Supreme Court asked to clarify ruling on resignation of government officials seeking elective posts

MANILA, Philippines - The Supreme Court (SC) was asked yesterday to clarify its ruling requiring Cabinet and other appointed officials seeking elective offices this May to relinquish their posts upon filing of their certificates of candidacy (COCs).

Poll lawyer Romulo Macalintal, counsel for petitioners Undersecretary Eleazar Quinto and Director Gerino Tolentino of the Department of Environment and Natural Resources, appealed the ruling and asked the high court to declare appointed officials resigned only upon the start of the campaign period for local officials on March 26.

Macalintal questioned why the SC, in reversing an earlier ruling last week, declared that appointed officials should resign from their position upon filing of COC when it already declared in the case involving Mayor Rosalinda Penera of Sta. Monica town in Surigao del Norte that hopefuls only become official candidates at the start of the campaign.

“If a person who files his COC is not yet considered a candidate, it would be absurd to rule that an appointive official should be deemed resigned once he files his COC when the law says that the filing of such COC does not yet make him a candidate,” he argued in an 11-page motion to clarify.

Macalintal said there seems to be a need for the SC to reconcile its ruling on the “deemed-resigned” rule for appointive officials joining the polls under Section 66 of Omnibus Election Code and the 2nd proviso in the 3rd paragraph of Section 13 of Republic Act 9369 (Poll Automation Law) and Section 13 of the same law, which provides that they are not yet considered candidates upon filing of COC and therefore are not subjected to election laws.

He cited the earlier ruling of the Court in the Penera case, which effectively removed the rule on premature campaigning during elections since “any election offense that may be committed by a candidate under any election law cannot be committed before the start of the campaign period.”

He reminded the SC that the ruling was already declared final last month.

“Clearly, if such appointive official resigns at the start of the campaign period on March 26, 2010, he cannot be liable for an election offense because, as to him, the alleged unlawful act or omission of not resigning from his post is lawful,” he explained.

“Otherwise stated, he would be liable for an election offense only if he does not leave his post starting March 26 since at this time he is already considered as a candidate liable for an election offense,” he added.

Macalintal further lamented how the SC ruling “seems to consider appointive officials as dishonest and elective officials as honest.”

“Delicadeza is not an issue here but equal application of law for elective and appointive officials who are both civil service officials. Why only appointive officials are suspected to be prone to use public funds? Aren’t the elected officials the ones who are using government funds for their campaign?” he said.

In a ruling penned by Chief Justice Reynato Puno last Monday, justices of the High Court voted 10-5 to grant motions seeking reconsideration of its decision declaring unconstitutional Section 66 of Omnibus Election Code and the 2nd proviso in the 3rd paragraph of Section 13 of RA 9369, which provides that any appointive government official “shall be ipso facto (as a result) resigned upon their filing of COC.”

The high court stressed that the issue on the constitutionality of the “deemed-resigned rule” for appointed officials joining elections was already resolved in Fariñas vs. Executive Secretary, where the SC held that the legal dichotomy created by Congress is valid as there are material and significant distinctions between appointive and elected officials.

Chief Justice Puno described the deemed-resigned rule as a law that “restrains the evils from running,” which is a safeguard against the “unbreakable grasp on the reins of power.”

The SC upheld the argument that appointed officials would have unfair advantage over their rivals as there is a possibility that they would use resources of their offices in their campaign.

Puno was joined by Associate Justices Conchita Carpio-Morales, Arturo Brion, Diosdado Peralta, Mariano del Castillo, Roberto Abad, Martin Villarama, Jose Perez and Jose Mendoza. Senior Associate Justice Antonio Carpio concurred in the majority decision, but wrote a separate opinion.

Dissenting from the ruling were Senior Associate Justice Renato Corona and Associate Justice Antonio Eduardo Nachura, Presbitero Velasco Jr., Teresita Leonardo-de Castro and Lucas Bersamin. Nachura, who penned the former majority ruling, wrote a dissenting opinion.

In its earlier decision, the SC ruled that such a rule is discriminatory against persons holding appointive positions.

“In considering persons holding appointive positions as ipso facto resigned from their posts upon the filing of their COCs, but not considering as resigned all other civil servants, specifically the elective ones, the law unduly discriminates against the first class.”

“The fact alone that there is substantial distinction between those who hold appointive positions and those occupying elective posts does not justify such differential treatment,” the SC stressed.

The SC said Congress has not shown a compelling state interest to restrict the fundamental right to equal protection “on such a sweeping scale,” said SC spokesman and lawyer Jose Midas Marquez.

Fondevilla at DA

Meanwhile, President Arroyo has named Undersecretary Bernie Fondevilla of the Department of Agriculture as DA secretary, replacing Arthur Yap who resigned to pursue his bid for a seat in Congress.

While inspecting irrigation facilities of the Casecnan project in Guimba, Nueva Ecija, the President yesterday said she is just waiting for the appointment papers of Fondevilla.

Yap, who was with the President, said he would start the turnover of his office to Fondevilla who has also served as his chief-of-staff since 2006.

The announcement made by the President should erase any speculation that she intends to hang on to the Cabinet officials seeking elective posts forced to tender their resignations because of the SC ruling.

Members of the opposition have criticized the President for allegedly hanging on to her Cabinet members in spite of the SC ruling on the matter.

Apart from Yap, there has been no word on the other Cabinet members’ replacements.

Fondevilla earned his economics degree from the Ateneo de Manila University and finished law at the University of the Philippines.

He joined the Food Terminal Inc. in 2002 before becoming executive director of the National Agriculture and Fishery Council and trustee of the Philippine Chamber of Industrial Estates and Ecozones.

Agra or Pineda at DOJ

Meanwhile, outgoing DOJ chief Agnes Devanadera said she would leave her office within this week after resolving a few more important cases on her table.

She said President Arroyo would “most likely” appoint Solicitor General Alberto Agra as acting DOJ secretary.

Devanadera is running for representative of the first district of Quezon under the ruling Lakas-Kampi party.

But another name surfaced yesterday as possible replacement for Devanadera - retired Undersecretary Ernesto Pineda who was recommended by former Justice Secretary Raul Gonzalez for the position.

The Prosecutors’ League of the Philippines, through its president Edward Togonon, also endorsed Pineda.                   – Edu Punay, Marvin Sy