JAINAL v COMELEC (2007)

FACTS:
- Petitioner Mayor Salip Aloy Jainal and private respondent Julhatab J. Talib (Talib) were duly
certified candidates for Mayor of Indanan, Sulu in the 10 May 2004 elections.
-During the canvassing, Talib objected to the inclusion of certain returns before the Municipal
Board of Canvassers (MBC).
-Talib claimed that his official watchers were asked to leave the precincts before the counting
and the preparation of the election returns. Furthermore, the election returns for these
precincts did not bear the signatures of the members of the Board of Election Inspectors (BEI)
and his official watchers, a fact which indicates that said election returns were manufactured.
Talib also noted that the number of votes cast exceeded the number of voters in Precinct Nos.
33A and 34A.
-Jainal, in his memorandum, prayed for the dismissal of the Talib petition, contending that the
latters allegations were the proper subject of an election protest in the proper trial court.
-The COMELEC (2nd Division) issued a Resolution, granting the petition in part, annulling the
election returns from nine precincts. The proclamation of respondent Salip Aloy Jainal was
likewise annulled.
-Petitioner filed a Motion for Reconsideration of the COMELECs Resolution.
The COMELEC en banc denied reconsideration but modified the resolution of its 2nd Division
by declaring the election return pertaining to Precinct 9A of Barangay Adjid as valid. Hence,
petitioner filed the instant petition.
-Petitiner likewise filed Extreme Urgent Ex-Parte Manifestation before the COMELEC EN
BANC praying for an order suspending the implementation and execution of the 22 March
2005 and 18 September 2006 COMELEC resolutions.
- On 5 October 2006, the COMELEC granted the Extreme Urgent Ex-Parte Manifestation of
Jainal and ordered Hussi Ahajan (Vice Mayor) to cease and desist from assuming the position
of Acting Mayor.

including Hussi Ahajan (Ahajan) as private respondent in his capacity as Vice-Mayor who,
under the provisions of the Local Government Code, will fill up the vacancy created by the
annulment of petitioners proclamation.
Ahajan questions the validity of the 5 October 2006 Order of the COMELEC which directed
him, as Vice-Mayor, or any ranking councilor to cease and desist from assuming the position
of Acting Mayor. Said Order was issued during the pendency of the present petition and after
Ahajan had already taken his oath and assumed office as Acting Mayor pursuant to the
COMELEC resolutions of 22 March 2005 and 18 September 2006.
ISSUE: WON the COMELEC rightfully issued the 5 October 2006 order directing the Vice
Mayor to cease and desist from assuming the position of Acting Mayor.
HELD: NO
RATIO:
-The effects of the 22 March 2005 and 18 September 2006 resolutions can no longer be
suspended not only because the resolutions are already final and executory but also because
the power to suspend enforcement lies only with this Court. Thus, in granting the motion and
ordering the Vice-Mayor or any ranking councilor to cease and desist from assuming the

position of Acting Mayor of Indanan, Sulu, it committed what amounts to a usurpation of this
Courts prerogative that is to issue the TRO which is precisely one of the reliefs sought in the
present petition. It behooved the COMELEC en banc to deny or at least refuse to take action
on the Extreme Urgent Ex-Parte Manifestation.
- The Supreme Court upheld the nullification of Jainals proclamation as Municipal Mayor.
With the nullification of petitioners proclamation, the position of Municipal Mayor of Indanan,
Sulu is vacant. The Local Government Code is clear on the matter of succession. Sec. 44 of
R.A. No. 7160 and Art. 83, Rule XIV of the Implementing Rules of the Local Government
Code governing vacancies and succession, quoted below, apply:
Sec. 44.Permanent Vacancies in the Offices of the Governor, Vice Governor,
Mayor, and Vice Mayor. If a permanent vacancy occurs in the office of the
governor or mayor, the vice-governor or vice-mayor concerned shall become
the governor or mayor.If a permanent vacancy occurs in the offices of the
governor, vice governor, mayor or vice mayor, the highest ranking
sanggunian member or, in case of his permanent inability, the second
highest-ranking sanggunian member, shallbecome the governor, vice
governor, mayor or vice mayor as the case may be.Subsequent vacancies in
the said office shall be filled automatically by the other sanggunian members
according to their ranking as defined herein:
(b)If a permanent vacancy occurs in the office of the punong barangay, the
highest ranking sanggunian barangay member or, in case of his permanent
inability, the second highest ranking sanggunian member, shall become the
punong barangay.

(c)A tie between or among the highest ranking sanggunian members shall be
resolved by the drawing of lots.
(d)The successors as defined herein shall serve only the unexpired terms of
their predecessors.
For purposes of this Chapter, a permanent vacancy arises when an elective
local official fills a higher vacant office, refuses to assume office, fails to
qualify, dies, is removed from office, voluntarily resigns, or is otherwise
permanently incapacitated to discharge the functions of his office.
For purposes of succession as provided in this Chapter, ranking in the
sanggunian shall be determined on the basis of the proportionof votes
obtained by each winning candidate to the total number of registered voters
in each district in the immediately preceding local election. [Emphasis
supplied.]
The Implementing Rules of the Local Government Code provides in Art. 83, Rule XIV:
ART. 83.Vacancies and Succession of Elective Local Officials. (a)What
constitutes permanent vacancy - A permanent vacancy arises when an
elective local official fills a higher vacant office, refuses to assume office,
fails to qualify, dies, is removed from office, voluntarily resigns, or is
otherwise permanently incapacitated to discharge the functions of his office.
(b) Permanent vacancies in the offices of the governor, vice governor,
mayor and vice mayor
(1) If a permanent vacancy occurs in the office of the governor or mayor, the
vice governor or vice mayor concerned shall ipso facto become the
governor or mayor.If a permanent vacancy occurs in the offices of
thegovernor, vice governor, mayor, or vice mayor, the highest ranking
sanggunian member or, in case of his permanent inability, the second
highest ranking sanggunian member, shall ipso facto become the governor,
vice governor, mayor or vice mayor, as the case may be.Subsequent
vacancies in the said office shall be filled automatically by the other
sanggunian members according to their ranking as defined in this Article.
x x x x[Emphasis Supplied.]
Verily, the vacancy created by the nullification of petitioners proclamation is in the
nature of a permanent vacancy and may be qualified as a permanent incapacity to
discharge the functions of his office. Ahajans assumption of the office of Mayor should
be understood as subject to the result of the recount to be conducted in accordance
with the issuances of the COMELEC. Thus, there is an immediate need for the COMELEC
to speedily ascertain the true will of the electorate in the eight (8) precincts whose election
returns were nullified.