Orceo vs. Commission on Elections

An implementing rule may include matters not expressly stated in the statute being implemented, provided the regulation is germane to the law’s objects and purposes and conforms to the standards prescribed; thus, the COMELEC did not gravely abuse its discretion in including airsoft guns and airguns in the term “firearm” for the election gun ban, but replicas and imitations must be excluded because they are not subject to regulation.

Petitioner Atty. Reynante B. Orceo is an airsoft player since 2000; respondent Commission on Elections (COMELEC) is the constitutional body vested with authority over election matters. Republic Act No. 7166, Sections 32 and 33, prohibits the bearing, carrying, or transporting of firearms or other deadly weapons during the election period and regulates security personnel and bodyguards, while Section 35 authorizes the COMELEC to issue implementing rules and regulations. Pursuant to that authority, the COMELEC issued Resolution No. 8714 for the May 10, 2010 national and local elections, and PNP Circular No. 11 dated December 4, 2007 governs the manufacture, importation, exportation, sale, possession, and carrying of airsoft rifles/pistols.

Atty. Reynante B. Orceo has played airsoft since 2000. On December 16, 2009, the COMELEC promulgated Resolution No. 8714, which took effect on December 25, 2009 and contained the implementing rules and regulations of Sections 32 and 33 of R.A. No. 7166 for the May 10, 2010 national and local elections. The election period ran from January 10, 2010 to June 9, 2010. Section 1 of the Resolution prohibited an unauthorized person from bearing, carrying, or transporting firearms or other deadly weapons in public places, including public buildings, streets, parks, and private vehicles or public conveyances, even if licensed to possess or carry the same, during the election period. Section 2(b) defined “firearm” to include “airgun, airsoft guns, and their replica/imitation in whatever form that can cause an ordinary person to believe that they are real.” Airsoft guns and their replicas/imitations were thus included in the gun ban during the election period.

Petitioner claimed that he is a real party-in-interest because he has been playing airsoft since 2000. According to him, the continuing implementation of Resolution No. 8714 would put him in danger of sustaining direct injury or make him liable for an election offense if caught in possession of an airsoft gun and its replica/imitation in going to and from the game site and playing the sport during the election period. He contended that the COMELEC gravely abused its discretion amounting to lack or excess of jurisdiction in including “airsoft guns and their replicas/imitations” in the definition of “firearm” in Resolution No. 8714, since nothing in R.A. No. 7166 mentions them. He asserted that the intendment of R.A. No. 7166 is that the term “firearm” refers to a real firearm in its common and ordinary usage. In support, he cited the Senate deliberation on the bill that later became R.A. No. 7166, where it was clarified that an unauthorized person caught carrying a firearm during the election period is guilty of an election offense under Section 261(q) of the Omnibus Election Code. He further alleged that there is no law that covers airsoft guns, and that by including airsoft guns in the definition of “firearm,” Resolution No. 8714 effectively criminalizes the sport, since possession of an airsoft gun or its replica/imitation is now an election offense although there is still no law governing its use. He prayed that the Court annul Resolution No. 8714 insofar as it includes airsoft guns and their replicas/imitations within the meaning of “firearm”; order the COMELEC to desist from further implementing the Resolution as to them; order the COMELEC to amend the Resolution by removing them from the definition of “firearm”; and order the COMELEC to issue a resolution directing the Armed Forces of the Philippines, Philippine National Police, and other deputized law enforcement agencies to desist from enforcing the Resolution against them.

In its Comment, the COMELEC, represented by the Office of the Solicitor General, stated that its intent in including airsoft guns in the term “firearm” and their resultant coverage by the election gun ban was to avoid the possible use of recreational guns in sowing fear, intimidation, or terror during the election period. It argued that an ordinary citizen may not be able to distinguish between a real gun and an airsoft gun, and that it is fear subverting the will of a voter, whether brought about by the use of a real gun or a recreational gun, which is sought to be averted. The ultimate objective, it said, was to ensure the holding of free, orderly, honest, peaceful, and credible elections. The COMELEC also stated that it adheres to the constitutional state policies on family and sports, but even constitutional freedoms are not absolute and may be abridged to some extent to serve appropriate and important interests.

The decision also noted that, contrary to petitioner’s allegation, there is a regulation governing the possession and carriage of airsoft rifles/pistols: PNP Circular No. 11 dated December 4, 2007, entitled Revised Rules and Regulations Governing the Manufacture, Importation, Exportation, Sale, Possession, Carrying of Airsoft Rifles/Pistols and Operation of Airsoft Game Sites and Airsoft Teams. The Circular defines an airsoft rifle/pistol as a battery-operated, spring- and gas-type powered rifle/pistol that discharges plastic or rubber pellets only as bullets or ammunition, and distinguishes it from a replica, which does not fire plastic or rubber pellets. It classifies the airsoft rifle/pistol as a special type of air gun, restricted in its use only to sporting activities such as war game simulation. Any person who desires to possess an airsoft rifle/pistol needs a license from the PNP, filed in accordance with PNP Standard Operating Procedure No. 13; the minimum age limit of the applicant is 18 years old. The Circular also requires a Permit to Transport an airsoft rifle/pistol from the place of residence to any game or exhibition site. A license to possess an airsoft gun, like ordinary licenses in other regulated fields, does not confer an absolute right, but only a personal privilege to be exercised under existing restrictions and such as may thereafter be reasonably imposed. The petition was filed directly with the Supreme Court, which was asked to annul Resolution No. 8714 insofar as it included airsoft guns and their replicas/imitations in the term “firearm.”

• Grave Abuse of Discretion: Petitioner argued that the COMELEC gravely abused its discretion amounting to lack or excess of jurisdiction in including “airsoft guns and their replicas/imitations” in the definition of “firearm” in Resolution No. 8714.
• Statutory Text and Intent: Petitioner maintained that R.A. No. 7166 does not mention “airsoft guns and their replicas/imitations,” and that the intendment of the law is that the term “firearm” refers to a real firearm in its common and ordinary usage, as supported by the Senate deliberation on the bill that became R.A. No. 7166.
• No Governing Law: Petitioner alleged that there is no law that covers airsoft guns; by including airsoft guns in the definition of “firearm,” Resolution No. 8714 effectively criminalizes the sport because possession of an airsoft gun or its replica/imitation becomes an election offense under Section 261(q) of the Omnibus Election Code.
• Constitutional State Policies: Petitioner contended that Resolution No. 8714 violates Article II, Section 12 and Article XV, Section 1 on family life, and Article II, Section 17 on sports, because playing airsoft provides bonding moments among family members and families are free to choose and enjoy their recreational activities; these liberties, he argued, cannot be abridged by the COMELEC.
• Real Party-in-Interest and Direct Injury: Petitioner claimed that he is a real party-in-interest because he has played airsoft since 2000, and the continuing implementation of Resolution No. 8714 will put him in danger of sustaining direct injury or make him liable for an election offense if caught in possession of an airsoft gun and its replica/imitation in going to and from the game site and playing the sport during the election period.
• Prayer for Relief: Petitioner prayed that the Court annul Resolution No. 8714 insofar as it includes airsoft guns and their replicas/imitations within the meaning of “firearm”; order the COMELEC to desist from further implementing the Resolution as to them; order the COMELEC to amend the Resolution by removing them from the definition of “firearm”; and order the COMELEC to direct the AFP, PNP, and other deputized law enforcement agencies to desist from enforcing the Resolution against them.

• Purpose of Inclusion: The COMELEC countered that its intent in including airsoft guns in the term “firearm” and their resultant coverage by the election gun ban was to avoid the possible use of recreational guns in sowing fear, intimidation, or terror during the election period.
• Indistinguishability and Voter Fear: The COMELEC argued that an ordinary citizen may not be able to distinguish between a real gun and an airsoft gun, and that fear subverting the will of a voter, whether brought about by the use of a real gun or a recreational gun, is sought to be averted.
• Election Objective: The COMELEC maintained that the ultimate objective is to ensure the holding of free, orderly, honest, peaceful, and credible elections.
• Constitutional Freedoms Not Absolute: The COMELEC stated that it adheres to the constitutional state policies on family and sports, but even constitutional freedoms are not absolute and may be abridged to some extent to serve appropriate and important interests.

• Grave Abuse of Discretion — Airsoft Guns and Airguns: Whether the COMELEC gravely abused its discretion in including airsoft guns and airguns in the term “firearm” in Section 2(b) of Resolution No. 8714.
• Grave Abuse of Discretion — Replicas and Imitations: Whether the COMELEC gravely abused its discretion in including replicas and imitations of airsoft guns and airguns in the term “firearm” in Section 2(b) of Resolution No. 8714.
• Constitutional State Policies: Whether the inclusion of airsoft guns and their replicas/imitations in the term “firearm” violates the constitutional state policies on family life and sports.

• Grave Abuse of Discretion — Airsoft Guns and Airguns: No. The COMELEC acted within its authority under Section 35 of R.A. No. 7166, and the inclusion is germane to ensuring free, orderly, honest, peaceful, and credible elections.
• Grave Abuse of Discretion — Replicas and Imitations: Yes, as to replicas and imitations. They are excluded from the term “firearm” because they are not subject to any regulation, unlike airsoft guns.
• Constitutional State Policies: No. The state policies do not confer an absolute right to possess or carry an airsoft gun; a license is a personal privilege subject to reasonable restrictions such as Resolution No. 8714.

• Grave Abuse of Discretion — Airsoft Guns and Airguns: The COMELEC had the authority to promulgate Resolution No. 8714 pursuant to Section 35 of R.A. No. 7166, which granted it the power to issue the implementing rules and regulations of Sections 32 and 33. Under this broad power, the COMELEC was mandated to provide the details of who may bear, carry, or transport firearms or other deadly weapons, as well as the definition of “firearms,” among others. These details are left to the discretion of the COMELEC, a constitutional body that possesses special knowledge and expertise on election matters, with the objective of ensuring the holding of free, orderly, honest, peaceful, and credible elections. Holy Spirit Homeowners Association, Inc. vs. Defensor held that where a rule or regulation has a provision not expressly stated or contained in the statute being implemented, that provision does not necessarily contradict the statute; a legislative rule is in the nature of subordinate legislation, designed to implement a primary legislation by providing the details thereof. All that is required is that the regulation should be germane to the objects and purposes of the law, and that it be not in contradiction to, but in conformity with, the standards prescribed by the law. The COMELEC’s intent in including airsoft guns in the term “firearm” was to avoid the possible use of recreational guns in sowing fear, intimidation, or terror during the election period. An ordinary citizen may not be able to distinguish between a real gun and an airsoft gun; fear subverting the will of a voter, whether brought about by a real gun or a recreational gun, is sought to be averted. PNP Circular No. 11 governs the possession and carriage of airsoft rifles/pistols, defines an airsoft gun, classifies it as a special type of air gun restricted to sporting activities, requires a license and a permit to transport, and treats a license as a personal privilege subject to existing restrictions and such as may thereafter be reasonably imposed. The inclusion of airsoft guns and airguns in the term “firearm” in Resolution No. 8714 for purposes of the gun ban during the election period is a reasonable restriction, the objective of which is to ensure the holding of free, orderly, honest, peaceful, and credible elections. Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or the exercise of power in an arbitrary manner by reason of passion, prejudice, or personal hostility, and it must be so patent or gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. No such grave abuse attended the COMELEC’s inclusion of airsoft guns and airguns.

• Grave Abuse of Discretion — Replicas and Imitations: The Court excluded the replicas and imitations of airsoft guns and airguns from the term “firearm” under Resolution No. 8714 because they are not subject to any regulation, unlike airsoft guns. The COMELEC therefore exceeded the proper scope of the challenged definition as to these unregulated items.

• Constitutional State Policies: The constitutional state policies on family life and sports do not directly uphold a licensee’s absolute right to possess or carry an airsoft gun under any circumstance. Petitioner, as a long-time player of the airsoft sport, is presumed to have a license to possess an airsoft gun. As a lawyer, he is aware that a licensee of an airsoft gun is subject to the restrictions imposed upon him by PNP Circular No. 11 and other valid restrictions, such as Resolution No. 8714. These restrictions exist in spite of the state policies invoked, which do not directly uphold an absolute right to possess or carry an airsoft gun.

• Implementing Rules and Regulations as Subordinate Legislation — A legislative rule is in the nature of subordinate legislation, designed to implement a primary legislation by providing the details thereof. A provision not expressly stated in the statute being implemented does not necessarily contradict the statute; the regulation must be germane to the objects and purposes of the law and must not contradict, but must conform to, the standards prescribed by law. Applied: COMELEC Resolution No. 8714 validly included airsoft guns and airguns within the term “firearm” for the election gun ban under R.A. No. 7166.
• Grave Abuse of Discretion — Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or the exercise of power in an arbitrary manner by reason of passion, prejudice, or personal hostility, and it must be so patent or gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. Applied: no grave abuse attended the COMELEC’s inclusion of airsoft guns and airguns, but the inclusion of replicas and imitations was excluded because they are unregulated.
• License as Personal Privilege Subject to Regulation — A license to possess an airsoft gun, like ordinary licenses in other regulated fields, does not confer an absolute right but only a personal privilege to be exercised under existing restrictions and such as may thereafter be reasonably imposed. Applied: the inclusion of airsoft guns and airguns in the election gun ban is a reasonable restriction despite the constitutional state policies on family and sports.
• Reasonable Restriction for Election Integrity — The inclusion of airsoft guns and airguns in the term “firearm” for the gun ban during the election period is a reasonable restriction aimed at ensuring free, orderly, honest, peaceful, and credible elections. Applied: the COMELEC did not gravely abuse its discretion as to airsoft guns and airguns.
• Exclusion of Unregulated Replicas and Imitations — Replicas and imitations of airsoft guns and airguns are excluded from the term “firearm” under Resolution No. 8714 because they are not subject to any regulation, unlike airsoft guns. Applied: the petition was partly granted as to these items.

• “Where a rule or regulation has a provision not expressly stated or contained in the statute being implemented, that provision does not necessarily contradict the statute. A legislative rule is in the nature of subordinate legislation, designed to implement a primary legislation by providing the details thereof. All that is required is that the regulation should be germane to the objects and purposes of the law; that the regulation be not in contradiction to, but in conformity with, the standards prescribed by the law.” — This passage, quoted from Holy Spirit Homeowners Association, Inc. vs. Defensor, supplies the standard for testing the validity of COMELEC Resolution No. 8714 as an implementing rule.
• “The inclusion of airsoft guns and airguns in the term ‘firearm’ in Resolution No. 8714 for purposes of the gun ban during the election period is a reasonable restriction, the objective of which is to ensure the holding of free, orderly, honest, peaceful and credible elections.” — This is the ratio for upholding the COMELEC’s inclusion of airsoft guns and airguns in the election gun ban.
• “However, the Court excludes the replicas and imitations of airsoft guns and airguns from the term ‘firearm’ under Resolution No. 8714, because they are not subject to any regulation, unlike airsoft guns.” — This states the decisive ground for the partial grant of the petition and the exclusion of replicas and imitations from the challenged definition.
• “Petitioner’s allegation of grave abuse of discretion by respondent COMELEC implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction or, in other words, the exercise of power in an arbitrary manner by reason of passion, prejudice or personal hostility, and it must be so patent or gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.” — This defines the standard of grave abuse of discretion against which the COMELEC’s action was measured and found wanting only as to replicas and imitations.

• Holy Spirit Homeowners Association, Inc. vs. Defensor, G.R. No. 163980, August 3, 2006, 497 SCRA 581 — Cited by the majority as controlling authority for the rule that an implementing regulation may contain a provision not expressly stated in the statute, provided it is germane to the law’s objects and purposes and conforms to the standards prescribed; applied to uphold COMELEC Resolution No. 8714 as to airsoft guns and airguns.
• Chavez vs. Romulo, G.R. No. 157036, June 9, 2004, 431 SCRA 534 — Cited for the principle that a license to possess an airsoft gun is not an absolute right but a personal privilege subject to existing and reasonably imposed restrictions; applied to reject the claim that constitutional state policies on family and sports invalidated the gun ban.
• Sangcopan vs. Commission on Elections, G.R. No. 170216, March 12, 2008, 548 SCRA 148, 158-159 — Cited for the definition of grave abuse of discretion; applied to find no grave abuse as to airsoft guns and airguns but to exclude replicas and imitations because they are unregulated.

• Section 32, Republic Act No. 7166 — “Who May Bear Firearms.” During the election period, no person shall bear, carry, or transport firearms or other deadly weapons in public places, including any building, street, park, private vehicle, or public conveyance, even if licensed, unless authorized in writing by the Commission; the issuance of firearms licenses is suspended during the election period. Applied: this is the gun ban provision implemented by Resolution No. 8714; airsoft guns and airguns were held covered, while replicas and imitations were excluded.
• Section 33, Republic Act No. 7166 — Security Personnel and Bodyguards. Mentioned as one of the provisions implemented by Resolution No. 8714. Applied: Resolution No. 8714 contains the implementing rules and regulations of Sections 32 and 33 of R.A. No. 7166.
• Section 35, Republic Act No. 7166 — Rules and Regulations. The Commission shall issue rules and regulations to implement the Act, published in at least two national newspapers of general circulation. Applied: source of the COMELEC’s authority to promulgate Resolution No. 8714.
• Section 1, COMELEC Resolution No. 8714 — General Guiding Principles. During the election period, no person shall bear, carry, or transport firearms or other deadly weapons in public places, including all public buildings, streets, parks, and private vehicles or public conveyances, even if licensed to possess or carry the same. Applied: the general gun ban provision.
• Section 2(b), COMELEC Resolution No. 8714 — Definition of Terms. “Firearm” refers to the firearm as defined in existing laws, rules, and regulations, and also includes “airgun, airsoft guns, and their replica/imitation in whatever form that can cause an ordinary person to believe that they are real.” Applied: the challenged definition; upheld as to airsoft guns and airguns, but replicas and imitations were declared excluded.
• Section 261(q), Batas Pambansa Bilang 881 — Omnibus Election Code. Carrying firearms outside residence or place of business during the election period is an election offense. Mentioned in the petitioner’s argument and footnote as the offense resulting from the gun ban. Applied: explains the penal consequence of possessing a covered firearm during the election period.
• Section 264, Batas Pambansa Bilang 881 — Penalty for election offenses. The text’s footnote states that the offense is punished with imprisonment of not less than one year but not more than six years, disqualification to hold public office, and deprivation of the right of suffrage, and the guilty party is not subject to probation. Applied: identifies the penalty attached to the election offense invoked by petitioner.
• Article II, Section 12; Article XV, Section 1; Article II, Section 17, 1987 Constitution — State policies on family life and sports. Invoked by petitioner to challenge Resolution No. 8714. Applied: the Court held these policies do not confer an absolute right to possess or carry an airsoft gun and do not invalidate reasonable restrictions such as the election gun ban.
• Rule 65, Rules of Court — Petition for certiorari. The petitioner filed the action under Rule 65. Applied: procedural vehicle for challenging Resolution No. 8714 for grave abuse of discretion.
• PNP Circular No. 11 dated December 4, 2007 — Revised Rules and Regulations Governing the Manufacture, Importation, Exportation, Sale, Possession, Carrying of Airsoft Rifles/Pistols and Operation of Airsoft Game Sites and Airsoft Teams. Defines an airsoft rifle/pistol, classifies it as a special type of air gun restricted to sporting activities, requires a license and a permit to transport, and sets a minimum age of 18. Applied: shows airsoft guns are regulated, unlike replicas and imitations, and supports the reasonableness of the election gun ban.

• Concurring Justices: Antonio T. Carpio (Acting Chief Justice), Renato C. Corona, Conchita Carpio Morales, Presbitero J. Velasco, Jr., Antonio Eduardo B. Nachura, Teresita J. Leonardo-De Castro, Arturo D. Brion, Lucas P. Bersamin, Mariano C. Del Castillo, Roberto A. Abad, Martin S. Villarama, Jr., Jose Portugal Perez, and Jose Catral Mendoza. Reynato S. Puno was on official leave.
• Concurring Opinion of Justice Arturo D. Brion: Justice Brion concurred and added that the definition of “firearm” has evolved through Act No. 1780, Act No. 2711, Commonwealth Act No. 466, Presidential Decree No. 1866, Executive Order No. 712, and Republic Act No. 8294; that R.A. No. 7166 did not define “firearm,” requiring statutory construction; that the term has acquired a technical or well-known legal meaning that includes air rifles; that progressive interpretation allows the election firearms ban to cover technological advances such as airsoft guns; and that PNP Circular No. 11, issued under delegated authority, treats airsoft guns as weapons subject to regulation, thus bringing them within R.A. No. 7166 and COMELEC Resolution No. 8714.