EN BANC

G.R. No. 230249, April 24, 2018

ATTY. PABLO B. FRANCISCO, Petitioner, v. COMMISSION ON

ELECTIONS AND ATTY. JOHNIELLE KEITH P. NIETO, Respondents.

DECISION

VELASCO JR., J.:

Nature of the Case

This treats of the petition for certiorari under Rule 64, in relation to Rule 65,
of the Rules of Court filed by Atty. Pablo B. Francisco (Francisco), which seeks
to nullify the February 2, 2017 Resolution1 of the public respondent
Commission on Elections (COMELEC) En Banc. The assailed ruling dismissed
Francisco's Petition for Disqualification against private respondent Atty.
Johnielle Keith P. Nieto (Nieto).

The Facts

Francisco is a registered voter in Cainta, Rizal, while Nieto was elected as

mayor of the same municipality in 2013. Nieto filed a certificate of candidacy
(COC) to signify his bid for re-election for the 2016 National and Local
Elections.

On April 8, 2016, Francisco filed before the COMELEC a Petition for

Disqualification against Nieto, docketed as SPA 16-062(DC), alleging that on
April 1-2, 2016, respondent made financial contributions out of the
government coffers for the asphalt-paving of the road entrance along Imelda
Avenue of Cainta Green Park Village. This, according to petitioner, amounted
to the expending of public funds within forty-five (45) days before the 2016
polls and to illegal contributions for road repairs, respectively punishable
under Sees. 261(v)2 and 1043 of Batas Pambansa Blg. 881, otherwise known
as the Omnibus Election Code (OEC). Petitioner further claimed that the said
asphalt paving was one of the accomplishments that respondent reported on
his Facebook page.

In his Answer filed on April 22, 2016, Nieto countered that the questioned
asphalting project was subjected to public bidding on March 15, 2016, with a
Notice of Award issued on March 21, 2016. Thus, the asphalting project falls
within the excepted public works mentioned in Sec. 261(v)(l)(b) of the OEC.

During the preliminary conference on May 5, 2016, the counsels for the
parties marked their respective pieces of evidence. Thereafter, an Order was
issued giving them ten (10) days to file their respective memoranda. The
COMELEC would receive copies of the memoranda on May 16, 2016 and,
thereafter, the case was deemed submitted for resolution. In the interim,
Nieto would be re-elected as municipal mayor of Cainta, Rizal, having
garnered the plurality of votes upon the conclusion of the 2016 polls.

Ruling of the COMELEC

On August 16, 2016, the COMELEC Second Division promulgated a

Resolution4 dismissing the Petition for Disqualification against Nieto, and ruled
in the following wise:
From the foregoing, it is clear that a candidate cannot
be disqualified without a prior finding that he or she is
suffering from a disqualification provided by law or the
Constitution. To be sure, in order to disqualify a
candidate there must be a declaration by a final judgment
of a competent court that the candidate sought to be
disqualified is guilty of or found by the Commission to
be suffering from any disqualification provided by law or
the Constitution.

In the instant case, this Commission (Second Division)

finds no such prior declaration by a final judgment of a
competent court or of a finding of the Commission that
Respondent is guilty of the acts complained of Whether or
not the Respondent is guilty of the alleged acts is a
prejudicial question which should be determined first in
a proper proceedings (sic) before a tribunal with
competent jurisdiction. In the absence of such prior
finding of a competent tribunal, the Commission has no
basis to disqualify Respondent. That said, the case must
be dismissed.

WHEREFORE, premises considered, the instant Petition

is DISMISSED.

SO ORDERED.5
The COMELEC Second Division anchored its ruling on the Court's landmark
decision in Poe-Llamanzares v. COMELEC6 (Poe) wherein the Court enunciated
thusly:
Clearly, the amendment done in 2012 is an acceptance of
the reality of absence of an authorized proceeding for
determining before election the qualifications of
candidate. Such that, as presently required, to
disqualify a candidate there must be a declaration by a
final judgment of a competent court that the candidate
sought to be disqualified "is guilty of or found by the
Commission to be suffering from any disqualification
provided by law or the Constitution."

Insofar as the qualification of a candidate is concerned,

Rule 25 and Rule 23 are flipsides of one to the
other. Both do not allow, are not authorizations, are
 not vestment of jurisdiction, for the COMELEC to
determine the qualification of a candidate. The facts of
qualification must beforehand be established in a prior
proceeding before an authority properly vested with
jurisdiction. The prior determination of qualification
may be by statute, by executive order or by a judgment of
a competent court or tribunal. (emphasis added)
On September 8, 2016, petitioner moved for reconsideration from the
COMELEC Second Division's Resolution before the COMELEC En Banc, arguing
in the main that there need not be a final judgment by a competent court
that the candidate sought to be disqualified is guilty of or is suffering from
any disqualification. He also stressed that since the act complained of can
only be committed within forty-five (45) days before the election, it would be
impossible to secure a conviction prior to initiating the disqualification
proceedings.

Despite these strong asseverations, however, the COMELEC En Banc found no

reason to disturb the ruling of the Second Division. Instead, the seven-person
Commission echoed the pronouncement that for a petition for disqualification
to prosper, there must be "a declaration by a final judgment of a competent
court that the candidate sought to be disqualified is guilty of or found by the
Commission to be suffering from any disqualification provided by law or the
Constitution." The COMELEC En Banc then deemed that the denial of the
petition is the only course of action it could take under the premises. Thus, in
its assailed February 2, 2017 Resolution, the electoral tribunal held:
Although the ruling enunciated by the Supreme Court in
[Poe] has effectively emasculated the Commission's power
under COMELEC Resolution No. 9523 to disqualify a
candidate, it cannot decline to apply such ruling in view
of the principle that "judicial decisions applying or
interpreting the laws or the Constitution shall form a
part of the legal system of the Philippines."

As such, Petitioner's reliance on the cases cited in the

Motion for Reconsideration is misplaced, considering that
the Poe case is now the controlling doctrine on the
matter having been decided in 2016 and thus supersedes
any previous ruling on the matter.

x x x x

Consequently, having no leg to stand on, the

instant Motion for Reconsideration is DENIED and
the Resolution of the Commission (Second Division) is
hereby AFFIRMED.7
Hence, the instant recourse.

The Issues

The issues to be resolved by this Court can be condensed to the following:

 1. Whether or not the COMELEC acted in grave abuse of
discretion in ruling that a petition for
disqualification under Sec. 68 of the OEC cannot
prosper without a prior judgment finding the
respondent guilty of an election offense.
2. Whether or not petitioner sufficiently established
by substantial evidence that respondent violated
Secs. 261(v) and 104 of the OEC.

Petitioner bewails that the COMELEC abruptly dismissed the disqualification

case. According to petitioner, the situation ushered in by the COMELEC ruling
would render toothless Section 68 of the OEC against election irregularities
because of the virtual impossibility of compliance with the prior ruling
requirement. He also asserts that Poe does not apply to candidates for local
posts.

In his Comment, respondent Nieto cited the Poe ruling and averred that since
there was no prior declaration by a final judgment of a competent court or of
a finding of the Commission that he is guilty of the acts complained of, the
COMELEC Second Division had no basis to disqualify him. Nieto likens the
requirement of a prior ruling to a prejudicial question that must first be
determined in a proper proceeding before a tribunal with competent
jurisdiction.

Moreover, Nieto reiterated the defense that the asphalting project is outside
the ambit of the ban against the expenditure of public funds since it was
contracted prior to the 45-day period before the scheduled elections. It was,
thus, an infrastructure activity lawfully entered into by the local government
unit of Cainta. In addition, no public funds were disbursed for the project
during the ban since all expenses were for the account of the winning bidder,
Franzcor Trading and Construction.

The Office of the Solicitor General (OSG), representing the government, in its
Comment took a stance different from that of the COMELEC. The OSG argued
that Article IX-C, Section 2(2) and (3) of the Constitution granted the
COMELEC the quasi-judicial power to decide all questions affecting elections,
except those involving the right to vote. This power further finds legal
mooring in the dual aspect of the prohibited acts constituting the grounds for
disqualification under Section 68 of the OEC. Lastly, the OSG posited that the
context of the Poe ruling bars its application to local elective officials since the
discussions were aptly made within the confines of a national candidate for
the presidency.

The Court's Ruling

Petitioner is correct in his contention that a prior judgment is not a

precondition to filing a Petition for Disqualification. Nevertheless, the petition
must necessarily fail for lack of substantial evidence to establish that private
respondent committed an election offense.

Petitioner failed to comply with the material date rule

Before We discuss the merits of the case, the Court observes that petitioner
failed to state the material dates to establish that the instant recourse was
timely interposed. The petitioner merely stated that he received a copy of the
COMELEC's Resolution denying his motion for reconsideration on February 20,
2017, and that he was filing this petition within thirty (30) days from the said
date on March 22, 2017.8

The allegation is not sufficient. Rule 64, Section 3 of the Rules of Court
prescribes the period for elevating the COMELEC's ruling to this Court thusly:
Section 3. Time to file petition. - The petition shall
be filed within thirty (30) days from notice of the
judgment or final order or resolution sought to be
reviewed. The filing of a motion for new trial or
reconsideration of said judgment or final order or
resolution, if allowed under the procedural rules of the
Commission concerned, shall interrupt the period herein
fixed. If the motion is denied, the aggrieved party may
file the petition within the remaining period, but which
shall not be less than five (5) days in any event,
reckoned from notice of denial.
Clear from the provision is that the intervening period petitioner utilized in
moving for reconsideration before the COMELEC must be deducted from the
thirty (30)-day period for resorting to a Rule 64 petition. As held in Pates v.
COMELEC,9 the fresh period rule in Neypes v. Court of Appeals10 that resets
the period of the fi1ing of an appeal from the date of receipt of the ruling on
reconsideration is applicable only in civil cases, not in election controversies.
Filing a motion for reconsideration before the COMELEC then almost
guarantees that the full 30-day period could not be availed of.

In the case at bar, petitioner failed to indicate when he received a copy of the
August 16, 2016 Resolution of the COMELEC Second Division, from which he
moved for reconsideration on September 8, 2016. The Court is then unable to
determine how many days should be deducted from his period for filing a Rule
64 petition and, consequently, if the instant recourse had been filed on time.
The particular date of receipt is of utmost significance in this case since
petitioner cannot deny that he availed of the full 30-day period from February
20, 2017 to March 22, 2017. This means that unless petitioner filed his
motion for reconsideration on the very same day he received the COMELEC's
August 16, 2016 Resolution, the instant petition had been filed out of time. In
any case, non-compliance with the material date rule, in itself, is already a
ground for dismissal.11

Revisiting Poe and strengthening the jurisdiction of the COMELEC

Public respondent COMELEC relied heavily on the Court's pronouncement

in Poe when it dismissed the election controversy. The Court, however, takes
this opportunity to rectify Our position in Poe and to uphold the jurisdiction of
the COMELEC as strengthened under the present Constitution.

For perspective, the COMELEC was never part of the original version of the
1935 Constitution. Prior to its creation, it was the then Department of
Interior, through an Executive Bureau then directly, that superintended the
conduct of elections.12 The Courts were charged with resolving questions
affecting the right to vote as well as contested elections of local elective
officials, while the Secretary of Interior was vested with the authority to
enforce the election laws and assign local authorities to perform ministerial
duties relative thereto.

The close official relationship between the President and the Secretary of
Interior, however, aroused suspicion that the latter had been administering
election statutes not for the purpose of securing honest and free elections,
but to serve the political interest of the party in power to which they
belonged. They were never entirely free from suspicion of acting with partisan
bias. And this general dissatisfaction and distrust over the manner the
elections were conducted at that time impelled the National Assembly to
propose the creation of the COMELEC by constitutional amendment.13

Through a plebiscite held on June 17, 1940, several amendments were

introduced to the 1935 Constitution: modifying the term of office of the
President and the Vice-President from six (6) years to four (4) years, but with
re-election for another term establishing a bicameral Congress composed of
the Senate as the upper house and the House of Representatives as the lower
house; and creating an independent COMELEC.

Since its creation, the COMELEC's power had been increased in each
incarnation of the Constitution to reflect the country's awareness of the need
to provide greater regulation and protection to our electoral processes and to
ensure their integrity.14 To demonstrate, Article X, Section 2 of the 1935
Constitution, as amended, declares the power of the electoral commission
thusly:
Section 2. The Commission on Elections shall have
exclusive charge of the enforcement and administration of
all laws relative to the conduct of elections and shall
exercise all other functions which may be conferred upon
it by law. It shall decide, save those involving the
right to vote, all administrative questions affecting
elections, including the determination of the number and
location of polling places, and the appointment of
election inspectors and of other election officials. All
law enforcement agencies and instrumentalities of the
Government, when so required by the Commission, shall act
as its deputies for the purpose of insuring free,
orderly, and honest election. The decisions, orders, and
rulings of the Commission shall be subject to review by
the Supreme Court.

No pardon, parole. or suspension of sentence for the

violation of any election law may be granted without the
favorable recommendation of the Commission. (emphasis
added)
Thus, the administrative control over the conduct of elections erstwhile
exercised by the Secretary of Interior was shifted to the COMELEC. Under its
constitutional mandate, it was tasked with "the enforcement and
administration of all laws relative to the conduct of elections" and bestowed
the power to "decide save those involving the right to vole, all administrative
questions affecting elections." But since its authority to decide was
circumscribed to administrative questions, the courts retained their original
powers over local election contests.

It was not until the enactment of the 1973 Constitution when the power of
the COMELEC to resolve election controversies was institutionalized. Through
Article XII (C), Section 2 of the 1973 Constitution. the powers of the
COMELEC were expanded to the following:
SEC. 2. The Commission on Elections shall have the
following powers and functions:

(1) Enforce and administer all laws relative to the

conduct of elections.

(2) Be the sole judge of all contests relating to the

elections, returns, and qualifications of all Members of
the Batasang Pambansa and elective provincial and city
officials.

(3) Decide, save those involving the right to vote,

administrative questions affecting elections, including
the determination of the number and location of polling
places, the appointment of election officials and
inspectors, and the registration of voters.

(4) Deputize, with the consent or at the instance of the

President, law enforcement agencies and instrumentalities
of the Government, including the armed forces of the
Philippines, for the purpose of ensuring free, orderly,
and honest elections.

(5) Register and accredit political parties subject to

the provisions of Section eight hereof

(6) Recommend to the Batasang Pambansa effective measures

to minimize election expenses and prohibit all forms of
election frauds and malpractices, political opportunism,
guest or nuisance candidacy, or other similar acts.

(7) Submit to the President, the Prime Minister, and the

Batasang Pambansa a report on the conduct and manner of
each election.

(8) Perform such other functions as may be provided by

law. (emphasis added)
As aptly observed in Mendoza v. COMELEC (Mendoza),15 these powers of the
COMELEC have been enhanced in scope and details under the 1987
Constitution. Article X (C), Section 2 of the Constitution embodies the myriad
of powers bestowed upon the polling body, viz:
SECTION 2. The Commission on Elections shall exercise the
following powers and functions:

(1) Enforce and administer all laws and regulations

relative to the conduct of an election, plebiscite,
initiative, referendum, and recall.

(2) Exercise exclusive original jurisdiction over all

contests relating to the elections, returns, and
qualifications of all elective regional, provincial, and
city officials, and appellate jurisdiction over all
contests involving elective municipal officials decided
by trial courts of general jurisdiction, or involving
elective barangay officials decided by trial courts of
limited jurisdiction.

Decisions, final orders, or rulings of the Commission on

election contests involving elective municipal and
barangay offices shall be final, executory, and not
appealable.

(3) Decide, except those involving the right to vote, all

questions affecting elections, including determination of
the number and location of polling places, appointment of
election officials and inspectors, and registration of
voters.

(4) Deputize, with the concurrence of the President, law

enforcement agencies and instrumentalities of the
Government, including the Armed Forces of the
Philippines, for the exclusive purpose of ensuring free,
orderly, honest, peaceful, and credible elections.

(5) Register, after sufficient publication, political

parties, organizations, or coalitions which, in addition
to other requirements, must present their platform or
program of government and accredit citizens' arms of the
Commission on Elections. Religious denominations and
sects shall not be registered. Those which seek to
achieve their goals through violence or unlawful means,
or refuse to uphold and adhere to this Constitution, or
which are supported by any foreign government shall
likewise be refused registration.

Financial contributions from foreign governments and

their agencies to political parties, organizations,
coalitions, or candidates related to elections constitute
interference in national affairs, and, when accepted,
shall be an additional ground for the cancellation of
their registration with the Commission, in addition to
other penalties that may be prescribed by law.

(6) File, upon a verified complaint, or on its own

initiative, petitions in court for inclusion or exclusion
 of voters; investigate and, where appropriate, prosecute
cases of violations of election laws, including acts or
omissions constituting election frauds, offenses, and
malpractices.

(7) Recommend to the Congress effective measures to

minimize election spending, including limitation of
places where propaganda materials shall be posted, and to
prevent and penalize all forms of election frauds,
offenses, malpractices, and nuisance candidacies.

(8) Recommend to the President the removal of any officer

or employee it has deputized, or the imposition of any
other disciplinary action, for violation or disregard of,
or disobedience to its directive, order, or decision.

(9) Submit to the President and the Congress a com

prehensive report on the conduct of each election,
plebiscite, initiative, referendum, or recall. (emphasis
added)
Significantly, the present Constitution clarifies that the COMELEC retains its
character as an administrative agency notwithstanding its authority to resolve
election contests. As held in Mendoza:
As will be seen on close examination, the 1973
Constitution used the unique wording that the COMELEC
shall be the sole judge of all contests, thus giving
the appearance that judicial power had been conferred.
This phraseology, however, was changed in the 1987
Constitution to give the COMELEC exclusive jurisdiction
over all contests, thus removing any vestige of
exercising its adjudicatory power as a court and
correctly aligning it with what it is a quasi-judicial
body.16
As enunciated, the COMELEC's adjudicative function over election contests is
quasi-judicial in character since the COMELEC is a governmental body, other
than a court, that is vested with jurisdiction to decide the specific class of
controversies it Is charged with resolving. In adjudicating the rights of
persons before it, the COMELEC is not just empowered but is in fact required
to investigate facts or ascertain the existence of facts, hold hearings, weigh
evidence, and draw conclusions from them as basis for their official action and
exercise of discretion in a judicial nature.17 This is simply in congruence with
the concept of due process that all administrative adjudicatory bodies are
enjoined to observe.

The COMELEC is, thus, fully-clothed with authority to make factual

determinations in relation to the election contests before it. This has been the
thrust of the decades worth of constitutional revisions that transformed the
COMELEC from a purely administrative body, whose scope of decision�
making is limited to those incidental to its duty to enforce election laws, to a
polling commission that also exercises original and exclusive, as well as
appellate, jurisdiction over election contests.
Considering the historical evolution of the COMELEC, the Court now declares
that the polling body has full adjudicatory powers to resolve election contests
outside the jurisdiction of the electoral tribunals. To rule otherwise would be
an act of regression, contrary to the intent behind the constitutional
innovations creating and further strengthening the Commission. There is no
novelty in this pronouncement, but merely a reinstatement of Our consistent
jurisprudence prior to Poe.

In the landmark case of Aratea v. COMELEC,18 for instance, the COC of Romeo
D. Lonzanida was cancelled and declared void ab initio because of his
misrepresentation as to his eligibility. He knew fully well that he had been
elected, and had served, as mayor of San Antonio, Zambales for more than
three consecutive terms yet he still certified that he was eligible to run for
mayor for the next succeeding term, thus constituting false material
representation. No prior judgment recognizing Lonzanida's service for three
terms was necessary to effect the cancellation of his COC.

In Maquiling v. COMELEC,19 Linog G. Balua, through a petitiOn treated as one

for cancellation and/or denial of due course of COC, contended that Rommel
Arnado is not a resident of Kauswagan, Lanao del Norte and that the latter is
a foreigner based on a certification by the Bureau of Immigration indicating
that Amado is American. The Court did not find issue in the COMELEC's
authority to make a factual determination as to Amado's citizenship and
residence, though We eventually reversed the COMELEC En Banc's ruling and
reinstated that of its First Division based on Our own appreciation of the
evidence on record.

And in Cerafica v. COMELEC (Cerafica),20 the Court reversed the COMELEC's

mling not because of any alleged lack of authority to make factual
determinations as to the eligibility of a candidate, but, quite the contrary,
because it did not make use of the same authority.

To reiterate, the COMELEC, as an adjunct to its adjudicatory power. may

investigate facts or ascertain the existence of facts, hold hearings. weigh
evidence, and draw conclusions from them as basis for their official action. As
held in Cerafica:21
The determination of whether a candidate is eligible for
the position he is seeking involves a determination of
fact where parties must be allowed to adduce evidence in
support of their contentions. We thus caution the Comelec
against its practice of impetuous cancellation of COCs
via minute resolutions adopting the recommendations of
its Law Department when the situation properly calls for
the case's referral to a Division for summary hearing.
It may be true that the sole ground for Petitions to Deny Due Course or to
Cancel COC is false material representation compounded by intent to deceive
on the part of the candidate and that the intent to deceive or mislead will be
difficult, if not impossible, to ascertain absent an established fact that the
candidate deviated from. Contrary to Poe, the Court categorical1y rules
herein that the COMELEC can be the� proper� body to make the
pronouncement against which the truth or falsity of a material representation
in a COC can be measured. But lest it be misunderstood, these disquisitions
will not by any means alter the outcome of Poe, for even if We dispense the
requirement of a predicate judgment therein and uphold the jurisdiction of
the COMELEC, the Court's conclusion would still find mooring on the factual
findings on Poe's Filipino blood relation and residency.22

A predicate judgment is not required in Petitions for Disqualification

Moreover, the Commission gravely abused its discretion when it failed to

appreciate the characteristics that distinguish Poe from the case at bar. It
must be stressed that there is a world of difference between the remedies
availed of in Poe and in the instant case. What is involved herein is a Petition
for Disqualification under Sec. 68 of the OEC, whereas Poe was initiated by
multiple Petitions to Deny Due Course or Cancel COC under Sec. 78 of the
OEC.23

The statutory bases for the two distinct remedies read:

Sec. 68. Disqualifications. - Any candidate who, in an
action or protest in which he is a party is declared by
final decision of a competent court guilty of, or found
by the Commission of having

x x x x

solicited, received or made any contribution prohibited under

d.
Sections 89, 95, 96, 97 and 104; or

violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e,

k, v, and cc, subparagraph 6, shall be disqualified from
e.
continuing as a candidate, or if he has been elected, from holding
the office. x x x

x x x x

Sec. 78. Petition to deny due course to or cancel a

certificate of candidacy. - A verified petition seeking
to deny due course or to cancel a certificate of
candidacy may be filed by the person exclusively on the
ground that any material representation contained therein
as required under Section 74 hereof is false. The
petition may be filed at any time not later than twenty-
five days from the time of the filing of the certificate
of candidacy and shall be decided, after due notice and
hearing, not later than fifteen days before the election.
(emphasis added)
The essence of a disqualification proceeding that invokes Sec. 68 of the OEC
is to bar an individual from becoming a candidate or from continuing as a
candidate for public office based not on the candidate's lack of qualification,
but on his possession of a disqualification as declared by a final decision of a
competent court, or as found by the Commission.24 The jurisdiction of the
COMELEC to disqualify candidates is limited to those enumerated in Section
68 of the OEC. All other election offenses are beyond the ambit of COMELEC
jurisdiction.25
Meanwhile, for a Petition to Deny Due Course or to Cancel COC under Sec. 78
of the OEC to prosper, the candidate must have made a material
misrepresentation involving his eligibility or qualification for the office to
which he seeks election, such as the requisite residency, age, citizenship or
any other legal qualification necessary to run for elective office26 enumerated
under Sec. 74 of the OEC.27 Moreover, the false representation under Sec. 78
must consist of a deliberate attempt to mislead, misinform, or hide a fact
which would otherwise render a candidate ineligible.28 The relief is granted
not because of the candidate's lack of eligibility per se, but because of his or
her false misrepresentation of possessing the statutory qualifications.

The doctrine in Poe was never meant to apply to Petitions for

Disqualification. A prior court judgment is not required before the
remedy under Sec. 68 of the OEC can prosper. This is highlighted by
the provision itself, which contemplates of two scenarios: first, there
is a final decision by a competent court that the candidate is guilty of
an election offense and second, it is the Commission itself that found
that the candidate committed any of the enumerated prohibited acts.
Noteworthy is that in the second scenario, it is not required that
there be a prior final judgment; it is sufficient that the Commission
itself made the determination. The conjunction "or" separating
"competent court" and "the Commission" could only mean that the
legislative intent was for bot/1 bodies to be clothed with authority to
ascertain whether or not there is evidence that the respondent
candidate ought to be disqualified.

Furthermore, the quantum of proof necessary in election cases is, as in all

administrative cases, substantial evidence. This is defined as such relevant
evidence as a reasonable mind will accept as adequate to support a
conclusion.29 To impose prior conviction of an election offense as a
condition sine qua non before a Petition for Disqualification can be launched
would be tantamount to requiring proof beyond reasonable doubt, which is
significantly beyond what our laws require.

Jurisprudence is rife with teachings on the separability of the criminal

prosecution for election offenses or even t he determination for probable
cause to criminally charge a candidate for any election violation, from the
administrative proceeding for disqualification. The Court even elucidated on
the concept of this twin aspect in the case of Ejercito v. COMELEC,30 viz:
x x x It has been repeatedly underscored that an election
offense has its criminal and electoral aspects. While its
criminal aspect to determine the guilt or innocence of
the accused cannot be the subject of summary hearing, its
electoral aspect to ascertain whether the offender should
be disqualified from office can be determined in an
administrative proceeding that is summary in character.
This Court said in Sunga [v. COMELEC]:

It is worth to note that an election offense has criminal

as well as electoral aspects. Its criminal aspect
involves the ascertainment of the guilt or innocence of
the accused candidate. Like in any other criminal case,
it usually entails a full-blown hearing and the quantum
 of proof required to secure a conviction is beyond
reasonable doubt. Its electoral aspect, on the other
hand, is a determination of whether the offender should
be disqualified from office. This is done through an
administrative proceeding which is summary in character
and requires only a clear preponderance of evidence.
Thus, under Sec. 4 of the COMELEC Rules of Procedure,
petitions for disqualification "shall be heard summarily
after due notice." It is the electoral aspect that we
are more concerned with, under which an erring candidate
may be disqualified even without prior criminal
conviction.

and equally in Lanot [v. COMELEC]:

�� �x x x The electoral aspect of a

disqualification case determines whether the offender
should be disqualified from being a candidate or from
holding office. Proceedings are summary in character and
require only clear preponderance of evidence. An erring
candidate may be disqualified even without prior
determination of probable cause in a preliminary
investigation. The electoral aspect may proceed
independently of the criminal aspect, and vice-versa.

The criminal aspect of a disqualification case determines

whether there is probable cause to charge a candidate for
an election offense. The prosecutor is the COMELEC,
through its Law Department, which determines whether
probable cause exists. If there is probable cause, the
COMELEC, through its Law Department, files the criminal
information before the proper court. Proceedings before
the proper court demand a full-blown hearing and require
proof beyond reasonable doubt to convict. A criminal
conviction shall result in the disqualification of the
offender, which may even include disqualification from
holding a future public office.
The Court's disquisitions in Sunga v. COMELEC31 and Lanot v.
COMELEC32 centered on whether or not the polling body has the discretion to
proceed with disqualification cases even after the elections had been
concluded.

In Sunga, petitioner Manuel C. Sunga was a mayoralty candidate in the

Municipality of Iguig, Cagayan in the May 1995 Elections. He filed a complaint
accusing respondent, then incumbent mayor Ferdinand B. Trinidad, of using
threats, intimidation, terrorism or other forms of coercion, in violation of the
OEC. The COMELEC denied the complaint, ruling that petitions for
disqualification filed after the conduct of the elections ought to be dismissed.
In reversing the ruling of the tribunal, the Court held that neither the
conclusion of the elections nor Trinidad's proclamation and assumption of
office divested the COMELEC of authority and jurisdiction to decide the
disqualification case.

Meanwhile, in Lanot, therein petitioners led by Henry P. Lanot filed a Petition

for Disqualification against then incumbent Pasig City Mayor Vicente P.
Eusebio for allegedly violating Section 261(a) of the OEC on the prohibition
against vote-buying. The COMELEC First Division granted the petition,
prompting Eusebio to move for reconsideration. At the time of the elections,
the disqualification case was not yet resolved with finality. Thus, Eusebio's
votes were still counted and canvassed, and he was proclaimed city mayor of
Pasig. Thereafter, the COMELEC En Banc annulled the COMELEC First
Division's disqualification order and referred the case to the COMELEC Law
Department for preliminary investigation.

The Court agreed with Lanot that the COMELEC En Banc gravely abused its
discretion when it ordered the dismissal of the disqualification case because of
Eusebio's proclamation as city mayor and at the same time allowed the
criminal aspect to proceed with preliminary investigation. Lanot highlighted
the inconsistency by citing the teaching in Sunga that:
A candidate guilty of election offenses would be
undeservedly rewarded, instead of punished, by the
dismissal of the disqualification case against him simply
because the investigating body was unable, for any reason
caused upon it, to determine before the election if the
offenses were indeed committed by the candidate sought to
be disqualified. All that the erring aspirant would need
to do is to employ delaying tactics so that the
disqualification case based on the commission of election
offenses would not be decided before the election. This
scenario is productive of more fraud which certainly is
not the main intent and purpose of the law.33
To then avoid the above-illustrated deleterious scenario, the Court instructed
that the COMELEC should continue the trial and hearing of the disqualification
case until judgment is rendered thereon, and to treat the criminal aspect of
the case as a separate issue altogether.

The distinction between the electoral aspect from the criminal one was further
amplified in Ejercito. There, the Court rebuked therein petitioner's assertion
that the conduct of preliminary investigation to determine whether the acts
enumerated under Section 68 of the OEC were indeed committed is a
requirement prior to actual disqualification. Resultantly, the Court upheld the
COMELEC's disqualification of petitioner Emilio Ramon Ejercito even though
there has yet to be any finding of probable cause, let alone guilt, that he
spent more than the threshold amount prescribed under Sections I00-103 of
the OEC, an election offense under Section 262 of the same code.

Neither a prior conviction nor even a determination of probable cause is then

a requirement before a Petition for Disqualification can be lodged. Credit must
be given to petitioner for his apt observation that to rule otherwise would
render inutile the remedy under Section 68 of the OEC insofar as the specific
ground raised herein is concerned. Pertinently, Section 261(v) of the OEC and
Rule 25, Section 3 of the COMELEC Rules of Procedure read:
Section 261. Prohibited Acts. - The following shall be
guilty of an election offense:
 x x x x

(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 a special
election, releases, disburses or expends any public funds
x x x (emphasis added)

Rule 25 - Disqualification of Candidates

x x x x

Section 3. Period to File Petition. - The Petition shall

be filed any day after the last day for filing of
certificates of candidacy, but not later than the date
of proclamation. (emphasis added)
Clearly, the particular election offense and ground for disqualification imputed
on respondent must necessarily be committed within forty-five (45) days
before a regular election and within thirty (30) days before a special election.
Meanwhile, the window for filing a Petition for Disqualification raising the
same ground is between the day after the filing of a certificate of candidacy
until the date of proclamation, which in the advent of automated elections
could only take less than a week for local posts. Through its ruling, the
COMELEC then effectively required petitioner to secure against Nieto a final
judgment of guilt within the very limited timeframe, an almost impossible feat
under the normal course of legal procedure.

We are, therefore, constrained to rule that the COMELEC erred when, relying
on Poe, it imposed the requirement of a prior court judgment before resolving
the current controversy.

The records are bereft of evidence to hold that respondent violated

Secs. 261(v) and 104 of the Omnibus Election Code

Notwithstanding the COMELEC's error in applying Poe, the petition must

nevertheless fail. Though the COMELEC can properly take cognizance of the
Petition for Disqualification without issue, petitioner miserably failed to tender
evidence that respondent committed the election offenses imputed.

The quantum of proof necessary in election cases is substantial evidence, or

such relevant evidence as a reasonable mind will accept as adequate to
support a conclusion.34 Corollarily, the rule is that he who alleges must
prove.35 Thus, the burden is on Francisco to establish through substantial
evidence that Nieto unlawfully disbursed government funds during the
election ban, a burden that Francisco failed to discharge.

There is simply a dearth of evidence to support petitioner's claim that

respondent violated Sec. 261(v) of the OEC. To be sure, petitioner merely
submitted the following to support his allegations:
 1. Pictures of the asphalt-paving along Imelda Avenue
of Cainta Green Park Village, Barangay San Isidro,
Cainta, Rizal;
2. Picture of the Facebook page of the respondent
acknowledging the project as one of the
accomplishments of his administration; and
3. Picture of a tarpaulin banner expressing gratitude
for the asphalt-paving.

The photographs36 petitioner presented depicting the construction and works

done on the asphalting project would only prove the fact of paving, which is
not even contested. They do not, however, establish that respondent
expended public funds or made financial contributions during the election
prohibition.

On the other hand, respondent Nieto sufficiently parried the alleged

commission of the election offenses by proving that the asphalting project
squarely falls under the exception in Sec. 261 (v)(l)(b). The provision states:
Prohibition against release, disbursement or expenditure of
public funds. - Any public official or employee including
barangay officials and those of government-owned or controlled
v.
corporations and their subsidiaries, who, during forty-five
days before a regular election and thirty days before a special
election, releases, disburses or expends any public funds for:

Any and all kinds of public works, except the

1.
following:

xxxx

Work undertaken by contract through

public bidding held, or by negotiated
contract awarded, before the forty-
five day period before
election: Provided, That work for the
b.
purpose of this section undertaken
under the so-called "takay" or
"paquiao" system shall not be
considered as work by contract;
(emphasis added)
The Court is in concurrence with the observations of Commissioners Luie Tito
F. Guia and Ma. Rowena Amelia V. Guanzon that the evidence on record
sufficiently proved that the expenditure for the road repair is exempted from
the prohibition under Sec. 261(v) of the OEC. Private respondent Nieto was
able to show with competent evidence that the bidding for and the award of
the subject project were regular and done consistent with existing laws. The
charge for illegal contribution under Sec. 104 of the OEC has even less leg to
stand on. There was no contribution to speak of since it was established that
the asphalting work was a government project and not a contribution.

Notably, private respondent adduced the following pieces of evidence to

support his contention:

1. A copy of the posting of the project in the

Philippine Government� Electronic Procurement
System (PHILGEPS) website.37 This indicates that
the Bid Notice Abstract and Invitation to Bid for
the subject project were posted on the website on
February 25, 2016;
2. A certified true copy of the Abstract of
Bids38 attested by the members of the Bids and
Awards Committee, indicating that the bidding for
the asphalting project was held on March 15, 2016;
3. A certified true copy of the Notice of
Award39 stating that, on March 21, 2016, the
project was awarded in favor of the winning bidder,
contractor Franzcor Trading and Construction;
4. A letter40 dated March 21, 2016 filed by respondent
Nieto with the Acting Regional Election Director of
COMELEC in Region IV-A submitting to the Commission
the list of the infrastructure projects bid out,
including the asphalting project, which were
awarded before March 25, 2016, the reckoning date
of the forty-five day prohibition period and
5. A certification41 from the Election Officer of the
COMELEC Region IV-A office acknowledging receipt of
the letter.

To cast doubt on the sufficiency of respondent Nieto's evidence, petitioner

Francisco points out that the followin g were never offered in evidence: (a) an
ordinance enacted by the Sangguniang Bayan of Cainta authorizing the
P6,000,000.00 expenditure for the project, (b) a certification from the proper
accounting official that there is an appropriation by law of such am ou nt and
that the fund is available, and (c) an affidavit from the editor or publisher of a
newspaper of general circulation that the Invitation to Bid had been
published. However, petitioner is not excused from shifting the burden of
proof to private respondent, especially since the latter has the presumption of
regularity in his favor.42 bolstered by evidence proving that the project was
contracted outside the period of prohibition.

There being substantial evidence to support Nieto's defense that the

construction procurement for t he project was aboveboard, there is then no
reason to disturb public respondent's rulings. No abuse of discretion, let alone
one that is grave, can be attributed to the COMELEC Second Division in
dismissing the Petition for Disqualification, nor to the COMELEC En Banc in
denying petitioner's motion for reconsideration.

WHEREFORE, premises considered, the instant petition is DISMISSED for

lack of merit. The Court declares that in a Petition for Disqualification
under Section 68 of the Omnibus Election Code, a prior judgment by a
competent court that the candidate is guilty of an election offense is
not required before the said petition can be entertained or given due
course by the Commission on Elections.

SO ORDERED.

Sereno, C. J., on leave.

Carpio,**Leonardo-De Castro, Peralta, Bersamin, Del Castillo, Perlas-Bernabe,
Leonen, Jardeleza, Caguioa, Martires, Tijam, Reyes, Jr., and Gesmundo, JJ.,
concur.

NOTICE OF JUDGMENT

Sirs/Mesdames:

Please take notice that on April 24, 2018 a Decision/Resolution, copy attached
herewith, was rendered by the Supreme Court in the above-entitled case, the
original of which was received by this Office on June 27, 2018 at 3:30 p.m.

Very truly yours,

(SGD)
EDGAR O. ARICHETA
� Clerk of Court

Endnotes:

**
Acting Chief Justice.
1
Rollo, pp. 23 28.
2
Section 261. Prohibited Acts. - The following shall be
guilty of an election offense:

x x x x

v. Prohibition against release, disbursement or

expenditure of public funds. - Any public official or
employee including bnrangay 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 a special
election, releases, disburses or expends any public funds
for:
1. Any and all kinds of public works x x x
3
Sec. 104. Prohibited donations by candidates,
treasurers of parties or their agents. - No candidate x x
x shall during the campaign period. x x x directly or
indirectly, make any donation, contribution or gift in
cash or in kind, or undertake or contribute to the
construction or repair of roads, bridges, school buses,
puericulture centers. medical clinics and hospitals,
churches or chapels cement pavements, or any structure
for public use or for the use of any religious or civic
organization. x x x
4
Rollo, pp. 87-92.
5
Id. at 91-92.
6
G.R. Nos. 221697 & 221698-700, March 8, 2016.
7
Rollo, p. 27.
8
Id. at 4.
9
G.R. No. 184915, June 30, 2009.
10
G.R. No. 141524, September 15, 2005, 469 SCRA 633.
11
Lapid v. Laurea, G.R. No. 139607, October 28, 2002.
12
See
<https://www.comelec.gov.ph/?r=AboutCOMELEC/CitizcnsChart
cr/HistoryofCOMELEC>.
13
Id.
14
Mendoza v. Cmnmission on Election, G.R. No. 188308,
October 15, 2009.
15
Supra note 14.
16
Id.
17
Id.
18
G.R. No. 195229, October 9, 2012.
19
G.R. No. 195649, April 16, 2013.
20
G.R. No. 205136, December 2, 2014.
21
Id.
22
Poe's status as a natural-born Filipino was
establishcd through the intent of the framers of the 1935
Constitution, presumptions, and generally accepted
principles of international law. Meanwhile, her
compliance with the residency requirement was founded on
case law and evidence.
23
a. SPA No. 15-001(DC) was a petition filed by Estrella
Elamparo to deny due course or cancel Poe's COC on the
ground Poe allegedly committed material misrepresentation
in indicting in her COC that she is a natural-born
Filipino and a resident of the Philippines for at least
ten (10) years and eleven (11) months up to the day
before the May 9, 2016 elections;

b. SPA No. 15-002(DC) was a petition to disqualify filed

by Francisco S. Tatad, alleging that Poe lacks the
requisite citizenship and residency to qualify her for
the presidency. Though denominated as a petition to
disqualify, the grounds relied upon were not those
enumerated in either Sections 12 or 68 of the OEC;

c. SPA No. 15-007(DC) was a petition filed by Antonio P.

Contreras to cancel Poe's COC on the ground that she
allegedly did not possess the ten-year residency required
for the candidacy; and

d. SPA No. 15-139(DC) was a petition filed by Amado D.

Valdez to deny de course or cancel the COC of Poe,
alleging that her repatriation did not bestow upon her
the status of a natural-born citizen, and that she could
not have established her residence in the country prior
to her repatriation.
24
Fermin v. COMELEC, 595 Phil. 449 (2008).
25
Ejercito v. COMELEC, G.R. No. 212398, November 25, 2014.
26
Villafuerte v. COMELEC, G.R. No. 206698, February 25,
2014.
27
Section 74. Contents cf certificate of candidacy. - The
certificate of candidacy shall state that the person
filing it is announcing his candidacy for the office
stated therein and that he is eligible for said office;
if for Member of the Batasang Pambansa, the province,
including its component cities, highly urbanized city or
district or sector which he seeks to represent; the
political party to which he belongs; civil status; his
date of birth; residence; his post office address for all
election purposes; his profession or occupation; that he
will support and defend the Constitution of the
Philippines and will maintain true faith and allegiance
thereto; that he will obey the laws, legal orders, and
decrees promulgated by the duly constituted authorities;
that he is not a pennancnt resident or immigrant to a
foreign country; that the obligation imposed by his oath
is assumed volu ntarily, without mental reservation or
purpose of evasion; and that the facts stated in the
certificate of candidacy are true to the best of his
knowledge.
28
Villafuerte v. COMELEC, supra note 26.
29
Sabili v. COMELEC, G.R. No. 193261, April 24, 2012.
30
Supra note 25.
31
G.R. No. 125629, March 25, 1998.
32
G.R. No. 164858, November 16, 2006.
33
Supra note 32.
34
Section 5, Rule 133 of the Rules of Court.
35
Lim v. Equitable PCI Bank, G.R. No. 183918, January 15,
2014.
36
Rollo, pp. 43-46.
37
Id. at 58.
38
Id. at 59.
39
Id. at 60.
40
Id. at 62.
41
Id. at 61.
42
Rule 131, Section 3. Disputable presumptions. - The
following presumptions nrc satisfactory if
uncontradicted.but may be contradicted and overcome by
other evidence:

x x x x
(m) That official duty hns been regularly performed.