Aquino vs. COMELEC

The election offense under Section 261(h) of BP 881 is committed only by the act of making or causing the transfer or detail, which is completed upon the issuance and release of the order, so that an order issued before the election period cannot be the basis of liability even if implemented during the election period; the phrase "transfer or detail whatever" covers any personnel action, including reassignment.

Dr. Rey B. Aquino was the President and Chief Executive Officer of the Philippine Health Insurance Corporation (PHIC). Section 261(h) of Batas Pambansa Blg. 881 (BP 881), the Omnibus Election Code, prohibits any public official from making or causing the transfer or detail whatever of any public officer or employee in the civil service within the election period except upon prior approval of the Commission on Elections (COMELEC). For the May 10, 2010 national and local elections, the COMELEC issued Resolution No. 8737, which laid down guidelines on the prohibition against appointment or hiring of new employees, creating or filling of new positions, giving salary increases, and transferring or detailing any officer or employee in the civil service.

Dr. Rey B. Aquino, as President and Chief Executive Officer of the Philippine Health Insurance Corporation (PHIC), issued on January 8, 2010 PhilHealth Special Order No. 16, Series of 2010, directing the reassignment of several PHIC officers and employees to the offices opposite their names. The order stated that it was issued in the interest of the service and to enhance organizational efficiency and synergy, and that it was intended to strengthen PHIC's organizational capability by providing opportunities to its key personnel for professional growth and development in strategic management in view of the impending vacancies in crucial third-level positions. It provided that the named officers were bound to perform all the duties and functions required in their respective assignments and would receive the corresponding allowances, and that it would take effect immediately. On the same date, Aquino released the reassignment order through the PHIC's intranet service to all PHIC officers and employees, including Dennis Adre, PHIC Regional Vice-President; Masiding Alonto, PHIC Regional Vice-President; and Khaliquzzaman M. Macabato, PHIC Assistant Regional Vice-President.

On January 11, 2010, Aquino issued an Advisory implementing the reassignment order. The Advisory directed the affected officers to report to their new regional assignments, or to the central office, or to other areas, as the case may be, not later than five working days from the issuance of the reassignment order, or January 15, 2010, for officers transferred, reassigned, or designated to various posts in the central office, and ten working days from the Advisory, or January 22, 2010, for those reassigned or transferred from a regional office to another or from the central office to a regional office and vice versa.

On January 18, 2010, Dean Rudyard A. Avila III, consultant to the Chairman of the Board of PHIC and former Secretary of the PHIC Board of Directors, filed before the COMELEC a complaint against Aquino and Melinda C. Mercado, PHIC Officer-in-Charge, Executive Vice-President and Chief Operating Officer, for violation of COMELEC Resolution No. 8737 in relation to Section 261(h) of BP 881. The case was docketed as E.O. Case No. 10-003. On February 1, 2010, Adre, Alonto, and Macabato, along with Romeo D. Alberto and Johnny Y. Sychua, both PHIC Regional Vice-Presidents, filed a similar complaint for violation of Resolution No. 8737 in relation to Section 261(h) of BP 881 against Tito M. Mendiola, PHIC Senior Vice-President for Operations Sector, and Ruben John A. Basa, PHIC Group Vice-President for Corporate Affairs. This case was docketed as E.O. Case No. 10-008. The two cases were subsequently consolidated.

Meanwhile, Aquino wrote the COMELEC a letter dated January 11, 2010, asking for a categorical declaration that the issuance of and transition to the respective office designations of the concerned officers was beyond the purview of Resolution No. 8737. He posited that the reassignment order was beyond the coverage of the resolution because he issued it on January 8, 2010, before the start of the election period. He reiterated the request in a letter dated February 26, 2010, and on March 29, 2010 filed a petition before the COMELEC, docketed as E.M. Case No. 10-018, maintaining that PhilHealth Special Order No. 16, Series of 2010 was beyond the coverage of Resolution No. 8737.

On October 19, 2012, the COMELEC En Banc directed its Law Department to file the appropriate information against Aquino for violation of Resolution No. 8737 in relation to Section 261(h) of BP 881, and dismissed for lack of merit the complaint against Mercado, Mendiola, and Basa. The COMELEC declared that Aquino violated Section 261(h) when he directed the transfer or reassignment of PHIC officers and employees within the declared election period without its prior approval. It explained that the word "whatever" modified "transfer" and "detail" such that any movement of personnel from one station to another during the election period, whether or not in the same office or agency, was covered by the prohibition. It noted that while the reassignment order was issued on January 8, 2010, before the transfer ban, its implementation was carried out after the ban had set in; that Aquino issued the order late in the afternoon of January 8, 2010, a Friday; that he issued the implementing guidelines only on January 11, 2010, after the transfer ban had taken effect; and that he issued several transfer or reassignment orders from January 21 to February 15, 2010, without the required prior COMELEC approval. The COMELEC dismissed the complaint against the other respondents because the documents on record bore only Aquino's signature and conspiracy among them was neither alleged nor proved.

Aquino sought reconsideration on December 7, 2012, arguing that what he directed was only a reassignment, not a transfer, which was not covered by the transfer ban, and citing Civil Service Commission Memorandum Circular No. 2, series of 2005, and Tapispisan vs. Court of Appeals; that he issued the directive before the start of the election period; and that he had thrice sought COMELEC approval as early as January 11, 2010, with the COMELEC having yet to act on his requests. On February 18, 2014, the COMELEC En Banc affirmed in toto the October 19, 2012 resolution. It ruled that the word "whatever" in Section 261(h) expanded the coverage of the prohibition to include any movement of personnel, including reassignment, and that Resolution No. 8737 defined "transfer" as including any personnel action, such that "transfer" and "reassignment" have similar legal consequences. It emphasized that only a prima facie finding of violation or probable cause is required for the filing of an information for an election offense, and that the facts showed such a prima facie case against Aquino.

• Rule-Making Authority: Aquino argued that the COMELEC exceeded its authority to implement election laws when, in interpreting Section 261(h) of BP 881, it added reassignments as a covered offense although the prohibition speaks only of transfer and detail; the COMELEC cannot validly extend what the law provides without violating the basic precept that the power to make laws is exclusively lodged in the legislature, and the term "whatever" was added simply to modify "detail" or both "detail and/or transfer."
• Nullum Crimen Sine Lege: Aquino argued that the COMELEC cannot hold him criminally liable for an act the law does not prohibit, and that in Regalado the Court declared transfer to fall within the prohibition because it was used for electioneering purposes or to harass subordinates, none of which was alleged in this case.
• Timing of the Order: Aquino argued that the reassignment order did not violate Section 261(h) because he issued it on January 8, 2010, before the start of the election period; the reassignments were immediately executory and were released and disseminated via the PHIC's intranet and facsimiles on the same date.
• Election Period: Aquino argued that Section 3 of BP 881 fixes the start of the election period at 90 days before the election, not 120 days as the COMELEC set in Resolution No. 8737, such that the election period for the May 10, 2010 elections should have commenced on February 9, 2010, not January 10, 2010.
• Prematurity and Prejudicial Question: Aquino argued that the COMELEC's resolutions and directive to file criminal action were premature and without legal basis because he had thrice requested exemption from Resolution No. 8737 and his request remained pending; the resolution of his request was necessary as the issues raised were prejudicial to the consolidated complaints.

• Coverage of the Prohibition: The COMELEC argued that it has the power to prosecute any reassignment of civil service officers and employees made during the election period; the words "transfer" and "detail" are modified by "whatever" such that any movement of personnel from one station to another, whether or not in the same office or agency, is covered, and this includes reassignment.
• Grave Abuse of Discretion: The COMELEC argued that it did not act with grave abuse of discretion when it directed its Law Department to file the information because Aquino issued the reassignment order during the election period without its prior approval, and it did not err in fixing the election period and implementing Resolution No. 8737.
• Elements of the Offense: Relying on Regalado, the COMELEC argued that two elements must concur: (1) a public officer or employee is transferred or detailed within the election period as fixed by it; and (2) the transfer or detail was effected without its prior approval pursuant to its implementing rules. Both were present because, while the order was issued January 8, 2010, it became effective only January 11, 2010, within the election period; the order was issued at 4:30 pm when it was too late to be implemented; the complainants received a copy only on January 11, 2010; the Advisory was issued only on January 11, 2010; and Aquino issued other reassignment orders between January 21 and February 15, 2010.
• Prior Approval: The COMELEC argued that Aquino's letters and petition for exemption could not have rectified the deficiency because they were filed long after the election ban had taken effect and the petition was filed long after the complaints.
• Validity of the Election Period: The COMELEC argued that the election period it fixed for the May 10, 2010 election is valid and legal pursuant to its authority under Section 3 of BP 881, Section 12 of Resolution No. 8737, Section 52(m) of BP 881, and Section 30 of RA 6646.

• Validity of COMELEC Resolution No. 8737: Whether the COMELEC validly issued Resolution No. 8737 defining transfer, as contemplated under Section 261(h) of BP 881, to include all personnel action including reassignments.
• Prima Facie Case: Whether the COMELEC validly found a prima facie case against Aquino for violation of Resolution No. 8737 in relation to Section 261(h) of BP 881.

• Validity of COMELEC Resolution No. 8737: Yes. The COMELEC did not exceed its rule-making power; the phrase "transfer or detail whatever" in Section 261(h) of BP 881 covers any personnel action, including reassignments, as the term "whatever" modifies both "transfer" and "detail" and the prohibition is read in light of the purpose of securing free, orderly, and honest elections.
• Prima Facie Case: No. The COMELEC gravely abused its discretion because Aquino made or caused the reassignment before the election period; Section 261(h) penalizes only the act of making or causing the transfer, which is completed upon the issuance and release of the order, and the subsequent implementation is beyond the prohibition.

• Validity of COMELEC Resolution No. 8737: The COMELEC's power to enforce and administer election laws and to promulgate rules and regulations necessarily includes the power to interpret the provisions of the law it enforces. In Regalado, Jr. vs. Court of Appeals, the Court already clarified that the terms transfer and detail are modified by the term "whatever" such that any movement of personnel from one station to another, whether or not in the same office or agency, during the election period is covered by the prohibition. This interpretation is consistent with the legislative intent: any personnel action during the election period can be used for electioneering or to harass subordinates with different political persuasions, and the mere plausibility of such use is what the prohibition seeks to prevent. It is immaterial whether the personnel action was actually used for electioneering or whether the complaint alleged it. The interpretation is also consistent with statutory construction rules: a provision should be construed in relation to the whole law; words are to be understood in their natural, plain, and ordinary meaning, and "whatever" means "anything at all"; and special legal provisions prevail over general ones, so that BP 881, as a special law on election offenses, prevails over PD 807 and EO 292 governing the civil service. The COMELEC also validly fixed the election period at 120 days before and 30 days after the election, pursuant to Section 9, Article IX-C of the Constitution and Section 3 of BP 881, and Resolution No. 8737 was validly published twice.

• Prima Facie Case: Section 261(h) provides the elements of the offense: (1) the making or causing of a government official or employee's transfer or detail whatever; (2) the making or causing was made during the election period; and (3) the acts were made without the required prior COMELEC approval. The terms "make" and "cause" indicate the beginning, the start of something, a precursor; they pertain to an act that brings about a desired result. The legal prohibition affects only those acts that go into the making or causing, or the antecedent acts; any act that occurs after the antecedent act, such as the actual or physical act of transferring, is no longer the concern of the prohibition. The act of making or causing consists in the act of issuing the transfer or reassignment order, which entails the mechanical act of drafting or writing the order, the signing of the order, and its release to the concerned officer or employee. If the order is issued before the election period, it is beyond the coverage of the prohibition and the issuing official cannot be held liable. Once the order is issued, the making or causing is deemed completed, and the active role shifts to the addressee who implements the order; the issuing official shifts to passive participation. The COMELEC gravely abused its discretion because: (1) Aquino made or caused the reassignment before the election period; (2) he sent out the order via the PHIC's intranet before the election period; (3) the order was complete in its terms and effective immediately, before the election period; and (4) the subsequent orders Aquino issued were not reassignment orders per se but orders of retention or temporary discharge of additional duties, which do not involve any movement of personnel. The COMELEC used wrong or irrelevant considerations and went beyond the clear contemplation of the law when it included the implementation aspect of the reassignment process within the prohibition.

• Election Transfer Ban — Section 261(h) of BP 881 prohibits any public official from making or causing the transfer or detail whatever of any public officer or employee in the civil service within the election period except upon prior approval of the COMELEC. The SC held that the phrase "transfer or detail whatever" covers any personnel action, including reassignment, whether or not in the same office or agency.
• Making or Causing as the Operative Act — The election offense is committed by the act of making or causing the transfer or detail, which consists in the issuance of the order — drafting, signing, and release. Once the order is issued, the making or causing is completed; the implementation phase is no longer within the prohibition. The elements of the offense are: (1) the making or causing of a government official or employee's transfer or detail whatever; (2) the making or causing was made during the election period; and (3) the acts were made without the required prior COMELEC approval.
• COMELEC Rule-Making Power — The COMELEC has the power to enforce and administer all election laws and to promulgate rules and regulations, and necessarily to interpret the provisions of the law it enforces. This power is not unlimited and must be read in conjunction with the Constitution and the laws from which it draws its power.
• Election Period — Under Section 9, Article IX-C of the Constitution and Section 3 of BP 881, the election period generally starts 90 days before and ends 30 days after the election date, but the COMELEC is not precluded from setting a different period.

• "the election law's prohibition on transfer or detail covers any movement of personnel from one station to another, whether or not in the same office or agency when made or caused during the election period." — This is the SC's restatement of the rule in Regalado, affirming that reassignment is covered by the prohibition.
• "If we read these definitions within the context of Section 261(h) of BP 881, the legal prohibition on transfer or detail undoubtedly affects only those acts that go into the making or causing or to the antecedent acts." — This is the core of the SC's ruling on the prima facie case, distinguishing the making or causing from the implementation.
• "Once the transfer or reassignment order is issued, the making or causing as the defining act that determines whether a government official may be held liable under Section 261(h) is deemed completed." — This is the key holding on when the offense is consummated.
• "the COMELEC gravely abused its discretion when, firstly, it used wrong or irrelevant considerations when it sought to hold Aquino liable for violation of Section 261 (h) for issuing orders that were clearly not for reassignment, but which were simply orders for retention of position or orders for temporary discharge of additional duties." — This summarizes the grave abuse of discretion on the facts.

• Regalado, Jr. vs. Court of Appeals, 382 Phil. 404 (2000) — Controlling precedent; the SC relied on it to hold that "transfer or detail whatever" covers any movement of personnel from one station to another, whether or not in the same office or agency.
• Mendoza vs. COMELEC, 618 Phil. 706 (2009) — Cited for the standard of grave abuse of discretion.
• Varias vs. Commission on Elections, G.R. No. 189078, February 11, 2010, 612 SCRA 386 — Cited for the standard of grave abuse of discretion.
• Fernandez vs. COMELEC, 535 Phil. 122 (2006) — Cited for grave abuse of discretion.
• Sumulong vs. Commission on Elections, 73 Phil. 288 (1941) — Cited for the COMELEC's role in ensuring free, orderly, and honest elections.
• Atty. Macalintal vs. COMELEC, 453 Phil. 586 (2003) — Cited for the scope of review of COMELEC decisions.
• Chavez vs. Judicial and Bar Council, G.R. No. 202242, July 17, 2012, 676 SCRA 579 — Cited for statutory construction.
• Phil. International Trading Corp. vs. COA, 635 Phil. 447 (2010) — Cited for statutory construction.

• Section 261(h), Batas Pambansa Blg. 881 (Omnibus Election Code) — Prohibits any public official from making or causing the transfer or detail whatever of any public officer or employee in the civil service within the election period except upon prior approval of the COMELEC. Applied: the SC held that the offense is committed by the making or causing of the transfer, which Aquino completed before the election period.
• Section 52(c), BP 881 — Grants the COMELEC the power to promulgate rules and regulations implementing the Code. Applied: the SC upheld Resolution No. 8737 as a valid exercise of this power.
• Section 52(m), BP 881 — Authorizes the COMELEC to fix the appropriate period for the various prohibited acts. Applied: the SC upheld the 120-day election period.
• Section 9, Article IX-C, 1987 Constitution — Fixes the election period at 90 days before and 30 days after the election, unless otherwise provided. Applied: the SC held the COMELEC may set a different period.
• Section 6, Article IX-A, 1987 Constitution — Each Commission en banc may promulgate its own rules concerning pleadings and practice, provided they do not diminish, increase, or modify substantive rights. Applied: the SC cited this for the COMELEC's rule-making power.
• Section 2(1), Article IX-C, 1987 Constitution — The COMELEC shall enforce and administer all laws and regulations relative to the conduct of an election. Applied: the SC cited this for the COMELEC's enforcement power.
• Section 7, Article IX-A, 1987 Constitution — Any decision, order, or ruling of each Commission may be brought to the SC on certiorari. Applied: the SC cited this for the scope of review.
• Section 3, BP 881 — Fixes the election period at 90 days before and 30 days after the election. Applied: the SC held the COMELEC may set a different period.
• Section 30, RA 6646 — Rules and regulations of the COMELEC take effect on the seventh day after publication. Applied: the SC cited this for the validity of Resolution No. 8737.
• Section 12, COMELEC Resolution No. 8737 — Effectivity clause. Applied: the SC cited this for the validity of the resolution.
• PD 807 (Civil Service Decree) and EO 292 (Administrative Code of 1987) — General laws governing the civil service. Applied: the SC held BP 881, as a special law, prevails over these.