When the Supreme Court reversed on February 22 its decision allowing appointed officials to stay in office even after they have filed their certificates of candidacies (COC), involved Cabinet members dilly-dallied.

Although they immediately submitted their “courtesy resignations,” most of them did not vacate their positions until March 3, or 9 days after the ruling was issued. This may be considered an election offense.

The courtesy resignations are supposed to comply with the Supreme Court, Quinto vs Comelec, which upholds the constitutionality of Sec. 66 of the Omnibus Election Code and Sec. 13 of Republic Act 9369 that any appointive public official “shall be considered ipso facto resigned” from office upon the filing of his or her COC, and “must vacate the same at the start of the day of the filing” of the COC.

But what good is a courtesy resignation? Does it mean that they may continue in office until their resignations are accepted? This appears to be their drift.

When he filed his courtesy resignation, executive secretary Eduardo Ermita--who is seeking a congressional seat in Batangas--said that it was subject to President Arroyo’s final decision. He added that they could have opted to stay in their posts until the start of the campaign period on March 26 because the Supreme Court decision is not yet final and executory.

In spite of the clear letter of RA 9369 that the effectivity must be "at the start of the day of the filing of the COC," Ed Pamintuan of the urban Luzon beltway project, raised a question on when their resignations should be deemed effective.

Justice Secretary Agnes Devanadera, despite having filed her courtesy resignation, also insisted that she will still be on the job until end-February, to “wrap up” pending cases.

Based on the points they raised, they do not consider themselves resigned until President Arroyo accepts their resignations and makes their resignations effective on the dates of her choice. Until then, they may continue in their posts.

Motions seeking the reversal of the ruling have are pending before the Court. One of the arguments cite the November 2009 Penera vs. Comelec ruling that says an election offense cannot be committed by a candidate before the official campaign period. It means, the argument goes, that Cabinet members seeking local elective posts can stay in their posts until the campaign period for local elections starts on March 26.

Penera vs. Comelec was discussing another issue, however. It was not the automatic resignation of an appointive official, but the definition of a candidate, for the purpose of determining whether or not one may be held liable for premature campaigning.

Thus, even presuming that an appointive official may not be held liable for premature campaigning, that official may still be held liable for an election offense—violation of the Omnibus Election Code and RA 9369. Ergo, they risk being disqualified as candidates by the Comelec.

Resignations unnecessary

There is nothing voluntary about a resignation that automatically arises by operation of law. The official or employee concerned does not have to file a formal resignation to be deemed officially resigned; nor is there need for his or her resignation to be formally accepted.

An automatic resignation arising from operation of law is unconditional, irrevocable, and immediately effective, unless the law provides otherwise—and the law does not.

The choice to resign is deemed made upon the filing of the COC. It is retroactive to the first hour of the day of the filing and not upon the start of the electoral campaign period. The law makes the filing of the COC equivalent to the filing of resignation and the instantaneous acceptance thereof, thereby dispensing with the need for a separate filing of resignation that may be subject to non-acceptance.

Besides, a courtesy resignation cannot properly be interpreted as resignation in the legal sense. It is not necessarily a reflection of a public official’s intention to surrender his position. Rather, it manifests his submission to the will of the political authority and the appointing power” (Ortiz vs Comelec, June 1988).

The resignation of an appointive official implicit in R.A. 9369 is not subject to the will of the appointing power; rather, it is compulsory, as is clear from the phrase “shall be considered ipso facto resigned...” A courtesy resignation following the filing of a COC by an appointive official is thus not merely a superfluity, but is utterly inconsistent with the clear intent of RA 9369.

Although motions for the reconsideration of Quinto vs. Comelec has been filed, that does not necessarily mean that the appointive officials affected may cling to their offices until the said motion is resolved. Continuation in office may only be asserted if the resignation is voluntary or conditional. In this case, the resignation is not voluntary but by operation of law, as a legal and inevitable consequence of the voluntary act of filing a COC. There is no presumption that they continue to be entitled to the privileges and powers of their offices; on the contrary, the presumption is that they have renounced those powers and privileges.

Established jurisprudence

Quinto vs. Comelec is based on what was the erstwhile prevailing jurisprudence, Fariñas vs Executive Secretary (December 2003). What deviated from Fariñas was the original decision in Quinto (December 2009), which was in turn reversed in February.

The main issue in Quinto is the validity of the distinction between appointive and elective officials. Would deeming appointive officials, but not elective officials, ipso facto resigned upon filing of their COCs, not be violative of the equal protection clause of the Constitution? Is such a classification valid, or does it discriminate against appointive officials?

This issue was settled in Fariñas, and the decision therein should have applied with equal force when the Court promulgated its decision in Quinto on 1 December 2009. Thus, in the February resolution in Quinto, Chief Justice Reynato S. Puno, the ponente, had to point out that the distinction arises from the fact that appointive offices are meant by law to be apolitical, whereas elective positions are by their nature political. This distinction allows them to be treated separately, without giving rise to discrimination or violation of the equal protection clause.

It may additionally be pointed out that the automatic resignation of appointive officials arising from the filing of the COC is not entirely new law. Sec. 26 of the Revised Election Code (RA 180 of 1947) also provided that “Every person holding a public appointive office or position shall ipso facto cease in his office or position on the date he files his certificate of candidacy.”

In the February resolution in Quinto, Chief Justice Puno also delivered a stinging rebuke against Justice Nachura, who penned the 1 December 2009 decision. CJ Puno described Justice Nachura’s rationalizations as being “myopic” and based on “regrettable misrepresentation,” and “completely misplaced” reliance on the March 1973 U.S. Supreme Court decision in Mancuso vs Taft, which was abandoned by that US Court in two subsequent cases also in 1973 (the Letter Carriers and Broadrick cases).

It is true that the Feb. 22, 2010, resolution in Quinto did not order the appointive officials affected to immediately vacate their offices, nor declare that their acts done after the filing of the COCs are deemed to be without effect. But the Court did not have to make such an order or declaration, where the law is self-executory, as in the questioned resign-to-run provisions of the Omnibus Election Code and RA 9369. (Newsbreak)