Nestor C. Lim v. COMELEC et al G.R. No.

129040 November 17, 1997 FACTS: A losing candidate filed an election protest against petitioner. Petitioner filed acounterprotest. The trial court held that the counterprotest was filed out of time. Petitioner argues that the Rules of Court, rather than those of the COMELEC, govern the periods for pleading in election contests cognizable by the Regional Trial Courts. HELD: The COMELEC has the power to prescribe the procedure for election contests filed in the RTCs and MTCs. The timeliness of petitioner's protest must therefore be determined in accordance with the rules of the COMELEC. The provisions of the Rules of Court are suppletory to the provisions of the Election Law. Hence a motion for extension of time to file answer to the election protest should be filed before the expiration of the five-day reglementary period to answer, otherwise a general denial shall be deemed to have been entered against the protestee.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. Nos. 107435-36 December 11, 1992 SAIDAMEN B. PAGARUNGAN, petitioner, vs. COMMISSION ON ELECTIONS and MAHID MUTILAN, respondents.

DAVIDE, JR., J.: In this special civil action for certiorari under Rule 65 of the Rules of Court, in relation to Section 7, Article IX-A of the 1987 Constitution, petitioner would have this Court set aside and annul, for having been issued with grave abuse of discretion or lack of jurisdiction, (a) the 18 September 1992 1 joint Resolution of the First Division of respondent Commission on Election (COMELEC) in SPC No. 92-349, SPC No. 92-378-379, SPC No. 92-387, and SPC NO. 92-391, and (b) the 23 October 1992 2 en banc Resolution of the COMELEC affirming, in SPC No. 92-349 3 and SPC No. 92-387, 4 the abovementioned 18 September 1992 Resolution of the First Division. In the Resolution of 29 October 1992, this Court required the respondents to Comment on the Petition within a non-extendible period of ten (10) days, and issued a temporary restraining order directing the respondent COMELEC to cease and desist from enforcing the questioned resolutions, more particularly the portion thereof which directs the Provincial Board of

Canvassers to reconvene and prepare a new set of certificate of canvass on the basis of the results taken from the COMELEC's copies of the Election Returns for the uncontested 5 Provincial Elective Positions. On 6 November 1992, private respondent filed an Urgent Motion To Lift the Temporary Restraining Order to which, upon order of this Court, the petitioner filed a Comment. On 9 November 1992, respondent COMELEC, through the Office of the Solicitor General, filed its Comment to the petition. Although this Court granted the petitioner's motion to file a Reply to the public respondent's Comment on or before 22 November 1992, none has been filed as of the writing of this Decision. Considering the allegations and issues raised and the arguments adduced by the parties in the petition and the subsequent pleadings indicated above, this Court hereby resolves to consider the private respondent's Urgent Motion To Lift the Temporary Restraining Order as his Comment and Answer, and the Comment of respondent COMELEC as its Answer thereto; and to decide this case on its merits. These facts are not disputed. Petitioner and the private respondent were candidates for the Office of the Provincial Governor of Lanao del Sur in the synchronized elections of 11 May 1992. During the canvassing of the certificates of canvass for provincial offices by the Provincial Board of Canvassers (PBC) of Lanao de Sur, 6 private respondent objected to the inclusion of Certificate of Canvass (COC) No. 667635 of the Municipality of Madamba, Lanao del Sur; petitioner opposed this move. Consequently, both parties submitted their evidence to the PBC. Private respondent relied on the Investigation Report of Atty. Clarita Callar, the joint affidavit of Attys. Abdul Aguam, Marohombsar and Datu Dacula and other affidavits. Petitioner then formally offered documentary exhibits consisting of the Minutes of the PBC proceedings of 6 June 1992, and the joint affidavit, also dated 6 June 1992, of Alexander Dimaporo and Pendatun Panguinaguina members of the Municipal Board of Canvassers (MBC) of Madamba to support his opposition to the objection. 7 On 20 June 1992, the PBC handed down a unanimous ruling 8 the dispositive portion of which reads: The Provincial Board of Canvassers of Lanao del Sur, unanimously decided not to include in the count/canvass the Certificate of Canvass of Madamba said having (sic) been substituted and spurious (sic). This ruling is based primarily on the Investigation Report of Atty. Clarita Callar who was directed by the Chairman of the PBC to investigate the Madamba incident. So far as is relevant to this case, two (2) appeals assailing the said ruling were interposed before the COMELEC. The first is an appeal of the herein petitioner, which was docketed as

SPC No. 92-387, while the second is the appeal of Pala Dipatuan, which was docketed as SPC No. 92-391. Petitioner does not deny the allegation of the private respondent that he (petitioner) enclosed, in his appeal, all his documentary evidence and affidavits of his witnesses and that all the records and evidence submitted to the PBC were elevated to the COMELEC. 9 Instead of assigning SPC No. 92-387 and the related cases to a Division pursuant to pertinent provisions of its Rules, 10 the COMELEC en banc took cognizance thereof and set the case for hearing on 6 August 1992. At the said hearing, the parties, through their respective counsel, upon suggestion of the COMELEC en banc, agreed to submit their respective Position Papers. 11 On 8 August 1992, petitioner's counsel submitted a Consolidated Position Paper in SPC No. 92-349 and SPC No. 92-387 raising the following issues: A. WHETHER OR NOT THE PROCEEDINGS OF THE MBC LEADING TO THE PREPARATION AND SUBMISSION OF COC NO. 667635 AND THE SUPPORTING SOV ARE VALID AND BINDING? B. WHETHER THE PROCEEDINGS OF THE MBC COULD BE LEGALLY SET ASIDE OR ANNULED AFTER IT BECAME FUNCTUS OFFICIO? C. WHETHER PBC IS CLOTHE (sic) WITH AUTHORITY TO EXCLUDE MOTU PROPIO COC NO. 667635 AND THE SUPPORTING SOV? D. WHETHER THE PERSONAL PERCEPTION OR BELIEF OF THE MEMBERS OF THE PBC COULD BE A VALID BASIS FOR THE EXCLUSION MOTU PROPIO OF COC NO. 667635 BY THE PBC? E. WHETHER THE PBC ABUSED ITS DISCRETION IN EXCLUDING COC NO. 667635 AND THE SUPPORTING SOV? F. WHETHER THE COMMISSION EN BANC CAN EXERCISE ORIGINAL JURISDICTION OVER THE APPEALS, BY PASSING (sic) THE COMELEC DIVISIONS IN VIOLATION OF ART. IX (C) SECTION 3 OF THE CONSTITUTION. G. WHETHER THE COMMISSION ACTED PROPERLY IN OPENING AND EXAMINING THE ELECTION RETURNS OF MADAMBA WITHOUT THE PRESENCE OF THE CONCERNED PARTIES? 12 and praying for the following reliefs: WHEREFORE, it is most respectfully prayed of the Honorable Commission En Banc that: 1. The REPORT/RULING ON THE MADAMBA CASE dated June 20, 1992 excluding COC No. 667635 of Madamba from the canvass be set aside, revoked or annuled; 2. The PBC be ordered to reconvene and to include in the canvass COC No. 667635 of Madamba;

3. SPC No. 92-349 filed by petitioners Dimaporo and Mutilan be dismissed for clear lack of merit and legal basis; 4. The (sic) above case be assigned to a DIVISION in conformity with the constitution and the duly promulgated (sic) Rules of Procedure (sic) of the Commission; 5. That if true that the election returns are being inspected privately, absent the parties, that the same be discontinued immediately. 13 Taking heed of Our Resolution of 6 August 1992 in Sarmiento vs. Commission on Elections, et al, (G.R. No. 105628) and companion cases, the COMELEC raffled off SPC No. 92-387; as a result thereof the First Division got the case. It consolidated this case with SPC NO. 92-349, SPC Nos. 92-378/379 and SPC No. 92-391. On 18 September 1992, the First Division promulgated a joint Resolution in these consolidated cases affirming the PBC's ruling which excluded COC No. 667635 of Madamba from the canvass and ordering the PBC to prepare a new set of certificate of canvass based on the COMELEC copies of the Election Returns for the uncontested (later changed to contested) Provincial Elective Positions. With respect to the latter, it made the following observations and conclusions: The above attendant circumstances, tend to establish the fact that the COC and SOV have not been regularly prepared, as such the same could not be made as a sound basis indetermining the true and genuine results of the votes casts (sic) for the municipal and provincial candidates in Madama. In view of the foregoing, the physical examination of the Comelec's copy of the determine its genuineness and authenticity. That such an examination would not be in disregard of the summary nature of a pre-proclamation proceeding nor (sic) the provisions of Sec. 15 of RA 7166 with respect to the Congressional race as the COMELEC has been given ample power "to decide all questions affecting election returns including the verification of the number of votes received by opposing candidates in the election returns as compared to the statement of votes in order that the true will of the people is known." If there is clear evidence of discrepancy between the number of votes for a precinct as compared to the number of votes the candidates actually received during the counting at the precinct, it is the duty of the COMELEC to see to it that the matter should be verified from the election returns as a pre-proclamation controversy. It cannot wash its hands by asking the candidates to bring the matter to the electoral tribunal as an election protest. (Villamoyo vs. Comelec, G.R. No. 79646-67, November 13, 1987). Since the Commission has the power to direct that only genuine election returns and certificates of canvass be considered (Ong vs. Comelec, 22 SCRA 241), in the exercise of its constitutional power, the Commission may look, into the election returns of the Municipality of Madamba, Lanao del Sur. This is the most speedy and inexpensive remedy to settle this controversy. 14 The decretal portion of the Resolution reads:

WHEREFORE, premises considered, this Division hereby RESOLVES the following: 1. AFFIRMS the Proclamation of the wining Mayoralty candidate in the Municipality of Madama, Lanao de Sur; 2. DIRECTS the Provincial Board of Canvassers to reconvene and prepare a new set of certificate of canvass on the basis of the results taken from the COMELEC's copy of the Election Returns for the uncontested Provincial Elective Positions; 3. DIRECTS the Provincial Board to Consolidated the COC of Madamba with all other uncontested COC's and thereafter Proclaim the Winning Candidates as the records warrant. SO ORDERED. 15 The Callar report, as quoted in the Resolution, reads as follows: At about 10:30 p.m. June 5, 1992, Alexander Dimaporo Municipal Treasurer and Pendatun Punginagina, DECS Supervisor, both of Madamba, Lanao del Sur, in the company of 5 military personnels (sic) whom the affiants were able to identify as elements of the 39th IB because of the presence of M/Sgt. Purisima and Sgt. Amatorio whom they personally know to belong to the said IB, entered the gymnasium looking for Sgt. Francisco of the 5th IB on the pretext that their Commanding Officer has an order for him and since, the 5th IB is under the operational control of the 39th IB, the group was able to enter the said gymnasium and once inside, the Municipal Treasurer, Alexander Dimaporo went directly to where the ballot boxes are (sic) piled and forcibly opened one of them destroying the lid in the process which later turned out to be the ballot box with Serial No. CE 9223696 containing the Statement of Votes and Certificate of Canvass of the municipality of Madamba, and then and there in the presence of said military personnels (sic) of the 39th IB said Municipal Treasurer took out the Statement of Votes from the forcibly opened ballot box and handed it to one of his soldier companion (sic) and when some of the watchers present tried to stop him, the soldiers with him got mad and one of then (sic) even hit one of the watchers while the others pointed their guns at the other watchers and party representatives to include (sic) the elements of the 15th IB which action almost ended in a shootout except for the intervention to (sic) the Commanding Officer of the 5th IB as well as of the Platoon leader 2nd Lt. Fernando Canes, who feared a (sic) shootout may result in the hitting of innocent civilians who were inside the gymnasium at that time. But when the group however sensed that the elements of the 5th IB were ready to fight them by deploying themselves the group left hurriedly but only after bringing with them all the contents of the forcibly opened ballot box. The following day, May (June) 6, 1992 at about 9:30 a.m. per affidavit executed by Ibrahim Max Digadong, Nacionalist representative, the above-named Municipal Treasurer and DECS Supervisor returned to the MSU gymnasium bring (sic) with them another ballot box with Serial No. 8903946 whom (sic) they attempted to mix with the other ballot boxes but which the military security placed apart to identify it from those previously received. Looking at the ballot box with Serial No. CE 9223696 previously submitted on June 5, 1992, it is very evident that it was really forcibly opened as shown by the destroyed cover and ballot (sic)

box with Serial No. CE 8903946 was brought to the MSU gymnasium only in the morning of June 6, 1992 which the Receiving Committee refused to receive under proper receipt since ballot (sic) box with Serial No. 9223696 was already submitted for the municipality of Madama. 16 This decision was not unanimous. In his dissent thereto, Commissioner Magdara Dimaampao pointed out that there was a violation of due process when the First Division, contrary to Section 2, Rule 27 of the COMELEC Rules of Procedure which requires summary hearing after due notice, accepted the Report of Atty. Callar without conducting any hearing to afford the petitioner the right or opportunity to confront the latter; Dimaampao further stressed that the election returns should be resorted to only if it is established through a hearing that the COC in question is indeed spurious. On 23 September 1992, petitioner filed under the caption of SPC No. 92-349 and SPC No. 91387 only, a Motion For Reconsideration Ex Abundante Cautela 17 Alleging therein: 1. THAT THE FIRST DIVISION COMMITTED A VERY GRAVE ERROR WHEN IT RELIED SOLELY AND COMPLETELY ON THE "REPORT" OF A CERTAIN ATTY. CALLAR, AND THE SUBSEQUENT "RULING" OF THE PROVINCIAL BOARD OF CANVASSERS OF LANAO DEL SUR, WITHOUT EVEN VERIFYING FOR ITSELF THE WHO, THE HOW, THE WHY AND THE WHEN OF THE NUMEROUS INCIDENTS CONCERNING THE CONTROVERSY OF MADAMBA INVOLVING THE PREPARATION OF THE MUNICIPAL CERTIFICATE OF CANVASS OF MADAMBA, WHICH IT RULED TO BE DIRSREGARDED DESPITE ITS HAVING NO DEFECT WHATSOEVER; 2. THAT THE FIRST DIVISION WAS LIKEWISE IN GRAVE ERROR WHEN IT CASUALLY RESORTED TO THE ALLEGED RESULTS OF THE "COMELEC COPY" OF THE ELECTION RETURNS OF ALL PRECINCTS OF MADAMBA, BY EXAMINING AND INSPECTING ONLY ONE "SELECTED" COPY OF ITS CHOICE AND WITHOUT EVEN NOTIFYING AND ALLOWING THE PARTIES TO PARTICIPATE IN THE OPENING AND EXAMINATION THEREOF, ALL IN CLEAR CONTRAVENTION OF EXISTING JURISPRUDENCE AND IN VIOLATION OF THE EXPRESS PROVISION OF LAW; and 3. THAT THE FIRST DIVISION GRIEVOUSLY ERRED WHEN IT DIRECTED THE PROCLAMATION OF WINNING CANDIDATES, WITHOUT AWAITING THE RESULTS OF OTHER MUNICIPALITIES WHICH ARE STILL PENDING BEFORE THE OTHER COMELEC DIVISION. 18 Pursuant to the Constitution and the COMELEC Rules of Procedure, the motion for reconsideration had to be resolved by the COMELEC en banc. 19 Before the latter could resolve the same, however, the petitioner filed on 21 October 1992 a Motion for the disqualification of Commissioner Haydee B. Yorac on the ground that for the past several weeks, she has been projected to the public as the Chairperson of the National Unification Committee (NUC); she has also presented herself to the public as such, that this public position or office is constitutionally incompatible with her present position as a Commissioner of the COMELEC. Hence, pursuant to Section 2, Article IX-A of the present Constitution which provided, inter alia, that "No member

of a Constitutional Commission shall, during his tenure, hold any other office or employment," she is deemed resigned from her present position. On 23 October 1992, the COMELEC en banc promulgated the challenged Resolution 20 affirming the 18 September 1992 Resolution of the First Division and finding the errors imputed to the latter to be without merit. As to the report of Atty. Callar, the Acting Provincial Election Supervisor of North Cotabato, the COMELEC held that the same was prepared in the performance of official duty, per instruction of COMELEC Regional Director Teresita Llaban, and is therefore presumed to have been performed with regularity. The COMELEC further stated that it "would be so absurd for this Commission to have its field personnel perform their task and at the same time question their actuation." Citing Cauton vs. Comelec, 21 it asserted that if the Commission is convinced that the election returns in the hands of the board of canvassers do not constitute the proper basis in ascertaining the true result of the elections, it is duty bound to take the necessary steps in order that the proper basis for the canvass is made available; it would be absurd to say that the Commission has a legal duty to perform that duty. Thus, when the First Division issued the challenged Resolution, it merely performed its mandated duty under the Constitution to enforce and administer laws and regulations relative to the conduct of elections. As to the First Division's ruling on the matter of the COMELEC copies of the election returns being made the basis for the preparation of a new COC, the COMELEC en banc stated: When the First Division resorted to the Comelec's copy of the Election Returns of Madamba as contained in the ballot box No. CE-92 375697, its object was to determine the result of the elections based on the official election returns. "An order to this effect does not affect the right to vote or the validity of any vote cast, so that it is perfectly within the power of the COMMISSION to issue such an order in the exercise of its exclusive power to administer and enforce the laws relative to the conduct of elections. (Cauton vs. Comelec 19 SCRA 911) To sustain the petitioner-appellant in the present Motion for Reconsideration is to deny this Commission the power to retrieve the Comelec copies of the election returns in order that the true number of votes cast for a candidate may be known and thus permit a canvass on the basis of Certificate of Canvass that are reportedly falsified. Petitioner-Appellant contents that the basic election document provided for by law and the Comelec's own promulgated resolutions in proclaiming the winning candidates for provincial offices is none other than the Municipal Certificate of Canvass, accompanied by the supporting Statement of Votes. He stresses that in the case of Madamba, both the COC and the SOV are clean and untampered in (sic) their faces, thus should not have been excluded. This Commission is well aware of the foregoing rule. Had there been no reported incident of ballot box switching, this Commission would have completed relied on the alleged clean and untampered COC as allegedly reported by the Municipal Board of Madamba. But the mere fact that the same appears to be clean an (sic) untampered is not also proof enough that they are genuine, bearing in mind the report of Atty. Callar which herein petitioner-appellant also failed to prove that it is fabricated and or baseless. Technicalities, which are not conductive to free, orderly and honest elections, but in (sic) the contrary may defeat the will of the sovereign people

as expressed in their votes, should not be allowed to hamper the Commission on Elections in the performance of its duties (Cauton vs. Comelec, 19 SCRA 911). "The choice of means taken by the Commission on Elections, unless they are clearly illegal or constitute grave abuse of discretion, should not be interferred with. (Sumulong vs. Comelec, 73 Phil. 288). Perusal of the resolution of the First Division as to the proclamation of the winning candidates show (sic) that is it not absolute as shown by the phrase "as the records warrant." So much so that if there are still pending cases before the other division (sic) regarding the election of provincial elective positions in Lanao del Sur, then it follows that it cannot proclaim any winning candidates yet for definitely, the records do not warrant the same.22 Petitioner then filed the instant petition raising therein the following issues: (1) the total lack or absence of due process in the proceedings before the COMELEC's First Division when it, inter alia, resolved the appeal from the ruling of the PBC of Lanao del Sur without any semblance of a hearing to assess the factual findings of said PBC and merely on the basis of the report of Atty. Callar who was never interviewed, questioned or interrogated by the COMELEC; rejected and disregarded the clean, clear, authentic, duly signed and executed Municipal Certificate of Canvass for Madamba; and ruled to use and avail of selected copies of the election returns without any notice to and without the presence and participation of the parties; (2) the total disregard by the COMELEC en banc of its own Rules when it resolved the motion for reconsideration without any hearing as mandated by Section 6, Rule 19 of the COMELEC Rules of Procedure; and (3) the participation and vote of Commissioner Yorac who, as petitioner claims, is no longer a member of the Commission. We find no merit in the petition. No violation of due process, amounting to grave abuse of discretion or lack of jurisdiction, was committed by the COMELEC's First Division when it promulgated the Resolution of 18 September 1992 without any hearing, and by the COMELEC en banc when it likewise resolved petitioner's motion for reconsideration without a hearing. Before the subject cases were raffled off to the First Division, the parties, upon the suggestion of the COMELECen banc, agreed to submit the appeals on the basis of their position papers. Petitioner extensively discussed in his position paper the issues raised and the evidence to support the latter's thesis that the COC in question is clean, clear, authentic and duly signed and executed. Thus, the factual issue raised at that point was whether the questioned COC is spurious or not a question which must be resolved on the basis of the evidence adduced by the parties before the PBC pursuant to paragraph (e), Section 9, Rule 27 of the COMELEC Rules of Procedure, which provides: (e) At the hearing, no new evidence shall be received, unless for good reasons shown, it is clearly and convincingly established that the applicant was deprived of due process by the board of canvassers. and paragraph (h), Section 20 of R.A. No. 7166, 23 which provides:

(h) On the basis of the records and evidence elevated to it by the board, the Commission shall decide summarily the appeal within seven (7) days from receipt of said records and evidence. Any appeal brought before the Commission on the ruling of the board, without the accomplished forms and the evidence appended thereto, shall be summarily dismissed. The decision of the Commission shall be executory after the lapse of seven (7) days from receipt thereof by the losing party. The records do not disclose that the petitioner had moved before either the COMELEC en banc or its First Division that he be allowed to present new evidence on the ground that the was deprived of due process by the PBC. In any case, he could not have done that because the PBC had in fact allowed him to present his evidence. That he was not allowed to cross-examine Atty. Callar did not in any way whittle down the validity of the proceedings of the PBC for paragraph (e), Section 8, Rule 27 of the COMELEC Rules of Procedure provides that: (e) Where evidence is to be offered, reception thereof shall be done summarily. Oral testimonies shall be dispensed with and the parties shall be required to present their affidavits or counteraffidavits within twenty-four (24) hours from the presentation of the written objection. The evidence adduced shall form part of the proceedings of the Board. The PBC faithfully complied with the mandate of this provision; moreover, the parties voluntarily and unconditionally observed the same by submitting their evidence which included the affidavits of their respective witnesses. It is precisely for this reason, and his awareness of the legal consequences thereof, that the petitioner carefully avoided characterizing the Callar report as "hearsay". Nowhere in his pleadings are We to find any objections to the Callar report on that ground. Petitioner purposely omitted such argument because he knew only too well that the Callar report is an official act of an officer of the COMELEC made after an investigation conducted in the performance of a lawful official duty. It thus enjoys the presumption of regularity. 24 Besides, by the parties' compliance with the aforesaid paragraph (e), Section 8, Rule 27 of the COMELEC Rules of Procedure, petitioner was estopped from objecting to the admission in evidence of the Callar report, in effect leaving to the PBC and then the First Division of the COMELEC on appeal the determination of the factual issue concerning the validity of the COC in question. More importantly, the Callar report falls under Section 44, Rule 130 of the Rules of Court which provides for an exception to the hearsay rule. 25 The Rules of Court applies suppletorily to proceedings before the COMELEC. 26 By agreeing to submit his position paper for the resolution of the appeal, petitioner effectively agreed to dispense with with the formality of a hearing, the purpose or objective of which was better subserved by the submission of the position papers where the parties could incorporate all that they wanted to place on record; a formal hearing may not adequately achieve such purpose because of the time constraints, the unpreparedness of counsel, the emotions of the moment and the distracting atmosphere. Petitioner, however, tries to mock the solemnity and depreciate the value of this agreement by stating that the proceedings before the COMELEC en banc at the first instance were void because of Section 3, Article IX-C of the Constitution and Our ruling in Sarmiento vs. COMELEC and companion cases. 27 Such reasoning does not impress Us. The binding force of the agreement was not

tainted by the fact that it was made before the COMELEC en banc before such body acquired jurisdiction over the cases. In the first place, petitioner voluntarily submitted his Position Paper in accordance with the agreement he freely entered into. Secondly, he did not question the validity of the agreement in the issues he raised and in the reliefs he prayed for therein. More pertinently, he only asks that the cases "be assigned to a DIVISION in conformity with the constitution and the duly promulgated (sic) Rules of Procedure (sic) of the Commission." 28 This is a clear message of the irreversibility of his adherence to the agreement to submit the appeal for resolution on the basis of the evidence and records elevated by the PBC and the position papers submitted by the parties. In the third place, nowhere in his petition did the petitioner allege that his position paper was deemed withdrawn or at least rendered ineffective by the subsequent assignment of the appeal to the Division. He knew all along that the agreement would be binding until the resolution of the appeal, even if it would, following his view, be thereafter assigned to a Division to set the appeal for hearing. It could have already properly and validly resolved it, as in fact it did, on the basis of the evidence and the records elevated to it by the PBC, 29and the position paper of the parties. The First Division affirmed the PBC's ruling that the questioned COC is spurious, and found for itself that the attendant circumstances in this case "tend to established the fact that the COC and the SOV have not been regularly prepared, as such the same could not be made as a sound basis in determining the true and genuine results of the votes casts (sic) for the municipal and provincial candidates in Madamba." 30 These are findings on a factual issue which this Court accords the highest respect. We have said, through then Chief Justice Concepcion in Lucman vs. Dimaporo, 31 that this Court cannot review rulings or findings of fact of the Commission on Elections as there is no reason to believe that the framers of the Constitution intended to place the Commission, created and explicitly made independent by the Constitution itself, on a lower level than ordinary administrative organs, the findings of which are not even disturbed by courts of justice except when there is absolutely no evidence or no substantial evidence to support the same. These exceptions, just as any other in respect to the rule on conclusiveness of findings of fact of the Court of Appeals, 32 which may equally apply to the findings of fact of the COMELEC, are not present in this case. Having thus made such findings, it was well within the power of the Commission, through the First Division, to determine what must be done to ascertain the elusive "true and genuine results of the votes casts (sic) for provincial and municipal candidates in Madama." The documents which could logically be the basis therefor are any of the other available copies of the COC with the supporting Statement of Votes (SOV), and any other available copy of the election returns from all precincts in Madamba. The COC for President, Vice-President, Senators, Members of the House of Representatives and elective provincial officials are prepared in seven (7) copies to be distributed in the manner provided for in Section 27 of R.A. No. 7166. In the election of returns are prepared in six (6) copies to be distributed in the manner provided for in Section 27(a) of the said law. In every case, the COMELEC is provided with a copy. The COMELEC's judgment on this matter cannot be overturned by this Court unless it is clearly tainted with grave abuse of discretion. The COMELEC's First Division opted to resort directly to its copies of the election returns and ordered the whimsical, capricious or arbitrary. It is

reasonable and impressed with wisdom. Between another copy of the COC and the election returns, the latter could provided a more accurate basis for the determination of the true and genuine results of the votes cast. This is obvious because the former constitutes a mere summary of the latter an errors, deliberate or otherwise, may be committed in entering therein the figures obtained from the election returns. Besides, among the copies of the election returns readily available to the Commission, those intended specifically for it are the least likely to be tampered with after leaving the hands of the board of election inspectors. Thus, the wisdom of using such copies is beyond question. Petitioner, however, insists that the First Division should have complied with Section 235 of the Omnibus Election Code which provides for the use of "the other copies of said election returns and, if necessary, the copy inside the ballot box." In short, he wants that all other copies of the election returns should be considered. This betrays an incorrect interpretation of the section. This quoted portion of the section he stresses clearly shows that even one of the copies that inside the ballot box is sufficient. Indeed, said section does not require that all the other copies of the election returns be taken into account and compared with one another before one of them, determined to be authentic, may be used or included in the canvass. If this is the interpretation to be followed, then the law would have required a condition which could be easily rendered impossible to comply with; in effect, the law would be practically meaningless or useless. As stated earlier, the election returns are to be prepared in six (6) copies. The first copy is the municipal, city or district board of canvassers' copy. If, for one reason or another, any of the remaining five (5) copies could not be obtained by the board, following the interpretation and logic of petitioner, the procedure laid down in Section 235 may no longer be availed of. Report to the COMELEC copies of the election returns of all the precincts of Madamba did not, however, foreclose the right of the petitioner to object, at the appropriate time, to the inclusion in the canvass of the PBC of any of said returns pursuant to the pertinent paragraphs of Section 243 of the Omnibus Election code. Neither did the COMELEC en banc commit any abuse of discretion, much less grave abuse thereof amounting to lack or excess of jurisdiction, when it promulgated its Resolution of 23 October 1992 affirming the Resolution of 18 September 1992 of the first Division. As earlier adverted to, the agreement to submit position papers dispensed with the formal hearing of the motion for reconsideration. As to the disqualification of Commissioner Yorac, the records do not show that the COMELEC, to which the motion for disqualification is addressed, has resolved it. Moreover, the motion itself reveals that neither a copy thereof nor a notice of its hearing was furnished Commissioner Yorac, the party sought to be disqualified. For this alone, the motion is nothing more than a mere scrap of paper. Under the COMELEC Rules of Procedure, notice of a motion shall be served by the movant to all parties concerned at least three (3) days before the hearing thereof, together with a copy of a motion. The notice shall be directed to the parties concerned and shall state the time and place of the hearing of the motion. No motion shall be acted upon by the Commission or a Division without proof of service of notice except when it is satisfied that the rights of the adverse party are not affected. 33 Finally, petitioner did not implead Commissioner Yorac as a respondent in this case. As the respondent in the motion for disqualification, she is

an indispensable party whose personality in that respect is distinct and separate from that of the COMELEC of which she is a Member. Hence, the issue against her cannot be resolved in this case without infringing due process the Constitutional guaranty which petitioner himself insists upon, for his own benefit, from the beginning to the end of his petition. WHEREFORE, for lack of merit, the instant Petition is DISMISSED with costs against petitioner. The Temporary Restraining Order issued on 29 October 1992 is hereby lifted. This Decision is immediately executory. SO ORDERED. Narvasa, C.J., Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, Grio-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo, and Campos, JR., JJ., concur.

Mercado v. Board of Election Supervisors Facts: Jose M. Mercado was proclaimed winner in the 4 December1992 election for chairman of the SK of Barangay Mabalor, Ibaan,Batangas. The proclamation was made by the Board of Election Tellers (BET) acting as the Board of Canvassers, on the basis of itstally which showed Mercado winning by one vote over his rival,private respondent Crisanto P. Pangilinan. Mercado' s victory was,however, short-lived. Immediately after Mercado's proclamation asthe winner by the BET, Pangilinan filed a formal protest questioningthe results of the election. He alleged that the BET Chairman,drinking gin and Coke during the counting, had invalidated somevotes without consulting the other board members. The BESordered .the reopening of the ballot box and the recount of thevotes for SK Chairman. The recount reversed the earlier tally to 51to 49 in favor of Pangilinan, who was thereupon proclaimed theduly elected SK Chairman by the BES, which issued for that purposeits own Certificate of Canvass and Proclamation. Mercado then filedwith the Regional Trial Court (RTC) of Batangas City a petition forcertiorari and mandamus praying for the annulment of Pangilinan'sproclamation by the BES, and for the issuance of an order tocompel the Department of Interior and Local Government (DILG) torecognize him as the duly elected SK Chairman of BarangayMabalor and to allow him to take his oath of office and dischargehis duties as such. In his petition docketed as Civil Case No. 3565,Mercado assailed the jurisdiction of the BES to act on the protestfiled by Pangilinan as the ground cited therein was allegedly in thenature of an election protest properly cognizable by theMetropolitan or Municipal Trial Court in accordance with Section252 of the Omnibus Election Code. He further claimed that,assuming that the BES has jurisdiction over the protest, thegrounds raised therein were deemed waived by Pangilinan's failureto invoke them at the level of the BET, and that the BES acted withgrave abuse of discretion amounting to lack or excess of jurisdiction in denying the petitioner of due process when it orderedthe reopening of the ballot box and the recounting of the voteswithout affording him the opportunity to be heard.In its Order dated 13 January 1993, the RTC dismissed the petitionfor lack of jurisdiction, The trial court stated that it was not

awareof any law by which it could act on the matters raised in Mercado'spetition since Resolution No. 2499 of the COMELEC did not vest inthe RTC jurisdiction over controversies affecting SangguniangKabataan elections; constituting instead the BES, which is underCOMELEC jurisdiction , as the final arbiter of all electioncontroversies within its level. Mercado moved for a reconsiderationof the dismissal order. He argued that the RTC was competent toact on his petition because (a) one mode of seeking judicial review is through the writ of certiorari which may be issued by the RTCunder B.P. Blg. 129;(b) under its Resolutions Nos. 2499 and 2520,the COMELEC was to provide only technical assistance in theconduct of the SK election and therefore could not grant any relief from the action of the BES; moreover, under said Resolution No.2499, no appeal to a higher administrative level wash allowed fromthe action of the BES and (c) the principle of exhaustion of administrative remedies did not apply to the case at bar, the jurisdictional and due process issues raised therein being legal innature. Unconvinced, the RTC, in its Order dated 2 March 1993,denied the motion for reconsideration for lack of merit. It ruled thatthe reopening of the ballot box for Barangay Mabalor and therecounting of the votes cast therein were perfectly within the ambitof the BES's authority, and that Mercado should have gone to theDILG which has direct control and supervision of the SK elections.Issue: WON the BES may take cognizance of Pangilinans protest

SK history: the SK was initially organized by P.D. No. 684 (15April 1975) as the Kabataang Barangay (KB), a youthorganization composed of all barangay residents who wereless than 18 years of age which aims to provide its memberswith the opportunity to express their views and opinions onissues of transcendental importance. Its affairs wereadministered by a barangay youth chairman together withsix barangay youth leaders, who should at least be 15 yearsof age or over but less than 18 The then Secretary of LocalGovernment and Community Development was authorizedto promulgate the implementing rules and regulations.Pursuant to P.D. No. 1191 (1 September 1977), thePambansang Katipunan ng Kabataang Barangay ng Pilipinaswas constituted as "a body corporate" with "the powers andattributes of a corporation" and placed directly under theOffice of the President. Its affairs were to be administeredby the Executive Committee which was empowered topromulgate rules and regulations governing the KB. Thisyouth organization was recognized in B.P. Blg. 337 (TheLGC), 2 which raised the maximum age requirement of themembers from 18 to 21. Under R.A. No. 7160 (The LGC), theKabataang Barangay was changed to the SangguniangKabataan. 3 It remains as a youth organization in everybarangay, composed of a chairman and seven members tobe elected by the katipunan ng kabataan, and the secretary and the treasurer to be appointed by the SK chairman withthe concurrence of the SK. 4 The katipunan ng kabataan iscomposed of all citizens of the Philippines actually residingin the barangay for at least six months who are 15 but notmore than 21 and who are duly registered in the list of theSK or in the official barangay list in the custody of thebarangay secretary. The chairman, upon assumption of office, shall automatically become an ex-officio member of the sangguniang barangay

Under subparagraph (5), paragraph (e) Article 203, RuleXXVII of the Rules and Regulations Implementing the LGC 7the conduct and administration of the elections forsangguniang kabataan members shall be governed by therules promulgated by the COMELEC.Pursuant to suchauthority and for purposes of the SK election authorizedunder Section 532 of R.A. No. 7160, the COMELECpromulgated Resolution No. 2499 which closely followed thepattern set in the Constitution of the Kabataang Barangayproviding for a Board of Election Supervisors and Board of Election Tellers, with the former having direct generalsupervision in the conduct of such election and as the finalarbiter of all election protests. Article V of Resolution No.2499 expressly provides: There shall be created aboard of election supervisors (BES) in every city or municipalitycomposed of the following: a) city/municipal localgovernment operations officer as chairman; b)city/municipal election officer as member; and c)city/municipal secretary as member. The board shall havedirect general supervision in the conduct of elections forsangguniang kabataan in the barangay and shall act as finalarbiter in the resolution of all election protests. No pre-proclamation cases shall be allowed on matters relating tothe election of sangguniang kabataan chairman andmembers.

The petitioner contends that COMELEC Resolution No. 2499is illegal and unconstitutional because it makes the BES thefinal arbiter of election contests involving the SK incontravention of Section 252 of the Omnibus Election Codewhich vests in the proper metropolitan or municipal trialcourt original jurisdiction over such contests and, on a morefundamental ground, in contravention of Section 2, ArticleIX-C of the Constitution which lodges on. such courts exclusive original jurisdiction over contests involvingelective barangay officials.

This contention is without merit for it assumes that the SK election is an election involving elective barangay officialswithin the purview of the aforesaid statutory andconstitutional provisions.

Section 252 of the Omnibus Election Code and that portionof paragraph (2), Section 2, Article IX-C of the Constitutionon the COMELEC's exclusive appellate jurisdiction overcontests involving elective barangay officials refer to theelective barangay officials under the pertinent laws in forceat the time the Omnibus Election Code was enacted andupon the ratification of the Constitution. That law was B.P.Blg. 337, otherwise known as the LGC, and the electivebarangay officials referred to were the punong barangayand the six sangguniang bayan members. 9 They were to beelected by those qualified to exercise the right of suffrage.10 They are also the same officers referred to by theprovisions of the Omnibus Election Code of the Philippineson election of barangay officials. Metropolitan and municipaltrial courts had exclusive original The jurisdiction overcontests relating to their election . The decisions of thesecourts were appealable to the Regional Trial Courts.

The Court recognizes the consequences of the quasi-judicialacts performed by the BES pursuant to Section 24 of COMELEC Resolution No. 2499 under the operative factdoctrine; thus, we hold that the Regional Trial Court iscompetent to review the decision of the BES in electioncontroversies within its level. As correctly stated by thepetitioner, it is a basic principle in administrative law thatthe absence of a provision for the review of anadministrative action does not preclude recourse to thecourts.

It is generally understood that as to administrative agenciesexercising quasi-judicial or legislative power there is anunderlying power in the courts to scrutinize the acts of suchagencies on questions of law and jurisdiction even thoughno right of review is given by statute. The purpose of judicialreview is to keep the administrative agency within its jurisdiction and protect substantial rights of parties affectedby its decisions. it is part of the system of checks and balances which restricts the separation of powers andforestalls arbitrary and unjust adjudications

EN BANC [G.R. No. 134340. November 25, 1999] LININDING PANGANDAMAN, petitioner, vs. COMMISSION ON ELECTIONS, PROVINCIAL BOARD OF CANVASSERS OF LANAO DEL SUR, MAHED MUTILAN, ALEEM, AMERRODIN SARANGANI and NARRA ABDUL JABBAR JIALIL, respondents. DECISION YNARES_SANTIAGO, J.: Recently, this Court emphatically stated that [U]pholding the sovereignty of the people is what democracy is all about. When the sovereignty of the people expressed thru the ballot is at stake, it is not enough for this Court to make a statement but it should do everything to have that sovereignty obeyed by all. Well done is always better than well said.[1] Corollarily, laws and statutes governing election contests especially the appreciation of ballots must be liberally construed to the end that the will of the electorate in the choice of public officials may not be defeated by technical infirmities.[2] These standards will be the legal matrix within which this controversy will be adjudged. Challenged in this petition for certiorari and prohibition with prayer for temporary restraining order and preliminary injunction is the Omnibus Order of the Commission on Elections (COMELEC) en banc dated July 14, 1998,[3] the dispositive portion of which reads as follows: WHEREFORE, premises considered, special elections for the municipalities, namely

Butig Kapatagan Maguing Masiu Lumbabayabao

Lumbayabague Sultan Dumalondong Sultan Gumander Marawi City

shall be held on 18 July 1998. Special elections shall also be held on July 25, 1998 for the municipalities of Ganassi Malabang Marantao Lumbatan Pagayawan Tubaran

There shall be machine counting and consolidation of votes for all municipalities except Maguing and those precincts where ballots for manual count will be used. The Education and Information Department, the Acting PES of Lanao del Sur and the Election Officers in these municipalities are hereby directed to cause the immediate publication of this Omnibus Order in their respective municipality (sic). Schedule for special elections in the municipalities of Madalum and Tugaya is temporarily withheld pending unresolved issues before the Commission. Let the Executive Director for Operation[s] of the Commission execute this order with dispatch. SO ORDERED. The COMELECs challenged Omnibus Order summarizes the relevant facts of the controversy thus: The instant cases were filed by petitioners praying that the Commission declare [a] failure of elections in their respective municipalities and to hold special elections thereafter. The petitions were reinforced by reports received by the Commission from its field officers and deputies. A pre-trial for all cases in Lanao del Sur involving failure of elections was set and parties, their counsels, and the election officers of concerned municipalities appeared. During the pre-trial of the above cases, it was shown and admitted by the parties that total failure of election[s] took place in the following municipalities: 1. Butig 2. Kapatagan 7. Maguing 8. Masiu

3. Lumbatan 4. Lumba Bayabao 5. Lumbayanague 6. Madalum

9. Sultan Dumalondong 10. Sultan Gumander 11. Tubaran 12. Tugaya

No precinct in the above towns was able to function on election day. It was also shown and admitted by the parties that in the following municipalities, partial failure of election[s] took place as follows: 1. Ganassi 2. Malabang 3. Marantao 4. Pagayawan 5. Marawi City
TOTAL FAILURE OF ELECTIONS

It was found that the cause of failure of election[s] in the twelve municipalities where there was total failure of election[s] as follows : 1. BUTIG armed confrontation of opposing political groups and vehement disagreement on the clustering of precincts. + Acting election officer reported that all election paraphernalia are available except for 200 ballots for precinct 5A. 2. KAPATAGAN allegedly, Camad Benito, husband of mayoralty candidate Bailo Benito, terrorized the Acting Municipal Treasurer Okuo Macaumbas thus preventing the distribution of ballots and other election paraphernalia to the members of the Board of Election Inspectors (BEIs for brevity). Similarly, there were only twenty two (22) public school teachers who were available as BEIs and eighteen (18) of them were disqualified to act due to relationship to candidates within the prohibited degree. In Election Case No. 571, the Municipal Circuit Trial Court of Kapatagan, Lanao del Sur issued an order dated April 30, 1998 ordering the Election Officer of Kapatagan, Lanao del Sur to delete, erase, and cancel all Voters Registration Records with serial numbers 3676001 to 3676500 after finding that said VRRs were received only on December 15, 1998 by EA Camal Calandada from Atty. Muslemin Tahir. And yet, said VRRs appeared to be filled up, used and dated 14 December 1997. A copy of said order was received on 10 May 1998 by the Election Officer. The court having found by implication that said VRRs were irregularly/unlawfully issued, and its order having become final, this Commission in compliance with said court order hereby

orders the Election Officer of Kapatagan to delete from the records said VRRs with serial nos. from 36767001 to 3676500. Pursuant to said order, the Law Department is directed to conduct a joint investigation administrative and preliminary investigation for election offenses against Camal Calandada and Muslemin Tahir to determine their criminal and administrative liability and to submit to the Commission its findings and recommendation within sixty (60) days from receipt of this Order. The PNP, thru the Criminal Investigation Group in Region XII is similarly directed to initiate an investigation on the conduct of Camad Benito in contributing to the failure of election[s] in Kapatagan. + All election paraphernalia are available. 3. LUMBATAN all the members of the different Board of Inspectors are disqualified to act as such by reason of relationship either by consanguinity or affinity, within the prohibited degree. + All election paraphernalia for 39 precincts are intact and available. 4. LUMBABAYABAO candidates could not agree on the venue of the distribution of the election supplies and there was vehement disagreement on the clustering of precincts. + All election paraphernalia for fifty nine (59) precincts are available. 5. LUMBAYANAGUE there was non-completion of the composition of the BEIs in all precincts because almost all appointed members of [the] BEI are disqualified by reason of relationship either by affinity or consanguinity, within the prohibitive degree. + All election paraphernalia for the 35 precincts are available. 6 MADALUM the twenty (20) appointed teachers to act as members of the different BEIs did not arrive on election day. The issue on the existence of alleged ghost barangays/precincts is not yet resolved by the Commission considering that the alleged ghost precincts are being investigated and an ocular inspection is being made by an investigating team. The issue being factual and the findings determinative of a clean, honest and credible elections, it is the desire of the Commission that the issue on ghost precincts be resolved first before a special election in Madalum shall be scheduled. + All election paraphernalia are available. 7. MAGUING no members of the different Boards of Election Inspectors arrived in all precincts. + There is a need to print new ballots for all forty-nine (49) precincts and other election forms due to the inadvertent non inclusion of a candidates name in the original ballots.

8. MASIU the Municipal Treasurer did not get the election paraphernalia from the Provincial Treasurer. Neither could the Municipal Treasurer be located on election day. Hence, there was nothing to distribute to the BEIs on election day. Similarly, the Acting Election Officer, EA Cayansalam Benaning, on her admission during the pre-trial hearing on June 25, 1998, arrived only at 7:00 A.M. of election day thus preventing the distribution of election paraphernalia from her office. Some parties claim in fact that she was only seen at noontime of election day while she was in the house of the incumbent mayor of Masiu. + All election paraphernalia for eighty (80) precincts are available. 9. SULTAN DUMALONDONG Municipal Treasurer did not appear on May 10 & 11, 1998 at the office of the Provincial Treasurer to receive the ballots and other election paraphernalia for distribution to the BEIs so there was no election supplies for distribution on election day. + All election paraphernalia for 16 precincts are available. 10. SULTAN GUMANDER no BEIs appeared on election day because most of them are disqualified by law to act as such; the remaining 12 who are not disqualified also did not appear; there was also disagreement on the venue of distribution of election supplies. + All election paraphernalia for 51 precincts are available. 11. TUBARAN non-appearance of all the members of the different BEIs due to intense rivalry among the opposing candidates. + All election supplies are intact and available. 12. TUGAYA widespread terrorism causing intimidation of the electorate to cast their vote. The order of inclusion by the Municipal Court of Tugaya, covering 4,075 voters, will be the subject of a petition to declare its nullity to be filed by the Law Department of the Commission before the Regional Trial Court in Marawi City. It is the desire of the Commission to put to rest the issue on the controversy surrounding the 4,075 voters to allow honest election in this municipality. After the controversy is put to rest, then the special election shall be scheduled. PARTIAL FAILURE OF ELECTION In the following municipalities and City of Marawi, there was partial failure of election in the specified precincts due to the following reasons: 1. GANASSI members of the BEIs for nine precincts as herein below enumerated did not appear thus election supplies were not distributed on election day for the following precincts: Barangay Name 1. Poblacion Precinct No. 1A2 1A3/1A4 2. Baya 8A

3. Linuk

14A 14A1 14A2

4. Macaguiling

18A 18A1 18A2

There was also failure of election in precinct 1A1 and 17A1 due to ballot box snatching. The ballot box containing official ballots and other election paraphernalia for precinct 17A1, Brgy. Macabao whose polling place was at Ganassi Central Elementary School was snatched allegedly by the incumbent mayor of Ganassi, Maning Diangka and his armed escorts. In precinct 2A in Brgy. Bagoingud, failure of election is declared and special election shall be held considering that the ballot box, official ballots and other election paraphernalia were illegally brought to a private dwelling in said barangay and voting irregularly took place therein despite the fact that the designated polling place was Gadungan Elementary School at Gadungan. This could not take place unless the BEIs assigned in Precinct 2A cooperated in these acts. The acts complained of against Ex-Mayor Maning Diangka shall be referred to the Provincial Prosecutor of Lanao del Sur for possible prosecution. Similarly, the Election Officer of Ganassi is directed to inform the Commission of the identity of the BEIs for precinct 2A for possible prosecution. Considering the charge of Maimona Diangka in SPA 98-404 that Baguio Macapodi, candidate for Vice Mayor of the Ompia Party and his cohort Bai Sa Ganassi terrorized registered voters in Precincts 32, 32A, 32A1, and 32A2 in Barangay Taliogan, Ganassi and that they were allegedly aided by the Barangay Chairman therein, said acts shall be referred immediately to the office of the Provincial Prosecutor of Lanao del Sur for investigation. During the special election, the members of the Municipal Board of Canvassers of Ganassi are hereby directed to suspend the proclamation of Baguio Macapodi for vice mayor, if winning, until further orders from this Commission. + All election paraphernalia for the nine (9) precincts where there was non-appearance of BEIs are available. The Commission shall cause the printing of ballots and other election forms for precincts 1A1 (Poblacion), 17A1 (Brgy. Macabao), and 2A (Brgy. Bagoingud) for use in the special election since the snatched ballot box were not recovered. 2. MALABANG twenty three (23) precincts failed to function due to shooting incidents. Ballot boxes containing election paraphernalia for five precincts out of these 23 precincts were snatched and never recovered. The following are the precincts that failed to function on election day or whose ballot boxes were snatched:

Barangay Name 1. Banday 2. Betayan 3. BPS Billage 4. Bunkhouse 5. Calumbog 6. Campo Muslim < 7. Chinatown 8. - do <

Precinct No. 4A2 5A/5A1 7A2/7A3 8A1 11A/11A1 12A2 13A 13A4 14A 15A 15A1 < < 26A 29A 29A1 29A2 33A 33A1 < 34A 36A 36A1/36A2 37A2 37A5 37A6

9. Curahab 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. Diamaru - do Matampay Pasir - do - do Sumbagarogong - do Tacub Tiongcop - do Tubok - do - do -

< ballot box snatched

+ All election paraphernalia for eighteen precincts are intact and available. The Commission will cause the printing of 1,000 ballots and other election forms for five precincts (8A1, 12A2, 26A, 34A). 3. MARANTAO thirty-five (35) precincts failed to function due to terrorism in the area. Out of these 35, eight (8) precincts lost to armed groups their ballot boxes, ballots and other election paraphernalia. These eight are: Name of Barangay 1. Daana Ingud Proper 2. - do 7A 7A1 22A/22A-1 29A 29A-2 34A-2 Precinct No. 3A 3A1/3A2

3. Tuca Kialdan 4. - do -

5. Banga Pantar 6. Inudaran Campong 7. - do -

8. Mapantao Goo

Ballots are to be printed for these precincts by the Commission. Canvassing forms and other paraphernalia shall also be provided. In Precincts No. 12A, 24A and 24A-1, ballots were cast but were not yet counted due to complaints that their integrity had been violated. There being no proof that the integrity of the ballots had been violated in these precincts, the members of the Municipal Board of Canvassers of Marantao are directed to include the same in the canvass. 4. PAGAYAWAN casting of votes was aborted due to widespread terrorism. Fifteen (15) precincts failed to function. + All election paraphernalia are available. However, in precinct 5A/5A1, some commotion took place. Eleven voters out of two hundred and sixty-eight (268) have already cast their votes at the time but only one ballot was found inside the ballot box after the commotion. The Commission deems it proper that the casting of votes by the eleven voters be annulled and a special election shall be conducted therein. 5. Marawi City there was partial failure of election in sixteen precincts (16), namely -Name of Barangay 1. Brgy. Banggolo 2. - do 42A-4 Precinct No. 6A2 6A3

3. Brgy. Lilod Madaya

4. Brgy. South Madaya 5. Brgy. Sangkai Dansalan 6. Brgy. Raya Madaya I 7. Brgy. Bacolod Chico 8. - do 9. - do 10. 11. 12. 13. 14. 15. 16. Brgy. Raya Saduc Brgy. Guimba - do Brgy. Lolod Saduc Brgy. Bangco Brgy. Timbangalan - do -

85A 83A-3 74A-6 3A 3A-1 3A-2 76A 38A 38A-1/38A-2 73A-5 5A-5A-1 88A 88A-1/88A-2

due to non-appearance of the BEIs. All election paraphernalia are in order and available except for one ballot box intended for Precinct 5A/5A-1 in Brgy. Banco which is missing or undelivered or without ballots contained therein. The petition for declaration of failure of election in the municipality of Calanogas, Lanao del Sur will be covered by a different resolution. To avoid the risk of another failure of elections and to encourage public trust in the process and results of the special elections, the following changes shall be undertaken: a. Only elements of the Armed Forces of the Philippines and the Philippine National Police who are assigned to the affected areas shall serve as members of the Board of Election Inspectors (BEIs). The Acting Provincial Election Supervisor (PES) of Lanao del Sur, Atty. Suharto Ambolodto, shall ensure that said BEIs are given adequate briefing for this task; Considering that under-aged persons succeeded in registering voters, a complaint that is common in many areas in Lanao del Sur, the BEIs are given explicit authority to prevent from voting all those registered voters who are visibly under-aged and shall reflect their names and VRR numbers in the Minutes of Voting for future prosecution. For this purpose, all poll watchers are encouraged to provide themselves with camera and provide indubitable proof of under-aged voters.

b. Election officers from areas outside of Lanao del Sur shall be tapped to act as Election Officers, while the regular election officers in Lanao del Sur shall perform such duties as directed by the Acting PES; c. The special election in the municipality of Madalum shall be scheduled only after the Investigating Team aforementioned has finished its investigation of alleged ghost precincts therein and the Commission has acted on their findings of facts and recommendation(s); d. The special election in the municipality of Tugaya shall be scheduled after the controversy on the four thousand and seventy-five (4,075) voters shall have been settled; e. Considering the complaints received by the Commission against certain actuations of the Provincial Board of Canvassers, the same shall be replaced with a new Provincial Board of Canvassers whose members shall be designated by the Commission; f. The PNP, thru the Criminal Investigation Group in Region XII and the Prosecution Offices in Lanao del Sur shall actively help in the filing of criminal complaint for election offenses committed during the election period. Petitioner asserts that the COMELEC acted with grave abuse of discretion amounting to lack of jurisdiction in issuing the assailed Omnibus Order 1.] By insisting on holding special elections on July 18 and 25, 1998 more than thirty (30) days after the failure to elect, in certain municipalities, in contravention of the clear and explicit provisions of Section 6 of the Omnibus Election Code; 2.] By failing to declare a total failure of elections in the entire province of Lanao del Sur and to certify the same to the President of the Philippines and Congress so that the necessary legislation may be enacted for the holding of a special election; 3.] By ordering only elements of the Armed Forces of the Philippines and the Philippine National Police who are not assigned to the affected areas as members of the Board of Election Inspectors, in contravention of Sections 166, 170, 175 and 176 of the Omnibus Election Code; 4.] By insisting on machine counting despite the proven unreliability and undependability of the counting of votes with use of computer machines. In support of his cause, petitioner insists on a strict compliance with the holding of special elections not later than thirty (30) days after failure to elect pursuant to Section 6 of the Omnibus Election Code which provides that: SEC. 6. Failure of elections. If, on account of force majeure, violence, terrorism, fraud or other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding

or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect. Petitioner argues that the above-quoted provision is mandatory because of the word shall. He further asserts that the prescribed time frame actually delimits COMELECs authority to call for a special election and that instead, the power to call for a special election after the 30th day now resides in Congress. The provision invoked can not be construed in the manner as argued by petitioner for it would defeat the purpose and spirit for which the law was enacted. It is a basic precept in statutory construction that a statute should be interpreted in harmony with the Constitution and that the spirit, rather than the letter of the law determines its construction; for that reason, a statute must be read according to its spirit and intent.[4] Thus, a too literal interpretation of the law that would lead to absurdity prompted this Court to [a]dmonish against a tooliteral reading of the law as this is apt to constrict rather than fulfill its purpose and defeat the intention of its authors. That intention is usually found not in the letter that killeth but in the spirit that vivifieth xxx[5] Section 2 (1) of Article IX (C) of the Constitution gives the COMELEC the broad power to enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall. There can hardly be any doubt that the text and intent of this constitutional provision is to give COMELEC all the necessary and incidental powers for it to achieve the objective of holding free, orderly, honest, peaceful and credible elections. Pursuant to this intent, this Court has been liberal in defining the parameters of the COMELECs powers in conducting elections. As stated in the old but nevertheless still very much applicable case of Sumulong v. COMELEC:[6] Politics is a practical matter, and political questions must be dealt with realistically not from the standpoint of pure theory. The Commission on Elections, because of its fact-finding facilities, its contacts with political strategists, and its knowledge derived from actual experience in dealing with political controversies, is in a peculiarly advantageous position to decide complex political questions xxx. There are no ready made formulas for solving public problems. Time and experience are necessary to evolve patterns that will serve the ends of good government. In the matter of the administration of laws relative to the conduct of election xxx we must not by any excessive zeal take away from the Commission on Elections that initiative which by constitutional and legal mandates properly belongs to it. More pointedly, this Court recently stated in Tupay Loong v. COMELEC, et al.,[7] that [O]ur elections are not conducted under laboratory conditions. In running for public offices, candidates do not follow the rules of Emily Post. Too often, COMELEC has to make snap judgments to meet unforeseen circumstances that threaten to subvert the will of our voters. In the process, the actions of COMELEC may not be impeccable, indeed, may even be

debatable. We cannot, however, engage in a swivel chair criticism of these actions often taken under very difficult circumstances. The purpose of the governing statutes on the conduct of elections [i]s to protect the integrity of elections to suppress all evils that may violate its purity and defeat the will of the voters. The purity of the elections is one of the most fundamental requisites of popular government. The Commission on Elections, by constitutional mandate, must do everything in its power to secure a fair and honest canvass of the votes cast in the elections. In the performance of its duties, the Commission must be given a considerable latitude in adopting means and methods that will insure the accomplishment of the great objective for which it was created to promote free, orderly, and honest elections. The choice of means taken by the Commission on Elections, unless they are clearly illegal or constitute grave abuse of discretion, should not be interfered with.[8] Guided by the above-quoted pronouncement, the legal compass from which the COMELEC should take its bearings in acting upon election controversies is the principle that clean elections control the appropriateness of the remedy.[9] In fixing the date for special elections the COMELEC should see to it that: 1.] it should not be later than thirty (30) days after the cessation of the cause of the postponement or suspension of the election or the failure to elect; and, 2.] it should be reasonably close to the date of the election not held, suspended or which resulted in the failure to elect. The first involves a question of fact. The second must be determined in the light of the peculiar circumstances of a case.[10] Thus, the holding of elections within the next few months from the cessation of the cause of the postponement, suspension or failure to elect may still be considered reasonably close to the date of the election not held.[11] In this case, the COMELEC can hardly be faulted for tardiness. The dates set for the special elections were actually the nearest dates from the time total/partial failure of elections was determined, which date fell on July 14, 1998, the date of promulgation of the challenged Omnibus Order. Needless to state, July 18 and 25, the dates chosen by the COMELEC for the holding of special elections were only a few days away from the time a total/partial failure of elections was declared and, thus, these were dates reasonably close thereto, given the prevailing facts herein. Furthermore, it bears stressing that in the exercise of the plenitude of its powers to protect the integrity of elections, the COMELEC should not and must not be straitjacketed by procedural rules in the exercise of its discretion to resolve election disputes.[12] Petitioners argument that respondent COMELEC gravely abused its discretion by failing to declare a total failure of elections in the entire province of Lanao del Sur and to certify the same to the President and Congress so that the necessary legislation may be enacted for the holding of a special election, likewise fails to persuade. No less than petitioner himself concedes that there was total failure of elections in twelve (12) municipalities and partial failure in eleven (11). Yet he now insists a total failure of elections should have been declared in the entire province of Lanao del Sur. Suffice it to state that the

propriety of declaring whether or not there has been a total failure of elections in the entire province of Lanao del Sur is a factual issue which this Court will not delve into considering that the COMELEC, through its deputized officials in the field, is in the best position to assess the actual conditions prevailing in that area. Absent any showing of grave abuse of discretion, the findings of fact of the COMELEC or any administrative agency exercising particular expertise in its field of endeavor, are binding on the Court.[13] There is no cogent reason to depart from the general rule in this case. The insistence of petitioner that the COMELEC violated Sections 166, 170, 175 and 176 of the Omnibus Election Code when it ordered elements of the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP) who are not assigned to the affected areas as members of the Board of Election Inspectors (BEIs) is likewise unconvincing vis--vis the underlying reason of the public respondent to have an effective and impartial military presence to avoid the risk of another failure of elections. So too must fall the argument that machine counting being allegedly undependable and unreliable should not be resorted to as the reasoning of petitioner, by itself, invokes the answer. If the COMELEC saw it fit to order a machine counting of votes in the municipalities enumerated, it could only mean that the decree of R.A. No. 8436 could be implemented without the interference of the claimed unreliability, inaccuracy and undependability of the computer sets. The absence of any satisfactory proof to support petitioners allegations to the contrary reduces them to mere self-serving claims. Be that as it may, we agree with the Solicitor General that the petition has been rendered moot by supervening events. For one, it seeks to enjoin the holding of special elections scheduled for July 18 and 25, 1998. However, petitioner himself admits that special elections were conducted on a staggered basis on July 4, 18 and 25, 1998.[14] For another, the petition questions the membership of the Board of Election Inspectors for being composed of elements of the Armed Forces of the Philippines and the Philippine National Police as well as the machine counting of the votes when these events have been superseded by the recent issuance of the Certificates Of Canvass Of Votes And Proclamation Of The Winning Candidates For Provincial Offices dated August 7, 1998.[15] In face of these supervening events, the arguments proffered by the petitioner to seek the annulment of the challenged Omnibus Order rings hollow. Verily At balance, the question really boils down to a choice of philosophy and perception of how to interpret and apply laws relating to elections; literal or liberal; the letter or the spirit; the naked provision or its ultimate purpose; legal syllogism or substantial justice; in isolation or in the context of social conditions; harshly against or gently in favor of the voters obvious choice. In applying election laws, it would be far better to err in favor of popular sovereignty than to be right in complex but little understood legalisms.[16] Indeed, to embark upon the costly electoral exercise insisted upon by petitioner in terms of time and taxpayers money is an unwarranted imposition on the people of the affected areas and is an unacceptable option to the judicial conscience. WHEREFORE, in view of all the foregoing, the petition is DISMISSED for lack of merit.

SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,Quisumbing Purisima, Buena, Gonzaga-Reyes, and De Leon, Jr., JJ., concur. Panganiban, J., in the result. Pardo, J., no part.

Montejo v Comelec FACTS: Petitioner Cirilo Montejo, representing the First District of Leyte, pleads the annulment of Section 1 of Resolution No. 2736 of the COMELEC, redistricting certain municipalities in Leyte as it is said to violate the principle of equity of representation. Petitioner now seeks to transfer the municipality of Tolosa from the First District to the Second District of the province. For an overview of the distribution in the province, see the below table for the population distribution, census 1990 and 1994: Census 1990 First District Second District Third District Fourth District Fifth District ISSUES: Whether COMELEC has the jurisdiction to promulgate Resolution No. 2736 HELD/RULING: The basic powers of COMELEC are spelled out in Section 2(c), Article IX of the Constitution, which states: Sec. 2. The Commission on Elections is hereby empowered to make minor adjustments of the reapportionment herein made. 303, 349 272, 167 214, 499 269, 347 309, 148 Census 1994 178, 688 156, 462 125, 763 155, 995 181, 242

The meaning of minor adjustments is found in the debates of the Commission wherein it was stated that the transfer of one municipality in a district to another district is not a minor adjustment; rather it is a substantive one. Minor adjustments does not allow the change in allocations per district. It is then held that COMELEC committed grave abuse of discretion amounting to lack of jurisdiction when it promulgated Section 1 of its Resolution No. 2736. Section 1 is then annulled and set aside. The petition praying for the transfer of the municipality of Tolosa from the First District to the Second District of the province of Leyte is denied.