9/12/2019 G.R. No.

189698

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 189698 December 1, 2009

ELEAZAR P. QUINTO and GERINO A. TOLENTINO, JR., Petitioners,

vs.
COMMISSION ON ELECTIONS, Respondent.

DECISION

NACHURA, J.:

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

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

The Antecedents

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

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

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

Both sides of the ballots may be used when necessary.

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

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

To prevent the use of fake ballots, the Commission through the Committee shall ensure that the serial number on the
ballot stub shall be printed in magnetic ink that shall be easily detectable by inexpensive hardware and shall be

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impossible to reproduce on a photocopying machine and that identification marks, magnetic strips, bar codes and
other technical and security markings, are provided on the ballot.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Petitioners' Contention

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

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

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

The Respondent's Arguments

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

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

Our Ruling

I.

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

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

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

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

II.

To put things in their proper perspective, it is imperative that we trace the brief history of the assailed provision.
Section 4(a) of COMELEC Resolution No. 8678 is a reproduction of the second proviso in the third paragraph of
Section 13 of R.A. No. 9369, which for ready reference is quoted as follows:

For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition for
registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this
period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of
candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start
of the aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position,
including active members of the armed forces, and officers and employees in government-owned or -controlled
corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the
day of the filing of his/her certificate of candidacy.15

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

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

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

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

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

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

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

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

During the Commonwealth era, Commonwealth Act (C.A.) No. 725, entitled "AN ACT TO PROVIDE FOR THE NEXT
ELECTION FOR PRESIDENT AND VICE-PRESIDENT OF THE PHILIPPINES, SENATORS AND MEMBERS OF
THE HOUSE OF REPRESENTATIVES, AND APPROPRIATING THE NECESSARY FUNDS THEREFOR," approved
on January 5, 1946, contained, in the last paragraph of its Section 2, the following:

A person occupying any civil office by appointment in the government or any of its political subdivisions or agencies
or government-owned or controlled corporations, whether such office by appointive or elective, shall be considered
to have resigned from such office from the moment of the filing of such certificate of candidacy.

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

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

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

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

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

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

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

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

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

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

Senator Gordon.- No, it has always been there.

Senator Osmeña.- I see.

Senator Gordon.- I guess the intention is not to give them undue advantage, especially certain people.
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Senator Osmeña.- All right.16

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

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

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

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

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

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

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

Parenthetically, it may be remembered that Section 67 of the OEC and Section 11 of R.A. No. 8436 contained a
similar provision on automatic resignation of elective officials upon the filing of their CoCs for any office other than
that which they hold in a permanent capacity or for President or Vice-President. However, with the enactment of R.A.
No. 9006, or the Fair Election Act,19 in 2001, this provision was repealed by Section 1420 of the said act. There was,
thus, created a situation of obvious discrimination against appointive officials who were deemed ipso facto resigned
from their offices upon the filing of their CoCs, while elective officials were not.

This situation was incidentally addressed by the Court in Fari v. The Executive Secretary21 when it ruled that

Section 14 of Rep. Act No. 9006

Is Not Violative of the Equal

Protection Clause of the Constitution

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

The equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable classification.-
If the groupings are characterized by substantial distinctions that make real differences, one class may be treated

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and regulated differently from the other. The Court has explained the nature of the equal protection guarantee in this
manner:

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

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

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

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

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

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

III.

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

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

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

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

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

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

IV.

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

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

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

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

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

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

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

In order that there can be valid classification so that a discriminatory governmental act may pass the constitutional
norm of equal protection, it is necessary that the four (4) requisites of valid classification be complied with, namely:

(1) It must be based upon substantial distinctions;

(2) It must be germane to the purposes of the law;

(3) It must not be limited to existing conditions only; and

(4) It must apply equally to all members of the class.

The first requirement means that there must be real and substantial differences between the classes treated
differently. As illustrated in the fairly recent Mirasol v. Department of Public Works and Highways,31 a real and
substantial distinction exists between a motorcycle and other motor vehicles sufficient to justify its classification
among those prohibited from plying the toll ways. Not all motorized vehicles are created equal a two-wheeled vehicle
is less stable and more easily overturned than a four-wheel vehicle.

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

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

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

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

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

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neglect or inefficiency in the performance of duty because they would be attending to their campaign rather than to
their office work.

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

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

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

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

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

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

V.

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

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

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

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

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

Mancuso v. Taft,37 on this point, instructs

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

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

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

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

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

Incidentally, Clements v. Fashing39 sustained as constitutional a provision on the automatic resignation of District
Clerks, County Clerks, County Judges, County Treasurers, Criminal District Attorneys, County Surveyors, Inspectors
of Hides and Animals, County Commissioners, Justices of the Peace, Sheriffs, Assessors and Collectors of Taxes,
District Attorneys, County Attorneys, Public Weighers, and Constables if they announce their candidacy or if they
become candidates in any general, special or primary election.

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

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

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

SO ORDERED.

ANTONIO EDUARDO B. NACHURA

Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

ANTONIO T. CARPIO RENATO C. CORONA

Associate Justice Associate Justice

CONCHITA CARPIO MORALES MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

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PRESBITERO J. VELASCO, JR. TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice

ARTURO D. BRION DIOSDADO M. PERALTA

Associate Justice Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

CERTIFICATION

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

REYNATO S. PUNO
Chief Justice

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