Purchase of Land During the Election Ban

The Omnibus Election Code prohibits the construction of public works and the issuance of treasury warrants during a period of 45 days prior to a regular election and 30 days prior to a special election. Section 261 (w) reads:

(w) Prohibition against construction of public works, delivery of materials for public works and issuance of treasury warrants and similar devices.- During the period of forty five days preceding a regular election and thirty days before a special election, any person who: (a) undertakes the construction of any public works, except for projects or works exempted in the preceding paragraph; or (b) issues, uses or avails of treasury warrants or any device undertaking future delivery of money, goods or other things of value chargeable against public funds.

In Robert P. Guzman vs. Commission on Elections, Mayor Randolph S. Ting and Salvacion Garcia, G.R. No. 182380, August 28, 2009, the issue that arose is whether the purchase by the city mayor of land for use as a public cemetery and the issuance of a treasury warrant as  payment for the land violate the Omnibus Election Code.

On March 31, 2004, the Sangguniang Panlungsod of Tuguegarao City passed Resolution No. 048-2004 to authorize City Mayor Ting to acquire two parcels of land for use as a public cemetery of the City. Pursuant to the resolution, City Mayor Ting purchased the two parcels of land.  As payment, City Treasurer Garcia issued and released Treasury Warrant No. 0001534514 dated April 20, 2004 in the sum of P8,486,027.00. On May 5, 2004, the City Government of Tuguegarao caused the registration of the sale and the issuance of new certificates in its name.

Based on the transaction, the petitioner filed a complaint in the Office of the Provincial Election Supervisor of Cagayan Province against City Mayor Ting and City Treasurer Garcia, charging them with a violation of Section 261, paragraphs (v) and (w), of the Omnibus Election Code, for having undertaken to construct a public cemetery and for having released, disbursed and expended public funds within 45 days prior to the May 9, 2004 election, in disregard of the prohibitions under said provisions due to the election ban period having commenced on March 26, 2004 and ended on May 9, 2004.

After investigation, the Acting Provincial Election Supervisor of Cagayan recommended the dismissal of the complaint.

The COMELEC en banc adopted the foregoing recommendation in its own resolution dated February 18, 2008 issued in E.O. Case No. 06-14 and dismissed the complaint for lack of merit, holding that the acquisition of the two parcels of land for a public cemetery was not considered as within the term public works; and that, consequently, the issuance of Treasury Warrant No. 0001534514 was not for public works and was thus in violation of Section 261 (w) of the Omnibus Election Code.

The Supreme Court ruled that the purchase of the lots for use as a public cemetery does not constitute construction of a public work within the context of the prohibition under the Omnibus Election Code. According to the Supreme Court:

We first construe the term public works − which the Omnibus Election Code does not define − with the aid of extrinsic sources.

The Local Government Code of 1991 considers public works to be the fixed infrastructures and facilities owned and operated by the government for public use and enjoyment. According to the Code, cities have the responsibility of providing infrastructure facilities intended primarily to service the needs of their residents and funded out of city funds, such as, among others, roads and bridges; school buildings and other facilities for public elementary and secondary schools; and clinics, health centers and other health facilities necessary to carry out health services.

Likewise, the Department of Public Works and Highways (DPWH), the engineering and construction arm of the government, associates public works with fixed infrastructures for the public.  . .

The enumeration in Sec. 1, supra − “infrastructure facilities, especially national highways, flood control and water resources development systems, and other public works in accordance with national development objectives” − means that only the fixed public infrastructures for use of the public are regarded as public works. This construction conforms to the rule of ejusdem generis . . .

Accordingly, absent an indication of any contrary legislative intention, the term public works as used in Section 261 (v) of the Omnibus Election Code is properly construed to refer to any building or structure on land or to structures (such as roads or dams) built by the Government for public use and paid for by public funds. Public works are clearly works, whether of construction or adaptation undertaken and carried out by the national, state, or municipal authorities, designed to subserve some purpose of public necessity, use or convenience, such as public buildings, roads, aqueducts, parks, etc.; or, in other words, all fixed works constructed for public use.

It becomes inevitable to conclude, therefore, that the petitioner’s insistence − that the acquisition of Lots 5860 and 5881 for use as a public cemetery be considered a disbursement of the public funds for public works in violation of Section 261(v) of the Omnibus Election Code − was unfounded and unwarranted.

However, the Supreme Court ruled that the issuance of the treasury warrant violated the Omnibus Election Code:

The OSG posits that [Section 261(w)] is violated in either of two ways: (a) by any person who, within 45 days preceding a regular election and 30 days before a special election, undertakes the construction of any public works except those enumerated in the preceding paragraph; or (b) by any person who issues, uses or avails of treasury warrants or any device undertaking future delivery of money, goods or other things of value chargeable against public funds within 45 days preceding a regular election and 30 days before a special election.

We concur with the OSG’s position.

Section 261 (w) covers not only one act but two, i.e., the act under subparagraph (a) above and that under subparagraph (b) above. For purposes of the prohibition, the acts are separate and distinct, considering that Section 261(w) uses the disjunctive or to separate subparagraphs (a) and (b). In legal hermeneutics, or is a disjunctive that expresses an alternative or gives a choice of one among two or more things. The word signifies disassociation and independence of one thing from another thing in an enumeration. It should be construed, as a rule, in the sense that it ordinarily implies as a disjunctive word. According to Black, too, the word and can never be read as or, or vice versa, in criminal and penal statutes, where the rule of strict construction prevails. Consequently, whether or not the treasury warrant in question was intended for public works was even of no moment in determining if the legal provision was violated.

There was a probable cause to believe that Section 261(w), subparagraph (b), of the Omnibus Election Code was violated when City Mayor Ting and City Treasurer Garcia issued Treasury Warrant No. 0001534514 during the election ban period. For this reason, our conclusion that the COMELEC en banc gravely abused its discretion in dismissing E.O. Case No. 06-14 for lack of merit is inevitable and irrefragable.

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