents in I.S. No. 1-99-1080. The cases were docketed as (1) Criminal Cases Nos. 7940-00 to 7949-00 and 7981-00, which were assigned to Branch 22; (2) Criminal Cases Nos. 7973-00 to 7979-00 and 7970-00, assigned to Branch 21; (3) Criminal Cases Nos. 7950-00 to 7959-00 and 7980-00, assigned to Branch 20; and (4) Criminal Cases Nos. 7960-00 to 7969-00, assigned to Branch 90.

On 23 June 2000, the respondents in I.S. No. 1-99-1080 appealed before the COMELEC the 10 April 2000 Resolution of the Provincial Prosecutor. On 6 July 2000, the COMELEC en bancdenied the appeal for lack of jurisdiction.[4] However, upon the urgent motion to set for hearing the appeal, the COMELEC en banc resolved to defer action on the appeal and refer the same to the Law Department for comment and recommendation.[5]

The Law Department of the COMELEC filed motions to suspend proceedings before Branches 20, 21, 22 and 90 of the RTC of Imus, Cavite, until the COMELEC would have resolved the appeal of the respondents in I.S. No. 1-99-1080. The Presiding Judge of Branch 22 granted the motion for the suspension of proceedings in Criminal Cases Nos. 7940-00 to 7949-00 and 7981-00.

In its Minute Resolution No. 00-2453,[6] the COMELEC en banc, upon the recommendation of its Law Department, declared null and void the resolution of the Office of the Provincial Prosecutor in I.S. No. 1-99-1080. It held that the respondents therein are exempt from criminal prosecution pursuant to the fourth paragraph of Section 28 of R.A. No. 6646,[7] otherwise known as The Electoral Reforms Law of 1987, which grants immunity from criminal prosecution persons who voluntarily give information and willingly testify against those liable for vote-buying or vote-selling. It further directed the Law Department to file the necessary motions to dismiss the criminal cases filed against the said respondents.

Pursuant to Minute Resolution No. 00-2453, the Law Department filed a motion to dismiss [8] Criminal Cases Nos. 7950-00 to 7959-00 and 7980-00 before Branch 20 of the RTC of Imus, Cavite, presided by herein respondent judge. The latter, however, denied the said motion and the motion for reconsideration. According to respondent judge, before one can be exempt from prosecution under the fourth paragraph of Section 28 of R.A. No. 6646, it is necessary that such person has already performed the overt act of voluntarily giving information or testifying in any official investigation or

proceeding for the offense to which such information or testimony was given. It was thus premature to exempt the respondents in I.S. No. 1-99-1080 from criminal prosecution, since they have not yet testified.

Hence, this petition, ascribing to the respondent judge grave abuse of discretion amounting to excess or lack of jurisdiction in peremptorily denying the prosecutions motion to dismiss Criminal Cases Nos. 7950-00 to 7959-00 and 7980-00.

This Court referred the petition to the Office of the Solicitor General (OSG) and required it to manifest whether it is adopting the petition.[9] In a Manifestation and Motion[10] filed with this Court, the OSG stated that it repleads the submissions contained in the petition and adopts the petition as its own.

The petition is meritorious.

A free, orderly, honest, peaceful, and credible election is indispensable in a democratic society. Without it, democracy would not flourish and would be a sham. Election offenses, such as vote-buying and vote-selling, are evils which prostitute the election process. They destroy the sanctity of the votes and abet the entry of dishonest candidates into the corridors of power where they may do more harm. As the Bible says, one who is dishonest in very small matters is dishonest in great ones. One who commits dishonesty in his entry into an elective office through the prostitution of the electoral process cannot be reasonably expected to respect and adhere to the constitutional precept that a public office is a public trust, and that all government officials and employees must at all times be accountable to the people and exercise their duties with utmost responsibility, integrity, loyalty, and efficiency.

The provision of law alleged to have been violated by the respondents in E.O. Case No. 98-219, who are the accused in Criminal Case No. 7034-99, reads as follows:

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

(a) Vote-buying and vote-selling. - (1) Any person who gives, offers or promises money or anything of value, gives or promises any office or employment, franchise or grant, public or private, or makes or offers to make an expenditure, directly or indirectly, or cause an expenditure to be made to any person, association, corporation, entity, or community in order to induce anyone or the public in general to vote for or against any candidate or withhold his vote in the election, or to vote for or against any aspirant for the nomination or choice of a candidate in a convention or similar selection process of a political party.

(2) Any person, association, corporation, group or community who solicits or receives, directly or indirectly, any expenditure or promise of any office or employment, public or private, for any of the foregoing considerations.

(b) Conspiracy to bribe voters. - Two or more persons whether candidates or not, who come to an agreement concerning the commission of any violation of paragraph (a) of this section and decide to commit it.

One of the effective ways of preventing the commission of vote-buying and of prosecuting those committing it is the grant of immunity from criminal liability in favor of the party whose vote was bought. This grant of immunity will encourage the recipient or acceptor to come into the open and denounce the culprit-candidate, and will ensure the successful prosecution of the criminal case against the latter. Congress saw the wisdom of this proposition, and so Section 28 of R.A. No. 6646 on Prosecution of Vote-Buying and Vote-Selling concludes with this paragraph:

The giver, offeror, the promisor as well as the solicitor, acceptor, recipient and conspirator referred to in paragraphs (a) and (b) of Section 261 of Batas Pambansa Blg. 881 shall be liable as principals: Provided, That any person, otherwise guilty under said paragraphs who voluntarily gives information and willingly testifies on any violation thereof in any official investigation or proceeding shall be exempt from prosecution and punishment for the offenses with reference to which his information and testimony were given: Provided, further, That nothing herein shall exempt such person from criminal prosecution for perjury or false testimony.

However, to avoid possible fabrication of evidence against the vote-buyers, especially by the latters opponents, Congress saw it fit to warn vote-sellers who denounce the vote-buying that they could be liable for perjury or false testimony should they not tell the truth.

It must be stressed that the COMELEC has the exclusive power to conduct preliminary investigation of all election offenses punishable under the election laws and to prosecute the same, except as may otherwise be provided by law.[11] The Chief State Prosecutor, all Provincial and City Prosecutors, or their respective assistants are, however, given continuing authority, as deputies of the COMELEC, to conduct preliminary investigation of complaints involving election offenses and to prosecute the same.[12] This authority may be revoked or withdrawn by the COMELEC anytime whenever, in its judgment, such revocation or withdrawal is necessary to protect the integrity of the COMELEC and to promote the common good, or when it believes that the successful prosecution of the case can be done by the COMELEC.[13]

In this case, when the COMELEC nullified the resolution of the Provincial Prosecutor in I.S. No. 1-99-1080, which was the basis of the informations for vote-selling, it, in effect, withdrew the deputation granted to the prosecutor. Such withdrawal of the deputation was clearly in order, considering the circumstances obtaining in these cases where those who voluntarily executed affidavits attesting to the vote-buying incident and became witnesses against the vote-buyers now stand as accused for the same acts they had earlier denounced. What the Prosecutor did was to sabotage the prosecution of the criminal case against the vote-buyers and put in serious peril the integrity of the COMELEC, which filed the said case for vote-buying. If the Prosecutor had listened to the command of prudence and good faith, he should have brought the matter to the attention of the COMELEC.

Petitioner COMELEC found that the respondents in I.S. No. 1-99-1080, who executed affidavits and turned witnesses in Criminal Case No. 7034-99, voluntarily admitted that they were the acceptors or recipients in the vote-buying done by the accused in said case. It was precisely because of such voluntary admission and willingness to testify that the COMELEC en banc, in its Minute Resolution No. 00-2453, declared null and void the resolution of the Office of the Provincial Prosecutor of Cavite in I.S. No. 1-99-1080 and held that the respondents therein are exempt from criminal prosecution pursuant to the last paragraph of Section 28 of R.A. No. 6646. Hence, it directed its Law Department to file a motion to dismiss the criminal cases which the Office of the Provincial Prosecutor filed in court against the respondents in I.S. No. 1-99-1080.

We agree with the petitioner and hold that the respondents in I.S. No. 1-99-1080, who are the accused in Criminal Cases Nos. 7950-00 to 7959-00 and 7980-00, are exempt from criminal prosecution for vote-selling by virtue of the proviso in the last paragraph of Section 28 of R.A. No. 6646. Respondent judge lost sight of the fact that at the time the complaint for vote-selling was filed with the Office of the Provincial Prosecutor, the respondents in I.S. No. 1-99-1080 had already executed sworn statements attesting to the corrupt practice of vote-buying in the case docketed as Criminal Case No. 7034-99. It cannot then be denied that they had already voluntarily given information in the vote-buying case. In fact, they willingly testified in Criminal Case No. 7034-99 per petitioners Memorandum filed with this Court.[14]

In a futile attempt to justify his denial of the motion to dismiss Criminal Cases Nos. 7950-00 to 7959-00 and 7980-00, respondent judge averred in his comment on the petition that nothing was mentioned in the motion to dismiss that the accused in said cases had already given information or testified in any proceeding. Besides, no record of any preliminary investigation was attached to the motion to dismiss. The petitioner merely referred to the dispositive portion of Minute Resolution No. 00-2453 without mentioning any preliminary investigation conducted by the Law Department of the COMELEC.

This contention is without basis. A reading of the motion to dismiss Criminal Cases Nos. 7950-00 to 7959-00 and 7980-00 shows that a certified true copy of COMELEC Minute Resolution No. 00-2453 was attached thereto and was made an integral part thereof. The attached resolution indicated that the accused in the cases sought to be dismissed had voluntarily given information and were willing to testify against the vote-buyers, and are therefore utilized as witnesses in the pending case for vote-buyers docketed as Criminal Case No. 7034-99.

Clearly then, respondent judge committed grave abuse of discretion when he denied the motion to dismiss Criminal Cases Nos. 7950-00 to 7959-00 and 7980-00 despite COMELECs determination that the accused therein are exempt from criminal prosecution for vote-selling pursuant to the proviso in the fourth paragraph of Section 28 of R.A. No. 6646.

WHEREFORE, the petition is GRANTED. The challenged orders dated 16 March 2001 and 9 May 2001 of respondent judge in Criminal Cases Nos. 7950-00 to 7959-00 and 7980-00 before Branch 20 of the Regional Trial Court in Imus, Cavite, are hereby SET ASIDE, and said criminal cases are ordered DISMISSED.

No pronouncement as to costs.

SO ORDERED.

Republic Act No. 8436

December 22, 1997Amended by RA 9369

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

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled::

Section 1. Declaration of policy. - It is the policy of the State to ensure free, orderly, honest, peaceful and credible elections, and assure the secrecy and sanctity of the ballot in order that the results of elections, plebiscites, referenda, and other electoral exercises shall be fast, accurate and reflective of the genuine will of the people.

Section 2. Definition of terms. - As used in this Act, the following terms shall mean:

1. Automated election system - a system using appropriate technology for voting and electronic devices to count votes and canvass/consolidate results;

2. Counting machine - a machine that uses an optical scanning/mark-sense reading device or any similar advanced technology to count ballots;

3. Data storage device - a device used to electronically store counting and canvassing results, such as a memory pack or diskette;

4. Computer set - a set of equipment containing regular components, i.e., monitor, central processing unit or CPU, keyboard and printer;

5. National ballot - refers to the ballot to be used in the automated election system for the purpose of the May 11, 1998 elections. This shall contain the names of the candidates for president, vice-president, senators and parties, organizations or coalitions participating under the party-list system.

This ballot shall be counted by the counting machine;

6. Local Ballot - refers to the ballot on which the voter will manually write the names of the candidates of his/her choice for member of the House of Representatives, governor, vice-governor, members of the provincial board, mayor, vice-mayor, and members of the city/municipal council. For the purpose of the May 11, 1998 elections, this ballot will be counted manually;

7. Board of Election Inspectors - there shall be a Board of Election Inspectors in every precinct composed of three (3) regular members who shall conduct the voting, counting and recording of votes in the polling place.

For the purpose of the May 11, 1998 elections, there shall be special members composed of a fourth member in each precinct and a COMELEC representative who is authorized to operate the counting

machine. Both shall conduct the counting and recording of votes of the national ballots in the designated counting centers;

8. Election returns - a machine-generated document showing the date of the election, the province, municipality and the precinct in which it is held and the votes in figures for each candidate in a precinct directly produced by the counting machine;

9. Statement of votes - a machine-generated document containing the votes obtained by candidates in each precinct in a city/municipality;

10. City/municipal/district/provincial certificate of canvass of votes - a machine-generated document containing the total votes in figures obtained by each candidate in a city/municipality/district/ province as the case may be; and

11. Counting center - a public place designated by the Commission where counting of votes and canvassing/consolidation of results shall be conducted.

Section 3. Qualifications, rights and limitations of the special members of the Board of Election Inspectors .- No person shall be appointed as a special member of the board of election inspectors unless he/she is of good moral character and irreproachable reputation, a registered voter, has never been convicted of any election offense or of any crime punishable by more than six (6) months imprisonment or if he/she has pending against him/her an information for any election offense or if he/she is related within the fourth civil degree of consanguinity or affinity to any member of the board of election inspectors or any special member of the same board of Election Inspector or to any candidate for a national position or to a nominee as a party list representative or his/her spouse. The special members of the board shall enjoy the same rights and be bound by the same limitations and liabilities of a regular member of the board of election inspectors but shall not vote during the proceedings of the board of election inspectors except on matters pertaining to the national ballot.

Section 4. Duties and functions of the special members of the Board of Election Inspectors. -

1. During the conduct of the voting in the polling place, the fourth member shall:

(a) accomplish the minutes of voting for the automated election system in the precinct; and

(b) ensure that the national ballots are placed inside the appropriate ballot box;lawphi1.net

2. On the close of the polls, the fourth member shall bring the ballot box containing the national ballots to the designated counting center;

3. Before the counting of votes, the fourth member shall verify if the number of national ballots tallies with the data in the minutes of the voting;

4. During the counting of votes, the fourth member and the COMELEC authorized representative shall jointly accomplish the minutes of counting for the automated election system in the precinct;

5. After the counting of votes, the fourth member and the COMELEC authorized representative shall jointly:

(a) certify the results of the counting of national ballots from the precinct; and

(b) bring the ballot box containing the counted national ballots together with the minutes of voting and counting, and other election documents and paraphernalia to the city or municipal treasurer for safekeeping.

Section 5. Board of Canvassers. - For purposes of the May 11, 1998 elections, each province, city or municipality shall have two (2) board of canvassers, one for the manual election system under the existing law, and the other, for the automated system. For the automated election system, the chairman of the board shall be appointed by the Commission from among its personnel/deputies and the members from the officials enumerated in Section 21 of Republic Act No. 6646.

Section 6. Authority to use an automated election system. - To carry out the above-stated policy, the Commission on Elections, herein referred to as the Commission, is hereby authorized to use an automated election system, herein referred to as the System, for the process of voting, counting of votes and canvassing/consolidation of results of the national and local elections: Provided, however, That for the May 11, 1998 elections, the System shall be applicable in all areas within the country only for the positions of president, vice-president, senators and parties, organizations or coalitions participating under the party-list system.

To achieve the purpose of this Act, the Commission is authorized to procure by purchase, lease or otherwise any supplies, equipment, materials and services needed for the holding of the elections by an expedited process of public bidding of vendors, suppliers or lessors: Provided, That the accredited political parties are duly notified of and allowed to observe but not to participate in the bidding. If, inspite of its diligent efforts to implement this mandate in the exercise of this authority, it becomes evident by February 9, 1998 that the Commission cannot fully implement the automated election system for national positions in the May 11, 1998 elections, the elections for both national and local positions shall be done manually except in the Autonomous Region in Muslim Mindanao (ARMM) where the automated election system shall be used for all positions.

Section 7. Features of the system. - The System shall utilize appropriate technology for voting, and electronic devices for counting of votes and canvassing of results. For this purpose, the Commission shall acquire automated counting machines, computer equipment, devices and materials and adopt new forms and printing materials.

The System shall contain the following features: (a) use of appropriate ballots, (b) stand-alone machine which can count votes and an automated system which can consolidate the results immediately, (c) with provisions for audit trails, (d) minimum human intervention, and (e) adequate safeguard/security measures.

In addition, the System shall as far as practicable have the following features:

1. It must be user-friendly and need not require computer-literate operators;

2. The machine security must be built-in and multi-layer existent on hardware and software with minimum human intervention using latest technology like encrypted coding system;

3. The security key control must be embedded inside the machine sealed against human intervention;

4. The Optical Mark Reader (OMR) must have a built-in printer for numbering the counted ballots and also for printing the individual precinct number on the counted ballots;

5. The ballot paper for the OMR counting machine must be of the quality that passed the international standard like ISO-1831, JIS-X- 9004 or its equivalent for optical character recognition;

6. The ballot feeder must be automatic;

7. The machine must be able to count from 100 to 150 ballots per minute;

8. The counting machine must be able to detect fake or counterfeit ballots and must have a fake ballot rejector;

9. The counting machine must be able to detect and reject previously counted ballots to prevent duplication;

10. The counting machine must have the capability to recognize the ballot's individual precinct and city or municipality before counting or consolidating the votes;

11. The System must have a printer that has the capacity to print in one stroke or operation seven (7) copies (original plus six (6) copies) of the consolidated reports on carbonless paper;

12. The printer must have at least 128 kilobytes of Random Access Memory (RAM) to facilitate the expeditious processing of the printing of the consolidated reports;

13. The machine must have a built-in floppy disk drive in order to save the processed data on a diskette;

14. The machine must also have a built-in hard disk to store the counted and consolidated data for future printout and verification;

15. The machine must be temperature-resistant and rust-proof;

16. The optical lens of the OMR must have a self-cleaning device;

17. The machine must not be capable of being connected to external computer peripherals for the process of vote consolidation;

18. The machine must have an Uninterrupted Power Supply (UPS);

19. The machine must be accompanied with operating manuals that will guide the personnel of the Commission the proper use and maintenance of the machine;

20. It must be so designed and built that add-ons may immediately be incorporated into the System at minimum expense;

21. It must provide the shortest time needed to complete the counting of votes and canvassing of the results of the election;

22. The machine must be able to generate consolidated reports like the election return, statement of votes and certificate of canvass at different levels; and

23. The accuracy of the count must be guaranteed, the margin of error must be disclosed and backed by warranty under such terms and conditions as may be determined by the Commission.

In the procurement of this system, the Commission shall adopt an equitable system of deductions or demerits for deviations or deficiencies in meeting all the above stated features and standards.

For this purpose, the Commission shall create an Advisory Council to be composed of technical experts from the Department of Science and Technology (DOST), the Information Technology Foundation of the Philippines (ITFP), the University of the Philippines (UP), and two (2) representatives from the private sector recommended by the Philippine Computer Society (PCS).

The Council may avail itself of the expertise and services of resource persons of known competence and probity.

The Commission in collaboration with the DOST shall establish an independent Technical Ad Hoc Evaluation Committee, herein known as the Committee, composed of a representative each from the Senate, House of Representatives, DOST and COMELEC. The Committee shall certify that the System is operating properly and accurately and that the machines have a demonstrable capacity to distinguish between genuine and spurious ballots.

The Committee shall ensure that the testing procedure shall be unbiased and effective in checking the worthiness of the System. Toward this end, the Committee shall design and implement a reliability test procedure or a system stress test.

Section 8. Procurement of equipment and materials. - The Commission shall procure the automated counting machines, computer equipment, devices and materials needed for ballot printing and devices for voting, counting and canvassing from local or foreign sources free from taxes and import duties, subject to accounting and auditing rules and regulations.

Section 9. Systems breakdown in the counting center. - In the event of a systems breakdown of all assigned machines in the counting center, the Commission shall use any available machine or any component thereof from another city/municipality upon the approval of the Commission en banc or any of its divisions.

The transfer of such machines or any component thereof shall be undertaken in the presence of representatives of political parties and citizens' arm of the Commission who shall be notified by the election officer of such transfer.

There is a systems breakdown in the counting center when the machine fails to read the ballots or fails to store/save results or fails to print the results after it has read the ballots; or when the computer fails to consolidate election results/reports or fails to print election results/reports after consolidation.

Section 10. Examination and testing of counting machines. - The Commission shall, on the date and time it shall set and with proper notices, allow the political parties and candidates or their representatives, citizens' arm or their representatives to examine and test the machines to ascertain that the system is operating properly and accurately. Test ballots and test forms shall be provided by the Commission.

After the examination and testing, the machines shall be locked and sealed by the election officer or any authorized representative of the Commission in the presence of the political parties and candidates or their representatives, and accredited citizens' arms. The machines shall be kept locked and sealed and shall be opened again on election day before the counting of votes begins.

Immediately after the examination and testing of the machines, the parties and candidates or their representatives, citizens' arms or their representatives, may submit a written report to the election officer who shall immediately transmit it to the Commission for appropriate action.

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

Both sides of the ballots may be used when necessary.

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

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

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

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

Section 12. Substitution of candidates. - In case of valid substitutions after the official ballots have been printed, the votes cast for the substituted candidates shall be considered votes for the substitutes.

Section 13. Ballot box. - There shall be in each precinct on election day a ballot box with such safety features that the Commission may prescribe and of such size as to accommodate the official ballots without folding them.

For the purpose of the May 11, 1998 elections, there shall be two (2) ballot boxes for each precinct, one (1) for the national ballots and one (I) for the local ballots.

Section 14. Procedure in voting. - The voter shall be given a ballot by the chairman of the Board of Election Inspectors. The voter shall then proceed to a voting booth to accomplish his/her ballot.

If a voter spoils his/her ballot, he/she may be issued another ballot subject to Section 11 of this Act. No voter may be allowed to change his/her ballot more than once.

After the voter has voted, he/she shall affix his/her thumbmark on the corresponding space in the voting record. The chairman shall apply indelible ink on the voter's right forefinger and affix his/her signature in the space provided for such purpose in the ballot. The voter shall then personally drop his/her ballot on the ballot box.

For the purpose of the May 11, 1998 elections, each voter shall be given one (1) national and one (1) local ballot by the Chairperson. The voter shall, after casting his/her vote, personally drop the ballots in their respective ballot boxes.

Section 15. Closing of polls. - After the close of voting, the board shall enter in the minutes the number of registered voters who actually voted, the number and serial number of unused and spoiled ballots, the serial number of the self-locking metal seal to be used in sealing the ballot box. The board shall then place the minutes inside the ballot box and thereafter close, lock and seal the same with padlocks, self-locking metal seals or any other safety devices that the Commission may authorize. The chairman of the Board of Election Inspectors shall publicly announce that the votes shall be counted at a designated counting center where the board shall transport the ballot box containing the ballots and other election documents and paraphernalia.

For the purpose of the May 11, 1998 elections, the chairman of the Board of Election Inspectors shall publicly announce that the votes for president, vice-president, senators and parties, organizations or coalitions participating in the party-list system shall be counted at a designated counting center. During the transport of the ballot box containing the national ballots and other documents, the fourth member of the board shall be escorted by representatives from the Armed Forces of the Philippines or from the Philippine National Police, citizens' arm, and if available, representatives of political parties and candidates.

Section 16. Designation of Counting Centers. - The Commission shall designate counting center(s) which shall be a public place within the city/municipality or in such other places as may be designated by the Commission when peace and order conditions so require, where the official ballots cast in various precincts of the city/municipality shall be counted. The election officer shall post prominently in his/her office, in the bulletin boards at the city/municipal hall and in three (3) other conspicuous places in the city/municipality, the notice on the designated counting center(s) for at least fifteen (15) days prior to election day.

For the purpose of the May 11, 1998 elections, the Commission shall designate a central counting center(s) which shall be a public place within the city or municipality, as in the case of the National Capital Region and in highly urbanized areas. The Commission may designate other counting center(s) where the national ballots cast from various precincts of different municipalities shall be counted using the automated system. The Commission shall post prominently a notice thereof, for at least fifteen (15) days prior to election day, in the office of the election officer, on the bulletin boards at the municipal hall and in three (3) other conspicuous places in the municipality.

Section 17. Counting procedure. - (a) The counting of votes shall be public and conducted in the designated counting center(s).

(b) The ballots shall be counted by the machine by precinct in the order of their arrival at the counting center. The election officer or his/her representative shall log the sequence of arrival of the ballot boxes and indicate their condition. Thereafter, the board shall, in the presence of the watchers and representatives of accredited citizens' arm, political parties/candidates, open the ballot box, retrieve the ballots and minutes of voting. It shall verify whether the number of ballots tallies with the data in the minutes. If there are excess ballots, the poll clerk, without looking at the ballots, shall publicly draw out at random ballots equal to the excess and without looking at the contents thereof, place them in an envelope which shall be marked "excess ballots". The envelope shall be sealed and signed by the members of the board and placed in the compartment for spoiled ballots.

(c) The election officer or any authorized official or any member of the board shall feed the valid ballots into the machine without interruption until all the ballots for the precincts are counted.

(d) The board shall remain at the counting center until all the official ballots for the precinct are counted and all reports are properly accomplished.

For the purpose of the May 11, 1998 elections, the ballots shall be counted by precinct by the special members of the board in the manner provided in paragraph (b) hereof.

Section 18. Election returns. - After the ballots of the precincts have been counted, the election officer or any official authorized by the Commission shall, in the presence of watchers and representatives of the accredited citizens' arm, political parties/ candidates, if any, store the results in a data storage device and print copies of the election returns of each precinct. The printed election returns shall be signed and thumbmarked by the fourth member and COMELEC authorized representative and attested to by the election officer or authorized representative. The Chairman of the Board shall then publicly read and announce the total number of votes obtained by each candidate based on the election returns.

Thereafter, the copies of the election returns shall be sealed and placed in the proper envelopes for distribution as follows:

A. In the election of president, vice-president, senators and party-list system:

(1) The first copy shall be delivered to the city or municipal board of canvassers;

(2) The second copy, to the Congress, directed to the President of the Senate;

(3) The third copy, to the Commission;

(4) The fourth copy, to the citizens' arm authorized by the Commission to conduct an unofficial count. In the conduct of the unofficial quick count by any accredited citizens' arm, the Commission shall promulgate rules and regulations to ensure, among others, that said citizens' arm releases in the order of their arrival one hundred percent (100%) results of a precinct indicating the precinct, municipality or city, province and region: Provided, however, that, the count shall continue until all precincts shall have been reported.

(5) The fifth copy, to the dominant majority party as determined by the Commission in accordance with law;

(6) The sixth copy, to the dominant minority party as determined by the Commission in accordance with law; and

(7) The seventh copy shall be deposited inside the compartment of the ballot box for valid ballots.

The citizens' arm shall provide copies of the election returns at the expense of the requesting party.

For the purpose of the May 11, 1998 elections, after the national ballots have been counted, the COMELEC authorized representative shall implement the provisions of paragraph A hereof.

B. In the election of local officials and members of the House of Representatives:

(1) The first copy shall be delivered to the city or municipal board of canvassers;

(2) The second copy, to the Commission;

(3) The third copy, to the provincial board of canvassers;

(4) The fourth copy, to the citizens' arm authorized by the Commission to conduct an unofficial count. In the conduct of the unofficial quick count by any accredited citizens' arm, the Commission shall promulgate rules and regulations to ensure, among others, that said citizens' arm releases in the order of their arrival one hundred percent (100%) results of a precinct indicating the precinct, municipality or city, province and region: Provided, however, That, the count shall continue until all precincts shall have been reported.

(5) The fifth copy, to the dominant majority party as determined by the Commission in accordance with law;

(6) The sixth copy, to the dominant minority party as determined by the Commission in accordance with law; and

(7) The seventh copy shall be deposited inside the compartment of the ballot box for valid ballots.

The citizens' arm shall provide copies of election returns at the expense of the requesting party.

After the votes from all precincts have been counted, a consolidated report of votes for each candidate shall be printed.

After the printing of the election returns, the ballots shall be returned to the ballot box, which shall be locked, sealed and delivered to the city/municipal treasurer for safekeeping. The treasurer shall immediately provide the Commission and the election officer with a record of the serial numbers of the ballot boxes and the corresponding metal seals.

Section 19. Custody and accountability of ballots. - The election officer and the treasurer of the city/municipality as deputy of the Commission shall have joint custody and accountability of the official ballots, accountable forms

and other election documents as well as ballot boxes containing the official ballots cast. The ballot boxes shall not be opened for three (3) months unless the Commission orders otherwise.

Section 20. Substitution of Chairman and Members of the Board of Canvassers. - In case of non-availability, absence, disqualification due to relationship, or incapacity for any cause of the chairman, the Commission shall appoint as substitute, a ranking lawyer of the Commission. With respect to the other members of the board, the Commission shall appoint as substitute the following in the order named: the provincial auditor, the register of deeds, the clerk of court nominated by the executive judge of the regional trial court, or any other available appointive provincial official in the case of the provincial board of canvassers; the officials in the city corresponding to those enumerated in the case of the city board of canvassers; and the municipal administrator, the municipal assessor, the clerk of court nominated by the judge of the municipal trial court, in the case of the municipal board of canvassers.

Section 21. Canvassing by Provincial, City, District and Municipal Boards of Canvassers. - The city or municipal board of canvassers shall canvass the votes for the president, vice-president, senators, and parties, organizations or coalitions participating under the party-list system by consolidating the results contained in the data storage devices used in the printing of the election returns. Upon completion of the canvass, it shall print the certificate of canvass of votes for president, vice-president, senators and members of the House of Representatives and elective provincial officials and thereafter, proclaim the elected city or municipal officials, as the case may be.

The city board of canvassers of cities comprising one (1) or more legislative districts shall canvass the votes for president, vice-president, senators, members of the House of Representatives and elective city officials by consolidating the results contained in the data storage devices used in the printing of the election returns. Upon completion of the canvass, the board shall print the canvass of votes for president, vice-president, and senators and thereafter, proclaim the elected members of the House of Representatives and city officials.

In the Metro Manila area, each municipality comprising a legislative district shall have a district board of canvassers which shall canvass the votes for president, vice-president, senators, members of the House of Representatives and elective municipal officials by consolidating the results contained in the data storage devices used in the printing of the election returns. Upon completion of the canvass, it shall print the certificate of canvass of votes for president, vice-president, and senators and thereafter, proclaim the elected members of the House of Representatives and municipal officials.

Each component municipality in a legislative district in the Metro Manila area shall have a municipal board of canvassers which shall canvass the votes for president, vice-president, senators, members of the House of Representatives and elective municipal officials by consolidating the results contained in the data storage devices used in the printing of the election returns. Upon completion of the canvass, it shall prepare the certificate of canvass of votes for president, vice-president, senators, members of the House of Representatives and thereafter, proclaim the elected municipal officials.

The district board of canvassers of each legislative district comprising two (2) municipalities in the Metro Manila area shall canvass the votes for president, vice-president, senators and members of the House of Representatives by consolidating the results contained in the data storage devices submitted by the municipal board of canvassers of the component municipalities. Upon completion of the canvass, it shall print a certificate of canvass of votes for president, vice-president and senators and thereafter, proclaim the elected members of the House of Representatives in the legislative district.

The district/provincial board of canvassers shall canvass the votes for president, vice-president, senators, members of the House of Representatives and elective provincial officials by consolidating the results contained in the data storage devices submitted by the board of canvassers of the municipalities and component cities.

Upon completion of the canvass, it shall print the certificate of canvass of votes for president, vice-president and senators and thereafter, proclaim the elected members of the House of Representatives and the provincial officials.

The municipal, city, district and provincial certificates of canvass of votes shall each be supported by a statement of votes.

The Commission shall adopt adequate and effective measures to preserve the integrity of the data storage devices at the various levels of the boards of canvassers.

Section 22. Number of copies of Certificates of Canvass of Votes and their distribution. - (a) The certificate of canvass of votes for president, vice-president, senators, members of the House of Representatives, parties, organizations or coalitions participating under the party-list system and elective provincial officials shall be printed by the city or municipal board of canvassers and distributed as follows:

(1) The first copy shall be delivered to the provincial board of canvassers for use in the canvass of election results for president, vice-president, senators, members of the House of Representatives, parties, organizations or coalitions participating under the party-list system and elective provincial officials;

(2) The second copy shall be sent to the Commission;

(3) The third copy shall be kept by the chairman of the board; and

(4) The fourth copy shall be given to the citizens' arm designated by the Commission to conduct an unofficial count. It shall be the duty of the citizens' arm to furnish independent candidates copies of the certificate of canvass at the expense of the requesting party.

The board of canvassers shall furnish all registered parties copies of the certificate of canvass at the expense of the requesting party.

(b) The certificate of canvass of votes for president, vice-president and senators, parties, organizations or coalitions participating under the party-list system shall be printed by the city boards of canvassers of cities comprising one or more legislative districts, by provincial boards of canvassers and by district boards of canvassers in the Metro Manila area, and other highly urbanized areas and distributed as follows:

(1) The first copy shall be sent to Congress, directed to the President of the Senate for use in the canvas of election results for president and vice-president;

(2) The second copy shall be sent to the Commission for use in the canvass of the election results for senators;

(3) The third copy shall be kept by the chairman of the board; and

(4) The fourth copy shall be given to the citizens' arm designated by the Commission to conduct an unofficial count. It shall be the duty of the citizens' arm to furnish independent candidates copies of the certificate of canvass at the expense of the requesting party.

The board of canvassers shall furnish all registered parties copies of the certificate of canvass at the expense of the requesting party.

(c) The certificates of canvass printed by the provincial, district, city or municipal boards of canvassers shall be signed and thumbmarked by the chairman and members of the board and the principal watchers, if available. Thereafter, it shall be sealed and placed inside an envelope which shall likewise be properly sealed.

In all instances, where the Board of Canvassers has the duty to furnish registered political parties with copies of the certificate of canvass, the pertinent election returns shall be attached thereto, where appropriate.

Section 23. National Board of Canvassers for Senators. - The chairman and members of the Commission on Elections sitting en banc, shall compose the national board of canvassers for senators. It shall canvass the results for senators by consolidating the results contained in the data storage devices submitted by the district, provincial and city boards of canvassers of those cities which comprise one or more legislative districts. Thereafter, the national board shall proclaim the winning candidates for senators.

Section 24. Congress as the National Board of Canvassers for President and Vice-President. - The Senate and the House of Representatives in joint public session shall compose the national board of canvassers for president and vice-president. The returns of every election for president and vice-president duly certified by the board of canvassers of each province or city, shall be transmitted to the Congress, directed to the president of the Senate. Upon receipt of the certificates of canvass, the president of the Senate shall, not later than thirty (30) days after the day of the election, open all the certificates in the presence of the Senate and the House of Representatives in joint public session and the Congress upon determination of the authenticity and the due execution thereof in the manner provided by law, canvass all the results for president and vice-president by consolidating the results contained in the data storage devices submitted by the district, provincial and city boards of canvassers and thereafter, proclaim the winning candidates for president and vice-president.

Section 25. Voters' education. - The Commission together with and in support of accredited citizens' arms shall carry out a continuing and systematic campaign through newspapers of general circulation, radio and other media forms, as well as through seminars, symposia, fora and other non-traditional means to educate the public and fully inform the electorate about the automated election system and inculcate values on honest, peaceful and orderly elections.

Section 26. Supervision and control. - The System shall be under the exclusive supervision and control of the Commission. For this purpose, there is hereby created an information technology department in the Commission to carry out the full administration and implementation of the System.

The Commission shall take immediate steps as may be necessary for the acquisition, installation, administration, storage, and maintenance of equipment and devices, and to promulgate the necessary rules and regulations for the effective implementation of this Act.

Section 27. Oversight Committee. - An Oversight Committee is hereby created composed of three (3) representatives each from the Senate and the House of Representatives and three (3) from the Commission on Elections to monitor and evaluate the implementation of this Act. A report to the Senate and the House of Representatives shall be submitted within ninety (90) days from the date of election.

The oversight committee may hire competent consultants for project monitoring and information technology concerns related to the implementation and improvement of the modern election system. The oversight committee shall be provided with the necessary funds to carry out its duties.

Section 28. Designation of other dates for certain pre-election acts. - If it shall no longer be reasonably possible to observe the periods and dates prescribed by law for certain pre-election acts, the Commission shall fix other periods and dates in order to ensure accomplishment of the activities so voters shall not be deprived of their suffrage.

Section 29. Election offenses. - In addition to those enumerated in Sections 261 and 262 of Batas Pambansa Blg. 881, as amended, the following acts shall be penalized as election offenses, whether or not said acts affect the electoral process or results:

(a) Utilizing without authorization, tampering with, destroying or stealing:

(1) Official ballots, election returns, and certificates of canvass of votes used in the System; and

(2) Electronic devices or their components, peripherals or supplies used in the System such as counting machine, memory pack/diskette, memory pack receiver and computer set;

(b) Interfering with, impeding, absconding for purpose of gain, preventing the installation or use of computer counting devices and the processing, storage, generation and transmission of election results, data or information; and

(c) Gaining or causing access to using, altering, destroying or disclosing any computer data, program, system software, network, or any computer-related devices, facilities, hardware or equipment, whether classified or declassified.

Section 30. Applicability. - The provisions of Batas Pambansa Blg. 881, as amended, otherwise known as the "Omnibus Election Code of the Philippines", and other election laws not inconsistent with this Act shall apply.

Section 31. Rules and Regulations. - The Commission shall promulgate rules and regulations for the implementation and enforcement of this Act including such measures that will address possible difficulties and confusions brought about by the two-ballot system. The Commission may consult its accredited citizens' arm for this purpose.

Section 32. Appropriations. - The amount necessary to carry out the provisions of this Act shall be charged against the current year's appropriations of the Commission. Thereafter, such sums as may be necessary for the continuous implementation of this Act shall be included in the annual General Appropriations Act.

In case of deficiency in the funding requirements herein provided, such amount as may be necessary shall be augmented from the current contingent fund in the General Appropriations Act.

Section 33. Separability clause. - If, for any reason, any section or provision of this Act or any part thereof, or the application of such section, provision or portion is declared invalid or unconstitutional, the remainder thereof shall not be affected by such declaration.

Section 34. Repealing clause. - All laws, presidential decrees, executive orders, rules and regulations or parts thereof inconsistent with the provisions of this Act are hereby repealed or modified accordingly.

Section 35. Effectivity. - This Act shall take effect fifteen (15) days after its publication in a newspaper of general circulation.