EN BANC

[G.R. No. L-52245. January 22, 1980.]

PATRICIO
DUMLAO,
ROMEO
B.
IGOT,
and
ALFREDO
SALAPANTAN, JR. , petitioners, vs. COMMISSION ON ELECTIONS,
respondent.

Raul M . Gonzales for petitioners.

Office of the Solicitor General for respondent.
DECISION
MELENCIO-HERRERA, J :
p

This is a Petition for Prohibition with Preliminary Injunction and/or Restraining

Order led by petitioners, in their own behalf and all others allegedly similarly
situated, seeking to enjoin respondent Commission on Elections (COMELEC) from
implementing certain provisions of Batas Pambansa Blg. 51, 52, and 53 for being
unconstitutional.
The Petition alleges that petitioner, Patricio Dumlao, is a former Governor of Nueva
Vizcaya, who has led his certicate of candidacy for said position of Governor in the
forthcoming elections of January 30, 1980. Petitioner, Romeo B. Igot, is a taxpayer,
a qualied voter and a member of the Bar who, as such, has taken his oath to
support the Constitution and obey the laws of the land. Petitioner, Alfredo
Salapantan, Jr., is also a taxpayer, a qualied voter, and a resident of San Miguel,
Iloilo.
cdasia

Petitioner Dumlao specically questions the constitutionality of section 4 of Batas

Pambansa Blg. 52 as discriminatory and contrary to the equal protection and due
process guarantees of the Constitution. Said Section 4 provides:
"Sec. 4.
Special Disqualification. In addition to violation of section 10 of
Art. XII-C of the Constitution and disqualication mentioned in existing laws,
which are hereby declared as disqualication for any of the elective ocials
enumerated in section 1 hereof.

Any retired elective provincial, city of municipal ocial who has received
payment of the retirement benets to which he is entitled under the law and
who shall have been 65 years of age at the commencement of the term of
oce to which he seeks to be elected, shall not be qualied to run for the

same elective local oce from which he has retired ." (Paragraphing and
emphasis supplied)

Petitioner Dumlao alleges that the aforecited provision is directed insidiously

against him, and that the classication provided therein is based on "purely
arbitrary grounds and, therefore, class legislation."
For their part, petitioners Igot and Salapantan, Jr. assail the validity of the following
statutory provisions:
"Sec. 7.
Term of oce . Unless sooner removed for cause, all local
elective ocials hereinabove mentioned shall hold oce for a term of six (6)
years. which shall commence on the first Monday of March 1980."
. . ." Batas Pambansa Blg. 51
"Sec. 4.

...

"Any person who has committed any act of disloyalty to the State, including
acts amounting to subversion, insurrection, rebellion or other similar crimes,
shall not be qualied to be a candidate for any of the oces covered by this
Act, or to participate in any partisan political activity therein:

provided, that a judgment of conviction for any of the aforementioned

crimes shall be conclusive evidence of such fact and.
the ling of charges for the commission of such crimes before a civil court
or military tribunal after preliminary investigation shall be prima facie
evidence of such fact.
". . . (Batas Pambansa Blg. 52) (Paragraphing and emphasis supplied).
"Section 1.
Election of certain Local Ocials . . . . The election shall be
held on January 30, 1980." (Batas Pambansa, Blg. 52).
"Section 6.
Election and Campaign Period . The election period shall be
xed by the Commission on Elections in accordance with Section 6, Art. XIIC of the Constitution. The period of campaign shall commence on December
29, 1979 and terminate on January 28, 1980." (ibid.)

In addition to the above-cited provisions, petitioners Igot and Salapantan, Jr. also
question the accreditation of some political parties by respondent COMELEC, as
authorized by Batas Pambansa Blg. 53, on the ground that it is contrary to section
9(1), Art. XII(C) of the Constitution, which provides that a "bona de candidate for
any public office shall be free from any form of harassment and discrimination."
The question of accreditation will not be taken up in this case but in that of Bacalso,
et als., vs. COMELEC et als. (G.R. No. L-52232) where the issue has been squarely
raised.
cdasia

Petitioners then pray that the statutory provisions they have challenged be declared
null and void for being violative of the Constitution.

I.

The procedural aspect.

At the outset, it should be stated that this Petition suers from basic procedural
inrmities, hence, traditionally unacceptable for judicial resolution. For one, there is
a misjoinder of parties and actions. Petitioner Dumlao's interest is alien to that of
petitioners Igot and Salapantan. Petitioner Dumlao does not join petitioners Igot
and Salapantan in the burden of their complaint, nor do the latter join Dumlao in
his. They, respectively, contest completely dierent statutory provisions. Petitioner
Dumlao has joined this suit in his individual capacity as a candidate. The action of
petitioners Igot and Salapantan is more in the nature of a taxpayer's suit. Although
petitioners plead time constraints as the reason of their joint Petition, it would have
required only a modicum more of eort for petitioner Dumlao, on one hand, and
petitioners Igot and Salapantan, on the other, to have led separate suits, in the
interest of orderly procedure.
For another, there are standards that have to be followed in the exercise of the
function of judicial review, namely: (1) the existence of an appropriate case; (2) an
interest personal and substantial by the party raising the constitutional question;
(3) the plea that the function be exercised at the earliest opportunity; and (4) the
necessity that the constitutional question be passed upon in order to decide the case
(People vs. Vera, 65 Phil. 56 [1937]).
It may be conceded that the third requisite has been complied with, which is, that
the parties have raised the issue of constitutionality early enough in their pleadings.
This Petition, however, has fallen far short of the other three criteria.
A.

Actual case and controversy.

It is basic that the power of judicial review is limited to the determination of actual
cases and controversies.
Petitioner Dumlao assails the constitutionality of the rst paragraph of section 4 of
Batas Pambansa Blg. 52, quoted earlier, as being contrary to the equal protection
clause guaranteed by the Constitution, and seeks to prohibit respondent COMELEC
from implementing said provision. Yet, Dumlao has not been adversely aected by
the application of that provision. No petition seeking Dumlao's disqualication has
been led before the COMELEC. There is no ruling of that constitutional body on the
matter, which this Court is being asked to review on Certiorari. His is a question
posed in the abstract, a hypothetical issue, and in eect, a petition for an advisory
opinion from this Court to be "rendered without the benet of a detailed factual
record." Petitioner Dumlao's case is clearly within the primary jurisdiction (see
concurring Opinion of now Chief Justice Fernando in Peralta vs. Comelec, 82 SCRA
30, 96 [1978]) of respondent COMELEC as provided for in section 2, Art. XII-C, for
the Constitution the pertinent portion of which reads:
"Section 2.
The Commission on Elections shall have the following power
and functions.

1)

...

2)
Be the sole judge of all contests relating to the elections, returns and
qualifications of all members of the National Assembly and elective provincial
and city officials." (Emphasis supplied)

The aforequoted provision must also be related to section 11 of Art. XII-C, which
provides:
"Section 11.
Any decision, order, or ruling of the Commission may be
brought to the Supreme Court on certiorari by the aggrieved party within
thirty days from his receipt of a copy thereof."

B.

Proper party.

The long-standing rule has been that "the person who impugns the validity of a
statute must have a personal and substantial interest in the case such that he has
sustained, or will sustain, direct injury as a result of its enforcement" (People vs.
Vera, supra).
In the case of petitioners Igot and Salapantan, it was only during the hearing, not in
their Petition, that Igot is said to be a candidate for Councilor. Even then, it cannot
be denied that neither one has been convicted nor charged with acts of disloyalty to
the State, nor disqualied from being candidates for local elective positions. Neither
one of them has been alleged to have been adversely aected by the operation of
the statutory provisions they assail as unconstitutional. Theirs is a generalized
grievance. They have no personal nor substantial interest at stake. In the absence of
any litigate interest, they can claim no locus standi in seeking judicial redress.
LibLex

It is true that petitioners Igot and Salapantan have instituted this case as a
taxpayer's suit, and that the rule enunciated in People vs. Vera, above stated, has
been relaxed in Pascual vs. The Secretary of Public Works (110 Phil. 331 [1960],
thus:
". . . it is well settled that the validity of a statute may be contested only by
one who will sustain a direct injury in consequence of its enforcement. Yet,
there are many decisions nullifying, at the instance of taxpayers, laws
providing for the disbursement of public funds, upon the theory that 'the
expenditure of public funds, by an ocer of the State for the purpose of
administering an unconstitutional act constitutes a misapplication of such
funds,' which may be enjoined at the request of a taxpayer."

In the same vein, it has been held:

"In the determination of the degree of interest essential to give the requisite
standing to attack the constitutionality of a statute, the general rule is that
not only persons individually aected, but also taxpayers have sucient
interest in preventing the illegal expenditure of moneys raised by taxation
and they may, therefore, question the constitutionality of statutes requiring
expenditure of public moneys." (Philippine Constitution Association, Inc., et

als., vs. Gimenez, et als. 15 SCRA 479 [1965]).

However, the statutory provisions questioned in this case, namely, sec. 7, BP Blg.
51, and sections 4, 1, and 6 BP Blg. 52, do not directly involve the disbursement of
public funds. While, concededly, the elections to be held involve the expenditure of
public moneys, nowhere in their Petition do said petitioners allege that their tax
money is "being extracted and spent in violation of specic constitutional
protections against abuses of legislative power" (Flast v. Cohen, 392 U.S., 83
[1960]), or that there is a misapplication of such funds by respondent COMELEC
(see Pascual vs. Secretary of Public Works, 110 Phil. 331 [1960]), or that public
money is being deected to any improper purpose. Neither do petitioners seek to
restrain respondent from wasting public funds through the enforcement of an
invalid or unconstitutional law. (Philippine Constitution Association vs. Mathay, 18
SCRA 300 [1966]), citing Philippine Constitution Association vs. Gimenez, 15 SCRA
479 [1965]). Besides, the institution of a taxpayer's suit, per se, is no assurance of
judicial review. As held by this Court in Tan vs. Macapagal (43 SCRA 677 [1972]),
speaking through our present Chief Justice, this Court is vested with discretion as to
whether or not a taxpayer's suit should be entertained.
C.

Unavoidability of constitutional question.

Again upon the authority of People vs. Vera, "it is a well-settled ruled that the
constitutionality of an act of the legislature will not be determined by the courts
unless that question is properly raised an presented in appropriate cases and is
necessary to a determination of the case; i.e., the issue of constitutionality must be
the very lis mota presented."
We have already stated that, by the standards set forth in People vs. Vera, the
present is not an "appropriate case" for either petitioner Dumlao or for petitioners
Igot and Salapantan. They are actually without cause of action. It follows that the
necessity for resolving the issue of constitutionality is absent, and procedural
regularity would require that his suit be dismissed.
II.

The substantive viewpoint.

We have resolved, however, to rule squarely on two of the challenged provisions,

the Courts not being entirely without discretion in the matter. Thus, adherence to
the strict procedural standard was relaxed in Tinio vs. Mina (26 SCRA 512 [1968]);
Edu vs. Ericta (35 SCRA 481 [1970]); and in Gonzalez vs. Comelec (27 SCRA 835
[1969]), the Opinion in the Tinio and Gonzales cases having been penned by our
present Chief Justice. The reasons which have impelled us are the paramount public
interest involved and the proximity of the elections which will be held only a few
days hence.
Petitioner Dumlao's contention that section 4 of BP Blg. 52 is discriminatory against
him personally is belied by the fact that several petitions for the disqualication of
other candidates for local positions based on the challenged provision have already

been led with the COMELEC (as listed in p. 15, respondent's Comment). This
tellingly overthrows Dumlao's contention of intentional or purposeful
discrimination.
LexLib

The assertion that Section 4 of BP Blg. 52 is contrary to the safeguard of equal

protection is neither well taken. The constitutional guarantee of equal protection of
the laws is subject to rational classication. If the groupings are based on reasonable
and real dierentiations, one class can be treated and regulated dierently from
another class. For purposes of public service, employees 65 years of age, have been
validly classied dierently from younger employees. Employees attaining that age
are subject to compulsory retirement, while those of younger ages are not so
compulsorily retirable.
In respect of election to provincial, city, or municipal positions, to require that
candidates should not be more than 65 years of age at the time they assume oce,
if applicable to everyone, might or might not be a reasonable classification although,
as the Solicitor General has intimated, a good policy of the law should be to promote
the emergence of younger blood in our political elective echelons. On the other
hand, it might be that persons more than 65 years old may also be good elective
local officials.
Coming now to the case of retirees. Retirement from government service may or
may not be a reasonable disqualication for elective local ocials. For one thing,
there can also be retirees from government service at ages, say below 65. It may
neither be reasonable to disqualify retirees, aged 65, for a 65-year old retiree could
be a good local official just like one, aged 65, who is not a retiree.

But, in the case of a 65-year old elective local ocial, who has retired from a
provincial, city or municipal oce, there is reason to disqualify him from running for
t h e same oce from which he had retired, as provided for in the challenged
provision. The need for new blood assumes relevance. The tiredness of the retiree
for government work is present, and what is emphatically signicant is that the
retired employee has already declared himself tired an unavailable for the same
government work, but, which, by virtue of a change of mind, he would like to
assume again. It is for the very reason that inequality will neither result from the
application of the challenged provision. Just as that provision does not deny equal
protection, neither does it permit such denial (see People vs. Vera, 65 Phil. 56
[1933]). Persons similarly situated are similarly treated.
In ne, it bears reiteration that the equal protection clause does not forbid all legal
classication. What is proscribes is a classication which is arbitrary and
unreasonable. That constitutional guarantee is not violated by a reasonable
classication is germane to the purpose of the law and applies to all those belonging
to the same class (Peralta vs. Comelec, 82 SCRA 30 [1978] citing Felwa vs. Salas,
18 SCRA 606 [1966]; Rafael v. Embroidery and Apparel Control and Inspection
Board, 21 SCRA 336 [1967]; Inchong, etc., et al. vs. Hernandez, 101 Phil. 1155
[1957]). The purpose of the law is to allow the emergence of younger blood in local
governments. The classication in question being pursuant to that purpose, it

cannot be considered invalid "even if at times, it may be susceptible to the objection

that it is marred by theoretical inconsistencies: (Chief Justice Fernando, The
Constitution of the Philippines, 1977 ed., p. 547).
There is an additional consideration. Absent herein is a showing of the clear
invalidity of the questioned provision. Well accepted is the rule that to justify the
nullication of a law, there must be a clear and unequivocal breach of the
Constitution, not a doubtful and equivocal breach. Courts are practically unanimous
in the pronouncement that laws shall not be declared invalid unless the conict
with the Constitution is clear beyond reasonable doubt (Peralta vs. COMELEC, 82
SCRA 55 [1978], citing Cooper vs. Telfair, 4 Dall. 14; Dodd, Cases on Constitutional
Law, 3rd ed. 1942, 56). Lastly, it is within the competence of the legislature to
prescribe qualications for one who desires to become a candidate for oce
provided they are reasonable, as in this case.
In so far as the petition of Igot and Salapantan are concerned, the second paragraph
of section 4 of Batas Pambansa Blg. 52, quoted in full earlier, and which they
challenged, may be divided in two parts. The first provides:
"a
judgment of conviction for any of the aforementioned crimes shall be
conclusive evidence of such fact. . . . "

The supremacy of the Constitution stands out as the cardinal principle. We are
aware of the presumption of validity that attached to a challenged statute, of the
well-settled principle that "all reasonable doubts should be resolved in favor of
constitutionality," and that Courts will not set aside a statute as constitutionally
defective "except in a clear case." (People vs. Vera, supra). We are constrained to
hold that this in one such clear case.
Cdphil

Explicit is the constitutional provision that, in all criminal prosecutions, the accused
shall be presumed innocent until the contrary is proved, and shall enjoy the right to
be heard by himself and counsel (Article IV, section 19, 1973 Constitution). An
accusation, according to the fundamental law, is not synonymous with guilt. The
challenged proviso contravenes the constitutional presumption of innocence, as a
candidate is disqualied from running from public oce on the ground alone that
charges have been led against him before a civil or military tribunal. It condemns
before one is fully heard. In ultimate eect, except as to the degree of proof, no
distinction is made between a person convicted of acts of disloyalty and one against
whom charges have been led for such acts, as both of them would be ineligible to
run for public oce. A person disqualied to run for public oce on the ground that
charges have been led against him is virtually placed in the same category as a
person already convicted of a crime with the penalty of arresto, which carries with it
the accessory penalty of suspension of the right to hold oce during the term of the
sentence (Art. 44, Revised Penal Code).
And although the ling of charges is considered as but prima facie evidence, and
therefore, may be rebutted, yet, there is "clear and present danger" that because
the proximity of the elections, time constraints will prevent one charged with acts
of disloyalty from oering contrary proof to overcome the prima facie evidence

against him.
Additionally, it is best that evidence pro and con of acts of disloyalty be aired before
the Courts rather than before an administrative body such as the COMELEC. A
highly possible conict of nding between two government bodies, to the extreme
detriment of a person charged, will thereby be avoided. Furthermore, a
legislative/administrative determination of guilt should not be allowed to be
substituted for a judicial determination.

Being infected with constitutional inrmity, a partial declaration of nullity of only

that objectionable portion is mandated. It is separable from the rst portion of the
second paragraph of section 4 of Batas Pambansa Blg. 52 which can stand by itself.
WHEREFORE, 1) the rst paragraph of section 4 of Batas Pambansa Bilang 52 is
hereby declared valid. Said paragraph reads:
"SEC. 4.
Special disqualification. In addition to violation of Section 10 of
Article XII(C) of the Constitution and disqualications mentioned in existing
laws which are hereby declared as disqualications for any of the elective
ocials enumerated in Section 1 hereof, any retired elective provincial, city
or municipal ocial, who has received payment of the retirement benets to
which he is entitled under the law and who shall have been 65 years of age
at the commencement of the term of oce to which he seeks to be elected,
shall not be qualied to run for the same elective local oce from which he
has retired."

2)
That portion of the second paragraph of section 4 of Batas Pambansa Bilang
52 providing that ". . . the ling of charges for the commission of such crimes before
a civil court or military tribunal after preliminary investigation shall be prima facie
evidence of such fact", is hereby declared null and void, for being violative of the
constitutional presumption of innocence guaranteed to an accused.
SO ORDERED.

Makasiar, Antonio, Concepcion Jr., Fernandez and Guerrero, JJ ., concur.

De Castro, J ., abstain as far as petitioner Dumlao is concerned.

Separate Opinions
BARREDO, J ., concurring:
I concur. But as regards the matter of equal protection, I reiterate my view for
Peralta that Sec. 9(1) Art. XII is more expensive than the equal protection clause.
AQUINO, J ., concurring:

I concur in the result as to paragraph 1 of the dispositive part of the decision. I

dissent as to paragraph 2. In my opinion, paragraph 2, section 4 of Batas Pambansa
Bilang 52 is valid, being similar to certain presumptions in Articles 217 and 315 of
the Penal Code, as amended by Republic Act No. 4885. See U.S. v. Luling, 34 Phil.
725 and People v. Mingoa, 92 Phil. 856.
ABAD SANTOS, J ., concurring:
I concur but wish to add that a judgment of conviction as provided in Sec. 4, par. 2
of Batas Pambansa Blg. 52 should be one which is final and unappealable.
FERNANDO, C .J ., concurring:
It is particularly gratifying that the reiteration in the ably-written and scholarly
opinion of the Court, penned by Justice Melencio-Herrera, of the standard that must
be met before the power of judicial review may be availed of, set forth with such
lucidity and force by Justice Laurel in the two leading cases of Angara v. Electoral
Commission 1 and People v. Vera, 2 did not constitute an obstacle to this Court
ruling on the crucial constitutional issues raised. It was a cause for concern, for me
at least, that counsel of private parties in not a few cases in the recent past had
shown less than full awareness of the doctrines, procedural in character, that call for
application whenever the exercise of this awesome and delicate responsibility of
adjudging the validity of a statute or presidential decree is invoked. 3 While this
Court cannot be accused of being bound by the fetters of judicial timidity, it remains
true that no cavalier disregard of tried and tested concepts should be given
encouragement. A petitioner who bases his claim for relief on asserted
constitutional deciencies deserves to be heard. That goes without saying. For the
judiciary must ever endeavor to vindicate rights safeguarded by the fundamental
law. In that sense, this Tribunal is not susceptible to the reproach that it has
imprisoned itself in its allegiance to the philosophy of judicial self-restraint. There
are, however, limits to judicial activism. It cannot be too strongly stressed that a
petition of this character must ever remain an orderly proceeding that cannot be
oblivious of the requisites to be complied with to justify a pronouncement on
constitutional issues. Where there is exuberance in the exercise of judicial power,
the forms of litigation are but slight retaining walls. It is right and proper that the
voice of the Solicitor General should be heard in protest against such neglect of
rudimentary precepts. Necessarily then, whenever objections based on refusal to
abide by the procedural principles are presented, this Court must rule. It would
suce if thereby the petition is dismissed for non-observance of the controlling
doctrines. There are times, however, when the controversy is of such a character
that to resolve doubts, erase uncertainty, and assure respect for constitutional
limitations, this Tribunal must pass on the merits. This is one such case. I therefore
concur with the opinion of the Court.
cdasia

It may be a task of superuity then to write a concurring opinion. Nonetheless, a

few words may not be amiss on what for me is the proper approach to take as to the
lack of power of this Court to pass on the motives of the legislative body, on the lack
of persuasiveness of petitioner's argument based on the equal protection guarantee,

and on the fundamental concept of fairness of which the due process clause is an
embodiment, thus calling for the nullication of the disqualication of a candidate
upon the mere filing of charges against him.
1.
The challenge to the provision in question is predicated on what was referred
to as "a known fact in the province of Nueva Vizcaya that the aforesaid provision
was concocted and designed precisely to frustrate any bid of herein petitioner to
make a political come back [ sic] as governor of Nueva Vizcaya. The wordings [sic] of
the law is so peculiarly attuned to discriminate against herein petitioner because
every condition imposed as disqualication grounds are known to be possessed by
him because he was a former elective provincial ocial who has received his
retirements benets, he desires to run for the same elective oce and at the
commencement of the term of oce to which he now seeks to be elected, he shall
have reached 65 years of age." 4 Clearly then, the plea for invalidating such
provision is the motive attributed to the Interim Batasang Pambansa. For petitioner,
it amounted to a constitutional inrmity fatal in character. The weakness of the
petition is thus apparent. No decision of this Tribunal can be cited in support of such
a proposition. It would be to extend unduly the concept of judicial review if a court
can roam far and wide and range at will over the variety and diversity of the
reasons, the promptings that may lead a legislator to cast his vote for or against a
proposed legislation. It is not what inspired the introduction of a bill but the eect
thereof if duly enacted that is decisive. That would be the test for its validity or lack
of it. there is this relevant excerpt from McCray v. United States: 5 "The decisions of
this Court [Supreme Court of the United States] from the beginning lend no support
whatever to the assumption that the judiciary may restrain the exercise of lawful
power on the assumption that a wrongful purpose of motive has caused the power
to be exerted." 6 The late Chief Justice Warren, who penned the opinion in United
States v. O'Brien, 7 put the matter thus: "Inquiries into congressional motives or
purposes are a hazardous matter. When the issue is simply the interpretation of
legislation, the Court will look to statements by legislators for guidance as to the
purpose of the legislature, because the benet to sound decision-making in this
circumstance is thought sucient to risk the possibility of misreading Congress'
purpose. It is entirely a dierent matter when we are asked to void a statute that is,
under well-settled criteria, constitutional on its face, on the basis of what fewer
than a handful of Congressmen said about it. What motivates one legislator to
make a speech about a statute is not necessarily what motivates scores of others to
enact it, and the stakes are suciently high for us to eschew guesswork. We decline
to void essentially on the ground that it is unwise legislation which Congress had
the undoubted power to enact and which could be reenacted in its exact form if the
same or another legislator made a 'wiser' speech about it." 8
2.
If, however, the provision in question is susceptible to the reproach that it
amounts to a denial of equal protection, then his plea for nullication should be
accorded a sympathetic response. As the opinion of the Court makes a clear, such
imputation is not deserving of credence. The classication cannot be stigmatized as
lacking in rationality. It is germane to the subject. Age, as well as the fact of
retirement and the receipt of retirement benets are factors that can enter into any
legislative determination of what disqualications to impose. As was pointed out in

J.M. Tuason and Co., Inc. v. Land Tenure Administration: 9 "It suces then that the
laws operate equally and uniformly on all persons under similar circumstances or
that all persons must be treated in the same manner, the conditions not being
dierent, both in the privileges conferred and the liabilities imposed. Favoritism and
undue preference cannot be allowed. For the principle is that equal protection and
security shall be given to every person under circumstances, which if not identical,
are analogous. If law be looked upon in terms of burden or charges, those that fall
within a class should be treated in the same fashion, whatever restrictions cast on
some in the group equally binding on the rest." 10 It cannot be denied that others
similarly fall under the same ban. It was not directed at petitioner solely. The most
that can be said is that he falls within the proscribed class. The point was likewise
raised as to why should national ocials be excluded in the above provision. The
answer is simple. There is nothing to prevent the legislative body from following a
system of priorities. This it did under the challenged legislative provision. In its
opinion, what called for such a measure is the propensity of the local ocials having
reached the retirement age and having received retirement benets once again
running for public oce. Accordingly, the provision in question was enacted. A
portion of the opinion in the aforesaid J.M. Tuason and Co., Inc. nds relevance: "It
was confronted with a situation that called for correction, and the legislation that
was the result of its deliberation sought to apply the necessary palliative. That it
stopped short of possibly attaining the cure of other analogous ills certainly does not
stigmatize its eort as a denial of equal protection. We have given our sanction to
the principle underlying the exercise of police power and taxation, but certainly not
excluding eminent domain, that 'the legislature is not required by the Constitution
to adhere to the policy of all "or none." Thus, to reiterate, the invocation by
petitioner of the equal protection clause is futile and unavailing." 11

3.
That brings us to the assailed provision as to the suciency of the ling of
charges for the commission of such crimes as subversion, insurrection, rebellion or
others of similar nature before a civil court or military tribunal after preliminary
investigation, being a prima facie evidence of such fact and therefore justifying the
disqualication of a candidate. The opinion of the Court invoked the constitutional
presumption of innocence as a basis for its being annulled. That conclusion is wellfounded. Such being the case, I am in full agreement. I would add that such a
provision is moreover tainted with arbitrariness and therefore is violative of the due
process clause. Such a constitutional right, to quote from Luzon Surety Co., Inc. v.
Beson, 12 is "not a mere formality that may be dispensed with at will. Its disregard
is a matter of serious concern. It is a constitutional safeguard of the highest order. It
is a response to man's innate sense of justice." 13 As rightfully stressed in the
opinion of the Court, the time element may invariably preclude a full hearing on the
charge against him and thus eectively negate the opportunity of an individual to
present himself as a candidate. If, as has been invariably the case, a prosecutor,
whether in a civil court or in a military tribunal, saddled as he is with so many
complaints led on his desk would give in to the all-too-human propensity to take
the easy way out and to le charges, then a candidate would be hard put to destroy
the presumption. A sense of realism for me compels a declaration of nullity of a

provision which on its face is patently offensive to the Constitution.

cda

Hence my concurrence.
TEEHANKEE, J ., dissenting:
Files a separate opinion dissenting from the adverse ruling on Dumlao's candidacy
and declining to rule on the invalidity of the rst part of Section 4 of the questioned
Law; and concurs with the pronouncement that the mere ling of charges shall be
prima facie cause for disqualification is void.
I.
I dissent from the majority's dismissal of the petition insofar as it upholds the
discriminatory and arbitrary provision of Sec. 4 of Batas Pambansa Blg. 52 which
would impose a special disqualication on petitioner Patricio Dumlao from running
for the elective local oce of governor of his home province of Nueva Vizcaya and
would in eect bar the electors of his province from electing him to said oce in the
January 30 elections, simply because he is a retired provincial governor of said
province "who has received payment of the retirement benets to which he is
entitled under the law and who shall have been 65 years of age at the
commencement of the term of office to which he seeks to be elected."
To specially and peculiarly ban a 65-year old previously retired elective local ocial
from running for the same elective oce (of governor, in this case) previously held
by him and from which he has retired is arbitrary, oppressive and unreasonable.
Persons similarly situated are not similarly treated, e.g. a retired vice-governor,
mayor or councilor of 65 is entitled to run for governor (because the disqualication
is for the retiree of 65 to run for the same elective oce from which he retired) but
petitioner is barred from doing so (although he may run for any other lesser oce).
Both are 65 and are retirees, yet one is barred from running for the oce of
governor. What is the valid distinction? Is this not an arbitrary discrimination
against petitioner who has cause to complain that "the aforesaid provision was
concocted and designed precisely to frustrate any bid of herein petitioner to make a
political comeback as governor of Nueva Vizcaya 1 (since no other case of a
former governor similarly barred by virtue of said provision can ever be cited 2 ). Is
there not here, therefore, a gross denial of the cardinal constitutional guarantee
that equal protection and security shall be given under the law to every person,
under analogous if not identical circumstances?
cdasia

Respondent's claim, as accepted by the majority, is that the purpose of the special
disqualication is "to infuse new blood in local governments" but the classication
(that would bar 65-year old retirees from running for the same elective local oce)
is not rational nor reasonable. It is not germane nor relevant to the alleged purpose
of "infusing new blood" because such "old blood" retirees may continue in local
governments since they are not disqualied at all to run for any other local elective
oce such as from provincial governor, vice-governor, city, municipal or district
mayor and vice-mayor to member of the Sangguniang Panlalawigan, Sangguniang
Panglunsod and Sangguniang Bayan, other than the local elective oce from which
they retired.

Furthermore, other 65-year olds who have likewise retired from the judiciary and
other branches of government are not in any manner disqualied to run for any
local elective oce, as in the case of retired Court of First Instance Judge (former
Congressman) Alberto S. Ubay who retired with full substantial retirement benets
as such judge in 1978 at age 70 and now at past 71 years of age, is running as the
ocial KBL candidate for governor of his province. And even in the case of 65-year
old local elective ocials, they are disqualied only when they have received
payment of the retirement benets to which they are entitled under the law (which
amount to very little, compared to retirement benets of other executive ocials
and members of the judiciary). If they have not received such retirement benets,
they are not disqualied. Certainly, their disqualication or non-disqualication and
consequent classication as "old blood" or "new blood" cannot hinge on such an
irrelevant question or whether or not they have received their retirement benets.
cdrep

The classication is patently arbitrary and unreasonable and is not based on

substantial distinction which make for real dierences that would justify the special
disqualication of petitioner, which, it is claimed, "is based on a presumption that
elective local ocials who have retired and are of advanced age cannot discharge
the functions of the oce they seek as those who are dierently situated." 3 Such
presumption is sheer conjecture. The mere fact that a candidate is less than 65 or
has "young or new blood" does not mean that he would be more ecient, eective
and competent than a mature 65-year old like petitioner who has had experience
on the job and who was observed at the hearing to appear to be most physically t.
Suce it to cite the outstanding case of the incumbent ebullient Minister of Foreign
Aairs, Gen. Carlos P. Romulo, who was elected at 80 as a member of the Interim
Batasan Pambansa and who has just this month completed 81 years of age and has
been hailed by the President himself as "the best foreign minister the Republic has
ever had."
Age has simply just never been a yardstick for qualication or disqualication. At the
most, a minimum age to hold public oce has been required as a qualication to
insure a modicum of maturity (now reduced to 21 years in the present batas), but
no maximum age has ever been imposed as a disqualication for elective public
oce since the right and will of the people to elect the candidate of their choice for
any elective office, no matter his age, has always been recognized as supreme.
The disqualication in question therefore is grossly violative of the equal protection
clause which mandates that all persons subjected to legislation shall be treated
alike, under like circumstances and conditions, both in the privileges conferred and
in the liabilities imposed. The guarantee is meant to proscribe undue favor and
individual or class privilege on the one hand and hostile discrimination and the
oppression of inequality on the other. The questioned provision should therefore at
the least be declared invalid in its application insofar as it would disqualify petitioner
from running for the office of governor of his province.
As aptly restated by the Chief Justice, "Persons similarly situated should be similarly
treated. Where no valid distinction could be made as to the relevant conditions that
call for consideration, there should be none as to the privileges conferred and the

liabilities imposed. There can be no undue favoritism or partiality on the one hand
or hostility on the other. Arbitrary selection and discrimination against persons in
thus ruled out. For the principle is that equal protection and security shall be given
to every person under circumstances, which if not identical are analogous. If law be
looked upon in terms of burden or charges, those that full within a class should be
treated in the same fashion, whatever restrictions cast on some in the group equally
binding on the rest." 4
Finally, this arbitrary disqualication is likewise grossly violative of Article XII, subarticle C, section 9(1) of the 1973 Constitution that "Bona de candidates for any
public office shall be free from any form of harassment and discrimination."
II.
I concur with the majority's declaration of invalidity of the portion of the
second paragraph of section 4 of Batas Pambansa Blg. 52 which would make the
mere ling of charges of subversion, insurrection, rebellion or other similar crimes
before a civil court or military tribunal after preliminary investigation prima facie
evidence of the fact of commission of an act of disloyalty to the State on the part of
the candidate and disqualify him from his candidacy. Such a provision could be the
most insidious weapon to disqualify bona fide candidates who seem to be headed for
election and places in the hands of the military and civil prosecutors a dangerous
and devastating weapon of cutting o any candidate who may not be to their liking
through the filing of last-hour charges against him.
LibLex

I also concur with the pronouncement made in the majority decision that in order
that a judgment of conviction may be deemed "as conclusive evidence" of the
candidate's disloyalty to the State and of his disqualication from oce, such
judgment of conviction must be nal and unappealable. This is so specically
provided in Section 22 of the 1978 Election Code. 5 Otherwise, the questioned
provision would deny the bona de candidate substantive due process and would be
grossly violative of his constitutional right of presumption of innocence and of the
above-quoted provision of the 1973 Constitution protecting candidates for public
office from any form of harassment and discrimination.

ADDENDUM
When the case was voted upon a second time last January 21st, there appeared to
be a majority in favor of the declarations and pronouncements above referred to in
the two preceding paragraphs, in view of the urgency of the matter and the evil
sought to be avoided. However, as of this writing, January 23, 1980 in the
afternoon, such majority seems to have been dissipated by the view that the action
to nullify such second paragraph of section 4 of the Batas in question is premature
and has not been properly submitted for adjudication under the strict procedural
requirements. If this be the case, my above views, termed as concurrences, should
be taken as dissents against the majority action.
prLL

Footnotes

FERNANDO, C.J., concurring:

1.

63 Phil. 139 (1936).

2.

65 Phil. 56 (1937).

3.

Cf. Sanidad v. Commission on Elections, L-44640, October 12, 1976, 73 SCRA

333; De la Llana v. Commission on Elections, L-47245, December 9, 1977, 80
SCRA 525; Hidalgo v. Marcos, L-47329, December 9, 1977, 80 SCRA 538; Peralta
v. Commission on Elections, L-47771, March 11, 1978, 82 SCRA 30.

4.

Petition, 3-4.

5.

195 US 27 (1904).

6.

Ibid, 56.

7.

391 US 367 (1968).

8.

Ibid, 383-384.

9.

L-21064, February 18, 1970, 31 SCRA 413.

10.

Ibid, 435.

11.

Ibid, 439.

12.

L-26865-66, January 30, 1970, 31 SCRA 313.

13.

Ibid, 318.

TEEHANKEE, J., dissenting:

1.

Petition, at page 4.

2.

Respondent cites in its comment (at page 15) a handful of pending cases for
disqualification of mayoral candidates.

3.

Respondent's Comment, at pages 12-13.

4.

E.M. Fernando; The Bill of Rights, 2nd Ed., p. 100, cit. J.M. Tuason & Co., Inc. vs.
Land Tenure Administration, 31 SCRA 413 (1970).

5.

"SEC. 22.
Ineligibility of person found disloyal to the Government. Any
person found guilty of a final judgment or order of a competent court or tribunal
of any crime involving disloyalty to the duly constituted Government such as
rebellion, sedition, violations of the anti-subversion and rearms laws, and crimes
against the national security shall not, unless restored to his full civil and political
rights in accordance with law, be eligible and his certicate of candidacy shall not
be given due course not shall the votes cast in his favor be counted. In the event
his nal conviction comes after his election, he shall automatically cease in oce."

P.D. 1296, decreed February 7, 1978).