G.R. No. 189698 ELEAZAR P. QUINTO and GERINO A. TOLENTINO, JR., Petitioners v. COMMISSION ON ELECTIONS, Respondents.
February 22, 2010
I vote to maintain this Courts December 1, 2009 Decision. The automatic resignation rule on appointive government officials and employees running for elective posts is, to my mind, unconstitutional. I therefore respectfully register my dissent to the resolution of the majority granting the motion for reconsideration.
I earnestly believe that by this resolution, the majority refused to rectify an unjust rule, leaving in favor of a discriminatory state regulation and disregarding the primacy of the peoples fundamental rights to the equal protection of the laws.
Let it be recalled that, on December 1, 2009, the Court rendered its Decision granting the petition and declaring as unconstitutional the second proviso in the third paragraph of Section 13 of Republic Act (R.A.) No. 9369, Section 66 of the Omnibus Election Code (OEC) and Section 4(a) of Commission on Elections (COMELEC) Resolution No. 8678.
Claiming to have legal interest in the matter in litigation, Senator Manuel A. Roxas filed, on December 14, 2009, his Omnibus Motion for Leave of Court to: (a) Intervene in the Instant Case; (b) Admit Attached Motion for Reconsideration; and (c) If Necessary, Set the Instant Case for Oral Arguments.
On the same date, respondent COMELEC, through its Law Department, moved for the reconsideration of the aforesaid December 1, 2009 Decision.
Expressing a similar desire, Franklin M. Drilon, a former senator and a senatorial candidate in the 2010 elections, filed, on December 17, 2009, his Motion for Leave to Intervene and to Admit the Attached Motion for Reconsideration in Intervention.
In a related development, on January 8, 2010, the Office of the Solicitor General (OSG), which initially represented the COMELEC in the proceedings herein, this time disagreed with the latter, and, instead of moving for the reconsideration of the December 1, 2009 Decision, moved for clarification of the effect of our declaration of unconstitutionality.
Subsequently, Tom V. Apacible, a congressional candidate in the 2010 elections, filed, on January 11, 2010, his Motion to Intervene and for the Reconsideration of the Decision dated December 1, 2009.
In its January 12, 2010 Resolution, the Court required petitioners to comment on the aforesaid motions.
On February 1, 2010, petitioners filed their consolidated comment on the motions.
Parenthetically, petitioner Quinto admitted that he did not pursue his plan to run for an elective office. Petitioner Tolentino, on the other hand, disclosed that he filed his certificate of candidacy but that he had recently resigned from his post in the executive department. These developments could very well be viewed by the Court as having rendered this case moot and academic. However, I refuse to proceed to such a conclusion, considering that the issues, viewed in relation to other appointive civil servants running for elective office, remain ubiquitously present. Thus, the issues in the instant case could fall within the classification of controversies that are capable of repetition yet evading review.
It is then proper that the Court rule on the motions.
The motions for intervention should be denied. Section 2, Rule 19 of the Rules of Court explicitly states that motions to intervene may be filed at any time before the rendition of judgment. Obviously, as this Court already rendered judgment on December 1, 2009, intervention may no longer be allowed. The movants, Roxas, Drilon, IBP-Cebu City Chapter, and Apacible, cannot claim to have been unaware of the pendency of this much publicized case. They should have intervened prior to the rendition of this Courts Decision on December 1, 2009. To allow their intervention at this juncture is unwarranted and highly irregular.
While the Court has the power to suspend the application of procedural rules, I find no compelling reason to excuse movants procedural lapse and allow their much belated intervention. Further, a perusal of their pleadings-in-intervention reveals that they merely restated the points and arguments in the earlier dissenting opinions of Chief Justice Puno and Senior Associate Justices Carpio and Carpio Morales. These very same points, incidentally, also constitute the gravamen of the motion for reconsideration filed by respondent COMELEC. Thus, even as the Court should deny the motions for intervention, it is necessary to, pass upon the issues raised therein, because they were the same issues raised in respondent COMELECs motion for reconsideration.
The COMELECs motion for reconsideration
Interestingly, in its motion for reconsideration, the COMELEC does not raise a matter other than those already considered and discussed by the Court in the assailed decision. As aforesaid, the COMELEC merely echoed the arguments of the dissenters.
I remain unpersuaded.
I wish to reiterate the Courts earlier declaration that the second proviso in the third paragraph of Section 13 of R.A. No. 9369, Section 66 of the OEC and Section 4(a) of COMELEC Resolution No. 8678 are unconstitutional 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 certificates of candidacy (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 the two classes does not justify such disparate treatment. Constitutional law jurisprudence requires that the classification must and should be germane to the purposes of the law. As clearly explained in the assailed decision, whether one holds an appointive office or an elective one, the evils sought to be prevented by the measure remain. Indeed, a candidate, whether holding an appointive or an elective office, may use his position to promote his candidacy or to wield a dangerous or coercive influence on the electorate. Under the same scenario, he may also, in the discharge of his official duties, be swayed by political considerations. Likewise, he may neglect his or her official duties, as he will predictably prioritize his campaign. Chief Justice Puno, in his dissent to the assailed decision, even acknowledges that the danger of systemic abuse remains present whether the involved candidate holds an appointive or an elective office, thus
Attempts by government employees to wield influence over others or to make use of their respective positions (apparently) to promote their own candidacy may seem tolerableeven innocuousparticularly when viewed in isolation from other similar attempts by other government employees. Yet it would be decidedly foolhardy to discount the equally (if not more) realistic and dangerous possibility that such seemingly disjointed attempts, when taken together, constitute a veiled effort on the part of a reigning political party to advance its own agenda through a carefully orchestrated use of [appointive and/or elective] officials coming from various levels of the bureaucracy.
To repeat for emphasis, classifying candidates, whether they hold appointive or elective positions, and treating them differently by considering the first as ipso facto resigned while the second as not, is not germane to the purposes of the law, because, as clearly shown, the measure is not reasonably necessary to, nor does it necessarily promote, the fulfillment of the state interest sought to be served by the statute.
In fact, it may not be amiss to state that, more often than not, the elective officials, not the appointive ones, exert more coercive influence on the electorate, with the greater tendency to misuse the powers of their office. This is illustrated by, among others, the proliferation of private armies especially in the provinces. It is common knowledge that private armies are backed or even formed by elective officials precisely for the latter to ensure that the electorate will not oppose them, be cowed to submit to their dictates and vote for them. To impose a prohibitive measure intended to curb this evil of wielding undue influence on the electorate and apply the prohibition only on appointive officials is not only downright ineffectual, but is also, as shown in the assailed decision, offensive to the equal protection clause.
Furthermore, as the Court explained in the assailed decision, this ipso facto resignation rule is overbroad. It covers all civil servants holding appointive posts without distinction, regardless of whether they occupy positions of influence in government or not. Certainly, a utility worker, a messenger, a chauffeur, or an industrial worker in the government service cannot exert the same influence as that of a Cabinet member, an undersecretary or a bureau head. Parenthetically, it is also unimaginable how an appointive utility worker, compared to a governor or a mayor, can form his own private army to wield undue influence on the electorate. It is unreasonable and excessive, therefore, to impose a blanket prohibitionone intended to discourage civil servants from using their positions to influence the voteson all civil servants without considering the nature of their positions. Let it be noted, that, despite their employment in the government, civil servants remain citizens of the country, entitled to enjoy the civil and political rights granted to them in a democracy, including the right to aspire for elective public office.
In addition, this general provision on automatic resignation is directed to the activity of seeking any and all public elective offices, whether partisan or nonpartisan in character, whether in the national, municipal or barangay level. No compelling state interest has been shown to justify such a broad, encompassing and sweeping application of the law.
It may also be pointed out that this automatic resignation rule has no pretense to be the exclusive and only available remedy to curb the uncontrolled exercise of undue influence and the feared danger of systemic abuse. As we have explained in the assailed decision, our Constitution and our body of laws are replete with provisions that directly address these evils. We reiterate our earlier pronouncement that specific evils require specific remedies, not overly broad measures that unduly restrict guaranteed freedoms.
It should be stressed that when the Court struck down (in the earlier decision) the assailed provisions, the Court did not act in a manner inconsistent with Section 2(4) of Article IX-B of the Constitution, which reads:
Sec. 2. x x x.
(4) No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political activity.
or with Section 5(3), Article XVI of the Constitution, which reads:
Sec. 5. x x x.
(3) Professionalism in the armed forces and adequate remuneration and benefits of its members shall be a prime concern of the State. The armed forces shall be insulated from partisan politics.
No member of the military shall engage, directly or indirectly, in any partisan political activity, except to vote.
Neither does the Courts earlier ruling infringe on Section 55, Chapter 8, Title I, Book V of the Administrative Code of 1987, which reads:
Sec. 55. Political Activity.No officer or employee in the Civil Service including members of the Armed Forces, shall engage directly or indirectly in any partisan political activity or take part in any election except to vote nor shall he use his official authority or influence to coerce the political activity of any other person or body. Nothing herein provided shall be understood to prevent any officer or employee from expressing his views on current political problems or issues, or from mentioning the names of candidates for public office whom he supports: Provided, That public officers and employees holding political offices may take part in political and electoral activities but it shall be unlawful for them to solicit contributions from their subordinates or subject them to any of the acts involving subordinates prohibited in the Election Code.
Partisan political activity includes every form of solicitation of the electors vote in favor of a specific candidate. Section 79(b) of the OEC defines partisan political activity as follows:
SEC. 79. Definitions.As used in this Code:
x x x x
(b) The term election campaign or partisan political activity refers to an act designed to promote the election or defeat of a particular candidate or candidates to a public office which shall include:
(1) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign for or against a candidate;
(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate;
(3) Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate for public office;
(4) Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate; or
(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.
The foregoing enumerated acts if performed for the purpose of enhancing the chances of aspirants for nominations for candidacy to a public office by a political party, aggroupment, or coalition of parties shall not be considered as election campaign or partisan political activity.
Public expressions or opinions or discussions of probable issues in a forthcoming election or on attributes of or criticisms against probable candidates proposed to be nominated in a forthcoming political party convention shall not be construed as part of any election campaign or partisan political activity contemplated under this Article.
Given the aforequoted Section 79(b), it is obvious that the filing of a Certificate of Candidacy (CoC) for an elective position, while it may be a political activity, is not a partisan political activity within the contemplation of the law. The act of filing is only an announcement of ones intention to run for office. It is only an aspiration for a public office, not yet a promotion or a solicitation of votes for the election or defeat of a candidate for public office. In fact, even after the filing of the CoC but before the start of the campaign period, there is yet no candidate whose election or defeat will be promoted. Rosalinda A. Penera v. Commission on Elections and Edgar T. Andanar instructs that any person who files his CoC shall only be considered a candidate at the start of the campaign period. Thus, in the absence of a candidate, the mere filing of CoC cannot be considered as an election campaign or a partisan political activity. Section 79 of the OEC does not even consider as partisan political activity acts performed for the purpose of enhancing the chances of aspirants for nominations for candidacy to a public office. Thus, when appointive civil servants file their CoCs, they are not engaging in a partisan political activity and, therefore, do not transgress or violate the Constitution and the law. Accordingly, at that moment, there is no valid basis to consider them as ipso facto resigned from their posts.
There is a need to point out that the discussion in Farias v. The Executive Secretary, relative to the differential treatment of the two classes of civil servants in relation to the ipso facto resignation clause, is obiter dictum. That discussion is not necessary to the decision of the case, the main issue therein being the constitutionality of the repealing clause in the Fair Election Act. Further, unlike in the instant case, no direct challenge was posed in Farias to the constitutionality of the rule on the ipso facto resignation of appointive officials. In any event, the Court en banc, in deciding subsequent cases, can very well reexamine, as it did in the assailed decision, its earlier pronouncements and even abandon them when perceived to be incorrect.
also be noted that Mancuso v. Taft is not the heart of the December 1,
2009 Decision. Mancuso was only cited
to show that resign-to-run provisions, such as those which are specifically
involved herein, have been stricken down in the
Be that as
it may, a closer reading of these latter
On one hand, Letter Carriers and Broadrick, which are based on United Public Workers of America v. Mitchell, involve provisions prohibiting Federal employees from engaging in partisan political activities or political campaigns.
In Mitchell, the appellants sought exemption from the implementation of a sentence in the Hatch Act, which reads: No officer or employee in the executive branch of the Federal Government x x x shall take any active part in political management or in political campaigns. Among the appellants, only George P. Poole violated the provision by being a ward executive committeeman of a political party and by being politically active on election day as a worker at the polls and a paymaster for the services of other party workers.
In Letter Carriers, the plaintiffs alleged that the Civil Service Commission was enforcing, or threatening to enforce, the Hatch Acts prohibition against active participation in political management or political campaigns. The plaintiffs desired to campaign for candidates for public office, to encourage and get federal employees to run for state and local offices, to participate as delegates in party conventions, and to hold office in a political club.
In Broadrick, the appellants sought the
invalidation for being vague and overbroad a provision in the
Mancuso, on the other hand, involves, as
aforesaid, an automatic resignation provision. Kenneth Mancuso, a full-time
police officer and classified civil service employee of the City of
as the above-cited
Plaintiffs may very well feel that further efforts are not justified, but they should be afforded the opportunity to demonstrate that the charter forecloses access to a significant number of offices, the candidacy for which by municipal employees would not pose the possible threats to government efficiency and integrity which Letter Carriers, as we have interpreted it, deems significant. Accordingly, we remand for consideration of plaintiffs overbreadth claim.
As observed by the Court (citing Clements v. Fashing) in the December 1, 2009 Decision, U.S. courts, in subsequent cases, sustained the constitutionality of resign-to-run rules when applied to specified or particular officials, as distinguished from all others, under a classification that is germane to the purposes of the law. These resign-to-run legislations were not expressed in a general and sweeping provision, and thus did not violate the test of being germane to the purpose of the law, the second requisite for a valid classification. Directed, as they were, to particular officials, they were not overly encompassing as to be overbroad. In fact, Morial v. Judiciary Commission of the State of Louisiana, where the resign-to-run provision pertaining to judges running for political offices was upheld, declares that there is no blanket approval of restriction on the right of public employees to become candidates for public office. The Morial court instructed thus
Because the judicial office is different in key respects from other offices, the state may regulate its judges with the differences in mind. For example the contours of the judicial function make inappropriate the same kind of particularized pledges of conduct in office that are the very stuff of campaigns for most non-judicial offices. A candidate for the mayoralty can and often should announce his determination to effect some program, to reach a particular result on some question of city policy, or to advance the interests of a particular group. It is expected that his decisions in office may be predetermined by campaign commitment. Not so the candidate for judicial office. He cannot, consistent with the proper exercise of his judicial powers, bind himself to decide particular cases in order to achieve a given programmatic result. Moreover, the judge acts on individual cases and not broad programs. The judge legislates but interstitially; the progress through the law of a particular judge's social and political preferences is, in Mr. Justice Holmes' words, confined from molar to molecular motions.
one safeguard of the special character of the judicial function,
analysis applies equally to the differential treatment of judges and other
office holders. A judge who fails in his bid for a post in
the state legislature must not use his judgeship to advance the cause of those
who supported him in his unsuccessful campaign in the legislature. In contrast,
a member of the state legislature who runs for some other office is not
expected upon his return to the legislature to abandon his advocacy of the
interests which supported him during the course of his unsuccessful campaign.
Indeed, for an ipso facto resignation rule to be valid, it must be shown that the classification is reasonably necessary to attain the objectives of the law. Here, as already explained in the assailed decision, the differential treatment in the application of this resign-to-run rule is not germane to the purposes of the law, because whether one holds an appointive office or an elective one, the evils sought to be prevented are not effectively addressed by the measure. Thus, the ineluctable conclusion that the concerned provisions are invalid for being unconstitutional.
Without unnecessarily preempting the resolution of any subsequent actual case or unwittingly giving an advisory opinion, the Court, in the December 1, 2009 Decision, in effect, states that what should be implemented are the other provisions of Philippine laws (not the concerned unconstitutional provisions) that specifically and directly address the evils sought to be prevented by the measure. It is highly speculative then to contend that members of the police force or the armed forces, if they will not be considered as resigned when they file their COCs, is a disaster waiting to happen. There are, after all, appropriate laws in place to curb abuses in the government service.
The invalidation of the ipso facto resignation provisions does not mean the cessation in operation of other provisions of the Constitution and of existing laws. Section 2(4) of Article IX-B and Section 5(3), Article XVI of the Constitution, and Section 55, Chapter 8, Title I, Book V of the Administrative Code of 1987 still apply. So do other statutes, such as the Civil Service Laws, OEC, the Anti-Graft Law, the Code of Conduct and Ethical Standards for Public Officials and Employees, and related laws. Covered civil servants running for political offices who later on engage in partisan political activity run the risk of being administratively charged. Civil servants who use government funds and property for campaign purposes, likewise, run the risk of being prosecuted under the Anti-Graft and Corrupt Practices Act or under the OEC on election offenses. Those who abuse their authority to promote their candidacy shall be made liable under the appropriate laws. Let it be stressed at this point that the said laws provide for specific remedies for specific evils, unlike the automatic resignation provisions that are sweeping in application and not germane to the purposes of the law.
To illustrate, we hypothetically assume that a municipal election officer, who is an employee of the COMELEC, files his CoC. Given the invalidation of the automatic resignation provisions, the said election officer is not considered as ipso facto resigned from his post at the precise moment of the filing of the CoC. Thus, he remains in his post, and his filing of a CoC cannot be taken to be a violation of any provision of the Constitution or any statute. At the start of the campaign period, however, if he is still in the government service, that is, if he has not voluntarily resigned, and he, at the same time, engages in a partisan political activity, then, he becomes vulnerable to prosecution under the Administrative Code, under civil service laws, under the Anti-Graft and Corrupt Practices Act or under the OEC. Upon the proper action being filed, he could, thus, be disqualified from running for office, or if elected, prevented from assuming, or if he had already assumed office, be removed from, office.
At this juncture, it may even be said that Mitchell, Letter Carriers and Broadrick, the cases earlier cited by Chief Justice Puno and Associate Justices Carpio and Carpio-Morales, support the proposition advanced by the majority in the December 1, 2009 Decision. While the provisions on the ipso facto resignation of appointive civil servants are unconstitutional for being violative of the equal protection clause and for being overbroad, the general provisions prohibiting civil servants from engaging in partisan political activity remain valid and operational, and should be strictly applied.
The COMELECs motion for reconsideration should, therefore, be denied.
The OSGs motion for clarification
In its motion, the OSG pleads that this Court clarify whether, by declaring as unconstitutional the concerned ipso facto resignation provisions, the December 1, 2009 Decision intended to allow appointive officials to stay in office during the entire election period. The OSG points out that the official spokesperson of the Court explained before the media that the decision would in effect allow appointive officials to stay on in their posts even during the campaign period, or until they win or lose or are removed from office.
I pose the following response to the motion for clarification. The language of the December 1, 2009 Decision is too plain to be mistaken. The Court only declared as unconstitutional Section 13 of R.A. No. 9369, Section 66 of the OEC and Section 4(a) of COMELEC Resolution No. 8678. The Court never stated in the decision that appointive civil servants running for elective posts are allowed to stay in office during the entire election period.
The only logical and legal effect, therefore, of the Courts earlier declaration of unconstitutionality of the ipso facto resignation provisions is that appointive government employees or officials who intend to run for elective positions are not considered automatically resigned from their posts at the moment of filing of their CoCs. Again, as explained above, other Constitutional and statutory provisions do not cease in operation and should, in fact, be strictly implemented by the authorities.
Let the full force of the laws apply. Then let the axe fall where it should.
ANTONIO EDUARDO B. NACHURA
 Rollo, p. 122.
 Petitioner Quinto was appointed, and on January 13, 2010, took his oath of office as Acting Secretary of the Department of Environment and Natural Resources (DENR). Subsequently, as reported in the February 11, 2010 issue of Philippine Daily Inquirer, he was appointed as Director General of the Presidential Coalition Affairs Office.
 Rule 19, Section 2 provides in full:
SEC. 2. Time to intervene.The motion to intervene may be filed at any time before rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the motion and served on the original parties.
 Associated Bank (now United Overseas Bank [Phils.]) v. Spouses Rafael and Monaliza Pronstroller, G.R. No. 148444, September 3, 2009; Chavez v. Presidential Commission on Good Government, 366 Phil. 863, 867 (1999).
 Sofia Aniosa Salandanan v. Spouses Ma. Isabel and Bayani Mendez, G.R. No. 160280, March 13, 2009; Republic v. Gingoyon, G.R. No. 166429, February 1, 2006, 481 SCRA 457, 470.
 Dissenting Opinion of Chief Justice Puno, p. 63. (Italics supplied.)
 Bernas, The 1987 Constitution of the
Republic of the
 G.R. No. 181613, November 25, 2009.
 463 Phil. 179, 205-208 (2003).
 476 F.2d 187, 190 (1973).
 Supra note 19, at 551-552.
 Supra note 20, at 602.
 Supra note 18, at 188-189.
 560 F. 2d 22 (1977).
 565 F. 2d 295 (1977).
 The constitutional proscription on engagement by members of the military in partisan political activity applies only to those in the active military service, not to reservists (Cailles v. Bonifacio, 65 Phil. 328 ). The same proscription relating to civil servants does not also extend to members of the Cabinet as their positions are essentially political (Santos v. Yatco, G.R. No. L-16133, November 6, 1959, 55 O.G. 8641-8642).
 Rollo, p. 323.