EN BANC [G.R. No. 132365. July 9, 1998] COMMISSION ON ELECTIONS, petitioner, vs. HON. TOMAS B.

NOYNAY, Acting Presiding Judge, Regional Trial Court, Branch 23, Allen, Northern Samar, and DIOSDADA F. AMOR, ESBEL CHUA, and RUBEN MAGLUYOAN, respondents. DECISION DAVIDE, JR., J.: The pivotal issue raised in this special civil action for certiorari with mandamus is whether R.A. No. 7691[1] has divested Regional Trial Courts of jurisdiction over election offenses, which are punishable with imprisonment of not exceeding six (6) years. The antecedents are not disputed. In its Minute Resolution No. 96-3076 of 29 October 1996, the Commission on Elections (COMELEC) resolved to file an information for violation of Section 261(i) of the Omnibus Election Code against private respondents Diosdada Amor, a public school principal, and Esbel Chua and Ruben Magluyoan, both public school teachers, for having engaged in partisan political activities. The COMELEC authorized its Regional Director in Region VIII to handle the prosecution of the cases. Forthwith, nine informations for violation of Section 261(i) of the Omnibus Election were filed with Branch 23 of the Regional Trial Court of Allen, Northern Samar, and docketed therein as follows: a) Criminal Cases Nos. A-1439 and A-1442, against private respondents Diosdada Amor, Esbel Chua, and Ruben Magluyoan. b) Criminal Case No. A-1443, against private respondents Esbel Chua and Ruben Magluyoan. c) Criminal Cases Nos. A-1444 and A-1445, against private respondent Esbel Chua only; d) Criminal Cases Nos. A-1446 to A-1449, against private respondent Diosdada Amor only. In an Order[2] issued on 25 August 1997, respondent Judge Tomas B. Noynay, as presiding judge of Branch 23, motu proprio ordered the records of the cases to be withdrawn and directed the COMELEC Law Department to file the cases with the appropriate Municipal Trial Court on the ground that pursuant to Section 32 of B.P. Blg. 129 as amended by R.A. No. 7691, [3] the Regional Trial Court has no jurisdiction over the cases since the maximum imposable penalty in each of the cases does not exceed six years of imprisonment. Pertinent portions of the Order read as follows: [I]t is worth pointing out that all the accused are uniformly charged for [sic] Violation of Sec. 261(i) of the Omnibus Election Code, which under Sec. 264 of the same Code carries a penalty of not less than one (1) year but not more than six (6) years of imprisonment and not subject to Probation plus disqualification to hold public office or deprivation of the right of suffrage. Sec. 31 [sic] of the Judiciary Reorganization Act of 1980 (B.P.) Blg. 129 as Amended by Rep. Act. 6691 [sic] (Expanded Jurisdiction) states: Sec. 32. Jurisdiction Metropolitan Trial Courts, Municipal Circuit Trial Courts, Municipal Trial Courts in Criminal Cases Except [in] cases falling within the exclusive original jurisdiction of the Regional Trial Courts and the Sandiganbayan, the Municipal Trial Courts, Metropolitan Trial Courts and the Municipal Circuit Trial Courts shall exercise: (1) Exclusive original jurisdiction over all violations of city or municipal ordinance committed within their respective territorial jurisdiction; and (2) Exclusive original jurisdiction over all offenses punishable with an imprisonment of not exceeding six (6) years irrespective of the amount or fine and regardless of other imposable accessory and other penalties including the civil liability arising from such offenses or predicated thereon, irrespective of time [sic], nature, value and amount thereof, Provided, However, that in offenses including damages to property through criminal negligence, they shall have exclusive original jurisdiction thereof. In light of the foregoing, this Court has therefore, no jurisdiction over the cases filed considering that the maximum penalty imposable did not exceed six (6) years. The two motions[4] for reconsideration separately filed by the COMELEC Regional Director of Region VIII and by the COMELEC itself through its Legal Department having been denied by the public respondent in the Order of 17 October 1997, [5] the petitioner filed this special civil action. It contends that public respondent has erroneously misconstrued the provisions of Rep. Act No. 7691 in arguing that the Municipal Trial Court has exclusive original jurisdiction to try and decide election offenses because pursuant to Section 268 of the Omnibus Election Code and this Courts ruling in Alberto [sic] vs. Judge Juan Lavilles, Jr., Regional Trial Courts have the exclusive original jurisdiction over election offenses. On 17 February 1998, we required the respondents and the Office of the Solicitor General to comment on the petition. In its Manifestation of 5 March 1998, the Office of the Solicitor General informs us that it is adopting the instant petition on the

ground that the challenged orders of public respondent are clearly not in accordance with existing laws and jurisprudence. In his Manifestation of 12 March 1998, public respondent avers that it is the duty of counsel for private respondents interested in sustaining the challenged orders to appear for and defend him. In their Comment, private respondents maintain that R.A. No. 7691 has divested the Regional Trial Courts of jurisdiction over offenses where the imposable penalty is not more than 6 years of imprisonment; moreover, R.A. 7691 expressly provides that all laws, decrees, and orders inconsistent with its provisions are deemed repealed or modified accordingly. They then conclude that since the election offense in question is punishable with imprisonment of not more than 6 years, it is cognizable by Municipal Trial Courts. We resolved to give due course to the petition. Under Section 268 of the Omnibus Election Code, Regional Trial Courts have exclusive original jurisdiction to try and decide any criminal action or proceedings for violation of the Code except those relating to the offense of failure to register or failure to vote. [6] It reads as follows: SEC. 268. Jurisdiction of courts. - The regional trial court shall have the exclusive original jurisdiction to try and decide any criminal action or proceedings for violation of this Code, except those relating to the offense of failure to register or failure to vote which shall be under the jurisdiction of the metropolitan or municipal trial courts. From the decision of the courts, appeal will lie as in other criminal cases. Among the offenses punished under the Election Code are those enumerated in Section 261 thereof. The offense allegedly committed by private respondents is covered by paragraph (i) of said Section, thus: SEC. 261. Prohibited Acts. The following shall be guilty of an election offense: (i) Intervention of public officers and employees. Any officer or employee in the civil service, except those holding political offices; any officer, employee, or member of the Armed Forces of the Philippines, or any police forces, special forces, home defense forces, barangay self-defense units and all other para-military units that now exist or which may hereafter be organized who, directly or indirectly, intervenes in any election campaign or engages in any partisan political activity, except to vote or to preserve public order, if he is a peace officer. Under Section 264 of the Code the penalty for an election offense under the Code, except that of failure to register or failure to vote, is imprisonment of not less than one year but not more than six years and the offender shall not be subject to probation and shall suffer disqualification to hold public office and deprivation of the right of suffrage. Section 32 of B.P. Blg. 129 as amended by Section 2 of R.A. No. 7691, provides as follows: SEC. 32. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in Criminal Cases. Except in cases falling within the exclusive original jurisdiction of Regional Trial Court and of the Sandiganbayan, the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall exercise: (1) Exclusive original jurisdiction over all violations of city or municipal ordinances committed within their respective territorial jurisdiction; and (2) Exclusive original jurisdiction over all offenses punishable with imprisonment not exceeding six (6) years irrespective of the amount of fine, and regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of kind, nature, value or amount thereof: Provided, however, That in offenses involving damage to property through criminal negligence, they shall have exclusive original jurisdiction thereof. We have explicitly ruled in Morales v. Court of Appeals [7] that by virtue of the exception provided for in the opening sentence of Section 32, the exclusive original jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts does not cover those criminal cases which by specific provisions of law fall within the exclusive original jurisdiction of Regional Trial Courts and of the Sandiganbayan, regardless of the penalty prescribed therefor. Otherwise stated, even if those excepted cases are punishable by imprisonment of not exceeding six (6) years ( i.e., prision correccional, arresto mayor, or arresto menor), jurisdiction thereon is retained by the Regional Trial Courts or the Sandiganbayan, as the case may be. Among the examples cited in Morales as falling within the exception provided for in the opening sentence of Section 32 are cases under (1) Section 20 of B.P. Blg. 129; (2) Article 360 of the Revised Penal Code, as amended; (3) the Decree on Intellectual Property; [8] and (4) the Dangerous Drugs Act of 1972,[9] as amended. Undoubtedly, pursuant to Section 268 of the Omnibus Election Code, election offenses also fall within the exception. As we stated in Morales, jurisdiction is conferred by the Constitution or by Congress. Outside the cases enumerated in Section 5(2) of Article VIII of the Constitution, Congress has the plenary power to define, prescribe, and apportion the jurisdiction of various courts. Congress may thus provide by law that a certain class of cases

should be exclusively heard and determined by one court. Such law would be a special law and must be construed as an exception to the general law on jurisdiction of courts, namely, the Judiciary Act of 1948, as amended, and the Judiciary Reorganization Act of 1980. R.A. No. 7691 can by no means be considered as a special law on jurisdiction; it is merely an amendatory law intended to amend specific sections of the Judiciary Reorganization Act of 1980. Hence, R.A. No. 7691 does not have the effect of repealing laws vesting upon Regional Trial Courts or the Sandiganbayan exclusive original jurisdiction to hear and decide the cases therein specified. That Congress never intended that R.A. No. 7691 should repeal such special provisions is indubitably evident from the fact that it did not touch at all the opening sentence of Section 32 of B.P. Blg. 129 providing for the exception. It is obvious that respondent judge did not read at all the opening sentence of Section 32 of B.P. Blg. 129, as amended. It is thus an opportune time, as any, to remind him, as well as other judges, of his duty to be studious of the principles of law, [10] to administer his office with due regard to the integrity of the system of the law itself, [11] to be faithful to the law, and to maintain professional competence.
[12]

A-1439 and A-1442 to A-1449 are SET ASIDE. Respondent Judge is DIRECTED to try and decide said cases with purposeful dispatch and, further, ADMONISHED to faithfully comply with Canons 4 and 18 of the Canons of Judicial Ethics and Rule 3.01, Canon 3 of the Code of Judicial Conduct. Atty. Jose P. Balbuena is ADMONISHED to be more careful in the discharge of his duty to the court as a lawyer under the Code of Professional Responsibility. No costs. SO ORDERED.

Counsel for petitioner, Atty. Jose P. Balbuena, Director IV of petitioners Law Department, must also be admonished for his utter carelessness in his reference to the case against Judge Juan Lavilles, Jr. In the motion for Reconsideration [13] he filed with the court below, Atty. Balbuena stated: As a matter of fact, the issue on whether the Regional Trial Court has exclusive jurisdiction over election offenses is already a settled issue in the case of Alberto Naldeza vs- Judge Juan Lavilles, Jr., A.M. No. MTJ94-1009, March 5, 1996, where the Supreme Court succinctly held: A review of the pertinent provision of law would show that pursuant to Sec. 265 and 267 of the Omnibus Election Code, the COMELEC, has the exclusive power to conduct preliminary investigation of all election offenses punishable under the Code and the RTC shall have the exclusive original jurisdiction to try and decide any criminal action or proceedings for violation of the same. The Metropolitan, or MTC, by way of exception exercises jurisdiction only on offenses relating to failure to register or to vote. Noting that these provisions stand together with the provisions that any election offense under the code shall be punishable with imprisonment of one (1) year to six (6) years and shall not be subject to probation (Sec. 263, Omnibus Election Code), we submit that it is the special intention of the Code to vest upon the RTC jurisdiction over election cases as a matter of exception to the general provisions on jurisdiction over criminal cases found under B.P. 129 by RA 7691 does not vest upon the MTC jurisdiction over criminal election offenses despite its expanded jurisdiction. (Underscoring ours) Also, in this petition, Atty. Balbuena states: 16. This Honorable Supreme Court, in the case of Alberto -vsJudge Juan Lavilles, Jr., 245 SCRA 286 involving the same issue of jurisdiction between the lower courts and Regional Trial Court on election offenses, has ruled, thus: With respect to the other charges, a review of the Pertinent Provision of Law would show that pursuant to Section 265 and 267 of the Omnibus Election Code the Comelec has the exclusive power to conduct preliminary investigations all election offenses punishable under the code and the Regional Trial Court shall have the exclusive original jurisdiction to try and decide any criminal action or proceedings for violation of the same. The Metropolitan Trial Court, by way of exception exercise jurisdiction only on offenses relating to failure to register or to vote. Noting that these provisions stands together with the provision that any election offense under the code shall be punishable with imprisonment for one (1) year to six (6) years and shall not be subject to probation (Section 264, Omnibus Election Code). We submit that it is the special intention of the code to vest upon the Regional Trial Court jurisdiction over election cases as matter of exemption to the provisions on jurisdiction over criminal cases found under B.P. Reg. 129, as amended. Consequently, the amendment of B.P. Reg. 129 by Republic Act No. 7691 does not vest upon the MTC jurisdiction over criminal election offenses despite its expanded jurisdiction. If Atty. Balbuena was diligent enough, he would have known that the correct name of the complainant in the case referred to is neither Alberto Naldeza as indicated in the motion for reconsideration nor Albertoalone as stated in the petition, but ALBERTO NALDOZA. Moreover, the case was not reported in volume 245 of the Supreme Court Reports Annotated (SCRA) as falsely represented in the paragraph 16 of the petition, but in volume 254 of the SCRA. Worse, in both the motion for reconsideration and the petition, Atty. Balbuena deliberately made it appear that the quoted portions were our findings or rulings, or, put a little differently, our own words. The truth is, the quoted portion is just a part of the memorandum of the Court Administrator quoted in the decision. Rule 10.02 of Canon 10 of the Code of Professional Responsibility[14] mandates that a lawyer shall not knowingly misquote or misrepresent the text of a decision or authority. IN VIEW OF ALL THE FOREGOING , the instant petition is GRANTED. The challenged orders of public respondent Judge Tomas B. Noynay of 25 August 1997 and 17 October 1997 in Criminal Cases Nos.

COMMISSION ON ELECTIONS, petitioner, vs. HON. DOLORES L. ESPAOL, Presiding Judge, Regional Trial Court, Branch 90, Imus, Cavite, respondents. DECISION CALLEJO, SR., J.: This is a petition for certiorari and mandamus under Rule 65 of the Rules of Court, as amended, filed by the Commission on Elections (COMELEC) for the nullification of the Order of the respondent judge dated February 20, 2001, denying the Omnibus Motion to Dismiss filed by the petitioner in Criminal Case Nos. 7960-00 to 7969-00, and the Order dated May 16, 2001, denying the petitioners motion for reconsideration. The Antecedents During the elections on May 11, 1998, Florentino A. Bautista was the official candidate of the Lakas for the position of Municipal Mayor of Kawit, Cavite. He executed an AffidavitComplaint charging the incumbent Municipal Mayor Atty. Federico Hit Poblete, Vice-Mayor Reynaldo Aguinaldo, Bienvenido Pobre, Arturo Ganibe, Leonardo Llave, Diosdado del Rosario, Manuel Ubod, Angelito Peregrino, Mario Espiritu, Salvador Olaes and Pedro Paterno, Jr. of violation of paragraphs (a) and (b) of Section 261 of the Omnibus Election Code (vote buying) and filed the same with the Law Department of the COMELEC. The complaint was entitled Florentino A. Bautista vs. Federico A. Poblete, et al. , and docketed as EO Case No. 98-219. Of the 77 persons offered by the complainant to prove the charges, 44 executed their respective affidavits and swore and subscribed to the truth thereof, on the vote-buying of the respondents. The Law Department of the petitioner conducted the requisite preliminary investigation, after which it submitted its comments and recommendations to the COMELEC En Banc. On February 25, 1999, the COMELEC En Banc issued Resolution No. 99-0346, the dispositive portion of which reads: RESOLVED: (a) to file the necessary information against respondents Federico A. Poblete, Bienvenido C. Pobre, Reynaldo B. Aguinaldo, Leonardo Llave, Diosdado del Rosario, Angelito Peregrino, Mario Espiritu, Salvador Olaes, Pedro Paterno, Jr., Arturo Ganibe and Manuel Ubod, before the proper Regional Trial Court of Cavite for violation of Section 261 (a) and (b) of the Omnibus Election Code; and to authorize the Director IV of the Law Department to designate a COMELEC prosecutor to handle the prosecution of the case until termination thereof, with the duty to submit periodic report after every hearing of the case; and (b) to file a Motion before the Court for the preventive suspension for a period of ninety (90) days of respondents Mayor Bienvenido Pobre, Vice-Mayor Reynaldo Aguinaldo and Sangguniang Bayan members Leonardo Llave, Diosdado del Rosario, Angelito Peregrino, Mario Espiritu, Salvador Olaes and Pedro Paterno, Jr., while the case is pending pursuant to Section 60 Chapter IV of Republic Act No. 7160, otherwise known as the Local Government Code of 1991 specifically on the ground of commission of an offense involving moral turpitude.[1] The petitioner, through its Law Department, filed an Information against the respondents with the Regional Trial Court of Cavite, docketed as Criminal Case No. 7034-99, raffled to Branch 90, presided by the respondent judge. On May 10, 1999, the court issued an order directing the Law Department of the petitioner to conduct a reinvestigation of the case, citing the ruling of this Court in Lozano vs. Yorac[2] andNolasco vs. Commission on Elections .[3] In the meantime, Gerardo Macapagal and Inocencio Rodelas filed a criminal complaint for violation of Section 261(a) of the Omnibus Election Code (vote selling) against the witnesses of Florentino A. Bautista in Criminal Case No. 7034-99. The complaint was docketed as I.S. No. 1-99-1080. The Office of the Cavite Provincial Prosecutor conducted a preliminary investigation of the complaint, in his capacity as a deputy of the petitioner. On April 10, 2000, the Office of the Cavite Provincial Prosecutor issued a resolution in I.S. No. 1-99-1080 finding probable cause against the respondents for violations of Section 261(a) and (b) of the Omnibus Election Code, and filed separate Informations against them with the RTC of Cavite. The dispositive portion of the Resolution reads: WHEREFORE, in the light of the preceding premises, let separate Informations for vote-selling penalized under Section 261 (a) (b) of the Omnibus Election Code be immediately filed against all respondents, thirteen of whom were deemed to have waived their right to present evidence in their behalf during the preliminary investigation. [4] The cases were raffled and assigned to the RTC branches as follows: Criminal Case No. Branch Number 7940-00 to 7949-00 and 7981-00 Branch 22 7973-00 to 7979-00 and 7970-00 Branch 21 7950-00 to 7959-00 and 7980-00 Branch 20

7960-00 to 7969-00 Branch 90 On June 15, 2000, the respondents in I.S. No. 1-99-1080 received copies of the Resolution of the Provincial Prosecutor, and on June 23, 2000 appealed the same to the petitioner, contending that: Violation of Section 261 (a)(2) of the Omnibus Election Code is an election offense under Article XXII of the same code. Under Section 265 of the Code, it is this Honorable Commission which has the exclusive power to conduct (the) preliminary investigation thereof, and to prosecute the same. As such, it is also this Honorable Commission which has the exclusive power to review, motu proprio or through an appeal, the recommendation or resolution of investigating officers in the preliminary investigation. This appeal is, therefore, made pursuant to this Honorable Commissions exclusive power to conduct preliminary investigation of all election offenses xxx and to prosecute the same and to review the recommendation or resolution of investigating officers, like the chief state prosecutor and/or provincial/city prosecutors in preliminary investigations thereof under Section 265 of the Omnibus Election Code and Section 10, Rule 34 of the COMELEC Rules of Procedure.[5] On July 6, 2000, the petitioner came out with Minute Resolution No. 00-1378 denying the appeal of the respondentsappellants therein for lack of jurisdiction. But on the same day, the respondents-appellants filed an Urgent Motion to Withdraw or Revoke the Delegated Authority of the Law Department to Direct the Said Office to Suspend or Move for the Suspension of the Prosecution of Criminal Cases Nos. 794000 to 7981-00. The respondents-appellants also filed a Manifestation with Urgent Motion to Set for Hearing Re: Appeal from the Resolution of the Provincial Prosecutor of Resolution No. I.S. No. 1-99-1080. OnSeptember 7, 2000, the COMELEC approved Resolution No. 00-1826, thus: The Commission, after due deliberation, RESOLVED as it hereby RESOLVES to defer action on the aforesaid matter. Meanwhile, to refer the same to the Law Department for comment and recommendation. Let the Law Department implement this resolution. [6] On October 24, 2000, the Law Department of the petitioner filed a motion before Branches 20, 21, 22 and 90, praying for the suspension of the proceedings against all the accused until the petitioner shall have resolved the incidents before it. The public prosecutor did not object to the motion. On October 25, 2000, RTC, Branch 22, issued an Order granting the motion in the criminal cases before it. Meanwhile, acting on the appeal of the respondents-appellants in I.S. No. 1-99-1080, Atty. Michael L. Valdez submitted his recommendation in behalf of the COMELECs Law Department, Investigation and Prosecution Division on November 13, 2000. It was recommended that the petitioner nullify the Resolution of the Office of the Cavite Provincial Prosecutor in I.S. No. 199-1080, for the reason that the respondents-appellants are exempt, under Section 28(4) of Republic Act No. 6646, from prosecution for violation of Section 261(a)(b) of the Omnibus Election Code: WHEREFORE, premises considered, the Law Department RECOMMENDS to declare as null and void the Resolution of the Office of the Provincial Fiscal (Prosecutor) of Cavite in I.S. No. 1-99-1080, entitled Gerardo Macapagal, et al. vs. Celerino Villarosa, et al., finding the existence of a probable cause against the respondents for being a violation of Section 28 (4) of Rep. Act No. 6646, and to exempt them from criminal prosecution, accused: Celerino Villarosa, Felisa Villarosa, Leonardo Collano, Azucena Collano, Jonathan Francisco, Berna Francisco, David Zablan, Teresita Zablan, Rowel Del Rosario, Reynaldo Morales, Lolita Morales, Sherlita Borejon, Leonardo Mabiliran, Virgilio Duco, Marina Duco, Bencio Planzar, Rudy Solomon, Nenita Viajador, Antonio De la Cruz, Guinata Agarao, Luis Cantiza, Ramilo Pinote, Miriam Pinote, Wilfredo/Fredo Rodriguez, Marlene/Marlyn Rodriguez, Rodelio Pinote, Saludia Pinote, Ronel Escalante, Alejandrino Duco, Dominga Duco, Joel De la Rosa, Shirley De la Rosa, Ernesto Del Rosario, Nilda Del Rosario, Rodger Pinote, Ma. Theresa Pinote, Wilfredo Del Rosario, Roberto Pinote, Jocelyn Pinote, Norma De la Rosa, Lita Montad and Nacy Daiz, whose cases are pending before Branches Nos. 20, 21, 22, and 90, Regional Trial Court, Imus, Cavite, and who are witnesses of the prosecution in Crim. Case No. 7034-99, Regional Trial Court, Branch 90, Imus, Cavite, and to direct the Law Department to file the necessary motion before the court to dismiss their cases, by citing Section 28 (4) of Rep. Act No. 6646.[7] During the regular meeting of the COMELEC En Banc on November 23, 2000, the Chairman and two other commissioners were on official leave. The remaining four commissioners met and issued Resolution No. 00-2453 approving the foregoing recommendation, to wit:

The Commission RESOLVED, as it hereby RESOLVES, to approve the recommendation of the Law Department as follows: 1. to declare the Resolution of the Office of the Provincial Prosecutor of Cavite in I.S. No. 1-99-1080 (Gerardo Macapagal, et al. vs. Celerino Villarosa, et al.) as null and void, and to exempt the aforementioned accused from criminal prosecution pursuant to Section 28 (4) of R.A. No. 6646; and 2. to direct the Law Department to file the necessary motion to dismiss before the proper court the cases against the herein-named accused. Let the Law Department implement this resolution. SO ORDERED.[8] In compliance with the Resolution of the COMELEC En Banc, its Law Department, through Attys. Jose P. Balbuena and Michael Valdez, filed with the RTC, Branch 90, an Omnibus Motion (1) Motion for Reconsideration Re: Order of this Court dated November 22, 2000; (2) Motion for Leave to Reiterate Urgent Motion to Suspend Proceedings; and (3) Motion to Dismiss filed on January 8, 2001. The Public Prosecutor opposed the petitioners motion to dismiss on the following grounds: (a) the exemption under the last paragraph of Section 28 of Republic Act No. 6646 applies only to the offense of vote-buying, as the accused in Criminal Case No. 7034-99 in which the respondents-appellants gave their sworn statements was for vote-buying; this exemption will not apply to the charge for vote-selling which was the crime charged in I.S. No. 1-99-1080; (b) the July 6, 2000 Resolution No. 00-1378 of the petitioner had become final and executory; hence, it is no longer subject to review by the petitioner; and (c) the review of the Provincial Prosecutors resolution made by the petitioner was a reinvestigation of the case, and was done without prior authority of the Court. On February 20, 2001, the trial court issued an Order denying the Omnibus Motion of the petitioner. The petitioner filed a Motion for Reconsideration of the said order on March 31, 2000. The Provincial Prosecutor opposed the motion. On May 16, 2001, the trial court issued an Order denying the said motion holding that the petitioner had no absolute power to grant exemptions under Section 28 of Republic Act No. 6648. The trial court also held that the issue of whether or not the accused are exempt from prosecution and consequent conviction for vote-buying is a matter addressed to the Court and not to the petitioner. In its petition at bar, the petitioner raises the following issues for resolution, viz: (1) WHETHER THE ACCUSED ARE EXEMPT FROM CRIMINAL PROSECUTION PURSUANT TO SECTION 28 (4) OF R.A. No. 6646. (2) WHETHER THERE IS NO NEED FOR AN EN BANC RESOLUTION REVOKING THE AUTHORITY OF THE PROVINCIAL PROSECUTOR FROM HANDLING THE CASES FILED IN COURT SINCE THE COMELEC EN BANC ALREADY DIRECTED THE LAW DEPARTMENT TO FILE A MOTION TO DISMISS THESE CASES; [9] On the first issue, the petitioner contends that the complainants-appellees in I.S. No. 1-99-1080 failed to file any motion for the reconsideration of the petitioners Resolution No. 00-2453 reversing Resolution No. 00-1378 which, in turn, dismissed the respondents-appellants appeal. Neither did the said complainants-appellees file a petition for certiorari under Rule 65 of the Rules of Court from its Resolution No. 00-2453. Consequently, Resolution No. 00-2453 has become final and executory; hence, is binding and conclusive on the complainants-appellees, the Office of the Provincial Prosecutor and the herein respondent judge. The petitioner further asserts that the respondents-appellants motion for reconsideration in I.S. No. 1-99-1080 of COMELEC Resolution No. 00-1378 is not a prohibited pleading under Rule 13, Section 1, paragraph (d) of the COMELEC Rules of Procedure. According to the petitioner, the prosecution of election offenses is under its sole control. Any delegation of its authority to the Provincial or City Prosecutor to prosecute election cases may be revoked or withdrawn by it, expressly or impliedly, at any stage of the proceedings in the RTC. The petitioner, through Atty. Michael Valdez of its Law Department, had already entered his appearance for the petitioner as public prosecutor before the respondent judge. The Provincial Prosecutor was, thus, ipso facto divested of his authority, as deputized prosecutor, to represent the petitioner on the motion to dismiss and to prosecute the cases before the respondent judge. The respondent judge, for her part, avers that COMELEC Resolution No. 00-2453 was approved only by four of the seven members of the petitioner sitting en banc, and as such, could not have validly revoked Resolution No. 00-1378 which was, in turn, approved by unanimous vote of the Commission Members sitting en banc. It behooved the petitioner to conduct a joint reinvestigation in I.S. No. 1-99-1080 and EO No. 98-219 to

ascertain whether the respondents-appellants in I.S. No. 1-991080 were exempt from prosecution for vote-selling. Finally, according to the respondent judge, Section 2, Rule 34 of the COMELEC Rules of Procedure is contrary to Section 265 of the Omnibus Election Code, which does not allow the petitioner to withdraw its deputation of Provincial or City Prosecutors. We agree with the petitioner. Under Article IX, Section 2(b) of the Constitution, [10] the petitioner is empowered to investigate and, when appropriate, prosecute election offenses. The grant by the Constitution to the petitioner of the express power to investigate and prosecute election offenses is intended to enable the petitioner to assure the people of a fine, orderly, honest, peaceful and credible election.[11] Under Section 265 of the Omnibus Election Code, the petitioner, through its duly authorized legal officers, has the exclusive power to conduct preliminary investigation of all election offenses punishable under the Omnibus Election Code, and to prosecute the same. The petitioner may avail of the assistance of the prosecuting arms of the government.[12] In Section 2, Rule 34 of the COMELEC Rules of Procedure, all Provincial and City Prosecutors and/or their respective assistants are given continuing authority as its deputies to conduct preliminary investigation of complaints involving election offenses under election laws and to prosecute the same. The complaints may be filed directly with them or may be indorsed to them by the petitioner or its duly authorized representatives. [13] The respondents assertion that Section 2, Rule 34, of the COMELEC Rules of Procedure is a violation of Section 265 of the Omnibus Election Code has been laid to rest by this Court in Margarejo vs. Escoses,[14] wherein this Court ruled that until revoked, the continuing authority of the Provincial or City Prosecutors stays. The deputation of the Provincial and City Prosecutors is necessitated by the need for prompt investigation and dispensation of election cases as an indispensable part of the task of securing fine, orderly, honest, peaceful and credible elections. Enfeebled by lack of funds and the magnitude of its workload, the petitioner does not have a sufficient number of legal officers to conduct such investigation and to prosecute such cases. The prosecutors deputized by the petitioner are subject to its authority, control and supervision in respect of the particular functions covered by such deputation. The acts of such deputies within the lawful scope of their delegated authority are, in legal contemplation, the acts of the petitioner itself.[15] Such authority may be revoked or withdrawn any time by the petitioner, either expressly or impliedly, when in its judgment such revocation or withdrawal is necessary to protect the integrity of the process to promote the common good, or where it believes that successful prosecution of the case can be done by the petitioner. Moreover, being mere deputies or agents of the petitioner, provincial or city prosecutors deputized by the petitioner are expected to act in accord with and not contrary to or in derogation of the resolutions, directives or orders of the petitioner in relation to election cases such prosecutors are deputized to investigate and prosecute. Otherwise, the only option of such provincial or city prosecutor is to seek relief from the petitioner as its deputy. The withdrawal by the petitioner of its deputation of the provincial or city prosecutors may not be interfered with or overruled by the trial court. In this case, the petitioner had resolved to approve the recommendation of its Law Department and nullified the Resolution of the Provincial Prosecutor in I.S. No. 1-99-1080, and directed its Law Department, not the Provincial Prosecutor, to implement the said resolution and file the necessary motion to dismiss Criminal Cases Nos. 7960-00 to 7969-00 pending with the respondent judge. The Law Department did file before the respondent a Motion to Dismiss the said cases and a motion for the respondent to, in the meantime, suspend the proceedings. Atty. Michael L. Valdez, a legal officer of the petitioners Law Department, entered his appearance for the petitioner. The Provincial Prosecutor was thereby relieved of his deputation to represent the petitioner in connection with the said motion. However, the Provincial Prosecutor refused to give way to the Legal Officer of the petitioner and even opposed the said motion. The act of the Provincial Prosecutor constituted a defiance of the resolution of the petitioner and should have been ignored by the respondent judge. It bears stressing that when the Provincial Prosecutor conducted the preliminary investigation of I.S. No. 1-99-1080, and filed the Information in Criminal Cases Nos. 7960-00 to 7969-00, he did so because he had been duly deputized by the petitioner. He did not do so under the sole authority of his office.[16] The resolution of the Provincial Prosecutor in I.S. No. 1-99-1080 was subject to appeal by the aggrieved party to the

petitioner and may be reversed by the petitioner in the exercise of its supervision and control of its deputies/subordinates. [17] While it is the true that the petitioner initially dismissed the appeal of the respondents-appellants from the resolution of the Provincial Prosecutor in I.S. No. 1-99-1080, the petitioner later gave due course and granted the appeal, and nullified the resolution of the Provincial Prosecutor. Contrary to the latters claim, the petitioner did not conduct a reinvestigation of I.S. No. 1-99-1080. It merely acted on the appeal of the respondents-appellants. The respondent has failed to cite any COMELEC rule which requires the unanimous votes of all its Commissioners sitting en banc for the reversal or revocation of a prior resolution approved by unanimous vote. On the other hand, Section 5, Rule 2 of the COMELEC Rules of Procedure provides that: SEC. 5. Quorum; Votes Required. (a) When sitting en banc, four (4) Members of the Commission shall constitute a quorum for the purpose of transacting business. The concurrence of a majority of the Members of the Commission shall be necessary for the pronouncement of a decision, resolution, order or ruling. In this case, COMELEC Resolution No. 00-2453 was approved by four of the seven Commissioners of the petitioner, three of whom were on official leave. Irrefragably, the said resolution of the petitioner giving due course to the appeal of the respondents-appellants in I.S. No. 1-99-1087 was a valid reversal of COMELEC Resolution No. 00-1378 which initially denied the said appeal of the respondents-appellants. The conduct of a preliminary investigation of election offenses for the purpose of determining whether or not there is probable cause to believe that the accused is guilty of the offense charged and, therefore, should be subjected to trial is the function of the petitioner. [18] The Court will not even interfere with the finding of the petitioner absent a clear showing of grave abuse of discretion. Neither should the respondent. This principle emanates from the COMELECs exclusive power to conduct preliminary investigation of all election offenses and to prosecute the same except as may otherwise be provided by law. While it is the duty of the petitioner to prosecute those committing election offenses, it is equally its duty not to prosecute those offenses where no probable cause exists. The exclusion and inclusion of persons in Informations for election offenses is a prerogative granted by the law and the Constitution to the petitioner. [19] The petitioner may not be compelled to charge a person or include the latter in an Information when it believes that under the law and on the basis of the evidence in its possession, such person should not be charged at all. On the second issue, the petitioner contends that respondentsappellants in I.S. No. 1-99-1080, who were its witnesses in Criminal Case No. 7034-99, had been granted exemptions from prosecution and punishment for the offense of vote-buying, pursuant to Section 28(4) of Republic Act No. 6848. The petitioner avers that the respondents-appellants in I.S. No. 199-1080, are also exempt from criminal liability for the offense of vote-selling; hence, should not be charged with the latter offense. Thus, Criminal Cases Nos. 7960-00 to 7969-00 should be dismissed. The petitioner avers that the witnesses had executed their respective affidavits as to where and how the accused in Criminal Case No. 7034-99 committed the crimes of vote-buying. The petitioner also contends that the charges of vote-selling filed against the said witnesses in Criminal Cases Nos. 7960-00 to 7969-00 were designed to frighten and discourage them from testifying against the vote buyers, who are the accused in Criminal Case No. 7034-99. The respondent, thus, committed a grave abuse of discretion amounting to excess or lack of jurisdiction in denying its motion to dismiss Criminal Cases Nos. 7960-00 to 7969-00 grounded on the exemption of the accused therein. For her part, the respondent avers that under Section 265 of the Omnibus Election Code, both the vote-buyer and the voteseller must be charged, investigated and prosecuted by the petitioner for violation of Section 261(a)(b) of Republic Act No. 6648, as provided for in Section 28 of Rep. Act No. 6698. She cites the ruling of the Court in Lozano vs. Yorac, et al.,[20] to support her stand. She contends that vote-buyers cannot be exempt from criminal liability for vote-buying because there can be no vote-buying without someone selling his vote. Preliminary investigations of the charges for vote-buying and vote-selling must be jointly conducted. This is to enable the COMELECs Law Department to determine whether the witnesses in Criminal Case No. 7034-99 had voluntarily presented themselves to give information on the vote-buying of the accused in Criminal Cases Nos. 7960-00 to 7969-00. Based on the records, the witnesses in Criminal Case No. 703499 executed their sworn statements only after the preliminary

investigation of EO No. 98-219; hence, the Law Department of the petitioner could not have intelligently determined whether the said witnesses were exempt from prosecution or not. We agree with the petitioner. Section 261(a)(b) of the Omnibus Election Code penalizes votebuying and vote-selling and conspiracy to bribe voters. (a) Vote-buying and vote-selling. (1) Any person who gives, offers or promises money or anything of value, gives or promises any office or employment, franchise or grant, public or private, or makes or offers to make an expenditure, directly or indirectly, or cause an expenditure to be made to any person, association, corporation, entity, or community in order to induce anyone or the public in general to vote for or against any candidate or withhold his vote in the election, or to vote for or against any aspirant for the nomination or choice of a candidate in a convention or similar election process of a political party. ... (b) Conspiracy to bribe voters. Two or more persons, whether candidates or not, who come to an agreement concerning the commission of any violation of paragraph (a) of this section and decide to commit it. Not only principals but also accomplices and accessories are criminally liable for election offenses. [21] Section 28 of Republic Act No. 6648 governs the prosecution of the crimes of votebuying and vote-selling, thus: SECTION 28. Prosecution of Vote-buying and Vote-selling. The presentation of a complaint for violations of paragraph (a) or (b) of Section 261 of Batas Pambansa Blg. 881 supported by affidavits of complaining witnesses attesting to the offer or promise by or of the voters acceptance of money or other consideration from the relatives, leaders or sympathizers of a candidate, shall be sufficient basis for an investigation to be immediately conducted by the Commission, directly or through its duly authorized legal officers, under Section 68 or Section 265 of said Batas Pambansa Blg. 881. Under the last paragraph of the said provision, any person guilty of vote-buying and vote-selling who voluntarily gives information and willingly testifies on violations of paragraphs (a) and (b) of Section 261 of the Omnibus Election Code shall be exempt from prosecution and punishment for the offense with reference to which their information and testimony were given, without prejudice to their liability for perjury and false testimony, thus: SEC. 265. Prosecution. . . . ... The giver, offerer, and promisor as well as the solicitor, acceptor, recipient and conspirator referred to in paragraphs (a) and (b) of Section 261 of Batas Pambansa Blg. 881 shall be liable as principals: Provided, That any person, otherwise guilty under said paragraphs who voluntarily gives information and willingly testifies on any violation thereof in any official investigation or proceeding shall be exempt from prosecution and punishment for the offenses with reference to which his information and and testimony were given: Provided, further, That nothing herein shall exempt such person from criminal prosecution for perjury or false testimony. Under Section 265 of the Omnibus Election Code, the petitioner is mandated to conduct a preliminary investigation of all election offenses and to prosecute the same. The general rule is that the petitioner must investigate, charge and prosecute all those committing election offenses without any discrimination to ensure a clean, orderly and speedy elections. A joint preliminary investigation thereof must be conducted and the appropriate Information filed in court against all the offenders. To enable the petitioner to comply with its mandate to investigate and prosecute those committing election offenses, it has been vested with authority under the last paragraph of Section 28 of Republic Act No. 6648 to exempt those who have committed election offenses under Section 261 (a) and (b) but volunteer to give informations and testify on any violation of said law in any official investigation or proceeding with reference to which his information and testimony is given. The law is an immunity statute which grants transactional immunity to volunteers from investigation and prosecution for violation of Section 261 (a) and (b) of the Omnibus Election Code. [22] The immunity statute seeks a rational accommodation between the imperatives of the privilege against self-incrimination and the legitimate demands of government to encourage citizens, including law violators themselves, to testify against law violators. The statute operates as a complete pardon for the offenses to which the information was given. The execution of those statutes reflects the importance of the testimony therefor, and the fact that many offenses are of such character that the only persons capable of giving useful testimony are those implicated in the crimes. Indeed, their origins were in the context of such offenses and their primary use has been to

investigate and prosecute such offenses. [23] Immunity from suit is the only consequence flowing from a violation of ones constitutional right to be protected from unreasonable search and seizure, his right to counsel and his right not to be coerced into confessing.[24] By voluntarily offering to give information on violations of Section 261(a) and (b) and testify against the culprits, one opens himself to investigation and prosecution if he himself is a party to any violation of the law. In exchange for his testimony, the law gives him immunity from investigation and prosecution for any offense in Section 261(a) and (b) with reference to which his information is given. He is, therefore, assured that his testimony cannot be used by the prosecutors and any authorities in any respect, and that his testimony cannot lead to the infliction of criminal penalties on him.[25] The testimony of a voluntary witness in accord with his sworn statement operates as a pardon for the criminal charges to which it relates. [26] It bears stressing that one may voluntarily give information on violations of Section 261(a) and (b) and execute an affidavit before a complaint is filed with the petitioner, or any provincial or city prosecutor. This may be done even during the preliminary investigation or even after an Information is filed, on the condition that his testimony must be in accord with or based on his affidavit. If such witness later refuses to testify or testifies but contrary to his affidavit, he loses his immunity from suit, and may be prosecuted for violations of Section 261(a) and (b) of the Omnibus Election Code, perjury under Article 183 of the Revised Penal Code, or false testimony under Article 180 of the same Code. The power to grant exemptions is vested solely on the petitioner. This power is concomitant with its authority to enforce election laws, investigate election offenses and prosecute those committing the same. The exercise of such power should not be interfered with by the trial court. Neither may this Court interfere with the petitioners exercise of its discretion in denying or granting exemptions under the law, unless the petitioner commits a grave abuse of its discretion amounting to excess or lack of jurisdiction. There is no showing in the record that the petitioner committed abuse of discretion in granting immunity to the witnesses in Criminal Case No. 7034-99 and in nullifying the Resolution of the Provincial Prosecutor in I.S. No. 1-99-1080. It cannot be over-emphasized that the authority given to the petitioner to grant exemptions should be used to achieve and further its mandate to insure clean, honest, peaceful and orderly elections. The respondents reliance on the ruling of this Court in Lozano v. Yorac is misplaced. The issue of the application of the immunity statute was not raised in that case. In sum then, the Court finds that the respondent committed a grave abuse of discretion amounting to excess or lack of jurisdiction in denying the petitioners motion to dismiss Criminal Cases Nos. 7960-00 to 7969-00 before it and the motion for reconsideration of the said denial. IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed Orders dated February 20, 2001 and May 16, 2001 are SET ASIDE. Respondent Judge Dolores Espaol, RTC, Imus, Cavite, Branch 90, is directed to dismiss Criminal Cases Nos. 7960-00 to 7969-00. No costs. SO ORDERED.

EUGENIO "JING-JING" FAELNAR, petitioner, vs. PEOPLE OF THE PHILIPPINES, HON. RAMON CODILLA, in his capacity as Presiding Judge of the RTC, Branch 19, Cebu City, and COMMISSION ON ELECTIONS, respondents. DECISION MENDOZA, J.: This is a petition for certiorari to set aside the order, dated July 29, 1999, of the Regional Trial Court, Branch 19, Cebu City, denying petitioners motion to quash in Criminal Cases Nos. CBU-49941 [1] and 49942,[2]and the order, dated October 4, 1999, denying petitioners motion for reconsideration. The facts are as follows: Nexold On April 8, 1997, petitioner Eugenio Faelnar filed a certificate of candidacy for the position of Barangay Chairman of Barangay Guadalupe, Cebu City in the May 12, 1997 barangay elections. The following day, on April 9, 1997, a basketball tournament, dubbed the "2nd JING-JING FAELNARS CUP," opened at the Guadalupe Sports Complex and lasted up to April 30, 1997. This gave rise to a complaint for electioneering filed against petitioner and Cecilio Gillamac by Antonio Luy. The complaint alleged that the basketball tournament was actually a campaign gimmick staged outside the campaign period which officially started on May 1, 1997, in violation of the Omnibus Election Code. Luy alleged that: (1) during the tournament, a streamer bearing petitioners name was placed on the facade of the Guadalupe Sports Complex; (2) petitioners name was repeatedly mentioned over the microphone during the games; (3) the tournament was widely published in the local newspaper; and (4) a raffle sponsored by Cecilio Gillamac was held with home appliances given away as prizes. Petitioner denied participation in the tournament and claimed that its major sponsor was Gillamac Marketing, Inc. He contended that the same was purely a sporting event for the benefit of the youth. Manikx The complaint was investigated by Atty. Edwin Cadungog, election officer of Cebu City, who later recommended the dismissal of the charges against petitioner and Gillamac. On the other hand, the Law Department of the COMELEC recommended the filing of a case against petitioner and Gillamac for violation of 80, [3] in relation to 262,[4] of the Omnibus Election Code, and 50 of COMELEC Resolution No. 2888, in relation to 12 of Republic Act No. 6679.[5] In its Resolution No. 97-3040, dated September 16, 1997, the COMELEC en banc resolved to dismiss the case. However, on motion of Antonio Luy, the COMELEC reconsidered its action and ordered the filing of the necessary Informations against petitioner and Gillamac. Accordingly, petitioner and Gillamac were formally charged in the Regional Trial Court, Cebu City under two Informations in Criminal Cases Nos. CBU-49941 and CBU-49942. Petitioner moved to quash the information or, in the alternative, for reinvestigation of the case, contending that Resolution No. 97-3040, which dismissed the complaint against him, was immediately executory and could no longer be reconsidered. Misox Petitioners motion was denied by the trial court in an order dated July 29, 1999. He moved for reconsideration, but his motion was likewise denied by the court in its order, dated October 4, 1999. Hence this petition. Petitioner reiterates his argument in the trial court that COMELEC Resolution No. 97-3040, which dismissed the complaint against him, can no longer be reconsidered by the COMELEC. He contends that under the Rules of Procedure of the COMELEC, the dismissal of the complaint was immediately final and executory. Additionally, he avers that Antonio Luys Motion for Reconsideration of Resolution No. 973040 is a prohibited pleading under the Commissions Rules of Procedure. He avers that since the resolution in question was immediately final and executory, it was no longer within the power of the COMELEC to reconsider. Consequently, Resolution No. 98-2914, in directing the filing of charges in court, was "ultra-vires," and the Informations filed against him should have been quashed. [6] The petition is without merit. First. While the instant petition challenges the trial courts orders denying petitioners motion to quash the complaints in Criminal Cases Nos. CBU-49941 and 49942, the grounds relied upon by petitioner are directed at the validity of Resolution No. 98-2914 of the COMELEC. Thus, petitioner prays that said resolution be declared null and void. [7] This petition is nothing but an attempt to circumvent a final resolution of the COMELEC. Resolution No. 98-2914 was promulgated by the COMELEC en banc on October 29, 1998. Petitioners remedy was to seek its annulment by way of a special civil action of certiorari under Rule 65 of the Rules of Court. Rule 64, 2 provides: SEC. 2. Mode of Review. A judgment or final order or resolution of the Commission on Elections and the Commission on Audit may be brought by the aggrieved party to the Supreme Court on certiorari under Rule 65, except as hereinafter provided. Sec. 3 of said Rule provides that such petition shall be filed within 30 days from notice of the resolution sought to be reviewed. No such petition was ever filed. The present petition to set aside the orders of the trial court denying its motion to quash and motion for reconsideration was filed only on November 12, 1999, more than a

year after Resolution No. 98-2194 was promulgated on October 29, 1998. Consequently, the resolution is now final and binding upon the parties. Maniks Even if said resolution is erroneous for being contrary to the provisions of the Rules of Procedure of the COMELEC, the same is not void. Since it has become final and executory, it is already binding and effective. [8] Second. The above discussion should be enough to dispose of this petition. However, we think there is an important question of law that must not be left undecided, i.e., is the resolution of the COMELEC dismissing the criminal complaint for violation of the election laws immediately final and executory, as petitioner contends? The contention is untenable. In support of his claims, petitioner cites Rule 13, 1(d) of the Rules of Procedure of the COMELEC which provides: SECTION 1. What pleadings are not allowed. - The following pleadings are not allowed: .... (d) motion for reconsideration of an en banc ruling, resolution, order or decision; . . . . The above quoted provision, however, is taken from the 1988 COMELEC Rules of Procedure which has already been amended. The 1993 Rules of Procedure, now provides: Rule 13. - Prohibited Pleadings. SECTION 1. What pleadings are not allowed . The following pleadings are not allowed: .... (d) motion for reconsideration of an en banc ruling, resolution, order or decision except in election offense cases; . . . (Emphasis added). Under the present rule, therefore, a motion for reconsideration of a ruling, resolution or decision of the COMELEC en banc is allowed in cases involving election offenses. Here, there is no question that what is involved is a resolution of the COMELEC en banc in an election offense. Hence, a motion for reconsideration of such resolution is allowed under the Rules of Procedure of the COMELEC. Petitioner likewise invokes Rule 34, 10 of the COMELEC Rules of Procedure which provides that Manikanx SEC. 10. Appeals from the Action of the State Prosecutor, Provincial or City Fiscal . Appeals from the resolution of the State Prosecutor, or Provincial or City Fiscal on the recommendation or resolution of investigating officers may be made only to the Commission within ten (10) days from receipt of the resolution of said officials, provided, however that this shall not divest the Commission of its power to motu proprio review, revise, modify or reverse the resolution of the chief state prosecutor and/or provincial/city prosecutors. The decision of the Commission on said appeals shall be immediately executory and final. (Emphasis added) Even a cursory reading of the above rule, however, will show that it governs appeals from the action of the State Prosecutor or Provincial or City Fiscal on the recommendation or resolution of investigating officers. The present case does not involve such an appeal but a resolution of the COMELEC itself in the exercise of its exclusive power to conduct preliminary investigation of election offense cases. [9] Such distinction can be easily explained. In cases where the State Prosecutor, or Provincial or City Fiscal exercises the delegated power[10] to conduct preliminary investigation of election offense cases, after the investigating officer submits his recommendation, said officers already resolve the issue of probable cause. From such resolution, appeal to the COMELEC lies. As the exercise by the Commission of its review powers would, at this point, already constitute a second look on the issue of probable cause, the COMELECs ruling on the appeal would be immediately final and executory. Oldmisox On the other hand, if the preliminary investigation of a complaint for election offense is conducted by the COMELEC itself, its investigating officer prepares a report upon which the Commissions Law Department makes its recommendation to the COMELEC en banc on whether there is probable cause to prosecute. It is thus the COMELEC en banc which determines the existence of probable cause. [11] Consequently, an appeal to the Commission is unavailing. Under the present Rules of Procedure of the COMELEC, however, a motion for reconsideration of such resolution is allowed. This effectively allows for a review of the original resolution, in the same manner that the COMELEC, on appeal or motu proprio, may review the resolution of the State Prosecutor, or Provincial or City Fiscal. Reliance by petitioner upon Rule 34, 10 of the COMELEC Rules of Procedure is thus without any basis. WHEREFORE, the petition for certiorari is DENIED. SO ORDERED.

HERMAN TIU LAUREL, petitioner, vs. THE HONORABLE PRESIDING JUDGE, REGIONAL TRIAL COURT OF MANILA, BRANCH 10, and the COMMISSION ON ELECTIONS,respondents. Ncm DECISION QUISUMBING, J.: Petitioner seeks to annul the Court of Appeals decision, as well as its resolution denying reconsideration, in C.A. G.R. SP No. 42618, which upheld the trial courts denial of his motion to quash the charges against him for falsification of public documents and violation of the Omnibus Election Code. The factual antecedents are as follows: On 13 December 1995, the Hon. Bernardo P. Pardo, Chairman of respondent COMELEC [1] sent a verified letter-complaint to Jose P. Balbuena, Director of the Law Department of the said respondent, charging petitioner with "Falsification of Public Documents" and violation of [Section 74] of the Omnibus Election Code, stating in the same letter the facts on which he relies upon to support his accusations, which are, inter alia, that petitioner "was born in Manila on October 8, 1951 xxx (and) (a)t the time of his birth, both his father and mother were Chinese citizens. xxx On February 20, 1995, Herman Tiu Laurel filed a certificate of candidacy with the Law Department xxx for the position of Senator, stating that he is a natural-born Filipino citizen xxx. This statement xxx is false and constitutes not only a falsification of public documents but also a violation of the Omnibus Election Code." On the basis of the said Complaint, an investigation was conducted by the COMELEC Law Department, docketed as EO Case No. 95-843 entitled The Hon. Bernardo P. Pardo, Complainant, versus Herman Tiu Laurel, Respondent. Thereafter, or on 18 January 1996, a Report was made by the said Department recommending the filing of an Information against petitioner for violation of the Omnibus Election Code, as well as for Falsification under Articles 171 and 172 of the Revised Penal Code. During an en banc meeting of the COMELEC held on 25 January 1997, the said Report was deliberated upon, after which COMELEC resolved: "1. To file the necessary information against respondent Herman Tiu Laurel with the appropriate court for violation of Section 74, in relation to Section 262 of the Omnibus Election Code, the prosecution of which shall be handled by a lawyer to be designated by the Director IV of the Law Department with the duty to render periodic report after every hearing. 2. To file a criminal complaint with the appropriate court against the same respondent for falsification defined and penalized under paragraph 4, Article 171, in relation to paragraph 1, Article 172 of the Revised Penal Code." Ncmmis Pursuant thereto, on 05 February 1995, an information for "Violation of Section 74, in relation to Section 262 of the Omnibus Election Code" was filed by Director Jose F. Balbuena against petitioner, which was raffled to respondent court, docketed as Crim. Case No. 96-147550. On 14 February 1996, or after the filing of the Information, plaintiff filed a Motion for Inhibition in EO Case No. 95-843, seeking the inhibition of the entire COMELEC, alleging that "(r)espondent (petitioner herein) is not confident that this present forum is capable of fairly and impartially rendering a resolution on the merits of the abovecaptioned complaint", [stating] his reasons therefor. In a Minute Resolution, the COMELEC informed petitioner "that the Commission has lost jurisdiction over the case as it is now before the Regional Trial Court of Manila xxx." With respect to the Information, plaintiff in turn filed on 07 May 1996 a Motion to Quash the same, alleging lack of jurisdiction and lack of authority on the part of

Director Balbuena to file the information. On 16 May 1996, respondent COMELEC, through Director Aliodem D. Dalaig of the Law Department, filed an Opposition thereto. On 20 May 1996, plaintiff filed his Reply. On 11 September 1996, respondent court issued the first questioned order, the decretal portion of which reads: "WHEREFORE, in view of all the foregoing, the Motion to Quash together with the Alternative Motions contained therein is hereby denied." To this, petitioner duly excepted on 09 October 1996 by filing a Motion for Reconsideration, which respondent court denied in its second questioned order dated 29 October 1996."[2] From the denial of his Motion for Reconsideration, petitioner then filed a petition for certiorari before the Court of Appeals. He alleged, in essence, that the COMELEC violated its own rules of procedure on the initiation of the preliminary investigation and the consequent filing of a criminal complaint against him.[3] The Court of Appeals upheld the trial court and ruled that the proper procedure was followed by the COMELEC. According to the Court of Appeals, the complaint signed by Pardo was in the nature of a motu proprio complaint filed by the COMELEC and signed by the Chairman, pursuant to Rule 34, Section 4 of the COMELEC Rules of Procedure. Pardos referral of the complaint to the COMELECs Law Department and the subsequent preliminary investigation were likewise done in accordance with the rules. The complaint being an official act, it bears the presumption of having been regularly performed. Scnc m The Court of Appeals added that even if the complaint were to be considered as a complaint filed by a private citizen, still, Pardo as head of the COMELEC had the authority to direct commencement of a preliminary investigation in connection therewith. At the same time, however, the Court of Appeals also directed the trial court to remand the case to the COMELEC for reception of petitioners motion for reconsideration of the COMELEC resolution dated January 25, 1996,[4] which approved the filing of a criminal complaint against petitioner. Petitioner claimed that he failed to receive copy of this resolution and, consequently, failed to move for its reconsideration. [5] The Court of Appeals denied petitioners motion for reconsideration of its decision. Hence, the present petition, in which petitioner raises the following issues: A. It was error for the Court of Appeals to hold there was no flaw in the procedure followed by the COMELEC in the conduct of the preliminary investigation. B. The Court of Appeals erred in holding that petitioners protestations on COMELECs having acted as complainant, investigator, prosecutor, judge and executioner in the conduct of the preliminary investigation ring hollow. [6] Petitioner asserts that the preliminary investigation was defective since the complaint was not initiated in accordance with applicable law and rules. He alleges that the information filed with the trial court was void and respondent judge could not have acquired jurisdiction over the case. Petitioner cites Section 3, Rule 34 of the COMELEC Rules of Procedure, which provides: "Sec. 3. Initiation of complaint. -- Initiation of complaint for election offenses may be done motu proprio by the Commission, or upon written complaint by any citizen xxx." (Emphasis by petitioner) Petitioner contends that the complaint filed by Pardo was not in the nature of a motu proprio complaint filed by the COMELEC since Pardo, by himself alone, was not the COMELEC. If the complaint were to be considered as one filed by a private citizen, then Pardo as a citizen did not have the requisite authority to file his complaint directly with the COMELECs Law Department. Petitioner contends that only the COMELEC has the capacity to do so, under Section 5 of said Rule 34. Sdaa miso "SEC. 5. Referral for Preliminary Investigation. - If the complaint is initiated motu proprio by the Commission, or is filed with the Commission by any aggrieved party, it shall be referred to the Law Department for investigation. xxx" Petitioner argues that a resolution of the COMELEC en banc is necessary for the referral of a complaint to the Law Department. He asserts that Pardo did not have the authority, as a private citizen, to directly file his complaint with the Law Department. According to petitioner, Pardo should have filed his complaint with the COMELEC and the latter should have passed a resolution en banc referring the matter to the Law Department.[7] Petitioner insists that only the COMELEC, through an en banc resolution, may direct the Law Department to conduct an investigation. Thus, it was wrong for Pardo

to direct the Law Department to conduct a preliminary investigation, as he did in his complaint, and the latter "could and should not have acted pursuant to Chairman Pardos complaint." [8] Moreover, petitioner avers that the resolution of the COMELEC en banc dated January 25, 1996, issued after the preliminary investigation and which recommended the filing of charges against him, did not cure the irregularities present during the preliminary investigation. Lastly, petitioner contends he could no longer expect impartiality and fairness from the COMELEC. In his Memorandum, petitioner declared, "This was the then COMELEC boss, personally and by himself, (who) gathered the evidence in an attempt to nail down petitioner. The then COMELEC Chairman was the complainant as well. And, as his letter-complaint incontrovertibly shows, it was also the then COMELEC Chairman who directed that a preliminary investigation be conducted and completed within 30 days."[9] Petitioner concludes that the COMELEC could not but be partial in this case, hence the proceedings are fatally biased against him. Sdaad On the other hand, the COMELEC in its Memorandum[10] contends that the complaint was properly filed since Section 4(b), Rule 34 of the COMELEC Rules of Procedure specifically states that the complaint shall be filed with the Law Department. It is of no moment that the complainant was, at that time, the chairman of the COMELEC himself. This should not preclude him from filing a complaint with the COMELEC for alleged violations of election laws, provided he does not participate in the discussions regarding the case. The COMELEC points out that, indeed, Pardo did not participate in the deliberation of his own complaint. On the charge that there can be no fairness in the investigation of the complaint filed by the COMELEC chairman, the COMELEC points out that the Commission is a collegiate body. It is the entire membership of the Commission that deliberates and decides on cases brought before it and not just the chairman. To disallow the COMELEC in this case from conducting a preliminary investigation would be to tie the hands of the Commission and prevent it from performing its constitutional mandate. It could also cause a deluge in the number of election law violators. In addition, the COMELEC asserts that petitioner was given the opportunity to present evidence in his defense while Pardos complaint was being investigated by the Commission. The Constitution gives the COMELEC the power to investigate and, where appropriate, to prosecute cases of violations of election laws. [11] This power is an exclusive prerogative of the COMELEC. [12] There are two ways through which a complaint for election offenses may be initiated. It may be filed by the COMELEC motu proprio, or it may be filed via written complaint by any citizen of the Philippines, candidate, registered political party, coalition of political parties or organizations under the partylist system or any accredited citizens arms of the Commission.[13] Motu proprio complaints may be signed by the Chairman of the COMELEC and need not be verified. [14] On the other hand, complaints filed by parties other than the COMELEC must be verified and supported by affidavits and other evidence. [15] The complaint shall be filed with the COMELEC Law Department or with the offices of election registrars, provincial election supervisors or regional election directors, or of the state prosecutor, provincial or city fiscal.[16] Whether initiated motu proprio or filed with the COMELEC by any other party, the complaint shall be referred to the COMELEC Law Department for investigation. Upon direction of the Chairman, the preliminary investigation may be delegated to any lawyer of the Department, any Regional Election Director or Provincial Election Supervisor, or any COMELEC lawyer.[17] Scs daad The complaint subject of this case was filed by then COMELEC Chairman Bernardo P. Pardo. It was addressed to Jose P. Balbuena, director of the COMELEC Law Department. It starts with the following statement: "I hereby charge former senatorial candidate Herman Tiu Laurel with falsification of public documents and violation of the Omnibus Election Code."[18] In the same complaint, Pardo directed the conduct of a preliminary investigation of the charges he leveled against Tiu Laurel, to be completed within 30 days. In the verification at the end of the complaint, he stated that, "I am the complainant in the ... letter complaint..." [19] Was the complaint one initiated by the COMELEC motu proprio? To our mind, the complaint in question in this case is one filed by Pardo in his personal capacity and not as chairman of the COMELEC. This is obvious from the opening sentence of the complaint, which starts with "I hereby charge..." It is also manifest in the verification of the complaint in which Pardo stated that he is the complainant therein. The fact that the complaint was verified is another indication that it was filed by a private citizen, for only such complaints require verification. Pardo must have known this. Besides, the COMELEC itself, in its Comment filed before this Court, admitted that the complaint was initiated in Pardos "individual capacity."[20]

Could Pardo then have, in his personal capacity, filed his complaint directly with the COMELECs Law Department? We believe he could, under Rule 34, Section 4 of the COMELEC Rules of Procedure, which clearly provides: SEC. 4. Form of Complaint and Where to File . xxxSup rema (b) The complaint shall be filed with the Law Department of the Commission; or with the offices of the Election Registrars, Provincial Election Supervisors or Regional Election Directors, or the State Prosecutor, Provincial Fiscal or City Fiscal..."(Underscoring supplied.) But petitioner insists, and this is the crux of his arguments, that absent an en banc resolution directing the Law Department to conduct a preliminary investigation, there could be no valid investigation. Without a valid preliminary investigation, no valid information could be filed against him. He cites Rule 34, Section 5 of the COMELEC Rules of Procedure in support of his claim. "SEC. 5. Referral for Preliminary Investigation .-- If the complaint is initiated motu proprio by the Commission, or is filed with the Commission by any aggrieved party, it shall be referred to the Law Department for investigation. Upon direction of the Chairman of the Commission, the preliminary investigation may be delegated to any lawyer of said Department, or to any of the Regional Election Directors or Provincial Election Supervisors, or any lawyer of the Commission." However, we fail to see from Section 5 the requirement that only the COMELEC en banc may refer a complaint to the Law Department for investigation. What Section 5 states only is that it is the Law Department, not another office, of the COMELEC which may conduct an investigation into the allegations in the complaint. There is no specific requirement as to how referral to the department shall be made. We cannot read into the rules what simply is not there. Section 5 refers to two situations, one of which is where a complaint filed by a party other than the COMELEC is addressed to the Commission itself. Since it is not the entire Commission that conducts the preliminary investigation, the complaint must necessarily be referred to its Law Department. Under the rules, this department is tasked with conducting preliminary investigations of complaints filed before the COMELEC. [21] Where, as in this case, the complaint was directly filed with the Law Department under Section 4 of Rule 34, obviously there is no need to refer such complaint to the same Law Department. There is likewise no rule against the COMELEC chairman directing the conduct of a preliminary investigation, even if he himself were the complainant in his private capacity. In fact, under Section 5, the preliminary investigation may be delegated to any of those officials specified in the rule, upon the direction of the COMELEC chairman. We agree with the Court of Appeals observation that, Juris "[E]ven if we regard the complaint to have been filed by Chairman Pardo as a private citizen, there is no rhyme nor reason why he cannot direct the Law Department to perform an investigation and delegate the conduct of preliminary investigation to any lawyer of said Department in his capacity as Chairman of the Commission on Elections. The justification is, in so doing, he was merely acting pursuant to Section 5 of Rule 34 of the COMELEC Rules of Procedure. No clash or conflict could be attributed in his performance of the said acts, one as a private citizen, and the other as Chairman of COMELEC, as it would not be him but another lawyer in the Legal Department that would actually be carrying out the preliminary investigation. The outcome of the inquiry, therefore, could not, per se, be considered as sullied with bias."[22] Clearly, the applicable rules were followed in the conduct of the preliminary investigation of Pardos complaint against petitioner, contrary to the latters assertion. Anent petitioners contention that bias tainted the preliminary investigation, we again quote with approval from the ruling of the Court of Appeals: "There may be evidence that the relations between petitioner and Chairman Pardo are not exactly cordial. However, this should not detract from the validity of the preliminary investigation and corresponding Information filed against the petitioner, for two (2) important reasons: First, the records will readily support the conclusion that

there is sufficient evidentiary basis to at least find probable cause to indict the petitioner for violation of the Omnibus Election Code; and second, it also appears from the records that, apart from directing the Law Department to launch an investigation, Chairman Pardo had no other participation in the proceedings which led to the filing of the Information." [23] The entire COMELEC cannot possibly be restrained from investigating the complaint filed against petitioner, as the latter would like the courts to do. The COMELEC is mandated by no less than the Constitution to investigate and prosecute, when necessary, violations of election laws. This power is lodged exclusively with the COMELEC. For the entire Commission to inhibit itself from investigating the complaint against petitioner would be nothing short of an abandonment of its mandate under the Constitution and the Omnibus Election Code. This we cannot allow. Sc juris As regards the alleged failure of the COMELEC to serve petitioner with a copy of its resolution recommending the filing of an information against him, this is denied by the COMELEC. However, the Court of Appeals found that, indeed, there is no showing that petitioner was ever sent a copy of said resolution. This factual finding is binding upon this Court. Thus, as ruled by the Court of Appeals, the case should be remanded to the COMELEC for reception of petitioners motion for reconsideration of the January 25, 1996 resolution, if petitioner is still interested in submitting one. The proceedings in Criminal Case No. 96147550 should be suspended while resolution of the motion that may be filed is pending. WHEREFORE, the instant petition is hereby DENIED and the decision of the Court of Appeals in CA-G.R. SP No. 42618 is AFFIRMED. SO ORDERE

COMMISSION ON ELECTIONS, petitioner, vs. HON. LORENZO R. SILVA, JR., as Presiding Judge, RTC, Branches 2 and 3, Balanga, Bataan, HON. BENJAMIN T. VIANZON, as Presiding Judge, Branch 1, of the same Court, ERASTO TANCIONGCO, and NORMA CASTILLO, respondents. DECISION MENDOZA, J.: This case presents for determination the extent of control which those designated by the Commission on Elections have in the prosecution of election offenses. The facts are not in dispute. Pursuant to its power under Art. IX-C, 2(6) of the Constitution, the COMELEC charged private respondents Erasto Tanciongco and Norma Castillo with violations of 27 of R.A. No. 6646, together with Zenon Uy, in twelve separate informations filed with the Regional Trial Court of Bataan. Tanciongco, who is provincial prosecutor of Bataan, was vice chairman, while Castillo, who is division superintendent of schools, was secretary of the Provincial Board of Canvassers of Bataan. Uy, who is assistant regional director of elections, was chairman of the board. In each information, the three were accused of having tampered, in conspiracy with one another, with the certificates of canvass by increasing the votes received by then senatorial candidate Juan Ponce Enrile in certain municipalities of Bataan in the May 8, 1995 elections. The twelve cases were raffled to three branches of the court presided over by respondent judges, Honorable Lorenzo R. Silva Jr. (Branches 2 and 3) and Honorable Benjamin T. Vianzon (Branch 1). On October 30, 1996, Tanciongco and Castillo filed a joint Omnibus Motion for Examination of Evidence to Determine the Existence of Probable Cause; Suspension of Issuance of Warrant of Arrest; and Dismissal of the Cases. Chief State Prosecutor Jovencito Zuo, who had been designated by the Commission on Elections to prosecute the cases, filed a comment joining in private respondents request. On the other hand, the complainant, Aquilino Q. Pimentel, Jr. expressed no objection to the dismissal of the cases against the two.[1] In orders dated March 31 and April 7, 1997 respectively, Judges Silva and Vianzon summarily dismissed the cases against private respondents.[2] The COMELEC sought to appeal the dismissal of the cases to the Court of Appeals by filing notices on April 18, 1997, [3] but the judges denied due course to its appeal. The sole basis for the denials was the fact that the prosecutor, whom the COMELEC had deputized to prosecute the cases, had earlier taken a contrary stand against the COMELEC. Thus, in his order, dated May 16, 1997, denying due course to the Notice of Appeal of the COMELEC in Criminal Case Nos. 6439, 6441, 6443, 6445, 6646, 6647, and 6470, Judge Silva, Jr. stated: A Notice of Appeal dated April 18, 1997, in the above-entitled cases was filed on April 23, 1997 by Jose P. Balbuena, Director IV, Law Department, Commission on Elections, from the Order of the Court dated March 31, 1997, insofar as it dismissed the above-entitled cases as regards the accused Erasto Tanciongco and Norma P. Castillo. Chief State Prosecutor Jovencito Zuo who has been authorized by the Commission on Elections to prosecute the cases, was required to comment on the Notice of Appeal which does not bear his signature. In his comment dated May 9, 1997, the Chief State Prosecutor states that he cannot give his conformity to the Notice of Appeal filed by Jose P. Balbuena of the Comelec as it would not be consistent with his position that he would abide by whatever finding the court may come up with on the existence of probable cause as against the accused Erasto Tanciongco and Norma Castillo. Consequently, the notice of appeal filed by Jose P. Balbuena is unauthorized and without legal effect. WHEREFORE, the Notice of Appeal dated April 13, 1997, filed by Jose P. Balbuena is denied due course.[4] SO ORDERED. Judge Vianzon took a similar course in Criminal Case Nos. 6438, 6440, 6442, 6444 and 6471. In his order of May 23, 1997, he stated: Considering that Chief State Prosecutor Jovencito R. Zuo has filed his comment to the Notice of Appeal filed by Director Jose P. Balbuena of the COMELEC, manifesting his non-conformity with the same because of his previous commitment to abide by the ruling of this court on the Omnibus Motion filed by accused Tanciongco and Castillo and the Motion to Quash filed by accused Uy, and considering further that Chief State Prosecutor has been duly deputized by the COMELEC en banc to handle the prosecution of this case, the said Notice of Appeal is hereby DENIED. SO ORDERED.[5] Hence this petition for certiorari and mandamus seeking the nullification of the orders of the two judges, denying due course to the Notices of Appeal of the COMELEC.[6] The issue is not just the right of the prosecution to appeal from the previous orders of dismissal. It is settled that the approval of a notice of appeal, in cases where no record on appeal is required by law, is a ministerial duty of the court to which the notice of appeal is addressed, provided that such appeal is timely filed. [7] Of course in criminal cases the prosecution cannot appeal if the accused would thereby be placed in double jeopardy, but here the cases were

dismissed by the judges before the accused were arraigned and, therefore, jeopardy has not attached. For while the right to appeal is statutory and is not constitutional, once it is granted by statute, its denial would be a violation of the due process clause of the Constitution. [8] The ultimate question concerns the authority of the COMELEC prosecutor. More precisely, the question is, who has authority to decide whether or not to appeal from the orders of dismissal the COMELEC or its designated prosecutor? The trial courts held the view that the Chief State Prosecutors decision not to appeal the dismissal of the cases, consistent with his earlier decision to leave the determination of the existence of probable cause to the trial courts, was binding on them. We think this view to be mistaken. The authority to decide whether or not to appeal the dismissal belongs to the COMELEC. Art. IX-C, 2(6) of the Constitution expressly vests in it the power and function to investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices. As this Court has held: In effect the 1987 Constitution mandates the COMELEC not only to investigate but also to prosecute cases of violation of election laws. This means that the COMELEC is empowered to conduct preliminary investigations in cases involving election offenses for the purpose of helping the Judge determine probable cause and for filing an information in court. This power is exclusive with COMELEC.[9] Indeed, even before the present Constitution, the Omnibus Election Code (B.P. Blg. 881) and, before it, the 1971 Election Code (R.A. No. 6388) and the 1978 Election Code (P.D. No. 1296) already gave the COMELEC the exclusive power to conduct preliminary investigation of all election offenses and to prosecute them in court. [10] The purpose is to place in the hands of an independent prosecutor the investigation and prosecution of election offenses. [11] Prosecutors designated by the COMELEC to prosecute the cases act as its deputies. They derive their authority from it and not from their offices. [12] Consequently, it was beyond the power of Chief State Prosecutor Zuo to oppose the appeal of the COMELEC. For that matter, it was beyond his power, as COMELEC-designated prosecutor, to leave to the trial courts the determination of whether there was probable cause for the filing of the cases and, if it found none, whether the cases should be dismissed. Those cases were filed by the COMELEC after appropriate preliminary investigation. If the Chief State Prosecutor thought there was no probable cause for proceeding against private respondents, he should have discussed the matter with the COMELEC and awaited its instruction. If he disagreed with the COMELECs findings, he should have sought permission to withdraw from the cases. But he could not leave the determination of probable cause to the courts and agree in advance to the dismissal of the cases should the courts find no probable cause for proceeding with the trial of the accused. It was, therefore, grave abuse of discretion on the part of the respondent judges to rely on the manifestation of Chief State Prosecutor Zuo as basis for denying due course to the notices of appeal filed by the COMELEC. Whether respondent judges also erred in dismissing the cases filed by the COMELEC indeed, whether the trial courts at that stage were justified in inquiring into the existence of probable cause because of exceptional reasons [13] must be determined in the appeal after it is allowed. Here we only hold that whether the orders of dismissal should be appealed is for the COMELEC to decide, not for Chief State Prosecutor Zuo whom it has merely deputized to represent it in court. Private respondents have nothing to say on this question. Their sole contention is that the petition should be dismissed because , so it is argued, it should have been brought in the name of the People of the Philippines and have been filed by the Solicitor General. This contention is without merit. This is not the first time the COMELEC has come to this Court in its own name in regard to an action taken against it in cases filed by it in the lower courts. In Commission on Elections v. Court of Appeals [14] the COMELECs right to appeal from the decision of the Court of Appeals dismissing a criminal case filed by it was sustained. This Court said: The COMELEC has sufficient interest in filing the petition [for certiorari] to set aside the decision of the Court of Appeals having sustained the demurrer to evidence in the criminal case against private respondent for violation of the Election Laws. This is so, for it is not only entrusted with the duty to enforce the said law but also to prosecute all election offenses. Under the Constitution, the COMELEC has the power to prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices (Art. IX [C], Sec. 2[6]), and under the Omnibus Election Code, (BP Blg. 881), it may avail of the assistance of other prosecution arms of the government (Sec. 265). Thus, the COMELEC Rules of Procedure gave the Chief State, Provincial and City Prosecutors a continuing authority as deputies to prosecute offenses punishable under the Election laws (COMELEC Rules of Procedure, Part 12, Rule 34, Sec. 2). We have allowed government agencies to handle their cases before appellate courts, to the exclusion of the Solicitor General. [15]

In Commission on Elections v. Romillo [16] the right of the COMELEC to file a petition for certiorari and mandamus to question the dismissal of criminal cases which it had filed for violation of the Election Code was assumed. Although the petition was eventually dismissed, the ruling was based not on the lack of authority of the COMELEC to file the petition but on this Courts determination that the dismissal of the criminal cases by the trial court was correct, considering that the evidence was insufficient. Indeed, under the Rules of Court, the proper party who can file a petition for certiorari, prohibition or mandamus is the person aggrieved by the action of a tribunal, board or official because such action was taken without or in excess of jurisdiction or with grave abuse of discretion or in willful neglect of duty. [17] In contrast to an appealed case which is brought in the name of the parties in the court of origin and for this reason retains its title below, the case, which is an original action, is brought by him.[18] In this case, denied by the courts below the authority to prosecute the criminal actions because they recognized instead the Chief State Prosecutor as the representative of the People, the COMELEC had to bring this suit to seek vindication of its authority. Naturally, the petition has to be brought in its name as the aggrieved party. In Assistant Provincial Fiscal of Bataan v. Dollete , [19] this Court granted a petition for certiorari, which the fiscal had filed in his name, to annul an order of the trial court denying his right to make an independent examination of the witnesses for the prosecution for the purpose of satisfying himself of the sufficiency of the evidence. Considering the authority of the COMELEC over the prosecution of election offenses, its decision to bring this instant petition for certiorari and mandamus is conclusive on the Solicitor General. It would simply be a matter of referring this case to the Solicitor General so that, if he agrees, he may take over the conduct of this case. Otherwise, the COMELEC could just continue handling this case as it has actually done. Hence, the omission of the COMELEC to refer this petition to the Office of the Solicitor General for representation should be disregarded. To make the filing of this case depend on his decision would be to place him in the same position in which respondent judges placed Chief State Prosecutor Zuo. That would further negate the constitutional function of the COMELEC. WHEREFORE, the petition is GRANTED. The orders dated May 16, 1997 and May 23, 1997 of respondent judges are hereby SET ASIDE as null and void and respondent judges are ORDERED to give due course to the appeals of petitioner from their respective orders in Criminal Case Nos. 6438, 6440, 6442, 6444 and 6471 (filed in Branch 1); Criminal Case Nos. 6439, 6441, 6443, 6445, 6446, and 6470 (filed in Branch 2); and Criminal Case No. 6447 (filed in Branch 3). SO ORDERED.

KILOSBAYAN, INC., FERNANDO A. SANTIAGO, QUINTIN S. DOROMAL, EMILIO C. CAPULONG JR., RAFAEL G. FERNANDO, petitioners, vs. COMMISSION ON ELECTIONS, SALVADOR ENRIQUEZ, FRANKLIN DRILON, CESAR SARINO, LEONORA V. DE JESUS, TIBURCIO RELUCIO, ROLANDO V. PUNO, BENITO R. CATINDIG, MANUEL CALUPITAN III, VICENTE CARLOS, FRANCISCO CANCIO, JIMMY DURANTE, MELVYN MENDOZA, respondents. DECISION HERMOSISIMA, JR., J.: Special Provision No. 1 of the Countrywide Development Fund (CDF) under Republic Act No. 7180, otherwise known as the General Appropriations Act (GAA) of 1992 allocates a specific amount of government funds for infrastructure and other priority projects and activities. In order to be valid, the use and release of said amount would have to proceed upon strict compliance with the following mandatory requirements: (1) approval by the President of the Philippines; (2) release of the amount directly to the appropriate implementing agency; and (3) list of projects and activities. In a letter, dated March 17, 1992, respondent Cesar Sarino, the then Secretary of Interior and Local Government, requested for authority to negotiate, enter into and sign Memoranda of Agreements with accredited Non-Governmental Organizations (NGOs) in order to utilize them to projects of the CDF provided for under R.A. No. 7180. Thereafter, in an undated letter [1], respondent Franlin Drilon, the then Executive Secretary, granted the above-mentioned request of Secretary Sarino. Such an authority was extended to all the Regional Directors of the Department of Interior and Local Government (DILG). Pursuant to the above-described authority granted him as the then Regional Director of the DILG-NCR, respondent Tiburcio Relucio, on April 24, 1992, entered in the Memorandum of Agreement [2] with an accredited NGO known as Philippine Youth Health and Sports Development Foundation, Inc. (PYHSDFI). The PYHSDFI was registered with the Securities and Exchange Commission (SEC) on October 25, 1985 as a non-stock, non-profit foundation with principal address at AFMC Building, Amorsolo Street, Makati City.[3] Its incorporators were private respondents Benito Catindig, President; Manuel Calupitan, Vice-president; Francisco Cancio, Treasurer; Melvin Mendoza, Secretary; and Ronaldo Puno, Chairman.[4] The PYHSDFI was organized to promote among the youth, consciousness and greater involvement and participation in sports and cultural development activities through training camps and demonstration seminars conducted by qualified experts in the field. [5] Not long after its incorporation, that is, in 1987, the PYHSDFI suspended its operations because of lack of fund donations and the migration to the United States of many of its members. [6] The foundation became active again in October, 1991.[7] In order to be eligible for financial assistance, the PYHSDFI, on December 12, 1991, applied with DILG for accreditation as NGO in Accordance with the guidelines prescribed in Memorandum Circular No. 90-07, dated January 31, 1990.[8] On March 23, 1992, the PYHSDFI approved Board Resolution No. 7, series of 1992, requesting for allocation from the governments CDF in order to implement its various sports, health, and cultural activities in specific areas in Metro Manila. [9] Hence, the Memorandum of Agreement dated April 24, 1992 was entered into by PYHSDFI President Catindig and DILG-NCR Regional Director Relucio. In compliance with accreditation requirements of the DILG, the PYHSDFI, on April 27, 1992, filed with SEC a new set of by-laws. [10] Under the said Memorandum of Agreement, it was the express responsibility of the DILG to effect the release and transfer to PYHSDFI of the amount of Seventy Million Pesos (P70,000,000.00)[11] from the aggregate allocation of the CDF for complete implementation of the foundations sports, health and cultural work program. Respondent Salvador Enriquez, as Secretary of the Department of Budget and Management (DBM), signed April 22, 1992 and released on April 30, 1992, Advice of Allotmet (AA) No. BC-8494-92-215 dated April 22, 1992, allocating the amount of Seventy Million Pesos from the CDF under object 200-10 to cover financial assistance for sports, health and cultural programs and other related activities in various barangays in the National Capital Region.[12] The release of Seventy Million Pesos was made in several checks:[13] Date PNB Check No. Amount May 5, 1992 138051 P23,000,000.00 May 5, 1992 138052 P23,000,000.00 May 6, 1992 138060 P24,000,000.00 During the hearing of the Senate Committee on Finance on November 22, 1993, DILG Budget Officer Rafael Barata confirmed the above allotment as part of the amount of Three Hundred Thirty Million Pesos (P330,000,000.00) that was released by DBM from the 1992 CDF. The exact amount released to DILG-NCR was P76,099,393.00 while the amounts released to the other regions are as follows: Region I P14,192,834.00 Region II 108,000.00 Region III 19,115,000.00

Region IV 74,131,150.00 Region V 25,047,991.00 Region VI 5,545,000.00 Region VII 20,159,500.00 Region VIII 23,006,600.00 Region IX 19,900,900,00 Region X 25,356,012.00 Region XII 9,549,000.00 CAR 10,300,000.00 The total amount disbursed under the CDF was P330,470,688.00. On December 14, 1993, public respondent Commission on Election (Comelec) received from petitioner Kilosbayan a letter informing of two x x x serious violations of election laws [14], thus: 1. The documented admission of Secretary of Budget Salvador Enriquez, in the October 5, 1993 hearing of the Commission on Appointments, that the amount of P70 million was released by his department, shortly before the elections of May 11, 1992, in favor of a private entity, the so-called Philippine Youth, Health and Sports Development Foundation, headed by Mr. Rolando Puno, who had been repeatedly identified by columnist Teodoro Benigno as a key member of the Sulu Hotel Operation (SHO), which had reportedly engaged in dirty election tricks and practices in said election. x x x 2. The illegal diversion of P330 million by Malacaang from the Countryside Development Fund to Department of Interior and Local Government which disbursed this huge amount shortly before the May 11, 1992 election, as revealed by DILG Budget Officer Barata, in a hearing of Senate Finance Committee, chaired by Sen. Vicente Sotto III, held last November 22, 1993.[15] and request[ing] that x x x these offenses and malpractices be investigated promptly, thoroughly, impartially, without fear or favor, so that public confidence in the integrity and purity of the electoral process may be immediately restored for the sake of our newlyregained democracy [16] On December 14, 1993, then Comelec Chairman Christian Monsod called a meeting of the Comelec En Banc which resolved to refer petitioner Kilosbayans letter-complaint to Law Department for comment and/or reccomendation. [17] Said letter compliant was docketed as E.O. No. 93-193. The evidence proffered by Kilosbayan in support of its lettercomplaint consisted of the published writings of Teodoro Benigno [18] in his column in the Philippine Star newspaper imputing to the so-called Sulo Hotel Operation (SHO) headed by PYHSDFIs chairman, Ronaldo Puno, the commission of illegal election activities during the May 11, 1992 elections, including the obtention of government funds for electioneering purposes; the transcripts of record of the testimony of Secretary Enriquez before the Commission on Appointments during the hearing on October 5, 1993 and of the testimony of DILG Budget Officer Rafael Barata before Senate Finance Committee during a hearing on November 22, 1993; and an Affidavit executed by Norberto Gonzales, a congressional candidate in the May 11, 1992 elections, who alleged therein that at Makati Headquarters of the Lakas-NUCD, in February, 1992, he overheard respondents Franklin Drilon and Leonora de Jesus discussing party plans to use the funds of various government offices to finance the partys election campaign and that ten (10) days or so before May 11, 1992, he obtained his election propaganda materials, following instructions from the partys National Headquarters, from the Sulo Hotel in Quezon City. In Memorandum dated March 28, 1994, Comelec Commissioner Regalado Maambong informed Chairman Christian Monsod that petitioner Kilosbayan [has already] presented their affidavits and supporting documents and [that] it is now time for the respondents to be subpoenaed and for them to present their counter-affidavits and supporting documents, if any, relative to the complaint of the Kilosbayan for illegal disbursement of public funds in the May 11, 1992 synchronized elections[19] On March 29, 1994, the Comelec En Banc, during its regular meeting, directed Atty Jose P. Balbuena, Director of Law Department, to issue the proper subpoenas and subpoena duces tecum in connection with the hearing of the Kilosbayan letter-complaint; to proceed in accordance with the Comelec Rules and Procedure relative to the investigation of cases involving election offenses; and submit a complete report within ten (10) days from the termination of the investigation.[20] Director Balbuena issued a subpoena dated April 17, 1994[21] addressed to respondents Salvador Enriquez, Ronaldo Puno, Francisco Cancio, Vicente Carlos, Jimmy Durante, Melvin Mendoza and Other John Does requiring them to appear at the Office of the Director on April 28, 1994 and to submit their respective counteraffidavits and other supporting documents, if any, in connection with petitioner Kilosbayans letter-complaint against them. On May 10, 1994, respondents Melvin Mendoza and Salvador Enriquez filed their respective counter-affidavits [22] specifically denying all the accusatory allegations in petitioner Kilosbayans lettercomplaint. On May 25, 1994, respondent Vicente Carlos submitted his counter-affidavit.[23]

For his part, respondent Francisco Cancio filed a Manifestation [24] dated May 24, 1994 that he cannot submit his counter-affidavit due to lack of material time. Thereafter, petitioner Kilosbayan manifested that it will file a consolidated reply to Counter-Affidavits of respondents Mendoza, Enriquez and Carlos. In order to give petitioner Kilosbayan sufficient time to prepare its consolidated reply, the hearing was set on June 6, 1994. When June 6, 1994 came, however, petitioner Kilosbayan filed, not a consolidated reply, but a pleading denominated as Interrogatives [25] dated May 20, 1994. Said pleading contained a list of questions sought to be propounded to respondents Enriquez, Carlos and Mendoza in an attempt to elicit from them confirmation regarding the questioned CDF allotment, specifically the cash allocation received by PYHSDFI, and the consumption thereof by PYHSDFI chairman Ronaldo Punos SHO for its reported illegal election campaign activities during the May 11, 1992 election. Amidst opposition forged by respondents Enriquez and Mendoza, the Comelec Law Department, through Director Balbuena, scheduled the clarificatory questioning on July 9, 1994.[26] Through a Motion for Reconsideration dated July 5, 1994, respondent Enriquez persisted to question the legality of the scheduled clarificatory questioning on the ground that the same is in violation of his constitutional right against self-incrimination. Said motion, however, was denied by the Comelec Law Department through Director Balbuena. Thus, respondents Enriquez and Mendoza filed separate Petition for Certiorari [27] before the Comelec En Banc assailing the aforementioned orders of Director Balbuena. The Comelec En Banc treated said petitions as motions for reconsideration or petitions for review, of the orders of Director Balbuena giving due course to petitioner Kilosbayans Interrogatories and scheduling the same for hearing. Ultimately, it ruled in favor of respondents Enriquez and Mendoza and held that the questions sought by petitioner Kilosbayan to be propounded by Director Balbuena to said respondents, are being raised in a preliminary investigation during which any person being accused of an offense, has the right to remain silent, among others.[28] On February 9, 1995, the Comelec En Banc, during its regular meeting, promulgated Minute Resolution No. 95-0713 approving, with modification, the recommendations of Law Department, as follows: 1. To dismiss the complaint against Secretary Salvador Enriquez, Jr. for insufficiency of evidence to establish a probable cause; 2. To hold in abeyance the case aginst Ronaldo Puno, Vicente Carlos, Melvin Mendoza, Francisco Cancio and Jimmy Durante, and to direct the Commission on Audit (COA) to conduct further rigid and extensive investigation on the alleged irregularities or anomalies stated in its report dated November 15, 1993 and to submit its report on such investigation including pertinent papers thereof, which shall be included in the re-evaluation of the existing documents pertaining to the PYHSDFI before the case of the above respondents be re-submitted to this Commission for resolution; 3. To order the Law Department to summon Atty. Tiburcio A. Relucio, former Regional NCR-DILG Director to shed light on the Kilosbayan complaint or the P70 million which were allotted by his office to the PYHSDFI shortly before the May 11, 1992 synchronized national and local elections: 4. To direct the Law Department to send a letter to former DILG Secretary Cesar Sarino to explain allotments and sub-allotments per evaluation report of the Law Department x x x; [and] 5. To direct the Kilosbayan to identify, under oath, the John Does in their complaint.[29] Dismissing the case against respondent Enriquez, whose evidence of strict compliance with the requirements of R.A. No. 7180 prior to the release of the Seventy Million Pesos to PYHSDFI, was significantly left unrebutted by petitioner Kilosbayan, the Comelec En Banc reserved the disposition of the case against Ronaldo Puno and other PYHSDFI officers until after submission by the COA of a more detailed report of the nature and extent of the anomalous practices of the PYHSDFI in the utilization of the CDF money allocated thereto. Easily understandable is the need for further investigation by the COA, considering that nothing on the Special Audit Report on PYHSDFIs CDF allocation imputed the use thereof for electioneering activities. In response, however, to the letter of the Comelec Law Department dated August 20, 1995 requesting the COA to conduct a more rigid and extensive investigation, COA Chairman Celso Gangan wrote Director Balbuena on September 12, 1995 that the facts stated in our report dated November 15, 1993 are already complete; that the report does not make mention of irregularities or anomalies, rather deficiencies like lack of supporting documents to fully substantiate the disbursement x x x although the distribution of funds by the Foundation is supported by the a list x x x[30] On the same day, August 20, 1995, a letter was also sent to respondent Cesar Sarino, former DILG Secretary, requesting him to submit a verified explanation regarding the sub-allotments issued by his office on several dates in February and March, 1992, as well as

some various sub-allotments issued by respondent Leonora de Jesus, then Undersecretary of the DILG. In the meantime, in a letter dated August18, 1995, Director Balbuena asked petitioner Kilosbayan to identify, under oath, the John Does in their complaint Responding through a letter, [31] petitioner Kilosbayan, through its Acting President, Cirilo A. Rigos, gave the following names: Cesar Sarino Victor Sululong Leonora de Jesus Dionisio de la Serna Jose Almonte Gabriel Claudio Franklin Drilon The above-named respondents were duly subpoenaed. Thereafter, they filed their respective Comments and/or Answers. On November 13, 1995, respondent Cesar Sarino Submitted his Sworn Explanation/Comment remonstrating that the questioned suballocations were approved only after a strict compliance with the proscribed time frame under the law which was March 27, 1992 until May 2, 1992 and prohibition against public work expenditures. Respondent Gabriel Claudio filed his Comment/Answer on December 12, 1995 contending that he had not yet joined government at any time before the May 11, 1992 elections. Respondents Franklin Drilon filed his Comment on January 29, 1996 denouncing as hearsay the sole evidence against him consisting of Teodoro Benignos newspaper articles implicating him in the SHO. Dionisio de la Serna, Victor Sumulong and Jose Almonte, who were additionally named as respondents by petitioner Kilosbayan, denied any knowledge or participation in the election offenses subject of the letter-complaint and objected thereto for failure to state, with particularity, the acts that they had supposedly committed in the violation of the Omnibus Election Code. Likewise, they pointed out that Teodoro Benigno newspaper articles constituted hearsay evidence bereft of any probative value. Insofar as respondent, then DILG-NCR Regional Directior, Tiburcio Relucio was concerned, the Law Department was unable to subpoena him because he was abroad. No rebuttal evidence was tendered by petitioner Kilosbayan to dispute the counter-allegations of herein respondents. Notably, too, petitioner Kilosbayan did not offer any additional evidence, in the place of Teddy Benignos published newspaper articles implicating PYHSDFIs Ronaldo Puno and the SHOs electioneering activities during the 1992 elections, in order to show even some semblance of a connection between the PYHSDFIs CDF allotment and SHOs electioneering activities. On April 3, 1996, the Comelec Law Department issued the following finding and recommendations: SYNOPSIS OF CASE [1] TITLE: 'KILOSBAYAN VS. SECRETARY SALVADOR ENRIQUEZ, JR., ET AL. [2] DOCKET NUMBER: E.O Case No. 93-193 [3] LAW ALLEGEDLY VIOLATED: Section 261 (o), (v) and (w) of the Omnibus Election Code. (Use of public funds, money deposited trust, x x x, for an election campaign; Prohibition against release, disbursement or expenditure of public funds for any and all kinds of public works; and Prohibition against construction of public works, delivery of materials for public works and issuance of treasury warrants and similar devices). [4] FINDINGS: The Law Department finds that there is insufficient ground to engender a well-founded belief that respondents Ronaldo Puno, Secretary Vicente Carlos, Melvin Mendoza, Francisco Cancio, Jimmy Durante, Hon. Cesar N. Sarino, Leonora V. de Jesus, Jose Almonte, Dionisio de la Serna, Victor Sumulong, Franklin Drilon and Gabriel (Gabby) Claudio have committed the acts being complained of and probably guilty thereof and should be held for further proceedings (trial) considering that the allegations in the complaint are plain conjectures, speculations and based on hearsay evidence. The other set of evidence which was obtained through coercive processes of the Commission did not show that the acts as reflected therein come within the proscription of Section 261 (o), (v) and (w) of the Omnibus Election Code. [5] RECOMMENDATION: To dismiss the complaint of Kilosbayan against all the respondents. x x x[32] The details of the investigation and a complete discussion of the evidence submitted by the contending parties are laid out in the 16page Study[33] attached to the aforecited Synopsis of the Case. Essentially, the Law Department evaluated the evidence in this wise: The provision of the Omnibus Election Code that may have been possibly violated by the respondents in the KILOSBAYAN complaint, are as follows: SEC. 261. Prohibited Acts following shall be guilty of an election offense: xxx xxx xxx (o) Use of public funds, money deposited in trust, equipment, facilities owned or controlled by the government for an election campaign. Any person who uses under any guise whatsoever, directly or

indirectly, (1) public funds or money deposited with, or held in trust by, public financing institutions or by government offices, banks, or agencies; x x x x for any election campaign or for any partisan political activity. (v) Prohibition against release, disbursement or expenditure of public funds Any public official or employee including barangay officials and those of government-owned or controlled corporations and their subsidiaries, who, during forty-five days before a regular election and thirty days before special election, releases, disburses or expends any public funds for: (1) Any and all kinds of public works, except the following: xxx xxx xxx (w) Prohibition against construction of public works, delivery of materials for public works and issuance of treasury warrants and similar devices during the period of forty-five days preceding a regular election and thirty days before a special election, any person who (a) undertakes the construction of any public works, except for projects or works exempted in the preceding paragraph; or (b) issues, uses or avails of treasury warrants or any device undertaking future delivery of money, goods or other things of value chargeable against public funds. The Commission on Audit, thru its Chairman, pointed out, in its letter dated September 12, 1995, that the facts stated in their report dated November 15, 1993 are already complete and that the report does not make mention of irregularities or anomalies, rather deficiencies like lack of supporting documents to fully substantiate the disbursements, such that although the distribution of funds by the Foundation is supported by a list, this does not show the acknowledgment by supposed recipients. Although the report of the COA dated November 15, 1993 mentioned that upon the start of the audit, it was disclosed that PYHSDFI did not keep book of accounts, wherein to record its transactions, which constitute(s) a basic requirement in the accounting for funds and all it had to evidence its disbursements are vouchers, many of which are not supported by receipts or other documents, it does not show that the public funds released to it by the DILG was used for any election campaign or for any partisan political activity. The report says: (2) The inadequate financial reports, book of accounts and other supporting documents rendered verification of total disbursement of P70M difficult, This consist of the following: a) Meals./snacks P14,465,000 b) Prof. fees/allowances travel expenses P17,881,500 c) Rental site/facilities P 3,441,480 d) Purchases of supplies and materials P34,221,020 P70,000,000 This particular part of the report of the COA also clearly showed that the public funds in the hands of the PYHSDFI were not used for any and all kinds of public works. Further it says: 3.A In most of the transactions undertaken, cash payments [were] used in paying their obligations, since it would have been significantly expensive it in overhead cost to maintain a pool of administrative staff and besides no allocation of such expenses [was] programmed. Moreover, most [the] expenses were in the category of payrolls which [had] to be paid in cash. [L]likewise suppliers asked for cash-ondelivery (COD) basis since the prices given were the lowest obtainable commercial rates. This showed that not all obligations of the PYHSDFI were paid in cash, in other words, the other obligations were paid in forms which may be checks or any other device undertaking future delivery of money. However, no single piece of evidence was presented by Kilosbayan to prove its complaint to determine whether they (checks) have been issued within the prohibited period. In the light of the foregoing, the Law Department reiterates its former findings in its Study for Agenda dated February 8, 1995 that in the case of respondents Ronald Puno, Secretary Vicente Carlos, Melvin Mendoza, Francisco Cancio and Jimmy Durante, based on the existing documents appearing on the records, no probable cause exists against them for violation of the election law. It is well-settled that the complainant must rely on the strength of his evidence and not on the weakness of the evidence of the respondent[s]. In the case of Hon. Cesar N. Sarino, he alleged that his approvals of the sub-allocations reflect a strict compliance with the law and do not violate Section 261 (v) of the Omnibus Election Code as their approval [was] not within the proscribed time frame as designated by the Commission on Elections, and Advice of Sub-allotment No. DILG-92-2128 covers a type of expenditure which is not public works expenditure, hence, not violative of said provision of law. xxx xxx xxx x x x [A]n incisive, careful, meticulous and rigid review and reevaluation of the above-listed sub-allotments revealed, that the nine (9) sub-allotments approved by former DILG Secretary Cesar Sarino which appeared to be for construction of public works are actually nine (9) pages of five (5) sub-allotments x x x and the one (1) suballotment issued by Undersecretary Leonora V. de Jesus which appeared to be for construction of public works is actually:

(b) Sub-allotment No. Date of Approval Page No. 1] 92-1-90 March 19, 1992 1 To be liable for violation of Section 261 (v), supra, four (4) essential elements must concur and they are: 1) A public official or employee releases, disburses, or expends any public funds; 2) The release, disbursement or expenditure of such public funds must be within forty-five days before regular election (March 27, 1992 until May 11, 1992, Section 1, Comelec Resolution No. 2332, Jan. 02, 1992); 3) The release, disbursement or expenditure of said public funds is for any and all kinds of public works; and 4) The release, disbursement or expenditure of the public funds should not cover any exceptions of Section 261 (v). Except for Sub-allotment No. 92-1-94 and Sub-allotment No. 92-2-128 approved on March 27, 1992 and April 22, 1992, respectively, by former DILG Secretary Cesar Sarino, not one of the sub-allotments listed above does fall within the proscribed period. Sub-allotment No. 92-1-98 was approved to cover the improvement/rehabilitation of Cabucgayan Waterworks System of Cabucgayan, Leyte. This falls within exception (maintenance of existing and/or completed public works projects) of the proscription being merely a rehabilitation of an existing public works project. Sub-allotment No. 92-2-128 was not for any and all kinds of public works. It was approved to cover the purchase of reference and instructional materials for distribution to all local executives of the 2nd District of Surigao del Norte in support of the Educational Upliftment Program of the DILG, hence, it could not also fall within the proscription. The sub-allotment approved by undersecretary Leonora V. de Jesus, which appreared to be for the construction of public works, having been approved on March 19, 1992 does not fall within the proscriptive period, hence, it could not also fall within the proscription. xxx xxx xxx Prescinding from the foregoing documents appearing on [the] records, there exist no sufficient ground to engender a well-founded belief that former DILG Secretary Cesar Sarino and Undersecretary Leonora V. de Jesus have violated Section 261 (v) of the Omnibus Election Code. The Law Department must stress here that the allegations appearing in the columns of Teodoro Benigno in the Philippine Star on several dates imputing dirty election tricks and practices (as worded by Kilosbayan) against respondent Jose Almonte, Dionisio de la Serna, Victor Sumulong, Franklin Drilon and Gabriel (Gabby) Claudio cannot be admitted as gospel truth because they are purely speculative and conjectural. Suffice it to say, that, they are mear hearsayevidence. Well-settled is the rule that Newspaper clippings are hearsay and of no evidentiary value. (People vs. Jovito Aguel, et al., 97 SCRA 795]. Moreover, former Executive Secretary, now Senator, Franklin Drilons undated letter, where he approved the request for authority dated March 17, 1992 of then former DILG Secretary Cesar N. Sarino to negotiate, enter into and sign Memoranda of Agreements with and to utilize the accredited Non-Governmental Organizations (NGOs), in accordance with the directive of then former President Corazon Aquino dated March 13, 1992, regarding the implementation of projects under the Countrywide Development Fund (CDF) provided under R.A. 7180, does not refer to any release, disbursement, or expenditure of public funds for construction of public works. Consequently, there also exist no sufficient evidence to engender a well-grounded belief that respondents Jose Almonte, Dionisio de la Serna, Victor Sumulong, franklin Drilon and Gabriel (Gabby) Claudio have violated Section 261 (o) and (v) of the Omnibus Election code. It would not be amissed to state here in passing that well-enshrined is the rule that the complainant must submit evidence to prove his case. IN THE INSTANT CASE, COMPLAINANT KILOSBAYAN DID NOT SUBMIT EVIDENCE TO PROVE ITS CASE. IT POSTULATES THE THEORY THAT SINCE IT IS THE CONSTITUTIONAL POWER OF THE COMMISSION TO ENFORCE AND ADMINISTER ALL LAWS AND REGULATIONS RELATIVE TO THE CONDUCT OF ELECTION, IT IS INCUMBENT TO USE ITS CONSTITUTIONAL POWER TO SECURE THE NEEDED EVIDENCE. THIS POSITION OF THE KILOSBAYAN IS PATENTLY ERRONEOUS AS IT IS NOT ONLY ITS LEGAL OBLIGATION BUT ALSO ITS MORAL DUTY TO SUBMIT ITS EVIDENCE TO PROVE ITS COMPLAINT. x x x[34] Adopting the foregoing findings and conclusions of the Law Department, the Comelec En Banc promulgated Minute Resolution No. 96-1037 dismissing the charges against the following: respondents Ronaldo Puno, Vicente Carlos, Melvin Mendoza, Francisco Cancio and Jimmy Durante for violation of Section 261 (o), (v) and (w) of the Omnibus Election Code; respondents Cesar Sarino and Leonora de Jesus for violation of Section 261 (v) of the Omnibus Election Code; and respondent Franklin Drilon and others also charged in petitioners complaint, namely, Jose Almonte, Dionisio de la Serna, Victor Sumulong and Gabriel Claudio, for violation of Section 261 (o) and (v) of the Omnibus Election Code, all on ground of insufficiency of evidence to establish probable cause. Petitioner Kilosbayan, however brushed off responsibility for adducing evidence of herein respondents culpability, and adamantly demanded that the Comelec perform its constitutional duty of prosecuting election offenses upon any, even meager, information of alleged commission of election offenses.

Its complaint having been dismissed in the aforementioned Resolutions dated February 9, 1995 and April 11, 1996, respectively, petitioner filed a Motion for Reconsideration dated May 16, 1997 and a Supplemental Motion for Reconsideration dated June 7, 1996 seeking the nullification of the said Resolutions and praying for the filing of corresponding criminal complaints and/or informations against herein respondents. Reiterating the dismissal of E.O. Case No. 93-193, however, the Comelec denied the motions in the Resolution dated October 30, 1996.
[35]

The Comelec Resolution dated January 20, 1997 contained the detailed basis for the final dismissal of E.O. Case No. 93193. Discussing point by point the arguments raised by petitioner in its Motion for Reconsidiration and Supplemental Motion for Reconsideration, the Comelec En Banc unanimously held, thus: Movant complains: The Law Department makes it appear that the KILOSBAYAN has greater responsibility in the enforcement of election laws than the COMELEC to make it its moral and legal duty to spend its time and private funds to gather evidence from public offices to convince the COMELEC that there is sufficient evidence to establish the guilt of the respondents. xxx It may do well to remember that the Constitution charged the COMELEC with the responsibility to x x x xxx (6) x x x where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices. (emphasis theirs) The Commission has no quarrel with Complainant that indeed the Constitution tasked this Body with the prosecution of election offenses. But the constitutional provision made it clear that prosecution should be made only where it is appropriate. It is appropriate when it is established in the preliminary investigation that probable cause exist to justify the filing of the necessary information against the accused. Lest the Complainant forgets, it initiated the complaint. Thus, on it rests the burden of supporting its charges with affidavits and/any evidence, for it is upon the evidence thus adduced, that the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial. This is so provided under the COMELEC Rules of Procedure x x x. Nonetheless, even with Complainants failure to submit substantial enough to justify findings of probable cause, the Commission, through its Law Department undertook an investigation of the case. The Law Department summoned the parties, took testimonies of witnesses, secured documents, and conducted hearings. The result of the preliminary investigation was certainly on the basis of the evidences adduced by complainant and the facts gathered by the Department on its own initiative. xxx No other evidence except Mr. Benignos articles were submitted [by petitioner] to prove the existence of the so called Sulo-Hotel Operations. Newspaper clippings are hearsay and of no evidentiary value. (People v. Aquel, et al., 97 SCRA 795). x x x [Further] x x x [petitioner] wants the Commission to derive from [the Commission on Audit] report the conclusion that because there were discrepancies, to wit: 1. No books of account [were] maintained by the NGO [i.e., PHYSDFI]; and 2. Cash payments were made regardless of amount, then the allocation to PHYSDFI were made for electioneering purposes. Indeed, there could have been, as alleged by Complainant, irregularities in the allocation, but it must be shown by the quantum of evidence required to establish probable cause that such irregularities constituted election offense. This, Compalinants evidences failed to show. xxx It was established that the PHYSDFI received from DILG-NCR an allocation of P70 million. To Complainant the nature of the allocation and the amount of the expenditures made by PHYSDFI within a short period of time, i.e., immediately before the elections and in the light of the fact that it stopped all its operations shortly after the elections established beyond reasonable doubt that the foundation was engaged in partisan political activity. Complainant further averred that the flight of the heads of the foundation (Puno and Catindig) and Regional Director Tiburcio A. Relucio who went into hiding after the series of exposes by columnist Teodoro Benigno constitutes an implied admission of guilt. x x x It is the Law Departments findings and so is Ours, that the nature and amount of expenditure within a short period of time are not sufficient to meet the quantum proof required to establish that said contributions were made for partisan political activity. It must be emphasized that the burden is on Kilosbayan to prove its allegations. He who alleges must prove his allegation. Unfortunately for Complainant, it was not able to produce evidence showing that the contribution was used for partisan political activity. xxx Complainant posits the view that respondents are liable x x x because the sports and medical kits were unlawful election propaganda, having

been purchased and distributed a few days before election and the stopped after the election. At most, this is speculative and presumptive. In the absence of proof amply showing that the purchase and distribution of gadgets and kits were made to advertise or to further the chances of victory of candidate or candidates, the Commission cannot justify the conclusion that probable cause exist to charge respondents x x x. xxx While it was established by documents thus presented x x x that there was a release of public funds by DILG/DILG-NCR, within the prohibited period, the same could not be considered as a violation x x x because one, the expenditure was not for public works; and two, the Department of Interior and Local Government can not be considered as an office of other ministries (departments) performing functions similar to the Ministry of Social Services and Development or Ministry of Human Settlements. Kilosbayans complaints were heard. They were investigated. Complainant was given full opportunity to argue its case and prove its charges. It presented arguments but not evidences. It thesis is more on speculations, conjectures and suspicious. It expects the Commission to find as circumstantial evidence the chain of circumstances which [it] presented, forgetting that: The rule on circumstantial evidence necessarily requires that each circumstance must be positively established with the requisite quantum of evidence, in the same manner that the catena that binds the together and conduces to a conclusion of guilt must survive the test of reason and satisfy the required evidentiary weight.' (People vs. Adofina, 239 SCRA 67) Unfortunately, Complainant failed to sustantiate with sufficient evidence the circumstances on which it based the liability of respodents for offenses charged by way of its Supplemental Motion for Reconsideration. x x x[36] Its Motion for Reconsideration and Supplemental Motion for Reconsideration having been finally denied by the Comelec En Banc, petitioner Kilosbayan has come before us ascribing grave abuse of discretion to public respondent Comelec for: (1) refusing and/or neglecting to gather more evidence of respondents culpability, pursuant to its constitutional duty to prosecute election offenses, through oral arguments upon petitioners Motion for Reconsideration and Supplemental Motion for Reconsideration as well as from respondents Rolando Puno and Tiburcio Relucio who, petitioner claims, have not gone abroad but are actually in the country; and (2) for issuing a blanket exoneration of all respondents despite the prima facie evidence already in the hands of Comelec. The Comelec did not commit any act constituting grave abuse of discretion in dismissing petitioner Kilosbayans letter-complaint against herein respondents, the former having failed to prove its case against the latter. As such, this petition must be dismissed. Section 2 (7) of Article IX-C of the 1987 Constitution provides that the Comelec shall exercise the power to investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices. Discerning the rationale for this grant of prosecutorial powers to the Comelec, we already had occasion to rule, thus: The grant to the COMELEC of the power, among others, to enforce and administer all laws relative to conduct of election and the concomitant authority to investigate and prosecute election offenses is not without compelling reason. The evident constitutional intendment in bestowing this power to the COMELEC is to insure the free, orderly and honest conduct of elections, failure of which would result in the frustration of the true will of the people and make a mere idle ceremony of the sacred right and duty of every qualified citizen to vote.[37] This constitutional grant of prosecutorial power in the Comelec finds statutory expression under Section 265 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code, to wit: SEC. 265. Prosecution. The Commission shall, through its duly authorized legal officers, have the exclusive power to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same. The Commission may avail of the assistance of other prosecuting arms of the government: Provided, however, That in the event that the Commission fails to act on any complaint within four months from his filing, the complainant may file the complaint with the office of the fiscal or with the Ministry of Justice for proper investigation and prosecution, if warranted. Insofar as the prosecution of election offenses is concerned, therefore, the Comelec is the public prosecutor with the exclusive authority to conduct the preliminary investigation and the prosecution of election offenses punishable under the [Omnibus Election] Code before the competent court. [38] This constitutional and statutory mandate for Comelec to investigate and prosecute cases of violation of election law translates, in effect, to the exclusive power to conduct preliminary investigations in cases involving election offenses for the twin purpose of filing an information in court and helping the Judge determine, in the course of preliminary inquiry, whether or not a warrant of arrest should be issued. [39] For the effective investigation and prosecution of cases of election offenses and in the exercise by the Comelec of its quasi-

legislative power under Section 6, Article IX of the 1987 Constitution, the Comelec Rules of Procedure were promulgated, providing, among others, the guidelines pertinent to election offenses. They are as follows: Rule 34 Prosecution of Election Offenses SECTION 1. Authority of the Commission to Prosecute Election Offenses. The Commission shall have exclusive power to conduct preliminary investigation of all election offenses punishable under the election laws and to prosecute the same, except as may otherwise be provided by law. SEC. 2. Continuing Delegation of Authority to Other Prosecution Arms of the Government. - The Chief State Prosecutor, all Provincial and City Fiscals, and/or their respective assistants are hereby given continuing authority, as deputies of the Commission, to conduct preliminary investigation of complaints involving election offenses under the election laws which may be filed directly with them, or which may be indorsed to them by the commission or its duly authorized representatives and to prosecute the same. Such authority may be revoked or withdrawn any time by the Commission whenever in its judgment such revocation or withdrawal is necessary to protect the integrity of the Commission, promote the common good, or when it believes the successful prosecution of the case can be done by the Commission. SEC. 3. Initiation of Complaint. Initiation of complaint for election offenses may be done motu proprio by the Commission, or upon written complaint by any citizen of the Philippines, candidate, registered political party, coalition of political parties or organizations under the party-list system or any accredited citizen arms of the Commission. SEC. 4. Form of Complaint and Where to File. - (a) When not initiated motu proprio by the Commission, the complaint must be verified and supported by affidavits and/or any other evidence. Motu proprio complaints may be signed by the Chairman of the Commission, or the Director of the Law Department upon direction of the chairman, and need not be verified. (b) The complaint shall be filed with the Law Department of the Commission; or with the offices of the Election Registrars x x x xxx xxx xxx SEC. 5. Referral for Preliminary Investigation. If the complaint is initiated motu proprio by the Commission, or is filed with the Commission by any aggrieved party, it shall be referred to the Law Department for investigation. Upon direction of the Chairman of the Commission, the preliminary investigation may be delegated to any lawyer of said Department, or any of the Regional Election Directors or Provincial Election Supervisors, or any lawyer of the Commission. SEC. 6. Conduct of Preliminary Investigation. (a)If on the basis of the complaint, affidavits and the supporting evidence, the investigating officer finds no ground to continue with the inquiry, he shall recommend the dismissal of the complaint and shall follow the procedure prescribed in Section 8 (c) of this Rule. Otherwise, he shall issue a subpoena to the respondent, attaching thereto a copy of the complaint, affidavits and other supporting documents giving said respondent ten (10) days from receipt within which to submit counteraffidavits and other supporting documents. The respondent shall have the right to examine all other evidence submitted by the complainant. (b) Such counter-affidavits and other supporting evidence submitted by the respondent shall be furnished by him to the complainant. (c) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten-day period, the investigating officer shall base his resolution on the evidence presented by the complainant. (d) If the investigating officer believes that there are matters to be clarified, he may set a hearing to propound clarificatory questions to the parties or their witnesses, during which the parties shall be afforded an opportunity to be present but without the right to examine or cross-examine. If the parties so desire, they may submit questions to the investigating officer which the latter may propound to the parties or witnesses concerned. (e) Thereafter, the investigation shall be deemed concluded, and the investigating officer shall resolve the case within ten (10) days therefrom. Upon the evidence thus adduced, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial. SEC. 7 Presumption of Existence of Probable Cause. A complaint initiated motu proprio by the Commission is presumed to be based on sufficient probable cause and the investigating officer must forthwith issue the subpoena mentioned in the immediately preceding section. SEC. 8. Duty of Investigating Officer . - The preliminary investigation must be terminated within twenty (20) days after receipt of the counter-affidavits and other evidence of the respondents, and resolution thereof shall be made within five (5) days thereafter. (a) If the investigating officer finds no cause to hold the respondent for trial, he shall recommend dismissal of the complaint. (b) If the investigating officer finds cause to hold the respondent for trial, he shall prepare the resolution, and the corresponding information wherein he shall certify under oath that he has examined the complainant and his witnesses, that there is reasonable ground to

believe that a crime has been committed and that accused was informed of the complaint and of the evidence submitted against him and that he was given an opportunity to submit controverting evidence. (c) In either case, the investigating officer shall, within five(5) days from the rendition of his recommendation, forward the records of the case to 1) The director of the Law Department of the Commission in cases investigated by any of the Commission lawyers or field personnel and 2) The State Prosecutor, Provincial Fiscal or City Fiscal, as the case may be, pursuant to the continuing authority provided for in Section 2 of this Rule. SEC. 9. Duty of the Law Department, State Prosecutor, Provincial or City Fiscal Upon Receipt of Records. - (a) Within ten (10) days from receipt of the records stated in paragraph (c) of the immediately preceding section, the State Prosecutor, Provincial or City Fiscal shall take appropriate action thereon, immediately informing the parties of said action. (b) In case investigated by the lawyers or the field personnel of the Commission, the director of the Law Department shall review and evaluate the recommendation of the said legal officer, prepare a report and make a recommendation to the Commission affirming, modifying or reversing the same which shall be included in the agenda of the succeeding meeting en banc of the Commission. If the Commission approves the filing of an information in court against the respondent/s, the Director of the Law Department shall prepare and sign the information for immediate filing with appropriate court. (c) In all other cases, if the recommendation to dismiss or the resolution to file the case in court is approved by State Prosecutor, Provincial or City Fiscal, they shall likewise approve the Information prepared and immediately cause its filing with the proper court. (d) If the recommendation to dismiss is reversed on the ground that a probable cause exists, the State Prosecutor, or the Provincial or City Fiscal, may, by himself prepare and file the corresponding information against the respondent or direct any of his assistants to do so without conducting another preliminary investigation. xxx xxx x x x [Emphasis ours]. The Comelec, whenever any election offense charge is filed before it, must have first, before dismissing the same or filing the corresponding information, conducted the preliminary investigation proper of the case. At this initial stage of criminal prosecution, the primordial task of the Comelec is the determination of probable cause, i.e., whether or not there is reason to believe that the accused is guilty of the offense charged and, therefore, whether or not he should be subjected to the expense, rigors and embarrassment of trial[40] or as the Comelec Rules of the Procedure phrase it, whether or not there is reasonable ground to believe that a crime has been committed" [41] The determination of probable cause in any criminal prosecution, is made indispensable by the Bill of Rights which enshrines every citizens right to due process, the presumption that he is presumed innocent, and the inadmissibility against him of any damaging evidence obtained in violation of his right against self-incrimination. As Justice Reynanto S. Puno has pointed out, probable cause is neither an opaque concept in our jurisdiction [42] or a high level legal abstraction to be the subject of warring thoughts [43] It constitutes those facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed [44] by the person sought to be judicially indicted. In determining probable cause, however, the public prosecutor must have been apprised by the complainant of his evidence in support of his accusatory allegations. In other words, determining probable cause is an intellectual activity premised on the prior physical presentation or submission of documentary or testimonial proofs either confirming, negating or qualifying the allegations in the complaint. It follows, therefore, that in the instant case, petitioner Kilosbayan must have necessarily tendered evidence, independent of and in support of the allegations in its letter-complaint, of such quality as to engender belief in an ordinarily prudent and cautious man that the offense charged therein has been committed by herein respondents. Indeed probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt[45], but it certainly demands more than bare suspicion[46]and can never be left to presupposition, conjuncture, or even convincing logic. [47] The effort of petitioner Kilosbayan, thus, in order to successfully lead to the judicial indictment of respondents, should have gone beyond a largely declamatory condemnation of respondents and diligently focused on its two-fold obligation of not only substantiating its charges against respondents but also proffering before the Comelec substantial evidence of respondents utilization, through conspiratorial, cooperative and/or interrelated acts, of Seventy Million Pesos from CDF for electioneering activities in violation of its pertinent provision on election offenses as enumerated in the Omnibus Election Code. In the dispensation of this obligation, however Kilosbayan utterly failed. The encompassing narration of the pertinent facts and circumstances of this case in the early part of this ponencia indubitably shows the complacency, at the least, and the gross and deliberate

negligence, at most, of petitioner Kilosbayan in presenting sufficient evidence in support of its letter-complaint. To salvage its position, however, petitioner Kilosbayan denies the existence, under the 1987 Constitution, of any obligation on its part to present any evidence of its accusations against respondents in its letter-complaint. Petitioner Kilosbayan asserts that it is the obligation of the Comelec to search for the evidence needed to judicially indict respondents because it is the agency empowered to investigate and prosecute cases involving election offenses; that E.O. Case No. 93-193 should, at any rate, be deemed one filed by the Comelec motu proprio, thus needing no evidence since probable cause is such a case is presumed, petitioner Kilosbayan having only requested for an investigation and the Comelec having proceeded to in fact hold the investigation, as requested by petitioner Kilosbayan; and that the Comelec should already be grateful to petitioner Kilosbayan for the latters private efforts at exposing respondents illegal election activities. Kilosbayans position is not tenable. Indeed, Kilosbayan truly deserves commendation for its continued vigilance against any and all forms of government corruption that cost this country not only the funds gravely needed to afford each Filipino a decent and honorable life, but also the moral resolve to unite with each other and resist and eradicate the growing culture of greed, abuse of power and blatant disregard for basic human dignity and social responsibility. But it must guard against arrogance in trumpeting its causes, if not recklessness in its advocacy. The claim of petitioner Kilosbayan that it is merely the informant and not the private complainant with the burden to prove probable cause, borders on the ridiculous. Kilosbayan filed before the Comelec a letter-complaint dated December 14, 1993 in support of which documentary evidences like copies of Teodoro Benignos newspaper articles on the SHOs use of PYHSDFI-obtained CDF, of respondent Enriquezs testimony before the Commission on Appointments, of DILG Budget Officer Baratas testimony before the Senate Finance Committee, and of Norberto Gonzales affidavit, were likewise submitted by petitioner. The letter-complaint not being verified, it is not disputed that petitioner Kilosbayan subsequently caused its verification; when later asked to give the names of the other John Does in its letter-complaint, petitioner Kilosbayan obliged with a list, under oath, of additional respondents. Petitioner Kilosbayan initiated the complaint against herein respondents, hence the docketing thereof as E.O. Case No. 93193; it filed numerous pleadings before the Comelec as a private complainant in E.O. Case No. 93-193; its proceeded in the case in accordance with the Comelec Rules of Procedure pertinent to the prosecution of cases of election offenses. After all, the Kilosbayan should have presented evidence and not proceeded and relied on mere conjecture and hearsay evidence. The contention of petitioner Kilosbayan that it is the Comelec that is duty-bound to search for evidence to prove its letter-complaint is downright erroneous. The task of the Comelec as investigator and prosecutor, acting upon any election offenses complaint, is not the physical searching and gathering of proof in support of a complaint for an alleged commission of an election offense. A complainant, who in effect accuses another person of having committed an act constituting an election offense, has the burden, as it is his responsibility, to follow through his accusation and prove his complaint. If the complainant fails to proffer the necessary evidence to show probable cause, notwithstanding the lack of denial or any evidence in controversion, of the accusation, the complaint must be dismissed, since any person accused of a crime is presumed innocent and does not at all have to make a response or reaction to charges against him. The Comelec, is acting upon an election offense complaint in the course of preliminary investigation, initially facilitates the confrontation process between the complainant and the respondents by requiring the submission of and interfacing, their respective evidences. Ultimately, the Comelec passes upon the contending parties' respective submissions and proof and weighs the fact and circumstances established therefrom. Contrary to the asseveration of petitioner Kilosbayan, the preliminary investigation is not an occasion for Comelec to, as a duty, spoonfeed the complainant with evidence needed to prove its case. Finally, we cannot avoid the point out that no novel legal theory can distract even an ordinary layman from the plain dearth of evidence of respondents culpability on the record. There is no proof of the electioneering activities alleged by petitioner Kilosbayan to have been perpetrated by PYHSDFI during the May 11,1992 elections. Petitioner claims the PYHSDFI distributed medical kits and sports equipment to several youth groups in certain Metro Manila barangays for purposes of influencing their vote during the May 11, 1992 elections. Petitioner, however, vaguely states the places where, the dates when, the particular candidate for whose cause, and the general description of the people for whose consumption, the distribution of election propaganda materials was undertaken. In fact, there is no proof that the medical kits and sports equipment were election propaganda materials. This is not surprising for there is the barest evidence that this distribution had taken place at all.

There is no proof that PYHSDFI used its cash allocations as an accredited non-governmental organization in order to undertake electioneering activities. Petitioner likewise did not present proof that said distribution of medical kits and sports equipment was for purposes of influencing the votes of certain groups of people during the May 11, 1992 elections. Brushing aside these fatal evidentiary lapses, petitioner insists that PYHSDFI is guilty of using public funds for electioneering purposes simply because it received its CDF allocation within a time frame suspiciously so near the May 11, 1992 elections. This CDF allocation, however, has been convincingly shown to be a legal disbursement of public funds. Significantly, PYHSDFI neither presented rebuttal evidence nor even attempted to argue against the presumption of regular performance of official duty on the part of respondents like Franklin Drilon, Cesar Sarino, and Salvador Enriquez who were then acting in their official capacity as heads of their respective departments. It may even be conceded that petitioner tells a credible story, it being too much of coincidence for there to be, on the one hand, rumors of electioneering activities on the part of PYHSDFI and on the other, genuine cash allotments showing disbursement of public funds to the latter so coincidentally close to the May, 1992 elections. However, no matter how believable a story may be, no matter how possible it could really have been that PYHSDFI was financial conduit for criminal elements working for the interest of a particular candidate in the 1992 elections, criminal charges cannot ever be sanctioned by mere possibilities or coffee shop rumors. In other words, said cash allocations appear to be evidence of perhaps, a thousand hypothetical, though, possible scenarios. But, they are evidence of only one fact: that a certain amount of public money was made available to PYHSDFI as it is rightfully entitled thereto as an accredited non-governmental organization at around the same time that the synchronized elections of 1992 were to be held. But this one fact is certainly no justification to indict herein respondents for election offenses imputed to them. Lastly, there is no proof that respondents conspired to have PYHSDFI accredited as non-government organization in order to avail itself of public funds to spend for electioneering purposes. In order for there to be reasonable ground to believe that a conspiracy exists among (1) the government officials who set up the mechanism for the accrediting NGOs to implement the project under the CDF and to qualify the latter to receive CDF allocations; (2) the incorporators and officers of the PYHSDFI; and (3) the SHO implicated by Teodoro Benigno in his newspaper articles in alleged electioneering activities during the May 11, 1992 elections, there must be a semblance of evidence linking them to each other. There is none, however, except for hearsay evidence consisting of the aforementioned newspaper articles. Suffice it is say that although only a low quantum and quanlity of evidence is needed to support a finding of probable cause [48], the same cannot be justified upon hearsay evidence that is never given any evidentiary or probative value in this jurisdiction. Incidentally, we note that although made party respondents in this case, Benito Catindig and Manuel Calupitan III were not officially made respondents in E.O. Case No. 93-193 and accordingly not served with subpoena at any time during the pendency of said case before the Comelec. There is no ground, therefore, to implead Benito Catindig and Manuel Calupitan III in the instant case. WHEREFORE, IN VIEW OF THE FOREGOING, the instant petition is hereby DISMISSED, without any pronouncement as to costs. SO ORDERED.

ANTONIO M. BERNARDO, ERNESTO A. DOMINGO, JR. and JESUS C. CRUZ, petitioners, vs. BENJAMIN S. ABALOS, SR., BENJAMIN "BENHUR" D. ABALOS, JR., DR. EDEN C. DIAZ, ROMEO F. ZAPANTA, ARCADIO S. DE VERA and THE COMMISSION ON ELECTIONS, respondents. DECISION SANDOVAL-GUTIERREZ, J.: This is a petition for certiorari[1] seeking the nullification of Resolution No. 98-3208 of the Commission on Elections (COMELEC) En Banc promulgated on December 1, 1998 dismissing the complaint for vote buying filed by petitioners against respondents. On April 21, 1998, petitioners Antonio M. Bernardo, Ernesto A. Domingo, Jr. and Jesus C. Cruz filed with the COMELEC a criminal complaint against respondents Benjamin S. Abalos, Sr., Benjamin C. Abalos, Jr., Dr. Eden C. Diaz, Romeo Zapanta and Arcadio de Vera for vote buying in violation of Section 261, paragraphs (a), (b) and (j) of the Omnibus Election Code (OEC), in relation to Section 28 of Republic Act 6646 and Section 68 of the OEC. The complaint, docketed as E.O. Case No. 98-110,[2] alleged that: 1. On April 14, 1998 (Tuesday), respondent Mandaluyong City Mayor Benjamin S. Abalos, Sr., and his son respondent Benjamin "Benhur" C. Abalos, Jr., candidate for City Mayor of the same city in the May 11, 1998 elections, conspiring with respondents Dr. Eden C. Diaz, Schools Division Superintendent, Romeo F. Zapanta, Assistant Schools Division Superintendent, and Arcadio de Vera, President, Mandaluyong Federation of Public School Teachers, sponsored, arranged and conducted an all-expense-free transportation, food and drinks affair for the Mandaluyong City public school teachers, registered voters of said city, at the Tayabas Bay Beach Resort, Sariaya, Quezon Province. 2. Among the identified public school teachers present, brought in around twelve (12) buses, were Corazon Mayoya, Principal of Highway Hills Elementary School, her Assistant Principal and Mr. Dante del Remigio; Mrs. Diaz, Principal of Mandaluyong City High School and Mr. Alvia; Mrs. Parillo, Andres Bonifacio Elementary School; Mrs. Gregoria Ignacio, Principal of Doa Pilar Gonzaga Elementary School and Mrs. Bolantes; Mrs. Diaz, Principal, Nueve de Febrero Elementary School; Ms. Magsalin, Principal of Mandaluyong Science High School and Mrs. Rita Bondayril; Mrs. De Vera, Fabella Elementary School; Ms. Anselmo, Principal of Isaac Lopez Elementary School and Mrs. Fayton; Mrs. Sylvia Liwanag, District Supervisor, District II, Mrs. Nalaonan, Principal of Amado T. Reyes Elementary School; Mrs. Teresita Vicencio, Mandaluyong City Elementary School; Officers of the Mandaluyong Federation of Public School Teachers namely: Mrs. Erlinda Ilagan, Treasurer; Ms. Nancy de Leon, Auditor; Ms. Fortunata Gondran, PRO; Mr. Nenito Pumariga, Business Manager; Mr. Jose Guerrero, Sgt.-atarms; and Board Members Ms. Virginia Carillo, Ms. Wilma Fernandez, Mr. Arturo Morales and Mr. Teddy Angeles. 3. During the whole-day affair, the background music loudly and repeatedly played over the sound system was the political jingle advertisement of Mandaluyong City candidate for Mayor, Benjamin Benhur Abalos, Jr., sang to the tune of the song SHA LALA LALA. 4. Some of the participants wore T-shirts with the name of candidate Benhur" Abalos, Jr.," printed in over-sized colored letters. 5. Mayor Benjamin Abalos, Sr. delivered a speech wherein he offered and promised the Mandaluyong City public school teachers and employees a hazard pay of P1,000.00, and increasing their allowances from P1,500.00 to P2,000.00 for food, or with a total of P3,000.00 which they will get by the end of the month. 6. The offers and promises to said public school teachers, who are members of the Board of Election Inspectors of Mandaluyong City and registered voters thereat, were made a few weeks before the election to induce or unduly influence the said teachers and the public in general (the other guests) to vote for the candidacy of Benjamin "Benhur" Abalos, Jr.. 7. The offers and promises of Mayor Abalos, Sr., and the enthusiastic acceptance of said monetary increase of allowances by the public school teachers and employees of Mandaluyong City, is a violation of Section 261 pars. (a), (b) and (j) of the Omnibus Election Code against vote-buying and vote-selling. [3] The Director[4] of the Law Department of the COMELEC conducted a preliminary investigation. All the private respondents filed separate counter-affidavits[5] with prayer to dismiss the complaint. On November 26, 1998, the Director of the Law Department submitted his findings to the COMELEC En Banc recommending that the complaint be dismissed for insufficiency of evidence. On December 1, 1998, the COMELEC En Banc issued the assailed Resolution No. 98-3208[6] dismissing the complaint "for insufficiency of evidence to establish a prima facie case," Considering that this complaint, being criminal in nature, must have all its allegations supported by direct, strong, convincing and indubitable evidence; and that the submitted evidence of the complainant are mere self-serving statements and uncorroborated audio and visual recordings and a photograph; and considering further that the evidence of the respondents have more probative value and believable than the evidence of said complainants; and that the burden of proof lies with the complainants and not with the respondents. [7] On February 09, 1999, petitioners, without first submitting a motion for reconsideration, filed the instant petition with this Court.

They alleged therein that the COMELEC En Banc, in issuing Resolution No. 98-3208 dated December 1, 1998, acted " with apparent grave abuse of discretion ."[8] The petition must fail. Petitioners did not exhaust all the remedies available to them at the COMELEC level. Specifically, they did not seek a reconsideration of the assailed COMELEC En Banc Resolution as required by Section 1, Rule 13 of the 1993 COMELEC Rules of Procedure, thus: Section 1. What Pleadings are not Allowed. The following pleadings are not allowed: xxx d) motion for reconsideration of an en banc ruling, resolution, order or decision except in election offense cases; x x x. (Emphasis ours) It is not disputed that petitioners complaint before the COMELEC involves an election offense. But in this petition, they conveniently kept silent why they directly elevated to this Court the questioned Resolution without first filing a motion for reconsideration with the COMELEC En Banc. It was only after the respondents had filed their comment on the petition and called this Courts attention to petitioners' failure to comply with Section 1 of Rule 13 that they, in their Consolidated Reply, advanced the excuse that they "deemed it best not seek any further dilatory motion for reconsideration', even if allowed by Sec. 1 (d) of COMELEC Rule 13."[9] Petitioners' failure to file the required motion for reconsideration utterly disregarded the COMELEC Rules intended "to achieve an orderly, just, expeditious and inexpensive determination and disposition of every action and proceeding brought before the Commission." [10] Contrary to petitioners' statement that a resort to a motion for reconsideration is "dilatory," it bears stressing that the purpose of the said motion is to give the COMELEC an opportunity to correct the error imputed to it. [11] If the error is immediately corrected by way of a motion for reconsideration, then it is the most expeditious and inexpensive recourse. But if the COMELEC refuses to correct a patently erroneous act, then it commits a grave abuse of discretion justifying a recourse by the aggrieved party to a petition for certiorari. A petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, can only be resorted to if "there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law."[12] Having failed to file the required motion for reconsideration of the challenged Resolution, petitioners' instant petition is certainly premature.[13] Significantly, they have not raised any plausible reason for their direct recourse to this Court. In its assailed Resolution, the COMELEC cited a valid reason for dismissing petitioners' complaint against private respondents for vote buying. The COMELEC found that the evidence of the respondents have "more probative value and believable than the evidence of the complainants;" and that the evidence submitted by petitioners are "mere self-serving statements and uncorroborated audio and visual recording and a photograph." Moreover, Section 28 of Republic Act 6646 provides: SEC. 28. Prosecution of Vote-buying and Vote-selling. The representation of a complaint for violations of paragraph (a) or (b) of Section 261 of Batas Pambansa Blg. 881 supported by affidavits of complaining witnesses attesting to the offer or promise by or of the voters acceptance of money or other consideration from the relatives, leaders or sympathizers of candidate , shall be sufficient basis for an investigation to be immediately conducted by the Commission, directly or through its duly authorized legal officers, under Section 68 or Section 265 of said Batas Pambansa Blg. 881. x x x. (Emphasis ours) Petitioners' complaint expressly states that no supporting affidavits were submitted by the complaining witnesses [14] to sustain their charge of vote buying. Suffice it to state that the absence of such supporting affidavits shows the frailty of petitioners' complaint. Indeed, it is vulnerable to dismissal. WHEREFORE, the instant petition is DISMISSED. SO ORDERED.

PATRICIO TAN, FELIX FERRER, JUAN M. HAGAD, SERGIO HILADO, VIRGILIO GASTON, CONCHITA MINAYA, TERESITA ESTACIO, DESIDERIO DEFERIA, ROMEO GAMBOA, ALBERTO LACSON, FE HOFILENA, EMILY JISON, NIEVES LOPEZ AND CECILIA MAGSAYSAY, petitioners, vs. THE COMMISSION ON ELECTIONS and THE PROVINCIAL TREASURER OF NEGROS OCCIDENTAL,respondents. Gamboa & Hofilea Law Office for petitioners. ALAMPAY, J.: Prompted by the enactment of Batas Pambansa Blg. 885-An Act Creating a New Province in the Island of Negros to be known as the Province of Negros del Norte, which took effect on December 3, 1985, Petitioners herein, who are residents of the Province of Negros Occidental, in the various cities and municipalities therein, on December 23, 1985, filed with this Court a case for Prohibition for the purpose of stopping respondents Commission on Elections from conducting the plebiscite which, pursuant to and in implementation of the aforesaid law, was scheduled for January 3, 1986. Said law provides: SECTION 1. The Cities of Silay, Cadiz, and San Carlos and the municipalities of Calatrava, Taboso, Escalante, Sagay, Manapla, Victorias, E.R. Magalona; and Salvador Benedicto, all in the northern portion of the Island of Negros, are hereby separated from the province to be known as the Province of Negros del Norte. SEC. 2. The boundaries of the new province shall be the southern limits of the City of Silay, the Municipality of Salvador Benedicto and the City of San Carlos on the south and the territorial limits of the northern portion to the Island of Negros on the west, north and east, comprising a territory of 4,019.95 square kilometers more or less. SEC. 3. The seat of government of the new province shall be the City of Cadiz. SEC. 4. A plebiscite shall be conducted in the proposed new province which are the areas affected within a period of one hundred and twenty days from the approval of this Act. After the ratification of the creation of the Province of Negros del Norte by a majority of the votes cast in such plebiscite, the President of the Philippines shall appoint the first officials of the province. SEC. 5. The Commission on Elections shall conduct and supervise the plebiscite herein provided, the expenses for which shall be charged to local funds. SEC. 6. This Act shall takeeffect upon its approval. (Rollo, pp. 23-24) Petitioners contend that Batas Pambansa Blg. 885 is unconstitutional and it is not in complete accord with the Local Government Code as in Article XI, Section 3 of our Constitution, it is expressly mandated that See. 3. No province, city, municipality or barrio may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code, and subject to the approval by a majority of the votes in a plebiscite in the unit or units affected. Section 197 of the Local Government Code enumerates the conditions which must exist to provide the legal basis for the creation of a provincial unit and these requisites are: SEC. 197. Requisites for Creation. A province may be created if it has a territory of at least three thousand five hundred square kilometers, a population of at least five hundred thousand persons, an average estimated annual income, as certified by the Ministry of Finance, of not less than ten million pesos for the last three consecutive years, and its creation shall not reduce the population and income of the mother province or provinces at the time of said creation to less than the minimum requirements under this section. The territory need not be contiguous if it comprises two or more islands. The average estimated annual income shall include the income alloted for both the general and infrastructural funds, exclusive of trust funds, transfers and nonrecurring income. (Rollo, p. 6) Due to the constraints brought about by the supervening Christmas holidays during which the Court was in recess and unable to timely consider the petition, a supplemental pleading was filed by petitioners on January 4, 1986, averring therein that the plebiscite sought to be restrained by them was held on January 3, 1986 as scheduled but that there are still serious issues raised in the instant case affecting the

legality, constitutionality and validity of such exercise which should properly be passed upon and resolved by this Court. The plebiscite was confined only to the inhabitants of the territory of Negros del Nrte, namely: the Cities of Silay, Cadiz, and San Carlos, and the municipalities of Calatrava, Taboso, Escalante, Sagay, Manapla, Victorias, E.B. Magalona and Don Salvador Benedicto. Because of the exclusions of the voters from the rest of the province of Negros Occidental, petitioners found need to change the prayer of their petition "to the end that the constitutional issues which they have raised in the action will be ventilated and given final resolution.'"At the same time, they asked that the effects of the plebiscite which they sought to stop be suspended until the Supreme Court shall have rendered its decision on the very fundamental and far-reaching questions that petitioners have brought out. Acknowledging in their supplemental petition that supervening events rendered moot the prayer in their initial petition that the plebiscite scheduled for January 3, 1986, be enjoined, petitioners plead, nevertheless, that... a writ of Prohibition be issued, directed to Respondent Commission on Elections to desist from issuing official proclamation of the results of the plebiscite held on January 3, 1986. Finding that the exclusion and non-participation of the voters of the Province of Negros Occidental other than those living within the territory of the new province of Negros del Norte to be not in accordance with the Constitution, that a writ of mandamus be issued, directed to the respondent Commission on Elections, to schedule the holding of another plebiscite at which all the qualified voters of the entire Province of Negros Occidental as now existing shall participate, at the same time making pronouncement that the plebiscite held on January 3, 1986 has no legal effect, being a patent legal nullity; And that a similar writ of Prohibition be issued, directed to the respondent Provincial Treasurer, to desist from ordering the release of any local funds to answer for expenses incurred in the holding of such plebiscite until ordered by the Court. (Rollo pp. 9-10). Petitioners further prayed that the respondent COMELEC hold in abeyance the issuance of any official proclamation of the results of the aforestated plebiscite. During the pendency of this case, a motion that he be allowed to appear as amicus curiae in this case (dated December 27, 1985 and filed with the Court on January 2, 1986) was submitted by former Senator Ambrosio Padilla. Said motion was granted in Our resolution of January 2, 1986. Acting on the petition, as well as on the supplemental petition for prohibition with preliminary injunction with prayer for restraining order, the Court, on January 7, 1986 resolved, without giving due course to the same, to require respondents to comment, not to file a motion to dismiss. Complying with said resolution, public respondents, represented by the Office of the Solicitor General, on January 14, 1986, filed their Comment, arguing therein that the challenged statute.-Batas Pambansa 885, should be accorded the presumption of legality. They submit that the said law is not void on its face and that the petition does not show a clear, categorical and undeniable demonstration of the supposed infringement of the Constitution. Respondents state that the powers of the Batasang-Pambansa to enact the assailed law is beyond question. They claim that Batas Pambansa Big. 885 does not infringe the Constitution because the requisites of the Local Government Code have been complied with. Furthermore, they submit that this case has now become moot and academic with the proclamation of the new Province of Negros del Norte. Respondents argue that the remaining cities and municipalities of the Province of Negros Occidental not included in the area of the new Province of Negros del Norte, de not fall within the meaning and scope of the term "unit or units affected", as referred to in Section 3 of Art. XI of our Constitution. On this reasoning, respondents maintain that Batas Pambansa Blg. 885 does not violate the Constitution, invoking and citing the case of Governor Zosimo Paredes versus the Honorable Executive Secretary to the President, et al. (G.R. No. 55628, March 2, 1984 (128 SCRA 61), particularly the pronouncements therein, hereunder quoted: 1. Admittedly,this is one of those cases where the discretion of the Court is allowed considerable leeway. There is indeed an element of ambiguity in the use of the expression 'unit or units affected'. It is plausible to assert as petitioners do that when certain Barangays are separated from a parent municipality to form a new one, all the voters therein are affected. It is much more persuasive, however, to contend as respondents do that the acceptable construction is for those voters, who

are not from the barangays to be separated, should be excluded in the plebiscite. 2. For one thing, it is in accordance with the settled doctrine that between two possible constructions, one avoiding a finding of unconstitutionality and the other yielding such a result, the former is to be preferred. That which will save, not that which will destroy, commends itself for acceptance. After all, the basic presumption all these years is one of validity. ... 3. ... Adherence to such philosophy compels the conclusion that when there are indications that the inhabitants of several barangays are inclined to separate from a parent municipality they should be allowed to do so. What is more logical than to ascertain their will in a plebiscite called for that purpose. It is they, and they alone, who shall constitute the new unit. New responsibilities will be assumed. New burdens will be imposed. A new municipal corporation will come into existence. Its birth will be a matter of choice-their choice. They should be left alone then to decide for themselves. To allow other voters to participate will not yield a true expression of their will. They may even frustrate it, That certainly will be so if they vote against it for selfish reasons, and they constitute the majority. That is not to abide by the fundamental principle of the Constitution to promote local autonomy, the preference being for smaller units. To rule as this Tribunal does is to follow an accepted principle of constitutional construction, that in ascertaining the meaning of a particular provision that may give rise to doubts, the intent of the framers and of the people may be gleaned from provisions in pari materia. Respondents submit that said ruling in the aforecited case applies equally with force in the case at bar. Respondents also maintain that the requisites under the Local Government Code (P.D. 337) for the creation of the new province of Negros del Norte have all been duly complied with, Respondents discredit petitioners' allegations that the requisite area of 3,500 square kilometers as so prescribed in the Local Government Code for a new province to be created has not been satisfied. Petitioners insist that the area which would comprise the new province of Negros del Norte, would only be about 2,856.56 square kilometers and which evidently would be lesser than the minimum area prescribed by the governing statute. Respondents, in this regard, point out and stress that Section 2 of Batas Pambansa Blg. 885 creating said new province plainly declares that the territorial boundaries of Negros del Norte comprise an area of 4,019.95 square kilometers, more or less. As a final argument, respondents insist that instant petition has been rendered moot and academic considering that a plebiscite has been already conducted on January 3, 1986; that as a result thereof, the corresponding certificate of canvass indicated that out of 195,134 total votes cast in said plebiscite, 164,734 were in favor of the creation of Negros del Norte and 30,400 were against it; and because "the affirmative votes cast represented a majority of the total votes cast in said plebiscite, the Chairman of the Board of Canvassers proclaimed the new province which shall be known as "Negros del Norte". Thus, respondents stress the fact that following the proclamation of Negros del Norte province, the appointments of the officials of said province created were announced. On these considerations, respondents urge that this case should be dismissed for having been rendered moot and academic as the creation of the new province is now a "fait accompli." In resolving this case, it will be useful to note and emphasize the facts which appear to be agreed to by the parties herein or stand unchallenged. Firstly, there is no disagreement that the Provincial Treasurer of the Province of Negros Occidental has not disbursed, nor was required to disburse any public funds in connection with the plebiscite held on January 3, 1986 as so disclosed in the Comment to the Petition filed by the respondent Provincial Treasurer of Negros Occidental dated January 20, 1986 (Rollo, pp. 36-37). Thus, the prayer of the petitioners that said Provincial Treasurer be directed by this Court to desist from ordering the release of any public funds on account of such plebiscite should not longer deserve further consideration. Secondly, in Parliamentary Bill No. 3644 which led to the enactment of Batas Pambansa Blg. 885 and the creation of the new Province of Negros del Norte, it expressly declared in Sec. 2 of the aforementioned Parliamentary Bill, the following: SEC. 2. The boundaries of the new province shall be the southern limits of the City of Silay, the Municipality of Salvador Benedicto and the City of San Carlos on the South and the natural boundaries of the northern portion of the Island of Negros on the West, North and East, containing an area of 285,656 hectares more or less . (Emphasis supplied).

However, when said Parliamentary Bill No. 3644 was very quickly enacted into Batas Pambansa Blg. 885, the boundaries of the new Province of Negros del Norte were defined therein and its boundaries then stated to be as follows: SECTION 1. The Cities of Silay, Cadiz, and San Carlos and the municipalities of Calatrava, Toboso, Escalante, Sagay, Manapla, Victorias, E.R. Magalona; and Salvador Benedicto, all in the northern portion of the Island of Negros, are hereby separated from the Province of Negros Occidental and constituted into a new province to be known as the Province of Negros del Norte. SEC. 1. The boundaries of the new province shall be the southern limits of the City of Silay, the Municipality of Salvador Benedicto and the City of San Carlos on the south and the territorial limits of the northern portion of the Island of Negros on the West, North and East, comprising a territory of 4,019.95 square kilometers more or less. Equally accepted by the parties is the fact that under the certification issued by Provincial Treasurer Julian L. Ramirez of the Province of Negros Occidental, dated July 16, 1985, it was therein certified as follows: xxx xxx xxx This is to certify that the following cities and municipalities of Negros Occidental have the land area as indicated hereunder based on the Special Report No. 3, Philippines 1980, Population, Land Area and Density: 1970, 1975 and 1980 by the National Census and Statistics Office, Manila. Land Area (Sq. Km.) 1. Silay City ...................................................................214 .8 2. E.B. Magalona............................................................11 3.3 3. Victorias................................................................... ..133.9 4. Manapla................................................................... ...112.9 5. Cadiz City ..................................................................516. 5 6. Sagay ...................................................................... ...389.6 7. Escalante ................................................................ ....124.0 8. Toboso..................................................................... ..123.4 9. Calatrava................................................................. ....504.5 10. San Carlos City...........................................................451.3 11. Don Salvador Benedicto.................................... (not available) This certification is issued upon the request of Dr. Patricio Y. Tan for whatever purpose it may serve him. (SGD.) JULIAN L. RAMIREZ Provincial Treasurer (Exh. "C" of Petition, Rollo, p. 90). Although in the above certification it is stated that the land area of the relatively new municipality of Don Salvador Benedicto is not available, it is an uncontradicted fact that the area comprising Don Salvador municipality, one of the component units of the new province, was derived from the City of San Carlos and from the Municipality of Calatrava, Negros Occidental, and added thereto was a portion of about one-fourth the land area of the town of Murcia, Negros Occidental. It is significant to note the uncontroverted submission of petitioners that the total land area of the entire municipality of Murcia, Negros Occidental is only 322.9 square kilometers (Exh. "D", Rollo, p. 91). One-fourth of this total land area of Murcia that was added to the portions derived from the land area of Calatrava, Negros Occidental and San Carlos City (Negros Occidental) would constitute, therefore, only 80.2 square kilometers. This area of 80.2 square kilometers if then added to 2,685.2 square kilometers, representing the total land area of the Cities of Silay, San Carlos and Cadiz and the Municipalities of E.R. Magalona, Victorias, Manapla, Sagay, Escalante, Taboso and Calatrava, will result in approximately an area of only 2,765.4 square kilometers using as basis the Special Report, Philippines 1980, Population, Land

Area and Density: 1970, 1975 and 1980 of the National Census and Statistics Office, Manila (see Exhibit "C", Rollo, p. 90). No controversion has been made by respondent with respect to the allegations of petitioners that the original provision in the draft legislation, Parliamentary Bill No. 3644, reads: SEC. 4. A plebiscite shall be conducted in the areas affected within a period of one hundred and twenty days from the approval of this Act. After the ratification of the creation of the Province of Negros del Norte by a majority of the votes cast in such plebiscite, the President shall appoint the first officials of the new province. However, when Batas Pambansa Blg. 885 was enacted, there was a significant change in the above provision. The statute, as modified, provides that the requisite plebiscite "shall be conducted in the proposed new province which are the areas affected." It is this legislative determination limiting the plebiscite exclusively to the cities and towns which would comprise the new province that is assailed by the petitioners as violative of the provisions of our Constitution. Petitioners submit that Sec. 3, ART XI thereof, contemplates a plebiscite that would be held in the unit or units affected by the creation of the new province as a result of the consequent division of and substantial alteration of the boundaries of the existing province. In this instance, the voters in the remaining areas of the province of Negros Occidental should have been allowed to participate in the questioned plebiscite. Considering that the legality of the plebiscite itself is challenged for non-compliance with constitutional requisites, the fact that such plebiscite had been held and a new province proclaimed and its officials appointed, the case before Us cannot truly be viewed as already moot and academic. Continuation of the existence of this newly proclaimed province which petitioners strongly profess to have been illegally born, deserves to be inquired into by this Tribunal so that, if indeed, illegality attaches to its creation, the commission of that error should not provide the very excuse for perpetuation of such wrong. For this Court to yield to the respondents' urging that, as there has been fait accompli then this Court should passively accept and accede to the prevailing situation is an unacceptable suggestion. Dismissal of the instant petition, as respondents so propose is a proposition fraught with mischief. Respondents' submission will create a dangerous precedent. Should this Court decline now to perform its duty of interpreting and indicating what the law is and should be, this might tempt again those who strut about in the corridors of power to recklessly and with ulterior motives, create, merge, divide and/or alter the boundaries of political subdivisions, either brazenly or stealthily, confident that this Court will abstain from entertaining future challenges to their acts if they manage to bring about a fait accompli. In the light of the facts and circumstances alluded to by petitioners as attending to the unusually rapid creation of the instant province of Negros del Norte after a swiftly scheduled plebiscite, this Tribunal has the duty to repudiate and discourage the commission of acts which run counter to the mandate of our fundamental law, done by whatever branch of our government. This Court gives notice that it will not look with favor upon those who may be hereafter inclined to ram through all sorts of legislative measures and then implement the same with indecent haste, even if such acts would violate the Constitution and the prevailing statutes of our land. It is illogical to ask that this Tribunal be blind and deaf to protests on the ground that what is already done is done. To such untenable argument the reply would be that, be this so, the Court, nevertheless, still has the duty and right to correct and rectify the wrong brought to its attention. On the merits of the case. Aside from the simpler factual issue relative to the land area of the new province of Negros del Norte, the more significant and pivotal issue in the present case revolves around in the interpretation and application in the case at bar of Article XI, Section 3 of the Constitution, which being brief and for convenience, We again quote: SEC. 3. No province, city, municipality or barrio may be created, divided, merged abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code, and subject to the approval by a majority of the votes in a plebiscite in the unit or units affected. It can be plainly seen that the aforecited constitutional provision makes it imperative that there be first obtained "the approval of a majority of votes in the plebiscite in the unit or units affected" whenever a province is created, divided or merged and there is substantial alteration of the boundaries. It is thus inescapable to conclude that the boundaries of the existing province of Negros Occidental would necessarily be substantially altered by the division of its existing boundaries in order that there can be created the proposed new province of Negros del Norte. Plain and simple logic will demonstrate than that two political units would be affected. The first would be the parent province of Negros Occidental because its boundaries would be substantially altered. The other affected entity would be composed of those in the area subtracted from the mother province to constitute the proposed province of Negros del Norte.

We find no way to reconcile the holding of a plebiscite that should conform to said constitutional requirement but eliminates the participation of either of these two component political units. No amount of rhetorical flourishes can justify exclusion of the parent province in the plebiscite because of an alleged intent on the part of the authors and implementors of the challenged statute to carry out what is claimed to be a mandate to guarantee and promote autonomy of local government units. The alleged good intentions cannot prevail and overrule the cardinal precept that what our Constitution categorically directs to be done or imposes as a requirement must first be observed, respected and complied with. No one should be allowed to pay homage to a supposed fundamental policy intended to guarantee and promote autonomy of local government units but at the same time transgress, ignore and disregard what the Constitution commands in Article XI Section 3 thereof. Respondents would be no different from one who hurries to pray at the temple but then spits at the Idol therein. We find no merit in the submission of the respondents that the petition should be dismissed because the motive and wisdom in enacting the law may not be challenged by petitioners. The principal point raised by the petitioners is not the wisdom and motive in enacting the law but the infringement of the Constitution which is a proper subject of judicial inquiry. Petitioners' discussion regarding the motives behind the enactment of B.P. Blg. 885 to say the least, are most enlightening and provoking but are factual issues the Court cannot properly pass upon in this case. Mention by petitioners of the unexplained changes or differences in the proposed Parliamentary Bill No. 3644 and the enacted Batas Pambansa Blg. 885; the swift and surreptitious manner of passage and approval of said law; the abrupt scheduling of the plebiscite; the reference to news articles regarding the questionable conduct of the said plebiscite held on January 3, 1986; all serve as interesting reading but are not the decisive matters which should be reckoned in the resolution of this case. What the Court considers the only significant submissions lending a little support to respondents' case is their reliance on the rulings and pronouncements made by this Court in the case of Governor Zosimo Paredes versus The Honorable Executive Secretary to the President, et al., G.R. No. 55628, March 2, 1984 (128 SCRA 6). In said case relating to a plebiscite held to ratify the creation of a new municipality from existing barangays, this Court upheld the legality of the plebiscite which was participated in exclusively by the people of the barangay that would constitute the new municipality. This Court is not unmindful of this solitary case alluded to by respondents. What is, however, highly significant are the prefatory statements therein stating that said case is "one of those cases where the discretion of the Court is allowed considerable leeway" and that "there is indeed an element of ambiguity in the use of the expression unit or units affected." The ruling rendered in said case was based on a claimed prerogative of the Court then to exercise its discretion on the matter. It did not resolve the question of how the pertinent provision of the Constitution should be correctly interpreted. The ruling in the aforestated case of Paredes vs. The Honorable Executive Secretary, et al. (supra) should not be taken as a doctrinal or compelling precedent when it is acknowledged therein that "it is plausible to assert, as petitioners do, that when certain Barangays are separated from a parent municipality to form a new one, all the voters therein are affected." It is relevant and most proper to mention that in the aforecited case of Paredes vs. Executive Secretary, invoked by respondents, We find very lucidly expressed the strong dissenting view of Justice Vicente Abad Santos, a distinguished member of this Court, as he therein voiced his opinion, which We hereunder quote: 2. ... when the Constitution speaks of "the unit or units affected" it means all of the people of the municipality if the municipality is to be divided such as in the case at bar or an of the people of two or more municipalities if there be a merger. I see no ambiguity in the Constitutional provision. This dissenting opinion of Justice Vicente Abad Santos is the forerunner of the ruling which We now consider applicable to the case at bar, In the analogous case of Emilio C. Lopez, Jr., versus the Honorable Commission on Elections, L-56022, May 31, 1985, 136 SCRA 633, this dissent was reiterated by Justice Abad Santos as he therein assailed as suffering from a constitutional infirmity a referendum which did not include all the people of Bulacan and Rizal, when such referendum was intended to ascertain if the people of said provinces were willing to give up some of their towns to Metropolitan Manila. His dissenting opinion served as a useful guideline in the instant case. Opportunity to re-examine the views formerly held in said cases is now afforded the present Court. The reasons in the mentioned cases invoked by respondents herein were formerly considered acceptable because of the views then taken that local autonomy would be better promoted However, even this consideration no longer retains persuasive value. The environmental facts in the case before Us readily disclose that the subject matter under consideration is of greater magnitude with concomitant multifarious complicated problems. In the earlier case,

what was involved was a division of a barangay which is the smallest political unit in the Local Government Code. Understandably, few and lesser problems are involved. In the case at bar, creation of a new province relates to the largest political unit contemplated in Section 3, Art. XI of the Constitution. To form the new province of Negros del Norte no less than three cities and eight municipalities will be subtracted from the parent province of Negros Occidental. This will result in the removal of approximately 2,768.4 square kilometers from the land area of an existing province whose boundaries will be consequently substantially altered. It becomes easy to realize that the consequent effects cf the division of the parent province necessarily will affect all the people living in the separate areas of Negros Occidental and the proposed province of Negros del Norte. The economy of the parent province as well as that of the new province will be inevitably affected, either for the better or for the worse. Whatever be the case, either or both of these political groups will be affected and they are, therefore, the unit or units referred to in Section 3 of Article XI of the Constitution which must be included in the plebiscite contemplated therein. It is a well accepted rule that "in ascertaining the meaning of a particular provision that may give rise to doubts, the intent of the framers and of the people, may be gleaned from the provisions in pari materia." Parliamentary Bill No. 3644 which proposed the creation of the new province of Negros del Norte recites in Sec. 4 thereof that "the plebiscite shall be conducted in the areas affected within a period of one hundred and twenty days from the approval of this Act." As this draft legislation speaks of "areas," what was contemplated evidently are plurality of areas to participate in the plebiscite. Logically, those to be included in such plebiscite would be the people living in the area of the proposed new province and those living in the parent province. This assumption will be consistent with the requirements set forth in the Constitution. We fail to find any legal basis for the unexplained change made when Parliamentary Bill No. 3644 was enacted into Batas Pambansa Blg. 885 so that it is now provided in said enabling law that the plebiscite "shall be conducted in the proposed new province which are the areas affected." We are not disposed to agree that by mere legislative fiat the unit or units affected referred in the fundamental law can be diminished or restricted by the Batasang Pambansa to cities and municipalities comprising the new province, thereby ignoring the evident reality that there are other people necessarily affected. In the mind of the Court, the change made by those responsible for the enactment of Batas Pambansa Blg. 885 betrays their own misgivings. They must have entertained apprehensions that by holding the plebiscite only in the areas of the new proposed province, this tactic will be tainted with illegality. In anticipation of a possible strong challenge to the legality of such a plebiscite there was, therefore, deliberately added in the enacted statute a self-serving phrase that the new province constitutes the area affected. Such additional statement serves no useful purpose for the same is misleading, erroneous and far from truth. The remaining portion of the parent province is as much an area affected. The substantial alteration of the boundaries of the parent province, not to mention the other adverse economic effects it might suffer, eloquently argue the points raised by the petitioners. Petitioners have averred without contradiction that after the creation of Negros del Norte, the province of Negros Occidental would be deprived of the long established Cities of Silay, Cadiz, and San Carlos, as well as the municipality of Victorias. No controversion has been made regarding petitioners' assertion that the areas of the Province of Negros Occidental will be diminished by about 285,656 hectares and it will lose seven of the fifteen sugar mills which contribute to the economy of the whole province. In the language of petitioners, "to create Negros del Norte, the existing territory and political subdivision known as Negros Occidental has to be partitioned and dismembered. What was involved was no 'birth' but "amputation." We agree with the petitioners that in the case of Negros what was involved was a division, a separation; and consequently, as Sec. 3 of Article XI of the Constitution anticipates, a substantial alteration of boundary. As contended by petitioners, Indeed, the terms 'created', 'divided', 'merged', 'abolished' as used in the constitutional provision do not contemplate distinct situation isolated from the mutually exclusive to each other. A Province maybe created where an existing province is divided or two provinces merged. Such cases necessarily will involve existing unit or units abolished and definitely the boundary being substantially altered. It would thus be inaccurate to state that where an existing political unit is divided or its boundary substantially altered, as the Constitution provides, only some and not all the voters in the whole unit which suffers dismemberment or substantial alteration of its boundary are affected. Rather, the contrary is true. It is also Our considered view that even hypothetically assuming that the merits of this case can depend on the mere discretion that this

Court may exercise, nevertheless, it is the petitioners' case that deserve to be favored. It is now time for this Court to set aside the equivocations and the indecisive pronouncements in the adverted case of Paredes vs. the Honorable Executive Secretary, et al. (supra). For the reasons already here express, We now state that the ruling in the two mentioned cases sanctioning the exclusion of the voters belonging to an existing political unit from which the new political unit will be derived, from participating in the plebiscite conducted for the purpose of determining the formation of another new political unit, is hereby abandoned. In their supplemental petition, dated January 4, 1986, it is prayed for by petitioners that a writ of mandamus be issued, directing the respondent Commission on Elections, to schedule the holding of another plebiscite at which all the qualified voters of the entire province of Negros Occidental as now existing shall participate and that this Court make a pronouncement that the plebiscite held on January 3, 1986 has no legal effect for being a patent nullity. The Court is prepared to declare the said plebiscite held on January 3, 1986 as null and void and violative of the provisions of Sec. 3, Article XI of the Constitution. The Court is not, however, disposed to direct the conduct of a new plebiscite, because We find no legal basis to do so. With constitutional infirmity attaching to the subject Batas Pambansa Big. 885 and also because the creation of the new province of Negros del Norte is not in accordance with the criteria established in the Local Government Code, the factual and legal basis for the creation of such new province which should justify the holding of another plebiscite does not exist. Whatever claim it has to validity and whatever recognition has been gained by the new province of Negros del Norte because of the appointment of the officials thereof, must now be erased. That Negros del Norte is but a legal fiction should be announced. Its existence should be put to an end as quickly as possible, if only to settle the complications currently attending to its creation. As has been manifested, the parent province of Negros del Norte has been impleaded as the defendant in a suit filed by the new Province of Negros del Norte, before the Regional Trial Court of Negros (del Norte), docketed as Civil Case No. 169-C, for the immediate allocation, distribution and transfer of funds by the parent province to the new province, in an amount claimed to be at least P10,000,000.00. The final nail that puts to rest whatever pretension there is to the legality of the province of Negros del Norte is the significant fact that this created province does not even satisfy the area requirement prescribed in Section 197 of the Local Government Code, as earlier discussed. It is of course claimed by the respondents in their Comment to the exhibits submitted by the petitioners (Exhs. C and D, Rollo, pp. 19 and 91), that the new province has a territory of 4,019.95 square kilometers, more or less. This assertion is made to negate the proofs submitted, disclosing that the land area of the new province cannot be more than 3,500 square kilometers because its land area would, at most, be only about 2,856 square kilometers, taking into account government statistics relative to the total area of the cities and municipalities constituting Negros del Norte. Respondents insist that when Section 197 of the Local Government Code speaks of the territory of the province to be created and requires that such territory be at least 3,500 square kilometers, what is contemplated is not only the land area but also the land and water over which the said province has jurisdiction and control. It is even the submission of the respondents that in this regard the marginal sea within the three mile limit should be considered in determining the extent of the territory of the new province. Such an interpretation is strained, incorrect, and fallacious. The last sentence of the first paragraph of Section 197 is most revealing. As so stated therein the "territory need not be contiguous if it comprises two or more islands." The use of the word territory in this particular provision of the Local Government Code and in the very last sentence thereof, clearly reflects that "territory" as therein used, has reference only to the mass of land area and excludes the waters over which the political unit exercises control. Said sentence states that the "territory need not be contiguous." Contiguous means (a) in physical contact; (b) touching along all or most of one side; (c) near, text, or adjacent (Webster's New World Dictionary, 1972 Ed., p. 307). "Contiguous", when employed as an adjective, as in the above sentence, is only used when it describes physical contact, or a touching of sides of two solid masses of matter. The meaning of particular terms in a statute may be ascertained by reference to words associated with or related to them in the statute (Animal Rescue League vs. Assessors, 138 A.L.R. p. 110). Therefore, in the context of the sentence above, what need not be "contiguous" is the "territory" the physical mass of land area. There would arise no need for the legislators to use the word contiguous if they had intended that the term "territory" embrace not only land area but also territorial waters. It can be safely concluded that the word territory in the first paragraph of Section 197 is meant to be synonymous with "land area" only. The words and phrases used in a statute should be given the meaning intended by the legislature (82 C.J.S., p. 636). The sense in which the words are used furnished the rule of construction (In re Winton Lumber Co., 63 p. 2d., p. 664).

The distinction between "territory" and "land area" which respondents make is an artificial or strained construction of the disputed provision whereby the words of the statute are arrested from their plain and obvious meaning and made to bear an entirely different meaning to justify an absurd or unjust result. The plain meaning in the language in a statute is the safest guide to follow in construing the statute. A construction based on a forced or artificial meaning of its words and out of harmony of the statutory scheme is not to be favored (Helvering vs. Hutchings, 85 L. Ed., p. 909). It would be rather preposterous to maintain that a province with a small land area but which has a long, narrow, extended coast line, (such as La Union province) can be said to have a larger territory than a land-locked province (such as Ifugao or Benguet) whose land area manifestly exceeds the province first mentioned. Allegations have been made that the enactment of the questioned state was marred by "dirty tricks", in the introduction and passing of Parliamentary Bill No. 3644 "in secret haste" pursuant to sinister designs to achieve "pure and simple gerrymandering; "that recent happenings more than amply demonstrate that far from guaranteeing its autonomy it (Negros del Norte) has become the fiefdom of a local strongman" (Rollo, p. 43; emphasis supplied). It is not for this Court to affirm or reject such matters not only because the merits of this case can be resolved without need of ascertaining the real motives and wisdom in the making of the questioned law. No proper challenge on those grounds can also be made by petitioners in this proceeding. Neither may this Court venture to guess the motives or wisdom in the exercise of legislative powers. Repudiation of improper or unwise actions taken by tools of a political machinery rests ultimately, as recent events have shown, on the electorate and the power of a vigilant people. Petitioners herein deserve and should receive the gratitude of the people of the Province of Negros Occidental and even by our Nation. Commendable is the patriotism displayed by them in daring to institute this case in order to preserve the continued existence of their historic province. They were inspired undoubtedly by their faithful commitment to our Constitution which they wish to be respected and obeyed. Despite the setbacks and the hardships which petitioners aver confronted them, they valiantly and unfalteringly pursued a worthy cause. A happy destiny for our Nation is assured as long as among our people there would be exemplary citizens such as the petitioners herein. WHEREFORE, Batas Pambansa Blg. 885 is hereby declared unconstitutional. The proclamation of the new province of Negros del Norte, as well as the appointment of the officials thereof are also declared null and void. SO ORDERED.