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Election Laws

SUNGA vs. COMELEC (288 SCRA 76, G.R. No.


125629, March 25, 1998)......................................... 2
PENERA vs. COMELEC (599 SCRA 609, G.R. No.
181613, November 25, 2009) .................................. 5
RULLODA vs. COMELEC (395 SCRA 535, G.R. No.
154198, January 20, 2003) .................................... 10
SULIGUIN vs. COMELEC (485 SCRA 219, G.R. No.
166046, March 23, 2006)....................................... 11
PACANAN vs. COMELEC (G.R. No. 186224, August
25, 2009, 597 SCRA 189) ...................................... 15
AGUILAR vs. COMELEC (G.R. No. 185140, June
30, 2009, 591 SCRA 491) ...................................... 19
TAGUIAM vs. COMELEC (594 SCRA 474, G.R. No.
184801, July 30, 2009) .......................................... 23
BINCE, JR. vs. COMELEC (242 SCRA 273, G.R.
Nos. 111624-25, March 9, 1995) ........................... 25
LIBANAN vs. HRET (283 SCRA 520, G.R. No.
129783, December 22, 1997) ................................ 31
MARUHOM vs. COMELEC (331 SCRA 473, G.R.
No. 139357, May 5, 2000) ..................................... 36
PEA vs. HRET (270 SCRA 340, G.R. No. 123037,
March 21, 1997) .................................................... 42

Election Laws
SUNGA vs. COMELEC (288 SCRA 76, G.R. No. 125629,
1
March 25, 1998)

This petition for certiorari under Rule 65 of the 1997 Rules of


Civil Procedure seeks to annul and set aside, for having been
rendered with grave abuse of discretion amounting to lack or
excess of jurisdiction, the 17 May 1996 Resolution of the
COMELEC 2nd Division in Sunga v. Trinidad, SPA No. 95-213 1
dismissing the petition for disqualification against private
respondent Ferdinand B. Trinidad pursuant to COMELEC
Resolution No. 2050 promulgated 3 November 1988, as
amended by COMELEC Resolution No. 2050-A promulgated 8
August 1990, and 30 July 1996 Resolution of the COMELEC En
Banc affirming the 17 May 1996 Resolution of the COMELEC
2nd Division.

any equipment, vehicle owned by the government or any of its


political subdivisions. The Law Department likewise
recommended to recall and revoke the proclamation of
Ferdinand B. Trinidad as the duly elected Mayor of Iguig,
Cagayan; proclaim Manuel C. Sunga as the duly elected Mayor;
and, direct Sunga to take his oath and assume the duties and
functions of the office.

The COMELEC En Banc approved the findings of the Law


Department and directed the filing of the corresponding
informations in the Regional Trial Court against Trinidad.
Accordingly, four (4) informations 7 for various elections offenses
were filed in the Regional Trial Court of Tuguegarao, Cagayan.
The disqualification case, on the other hand, was referred to the
COMELEC 2nd Division for hearing.

Petitioner Manuel C. Sunga was one of the candidates for the


position of Mayor in the Municipality of Iguig, Province of
Cagayan, in the 8 May 1995 elections. Private respondent
Ferdinand B. Trinidad, then incumbent mayor, was a candidate
for re-election in the same municipality.

On 2 May 1996 Sunga filed a Second Urgent Motion to Suspend


the Effects and Annul the Proclamation with Urgent Motion for
Early Resolution of the Petition. But in its 17 May 1996
Resolution, the COMELEC 2nd Division dismissed the petition
for disqualification, holding in its Resolution No. 2050 that

On 22 April 1995 Sunga filed with the COMELEC a lettercomplaint 2 for disqualification against Trinidad, accusing him of
using three (3) local government vehicles in his campaign, in
violation of Sec. 261, par. (o), Art. XXII, of BP Blg. 881 (Omnibus
Election Code, as amended). On 7 May 1995, Sunga filed
another letter-complaint 3 with the COMELEC charging Trinidad
this time with violation of Sec. 261, par. (e) (referring to threats,
intimidation, terrorism or other forms of coercion) of the Omnibus
Election Code, in addition to the earlier violation imputed to him
in the first letter-complaint. This was followed by an Amended
Petition 4 for disqualification consolidating the charges in the two
(2) letters-complaint, including vote buying, and providing more
specific details of the violations committed by Trinidad. The case
was docketed as SPA No. 95-213.

1.
Any complaint for disqualification of a duly registered
candidate based upon any of the grounds specifically
enumerated under Sec. 68 of the Omnibus Election Code, filed
directly with the Commission before an election in which
respondent is a candidate, shall be inquired into by the
Commission for the purpose of determining whether the acts
complained of have in fact been committed . . . .

In a Minute Resolution dated 25 May 1995, 5 the COMELEC 2nd


Division referred the complaint to its Law Department for
investigation. Hearings were held wherein Sunga adduced
evidence to prove his accusations. Trinidad, on the other hand,
opted not to submit any evidence at all.

laws . . . .

Meanwhile, the election results showed that Trinidad garnered


the highest number of votes, while Sunga trailed second.

On 10 May 1995 Sunga moved for the suspension of the


proclamation of Trinidad. However, notwithstanding the motion,
Trinidad was proclaimed the elected mayor, prompting Sunga to
file another motion to suspend the effects of the proclamation.
Both motions were not acted upon by the COMELEC 2nd
Division.

On 28 June 1995 the COMELEC Law Department submitted its


Report 6 to the COMELEC En Banc recommending that Trinidad
be charged in court for violation of the following penal provisions
of the Omnibus Election Code: (a) Sec. 261, par. (a), on vote
buying; (b) Sec. 261, par. (e), on threats, intimidation, terrorism
or other forms of coercion; and, (c) Sec. 261, par. (o), on use of
1

In case such complaint was not resolved before the election, the
Commission may motu propio, or on motion of any of the parties,
refer the complaint to the Law Department of the Commission as
the instrument of the latter in the exercise of its exclusive power
to conduct a preliminary investigation of all cases involving
criminal infractions of the election

2.
Any complaint for disqualification based on Sec. 68 of
the Omnibus Election Code in relation to Sec. 6 of Republic Act
No. 6646 filed after the election against a candidate who has
already been proclaimed as a winner shall be dismissed as a
disqualification case. However, the complaint shall be referred
for preliminary investigation to the Law Department of this
Commission.

Where a similar complaint is filed after election but before


proclamation of the respondent candidate, the complaint shall,
nevertheless, be dismissed as a disqualification case. However,
the complaint shall be referred for preliminary investigation to the
Law Department. If, before proclamation, the Law Department
makes a prima facie finding of guilt and the corresponding
information has been filed with the appropriate trial court, the
complainant may file a petition for suspension of the
proclamation of the respondent with the court before which the
criminal case is pending and said court may order the
suspension of the proclamation if the evidence of guilt is strong.

As interpreted in the case of Silvestre v. Duavit, SPA 94-003,


Resolution No. 2050 provides for the outright dismissal of the

Election Laws

disqualification case in three cases: (1) The disqualification case


was filed before the election but remains unresolved until after
the election; (2) The disqualification case was filed after the
election and before the proclamation of winners; and (3) The
disqualification case was filed after election and after
proclamation.

The issue in this case is whether the COMELEC committed


grave abuse of discretion when it dismissed the disqualification
case against private respondent Trinidad.

If the instant case is deemed to have been filed upon receipt by


the COMELEC of the letter-complaint on April 26 1995, it
nevertheless remained pending until after the election. If it is
deemed to have been filed upon filing of the amended petition on
11 May 1995, it was clearly filed after the election. In either case,
Resolution No. 2050 mandates the dismissal of the
disqualification case.

We find private respondent's arguments on the propriety of the


letters-complaint puerile. COMELEC itself impliedly recognized
in its Resolution that the petition was filed before the 8 May 1995
election in the form of letters-complaint, thus

His motion for reconsideration having been denied by the


COMELEC En Banc, Sunga filed the instant petition contending
that the COMELEC committed grave abuse of discretion in
dismissing the petition for disqualification in that: first, Sec. 6 of
RA No. 6646 requires the COMELEC to resolve the
disqualification case even after the election and proclamation,
and the proclamation and assumption of office by Trinidad did
not deprive the COMELEC of its jurisdiction; second COMELEC
Resolution No. 2050 is null and void as it contravenes Sec. 6 of
R.A. No. 6646; third, the fact that COMELEC authorized the filing
of four (4) informations against private respondent for violation of
the penal provisions of the Omnibus Election Code shows more
than sufficient and substantial evidence to disqualify Trinidad,
and he should have been so disqualified; and fourth, since
Trinidad was a disqualified candidate, it is as if petitioner was the
only candidate entitled to be proclaimed as the duly elected
mayor.

In his 17-page Comment and Manifestation dated 3 December


1996, the Solicitor General concurred with petitioner's
arguments.

Private respondent, on the other hand, postulates inter alia that


Sunga's letters-complaint of 22 April 1995 and 7 May 1995 were
not petitions for disqualification because no filing fee was paid by
Sunga; the letters-complaint were never docketed by the
COMELEC; and, no summons was ever issued by the
COMELEC and private respondent was not required to answer
the letters-complaint. It was only on 13 May 1995 when petitioner
filed the so-called Amended Petition, docketed for the first time
as SPA No. 95-213. Thus, the COMELEC correctly dismissed
the disqualification case for having been filed only after the 8
May 1995 elections and the proclamation of private respondent
on 10 May 1995, pursuant to COMELEC Resolution No. 2050.

COMELEC filed its Comment on 21 April 1997 relying heavily on


Resolution No. 2050 and the Silvestre v. Duavit 8 ruling in
support of the dismissal of the disqualification case. The
COMELEC insisted that the outright dismissal of a
disqualification case was warranted under any of the following
circumstances: (a) the disqualification case was filed before the
election but was still pending (unresolved) after the election; (b)
the disqualification case was filed after the election but before
the proclamation of the winner; and, (c) the disqualification case
was filed after the election and after the proclamation of the
winner.

The petition is partly meritorious.

This case originally came to the attention of this Commission on


26 April 1995 in a form of letter from petitioner accusing
respondent of utilizing government properties in his campaign
and praying for the latter's immediate disqualification. Another
letter dated 7 May 1995 and addressed to the COMELEC
Regional Director of Region II reiterated petitioner's prayer while
alleging that respondent and his men committed acts of terrorism
and violated the gun ban. Finally, on 11 May 1995, an Amended
Petition was filed with the Clerk of Court of the Commission
containing substantially the same allegations as the previous
letters but supported by affidavits and other documentary
evidence.

That the Amended Petition was filed only on 11 May 1995, or


after the elections, is of no consequence. It was merely a
reiteration of the charges filed by petitioner against private
respondent on 26 April 1995 and 7 May 1995 or before the
elections. Consequently, the Amended Petition retroacted to
such earlier dates. An amendment which merely supplements
and amplifies facts originally alleged in the complaint relates
back to the date of the commencement of the action and is not
barred by the statute of limitations which expired after the service
of the original complaint. 9

The fact that no docket fee was paid therefor was not a fatal
procedural lapse on the part of petitioner. Sec. 18, Rule 42, of
the COMELEC Rules of Procedure provides, "If the fees above
described are not paid, the Commission may refuse to take
action thereon until they are paid and may dismiss the action or
proceeding." The use of the word "may" indicates that it is
permissive only and operates to confer a discretion on the
COMELEC whether to entertain the petition or not in case of
non-payment of legal fees. That the COMELEC acted on and did
not dismiss the petition outright shows that the non-payment of
fees was not considered by it as a legal obstacle to entertaining
the same. Be that as it may, the procedural defects have been
cured by the subsequent payment of docket fees, and private
respondent was served with summons, albeit belatedly, and he
submitted his answer to the complaint. Hence, private
respondent has no cause to complain that no docket fee was
paid, no summons served upon him, or that he was not required
to answer.

Neither do we agree with the conclusions of the COMELEC. We


discern nothing in COMELEC Resolution No. 2050 declaring,
ordering or directing the dismissal of a disqualification case filed
before the election but which remained unresolved after the
election. What the Resolution mandates in such a case is for the
Commission to refer the complaint to its Law Department for
investigation to determine whether the acts complained of have
in fact been committed by the candidate sought to be

Election Laws
disqualified. The findings of the Law Department then become
the basis for disqualifying the erring candidate. This is totally
different from the other two situations contemplated by
Resolution No. 2050, i.e., a disqualification case filed after the
election but before the proclamation of winners and that filed
after the election and the proclamation of winners, wherein it was
specifically directed by the same Resolution to be dismissed as a
disqualification case.

Moreover, Resolution No. 2050 as interpreted in Silvestre v.


Duavit infringes on Sec. 6 of RA No. 6646, 10 which provides:

Sec. 6. Effects of Disqualification Case. Any candidate who


has been declared by final judgment to be disqualified shall not
be voted for, and the votes cast for him shall not be counted. If
for any reason a candidate is not declared by final judgment
before an election to be disqualified and he is voted for and
receives the winning number of votes in such election, the Court
or Commission shall continue with the trial and hearing of the
action, inquiry or protest and, upon motion of the complainant or
any intervenor, may during the pendency thereof order the
suspension of the proclamation of such candidate whenever the
evidence of his guilt is strong (emphasis supplied).

Clearly, the legislative intent is that the COMELEC should


continue the trial and hearing of the disqualification case to its
conclusion, i.e., until judgment is rendered thereon. The word
"shall" signifies that this requirement of the law is mandatory,
operating to impose a positive duty which must be enforced. 11
The implication is that the COMELEC is left with no discretion
but to proceed with the disqualification case even after the
election. Thus, in providing for the outright dismissal of the
disqualification case which remains unresolved after the election,
Silvestre v. Duavit in effect disallows what RA No. 6646
imperatively requires. This amounts to a quasi-judicial legislation
by the COMELEC which cannot be countenanced and is invalid
for having been issued beyond the scope of its authority.
Interpretative rulings of quasi-judicial bodies or administrative
agencies must always be in perfect harmony with statutes and
should be for the sole purpose of carrying their general
provisions into effect. By such interpretative or administrative
rulings, of course, the scope of the law itself cannot be limited.
Indeed, a quasi-judicial body or an administrative agency for that
matter cannot amend an act of Congress. Hence, in case of a
discrepancy between the basic law and an interpretative or
administrative ruling, the basic law prevails.

Besides, the deleterious effect of the Silvestre ruling is not


difficult to foresee. A candidate guilty of election offenses would
be undeservedly rewarded, instead of punished, by the dismissal
of the disqualification case against him simply because the
investigating body was unable, for any reason caused upon it, to
determine before the election if the offenses were indeed
committed by the candidate sought to be disqualified. All that the
erring aspirant would need to do is to employ delaying tactics so
that the disqualification case based on the commission of
election offenses would not be decided before the election. This
scenario is productive of more fraud which certainly is not the
main intent and purpose of the law.

The fact that Trinidad was already proclaimed and had assumed
the position of mayor did not divest the COMELEC of authority
and jurisdiction to continue the hearing and eventually decide the

disqualification case. In Aguam v. COMELEC 12 this Court held

Time and again this Court has given its imprimatur on the
principle that COMELEC is with authority to annul any canvass
and proclamation which was illegally made. The fact that a
candidate proclaimed has assumed office, we have said, is no
bar to the exercise of such power. It of course may not be
availed of where there has been a valid proclamation. Since
private respondent's petition before the COMELEC is precisely
directed at the annulment of the canvass and proclamation, we
perceive that inquiry into this issue is within the area allocated by
the Constitution and law to COMELEC . . . Really, were a victim
of a proclamation to be precluded from challenging the validity
thereof after that proclamation and the assumption of office
thereunder, baneful effects may easily supervene.

It must be emphasized that the purpose of a disqualification


proceeding is to prevent the candidate from running or, if
elected, from serving, or to prosecute him for violation of the
election laws. Obviously, the fact that a candidate has been
proclaimed elected does not signify that his disqualification is
deemed condoned and may no longer be the subject of a
separate investigation.

It is worth to note that an election offense has criminal as well as


electoral aspects. Its criminal aspect involves the ascertainment
of the guilt or innocence of the accused candidate. Like in any
other criminal case, it usually entails a full-blown hearing and the
quantum of proof required to secure a conviction is beyond
reasonable doubt. Its electoral aspect, on the other hand, is a
determination of whether the offender should be disqualified from
office. This is done through an administrative proceeding which
is summary in character and requires only a clear
preponderance of evidence. Thus, under Sec. 4 of the
COMELEC Rules of Procedure, petitions for disqualification
"shall be heard summarily after due notice." It is the electoral
aspect that we are more concerned with, under which an erring
candidate may be disqualified even without prior criminal
conviction. 13

It is quite puzzling that the COMELEC never acted on Sunga's


motion to suspend the proclamation of Trinidad. The last
sentence of Sec. 6 of RA No. 6646 categorically declares that
the Commission may order the suspension of the proclamation
of a candidate sought to be disqualified whenever the evidence
of his guilt is strong. And there is not a scintilla of doubt that the
evidence of Trinidad's guilt was strong as shown in the Report
and Recommendation of the COMELEC Law Department

Parenthetically, there is merit to petitioner's petition against the


respondent for disqualification for the alleged commission of
election offenses under Sec. 68 of the Omnibus Election Code,
such as use of armed men and act of terrorism, intimidation and
coercion of voters, massive vote-buying and others, duly
supported by affidavits of witnesses and other documents.
Consequently, the petitioner's evidence supporting the
disqualification of respondent remain unrebutted simply because
respondent has expressly waived his right to present evidence in
SPA No. 95-213 in his Manifestation and objection to the
presentation of evidence in SPA No. 95-213 dated 16 June
1995, thus the waiver is the intentional relinquishing of a known
right of respondent TRINIDAD.

Election Laws

In fact, on the basis of this Report and Recommendation the


COMELEC directed the filing of four (4) criminal informations
against Trinidad before the Regional Trial Court, an indication
that there was indeed prima facie evidence of violation of
election laws.

However, Sunga's contention that he is entitled to be proclaimed


as the duly elected Mayor of the Municipality of Iguig, Province of
Cagayan, in the event that Trinidad is disqualified finds no
support in law and jurisprudence. The fact that the candidate
who obtained the highest number of votes is later disqualified for
the office to which he was elected does not entitle the candidate
who obtained the second highest number of votes to be declared
the winner of the elective office. The votes cast for a disqualified
person may not be valid to install the winner into office or
maintain him there. But in the absence of a statute which clearly
asserts a contrary political and legislative policy on the matter, if
the votes were cast in the sincere belief that the candidate was
qualified, they should not be treated as stray, void or
meaningless. 14

Sunga totally miscontrued the nature of our democratic electoral


process as well as the sociological and psychological elements
behind voters' preferences. Election is the process of complete
ascertainment of the expression of the popular will. Its ultimate
purpose is to give effect to the will of the electorate by giving
them direct participation in choosing the men and women who
will run their government. Thus, it would be extremely repugnant
to the basic concept of the constitutionally guaranteed right to
suffrage if a candidate who has not acquired the majority or
plurality of votes is proclaimed winner and imposed as the
representative of a constituency, the majority of whom have
positively declared through their ballots that they do not choose
him. 15

While Sunga may have garnered the second highest number of


votes, the fact remains that he was not the choice of the people
of Iguig, Cagayan. "The wreath of victory cannot be transferred
from the disqualified winner to the repudiated loser because the
law then as now only authorizes a declaration of election in favor
of the person who has obtained a plurality of votes and does not
entitle a candidate receiving the next highest number of votes to
be declared elected." 16 In Aquino v. COMELEC, 17 this Court
made the following pronouncement:

To simplistically assume that the second placer would have


received the other votes would be to substitute our judgment for
the voter. The second placer is just that, a second placer. He lost
the election. He was repudiated by either a majority or plurality of
voters. He could not be considered the first among qualified
candidates because in a field which excludes the disqualified
candidate; the conditions would have substantially changed. We
are not prepared to extrapolate the results under such
circumstances.

Governor or Vice-Mayor concerned shall become the Governor


or Mayor . . .

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 . . . .

This provision is echoed in Art. 83 of the Implementing Rules


and Regulations of the Local Government Code of 1991.

The language of the law is clear, explicit and unequivocal, thus


admits no room for interpretation but merely application. This is
the basic legal precept. Accordingly, in the event that Trinidad is
adjudged to be disqualified, a permanent vacancy will be created
for failure of the elected mayor to qualify for the said office. In
such eventuality, the duly elected vice-mayor shall succeed as
provided by law. 19

WHEREFORE, the petition is PARTIALLY GRANTED. The 17


May 1996 and 30 July 1996 Resolutions of the COMELEC are
ANNULLED and SET ASIDE. COMELEC is ordered to
REINSTATE SPA No. 95-213, "Manuel C. Sunga v. Ferdinand
B. Trinidad," for disqualification, and ACT on the case taking its
bearings from the opinion herein expressed. No costs.

SO ORDERED.

PENERA vs. COMELEC (599 SCRA 609, G.R. No. 181613,


2
November 25, 2009)

We grant Rosalinda A. Peneras (Penera) motion for


reconsideration of this Courts Decision of 11 September 2009
(Decision).

The assailed Decision dismissed Peneras petition and affirmed


the Resolution dated 30 July 2008 of the COMELEC En Banc as
well as the Resolution dated 24 July 2007 of the COMELEC
Second Division. The Decision disqualified Penera from running
for the office of Mayor in Sta. Monica, Surigao del Norte and
declared that the Vice-Mayor should succeed Penera.

In support of her motion for reconsideration, Penera submits the


following arguments:

1. Penera was not yet a candidate at the time of the incident


under Section 11 of RA 8436 as amended by Section 13 of RA
9369.

Also, what Sunga wants us to do is to disregard the express


mandate of Sec. 44, RA No. 7160, 18 which provides in part

Sec. 44. Permanent vacancies in the office of the Governor,


Vice-Governor, Mayor, Vice-Mayor. (a) If a permanent
vacancy occurs in the office of the Governor or Mayor, the Vice-

Election Laws
2. The petition for disqualification failed to submit convincing and
substantial evidence against Penera for violation of Section 80 of
the Omnibus Election Code.

3. Penera never admitted the allegations of the petition for


disqualification and has consistently disputed the charge of
premature campaigning.

4. The admission that Penera participated in a motorcade is not


the same as admitting she engaged in premature election
campaigning.

Section 79(a) of the Omnibus Election Code defines a


"candidate" as "any person aspiring for or seeking an elective
public office, who has filed a certificate of candidacy x x x." The
second sentence, third paragraph, Section 15 of RA 8436, as
amended by Section 13 of RA 9369, provides that "[a]ny person
who files his certificate of candidacy within [the period for filing]
shall only be considered as a candidate at the start of the
campaign period for which he filed his certificate of candidacy."
The immediately succeeding proviso in the same third paragraph
states that "unlawful acts or omissions applicable to a candidate
shall take effect only upon the start of the aforesaid campaign
period." These two provisions determine the resolution of this
case.

The Decision states that "[w]hen the campaign period starts and
[the person who filed his certificate of candidacy] proceeds with
his/her candidacy, his/her intent turning into actuality, we can
already consider his/her acts, after the filing of his/her COC and
prior to the campaign period, as the promotion of his/her election
as a candidate, hence, constituting premature campaigning, for
which he/she may be disqualified."1

Under the Decision, a candidate may already be liable for


premature campaigning after the filing of the certificate of
candidacy but even before the start of the campaign period.
From the filing of the certificate of candidacy, even long before
the start of the campaign period, the Decision considers the
partisan political acts of a person so filing a certificate of
candidacy "as the promotion of his/her election as a candidate."
Thus, such person can be disqualified for premature
campaigning for acts done before the start of the campaign
period. In short, the Decision considers a person who files a
certificate of candidacy already a "candidate" even before the
start of the campaign period. lawphil

The assailed Decision is contrary to the clear intent and letter of


the law.

The Decision reverses Lanot v. COMELEC,2 which held that a


person who files a certificate of candidacy is not a candidate until
the start of the campaign period. In Lanot, this Court explained:

Thus, the essential elements for violation of Section 80 of the


Omnibus Election Code are: (1) a person engages in an election
campaign or partisan political activity; (2) the act is designed to
promote the election or defeat of a particular candidate or
candidates; (3) the act is done outside the campaign period.

The second element requires the existence of a "candidate."


Under Section 79(a), a candidate is one who "has filed a
certificate of candidacy" to an elective public office. Unless one
has filed his certificate of candidacy, he is not a "candidate." The
third element requires that the campaign period has not started
when the election campaign or partisan political activity is
committed.

Assuming that all candidates to a public office file their


certificates of candidacy on the last day, which under Section 75
of the Omnibus Election Code is the day before the start of the
campaign period, then no one can be prosecuted for violation of
Section 80 for acts done prior to such last day. Before such last
day, there is no "particular candidate or candidates" to campaign
for or against. On the day immediately after the last day of filing,
the campaign period starts and Section 80 ceases to apply since
Section 80 covers only acts done "outside" the campaign period.

Thus, if all candidates file their certificates of candidacy on the


last day, Section 80 may only apply to acts done on such last
day, which is before the start of the campaign period and after at
least one candidate has filed his certificate of candidacy. This is
perhaps the reason why those running for elective public office
usually file their certificates of candidacy on the last day or close
to the last day.

There is no dispute that Eusebios acts of election campaigning


or partisan political activities were committed outside of the
campaign period. The only question is whether Eusebio, who
filed his certificate of candidacy on 29 December 2003, was a
"candidate" when he committed those acts before the start of the
campaign period on 24 March 2004.

Section 11 of Republic Act No. 8436 ("RA 8436") moved the


deadline for the filing of certificates of candidacy to 120 days
before election day. Thus, the original deadline was moved from
23 March 2004 to 2 January 2004, or 81 days earlier. The crucial
question is: did this change in the deadline for filing the
certificate of candidacy make one who filed his certificate of
candidacy before 2 January 2004 immediately liable for violation
of Section 80 if he engaged in election campaign or partisan
political activities prior to the start of the campaign period on 24
March 2004?

Section 11 of RA 8436 provides:

SECTION 11. Official Ballot. The Commission shall prescribe


the size and form of the official ballot which shall contain the
titles of the positions to be filled and/or the propositions to be
voted upon in an initiative, referendum or plebiscite. Under each
position, the names of candidates shall be arranged
alphabetically by surname and uniformly printed using the same
type size. A fixed space where the chairman of the Board of
Election Inspectors shall affix his/her signature to authenticate
the official ballot shall be provided.

Both sides of the ballots may be used when necessary.

Election Laws
For this purpose, the deadline for the filing of certificate of
candidacy/petition for registration/ manifestation to participate in
the election shall not be later than one hundred twenty (120)
days before the elections: Provided, That, any elective official,
whether national or local, running for any office other than the
one which he/she is holding in a permanent capacity, except for
president and vice-president, shall be deemed resigned only
upon the start of the campaign period corresponding to the
position for which he/she is running: Provided, further, That,
unlawful acts or omissions applicable to a candidate shall take
effect upon the start of the aforesaid campaign period: Provided,
finally, That, for purposes of the May 11, 1998 elections, the
deadline for filing of the certificate of candidacy for the positions
of President, Vice-President, Senators and candidates under the
party-list system as well as petitions for registration and/or
manifestation to participate in the party-list system shall be on
February 9, 1998 while the deadline for the filing of certificate of
candidacy for other positions shall be on March 27, 1998.

The official ballots shall be printed by the National Printing Office


and/or the Bangko Sentral ng Pilipinas at the price comparable
with that of private printers under proper security measures
which the Commission shall adopt. The Commission may
contract the services of private printers upon certification by the
National Printing Office/Bangko Sentral ng Pilipinas that it cannot
meet the printing requirements. Accredited political parties and
deputized citizens arms of the Commission may assign
watchers in the printing, storage and distribution of official
ballots.

To prevent the use of fake ballots, the Commission through the


Committee shall ensure that the serial number on the ballot stub
shall be printed in magnetic ink that shall be easily detectable by
inexpensive hardware and shall be impossible to reproduce on a
photocopying machine, and that identification marks, magnetic
strips, bar codes and other technical and security markings, are
provided on the ballot.

The official ballots shall be printed and distributed to each


city/municipality at the rate of one (1) ballot for every registered
voter with a provision of additional four (4) ballots per precinct.

Under Section 11 of RA 8436, the only purpose for the early


filing of certificates of candidacy is to give ample time for the
printing of official ballots. This is clear from the following
deliberations of the Bicameral Conference Committee:

SENATOR GONZALES. Okay. Then, how about the campaign


period, would it be the same[,] uniform for local and national
officials?

SENATOR GONZALES. And you cannot say that the campaign


period has not yet began (sic).

THE CHAIRMAN (REP. TANJUATCO). If we dont provide that


the filing of the certificate will not bring about ones being a
candidate.

SENATOR GONZALES. If thats a fact, the law cannot change a


fact.

THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide


that the filing of the certificate of candidacy will not result in that
official vacating his position, we can also provide that insofar he
is concerned, election period or his being a candidate will not yet
commence. Because here, the reason why we are doing an early
filing is to afford enough time to prepare this machine readable
ballots.

So, with the manifestations from the Commission on Elections,


Mr. Chairman, the House Panel will withdraw its proposal and
will agree to the 120-day period provided in the Senate version.

THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr.


Chairman.

xxxx

SENATOR GONZALES. How about prohibition against


campaigning or doing partisan acts which apply immediately
upon being a candidate?

THE CHAIRMAN (REP. TANJUATCO). Again, since the


intention of this provision is just to afford the Comelec enough
time to print the ballots, this provision does not intend to change
the campaign periods as presently, or rather election periods as
presently fixed by existing law.

THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be


subject to the other prohibition.

THE CHAIRMAN (REP. TANJUATCO). Thats right.

THE ACTING CHAIRMAN (SEN. FERNAN). Okay.


THE CHAIRMAN (REP. TANJUATCO). Personally, I would
agree to retaining it at the present periods.

SENATOR GONZALES. But the moment one files a certificate of


candidacy, hes already a candidate, and there are many
prohibited acts on the part of candidate.

THE CHAIRMAN (REP. TANJUATCO). Unless we. . . .

THE CHAIRMAN (REP. TANJUATCO). In other words, actually,


there would be no conflict anymore because we are talking about
the 120-day period before election as the last day of filing a
certificate of candidacy, election period starts 120 days also. So
that is election period already. But he will still not be considered
as a candidate.

Election Laws
Thus, because of the early deadline of 2 January 2004 for
purposes of printing of official ballots, Eusebio filed his certificate
of candidacy on 29 December 2003. Congress, however, never
intended the filing of a certificate of candidacy before 2 January
2004 to make the person filing to become immediately a
"candidate" for purposes other than the printing of ballots. This
legislative intent prevents the immediate application of Section
80 of the Omnibus Election Code to those filing to meet the early
deadline. The clear intention of Congress was to preserve the
"election periods as x x x fixed by existing law" prior to RA 8436
and that one who files to meet the early deadline "will still not be
considered as a candidate."3 (Emphasis in the original)

Lanot was decided on the ground that one who files a certificate
of candidacy is not a candidate until the start of the campaign
period. This ground was based on the deliberations of the
legislators who explained the intent of the provisions of RA 8436,
which laid the legal framework for an automated election system.
There was no express provision in the original RA 8436 stating
that one who files a certificate of candidacy is not a candidate
until the start of the campaign period.

When Congress amended RA 8436, Congress decided to


expressly incorporate the Lanot doctrine into law, realizing that
Lanot merely relied on the deliberations of Congress in holding
that

be annulled by this Court except on the sole ground of its


unconstitutionality. The Decision cannot reverse Lanot without
repealing this second sentence, because to reverse Lanot would
mean repealing this second sentence.

The assailed Decision, however, in reversing Lanot does not


claim that this second sentence or any portion of Section 15 of
RA 8436, as amended by RA 9369, is unconstitutional. In fact,
the Decision considers the entire Section 15 good law. Thus, the
Decision is self-contradictory reversing Lanot but maintaining
the constitutionality of the second sentence, which embodies the
Lanot doctrine. In so doing, the Decision is irreconcilably in
conflict with the clear intent and letter of the second sentence,
third paragraph, Section 15 of RA 8436, as amended by RA
9369.

In enacting RA 9369, Congress even further clarified the first


proviso in the third paragraph of Section 15 of RA 8436. The
original provision in RA 8436 states

x x x Provided, further, That, unlawful acts or omissions


applicable to a candidate shall take effect upon the start of the
aforesaid campaign period, x x x.

In RA 9369, Congress inserted the word "only" so that the first


proviso now reads
The clear intention of Congress was to preserve the "election
periods as x x x fixed by existing law" prior to RA 8436 and that
one who files to meet the early deadline "will still not be
considered as a candidate."4 (Emphasis supplied)

Congress wanted to insure that no person filing a certificate of


candidacy under the early deadline required by the automated
election system would be disqualified or penalized for any
partisan political act done before the start of the campaign
period. Thus, in enacting RA 9369, Congress expressly wrote
the Lanot doctrine into the second sentence, third paragraph of
the amended Section 15 of RA 8436, thus:

xxx

For this purpose, the Commission shall set the deadline for the
filing
of
certificate
of
candidacy/petition
for
registration/manifestation to participate in the election. Any
person who files his certificate of candidacy within this period
shall only be considered as a candidate at the start of the
campaign period for which he filed his certificate of candidacy:
Provided, That, unlawful acts or omissions applicable to a
candidate shall take effect only upon the start of the aforesaid
campaign period: Provided, finally, That any person holding a
public appointive office or position, including active members of
the armed forces, and officers and employees in governmentowned or -controlled corporations, shall be considered ipso facto
resigned from his/her office and must vacate the same at the
start of the day of the filing of his/her certificate of candidacy.
(Boldfacing and underlining supplied)

Congress elevated the Lanot doctrine into a statute by


specifically inserting it as the second sentence of the third
paragraph of the amended Section 15 of RA 8436, which cannot

x x x Provided, That, unlawful acts or omissions applicable to a


candidate shall take effect only upon the start of the aforesaid
campaign period x x x. (Emphasis supplied)

Thus, Congress not only reiterated but also strengthened its


mandatory directive that election offenses can be committed by a
candidate "only" upon the start of the campaign period. This
clearly means that before the start of the campaign period, such
election offenses cannot be so committed.

When the applicable provisions of RA 8436, as amended by RA


9369, are read together, these provisions of law do not consider
Penera a candidate for purposes other than the printing of
ballots, until the start of the campaign period. There is absolutely
no room for any other interpretation.

We quote with approval the Dissenting Opinion of Justice


Antonio T. Carpio:

x x x The definition of a "candidate" in Section 79(a) of the


Omnibus Election Code should be read together with the
amended Section 15 of RA 8436. A "candidate refers to any
person aspiring for or seeking an elective public office, who has
filed a certificate of candidacy by himself or through an
accredited political party, aggroupment or coalition of parties."
However, it is no longer enough to merely file a certificate of
candidacy for a person to be considered a candidate because
"any person who files his certificate of candidacy within [the
filing] period shall only be considered a candidate at the start of
the campaign period for which he filed his certificate of
candidacy." Any person may thus file a certificate of candidacy
on any day within the prescribed period for filing a certificate of

Election Laws
candidacy yet that person shall be considered a candidate, for
purposes of determining ones possible violations of election
laws, only during the campaign period. Indeed, there is no
"election campaign" or "partisan political activity" designed to
promote the election or defeat of a particular candidate or
candidates to public office simply because there is no
"candidate" to speak of prior to the start of the campaign period.
Therefore, despite the filing of her certificate of candidacy, the
law does not consider Penera a candidate at the time of the
questioned motorcade which was conducted a day before the
start of the campaign period. x x x

The campaign period for local officials began on 30 March 2007


and ended on 12 May 2007. Penera filed her certificate of
candidacy on 29 March 2007. Penera was thus a candidate on
29 March 2009 only for purposes of printing the ballots. On 29
March 2007, the law still did not consider Penera a candidate for
purposes other than the printing of ballots. Acts committed by
Penera prior to 30 March 2007, the date when she became a
"candidate," even if constituting election campaigning or partisan
political activities, are not punishable under Section 80 of the
Omnibus Election Code. Such acts are within the realm of a
citizens protected freedom of expression. Acts committed by
Penera within the campaign period are not covered by Section
80 as Section 80 punishes only acts outside the campaign
period.5

The assailed Decision gives a specious reason in explaining


away the first proviso in the third paragraph, the amended
Section 15 of RA 8436 that election offenses applicable to
candidates take effect only upon the start of the campaign
period. The Decision states that:

x x x [T]he line in Section 15 of Republic Act No. 8436, as


amended, which provides that "any unlawful act or omission
applicable to a candidate shall take effect only upon the start of
the campaign period," does not mean that the acts constituting
premature campaigning can only be committed, for which the
offender may be disqualified, during the campaign period.
Contrary to the pronouncement in the dissent, nowhere in said
proviso was it stated that campaigning before the start of the
campaign period is lawful, such that the offender may freely
carry out the same with impunity.

As previously established, a person, after filing his/her COC but


prior to his/her becoming a candidate (thus, prior to the start of
the campaign period), can already commit the acts described
under Section 79(b) of the Omnibus Election Code as election
campaign or partisan political activity, However, only after said
person officially becomes a candidate, at the beginning of the
campaign period, can said acts be given effect as premature
campaigning under Section 80 of the Omnibus Election Code.
Only after said person officially becomes a candidate, at the start
of the campaign period, can his/her disqualification be sought for
acts constituting premature campaigning. Obviously, it is only at
the start of the campaign period, when the person officially
becomes a candidate, that the undue and iniquitous advantages
of his/her prior acts, constituting premature campaigning, shall
accrue to his/her benefit. Compared to the other candidates who
are only about to begin their election campaign, a candidate who
had previously engaged in premature campaigning already
enjoys an unfair headstart in promoting his/her candidacy.6
(Emphasis supplied)

It is a basic principle of law that any act is lawful unless


expressly declared unlawful by law. This is specially true to
expression or speech, which Congress cannot outlaw except on
very narrow grounds involving clear, present and imminent
danger to the State. The mere fact that the law does not declare
an act unlawful ipso facto means that the act is lawful. Thus,
there is no need for Congress to declare in Section 15 of RA
8436, as amended by RA 9369, that political partisan activities
before the start of the campaign period are lawful. It is sufficient
for Congress to state that "any unlawful act or omission
applicable to a candidate shall take effect only upon the start of
the campaign period." The only inescapable and logical result is
that the same acts, if done before the start of the campaign
period, are lawful.

In laymans language, this means that a candidate is liable for an


election offense only for acts done during the campaign period,
not before. The law is clear as daylight any election offense
that may be committed by a candidate under any election law
cannot be committed before the start of the campaign period. In
ruling that Penera is liable for premature campaigning for
partisan political acts before the start of the campaigning, the
assailed Decision ignores the clear and express provision of the
law.

The Decision rationalizes that a candidate who commits


premature campaigning can be disqualified or prosecuted only
after the start of the campaign period. This is not what the law
says. What the law says is "any unlawful act or omission
applicable to a candidate shall take effect only upon the start of
the campaign period." The plain meaning of this provision is that
the effective date when partisan political acts become unlawful
as to a candidate is when the campaign period starts. Before the
start of the campaign period, the same partisan political acts are
lawful.

The law does not state, as the assailed Decision asserts, that
partisan political acts done by a candidate before the campaign
period are unlawful, but may be prosecuted only upon the start of
the campaign period. Neither does the law state that partisan
political acts done by a candidate before the campaign period
are temporarily lawful, but becomes unlawful upon the start of
the campaign period. This is clearly not the language of the law.
Besides, such a law as envisioned in the Decision, which defines
a criminal act and curtails freedom of expression and speech,
would be void for vagueness.

Congress has laid down the law a candidate is liable for


election offenses only upon the start of the campaign period.
This Court has no power to ignore the clear and express
mandate of the law that "any person who files his certificate of
candidacy within [the filing] period shall only be considered a
candidate at the start of the campaign period for which he filed
his certificate of candidacy." Neither can this Court turn a blind
eye to the express and clear language of the law that "any
unlawful act or omission applicable to a candidate shall take
effect only upon the start of the campaign period."

The forum for examining the wisdom of the law, and enacting
remedial measures, is not this Court but the Legislature. This
Court has no recourse but to apply a law that is as clear, concise
and express as the second sentence, and its immediately

Election Laws
succeeding proviso, as written in the third paragraph of Section
15 of RA 8436, as amended by RA 9369.

WHEREFORE, we GRANT petitioner Rosalinda A. Peneras


Motion for Reconsideration. We SET ASIDE the Decision of this
Court in G.R. No. 181613 promulgated on 11 September 2009,
as well as the Resolutions dated 24 July 2007 and 30 January
2008 of the COMELEC Second Division and the COMELEC En
Banc, respectively, in SPA No. 07-224. Rosalinda A. Penera
shall continue as Mayor of Sta. Monica, Surigao del Norte.

SO ORDERED.

RULLODA vs. COMELEC (395 SCRA 535, G.R. No. 154198,


3
January 20, 2003)
In the barangay elections of July 15, 2002, Romeo N. Rulloda
and Remegio L. Placido were the contending candidates for
Barangay Chairman of Sto. Tomas, San Jacinto, Pangasinan.
On June 22, 2002, Romeo suffered a heart attack and passed
away at the Mandaluyong City Medical Center.1
His widow, petitioner Petronila "Betty" Rulloda, wrote a letter to
the Commission on Elections on June 25, 2002 seeking
permission to run as candidate for Barangay Chairman of Sto.
Tomas in lieu of her late husband.2Petitioners request was
supported by the Appeal-Petition containing several signatures
of people purporting to be members of the electorate of
Barangay Sto. Tomas.3
On July 14, 2002, Election Officer Ludivico L. Asuncion issued a
directive to the Chairman and Members of the Barangay Board
of Canvassers of Sto. Tomas as follows:
Just in case the names "BETTY" or "PETRONILA" or the
surname "RULLODA" is written on the ballot, read the same as it
is written but add the words "NOT COUNTED" like "BETTY NOT
COUNTED" or "RULLODA NOT COUNTED."4
Based on the tally of petitioners watchers who were allowed to
witness the canvass of votes during the July 15, 2002 elections,
petitioner garnered 516 votes while respondent Remegio Placido
received 290 votes.5 Despite this, the Board of Canvassers
proclaimed Placido as the Barangay Chairman of Sto. Tomas.6
After the elections, petitioner learned that the COMELEC, acting
on the separate requests of Andres Perez Manalaysay and
Petronila Rulloda to be substituted as candidates for Barangay
Chairman of Barangay La Fuente, Sta. Rosa, Nueva Ecija and
Barangay Sto. Tomas, San Jacinto, Pangasinan, respectively,
issued Resolution No. 5217 dated July 13, 2002 which states:
PREMISES CONSIDERED, the Commission RESOLVED, as it
hereby RESOLVES, to ADOPT the recommendation of the Law
Department as follows:
1. To deny due course the Certificates of Candidacy of ANDRES
PEREZ MANALAYSAY and PETRONILA S. RULLODA; and

10

2. To direct the Election Officer of Sta. Rosa, Nueva Ecija and


San Jacinto, Pangasinan to delete the name of ANDRES PEREZ
MANALAYSAY, candidate for Barangay Chairman in Barangay
La Fuente, Sta. Rosa, Nueva Ecija; and the name of
PETRONILA S. RULLODA, candidate for Barangay Captain in
Barangay Sto. Tomas, San Jacinto, Pangasinan.
Let the Law Department implement this resolution.
SO ORDERED.7
The above-quoted Resolution cited as authority the COMELECs
Resolution No. 4801 dated May 23, 2002, setting forth the
guidelines on the filing of certificates of candidacy in connection
with the July 15, 2002 synchronized Barangay and Sangguniang
Kabataan elections, more particularly Section 9 thereof which
reads:
Sec. 9. Substitution of candidates. There shall be no
substitution of candidates for barangay andsangguniang
kabataan officials.8
Hence, petitioner filed the instant petition for certiorari, seeking to
annul Section 9 of Resolution No. 4801 and Resolution No.
5217, both of the COMELEC, insofar as they prohibited
petitioner from running as substitute candidate in lieu of her
deceased husband; to nullify the proclamation of respondent;
and to proclaim her as the duly elected Barangay Chairman of
Sto. Tomas, San Jacinto, Pangasinan.
Private respondent Remegio Placido filed his Comment, arguing
that since the barangay election is non-partisan, substitution of
candidates is not allowed. Moreover, petitioner did not file any
certificate of candidacy; hence, there was only one candidate for
Barangay Chairman of Sto. Tomas, namely, respondent
Placido.9
Public respondent COMELEC also filed its Comment. It contends
that its Resolution No. 4801 was issued not pursuant to its quasijudicial functions but as an incident of its inherent administrative
functions over the conduct of the barangay elections. Therefore,
the same may not be the subject of review in a petition for
certiorari. Further, the COMELEC alleges that it did not commit
grave abuse of discretion in denying due course to petitioners
certificate of candidacy and in proclaiming respondent
considering that he was the only candidate for Barangay
Chairman of Sto. Tomas.10
We find merit in the petition.
At the outset, there is no dispute that petitioner garnered 516
votes while respondent got only 290 votes. Respondents did not
deny this in their respective Comments.
In our jurisdiction, an election means the choice or selection of
candidates to public office by popular vote through the use of the
ballot, and the elected officials which are determined through the
will of the electorate. An election is the embodiment of the
popular will, the expression of the sovereign power of the people.
The winner is the candidate who has obtained a majority or
plurality of valid votes cast in the election. Sound policy dictates
that public elective offices are filled by those who receive the
highest number of votes cast in the election for that office. For, in

Election Laws
all republican forms of government the basic idea is that no one
can be declared elected and no measure can be declared
carried unless he or it receives a majority or plurality of the legal
votes cast in the election.11
Respondents base their argument that the substitution of
candidates is not allowed in barangay elections on Section 77 of
the Omnibus Elections Code, which states:
Section 77. Candidates in case of death, disqualification or
withdrawal of another. If after the last day of the filing of
certificates of candidacy, an official candidate of a registered or
accredited political party dies, withdraws or is disqualified for any
cause, only a person belonging to, and certified by the same
political party may file a certificate of candidacy to replace the
candidate who died, withdrew or was disqualified. The substitute
candidate nominated by the political party concerned may file his
certificate of candidacy for the office affected in accordance with
the preceding sections not later than mid-day of the election. If
the death, withdrawal or disqualification should occur between
the day before the election and mid-day of election day, said
certificate may be filed with any board of election inspectors in
the political subdivision where he is a candidate or, in the case of
candidates to be voted by the entire electorate of the country,
with the Commission.
Private respondent argues that inasmuch as the barangay
election is non-partisan, there can be no substitution because
there is no political party from which to designate the substitute.
Such an interpretation, aside from beingnon sequitur, ignores the
purpose of election laws which is to give effect to, rather than
frustrate, the will of the voters.12 It is a solemn duty to uphold
the clear and unmistakable mandate of the people. It is wellsettled that in case of doubt, political laws must be so construed
as to give life and spirit to the popular mandate freely expressed
through the ballot.13
Contrary to respondents claim, the absence of a specific
provision governing substitution of candidates in barangay
elections can not be inferred as a prohibition against said
substitution. Such a restrictive construction cannot be read into
the law where the same is not written. Indeed, there is more
reason to allow the substitution of candidates where no political
parties are involved than when political considerations or party
affiliations reign, a fact that must have been subsumed by law.
Private respondent likewise contends that the votes in
petitioners favor can not be counted because she did not file any
certificate of candidacy. In other words, he was the only
candidate for Barangay Chairman. His claim is refuted by the
Memorandum of the COMELEC Law Department as well as the
assailed Resolution No. 5217, wherein it indubitably appears that
petitioners letter-request to be allowed to run as Barangay
Chairman of Sto. Tomas in lieu of her late husband was treated
as a certificate of candidacy.14
To reiterate, it was petitioner who obtained the plurality of votes
in the contested election. Technicalities and procedural niceties
in election cases should not be made to stand in the way of the
true will of the electorate. Laws governing election contests must
be liberally construed to the end that the will of the people in the

11

choice of public officials may not be defeated by mere technical


objections.15
Election contests involve public interest, and technicalities and
procedural barriers must yield if they constitute an obstacle to
the determination of the true will of the electorate in the choice of
their elective officials. The Court frowns upon any interpretation
of the law that would hinder in any way not only the free and
intelligent casting of the votes in an election but also the correct
ascertainment of the results.16
WHEREFORE, in view of the foregoing, the instant petition is
GRANTED. The assailed Resolution No. 5217 of the
Commission on Elections, insofar as it denied due course to
petitioners certificate of candidacy, is declared NULL and VOID.
The proclamation of respondent Remegio L. Placido as
Barangay Chairman of Sto. Tomas, San Jacinto, Pangasinan is
SET ASIDE, and the Board of Canvassers of the said Barangay
is ORDERED to proclaim petitioner as the duly elected Barangay
Chairman thereof.
SO ORDERED.

SULIGUIN vs. COMELEC (485 SCRA 219, G.R. No. 166046,


4
March 23, 2006)

This is a Petition for Certiorari under Rule 65 of the Revised


Rules of Court seeking to reverse the Resolution1 of the
Commission on Elections (Comelec) En Banc in SPC No. 04-209
dated November 18, 2004 which denied petitioner Margarito
Suliguins motion for reconsideration of the July 21, 2004
Resolution2 of the Comelecs First Division. The Comelec
nullified his proclamation as the 8th Sangguniang Bayan
member of Nagcarlan, Laguna.

The antecedents are as follows:

Petitioner Margarito Suliguin was one of the candidates for the


Sangguniang Bayan of Nagcarlan, Laguna during the May 10,
2004 elections. At around 6:00 p.m. on said date, respondent
Municipal Board of Canvassers (MBOC) convened to canvass
the votes for all the candidates. Petitioner received 6,605 votes
while respondent Ecelson Sumague received 6,647 votes.
However, in the Statement of Votes (SOV) covering Precincts 1A
to 19A, Sumague appears to have received only 644 votes
when, in fact, he received 844 votes. The MBOC failed to notice
the discrepancy and proclaimed the winning candidates at
around 7:00 p.m. of May 13, 2004. Petitioner was proclaimed as
the 8th Sangguniang Bayan member of Nagcarlan, Laguna,
garnering a total of 6,605 votes.3

Thereafter, Sumague requested for a recomputation of the votes


received by him and Suliguin in a Letter4 dated May 15, 2004, it
appearing that there was a mistake in adding the figures in the
Certificate of Canvass of votes. He pointed out that he officially
garnered 6,647 votes, as against petitioners 6,605 votes.

Election Laws
The MBOC summoned petitioner and respondent Sumague to a
conference. Upon review, the MBOC discovered that it had,
indeed, failed to credit respondent Sumague his 200 votes from
Precincts 1A to 19A, and that with his 6,647 votes, he should
have been proclaimed as the 8th Sangguniang Bayan member
of Nagcarlan, Laguna, instead of petitioner Suliguin.

On May 26, 2004, the MBOC filed before the Comelec a


"Petition to Correct Entries Made in the Statement of Votes" for
Councilor. The error was attributed to extreme physical and
mental fatigue which the members of the board experienced
during the election and the canvassing of votes.

In the meantime, on June 9, 2004, petitioner took his oath of


office before Judge Renato B. Bercades.5

On July 21, 2004, the Comelec (First Division) issued a


Resolution6 granting the petition of the MBOC. The Commission
nullified the proclamation of petitioner Suliguin as the 8th
Sangguniang Bayan member of Nagcarlan, Laguna during the
May 10, 2004 National and Local Elections "for being based on
an erroneous computation of votes." It then ordered the MBOC
of Nagcarlan, Laguna to reconvene and effect the necessary
corrections in the SOV, and forthwith proclaim Sumague as the
8th duly elected Sangguniang Bayan member of Nagcarlan,
Laguna.7

Petitioner moved for the reconsideration of the resolution but the


Comelec En Banc denied the motion on November 18, 2004;
hence, this petition. Petitioner alleges that respondent
Commission committed grave abuse of discretion amounting to
lack or excess of jurisdiction in ruling against him. In support of
his petition, he alleges that:

4.1 THE "PETITION TO CORRECT ENTRIES MADE IN THE


STATEMENT OF VOTES FOR COUNCILOR, NAGCARLAN,
LAGUNA" WAS UNDISPUTEDLY FILED OUT OF TIME, and

4.2 "THE PETITION TO CORRECT ENTRIES MADE IN THE


STATEMENT OF VOTES FOR COUNCILOR, NAGCARLAN,
LAGUNA" WAS FILED BY THE MUNICIPAL BOARD OF
CANVASSERS IN DEFIANCE OF EXISTING COMELEC
RULES AND REGULATIONS AND WAS OBVIOUSLY BIAS IN
FAVOR OF PRIVATE RESPONDENT CANDICATE ECELSON
C. SUMAGUE.8

Petitioner argues that pursuant to Sections 35,9 36(c) and (f)10


of Comelec Resolution No. 6669 (General Instructions for
Municipal/City/Provincial and District Boards of Canvassers in
Connection with the May 10, 2004 Elections), the MBOC should
not have entertained the letter-request of respondent Sumague
as it was filed only on May 17, 2004, or four (4) days after the
canvassing of votes was terminated and after he (petitioner) was
proclaimed winner as the 8th Sangguniang Bayan member of
Nagcarlan, Laguna. Furthermore, respondent Sumague never
entered any objection during the proceedings of the canvassing
of votes. The MBOC itself filed the "Petition to Correct Entries
Made in the Statement of Votes" before the Comelec only on
May 26, 2004, 13 days after the canvassing of votes was
terminated. Petitioner maintains that the Comelec should have
denied the petition, since according to the Revised Comelec

12

Rules, it should have been filed not later than five (5) days
following the date of the proclamation.

Petitioner likewise questions the personality of the MBOC itself


to file the petition before the Comelec. He further argues that
upon the proclamation of the winning candidates in the election,
the MBOC adjourns sine die and becomes functus officio.

The issue is whether or not respondent Comelec erred in


granting the petition of the MBOC to nullify petitioners
proclamation as the 8th member of the Sangguniang Bayan in
Nagcarlan, Laguna.

The petition is bereft of merit.

In an election case, the Comelec is mandated to ascertain by all


means within its command who the real candidate elected by the
electorate is. The Court frowns upon any interpretation of the law
or the rules that would hinder in any way not only the free and
intelligent casting of the votes in an election but also the correct
ascertainment of the results.11 In the case at bar, the simple
mathematical procedure of adding the total number of votes
garnered by respondent Sumague as appearing in the Statement
of Votes submitted to the Comelec would readily reveal the result
that he has forty-two (42) votes more than petitioner. Such result
would, in effect, dislodge petitioner from said post, and entitle
respondent Sumague to occupy the eighth and last seat of the
Sangguniang Bayan of Nagcarlan, Laguna. Petitioner himself
never disputed the discrepancy in the total number of votes
garnered by respondent Sumague, and instead questioned the
personality of the MBOC to file the petition and insisted that such
petition was not filed on time.

Sections 312 and 413 of Rule 1 of the Comelec Rules of


Procedure explicitly provide that such rules may be "liberally
construed" in the interest of justice. Indeed, the Comelec has the
discretion to liberally construe its rules and, at the same time,
suspend the rules or any portion thereof in the interest of
justice.14 Disputes in the outcome of elections involve public
interest; as such, technicalities and procedural barriers should
not be allowed to stand if they constitute an obstacle to the
determination of the true will of the electorate in the choice of
their elective officials. Laws governing such disputes must be
liberally construed to the end that the will of the people in the
choice of public officials may not be defeated by mere technical
objections.15

What is involved in the present petition is the correction of a


manifest error in reflecting the actual total number of votes for a
particular candidate. Section 32, subparagraph 5 of Comelec
Resolution No. 6669 includes mistake in the addition of the votes
of any candidate as a manifest error.16 As correctly cited by the
Comelec,17 a manifest clerical error is "one that is visible to the
eye or obvious to the understanding and is apparent from the
papers to the eye of the appraiser and collector, and does not
include an error which may, by evidence dehors the record be
shown to have been committed."

The MBOC sought relief from the Comelec to reflect the true
winner elected by the voting public, to occupy the eighth position

Election Laws
as member of the Sangguniang Bayan of Nagcarlan, Laguna. In
Carlos v. Angeles,18 the Court had the occasion to declare:

In this jurisdiction, an election means "the choice or selection of


candidates to public office by popular vote" through the use of
the ballot, and the elected officials of which are determined
through the will of the electorate. "An election is the embodiment
of the popular will, the expression of the sovereign power of the
people." "Specifically, the term election, in the context of the
Constitution, may refer to the conduct of the polls, including the
listing of voters, the holding of the electoral campaign, and the
casting and counting of votes." The winner is the candidate who
has obtained a majority or plurality of valid votes cast in the
election. "Sound policy dictates that public elective offices are
filled by those who receive the highest number of votes cast in
the election for that office. For, in all republican forms of
government the basic idea is that no one can be declared
elected and no measure can de declared carried unless he or it
receives a majority or plurality of the legal votes cast in the
election."19

We quote, with approval, the ruling of the Comelec (First


Division) granting the petition of the MBOC:

A careful perusal of the records show that there was, indeed, an


honest error committed by petitioner MBOC in the computation
of votes for candidate Ecelson Sumague which resulted in the
erroneous proclamation of respondent as one of the winners for
the said office.

"A manifest clerical error is one that is visible to the eye or


obvious to the understanding and is apparent from the papers to
the eye of the appraiser and collector, and does not include an
error which may, by evidence dehors the record be shown to
have been committed."

The contention of respondent that the instant petition should be


dismissed for being filed out of time cannot be given merit
because his proclamation was flawed. It must be stressed that "a
proclamation based on faulty tabulation of votes is flawed, and a
petition to correct errors in tabulation under Section 7, Rule 27 of
the COMELEC Rules of Procedure, even if filed out of time, may
be considered, so as not to thwart the proper determination and
resolution of the case on substantial grounds and to prevent a
stamp of validity on a palpably void proclamation based on an
erroneous tabulation of votes."

Furthermore, "where the proclamation is flawed because it was


based on a clerical error or mathematical mistake in the addition
of votes and not through the legitimate will of the electorate,
there can be no valid proclamation to speak of and the same can
be challenged even after the candidate has assumed office."

There is no showing that petitioner MBOC acted with manifest


bias and committed a grave abuse of discretion. "Grave abuse of
discretion implies such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction, or where the
power is exercised in an arbitrary or despotic manner by reason
of passion or personal hostility which must be so patent and
gross as to amount to an invasion of positive duty or to a virtual
refusal to perform the duty enjoined or to act at all in

13

contemplation of law." Petitioner MBOC is merely doing its


function that is mandated by law to canvass votes in the
election returns submitted to it in due form, adding or compiling
the votes cast for each candidate as shown in the face of such
returns and eventually proclaim the winning candidates.
Respondent miserably failed to prove that petitioner exhibited
manifest bias thereby thwarting his chances of winning the last
slot for Sangguniang Bayan Member. "Absent a strong showing
to the contrary, the court must accept the presumption of
regularity in the performance of official duty and strong evidence
is necessary to rebut this presumption."

Likewise, it cannot be said that petitioner MBOC violated the


sanctity of the ballots. Unlike the Board of Election Inspectors
which counts the votes from the precinct levels, the MBOC
computes the votes as appeared in the election returns.

Finally, a subsequent annulment of the proclamation of the


respondent does not constitute a clear violation of his right. In
the first place, there is no valid proclamation to speak of. He was
not elected by a majority or plurality of voters. His alleged right
was based on an erroneous proclamation. By any mathematical
formulation, the respondent cannot be construed to have
obtained such plurality of votes; otherwise, it would be sheer
absurdity to proclaim a repudiated candidate as the choice of the
voters. "Where a proclamation is null and void, the proclamation
is no proclamation at all and the proclaimed candidates
assumption of office cannot deprive the COMELEC of the power
to make such declaration a nullity." Respondent also cannot
claim that he was denied of his right to due process of law since
he was given the opportunity to be heard. He was duly notified
by petitioner MBOC of the erroneous computation which resulted
in his proclamation and was afforded the opportunity to be heard
by this Commission.

"The COMELEC exercises immediate supervision and control


over the members of the Boards of Election Inspectors and
Canvassers. Its statutory power of supervision and control
includes the power to revise, reverse or set aside the action of
the boards, as well as to do what boards should have done, even
if questions relative thereto have not been elevated to it by an
aggrieved party, for such power includes the authority to initiate
motu proprio or by itself steps or actions that may be required
pursuant to law."20

Petitioner posits that the Comelecs reliance in the ruling of this


Court in Bince, Jr. v. Commission on Elections21 is misplaced
since, unlike the present petition, petitioner therein was an
affected candidate who filed his petition on time.

The argument of petitioner does not persuade. The Court, in


Bince, Jr. v. Commission on Elections,22 declared that:

Assuming for the sake of argument that the petition was filed out
of time, this incident alone will not thwart the proper
determination and resolution of the instant case on substantial
grounds. Adherence to a technicality that would put a stamp of
validity on a palpably void proclamation, with the inevitable result
of frustrating the peoples will cannot be countenanced. In Benito
v. COMELEC, we categorically declared that:

Election Laws
x x x Adjudication of cases on substantive merits and not on
technicalities has been consistently observed by this Court. In
the case of Juliano vs. Court of Appeals (20 SCRA 808) cited in
Duremdes v. Commission on Elections (178 SCRA 746), this
Court had the occasion to declare that:

Well-settled is the doctrine that election contests involve public


interest, and technicalities and procedural barriers should not be
allowed to stand if they constitute an obstacle to the
determination of the true will of the electorate in the choice of
their elective officials. And also settled is the rule that laws
governing election contests must be liberally construed to the
end that the will of the people in the choice of public officials may
not be defeated by mere technical objections (Gardiner v.
Romulo, 26 Phil. 521; Galang v. Miranda, 35 Phil. 269; Jalandoni
v. Sarcon, G.R. No. L-6496, January 27, 1962; Macasunding v.
Macalaang, G.R. No. L-22779, March 31, 1965; Cauton v.
Commission on Elections, G.R. No. L-25467, April 27, 1967). In
an election case, the court has an imperative duty to ascertain by
all means within its command who is the real candidate elected
by the electorate. (Ibasco v. Ilao, G.R. No. L-17512, December
29, 1960). x x x (Juliano vs. Court of Appeals, supra, pp. 818819). (Italics ours)

In the later case of Rodriguez v. Commission on Elections (119


SCRA 465), this doctrine was reiterated and the Court went on to
state that:

Since the early case of Gardiner v. Romulo (26 Phil. 521), this
Court has made it clear that it frowns upon any interpretation of
the law or the rules that would hinder in any way not only the free
and intelligent casting of the votes in an election but also the
correct ascertainment of the results. This bent or disposition
continues to the present. (Id., at p. 474).

The same principle still holds true today. Technicalities of the


legal rules enunciated in the election laws should not frustrate
the determination of the popular will.

Undoubtedly therefore, the only issue that remains unresolved is


the allowance of the correction of what are purely mathematical
and/or mechanical errors in the addition of the votes received by
both candidates. It does not involve the opening of ballot boxes;
neither does it involve the examination and/or appreciation of
ballots. The correction sought by private respondent and
respondent MBCs of Tayug and San Manuel is correction of
manifest mistakes in mathematical addition. Certainly, this only
calls for a mere clerical act of reflecting the true and correct
votes received by the candidates by the MBCs involved. In this
case, the manifest errors sought to be corrected involve the
proper and diligent addition of the votes in the municipalities of
Tayug and San Manuel, Pangasinan.23

The Court made a similar pronouncement in Tatlonghari v.


Commission on Elections,24 to wit:

The argument is devoid of merit. For one thing, records indicate


that respondents assumption of office was effected by a clerical
error or simple mathematical mistake in the addition of votes and
not through the legitimate will of the electorate. Thus,
respondents proclamation was flawed right from the very

14

beginning. Having been based on a faulty tabulation, there can


be no valid proclamation to speak of insofar as respondent
Castillo is concerned. As this Court once said:

"x x x Time and again, this Court has given its imprimatur on the
principle that Comelec is with authority to annul any canvass and
proclamation which was illegally made. The fact that a candidate
proclaimed has assumed office, we have said, is no bar to the
exercise of such power. It, of course, may not be availed of
where there has been a valid proclamation. Since private
respondents petition before the Comelec is precisely directed at
the annulment of the canvass and proclamation, we perceive
that inquiry into this issue is within the area allocated by the
Constitution and law to Comelec.

xxx

"We have but to reiterate the oft-cited rule that the validity of a
proclamation may be challenged even after the irregularly
proclaimed candidate has assumed office.

xxx

"It is, indeed, true that, after proclamation, the usual remedy of
any party aggrieved in an election is to be found in an election
protest. But that is so only on the assumption that there has
been a valid proclamation. Where as in the case at bar the
proclamation itself is illegal, the assumption of office cannot in
any way affect the basic issues." (Aguam v. Commission on
Elections, 23 SCRA 883 [1968]; cited in Agbayani v. Commission
on Elections, 186 SCRA 484 [1990]).25

Thus, the Comelec was correct in annulling the proclamation of


petitioner for being based on an erroneous computation of votes.
As the Court declared in Espidol v. Commission on Elections,26
where the proclamation is null and void, the proclaimed
candidates assumption of office cannot deprive the Commission
the power to declare such proclamation a nullity. We
emphasized that a defeated candidate cannot be deemed
elected to the office.27

In fine, the Comelec did not commit grave abuse of discretion in


annulling the proclamation of petitioner. In a special civil action
for certiorari, the burden is on the part of petitioner to prove not
merely reversible error, but grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of the public
respondent issuing the impugned order. Grave abuse of
discretion means a capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction. Mere abuse of
discretion is not enough, it must be so grave as when the power
is exercised in an arbitrary or despotic manner by reason of
passion or personal hostility, and must be so patent and so gross
as to amount to an evasion of a positive duty or to a virtual
refusal to perform the duty enjoined or to act at all in
contemplation of law.28

To the credit of the MBOC, when it realized that it made a


mistake in computing the total number of votes for respondent
Sumague, it took swift action and called the attention of the

Election Laws
Comelec by filing the Petition to Correct Entries Made in the
Statement of Votes for Councilor.

IN LIGHT OF ALL THE FOREGOING, the Resolutions of the


Commission on Elections in SPC No. 04-209 dated July 21,
2004 and November 18, 2004 are AFFIRMED. The Status Quo
Order issued by the Court dated January 11, 2005 is LIFTED.

SO ORDERED.

PACANAN vs. COMELEC (G.R. No. 186224, August 25, 2009,


5
597 SCRA 189)

Before the Court is a petition for certiorari which seeks to set


aside 1) the Order1 dated March 17, 2008 of the Commission on
Elections (Comelec) First Division and 2) the Resolution2 dated
January 21, 2009 of the Comelec En Banc dismissing petitioner
Constancio D. Pacanan, Jr.s appeal from the Decision3 of the
Regional Trial Court (RTC), Branch 27, Catbalogan, Samar, in
Election Case No. 07-1, which declared private respondent
Francisco M. Langi, Sr. as the winning Mayor of Motiong, Samar.

In the Order of March 17, 2008, the Comelec First Division


dismissed the appeal for failure to pay the correct appeal fee as
prescribed by the Comelec Rules of Procedure within the fiveday reglementary period.

In the assailed Resolution dated January 21, 2009, the Comelec


En Banc denied petitioners motion for reconsideration, declaring
that the Comelec did not acquire jurisdiction over the appeal
because of the non-payment of the appeal fee on time, and that
the Comelec First Division was correct in dismissing the said
appeal.

The antecedent facts are as follows:

Petitioner Constancio D. Pacanan, Jr. and private respondent


Francisco M. Langi, Sr. were candidates for mayor in the
municipality of Motiong, Samar during the May 14, 2007
elections. After the canvassing of votes, the Municipal Board of
Canvassers (MBC) of Motiong, Samar proclaimed petitioner as
the duly elected mayor, having garnered a total of 3,069 votes
against private respondents 3,066 votes.

Thereafter, private respondent filed with the RTC a Protest4


dated May 25, 2007 which was docketed as Election Case No.
07-1, contesting the results of the elections in ten (10) of the
forty-nine (49) precincts in Motiong, Samar, and alleging acts of
violence and intimidation and other election irregularities in the
appreciation of the votes by the MBC. Thereafter, petitioner filed
his Verified Answer with Counter-Protest5 dated June 4, 2007,
asserting that private respondents allegations of threat and
intimidation, fraud and other irregularities in the conduct of
elections were mere allegations unsupported by any
documentary evidence. Petitioner also disputed the election
results with respect to seven (7) precincts.
5

15

On January 7, 2008, the RTC rendered a decision6 in Election


Case 07-1, which declared private respondent as the winner in
the May 14, 2007 mayoralty race for Motiong, Samar with a
plurality of six (6) votes, viz:

Wherefore, in view of the foregoing Protestant Francisco M.


Langi, Sr. having obtained the over all total votes of 3,074 and
the Protestees 3,068 total and final votes is declared the winner
in the Mayoralty contest in Motiong, Samar with a plurality of (6)
votes. Therefore the proclamation on May 17, 2007 is hereby
annulled and declared Francisco Langi, Sr. y Maceren as the
duly elected Mayor of Motiong, Samar. The winner is awarded
the amount of P 32,510 as actual damages and no evidence
aliunde for damages for the court to award. xxx

On January 10, 2008, petitioner filed a notice of appeal and paid


P3,000.00 appeal fee per Official Receipt No. 6822663 before
the RTC, Branch 27, Catbalogan, Samar. He also appealed the
RTC decision dated January 7, 2008 to the Comelec which
docketed the case as EAC No. A-13-2008. Out of the P3,000.00
appeal fee required by Section 3, Rule 40 of the Comelec Rules
of Procedure, petitioner only paid the amount of P1,000.00 (plus
P200.00 to cover the legal research/bailiff fees) to the Cash
Division of the Comelec, per Official Receipt No. 0510287. The
said payment was made on February 14, 2008.7

On March 17, 2008, the Comelec First Division issued an Order8


dismissing the appeal, viz.:

Pursuant to Sections 3 and 4, Rule 40 of the COMELEC Rules of


Procedure which provide for the payment of appeal fee in the
amount of P3,000.00 within the period to file the notice of appeal,
and Section 9 (a), Rule 22 of the same Rules which provides that
failure to pay the correct appeal fee is a ground for the dismissal
of the appeal, the Commission (First Division) RESOLVED as it
hereby RESOLVES to DISMISS the instant case for ProtesteeAppellants failure to pay the correct appeal fee as prescribed by
the Comelec Rules of Procedure within the five-(5)-day
reglementary period.

SO ORDERED.

On March 28, 2008, petitioner filed a Motion for


Reconsideration9 which the Comelec En Banc denied in the
Resolution10 dated January 21, 2009, declaring that the appeal
was not perfected on time for non-payment of the complete
amount of appeal fee and for late payment as well. The Comelec
En Banc held that the Comelec did not acquire jurisdiction over
the appeal because of the non-payment of the appeal fee on
time. Thus, the Comelec First Division correctly dismissed the
appeal.

Hence, the instant petition for certiorari raising the following


grounds:

The respondent COMELEC committed grave abuse of discretion


amounting to lack or excess of jurisdiction in holding that the
correct appeal fee was not paid on time.

Election Laws

The respondent COMELEC committed grave abuse of discretion


amounting to lack or excess of jurisdiction in failing to consider
that assuming that the correct appeal fee was not paid on time,
the alleged non-payment of the correct appeal fee is not in
anyway attributable to herein petitioner.

The respondent COMELEC committed grave abuse of discretion


amounting to lack or excess of jurisdiction in failing to consider
that assuming that the correct appeal fee was not paid on time,
there are highly justifiable and compelling reasons to resolve the
subject case on the merits in the interest of justice and public
interest.

Petitioner further claims that he paid a total of P4,215.00 for his


appeal, as follows:

a. To RTC on January 10, 2008 ------

P3,000.00

16

issues presented, it must first be shown that it has acquired the


requisite jurisdiction over the subject matter pursuant to the
initiatory acts and procedural compliance set as conditions
precedent.

Respondent also argues that the negligence and mistakes of


petitioners counsel bind petitioner. He then reiterates the cases
where this Court held that the non-payment or insufficiency of
payment of filing fees is a valid ground for the dismissal of the
appeal and that the subsequent full payment thereof does not
cure the jurisdictional defect.

We grant the petition.

Section 3, Rule 22 (Appeals from Decisions of Courts in Election


Protest Cases) of the Comelec Rules of Procedure mandates
that the notice of appeal must be filed within five (5) days after
promulgation of the decision, thus:

10.00
5.00
TOTAL P3,015.00
b. To Comelec on February 14, 2008 --

P1,000.00

SEC. 3. Notice of Appeal. Within five (5) days after


promulgation of the decision of the court, the aggrieved party
may file with said court a notice of appeal, and serve a copy
thereof upon the attorney of record of the adverse party.

50.00
150.00
TOTAL P1,200.00
Petitioner submits that it is incumbent upon the RTC to transmit
to the Comelec the entire P3,000.00 appeal fee that he paid on
January 10, 2008. Petitioner also advances another
interpretation of the Comelec Rules that the RTC is under
obligation to remit to the Comelec the P2,000.00 representing
the excess amount of the P1,000.00 appeal fee. Thus, petitioner
claims that he must be deemed to have complied, in full or at
least substantially, with the Comelec Rules on the payment of
appeal fees.

Petitioner maintains that the alleged non-payment of the correct


appeal fee is not due to his own fault or negligence. He claims
that the laws on appeals in election protest cases are not yet
well-established, thus, he must not be made to suffer for an
oversight made in good faith. The Resolution No. 8486 of July
15, 2008 adopted by the Comelec to clarify the rules on
compliance with the required appeal fees in election cases
should not be applied retroactively to the subject election protest.

Lastly, petitioner invokes liberality in the application of the


election law. He asserts that the popular will of the people
expressed in the election of public officers should not be
defeated by reason of sheer technicalities. Petitioner argues that
the true will of the people of Motiong in the May 14, 2007
elections should be determined by ordering the Comelec to give
due course to his appeal and to resolve the same on the merits.

In his Comment, respondent Langi, Sr. states that the petition


was just a mere rehash of the Motion for Reconsideration that
petitioner filed with the Comelec En Banc. Respondent maintains
that for the Comelec to exercise its authority to administer
proceedings, grant leniency, issue orders, and pass judgment on

Moreover, Sections 3 and 4, Rule 40 of the Comelec rules


require the payment of appeal fees in appealed election protest
cases, the amended amount of which was set at P3,200.00 in
Comelec Minute Resolution No. 02-0130,11 to wit:

SEC. 3. Appeal Fees. The appellant in election cases shall pay


an appeal fee as follows:

(a) For election cases appealed


Courts.P3,000.00 (per appellant)

from

Regional

Trial

(b) For election cases appealed from courts of limited


jurisdiction..P3,000.00 (per appellant)

SEC. 4. Where and When to Pay. The fees prescribed in


Sections 1, 2 and 3 hereof shall be paid to, and deposited with,
the Cash Division of the Commission within a period to file the
notice of appeal.

Sections 8 and 9, Rule 14 of A.M. No. 07-4-15-SC12 also


provide the procedure for instituting an appeal and the required
appeal fees to be paid for the appeal to be given due course, to
wit:

SEC. 8. Appeal. An aggrieved party may appeal the decision to


the Commission on Elections, within five days after
promulgation, by filing a notice of appeal with the court that
rendered the decision, with copy served on the adverse counsel
or party if not represented by counsel.

Election Laws
SEC. 9. Appeal fee. The appellant in an election contest shall
pay to the court that rendered the decision an appeal fee of One
Thousand Pesos (P1,000.00), simultaneously with the filing of
the notice of appeal.

A reading of the foregoing provisions reveals that two different


tribunals (the trial court that rendered the decision and the
Comelec) require the payment of two different appeal fees for
the perfection of appeals of election cases. This requirement in
the payment of appeal fees had caused much confusion, which
the Comelec addressed through the issuance of Comelec
Resolution No. 8486.13 Thus, to provide clarity and to erase any
ambiguity in the implementation of the procedural rules on the
payment of appeal fees for the perfection of appeals of election
cases, the resolution provides:

WHEREAS, the Commission on Elections is vested with


appellate jurisdiction over all contests involving elective
municipal officials decided by trial courts of general jurisdiction,
and those involving elective barangay officials, decided by trial
courts of limited jurisdiction;

WHEREAS, Supreme Court Administrative Order No. 07-4-15


(Rules of Procedure in Election Contests Before the Courts
Involving Elective Municipal and Barangay Officials) promulgated
on May 15, 2007 provides in Sections 8 and 9, Rule 14 thereof
the procedure in instituting the appeal and the required appeal
fees to be paid for the appeal to be given due course, to wit:

Section 8. Appeal. An aggrieved party may appeal the decision


to the Commission on Elections, within five days after
promulgation, by filing a notice of appeal with the court that
rendered the decision, with copy served on the adverse counsel
or party if not represented by counsel.

Section 9. Appeal Fee. The appellant in an election contest


shall pay to the court that rendered the decision an appeal fee of
One Thousand Pesos (P1,000.00), simultaneously with the filing
of the notice of appeal.

17

WHEREFORE, in view of the foregoing, the Commission hereby


RESOLVES to DIRECT as follows:

1. That if the appellant had already paid the amount of P1,000.00


before the Regional Trial Court, Metropolitan Trial Court,
Municipal Trial Court or lower courts within the five-day period,
pursuant to Section 9, Rule 14 of the Rules of Procedure in
Election Cases Before the Courts Involving Elective Municipal
and Barangay Officials (Supreme Court Administrative Order No.
07-4-15) and his Appeal was given due course by the Court, said
appellant is required to pay the Comelec appeal fee of P3,200.00
at the Commissions Cash Division through the Electoral
Contests Adjudication Department (ECAD) or by postal money
order payable to the Commission on Elections through ECAD,
within a period of fifteen days (15) from the time of the filing of
the Notice of Appeal with the lower court. If no payment is made
within the prescribed period, the appeal shall be dismissed
pursuant to Section 9(a) of Rule 22 of the COMELEC Rules of
Procedure, which provides:

Sec. 9. Grounds for Dismissal of Appeal. The appeal may be


dismissed upon motion of either party or at the instance of the
Commission on any of the following grounds:

(a) Failure of the appellant to pay the correct appeal fee; xxx

2. That if the appellant failed to pay the P1,000.00 appeal fee


with the lower court within the five (5) day period as prescribed
by the Supreme Court New Rules of Procedure but the case was
nonetheless elevated to the Commission, the appeal shall be
dismissed outright by the Commission, in accordance with the
aforestated Section 9(a) of Rule 22 of the Comelec Rules of
Procedure.

The Education and Information Department is directed to cause


the publication of this resolution in two (2) newspapers of general
circulation.

This resolution shall take effect on the seventh day following its
publication.
WHEREAS, payment of appeal fees in appealed election protest
cases is also required in Section 3, Rule 40 of the COMELEC
Rules of Procedure the amended amount of which was set at
P3,200.00 in COMELEC Minute Resolution No. 02-0130 made
effective on September 18, 2002.

SO ORDERED.

Our ruling in the very recent case of Aguilar v. Comelec,14


quoted hereunder, squarely applies to the instant case:
WHEREAS, the requirement of these two appeal fees by two
different jurisdictions had caused confusion in the
implementation by the Commission on Elections of its procedural
rules on payment of appeal fees for the perfection of appeals of
cases brought before it from the Courts of General and Limited
Jurisdictions.

WHEREAS, there is a need to clarify the rules on compliance


with the required appeal fees for the proper and judicious
exercise of the Commissions appellate jurisdiction over election
protest cases.

Sections 8 and 9, Rule 14 of A.M. No. 07-4-15-SC provide for


the following procedure in the appeal to the COMELEC of trial
court decisions in election protests involving elective municipal
and barangay officials:

SEC. 8. Appeal. An aggrieved party may appeal the decision to


the Commission on Elections, within five days after
promulgation, by filing a notice of appeal with the court that
rendered the decision, with copy served on the adverse counsel
or party if not represented by counsel.

Election Laws
SEC. 9. Appeal fee. The appellant in an election contest shall
pay to the court that rendered the decision an appeal fee of One
Thousand Pesos (P1,000.00), simultaneously with the filing of
the notice of appeal.

Section 8 was derived from Article IX-C, Section 2(2) of the


Constitution and Rule 40, Section 3, par. 1 and Rule 41, Section
2(a) of the Rules of Court. Section 9 was taken from Rule 141,
Sections 7(1) and 8(f) of the Rules of Court.

It should be noted from the afore-quoted sections of the Rule


that the appeal fee of P1,000.00 is paid not to the COMELEC but
to the trial court that rendered the decision. Thus, the filing of the
notice of appeal and the payment of the P1,000.00 appeal fee
perfect the appeal, consonant with Sections 10 and 11 of the
same Rule. Upon the perfection of the appeal, the records have
to be transmitted to the Electoral Contests Adjudication
Department of the COMELEC within 15 days. The trial court may
only exercise its residual jurisdiction to resolve pending incidents
if the records have not yet been transmitted and before the
expiration of the period to appeal.

With the promulgation of A.M. No. 07-4-15-SC, the previous rule


that the appeal is perfected only upon the full payment of the
appeal fee, now pegged at P3,200.00, to the COMELEC Cash
Division within the period to appeal, as stated in the COMELEC
Rules of Procedure, as amended, no longer applies.

It thus became necessary for the COMELEC to clarify the


procedural rules on the payment of appeal fees. For this
purpose, the COMELEC issued on July 15, 2008, Resolution No.
8486, which the Court takes judicial notice of. The resolution
pertinently reads:

xxx

xxx

xxx

The foregoing resolution is consistent with A.M. No. 07-4-15-SC


and the COMELEC Rules of Procedure, as amended. The
appeal to the COMELEC of the trial courts decision in election
contests involving municipal and barangay officials is perfected
upon the filing of the notice of appeal and the payment of the
P1,000.00 appeal fee to the court that rendered the decision
within the five-day reglementary period. The non-payment or the
insufficient payment of the additional appeal fee of P3,200.00 to
the COMELEC Cash Division, in accordance with Rule 40,
Section 3 of the COMELEC Rules of Procedure, as amended,
does not affect the perfection of the appeal and does not result in
outright or ipso facto dismissal of the appeal. Following, Rule 22,
Section 9 (a) of the COMELEC Rules, the appeal may be
dismissed. And pursuant to Rule 40, Section 18 of the same
rules, if the fees are not paid, the COMELEC may refuse to take
action thereon until they are paid and may dismiss the action or
the proceeding. In such a situation, the COMELEC is merely
given the discretion to dismiss the appeal or not.

Accordingly, in the instant case, the COMELEC First Division,


may dismiss petitioners appeal, as it in fact did, for petitioners
failure to pay the P3,200.00 appeal fee.

18

Be that as it may, the Court finds that the COMELEC First


Division gravely abused its discretion in issuing the order
dismissing petitioners appeal. The Court notes that the notice of
appeal and the P1,000.00 appeal fee were, respectively, filed
and paid with the MTC of Kapatagan, Lanao del Norte on April
21, 2008. On that date, the petitioners appeal was deemed
perfected. COMELEC issued Resolution No. 8486 clarifying the
rule on the payment of appeal fees only on July 15, 2008, or
almost three months after the appeal was perfected. Yet, on July
31, 2008, or barely two weeks after the issuance of Resolution
No. 8486, the COMELEC First Division dismissed petitioners
appeal for non-payment to the COMELEC Cash Division of the
additional P3,200.00 appeal fee.1avvphi1

Considering that petitioner filed his appeal months before the


clarificatory resolution on appeal fees, petitioners appeal should
not be unjustly prejudiced by COMELEC Resolution No. 8486.
Fairness and prudence dictate that the COMELEC First Division
should have first directed petitioner to pay the additional appeal
fee in accordance with the clarificatory resolution, and if the latter
should refuse to comply, then, and only then, dismiss the appeal.
Instead, the COMELEC First Division hastily dismissed the
appeal on the strength of the recently promulgated clarificatory
resolution which had taken effect only a few days earlier. This
unseemly haste is an invitation to outrage.

The COMELEC First Division should have been more cautious in


dismissing petitioners appeal on the mere technicality of nonpayment of the additional P3,200.00 appeal fee given the public
interest involved in election cases. This is especially true in this
case where only one vote separates the contending parties. The
Court stresses once more that election law and rules are to be
interpreted and applied in a liberal manner so as to give effect,
not to frustrate, the will of the electorate.

WHEREFORE, premises considered, the petition for certiorari is


GRANTED. The July 31, September 4 and October 6, 2008
Orders and the October 16 2008 Entry of Judgment issued by
the COMELEC First Division in EAC (BRGY) No. 211-2008 are
ANNULLED and SET ASIDE. The case is REMANDED to the
COMELEC First Division for disposition in accordance with this
Decision.

SO ORDERED. (Emphasis supplied)

From the foregoing discussion, it is clear that the appeal from the
trial court decision to the Comelec is perfected upon the filing of
the notice of appeal and the payment of the P1,000.00 appeal
fee to the trial court that rendered the decision. With the
promulgation of A.M. No. 07-4-15-SC, the perfection of the
appeal no longer depends solely on the full payment of the
appeal fee to the Comelec.

In the instant case, when petitioner filed his Notice of Appeal and
paid the appeal fee of P3,015.00 to the RTC on January 10,
2008, his appeal was deemed perfected. However, Comelec
Resolution No. 8486 also provides that if the appellant had
already paid the amount of P1,000.00 before the trial court that
rendered the decision, and his appeal was given due course by
the court, said appellant is required to pay the Comelec appeal
fee of P3,200.00 to the Comelecs Cash Division through the
Electoral Contests Adjudication Department (ECAD) or by postal

Election Laws
money order payable to the Comelec, within a period of fifteen
(15) days from the time of the filing of the Notice of Appeal with
the lower court. However, if no payment is made within the
prescribed period, the appeal shall be dismissed pursuant to
Section 9 (a), Rule 22 of the Comelec Rules of Procedure, which
provides:

SEC. 9. Grounds for Dismissal of Appeal. The appeal may be


dismissed upon motion of either party or at the instance of the
Commission on any of the following grounds:

(a) Failure of the appellant to pay the correct appeal fee; xxx

Thus, when petitioners appeal was perfected on January 10,


2008, within five (5) days from promulgation, his non-payment or
insufficient payment of the appeal fee to the Comelec Cash
Division should not have resulted in the outright dismissal of his
appeal. The Comelec Rules provide in Section 9 (a), Rule 22,
that for failure to pay the correct appeal fee, the appeal may be
dismissed upon motion of either party or at the instance of the
Comelec. Likewise, Section 18, Rule 4015 thereof also
prescribes that if the fees are not paid, the Comelec may refuse
to take action on the appeal until the said fees are paid and may
dismiss the action or the proceeding.

Here, petitioner paid P1,200.00 to the Comelec on February 14,


2008. Unfortunately, the Comelec First Division dismissed the
appeal on March 17, 2008 due to petitioners failure to pay the
correct appeal fee within the five-day reglementary period. In
denying petitioners motion for reconsideration, the Comelec En
Banc, in the Resolution dated January 21, 2009, declared that
the Comelec did not acquire jurisdiction over the appeal because
of the non-payment of the appeal fee on time.

However, during the pendency of petitioners Motion for


Reconsideration dated March 27, 2008, the Comelec
promulgated Resolution No. 8486 to clarify the implementation of
the Comelec Rules regarding the payment of filing fees. Thus,
applying the mandated liberal construction of election laws,16
the Comelec should have initially directed the petitioner to pay
the correct appeal fee with the Comelec Cash Division, and
should not have dismissed outright petitioners appeal. This
would have been more in consonance with the intent of the said
resolution which sought to clarify the rules on compliance with
the required appeal fees.

In Barroso v. Ampig, Jr.,17 we ruled, thus:

xxx An election contest, unlike an ordinary civil action, is clothed


with a public interest. The purpose of an election protest is to
ascertain whether the candidate proclaimed by the board of
canvassers is the lawful choice of the people. What is sought is
the correction of the canvass of votes, which was the basis of
proclamation of the winning candidate. An election contest
therefore involves not only the adjudication of private and
pecuniary interests of rival candidates but paramount to their
claims is the deep public concern involved and the need of
dispelling the uncertainty over the real choice of the electorate.
And the court has the corresponding duty to ascertain by all
means within its command who is the real candidate elected by
the people.

19

Moreover, the Comelec Rules of Procedure are subject to a


liberal construction. This liberality is for the purpose of promoting
the effective and efficient implementation of the objectives of
ensuring the holding of free, orderly, honest, peaceful and
credible elections and for achieving just, expeditious and
inexpensive determination and disposition of every action and
proceeding brought before the Comelec. Thus we have declared:

It has been frequently decided, and it may be stated as a general


rule recognized by all courts, that statutes providing for election
contests are to be liberally construed to the end that the will of
the people in the choice of public officers may not be defeated by
mere technical objections. An election contest, unlike an ordinary
action, is imbued with public interest since it involves not only the
adjudication of the private interests of rival candidates but also
the paramount need of dispelling the uncertainty which beclouds
the real choice of the electorate with respect to who shall
discharge the prerogatives of the office within their gift.
Moreover, it is neither fair nor just to keep in office for an
uncertain period one whose right to it is under suspicion. It is
imperative that his claim be immediately cleared not only for the
benefit of the winner but for the sake of public interest, which can
only be achieved by brushing aside technicalities of procedure
which protract and delay the trial of an ordinary action.

WHEREFORE, the petition is granted. The Order dated March


17, 2008 of the Comelec First Division and the Resolution dated
January 21, 2009 of the Comelec En Banc in EAC No. A-132008 are ANNULLED and SET ASIDE. Accordingly, let the case
be REMANDED to the Comelec First Division for further
proceedings, in accordance with the rules and with this
disposition. The Regional Trial Court, Branch 27 of Catbalogan,
Samar is DIRECTED to refund to petitioner Constancio D.
Pacanan, Jr., the amount of Two Thousand Pesos (P2,000.00)
as the excess of the appeal fee per Official Receipt No. 6822663
paid on January 10, 2008.

SO ORDERED.

AGUILAR vs. COMELEC (G.R. No. 185140, June 30, 2009,


6
591 SCRA 491)

This petition for certiorari under Rules 64 and 65, which stems
from pertinent facts and proceedings narrated below, assails the
issuances of the Commission on Elections (COMELEC) in EAC
(BRGY) No. 211-2008.

In the October 2007 barangay elections, petitioner Aguilar won


the chairmanship of Brgy. Bansarvil 1, Kapatagan, Lanao del
Norte, over private respondent Insoy by a margin of one vote.
Not conceding his defeat, Insoy timely instituted a protest
docketed as Election Case No. 516 in the Municipal Trial Court
(MTC) of Kapatagan.1 On April 17, 2008, the MTC rendered its
Decision2 finding Insoy, who, during the revision garnered 265
votes as against Aguilars 264 votes, as the duly elected punong
barangay. The trial court consequently nullified the proclamation
of Aguilar and directed him to vacate the office.

Election Laws
Aggrieved, Aguilar filed on April 21, 2008 his notice of appeal3
and paid to the trial court the appeal fee of P1,000.004 in
accordance with Rule 14, Sections 8 and 9 of the recently
promulgated A.M. No. 07-4-15-SC or the Rules of Procedure in
Election Contests Before the Courts Involving Elective Municipal
and Barangay Officials.5

20

hereof the entire records of this case to the court of origin for its
proper disposition and return to the protestee-appellant the
Postal Money Order representing her motion fee in the amount
of one thousand one hundred pesos (P/1,100.00) pesos.

SO ORDERED.12
When the COMELEC received the records elevated by the trial
court, its First Division issued on July 31, 2008 the first assailed
Order6 which pertinently reads:

Pursuant to Sections 3 and 4, Rule 40 of the COMELEC Rules of


Procedure which provide for the payment of appeal fee in the
amount of P/3,000.00 within the period to file the notice of
appeal, and Section 9(a), Rule 22 of the same Rules, which
provides that failure to pay the correct appeal fee is a ground for
the dismissal of the appeal, the Commission (First Division)
RESOLVED as it hereby RESOLVES to DISMISS the instant
appeal for Protestant-Appellants (sic) failure to pay the appeal
fee as prescribed by the Comelec Rules of Procedure within the
five-(5)-day reglementary period.

SO ORDERED.7

Adversely affected, Aguilar moved for reconsideration, arguing


that the newly promulgated A.M. No. 07-4-15-SC only requires
the payment of P1,000.00 as appeal fee.8 The COMELEC First
Division, however, issued on September 4, 2008 the second
assailed Order9 stating

Acting on the "Motion for Reconsideration" filed by protesteeappellant Jerry B. Aguilar, through registered mail on 13 August
2008 and received by this Commission on 21 August 2008,
seeking reconsideration of this Commissions (First Division)
Order dated 31 July 2008, this Commission (First Division)
RESOLVES to DENY the instant motion for movants (sic) failure
to pay the complete P700.00 motion fee.

SO ORDERED.10

Unperturbed, Aguilar filed another motion for reconsideration,


contending, among others, that the order was null and void
because it was issued in violation of the rule that motions for
reconsideration should be resolved by the COMELEC en banc.
On October 6, 2008, the COMELEC First Division issued the
third assailed Order,11 which reads in part:

Applying suppletorily Section 2, Rule 52 of the Rules of Court,


the second motion for reconsideration filed by protesteeappellant Jerry Aguilar on 25 September 2008 is hereby DENIED
for being a prohibited pleading. And considering that the Motion
for Reconsideration filed by protestee-appellant was denied per
Order dated 4 September 2008 by the Commission (First
Division) for movants failure to pay the complete motion fee, the
Order dated 31 July 2008 is now final and executory.

WHEREFORE, let entry of judgment be issued in the instant


case. The Judicial Records Division-ECAD, this Commission, is
hereby directed to remand within three (3) days from receipt

On October 16, 2008, the COMELEC First Division issued the


Entry of Judgment.13

Faced with imminent ouster from office, petitioner instituted the


instant petition to assail the aforementioned issuances of the
COMELEC First Division.

Readily discernable is that the challenged September 4 and


October 6, 2008 Orders14 were issued not by the COMELEC en
banc but by one of its divisions, the First Division. Settled is the
rule that it is the decision, order or ruling of the COMELEC en
banc which, in accordance with Article IX-A, Section 715 of the
Constitution, may be brought to this Court on certiorari.16 But
this rule should not apply when a division of the COMELEC
arrogates unto itself, and deprives the en banc of the authority to
rule on a motion for reconsideration, as in this case. Further, the
rule is not ironclad; it admits of exceptions as when the decision
or resolution sought to be set aside, even if it were merely a
Division action, is an absolute nullity.17

The invalidity of the September 4 and October 6, 2008 Orders


arises from the very fact that they were issued by a division of
the COMELEC. The Constitution explicitly establishes, in Article
IX-C, Section 3, the procedure for the resolution of election
cases by the COMELEC, thus:

Sec. 3. The Commission on Elections may sit en banc or in two


divisions, and shall promulgate its rules of procedure in order to
expedite disposition of election cases, including pre-proclamation
controversies. All such election cases shall be heard and
decided in division, provided that motions for reconsideration of
decisions shall be decided by the Commission en banc.18

The COMELEC Rules of Procedure,19 complementing the


constitutional provision, also details the course of action to be
undertaken in the event motions for reconsideration are filed;
thus, Rule 19, Sections 5 and 6 provide that

Sec. 5. How Motion for Reconsideration Disposed Of.Upon the


filing of a motion to reconsider a decision, resolution, order or
ruling of a Division, the Clerk of Court concerned shall, within
twenty-four (24) hours from the filing thereof, notify the Presiding
Commissioner. The latter shall within two (2) days thereafter
certify the case to the Commission en banc.

Sec. 6. Duty of Clerk of Court of Commission to Calendar Motion


for Reconsideration.The Clerk of Court concerned shall
calendar the motion for reconsideration for the resolution of the
Commission en banc within ten (10) days from the certification
thereof.20

Election Laws
In this case, petitioners motion for reconsideration of the order
dismissing his appeal was not resolved by the COMELEC en
banc, but by the COMELEC First Division, in obvious violation of
the provisions of the Constitution and the COMELEC Rules of
Procedure. Stated differently, the division, after dismissing
petitioners appeal, arrogated unto itself the en bancs function of
resolving petitioners motion for reconsideration. In Soriano, Jr. v.
Commission on Elections,21 we emphasized the rule that a
motion to reconsider a decision, resolution, order or ruling of a
COMELEC division, except with regard to interlocutory orders,
shall be elevated to the COMELEC en banc. Here, there is no
doubt that the order dismissing the appeal is not merely an
interlocutory, but a final order.22 It was, therefore, incumbent
upon the Presiding Commissioner of the COMELEC First
Division to certify the case to the COMELEC en banc within two
days from notification of the filing of the motion.

This rule should apply whether the motion fee has been paid or
not, as what happened in Olanolan v. Commission on
Elections.23 Indeed, Rule 40, Section 1824 of the COMELEC
Rules of Procedure gives discretion to the COMELEC, in this
case, to the en banc and not to the division, either to refuse to
take action until the motion fee is paid, or to dismiss the action or
proceeding.25

The COMELEC First Divisions unceremonious departure from


this constitutionally mandated procedure in the disposition of
election cases must have brought confusion to the parties, so
much so, that petitioner filed a second motion for reconsideration
raising this issue. Yet, the COMELEC First Division, in the further
assailed October 6, 2008 Order, committed another obvious
error when it again usurped the en bancs authority to resolve
motions for reconsideration.

Being a violation of the Constitution and the COMELEC Rules of


Procedure, the assailed September 4 and October 6, 2008
Orders are null and void. They were issued by the COMELEC
First Division with grave abuse of discretion. By grave abuse of
discretion is meant such capricious and whimsical exercise of
judgment equivalent to lack of jurisdiction. Mere abuse of
discretion is not enough. It must be grave, as when it is
exercised arbitrarily or despotically by reason of passion or
personal hostility. The abuse must be so patent and so gross as
to amount to an evasion of a positive duty or to a virtual refusal
to perform the duty enjoined or to act at all in contemplation of
law.26 Clearly, by arrogating unto itself a power constitutionally
lodged in the Commission en banc, the COMELEC First Division,
in this case, exercised judgment in excess of, or without,
jurisdiction.

However, instead of remanding this case to the COMELEC en


banc for appropriate action on petitioners motion for
reconsideration, we will resolve the propriety of the appeals
dismissal, considering the urgent need for the resolution of
election cases, and considering that the issue has, after all, been
raised in this petition.

Sections 8 and 9, Rule 14 of A.M. No. 07-4-15-SC27 provide for


the following procedure in the appeal to the COMELEC of trial
court decisions in election protests involving elective municipal
and barangay officials:

21

SEC. 8. Appeal. An aggrieved party may appeal the decision


to the Commission on Elections, within five days after
promulgation, by filing a notice of appeal with the court that
rendered the decision, with copy served on the adverse counsel
or party if not represented by counsel.

SEC. 9. Appeal fee. The appellant in an election contest shall


pay to the court that rendered the decision an appeal fee of One
Thousand Pesos (P1,000.00), simultaneously with the filing of
the notice of appeal.

Section 8 was derived from Article IX-C, Section 2(2)28 of the


Constitution and Rule 40, Section 3, par. 129 and Rule 41,
Section 2(a)30 of the Rules of Court.31 Section 9 was taken
from Rule 141,32 Sections 7(l)33 and 8(f)34 of the Rules of
Court.35

It should be noted from the afore-quoted sections of the Rule


that the appeal fee of P1,000.00 is paid not to the COMELEC but
to the trial court that rendered the decision. Thus, the filing of the
notice of appeal and the payment of the P1,000.00 appeal fee
perfect the appeal, consonant with Sections 10 and 11 of the
same Rule. Upon the perfection of the appeal, the records have
to be transmitted to the Electoral Contests Adjudication
Department of the COMELEC within 15 days. The trial court may
only exercise its residual jurisdiction to resolve pending incidents
if the records have not yet been transmitted and before the
expiration of the period to appeal.36

With the promulgation of A.M. No. 07-4-15-SC, the previous rule


that the appeal is perfected only upon the full payment of the
appeal fee, now pegged at P3,200.00, to the COMELEC Cash
Division within the period to appeal, as stated in the COMELEC
Rules of Procedure, as amended,37 no longer applies.

It thus became necessary for the COMELEC to clarify the


procedural rules on the payment of appeal fees. For this
purpose, the COMELEC issued on July 15, 2008, Resolution No.
8486,38 which the Court takes judicial notice of.1avvphi1 The
resolution pertinently reads:

WHEREAS, the Commission on Elections is vested with


appellate jurisdiction over all contests involving elective
municipal officials decided by trial courts of general jurisdiction,
and those involving elective barangay officials, decided by trial
courts of limited jurisdiction;

WHEREAS, Supreme Court Administrative Order No. 07-4-15


(Rules of Procedure in Election Contests Before the Courts
Involving Elective Municipal and Barangay Officials) promulgated
on May 15, 2007 provides in Sections 8 and 9, Rule 14 thereof
the procedure for instituting the appeal and the required appeal
fees to be paid for the appeal to be given due course, to wit:

Section 8. Appeal. - An aggrieved party may appeal the decision


to the Commission on Elections, within five days after
promulgation, by filing a notice of appeal with the court that
rendered the decision, with copy served on the adverse counsel
or party if not represented by counsel.

Election Laws

Section 9. Appeal fee. - The appellant in an election contest shall


pay to the court that rendered the decision an appeal fee of One
Thousand Pesos (P1,000.00), simultaneously with the filing of
the notice of appeal.

22

The Education and Information Department is directed to cause


the publication of this resolution in two (2) newspapers of general
circulation. This resolution shall take effect on the seventh day
following its publication.

SO ORDERED.39
WHEREAS, payment of appeal fees in appealed election protest
cases is also required in Section 3, Rule 40 of the COMELEC
Rules of Procedure the amended amount of which was set at
P3,200.00 in COMELEC Minute Resolution No. 02-0130 made
effective on September 18, 2002.

WHEREAS, the requirement of these two appeal fees by two


different jurisdictions had caused confusion in the
implementation by the Commission on Elections of its procedural
rules on payment of appeal fees for the perfection of appeals of
cases brought before it from the Courts of General and Limited
Jurisdictions.

WHEREAS, there is a need to clarify the rules on compliance


with the required appeal fees for the proper and judicious
exercise of the Commission's appellate jurisdiction over election
protest cases.

WHEREFORE, in view of the foregoing, the Commission hereby


RESOLVES to DIRECT as follows:

1. That if the appellant had already paid the amount of P1,000.00


before the Regional Trial Court, Metropolitan Trial Court,
Municipal Trial Court or lower courts within the five-day period,
pursuant to Section 9, Rule 14 of the Rules of Procedure in
Election Contests Before the Courts Involving Elective Municipal
and Barangay Officials (Supreme Court Administrative Order No.
07-4-15) and his Appeal was given due course by the Court, said
appellant is required to pay the Comelec appeal fee of P3,200.00
at the Commission's Cash Division through the Electoral
Contests Adjudication Department (ECAD) or by postal money
order payable to the Commission on Elections through ECAD,
within a period of fifteen days (15) from the time of the filing of
the Notice of Appeal with the lower court. If no payment is made
within the prescribed period, the appeal shall be dismissed
pursuant to Section 9(a) of Rule 22 of the COMELEC Rules of
Procedure, which provides:

Sec. 9. Grounds for Dismissal of Appeal. The appeal may be


dismissed upon motion of either party or at the instance of the
Commission on any of the following grounds:

(a) Failure of the appellant to pay the correct appeal fee; x x x

2. That if the appellant failed to pay the P1,000.00 - appeal fee


with the lower court within the five (5) day period as prescribed
by the Supreme Court New Rules of Procedure but the case was
nonetheless elevated to the Commission, the appeal shall be
dismissed outright by the Commission, in accordance with the
aforestated Section 9(a) of Rule 22 of the Comelec Rules of
Procedure.

The foregoing resolution is consistent with A.M. No. 07-4-15-SC


and the COMELEC Rules of Procedure, as amended. The
appeal to the COMELEC of the trial courts decision in election
contests involving municipal and barangay officials is perfected
upon the filing of the notice of appeal and the payment of the
P1,000.00 appeal fee to the court that rendered the decision
within the five-day reglementary period. The non-payment or the
insufficient payment of the additional appeal fee of P3,200.00 to
the COMELEC Cash Division, in accordance with Rule 40,
Section 3 of the COMELEC Rules of Procedure, as amended,
does not affect the perfection of the appeal and does not result in
outright or ipso facto dismissal of the appeal. Following, Rule 22,
Section 9(a) of the COMELEC Rules, the appeal may be
dismissed. And pursuant to Rule 40, Section 1840 of the same
rules, if the fees are not paid, the COMELEC may refuse to take
action thereon until they are paid and may dismiss the action or
the proceeding. In such a situation, the COMELEC is merely
given the discretion to dismiss the appeal or not.41

Accordingly, in the instant case, the COMELEC First Division,


may dismiss petitioners appeal, as it in fact did, for petitioners
failure to pay the P3,200.00 appeal fee.

Be that as it may, the Court still finds that the COMELEC First
Division gravely abused its discretion in issuing the order
dismissing petitioners appeal. The Court notes that the notice of
appeal and the P1,000.00 appeal fee were, respectively, filed
and paid with the MTC of Kapatagan, Lanao del Norte on April
21, 2008. On that date, the petitioners appeal was deemed
perfected. COMELEC issued Resolution No. 8486 clarifying the
rule on the payment of appeal fees only on July 15, 2008, or
almost three months after the appeal was perfected. Yet, on July
31, 2008, or barely two weeks after the issuance of Resolution
No. 8486, the COMELEC First Division dismissed petitioners
appeal for non-payment to the COMELEC Cash Division of the
additional P3,200.00 appeal fee.

Considering that petitioner filed his appeal months before the


clarificatory resolution on appeal fees, petitioners appeal should
not be unjustly prejudiced by COMELEC Resolution No. 8486.
Fairness and prudence dictate that the COMELEC First Division
should have first directed petitioner to pay the additional appeal
fee in accordance with the clarificatory resolution, and if the latter
should refuse to comply, then, and only then, dismiss the appeal.
Instead, the COMELEC First Division hastily dismissed the
appeal on the strength of the recently promulgated clarificatory
resolutionwhich had taken effect only a few days earlier. This
unseemly haste is an invitation to outrage.

The COMELEC First Division should have been more cautious in


dismissing petitioners appeal on the mere technicality of nonpayment of the additional P3,200.00 appeal fee given the public
interest involved in election cases. This is especially true in this
case where only one vote separates the contending parties. The
Court stresses once more that election law and rules are to be

Election Laws
interpreted and applied in a liberal manner so as to give effect,
not to frustrate, the will of the electorate.42

WHEREFORE, premises considered, the petition for certiorari is


GRANTED. The July 31, September 4 and October 6, 2008
Orders and the October 16, 2008 Entry of Judgment issued by
the COMELEC First Division in EAC (BRGY) No. 211-2008 are
ANNULLED and SET ASIDE. The case is REMANDED to the
COMELEC First Division for disposition in accordance with this
Decision.

SO ORDERED.

TAGUIAM vs. COMELEC (594 SCRA 474, G.R. No. 184801,


7
July 30, 2009)

This petition for certiorari with prayer for issuance of a temporary


restraining order and writ of preliminary injunction1 assails the
December 20, 2007 Resolution2 of the Second Division of the
Commission on Elections (COMELEC) in SPC No. 07-171 which
granted private respondent Anthony C. Tuddaos Petition for
Correction of Manifest Error and Annulment of Proclamation of
petitioner Jonas Taguiam as the 12th winning candidate for
theSangguniang Panglungsod of Tuguegarao City, Cagayan.
Also assailed is the October 9, 2008 Resolution3 of the
COMELEC En Banc denying petitioners Motion for
Reconsideration.4
Petitioner and private respondent were candidates for the
position of Sangguniang Panglungsod of Tuguegarao City in
Cagayan during the 2007 National and Local Elections. On May
19, 2007, petitioner was proclaimed by the City Board of
Canvassers (CBOC) as the 12th ranking and winning candidate
for the said position with 10,981 votes.5 Private respondent
obtained 10,971 votes6 and was ranked no. 13.
On May 25, 2007, private respondent filed with the COMELEC a
petition for correction of manifest errors in the Election Returns
and Statement of Votes for 27 clustered precincts7 and for the
annulment of the proclamation of the affected winning candidate
in Tuguegarao City. He alleged that he was credited with less
votes in several Statements of Votes by Precincts (SOVP) as
compared with the tally of his votes in the election returns ERs),
whereas petitioner was credited with more votes. Private
respondent offered evidence in the following nine precincts:
0035A/0036A, 0061A/0063A, 69A/69B, 87A/87B, 192A/192B,
264A/265A, 324A/325B, 326A, and 328B.
Petitioner denied the allegations of private respondent and
argued that the petition should be dismissed for having been
filed late or six days after the proclamation of the winning
candidates.8 Meanwhile, the members of the CBOC of
Tuguegarao City denied private respondents allegations of
manifest errors in the SOVP; maintained that petitioner garnered
more votes than those obtained by private respondent; and that
they have properly performed their duties and functions.9
7

23

On December 20, 2007, the Second Division of the COMELEC


issued the assailed Resolution, to wit:
IN VIEW OF THE FOREGOING, the instant Petition filed by
Anthony Tuddao for Correction of Manifest Error and Annulment
of Proclamation of Jonas Taguiam is hereby GRANTED.
ACCORDINGLY, the City Board of Canvassers of Tuguegarao,
Cagayan is hereby DIRECTED to (i) RECONVENE after giving
due notice to the concerned parties, (ii) CORRECT the errors in
the Statement of Votes by Precinct (SOVP), and thereafter
proclaim the 12th winning candidate for the Sangguniang
Panlungsod of Tuguegarao, Cagayan.1avvphi1
Let the City Board of Canvassers of Tuguegarao, Cagayan
implement this Resolution with dispatch.
SO ORDERED.10
The COMELEC held that the belated filing of private
respondents petition cannot deter its authority to ascertain the
true will of the electorate and thereafter affirm such will. Thus,
after due proceedings, the COMELEC found private
respondents allegations duly substantiated with material
evidence and confirmed the following:

Election Laws

24

A. With regard to the votes of private respondent:


Precinct No.

SOVP No.

ER No.

Votes in SOVP

Votes in ER

Votes Affected

69A/69B

15327

9602679

27

27

87A/87B

10543

9602699

13

13

192A/192B

10531

9602801

20

19

-1

326A

10532

9602921

43

53

+10

TOTAL +9
B. With regard to the votes of petitioner:
Precinct No.

SOVP No.

35A/36A

10543

9602647

61A/63A

10539

264A/265A

4
5

ER No. Votes in SOVP

Votes in ER

Votes Affected

40

33

-7

9602672

55

50

-5

10528

9602871

39

29

-10

324A/325A

10533

9602920

62

61

-1

328B

10527

9602924

33

32

-1

TOTAL -24
The COMELEC concluded that nine votes should be added to
the total number of votes garnered by private respondent; while
24 votes should be deducted from the total number of votes
obtained by petitioner. Thus, the total number of votes obtained
by private respondent was 10,980, while the total number of
votes received by petitioner was 10,957. As such, private
respondent was rightfully the 12th winning candidate for the
Sangguniang Panglungsod of Tuguegarao City, Cagayan.

election returns of one precinct, or two or more copies of


certificate of canvass were tabulated separately, (3) there has
been a mistake in the copying of the figures into the statement of
votes or into the certificate of canvass, or (4) so-called returns
from non-existent precincts were included in the canvass, and
such errors could not have been discovered during the
canvassing despite the exercise of due diligence and
proclamation of the winning candidates had already been made.

Petitioner filed a motion for reconsideration which was denied by


the COMELEC En Banc on October 9, 2008.

xxxx

Hence, this Petition for Certiorari11 raising the issue of whether


or not the COMELEC committed grave abuse of discretion
amounting to lack or excess of jurisdiction when it took
cognizance of private respondents petition for correction of
manifest errors in the Election Returns and Statement of Votes
despite its late filing.
Petitioner avers that private respondents petition for correction
of manifest errors should have been dismissed outright for failure
to show any justification for its late filing; that, if the petition had
been properly dismissed, private respondent had other remedies
available, such as an election protest.
Rule 27, Section 5 of the 1993 COMELEC Rules of Procedure
expressly states that:
Pre-proclamation Controversies Which May Be Filed Directly
with the Commission
(a) The following pre-proclamation controversies may be filed
directly with the Commission:
xxxx
2) When the issue involves the correction of manifest errors in
the tabulation or tallying of the results during the canvassing as
where (1) a copy of the election returns or certificate of canvass
was tabulated more than once, (2) two or more copies of the

If the petition is for correction, it must be filed not later than five
(5) days following the date of proclamation and must implead all
candidates who may be adversely affected thereby.
While the petition was indeed filed beyond the 5-day
reglementary period, the COMELEC however has the discretion
to suspend its rules of procedure or any portion thereof. Sections
3 and 4 of Rule 1 of the COMELEC Rules of Procedure state, to
wit:
Sec. 3. Construction. These rules shall be liberally construed in
order to promote the effective and efficient implementation of the
objectives of ensuring the holding of free, orderly, honest,
peaceful and credible elections and to achieve just, expeditious
and inexpensive determination and disposition of every action
and proceeding brought before the Commission.
Sec. 4. Suspension of the Rules. In the interest of justice and
in order to obtain speedy disposition of all matters pending
before the Commission, these rules or any portion thereof may
be suspended by the Commission.
Certainly, such rule of suspension is in accordance with the spirit
of Section 6, Article IX-A of the Constitution which bestows upon
the COMELEC the power to "promulgate its own rules
concerning pleadings and practice before it or before any of its

Election Laws

25

offices" to attain justice and the noble purpose of determining the


true will of the electorate.12

the will of the people in the choice of public officers may not be
defeated by mere technical objections.15

In Jaramilla v. Commission on Elections13 and Dela Llana v.


Commission on Elections,14 the Court affirmed the COMELECs
suspension of its rules of procedure regarding the late filing of a
petition for correction of manifest error and annulment of
proclamation in view of its paramount duty to determine the real
will of the electorate. We have consistently employed liberal
construction of procedural rules in election cases to the end that

In the instant case, records show that petitioner was declared the
12th winning candidate based on SOVPs containing
mathematical and clerical errors. The total number of votes in the
SOVPs of the identified precincts are markedly different from the
votes tabulated in their respective ERs, i.e., petitioner was given
additional votes, while private respondents votes were reduced,

which altered the outcome of the election. Petitioner was


declared the last winning candidate for the position of
Sangguniang Panglungsod of Tuguegarao City, instead of
private respondent.

BINCE, JR. vs. COMELEC (242 SCRA 273, G.R. Nos. 1116248
25, March 9, 1995)

In Torres v. Commission on Elections,16 the Court reiterated that


while the remedy of the losing party is an election protest after
his opponent has already been proclaimed as winning candidate,
such recourse is on the assumption, however, that there has
been a valid proclamation. Where a proclamation is null and
void, the proclamation is no proclamation at all and the
proclaimed candidate's assumption of office cannot deprive the
COMELEC of the power to declare such nullity and annul the
proclamation.17

Petitioner Alfonso C. Bince, Jr. and private respondent Emiliano


S. Micu were among the candidates in the synchronized
elections of May 11, 1992 for a seat in the Sanguniang
Panlalawigan of the Province of Pangasinan allotted to its Sixth
Legislative District.

It is significant to note that petitioner did not assail the factual


findings of the COMELEC of manifest error in the tabulation of
votes but only raised issues on the foregoing technicalities.
Hence, the COMELECs unrebutted findings of fact are therefore
sustained.

During the canvassing of the Certificates of Canvass (COC's) for


these ten (10) municipalities by respondent Provincial Board of
Canvassers (PBC) on May 20, 1992, private respondent Micu
objected to the inclusion of the COC for San Quintin on the
ground that it contained false statements. Accordingly, the COCs
for the remaining nine (9) municipalities were included in the
canvass. On May 21, 1992, the PBC rules against the objection
of private respondent. 1 From the said ruling, private respondent
Micu appealed to the Commission on Elections (COMELEC),
which docketed the case as SPC No. 92-208.

Grave abuse of discretion arises when a lower court or tribunal


violates the Constitution, the law or existing jurisprudence. Grave
abuse of discretion means such capricious and whimsical
exercise of judgment as would amount to lack of jurisdiction; it
contemplates a situation where the power is exercised in an
arbitrary or despotic manner by reason of passion or personal
hostility, so patent and gross as to amount to an evasion of
positive duty or a virtual refusal to perform the duty enjoined by,
or to act at all in contemplation of law. In a certiorariproceeding,
as in the instant case, it is imperative for petitioner to show
caprice and arbitrariness on the part of the court or agency
whose exercise of discretion is being assailed.18
For acting pursuant to its Constitutional mandate of determining
the true will of the electorate with substantiated evidence, the
Court finds no grave abuse of discretion on the part of
COMELEC in annulling the proclamation of petitioner. Said
proclamation is flawed from the beginning because it did not
reflect the true and legitimate will of the electorate. Having been
based on a faulty tabulation, there can be no valid proclamation
to speak of.19
WHEREFORE, this petition for certiorari is DISMISSED for lack
of merit. The December 20, 2007 Resolution of the Second
Division of the Commission on Elections (COMELEC) and the
October 9, 2008 Resolution of the COMELEC En Banc are
hereby AFFIRMED.
SO ORDERED.

Ten (10) municipalities, including San Quintin, Tayug and San


Manuel, comprise the said district.

On June 6, 1992, the COMELEC en banc promulgated a


resolution which reads:

Acting on the appeal filed by petitioner-appellant Atty. Emiliano


S. Micu to the ruling of the Provincial Board of Canvassers of
Pangasinan, dated May 21, 1992, the Commission en banc
tabulated the votes obtained by candidates Atty. Emiliano S.
Micu and Atty. Alfonso C. Bince for the position of Sangguniang
Panlalawigan member of the province of Pangasinan, using as
basis thereof the statement of votes by precinct submitted by the
municipality of San Quintin, Pangasinan, as (sic) a result of said
examination, the Commission rules, as follows:

1.
That the actual number of votes obtained by candidate
Alfonso C. Bince in the municipality of San Quintin, Pangasinan
is 1,055 votes whereas petitioner/appellant Atty. Emiliano S.
Micu obtained 1,535 votes for the same municipality.

Accordingly, the Provincial Board of Canvassers for the province


of Pangasinan is directed to CREDIT in favor of
petitioner/appellant Atty. Emiliano S. Micu with 1,535 votes and
8

Election Laws
candidate Alfonso C. Bince with 1,055 votes in the municipality
of San Quintin, Pangasinan. 2

Twenty-one (21) days after the canvass of the COCs for the nine
(9) municipalities was completed on May 20, 1992, private
respondent Micu together with the Municipal Boards of
Canvassers (MBCs) of Tayug and San Manuel filed with the
PBC petitions for correction of the Statements of Votes (SOVs)
earlier prepared for alledged manifest errors committed in the
computation thereof.

In view of the motion of herein petitioner to implement the


Resolution of June 6, 1992 which was alleged to have become
final, the PBC, on June 18, 1992, credited in favor of the
petitioner and private respondent the votes for each as indicated
in the said resolution and on the basis of the COCs for San
Quintin and the other nine (9) municipalities, petitioner had a
total of 27,370 votes while the private respondent had 27,369
votes. Petitioner who won by a margin of 1 vote was not,
however, proclaimed winner because of the absence of authority
from the COMELEC.

Accordingly, petitioner filed a formal motion for such authority.

On June 29, 1992, the COMELEC en banc promulgated a


Supplemental Order 3 directing the PBC "to reconvene, continue
with the provincial canvass and proclaim the winning candidates
for Sangguniang Panlalawigan for the Province of Pangasinan,
and other candidates for provincial offices who have not been
proclaimed 4 as of that date.

In the meantime, on June 24, 1992, the PBC, acting on the


petitions for correction of the SOVs of Tayug and San Manuel
filed by private respondent and the MBCs of the said
municipalities, rules "to allow the Municipal Boards of
Canvassers of the municipalities of Tayug and San Manuel,
Pangasinan to correct the Statement of Votes and Certificates of
Canvass and on the basis of the corrected documents, the Board
(PBC) will continue the canvass and thereafter proclaim the
winning candidate. 5

On June 25, 1992, petitioner Bince appealed from the above


ruling allowing the correction alleging that the PBC had no
jurisdiction to entertain the petition. The appeal was docketed as
SPC No. 92-384.

On July 8, 1992, private respondent Micu filed before the


COMELEC an urgent motion for the issuance of an order
directing the PBC to reconvene and proceed with the canvass.
He alleged that the promulgation of COMELEC Resolution No.
2489 on June 29, 1992 affirmed the ruling of the PBC dated
June 24, 1992. Similarly, petitioner Bince filed an urgent petition
to cite Atty. Felimon Asperin and Supt. Primo. A. Mina, Chairman
and Member, respectively, of the PBC, for Contempt with
alternative prayer for proclamation as winner and Injunction with
prayer for the issuance of Temporary Restraining Order (TRO).

On July 9, 1992, the PBC Chairman, Atty. Felimon Asperin, filed


a petition with the COMELEC seeking a "definitive ruling and a
clear directive or order as to who of the two (2) contending

26

parties should be proclaimed" 6 averring that "there were


corrections already made in a separate sheet of paper of the
Statements of Votes and Certificates of Canvass of Tayug and
San Manuel, Pangasinan which corrections if to be considered
by the Board in its canvass and proclamation, candidate
Emiliano will win by 72 votes. On the other hand, if these
corrections will not be considered, candidate Alfonso Bince, Jr.
will win by one (1) vote. 7 On even date, the COMELEC
promulgated its resolution, the dispositive portion of which reads:

(1)
To RECONVENE immediately and complete the
canvass of the Certificates of Votes, as corrected, of the
municipalities comprising the 6th District of Pangasinan;

(2)
To PROCLAIM the winning candidate for Member of the
provincial Board, 6th District of Pangasinan, on the basis of the
completed and corrected Certificates of Canvass, aforesaid; in
accordance with the law, the rules and guidelines on canvassing
and proclamation. 8

As directed therein, the PBC on July 21, 1992, by a vote of 2-1


with its Chairman Atty. Felimon Asperin dissenting, proclaimed
candidate Bince as the duly elected member of the Sangguniang
Panlalawigan of Pangasinan. Assailing the proclamation of
Bince, private respondent Micu filed an Urgent Motion for
Contempt and to Annul Proclamation and Amended Urgent
Petition for Contempt and Annul Proclamation on July 22 and 29,
1992, respectively, alleging that the PBC defied the directive of
the COMELEC in its resolution of July 9, 1992. Acting thereon,
the COMELEC promulgated a resolution on July 29, 1992, the
decretal portion of which reads:

The Commission RESOLVED, as it hereby RESOLVES:

1.
To direct Prosecutor Jose Antonio Guillermo and Supt.
Primo Mina, vice-chairman and secretayr, respectively, of the
Provincial Board of Canvassers of Pangasinan, to show cause
why they should not be declared in contempt of defying and
disobeying the Resolution of this Commission dated 09 July
1992, directing them to RECOVENE immediately and complete
the canvass of the Certificates of Votes as corrected, of the
Municipal Boards of Canvassers of the Municipalities comprising
the 6th District of Pangasinan; and to PROCLAIM the winning
candidate of the Provincial Board, 6th District of Pangasinan, on
the basis of the completed and corrected Certificates of
Canvass, aforesaid; instead they excluded the corrected
Certificated of Canvass of the Municipal Boards of Canvassers
of Tayug and San Manuel, Pangasinan;

2.
To ANNUL the proclamation dated 21 July 1992, by the
said Provincial Board of Canvassers (dissented by Chairman
Felimon Asperin), of candidate Alfonso Bince;

3.
To DIRECT the Provincial Board of Canvassers to
recovene immediately and proclaim the winning candidate for the
second position of the Provincial Board, 6th District of
Pangasinan, on the basis of the completed and corrected
Certificates of Canvass submitted by the Municipal Boards of
Canvassers of all the municipalities in the 6th District of
Pangasinan, in accordance with law. 9

Election Laws

Consequently, petitioner filed a special civil action for certiorari


before this Court seeking to set aside the foregoing resolution of
the COMELEC, contending that the same was promulgated
without prior notice and hearing with respect to SPC No. 92-208
and SPC No. 92-384. The case was docketed as G.R. No.
106291.

On February 9, 1993, the Court en banc 10 granted the petition


ratiocinating that:

Respondent COMELEC acted without jurisdiction or with grave


abuse of discretion in annulling the petitioner's proclamation
without the requisite due notice and hearing, thereby depriving
the latter of due process. Moreover, there was no valid correction
of the SOVs and COCs for the municipalities of Tayug and San
Manuel to warrant the annullment of the petitioner's
proclamation.

1.
Petitioner had been proclaimed, had taken his oath of
office and had assumed the position of the second elected
member of the Sangguniang Panlalawigan of the Province of
Pangasinan for its Sixth Legislative District. Such proclamation
enjoys the presumption of regularly and validity. The ruling of the
majority of the PBC to proclaim the petitioner is based on its
interpretation of the 9 July 1992 Resolution of respondent
COMELEC which does not expressly single out the corrected
COCs of Tayug and San Manuel; since, as of that time, the only
corrected COC which existed was that for San Quintin, which
was made by the PBC on 18 June 1992, the majority of the PBC
cannot be faulted for ruling the way it did. the 9 July 1992
Resolution (Rollo, p. 51) merely directed it:

(1)
To RECOVENE immediately and complete the
canvass of the Certificates of Votes, as corrected, of the
Municipal Boards of Canvassers of the municipalities comprising
the 6th District of Pangasinan;

(2)
To PROCLAIM the winning candidate for Member of the
Provincial Board, 6th District of Pangasinan, on the basis of the
completed and corrected Certificates of Canvass, aforesaid; in
accordance with the law, the rules and guideline on canvassing
and proclamation. (Emphasis supplied)

The PBC thus had every reason to believe that the phrase
"completed and corrected" COCs could only refer to the nine 99)
COCs for the nine municipalities, canvass for which was
completed on 21 May 1992, and that of San Quintin,
respectively. Verily, the above resolution is vague and
ambiguous.

Petitioner cannot be deprived of his office without due process of


law. Although public office is not property under Section 1 of the
Bill of Rights of the Constitution (Article III, 1987 Constitution),
and one cannot acquire a vested right to public office (CRUZ,
I.A., Constitutional Law, 1991 ed., 101), it is, nevertheless, a
protected right (BERNAS J., The Constitution of the Republic of
the Philippines, vol. I, 1987 ed., 40, citing Segovia vs. Noel, 47
Phil. 543 [1925] and Borja vs. Agoncillo, 46 Phil. 432 [1924]).
Due process in proceedings before the respondent COMELEC,

27

exercising its quasi-judicial functions, requires due notice and


hearing, among others. Thus, although the COMELEC
possesses, in appropriate cases, the power to annul or suspend
the proclamation of any candidate (Section 248, Omnibus
Election Code [B.P. Blg. 881]), We had ruled in Farinas vs.
Commission on Elections (G.R. No. 81763, 3 March 1988),
Reyes vs. Commission on Elections G.R. No. 81856, 3 March
1988) and Gallardo vs. Commission on Elections (G.R. No.
85974, 2 May 1989) that the COMELEC is without power to
partially or totally annul a proclamation or suspend the effects of
a proclamation without notice and hearing.

xxx

xxx

xxx

Furthermore, the said motion to annul proclamation was treated


by the respondent COMELEC as a Special Case (SPC) because
its ruling therein was made in connection with SPC No. 92-208
and SPC No. 92-384. Special Cases under the COMELEC
RULES OF PROCEDURE involve the pre-proclamation
controversies (Rule 27 in relation to Section 4(h)l Rule 1, and
Section 4, Rule 7). We have categorically declared in Sarmiento
vs. Commission on Elections (G.R. No. 105628, and companion
cases, 6 August 1992) that pursuant to Section 3, Article IX-C of
the 1987 Constitution, . . . the commission en banc does not
have jurisdiction to hear and decide pre-proclamation cases at
the first instance. Such cases should first be referred to a
division

Hence, the COMELEC en banc had no jurisdiction to decide on


the aforesaid to annul the proclamation; consequently, its 29 July
1992 Resolution is motion is null and void. For this reason too,
the COMELEC en banc Resolution of 6 June 1992 in SPC No.
92-2()8 resolving the private respondent's appeal from the ruling
of the PBC with respect to the COC of San Quintin is similarly
void.

2.
It is to be noted, as correctly stressed by the petitioner,
that there are no valid corrected Statements of Votes and
Certificates of Canvass for Tayug and San Manuel; thus, any
reference to such would be clearly unfounded. While it may be
true that on 24 June 1992, the PBC, acting on simultaneous
petitions to correct the SOVs and COCs for Tayug and San
Manuel ordered the MBCs for these two (2) municipalities to
make the appropriate corrections in the said SOVs and their
corresponding COCs, none of said Boards convened to the
members of actually implement the order. Such failure could
have been due to the appeal seasonably interposed by the
petitioner to the COMELEC or the fact that said members simply
chose not to act thereon. As already adverted to the so-called
"corrected" Statements of Votes and Certificates of Canvass
consist of sheets of paper signed by the respective Election
Registrars of Tayug (Annex "F-l" of Comment of private
respondent; Annex "A" of Consolidated Reply of petitioner) and
San Manuel (Annex "F-2, Id.; Annex "B", Id.). These are not valid
corrections because the Election Registrars, as Chairmen of the
MBCs cannot, by themselves, act for their Section 225 of the
respective Board. Section 225 of the Omnibus Election Code
(B.P. Blg. 881) provides that "[A] majority vote of all the
members of the board of canvassers shall be necessary to
render a decision." That majority means at least two (2) of the
three (3) members constituting the Board (Section 20(c) of the
Electoral Reforms Law of 1987 (R.A. No. 6646) provides that the
"municipal board of canvassers shall be composed of the
election registrar or a representative of the Commission, as

Election Laws
chairman, the municipal treasurer, as vice-chairman, and the
most senior district school supervisor or in his absence a
principal of the school district or the elementary school, as
members"). As to why the Election Registrars, in their capacities
as Chairmen, were 7th only ones who prepared the so-called
correction sheets, is beyond Us. There is no showing that the
other members of the Boards were no longer available. Since
they are from the Province of Pangasinan, they could have been
easily summoned by the PBC to appear before it and effect the
corrections on the Statements of Votes and Certificates of
Canvass.

Besides, by no stretch of the imagination can these sheets of


paper be considered as the corrected SOVs and COCs.
Corrections in a Statement of Vote and a Certificate of Canvass
could only be accomplished either by inserting the authorized
corrections into the SOV and COC which were originally
prepared and submitted by the MBC or by preparing a new SOV
and COC incorporating therein the authorized corrections. Thus,
the statement in the 29 July 1992 Resolution of the COMELEC
referring to "the Certificates of Canvass of the municipal Boards
of Canvassers of Tayug and San Manuel" (Last clause,
paragraph 1 of the dispositive portion, Annex "A" of Petition:
Rollo 15), is palpably unfounded. The Commission could have 7
been misled by Atty. Asperin's ambiguous reference to
"corrections already made in separate sheets of paper of the
Statements of Votes and Certificate of Canvass of Tayug and
San Manuel, Pangasinan" (Quoted in the Resolution of 9 July
1992; Id., 50-51), in his petition asking the COMELEC to rule on
who shall be proclaimed. However, if it only took the trouble to
carefully examine what was held out to be as the corrected
documents, respondent COMELEC should not have been
misled.

Even if We are to assume for the sake of argument that these


sheets of paper constitute sufficient corrections, they are,
nevertheless, void and of no effect. At the time the Election
Registrars prepared them on 6 July 1992 respondent
COMELEC had not yet acted on the petitioner's appeal (SPC
No. 92-384) from the 24 June 1992 ruling of the PBC authorizing
the corrections. Petitioner maintains that until now, his appeal
has not been resolved. The public respondent, on the other
hand, through the Office of the Solicitor General, claims that the
same had been:

28

Resolution because the same was promulgated to resolve the


Urgent Motion For Contempt and to Annul Proclamation filed by
the private respondent. Furthermore, before the resolution of
SPC No. 92-384 on the abovementioned date, no hearing was
set or conducted to resolve the pending motion. Therefore, on
this ground alone, the 29 July 1992 Resolution, even if it was
meant to resolve the appeal, is a patent nullity for having been
issued in gross violation of the requirement of notice and hearing
mandated by Section 246 of the Omnibus Election Code, in
relation to Section 18 of R.A. No. 7166 and Section 6, Rule 27 of
the COMELEC Rules of Procedure, and for having been
resolved by the COMELEC en banc at the first instance. The
case should have been referred first to a division pursuant to
Section 3, Article IX-C of the 1987 constitution and Our ruling in
Sarmiento vs. Commission on Elections. Moreover, the
COMELEC's claim that the questioned resolution affirmed the
correction made by the Board is totally baseless. The PBC did
not make any corrections. It merely ordered the Municipal
Boards of Canvassers of Tayug and San Manuel to make such
corrections. As earlier stated, however, the said MBCs did not
convene to make these corrections. It was the Chairmen alone
who signed the sheets of paper purporting to be corrections.

For being clearly inconsistent with the intention and official stand
of respondent COMELEC, private respondent COMELEC private
respondent's theory of termination under the second paragraph
of Section 16 of R.A. No. 7166, and the consequent affirmance
of the ruling of the PBC ordering the correction of the number of
votes, must necessarily fail.

The foregoing considered, the proclamation of the private


respondent on, 13 August 1992 by the Provincial Board of
Canvassers of Pangasinan is null and void.

WHEREFORE, the instant petition is GRANTED. The challenged


resolution of the respondent Commission on Elections of 29 July
1992 and the proclamation of the private respondent on 13
August 1992 as the second Member of the Sangguniang
Panlalawigan of the Province of Pangasinan, representing its
Sixth Legislative District ANNULLED and SET ASIDE and
respondent Commission on Elections is DIRECTED to resolve
the pending incidents conformably with the foregoing
disquisitions and pronouncements.

. . . resolved in the questioned resolution of July 29, 1992, where


COMELEC affirmed respondents (sic) Board's correction that
petitioner only received 2,415 votes in Tayug and 2,179 in San
Manuel (see p. 2, Annex "A", Petition) (Rollo, p. 71)

No costs.

On the same matter, the private respondent asserts that:

On February 23, 1993, private respondent Micu filed an Urgent


Omnibus Motion before the COMELEC praying that the latter
hear and resolve the pending incidents referred to by this Court.
Private respondent was obviously referring to SPC No. 92-208
and SPC No. 92-384, both cases left unresolved by the
COMELEC.

This SPC-92-384, is however, deemed terminated and the ruling


of the PBC is likewise deemed affirmed by virtue of the 2nd par.,
Sec. 16, R.A. No. 7166, supra and Comelec en banc Resolution
No. 2489, supra, dated June 29, 1992 (Id., 36);

If We follow the respondent COMELEC's contention to its logical


conclusion, it was only on 29 July 1992 that SPC No. 92-384
was resolved; consequently, the so-called "correction sheets"
were still prematurely prepared. In any event, the COMELEC
could not have validly ruled on such appeal in its 29 July 1992

SO ORDERED. 11

Consequently, the First Division of the COMELEC set the cases


for hearing on March 8, 1993. During the hearing, both Micu and
Bince orally manifested the withdrawal of their respective
appeals. Also withdrawn were the petitions to disqualify Atty.
Asperin and to cite the Board for contempt. The parties agreed to

Election Laws
file their respective memoranda/position papers by March 15,
1993.

Petitioner Bince filed his Position Paper on March 12, 1993


arguing that the withdrawal of SPC No. 92-208 affirmed the
ruling of the PBC dated May 21, 1992 and even if it were not
withdrawn, Section 16 of R.A. 7166 would have worked to
terminate the appeal. Bince likewise asserts that his appeal in
SPC No. 92-384 became moot and academic in view of this
Court's ruling nullifying the June 24, 1992 order of the PBC
granting the petitions for correction of the SOVs and COCs of
Tayug and San Manuel aside from being superseded by the
PBC ruling proclaiming him on July 21, 1992.

On the other hand, private respondent Micu, in his Position


Paper filed on March 15, 1993 postulated that the petitions filed
on June 11, 1992 for the correction of the SOVs and COCs of
Tayug and San Manuel under Section 6 of Rule 27 of the
Comelec Rules of Procedure, as well as the ruling of the PBC of
June 24, 1992 granting the same were valid so that the
withdrawal of Bince's appeal in SPC No. 92-384 firmly affirmed
the PBC ruling of June 24, 1992 allowing the corrections.

On July 15, 1993, the First Division of the COMELEC


promulgated a Resolution, the dispositive portion of which reads:

Viewed from the foregoing considerations, the Commission (First


Division) holds that the petitioner Alfonso C. Bince Jr. is entitled
to sit as member of the Sangguniang Panlalawigan, Sixth District
of Pangasinan.

ACCORDINGLY, the Commission (First Division) RESOLVED,


as it hereby RESOLVES, to AFFIRM the proclamation of
petitioner Alfonso C. Bince, Jr. by the Provincial Board of
Canvassers of Pangasinan on 21 July 1992 as the duly elected
member of the Sangguniang Panlalawigan of the Sixth District of
the Province of Pangasinan. 12

On July 20, 1993, private respondent Micu filed a Motion for


reconsideration of the above-quoted resolution.

On September 9, 1993, the COMELEC en banc granted the


private respondentls motion for reconsideration in a resolution
which dispositively reads as follows:

WHEREFORE, premises considered, the Motion for


Reconsideration filed by respondent Emiliano S. Micu is granted.
The Resolution of the Commission First Division is hereby SET
ASIDE. The proclamation of petitioner Alfonso Bince, Jr. on July
21, 1992 is hereby declared null and void. Accordingly, the
Provincial Board of Canvassers is hereby directed to reconvene,
with proper notices, and to order the Municipal Board of
Canvassers of San Manuel and Tayug to make the necessary
corrections in the SOVs and COCs in the said municipalities.
Thereafter, the Provincial Board of Canvassers is directed to
include the results in the said municipalities in its canvass.

29

The PBC is likewise ordered to proclaim the second elected


member of the Sangguniang Panlalawigan of the Sixth
Legislative District of Pangasinan.

SO ORDERED. 13

This is the resolution assailed in the instant petition for certiorari.

We do not find merit in this petition and accordingly rule against


petitioner.

Respondent COMELEC did not act without jurisdiction or with


grave abuse of discretion in annulling the proclamation of
petitioner Alfonso Bince, Jr. and in directing the Provincial Board
of Canvassers of Pangasinan to order the Municipal Boards of
Canvassers of Tayug and San Manuel to make the necessary
corrections in the SOVs and COCs in said municipalities and to
proclaim the winner in the sixth legislative district of Pangasinan.

At the outset, it is worthy to observe that no error was committed


by respondent COMELEC when it resolved the "pending
incidents" of the instant case pursuant to the decision of this
Court in the aforesaid case of Bince, Jr. v. COMELEC on
February 9, 1993 Petitioner's contention that his proclamation
has long been affirmed and confirmed by this Court in the
aforesaid case is baseless. In Bince, we nullified the
proclamation of private respondent because the same was done
without the requisite due notice and hearing, thereby depriving
the petitioner of his right to due process. In so doing, however,
we did not affirm nor confirm the proclamation of petitioner,
hence, our directive to respondent COMELEC to resolve the
pending incidents of the case so as to ascertain the true and
lawful winner of the said elections. In effect, petitioner's
proclamation only enjoyed the presumption of regularity and
validity of an official act. It was not categorically declared valid.

Neither can the COMELEC be faulted for subsequently annulling


the proclamation of petitioner Bince on account of a
mathematical error in addition committed by respondent MBCs in
the computation of the votes received by both petitioner and
private respondent.

The petitions to correct manifest errors were filed on time, that is,
before the petitioner's proclamation on July 21, 1992. The
petition of the MBC of San Manuel was filed on June 4, 1992
while that of still, the MBC of Tayug was filed on June 5, 1992.
Still, private respondent's petition was filed with the MBCs of
Tayug and San Manuel on June 10, 1992 and June 11, 1992,
respectively, definitely well within the period required by Section
6 (now Section 7), Rule 27 of the COMELEC Rules of
Procedure. Section 6 clearly provides that the petition for
correction may be filed at any time before proclamation of a
winner, thus:

Sec. 6. Correction of errors in tabulation or tallying of results by


the board of canvassers. (a) Where it is clearly shown before
proclamation that manifest errors were committed in the
tabulation or tallying of election returns, or certificates of
canvass, during the canvassing as where (1) a copy of the
election returns of one precinct or two or more copies of a

Election Laws
certificate of canvass was tabulated more than once, (2) two
copies of the election returns or certificate of canvass were
tabulated separately, (3) there had been a mistake in the adding
or copying of the figures into the certificate of canvass or into the
statement of votes, or (4) so-called election returns from nonexistent precincts were included in the canvass, the board may,
motu propio, or upon verified petition by any candidate, political
party, organization or coalition of political parties, after due notice
and hearing, correct the errors committed.

(b)
The order for correction must be in writing and must be
promulgated.

(c)
Any candidate, political party, organization or coalition
of political parties aggrieved by said order may appeal therefrom
to the Commission within twenty-four (24) hours from the
promulgation.

(d)
Once an appeal is made, the board of canvassers shall
not proclaim the winning candidates, unless their votes are not
affected by the appeal.

(e)
The appeal must implead as respondents all parties
who may be adversely affected thereby.

(f)
Upon receipt of the appeal, the Clerk of Court
concerned shall forthwith issue summons, together with a copy
of the appeal, to the respondents.

(g)
The Clerk of Court concerned shall immediately set the
appeal for hearing.

(h)
The appeal shall be heard an decided by he
Commission en banc (Emphasis ours).

The rule is plain and simple. It needs no other interpretation


contrary to petitioner's protestation.

Assuming for the sake of argument that the petition was filed out
of time, this incident alone will not thwart the proper
determination and resolution of the instant case on substantial
grounds. Adherence to a technicality that would put a stamp of
validity on a palpably void proclamation, with the inevitable result
of frustrating the people's will cannot be countenanced. In Benito
v. COMELEC, 14 categorically declared that:

. . . Adjudication of cases on substantive merits and not on


technicalities has been consistently observed by this Court. In
the case of Juliano vs. Court of Appeals (20 SCRA 808) cited in
Duremdes vs. Commission on Elections (178 SCRA 746), this
Court had the occasion to declare that:

Well-settled is the doctrine that election contests involve public


interest, and technicalities and procedural barriers should not be
allowed to stand if they constitute an obstacle to the
determination of the true will of the electorate in the choice of

30

their elective officials. And also settled is the rule that laws
governing election contests must be liberally construed to the
end that the will of the people in the choice of public officials may
not be defeated by mere technical objections (Gardiner v.
Romulo, 26 Phil. 521; Galang v. Miranda, 35 Phil. 269; Jalandoni
v. Sarcon, G.R. No.
L-6496, January 27, 1962; Macasunding v. Macalanang, G.R.
No.
L-22779, March 31, 1965; Cauton v. Commission on Elections,
G.R. No. L-25467, April 27, 1967). In an election case the court
has an imperative duty to ascertain all means within its
command who is the real candidate elected by the electorate
(Ibasco v. Ilao, G.R. No. L-17512, December 29, 1960). . . .
(Juliano vs. Court of Appeals, supra, pp. 818-819). (Emphasis
ours)

In the later case of Rodriguez vs. Commission on Elections (119


SCRA 465), this doctrine was reiterated and the Court went on to
state that:

Since the early case of Gardiner v. Romulo (26 Phil. 521), this
Court has made it clear that it frowns upon any interpretation of
the law or the rules that would hinder in any way not only the free
and intelligent casting of the votes in an election but also the
correct ascertainment of the results, This bent or disposition
continues to the present. (Id., at p. 474).

The same principle still holds true today. Technicalities of the


legal rules enunciated in the election laws should not frustrate
the determination of the popular will.

Undoubtedly therefore, the only issue that remains unresolved is


the allowance of the correction of what are purely mathematical
and/or mechanical errors in the addition of the votes received by
both candidates. It does not involve the opening of ballot boxes;
neither does it involve the examination and/or appreciation of
ballots. The correction sought by private respondent and
respondent MBCs of Tayug and San Manuel is correction of
manifest mistakes in mathematical addition. Certainly, this only
calls for a mere clerical act of reflecting the true and correct
votes received by the candidates by the MBCs involved. In this
case, the manifest errors sought to be corrected involve the
proper and diligent addition of the votes in the municipalities of
Tayug and San Manuel, Pangasinan.

In Tayug, the total votes received by petitioner Bince was


erroneously recorded as 2,486 when it should only have been
2,415. Petitioner Bince, in effect, was credited by 71 votes more.

In San Manuel, petitioner Bince received 2,179 votes but was


credited with 6 votes more, hence, the SOV reflected the total
number of votes as 2,185. On the other hand, the same SOV
indicated that private respondent Micu garnered 2,892 votes but
he actually received only 2,888, hence was credited in excess of
4 votes.

Consequently, by margin of 72
indisputably won the challenged
Panlalawigan of the sixth district
proclamation and assumption into

votes, private respondent


seat in the Sangguniang
of Pangasinan. Petitioner's
public office was therefore

Election Laws
flawed from the beginning, the same having been based on a
faulty tabulation. Hence, respondent COMELEC did not commit
grave abuse of discretion in setting aside the illegal
proclamation.

As a parting note, we reiterate' our concern with respect to


insignificant disputes plaguing this Court. Trifles such as the one
at issue should not, as much as possible, reach this Court, clog
its docket, demand precious judicial time and waste valuable
taxpayers' money, if they can be settled below without prejudice
to any party or to the ends of justice.

WHEREFORE, the instant petition is hereby DISMISSED with


costs against petitioner.

SO ORDERED.

LIBANAN vs. HRET (283 SCRA 520, G.R. No. 129783,


9
December 22, 1997)

The 28th May 1997 decision of the House of Representatives


Electoral Tribunal ("HRET"), which affirmed the proclamation of
herein private respondent Jose Tan Ramirez declaring him to be
the duly elected Representative of Eastern Samar for having
obtained the plurality of votes over petitioner Marcelino Libanan,
and the 20th June 1997 resolution of the HRET, which denied
with finality petitioner's motion for reconsideration, are sought to
be annulled in this special civil action for certiorari.

Petitioner Marcelino Libanan and private respondent Jose


Ramirez were among the candidates for the lone congressional
seat of Eastern Samar in the May 1995 elections. After the
canvass of the returns was made on 13 May 1995, the Provincial
Board of Canvassers of Eastern Samar proclaimed respondent
Ramirez to have been duly elected Representative of the District
with a total of forty-one thousand five hundred twenty-three
(41,523) votes, compared to petitioner's forty thousand eight
hundred sixty-nine (40,869) votes, or a margin of six hundred
fifty-four(654) votes over those of petitioner.

Petitioner Libanan seasonably filed an election protest before the


HRET claiming, among other things, that the 08th May 1995
elections in Eastern Samar were marred by massive electoral
irregularities perpetrated or instigated by respondent Ramirez, as
well as his leaders and followers, in the twenty-three (23)
municipalities of the lone district of Eastern Samar with the aid,
in various instances, of peace officers supposedly charged with
maintaining an orderly and honest election. Petitioner contested
seventy-nine (79) precincts in five (5) municipalities. He also
maintained that the election returns and/or ballots in certain
precincts were tampered with, substituted, or systematically
marked in favor of respondent Ramirez. Libanan prayed that,
after due proceedings, the HRET should issue an order to annul
the election and proclamation of Ramirez and to thereafter so
proclaim petitioner as the duly elected Representative of the
Lone District of Eastern Samar.

31

In his answer and counter-protest, with a petition for preliminary


hearing on the special and affirmative defenses, respondent
Ramirez denied the charges. He counter-protested the results of
the elections in certain precincts where, he claimed, Libanan
engaged in massive vote buying, lansadera, terrorism and
tearing of the list of voters to disenfranchise voters therein listed.
Accordingly, he prayed, inter alia, for the dismissal of the protest
and the confirmation of his election as the duly elected
representative of the Lone District of Eastern Samar.

After some peripheral issues were settled by the HRET, the


revision of ballots in the protested precincts commenced on 20
February 1996. The HRET noted that Libanan contested a total
of seventy-nine (79) precincts. It was noted during the revision,
however, that six (6) of the contested precincts, namely,
Precincts Nos. 14, 15, 16, 18, 19 and 20 of Arteche, were found
to have been merged during the 08 May 1995 elections into
three (3) precincts, i.e., Precincts Nos. 14 and 19, Precincts Nos.
15 and 16 and Precincts Nos. 18 and 20. Thus, only seventy-six
(76) ballot boxes were actually opened for revision, one of which,
Precinct No. 4-1 of Guiuan, did not contain any ballot.

On 22 February 1996, while the revision of the counter-protested


precincts was being held, Ramirez filed an "Urgent Motion to
Withdraw/Abandon
Counter-Protest
in
Specific
Municipalities/Precincts" praying that he be granted leave to
withdraw and abandon partially his counter-protest in certain
precincts. 1 Libanan filed an opposition thereto but the motion
was eventually granted by the Chairman of the HRET and
subsequently confirmed in a resolution by the tribunal.

On 21 March 1996, the HRET designated a Hearing


Commissioner and a Deputy Hearing Commissioner for the
reception of evidence. Following that reception, the respective
memoranda of Libanan and Ramirez were filed.

The evidence and the issues submitted by the parties for


consideration by the HRET related mainly to the proper
appreciation of the ballots objected to, or claimed by, the parties
during the revision. No evidence was presented in support of the
other allegations of the protest (like the alleged tampering of
election returns) and of the counter-protest (such as the alleged
tearing of some of the pages of the computerized list of voters to
disenfranchise legitimate voters and the use of goons to terrorize
and compel voters to vote for Libanan), nor were these issues
discussed in the memoranda of the parties. The HRET thus
concentrated, such as can be rightly expected, its attention to the
basic appreciation of ballots. 2

The particular matter focused in this petition deals with what


petitioner claims to be spurious ballots; on this score, the HRET
has explained:

No spurious ballot was found in this case. For a ballot to be


rejected for being spurious, the ballot must not have any of the
following authenticating marks: a) the COMELEC watermark; b)
the signatures or initial of the BEI Chairman at the back of the
ballot; and c) red and blue fibers. In the present case, all the
ballots examined by the Tribunal had COMELEC watermarks.

Election Laws
The Tribunal did not adopt protestant's submission in his
Memorandum that the absence of thumbmark or BEI Chairman's
signature at the back of the ballot rendered the ballot spurious.
The applicable law on this issue is Sec. 24, R.A. 7166. It reads:

In every case before delivering an official ballot to the voter, the


Chairman of the Board of Election Inspectors shall, in the
presence of the voter, affix his signature at the back thereof.
Failure to so authenticate shall be noted in the minutes of the
board of election offense punishable under Section 263 and 264
of the Omnibus Election Code.

As may be gleaned above, unlike the provision of Section 210 of


the Omnibus Election Code where the BEI Chairman was
required to affix his right thumbmark at the back of the ballot
immediately after it was counted, the present law no longer
requires the same.

Anent the BEI Chairman's signature, while Section 24 of R.A.


7166 provides that failure to authenticate the ballot shall
constitute an election offense, there is nothing in the said law
which provides that ballots not so authenticated shall be
considered invalid. In fact, the members of the Committee on
Suffrage and Electoral Reforms agreed during their deliberation
on the subject that the absence of the BEI Chairman's signature
at the back of the ballot will not per se make a ballot spurious.

Moreover, while Rep. Palacol, then Chairman of the Committee


on Suffrage and Electoral Reforms, mentioned during his
sponsorship speech that one of the salient features of the bill
filed was "to require the chairman of the Board of Election
Inspectors to authenticate a ballot given to a voter by affixing his
signature on (sic) the back thereof and to consider any ballot as
spurious," R.A. 7166, as approved, does not contain any
provision to that effect. Clearly, therefore, the Congress as a
whole (House of Representatives and Senate) failed to adopt the
proposal of Rep. Palacol that ballots without the BEI Chairman's
signature at the back will be declared spurious. What is clearly
provided under the said law is the sanction imposable upon an
erring Chairman of the BEI, and not the disenfranchisement of
the voter. 3

32

(30) votes because of the error in the computation of the base


figure and rejected twelve (12) ballots for respondent Ramirez.
Respondent Ramirez, nevertheless, remained to be the winner
with a lead of ninety-nine (99) votes in his favor. As regards the
absence of BEI Chairman's signature at the back of the ballots,
the HRET stressed:

Fraud is not presumed. It must be sufficiently established.


Moreover, Section 211 of the Omnibus Election Code provides in
part that "in the reading and appreciation of ballots, every ballot
shall be presumed to be valid unless there is clear and good
reason to justify its rejection." In the instant case, there is no
evidence to support protestant's allegation that the ballots he
enumerated in his Motion for Reconsideration are substitute
ballots. The absence of the BEI Chairman's signature at the back
of the ballot cannot be an indication of ballot switching or
substitution. At best, such absence of BEI Chairman's signature
is a prima facie evidence that the BEI Chairmen concerned were
derelict in their duty of authenticating the ballots. Such omission,
as stated in the Decision, is not fatal to the validity of the ballots.
6

Thus, the present recourse.

A perusal of the grounds raised by petitioner to annul the HRET


decision and resolution boils down to the issue of whether or not
the HRET committed grave abuse of discretion in ruling that the
absence of the signature of the Chairman of the BEI in the
ballots did not render the ballots spurious.

Petitioner Libanan contends that the three hundred eleven (311)


ballots (265 of which have been for private respondent Ramirez)
without the signature of the Chairman of the BEI, but which had
the COMELEC water-marks and/or colored fibers, should be
invalidated. It is the position of petitioner that the purpose of the
law in requiring the BEI Chairman to affix his signature at the
back of the ballot when he issues it to the voter is "to
authenticate" the ballot and, absent that signature, the ballot
must be considered spurious.

Prefatorily, the Court touches base on its jurisdiction to review


and pass upon decisions or resolutions of the electoral tribunals.
In its assailed decision, the HRET ruled in favor of respondent
Ramirez; it concluded:

WHEREFORE, in light of the foregoing, the Tribunal Resolved to


DISMISS the instant election protest, including the parties'
mutual claims for damages and attorney's fee; AFFIRM the
proclamation of Protestee Jose Tan Ramirez; and DECLARE
him to be the duly elected Representative of the Lone District of
Eastern Samar, for having obtained a plurality of 143 votes over
second placer Protestant Marcelino Libanan. 4

Petitioner Libanan moved for a reconsideration of the decision of


the HRET arguing, among other grounds, 5 that the absence of
the BEI Chairman's signature at the back of the ballots could not
but indicate that the ballots were not those issued to the voters
during the elections. He averred that the law would require the
Chairman of the BEI to authenticate or sign the ballot before
issuing it to the voter. Acting on the petitioner's motion for
reconsideration, the HRET credited petitioner Libanan with thirty

The Constitutions mandates that the House of Representatives


Electoral Tribunal and the Senate Electoral Tribunal shall each,
respectively, be the sole judge of all contests relating to the
election, returns and qualifications of their respective members.
7 In Lazatin vs. HRET , 8 the Court has observed that

The use of the word "sole" emphasizes the exclusive character


of the jurisdiction conferred. The exercise of the power by the
Electoral Commission under the 1935 Constitution has been
described as "intended to be as complete and unimpaired as if it
had remained originally in the legislature." Earlier this grant of
power to the legislature was characterized by Justice Malcolm as
"full, clear and complete." Under the amended 1935 Constitution,
the power was unqualifiedly reposed upon the Electoral Tribunal
and it remained as full, clear and complete as that previously
granted the Legislature and the Electoral Commission. The same
may be said with regard to the jurisdiction of the Electoral
Tribunals under the 1987 Constitution. 9

Election Laws

The Court has stressed that ". . . so long as the Constitution


grants the HRET the power to be the sole judge of all contests
relating to the election, returns and qualifications of members of
the House of Representatives, any final action taken by the
HRET on a matter within its jurisdiction shall, as a rule, not be
reviewed by this Court . . . the power granted to the Electoral
Tribunal . . . excludes the exercise of any authority on the part of
this Court that would in any wise restrict it or curtail it or even
affect the same."

The Court did recognize, of course, its power of judicial review in


exceptional cases. In Robles vs. HRET , 10 the Court has
explained that while the judgments of the Tribunal are beyond
judicial interference, the Court may do so, however, but only, "in
the exercise of this Court's so-called extraordinary jurisdiction, . .
. upon a determination that the Tribunal's decision or resolution
was rendered without or in excess of its jurisdiction, or with grave
abuse of discretion or paraphrasing Morrero, upon a clear
showing of such arbitrary and improvident use by the Tribunal of
its power as constitutes a denial of due process of law, or upon a
demonstration of a very clear unmitigated error, manifestly
constituting such grave abuse of discretion that there has to be
remedy for such abuse."

In the old, but still relevant, case of Morrero vs. Bocar, 11 the
Court has ruled that the power of the Electoral Commission "is
beyond judicial interference except, in any event, upon a clear
showing of such arbitrary and improvident use of power as will
constitute a denial of due process." The Court does not, to
paraphrase it in Co vs. HRET, 12 venture into the perilous area
of the correcting perceived errors of independent branches of the
Government; it comes in only when it has to vindicate a denial of
due process or correct an abuse of discretion so grave or glaring
that no less than the Constitution itself calls for remedial action.

In the instant controversy, it would appear that the HRET


"reviewed and passed upon the validity of all the ballots in the
protested and counter-protested precincts, including those not
contested and claimed by the parties." 13 The Tribunal, added,
that "(t)his course of action was adopted not only to give effect to
the intent of each and every voter, but also to rectify any mistake
in appreciation, deliberate or otherwise, committed at the
precinct level and overlooked during the revision stage of this
case." 14 In holding that the absence of the signature of the
Chairman of the BEI at the back of the ballot does not invalidate
it, the HRET has ratiocinated in this wise:

No spurious ballot was found in this case. For a ballot to be


rejected for being spurious, the ballot must not have any of the
following authenticating marks: a) the COMELEC watermark; b)
the signatures or initial of the BEI Chairman at the back of the
ballot; and c) red and blue fibers. In the present case, all the
ballots examined by the Tribunal had COMELEC watermarks.

xxx

xxx

33

Suffrage and Electoral Reforms agreed during their deliberation


on the subject that the absence of the BEI Chairman's signature
at the back of the ballot will not per se make a ballot spurious.

Moreover, while Rep. Palacol, then Chairman of the Committee


on Suffrage and Electoral Reforms, mentioned during his
sponsorship speech that one of the salient features of the bill
filed was "to require the chairman of the Board of Election
Inspectors to authenticate a ballot given to a voter by affixing his
signature on (sic) the back thereof and to consider any ballot as
spurious," R.A. 7166, as approved, does not contain any
provision to that effect. Clearly, therefore, the Congress as a
whole (House of Representatives and Senate) failed to adopt the
proposal of Rep. Palacol that ballots without the BEI Chairman's
signature at the back will be declared spurious. What is clearly
provided under the said law is the sanction imposable upon an
erring Chairman of the BEI, and not the disenfranchisement of
the voter. 15

The pertinent provision of the law, Section 24 of R.A. No. 7166,


provides:

Sec. 24. Signature of Chairman at the back of Every Ballot. In


every case before delivering an official ballot to the voter, the
Chairman of the Board of Election Inspector shall, in the
presence of the voter, affix his signature at the back thereof.
Failure to authenticate shall be noted in the minutes of the Board
of Election Inspectors and shall constitute an election offense
punishable under Section 263 and 264 of the Omnibus Election
Code.

There is really nothing in the above law to the effect that a ballot
which is not so authenticated shall thereby be deemed spurious.
The law merely renders the BEI Chairman accountable for such
failure. The courts may not, in the guise of interpretation, enlarge
the scope of a statute and embrace situations neither provided
nor intended by the lawmakers. Where the words and phrases of
a statute are not obscure and ambiguous, the meaning and
intention of the legislature should be determined from the
language employed, and where there is no ambiguity in the
words, there should be no room for construction. 16

As so aptly observed by the Solicitor-General, House Bill ("HB")


No. 34811 (which later become R.A. No. 7166), approved by the
House of Representatives on third reading, was a consolidation
of different bills. Two of the bills consolidated and considered in
drafting H.B. No. 34811 were H.B. 34639 and H.B. No. 34660.
Section 22 of the two latter bills provided that:

In every case before delivering an official ballot to the voter, the


chairman of the Board of Election Inspectors shall, in the
presence of the voter, affix his signature at the back thereof. Any
ballot which is not so authenticated shall be deemed spurious.
Failure to so authenticate shall constitute an election offense. 17

xxx

Anent the BEI Chairman's signature, while Section 24 of R.A.


7166 provides that failure to authenticate the ballot shall
constitute an election offense, there is nothing in the said law
which provides that ballots not so authenticated shall be
considered invalid. In fact, the members of the Committee on

During the deliberation of the Committee on Suffrage and


Electoral Reforms, held on 08 August 1991, the members
agreed to delete the phrase "Any ballot which is not so
authenticated shall be deemed spurious." Pertinent portions of
the transcript of stenographic notes ("TSN") taken during the

Election Laws
Meeting of the Committee on Suffrage and Electoral Reforms
read:

THE CHAIRMAN. Yes, Congressman Mercado.

HON. MERCADO.
I, think, Section 22, we go to the
intent of the provision. I think the intent here is to sanction the
inspector so I would propose a compromise. The ballot should
not be deemed as spurious. However, it would rather be failure
of the inspector to, or the chairman to affix his signature would
rather be a circumstance which would aggravate the crime,
which would aggravate the election offense, on the part of the
inspector, but not to disenfranchise the voter. Because the
intention here is to punish the election inspector for not affixing
the signature. Why should we punish the voter? So I think the
compromise here. . .

34

THE CHAIRMAN. Yes, Mr. Chairman.

MR. MONSOD. Your honor, we're willing to accept that


amendment. Take out that sentence spurious, with the
introduction of the proposed measure . . . 18

The TSN of the proceedings of the Bicameral conference


Committee on Election Law, held on 29 October 1991, in turn,
would show these exchanges;

CHAIRMAN GONZALEZ: Are there anything more?

HON. ROCO.
There is a section in the Senate version about
the ballot being signed at the back.

THE CHAIRMAN. A serious election offense.

CHAIRMAN GONZALEZ. Counter side.

HON. MERCADO.
Yes, it should be a serious election
offense on the part of the chairman for not affixing the signature,
but not to make the ballot spurious.

HON. ROCO.
If it is not signed then it is being spurious
which is a very dangerous, I (think) (it) is a very dangerous
provision and so . . .

HON. RONO.

MR. MONSOD. We agree with the House version that anyway


when chairman of BEI doesn't sign subject to an election
offense. But it should not be a basis for disenfranchisement of
the voter. So, we believe we set this in the hearings in the House
that we should strike out that sentence that says that this ballot is
automatically spurious. 19

Mr. Chairman.

THE CHAIRMAN. Yes, Congressman Rono.

HON. RONO.
One thing that we have to guard against is
when we deal with the ballot and the right to suffrage, we should
not really make law that would prevent the flexibility of the
Commission on Elections, and the Supreme Court from getting
other extraneous efforts to confirm authenticity or the
spuriousness of the ballot, by making a provision that by that
single mistake or inadvertence of the chairman we make the
ballot automatically spurious is dangerous. It should be . . . what
I'm saying is that the Commission or the proper bodies by which
this matter will be taken up may consider it as one of the
evidences of spuriousness but not per se or ipso facto it
becomes; it should look for other extraneous evidence. So what I
am suggesting is let us give them this kind of flexibility before we
determine or before we say that this ballot is spurious, we give
the COMELEC some flexibility in the determination of other
extraneous evidence.

HON. GARCIA.

May I offer a suggestion?

THE CHAIRMAN. Yes, Congressman Garcia.

HON. GARCIA. That the fact that a ballot does not contain the
signature, I think, initial will not be sufficient, the signature of the
Chairman should be noted in the minutes. Noted in the minutes.
So that in case of protest, there is basis.

HON. RONO.
OO, may basis na. Iyon lang. I think that would
solve our problem.

Thus the final draft, which was later to become R.A. No. 7166,
no longer included the provision "Any ballot not so authenticated
shall be deemed spurious." The intention of the legislature even
then was quite evident.

The reliance on Bautista vs. Castro 20 by petitioner, is


misdirected. It must be stressed that B.P. Blg. 222, 21 otherwise
known as the "Barangay Election Act of 1982," approved on 25
March 1982, itself categorically expresses that it shall only be
"applicable to the election of barangay officials." Section 14 of
B.P. Blg. 222 and its implementing rule in Section 36 of
COMELEC Resolution No. 1539 have both provided:

Section 14 of B.P. 222:

Sec. 14. Official barangay ballots. The official barangay


ballots shall be provided by the city or municipality concerned of
a size and color to be prescribed by the Commission on
Elections.

Such official ballot shall, before it is handed to the voter at the


voting center, be authenticated in the presence of the voter, the
other Tellers, and the watchers present by the Chairman of the
Board of Election Tellers who shall affix his signature at the back
thereof.

Election Laws
Section 36 of COMELEC Resolution No. 1539:

Sec. 36. Procedure in the casting of votes. . . .

b.
Delivery of ballot. Before delivering the ballot to the
voter, the chairman shall, in the presence of the voter, the other
members of the board and the watchers present, affix his
signature at the back thereof and write the serial number of the
ballot in the space provided in the ballot, beginning with No. "1"
for the first ballot issued, and so on consecutively for the
succeeding ballots, which serial number shall be entered in the
corresponding space of the voting record. He shall the fold the
ballot once, and without removing the detachable coupon, deliver
it to the voter, together with a ball pen.

xxx

xxx

xxx

e.
Returning the ballot. (1) In the presence of all the
members of the Board, the voter shall affix his right hand
thumbmark on the corresponding space in the detachable
coupon, and shall give the folded ballot to the chairman. (2) The
chairman shall without unfolding the ballot or looking at its
contents, and in the presence of the voter and all the members
of the Board, verify if it bears his signature and the same serial
number recorded in the voting record. (3) If the ballot is found to
be authentic, the voter shall then be required to imprint his right
hand thumbmark on the proper space in the voting record. (4)
The chairman shall then detach the coupon and shall deposit the
folded ballot in the compartment for valid ballot and the coupon
in the compartment for spoiled ballots. (5) The voter shall then
leave the voting center.

f.
When ballot may be considered spoiled. Any ballot
returned to the chairman with its coupon already detached, or
which does not bear the signature of the chairman, or any ballot
with a serial number that does not tally with the serial number of
the ballot delivered to the voter as recorded in the voting record,
shall be considered as spoiled and shall be marked and signed
by the members of the board and shall not be
counted. 22

The difference in the rules may not be too difficult to discern. The
stringent requirements in B.P. Blg. 222 should be justifiable
considering that the official barangay ballots would be provided
by the city or municipality concerned with the COMELEC merely
prescribing their size and color. Thus, the official ballots in B.P.
Blg. 222, being supplied and furnished by the local government
themselves, the possibility of the ballots being easily
counterfeited might not have been discounted. The absence of
authenticating marks prescribed by law, i.e., the signature of the
chairman of the Board of Election Tellers at the back of the
ballot, could have well been really thought of to be fatal to the
validity of the ballot.

Section 24 of R.A. No. 7166, upon the other hand, contains no


similar stringent provisions such as that seen in Section 36(f) of
COMELEC Resolution No. 1539. The pertinent part in Resolution
No. 2676 on the requirement of the signature of the chairman is
found in Section 73 thereof which merely provides:

35

Sec. 73. Signature of chairman at the back of every ballot. In


every case, the chairman of the board shall, in the presence of
the voter, authenticate every ballot by affixing his signature at the
back thereof before delivering it to the voter. FAILURE TO SO
AUTHENTICATE SHALL BE NOTED IN THE MINUTES OF THE
BOARD AND SHALL CONSTITUTE AN ELECTION OFFENSE.

Again, in Resolution No. 2738, 23 promulgated by the


COMELEC on 03 January 1995, 24 which implemented, among
other election laws, R.A. No. 7166 (that governed the election for
Members of the House of Representatives held on 08 May
1995), the relevant provision is in Section 13 which itself has
only stated:

Sec. 13. Authentication of the ballot. Before delivering a ballot


to the voter, the chairman of the board shall, in the presence of
the voter, affix his signature at the back thereof.

It would appear evident that the ruling in Bautista vs. Castro was
prompted because of the express declaration in Section 36(f) of
COMELEC Resolution No. 1539, implementing Section 14 of
B.P. Blg. 222, that: "Any ballot returned to the chairman . . .
which does not bear the signature of the chairman . . . shall be
considered as spoiled . . . and shall not be counted." This Court
thus stated in Bautista:

The law (Sec 14 of B.P. Blg. 222,) and the rules implementing it
(Sec. 36 of Comelec Res. No. 1539) leave no room for
interpretation. The absence of the signature of the Chairman of
the Board of Election Tellers in the ballot given to a voter as a
required by law and the rules as proof of the authenticity of said
ballot is fatal. This requirement is mandatory for the validity of
the said ballot.

It should be noteworthy that in an unsigned 03rd April 1990


resolution, in "Jolly Fernandez vs. COMELEC," 25 the Court en
banc had the opportunity to debunk the argument that all ballots
not signed at the back thereof by the Chairman and the Poll
Clerk were to be considered spurious for non-compliance with
Section 15 of R.A. No. 6646, 26 i.e., "The Electoral Reforms Law
of 1987," reading as follows:

Sec. 15. Signature of Chairman and Poll Clerk at the Back of


Every Ballot. In addition to the preliminary acts before the
voting as enumerated in Section 191 of Batas Pambansa Blg.
881, the chairman and the poll clerk of the board of election
inspector shall affix their signatures at the back of each and
every official ballot to be used during the voting. A certification to
that effect must be entered in the minutes of the voting.

The Court declared:

The cardinal objective in the appreciation of the ballots is to


discover and give effect to the intention of the voter. That
intention would be nullified by the strict interpretation of the said
section as suggested by the petitioner for it would result in the
invalidation of the ballot even if duly accomplished by the voter,
and simply because of an omission not imputable to him but to
the election officials. The citizen cannot be deprived of his
constitutional right of suffrage on the specious ground that other

Election Laws
persons were negligent in performing their own duty, which in the
case at bar was purely ministerial and technical, by no means
mandatory but a mere antecedent measure intended to
authenticate the ballot. A contrary ruling would place a premium
on official ineptness
and make it possible for a small group of functionaries, by their
negligence or, worse, their deliberate inaction to frustrate
the will of the electorate. 27

Petitioner Libanan suggests that the Court might apply the


"ruling" of respondent HRET in the case of Yap vs. Calalay
(HRET Case No. 95-026). He states that "it is the HRET itself,
ironically, that deals the coup de grace to its ruling HRET Case
No. 95-020." The "ruling" cited by petitioner is actually a
"Confidential Memorandum," 28 dated 28 April 1997, from a
certain Atty. Emmanuel Mapili addressed to "PA Committees in
HRET Case No. 95-026 (Yap vs. Calalay)" which has for its
subject "(n)ew rulings to be followed in the appreciation of ballots
in HRET Case No. 95-026 (Yap vs. Calalay) and other
concerns." Petitioner Libanan quotes the pertinent portion of the
said Memorandum, viz:

WHEREFORE, the Tribunal Resolved that the following rules


and guidelines on the appreciation of ballots shall be given effect
in the resolution of this case and shall be applied prospectively to
other pending cases:

1.
The absence of the signature of the BEI Chairman at
the back of the ballot shall nullify the same and all the votes
therein shall not be counted in favor of any candidate. 29

Reliance by petitioner on this alleged "ruling", obviously


deserves scant consideration. What should, instead, be given
weight is the consistent rule laid down by the HRET that a ballot
is considered valid and genuine for as long as it bears any one of
these authenticating marks, to wit: (a) the COMELEC watermark,
or (b) the signature or initials, or thumbprint of the Chairman of
the BEI; and, (c) in those cases where the COMELEC
watermarks are blurred or not readily apparent to the naked eye,
the presence of red and blue fibers in the ballots. 30 It is only
when none of these marks appears extant that the ballot can be
considered spurious and subject to rejection.

It is quite clear, in the opinion of the Court, that no grave abuse


of discretion has been committed by respondent House of
Representatives Electoral Tribunal in its issuance of the assailed
decision and resolution.

On other important point. Regarding the membership of certain


Justices of this Court in the HRET and their participation in the
resolution of the instant petition, the Court sees no conflict at all,
and it, therefore, rejects the offer of inhibition by each of the
concerned justices. As early as Vera vs. Avelino, 31 this Court,
confronted with a like situation, has said unequivocally:

. . . Mulling over this, we experience no qualmish feelings about


coincidence. Their designation to the electoral tribunals deducted
not a whit from their functions as members of this Supreme
Court, and did not disqualify them in this litigation. Nor will their
deliverances hereat on a given question operate to prevent them

36

from voting in the electoral forum on identical questions; because


the Constitution, establishing no incompatibility between the two
roles, naturally did not contemplate, nor want, justices opining
one way here, and thereafter holding otherwise, pari materia, in
the electoral tribunal, or vice-versa. 32

Such has thus been, and so it is to be in this petition, as well as


in the cases that may yet come before the Court.

WHEREFORE, the instant petition is DISMISSED.

IT IS SO ORDERED.

MARUHOM vs. COMELEC (331 SCRA 473, G.R. No. 139357,


10
May 5, 2000)

Whether or not a motion to dismiss, filed after an answer has


been filed, is a prohibited pleading in an election protest pending
before the Regional Trial Court is the issue posed in this petition
for certiorari with prayer for preliminary injunction challenging the
Resolution of the Commission on Elections (COMELEC) dated
July 6, 19991 dismissing Comelec Case SPR No. 52-98.

The COMELEC's challenged order summarizes the relevant


facts of the controversy thus:

1.
Petitioner and private respondent were both candidates
for Mayor in the Municipality of Marogong, Lanao del Sur and
voted as such in the last May 11, 1998 national and local
election (sic). Petitioner is a re-electionist and a veteran
politician;

2.
The election in Marogong functioned on May 11, 1998,
and after the voting the ballot boxes were transmitted to the
Kalimodan Hall, Provincial Capitol of Lanao del Sur at Marawi
City where the automated counting of votes and canvass of
election returns were centralized;

3.
During the counting of votes, serious irregularities,
anomalies and electoral frauds were committed at the instance
of petitioner or his followers in that votes actually casted (sic) for
the private respondent were not counted and credited in his favor
thru (sic) the concerted acts, conspiracy and manipulation of the
Board of Election Inspectors, military, Election Officer and the
Machine Operator who happens to be a nephew of the petitioner;

4.
In Precincts Nos. 1A-1A1, 7A1, 8A, 10A-10A1 and 11A
about 115 official ballots were refused or rejected by the
counting machine which the private respondent's watchers or
representatives have requested and insisted to be re-fed to the
automated machine for the second and third times pursuant to
the provisions of Comelec Resolution No. 3030 but their
requests were not heeded by the Election Officer and the
Machine Operator, Solaiman Rasad, who is a close kin of the
Petitioner, and instead considered the said ballots as finally
10

Election Laws
rejected, while in Precincts Nos. 12A, 23A1 and 6A, around 56
ballots were found therein which were not drawn from the official
ballots and were included in the counting of votes over the
objection of the private respondent's watchers or
representatives;

5.
Before the termination of the counting of votes and
consolidation of the results, the machine operator and
Election Officer carried away from the Kalimodan Hall
diskette and brought the same to the down town without
knowledge of the private respondent's watchers
representatives;

the
the
the
the
or

6.
As a result of the foregoing irregularities, anomalies and
electoral frauds, the petitioner was illegally proclaimed as winner
because he appeared to have obtained 2,020 votes while the
private respondent garnered 2,000 votes with a slight margin of
only 20 votes;

7.
After the counting of votes, the ballot boxes were kept
at the Kalimodan Hall, Provincial Capitol, Marawi City guarded
and secured by military and PNP personnel together with the
watchers/representatives of the petitioner and the private
respondent and other candidates or political parties until they
were transported and delivered to the respondent court at
Malabang, Lanao del Sur sometime on August 13, 1998 by 1Lt.
Napisa AG together with the duly authorized representatives of
both parties.

xxx

xxx

37

5.
On July 17, 1998, an order was issued by this
Honorable Commission, (First Division) granting the private
respondent's motion to withdraw petition in SPC No. 98-228 and
considered the same withdrawn.6 . . . .

6.
Upon receipt of a copy of said order, dated July 17,
1998, private respondent filed an urgent motion before the
respondent court on July 27, 1998, praying for the issuance of an
order directing the proper officials/officers concerned to bring
and produce before said court the ballot boxes subjects of the
protest and counter-protest and to set the case for hearing as
mandated by law.7 . . . .

7.
After the delivery of the ballot boxes involved in the
protest and counter-protest, the public respondent issued an
order, dated August 17, 1998, setting Election Case No. 11-127
for hearing (a) for the creation of the Committee on Revision and
appointment of the Chairman and Members thereof; (b) making
of the cash deposit and payment of the revisor's compensation;
(c) partial determination of the case, etc. on September 1, 1998,
at 8:30 o'clock in the morning.8

8.
When the case was called for hearing on September 2,
1998, a Revision Committee was created and its membership
were duly appointed in open court which committee was directed
by the respondent court to finish the revision of ballots, if
possible, within 20 days from the commencement of the
revision.9 . . . .

xxx

1.
On May 22, 1998, private respondent, knowing that he
was cheated and the true winner for Mayor, filed before this
Honorable Commission a petition to annul the proclamation of
petitioner Abdulmadid Maruhom as the duly elected Mayor of
Marogong, Lanao del Sur docketed as SPC No. 98-226.2

2.
As precautionary measure to avoid any technicality,
private respondent filed on May 25, 1998, an ordinary "Protest
ad Cautelam" against the petitioner before the Regional Trial
Court, Branch 11, Malabang, Lanao del Sur entitled "Hadji Jamil
D. Dimaporo vs. Abdulmadid Maruhom" for election protest
(Manual Judicial Recount, revision and reappreciation of ballots)
docketed as Election Case No. 11-127.3

3.
On June 1, 1998, petitioner Abdulmadid Maruhom filed
an answer with counter-protest in Election Case No. 11-127
special and affirmative defenses and counter-protest.4 In his
answer petitioner prayed to hold in abeyance further proceedings
since the protest is ad cautelam or subject to the petition filed
before this Honorable Commission.

4.
On July 2, 1998, before SPC No. 98-228 could be set
for hearing by this Honorable Commission, the private
respondent as petitioner therein, filed a motion to withdraw his
petition in said SPC No. 98-228 albeit said case was among
those cases the proceedings of which were ordered to be
continued beyond June 30, 1998, under Comelec Resolution No.
3049 promulgated on June 29, 1998.5 . . . .

9.
After the Revision Committee was directed by the
respondent to commence the revision of ballots, the petitioner
Abdulmadid Maruhom thru counsel orally moved for the
dismissal of the protest on the grounds that (1) The ballot boxes
containing the ballots in the protested and counter-protested
precincts have been violated; (2) Automated counting of ballots
does not contemplate a manual recount of the ballots; and (3)
Protestant is guilty of forum shopping warranting summary
dismissal of the petitioner of the protest.

10.
The private respondent thru (sic) undersigned counsel,
vigorously opposed the said oral motion to dismiss and orally
argued that the motion is clearly dilatory having been made only
after the Revision Committee has been ordered to commence
the revision of ballots on September 1, 1998 and maintained that
(1) The motion to dismiss is not allowed in an election protest;
(2) The sanctity and integrity of the ballot boxes subject matter of
the protest and counter-protest have been preserved and never
violated; (3) The automated counting of ballots does not preclude
the filing of the election protest for the judicial recount and
revision of ballots; and (4) The private respondent is not guilty of
forum shopping because his petition of protest is clearly and
explicitly a Protest Ad Cautelam in view of the pendency of his
petition before this Honorable Commission which was withdrawn
by the private respondent before it could be set for hearing or
acted upon by this Honorable Commission.

11.
After the oral arguments of both parties, the petitioner's
counsel asked that he be given ample time to file a written
Omnibus Motion to Dismiss and the respondent court thru then
Acting Presiding Judge Rasad Balindong, issued an order dated
September 2, 1998, giving ten (10) days to Atty. Tingcap T.

Election Laws
Mortaba to file an Omnibus Motion in substantiation of all the oral
motions he made, furnishing a copy thereof to the undersigned
counsel for the private respondent who was likewise given an
equal period of time to comment. 10

12.
On September 11, 1998, petitioner filed his motion to
dismiss 11 and on September 21, 1998, the private respondent
filed a vigorous opposition to motion to dismiss. 12

13.
During the hearing on the motion to dismiss and the
opposition thereto on September 21, 1998, the petitioner's
counsel requested for ample time to file a rejoinder to the
vigorous opposition to motion to dismiss submitted by the private
respondent which was granted by the court and on September
28, 1998, petitioner filed his rejoinder 1 and on October 5, 1998
private respondent filed his comment 14 thereto and thereafter
all incidents were submitted for resolution of the court.

14.
On November 10, 1998, the respondent court thru
Honorable Presiding Judge Moslemen T. Macarambon, issued
the assailed order denying the petitioner's motion to dismiss for
lack of merit and ordering the Revision Committee to report to
the court on November 19, 1998, at 8:30 o'clock in the morning
for their oath taking and to receive the instruction of the court in
the revision of the ballots and other allied matters. 15

15.
On November 18, 1998, the petitioner filed a motion for
reconsideration of the order dated November 10, 1998, 16 and
on November 23, 1998, private respondent filed a vigorous
opposition [to motion] for reconsideration. 17

16.
Finding no compelling reason to disturb its order dated
November 10, 1998, the respondent court issued the assailed
order dated December 1, 1998 which denied the motion for
reconsideration for lack of merit. In the same order, the
respondent court reiterated its previous order to the members of
the Revision Committee to take their oaths before Atty. Raqueza
T. Umbaro or Atty. Khalil Laguindab and thereafter to convene
and start the revision of ballots on December 14, 15, 16, 17 and
18, 1998, morning and afternoon. 18

17.
As a diabolical scheme to cause further delay of the
proceedings of the case more specifically the revision of ballots,
the petitioner filed on December 10, 1998, the instant petition for
certiorari and prohibition with prayer for preliminary injunction
and on December 11, 1998, petitioner filed an urgent motion
before the respondent court praying that further proceedings in
Election Case No. 11-127 be deferred until after protestee's
petition for certiorari and prohibition before this Honorable
Commission shall have been finally resolved, copy of which was
served upon the undersigned counsel only on December 12,
1998, at 10:50
A.M. 19 . . . .

18.
That before the undersigned counsel could file his
opposition to said urgent motion on December 14, 1998 and in
the absence of a restraining order or writ of preliminary injunction
issued by (the COMELEC), the respondent judge already issued
an order granting the same motion and ordering the Revision
Committee to hold in abeyance the scheduled revision of ballots

38

on December 14, 15, 16, 17 and 18, 1998, etc. until further order
from the court . . . . 20

Petitioner alleges that in dismissing the petition the COMELEC


acted in excess of, or with grave abuse of discretion, amounting
to lack of jurisdiction
in

1.]
holding that a motion to dismiss an election protest
case filed in the Regional Trial Court is a prohibited pleading;

2.]
holding that the motion to dismiss filed after the answer
is not allowed;

3.]
failing to resolve the issues raised in SPR No. 52-98
which are sufficient legal bases to dismiss Election Case No. 11127.

In sum, petitioner insists that in refusing to pass upon the three


(3) principal issues raised in COMELEC Case SPR No. 52-98, to
wit:

1.
Whether or not public respondent acted in excess of, or
with grave abuse of discretion, amounting to lack of jurisdiction in
holding that a motion to dismiss an election protest case in the
Regional Trial Court is a prohibited pleading;

2.
Whether or not public respondent acted in excess of, or
with grave abuse of discretion, amounting to lack of jurisdiction,
in holding that a motion to dismiss filed after the answer to an
election protest case in the Regional Trial court is not allowed;
and

3.
Whether or not public respondent gravely abused its
discretion amounting to lack of jurisdiction, in failing to resolve
the relevant material and substantial issues raised in SPR No.
52-98.

the COMELEC "abdicated its duty under its own rules of


procedure and under the Constitution and the election laws."
Such abdication of duty, according to petitioner, amounts to
grave abuse of discretion amounting to lack of jurisdiction.

It must be borne in mind that the purpose of 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

Election Laws
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. 21

Sec. 2 (1) of Article IX 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 holding of free, orderly, honest, peaceful and
credible elections.

In accordance with this intent, the Court has been liberal in


defining the parameters of the COMELEC's powers in
conducting elections. Sumulong v. COMELEC 22 aptly points out
that

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 . . . . 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 . . . 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.

Succinctly stated, 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 An
election protest is imbued with public interest so much so that
the need to dispel uncertainties which becloud the real choice of
the people is imperative, 24 much more so in this case
considering that a mere twenty (20) votes separates the winner
from the loser of the contested election results.

The primordial issue to be resolved herein is whether or not the


COMELEC gravely abused its discretion in dismissing SPR No.
52-98.

In support of his cause, petitioner insists that there is "nothing


irregular or anomalous in the filing of the motion to dismiss" after
the filing of the answer because in effect he is merely insisting on
a preliminary hearing of his special and affirmative defenses.
Thus, he claims that the summary dismissal of his motion to
dismiss is tainted with grave abuse of discretion amounting to
lack or excess of jurisdiction.

We disagree.

The filing of the motion to dismiss, in fact, appears to be part of a


perfidious plot to prevent the early termination of the proceedings
in Election Case No. 4847 as evidenced by a confluence of
events clearly showing a pattern of delay employed by petitioner

39

to avert the revision ballots. These events, pointed out by private


respondent 25 and borne by the record, show
that

1.
It was only on September 1, 1999 after the creation of
the Revision Committee and the appointment of its Chairman
and Members and after the said committee was ordered by the
trial court to commence the revision and to render its report
within 20 days that the petitioner orally moved for the dismissal
of the case on the flimsy grounds that (1) the ballot boxes
subject of the protest and counter protest have been violated;
(2) the automated counting of ballots does not contemplate a
manual recount of ballots; and (3) protestant is guilty of forumshopping warranting summary dismissal of the protest;

2.
After the oral arguments on the oral motion to dismiss
the petitioner requested for ample time within which to file an
Omnibus Motion to Dismiss and over the vigorous opposition of
the private respondent the same was granted by the court and
the petitioner was given a period of ten (10) days to file the same
and the private respondent was likewise given a period of ten
(10) days to file his comment;

3.
On September 11, 1998, the motion to dismiss 26 and
during the hearing on the said motion and the opposition 27
thereto on September 21, 1998, the petitioner again asked for
ample time to file a rejoinder to the vigorous opposition to motion
to dismiss which was again granted by the court and it was only
on September 28, 1998 that said rejoinder was filed;

4.
After a denial of the motion to dismiss on November 10,
1998, 28 the petitioner filed a motion for reconsideration on
November 18, 1998; 29

5.
When the motion for reconsideration was denied on
December 1, 1998, 30 petitioner filed on December 18, 1998
before the Commission on Elections a petition for certiorari and
prohibition with prayer for preliminary injunction and asked the
trial court to defer the proceedings of Election Case No. 11-27
until after his petition shall have been finally resolved which was
granted by the trial court. Hence, the scheduled revision of the
ballots on December 14, 15, 16 and 17, 1998 was cancelled and
the proceedings of the case held in abeyance; 31

6.
As the Comelec En Banc did not give due course to
petitioner's prayer for writ of preliminary injunction, the trial court,
upon motion of the private respondent, issued an order for the
revision of ballots on February 8, 1999. 32 On said day, neither
the petitioner's counsel nor his designated revisors appeared,
instead the petitioner, assisted by his numerous armed men,
numbering around 30 stated (sic) in strategic places, prevented
the court personnel to enter the court premises. Were it not for
the maximum tolerance exercised by the PNP personnel and the
intervention of the local datus/leaders, there would have been
bloodshed;

7.
On February 9, 1999, the petitioner's counsel filed a
withdrawal of appearance with the attached letter-request of the
petitioner asking for the deferment of the revision of ballots for at
least two (2) weeks to enable him to engage the services of

Election Laws
another counsel. Considering that the incident was designed to
delay the further the early disposition of the case which would
frustrate the ends of justice, the court held in abeyance its ruling
on the withdrawal of appearance of and directed petitioner's
counsel to handle the case after the appearance of a new
counsel; 3

8.
To further delay the proceedings of the case, the
petitioner filed a petition for transfer of venue of the trial to from
RTC, Branch 11, Malabang, Lanao del Sur to Iligan City or in
Metro Manila which the private respondent did not oppose so as
not to delay the early resolution of this Honorable Supreme Court
on the said petition;

9.
Again, the proceedings of the case was held in
abeyance in view of the pendency of the said petition for transfer
of venue;

10.
After the dismissal of the petition in Election Case No.
52-98, the petitioner filed the instant petition for certiorari before
this Honorable Supreme Court with a prayer for issuance of
temporary restraining order;

11.
As a diabolical scheme to cause further delay of the
proceedings of the case, the petitioner filed an urgent motion
before this Honorable Supreme Court praying for the immediate
issuance of a TRO directing the Presiding Judge, RTC, Branch
III, Iligan City to cease, desist and refrain from conducting any
further proceedings of Election Case No. 4847 until the instant
case shall have been resolved. This Honorable Supreme Court,
without granting the prayer for TRO, directed the RTC, Branch
III, Iligan City not to promulgate any decision in the said election
case until further order[s] from this most Honorable Court. 34

It is clear, given the foregoing facts of this case, that the


roundabout manner within which petitioner virtually substituted
his answer by belatedly filing a motion to dismiss three (3)
months later is a frivolous resort to procedure calculated to
frustrate the will of the electorate. As pointedly observed by the
COMELEC in its challenged Resolution dated July 6, 1999, 35
petitioner only filed his motion to dismiss "when the results of the
trial appear[ed] to be adverse to him" 36 or right after the
creation of the Revision Committee had been ordered by the trial
court. If petitioner truly intended to move for the preliminary
hearing of his special and affirmative defenses as he claims,
then he should have simultaneously moved for the preliminary
hearing of his special and affirmative defenses at the time he
filed his answer. Otherwise, he should have filed his motion to
dismiss "within the time for but before filing the answer. . ."
pursuant to Section 1, Rule 16 of the 1997 Rules of Civil
Procedure.

Suffice it to state in this regard that such a whimsical change of


mind by petitioner can not be countenanced much more so in
election cases where time is of the essence in the resolution
thereof. Indeed, the Omnibus Election Code states in no
uncertain terms that

Sec. 258.
Preferential disposition of contests in courts.
The RTC, in their respective cases, shall give preference to
election contests over all other cases, except those of habeas

40

corpus, and shall, without delay, hear and within thirty (30) days
from the date of their submission for decision, but in every case
within six (6) months after filing, decide the same. . . . 37
(emphasis and italics supplied).

Petitioner further argues that his submissions that a.] the integrity
of the ballot boxes has been violated; b.] only rejected ballots or
ballots manually counted are the proper subjects of an election
protest; and c.] private respondent is guilty of forum-shopping,
are enough grounds to dismiss the case.

We remain unconvinced.

As aptly observed by the COMELEC in the challenged


Resolution, these grounds are "evidentiary in nature and can be
best ventilated during the trial of the case." 38 It needs be
stressed in this regard that the purpose of an election protest is
to ascertain whether the candidate proclaimed elected by the
board of canvassers is really the lawful choice of the electorate.
39 In an election contest where the correctness of the number of
votes is involved, the best and most conclusive evidence are the
ballots themselves; where the ballots can not be produced or are
not available, the election returns would be the best evidence. 40
In this case, the counted official ballots are available and there is
no evidence, other than the bare allegation of petitioner, that the
sanctity of the ballot boxes subject matter of the protest have
been violated or the official ballots contained therein impaired.
The best way, therefore, to test the truthfulness of petitioner's
claim is to open the ballot boxes in the protested precincts
followed by the examination, revision, recounting and reappreciation of the official ballots therein contained in
accordance with law and pertinent rules on the matter. Needless
to state this can only be done through a full-blown trial on the
merits, not a peremptory resolution of the motion to dismiss on
the basis of the bare and one-sided averments made therein.

Petitioner's reliance on COMELEC Resolution No. 2868 41 to


support his restrictive claim that only rejected ballots or ballots
manually counted in case of failure of the automated counting
machines are the proper subjects of an election protest, is just as
unpersuasive.

There is admittedly a lacuna leges in R.A. No. 8436 which


prescribes the adoption of an automated election system.
However, while conceding as much, this Court ruled in Tupay
Loong v. COMELEC, 42 that the Commission is nevertheless not
precluded from conducting a manual count when the automated
counting system fails, reasoning thus:

. . . In enacting R.A. No. 8436, Congress obviously failed to


provide a remedy where the error in counting is not machine
related for human foresight is not all-seeing. We hold, however,
that the vacuum in the law cannot prevent the COMELEC from
levitating above the problem. 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."
Undoubtedly, the text and intent of this provision is to give the
COMELEC all the necessary and incidental powers for it to
achieve the objective of holding free, orderly, honest, peaceful
and credible elections. Congruent to this intent, this Court has
not been niggardly in defining the parameters of powers of

Election Laws
COMELEC in the conduct of our elections . . . In the case at bar,
the COMELEC order for a manual count was not only
reasonable. It was the only way to count the decisive local votes
. . . The bottom line is that by means of the manual count, the will
of the voters of Sulu was honestly determined. We cannot kick
away the will of the people by giving a literal interpretation to
R.A. 8436. R.A. 8436 did not prohibit manual counting when
machine count does not work. Counting is part and parcel of the
conduct of an election which is under the control and supervision
of the COMELEC . . .

. . . Our 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.

Verily, 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."
4

Be that as it may, the fact is the averments in petitioner's


counter-protest and private respondent's protest already justified
the determination of the issues through a judicial revision and
recounting of the ballots pursuant to Section 255 of the Omnibus
Election Code which provides that

Sec. 255.
Judicial counting of votes in election contest.
Where allegations in a protest or counter-protest so warrant or
whenever in the opinion of the court the interests of justice so
require, it shall immediately order the book of voters, ballot
boxes and their keys, ballots and other documents used in the
election be brought before it and that the ballots be examined
and votes recounted. (Emphasis supplied)

So too must fall petitioner's procedural objection that private


respondent should be faulted for forum-shopping vis--vis this
Court's pronouncement in Samad v. COMELEC 44 which states
in no uncertain terms that

As a general rule, the filing of an election protest or a petition for


quo warranto precludes the subsequent filing of a preproclamation controversy, or amounts to the abandonment of
one earlier filed, thus depriving the COMELEC of the authority to
inquire into and pass upon the title of the protestee or the validity
of his proclamation. The reason is that once the competent
tribunal has acquired jurisdiction of an election protest or a
petition for quo warranto, all questions relative thereto will have
to be decided in the case itself and not in another proceeding.
This procedure will prevent confusion and conflict of authority.
Conformably, we have ruled in a number of cases that after a
proclamation has been made, a pre-proclamation case before
the COMELEC is no longer viable.

The rule admits of exceptions, however, as where: (1) the board


of canvassers was improperly constituted; (2) quo warranto was
not the proper remedy; (3) what was filed was not really a

41

petition for quo warranto or an election protest but a petition to


annul a proclamation; (4) the filing of a quo warranto petition or
an election protest was expressly made without prejudice to the
pre-proclamation controversy or was made ad cautelam; and (5)
the proclamation was null and void.

Petitioner's argument that the filing of a motion to dismiss in an


election contest filed with a regular court is not a prohibited
pleading is well taken. As we pointed out in Melendres, Jr. v.
COMELEC: 45

Neither can petitioner seek refuge behind his argument that the
motion to dismiss filed by private respondent is a prohibited
pleading under Section 1, Rule 13 of the COMELEC Rules of
Procedure because the said provision refers to proceedings filed
before the COMELEC. The applicable provisions on the matter
are found in Part VI of the Rules of Procedure titled
"PROVISIONS GOVERNING ELECTION CONTESTS BEFORE
TRIAL COURT" and as this Court pointedly stated in Aruelo v.
Court of Appeals 46

It must be noted that nowhere in Part VI of the COMELEC Rules


of Procedure is it provided that motions to dismiss and bill of
particulars are not allowed in election protests or quo warranto
cases pending before regular courts.

Constitutionally speaking, the COMELEC cannot adopt a rule


prohibiting the filing of a certain pleading in the regular courts.
The power to promulgate rules concerning pleadings, practice
and procedure in all courts is vested in the Supreme Court. 47

The foregoing pronouncement, however, will not extricate


petitioner from his predicament because the denial of petitioner's
motion to dismiss was based on the fact that the other grounds
relied therein was considered unmeritorious and not because the
said motion is a prohibited pleading in electoral protest cases.
While the challenged COMELEC Resolution may not have been
entirely correct in dismissing the petition in this regard, the
soundness of its discretion to accord unto the trial court the
competence to resolve the factual issues raised in the
controversy cannot be doubted. Indeed, as reasoned by the
COMELEC,
the

. . . Commission assumes the competence of the trial court to


handle electoral protest and cannot encroach on its original and
exclusive jurisdiction on electoral protest cases involving the
contested mayoralty seat. To our mind, the trial court should be
allowed to resolve the case on the merits to be able to rule on
the factual and legal grounds raised by the petitioner as his
defenses in his Answer. Should the petitioner be dissatisfied with
the outcome of the case in the lower court, he can still appeal, as
his relief, to this Commission within the reglementary period
provided by law.

Moreover

At balance, the question really boils down to a choice of


philosophy and perception of how to interpret and apply the laws

Election Laws
relating to elections; literal or liberal; the letter or the spirit; the
naked provision or the ultimate purpose; legal syllogism or
substantial justice; in isolation or in the context of social
conditions; harshly against or gently in favor of the voter's
obvious choice. In applying elections laws, it would be far better
to err in favor of popular sovereignty than to be right in complex
but little understood legalisms. 48

WHEREFORE, in view of all the foregoing, the petition is hereby


DISMISSED for lack of merit.

42

would have garnered the highest number of votes for the Office
of Member of the House of Representatives in the Second
District of Palawan, which was the true expression of the will of
the voters of the Province of Palawan.

10.
The proclamation by the members of the Provincial
Board of Canvassers of Palawan that the protestee was
allegedly the duly elected Member of the House of
Representatives for the Second District of Palawan is contrary to
law and to the true expression of the will of the voters of the
Province of Palawan. 2

SO ORDERED.

PEA vs. HRET (270 SCRA 340, G.R. No. 123037, March 21,
11
1997)

Assailed herein is the October 12, 1995 Resolution 1 of the


House of Representatives Electoral Tribunal (HRET) dismissing
the Petition Ad Cautelam of the Petitioner Teodoro Q. Pea in
HRET Case No. 95-014. Petitioner questioned the election of the
private respondent Alfredo E. Abueg, Jr. as Member of the
House of Representatives representing the Second District of the
province of Palawan.

Petitioner and the private respondent were contenders for the


said Congressional Office in the May 8, 1995 elections. On May
12, 1995, upon canvassing the votes cast, the Provincial Board
of Canvassers of Palawan proclaimed the private respondent as
the winner.

On May 22, 1995, the instant petition was filed with the HRET,
wherein the petitioner, as protestant, averred that:

7.
The elections in the precincts of the Second District of
Palawan were tainted with massive fraud, widespread votebuying, intimidation and terrorism and other serious irregularities
committed before, during and after the voting, and during the
counting of votes and the preparation of election returns and
certificates of canvass which affected the results of the election.
Among the fraudulent acts committed were the massive votebuying and intimidation of voters, disenfranchisement of
petitioner's known supporters through systematic deletion of
names from the lists of voters, allowing persons to vote in excess
of the number of registered voters, misappreciation, misreading
and non-reading of protestant's ballots and other irregularities.

8.
According
to
the
Statement
of
Votes
by
Precinct/Municipality/City, the protestee allegedly obtained
52,967 votes, while the protestant allegedly obtained 46,023
votes, or a difference of 6,944 votes. A copy of said document is
attached hereto as Annex "B".

9.
Had the massive fraud, widespread intimidation and
terrorism and other serious irregularities not been committed, the
result of the elections for Member of the House of
Representatives would have been different and the protestant
11

Private respondent-Protestee Abueg filed an Answer With


Affirmative Defense, Counterclaim and Counter-Protest 3 on
June 5, 1995, to which Pea filed a Reply on June 23, 1995.
Subsequent to the filing of his Answer, Abueg filed a Motion to
Dismiss 4 the Petition on June 22, 1995, averring that the HRET
has not acquired jurisdiction over the petition, the same being
insufficient in form and substance. In essence, the motion to
dismiss anchors its challenge on the fact that the petition failed
to allege the precincts where the massive fraud and
disenfranchisement of voters occurred, nor did it point out how
many votes would be gained by the protestant as a result of the
same.

Petitioner filed an Opposition to the Motion to Dismiss 5 on July


10, 1995, attaching thereto a Summary of Contested Precincts,
naming 700 precincts where election irregularities allegedly
occurred.

In its Resolution of October 12, 1995, the respondent HRET


ruled that although it had jurisdiction over the petition, as the sole
judge of all contests relating to the election, returns and
qualifications of the members of the House of Representatives,
the said petition, however, fails to state a cause of action, and is
therefore, insufficient in form and substance, meriting its
dismissal.

The HRET states pertinently:

There are 743 precincts in the second congressional district of


Palawan which is comprised of Puerto Princesa City and the
municipalities of Aborlan, Balabac, Bataraza, Brooke's Point,
Narra, Quezon, and Marcos (Ordinance appended to the 1973
Constitution). The Protestant failed to specify which are the 700
precincts, out of the said 743 precincts, that are included in his
protest; he even failed to allege the municipalities where the
protested precincts are located. Worse, the body of the Petition
does not even mention the 700 precincts. Reference to them is
made only in the Prayer. These omissions prevent Protestee
from being apprised of the issues which he has to meet and
make it virtually impossible for the Tribunal to determine which
ballot boxes have to be collected.

The Supreme Court, in Fernando vs. Pastor M. Endencia, Judge


of First Instance of Bulacan, et al. (No. 46099, 66 Phil 148, 150,
August 30, 1938) observed that, "[w]hile the election law does
not say so directly, it is clearly inferred from its relevant
provisions that where the grounds of contest are that legal votes
were rejected and illegal votes received, the motion of protest
should state in what precincts such irregularities occurred, . . .

Election Laws
The specification in the motion of protest of the election precinct
or precincts where the alleged irregularities occurred, is required
in order to apprise the contestee of the issues which he has to
meet. . . .

43

to Dismiss and to DISMISS, as it hereby DISMISSES, the instant


Petition of Protest. As a logical consequence thereof and also for
the same reason, Protestee's Counter-Protest is DISMISSED.

No pronouncements as to costs.
In its more recent resolution in Grand Alliance for Democracy
(GAD) vs. COMELEC (G.R. No. 78302, May 26, 1987, 150
SCRA 665), the Supreme Court held that the petition therein
"could have been dismissed outright as deficient in form and
substance, being couched in general terms only, without precise
indication of the time, place and manner of the commission of
the alleged irregularities."

xxx

xxx

xxx

Similarly, this Tribunal, in dismissing an election protest,


observed that the protest, in general language, "impugns,
contests and protests the illegal, improper and fraudulent
electoral practices, acts and deeds" of the protestee and
"impugns and contests all the election returns in the lone district
of Catanduanes." The tribunal held that this scattershot
allegation is not allowed in election contests and that "it is
necessary to make a precise indication of the precincts protested
and a specification of the claimed offenses to have been
committed by the parties." (Alberto vs. Tapia, HRET Case No.
37, January 23, 1989)

While Protestant has attached as Annex "A" to his Opposition to


the Motion to Dismiss, filed on 10 July 1995, a Summary of
contested Precincts, the defects in his Protest were not cured
thereby as the Summary was submitted only after the Motion to
Dismiss had been filed. The Opposition and the attached
Summary do not amend the original Petition. There is not even a
prayer in the Opposition suggesting such amendment.

Moreover, in a Resolution promulgated on 17 June 1995, the


Commission on Elections en banc (COMELEC) dismissed herein
Petitioner's Petition (SPA Case No. 95-258) to declare a failure
of elections in the second district of Palawan. Copy of said
Resolution was sent to Petitioner Pea through registered mail
and was received by him on 28 June 1995. Since Petitioner did
not appeal from the Resolution, it became final on 3 July 1995
pursuant to Section 13 (b), Rule 18 of the COMELEC Rules of
Procedure. Even assuming that SPA Case No. 95-258 had tolled
the running of the period to file a protest and Protestant Pea's
Petition Ad Cautelam was thus converted into a regular protest
(not Ad Cautelam) effective upon the finality of the official
COMELEC resolution, thereby providing him an opportunity to
amend it to cure the defects cited above, Protestant took no
positive and affirmative steps for that purpose.

Protestant alleges in his Opposition that Protestee has likewise


failed to specify the 47 precincts he contests in his CounterProtest. This omission merely renders Protestee's CounterProtest defective for insufficiency in form and substance and for
failure to state a cause of action. It does not cure the fatal
defects in Protestant's Petition.

WHEREFORE, for failure of the Petition (Protest) to state a


cause of action because it is fatally insufficient in form and
substance, the Tribunal Resolved to GRANT Protestee's Motion

SO ORDERED. 6

Petitioner's motion for reconsideration of the said resolution was


denied by the respondent tribunal on November 14, 1995.

In this Petition for Certiorari, filed on December 29, 1995,


petitioner argues that the respondent HRET acted with grave
abuse of discretion amounting to having acted without or in
excess of jurisdiction in dismissing the election protest of
petitioner considering that:

THE PETITION AD CAUTELAM DATED 22 MAY 1995 STATED


A CAUSE OF ACTION AND IS SUFFICIENT IN FORM AND
SUBSTANCE.

II

ASSUMING ARGUENDO THAT THE PETITION WAS


INITIALLY DEFECTIVE BECAUSE IT FAILED TO SPECIFY
THE CONTESTED PRECINCTS, SAID DEFECT WAS CURED
WHEN PETITIONER SUBMITTED A SUMMARY OF THE
CONTESTED PRECINCTS WHICH FORMS PART OF THE
RECORD OF THE RESPONDENT HRET.

It is the Petitioner's view that the instant election protest is


sufficient in form and substance even while failing to specify the
precincts where irregularities allegedly occurred. Nowhere is it
provided that the specification of the precincts is a jurisdictional
requirement that must be complied with in order that an election
protest can be entertained by the HRET. To support his
submission, petitioner cites the cases of Yalung vs. Atienza, 52
Phil 781, Arao vs. COMELEC, 210 SCRA 790 and Gallares vs.
Casenas, 48 Phil 362, the latter stating that:

From a reading of the allegations of the protest, it may be seen


that frauds, irregularities and violations of the law are alleged
therein, which, if true, would undoubtedly change the result of
the elections.

The fact that in the protest the number of votes which would
result in favor of the protestant after the judicial counting is not
specified, does not affect the right of the protestant, for it being
known that said omission is a defect of the protest, the same
may be cured by a specification of the votes mentioned in
paragraphs 1, 2 and 3 of the protest, without thereby adding new
grounds for those already alleged by the protestant.

Election Laws
Applying the same principle to the specification of precincts in
the instant case, the defect in the petition should have been
cured by the opposition to the private respondent's Motion to
Dismiss.

Moreover, the fact that the HRET did not summarily dismiss the
Petition Ad Cautelam, and instead, required the private
respondent Abueg to file an Answer, the HRET has thus made a
prior determination that the petition is sufficient in form and
substance.

We do not agree,

In the first place, in requiring the private respondent to answer


the petition, the HRET was not ruling on the formal and
substantive sufficiency of the petition. The order to require an
answer is but a matter of course, as under the Revised Rules of
Procedure of the HRET, it is provided that:

RULE 22.
Summons. Upon the filing of the petition,
the Clerk of the Tribunal shall forthwith issue the corresponding
summons to the protestee or respondent together with a copy of
the petition, requiring him within ten (10) days from receipt
thereof to file his answer.

As to the adequacy of the protest, we agree with respondent


HRET in ruling for the insufficiency of the same.

A perusal of the Petition Ad Cautelam, reveals that Petitioner


makes no specific mention of the precincts where widespread
election, fraud and irregularities occured. This is a fatal omission,
as it goes into the very substance of the protest. Under Section
21 of the Revised Rules of Procedure of HRET, insufficiency in
form and substance of the petition constitutes a ground for the
immediate dismissal of the Petition.

The prescription that the petition must be sufficient in form and


substance means that the petition must be more than merely
rhetorical. If the allegations contained therein are unsupported by
even the faintest whisper of authority in fact and law, then there
is no other course than to dismiss the petition, otherwise, the
assumption of an elected public official may, and will always be
held up by petitions of this sort by the losing candidate.

Notably, the instant petition ad cautelam poses a more serious


inadequacy than a mere failure to specify the number of votes
which would inure to the protestant, as was the case in Gallares
vs. Casenas, or the failure to impugn the validity of some of the
ballots cast, as in Yalung vs. Atienza, supra, both of which cases
were decided in the 1920s. The defect in the instant case arises
from the failure to allege the contested precincts. Only a bare
allegation of "massive fraud, widespread intimidation and
terrorism and other serious irregularities", without specification,
and substantiation, of where and how these occurrences took
place, appears in the petition. We cannot allow an election
protest based on such flimsy averments to prosper, otherwise,
the whole election process will deteriorate into an endless
stream of crabs pulling at each other, racing to disembank from
the water.

44

On his second point of argument, Petitioner likewise fails to


impress. The Court has already ruled in Joker P. Arroyo vs.
HRET, 7 that substantial amendments to the protest may be
allowed only within the same period for filing the election protest,
which, under Rule 16 of the HRET Rules of Procedure is ten (10)
days after the proclamation of the winner.

While it is conceded that statutes providing for election contests


are to be liberally construed to the end that the will of the people
in the choice of public officers may not be defeated by mere
technical questions, the rule likewise stands, that in an election
protest, the protestant must stand or fall upon the issues he had
raised in his original or amended pleading filed prior to the lapse
of the statutory period for filing of the protest. 8

Admittedly, the rule is well-established that the power to annul an


election should be exercised with the greatest care as it involves
the free and fair expression of the popular will. It is only in
extreme cases of fraud and under circumstances which
demonstrate to the fullest degree a fundamental and wanton
disregard of the law that elections are annulled, and then only
when it becomes impossible to take any other step. 9 . . . This is
as it should be, for the democratic system is good for the many
although abhorred by a few.

In sum, this Court's jurisdiction to review decisions and orders of


electoral tribunals operates only upon a showing of grave abuse
of discretion on the part of the tribunal. Only where such grave
abuse of discretion is clearly shown shall the Court interfere with
the electoral tribunal's judgment. There is no such showing in the
present petition.

IN VIEW OF THE FOREGOING, the Court hereby resolves to


DISMISS the present petition for lack of merit. The Resolution of
the respondent House of Representatives Electoral Tribunal
dated October 12, 1995 is hereby AFFIRMED.

SO ORDERED,

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