MANILA - Two government executives have asked the Supreme Court on Monday to stop the Commission on Elections (Comelec) from implementing a provision in one of its resolution on the 2010 elections.

A petition for certiorari and prohibition was filed by Eleazar Quinto, Department of Environment and Natural Resources undersecretary for field operations and Gerino Tolentino, director of DENR-Land Management Bureau through their lawyer Romulo Macalintal.

The two sought for a temporary restraining order from the high Court to stop the Comelec from implementing a provision in Resolution No. 8678 which provides a rule on government officials as well as members of the military who intend to participate in the 2010 elections as candidates.

Item a of Section 4 of Comelec Resolution No. 8678 or the Guidelines on the filing of certificates of candidacy and nomination of official candidates of registered political parties in connection with the May 10, 2010 national and local elections states: “Any person holding a public appointive office or position including active members of the Armed Forces of the Philippines, and other officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy (COC).”

Quinto reportedly intends to run for a congressional post in Pangasinan while Tolentino is planning to run for councilor of Quezon City in the coming 2010 elections.

The petitioners, in their 14-page petition, accused the Comelec of committing grave abuse of discretion when it issued the resolution.

Macalintal said that under Republic Act 8436, as amended by R.A. 9369 or the poll automation law, the advance filing of their COCs on November 30 was only for the purpose of printing the names of the candidates on the ballots.

The petitioners also contended that the provision in the Comelec resolution is in conflict to the portion of the law which provides that “any person who files his COC shall be considered as a candidate at the start of the campaign period.”

“The law is very clear in that the persons filing in advance their COCs are not yet considered as ‘candidate’ as of November 30 but will only be considered as such candidates upon the start of the campaign period which they filed their COCs,” said the 2 government executives in their petition.

Macalintal said candidates holding appointive government positions should only be considered resigned at the start of the campaign period which would be on Feb. 2010 for national positions and on March 2010 for those seeking local positions including that of a congressman.

Macalintal cited the SC decision in Lanot vs Comelec issued on November 16, 2006 which declared that the advance filing of the COC for the elections is only “for purpose of printing of official ballots” and that even Congress “never intended the filing of a certificate of candidacy to make the person filing to become immediately a ‘candidate’ for purposes other than the printing of ballots.”

The petitioners also pointed out an apparent discrimination and violation of equal protection clause of the Constitution.

They said that ‘elective officials are not considered resigned if they file their COCs on November 30 and could even hold on to their positions after the elections.” The provision is Item b also in Section 4 of the Comelec resolution which has the sub-title of: Effects of Filing Certificates of Candidacy. With a report from Timi Nubla, ABS-CBN News