[G.R. No. 1179. January 8, 1913.] 6. ID.; ID.; ID.; SUPREME COURT CANNOT BE DEPRIVED Section 2 of Act No.

DEPRIVED Section 2 of Act No. 1597, enacted February 28, 1907,

In re application of MARIO GUARIÑA for OF ITS POWERS. — Section 9 of the Act of Congress of July 1, is as follows:
admission to the bar. 1902, placed it beyond the power of the Philippine Legislature to "SEC. 2. Paragraph one of section
deprive the Supreme Court of the Philippine Islands of the thirteen of Act Numbered One hundred and
Mario Guariña in his behalf.
jurisdiction or power theretofore granted to it; leaving, however, ninety, entitled 'An Act providing a Code of
SYLLABUS to local legislative authority the right to confer additional Procedure in Civil Actions and Special
1. STATUTORY CONSTRUCTION; ACT NO. 1597; jurisdiction or to change the practice and the method of Proceedings in the Philippine Islands,' is hereby
ADMISSION TO PRACTICE LAW. — Whether the word "may" in a procedure. amended to read as follows:
statute is to be construed as mandatory and imposing a duty, or 7. ID.; ID.; ID.; DUTY OF COURTS IN CONSTRUING LAWS. "'1. Those who have been duly licensed
merely as permissive and conferring discretion, is to be — It is the duty of the courts in construing a statute enacted by under the laws and orders of the Islands under
determined in each case from the apparent intention of the the Philippine Commission, not to give it a construction which the sovereignty of Spain or of the United States
statute as gathered from the context as well as from the would be repugnant to an Act of Congress, if the language of the and are in good and regular standing as members
language of the particular provision. The question in each case in statute is fairly susceptible of another construction not in conflict of the bar of the Philippine Islands at the time of
whether, taken as a whole and viewed in the light of surrounding with the higher law; and in doing so, contentions touching the the adoption of this code: Provided, That any
circumstances, it can be said that a purpose existed on the part apparent intention of the legislator will be disregarded which person who, prior to the passage of this Act, or at
of a legislator to enact a law mandatory in its character. would lead to the conclusion that the Commission intended to any time thereafter, shall have held, under the
2. ID.; ID.; ID.; AUTHORITY OF THE SUPREME COURT. — enact a law in violation of an Act Congress. authority of the United States, the position of
This court is vested with authority and charged with the duty to 8. ID.; ID.; ID.; DOUBTFUL LANGUAGE OF A STATUTE. — justice of the Supreme Court, judge of the Court
pass upon the "moral character" and the "qualifications and If there is doubt or uncertainty as to the meaning of the of First Instance, or judge or associate judge of
ability" of all candidates for admission to the bar. legislator, if the words of provisions of the statute are obscure, the Court of Land Registration, of the Philippine
3. ID.; ID.; ID.; LIMIT UPON LEGISLATIVE POWER. — Any or if the enactment is fairly susceptible of two or more Islands, or the position of Attorney-General,
act of the Philippine Legislature repugnant to the Act of Congress constructions, that interpretation will be adopted which will Solicitor-General, Assistant Attorney-General,
which created it, or which is repugnant to any other lawful Act of avoid the effect of unconstitutionality, even though it may be assistant attorney in the office of the Attorney-
Congress defining, prescribing or limiting its authority is invalid necessary, for this purpose, to disregard the more usual or General, prosecuting attorney for the city of
and void as transcending its rightful limits and authority. apparent import of the language employed. (Black on Manila, assistant prosecuting attorney for the
4. ID.; ID.; ID.; BASIS OF LEGISLATIVE AUTHORITY. — The Interpretation of Laws, p. 93.) city of Manila, city attorney of Manila, assistant
various Acts of Congress conferring power upon the Philippine 9. ID.; ID.; ID.; CONSTRUCTION OF THE WORD "MAY," city attorney of Manila, provincial fiscal, attorney
Legislature, and defining, prescribing and limiting this power, ACT NO 1597. — The word "may" as used in the concluding for the Moro Province, or assistant attorney for
especially the Act of Congress of July 1, 1902, are to that paragraph of section 2 of Act No. 1597, construed so as to give it the Moro Province, may be licensed to practice
Legislature in the nature of an organic act with its amendments, its permissive and not its mandatory effect; and as conferring a law in the courts of the Philippine Islands without
binding on it in like manner as is the Constitution of the United discretion and not as imposing a duty upon the Supreme Court an examination, upon motion before the
States upon Congress itself. to grant licenses to the officials mentioned in the Act to practice Supreme Court and establishing such fact to the
5. ID.; ID.; ID.; SOURCE OF GOVERNMENTAL law in the courts of the Philippine Islands without taking the satisfaction of said court.'"
AUTHORITY. — The Acts of Congress of the United States are to examination prescribed by general rule. The records of this court disclose that on a former
the Commission, or rather to all the Departments of the DECISION occasion this applicant took, and failed to pass the prescribed
Philippine Government, what a law is to individuals; they CARSON, J p: examination. The report of the examining board, dated March
constitute not only a rule of action to the various branches of the 23, 1907, shows that he received an average of only 71 per cent
Relying upon the provisions of section 2 of Act No.
Government, but it is from them that the very existence of the in the various branches of legal learning upon which he was
1597, the applicant in this case seeks admission to the bar,
power of the Government flows, and it is by virtue of the Acts of examined, thus falling four points short of the required
without taking the prescribed examination, on the ground that percentage of 75. We would be delinquent in the performance
Congress that the powers (or portions of the right to govern) he holds the office of provincial fiscal for the Province of
which may have been committed to this Government are of our duty to the public and to the bar, if, in the face of this
Batanes.
prescribed. affirmative indication of the deficiency of the applicant in the
required qualifications of learning in the law at the time when
he presented his former application for admission to the bar, meet the demands of right, and to prevent a shall possess and exercise jurisdiction as
we should grant him a license to practice law in the courts of failure of justice. It is given as a remedy to those heretofore provided by the Philippine
these Islands, without first satisfying ourselves that despite his entitled to invoke its aid, and who would Commission, subject in all matters to such
failure to pass the examination on that occasion, he now otherwise be remediless. In all such cases it is alteration and amendments as may be hereafter
"possesses the necessary qualifications of learning and ability." held that the intent of the Legislature, which is enacted by law; and the Chief Justice and
But it is contended that under the provisions of the the test, was not to devolve a mere discretion, Associate Justices of the Supreme Court shall
above-cited statute the applicant is entitled as of right to be but to impose a positive and absolute duty." hereafter be appointed by the President, by and
admitted to the bar without taking the prescribed examination Whether the word "may" in a statute is to be with the advice and consent of the Senate, and
"upon motion before the Supreme Court" accompanied by construed as mandatory and imposing a duty, or merely as shall receive the compensation heretofore
satisfactory proof that he has held and now holds the office of permissive and conferring discretion, is to be determined in prescribed by the Commission until otherwise
provincial fiscal of the Province of Batanes. It is urged that each case from the apparent intention of the statute as provided by Congress. The judges of the Court of
having in mind the object which the legislator apparently gathered from the context, as well as from the language of the First Instance shall be appointed by the Civil
sought to attain in enacting the above-cited amendment to the particular provision. The question in each case is whether, Governor, by and with the advice and consent of
earlier statute, and in view of the context generally and taken as a whole and viewed in the light of surrounding the Philippine Commission:Provided, That the
especially of the fact that the amendment was inserted as a circumstances, it can be said that a purpose existed on the part admiralty jurisdiction of the Supreme Court and
proviso in that section of the original Act which specifically of the legislator to enact a law mandatory in its character. If it Courts of First Instance shall not be changed
provides for the admission of certain candidates without can, then it should be given a mandatory effect; if not, then it except by Act of Congress."
examination, the clause "may be licensed to practice law in the should be given its ordinary permissive effect. (Colby Prior to the passage of this Act the power and
courts of the Philippine Islands without and examination" University vs. Village of Canandaigua (U.S.), 69 Fed., 671, 673; jurisdiction of this court in relation to the admission of
should be construed so as to mean "shall be licensed to practice Kansas Pacific Ry. Co. vs. Reynolds, 8 Kan., 623, 628; Kemble vs. candidates to the bar of the Philippine Islands had been fixed by
law in the Philippine Islands without an examination." It is McPhaill, 60 Pac., 1092, 1093, 128 Cal., 444; Inhabitants of the provisions of the Organic Act (No. 136) and the Code of Civil
contended that this mandatory construction is imperatively Worcester County vs. Schlesinger, 82 Mass. (16 Gray), 166, 168; Procedure (Act No. 190); and as we understand these provisions
required in order to give effect to the apparent intention of the People vs. Sanitary Dist. of Chicago, 56 N. E., 953, 956, 184 Ill., this court was vested thereby with authority, and charged with
legislator, and to the candidate's claim de jure to have the 597; State vs. Withrow (Mo.), 24 S. W., 638, 641; Leavenworth a duty to pass upon the "moral character" and the
power exercised. & D. M. R. Co. vs. Platte County Court, 42 Mo., 171, 174.) "qualifications and ability" of all candidates for admission to the
It must be confessed that were the inquiry limited bar.
strictly to the provisions of local law touching this matter, the Applying these canons of construction to the statute The pertinent provisions of these statutes are as
contentions of the applicant would have great weight. For it is under consideration, and limiting ourselves strictly to the follows:
well settled that in statutory interpretation the word "may" provisions of local law touching the admission of candidates to (Act No. 136.) "SEC. 2. Constitution of
should be read "shall" where such construction is necessary to the bar, we might, as we have said, be inclined to give the judiciary. — The judicial power of the
give effect to the apparent intention of the legislator. In Rock statute the mandatory effect which applicant claims should be Government of the Philippine Islands shall be
Island County Supervisors vs. United States (71 U. S., 435, 446), placed upon it. But we are of opinion that such a construction is vested in a Supreme Court, Courts of First
Mr. Justice Swayne says: precluded by the provisions of the Act of Congress enacted July Instance, and courts of justices of the peace,
"The conclusion to be deduced from the 1, 1902, which confirm and secure to this court the jurisdiction together with such special jurisdictions of
authorities is that where power is given to public therefore conferred upon it. Section 9 of that Act is as follows: municipal courts, and other special tribunals as
officers, in the language of the Act before us, or "That the Supreme Court and the Courts now are or hereafter may be authorized by law.
in equivalent language, whenever the public of First Instance of the Philippine Islands shall The two courts first named shall be courts of
interest or individual rights call for its exercise, possess and exercise jurisdiction as heretofore record.
the language used, though permissive in form, is provided and such additional jurisdiction as shall (Act No. 136.) "SEC. 16. Jurisdiction of
in fact peremptory. What they are empowered to hereafter be prescribed by the Government of the Supreme Court. — The jurisdiction of the
do for a third person the law requires shall be said Islands, subject to the power of said Supreme Court shall be of two kinds:
done. The power is given, not for their benefit, Government to change the practice and method "1. Original; and
but for his. It is placed with the depositary to of procedure. The municipal courts of said Islands "2. Appellate.
 "SEC. 17. Its original jurisdiction. — The held at such times as the judges of that court can be no doubt as to the result. The Act of the Commission in
Supreme Court shall have original jurisdiction to shall provide by general or special rules." so far as it is in conflict with or in any wise repugnant to the
issue writs of mandamus, certiorari, prohibition, Manifestly, the jurisdiction thus conferred upon this various Acts of Congress dealing with the same subject matter
habeas corpus, and quo warranto in the cases court by the Commission and confirmed to it by the Act of must be held to be void and of no effect. Paraphrasing slightly
and in the manner prescribed in the Code of Civil Congress would be limited and restricted, and in a case such as the language used in the early case of Kemper vs. Hawkins (1
Procedure, and to hear and determine the that under consideration wholly destroyed, by giving the word Va. Cases, 20-24), it may be said that the Acts of the Congress of
controversies thus brought before it, and in other "may," as used in the above citation from Act No. 1597, a the United States are to the Commission, or rather to all the
cases provided by law. mandatory rather than a permissive effect. But any Act of the departments of the Philippine Government, what a law is to
(Act No. 190.) "SEC. 13. Who may Commission which has the effect of setting at naught in whole individuals; may, they constitute not only a rule of action to the
practice as lawyers. — The following persons, if or in part the Act of Congress of July 1, 1902, or of any Act of various branches of the Government, but it is from them that
not specially declared ineligible, are entitled to Congress prescribing, defining or limiting the power conferred the very existence of the power of the Government flows, and it
practice law in the courts of the Philippine upon the Commission is to that extent invalid and void, as is by virtue of the Acts of Congress that the powers (or portions
Islands: transcending its rightful limits and authority. of the right to govern) which may have been committed to this
"1. Those who have been duly licensed The Act of Congress was the creator of the Commission Government are prescribed. The Act of Congress was the
under the laws and orders of the Islands under and indeed of the Government of these Islands, which is the Commission's commission; nay, it was its creator.
the sovereignty of Spain or of the United States creature of its creator. Its powers are defined, prescribed and Section 9 of the Act of Congress, set out above, placed
and are in good and regular standing as members limited by the Act which created it, and by such other lawful it beyond the power of the local Legislature to deprive this
of the bar of the Philippine Islands at the time of acts of its creator as may further define, prescribe, limit or court of the jurisdiction or power theretofore granted to it;
the adoption of this Code; expand these powers. It cannot lawfully transcend or infringe leaving however, to local legislative authority the right to confer
"2. Those who are hereafter licensed in upon the limits thus prescribed, and any Act of the Commission additional jurisdiction, or to change the practice and method of
the manner herein prescribed. repugnant to the Act of Congress which created it, or which is procedure. The above-cited provisions of Act No. 190, in force
repugnant to any other lawful Act of its creator defining, at the time when the Act of Congress was enacted, conferred
"SEC. 14. Qualifications of applicants. —
prescribing or limiting its authority is void and invalid. The upon this court the power and jurisdiction to deny admission to
Any resident of the Philippine Islands, not a
various Acts of Congress conferring power upon the Philippine candidates for the bar unless, in addition to certain other
subject or citizen of any foreign government, of prescribed conditions, they satisfy the court that they possess
the age of twenty-three years, of good moral Legislature, and defining, prescribing and limiting this power,
especially the Act of Congress of July 1, 1902, are to that the necessary learning in the law, by passing an examination
character, and who possesses the necessary
Legislature in the nature of an organic act with its amendments, prescribed by general rule. It seems clear, therefore, that the
qualifications of learning and ability, is entitled to
binding on it in like manner as is the Constitution of the United Commission, while it was undoubtedly authorized to modify the
admission as a member of the bar of the Islands provision requiring the holding of examinations under general
and to practice as such in all their courts. States upon Congress itself.
In the great case of Marbury vs. Madison (1 Cranch, rules (that being merely the prescribed mode of procedure
"SEC. 15. Certificate of good character whereby the court was required to ascertain the qualifications
required. — Every applicant for admission as a 175), the Supreme Court of the United States, in a decision
written by Chief Justice Marshall, laid down the doctrine in this of the candidate), had no authority to deprive this court of its
member of the bar must produce before the power to deny admission to any candidate who fails to satisfy it
Supreme Court satisfactory testimonials of good regard which has been followed by that court unhesitatingly
ever since. In that case the court held that an Act of Congress that he possesses the necessary qualifications for admission to
moral character, and must satisfactorily pass a the bar of the Philippine Islands.
proper examination upon all the codes of law and repugnant to the Constitution cannot become law, and that the
courts of the United States are bound to take notice of the In construing a statute enacted by the Philippine
procedure in force in the Philippine Islands, and
Constitution. Commission we deem it our duty not to give it a construction
upon such other branches of legal learning as the
Applying the reasoning of that case to the question of which would be repugnant to an Act of Congress, if the
Supreme Court by general rule shall provide. . . .
the validity of an Act of the Philippine Commission enacted language of the statute is fairly susceptible of another
"SEC. 16. Place and manner of construction not in conflict with the higher law. In doing so, we
examinations. — Such examinations shall be since the date of the passage of the Philippine Bill which is
found to be in conflict with the provisions of the Act of think we should not hesitate to disregard contentions touching
conducted at Manila, by the judges of the the apparent intention of the legislator which would lead to the
Supreme Court or by a committee of competent Congress dealing with the same subject matter, and especially
with the provisions of the Philippine Bill itself, we think there conclusion that the Commission intended to enact a law in
lawyers by them to be appointed, and shall be
violation of the Act of Congress. However specious the of these Islands. In the case In re Du Fresne (20 Phil. Rep., 488, of provincial fiscal, we think we would be justified under the
argument may be in favor of one of two possible constructions, 492), speaking of the provisions of this Act, we said: above-cited provisions of Act No. 1597 in waiving in his case the
it must be disregarded if on examination it is found to rest on "Appointments to the positions ordinary examination prescribed by general rule, provided he
the contention that the legislator designed an attempt to mentioned in Act No. 1597 are made either by offers satisfactory evidence of his proficiency in a special
transcend the rightful limits of his authority, and that his the President of the United States by and with examination which will be given him by a committee of the
apparent intention was to enact an invalid an invalid law. the advice and consent of the Senate, or by the court upon his application therefore, without prejudice to his
Black on Interpretation of Laws at page 87 says; "In Governor-General of the Philippine Islands by right, if he desires so to do, to present himself at any of the
construing a doubtful or ambiguous statute, the courts will and with the advice and consent of the Philippine ordinary examinations prescribed by general rule. So ordered.
presume that it was the intention of the legislature to enact a Commission, and the legislator evidently Arellano, C.J., Torres, Mapa, and Trent , JJ., concur.
valid, sensible, and just law, and one which should change the conceived that the fact that such an appointment ||| (In Re: Guariña, G.R. No. 1179, [January 8, 1913], 24 PHIL 37-49)
prior law no further than may be necessary to effectuate the is made is a sufficient guaranty that after due
specific purpose of the act in question. The construction should inquiry the appointee has been found to be
be in harmony with this assumption whenever possible." possessed of at least the necessary qualifications
The same author, at pages 93 and 94, says: "Hence it for admission to the bar."
follows that the courts will not so construe the law as to make it In the various cases wherein applications for admission
conflict with the constitution, but will rather put such an to the bar under the provisions of this statute have been
interpretation upon it as will avoid conflict with the constitution considered heretofore, we have accepted the fact that such
and give it full force and effect, if this can be done without appointments had been made as satisfactory evidence of the
extravagance. If there is doubt or uncertainty as to the meaning qualifications of the applicant. But in all of those cases we had
of the legislature, if the words or provisions of the statute are reason to believe that the applicants had been practicing
obscure, or if the enactment is fairly susceptible of two or more attorneys prior to the date of their appointment.
constructions, that interpretation will be adopted which will In the case under consideration, however, it
avoid the effect of unconstitutionality, even though it may be affirmatively appears that the applicant was not and never had
necessary, for this purpose, to disregard the more usual or been a practicing attorney in this or any other jurisdiction prior
apparent import of the language employed." to the date of his appointment as provincial fiscal, and it further
Without undue straining of the language used in the affirmatively appears that he was deficient in the required
statute under consideration, the word "may" may be construed qualifications at the time when he last applied for admission to
as either mandatory or permissive in its effect. But to construe the bar.
it as mandatory would bring it in direct conflict with the Act of In the light of this affirmative proof of his deficiency on
Congress, and we conclude therefore, despite the contentions that occasion, we do not think that his appointment to the
of the applicant as to the apparent intention of the legislator, office of provincial fiscal is in itself satisfactory proof of his
that it should be given its permissive and not its mandatory possession of the necessary qualifications of learning and
effect, and that the true intention of the legislator was to leave ability. We conclude therefore that this application for license
it within the discretion of the court to admit to the bar without to practice in the courts of the Philippines should be denied.
examination the officials mentioned in the Act in any case In view, however, of the fact that when he took the
wherein the court is otherwise satisfied that they possess the examination he fell only four points short of the necessary
necessary qualifications. grade to entitle him to a license to practice; and in view also of
Ordinarily, and in the absence of any showing to the the fact that since that time he has held the responsible office
contrary, it may fairly be assumed that an applicant who has of governor of the Province of Sorsogon and presumably gave
held one of the offices mentioned in the statute, and who, prior evidence of such marked ability in the performance of the
to his appointment, had been admitted to the practice of law in duties of that office that the Chief Executive, with the consent
the courts of these Islands under the former sovereign or in and approval of the Philippine Commission, sought to retain
some other jurisdiction is duly qualified for admission to the bar him in the Government service by appointing him to the office
 THIRD DIVISION raffled to Branches 4 and 5, Regional Trial Court of Iligan City, dismissing Criminal Case No. 8782. No action was taken by
[G.R. No. 168617. February 19, 2007.] respectively. respondent or any party of the case from the said order of dismissal.
BERNADETTE L. ADASA, petitioner, vs. CECILLE This instant petition pertains only to Criminal Case No. 8782. Aggrieved by the resolution of the DOJ, respondent filed a
S. ABALOS, respondent. On 8 June 2001, upon motion of the petitioner, the trial Petition for Certiorari before the Court of Appeals. Respondent raised
DECISION court in Criminal Case No. 8782 issued an order directing the Office the following issues before the appellate court:
CHICO-NAZARIO, J p: of the City Prosecutor of Iligan City to conduct a reinvestigation. 1. Whether or not the Department of
After conducting the reinvestigation, the Office of the City Justice gravely abused its discretion in giving due
This Petition for Review under Rule 45 of the Rules of Court,
Prosecutor of Iligan City issued a resolution dated 30 August 2001, course to petitioner's petition for review despite
filed by petitioner Bernadette L. Adasa, seeks to nullify and set aside
affirming the finding of probable cause against petitioner. its having been filed after the latter had already
the 21 July 2004 Decision 1 and 10 June 2005 Resolution 2 of the
Meanwhile, during her arraignment on 1 October 2001 in been arraigned;
Court of Appeals in CA-G.R. SP No. 76396 which nullified the
Resolutions of the Department of Justice (DOJ). The Resolutions of Criminal Case No. 8782, petitioner entered an unconditional plea of 2. Whether or not there is probable
the DOJ reversed and set aside the Resolution of the Office of the City not guilty. 3 cause that the crime of estafa has been
Prosecutor of Iligan City, which found on reinvestigation probable Dissatisfied with the finding of the Office of the City committed and that petitioner is probably guilty
cause against petitioner, and directed the Office of the City Prosecutor of Iligan City, petitioner filed a Petition for Review before thereof;
Prosecutor of Iligan City to withdraw the information for Estafa the DOJ on 15 October 2001. 3. Whether or not the petition before
against petitioner. In a Resolution dated 11 July 2002, the DOJ reversed and set the Court of Appeals has been rendered moot
The instant case emanated from the two complaints- aside the 30 August 2001 resolution of the Office of the City and academic by the order of the Regional Trial
affidavits filed by respondent Cecille S. Abalos on 18 January 2001 Prosecutor of Iligan City and directed the said office to withdraw the Court dismissing Criminal Case No. 8782.
before the Office of the City Prosecutor of Iligan City, against Information for Estafa against petitioner. The Court of Appeals in a Decision dated 21 July 2004
petitioner for Estafa. The said DOJ resolution prompted the Office of the City granted respondent's petition and reversed the Resolutions of the
Respondent alleged in the complaints-affidavits that Prosecutor of Iligan City to file a "Motion to Withdraw Information" DOJ dated 11 July 2002 and 30 January 2003.
petitioner, through deceit, received and encashed two checks issued on 25 July 2002. In resolving the first issue, the Court of Appeals, relying
in the name of respondent without respondent's knowledge and On 26 July 2002, respondent filed a motion for heavily on Section 7 of DOJ Circular No. 70 which states "[i]f an
consent and that despite repeated demands by the latter, petitioner reconsideration of said resolution of the DOJ arguing that the DOJ information has been filed in court pursuant to the appealed
failed and refused to pay the proceeds of the checks. should have dismissed outright the petition for review since Section resolution, the petition shall not be given due course if the accused
On 23 March 2001, petitioner filed a counter-affidavit 7 of DOJ Circular No. 70 mandates that when an accused has already had already been arraigned," ruled that since petitioner was
admitting that she received and encashed the two checks issued in been arraigned and the aggrieved party files a petition for review arraigned before she filed the petition for review with the DOJ, it was
favor of respondent. before the DOJ, the Secretary of Justice cannot, and should not take imperative for the DOJ to dismiss such petition. It added that when
cognizance of the petition, or even give due course thereto, but petitioner pleaded to the charge, she was deemed to have waived
In her Supplemental Affidavit filed on 29 March 2001,
instead deny it outright. Respondent claimed Section 12 thereof her right to reinvestigation and right to question any irregularity that
petitioner, however, recanted and alleged instead that it was a
mentions arraignment as one of the grounds for the dismissal of the surrounds it.
certain Bebie Correa who received the two checks which are the
subject matter of the complaints and encashed the same; and that petition for review before the DOJ. Anent the second issue, the Court of Appeals declared that
said Bebie Correa left the country after misappropriating the In a resolution dated 30 January 2003, the DOJ denied the the existence of probable cause or the lack of it, cannot be dealt with
proceeds of the checks. Motion for Reconsideration opining that under Section 12, in relation by it since factual issues are not proper subjects of a Petition
to Section 7, of DOJ Circular No. 70, the Secretary of Justice is not for Certiorari.
On 25 April 2001, a resolution was issued by the Office of the
City Prosecutor of Iligan City finding probable cause against petitioner precluded from entertaining any appeal taken to him even where the In disposing of the last issue, the Court of Appeals held that
and ordering the filing of two separate Informations for Estafa Thru accused has already been arraigned in court. This is due to the the order of the trial court dismissing the subject criminal case
Falsification of Commercial Document by a Private Individual, under permissive language "may" utilized in Section 12 whereby the pursuant to the assailed resolutions of the DOJ did not render the
Article 315 in relation to Articles 171 and 172 of the Revised Penal Secretary has the discretion to entertain an appealed resolution petition moot and academic. It said that since the trial court's order
Code, as amended. notwithstanding the fact that the accused has been arraigned. relied solely on the resolutions of the DOJ, said order is void as it
Meanwhile, on 27 February 2003, the trial court issued an violated the rule which enjoins the trial court to assess the evidence
Consequently, two separate criminal cases were filed
order granting petitioner's "Motion to Withdraw Information" and presented before it in a motion to dismiss and not to rely solely on
against petitioner docketed as Criminal Cases No. 8781 and No. 8782,
the prosecutor's averment that the Secretary of Justice had otherwise than designated, that statute or provision is It also rejected petitioner's protestation that her
recommended the dismissal of the case. mandatory, thus rendering the provision mandatory — it arraignment was forced upon her since she failed to present any
Dissatisfied by the Court of Appeals' ruling, petitioner filed a opined that the subject provision simply means that the evidence to substantiate the same.
Motion for Reconsideration setting forth the following grounds: Secretary of Justice has no other course of action but to deny or It is petitioner's contention that despite her being arraigned,
1. that the over-all language of Sections dismiss a petition before him when arraignment of an accused the supposed waiver of her right to preliminary investigation has
7 and 12 of Department Circular No. 70 is had already taken place prior to the filing of the petition for been nullified by virtue of the trial court's order or reinvestigation.
permissive and directory such that the Secretary review. On this score, the Court of Appeals rebuffed such argument stating
of Justice may entertain an appeal despite the On the other hand, reading Section 12 of the same circular that there was no "supposed waiver of preliminary investigation" to
fact that the accused had been arraigned; which reads: speak of for the reason that petitioner had actually undergone
2. that the contemporaneous The Secretary may reverse, affirm or preliminary investigation.
construction by the Secretary of Justice should be modify the appealed resolution. He may, motu Petitioner remained unconvinced with the explanations of
given great weight and respect; proprio or upon motion, dismiss the petition for the Court of Appeals.
3. that Section 7 of the Circular applies review on any of the following grounds: Hence, the instant petition.
only to resolutions rendered pursuant to a xxx xxx xxx Again, petitioner contends that the DOJ can give due course
preliminary investigation, not on a (e) That the accused had already been to an appeal or petition for review despite its having been filed after
reinvestigation; arraigned when the appeal was taken; . the accused had already been arraigned. It asserts that the fact of
4. that the trial court's order of dismissal ... arraignment of an accused before the filing of an appeal or petition
of the criminal case has rendered the instant the Court of Appeals opined that the permissive word "may" in for review before the DOJ "is not at all relevant" as the DOJ can still
petition moot and academic; Section 12 would seem to imply that the Secretary of Justice take cognizance of the appeal or Petition for Review before it. In
5. that her arraignment was null and has discretion to entertain an appeal notwithstanding the fact support of this contention, petitioner set her sights on the ruling of
void it being conducted despite her that the accused has been arraigned. This provision should not this Court in Crespo v. Mogul, 5to wit:
protestations; and be treated separately, but should be read in relation to Section The rule therefore in this jurisdiction is
6. that despite her being arraigned, the 7. The two provisions, taken together, simply meant that when that once a complaint or information is filed in
supposed waiver of her right to preliminary an accused was already arraigned when the aggrieved party Court any disposition of the case as to its
investigation has been nullified or recalled by files a petition for review, the Secretary of Justice cannot, and dismissal or the conviction or acquittal of the
virtue of the trial court's order of should not take cognizance of the petition, or even give due accused rests in the sound discretion of the
reinvestigation. 4 course thereto, but instead dismiss or deny it outright. The Court. Although the fiscal retains the direction
appellate court added that the word "may" in Section 12 should and control of the prosecution of criminal cases
The Court of Appeals stood firm by its decision. This time, be read as "shall" or "must" since such construction is even while the case is already in Court he cannot
however, it tried to construe Section 7 side by side with Section 12 of
absolutely necessary to give effect to the apparent intention of impose his opinion on the trial court. The Court is
DOJ Circular No. 70 and attempted to reconcile these two provisions.
the rule as gathered from the context. the best and sole judge on what to do with the
According to the appellate court, the phrase "shall not" in paragraph case before it. The determination of the case is
two, first sentence of Section 7 of subject circular, to wit: As to the contemporaneous construction of the Secretary of
Justice, the Court of Appeals stated that the same should not be given within its exclusive jurisdiction and competence.
If an information has been filed in court A motion to dismiss the case filed by the fiscal
weight since it was erroneous.
pursuant to the appealed resolution, the should be addressed to the Court who has the
petition shall not be given due course if the Anent petitioner's argument that Section 7 of the
questioned circular applies only to original resolutions that brought option to grant or deny the same. It does not
accused had already been arraigned. . . . . matter if this is done before or after the
(Emphasis supplied.) about the filing of the corresponding informations in court, but not
to resolutions rendered pursuant to a motion for reinvestigation, the arraignment of the accused or that the motion
employed in the circular denotes a positive prohibition. was filed after a reinvestigation or upon
appellate court simply brushed aside such contention as having no
Applying the principle in statutory construction — that when a basis in the circular questioned. instructions of the Secretary of Justice who
statute or provision contains words of positive prohibition, such reviewed the records of the investigation.
as "shall not," "cannot," or "ought not" or which is couched in (Emphasis supplied.)
negative terms importing that the act shall not be done
 To bolster her position, petitioner cites Roberts v. Court of the Crespo case, the accused had not yet been arraigned when the of the petition shall not bar the Secretary of
Appeals, 6 which stated: appeal or petition for review was filed before the DOJ. Undoubtedly, Justice from exercising his power of review.
There is nothing in Crespo vs. petitioner's reliance on the said case is misplaced. (Italics supplied.)
Mogul which bars the DOJ from taking Also unavailing is petitioner's invocation of the cases On the other hand, Section 12 of the same circular states:
cognizance of an appeal, by way of a petition for of Roberts v. Court of Appeals and Marcelo v. Court of Appeals. As SECTION 12. Disposition of the Appeal.
review, by an accused in a criminal case from an in Crespo v. Mogul, neither Roberts v. Court of Appeals nor Marcelo — The Secretary may reverse, affirm or modify
unfavorable ruling of the investigating v. Court of Appeals took into account of whether the appeal or the appealed resolution. He may, motu proprio
prosecutor. It merely advised the DOJ to, "as far petition before the Secretary of Justice was filed after arraignment. or upon motion,dismiss the petition for review on
as practicable, refrain from entertaining a Just like in the Crespo case, the accused in both Roberts v. Court of any of the following grounds:
petition for review or appeal from the action of Appeals and Marcelo v. Court of Appeals had not yet been arraigned (a) That the petition was filed beyond
the fiscal, when the complaint or information has when the appeal or petition for review was filed before the DOJ. the period prescribed in Section 3 hereof;
already been filed in Court. . . . . (Emphasis Moreover, petitioner asserts that the Court of Appeals' (b) That the procedure or any of the
supplied.) interpretation of the provisions of DOJ Circular No. 70 violated three requirements herein provided has not been
Petitioner likewise invokes Marcelo v. Court of basic rules in statutory construction. First, the rule that the provision complied with;
Appeals 7 where this Court declared: that appears last in the order of position in the rule or regulation must
(c) That there is no showing of any
Nothing in the said ruling forecloses the prevail. Second, the rule that the contemporaneous construction of a
reversible error;
power or authority of the Secretary of Justice to statute or regulation by the officers who enforce it should be given
review resolutions of his subordinates in criminal weight. Third, petitioner lifted a portion from Agpalo's Statutory (d) That the appealed resolution is
Construction 8 where the word "shall" had been construed as a interlocutory in nature, except when it suspends
cases. The Secretary of Justice is only enjoined to
permissive, and not a mandatory language. the proceedings based on the alleged existence
refrain as far as practicable from entertaining a
of a prejudicial question;
petition for review or appeal from the action of The all too-familiar rule in statutory construction, in this
the prosecutor once a complaint or information case, an administrative rule 9 of procedure, is that when a statute or (e) That the accused had already been
is filed in court. In any case, the grant of a motion rule is clear and unambiguous, interpretation need not be resorted arraigned when the appeal was taken;
to dismiss, which the prosecution may file after to. 10 Since Section 7 of the subject circular clearly and categorically (f) That the offense has already
the Secretary of Justice reverses an appealed directs the DOJ to dismiss outright an appeal or a petition for review prescribed; and
resolution, is subject to the discretion of the filed after arraignment, no resort to interpretation is necessary. (g) That other legal or factual grounds
court. Petitioner's reliance to the statutory principle that "the last exist to warrant a dismissal. (Emphases
The Court is unconvinced. in order of position in the rule or regulation must prevail" is not supplied.)
A cursory reading of Crespo v. Mogul reveals that the ruling applicable. In addition to the fact that Section 7 of DOJ Circular No. It is noteworthy that the principle cited by petitioner reveals
therein does not concern the issue of an appeal or petition for review 70 needs no construction, the cited principle cannot apply because, that, to find application, the same presupposes that "one part of the
before the DOJ after arraignment. Verily, the pronouncement therein as correctly observed by the Court of Appeals, there is no statute cannot be reconciled or harmonized with another part
has to do with the filing of a motion to dismiss and the court's irreconcilable conflict between Section 7 and Section 12 of DOJ without nullifying one in favor of the other." In the instant case,
discretion to deny or grant the same. As correctly pointed out by Circular No. 70. Section 7 of the circular provides: however, Section 7 is neither contradictory nor irreconcilable with
respondent, the emphasized portion in the Crespo ruling is a parcel SECTION 7. Action on the petition. — Section 12. As can be seen above, Section 7 pertains to the action on
of the entire paragraph which relates to the duty and jurisdiction of The Secretary of Justice may dismiss the petition the petition that the DOJ must take, while Section 12 enumerates the
the trial court to determine for itself whether or not to dismiss a case outright if he finds the same to be patently options the DOJ has with regard to the disposition of a petition for
before it, and which states that such duty comes into play regardless without merit or manifestly intended for delay, review or of an appeal.
of whether such motion is filed before or after arraignment and upon or when the issues raised therein are too As aptly observed by respondent, Section 7 specifically
whose instructions. The allusion to the Secretary of Justice as unsubstantial to require consideration. If an applies to a situation on what the DOJ must do when confronted with
reviewing the records of investigation and giving instructions for the information has been filed in court pursuant to an appeal or a petition for review that is either clearly without merit,
filing of a motion to dismiss in the cited ruling does not take into the appealed resolution, the petition shall not be manifestly intended to delay, or filed after an accused has already
consideration of whether the appeal or petition before the Secretary given due course if the accused had already been been arraigned, i.e., he may dismiss it outright if it is patently without
of Justice was filed after arraignment. Significantly, in arraigned. Any arraignment made after the filing merit or manifestly intended to delay, or, if it was filed after the
accused has already been arraigned, the Secretary shall not give it possesses no ambiguity, where the construction At this juncture, the Court of Appeals' disquisition in this
due course. is clearly erroneous, where strong reason to the matter is enlightening:
Section 12 applies generally to the disposition of an appeal. contrary exists, and where the court has Indeed, if the intent of Department
Under said section, the DOJ may take any of four actions when previously given the statute a different Circular No. 70 were to give the Secretary of
disposing an appeal, namely: interpretation. Justice a discretionary power to dismiss or to
1. reverse the appealed resolution; If through misapprehension of law or a entertain a petition for review despite its being
2. modify the appealed resolution; rule an executive or administrative officer called outrightly dismissible, such as when the accused
upon to implement it has erroneously applied or has already been arraigned, or where the crime
3. affirm the appealed resolution;
executed it, the error may be corrected when the the accused is being charged with has already
4. dismiss the appeal altogether, true construction is ascertained. If a prescribed, or there is no reversible error that
depending on the circumstances and incidents contemporaneous construction is found to be has been committed, or that there are legal or
attendant thereto. erroneous, the same must be declared null and factual grounds warranting dismissal, the result
As to the dismissal of a petition for review or an appeal, the void. Such principle should be as it is applied in would not only be incongruous but also irrational
grounds are provided for in Section 12 and, consequently, the DOJ the case at bar. 11 and even unjust. For then, the action of the
must evaluate the pertinent circumstances and the facts of the case Petitioner's posture on a supposed exception to the Secretary of Justice of giving due course to the
in order to determine which ground or grounds shall apply. mandatory import of the word "shall" is misplaced. It is petitioner's petition would serve no purpose and would only
Thus, when an accused has already been arraigned, the DOJ view that the language of Section 12 is permissive and therefore the allow a great waste of time. Moreover, to give
must not give the appeal or petition for review due course and must mandate in Section 7 has been transformed into a matter within the the second sentence of Section 12 in relation to
dismiss the same. This is bolstered by the fact that arraignment of the discretion of the DOJ. To support this stance, petitioner cites a its paragraph (e) a directory application would
accused prior to the filing of the appeal or petition for review is set portion of Agpalo's Statutory Construction which reads: not only subvert the avowed objectives of the
forth as one of the grounds for its dismissal. Therefore, in such For instance, the word "shall" in Section Circular, that is, for the expeditious and efficient
instance, the DOJ, noting that the arraignment of an accused prior to 2 of Republic Act 304 which states that "banks or administration of justice, but would also render
the filing of an appeal or petition for review is a ground for dismissal other financial institutions owned or controlled its other mandatory provisions — Sections 3, 5, 6
under Section 12, must go back to Section 7 and act upon as by the Government shall, subject to availability of and 7, nugatory. 13
mandated therein. In other words, the DOJ must not give due course funds . . ., accept at a discount at not more than In her steadfast effort to champion her case, petitioner
to, and must necessarily dismiss, the appeal. two per centum for ten years such (backpay) contends that the issue as to whether the DOJ rightfully entertained
Likewise, petitioner's reliance on the principle of certificate" implies not a mandatory, but a the instant case, despite the arraignment of the accused prior to its
contemporary construction, i.e., the DOJ is not precluded from discretionary, meaning because of the phrase filing, has been rendered moot and academic with the order of
entertaining appeals where the accused had already been arraigned, "subject to availability of funds." Similarly, the dismissal by the trial court dated 27 February 2003. Such contention
because it exercises discretionary power, and because it promulgated word "shall" in the provision to the effect that a deserves scant consideration.
itself the circular in question, is unpersuasive. As aptly ratiocinated corporation violating the corporation law "shall, It must be stressed that the trial court dismissed the case
by the Court of Appeals: upon such violation being proved, be dissolved precisely because of the Resolutions of the DOJ after it had, in grave
True indeed is the principle that a by quo warranto proceedings" has been abuse of its discretion, took cognizance of the petition for review filed
contemporaneous interpretation or construction construed as "may." 12 by petitioner. Having been rendered in grave abuse of its discretion,
by the officers charged with the enforcement of After a judicious scrutiny of the cited passage, it becomes the Resolutions of the DOJ are void. As the order of dismissal of the
the rules and regulations it promulgated is apparent that the same is not applicable to the provision in question. trial court was made pursuant to the void Resolutions of the DOJ, said
entitled to great weight by the court in the In the cited passage, the word "shall" departed from its mandatory order was likewise void. The rule in this jurisdiction is that a void
latter's construction of such rules and import connotation because it was connected to certain judgment is a complete nullity and without legal effect, and that all
regulations. That does not, however, make such provisos/conditions: "subject to the availability of funds" and "upon proceedings or actions founded thereon are themselves regarded as
a construction necessarily controlling or binding. such violation being proved." No such proviso/condition, however, invalid and ineffective for any purpose. 14That respondent did not
For equally settled is the rule that courts may can be found in Section 7 of the subject circular. Hence, the word file a motion for reconsideration or appeal from the dismissal order
disregard contemporaneous construction in "shall" retains its mandatory import. of the trial court is of no moment. Since the dismissal was void, there
instances where the law or rule construed was nothing for respondent to oppose.
 Petitioner further asserts that Section 7 of DOJ Circular No. WHEREFORE, the petition is DENIED. The Decision of the
70 applies only to appeals from original resolution of the City Court of Appeals dated 21 July 2004 and its Resolution dated 10 June
Prosecutor and does not apply in the instant case where an appeal is 2005 in CA-G.R. SP No. 76396 are AFFIRMED. Costs against petitioner.
interposed by petitioner from the Resolution of the City Prosecutor ||| (Adasa v. Abalos, G.R. No. 168617, [February 19, 2007], 545 PHIL
denying her motion for reinvestigation. This claim is baseless. 168-197)
A reading of Section 7 discloses that there is no qualification
given by the same provision to limit its application to appeals from
original resolutions and not to resolutions on reinvestigation. Hence,
the rule stating that "when the law does not distinguish, we must not
distinguish" 15 finds application in this regard.
Petitioner asserts that her arraignment was null and void as
the same was improvidently conducted. Again, this contention is
without merit. Records reveal that petitioner's arraignment was
without any restriction, condition or reservation. 16 In fact she was
assisted by her counsels Atty. Arthur Abudiente and Atty. Maglinao
when she pleaded to the charge. 17
Moreover, the settled rule is that when an accused pleads to
the charge, he is deemed to have waived the right to preliminary
investigation and the right to question any irregularity that surrounds
it. 18 This precept is also applicable in cases of reinvestigation as well
as in cases of review of such reinvestigation. In this case, when
petitioner unconditionally pleaded to the charge, she effectively
waived the reinvestigation of the case by the prosecutor as well as
the right to appeal the result thereof to the DOJ Secretary. Thus, with
the arraignment of the petitioner, the DOJ Secretary can no longer
entertain the appeal or petition for review because petitioner had
already waived or abandoned the same.
Lastly, while there is authority 19 permitting the Court to
make its own determination of probable cause, such, however,
cannot be made applicable in the instant case. As earlier stated, the
arraignment of petitioner constitutes a waiver of her right to
preliminary investigation or reinvestigation. Such waiver is
tantamount to a finding of probable cause. For this reason, there is
no need for the Court to determine the existence or non-existence of
probable cause.
Besides, under Rule 45 of the Rules of Court, only questions
of law may be raised in, and be subject of, a petition for review
on certiorari since this Court is not a trier of facts. This being the case,
this Court cannot review the evidence adduced by the parties before
the prosecutor on the issue of the absence or presence of probable
cause. 20
 SECOND DIVISION Education (CPE) Programs for all Professions," the assailed Resolution Petitioner is an organization composed of professional
[G.R. No. 87134. January 20, 2000.] was no longer in effect. electrical engineers, associate electrical engineers, assistant electrical
PHILIPPINE REGISTERED ELECTRICAL SYLLABUS engineers, and master electricians. It is represented in this case by
PRACTITIONERS, INC. (PREPI), represented by 1. POLITICAL LAW; BOARD OF ELECTRICAL ENGINEERING; several of its officers and members. Cdpr
BEN ROSETE, HERMINIO S. RAMIREZ, CASIANO RESOLUTION ISSUED TO UPGRADE THE KNOWLEDGE AND SKILLS OF On July 6, 1988, petitioner filed before the RTC an action for
PAULINO, NONATO VILLANUEVA, JR., RENATO ELECTRICAL ENGINEERS; UPHELD. — The Board of Electrical declaratory relief and/or prohibition, assailing the constitutional
AME, MARIO BLAS, SAMUEL BRAVO, AMOR Engineering issued Resolution No. 1, Series of 1986 as a means validity of Resolution No. 1, Series of 1986, issued by the Board of
CRUZ, FRANCISCO DULLER, BENITO ESPAÑOL, purportedly to upgrade the knowledge and skills of electrical Electrical Engineering, then headed by respondent Mederico T.
PABLO FERNANDEZ, WILFREDO GORRICHO, engineers. Effectivity of the resolution has been expressly made Cortez. The Professional Regulation Commission, then headed by
GRACIANO LAPID, LUISITO MAGANA, subject to the approval of the PRC and its publication in the Official respondent Julio Francia, Jr., approved said resolution on February
FERNANDO MALABANAN, MARTIN MARTINEZ, Gazette, as may be seen from its effectivity clause. We further note 10, 1986.
EDGARDO MERIDA, ARNEL PALILIO, GAUDIOSO that Section 3, of R.A. No. 184, mandates the Board to recommend to In said resolution, the Board adopted guidelines for the
SEURA, ZENON TUBIO, MARIANO YAPE, AND the PRC the adoption of "measures as may be deemed proper for the implementation of the Continuing Professional Education (CPE)
NILO MONTALBAN, petitioner, vs. JULIO maintenance of good ethics and standards in the practice of electrical Program for electrical engineers. Included therein is a requirement
FRANCIA, JR., in his capacity as engineering in the Philippines. . ." Moreover, Section 6(a) of P.D. No. that beginning January 1, 1988, every electrical engineer must earn
COMMISSIONER OF PROFESSIONAL 223 gives the various professional boards the power to adopt such credit units of CPE before his license could be renewed. To earn credit
REGULATION COMMISSION, MEDERICO T. measures as may be deemed proper for the enhancement of the units, he must first apply for accreditation with the Institute of
CORTEZ, in his capacity as CHAIRMAN OF THE profession or occupation and/or the maintenance of high Integrated Electrical Engineers of the Philippines (IIEE).
BOARD OF ELECTRICAL ENGINEERING, and professional, ethical and technical standards. . . ." We are, therefore, Petitioner assailed before the trial court the resolution as
HONORABLE REBECCA SALVADOR, JUDGE OF constrained to concede to the Board the existence of the power to violative of the Constitution's equal protection and due process
THE REGIONAL TRIAL COURT OF MANILA, issue the assailed resolution, in pursuance of its mandates under R.A. clauses, prohibition against bills of attainder and ex post facto laws,
BRANCH 1, respondents. 184 and P.D. 223. and mandate for the protection of the rights of workers.
Thelma A. Jader for petitioners. 2. ID.; ID.; ID.; SUPERSEDED BY THE ISSUANCE OF E.O. NO. Following are the relevant portions of the resolution:
The Solicitor General for respondents. 266 AND PRC RESOLUTION NO. 507. — Supervening events have "III. Possible Exemption to the CPE Guidelines
SYNOPSIS rendered moot the constitutional inquiry of the subject Board
A. An electrical engineering practitioner
Resolution. On July 25, 1995, President Fidel V. Ramos
Petitioner assailed the constitutionality of Resolution No. 1, who has reached the age of
issued Executive Order No. 266, entitled "Institutionalization of the
Series of 1986 issued by the Board of Electrical Engineering (BEE), 60.
Continuing Professional Education (CPE) Programs of the Various
adopting guidelines for the implementation of Continuing Professional Regulatory Boards (PRBs) under the Supervision of the B. A top government official of at least
Professional Education (CPE) Program for Electrical Engineers. It Vice-President or Bureau
Professional Regulation Commission (PRC)." E.O. No. 266 found it
requires every electrical engineer to earn credit units of CPE before Director level, or equivalent
imperative to impose upon registered professionals the completion
his license could be renewed. of the CPE as a pre-requisite for the renewal of their licenses. For its ranking position in private
Petitioner questioned the authority of the BEE to issue the part, the PRC issued Resolution No. 507, Series of 1997, entitled sector.
subject Resolution, and the constitutionality of said Resolution. Sec. "Standardized Guidelines and Procedures for the Implementation of C. A practitioner undergoing post-
3 of RA 184 mandated the Board to recommend proper measures for the Continuing Professional Education (CPE) Programs for all doctoral studies during his
the maintenance of good ethics and standards in the practice of Professions." Thus, the assailed BEE Resolution No. 1, Series of 1986, current registration period.
electrical engineering in the Philippines. The same is supported by providing for guidelines on CPE for electrical engineers, is no longer D. Those recommended by the PRC or
Sec. 6(a) of PD 223. The Court upheld the issuance of 1986 Resolution in effect now. by [the] Board of Electrical
No. 1. Later, however, Executive Order No. 266 was made imposing Engineering.
RESOLUTION
upon professionals the completion of CPE as a pre-requisite for the
renewal of their licenses. Thus, when the PRC issued Resolution No. QUISUMBING, J p: IV. Method of Evaluation and Credit Units
507, Series of 1997, entitled "Standardized Guidelines and For review on certiorari is the decision of the Regional Trial A. Basic Requirements
Procedures for the Implementation of the Continuing Professional Court, Manila, Branch 1, which dismissed PREPI's petition for
declaratory relief and/or prohibition, for lack of merit.
 1. PRC requires that a "WHEREFORE, the petition for Petitioner contends further that implementation of the
registered Master declaratory relief and/or prohibition with prayer resolution would amount to deprivation of property without due
Electrician or for injunction is hereby dismissed, for lack of process of law, particularly because an electrical engineer's or
Electrical Engineer merit and the temporary restraining order issued electrician's license will not be renewed if he failed to obtain any or
[of] any grade shall by this Court on July 13, 1988, is lifted and set enough units under the CPE program. Petitioner points out that
renew his license aside. No pronouncement as to costs. under Section 32 of R.A. No. 184, the Board has the power to suspend
once every three (3) SO ORDERED." 4 licenses only upon proper notice and hearing.
years. In this direct appeal to the Supreme Court on pure questions Petitioner argues that the license to practice a profession is
2. As a condition precedent to of law, petitioner now raises the following assignment of errors: not a mere privilege but a property right. If it were, indeed, only a
the above, he shall I. THE LOWER COURT GRIEVOUSLY ERRED IN privilege, it could not be taken away by the simple expedient of
first secure from DECLARING BOARD RESOLUTION NO. 1 passing a board resolution. Petitioner asserts that such license may
IIEE's Continuing SERIES OF 1986, CONSTITUTIONAL. only be revoked after the license holder is found guilty of the offenses
Professional specified in R.A. No. 184 or P.D. No. 223. Since failure to earn units
Education Committee II. THE LOWER COURT GRIEVOUSLY ERRED IN under the CPE program is not among those enumerated, it cannot be
HOLDING THAT THE RESPONDENTS PRC
a certificate that he made a ground for the revocation of an electrical engineer's or
AND BEE ARE VESTED WITH POWERS TO
has complied with electrician's license.
ADOPT AND PROMULGATE RULES SUCH
PRC's requirements Petitioner also argues that the classification of persons who
for Continuing AS THE RESOLUTION IN QUESTION.
may be exempt from the CPE program requirement appears to be
Professional III. THE LOWER COURT GRIEVOUSLY ERRED IN
arbitrary. Petitioner points out that
Education. FINDING THAT BOARD RESOLUTION NO.
1 SERIES OF 1986, IS VALID, LEGAL AND ". . . electrical engineers and master
3. A duly registered electrical electricians who are in the responsible practice of
engineering NOT TAINTED WITH GRAVE ABUSE OF
DISCRETION. designing and constructing electrical installations
practitioner should are excluded in the said exemptions and are not
have the following IV. THE LOWER COURT GRIEVOUSLY ERRED IN
given any credit or merit." 6
credit units for a FINDING THAT THE PETITIONERS' FEAR
AND APPREHENSION THAT THE CPE Petitioner further contends that the questioned board
period of three (3) resolution does not provide any criteria for the PRC or Board to follow
years: PROGRAM WOULD BE BURDENSOME
AND A SOURCE OF RED TAPE IS ONLY in recommending exemptions to the CPE requirement. LLpr
Registered Master Electrician Petitioner also assails the resolution as violative of the equal
100 credit units IMAGINARY THAN REAL. 5
Essentially, petitioner raises the following issues in this protection clause since only electrical engineers are subject to the
Registered Electrical Engineer requirements mentioned therein. Members of other professions are
petition for review: (1) whether or not the Board of Electrical
200 credit units (All not similarly required.
grades)." 1 Engineering had authority to issue the resolution in question; and, if
it did, (2) whether or not the resolution issued pursuant to that For the respondents, the Solicitor General submits that,
After hearing, the trial court dismissed petitioner's action, authority is constitutionally valid. prLL contrary to petitioner's assertion, the Board had the authority to
on the ground that petitioner failed to establish a clear and promulgate the questioned resolution pursuant to Section 3, R.A. No.
Petitioner argues that the PRC and the Board did not have
unequivocal violation of the Constitution or statute. It pointed out 184 and Section 6, P.D. No. 223. The latter law is not limited to the
that all reasonable doubts should be resolved in favor of the validity the requisite authority to issue said resolution. Citing Section 6(a)
of P.D. No. 223, petitioner claims that the Board only has visitation power of inspection and visitation as petitioner contends. It includes
of a statute. llcd the power to formulate policies and programs as may be necessary
powers, "to see [to it] that proper compliments of professionals are
According to the trial court, the questioned resolution is a employed and given proper responsibilities and remuneration." In to improve the practice of a profession.
valid implementation of Section 3, Republic Act No. 184, 2 and other words, petitioner contends that the Board may only conduct The Solicitor General further contends that Resolution No.
Section 6, Presidential Decree No. 223. 3 inspections of sites where electrical engineering jobs are conducted, 1, Series of 1986 is not violative of the Constitution. He dismisses as
The dispositive portion of the RTC decision reads: primarily to safeguard the welfare of electrical engineers. unfounded petitioner's fears regarding the automatic revocation of
license for non-compliance with the CPE requirement. Nothing in the
questioned resolution provides for such automatic revocation, 2. To effect transfer of technology from experts On this point, petitioner now insists that the authority of the
according to him; there is, thus, no violation of the due process and specialists to Electrical Engineering Board is limited to the conduct of ocular inspections. But nothing in
clause. Practitioners; said provision in any way imposes such an interpretation. The Board
Neither does the resolution violate the equal protection 3. To stimulate self-improvement, and thus in fact may even do away with ocular inspections, as can be gleaned
clause since not all electrical engineers are similarly situated, he enhance practitioner's competence and from the use of the word "may," implying that the conduct of ocular
further argues. He claims that there are those who, by reason of age self-confidence; and inspections is merely directory and not mandatory. For sure,
and expertise, may reasonably be exempted from the CPE 4. To broaden practitioner's horizon to include conducting ocular inspections is only one way of ensuring compliance
requirement. Equal protection, he concludes, does not require awareness of his social responsibility. 7 with laws and rules relative to the professional practice of electrical
universal application of laws but only equality among equals. engineering. But it certainly is not the only way.
Effectivity of the resolution has been expressly made subject
The Solicitor General likewise contends that the resolution to the approval of the PRC and its publication in the Official Gazette, We are, therefore, constrained to concede to the Board the
is not a bill of attainder since it does not seek to punish but only to as may be seen from its effectivity clause. existence of the power to issue the assailed resolution, in pursuance
regulate the practice of a profession. Neither is it an ex post facto law, of its mandates under R.A. 184and P.D. 223. What now remains is a
"VI. Effectivity
he says, since the ex post facto principle only applies to penal statutes determination of whether or not said resolution suffers from
and not to regulations involving civil rights such as the practice of a These Rules shall take effect upon constitutional infirmities.
approval hereof by the Commission and after
profession. Supervening events, however, have rendered moot this
fifteen (15) days following the completion of its
In his view also, there is no violation of Article VI, Section 28 constitutional inquiry. On July 25, 1995, President Fidel V. Ramos
publication in the Official Gazette." 8
of the Constitution, which states, in its second paragraph as follows: issued Executive Order No. 266, entitled "Institutionalization of the
We further note that Section 3, of R.A. No. 184, mandates Continuing Professional Education (CPE) Programs of the Various
"(2) The Congress may, by law, the Board to recommend to the PRC the adoption of
authorize the President to fix within specified Professional Regulatory Boards (PRBs) under the Supervision of the
"measures as may be deemed proper for Professional Regulation Commission (PRC)." E.O. No. 266 found it
limits, and subject to such limitations and
the maintenance of good ethics and standards in imperative to impose upon registered professionals the completion
restrictions as it may impose, tariff rates, import
the practice of electrical engineering in the of the CPE as a pre-requisite for the renewal of their licenses.
and export quotas, tonnage and wharfage dues,
Philippines. . ." (Italics supplied.) Avowedly, CPE would enable the professionals
and other duties or imposts within the
framework of the national development program Moreover, Section 6(a) of P.D. No. 223 gives the various "not only to upgrade or improve their
of the government." professional boards the power technical knowledge and skills but also to keep
The Solicitor General opines that this provision is simply not "[t]o look from time to time into the them abreast with modern trends and
pertinent nor applicable in this case. For the fees that may be conditions affecting the practice of the technology in their respective professions,
charged electrical engineers in complying with the CPE profession or occupation under their respective thereby assuring the rendition of highly
program, he argues, are not the duties or imposts referred to in jurisdictions and whenever necessary, adopt qualitative professional service/s that will be
the preceding constitutional provision. prcd such measures as may be deemed proper for the globally competitive under the General
enhancement of the profession or occupation Agreement on Trade in Services (GATS) and at
The issue before this Court boils down to (a) whether the the same time securing the safety and protection
Board of Electrical Engineers in the light of the provisions of R.A. No. and/or the maintenance of high professional,
ethical and technical standards. . ." (Italics of the public." 9
184, had the authority to issue the questioned resolution; and (b)
supplied.) In fact, E.O. No. 266 provides that:
whether the resolution itself violates certain provisions of the present
Constitution. For said purposes, "SECTION 1. The completion by
We begin by noting that the Board issued the resolution as "the members of a Board may professional licensees of the Continuing
a means purportedly to upgrade the knowledge and skills of electrical personally or through subordinate employees of Professional Education (CPE) programs adopted
engineers. Specifically, the resolution has the following objectives: the Commission conduct ocular inspection or by all Boards is hereby imposed as
visit industrial, mechanical, electrical or chemical amandatory requirement for the renewal of
1. To upgrade and update technical knowledge professional licenses." (Italics supplied.) prcd
and skills of Electrical Engineering plants or works, hospitals, clinics and other
engineering works. . ." cdtai For its part, the PRC issued Resolution No. 507, Series of
Practitioners;
1997, 10 entitled "Standardized Guidelines and Procedures for the
Implementation of the Continuing Professional Education (CPE)
Programs for all Professions." This resolution expressly repealed
"other Resolutions, circulars or other
issuances promulgated by the PRC and
Professional Regulatory Boards providing for, or
having any bearing on the implementation of the
CPE programs, activities or sources. . ." 11
Thus, the assailed BEE Resolution No. 1, Series of 1986,
providing for guidelines on CPE for electrical engineers, is no longer
in effect now.
WHEREFORE, the instant petition is DENIED for being moot
and academic.
||| (Phil. Registered Electrical Practitioners, Inc. v. Francia, Jr., G.R.
No. 87134 (Resolution), [January 20, 2000], 379 PHIL 634-644)
 FIRST DIVISION action. It is not therefore correct, as petitioner contends, that private On 29 January 1993, the 5-day period having expired
[G.R. No. 109068. January 10, 1994.] respondent may be deemed to have waived the aforesaid defect in without Guerrero amending his complaint, respondent Judge
GAUDENCIO failing to move to dismiss or raise the same in the Answer. On the dismissed the case, declaring the dismissal however to be without
GUERRERO, petitioner, vs. REGIONAL TRIAL other hand, we cannot sustain the proposition of private respondent prejudice.
COURT OF ILOCOS NORTE, BR. XVI, JUDGE LUIS that the case was, after all, also dismissed pursuant to Sec. 3, Rule 17, Guerrero appeals by way of this petition for review the
B. BELLO, JR., PRESIDING, AND PEDRO G. of the Rules of Court for failure of petitioner to comply with the dismissal by the court a quo. He raises these legal issues: (a) whether
HERNANDO, respondents. court's order to amend his complaint. brothers by affinity are considered members of the same family
SYLLABUS DECISION contemplated in Art. 217, par. (4), and Art. 222 of the New Civil Code,
BELLOSILLO, J p: as well as under Sec. 1, par. (j), Rule 16, of the Rules of Court requiring
1. REMEDIAL LAW; CIVIL PROCEDURE; MOTION TO DISMISS;
Filed by petitioner as an accion publiciana 1 against private earnest efforts towards a compromise before a suit between them
EARNEST EFFORT TOWARDS A COMPROMISE BETWEEN FAMILY may be instituted and maintained; and, (b) whether the absence of
MEMBERS AS A GROUND; DOES NOT INCLUDE RELATIVES BY respondent, this case assumed another dimension when it was
dismissed by respondent Judge on the ground that the parties being an allegation in the complaint that earnest efforts towards a
AFFINITY. — The Constitution protects the sanctity of the
brothers-in-law the complaint should have alleged that earnest compromise were exerted, which efforts failed, is a ground for
family and endeavors to strengthen it as a basic autonomous social dismissal for lack of jurisdiction.
institution. This is also embodied in Art. 149, and given flesh in Art. efforts were first exerted towards a compromise. cdll
151, of the Family Code. Considering that Article 151 starts with the Admittedly, the complaint does not allege that the parties The Constitution protects the sanctity of the family and
negative word "No," the requirement is mandatory that the exerted earnest efforts towards a compromise and that the same endeavors to strengthen it as a basic autonomous social
complaint or petition, which must be verified, should allege that failed. However, private respondent Pedro G. Hernando apparently institution. 2 This is also embodied in Art. 149, 3 and given flesh
earnest efforts towards a compromise have been made but that the overlooked this alleged defect since he did not file any motion to in Art. 151, of the Family Code, which provides:
same failed, so that "[i]f it is shown that no such efforts were in fact dismiss nor attack the complaint on this ground in his answer. It was Art. 151. No suit between members of
made, the case must be dismissed." Further, Art. 151 is only on 7 December 1992, at the pre-trial conference, that the the same family shall prosper unless it should
complemented by Sec. 1, par. (j), Rule 16, of the Rules of Court which relationship of petitioner Gaudencio Guerrero and respondent appear from the verified complaint or petition
provides as a ground for a motion to dismiss "(t)hat the suit is Hernando was noted by respondent Judge Luis B. Bello, Jr., they being that earnest efforts toward a compromise have
between members of the same family and no earnest efforts towards married to half-sisters hence are brothers-in-law, and on the basis been made, but that the same have failed. If it is
a compromise have been made." As early as two decades ago, we thereof respondent Judge gave petitioner five (5) days "to file his shown that no such efforts were in fact made, the
already ruled in Gayon v. Gayon (36 SCRA 104, 108) that the motion and amended complaint" to allege that the parties were very case must be dismissed.
enumeration of "brothers and sisters" as members of the same family close relatives, their respective wives being sisters, and that the This rule shall not apply to cases which
does not comprehend "sisters-in-law." In that case, then Chief Justice complaint to be maintained should allege that earnest efforts may not be the subject of compromise under the
Concepcion emphasized that "sisters-in-law" (hence, also "brothers- towards a compromise were exerted but failed. Apparently, Civil Code. LLphil
in-law) are not listed under Art. 217 of the New Civil Code as respondent Judge considered this deficiency a jurisdictional defect. Considering that Art. 151 herein-quoted starts with the
members of the same family. Since Art. 150 of the Family Code On 11 December 1992, Guerrero moved to reconsider the 7 negative word "No," the requirement is mandatory 4 that the
repeats essentially the same enumeration of "members of the December 1992 Order claiming that since brothers by affinity are not complaint or petition, which must be verified, should allege that
family," we find no reason to alter existing jurisprudence on the members of the same family, he was not required to exert efforts earnest efforts towards a compromise have been made but that the
matter. Consequently, the court a quo erred in ruling that petitioner towards a compromise. Guerrero likewise argued that Hernando was same failed, so that "[i]f it is shown that no such efforts were in fact
Guerrero, being a brother-in-law of private respondent Hernando, precluded from raising this issue since he did not file a motion to made, the case must be dismissed."
was required to exert earnest efforts towards a compromise before dismiss nor assert the same as an affirmative defense in his Further, Art. 151 is contemplated by Sec. 1, par. (j), Rule 16,
filing the present suit. answer. LibLex of the Rules of Court which provides as a ground for a motion to
2. ID.; ID.; ID.; ID.; CONSIDERED A CONDITION PRECEDENT On 22 December 1992, respondent Judge denied the motion dismiss "(t)hat the suit is between members of the same family and
TO THE FILING OF A SUIT. — In O'Laco v. Co Cho Chit, (G.R. No. 58010, for reconsideration holding that "[f]ailure to allege that earnest no earnest efforts towards a compromise have been made."
31 March 1993) citing Mendoza v. Court of Appeals, that the attempt efforts towards a compromise is jurisdictional such that for failure to The Code Commission, which drafted the precursor
to compromise as well as the inability to succeed is a condition allege same the court would be deprived of its jurisdiction to take provision in the Civil Code, explains the reason for the requirement
precedent to the filing of a suit between members of the same family, cognizance of the case." He warned that unless the complaint was that earnest efforts at compromise be first exerted before a
the absence of such allegation in the complaint being assailable at amended within five (5) days the case would be dismissed. complaint is given due course —
any stage of the proceeding, even on appeal, for lack of cause of
 This rule is introduced because it is It is not therefore correct, as petitioner contends, that
difficult to imagine a sadder and more tragic private respondent may be deemed to have waived the aforesaid
spectacle than a litigation between members of defect in failing to move to dismiss or raise the same in the Answer.
the same family. It is necessary that every effort On the other hand, we cannot sustain the proposition of private
should be made toward a compromise before a respondent that the case was, after all, also dismissed pursuant
litigation is allowed to breed hate and passion in to Sec. 3, Rule 17, of the Rules of Court 11 for failure of petitioner to
the family. It is known that a lawsuit between comply with the court's order to amend his complaint.
close relatives generates deeper bitterness than A review of the assailed orders does not show any directive
between strangers . . . A litigation in a family is to which Guerrero supposedly defied. The Order of 7 December 1992
be lamented far more than a lawsuit between merely gave Guerrero five (5) days to file his motion and amended
strangers . . . 5 complaint with a reminder that the complaint failed to allege that
But the instant case presents no occasion for the application earnest efforts were exerted towards a compromise. The Order of 22
of the above-quoted provisions. As early as two decades ago, we December 1992, which denied Guerrero's motion for
already ruled in Gayon v. Gayon 6 that the enumeration of "brothers reconsideration, simply stated that "Plaintiff if it (sic) so desire must
and sisters" as members of the same family does not comprehend amend the complaint otherwise, the court will have to dismiss the
"sisters-in-law." In that case, then Chief Justice Concepcion case (emphasis supplied) . . ." The Order of 29 January 1993
emphasized that "sisters-in-law" (hence, also "brothers-in-law") are dismissing the case without prejudice only made reference to an
not listed under Art. 217 of the New Civil Code as members of the earlier order "admonishing" counsel for Guerrero to amend the
same family. Since Art. 150 of the Family Code repeats essentially the complaint, and an "admonition" is not synonymous with "order."
same enumeration of "members of the family," we find no reason to Moreover, since the assailed orders do not find support in our
alter existing jurisprudence on the matter. Consequently, the court a jurisprudence but, on the other hand, are based on an erroneous
quo erred in ruling that petitioner Guerrero, being a brother-in-law of interpretation and application of the law, petitioner could not be
private respondent Hernando, was required to exert earnest efforts bound to comply with them. 12
towards a compromise before filing the present suit. WHEREFORE, the petition is GRANTED and the appealed
In his Comment, Hernando argues that ". . . although both Orders of 7 December 1992, 22 December 1992 and 29 January 1993
wives of the parties were not impleaded, it remains a truism that are SET ASIDE. The Regional Trial Court of Laoag City, Branch 16, or
being spouses of the contending parties, and the litigation involves whichever branch of the court the case may now be assigned, is
ownership of real property, the spouses' interest and participation in directed to continue with Civil Case No. 10084-16 with deliberate
the land in question cannot be dined, making the suit still a suit dispatch. cdrep
between half-sisters . . ." 7 SO ORDERED.
Finding this argument preposterous, Guerrero counters in ||| (Guerrero v. RTC of Ilocos Norte, Br. XVI, G.R. No. 109068,
his Reply that his "wife has no actual interest and participation in the [January 10, 1994], 299 PHIL 269-275)
land subject of the . . . suit, which the petitioner bought, according to
his complaint, before he married his wife." 8 This factual controversy
however may be best left to the court a quo to resolve when it
resumes hearing the case. llcd
As regards the second issue, we need only reiterate our
ruling in O'Laco v. Co Cho Chit, 9 citing Mendoza v. Court of
Appeals, 10 that the attempt to compromise as well as the inability
to succeed is a condition precedent to the filing of a suit between
members of the same family, the absence of such allegation in the
complaint being assailable at any stage of the proceeding, even on
appeal, for lack of cause of action.
 EN BANC 2007, 6 whereby it withdrew the nominations of Lokin, Tugna Yumabong, Bayan Muna, CIBAC, Gabriela Women's Party,
[G.R. Nos. 179431-32. June 22, 2010.] and Galang and substituted Armi Jane R. Borje as one of the Association of Philippine Electric Cooperatives, Advocacy for
LUIS K. LOKIN, JR., as the second nominee of nominees. The amended list of nominees of CIBAC thus included: Teacher Empowerment Through Action, Cooperation and
CITIZENS BATTLE AGAINST CORRUPTION (1) Villanueva, (2) Cruz-Gonzales, and (3) Borje. acEHCD Harmony Towards Educational Reforms, Inc., Akbayan! Citizen's
(CIBAC), petitioner, vs. COMMISSION ON Following the close of the polls, or on June 20, 2007, Action Party, Alagad, Luzon Farmers Party, Cooperative-Natco
ELECTIONS and the HOUSE OF Villanueva sent a letter to COMELEC Chairperson Benjamin Network Party, Anak Pawis, Alliance of Rural Concerns and
REPRESENTATIVES, respondents. Abalos, 7 transmitting therewith the signed petitions of more Abono; and to defer the proclamation of the nominees of the
than 81% of the CIBAC members, in order to confirm the parties, organizations and coalitions with pending disputes until
[G.R. No. 180443. June 22, 2010.]
withdrawal of the nomination of Lokin, Tugna and Galang and final resolution of their respective cases.
LUIS K. LOKIN, JR., petitioner, vs. COMMISSION
the substitution of Borje. In their petitions, the members of The COMELEC en banc issued another resolution, NBC
ON ELECTIONS (COMELEC), EMMANUEL JOEL J. CIBAC averred that Lokin and Tugna were not among the Resolution No. 07-72 dated July 18, 2007, 12 proclaiming Buhay
VILLANUEVA, CINCHONA C. GONZALES and
nominees presented and proclaimed by CIBAC in its Hayaan Yumabong as entitled to 2 additional seats and Bayan
ARMI JANE R. BORJE, respondents.
proclamation rally held in May 2007; and that Galang had Muna, CIBAC, Gabriela Women's Party, and Association of
DECISION signified his desire to focus on his family life. Philippine Electric Cooperatives to an additional seat each; and
BERSAMIN, J p: On June 26, 2007, CIBAC, supposedly through its holding in abeyance the proclamation of the nominees of said
The principal question posed in these consolidated counsel, filed with the COMELEC en banc sitting as the National parties, organizations and coalitions with pending disputes until
special civil actions for certiorari and mandamus is whether the Board of Canvassers a motion seeking the proclamation of Lokin the final resolution of their respective cases. DCASEc
Commission on Elections (COMELEC) can issue implementing as its second nominee. 8 The right of CIBAC to a second seat as With the formal declaration that CIBAC was entitled to
rules and regulations (IRRs) that provide a ground for the well as the right of Lokin to be thus proclaimed were purportedly an additional seat, Ricardo de los Santos, purportedly as
substitution of a party-list nominee not written in Republic Act based on Party-List Canvass Report No. 26, which showed CIBAC secretary general of CIBAC, informed Roberto P. Nazareno,
(R.A.) No. 7941, 1otherwise known as the Party-List System to have garnered a grand total of 744,674 votes. Using all Secretary General of the House of Representatives, of the
Act, the law that the COMELEC thereby implements. HTSaEC relevant formulas, the motion asserted that CIBAC was clearly promulgation of NBC Resolution No. 07-72 and requested that
Common Antecedents entitled to a second seat and Lokin to a proclamation. aTcIEH Lokin be formally sworn in by Speaker Jose de Venecia, Jr. to
The Citizens' Battle Against Corruption (CIBAC) was one The motion was opposed by Villanueva and Cruz- enable him to assume office. Nazareno replied, however, that
of the organized groups duly registered under the party-list Gonzales. the request of Delos Santos could not be granted because
system of representation that manifested their intent to Notwithstanding Villanueva's filing of the certificate of COMELEC Law Director Alioden D. Dalaig had notified him of the
participate in the May 14, 2007 synchronized national and local nomination, substitution and amendment of the list of nominees pendency of E.M. 07-054.
elections. Together with its manifestation of intent to and the petitions of more than 81% of CIBAC members, the On September 14, 2007, the COMELEC en banc resolved
participate, 2 CIBAC, through its president, Emmanuel Joel J. COMELEC failed to act on the matter, prompting Villanueva to E.M. No. 07-054 13 thuswise:
Villanueva, submitted a list of five nominees from which its file a petition to confirm the certificate of nomination, WHEREFORE, considering the above
representatives would be chosen should CIBAC obtain the substitution and amendment of the list of nominees of CIBAC on discussion, the Commission hereby approves the
required number of qualifying votes. The nominees, in the order June 28, 2007. 9 withdrawal of the nomination of Atty. Luis K.
that their names appeared in the certificate of nomination dated On July 6, 2007, the COMELEC issued Resolution No. Lokin, Sherwin N. Tugna and Emil Galang as
March 29, 2007, 3 were: (1) Emmanuel Joel J. Villanueva; (2) 8219, 10 whereby it resolved to set the matter pertaining to the second, third and fourth nominees respectively
herein petitioner Luis K. Lokin, Jr.; (3) Cinchona C. Cruz-Gonzales; validity of the withdrawal of the nominations of Lokin, Tugna and and the substitution thereby with Atty. Cinchona
(4) Sherwin Tugna; and (5) Emil L. Galang. The nominees' Galang and the substitution of Borje for proper disposition and C. Cruz-Gonzales as second nominee and Atty.
certificates of acceptance were attached to the certificate of hearing. The case was docketed as E.M. No. 07-054. CaTSEA Armi Jane R. Borje as third nominee for the party
nomination filed by CIBAC. The list of nominees was later list CIBAC. The new order of CIBAC's nominees
In the meantime, the COMELEC en banc, sitting as the
published in two newspapers of general circulation, The therefore shall be: TDcAIH
National Board of Canvassers, issued National Board of
Philippine Star News 4 (sic) and The Philippine Daily Inquirer. 5 Canvassers (NBC) Resolution No. 07-60 dated July 9, 2007 11 to 1. Emmanuel Joel J. Villanueva
Prior to the elections, however, CIBAC, still through partially proclaim the following parties, organizations and 2. Cinchona C. Cruz-Gonzales
Villanueva, filed a certificate of nomination, substitution and coalitions participating under the Party-List System as having 3. Armi Jane R. Borje
amendment of the list of nominees dated May 7, won in the May 14, 2007 elections, namely: Buhay Hayaan
 SO ORDERED. For its part, CIBAC posits that Lokin is guilty of forum them has actually obtained the majority of the legal votes cast
The COMELEC en banc explained that the actions of shopping for filing a petition for mandamus and a petition and is entitled to hold the office. It can only be filed by a
Villanueva in his capacity as the president of CIBAC were for certiorari, considering that both petitions ultimately seek to candidate who has duly filed a certificate of candidacy and has
presumed to be within the scope of his authority as such; that have him proclaimed as the second nominee of CIBAC. been voted for in the preceding elections.
the president was charged by Section 1 of Article IV of the CIBAC Issues A special civil action for quo warranto refers to
By-Laws to oversee and direct the corporate activities, which The issues are the following: questions of disloyalty to the State, or of ineligibility of the
included the act of submitting the party's manifestation of intent (a) Whether or not the Court has jurisdiction over winning candidate. The objective of the action is to unseat the
to participate in the May 14, 2007 elections as well as its the controversy; TDAcCa ineligible person from the office, but not to install the petitioner
certificate of nominees; that from all indications, Villanueva as in his place. Any voter may initiate the action, which is, strictly
(b) Whether or not Lokin is guilty of forum
the president of CIBAC had always been provided the leeway to speaking, not a contest where the parties strive for supremacy
act as the party's representative and that his actions had always shopping; because the petitioner will not be seated even if the respondent
been considered as valid; that the act of withdrawal, although (c) Whether or not Section 13 of Resolution No. may be unseated. IcEACH
done without any written Board approval, was accomplished 7804 is unconstitutional and violates
The controversy involving Lokin is neither an election
with the Board's acquiescence or at least understanding; and the Party-List System Act; and protest nor an action for quo warranto, for it concerns a very
that the intent of the party should be given paramount (d) Whether or not the COMELEC committed peculiar situation in which Lokin is seeking to be seated as the
consideration in the selection of the nominees. cSTDIC grave abuse of discretion amounting to second nominee of CIBAC. Although an election protest may
As a result, the COMELEC en banc proclaimed Cruz- lack or excess of jurisdiction in properly be available to one party-list organization seeking to
Gonzales as the official second nominee of CIBAC. 14 Cruz- approving the withdrawal of the unseat another party-list organization to determine which
Gonzales took her oath of office as a Party-List Representative of nominees of CIBAC and allowing the between the defeated and the winning party-list organizations
CIBAC on September 17, 2007. 15 amendment of the list of nominees of actually obtained the majority of the legal votes, Lokin's case is
CIBAC without any basis in fact or law not one in which a nominee of a particular party-list organization
Precís of the Consolidated Cases
and after the close of the polls, and in thereby wants to unseat another nominee of the same party-list
In G.R. No. 179431 and G.R. No. 179432, Lokin seeks ruling on matters that were intra-
through mandamus to compel respondent COMELEC to proclaim organization. Neither does an action for quo warranto lie,
corporate in nature. considering that the case does not involve the ineligibility and
him as the official second nominee of CIBAC. SEHDIC
Ruling disloyalty of Cruz-Gonzales to the Republic of the Philippines, or
In G.R. No. 180443, Lokin assails Section 13
The petitions are granted. some other cause of disqualification for her.
of Resolution No. 7804 promulgated on January 12, 2007; 16 and
the resolution dated September 14, 2007 issued in E.M. No. 07- A Lokin has correctly brought this special civil action
054 (approving CIBAC's withdrawal of the nominations of Lokin, The Court has jurisdiction over the case for certiorari against the COMELEC to seek the review of the
Tugna and Galang as CIBAC's second, third and fourth nominees, September 14, 2007 resolution of the COMELEC in accordance
The COMELEC posits that once the proclamation of the
respectively, and the substitution by Cruz-Gonzales and Borje in with Section 7 of Article IX-A of the 1987 Constitution,
winning party-list organization has been done and its nominee
their stead, based on the right of CIBAC to change its nominees notwithstanding the oath and assumption of office by Cruz-
has assumed office, any question relating to the election, returns
under Section 13 of Resolution No. 7804). 17 He alleges that Gonzales. The constitutional mandate is now implemented by
and qualifications of the candidates to the House of
Section 13 of Resolution No. 7804 expanded Section 8 of R.A. No. Rule 64 of the 1997 Rules of Civil Procedure, which provides for
Representatives falls under the jurisdiction of the HRET pursuant
7941. 18 the law that the COMELEC seeks to thereby implement. the review of the judgments, final orders or resolutions of the
to Section 17, Article VI of the 1987 Constitution. Thus, Lokin
COMELEC and the Commission on Audit. As Rule 64 states, the
In its comment, the COMELEC asserts that a petition should raise the question he poses herein either in an election
mode of review is by a petition for certiorari in accordance with
for certiorari is an inappropriate recourse in law due to the protest or in a special civil action for quo warranto in the HRET,
Rule 65 to be filed in the Supreme Court within a limited period
proclamation of Cruz-Gonzales as Representative and her not in a special civil action for certiorari in this Court. ICTHDE
of 30 days. Undoubtedly, the Court has original and exclusive
assumption of that office; that Lokin's proper recourse was an We do not agree. jurisdiction over Lokin's petitions for certiorari and
electoral protest filed in the House of Representatives Electoral An election protest proposes to oust the winning for mandamus against the COMELEC. SIcEHD
Tribunal (HRET); and that, therefore, the Court has no jurisdiction candidate from office. It is strictly a contest between the
over the matter being raised by Lokin. IcaHCS B
defeated and the winning candidates, based on the grounds of
Petitioner is not guilty of forum shopping
electoral frauds and irregularities, to determine who between
 Forum shopping consists of the filing of multiple suits parties, organizations and coalitions with pending disputes shall between the delegation of power to make a law and the
involving the same parties for the same cause of action, either likewise be held in abeyance until final resolution of their conferment of an authority or a discretion to be exercised under
simultaneously or successively, for the purpose of obtaining a respective cases." He has insisted that the COMELEC had the and in pursuance of the law, for the power to make laws
favorable judgment. Thus, forum shopping may ministerial duty to proclaim him due to his being CIBAC's second necessarily involves a discretion as to what it shall be. 26
arise: (a) whenever as a result of an adverse decision in one nominee; and that the COMELEC had no authority to exercise The authority to make IRRs in order to carry out an
forum, a party seeks a favorable decision (other than by appeal discretion and to suspend or defer the proclamation of winning express legislative purpose, or to effect the operation and
or certiorari) in another; or (b) if, after having filed a petition in party-list organizations with pending disputes. enforcement of a law is not a power exclusively legislative in
the Supreme Court, a party files another petition in the Court of On the other hand, Lokin has resorted to the petition character, but is rather administrative in nature. The rules and
Appeals, because he thereby deliberately splits appeals "in the for certiorari to assail the September 14, 2007 resolution of the regulations adopted and promulgated must not, however,
hope that even as one case in which a particular remedy is sought COMELEC (approving the withdrawal of the nomination of Lokin, subvert or be contrary to existing statutes. The function of
is dismissed, another case (offering a similar remedy) would still Tugna and Galang and the substitution by Cruz-Gonzales as the promulgating IRRs may be legitimately exercised only for the
be open"; or (c) where a party attempts to obtain a writ of second nominee and Borje as the third nominee); and to purpose of carrying out the provisions of a law. The power of
preliminary injunction from a court after failing to obtain the writ challenge the validity of Section 13 of Resolution No. 7804, the administrative agencies is confined to implementing the law or
from another court. 19 COMELEC's basis for allowing CIBAC's withdrawal of Lokin's putting it into effect. Corollary to this is that administrative
What is truly important to consider in determining nomination. regulation cannot extend the law and amend a legislative
whether forum shopping exists or not is the vexation caused to Applying the test for forum shopping, the consecutive enactment. It is axiomatic that the clear letter of the law is
the courts and the litigants by a party who accesses different filing of the action for certiorari and the action controlling and cannot be amended by a mere administrative
courts and administrative agencies to rule on the same or related for mandamus did not violate the rule against forum shopping rule issued for its implementation. Indeed, administrative or
causes or to grant the same or substantially the same reliefs, in even if the actions involved the same parties, because they were executive acts shall be valid only when they are not contrary to
the process creating the possibility of conflicting decisions being based on different causes of action and the reliefs they sought the laws or the Constitution. 27
rendered by the different fora upon the same issue. 20 were different. TEHDIA To be valid, therefore, the administrative IRRs must
The filing of identical petitions in different courts is C comply with the following requisites to be valid: 28
prohibited, because such act constitutes forum shopping, a Invalidity of Section 13 of Resolution No. 7804 1. Its promulgation must be authorized by the
malpractice that is proscribed and condemned as trifling with the Legislature; CHEIcS
courts and as abusing their processes. Forum shopping is an The legislative power of the Government is vested
exclusively in the Legislature in accordance with the doctrine of 2. It must be within the scope of the authority
improper conduct that degrades the administration of given by the Legislature;
separation of powers. As a general rule, the Legislature cannot
justice. 21 TIDHCc
surrender or abdicate its legislative power, for doing so will be 3. It must be promulgated in accordance with the
Nonetheless, the mere filing of several cases based on unconstitutional. Although the power to make laws cannot be prescribed procedure; and
the same incident does not necessarily constitute forum delegated by the Legislature to any other authority, a power that 4. It must be reasonable.
shopping. The test is whether the several actions filed involve the is not legislative in character may be delegated. 25
same transactions and the same essential facts and The COMELEC is constitutionally mandated to enforce
circumstances. 22 The actions must also raise identical causes of Under certain circumstances, the Legislature can and administer all laws and regulations relative to the conduct of
delegate to executive officers and administrative boards the an election, a plebiscite, an initiative, a referendum, and a
action, subject matter, and issues. 23 Elsewise stated, forum
authority to adopt and promulgate IRRs. To render such recall. 29 In addition to the powers and functions conferred upon
shopping exists where the elements of litis pendentia are
delegation lawful, the Legislature must declare the policy of the it by the Constitution, the COMELEC is also charged to
present, or where a final judgment in one case will amount to res
judicata in the other. 24 law and fix the legal principles that are to control in given cases. promulgate IRRs implementing the provisions of the Omnibus
The Legislature should set a definite or primary standard to guide Election Code or other laws that the COMELEC enforces and
Lokin has filed the petition for mandamus to compel the those empowered to execute the law. For as long as the policy is administers. 30
COMELEC to proclaim him as the second nominee of CIBAC upon laid down and a proper standard is established by statute, there
the issuance of NBC Resolution No. 07-72 (announcing CIBAC's The COMELEC issued Resolution No. 7804 pursuant to
can be no unconstitutional delegation of legislative power when its powers under the Constitution, Batas Pambansa Blg. 881, and
entitlement to an additional seat in the House of the Legislature leaves to selected instrumentalities the duty of
Representatives), and to strike down the provision in NBC the Party-List System Act. 31 Hence, the COMELEC met the first
making subordinate rules within the prescribed limits, although requisite.
Resolution No. 07-60 and NBC Resolution No. 07-72 holding in there is conferred upon the executive officer or administrative
abeyance "all proclamation of the nominees of concerned board a large measure of discretion. There is a distinction
 The COMELEC also met the third requisite. There is no party-list system shall not be considered committee will gladly consider the
question that Resolution No. 7804 underwent the procedural resigned. same.
necessities of publication and dissemination in accordance with The provision is daylight clear. The Legislature thereby MR. LAGMAN:
the procedure prescribed in the resolution itself. deprived the party-list organization of the right to change its In other words, what I would like to see
Whether Section 13 of Resolution No. 7804 was valid or nominees or to alter the order of nominees once the list is is that after the list is submitted to the
not is thus to be tested on the basis of whether the second and submitted to the COMELEC, except when: (a) the nominee COMELEC officially, no more changes
fourth requisites were met. It is in this respect that the challenge dies; (b) the nominee withdraws in writing his nomination; should be made in the names or in the
of Lokin against Section 13 succeeds. or (c) the nominee becomes incapacitated. The provision must order of listing.
As earlier said, the delegated authority must be be read literally because its language is plain and free from MR. ABUEG:
properly exercised. This simply means that the resulting IRRs ambiguity, and expresses a single, definite, and sensible
meaning. Such meaning is conclusively presumed to be the Mr. Speaker, there may be a situation
must not be ultra vires as to be issued beyond the limits of the wherein the name of a particular
authority conferred. It is basic that an administrative agency meaning that the Legislature has intended to convey. Even
nominee has been submitted to the
cannot amend an act of Congress, 32 for administrative IRRs are where the courts should be convinced that the Legislature really
intended some other meaning, and even where the literal Commission on Elections but before
solely intended to carry out, not to supplant or to modify, the election day the nominee changed his
law. The administrative agency issuing the IRRs may not enlarge, interpretation should defeat the very purposes of the
political party affiliation. The nominee is
alter, or restrict the provisions of the law it administers and enactment, the explicit declaration of the Legislature is still the
therefore no longer qualified to be
enforces, and cannot engraft additional non-contradictory law, from which the courts must not depart. 34 When the law
speaks in clear and categorical language, there is no reason for included in the party list and the
requirements not contemplated by the Legislature. 33 HScaCT political party has a perfect right to
Section 8 of R.A. No. 7941 reads: interpretation or construction, but only for
change the name of that nominee who
application. 35 Accordingly, an administrative agency tasked to
Section 8. Nomination of Party-List changed his political party affiliation.
implement a statute may not construe it by expanding its
Representatives. — Each registered party, meaning where its provisions are clear and unambiguous. 36 MR. LAGMAN:
organization or coalition shall submit to the Yes of course. In that particular case, the
COMELEC not later that forty-five (45) days The legislative intent to deprive the party-list
organization of the right to change the nominees or to alter the change can be effected but will be the
before the election a list of names, not less than exception rather than the rule. Another
five (5), from which party-list representatives order of the nominees was also expressed during the
deliberations of the Congress, viz.: AHcaDC exception most probably is the nominee
shall be chosen in case it obtains the required dies, then there has to be a change but
number of votes. MR. LAGMAN:
any change for that matter should
A person may be nominated in one (1) And again on Section 5, on the always be at the last part of the list so
list only. Only persons who have given their nomination of party list representatives, that the prioritization made by the party
consent in writing may be named in the list. The I do not see any provision here which will not be adversely
list shall not include any candidate of any elective prohibits or for that matter allows the affected. 37 ACcHIa
office or a person who has lost his bid for an nominating party to change the
The usage of "No" in Section 8 — "No change of names
elective office in the immediately preceding nominees or to alter the order of
or alteration of the order of nominees shall be allowed after the
election. No change of names or alteration of the prioritization of names of nominees. Is
same shall have been submitted to the COMELEC except in cases
order of nominees shall be allowed after the the implication correct that at any time
after submission the names could still where the nominee dies, or withdraws in writing his nomination,
same shall have been submitted to the COMELEC or becomes incapacitated, in which case the name of the
except in cases where the nominee dies, or be changed or the listing altered?
substitute nominee shall be placed last in the list" — renders
withdraws in writing his nomination, becomes MR. ABUEG: Section 8 a negative law, and is indicative of the legislative intent
incapacitated in which case the name of the Mr. Speaker, that is a good issue to make the statute mandatory. Prohibitive or negative words
substitute nominee shall be placed last in the list. brought out by the distinguished can rarely, if ever, be directory, for there is but one way to obey
Incumbent sectoral representatives in the House Gentleman from Albay and perhaps a the command "thou shall not," and that is to completely refrain
of Representatives who are nominated in the perfecting amendment may be
introduced therein. The sponsoring
from doing the forbidden act, 38 subject to certain exceptions When the statute itself enumerates the exceptions to Lokin insists that the COMELEC gravely abused its
stated in the law itself, like in this case. the application of the general rule, the exceptions are strictly but discretion in expanding to four the three statutory grounds for
Section 8 does not unduly deprive the party-list reasonably construed. The exceptions extend only as far as their substituting a nominee.
organization of its right to choose its nominees, but merely language fairly warrants, and all doubts should be resolved in We agree with Lokin. aSIETH
divests it of the right to change its nominees or to alter the order favor of the general provision rather than the exceptions. Where The COMELEC, despite its role as the implementing arm
in the list of its nominees' names after submission of the list to the general rule is established by a statute with exceptions, none of the Government in the enforcement and administration of all
the COMELEC. but the enacting authority can curtail the former. Not even the laws and regulations relative to the conduct of an
The prohibition is not arbitrary or capricious; neither is courts may add to the latter by implication, and it is a rule that election, 40 has neither the authority nor the license to expand,
it without reason on the part of lawmakers. The COMELEC can an express exception excludes all others, although it is always extend, or add anything to the law it seeks to implement thereby.
rightly presume from the submission of the list that the list proper in determining the applicability of the rule to inquire The IRRs the COMELEC issues for that purpose should always
reflects the true will of the party-list organization. The COMELEC whether, in a particular case, it accords with reason and accord with the law to be implemented, and should not override,
will not concern itself with whether or not the list contains the justice. 39 ADCEcI supplant, or modify the law. It is basic that the IRRs should
real intended nominees of the party-list organization, but will The appropriate and natural office of the exception is to remain consistent with the law they intend to carry out. 41
only determine whether the nominees pass all the requirements exempt something from the scope of the general words of a Indeed, administrative IRRs adopted by a particular
prescribed by the law and whether or not the nominees possess statute, which is otherwise within the scope and meaning of such department of the Government under legislative authority must
all the qualifications and none of the disqualifications. general words. Consequently, the existence of an exception in a be in harmony with the provisions of the law, and should be for
Thereafter, the names of the nominees will be published in statute clarifies the intent that the statute shall apply to all cases the sole purpose of carrying the law's general provisions into
newspapers of general circulation. Although the people vote for not excepted. Exceptions are subject to the rule of strict effect. The law itself cannot be expanded by such IRRs, because
the party-list organization itself in a party-list system of election, construction; hence, any doubt will be resolved in favor of the an administrative agency cannot amend an act of Congress. 42
not for the individual nominees, they still have the right to know general provision and against the exception. Indeed, the liberal
The COMELEC explains that Section 13 of Resolution No.
who the nominees of any particular party-list organization are. construction of a statute will seem to require in many
circumstances that the exception, by which the operation of the 7804 has added nothing to Section 8 of R.A. No.
The publication of the list of the party-list nominees in 7941, 43 because it has merely reworded and rephrased the
newspapers of general circulation serves that right of the people, statute is limited or abridged, should receive a restricted
statutory provision's phraseology.
enabling the voters to make intelligent and informed choices. In construction.
contrast, allowing the party-list organization to change its E The explanation does not persuade.
nominees through withdrawal of their nominations, or to alter To reword means to alter the wording of or to restate in
Section 13 of Resolution No. 7804 expanded the exceptions
the order of the nominations after the submission of the list of other words; to rephrase is to phrase anew or in a new
under Section 8 of R.A. No. 7941
nominees circumvents the voters' demand for transparency. The form. 44 Both terms signify that the meaning of the original word
Section 13 of Resolution No. 7804 states: or phrase is not altered.
lawmakers' exclusion of such arbitrary withdrawal has
Section 13. Substitution of nominees. However, the COMELEC did not merely reword or
eliminated the possibility of such circumvention.
— A party-list nominee may be substituted only rephrase the text of Section 8 of R.A. No. 7941, because it
D when he dies, or his nomination is withdrawn by
Exceptions in Section 8 of R.A. 7941 are exclusive established an entirely new ground not found in the text of the
the party, or he becomes incapacitated to provision. The new ground granted to the party-list organization
Section 8 of R.A. No. 7941 enumerates only three continue as such, or he withdraws his the unilateral right to withdraw its nomination already submitted
instances in which the party-list organization can substitute acceptance to a nomination. In any of these to the COMELEC, which Section 8 of R.A. No. 7941 did not allow
another person in place of the nominee whose name has been cases, the name of the substitute nominee shall to be done. Neither was the grant of the unilateral right
submitted to the COMELEC, namely: (a) when the nominee be placed last in the list of nominees. contemplated by the drafters of the law, who precisely denied
dies; (b) when the nominee withdraws in writing his nomination; No substitution shall be allowed by the right to withdraw the nomination (as the quoted record of
and (c) when the nominee becomes incapacitated. reason of withdrawal after the polls. the deliberations of the House of Representatives has indicated).
The enumeration is exclusive, for, necessarily, the Unlike Section 8 of R.A. No. 7941, the foregoing The grant thus conflicted with the statutory intent to save the
general rule applies to all cases not falling under any of the three regulation provides four instances, the fourth being when the nominee from falling under the whim of the party-list
exceptions. "nomination is withdrawn by the party." organization once his name has been submitted to the COMELEC,
and to spare the electorate from the capriciousness of the party- WHEREFORE, we grant the petitions
list organizations. for certiorari and mandamus.
We further note that the new ground would not secure We declare Section 13 of Resolution No. 7804 invalid
the object of R.A. No. 7941 of developing and guaranteeing a full, and of no effect to the extent that it authorizes a party-list
free and open party-list electoral system. The success of the organization to withdraw its nomination of a nominee once it has
system could only be ensured by avoiding any arbitrariness on submitted the nomination to the Commission on
the part of the party-list organizations, by seeing to the Elections. AETcSa
transparency of the system, and by guaranteeing that the Accordingly, we annul and set aside:
electorate would be afforded the chance of making intelligent (a) The resolution dated September 14, 2007
and informed choices of their party-list representatives. SaICcT issued in E. M. No. 07-054 approving
The insertion of the new ground was invalid. An axiom Citizens' Battle Against Corruption's
in administrative law postulates that administrative authorities withdrawal of the nominations of Luis K.
should not act arbitrarily and capriciously in the issuance of their Lokin, Jr., Sherwin N. Tugna, and Emil
IRRs, but must ensure that their IRRs are reasonable and fairly Galang as its second, third, and fourth
adapted to secure the end in view. If the IRRs are shown to bear nominees, respectively, and ordering
no reasonable relation to the purposes for which they were their substitution by Cinchona C. Cruz-
authorized to be issued, they must be held to be invalid and Gonzales as second nominee and Armi
should be struck down. 45 Jane R. Borje as third nominee; and
F (b) The proclamation by the Commission on
Effect of partial nullity of Section 13 of Resolution No. 7804 Elections of Cinchona C. Cruz-Gonzales
An IRR adopted pursuant to the law is itself law. 46 In as a Party-List Representative
case of conflict between the law and the IRR, the law prevails. representing Citizens' Battle Against
There can be no question that an IRR or any of its parts not Corruption in the House of
adopted pursuant to the law is no law at all and has neither the Representatives.
force nor the effect of law. 47 The invalid rule, regulation, or part We order the Commission on Elections to forthwith
thereof cannot be a valid source of any right, obligation, or proclaim petitioner Luis K. Lokin, Jr. as a Party-List
power. Representative representing Citizens' Battle Against Corruption
Considering that Section 13 of Resolution No. 7804 — in the House of Representatives.
to the extent that it allows the party-list organization to We make no pronouncements on costs of suit.
withdraw its nomination already submitted to the COMELEC — ||| (Lokin, Jr. v. Commission on Elections, G.R. Nos. 179431-32 &
was invalid, CIBAC's withdrawal of its nomination of Lokin and 180443, [June 22, 2010], 635 PHIL 372-402)
the others and its substitution of them with new nominees were
also invalid and ineffectual. It is clear enough that
any substitution of Lokin and the others could only be for any of
the grounds expressly stated in Section 8 of R.A. No. 7941.
Resultantly, the COMELEC's approval of CIBAC's petition of
withdrawal of the nominations and its recognition of CIBAC's
substitution, both through its assailed September 14, 2007
resolution, should be struck down for lack of legal basis. Thereby,
the COMELEC acted without jurisdiction, having relied on the
invalidly issued Section 13 of Resolution No. 7804 to support its
action.
 SECOND DIVISION SO ORDERED. 7 court was thus late and beyond the reglementary 15-day period
[G.R. No. 181182. April 10, 2013.] Villareal moved for reconsideration, 8 but failed. 9 provided for under Rule 42.
BOARDWALK BUSINESS VENTURES, Ruling of the Regional Trial Court (RTC) The CA added that Boardwalk's prayer for a 30-day
INC., petitioner, vs. ELVIRA A. VILLAREAL She thus appealed 10 to the Manila RTC, which extension in its Motion for Extension was irregular, because the
(deceased) substituted by Reynaldo P. Villareal, court 11 issued a Decision 12 reversing the MeTC Decision, thus: maximum period that may be granted is only 15 days pursuant to
Jr.-spouse, Shekinah Marie Villareal-Azugue- Section 1 of Rule 42. A further extension of 15 days should only be
WHEREFORE, the appeal is granted. The granted for the most compelling reason which is not obtaining in the
daughter, Reynaldo A. Villareal III-son, Shahani assailed judgment of the lower court is reversed
A. Villareal-daughter, and Billy Ray A. Villareal- present case. Moreover, it held that Boardwalk's Petition for Review
and set aside. Defendant Villareal has the right of
son, respondents. failed to include a board resolution or secretary's certificate showing
possession to and the value of subject vehicle
DECISION that its claimed representative, Ma. Victoria M. Lo (Lo), was
described in the complaint. Hence, plaintiff is authorized to sign the Petition or represent Boardwalk in the
DEL CASTILLO, J p: directed to deliver the subject vehicle to
proceedings, which thus rendered defective the Verification and
"[T]he right to appeal is neither a natural right nor [is it a defendant or its value in case delivery cannot be
Certification against forum-shopping. Finally, the CA faulted
component] of due process[. I]t is a mere statutory privilege, and may made. The complaint and counterclaim are both Boardwalk for its failure to attach to its Petition copies of the
be exercised only in the manner and in accordance with the dismissed.
Complaint, Answer, position papers, memoranda and other relevant
provisions of law." 1 SO ORDERED. 13 pleadings, as required in Sections 2 and 3 26 of Rule 42, thus meriting
This Petition for Review on Certiorari 2 seeks a review of the Boardwalk filed a Motion for Reconsideration, 14 but the the outright dismissal of its Petition for Review.
Court of Appeals' (CA) April 25, 2007 Resolution 3 in CA-G.R. SP No. same was denied by the RTC in a December 14, 2006 Order, 15 which Boardwalk filed a Motion for Reconsideration 27 and
UDK 5711 which dismissed outright petitioner's Petition. Also Boardwalk received on January 19, 2007. 16 On February 5, Supplemental Motion for Reconsideration, 28 invoking a liberal
assailed is the December 21, 2007 Resolution 4 which denied the 2007, 17 Boardwalk through counsel filed with the Manila RTC a construction of the Rules in its favor. It further informed the CA that
Motion for Reconsideration. Motion for Extension of Time to File Petition for Review, 18 praying it had paid the docket fees with the CA Cashier, and submitted the
Factual Antecedents that it be granted 30 days, or until March 7, 2007, to file its Petition required secretary's certificate and additional pleadings in support of
Petitioner Boardwalk Business Ventures, Inc. (Boardwalk) is for Review. It paid the docket and other legal fees therefor at the its Petition.
a duly organized and existing domestic corporation engaged in the Office of the Clerk of Court of the Manila RTC.19 On even date,
In the second assailed December 21, 2007 Resolution
selling of ready-to-wear (RTW) merchandise. Respondent Elvira A. Boardwalk also filed a Notice of Appeal 20 with the RTC which the subsequently issued, the CA denied the Motion for Reconsideration
Villareal (Villareal), on the other hand, is one of Boardwalk's said court denied for being a wrong mode of appeal. 21
and its supplement. It held that despite curative action, the fact
distributors of RTW merchandise. On March 7, 2007, Boardwalk filed through mail 22 its remains that Boardwalk's Petition was filed beyond the reglementary
On October 20, 2005, Boardwalk filed an Amended Petition for Review 23 with the CA. 15-day period. Even if technicality were to be set aside and Boardwalk
Complaint 5 for replevin against Villareal covering a 1995 Toyota Ruling of the Court of Appeals were to be allowed an extension of 15 days from the filing of the
Tamaraw FX, for the latter's alleged failure to pay a car loan obtained On April 25, 2007, the CA issued the first assailed Resolution, Motion for Extension on February 5, 2007, or until February 20, 2007,
from the former. The case, docketed as Civil Case No. 160116, was the dispositive portion of which reads as follows: EcHIDT within which to file its Petition, its actual filing on March 7, 2007
filed with the Metropolitan Trial Court (MeTC) of Manila and was ACCORDINGLY, the Petition for Review would still be tardy.
assigned to Branch 27 thereof. is hereby DISMISSED OUTRIGHT. Issues
Ruling of the Metropolitan Trial Court SO ORDERED. 24 Boardwalk thus filed the instant Petition, raising the
On May 30, 2005, the MeTC rendered its Decision 6 favoring In dismissing the Petition for Review, the CA held that following issues for resolution: TAacCE
Boardwalk, as follows: Boardwalk erred in filing its Motion for Extension and paying the PETITIONER IS INVOKING THE LIBERAL
WHEREFORE, premises considered, docket fees therefor with the RTC. It should have done so with the CA CONSTRUCTION OF THE RULES TO EFFECT
judgment is hereby rendered in favor of the as required by Section 1 25 of Rule 42 of the Rules of Court. It held SUBSTANTIAL JUSTICE IN ACCORDANCE WITH
plaintiff and against the defendant adjudging that as a result of Boardwalk's erroneous filing and payment of docket RULE 1, SECTION 6 OF THE1997 RULES OF
that the former has the right to the possession of fees, it was as if no Motion for Extension was filed, and the CIVIL PROCEDURE.
the subject motor vehicle and for the latter to subsequent March 7, 2007 filing of its Petition with the appellate SPECIFICALLY, THE ASSAILED RESOLUTIONS . .
pay the costs of the suit. TSDHCc . ORDERING THE OUTRIGHT DISMISSAL OF
 THE PETITION FOR REVIEW . . . DUE TO . . . an appealing party must strictly comply should thereafter learn that a similar action or
PROCEDURAL LAPSES, IN TOTAL DISREGARD with the requisites laid down in the Rules of proceeding has been filed or is pending before
OF THE SUBSTANTIAL ISSUES CLEARLY RAISED Court. Deviations from the Rules cannot be the Supreme Court, the Court of Appeals, or
THEREAT, [ARE] CONTRARY TO EXISTING tolerated. The rationale for this strict attitude different divisions thereof, or any other tribunal
RULES, LAW, JURISPRUDENCE AND THE is not difficult to appreciate as the Rules are or agency, he undertakes to promptly inform the
PRINCIPLE OF EQUITY AND SUBSTANTIAL designed to facilitate the orderly disposition of aforesaid courts and other tribunal or agency
JUSTICE. 29 appealed cases. In an age where courts are thereof within five (5) days therefrom.
Petitioner's Arguments bedeviled by clogged dockets, the Rules need In addition, the Rules also require that the Petition must be
In its Petition and Reply, 30 Boardwalk invokes the principle to be followed by appellants with greater verified or accompanied by an affidavit by which the affiant attests
that litigations should be decided on the merits and not on fidelity. Their observance cannot be left to the under oath that he "has read the pleading and that the allegations
technicalities; that litigants should be afforded the amplest whims and caprices of appellants. . . . 33 therein are true and correct of his personal knowledge or based on
opportunity for the proper and just disposition of their causes, free In this case, petitioner must comply with the following authentic records." 34
from the constraints of technicalities. It claims that it should not be requirements laid down in Rule 42 of the Rules of Court: And finally, Section 3 of Rule 42 provides that non-
faulted for the error committed by its counsel's clerk in wrongly filing Section 1. How appeal taken; time for filing. — compliance "with any of the foregoing requirements regarding the
the Motion for Extension and paying the docket fees with the RTC A party desiring to appeal from a payment of the docket and other lawful fees, . . . and the contents of
Clerk of Court. It prays that the Court review the merits of its case. decision of the Regional Trial Court rendered in and the documents which should accompany the petition shall be
As for the defective Verification and Certification of non- the exercise of its appellate jurisdiction may file sufficient ground for the dismissal thereof."
forum shopping, Boardwalk contends that these are formal, not a verified petition for review with the Court of Records show that petitioner failed to comply with the
jurisdictional, requisites which could as well be treated with leniency. Appeals, paying at the same time to the clerk of foregoing rules.
Its subsequent submission of the proper secretary's certificate should said court the corresponding docket and other The Petition must be
thus have cured the defect. It adds that the same treatment should lawful fees, . . . . The petition shall be filed and accompanied by a Verification
be accorded its subsequent payment of the docket fees with the CA served within fifteen (15) days from notice of the and Certification against forum
Cashier and submission of the required annexes and pleadings in decision sought to be reviewed or of the denial shopping. Copies of the relevant
support of its Petition. It prays the Court to consider these as of petitioner's motion for new trial or pleadings and other material
substantial compliance with the Rules. reconsideration . . . . Upon proper motion . . ., the portions of the record must
Respondent's Arguments Court of Appeals may grant an additional period likewise be attached to the
In her Comment, 31 respondent simply echoes the CA of fifteen (15) days only within which to file the Petition. aITDAE
ruling. She insists that Boardwalk's reasons for erroneously filing the petition for review. No further extension shall be The Rules require that the Petition must be accompanied by
Motion for Extension and paying the docket fees in the RTC are flimsy granted except for the most compelling reason a Verification and Certification against forum shopping. If the
and should not be considered. and in no case to exceed fifteen (15) days. CASIEa petitioner is a juridical entity, as in this case, it must be shown that
Respondent adds that Boardwalk's Petition raised factual Sec. 2. Form and contents. — the person signing in behalf of the corporation is duly authorized to
issues relative to the merits of the case, which may not be the subject The petition shall be . . . accompanied by represent said corporation. In this case, no special power of attorney
of review at this stage. CAacTH . . . copies . . . of the pleadings and other material or board resolution was attached to the Petition showing that Lo was
Our Ruling portions of the record as would support the authorized to sign the Petition or represent Boardwalk in the
allegations of the petition. proceedings. In addition, petitioner failed to attach to the Petition
The Court denies the Petition. copies of the relevant pleadings and other material portions of the
The petitioner shall also submit
Petitioner's case is not unique, and there is no compelling record.
together with the petition a certification under
reason to accord it the privilege it now seeks.
oath that he has not theretofore commenced any Petitioner tried to cure these lapses by subsequently
"[T]he right to appeal is neither a natural right nor [is it a other action involving the same issues in the submitting a board resolution showing Lo's authority to sign and act
component] of due process[. I]t is a mere statutory privilege, and may Supreme Court, the Court of Appeals or different on behalf of Boardwalk, as well as copies of the relevant pleadings.
be exercised only in the manner and in accordance with the divisions thereof, or any other tribunal or agency; Now, it prays that the Court consider these as substantial compliance
provisions of law." 32 This being so, if there is such other action or proceeding, he with the Rules.
must state the status of the same; and if he
 Concededly, this Court in several cases exercised leniency Petitioner's appeal is not deemed Boardwalk's request for the Court to review its case on the
and relaxed the Rules. However, in this case, petitioner committed perfected. merits should be denied as well. The import of the Court's foregoing
multiple violations of the Rules which should sufficiently militate More significantly, Section 8 of Rule 42 provides that the pronouncements necessarily renders the RTC judgment final and
against its plea for leniency. As will be shown below, petitioner failed appeal is deemed perfected as to the petitioner "[u]pon the timely unassailable; it became final and executory after the period to appeal
to perfect its appeal by not filing the Petition within the reglementary filing of a petition for review and the payment of the corresponding expired without Boardwalk perfecting an appeal. As such, the Court
period and paying the docket and other lawful fees before the proper docket and other lawful fees." Undisputably, petitioner's appeal was may no longer review it.
court. These requirements are mandatory and jurisdictional. not perfected because of its failure to timely file the Petition and to In light of the above conclusions, the Court finds no need to
Petitioner erroneously paid the pay the docket and other lawful fees before the proper court which further discuss the other issues raised by the parties.
docket fees and other lawful fees is the CA. Consequently, the CA properly dismissed outright the WHEREFORE, the Petition is DENIED. The Court of Appeals'
with the RTC. Petition because it never acquired jurisdiction over the same. As a April 25, 2007 and December 21, 2007 Resolutions in CA-G.R. SP No.
Section 1, Rule 42 of the Rules of Court specifically states result, the RTC's Decision had long become final and executory. UDK 5711 are hereby AFFIRMED.
that payment of the docket fees and other lawful fees should be To stress, the right to appeal is statutory ||| (Boardwalk Business Ventures, Inc. v. Villareal, G.R. No. 181182,
made to the clerk of the CA. A plain reading of the Rules leaves no and one who seeks to avail of it must comply with [April 10, 2013], 708 PHIL 443-457)
room for interpretation; it is categorical and explicit. It was thus grave the statute or rules. The requirements for
error on the part of the petitioner to have misinterpreted the same perfecting an appeal within the reglementary
and consequently mistakenly remitted its payment to the RTC clerk. period specified in the law must be strictly
Petitioner's subsequent payment to the clerk of the CA of the docket followed as they are considered indispensable
fees and other lawful fees did not cure the defect. The payment to interdictions against needless delays. Moreover,
the CA was late; it was done long after the reglementary period to file the perfection of an appeal in the manner and
an appeal had lapsed. It must be stressed that the payment of the within the period set by law is not only
docket fees and other lawful fees must be done within 15 days from mandatory but jurisdictional as well, hence
receipt of notice of decision sought to be reviewed or denial of the failure to perfect the same renders the judgment
motion for reconsideration. In this case, petitioner remitted the final and executory. And, just as a losing party has
payment to the CA clerk long after the lapse of the reglementary the privilege to file an appeal within the
period. HIAcCD prescribed period, so also does the prevailing
The CA may grant an extension of party have the correlative right to enjoy the
15 days only. The grant of finality of a decision in his favor. cHaCAS
another 15-days extension, or a True it is that in a number of instances,
total of 30-days extension is the Court has relaxed the governing periods of
allowed only for the most appeal in order to serve substantial justice. But
compelling reason. this we have done only in exceptional cases.
Petitioner sought an extension of 30 days within which to Sadly, the instant case is definitely not one of
file its Petition for Review with the CA. This is not allowed. Section 1 them. 38
of Rule 42 allows an extension of only 15 days. "No further extension At this point, it must be emphasized that since petitioner's
shall be granted except for the most compelling reason . . . right of appeal is a mere statutory privilege, it was bound to a strict
." 35 Petitioner never cited any compelling reason. observance of the periods of appeal, which requirements are not
Thus, even on the assumption that the CA granted merely mandatory, but jurisdictional.
Boardwalk a 15-day reprieve from February 3, 2007, or the expiration Nor may the negligence of Boardwalk's former counsel be
of its original reglementary period, 36 it still failed to file its Petition invoked to excuse it from the adverse effects of the appellate court's
for Review on or before the February 19, 2007 37 due date. Records pronouncement. His negligence or mistake proceeded from
show that the Petition was actually filed only on March 7, 2007, or carelessness and ignorance of the basic rules of procedure. This does
way beyond the allowable February 19, 2007 deadline. The appellate not constitute excusable negligence that would extricate and excuse
court thus correctly ruled that this may not simply be brushed aside. Boardwalk from compliance with the Rules.
 EN BANC legislative district. They prayed that Puno's COC be declared as A moot case is one that ceases to present a justiciable
[G.R. No. 177927. February 15, 2008.] invalid and that the same be cancelled. SHacCD controversy by virtue of supervening events, so that a
FLORANTE S. QUIZON, petitioner, vs. HON. On June 5, 2007, Quizon filed this Petition declaration thereon would be of no practical use or value.
COMMISSION ON ELECTIONS (SECOND for Mandamus alleging that the COMELEC had not rendered a Generally, courts decline jurisdiction over such case or dismiss it
DIVISION), MANILA, ATTY. ARNULFO H. judgment on the above-mentioned petitions and that the on ground of mootness. However, Courts will decide cases,
PIOQUINTO (ELECTION OFFICER, ANTIPOLO unreasonable delay in rendering judgment deprived him of his otherwise moot and academic, if: first, there is a grave violation
CITY) and ROBERTO VILLANUEVA right to be declared as the winner and assume the position of of the Constitution; second, the exceptional character of the
PUNO, respondents. member of the House of Representatives. 5 situation and the paramount public interest is involved; third,
Meanwhile, on July 31, 2007, the COMELEC Second when the constitutional issue raised requires formulation of
DECISION
Division promulgated its Resolution, thus: controlling principles to guide the bench, the bar, and the public;
YNARES-SANTIAGO, J p: and fourth, the case is capable of repetition yet evading
This petition for mandamus with prayer for preliminary WHEREFORE, premises considered, the
review, 8 none of which are present in the instant case. Hence,
injunction seeks to compel the Commission on Elections instant Petition for Disqualification and
since what is sought to be done by COMELEC has been
(COMELEC) Second Division to resolve the petition and Cancellation of the Certificate of Candidacy of accomplished, there is nothing else that the Court can order the
supplemental petition for disqualification and cancellation of respondent Roberto V. Puno is hereby
COMELEC to perform.
certificate of candidacy filed by Florante S. Quizon against DISMISSED. Respondent is a resident of the 1st
District of Antipolo City, and is thus qualified to Moreover, the petition failed to meet the requisites
Roberto V. Puno. for mandamus.
run as a Member of the House of Representatives
The facts are as follows: of the same district. 6 As a general rule, the writ of mandamus lies to compel
Petitioner Quizon and private respondent Puno were the performance of a ministerial duty. When the act sought to be
Quizon filed a motion for reconsideration with the
congressional candidates during the May 14, 2007 national and performed involves the exercise of discretion, the respondent
COMELEC En Banc which remains unresolved up to this date.
local elections. may only be directed by Mandamus to act but not to act in one
In his Comment, Puno argues that the petition way or the other. 9 The denial of due course or cancellation of
On April 17, 2007, Quizon filed a Petition for
for mandamus was mooted by the July 31, 2007 Resolution of
Disqualification and Cancellation of Certificate of one's certificate of candidacy is not within the administrative
the COMELEC Second Division. He also alleged that the petition
Candidacy 1 against Puno docketed as SPA-07-290. Quizon powers of the Commission, but rather calls for the exercise of its
must be dismissed for the act sought to be performed is a quasi-judicial functions. 10 Hence, the Court may only compel
alleged that Puno is not qualified to run as candidate in Antipolo discretionary and not a ministerial duty; and for failure of Quizon
City for failure to meet the residency requirement prior to the COMELEC to exercise such discretion and resolve the matter but
to show that he is entitled to the writ.
day of election; and that Puno's claim in his Certificate of it may not control the manner of exercising such discretion.
Candidacy (COC) that he is a resident of 1906 Don Celso Tuazon, The Office of the Solicitor General agrees that the However, as previously discussed, the issuance of a writ
Valley Golf Brgy. de la Paz, Antipolo City for four years and six petition for mandamus was mooted by the July 31, 2007 commanding COMELEC to resolve the petition for
months before May 14, 2007 constitutes a material Resolution of the COMELEC Second Division. It likewise posits disqualification will no longer serve any purpose since COMELEC
misrepresentation since he was in fact a resident of Quezon City. that any question regarding Puno's qualifications now pertains has issued its decision on the matter. DIECTc
to the House of Representatives Electoral Tribunal (HRET). Moreover, petitioner has not adequately shown a well-
On April 24, 2007, Quizon filed a Supplement 2 to the
petition claiming that Puno cannot validly be a candidate for a In the instant petition, Quizon prays that the Court defined, clear and certain legal right to warrant the granting of
congressional seat in the First District of Antipolo City since he order the COMELEC to resolve his pending petition for the petition. He asserts that the unreasonable delay in resolving
indicated in his COC that he was running in the First District of disqualification. the petition deprived him of his right to be proclaimed as the
the Province of Rizal which is a different legislative district. 3 We dismiss the petition. winning candidate since all votes cast in favor of respondent
Subsequently, concerned residents of the First District The principal function of the writ of mandamus is to are straydue to his invalid candidacy. Accordingly, COMELEC
of Antipolo City wrote a letter dated April 27, 2007 4 seeking command and to expedite, not to inquire and to must consider that only he and Amarante Velasco were the
clarification from the COMELEC on the legal and political adjudicate. 7 Here, Quizon prayed that COMELEC be ordered to candidates in the said election and since he received a higher
implications of the COC of Puno, who was seeking public office in resolve the petition for disqualification. However, pending number of votes than Velasco, petitioner argues that he should
the First District of the Province of Rizal but waging his political resolution of the instant petition for mandamus, the COMELEC be proclaimed the winning candidate.
campaign in the City of Antipolo, which is a separate and distinct issued its Resolution on the petition for disqualification Petitioner's assertion is bereft of merit.
rendering the instant case moot.
 Section 78 of the Omnibus Election Code 11 provides Moreover, following Ocampo v. House of
that petitions to deny due course or cancel a certificate of Representatives Electoral Tribunal, 18 a subsequent
candidacy should be resolved, after due notice and hearing, not disqualification of Puno will not entitle petitioner, the candidate
later than fifteen days before the election. In construing this who received the second highest number of votes to be declared
provision together with Section 6 of R.A. No. 6646 or The the winner. It has long been settled in our jurisprudence, as early
Electoral Reforms Law of 1987, 12 this Court declared in Salcedo as 1912, that the candidate who lost in an election cannot be
II v. COMELEC 13 that the fifteen-day period in Section 78 is proclaimed the winner in the event that the candidate who won
merely directory. Thus: is found to be ineligible for the office for which he was elected.
If the petition is filed within the The second placer is just that, a second placer — he lost in the
statutory period and the candidate is elections and was repudiated by either the majority or plurality
subsequently declared by final judgment to be of voters. 19
disqualified before the election, he shall not be Finally, petitioner has other plain, speedy and adequate
voted for, and the votes cast for him shall not be remedy in the ordinary course of law. After a resolution on the
counted. If for any reason a candidate is not petition for disqualification, a motion for reconsideration may be
declared by final judgment before an election to filed before the COMELEC En Banc as what was done by
be disqualified and he is voted for and receives petitioner. Only then can petitioner come before this Court via a
the winning number of votes in such election, the petition forcertiorari. 20 These rules of procedure are not
Court or the Comelec shall continue with the trial without reason. They are meant to facilitate the orderly
and hearing of the action, inquiry, or protest and, administration of justice and petitioner cannot take a judicial
upon motion of the complainant or any shortcut without violating the rule on hierarchy of courts.
intervenor, may during the pendency thereof Clearly, petitioner failed to show that he met all the
order the suspension of the proclamation of such requirements for the issuance of the writ of mandamus.
candidate whenever the evidence of his guilt is WHEREFORE, the petition is DISMISSED for lack of
strong. The fifteen-day period in section 78 for merit.
deciding the petition is merely
SO ORDERED.
directory. 14 (Emphasis supplied)
||| (Quizon v. Commission on Elections, G.R. No. 177927, [February
It has long been settled in Codilla Sr. v. de
Venecia 15 that pursuant to Section 6 of R.A. No. 6646, a final 15, 2008], 569 PHIL 323-332)
judgment before the election is required for the votes of a
disqualified candidate to be considered "stray." In the absence
of any final judgment of disqualification against Puno, the votes
cast in his favor cannot be considered stray.
As to the alleged irregularity in the filing of the
certificate of candidacy, it is important to note that this Court has
repeatedly held that provisions of the election law regarding
certificates of candidacy, such as signing and swearing on the
same, as well as the information required to be stated therein,
are considered mandatory prior to the elections. Thereafter,
they are regarded as merely directory to give effect to the will of
the people. 16 In the instant case, Puno won by an overwhelming
number of votes. Technicalities should not be permitted to
defeat the intention of the voter, especially so if that intention is
discoverable from the ballot itself, as in this case. 17