Appointive officials seeking positions in next year’s elections need not resign from their posts upon filing their certificates of candidacy (CoCs).

The Supreme Court voted 8-6 to strike down as unconstitutional Section 4(a) of Comelec Resolution 8678, a provision in Section 13 of Republic Act 9369, and Section 66 of the Omnibus Election Code.

The second provision in the 3rd paragraph of Sec. 13 of RA 9369, states “that any person holding a public appointive office or position, including active members of the armed forces, and officers and employees in government-owned or -controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certificate of candidacy.”

Sec. 4(a) of Comelec Resolution No. 8678 provides the same. Both provisions were lifted from Sec. 66 of the Omnibus Election Code.

In a 30-page decision written by Associate Justice Antonio Eduardo B. Nachura, the court said, “Now is the opportune time for the Court to strike down the said proviso for being violative of the equal protection clause and for being overbroad.”

“In considering persons holding appointive positions as ipso facto resigned from their posts upon the filing of their CoCs, but not considering as resigned all other civil servants, specifically the electives 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 said.

The challenged provisions also suffer from infirmity of being overbroad, it added.

First, the provisions pertain to all civil servants holding appointive posts, whether they occupy high positions in government or not. Second, the provisions are directed to the activity of seeking any and all public offices, whether they be partisan or nonpartisan in character, whether they be in the national, municipal or barangay level, it said.

“Congress has not shown a compelling state interest to restrict the fundamental right involved on such a sweeping scale,” the SC said.

In a 14-page petition for temporary restraining order filed through election lawyer Romulo B. Macalintal, Environment Undersecretary Eleazar P. Quinto and Land Management Bureau director Gerino A. Tolentino Jr. told the SC that the said provisions are “contrary to existing law and jurisprudence.”

Macalintal pointed out that Section 11 of R.A. 8436 as amended by Section 13 of R.A. 9369 is very clear in that the persons filing in advance their CoCs are not yet considered candidates as of November 30 but will be considered candidates upon the start of the campaign period.

Macalintal argued that the advance filing of CoCs was only provided under the Poll Automation Law for the purpose of printing the names of the candidates in the ballots to be used in the automated elections.

The SC ruling came a week after it reversed its earlier ruling disqualifying Mayor Rosalinda Penera of Sta. Monica town, Surigao del Norte for premature campaigning.

The High Court reinstated Penera as town mayor, ruling that the motorcade she held upon filing her CoC is not tantamount to campaigning and therefore was not in violation of Comelec rules.

Macalintal said Quinto is seeking to represent the 4th District of Pangasinan in Congress while Tolentino will run as councilor in the 4th district of Manila.

Palace relieved by SC decision
Malacañang is “relieved” by Tuesday’s ruling of the Supreme Court that rejects the mandatory resignation rule of Commission on Elections over appointed officials who file their CoCs.

Presidential adviser for political affairs Gabriel Claudio said the Supreme Court’s decision siding with the petition filed by administration lawyer Romulo Macalintal would give breathing space for the executive department to find new replacements for outgoing Cabinet members who declared plans to run for national polls in May, 2010.

“We welcome that. We are certainly relieved by it. Many of the Cabinet officials who have been considered as resigned if there was no such ruling from the SC would now be able to lend a few more months of credible service to the country and the people,” he said in an interview.

“It will also give the bureaucracy more time to find the best and the most qualified replacements,” he said. (Charissa M. Luci)