Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 153945

February 4, 2003

REYNATO BAYTAN, REYNALDO BAYTAN and ADRIAN BAYTAN, petitioners,

vs.
THE COMMISSION ON ELECTIONS, respondent.
DECISION
CARPIO, J.:
The Case
Challenged in this petition for certiorari 1 with prayer for temporary restraining order and preliminary injunction is the
Resolution dated June 3, 20022 of the Commission on Elections ("COMELEC" for brevity) en banc in E.O. Case No. 97503. In its assailed Resolution, the COMELEC en banc denied the motion to reconsider Minute Resolution No. 00-2281
dated November 9, 20003 ordering the Law Department to file criminal cases for "double registration" against
petitioners Reynato Baytan, Reynaldo Baytan and Adrian Baytan ("petitioners" for brevity).
The Antecedents
On June 15, 1997, petitioners were on their way to register for the May 1998 elections when they met the newly
elected Barangay Captain, Roberto Ignacio ("Ignacio" for brevity), in Barangay 18, Zone II of Cavite City. Ignacio led
petitioners to register in Precinct No. 83-A of Barangay 18. Petitioners registered in this precinct as evidenced by
Voters Registration Records Nos. 41762473, 41762472 and 41762470.
When petitioners returned home, they wondered why the registrants in this precinct looked unfamiliar to them. This
prompted petitioners to return to the registration center to study the precinct map of Barangay 18. They then realized
that their residence is situated within the jurisdiction of Barangay 28. Thus, petitioners proceeded to Precinct 129-A of
Barangay 28 and registered anew on June 22, 1997 as evidenced by Voters Registration Records Nos. 42662969,
42662968 and 42662917.
Subsequently, petitioners sent a letter dated August 21, 1997 to former COMELEC Assistant Executive Director Jose
Pio O. Joson and furnished a copy thereof to COMELEC Registrar Francisco Trias. In this letter, petitioners requested
for advice on how to cancel their previous registration. They also explained the reason and circumstances of their
second registration and expressed their intention to redress the error.
On September 16, 1997, the Election Officer of Cavite City forwarded copies of petitioners Voters Registration Records
to the Provincial Election Supervisor, Atty. Juanito V. Ravanzo ("Ravanzo" for brevity), for evaluation. Ravanzo
endorsed the matter to the Regional Director for prosecution. Eventually, the Law Department endorsed the case to
Ravanzo for resolution.
On January 10, 1998, Ravanzo recommended filing an information for double registration against petitioners. In an en
banc meeting held on November 09, 2000, the COMELEC in its Minute Resolution No. 00-2281 affirmed the
recommendation of Ravanzo. Petitioners moved for reconsideration. The COMELEC en banc denied the motion and
disposed as follows:
"WHEREFORE, premises considered, the En Banc resolution dated November 9, 2000 is hereby AFFIRMED. The Law
Department is hereby directed to file the proper information against respondents for violation of Art. XXII, Sec. 261,
par. (y) sub-par. (5) of the Omnibus Election Code."
Hence, the instant petition.
The Issues

Petitioners contend that the COMELEC en banc committed grave abuse of discretion amounting to lack or excess of
jurisdiction in
1. Recommending the prosecution of petitioners for double registration despite clear and convincing evidence
on record that they had no intention of committing said election offense;
2. Not considering the letter dated August 21, 1997 addressed to the COMELEC Assistant Director of Cavite
City as substantial compliance with the requirement of the law for cancellation of previous registration; and
3. Taking cognizance of the case in the first instance in violation of Section 3, Article IX-C of the Constitution.
In sum, petitioners insist they are innocent of any wrongdoing in their act of registering twice on different days in two
different precincts. Petitioners argue that they did not intend to perpetrate the act prohibited, and therefore they
should be exculpated. They claim honest mistake and good faith in registering twice. Petitioners claim they made the
first registration because of the intervention and instigation of Ignacio.
Petitioners theorize that their August 21, 1997 letter to the election registrar of Cavite City informing him of the lapse
and asking how to rectify the same constitutes substantial compliance with the Omnibus Election Codes requirement
of cancellation of prior registration. They further implore a liberal construction of the laws on election offenses since
almost five years had lapsed from the date of the commission of the offense on June 15, 1997. They claim the case is
about to prescribe under the Election Code.
Lastly, petitioners fault the COMELEC en banc for assuming original jurisdiction over the case in contravention of
Section 3, Article IX-C of the Constitution. Petitioners argue that this constitutional provision requires that election
cases must first be heard and decided by a Division before assumption of jurisdiction by the COMELEC en banc.
The Courts Ruling
The petition is bereft of merit.
First and Second Issues: Whether the criminal cases should be dismissed on the ground of lack of intent and
substantial compliance with the requirement of cancellation of previous registration.
In Minute Resolution No. 00-2281 dated November 9, 2000, the COMELEC en banc affirmed the recommendation of
the investigating officer. The COMELEC thus directed its Law Department to file the necessary information against
petitioners for violation of Article XXII, SEC. 261 (y) (5) of the Election Code which reads:
"SEC. 261. Prohibited Acts. The following shall be guilty of an election offense:
(y) On Registration of Voters:
(5) Any person who, being a registered voter, registers anew without filing an application for cancellation of
his previous registration."
Petitioners filed a motion for reconsideration to which the COMELEC en banc issued the assailed Resolution dated June
3, 2002 affirming the Minute Resolution.
The grant by the Constitution to the COMELEC of the power to investigate and prosecute election offenses is intended
to enable the COMELEC to assure the people of "free, orderly, honest, peaceful and credible elections." This grant is an
adjunct to the COMELECs constitutional duty to enforce and administer all election laws. Failure by the COMELEC to
exercise this power could result in the frustration of the true will of the people and make an idle ceremony of the
sacred right and duty of every qualified citizen to vote. 4
Petitioners lose sight of the fact that the assailed resolutions were issued in the preliminary investigation stage. A
preliminary investigation is essentially inquisitorial and is only the means to discover who may be charged with a
crime, its function being merely to determine probable cause. 5 All that is required in the preliminary investigation is
the determination of probable cause to justify the holding of petitioners for trial. By definition, probable cause is
"x x x a reasonable ground of presumption that a matter is, or may be, well founded x x x such a state of facts in the
mind of the prosecutor as would lead a person of ordinary caution and prudence to believe or entertain an honest or
strong suspicion that a thing is so. The term does not mean `actual or positive cause nor does it import absolute

certainty. It is merely based on opinion and reasonable belief. Thus, a finding of probable cause does not require an
inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or
omission complained of constitutes the offense charged. Precisely, there is a trial for the reception of evidence of the
prosecution in support of the charge."6
There is no question that petitioners registered twice on different days and in different precincts without canceling
their previous registration. Aside from this, the COMELEC found certain circumstances prevailing in the case sufficient
to warrant the finding of probable cause. The COMELEC noted that petitioners wrote down their address in Precinct
No. 83-A of Barangay 18 as No. 709 T. Gomez Extension St., Barangay 18-Maya, Cavite City. However, in Precinct No.
129-A of Barangay 28, petitioners registered as residents of No. 709 Magcawas St., Barangay 28-Taurus, Caridad,
Cavite City. The COMELEC noted further that the affidavits submitted by petitioners contained glaring inconsistencies.
Petitioners claimed that Ignacio led them to the wrong precinct to register. However, Ignacios affidavit stated that
while he led them to the voting precinct of Barangay 18, he immediately left the area not knowing that petitioners
registered in the wrong barangay. Contrary to petitioners sworn statements, Aurora Baytan, mother of petitioners,
had another version. She claimed in her affidavit that on June 15, 1997, Ignacio went to their house to inform them
about the redefinition of their barangays territorial jurisdiction. Right then and there, Ignacio brought her sons to
Barangay 18 to register.
The COMELEC also pointed out that since "double registration" is malum prohibitum, petitioners claim of lack of intent
to violate the law is inconsequential. Neither did the COMELEC consider petitioners letter dated August 22, 1997 as an
application to cancel their previous registration. The COMELEC explained that this letter was sent after their second
registration was accomplished and after the election officer of Cavite City had already reported their act of double
registration to a higher official.
All told, a reasonably prudent man would readily conclude that there exists probable cause to hold petitioners for trial
for the offense of double registration.
Moreover, petitioners claims of honest mistake, good faith and substantial compliance with the Election Codes
requirement of cancellation of previous registration are matters of defense best ventilated in the trial proper rather
than at the preliminary investigation. 7 The established rule is that a preliminary investigation is not the occasion for
the full and exhaustive display of the parties evidence. It is for the presentation of such evidence only as may
engender a well-grounded belief that an offense has been committed and the accused is probably guilty thereof. 8
It is also well-settled that the finding of probable cause in the prosecution of election offenses rests in the COMELECs
sound discretion. The COMELEC exercises the constitutional authority to investigate and, where appropriate, prosecute
cases for violation of election laws, including acts or omissions constituting election frauds, offenses and malpractices. 9
Generally, the Court will not interfere with such finding of the COMELEC absent a clear showing of grave abuse of
discretion. This principle emanates from the COMELECs exclusive power to conduct preliminary investigation of all
election offenses punishable under the election laws and to prosecute the same, except as may otherwise be provided
by law.10
We also cannot accept petitioners plea for a liberal construction of the laws on the ground of prescription. Prescription
of the crime or offense is the forfeiture or loss of the right of the State to prosecute the offender after the lapse of a
certain time.11
Section 267 of the Election Code provides that "election offenses shall prescribe after five years from the date of their
commission." In this case, the offense of double registration allegedly occurred on June 22, 1997 when petitioners
registered for a second time in a different precinct without canceling their previous registration. At this point, the
period of prescription for the alleged offense started to run.
However, prescription is interrupted when proceedings are instituted against the offender. Specifically, the period of
prescription is interrupted by the filing of the complaint even if it be merely for purposes of preliminary examination or
investigation.12
The COMELEC initiated the complaint for double registration against petitioners motu proprio under Sections 3, 13 414
and 5,15 Rule 34 of the 1993 COMELEC Rules of Procedure. On September 16, 1997, the Election Officer of Cavite City
forwarded copies of petitioners Voters Registration Records for evaluation to Atty. Juanito V. Ravanzo, Provincial
Election Supervisor of Cavite City, who was also tasked to investigate the case. Ravanzo endorsed the matter to the
Regional Director for prosecution. The Regional Director forwarded the case to the Law Department and the latter reendorsed the same to the office of Ravanzo for resolution. A preliminary investigation hearing was conducted on
January 19, 1998 where petitioners were instructed to submit their counter-affidavits. After the preliminary
investigation and based on the affidavits and other evidence submitted in the case, Ravanzo recommended the
prosecution of petitioners for the offense of double registration. Ineluctably, the prescriptive period of the offense was

interrupted upon the COMELECs initiation of proceedings against petitioners and remains tolled pending the
termination of the case.
The liberal construction of punitive laws in relation to the prescription of offenses cannot be invoked to prejudice the
interest of the State to prosecute election offenses, especially those which the COMELEC described as "ruffling the
electoral system."16
Third Issue: Whether the COMELEC en bancs assumption of original jurisdiction over the case violated the
Constitution.
Petitioners rely on Section 3, Article IX-C of the 1987 Constitution which states:
"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."
Petitioners assert that this constitutional provision serves as basis to nullify the proceedings conducted and orders
issued by the COMELEC en banc in E.O. Case No. 97-503. Petitioners cite Sarmiento v. Comelec 17 and Zarate v.
Comelec18 to support their stand that the COMELEC en banc acted without jurisdiction or with grave abuse of
discretion when it assumed original jurisdiction over the case without first referring the same to any of its divisions. In
Sarmiento and Zarate, the Court similarly held that "election cases must first be heard and decided by a Division of
the Commission," and that the "Commission, sitting en banc, does not have the authority to hear and decide the same
at the first instance."
In its Comment for the COMELEC, the Solicitor General points out that the rulings in Sarmiento and Zarate were
clarified in Canicosa v. COMELEC19 to mean that
"[I]t is only in the exercise of its adjudicatory or quasi judicial powers that the COMELEC is mandated to hear and
decide cases first by division and then, upon motion for reconsideration, by the COMELEC en banc. This is when it is
jurisdictional."
The Solicitor General contends that the conduct of a preliminary investigation before the filing of an information in
court does not in any way adjudicate with finality the rights and liabilities of the parties investigated. A preliminary
investigation does not make any pronouncement as to the guilt or innocence of the party involved. Hence, a
preliminary investigation cannot be considered a judicial or quasi-judicial proceeding required to be heard by the
Division in the first instance.
On the other hand, petitioners countered that in Cruz v. People, 20 the Court held that the conduct of a preliminary
investigation "is a judicial or quasi-judicial proceeding since there is opportunity to be heard and for the production
and weighing of evidence and a decision is rendered thereon."
Under Section 2, Article IX-C of the 1987 Constitution, the COMELEC exercises both administrative and quasi-judicial
powers. The COMELECs administrative powers are found in Section 2 (1), (3), (4), (5), (6), (7), (8), and (9) of Article
IX-C.21 The 1987 Constitution does not prescribe how the COMELEC should exercise its administrative powers, whether
en banc or in division. The Constitution merely vests the COMELECs administrative powers in the "Commission on
Elections," while providing that the COMELEC "may sit en banc or in two divisions." Clearly, the COMELEC en banc can
act directly on matters falling within its administrative powers. Indeed, this has been the practice of the COMELEC
both under the 1973 and 1987 Constitutions. 22
On the other hand, the COMELECs quasi-judicial powers are found in Section 2 (2) of Article IX-C, to wit:
"Section 2. The Commission on Elections shall exercise the following powers and functions:
xxx
(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all
elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal
officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of
limited jurisdiction.

Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay
offices shall be final, executory, and not appealable."
The COMELECs exercise of its quasi-judicial powers is subject to Section 3 of Article IX-C which expressly requires
that all election cases, including pre-proclamation controversies, shall be decided by the COMELEC in division, and the
motion for reconsideration shall be decided by the COMELEC en banc. It follows, as held by the Court in Canicosa, 23
that the COMELEC is mandated to decide cases first in division, and then upon motion for reconsideration en banc,
only when the COMELEC exercises its quasi-judicial powers.
The COMELEC is empowered in Section 2(6), Article IX-C of the 1987 Constitution to "prosecute cases of violations of
election laws." The prosecution of election law violators involves the exercise of the COMELECs administrative powers.
Thus, the COMELEC en banc can directly approve the recommendation of its Law Department to file the criminal
information for double registration against petitioners in the instant case. There is no constitutional requirement that
the filing of the criminal information be first decided by any of the divisions of the COMELEC.
In sum, the second sentence of Section 3, Article IX-C of the 1987 Constitution is not applicable in administrative
cases, like the instant case where the COMELEC is determining whether probable cause exists to charge petitioners for
violation of the provision of the Election Code prohibiting double registration.
Indeed, the COMELEC acted in accordance with Section 9(b), Rule 34 of the 1993 COMELEC Rules of Procedure
governing the prosecution of election offenses in meeting en banc in the first instance and acting on the
recommendation of Investigating Officer Ravanzo to file charges against petitioners. The rule reads:
"SEC. 9. Duty of the Law Department, State Prosecutor, Provincial or City Fiscal Upon Receipt of Records.
xxx
(b). In cases investigated by the lawyers or the field personnel of the Commission, the Director of the Law
Department shall review and evaluate the recommendation of said legal officer, prepare a report and make a
recommendation to the Commission affirming, modifying or reversing the same which shall be included in the
agenda of the succeeding meeting en banc of the Commission. If the Commission approves the filing of an
information against the respondent/s, the Director of the Law Department shall prepare and sign the information for
immediate filing with the appropriate court." (Emphasis supplied)
Minute Resolution No. 00-2281 was issued during the en banc meeting held on November 9, 2000 to resolve the
recommendation of Ravanzo in the case.
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,
Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr. and Azcuna, JJ., concur.
Footnotes
1

Filed under Rule 64 in relation to Rule 65 of the 1997 Rules of Civil Procedure.

Rollo, pp. 20-26.

Rollo, pp. 34-36.

Pimentel, Jr. v. Commission on Elections, 289 SCRA 586 (1998).

Garcia-Rueda v. Pascasio, 278 SCRA 769 (1997).

Allado v. Diokno, 232 SCRA 192 (1994).

Pimentel, Jr., supra, see note 4.

Cruz v. People, 233 SCRA 439 (1995).

Ibid.

10

Section 265 of the Omnibus Election Code provides:

SEC. 265. Prosecution. The Commission shall, through its duly authorized legal officers, have the exclusive power to conduct
preliminary investigation of all election offenses punishable under this Code, and to prosecute the same. The Commission may avail
of the assistance of other prosecuting arms of the government: Provided, however, That in the event that the Commission fails to
act on any complaint within four months from his filing, the complainant may file the complaint with the office of the fiscal or with
the Ministry of Justice for proper investigation and prosecution, if warranted.

11

LUIS B. REYES, The Revised Penal Code, 12th Ed., 1981, p. 828.

12

Arambulo v. Laqui, Sr., 342 SCRA 740 (2000).

Sec. 3. Initiation of Complaint. Initiation of complaint for election offenses may be done motu proprio by the Commission, or upon written
complaint by any citizen of the Philippines, candidate, registered political party, coalition of political parties or organizations under the partylist
system or any accredited citizens arms of the Commission.
13

14

Sec. 4. Form of Complaint and Where to File.

(a) When not initiated motu proprio by the Commission, the complaint must be verified and supported by affidavits and/or any
other evidence. Motu proprio complaints may be signed by the Chairman of the Commission, or the Director of the Law Department
upon direction of the Chairman, and need not be verified;
(b) The complaint shall be filed with the Law Department of the Commission; or with the offices of the Election Registrars, Provincial
Election Supervisors or Regional Election Directors, or the State Prosecutor, Provincial Fiscal or City Fiscal. If filed with any of the
latter three (3) officials, investigation thereof may be delegated to any of their assistants;
(c) If filed with the Regional Election Directors or Provincial Election Supervisors, said officials shall immediately furnish the Director
of the Law Department a copy of the complaint and the supporting documents, and inform the latter of the action taken thereon.

Sec. 5. Referral for Preliminary Investigation. If the complaint is initiated motu proprio by the Commission, or is filed with the Commission
by any aggrieved party, it shall be referred to the Law Department for investigation. Upon direction of the Chairman of the Commission, the
preliminary investigation may be delegated to any lawyer of said Department, or to any of the Regional Election Directors or Provincial
Election Supervisors, or any lawyer of the Commission.l^vvphi1.net
15

16

Rollo, p. 25.

17

212 SCRA 307 (1992 ).

18

318 SCRA 608 (1999).

19

282 SCRA 512 (1997).

20

Supra, see note 8.

21

Section 2. The Commission on Elections shall exercise the following powers and functions:
(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and
recall.1awphi1.nt
(2) xxx
(3) Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and
location of polling places, appointment of election officials and inspectors, and registration of voters.
(4) Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of the Government, including
the Armed Forces of the Philippines, for the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible elections.
(5) Register, after sufficient publication, political parties, organizations, or coalitions which, in addition to other requirements, must
present their platform or program of government; and accredit citizens arms of the Commission on Elections. Religious
denominations and sects shall not be registered. Those which seek to achieve their goals through violence or unlawful means, or
refuse to uphold and adhere to this Constitution, or which are supported by any foreign government shall likewise be refused
registration.
Financial contributions from foreign governments and their agencies to political parties, organizations, coalitions, or candidates
related to elections constitute interference in national affairs, and, when accepted, shall be an additional ground for the cancellation
of their registration with the Commission, in addition to other penalties that may be prescribed by law.
(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of voters; investigate and,
where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses,
and malpractices.

(7) Recommend to the Congress effective measures to minimize election spending, including limitation of places where propaganda
materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance
candidacies.1a\^/phi1.net
(8) Recommend to the President the removal of any officer or employee it has deputized, or the imposition of any other disciplinary
action, for violation or disregard of, or disobedience to its directive, order, or decision.
(9) Submit to the President and the Congress a comprehensive report on the conduct of each election, plebiscite, initiative,
referendum, or recall.
Commission on Elections vs. Silva, Jr., 286 SCRA 177 (1998); Pimentel vs. Commission on Elections, 289 SCRA 586 (1998); Commission on
Elections vs. Noynay, 292 SCRA 254 (1998); Domalanta vs. Commission on Elections, 334 SCRA 555 (2000).
22

23

Supra, see note 19.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 133927 November 29, 1999

MA. AMELITA C. VILLAROSA, petitioner,
vs.
COMMISSION ON ELECTIONS, and ATTY. DAN RESTOR, respondents, RICARDO QUINTOS, necessary
respondent.
GONZAGA-REYES, J.:
For the Court's resolution is the instant petition for certiorari and prohibition assailing Resolution dated May 11, 1998
of the Commission on Elections (hereafter, "COMELEC" or "the Commission") 1 on Election Matter No. 98-044,
disallowing the use by petitioner of the nickname "JTV" for the purpose of her candidacy in the May 11, 1998
elections, and the COMELEC Resolution, dated May 13, 1998, 2 denying reconsideration of the earlier Resolution.
Petitioner was a candidate for Representative of the lone district of Occidental Mindoro in the May 11, 1998 elections
and was proclaimed duly elected thereto on May 27, 1998. On March 27, 1998, she filed her certificate of candidacy in
which she stated, among others, that her nickname is "JTV". On April 20, 1998, private respondent Restor filed a
letter-petition 3 addressed to COMELEC Chairman Bernardo Pardo through Atty. Jose Balbuena, Director of the
COMELEC Law Department, asking for the invalidation or cancellation of "JTV" as the official nickname of petitioner as
declared in her certificate of candidacy, and the nullification of all votes cast in the said nickname, on the ground that
petitioner is not publicly known by that name. The letter-petition further averred that petitioner is publicly known in
Occidental Mindoro as "Girlie" and that the appellation "JTV" actually pertains to the initials of her husband and former
Congressman of Occidental Mindoro, Jose Tapales Villarosa.
On election day, May 11, 1998, the Commission, sitting en banc, issued a Resolution granting private respondent
Restor's letter-petition on the ground that the nickname "JTV" is not one by which petitioner is popularly known. 4
Petitioner received a fax copy of this Resolution at 5:32 in the afternoon of May 11, 1998, at which time voting has
ceased and canvassing of votes in some precincts has already gone underway.
On May 12, 1998, petitioner files with the Commission an Urgent Manifestation and Motion to reconsideration the
aforesaid Resolution. Finding that no new matter has been raised therein, the Commission en banc issued another
Resolution the next day, May 13, 1998, denying the above motion.
Thus, this petition raises the question of whether the Commission gravely abused its discretion in: (1) ruling on
private respondent Restor's letter-petition without according notice and hearing to petitioner; (2) taking cognizance of
the letter-petition which was not filed by a real party in interest; (3) resolving the letter-petition en banc, instead of
first referring it to one of its Divisions; and finally, (4) disallowing petitioner's use of the nickname "JTV" and ordering
the election officers of Occidental Mindoro to consider invalid all votes cast in that appellation.
The petition also impleads as a necessary respondent Ricardo Quintos, who ran opposite petitioner for the lone
congressional post of Occidental Mindoro in the May 11, 1998 elections, in view of "confirmed reports" that he will file
an election protest before the House of Representatives Electoral Tribunal ("HRET") invoking the questioned
resolutions. Private respondents validated this allegation when they declared that private respondent Quintos has in
fact filed such an election protest case, docketed as HRET Case No.
98-030. 5
In its Manifestation In Lieu of Comment, the Office of the Solicitor General observed that even if the letter-petition
was treated as an "election matter" which may be properly heard firsthand by the Commission en banc, the
Commission should have given notice to petitioner before resolving the issue therein, especially since the petitioner
stands to be adversely affected should the petition be granted. On the issue of the validity of the use of "JTV" as
petitioner's nickname, it opined that petitioner may validly use the same as she is in fact Mrs. Jose Tapales Villarosa,
and hence, there is no misrepresentation. Moreover, no one among the other candidates had the same initials as to be
prejudiced by her use of the same.
The petition is impressed with merit.

It stands uncontested that petitioner came to know of the letter-petition lodged against her by private respondent
Restor only upon receipt of a copy of the COMELEC Resolution issued on May 11, 1998, which she received by fax at
5:32 in the afternoon of the same day. Under these circumstances, it is clear that the Commission passed upon the
letter-petition without affording petitioner the opportunity to explain her side and to counter the allegations of private
respondent Restor's letter-petition. Due process dictates that before any decisions can be validly rendered in a case,
the twin requirements of notice and hearing must be observed. 6 Evidently, the conclusion of the Commission in the
assailed Resolution dated May 11, 1998, that "JTV" is not a nickname by which petitioner is generally or popularly
known, was drawn purely from the allegations of the letter-petition and for this reason, the Commission acted in
excess of its jurisdiction.
Interminably, we have declared that deprivation of due process cannot be successfully invoked where a party was
given the chance to be heard on his motion for reconsideration. 7 However, we find the foregoing rule inapplicable to
the circumstances of the case at bench.
As earlier narrated, petitioner filed an "Urgent Manifestation and Motion" with the Commission on May 12, 1998, which
the Commission promptly denied the following day. By its own designation, the two-page pleading filed by petitioner is
one part manifestation and one part motion. On the main, it enters appearance of petitioner, who was not impleaded
in private respondent Restor's letter-petition, and communication receipts of the May 11, 1998 Resolution. Even as it
seeks reconsideration of the said resolution by invoking due process, it does not purport to embody petitioner's
grounds and arguments for reconsideration. Rather, it states that "(petitioner) reserve(s) all rights and waive(s) none,
including filing a supplemental motion for reconsideration, pending retaining additional counsel" as the lawyer
representing petitioner at the time was saddled with other commitments. 8 In filing this "Urgent Manifestation and
Motion" on the second day of canvassing of votes, and immediately after receipt of the contested resolution, it is
obvious that petitioner's immediate concern for doing so was not mainly to exercise her right to be heard, but to have
the Commission seasonably reconsider the May 11, 1998 Resolution while canvassing was still at the precinct or
municipal level.
While the filing of a supplemental motion for reconsideration is not a matter of right, it is believed that the judicious
thing for the Commission to have done, considering the obvious due process issues brought about by the May 11,
1998 Resolution, was to afford petitioner a chance to explain why she should be allowed to use the nickname "JTV",
such as by requiring her to submit a supplemental motion for reconsideration. We consider this more in consonance
with our rulings in Salonga and Rodriguez on opportunity to be heard on reconsideration. Thus, we find that
respondent COMELEC acted imprudently and in excess of its jurisdiction in treating the "Urgent Manifestation and
Motion" as petitioner's motion for reconsideration of the May 11, 1998 Resolution, and in summarily dismissing the
same.
Anent the second issue, petitioner contends that the Commission gravely abused its discretion when it took
cognizance of the petition below, there being no showing that it was filed in the name of a real party in interest.
The argument is tenable. The COMELEC Rules of Procedure require that all actions filed with the Commission be
prosecuted and defended in the name of the real party in interest. 9 The letter-petition does not allege that the
protestant, herein private respondent Restor, is a candidate for any position in the May 11, 1998 elections, or a
representative of a registered political party or coalition, or at the very least, a registered voter in the lone district of
Occidental Mindoro as to stand to sustain any form of injury by petitioner's use of the nickname "JTV". Absent such
essential allegation, the letter-petition stood defective and should have been dismissed outright for failure to state a
cause of action.
The question of whether the Commission may decide cases en banc without first referring them to any of its divisions
has been consistently answered in the negative since Sarmiento vs. COMELEC 10, which interpreted Section 3, Article
IX (C) of the Constitution 11 as requiring all election cases to be first heard and decided by a division of the
Commission, before being brought to the Commission en banc on reconsideration. Conformably, we hold that the
Commission exceeded the bounds of its jurisdiction when it took cognizance of private respondent Restor's letterpetition or the first instance, thus rendering its May 11, 1998 Resolution void.
To the above rule, private respondents take exception by stating that the subject letter-petition posed issues which
were administrative in character, and, thus, not subject to the requirement of referral to division which applies only in
the Commission's exercise of its adjudicatory or quasi-judicial functions.
In the concurring opinion of Justice Antonio in University of Nueva Caceres vs. Martinez, 56 SCRA 148, he noted that
(t)he term "administrative" connotes, or pertains, to "administration, especially management, as by
managing or conducting, directing or superintending, the execution, application, or conduct of persons

of things." It does not entail an opportunity to be heard, the production and weighing of evidence, and
a decision or resolution thereon.
While a "quasi-judicial function" is
a term which applies to the action, discretion, etc., of public administrative officers or bodies, who are
required to investigate facts, or ascertain the existence of facts, hold hearings, and draw conclusions
from them, as a basis for their official action and to exercise discretion of a judicial
nature. 12
Thus, in Vigan Electrical Light Co., Inc. vs. Public Service Commission, 10 SCRA 46, 13 we held that where the fixing of
power rates, which are to apply exclusively to a particular party, is based upon a report of the General Auditing Office,
and which fact is denied by the affected party, the making of such finding of fact by respondent administrative agency
is a function partaking of a quasi-judicial character.
A directive by the Commission to disallow petitioner's use of the nickname "JTV" for purposes of her candidacy, on the
basis of Resolution No. 2977 14, clearly necessitates a determination of whether petitioner is in fact not generally or
popularly known as such in the locality of Occidental Mindoro. Indubitably, since it involved the application of law or
rules to an ascertained set of facts, it called for the Commission's exercise of its adjudicatory powers and falls within
the concept of an "election contest" in the sense contemplated by Section 3, Article IX (C) of the Constitution.
We cannot agree with the view advanced by private respondents that because the petition below cannot be classified
as a case falling under Rules 20 to 33 of the COMELEC Rules of Procedure 15, it is not a quasi-judicial matter and may
thus be dealt with firsthand by the Commission en banc. Private respondent Restor's letter-petition clearly asks, not
only for the invalidation of "JTV" as petitioner's authorized nickname, but also the nullification of all votes cast in that
name. 16 We are hard put to treat the issue as administrative when petitioner stands to be so adversely affected by
the relief asked for. That the petition below was in the form of a letter does not make the issues posed therein less
substantial. As opined by the Office of the Solicitor General in its Manifestation in Lieu of Comment, "(t)o sustain the
ruling of the COMELEC is to open venues for commission of fraud, as one simply needs to write a letter to the
COMELEC asking that votes for a candidate be nullified on the ground that the nickname used is inappropriate or not
valid."
The remaining issue pertains to the validity of votes cast in the name "JTV". In view of the fact that the election
protest of private respondent Quintos is presently pending in the House of Representatives Electoral Tribunal, we
resolve to leave this matter to the resolution of the said body as the sole judge of all contests respecting the election,
returns and qualifications of its
members. 17
WHEREFORE, the petition is GRANTED and the COMELEC Resolution dated May 11, 1998 and May 13, 1998,
respectively, are hereby REVERSED and SET ASIDE. No pronouncement as to costs.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Buena, YnaresSantiago and De Leon, Jr., JJ., concur.
Pardo, J., took no part. Was Comelec Chairman in case below.
Footnotes
1 Issued by the COMELEC en banc, signed by Commissioners Bernardo P. Pardo (Chairman), Julio F. Desamito, Evelyn I. Fetalino and Amado
M. Calderon. Commissioner Teresita Dy-Liacco Flores dissented. Commissioners Manolo B. Gorospe and Japal M. Guiani were away on official
business.
2 Issued by the COMELEC en banc and signed by all the Commissioners Commissioner Dy-Liacco Flores maintained her dissent.
3 Annex "G" of Petition.
4 Citing Section 2 (Contents of Certificate of Candidacy) of COMELEC Resolution No. 2977, which, in turn, is a reiteration of Rule 13, Section
211 of the Omnibus Election Code. Said Section 2, Resolution No. 2977 reads:
. . . The person filing the certificate of candidacy may include one nickname or stage name by which he is generally or popularly known in the
locality. . . .

5 Private Respondents' Motion to Resolve Cost, 3-4.

6 Salafranca vs. Philamlife Village Homeowners Association, G.R. No. 121791, December 23, 1998; Pascual vs. Court of Appeals, G.R. No.
120575, December 16, 1998; Autobus Workers Union vs. National Labor Relations Commission, G.R. No. 117453, June 26, 1998.
7 Salonga vs. Court of Appeals, 269 SCRA 534; Rodriguez vs. Project 6 Market Service, 247 SCRA 528; Mendiola vs. Civil Service
Commission, 221 SCRA 295.
8 Urgent Manifestation and Motion, Annex "H" of Petition.
9 Sec. 3, Rule 5, COMELEC Rules of Procedure.
10 212 SCRA 307. Reiterated in Ong vs. COMELEC, 216 SCRA 806; Ong vs. COMELEC, 221 SCRA 475; Reyes vs. Regional Trial Court of
Occidental Mindoro, 244 SCRA 41; Borja vs. COMELEC, 260 SCRA 604; Ramirez vs. COMELEC, 270 SCRA 590; Garvida vs. COMELEC, 271
SCRA 767; Acosta vs. COMELEC, 293 SCRA 578.
11 Sec. 3, Article IX(C) of the Constitution reads: "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 motion for reconsideration of decisions shall be decided by the Commission en banc."
12 Midland Insurance Corporation, 143 SCRA 458.
13 Also cited in Philippine Consumers Foundation Inc., vs. Education Secretary, 153 SCRA 622.
14 See note 4.
15 These Rules refer to particular actions or proceedings, i.e., ordinary actions election protest and quo warranto; special actions petition
to deny due course or cancel certificate of candidacy, proceedings against nuisance candidates, postponement or suspension of elections;
special cases pre-proclamation controversies; special reliefs certiorari, prohibition or mandamus in aid of the Commission's limited
appellate jurisdiction over courts of general jurisdiction, contempt; provisional remedies injunction; special proceedings annulment of
permanent lists of voters, registration of political parties or organizations, which the Commission, sitting in Divisions, is required to hear and
decide.
16 Letter-Petition to COMELEC, Annex "G" of Petition.
17 Sec. 17, Art. VI, Constitution.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. Nos. 154796-97

October 23, 2003

RAYMUNDO A. BAUTISTA @ "OCA", petitioner,

vs.
HONORABLE COMMISSION ON ELECTIONS, JOSEFINA P. JAREO, HON. MAYOR RAYMUND M. APACIBLE,
FRANCISCA C. RODRIGUEZ, AGRIPINA B. ANTIG, MARIA G. CANOVAS, and DIVINA ALCOREZA, respondents.
DECISION
CARPIO, J.:
The Case
This is a petition for certiorari and prohibition with a prayer for the issuance of a temporary restraining order to nullify
Resolution Nos. 5404 and 5584 of the Commission on Elections ("COMELEC") en banc. Resolution No. 5404 1 dated 23
July 2002 ordered the deletion of Raymundo A. Bautista's ("Bautista") name from the official list of candidates for the
position of Punong Barangay of Barangay Lumbangan, Nasugbu, Batangas ("Lumbangan") in the 15 July 2002
elections. Resolution No. 55842 dated 10 August 2002 provided for the policy of the COMELEC regarding proclaimed
candidates found to be ineligible for not being registered voters in the place where they ran for office.
The Facts
On 10 June 2002, Bautista filed his certificate of candidacy for Punong Barangay in Lumbangan for the 15 July 2002
barangay elections. Election Officer Josefina P. Jareo ("Election Officer Jareo") refused to accept Bautista's
certificate of candidacy because he was not a registered voter in Lumbangan. On 11 June 2002, Bautista filed an
action for mandamus against Election Officer Jareo with the Regional Trial Court of Batangas, Branch 14 ("trial
court").3 On 1 July 2002, the trial court ordered Election Officer Jareo to accept Bautista's certificate of candidacy and
to include his name in the certified list of candidates for Punong Barangay. The trial court ruled that Section 7 (g) of
COMELEC Resolution No. 48014 mandates Election Officer Jareo to include the name of Bautista in the certified list of
candidates until the COMELEC directs otherwise. 5 In compliance with the trial court's order, Election Officer Jareo
included Bautista in the certified list of candidates for Punong Barangay. At the same time, Election Officer Jareo
referred the matter of Bautista's inclusion in the certified list of candidates with the COMELEC Law Department on 5
July 2002.6 On 11 July 2002, the COMELEC Law Department recommended the cancellation of Bautista's certificate of
candidacy since he was not registered as a voter in Lumbangan. The COMELEC en banc failed to act on the COMELEC
Law Department's recommendation before the barangay elections on 15 July 2002.
During the 15 July 2002 barangay elections, Bautista and private respondent Divina Alcoreza ("Alcoreza") were
candidates for the position of Punong Barangay in Lumbangan. Bautista obtained the highest number of votes (719)
while Alcoreza came in second with 522 votes, or a margin of 197 votes. Thus, the Lumbangan Board of Canvassers
("Board of Canvassers")7 proclaimed Bautista as the elected Punong Barangay 8 on 15 July 2002. On 8 August 2002,
Bautista took his oath of office as Punong Barangay before Congresswoman Eileen Ermita-Buhain of the First District
of Batangas. On 16 August 2002, Bautista again took his oath of office during a mass oath-taking ceremony
administered by Nasugbu Municipal Mayor Raymund Apacible.
Meanwhile, COMELEC issued Resolution No. 5404 on 23 July 2002 and Resolution No. 5584 on 10 August 2002
("COMELEC Resolutions"). In Resolution No. 5404, the COMELEC en banc resolved to cancel Bautista's certificate of
candidacy. The COMELEC en banc directed the Election Officer to delete Bautista's name from the official list of
candidates. The dispositive portion of Resolution No. 5404 reads:
Considering the foregoing, the Commission, RESOLVED, as it hereby RESOLVES, to ADOPT the recommendation, as
follows:
1. To DENY due course to/or cancel the certificates of candidacy of the following:
A. For Barangay Officials:

1. CONRADO S. PEDRAZA - Navotas

2. PIO B. MALIGAYA - Sampaga
3. PATERNO H. MENDOZA - Sampaga
all of Balayan, Batangas.
B. a. RAY OCA A. BAUTISTA, candidate for Punong Barangay of Brgy. Lumbangan, Nasugbu, Batangas,
for not being registered voters of barangays where they are running for an office;
2. To DIRECT the Election Officers of Balayan, Batangas and Nasugbu, Batangas, to delete their names
in the official list of candidates in their respective Barangays without prejudice to the filing of
complaint against them for misrepresentation under Section 74 of the Omnibus Election Code if the
evidence so warrants.
Let the Law Department implement this resolution.
On the other hand, Resolution No. 5584 expressed COMELEC's policy regarding proclaimed candidates found to be
ineligible for not being registered voters in the place of their election, thus:
ON PROCLAIMED CANDIDATES FOUND TO BE INELIGIBLE FOR BEING NOT REGISTERED VOTERS IN THE PLACE
WHERE THEY WERE ELECTED.
(a) For a proclaimed candidate whose certificate of candidacy was denied due course to or cancelled by virtue
of a Resolution of the Commission En Banc albeit such Resolution did not arrive on time.
1. To DIRECT the Election Officers concerned to implement the resolution of the Commission deleting
the name of the candidate whose certificate of candidacy was denied due course;
2. To DIRECT the candidate whose name was ordered deleted to cease and desist from taking his oath
of office or from assuming the position to which he was elected, unless a temporary restraining order
was issued by the Supreme Court; and
3. To RECONVENE the Board of Canvassers for the purpose of proclaiming the duly-elected candidates
and correcting the Certificate of Canvass of Proclamation.
(b) For a proclaimed candidate who is subsequently declared disqualified by the Commission in the
disqualification case filed against him prior to his proclamation.
1. To DIRECT the proclaimed disqualified candidate to cease and desist from taking his oath of office
or from assuming the position to which he was elected, unless a temporary restraining order was
issued by the Supreme Court; and
2. To RECONVENE the Board of Canvassers for the purpose of proclaiming the duly-elected candidates
and correcting the Certificate of Canvass of Proclamation.
(c) For a proclaimed candidate who is found to be ineligible only after his proclamation (i.e., There is no
Resolution denying due course to or canceling his certificate of candidacy and there is no petition for
disqualification pending against him before his proclamation.)
1. To DISMISS any and all cases questioning the eligibility of such candidate for LACK OF JURISDICTION, the proper
remedy being a quo warranto case before the metropolitan or municipal trial court.
In a letter dated 19 August 2002, 9 COMELEC Commissioner Luzviminda Tancangco directed Election Officer Jareo to
(1) delete the name of Bautista from the official list of candidates for Punong Barangay of Barangay Lumbangan; (2)
order the Board of Canvassers of Lumbangan to reconvene for the purpose of proclaiming the elected Punong
Barangay with due notice to all candidates concerned; and (3) direct the proclaimed disqualified candidate Bautista to
cease and desist from taking his oath of office or from assuming the position which he won in the elections, citing
COMELEC Resolution Nos. 5404 and 5584. Consequently, Election Officer Jareo issued on 20 August 2002 an Order 10

deleting the name of Bautista from the list of candidates for Punong Barangay. The Order also prohibited Bautista from
assuming the position and discharging the functions of Punong Barangay of Lumbangan pursuant to the COMELEC
Resolutions. The Board of Canvassers reconvened on 23 August 2002 and after making the necessary corrections in
the Certificate of Canvass of Votes, proclaimed Alcoreza as the winning Punong Barangay.11 Alcoreza thus assumed the
post of Punong Barangay of Lumbangan.
On 26 August 2002, Bautista wrote a letter to COMELEC requesting the latter for reconsideration of the COMELEC
Resolutions.
On 9 September 2002, while his letter for reconsideration was still pending with the COMELEC, Bautista filed this
petition for certiorari and prohibition with a prayer for the issuance of a temporary restraining order.
The Issues
The issues raised are:
1. Whether the COMELEC en banc committed grave abuse of discretion amounting to excess or lack of
jurisdiction when it issued Resolution Nos. 5404 and 5584;
2. Whether the COMELEC deprived Bautista of due process when the COMELEC en banc issued Resolution Nos.
5404 and 5584; and
3. Whether it was proper to proclaim Alcoreza as Punong Barangay in view of the alleged disqualification of
the winning candidate Bautista.
The Court's Ruling
Before considering the merits of the case, we shall first resolve the procedural questions raised by respondents.
Respondents contend that a motion for reconsideration of the assailed COMELEC Resolutions is a prerequisite to the
filing of a petition for certiorari and prohibition. Absent any extraordinary circumstances, a party who has filed a
motion for reconsideration should wait for the resolution of the motion before filing the petition for certiorari.
Respondents allege that the instant petition is premature because Bautista has a pending motion for reconsideration
of the COMELEC Resolutions. Respondents claim that Bautista filed the instant petition barely two weeks after filing
the motion for reconsideration with the COMELEC en banc without waiting for the resolution of his motion. 12
The contention of respondents is wrong. The case 13 cited by respondents refers to a motion for reconsideration
pending before the COMELEC en banc seeking the reconsideration of a resolution rendered by a COMELEC division.
Rule 19 of the 1993 COMELEC Rules of Procedure allows a motion to reconsider a decision, resolution, order, or ruling
of a division. However, Section 1 (d), Rule 13 of the 1993 COMELEC Rules of Procedure prohibits a motion to
reconsider a resolution of the COMELEC en banc except in cases involving election offenses. As held in Angelia v.
Commission on Elections:14
We hold that petitioner acted correctly in filing the present petition because the resolution of the COMELEC in question
is not subject to reconsideration and, therefore, any party who disagreed with it only had one recourse, and that was
to file a petition for certiorari under Rule 65 of the Rules of Civil Procedure. Rule 13, 1 of the COMELEC Rules of
Procedure provides:
What Pleadings are Not Allowed. - The following pleadings are not allowed:
...
d) motion for reconsideration of an en banc ruling, resolution, order or decision except in election offense cases;
...
As the case before the COMELEC did not involve an election offense, reconsideration of the COMELEC resolution was
not possible and petitioner had no appeal or any plain, speedy, and adequate remedy in the ordinary course of law.
For him to wait until the COMELEC denied his motion would be to allow the reglementary period for filing a petition for
certiorari with this Court to run and expire.

The instant controversy involves resolutions issued by the COMELEC en banc which do not pertain to election offenses.
Hence, a special civil action for certiorari is the proper remedy 15 in accordance with Section 2, Rule 64 of the Rules of
Court which provides:
SEC. 2. Mode of review. - A judgment or final order or resolution of the Commission on Elections and the Commission
on Audit may be brought by the aggrieved party to the Supreme Court on certiorari under Rule 65 except as
hereinafter provided. (Emphasis supplied)
Whether the COMELEC en banc committed grave abuse of discretion amounting to excess or lack of jurisdiction in
issuing Resolution Nos. 5404 and 5584
Bautista argues that without any disqualification case formally filed against him, the COMELEC has no jurisdiction to
take cognizance of his case. The COMELEC cannot motu proprio act on the issue of his alleged lack of qualification.
Even assuming that there was a disqualification case filed against him, it is the COMELEC sitting in division which has
jurisdiction and not the COMELEC en banc.16
On the other hand, respondents allege that the Constitution vests the COMELEC with the power to enforce and
administer all laws and regulations relative to the conduct of elections. The Constitution thus empowers the COMELEC
to pass upon the qualification of candidates for elective office. Furthermore, respondents submit that the COMELEC's
jurisdiction to cancel the certificate of candidacy of disqualified candidates is already settled jurisprudence. 17
Respondents cited cases to support their claim that the COMELEC has jurisdiction to cancel the certificates of
candidacy of disqualified candidates. However, the COMELEC heard these cases first in division and not en banc in the
first instance.
In Garvida v. Sales, Jr.,18 the Court held that it is the COMELEC sitting in division and not the COMELEC en banc which
has jurisdiction over petitions to cancel a certificate of candidacy. The Court held:
x x x The Omnibus Election Code, in Section 78, Article IX, governs the procedure to deny due course to or cancel a
certificate of candidacy, viz:
"Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. - A verified petition seeking to deny due
course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material
representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time
not later than twenty-five days from the time of filing of the certificate of candidacy and shall be decided, after due
notice and hearing, not later than fifteen days before election."
In relation thereto, Rule 23 of the COMELEC Rules of Procedure provides that a petition to deny due course to or
cancel a certificate of candidacy for an elective office may be filed with the Law Department of the COMELEC on the
ground that the candidate has made a false material representation in his certificate. The petition may be heard and
evidence received by any official designated by the COMELEC after which the case shall be decided by the COMELEC
itself.
Under the same Rules of Procedure, jurisdiction over a petition to cancel a certificate of candidacy lies with the
COMELEC sitting in Division, not en banc. Cases before a Division may only be entertained by the COMELEC en banc
when the required number of votes to reach a decision, resolution, order or ruling is not obtained in the Division.
Moreover, only motions to reconsider decisions, resolutions, orders or rulings of the COMELEC in Division are resolved
by the COMELEC en banc.
It is therefore the COMELEC sitting in Divisions that can hear and decide election cases. This is clear from Section 3 of
the said Rules thus:
"Sec. 3. The Commission in Sitting in Divisions. - The Commission shall sit in two (2) Divisions to hear and decide
protests or petitions in ordinary actions, special actions, special cases, provisional remedies, contempt and special
proceedings except in accreditation of citizens' arms of the Commission."
In the instant case, the COMELEC en banc did not refer the case to any of its Divisions upon receipt of the petition. It
therefore acted without jurisdiction or with grave abuse of discretion when it entertained the petition and issued the
order of May 2, 1996. (Emphasis supplied)

In this case, Election Officer Jareo reported to the COMELEC Law Department Bautista's ineligibility for being a nonregistered voter. The COMELEC Law Department recommended to the COMELEC en banc to deny due course or to
cancel Bautista's certificate of candidacy. The COMELEC en banc approved the recommendation in Resolution No. 5404
dated 23 July 2002.
A division of the COMELEC should have first heard this case. The COMELEC en banc can only act on the case if there is
a motion for reconsideration of the decision of the COMELEC division. Hence, the COMELEC en banc acted without
jurisdiction when it ordered the cancellation of Bautista's certificate of candidacy without first referring the case to a
division for summary hearing.
The proceeding on the cancellation of a certificate of candidacy does not merely pertain to the administrative functions
of the COMELEC. Cancellation proceedings involve the COMELEC's quasi-judicial functions. The Court discussed the
difference between administrative and quasi-judicial functions in Villarosa v. Commission on Elections: 19
In the concurring opinion of Justice Antonio in University of Nueva Caceres vs. Martinez, 56 SCRA 148, he noted that
(t)he term "administrative" connotes, or pertains, to "administration, especially management, as by managing or
conducting, directing or superintending, the execution, application, or conduct of persons or things." It does not entail
an opportunity to be heard, the production and weighing of evidence, and a decision or resolution thereon.
While a "quasi-judicial function" is
A term which applies to the action, discretion, etc., of public administrative officers or bodies, who are required to
investigate facts, or ascertain the existence of facts, hold hearings, and draw conclusions from them, as a basis for
their official action and to exercise discretion of a judicial nature. (Emphasis supplied)
In the exercise of its adjudicatory or quasi-judicial powers, the Constitution mandates the COMELEC to hear and
decide cases first by division and upon motion for reconsideration, by the COMELEC en banc. 20 In Baytan v.
COMELEC,21 the Court expounded on the administrative and quasi-judicial powers of the COMELEC. The Court
explained:
Under Section 2, Article IX-C of the 1987 Constitution, the COMELEC exercises both administrative and quasi-judicial
powers. The COMELEC's administrative powers are found in Section 2 (1), (3), (4), (5), (6), (7), (8), and (9) of Article
IX-C. The 1987 Constitution does not prescribe how the COMELEC should exercise its administrative powers, whether
en banc or in division. The Constitution merely vests the COMELEC's administrative powers in the "Commission on
Elections," while providing that the COMELEC "may sit en banc or in two divisions." Clearly, the COMELEC en banc can
act directly on matters falling within its administrative powers. Indeed, this has been the practice of the COMELEC
both under the 1973 and 1987 Constitutions.
On the other hand, the COMELEC's quasi-judicial powers are found in Section 2 (2) of Article IX-C, to wit:
"Section 2. The Commission on Elections shall exercise the following powers and functions:
xxx
(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all
elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal
officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of
limited jurisdiction.
Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay
offices shall be final, executory, and not appealable."
The COMELEC's exercise of its quasi-judicial powers is subject to Section 3 of Article IX-C which expressly requires
that all election cases, including pre-proclamation controversies, shall be decided by the COMELEC in division, and the
motion for reconsideration shall be decided by the COMELEC en banc. It follows, as held by the Court in Canicosa, that
the COMELEC is mandated to decide cases first in division, and then upon motion for reconsideration en banc, only
when the COMELEC exercises its quasi-judicial powers. (Emphasis supplied)
Under Section 3, Rule 23 of the 1993 COMELEC Rules of Procedure, a petition for the denial or cancellation of a
certificate of candidacy must be heard summarily after due notice. It is thus clear that cancellation proceedings

involve the exercise of the quasi-judicial functions of the COMELEC which the COMELEC in division should first decide.
More so in this case where the cancellation proceedings originated not from a petition but from a report of the election
officer regarding the lack of qualification of the candidate in the barangay election. The COMELEC en banc cannot
short cut the proceedings by acting on the case without a prior action by a division because it denies due process to
the candidate.
Whether the COMELEC deprived Bautista of due
process when it issued Resolution Nos. 5404 and 5584
Bautista alleges that the COMELEC denied him due process because there was no notice and hearing prior to the
issuance of Resolution Nos. 5404 and 5584. He became aware of the issuance of the COMELEC Resolutions only when
he received a copy of Election Officer Jareo's Order dated 20 August 2002 ordering him to cease and desist from
assuming the position of Punong Barangay.22
The Solicitor General submits that the COMELEC did not deprive Bautista of due process. Bautista had the chance to
be heard and to present his side when he filed a letter to the COMELEC en banc requesting reconsideration of the
Resolutions.23
This Court has explained the nature of due process in Stayfast Philippines Corporation v. NLRC: 24
The essence of due process is simply the opportunity to be heard, or as applied to administrative proceedings, an
opportunity to explain one's side or an opportunity to seek a reconsideration of the action or ruling complained of.
A formal or trial-type hearing is not at all times and in all instances essential. The requirements are satisfied where
the parties are afforded fair and reasonable opportunity to explain their side of the controversy at hand. What is
frowned upon is absolute lack of notice and hearing. x x x (Emphasis supplied)
The opportunity to be heard does not only refer to the right to present verbal arguments in court during a formal
hearing.25 There is due process when a party is able to present evidence in the form of pleadings. 26 However, the
COMELEC did not give Bautista such opportunity to explain his side. The COMELEC en banc issued Resolution Nos.
5404 and 5584 without prior notice and hearing.
We cannot ignore the importance of prior notice and hearing. Severe consequences attach to the COMELEC
Resolutions which not only ordered the cancellation of the certificate of candidacy of Bautista but also the annulment
of his proclamation as Punong Barangay. What is involved here is not just the right to be voted for public office but the
right to hold public office. As held in Sandoval v. Commission on Elections: 27
x x x Although the COMELEC is clothed with jurisdiction over the subject matter and issue of SPC No. 98-143 and SPC
No. 98-206, we find the exercise of its jurisdiction tainted with illegality. We hold that its order to set aside the
proclamation of petitioner is invalid for having been rendered without due process of law. Procedural due process
demands prior notice and hearing. Then after the hearing, it is also necessary that the tribunal show substantial
evidence to support its ruling. In other words, due process requires that a party be given an opportunity to adduce his
evidence to support his side of the case and that the evidence should be considered in the adjudication of the case.
The facts show that COMELEC set aside the proclamation of petitioner without benefit of prior notice and hearing and
it rendered the questioned order based solely on private respondent's allegations. We held in Bince, Jr. vs. COMELEC:
"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, and one cannot acquire a vested right to public office, it is,
nevertheless, a protected right. Due process in proceedings before the COMELEC, 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, we had ruled in Farinas vs. Commission on
Elections, Reyes vs. Commission on Elections and Gallardo vs. Commission on Elections that the COMELEC is without
power to partially or totally annul a proclamation or suspend the effects of a proclamation without notice and hearing."
(Emphasis supplied)
The fact that Bautista was able to file a letter with the COMELEC en banc requesting for reconsideration of the
Resolutions is beside the point. To reiterate, the 1993 COMELEC Rules of Procedure prohibit a motion for
reconsideration of a COMELEC en banc resolution except in cases involving election offenses.
Respondents likewise submit that there was no need for presentation and evaluation of evidence since the issue of
whether Bautista was a registered voter is easily resolved by looking at the COMELEC registration records. 28 This

reasoning fails to consider the instances where a voter may be excluded through inadvertence or registered with an
erroneous or misspelled name.29 Indeed, if it was just a simple matter of looking at the record of registered voters,
then the COMELEC would not have included Section 7 (g) 30 in its Resolution No. 4801. This Section allows candidates
who are not registered voters to be included in the certified list of candidates until the COMELEC directs otherwise.
Rule 23 of the 1993 COMELEC Rules of Procedure provides for the twin requirements of prior notice and hearing, as
follows:
Rule 23 - Petition to Deny Due Course to or Cancel Certificates of Candidacy
Section 1. Grounds for Denial of Certificate of Candidacy. - A petition to deny due course to or cancel, a certificate of
candidacy for any elective office may be filed with the Law Department of the Commission by any citizen of voting age
or a duly registered political party, organization, or coalition of political parties on the exclusive ground that any
material representation contained therein as required by law is false.
Sec. 2. Period to File Petition. - The petition must be filed within five (5) days following the last day for the filing of
certificates of candidacy.
Sec. 3. Summary Proceeding. - The petition shall be heard summarily after due notice.
Sec. 4. Delegation of Reception of Evidence. - The Commission may designate any of its officials who are members of
the Philippine Bar to hear the case and receive evidence. (Emphasis supplied)
A summary proceeding does not mean that the COMELEC could do away with the requirements of notice and hearing.
The COMELEC should have at least given notice to Bautista to give him the chance to adduce evidence to explain his
side in the cancellation proceeding. The COMELEC en banc deprived Bautista of procedural due process of law when it
approved the report and recommendation of the Law Department without notice and hearing. 31
Whether Bautista was a registered voter of Barangay
Lumbangan when he filed his certificate of candidacy
The events32 that transpired after the 15 July 2002 elections necessitate the early resolution of this case. The Court
deems it proper not to remand the case to the COMELEC to avoid further delay. The Court will resolve this case based
on the pleadings submitted by the parties.
Under the Revised Administrative Code,33 one of the qualifications of an elective municipal officer is that he must be a
"qualified voter" in his municipality. Section 2174 of the Revised Administrative Code reads:
Section 2174. Qualifications of elective municipal officer. - An elective municipal officer must, at the time of the
election, be a qualified voter in his municipality and must have been resident therein for at least one year, and must
not be less than twenty-three years of age. He must also be able to read and write intelligently either English,
Spanish, or the local dialect. (Emphasis supplied)
On the other hand, under the Republic Act No. 2370, 34 otherwise known as the Barrio Charter, a candidate for the
barrio council35 must be a "qualified elector." Section 8 of the Barrio Charter reads:
Section 8. Qualifications for election to the barrio council. - Candidates for election to the barrio council:
(a) Must be a qualified elector and must have been a resident of the barrio for at least six months prior to the
election; and
(b) Must not have been convicted of a crime involving moral turpitude or of a crime which carries a penalty of
at least one year imprisonment. (Emphasis supplied)
Thus, in the 1958 case of Rocha v. Cordis, 36 the Court held that a candidate for an elective municipal office did not
have to be a registered voter in the municipality to qualify to run for an elective municipal office. Citing the earlier
case of Yra v. Abao,37 the Court ruled that the words "qualified elector" meant a person who had all the qualifications
provided by law to be a voter and not a person registered in the electoral list. In the same vein, the term "qualified"
when applied to a voter does not necessarily mean that a person must be a registered voter.

However, under the Local Government Code of 1991, 38 which took effect on 1 January 1992, an elective local official,
including a Punong Barangay, must not only be a "qualified elector" or a "qualified voter," he must also be a
"registered voter."39 Section 39 of the Local Government Code provides:
SEC. 39. Qualifications. - (a) An elective local official must be a citizen of the Philippines; a registered voter in the
barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang
panlungsod, or sangguniang bayan, the district where he intends to be elected; a resident therein for at least one (1)
year immediately preceding the day of the election; and able to read and write Filpino or any other local language or
dialect.
xxx
(e) Candidates for the position of punong barangay or member of the sangguniang barangay must be at least
eighteen (18) years of age on election day.
xxx
These qualifications were reiterated in Section 2 of COMELEC Resolution No. 4801 dated 23 May 2002 which
prescribed the guidelines on the filing of certificates of candidacy in connection with the 15 July 2002 elections.
Section 2 reads:
Sec. 2. Qualifications. - (a) Candidates for Punong Barangay and Sangguniang Barangay Kagawad must be:
(1) Filipino citizens;
(2) At least 18 years old on election day;
(3) Able to read and write Pilipino or any local language or dialect; and
(4) Registered voters of the barangay where they intend to run for office and residents thereof for at least one
(1) year immediately preceding the day of the election. (Emphasis supplied)
Section 7 of COMELEC Resolution No. 4801 likewise requires the Election Officer to verify whether the candidates are
registered voters and possess all the qualifications of a candidate. Thus, Section 7 (f) and (g) read:
(f) Before the preparation of the certified lists of candidates it shall be the duty of the Election Officer to: (1) verify
whether all candidates for barangay and sangguniang kabataan positions are registered voters of the barangay where
they file their certificates of candidacy; and (2) examine the entries of the certificates of candidacy and determine on
the basis of said entries whether the candidate concerned possesses all the qualifications of a candidate.
(g) If there are candidates who are not registered voters in the barangay where they run for barangay or sangguniang
kabataan positions or do not possess all the other qualifications of a candidate, he shall make the corresponding
report by REGISTERED MAIL and by RUSH TELEGRAM to the Law Department of the Commission within three (3) days
from the last day for filing the certificates of candidacy, copy furnished the Provincial Election Supervisor and the
Regional Election Director. The names of said candidates, however, shall still be included in the certified lists of
candidates until the Commission directs otherwise. (Emphasis supplied)
It is thus clear that the law as it now stands requires a candidate for Punong Barangay to be a registered voter of the
barangay where he intends to run for office.
Bautista admitted in his affidavit 40 dated 24 August 2002 that he was not a registered voter of Barangay Lumbangan,
thus:
AFFIDAVIT
That I, RAYMUNDO A. @ OCA BAUTISTA, of legal age, married, Mechanical Engineer by profession, Filipino citizen and
have been residing at Sitio Calamundingan, Barangay Lumbangan, Nasugbu, Batangas, after being duly sworn
according to law depose and say:

1. That I was born at Barangay Tumalim, Nasugbu, Batangas, on March 15, 1954 and upon reaching the age
of four (4) our family transferred to Sitio Calamundingan, Barangay Lumbangan, Nasugbu, Batangas and I
have been permanently residing thereat since that time up to the present, and this fact can be attested to by
our immediate neighbors.
2. That since the time I reached the age of majority, I have participated both in the National and Local
Elections up to the year 1995 and as matter of fact I ran for the Office of member of the Municipal Council in
the year 1992 Elections.
3. Sometime during the late part of the year 1995, I went to the United States of America scounting (sic) for a
good job but I was not able to find one so I went home in the year 2000 but again believing that I could land
a job in the United States, I again went there but I was not able to get a job therein and so I went back to the
Philippines in the year 2001 but I found out that my name was no longer included in the list of registered
voters at Barangay Lumbangan, Nasugbu, Batangas.
4. Sometime in the year 2002, I personally went to the Office of the Local Election Registrar particularly
talking to Miss Josefina P. Jareo in order to register because as I know, to run for the Office of Barangay
Chairman, I have to be a registered voter in our Barangay.
5. However, I was denied registration because according to her, her Office is not open for registration at any
time and I should wait for the General Registration and for that reason I was not able to register.
xxx
11. That had I known that there is a provision in Section 52, under paragraph (k) A, when Miss Josefina P. Jareo
denied my request for registration as a voter, I would have filed a Petition for Mandamus with the proper Court so that
she can be ordered to register me as a voter in Barangay Lumbangan, Nasugbu, Batangas so that any and all
technicality may be avoided."(Emphasis supplied)
According to Bautista's affidavit, he was practically out of the country from 1995 until 2001. When the certified list of
voters ceased to be effective and operative after the barangay elections in 1997, qualified voters had to register again
to vote in any election. Apparently, Bautista failed to register during the general registration of voters conducted by
the COMELEC in 1997 since he was still out of the country during that time. Republic Act No. 8189 ("The Voter's
Registration Act of 1996") provides for a system of continuing registration of voters. Thus, Bautista should have
registered anew in the office of the Election Officer when he came back to the Philippines in 2001 and learned that his
name was no longer included in the roster of registered voters. The pertinent provisions of RA No. 8189 read:
SEC. 7. General Registration of Voters. - Immediately after the barangay elections in 1997, the existing certified list of
voters shall cease to be effective and operative. For purposes of the May 1998 elections and all elections, plebiscites,
referenda, initiatives, and recall subsequent thereto, the Commission shall undertake a general registration of voters
before the Board of Election Inspectors on June 14, 15, 21 and 22 and, subject to the discretion of the Commission,
on June 28 and 29, 1997 in accordance with this Act.
SEC. 8. System of Continuing Registration of Voters. - The personal filing of application of registration of voters shall
be conducted daily in the office of the Election Officer during regular office hours. No registration shall, however be
conducted during the period starting one hundred twenty (120) days before a regular election and ninety (90) days
before a special election.
xxx
SEC. 10. Registration of Voters. - A qualified voter shall be registered in the permanent list of voters in a precinct of
the city or municipality where he resides to be able to vote in any election. To register as a voter, he shall personally
accomplish an application form for registration as prescribed by the Commission in three (3) copies before the Election
Officer on any date during office hours after having acquired the qualifications of a voter. (Emphasis supplied)
xxx
It is thus clear that Bautista was remiss in his duty to ensure his right to vote and to be voted for public office. As
early as 2001, he was already aware that his name was no longer included in the roster of registered voters. Yet,
Bautista chose not to register anew that year despite his knowledge that he needed to register as a voter in the
barangay to run for the office of Punong Barangay.

Bautista alleges that his non-registration as a voter of Barangay Lumbangan was due to the refusal of Election Officer
Jareo to register him sometime in January 2002. 41 Aside from his bare allegation that he tried to register in January
2002, Bautista did not proffer any other proof like a duly accomplished application form for registration to substantiate
his claim that he indeed attempted to register anew. On the other hand, Election Officer Jareo denies Bautista's
allegations in her comment filed on 10 October 2002, thus:
COMMENT
COMES NOW Respondent JOSEPINA P. JAREO (sic) and to this Honorable Supreme Court by way of comment to the
Petition for Certiorari and Prohibition with Prayer for the Issuance of Temporary Restraining Order, filed by herein
Petitioner, most respectfully states that:
1. Respondent JOSEPINA P. JAREO (sic) is the Election Officer of Nasugbu, Batangas, while petitioner,
RAYMUNDO A. BAUTISTA was one of the candidates for the Barangay Chairman of Barangay Lumbangan,
Nasugbu, Batangas, in the recently concluded barangay elections;
2. Based on the records in our files, petitioner was not and is not a registered voter of Barangay Lumbangan
or any other barangays in Nasugbu, Batangas;
3. There was never an instance during the period starting June 1997 up to December 26, 2001 when
registration of voters for the updating of the Voter's Registration Record had been undertaken by the
Commission on Elections on an "on again/off again" system, did petitioner RAYMUNDO BAUTISTA come to our
office to check or ensure that he is still in the active list of voters of Barangay Lumbangan, i.e., assuming that
he was registered as a voter thereof, in the first place;
4. The last day of registration of voters (new or transferee) had been last December 26, 2001 and registration
shall resume again, this coming September 16, 2002. In the meantime, no general registration nor special
registration had been mandated by the Commission on Election (COMELEC, for brevity) between the period
December 27, 2001 until September 15, 2002;
5. I only met petitioner RAYMUNDO BAUTISTA for the first time when he came to our office to file his
Certificate of Candidacy last June 10, 2002, which was the last day set by the COMELEC for the filing of
Certificates of Candidacy;
xxx
Bautista was aware when he filed his certificate of candidacy for the office of Punong Barangay that he lacked one of
the qualifications - that of being a registered voter in the barangay where he ran for office. He therefore made a
misrepresentation of a material fact when he made a false statement in his certificate of candidacy that he was a
registered voter in Barangay Lumbangan.42 An elective office is a public trust. He who aspires for elective office should
not make a mockery of the electoral process by falsely representing himself. The importance of a valid certificate of
candidacy rests at the very core of the electoral process. 43 Under Section 78 of the Omnibus Election Code, false
representation of a material fact in the certificate of candidacy is a ground for the denial or cancellation of the
certificate of candidacy. The material misrepresentation contemplated by Section 78 refers to qualifications for elective
office. A candidate guilty of misrepresentation may be (1) prevented from running, or (2) if elected, from serving, or
(3) prosecuted for violation of the election laws. 44
Invoking salus populi est suprema lex, Bautista argues that the people's choice expressed in the local elections
deserves respect. Bautista's invocation of the liberal interpretation of election laws is unavailing. As held in Aquino v.
Commission on Elections:45
In fine, we are left with no choice but to affirm the COMELEC's conclusion declaring herein petitioner ineligible for the
elective position as Representative of Makati City's Second District on the basis of respondent commission's finding
that petitioner lacks the one year residence in the district mandated by the 1987 Constitution. A democratic
government is necessarily a government of laws. In a republican government those laws are themselves ordained by
the people. Through their representatives, they dictate the qualifications necessary for service in government
positions. And as petitioner clearly lacks one of the essential qualifications for running for membership in the House of
Representatives, not even the will of a majority or plurality of the voters of the Second District of Makati City would
substitute for a requirement mandated by the fundamental law itself.
Indeed, the electorate cannot amend or waive the qualifications prescribed by law for elective office. The will of the
people as expressed through the ballot cannot cure the vice of ineligibility.46 The fact that Bautista, a non-registered

voter, was elected to the office of Punong Barangay does not erase the fact that he lacks one of the qualifications for
Punong Barangay.
Whether it was proper to proclaim Alcoreza as Punong
Barangay in view of ineligibility of the winning candidate
Bautista subscribes to the view of the Solicitor General that under the law and jurisprudence, the COMELEC cannot
proclaim as winner the second placer in case of ineligibility of the winning candidate.
The Solicitor General submits that the disqualification of the winning candidate Bautista does not result in the
proclamation of Alcoreza who obtained the second highest number of votes because Alcoreza was obviously not the
choice of the electorate. The Solicitor General emphasized that the COMELEC declared Bautista ineligible for the post
of Punong Barangay only after his election and proclamation as the winning candidate.
Respondent Alcoreza, however, alleges that her proclamation as the elected Punong Barangay was legal and valid.
Alcoreza claims her case falls under the exception to the rule that the disqualification of the winning candidate does
not entitle the candidate with the next higher number of votes to be proclaimed winner. Alcoreza cites Grego v.
COMELEC47 which held that the exception is predicated on the concurrence of two assumptions, namely: (1) the one
who obtained the highest number of votes is disqualified; and (2) the electorate is fully aware in fact and in law of a
candidate's disqualification so as to bring such awareness within the realm of notoriety but would nonetheless cast
their votes in favor of the ineligible candidate.
This Court agrees with the view of the Solicitor General. It is now settled doctrine that the COMELEC cannot proclaim
as winner the candidate who obtains the second highest number of votes in case the winning candidate is ineligible or
disqualified.48 The exception to this well-settled rule was mentioned in Labo, Jr. v. Commission on Elections 49 and
reiterated in Grego v. COMELEC.50 However, the facts warranting the exception to the rule do not obtain in the present
case.
Although the COMELEC Law Department recommended to deny due course or to cancel the certificate of candidacy of
Bautista on 11 July 2002, the COMELEC en banc failed to act on it before the 15 July 2002 barangay elections. It was
only on 23 July 2002 that the COMELEC en banc issued Resolution No. 5404, adopting the recommendation of the
COMELEC Law Department and directing the Election Officer to delete Bautista's name from the official list of
candidates.
Thus, when the electorate voted for Bautista as Punong Barangay on 15 July 2002, it was under the belief that he was
qualified. There is no presumption that the electorate agreed to the invalidation of their votes as stray votes in case of
Bautista's disqualification.51 The Court cannot adhere to the theory of respondent Alcoreza that the votes cast in favor
of Bautista are stray votes.52 A subsequent finding by the COMELEC en banc that Bautista is ineligible cannot retroact
to the date of elections so as to invalidate the votes cast for him. 53 As held in Domino v. COMELEC:54
Contrary to the claim of INTERVENOR, petitioner was not notoriously known by the public as an ineligible candidate.
Although the resolution declaring him ineligible as candidate was rendered before the election, however, the same is
not yet final and executory. In fact, it was no less than the COMELEC in its Supplemental Omnibus Resolution No.
3046 that allowed DOMINO to be voted for the office and ordered that the votes cast for him be counted as the
Resolution declaring him ineligible has not yet attained finality. Thus the votes cast for DOMINO are presumed to have
been cast in the sincere belief that he was a qualified candidate, without any intention to misapply their franchise.
Thus, said votes can not be treated as stray, void, or meaningless.
The Local Government Code provides for the rule regarding permanent vacancy in the Office of the Punong Barangay,
thus:
SEC. 44. Permanent vacancies in the Offices of the Governor, Vice-Governor, Mayor, and Vice-Mayor. - If a permanent
vacancy occurs in the office of the governor or mayor, the vice-governor or vice-mayor concerned shall become the
governor or mayor. If a permanent vacancy occurs in the offices of the governor, vice-governor, mayor, or vice-mayor,
the highest ranking sanggunian member or, in the case of his permanent inability, the second highest ranking
sanggunian member, shall become the governor, vice-governor, mayor or vice-mayor, as the case may be. Subsequent
vacancies in the said office shall be filled automatically by the other sanggunian members according to their ranking
as defined herein.

(b) If a permanent vacancy occurs in the office of the punong barangay member, the highest ranking
sangguniang barangay member, or in the case of his permanent disability, the second highest ranking
sanggunian member, shall become the punong barangay.
(c) A tie between or among the highest ranking sanggunian members shall be resolved by the drawing of lots.
(d) The successors as defined herein shall serve only the unexpired terms of their predecessors.
For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a higher vacant office,
refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise permanently
incapacitated to discharge the functions of his office.
For purposes of succession as provided in this Chapter, ranking in the sanggunian shall be determined on the basis of
the proportion of votes obtained by each winning candidate to the total number of registered voters in each district in
the immediately preceding local election. (Emphasis supplied)
Since Bautista failed to qualify for the position of Punong Barangay, the highest ranking sangguniang barangay
member, or in the case of his permanent disability, the second highest ranking sangguniang member, shall become the
Punong Barangay.55
WHEREFORE, we DISMISS the petition. Petitioner Raymundo A. Bautista is ineligible for the position of Punong
Barangay of Barangay Lumbangan for not being a registered voter of Barangay Lumbangan. The proclamation of the
second placer Divina Alcoreza as winner in lieu of Bautista is void. Instead, the highest ranking sangguniang barangay
member of Barangay Lumbangan shall assume the office of Punong Barangay of Lumbangan for the unexpired portion
of the term.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Quisumbing, Sandoval-Gutierrez, Austria-Martinez, Corona,
Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.
Ynares-Santiago, on official leave.
Footnotes
1

Rollo, pp. 32-36.

Ibid., pp. 37- 48.

Ibid., pp. 143-146.

Sec. 7 (g) of COMELEC Resolution No. 4801 dated 23 May 2002 reads:
(g) If there are candidates who are not registered voters in the Barangay where they run for Barangay or Sangguniang Kabataan
positions or do not possess all the other qualifications of a candidate, he shall make the corresponding report by REGISTERED MAIL
and by RUSH TELEGRAM to the Law Department of the Commission within three (3) days from the last day for filing the certificates
of candidacy, copy furnished the Provincial Election Supervisor and the Regional Election Director. The names of said candidates,
however, shall still be included in the certified lists of candidates until the Commission directs otherwise.

Rollo, pp. 147-148.

Ibid., pp. 149-151.

The Board of Canvassers of Barangay Lumbangan was composed of respondents Francisca C. Rodriguez as chairperson and Maria G.
Canovas and Agripina B. Antig as members.
7

Certificate of Canvass of Votes and Proclamation of Winning Candidates for Punong Barangay and Kagawad ng Sangguniang Barangay by the
Barangay Board of Canvassers (No. 0025550); Rollo, p. 26.
8

Rollo, p. 103.

10

Ibid., Rollo, p. 58.

11

Ibid., p. 31.

12

Memorandum for Respondents, pp. 12-13; Rollo, pp. 319-320.

13

Bagatsing v. COMELEC, 378 Phil. 585 (1999).

14

388 Phil. 560, 566 (2000).

15

Faelnar v. People, 387 Phil. 442 (2000).

16

Rollo, pp. 218, 298-301.

17

Ibid., pp. 321-323.

18

338 Phil. 484 (1997).

19

377 Phil. 497 (1999).

20

Canicosa v. COMELEC, 347 Phil. 189 (1997).

21

G.R. No. 153945, 4 February 2003.

22

Rollo, p. 374.

23

Ibid., pp. 350-352.

24

G.R. No. 81480, 9 February 1993, 218 SCRA 596, 601.

25

Domingo, Jr. v. Commission on Elections, 372 Phil. 188 (1999).

26

Trinidad v. COMELEC, 373 Phil. 802 (1999).

27

380 Phil. 375, 392 (2000).

28

Rollo, pp. 96, 327-328.

Sections 37 and 38 of Republic Act No. 8189 ("The Voter's Registration Act of 1996") provide for the remedy of voters who were excluded
through inadvertence or registered with an erroneous or misspelled name.
29

30

Supra, note 4.

31

Go v. Commission on Elections, G.R. No. 147741, 10 May 2001, 357 SCRA 739.

The following events transpired after the 15 July 2002 elections: (1) Alcoreza was proclaimed as Punong Barangay in view of the alleged
ineligibility of Bautista; (2) Bautista refused to vacate the barangay hall and continued performing his functions as Punong Barangay albeit
without receiving compensation; (3) Alcoreza is likewise performing the functions of a Punong Barangay; (4) In a Quo Warranto case filed by
Barangay Councilman Armando Bartolome against Bautista, the Municipal Trial Court of Nasugbu rendered a decision dated 25 November
2002 which found Bautista guilty of usurping and unlawfully exercising the position of Punong Barangay and ordered his ouster; (5) Municipal
Mayor Apacible issued a memorandum dated 4 February 2003 to all Department Heads and the Chief of Police of Nasugbu, Batangas to
entertain only transactions initiated by Alcoreza as the Punong Barangay; (6) On 12 February 2003, the concerned citizens of Barangay
Lumbangan (1,246 petitioners) filed a petition for the early resolution of this case; (7) Bautista padlocked the barangay hall in view of the
decision of the MTC of Nasugbu; (8) On 19 June 2003, some barangay councilmen, together with some policemen, allegedly forced open the
barangay hall by destroying the padlock.
32

33

Act No. 2711, which was approved on 10 March 1917.

34

R.A. No. 2370 took effect on 1 January 1960.

35

Section 6 of R.A. No. 2370 reads:

Section 6. The barrio council. - In each barrio there shall be organized a barrio council which shall have as members the following:
(a) a barrio lieutenant;
(b) a barrio treasurer;

(c) four council lieutenants;

(d) vice barrio lieutenants, in such number as there are sitios in the barrio; or where there are no sitios, one vice barrio
lieutenant for every two hundred inhabitants of the barrio: Provided, That no person shall be elected vice barrio
lieutenant unless he is a resident of the sitio he shall represent.
36

103 Phil. 327 (1958).

37

52 Phil. 380 (1928).

38

R.A. No. 7160.

Similarly, under Article VI, Sections 3 & 6 of the 1987 Constitution, a senator or a congressman must actually be a "registered voter" and
not just a "qualified elector" as provided under the 1935 Constitution.
39

40

Rollo, pp. 60-61.

41

Rollo, p. 64.

42

Rollo, p. 25.

43

Miranda v. Abaya, 370 Phil. 642 (1999).

44

Salcedo II v. COMELEC, 371 Phil. 377 (1999).

45

G.R. No. 120265, 18 September 1995, 248 SCRA 400, 429.

46

Frivaldo v. Commission on Elections, G.R. No. 87193, 23 June 1989, 174 SCRA 245.

47

G.R. No. 125955, 19 June 1997, 274 SCRA 481, 501.

Codilla, Sr. v. De Venecia, G.R. No. 150605, 10 December 2002; Trinidad v. COMELEC, 373 Phil. 802 (1999); Loreto v. Brion, 370 Phil. 727
(1999); Domino v. COMELEC, 369 Phil. 798 (1999); Abella v. Commission on Elections, G.R. No. 100710, 3 September 1991, 201 SCRA 253.
48

49

G.R. Nos. 105111 & 105384, 3 July 1992, 211 SCRA 297.

50

Supra note 48.

51

See Garvida v. Sales, Jr., 338 Phil. 484 (1997).

52

See Sunga v. COMELEC, 351 Phil. 310 (1998).

53

See Reyes v. COMELEC, 324 Phil. 813 (1996).

54

369 Phil. 798, 825 (1999).

See Recabo, Jr. v. Commission on Elections, 368 Phil. 277 (1999); Nolasco v. COMELEC, 341 Phil. 761 (1997); Labo v. Commission on
Elections, G.R. No. 105111 & 105384, 3 July 1992, 211 SCRA 297.
55

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 159139

January 13, 2004

INFORMATION TECHNOLOGY FOUNDATION OF THE PHILIPPINES, MA. CORAZON M. AKOL, MIGUEL UY,
EDUARDO H. LOPEZ, AUGUSTO C. LAGMAN, REX C. DRILON, MIGUEL HILADO, LEY SALCEDO, and MANUEL
ALCUAZ JR., petitioners,
vs.
COMMISSION ON ELECTIONS; COMELEC CHAIRMAN BENJAMIN ABALOS SR.; COMELEC BIDDING and
AWARD COMMITTEE CHAIRMAN EDUARDO D. MEJOS and MEMBERS GIDEON DE GUZMAN, JOSE F.
BALBUENA, LAMBERTO P. LLAMAS, and BARTOLOME SINOCRUZ JR.; MEGA PACIFIC eSOLUTIONS, INC.;
and MEGA PACIFIC CONSORTIUM, respondents.
DECISION
PANGANIBAN, J.:
There is grave abuse of discretion (1) when an act is done contrary to the Constitution, the law or jurisprudence; 1 or
(2) when it is executed whimsically, capriciously or arbitrarily out of malice, ill will or personal bias. 2 In the present
case, the Commission on Elections approved the assailed Resolution and awarded the subject Contract not only in
clear violation of law and jurisprudence, but also in reckless disregard of its own bidding rules and procedure. For the
automation of the counting and canvassing of the ballots in the 2004 elections, Comelec awarded the Contract to
"Mega Pacific Consortium" an entity that had not participated in the bidding. Despite this grant, the poll body signed
the actual automation Contract with "Mega Pacific eSolutions, Inc.," a company that joined the bidding but had not
met the eligibility requirements.
Comelec awarded this billion-peso undertaking with inexplicable haste, without adequately checking and observing
mandatory financial, technical and legal requirements. It also accepted the proferred computer hardware and software
even if, at the time of the award, they had undeniably failed to pass eight critical requirements designed to safeguard
the integrity of elections, especially the following three items:
They failed to achieve the accuracy rating criteria of 99.9995 percent set-up by the Comelec itself
They were not able to detect previously downloaded results at various canvassing or consolidation levels and
to prevent these from being inputted again
They were unable to print the statutorily required audit trails of the count/canvass at different levels without
any loss of data
Because of the foregoing violations of law and the glaring grave abuse of discretion committed by Comelec, the Court
has no choice but to exercise its solemn "constitutional duty" 3 to void the assailed Resolution and the subject Contract.
The illegal, imprudent and hasty actions of the Commission have not only desecrated legal and jurisprudential norms,
but have also cast serious doubts upon the poll bodys ability and capacity to conduct automated elections. Truly, the
pith and soul of democracy -- credible, orderly, and peaceful elections -- has been put in jeopardy by the illegal and
gravely abusive acts of Comelec.
The Case
Before us is a Petition4 under Rule 65 of the Rules of Court, seeking (1) to declare null and void Resolution No. 6074 of
the Commission on Elections (Comelec), which awarded "Phase II of the Modernization Project of the Commission to
Mega Pacific Consortium (MPC);" (2) to enjoin the implementation of any further contract that may have been entered
into by Comelec "either with Mega Pacific Consortium and/or Mega Pacific eSolutions, Inc. (MPEI);" and (3) to compel
Comelec to conduct a re-bidding of the project.
The Facts
The following facts are not disputed. They were culled from official documents, the parties pleadings, as well as from
admissions during the Oral Argument on October 7, 2003.

On June 7, 1995, Congress passed Republic Act 8046, 5 which authorized Comelec to conduct a nationwide
demonstration of a computerized election system and allowed the poll body to pilot-test the system in the March 1996
elections in the Autonomous Region in Muslim Mindanao (ARMM).
On December 22, 1997, Congress enacted Republic Act 8436 6 authorizing Comelec to use an automated election
system (AES) for the process of voting, counting votes and canvassing/consolidating the results of the national and
local elections. It also mandated the poll body to acquire automated counting machines (ACMs), computer equipment,
devices and materials; and to adopt new electoral forms and printing materials.
Initially intending to implement the automation during the May 11, 1998 presidential elections, Comelec -- in its
Resolution No. 2985 dated February 9, 19987 -- eventually decided against full national implementation and limited
the automation to the Autonomous Region in Muslim Mindanao (ARMM). However, due to the failure of the machines
to read correctly some automated ballots in one town, the poll body later ordered their manual count for the entire
Province of Sulu.8
In the May 2001 elections, the counting and canvassing of votes for both national and local positions were also done
manually, as no additional ACMs had been acquired for that electoral exercise allegedly because of time constraints.
On October 29, 2002, Comelec adopted in its Resolution 02-0170 a modernization program for the 2004 elections. It
resolved to conduct biddings for the three (3) phases of its Automated Election System; namely, Phase I - Voter
Registration and Validation System; Phase II - Automated Counting and Canvassing System; and Phase III - Electronic
Transmission.
On January 24, 2003, President Gloria Macapagal-Arroyo issued Executive Order No. 172, which allocated the sum of
P2.5 billion to fund the AES for the May 10, 2004 elections. Upon the request of Comelec, she authorized the release
of an additional P500 million.
On January 28, 2003, the Commission issued an "Invitation to Apply for Eligibility and to Bid," which we quote as
follows:
"INVITATION TO APPLY FOR ELIGIBILITY AND TO BID
The Commission on Elections (COMELEC), pursuant to the mandate of Republic Act Nos. 8189 and 8436,
invites interested offerors, vendors, suppliers or lessors to apply for eligibility and to bid for the procurement
by purchase, lease, lease with option to purchase, or otherwise, supplies, equipment, materials and services
needed for a comprehensive Automated Election System, consisting of three (3) phases: (a)
registration/verification of voters, (b) automated counting and consolidation of votes, and (c) electronic
transmission of election results, with an approved budget of TWO BILLION FIVE HUNDRED MILLION
(Php2,500,000,000) Pesos.
Only bids from the following entities shall be entertained:
a. Duly licensed Filipino citizens/proprietorships;
b. Partnerships duly organized under the laws of the Philippines and of which at least sixty percent
(60%) of the interest belongs to citizens of the Philippines;
c. Corporations duly organized under the laws of the Philippines, and of which at least sixty percent
(60%) of the outstanding capital stock belongs to citizens of the Philippines;
d. Manufacturers, suppliers and/or distributors forming themselves into a joint venture, i.e., a group of
two (2) or more manufacturers, suppliers and/or distributors that intend to be jointly and severally
responsible or liable for a particular contract, provided that Filipino ownership thereof shall be at least
sixty percent (60%); and
e. Cooperatives duly registered with the Cooperatives Development Authority.
Bid documents for the three (3) phases may be obtained starting 10 February 2003, during office hours from
the Bids and Awards Committee (BAC) Secretariat/Office of Commissioner Resurreccion Z. Borra, 7th Floor,
Palacio del Governador, Intramuros, Manila, upon payment at the Cash Division, Commission on Elections, in
cash or cashiers check, payable to the Commission on Elections, of a non-refundable amount of FIFTEEN

THOUSAND PESOS (Php15,000.00) for each phase. For this purpose, interested offerors, vendors, suppliers or
lessors have the option to participate in any or all of the three (3) phases of the comprehensive Automated
Election System.
A Pre-Bid Conference is scheduled on 13 February 2003, at 9:00 a.m. at the Session Hall, Commission on
Elections, Postigo Street, Intramuros, Manila. Should there be questions on the bid documents, bidders are
required to submit their queries in writing to the BAC Secretariat prior to the scheduled Pre-Bid Conference.
Deadline for submission to the BAC of applications for eligibility and bid envelopes for the supply of the
comprehensive Automated Election System shall be at the Session Hall, Commission on Elections, Postigo
Street, Intramuros, Manila on 28 February 2003 at 9:00 a.m.
The COMELEC reserves the right to review the qualifications of the bidders after the bidding and before the
contract is executed. Should such review uncover any misrepresentation made in the eligibility statements, or
any changes in the situation of the bidder to materially downgrade the substance of such statements, the
COMELEC shall disqualify the bidder upon due notice without any obligation whatsoever for any expenses or
losses that may be incurred by it in the preparation of its bid." 9
On February 11, 2003, Comelec issued Resolution No. 5929 clarifying certain eligibility criteria for bidders and the
schedule of activities for the project bidding, as follows:
"1.) Open to Filipino and foreign corporation duly registered and licensed to do business and is actually doing
business in the Philippines, subject to Sec. 43 of RA 9184 (An Act providing In the Modernization
Standardization and Regulation of the Procurement Activities of the Government and for other purposes etc.)
2.) Track Record:
a) For counting machines should have been used in at least one (1) political exercise with no less
than Twenty Million Voters;
b) For verification of voters the reference site of an existing data base installation using Automated
Fingerprint Identification System (AFIS) with at least Twenty Million.
3.) Ten percent (10%) equity requirement shall be based on the total project cost; and
4.) Performance bond shall be twenty percent (20%) of the bid offer.
RESOLVED moreover, that:
1) A. Due to the decision that the eligibility requirements and the rest of the Bid documents shall be
released at the same time, and the memorandum of Comm. Resurreccion Z. Borra dated February 7,
2003, the documents to be released on Friday, February 14, 2003 at 2:00 oclock p.m. shall be the
eligibility criteria, Terms of Reference (TOR) and other pertinent documents;
B. Pre-Bid conference shall be on February 18, 2003; and
C. Deadline for the submission and receipt of the Bids shall be on March 5, 2003.
2) The aforementioned documents will be available at the following offices:
a) Voters Validation: Office of Comm. Javier
b) Automated Counting Machines: Office of Comm. Borra
c) Electronic Transmission: Office of Comm. Tancangco" 10
On February 17, 2003, the poll body released the Request for Proposal (RFP) to procure the election automation
machines. The Bids and Awards Committee (BAC) of Comelec convened a pre-bid conference on February 18, 2003
and gave prospective bidders until March 10, 2003 to submit their respective bids.

Among others, the RFP provided that bids from manufacturers, suppliers and/or distributors forming themselves into a
joint venture may be entertained, provided that the Philippine ownership thereof shall be at least 60 percent. Joint
venture is defined in the RFP as "a group of two or more manufacturers, suppliers and/or distributors that intend to be
jointly and severally responsible or liable for a particular contract." 11
Basically, the public bidding was to be conducted under a two-envelope/two stage system. The bidders first envelope
or the Eligibility Envelope should establish the bidders eligibility to bid and its qualifications to perform the acts if
accepted. On the other hand, the second envelope would be the Bid Envelope itself. The RFP outlines the bidding
procedures as follows:
"25. Determination of Eligibility of Prospective Bidders
"25.1 The eligibility envelopes of prospective Bidders shall be opened first to determine their eligibility.
In case any of the requirements specified in Clause 20 is missing from the first bid envelope, the BAC
shall declare said prospective Bidder as ineligible to bid. Bid envelopes of ineligible Bidders shall be
immediately returned unopened.
"25.2 The eligibility of prospective Bidders shall be determined using simple pass/fail criteria and
shall be determined as either eligible or ineligible. If the prospective Bidder is rated passed for all the
legal, technical and financial requirements, he shall be considered eligible. If the prospective Bidder is
rated failed in any of the requirements, he shall be considered ineligible.
"26. Bid Examination/Evaluation
"26.1 The BAC will examine the Bids to determine whether they are complete, whether any
computational errors have been made, whether required securities have been furnished, whether the
documents have been properly signed, and whether the Bids are generally in order.
"26.2 The BAC shall check the submitted documents of each Bidder against the required documents
enumerated under Clause 20, to ascertain if they are all present in the Second bid envelope (Technical
Envelope). In case one (1) or more of the required documents is missing, the BAC shall rate the Bid
concerned as failed and immediately return to the Bidder its Third bid envelope (Financial Envelope)
unopened. Otherwise, the BAC shall rate the first bid envelope as passed.
"26.3 The BAC shall immediately open the Financial Envelopes of the Bidders whose Technical
Envelopes were passed or rated on or above the passing score. Only Bids that are determined to
contain all the bid requirements for both components shall be rated passed and shall immediately be
considered for evaluation and comparison.
"26.4 In the opening and examination of the Financial Envelope, the BAC shall announce and tabulate
the Total Bid Price as calculated. Arithmetical errors will be rectified on the following basis: If there is a
discrepancy between words and figures, the amount in words will prevail. If there is a discrepancy
between the unit price and the total price that is obtained by multiplying the unit price and the
quantity, the unit price shall prevail and the total price shall be corrected accordingly. If there is a
discrepancy between the Total Bid Price and the sum of the total prices, the sum of the total prices
prevail and the Total Bid Price shall be corrected accordingly.
"26.5 Financial Proposals which do not clearly state the Total Bid Price shall be rejected. Also, Total Bid
Price as calculated that exceeds the approved budget for the contract shall also be rejected.
27. Comparison of Bids
27.1 The bid price shall be deemed to embrace all costs, charges and fees associated with carrying out
all the elements of the proposed Contract, including but not limited to, license fees, freight charges
and taxes.
27.2 The BAC shall establish the calculated prices of all Bids rated passed and rank the same in
ascending order.
xxxxxxxxx

"29. Postqualification
"29.1 The BAC will determine to its satisfaction whether the Bidder selected as having submitted the
lowest calculated bid is qualified to satisfactorily perform the Contract.
"29.2 The determination will take into account the Bidders financial, technical and production
capabilities/resources. It will be based upon an examination of the documentary evidence of the
Bidders qualification submitted by the Bidder as well as such other information as the BAC deems
necessary and appropriate.
"29.3 A bid determined as not substantially responsive will be rejected by the BAC and may not
subsequently be made responsive by the Bidder by correction of the non-conformity.
"29.4 The BAC may waive any informality or non-conformity or irregularity in a bid which does not
constitute a material deviation, provided such waiver does not prejudice or affect the relative ranking
of any Bidder.
"29.5 Should the BAC find that the Bidder complies with the legal, financial and technical
requirements, it shall make an affirmative determination which shall be a prerequisite for award of the
Contract to the Bidder. Otherwise, it will make a negative determination which will result in rejection of
the Bidders bid, in which event the BAC will proceed to the next lowest calculated bid to make a
similar determination of that Bidders capabilities to perform satisfactorily." 12
Out of the 57 bidders,13 the BAC found MPC and the Total Information Management Corporation (TIMC) eligible. For
technical evaluation, they were referred to the BACs Technical Working Group (TWG) and the Department of Science
and Technology (DOST).
In its Report on the Evaluation of the Technical Proposals on Phase II, DOST said that both MPC and TIMC had
obtained a number of failed marks in the technical evaluation. Notwithstanding these failures, Comelec en banc, on
April 15, 2003, promulgated Resolution No. 6074 awarding the project to MPC. The Commission publicized this
Resolution and the award of the project to MPC on May 16, 2003.
On May 29, 2003, five individuals and entities (including the herein Petitioners Information Technology Foundation of
the Philippines, represented by its president, Alfredo M. Torres; and Ma. Corazon Akol) wrote a letter 14 to Comelec
Chairman Benjamin Abalos Sr. They protested the award of the Contract to Respondent MPC "due to glaring
irregularities in the manner in which the bidding process had been conducted." Citing therein the noncompliance with
eligibility as well as technical and procedural requirements (many of which have been discussed at length in the
Petition), they sought a re-bidding.
In a letter-reply dated June 6, 2003,15 the Comelec chairman -- speaking through Atty. Jaime Paz, his head executive
assistant -- rejected the protest and declared that the award "would stand up to the strictest scrutiny."
Hence, the present Petition. 16
The Issues
In their Memorandum, petitioners raise the following issues for our consideration:
"1. The COMELEC awarded and contracted with a non-eligible entity; x x x
"2. Private respondents failed to pass the Technical Test as required in the RFP. Notwithstanding, such failure
was ignored. In effect, the COMELEC changed the rules after the bidding in effect changing the nature of the
contract bidded upon.
"3. Petitioners have locus standi.
"4. Instant Petition is not premature. Direct resort to the Supreme Court is justified." 17
In the main, the substantive issue is whether the Commission on Elections, the agency vested with the exclusive
constitutional mandate to oversee elections, gravely abused its discretion when, in the exercise of its administrative
functions, it awarded to MPC the contract for the second phase of the comprehensive Automated Election System.

Before discussing the validity of the award to MPC, however, we deem it proper to first pass upon the procedural
issues: the legal standing of petitioners and the alleged prematurity of the Petition.
This Courts Ruling
The Petition is meritorious.
First Procedural Issue:
Locus Standi of Petitioners
Respondents chorus that petitioners do not possess locus standi, inasmuch as they are not challenging the validity or
constitutionality of RA 8436. Moreover, petitioners supposedly admitted during the Oral Argument that no law had
been violated by the award of the Contract. Furthermore, they allegedly have no actual and material interest in the
Contract and, hence, do not stand to be injured or prejudiced on account of the award.
On the other hand, petitioners -- suing in their capacities as taxpayers, registered voters and concerned citizens -respond that the issues central to this case are "of transcendental importance and of national interest." Allegedly,
Comelecs flawed bidding and questionable award of the Contract to an unqualified entity would impact directly on the
success or the failure of the electoral process. Thus, any taint on the sanctity of the ballot as the expression of the will
of the people would inevitably affect their faith in the democratic system of government. Petitioners further argue that
the award of any contract for automation involves disbursement of public funds in gargantuan amounts; therefore,
public interest requires that the laws governing the transaction must be followed strictly.
We agree with petitioners. Our nations political and economic future virtually hangs in the balance, pending the
outcome of the 2004 elections. Hence, there can be no serious doubt that the subject matter of this case is "a matter
of public concern and imbued with public interest"; 18 in other words, it is of "paramount public interest" 19 and
"transcendental importance."20 This fact alone would justify relaxing the rule on legal standing, following the liberal
policy of this Court whenever a case involves "an issue of overarching significance to our society." 21 Petitioners legal
standing should therefore be recognized and upheld.
Moreover, this Court has held that taxpayers are allowed to sue when there is a claim of "illegal disbursement of public
funds,"22 or if public money is being "deflected to any improper purpose"; 23 or when petitioners seek to restrain
respondent from "wasting public funds through the enforcement of an invalid or unconstitutional law." 24 In the instant
case, individual petitioners, suing as taxpayers, assert a material interest in seeing to it that public funds are properly
and lawfully used. In the Petition, they claim that the bidding was defective, the winning bidder not a qualified entity,
and the award of the Contract contrary to law and regulation. Accordingly, they seek to restrain respondents from
implementing the Contract and, necessarily, from making any unwarranted expenditure of public funds pursuant
thereto. Thus, we hold that petitioners possess locus standi.
Second Procedural Issue:
Alleged Prematurity Due to Non-Exhaustion of Administrative Remedies
Respondents claim that petitioners acted prematurely, since they had not first utilized the protest mechanism available
to them under RA 9184, the Government Procurement Reform Act, for the settlement of disputes pertaining to
procurement contracts.
Section 55 of RA 9184 states that protests against decisions of the Bidding and Awards Committee in all stages of
procurement may be lodged with the head of the procuring entity by filing a verified position paper and paying a
protest fee. Section 57 of the same law mandates that in no case shall any such protest stay or delay the bidding
process, but it must first be resolved before any award is made.
On the other hand, Section 58 provides that court action may be resorted to only after the protests contemplated by
the statute shall have been completed. Cases filed in violation of this process are to be dismissed for lack of
jurisdiction. Regional trial courts shall have jurisdiction over final decisions of the head of the procuring entity, and
court actions shall be instituted pursuant to Rule 65 of the 1997 Rules of Civil Procedure.
Respondents assert that throughout the bidding process, petitioners never questioned the BAC Report finding MPC
eligible to bid and recommending the award of the Contract to it (MPC). According to respondents, the Report should

have been appealed to the Comelc en banc, pursuant to the aforementioned sections of RA 9184. In the absence of
such appeal, the determination and recommendation of the BAC had become final.
The Court is not persuaded.
Respondent Comelec came out with its en banc Resolution No. 6074 dated April 15, 2003, awarding the project to
Respondent MPC even before the BAC managed to issue its written report and recommendation on April 21, 2003.
Thus, how could petitioners have appealed the BACs recommendation or report to the head of the procuring entity
(the chairman of Comelec), when the Comelec en banc had already approved the award of the contract to MPC even
before petitioners learned of the BAC recommendation?
It is claimed25 by Comelec that during its April 15, 2003 session, it received and approved the verbal report and
recommendation of the BAC for the award of the Contract to MPC, and that the BAC subsequently re-affirmed its
verbal report and recommendation by submitting it in writing on April 21, 2003. Respondents insist that the law does
not require that the BAC Report be in writing before Comelec can act thereon; therefore, there is allegedly nothing
irregular about the Report as well as the en banc Resolution.
However, it is obvious that petitioners could have appealed the BACs report and recommendation to the head of the
procuring entity (the Comelec chair) only upon their discovery thereof, which at the very earliest would have been on
April 21, 2003, when the BAC actually put its report in writing and finally released it. Even then, what would have
been the use of protesting/appealing the report to the Comelec chair, when by that time the Commission en banc
(including the chairman himself) had already approved the BAC Report and awarded the Contract to MPC?
And even assuming arguendo that petitioners had somehow gotten wind of the verbal BAC report on April 15, 2003
(immediately after the en banc session), at that point the Commission en banc had already given its approval to the
BAC Report along with the award to MPC. To put it bluntly, the Comelec en banc itself made it legally impossible for
petitioners to avail themselves of the administrative remedy that the Commission is so impiously harping on. There is
no doubt that they had not been accorded the opportunity to avail themselves of the process provided under Section
55 of RA 9184, according to which a protest against a decision of the BAC may be filed with the head of the procuring
entity. Nemo tenetur ad impossible,26 to borrow private respondents favorite Latin excuse.27
Some Observations on the BAC Report to the Comelec
We shall return to this issue of alleged prematurity shortly, but at this interstice, we would just want to put forward a
few observations regarding the BAC Report and the Comelec en bancs approval thereof.
First, Comelec contends that there was nothing unusual about the fact that the Report submitted by the BAC came
only after the former had already awarded the Contract, because the latter had been asked to render its report and
recommendation orally during the Commissions en banc session on April 15, 2003. Accordingly, Comelec supposedly
acted upon such oral recommendation and approved the award to MPC on the same day, following which the
recommendation was subsequently reduced into writing on April 21, 2003. While not entirely outside the realm of the
possible, this interesting and unique spiel does not speak well of the process that Comelec supposedly went through in
making a critical decision with respect to a multi-billion-peso contract.
We can imagine that anyone else standing in the shoes of the Honorable Commissioners would have been extremely
conscious of the overarching need for utter transparency. They would have scrupulously avoided the slightest hint of
impropriety, preferring to maintain an exacting regularity in the performance of their duties, instead of trying to break
a speed record in the award of multi-billion-peso contracts. After all, between April 15 and April 21 were a mere six
(6) days. Could Comelec not have waited out six more days for the written report of the BAC, instead of rushing pellmell into the arms of MPC? Certainly, respondents never cared to explain the nature of the Commissions dire need to
act immediately without awaiting the formal, written BAC Report.
In short, the Court finds it difficult to reconcile the uncommon dispatch with which Comelec acted to approve the
multi-billion-peso deal, with its claim of having been impelled by only the purest and most noble of motives.
At any rate, as will be discussed later on, several other factors combine to lend negative credence to Comelecs tale.
Second, without necessarily ascribing any premature malice or premeditation on the part of the Comelec officials
involved, it should nevertheless be conceded that this cart-before-the-horse maneuver (awarding of the Contract
ahead of the BACs written report) would definitely serve as a clever and effective way of averting and frustrating any
impending protest under Section 55.

Having made the foregoing observations, we now go back to the question of exhausting administrative remedies.
Respondents may not have realized it, but the letter addressed to Chairman Benjamin Abalos Sr. dated May 29, 2003 28
serves to eliminate the prematurity issue as it was an actual written protest against the decision of the poll body to
award the Contract. The letter was signed by/for, inter alia, two of herein petitioners: the Information Technology
Foundation of the Philippines, represented by its president, Alfredo M. Torres; and Ma. Corazon Akol.
Such letter-protest is sufficient compliance with the requirement to exhaust administrative remedies particularly
because it hews closely to the procedure outlined in Section 55 of RA 9184.
And even without that May 29, 2003 letter-protest, the Court still holds that petitioners need not exhaust
administrative remedies in the light of Paat v. Court of Appeals. 29 Paat enumerates the instances when the rule on
exhaustion of administrative remedies may be disregarded, as follows:
"(1) when there is a violation of due process,
(2) when the issue involved is purely a legal question,
(3) when the administrative action is patently illegal amounting to lack or excess of jurisdiction,
(4) when there is estoppel on the part of the administrative agency concerned,
(5) when there is irreparable injury,
(6) when the respondent is a department secretary whose acts as an alter ego of the President bears the
implied and assumed approval of the latter,
(7) when to require exhaustion of administrative remedies would be unreasonable,
(8) when it would amount to a nullification of a claim,
(9) when the subject matter is a private land in land case proceedings,
(10) when the rule does not provide a plain, speedy and adequate remedy, and
(11) when there are circumstances indicating the urgency of judicial intervention." 30
The present controversy precisely falls within the exceptions listed as Nos. 7, 10 and 11: "(7) when to require
exhaustion of administrative remedies would be unreasonable; (10) when the rule does not provide a plain, speedy
and adequate remedy, and (11) when there are circumstances indicating the urgency of judicial intervention." As
already stated, Comelec itself made the exhaustion of administrative remedies legally impossible or, at the very least,
"unreasonable."
In any event, the peculiar circumstances surrounding the unconventional rendition of the BAC Report and the
precipitate awarding of the Contract by the Comelec en banc -- plus the fact that it was racing to have its Contract
with MPC implemented in time for the elections in May 2004 (barely four months away) -- have combined to bring
about the urgent need for judicial intervention, thus prompting this Court to dispense with the procedural exhaustion
of administrative remedies in this case.
Main Substantive Issue:
Validity of the Award to MPC
We come now to the meat of the controversy. Petitioners contend that the award is invalid, since Comelec gravely
abused its discretion when it did the following:
1. Awarded the Contract to MPC though it did not even participate in the bidding
2. Allowed MPEI to participate in the bidding despite its failure to meet the mandatory eligibility requirements

3. Issued its Resolution of April 15, 2003 awarding the Contract to MPC despite the issuance by the BAC of its
Report, which formed the basis of the assailed Resolution, only on April 21, 2003 31
4. Awarded the Contract, notwithstanding the fact that during the bidding process, there were violations of the
mandatory requirements of RA 8436 as well as those set forth in Comelecs own Request for Proposal on the
automated election system
5. Refused to declare a failed bidding and to conduct a re-bidding despite the failure of the bidders to pass the
technical tests conducted by the Department of Science and Technology
6. Failed to follow strictly the provisions of RA 8436 in the conduct of the bidding for the automated counting
machines
After reviewing the slew of pleadings as well as the matters raised during the Oral Argument, the Court deems it
sufficient to focus discussion on the following major areas of concern that impinge on the issue of grave abuse of
discretion:
A. Matters pertaining to the identity, existence and eligibility of MPC as a bidder
B. Failure of the automated counting machines (ACMs) to pass the DOST technical tests
C. Remedial measures and re-testings undertaken by Comelec and DOST after the award, and their effect on
the present controversy
A.
Failure to Establish the Identity, Existence and Eligibility of the Alleged Consortium as a Bidder
On the question of the identity and the existence of the real bidder, respondents insist that, contrary to petitioners
allegations, the bidder was not Mega Pacific eSolutions, Inc. (MPEI), which was incorporated only on February 27,
2003, or 11 days prior to the bidding itself. Rather, the bidder was Mega Pacific Consortium (MPC), of which MPEI was
but a part. As proof thereof, they point to the March 7, 2003 letter of intent to bid, signed by the president of MPEI
allegedly for and on behalf of MPC. They also call attention to the official receipt issued to MPC, acknowledging
payment for the bidding documents, as proof that it was the "consortium" that participated in the bidding process.
We do not agree. The March 7, 2003 letter, signed by only one signatory -- "Willy U. Yu, President, Mega Pacific
eSolutions, Inc., (Lead Company/ Proponent) For: Mega Pacific Consortium" -- and without any further proof, does not
by itself prove the existence of the consortium. It does not show that MPEI or its president have been duly preauthorized by the other members of the putative consortium to represent them, to bid on their collective behalf and,
more important, to commit them jointly and severally to the bid undertakings. The letter is purely self-serving and
uncorroborated.
Neither does an official receipt issued to MPC, acknowledging payment for the bidding documents, constitute proof
that it was the purported consortium that participated in the bidding. Such receipts are issued by cashiers without any
legally sufficient inquiry as to the real identity orexistence of the supposed payor.
To assure itself properly of the due existence (as well as eligibility and qualification) of the putative consortium,
Comelecs BAC should have examined the bidding documents submitted on behalf of MPC. They would have easily
discovered the following fatal flaws.
Two-Envelope,
Two-Stage System
As stated earlier in our factual presentation, the public bidding system designed by Comelec under its RFP (Request
for Proposal for the Automation of the 2004 Election) mandated the use of a two-envelope, two-stage system. A
bidders first envelope (Eligibility Envelope) was meant to establish its eligibility to bid and its qualifications and
capacity to perform the contract if its bid was accepted, while the second envelope would be the Bid Envelope itself.
The Eligibility Envelope was to contain legal documents such as articles of incorporation, business registrations,
licenses and permits, mayors permit, VAT certification, and so forth; technical documents containing documentary

evidence to establish the track record of the bidder and its technical and production capabilities to perform the
contract; and financial documents, including audited financial statements for the last three years, to establish the
bidders financial capacity.
In the case of a consortium or joint venture desirous of participating in the bidding, it goes without saying that the
Eligibility Envelope would necessarily have to include a copy of the joint venture agreement, the consortium
agreement or memorandum of agreement -- or a business plan or some other instrument of similar import -establishing the due existence, composition and scope of such aggrupation. Otherwise, how would Comelec know who
it was dealing with, and whether these parties are qualified and capable of delivering the products and services being
offered for bidding?32
In the instant case, no such instrument was submitted to Comelec during the bidding process. This fact can be
conclusively ascertained by scrutinizing the two-inch thick "Eligibility Requirements" file submitted by Comelec last
October 9, 2003, in partial compliance with this Courts instructions given during the Oral Argument. This file purports
to replicate the eligibility documents originally submitted to Comelec by MPEI allegedly on behalf of MPC, in connection
with the bidding conducted in March 2003. Included in the file are the incorporation papers and financial statements of
the members of the supposed consortium and certain certificates, licenses and permits issued to them.
However, there is no sign whatsoever of any joint venture agreement, consortium agreement, memorandum of
agreement, or business plan executed among the members of the purported consortium.
The only logical conclusion is that no such agreement was ever submitted to the Comelec for its consideration, as part
of the bidding process.
It thus follows that, prior the award of the Contract, there was no documentary or other basis for Comelec to conclude
that a consortium had actually been formed amongst MPEI, SK C&C and WeSolv, along with Election.com and ePLDT.33
Neither was there anything to indicate the exact relationships between and among these firms; their diverse roles,
undertakings and prestations, if any, relative to the prosecution of the project, the extent of their respective
investments (if any) in the supposed consortium or in the project; and the precise nature and extent of their
respective liabilities with respect to the contract being offered for bidding. And apart from the self-serving letter of
March 7, 2003, there was not even any indication that MPEI was the lead company duly authorized to act on behalf of
the others.
So, it necessarily follows that, during the bidding process, Comelec had no basis at all for determining that the alleged
consortium really existed and was eligible and qualified; and that the arrangements among the members were
satisfactory and sufficient to ensure delivery on the Contract and to protect the governments interest.
Notwithstanding such deficiencies, Comelec still deemed the "consortium" eligible to participate in the bidding,
proceeded to open its Second Envelope, and eventually awarded the bid to it, even though -- per the Comelecs own
RFP -- the BAC should have declared the MPC ineligible to bid and returned the Second (Bid) Envelope unopened.
Inasmuch as Comelec should not have considered MPEI et al. as comprising a consortium or joint venture, it should
not have allowed them to avail themselves of the provision in Section 5.4 (b) (i) of the IRR for RA 6957 (the BuildOperate-Transfer Law), as amended by RA 7718. This provision states in part that a joint venture/consortium
proponent shall be evaluated based on the individual or collective experience of the member-firms of the joint venture
or consortium and of the contractor(s) that it has engaged for the project. Parenthetically, respondents have uniformly
argued that the said IRR of RA 6957, as amended, have suppletory application to the instant case.
Hence, had the proponent MPEI been evaluated based solely on its own experience, financial and operational track
record or lack thereof, it would surely not have qualified and would have been immediately considered ineligible to bid,
as respondents readily admit.
At any rate, it is clear that Comelec gravely abused its discretion in arbitrarily failing to observe its own rules, policies
and guidelines with respect to the bidding process, thereby negating a fair, honest and competitive bidding.
Commissioners Not Aware of Consortium
In this regard, the Court is beguiled by the statements of Commissioner Florentino Tuason Jr., given in open court
during the Oral Argument last October 7, 2003. The good commissioner affirmed that he was aware, of his own
personal knowledge, that there had indeed been a written agreement among the "consortium" members, 34 although it
was an internal matter among them,35 and of the fact that it would be presented by counsel for private respondent. 36

However, under questioning by Chief Justice Hilario G. Davide Jr. and Justice Jose C. Vitug, Commissioner Tuason in
effect admitted that, while he was the commissioner-in-charge of Comelecs Legal Department, he had never seen,
even up to that late date, the agreement he spoke of.37 Under further questioning, he was likewise unable to provide
any information regarding the amounts invested into the project by several members of the claimed consortium. 38 A
short while later, he admitted that the Commission had not taken a look at the agreement (if any). 39
He tried to justify his position by claiming that he was not a member of the BAC. Neither was he the commissioner-incharge of the Phase II Modernization project (the automated election system); but that, in any case, the BAC and the
Phase II Modernization Project Team did look into the aspect of the composition of the consortium.
It seems to the Court, though, that even if the BAC or the Phase II Team had taken charge of evaluating the eligibility,
qualifications and credentials of the consortium-bidder, still, in all probability, the former would have referred the task
to Commissioner Tuason, head of Comelecs Legal Department. That task was the appreciation and evaluation of the
legal effects and consequences of the terms, conditions, stipulations and covenants contained in any joint venture
agreement, consortium agreement or a similar document -- assuming of course that any of these was available at the
time. The fact that Commissioner Tuason was barely aware of the situation bespeaks the complete absence of such
document, or the utter failure or neglect of the Comelec to examine it -- assuming it was available at all -- at the time
the award was made on April 15, 2003.
In any event, the Court notes for the record that Commissioner Tuason basically contradicted his statements in open
court about there being one written agreement among all the consortium members, when he subsequently referred 40
to the four (4) Memoranda of Agreement (MOAs) executed by them. 41
At this juncture, one might ask: What, then, if there are four MOAs instead of one or none at all? Isnt it enough that
there are these corporations coming together to carry out the automation project? Isnt it true, as respondent aver,
that nowhere in the RFP issued by Comelec is it required that the members of the joint venture execute a single
written agreement to prove the existence of a joint venture. Indeed, the intention to be jointly and severally liable
may be evidenced not only by a single joint venture agreement, but also by supplementary documents executed by
the parties signifying such intention. What then is the big deal?
The problem is not that there are four agreements instead of only one. The problem is that Comelec never bothered to
check. It never based its decision on documents or other proof that would concretely establish the existence of the
claimed consortium or joint venture or agglomeration. It relied merely on the self-serving representation in an
uncorroborated letter signed by only one individual, claiming that his company represented a "consortium" of several
different corporations. It concluded forthwith that a consortium indeed existed, composed of such and such members,
and thereafter declared that the entity was eligible to bid.
True, copies of financial statements and incorporation papers of the alleged "consortium" members were submitted.
But these papers did not establish the existence of a consortium, as they could have been provided by the companies
concerned for purposes other than to prove that they were part of a consortium or joint venture. For instance, the
papers may have been intended to show that those companies were each qualified to be a sub-contractor (and
nothing more) in a major project. Those documents did not by themselves support the assumption that a consortium
or joint venture existed among the companies.
In brief, despite the absence of competent proof as to the existence and eligibility of the alleged consortium (MPC), its
capacity to deliver on the Contract, and the members joint and several liability therefor, Comelec nevertheless
assumed that such consortium existed and was eligible. It then went ahead and considered the bid of MPC, to which
the Contract was eventually awarded, in gross violation of the formers own bidding rules and procedures contained in
its RFP. Therein lies Comelecs grave abuse of discretion.
Sufficiency of the Four Agreements
Instead of one multilateral agreement executed by, and effective and binding on, all the five "consortium members" -as earlier claimed by Commissioner Tuason in open court -- it turns out that what was actually executed were four (4)
separate and distinct bilateral Agreements.42 Obviously, Comelec was furnished copies of these Agreements only after
the bidding process had been terminated, as these were not included in the Eligibility Documents. These Agreements
are as follows:
A Memorandum of Agreement between MPEI and SK C&C
A Memorandum of Agreement between MPEI and WeSolv

 A "Teaming Agreement" between MPEI and Election.com Ltd.

A "Teaming Agreement" between MPEI and ePLDT
In sum, each of the four different and separate bilateral Agreements is valid and binding only between MPEI and the
other contracting party, leaving the other "consortium" members total strangers thereto. Under this setup, MPEI dealt
separately with each of the "members," and the latter (WeSolv, SK C&C, Election.com, and ePLDT) in turn had nothing
to do with one another, each dealing only with MPEI.
Respondents assert that these four Agreements were sufficient for the purpose of enabling the corporations to still
qualify (even at that late stage) as a consortium or joint venture, since the first two Agreements had allegedly set
forth the joint and several undertakings among the parties, whereas the latter two clarified the parties respective
roles with regard to the Project, with MPEI being the independent contractor and Election.com and ePLDT the
subcontractors.
Additionally, the use of the phrase "particular contract" in the Comelecs Request for Proposal (RFP), in connection
with the joint and several liabilities of companies in a joint venture, is taken by them to mean that all the members of
the joint venture need not be solidarily liable for the entire project or joint venture, because it is sufficient that the
lead company and the member in charge of a particular contract or aspect of the joint venture agree to be solidarily
liable.
At this point, it must be stressed most vigorously that the submission of the four bilateral Agreements to Comelec
after the end of the bidding process did nothing to eliminate the grave abuse of discretion it had already committed on
April 15, 2003.
Deficiencies Have Not Been "Cured"
In any event, it is also claimed that the automation Contract awarded by Comelec incorporates all documents
executed by the "consortium" members, even if these documents are not referred to therein. The basis of this
assertion appears to be the passages from Section 1.4 of the Contract, which is reproduced as follows:
"All Contract Documents shall form part of the Contract even if they or any one of them is not referred to or
mentioned in the Contract as forming a part thereof. Each of the Contract Documents shall be mutually
complementary and explanatory of each other such that what is noted in one although not shown in the other
shall be considered contained in all, and what is required by any one shall be as binding as if required by all,
unless one item is a correction of the other.
"The intent of the Contract Documents is the proper, satisfactory and timely execution and completion of the
Project, in accordance with the Contract Documents. Consequently, all items necessary for the proper and
timely execution and completion of the Project shall be deemed included in the Contract."
Thus, it is argued that whatever perceived deficiencies there were in the supplementary contracts -- those entered
into by MPEI and the other members of the "consortium" as regards their joint and several undertakings -- have been
cured. Better still, such deficiencies have supposedly been prevented from arising as a result of the above-quoted
provisions, from which it can be immediately established that each of the members of MPC assumes the same joint
and several liability as the other members.
The foregoing argument is unpersuasive. First, the contract being referred to, entitled "The Automated Counting and
Canvassing Project Contract," is between Comelec and MPEI, not the alleged consortium, MPC. To repeat, it is MPEI -not MPC -- that is a party to the Contract. Nowhere in that Contract is there any mention of a consortium or joint
venture, of members thereof, much less of joint and several liability. Supposedly executed sometime in May 2003, 43
the Contract bears a notarization date of June 30, 2003, and contains the signature of Willy U. Yu signing as president
of MPEI (not for and on behalf of MPC), along with that of the Comelec chair. It provides in Section 3.2 that MPEI (not
MPC) is to supply the Equipment and perform the Services under the Contract, in accordance with the appendices
thereof; nothing whatsoever is said about any consortium or joint venture or partnership.
Second, the portions of Section 1.4 of the Contract reproduced above do not have the effect of curing (much less
preventing) deficiencies in the bilateral agreements entered into by MPEI with the other members of the "consortium,"
with respect to their joint and several liabilities. The term "Contract Documents," as used in the quoted passages of
Section 1.4, has a well-defined meaning and actually refers only to the following documents:
The Contract itself along with its appendices

 The Request for Proposal (also known as "Terms of Reference") issued by the Comelec, including the Tender
Inquiries and Bid Bulletins
The Tender Proposal submitted by MPEI
In other words, the term "Contract Documents" cannot be understood as referring to or including the MOAs and the
Teaming Agreements entered into by MPEI with SK C&C, WeSolv, Election.com and ePLDT. This much is very clear and
admits of no debate. The attempt to use the provisions of Section 1.4 to shore up the MOAs and the Teaming
Agreements is simply unwarranted.
Third and last, we fail to see how respondents can arrive at the conclusion that, from the above-quoted provisions, it
can be immediately established that each of the members of MPC assumes the same joint and several liability as the
other members. Earlier, respondents claimed exactly the opposite -- that the two MOAs (between MPEI and SK C&C,
and between MPEI and WeSolv) had set forth the joint and several undertakings among the parties; whereas the two
Teaming Agreements clarified the parties respective roles with regard to the Project, with MPEI being the independent
contractor and Election.com and ePLDT the subcontractors.
Obviously, given the differences in their relationships, their respective liabilities cannot be the same. Precisely, the
very clear terms and stipulations contained in the MOAs and the Teaming Agreements -- entered into by MPEI with SK
C&C, WeSolv, Election.com and ePLDT -- negate the idea that these "members" are on a par with one another and
are, as such, assuming the same joint and several liability.
Moreover, respondents have earlier seized upon the use of the term "particular contract" in the Comelecs Request for
Proposal (RFP), in order to argue that all the members of the joint venture did not need to be solidarily liable for the
entire project or joint venture. It was sufficient that the lead company and the member in charge of a particular
contract or aspect of the joint venture would agree to be solidarily liable. The glaring lack of consistency leaves us at a
loss. Are respondents trying to establish the same joint and solidary liability among all the "members" or not?
Enforcement of Liabilities Problematic
Next, it is also maintained that the automation Contract between Comelec and the MPEI confirms the solidary
undertaking of the lead company and the consortium member concerned for each particular Contract, inasmuch as the
position of MPEI and anyone else performing the services contemplated under the Contract is described therein as that
of an independent contractor.
The Court does not see, however, how this conclusion was arrived at. In the first place, the contractual provision being
relied upon by respondents is Article 14, "Independent Contractors," which states: "Nothing contained herein shall be
construed as establishing or creating between the COMELEC and MEGA the relationship of employee and employer or
principal and agent, it being understood that the position of MEGA and of anyone performing the Services
contemplated under this Contract, is that of an independent contractor."
Obviously, the intent behind the provision was simply to avoid the creation of an employer-employee or a principalagent relationship and the complications that it would produce. Hence, the Article states that the role or position of
MPEI, or anyone else performing on its behalf, is that of an independent contractor. It is obvious to the Court that
respondents are stretching matters too far when they claim that, because of this provision, the Contract in effect
confirms the solidary undertaking of the lead company and the consortium member concerned for the particular phase
of the project. This assertion is an absolute non sequitur.
Enforcement of Liabilities Under the Civil Code Not Possible
In any event, it is claimed that Comelec may still enforce the liability of the "consortium" members under the Civil
Code provisions on partnership, reasoning that MPEI et al. represented themselves as partners and members of MPC
for purposes of bidding for the Project. They are, therefore, liable to the Comelec to the extent that the latter relied
upon such representation. Their liability as partners is solidary with respect to everything chargeable to the
partnership under certain conditions.
The Court has two points to make with respect to this argument. First, it must be recalled that SK C&C, WeSolv,
Election.com and ePLDT never represented themselves as partners and members of MPC, whether for purposes of
bidding or for something else. It was MPEI alone that represented them to be members of a "consortium" it
supposedly headed. Thus, its acts may not necessarily be held against the other "members."

Second, this argument of the OSG in its Memorandum 44 might possibly apply in the absence of a joint venture
agreement or some other writing that discloses the relationship of the "members" with one another. But precisely, this
case does not deal with a situation in which there is nothing in writing to serve as reference, leaving Comelec to rely
on mere representations and therefore justifying a falling back on the rules on partnership. For, again, the terms and
stipulations of the MOAs entered into by MPEI with SK C&C and WeSolv, as well as the Teaming Agreements of MPEI
with Election.com and ePLDT (copies of which have been furnished the Comelec) are very clear with respect to the
extent and the limitations of the firms respective liabilities.
In the case of WeSolv and SK C&C, their MOAs state that their liabilities, while joint and several with MPEI, are limited
only to the particular areas of work wherein their services are engaged or their products utilized. As for Election.com
and ePLDT, their separate "Teaming Agreements" specifically ascribe to them the role of subcontractor vis--vis MPEI
as contractor and, based on the terms of their particular agreements, neither Election.com nor ePLDT is, with MPEI,
jointly and severally liable to Comelec.45 It follows then that in the instant case, there is no justification for anyone,
much less Comelec, to resort to the rules on partnership and partners liabilities.
Eligibility of a Consortium Based on the Collective Qualifications of Its Members
Respondents declare that, for purposes of assessing the eligibility of the bidder, the members of MPC should be
evaluated on a collective basis. Therefore, they contend, the failure of MPEI to submit financial statements (on
account of its recent incorporation) should not by itself disqualify MPC, since the other members of the "consortium"
could meet the criteria set out in the RFP.
Thus, according to respondents, the collective nature of the undertaking of the members of MPC, their contribution of
assets and sharing of risks, and the community of their interest in the performance of the Contract lead to these
reasonable conclusions: (1) that their collective qualifications should be the basis for evaluating their eligibility; (2)
that the sheer enormity of the project renders it improbable to expect any single entity to be able to comply with all
the eligibility requirements and undertake the project by itself; and (3) that, as argued by the OSG, the RFP allows
bids from manufacturers, suppliers and/or distributors that have formed themselves into a joint venture, in
recognition of the virtual impossibility of a single entitys ability to respond to the Invitation to Bid.
Additionally, argues the Comelec, the Implementing Rules and Regulations of RA 6957 (the Build-Operate-Transfer
Law) as amended by RA 7718 would be applicable, as proponents of BOT projects usually form joint ventures or
consortiums. Under the IRR, a joint venture/consortium proponent shall be evaluated based on the individual or the
collective experience of the member-firms of the joint venture/consortium and of the contractors the proponent has
engaged for the project.
Unfortunately, this argument seems to assume that the "collective" nature of the undertaking of the members of MPC,
their contribution of assets and sharing of risks, and the "community" of their interest in the performance of the
Contract entitle MPC to be treated as a joint venture or consortium; and to be evaluated accordingly on the basis of
the members collective qualifications when, in fact, the evidence before the Court suggest otherwise.
This Court in Kilosbayan v. Guingona46 defined joint venture as "an association of persons or companies jointly
undertaking some commercial enterprise; generally, all contribute assets and share risks. It requires a community of
interest in the performance of the subject matter, a right to direct and govern the policy in connection therewith, and
[a] duty, which may be altered by agreement to share both in profit and losses."
Going back to the instant case, it should be recalled that the automation Contract with Comelec was not executed by
the "consortium" MPC -- or by MPEI for and on behalf of MPC -- but by MPEI, period. The said Contract contains no
mention whatsoever of any consortium or members thereof. This fact alone seems to contradict all the suppositions
about a joint undertaking that would normally apply to a joint venture or consortium: that it is a commercial
enterprise involving a community of interest, a sharing of risks, profits and losses, and so on.
Now let us consider the four bilateral Agreements, starting with the Memorandum of Agreement between MPEI and
WeSolv Open Computing, Inc., dated March 5, 2003. The body of the MOA consists of just seven (7) short paragraphs
that would easily fit in one page! It reads as follows:
"1. The parties agree to cooperate in successfully implementing the Project in the substance and form as may
be most beneficial to both parties and other subcontractors involved in the Project.
"2. Mega Pacific shall be responsible for any contract negotiations and signing with the COMELEC and, subject
to the latters approval, agrees to give WeSolv an opportunity to be present at meetings with the COMELEC
concerning WeSolvs portion of the Project.

"3. WeSolv shall be jointly and severally liable with Mega Pacific only for the particular products and/or
services supplied by the former for the Project.
"4. Each party shall bear its own costs and expenses relative to this agreement unless otherwise agreed upon
by the parties.
"5. The parties undertake to do all acts and such other things incidental to, necessary or desirable or the
attainment of the objectives and purposes of this Agreement.
"6. In the event that the parties fail to agree on the terms and conditions of the supply of the products and
services including but not limited to the scope of the products and services to be supplied and payment terms,
WeSolv shall cease to be bound by its obligations stated in the aforementioned paragraphs.
"7. Any dispute arising from this Agreement shall be settled amicably by the parties whenever possible.
Should the parties be unable to do so, the parties hereby agree to settle their dispute through arbitration in
accordance with the existing laws of the Republic of the Philippines." (Underscoring supplied.)
Even shorter is the Memorandum of Agreement between MPEI and SK C&C Co. Ltd., dated March 9, 2003, the body of
which consists of only six (6) paragraphs, which we quote:
"1. All parties agree to cooperate in achieving the Consortiums objective of successfully implementing the
Project in the substance and form as may be most beneficial to the Consortium members and in accordance
w/ the demand of the RFP.
"2. Mega Pacific shall have full powers and authority to represent the Consortium with the Comelec, and to
enter and sign, for and in behalf of its members any and all agreement/s which maybe required in the
implementation of the Project.
"3. Each of the individual members of the Consortium shall be jointly and severally liable with the Lead Firm
for the particular products and/or services supplied by such individual member for the project, in accordance
with their respective undertaking or sphere of responsibility.
"4. Each party shall bear its own costs and expenses relative to this agreement unless otherwise agreed upon
by the parties.
"5. The parties undertake to do all acts and such other things incidental to, necessary or desirable for the
attainment of the objectives and purposes of this Agreement.
"6. Any dispute arising from this Agreement shall be settled amicably by the parties whenever possible.
Should the parties be unable to do so, the parties hereby agree to settle their dispute through arbitration in
accordance with the existing laws of the Republic of the Philippines." (Underscoring supplied.)
It will be noted that the two Agreements quoted above are very similar in wording. Neither of them contains any
specifics or details as to the exact nature and scope of the parties respective undertakings, performances and
deliverables under the Agreement with respect to the automation project. Likewise, the two Agreements are quite
bereft of pesos-and-centavos data as to the amount of investments each party contributes, its respective share in the
revenues and/or profit from the Contract with Comelec, and so forth -- all of which are normal for agreements of this
nature. Yet, according to public and private respondents, the participation of MPEI, WeSolv and SK C&C comprises
fully 90 percent of the entire undertaking with respect to the election automation project, which is worth about P1.3
billion.
As for Election.com and ePLDT, the separate "Teaming Agreements" they entered into with MPEI for the remaining 10
percent of the entire project undertaking are ironically much longer and more detailed than the MOAs discussed
earlier. Although specifically ascribing to them the role of subcontractor vis--vis MPEI as contractor, these
Agreements are, however, completely devoid of any pricing data or payment terms. Even the appended Schedules
supposedly containing prices of goods and services are shorn of any price data. Again, as mentioned earlier, based on
the terms of their particular Agreements, neither Election.com nor ePLDT -- with MPEI -- is jointly and severally liable
to Comelec.
It is difficult to imagine how these bare Agreements -- especially the first two -- could be implemented in practice;
and how a dispute between the parties or a claim by Comelec against them, for instance, could be resolved without

lengthy and debilitating litigations. Absent any clear-cut statement as to the exact nature and scope of the parties
respective undertakings, commitments, deliverables and covenants, one party or another can easily dodge its
obligation and deny or contest its liability under the Agreement; or claim that it is the other party that should have
delivered but failed to.
Likewise, in the absence of definite indicators as to the amount of investments to be contributed by each party,
disbursements for expenses, the parties respective shares in the profits and the like, it seems to the Court that this
situation could readily give rise to all kinds of misunderstandings and disagreements over money matters.
Under such a scenario, it will be extremely difficult for Comelec to enforce the supposed joint and several liabilities of
the members of the "consortium." The Court is not even mentioning the possibility of a situation arising from a failure
of WeSolv and MPEI to agree on the scope, the terms and the conditions for the supply of the products and services
under the Agreement. In that situation, by virtue of paragraph 6 of its MOA, WeSolv would perforce cease to be bound
by its obligations -- including its joint and solidary liability with MPEI under the MOA -- and could forthwith disengage
from the project. Effectively, WeSolv could at any time unilaterally exit from its MOA with MPEI by simply failing to
agree. Where would that outcome leave MPEI and Comelec?
To the Court, this strange and beguiling arrangement of MPEI with the other companies does not qualify them to be
treated as a consortium or joint venture, at least of the type that government agencies like the Comelec should be
dealing with. With more reason is it unable to agree to the proposal to evaluate the members of MPC on a collective
basis.
In any event, the MPC members claim to be a joint venture/consortium; and respondents have consistently been
arguing that the IRR for RA 6957, as amended, should be applied to the instant case in order to allow a collective
evaluation of consortium members. Surprisingly, considering these facts, respondents have not deemed it necessary
for MPC members to comply with Section 5.4 (a) (iii) of the IRR for RA 6957 as amended.
According to the aforementioned provision, if the project proponent is a joint venture or consortium, the members or
participants thereof are required to submit a sworn statement that, if awarded the contract, they shall bind
themselves to be jointly, severally and solidarily liable for the project proponents obligations thereunder. This
provision was supposed to mirror Section 5 of RA 6957, as amended, which states: "In all cases, a consortium that
participates in a bid must present proof that the members of the consortium have bound themselves jointly and
severally to assume responsibility for any project. The withdrawal of any member of the consortium prior to the
implementation of the project could be a ground for the cancellation of the contract." The Court has certainly not seen
any joint and several undertaking by the MPC members that even approximates the tenor of that which is described
above. We fail to see why respondents should invoke the IRR if it is for their benefit, but refuse to comply with it
otherwise.
B.
DOST Technical Tests Flunked by the Automated Counting Machines
Let us now move to the second subtopic, which deals with the substantive issue: the ACMs failure to pass the tests of
the Department of Science and Technology (DOST).
After respondent "consortium" and the other bidder, TIM, had submitted their respective bids on March 10, 2003, the
Comelecs BAC -- through its Technical Working Group (TWG) and the DOST -- evaluated their technical proposals.
Requirements that were highly technical in nature and that required the use of certain equipment in the evaluation
process were referred to the DOST for testing. The Department reported thus:

TEST RESULTS MATRIX47

Technical Evaluation of Automated Counting Machine
KEY REQUIREMENTS
QUESTIONS

MEGA-PACIFIC
CONSORTIUM

TOTAL
INFORMATION
MANAGEMENT

YES
1. Does the machine have an accuracy rating of
at least 99.995 percent

NO

YES

NO

At COLD environmental condition

At NORMAL environmental conditions

At HARSH environmental conditions

2. Accurately records and reports the date and
time of the start and end of counting of ballots
per precinct?

3. Prints election returns without any loss of

date during generation of such reports?

4. Uninterruptible back-up power system, that

will engage immediately to allow operation of
at least 10 minutes after outage, power surge
or abnormal electrical occurrences?

5. Machine reads two-sided ballots in one pass?

Note: This
particular
requirement
needs further
verification

6. Machine can detect previously counted

ballots and prevent previously counted ballots
from being counted more than once?

7. Stores results of counted votes by precinct

in external (removable) storage device?

Note: This
particular
requirement
needs further
verification

8. Data stored in external media is encrypted?

Note: This
particular
requirement
needs further
verification

9. Physical key or similar device allows, limits,

or restricts operation of the machine?

10. CPU speed is at least 400mHz?

11. Port to allow use of dot-matrix printers?

Note: This
particular
requirement
needs further
verification

12. Generates printouts of the election returns

in a format specified by the COMELEC?
Generates printouts

In format specified by COMELEC

13. Prints election returns without any loss of
data during generation of such report?

Hard copy

Soft copy

Note: This
particular
requirement
needs further
verification

15. Does the City/Municipal Canvassing System

consolidate results from all precincts within it
using the encrypted soft copy of the data
generated by the counting machine and stored
on the removable data storage device?

Note: This
particular
requirement
needs further
verification

14. Generates an audit trail of the counting

machine, both hard copy and soft copy?

16. Does the City/Municipal Canvassing System

consolidate results from all precincts within it
using the encrypted soft copy of the data
generated by the counting machine and
transmitted through an electronic transmission
media?

Note: This
particular
requirement
needs further
verification

Note: This
particular
requirement
needs further
verification

17. Does the system output a Zero

City/Municipal Canvass Report, which is printed
on election day prior to the conduct of the
actual canvass operation, that shows that all
totals for all the votes for all the candidates
and other information, are indeed zero or null?

Note: This
particular
requirement
needs further
verification

18. Does the system consolidate results from

all precincts in the city/municipality using the
data storage device coming from the counting
machine?

Note: This
particular
requirement
needs further
verification

19. Is the machine 100% accurate?

Note: This
particular
requirement
needs further
verification

20. Is the Program able to detect previously

downloaded precinct results and prevent these
from being inputted again into the System?

Note: This
particular
requirement
needs further
verification

21. The System is able to print the specified

reports and the audit trail without any loss of
data during generation of the above-mentioned
reports?
Prints specified reports

Audit Trail

22. Can the result of the city/municipal

consolidation be stored in a data storage
device?

Note: This
particular
requirement
needs further
verification

23. Does the system consolidate results from

all precincts in the provincial/district/ national
using the data storage device from different
levels of consolidation?

Note: This
particular
requirement
needs further
verification

24. Is the system 100% accurate?

Note: This
particular
requirement
needs further
verification

25. Is the Program able to detect previously

downloaded precinct results and prevent these
from being inputted again into the System?

Note: This
particular
requirement
needs further
verification

26. The System is able to print the specified

reports and the audit trail without any loss of
data during generation of the abovementioned
reports?
Prints specified reports

Audit Trail

27. Can the results of the

provincial/district/national consolidation be
stored in a data storage device?

Note: This
particular
requirement
needs further
verification

Note: This
particular
requirement
needs further
verification

According to respondents, it was only after the TWG and the DOST had conducted their separate tests and submitted
their respective reports that the BAC, on the basis of these reports formulated its comments/recommendations on the
bids of the consortium and TIM.
The BAC, in its Report dated April 21, 2003, recommended that the Phase II project involving the acquisition of
automated counting machines be awarded to MPEI. It said:
"After incisive analysis of the technical reports of the DOST and the Technical Working Group for Phase II
Automated Counting Machine, the BAC considers adaptability to advances in modern technology to ensure an
effective and efficient method, as well as the security and integrity of the system.

"The results of the evaluation conducted by the TWG and that of the DOST (14 April 2003 report), would show
the apparent advantage of Mega-Pacific over the other competitor, TIM.
"The BAC further noted that both Mega-Pacific and TIM obtained some failed marks in the technical
evaluation. In general, the failed marks of Total Information Management as enumerated above affect the
counting machine itself which are material in nature, constituting non-compliance to the RFP. On the other
hand, the failed marks of Mega-Pacific are mere formalities on certain documentary requirements which the
BAC may waive as clearly indicated in the Invitation to Bid.
"In the DOST test, TIM obtained 12 failed marks and mostly attributed to the counting machine itself as stated
earlier. These are requirements of the RFP and therefore the BAC cannot disregard the same.
"Mega-Pacific failed in 8 items however these are mostly on the software which can be corrected by
reprogramming the software and therefore can be readily corrected.
"The BAC verbally inquired from DOST on the status of the retest of the counting machines of the TIM and was
informed that the report will be forthcoming after the holy week. The BAC was informed that the retest is on a
different parameters theyre being two different machines being tested. One purposely to test if previously
read ballots will be read again and the other for the other features such as two sided ballots.
"The said machine and the software therefore may not be considered the same machine and program as
submitted in the Technical proposal and therefore may be considered an enhancement of the original proposal.
"Advance information relayed to the BAC as of 1:40 PM of 15 April 2003 by Executive Director Ronaldo T.
Viloria of DOST is that the result of the test in the two counting machines of TIM contains substantial errors
that may lead to the failure of these machines based on the specific items of the RFP that DOST has to certify.
OPENING OF FINANCIAL BIDS
"The BAC on 15 April 2003, after notifying the concerned bidders opened the financial bids in their presence
and the results were as follows:
Mega-Pacific:
Option 1 Outright purchase: Bid Price if Php1,248,949,088.00
Option 2 Lease option:
70% Down payment of cost of hardware or Php642,755,757.07
Remainder payable over 50 months or a total of Php642,755,757.07
Discount rate of 15% p.a. or 1.2532% per month.
Total Number of Automated Counting Machine 1,769 ACMs (Nationwide)
TIM:
Total Bid Price Php1,297,860,560.00
Total Number of Automated Counting Machine 2,272 ACMs (Mindanao and NCR only)
"Premises considered, it appears that the bid of Mega Pacific is the lowest calculated responsive bid, and
therefore, the Bids and Awards Committee (BAC) recommends that the Phase II project re Automated
Counting Machine be awarded to Mega Pacific eSolutions, Inc." 48
The BAC, however, also stated on page 4 of its Report: "Based on the 14 April 2003 report (Table 6) of the DOST, it
appears that both Mega-Pacific and TIM (Total Information Management Corporation) failed to meet some of the
requirements. Below is a comparative presentation of the requirements wherein Mega-Pacific or TIM or both of them

failed: x x x." What followed was a list of "key requirements," referring to technical requirements, and an indication of
which of the two bidders had failed to meet them.
Failure to Meet the Required Accuracy Rating
The first of the key requirements was that the counting machines were to have an accuracy rating of at least
99.9995 percent. The BAC Report indicates that both Mega Pacific and TIM failed to meet this standard.
The key requirement of accuracy rating happens to be part and parcel of the Comelecs Request for Proposal (RFP).
The RFP, on page 26, even states that the ballot counting machines and ballot counting software "must have an
accuracy rating of 99.9995% (not merely 99.995%) or better as certified by a reliable independent testing agency."
When questioned on this matter during the Oral Argument, Commissioner Borra tried to wash his hands by claiming
that the required accuracy rating of 99.9995 percent had been set by a private sector group in tandem with Comelec.
He added that the Commission had merely adopted the accuracy rating as part of the groups recommended bid
requirements, which it had not bothered to amend even after being advised by DOST that such standard was
unachievable. This excuse, however, does not in any way lessen Comelecs responsibility to adhere to its own
published bidding rules, as well as to see to it that the consortium indeed meets the accuracy standard. Whichever
accuracy rating is the right standard -- whether 99.995 or 99.9995 percent -- the fact remains that the machines of
the so-called "consortium" failed to even reach the lesser of the two. On this basis alone, it ought to have been
disqualified and its bid rejected outright.
At this point, the Court stresses that the essence of public bidding is violated by the practice of requiring very high
standards or unrealistic specifications that cannot be met -- like the 99.9995 percent accuracy rating in this case -only to water them down after the bid has been award. Such scheme, which discourages the entry of prospective bona
fide bidders, is in fact a sure indication of fraud in the bidding, designed to eliminate fair competition. Certainly, if no
bidder meets the mandatory requirements, standards or specifications, then no award should be made and a failed
bidding declared.
Failure of Software to Detect Previously Downloaded Data
Furthermore, on page 6 of the BAC Report, it appears that the "consortium" as well as TIM failed to meet another key
requirement -- for the counting machines software program to be able to detect previously downloaded precinct
results and to prevent these from being entered again into the counting machine. This same deficiency on
the part of both bidders reappears on page 7 of the BAC Report, as a result of the recurrence of their failure to meet
the said key requirement.
That the ability to detect previously downloaded data at different canvassing or consolidation levels is deemed of
utmost importance can be seen from the fact that it is repeated three times in the RFP. On page 30 thereof, we find
the requirement that the city/municipal canvassing system software must be able to detect previously downloaded
precinct results and prevent these from being "inputted" again into the system. Again, on page 32 of the RFP, we read
that the provincial/district canvassing system software must be able to detect previously downloaded city/municipal
results and prevent these from being "inputted" again into the system. And once more, on page 35 of the RFP, we find
the requirement that the national canvassing system software must be able to detect previously downloaded
provincial/district results and prevent these from being "inputted" again into the system.
Once again, though, Comelec chose to ignore this crucial deficiency, which should have been a cause for the gravest
concern. Come May 2004, unscrupulous persons may take advantage of and exploit such deficiency by repeatedly
downloading and feeding into the computers results favorable to a particular candidate or candidates. We are thus
confronted with the grim prospect of election fraud on a massive scale by means of just a few key
strokes. The marvels and woes of the electronic age!
Inability to Print the Audit Trail
But that grim prospect is not all. The BAC Report, on pages 6 and 7, indicate that the ACMs of both bidders were
unable to print the audit trail without any loss of data. In the case of MPC, the audit trail system was "not yet
incorporated" into its ACMs.
This particular deficiency is significant, not only to this bidding but to the cause of free and credible elections. The
purpose of requiring audit trails is to enable Comelec to trace and verify the identities of the ACM operators
responsible for data entry and downloading, as well as the times when the various data were downloaded into the
canvassing system, in order to forestall fraud and to identify the perpetrators.

Thus, the RFP on page 27 states that the ballot counting machines and ballot counting software must print an audit
trail of all machine operations for documentation and verification purposes. Furthermore, the audit trail must be stored
on the internal storage device and be available on demand for future printing and verifying. On pages 30-31, the RFP
also requires that the city/municipal canvassing system software be able to print an audit trail of the canvassing
operations, including therein such data as the date and time the canvassing program was started, the log-in of the
authorized users (the identity of the machine operators), the date and time the canvass data were downloaded into
the canvassing system, and so on and so forth. On page 33 of the RFP, we find the same audit trail requirement with
respect to the provincial/district canvassing system software; and again on pages 35-36 thereof, the same audit trail
requirement with respect to the national canvassing system software.
That this requirement for printing audit trails is not to be lightly brushed aside by the BAC or Comelec itself as a mere
formality or technicality can be readily gleaned from the provisions of Section 7 of RA 8436, which authorizes the
Commission to use an automated system for elections.
The said provision which respondents have quoted several times, provides that ACMs are to possess certain features
divided into two classes: those that the statute itself considers mandatory and other features or capabilities that the
law deems optional. Among those considered mandatory are "provisions for audit trails"! Section 7 reads as follows:
"The System shall contain the following features: (a) use of appropriate ballots; (b) stand-alone machine which can
count votes and an automated system which can consolidate the results immediately; (c) with provisions for audit
trails; (d) minimum human intervention; and (e) adequate safeguard/security measures." (Italics and emphases
supplied.)
In brief, respondents cannot deny that the provision requiring audit trails is indeed mandatory, considering the
wording of Section 7 of RA 8436. Neither can Respondent Comelec deny that it has relied on the BAC Report, which
indicates that the machines or the software was deficient in that respect. And yet, the Commission simply disregarded
this shortcoming and awarded the Contract to private respondent, thereby violating the very law it was supposed to
implement.
C.
Inadequacy of Post Facto Remedial Measures
Respondents argue that the deficiencies relating to the detection of previously downloaded data, as well as provisions
for audit trails, are mere shortcomings or minor deficiencies in software or programming, which can be rectified.
Perhaps Comelec simply relied upon the BAC Report, which states on page 8 thereof that "Mega Pacific failed in 8
items[;] however these are mostly on the software which can be corrected by re-programming x x x and therefore
can be readily corrected."
The undersigned ponentes questions, some of which were addressed to Commissioner Borra during the Oral
Argument, remain unanswered to this day. First of all, who made the determination that the eight "fail" marks of Mega
Pacific were on account of the software -- was it DOST or TWG? How can we be sure these failures were not the
results of machine defects? How was it determined that the software could actually be re-programmed and thereby
rectified? Did a qualified technical expert read and analyze the source code49 for the programs and conclude that these
could be saved and remedied? (Such determination cannot be done by any other means save by the examination and
analysis of the source code.)
Who was this qualified technical expert? When did he carry out the study? Did he prepare a written report on his
findings? Or did the Comelec just make a wild guess? It does not follow that all defects in software programs can be
rectified, and the programs saved. In the information technology sector, it is common knowledge that there are many
badly written programs, with significant programming errors written into them; hence it does not make economic
sense to try to correct the programs; instead, programmers simply abandon them and just start from scratch. Theres
no telling if any of these programs is unrectifiable, unless a qualified programmer reads the source code.
And if indeed a qualified expert reviewed the source code, did he also determine how much work would be needed to
rectify the programs? And how much time and money would be spent for that effort? Who would carry out the work?
After the rectification process, who would ascertain and how would it be ascertained that the programs have indeed
been properly rectified, and that they would work properly thereafter? And of course, the most important question to
ask: could the rectification be done in time for the elections in 2004?
Clearly, none of the respondents bothered to think the matter through. Comelec simply took the word of the BAC as
gospel truth, without even bothering to inquire from DOST whether it was true that the deficiencies noted could

possibly be remedied by re-programming the software. Apparently, Comelec did not care about the software, but
focused only on purchasing the machines.
What really adds to the Courts dismay is the admission made by Commissioner Borra during the Oral Argument that
the software currently being used by Comelec was merely the "demo" version, inasmuch as the final version that
would actually be used in the elections was still being developed and had not yet been finalized.
It is not clear when the final version of the software would be ready for testing and deployment. It seems to the Court
that Comelec is just keeping its fingers crossed and hoping the final product would work. Is there a "Plan B" in case it
does not? Who knows? But all these software programs are part and parcel of the bidding and the Contract awarded
to the Consortium. Why is it that the machines are already being brought in and paid for, when there is as yet no way
of knowing if the final version of the software would be able to run them properly, as well as canvass and consolidate
the results in the manner required?
The counting machines, as well as the canvassing system, will never work properly without the correct software
programs. There is an old adage that is still valid to this day: "Garbage in, garbage out." No matter how powerful,
advanced and sophisticated the computers and the servers are, if the software being utilized is defective or has been
compromised, the results will be no better than garbage. And to think that what is at stake here is the 2004 national
elections -- the very basis of our democratic life.
Correction of Defects?
To their Memorandum, public respondents proudly appended 19 Certifications issued by DOST declaring that some
285 counting machines had been tested and had passed the acceptance testing conducted by the Department on
October 8-18, 2003. Among those tested were some machines that had failed previous tests, but had undergone
adjustments and thus passed re-testing.
Unfortunately, the Certifications from DOST fail to divulge in what manner and by what standards or criteria the
condition, performance and/or readiness of the machines were re-evaluated and re-appraised and thereafter given the
passing mark. Apart from that fact, the remedial efforts of respondents were, not surprisingly, apparently focused
again on the machines -- the hardware. Nothing was said or done about the software -- the deficiencies as to
detection and prevention of downloading and entering previously downloaded data, as well as the capability to print
an audit trail. No matter how many times the machines were tested and re-tested, if nothing was done about the
programming defects and deficiencies, the same danger of massive electoral fraud remains. As anyone who has a
modicum of knowledge of computers would say, "Thats elementary!"
And only last December 5, 2003, an Inq7.net news report quoted the Comelec chair as saying that the new automated
poll system would be used nationwide in May 2004, even as the software for the system remained unfinished. It also
reported that a certain Titus Manuel of the Philippine Computer Society, which was helping Comelec test the hardware
and software, said that the software for the counting still had to be submitted on December 15, while the software for
the canvassing was due in early January.
Even as Comelec continues making payments for the ACMs, we keep asking ourselves: who is going to ensure that the
software would be tested and would work properly?
At any rate, the re-testing of the machines and/or the 100 percent testing of all machines (testing of every single
unit) would not serve to eradicate the grave abuse of discretion already committed by Comelec when it awarded the
Contract on April 15, 2003, despite the obvious and admitted flaws in the bidding process, the failure of the "winning
bidder" to qualify, and the inability of the ACMs and the intended software to meet the bid requirements and rules.
Comelecs Latest "Assurances" Are Unpersuasive
Even the latest pleadings filed by Comelec do not serve to allay our apprehensions. They merely affirm and compound
the serious violations of law and gravely abusive acts it has committed. Let us examine them.
The Resolution issued by this Court on December 9, 2003 required respondents to inform it as to the number of ACMs
delivered and paid for, as well as the total payment made to date for the purchase thereof. They were likewise
instructed to submit a certification from the DOST attesting to the number of ACMs tested, the number found to be
defective; and "whether the reprogrammed software has been tested and found to have complied with the
requirements under Republic Act No. 8436."50

In its "Partial Compliance and Manifestation" dated December 29, 2003, Comelec informed the Court that 1,991 ACMs
had already been delivered to the Commission as of that date. It further certified that it had already paid the supplier
the sum of P849,167,697.41, which corresponded to 1,973 ACM units that had passed the acceptance testing
procedures conducted by the MIRDC-DOST51 and which had therefore been accepted by the poll body.
In the same submission, for the very first time, Comelec also disclosed to the Court the following:
"The Automated Counting and Canvassing Project involves not only the manufacturing of the ACM hardware
but also the development of three (3) types of software, which are intended for use in the following:
1. Evaluation of Technical Bids
2. Testing and Acceptance Procedures
3. Election Day Use."
Purchase of the First Type of Software Without Evaluation
In other words, the first type of software was to be developed solely for the purpose of enabling the evaluation of the
bidders technical bid. Comelec explained thus: "In addition to the presentation of the ACM hardware, the bidders
were required to develop a base software program that will enable the ACM to function properly. Since the software
program utilized during the evaluation of bids is not the actual software program to be employed on election day,
there being two (2) other types of software program that will still have to be developed and thoroughly tested prior to
actual election day use, defects in the base software that can be readily corrected by reprogramming are considered
minor in nature, and may therefore be waived."
In short, Comelec claims that it evaluated the bids and made the decision to award the Contract to the "winning"
bidder partly on the basis of the operation of the ACMs running a "base" software. That software was therefore
nothing but a sample or "demo" software, which would not be the actual one that would be used on election day.
Keeping in mind that the Contract involves the acquisition of not just the ACMs or the hardware, but also the software
that would run them, it is now even clearer that the Contract was awarded without Comelec having seen, much less
evaluated, the final product -- the software that would finally be utilized come election day. (Not even the "near-final"
product, for that matter).
What then was the point of conducting the bidding, when the software that was the subject of the Contract was still to
be created and could conceivably undergo innumerable changes before being considered as being in final form? And
that is not all!
No Explanation for Lapses in the Second Type of Software
The second phase, allegedly involving the second type of software, is simply denominated "Testing and Acceptance
Procedures." As best as we can construe, Comelec is claiming that this second type of software is also to be
developed and delivered by the supplier in connection with the "testing and acceptance" phase of the acquisition
process. The previous pleadings, though -- including the DOST reports submitted to this Court -- have not heretofore
mentioned any statement, allegation or representation to the effect that a particular set of software was to be
developed and/or delivered by the supplier in connection with the testing and acceptance of delivered ACMs.
What the records do show is that the imported ACMs were subjected to the testing and acceptance process conducted
by the DOST. Since the initial batch delivered included a high percentage of machines that had failed the tests,
Comelec asked the DOST to conduct a 100 percent testing; that is, to test every single one of the ACMs delivered.
Among the machines tested on October 8 to 18, 2003, were some units that had failed previous tests but had
subsequently been re-tested and had passed. To repeat, however, until now, there has never been any mention of a
second set or type of software pertaining to the testing and acceptance process.
In any event, apart from making that misplaced and uncorroborated claim, Comelec in the same submission also
professes (in response to the concerns expressed by this Court) that the reprogrammed software has been
tested and found to have complied with the requirements of RA 8436. It reasoned thus: "Since the software
program is an inherent element in the automated counting system, the certification issued by the MIRDC-DOST that
one thousand nine hundred seventy-three (1,973) units passed the acceptance test procedures is an official
recognition by the MIRDC-DOST that the software component of the automated election system, which has been
reprogrammed to comply with the provisions of Republic Act No. 8436 as prescribed in the Ad Hoc Technical
Evaluation Committees ACM Testing and Acceptance Manual, has passed the MIRDC-DOST tests."

The facts do not support this sweeping statement of Comelec. A scrutiny of the MIRDC-DOST letter dated December
15, 2003,52 which it relied upon, does not justify its grand conclusion. For claritys sake, we quote in full the lettercertification, as follows:
"15 December 2003
"HON. RESURRECCION Z. BORRA
Commissioner-in-Charge
Phase II, Modernization Project
Commission on Elections
Intramuros, Manila
Attention: Atty. Jose M. Tolentino, Jr.
Project Director
"Dear Commissioner Borra:
"We are pleased to submit 11 DOST Test Certifications representing 11 lots and covering 158 units of
automated counting machines (ACMs) that we have tested from 02-12 December 2003.
"To date, we have tested all the 1,991 units of ACMs, broken down as follow: (sic)
1st batch - 30 units 4th batch - 438 units
2nd batch - 288 units 5th batch - 438 units
3rd batch - 414 units 6th batch - 383 units
"It should be noted that a total of 18 units have failed the test. Out of these 18 units, only one (1) unit has
failed the retest.
"Thank you and we hope you will find everything in order.
"Very truly yours,
"ROLANDO T. VILORIA, CESO III
Executive Director cum
Chairman, DOST-Technical Evaluation Committee"
Even a cursory glance at the foregoing letter shows that it is completely bereft of anything that would remotely
support Comelecs contention that the "software component of the automated election system x x x has been
reprogrammed to comply with" RA 8436, and "has passed the MIRDC-DOST tests." There is no mention at all of any
software reprogramming. If the MIRDC-DOST had indeed undertaken the supposed reprogramming and the process
turned out to be successful, that agency would have proudly trumpeted its singular achievement.
How Comelec came to believe that such reprogramming had been undertaken is unclear. In any event, the
Commission is not forthright and candid with the factual details. If reprogramming has been done, who performed it
and when? What exactly did the process involve? How can we be assured that it was properly performed? Since the
facts attendant to the alleged reprogramming are still shrouded in mystery, the Court cannot give any weight to
Comelecs bare allegations.

The fact that a total of 1,973 of the machines has ultimately passed the MIRDC-DOST tests does not by itself serve as
an endorsement of the soundness of the software program, much less as a proof that it has been reprogrammed. In
the first place, nothing on record shows that the tests and re-tests conducted on the machines were intended to
address the serious deficiencies noted earlier. As a matter of fact, the MIRDC-DOST letter does not even indicate what
kinds of tests or re-tests were conducted, their exact nature and scope, and the specific objectives thereof. 53 The
absence of relevant supporting documents, combined with the utter vagueness of the letter, certainly fails to inspire
belief or to justify the expansive confidence displayed by Comelec. In any event, it goes without saying that remedial
measures such as the alleged reprogramming cannot in any way mitigate the grave abuse of discretion already
committed as early as April 15, 2003.
Rationale of Public Bidding Negated
by the Third Type of Software
Respondent Comelec tries to assuage this Courts anxiety in these words: "The reprogrammed software that has
already passed the requirements of Republic Act No. 8436 during the MIRDC-DOST testing and acceptance procedures
will require further customization since the following additional elements, among other things, will have to be
considered before the final software can be used on election day: 1. Final Certified List of Candidates x x x 2. Project
of Precincts x x x 3. Official Ballot Design and Security Features x x x 4. Encryption, digital certificates and digital
signatures x x x. The certified list of candidates for national elective positions will be finalized on or before 23 January
2004 while the final list of projects of precincts will be prepared also on the same date. Once all the above elements
are incorporated in the software program, the Test Certification Group created by the Ad Hoc Technical Evaluation
Committee will conduct meticulous testing of the final software before the same can be used on election day. In
addition to the testing to be conducted by said Test Certification Group, the Comelec will conduct mock elections in
selected areas nationwide not only for purposes of public information but also to further test the final election day
program. Public respondent Comelec, therefore, requests that it be given up to 16 February 2004 to comply with this
requirement."
The foregoing passage shows the imprudent approach adopted by Comelec in the bidding and acquisition process. The
Commission says that before the software can be utilized on election day, it will require "customization" through
addition of data -- like the list of candidates, project of precincts, and so on. And inasmuch as such data will become
available only in January 2004 anyway, there is therefore no perceived need on Comelecs part to rush the supplier
into producing the final (or near-final) version of the software before that time. In any case, Comelec argues that the
software needed for the electoral exercise can be continuously developed, tested, adjusted and perfected, practically
all the way up to election day, at the same time that the Commission is undertaking all the other distinct and diverse
activities pertinent to the elections.
Given such a frame of mind, it is no wonder that Comelec paid little attention to the counting and canvassing software
during the entire bidding process, which took place in February-March 2003. Granted that the software was defective,
could not detect and prevent the re-use of previously downloaded data or produce the audit trail -- aside from its
other shortcomings -- nevertheless, all those deficiencies could still be corrected down the road. At any rate, the
software used for bidding purposes would not be the same one that will be used on election day, so why pay any
attention to its defects? Or to the Comelecs own bidding rules for that matter?
Clearly, such jumbled ratiocinations completely negate the rationale underlying the bidding process mandated by law.
At the very outset, the Court has explained that Comelec flagrantly violated the public policy on public biddings (1) by
allowing MPC/MPEI to participate in the bidding even though it was not qualified to do so; and (2) by eventually
awarding the Contract to MPC/MPEI. Now, with the latest explanation given by Comelec, it is clear that the
Commission further desecrated the law on public bidding by permitting the winning bidder to change and alter the
subject of the Contract (the software), in effect allowing a substantive amendment without public bidding.
This stance is contrary to settled jurisprudence requiring the strict application of pertinent rules, regulations and
guidelines for public bidding for the purpose of placing each bidder, actual or potential, on the same footing. The
essence of public bidding is, after all, an opportunity for fair competition, and a fair basis for the precise comparison of
bids. In common parlance, public bidding aims to "level the playing field." That means each bidder must bid under the
same conditions; and be subject to the same guidelines, requirements and limitations, so that the best offer or lowest
bid may be determined, all other things being equal.
Thus, it is contrary to the very concept of public bidding to permit a variance between the conditions under which bids
are invited and those under which proposals are submitted and approved; or, as in this case, the conditions under
which the bid is won and those under which the awarded Contract will be complied with. The substantive amendment
of the contract bidded out, without any public bidding -- after the bidding process had been concluded -- is violative of

the public policy on public biddings, as well as the spirit and intent of RA 8436. The whole point in going through the
public bidding exercise was completely lost. The very rationale of public bidding was totally subverted by the
Commission.
From another perspective, the Comelec approach also fails to make sense. Granted that, before election day, the
software would still have to be customized to each precinct, municipality, city, district, and so on, there still was
nothing at all to prevent Comelec from requiring prospective suppliers/bidders to produce, at the very start of the
bidding process, the "next-to-final" versions of the software (the best software the suppliers had) -- pre-tested and
ready to be customized to the final list of candidates and project of precincts, among others, and ready to be deployed
thereafter. The satisfaction of such requirement would probably have provided far better bases for evaluation and
selection, as between suppliers, than the so-called demo software.Respondents contend that the bidding suppliers
counting machines were previously used in at least one political exercise with no less than 20 million voters. If so, it
stands to reason that the software used in that past electoral exercise would probably still be available and, in all
likelihood, could have been adopted for use in this instance. Paying for machines and software of that category
(already tried and proven in actual elections and ready to be adopted for use) would definitely make more sense than
paying the same hundreds of millions of pesos for demo software and empty promises of usable programs in the
future.
But there is still another gut-level reason why the approach taken by Comelec is reprehensible. It rides on the perilous
assumption that nothing would go wrong; and that, come election day, the Commission and the supplier would have
developed, adjusted and "re-programmed" the software to the point where the automated system could function as
envisioned. But what if such optimistic projection does not materialize? What if, despite all their herculean efforts, the
software now being hurriedly developed and tested for the automated system performs dismally and inaccurately or,
worse, is hacked and/or manipulated?54 What then will we do with all the machines and defective software already
paid for in the amount of P849 million of our tax money? Even more important, what will happen to our country in
case of failure of the automation?
The Court cannot grant the plea of Comelec that it be given until February 16, 2004 to be able to submit a
"certification relative to the additional elements of the software that will be customized," because for us to do so
would unnecessarily delay the resolution of this case and would just give the poll body an unwarranted excuse to
postpone the 2004 elections. On the other hand, because such certification will not cure the gravely abusive actions
complained of by petitioners, it will be utterly useless.
Is this Court being overly pessimistic and perhaps even engaging in speculation? Hardly. Rather, the Court holds that
Comelec should not have gambled on the unrealistic optimism that the suppliers software development efforts would
turn out well. The Commission should have adopted a much more prudent and judicious approach to ensure the
delivery of tried and tested software, and readied alternative courses of action in case of failure. Considering that the
nations future is at stake here, it should have done no less.
Epilogue
Once again, the Court finds itself at the crossroads of our nations history. At stake in this controversy is not just the
business of a computer supplier, or a questionable proclamation by Comelec of one or more public officials. Neither is
it about whether this country should switch from the manual to the automated system of counting and canvassing
votes. At its core is the ability and capacity of the Commission on Elections to perform properly, legally and prudently
its legal mandate to implement the transition from manual to automated elections.
Unfortunately, Comelec has failed to measure up to this historic task. As stated at the start of this Decision, Comelec
has not merely gravely abused its discretion in awarding the Contract for the automation of the counting and
canvassing of the ballots. It has also put at grave risk the holding of credible and peaceful elections by shoddily
accepting electronic hardware and software that admittedly failed to pass legally mandated technical requirements.
Inadequate as they are, the remedies it proffers post facto do not cure the grave abuse of discretion it already
committed (1) on April 15, 2003, when it illegally made the award; and (2) "sometime" in May 2003 when it executed
the Contract for the purchase of defective machines and non-existent software from a non-eligible bidder.
For these reasons, the Court finds it totally unacceptable and unconscionable to place its imprimatur on this void and
illegal transaction that seriously endangers the breakdown of our electoral system. For this Court to cop-out and to
close its eyes to these illegal transactions, while convenient, would be to abandon its constitutional duty of
safeguarding public interest.
As a necessary consequence of such nullity and illegality, the purchase of the machines and all appurtenances thereto
including the still-to-be-produced (or in Comelecs words, to be "reprogrammed") software, as well as all the
payments made therefor, have no basis whatsoever in law. The public funds expended pursuant to the void Resolution

and Contract must therefore be recovered from the payees and/or from the persons who made possible the illegal
disbursements, without prejudice to possible criminal prosecutions against them.
Furthermore, Comelec and its officials concerned must bear full responsibility for the failed bidding and award, and
held accountable for the electoral mess wrought by their grave abuse of discretion in the performance of their
functions. The State, of course, is not bound by the mistakes and illegalities of its agents and servants.
True, our country needs to transcend our slow, manual and archaic electoral process. But before it can do so, it must
first have a diligent and competent electoral agency that can properly and prudently implement a well-conceived
automated election system.
At bottom, before the country can hope to have a speedy and fraud-free automated election, it must first be able to
procure the proper computerized hardware and software legally, based on a transparent and valid system of public
bidding. As in any democratic system, the ultimate goal of automating elections must be achieved by a legal, valid and
above-board process of acquiring the necessary tools and skills therefor. Though the Philippines needs an automated
electoral process, it cannot accept just any system shoved into its bosom through improper and illegal methods. As
the saying goes, the end never justifies the means. Penumbral contracting will not produce enlightened results.
WHEREFORE, the Petition is GRANTED. The Court hereby declares NULL and VOID Comelec Resolution No. 6074
awarding the contract for Phase II of the AES to Mega Pacific Consortium (MPC). Also declared null and void is the
subject Contract executed between Comelec and Mega Pacific eSolutions (MPEI). 55 Comelec is further ORDERED to
refrain from implementing any other contract or agreement entered into with regard to this project.
Let a copy of this Decision be furnished the Office of the Ombudsman which shall determine the criminal liability, if
any, of the public officials (and conspiring private individuals, if any) involved in the subject Resolution and Contract.
Let the Office of the Solicitor General also take measures to protect the government and vindicate public interest from
the ill effects of the illegal disbursements of public funds made by reason of the void Resolution and Contract.
SO ORDERED.
Carpio, Austria-Martinez, Carpio-Morales, and Callejo, Sr., JJ., concur.
Davide, C.J., Jr., Vitug, Ynares-Santiago, JJ., see separate opinion.
Puno, J., concur, and also joins the opinion of J. Ynares-Santiago.
Quisumbing, J., in the result.
Sandoval-Gutierrez, J., see concurring opinion.
Corona, Azcuna, JJ., joins the dissent of J. Tinga.
Tinga, J., pls. see dissenting opinion.
Footnotes
1

Republic v. Cocofed, 372 SCRA 462, 493, December 14, 2001.

Taada v. Angara, 272 SCRA 18, 79, May 2, 1997.

Francisco v. House of Representatives, GR No. 160261 and consolidated cases, November 10, 2003, per Morales, J.

Rollo, Vol. I, pp. 3-48. While petitioners labeled their pleading as one for prohibition and mandamus, its allegations qualify it also as one for
certiorari.
4

An act authorizing the Commission on Elections to conduct a nationwide demonstration of a computerized election system and pilot-test it in
the March 1996 elections in the Autonomous Region in Muslim Mindanao (ARMM) and for other purposes.
5

An act authorizing the Commission on Elections to use an automated election system in the May 11, 1998 national or local elections and in
subsequent national and local electoral exercises, providing funds therefor and for other purposes.
6

Section 6 of RA 8436 provides "[i]f in spite of its diligent efforts to implement this mandate in the exercise of this authority, it becomes
evident by February 9, 1998 that the Commission cannot fully implement the automated election system for national positions in the May 11,
1998 elections, the elections for both national and local positions shall be done manually except in the Autonomous Region in Muslim
Mindanao (ARMM) where the automated election system shall be used for all positions."
7

Loong v. Comelec, 365 Phil. 386, April 14, 1999; see also Panganiban, Leadership by Example, 1999 ed., pp. 201-249.

Annex "7" of the Comment of Private Respondents MPC and MPEI, rollo, Vol. II, p. 638.

10

Annex "8" of the Comment of Private Respondents MPC and MPEI, rollo, Vol. II, pp. 641-642.

11

Annex "G" of the Petition, Request for Proposal, p. 12; rollo, Vol. I, p. 71.

12

Id., pp. 21-23 & 80-82.

13

According to Public Respondent Comelecs Memorandum prepared by the OSG, p. 8; rollo, Vol. IV, p. 2413.

14

Photocopy appended as Annex "B" of the Petition; rollo, Vol. I, pp. 52-53.

15

Photocopy appended as Annex "C" of the Petition; rollo, Vol. I, pp. 54-55.

The case was deemed submitted for decision on November 5, 2003, upon this Courts receipt of Private Respondent MPC/MPEIs
Memorandum, which was signed by Attys. Alfredo V. Lazaro Jr., Juanito I. Velasco Jr. and Ma. Concepcion V. Murillo of the Lazaro Law Firm. On
October 27, 2003, the Court received petitioners Memorandum, which was signed by Atty. Alvin Jose B. Felizardo of Pastelero Law Office, and
Public Respondent Comelecs Memorandum, signed by Comelec Comm. Florentino A. Tuason Jr. Apart from these, the Office of the Solicitor
General (OSG) filed another Memorandum on behalf of Comelec, also on October 27, 2003, signed by Asst. Sol. Gen. Carlos N. Ortega, Asst.
Sol. Gen. Renan E. Ramos, Sol. Jane E. Yu and Asso. Sol. Catherine Joy R. Mallari, with a note that Sol. Gen. Alfredo L. Benipayo "inhibited
himself." The writing of the Decision in this case was initially raffled to Justice Dante O. Tinga. However, during the Courts deliberations, the
present ponentes then "Dissenting Opinion" to the draft report of Justice Tinga was upheld by the majority. Hence, the erstwhile Dissent was
rewritten into this full ponencia.
16

Page 11; rollo, Vol. IV, p. 2390. During the Oral Argument on October 7, 2003, the Court limited the issues to the following: (1) locus standi
of petitioners; (2) prematurity of the Petition because of non-exhaustion of administrative remedies for failure to avail of protest mechanisms;
and (3) validity of the award and the Contract being challenged in the Petition.
17

18

Chavez v. Presidential Commission on Good Government, 360 Phil. 133, December 9, 1998, per Panganiban, J.

19

Kilosbayan, Inc. v. Morato, 320 Phil. 171, November 16, 1995, per Mendoza, J.

20

Tatad v. Secretary of the Department of Energy, 346 Phil. 321, November 5, 1997, per Puno, J.

21

Del Mar v. Philippine Amusement and Gaming Corporation, 346 SCRA 485, November 29, 2000, per Puno, J.

22

Kilosbayan, Inc. v. Morato, supra.

23

Dumlao v. Comelec, 95 SCRA 392, January 22, 1980, per Melencio-Herrera, J.

24

Philconsa v. Mathay, 124 Phil. 890, October 4, 1966, per Reyes J.B.L., J.

25

Respondent Comelecs Memorandum, pp. 50-51.

26

The law obliges no one to perform the impossible.

27

See private respondents Memorandum, p. 60.

28

Photocopy appended as Annex "B" of the petition.

29

334 Phil. 146, January 10, 1997.

30

Id., p. 153, per Torres Jr., J.

Although by its Resolution 6074, Comelec awarded the bid to MPC, the actual Contract was entered into by Comelec with MPEI. The
Contract did not indicate an exact date of execution (except that it was allegedly done on the "____ day of May,") but it was apparently
notarized on June 30, 2003.
31

In connection with this, public respondents, in their Memorandum made reference to the Implementing Rules and Regulations of RA 6957
as amended by RA 7718 (the Build-Operate-Transfer Law), and considered said IRR as being applicable to the instant case on a suppletory
basis, pending the promulgation of implementing rules for RA 9184 (the Government Procurement Act). For our purposes, it is well worth
noting that Sec. 5.4 of the IRR for RA 6957 as amended, speaks of prequalification requirements for project proponents, and in sub-section
(b)(i), it provides that, for purposes of evaluating a joint venture or consortium, it shall submit as part of its prequalification statement a
business plan which shall among others identify its members and its contractor(s), and the description of the respective roles said members
and contractors shall play or undertake in the project. If undecided on a specific contractor, the proponent may submit a short list of
contractors from among which it will select the final contractor. Short listed contractors are required to submit a statement indicating
willingness to participate in the project and capacity to undertake the requirements of the project. The business plan shall disclose which of
the members of the joint venture/consortium shall be the lead member, the financing arm, and/or facility operator(s), and the contractor(s).
In other words, since public respondents argue that the IRR of RA 6957 as amended would be suppletorily applicable to this bidding, they
could not have been unaware of the requirement under Sec. 5.4 (b)(i) thereof, in respect of submission of the requisite business plan by a
joint venture or consortium participating in a bidding.
32

Now, what would prevent an enterprising individual from obtaining copies of the Articles of Incorporation and financial statements of, let us
say, San Miguel Corporation and Ayala Corporation from the SEC, and using these to support ones claim that these two giant conglomerates
have formed a consortium with ones own penny-ante company for the purpose of bidding for a multi-billion peso contract? As far as Comelec
is concerned, the answer seems to be: Nothing.
33

34

TSN, October 7, 2003, p. 104.

35

Ibid.

36

Id., pp. 104-105.

37

Id., pp. 103-108.

38

Id., pp. 108-114.

39

Id., pp. 142-145.

On pp. 42-43 of the Memorandum of public respondents, filed with this Court on October 27, 2003, Comm. Tuason himself signed this
pleading in his capacity as counsel of all the public respondents.
40

Copies of these four agreements were belatedly submitted to this Court by MPEI through a Manifestation with Profuse Apologies filed on
October 9, 2003.
41

42

Copies of the four separate bilateral agreements were submitted to the Court last October 9, 2003.

43

The date was carelessly stated as "____ May, 2003."

44

At p. 38.

During the Oral Argument, counsel for public respondents admitted that Comelec was aware that not all the members of the "consortium"
had agreed to be jointly and solidarily liable with MPEI.
45

46

232 SCRA 110, 144, May 5, 1994, per Davide Jr., J. (now CJ).

47

Culled from table 6, DOST Report; rollo, Vol. II, pp. 1059-1072.

48

Annex "I" of the Petition, Vol. I, pp. 116-118.

Source code is the program instructions in their original form. Initially, a programmer writes a computer program in a particular
programming language. This form of the program is called the source program, or more generically, source code. To execute the program,
however, the programmer must translate it into machine language, the language that the computer understands. Source code is the only
format that is readable by humans. When you purchase programs, you usually receive them in their machine-language format. This means
that you can execute them directly, but you cannot read or modify them. Some software manufacturers provide source code, but this is useful
only if you are an experienced programmer.
49

The key passages of the Courts Resolution of December 9, 2003 were cited and reproduced verbatim in the Comelecs Partial Compliance
and Manifestation.
50

51

Metals Industry Research and Development Center (MIRDC) of the Department of Science & Technology (DOST).

Photocopy of the MIRDC-DOST letter of Dec. 15, 2003 is attached as Annex "A" to Respondent Comelecs Partial Compliance and
Manifestation. However, the 11 Test Certifications of the DOST (covering 11 lots or 158 ACMs) which were purportedly attached to this letter,
have not been reproduced and submitted to the Court, for reasons known only to respondents.
52

For example, one can conduct tests to see if certain machines will tip over and fall on their sides when accidentally bumped, or if they have
a tendency to collapse under their own weight. A less frivolous example might be that of conducting the same tests, but lowering the bar or
passing mark.
53

In the December 15, 2003 issue of the Philippine Daily Inquirer is an item titled "Digital dagdag-bawas: a nonpartisan issue" by Dean
Jorge Bocobo, from which the following passages appear:
54

"The Commission on Elections will use automated counting machines to tally paper ballots in the May elections, and a
telecommunications network to transmit the results to headquarters, along with CDs of the data. Yet, with only five months to go,
the application software packages for that crucial democratic exercise--several hundred thousand lines of obscure and opaque
code--has not yet even been delivered in its final form, Comelec Chairman Benjamin Abalos admitted last week.
"My jaw dropped in amazement. Having built software for General Electric Co.'s medical systems business and military aircraft
engines division (in another lifetime), I have learned the hard and painful way that 90 percent of unintended fatal problems with
complex software lies in the last 10 percent of the code produced. From experience, I can assure you now with metaphysical

certainty that not even the people furiously writing that software know whether it will actually work as intended on May 10, much
less guarantee it. Simply put, the proposed software-hardware combination has neither been tested completely nor verified to
comply with specifications."
55

Dated " ____ May, 2003" but notarized on June 30, 2003.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 118861 April 27, 1995

EMMANUEL M. RELAMPAGOS, petitioner,

vs.
ROSITA C. CUMBA and the COMMISSION ON ELECTIONS, respondents.
DAVIDE, JR., J.:
This special civil action of certiorari under Rule 65 of the Rules of Court revives the issue of whether or not the
Commission on Elections (COMELEC) has jurisdiction over petitions for, certiorari, prohibition, and mandamus in
election cases where it has exclusive appellate jurisdiction In the split decision of 4 March 1992 in the consolidated
cases of Garcia vs. De Jesus and Uy vs. Commission on Elections, 1 this Court ruled in the negative because of the
absence of any specific conferment upon the COMELEC, either by the constitution or by legislative fiat, of jurisdiction
to issue such extraordinary writs. It held that jurisdiction or the legal power to hear and determine a cause or causes
of action, must exist as a matter of law, whether the jurisdiction is original or appellate, and since these two classes of
jursdiction are exclusive of each other, each must expressly conferred by law. One does not flow, nor is inferred, from
the other. This Court proceeded to state that in the Philippine setting, the authority to issue the aforesaid writs
involves the exercise of original jurisdiction which has always been expressly conferred either by Constitution or by
law. It is never derived by implication. Although the Constitution grants the COMELEC appellate jurisdiction, it does
not grant it any power to exercise original jurisdiction over petitions for certiorari, prohibition, and mandamus unlike
the case of this Court which is specifically conferred with such authority in Section 5(1) of Article VIII. It also pointed
out that the doctrines laid down in Pimentel vs. COMELEC 2 that neither the Constitution nor any law has conferred
jurisdiction on the COMELEC to issue such writs still finds application under the 1987 Constitution.
In the decision of 29 July 1992 in Veloria vs. Commission on Elections,
doctrine.

this Court reiterated the Garcia and Uy

In the challenged resolution at bench, the respondent COMELEC adhered to the affirmative view of the issue, citing as
authority therefore its own decision of 29 July 1993 in Dictado vs. Cosico and the last paragraph of Section 50 of B. P.
Blg. 697, which reads:
Sec. 50. Definition.
xxx xxx xxx
The Commission is hereby vested with exclusive authority to hear and decide petitions for certiorari
prohibition, and mandamus involving election cases.
The petitioner herein pleads that this resolution be set aside and nullified for having been issued with grave abuse of
discretion amounting to lack or excess of jurisdiction. He contends that while the COMELEC's position is inherently
compelling, it deserves scant consideration in view of Garcia and Uy and Veloria and the nature and purpose of B. P.
Blg. 697 which was to govern solely the Batasang Pambansa election of 14 May 1984; hence, it was a temporary
statute which self-destructed after such election.
The antecedent facts that led to the filing of this action are uncomplicated and undisputed.
In the synchronized elections of 11 May 1992, the petitioner and private respondent Rosita Cumba were candidates
for the position of Mayor in the municipality of Magallanes, Agusan del Norte. The latter was proclaimed the winning
candidate, with a margin of only twenty-two votes over the former.
Unwilling to accept defeat, the petitioner filed an election protest with the Regional Trial Court (RTC) of Agusan del
Norte, which was assigned to Branch 2 thereof in Butuan City.
On 29 June 1994, the trial court, per Judge Rosario F. Dabalos, found the petitioner to have won with a margin of six
votes over the private respondent and rendered judgement in favor of the petitioner as follows:
WHEREFORE, in view of the foregoing results, the court hereby declares the protestant as having won
the mayoralty election and as duly elected Mayor of the Municipality of Magallanes, Agusan del Norte
in the local election held on May 11, 1992, the protestant having obtained six (6) votes more than that
of the protestee's votes.
Copies of the decision were sent to and received by the petitioner and the private respondent on 1 July 1994.

On 4 July 1994, the private respondent appealed the decision to the COMELEC by filing her notice of appeal and
paying the appellate docket fees.
On 8 July 1994, the trial court gave due course to the appeal.
On 12 July 1994, the petitioner filed with the trial court a motion for execution pending appeal, which the private
respondent opposed on 22 July 1994.
On 3 August 1994, the trial court granted the petitioner's motion for execution pending appeal. The corresponding writ
of execution was forthwith issued. Thereafter, the private respondent filed a motion for a reconsideration of the order
of execution and the sheriff held in abeyance the implementation of the writ. This motion was denied on 5 August
1994.
The private respondent then filed with the respondent COMELEC a petition for certiorari to annul the aforesaid other of
the trial court granting the motion for execution pending appeal and the writ of execution. The petition was docketed
as SPR No. 1-94.
On 9 February 1995, the COMELEC promulgated its resolution granting the petition. 4 The dispositive portion thereof
reads as follows:
WHEREFORE, premises considered, the Commission RESOLVES that is [sic] has exclusive authority to
hear and decide petitions for certiorari, prohibition and mandamus in election cases as authorized by
law, and therefore, assumes jurisdiction of the instant petition for certiorari which is hereby GRANTED.
The Order of the court a quo of August 3, 1994 is hereby declared NULL and VOID and the Writ of
Execution issued on August 4, 1994 LIFTED.
Accordingly, petitioner Rosita Cumba is ordered restored to her position .as Municipality Mayor of
Magallanes, Agusan del Norte, pending resolution of the appeal before this Commission in the case of
Relampagos vs. Cumba in EAC No. 108-94.
In upholding its jurisdiction in certiorari, prohibition, and mandamus cases, the respondent COMELEC maintains that
there is a special law granting it such jurisdiction, viz., Section 50 of B.P. Blg. 697, which remains in full force as it was
not expressly repealed by the Omnibus Election Code (B.P. Blg. 881),and that it is not exactly correct that this law
self-destructed after the May 1984 election. It further reasoned out that in the performance of its judicial functions,
the COMELEC, is the most logical body to issue the extraordinary writs of certiorari, prohibition and mandamus in
election cases where it has appellate jurisdiction. It ratiocinated as follows:
It is therefore clear that if there is a law which specifically confers jurisdiction to issue the prerogative
Writs, then the Commission has jurisdiction.
Such a law exists. Section 50, B.P. Blg. 697 is that law.
B.P. Blg. 697, approved on March 14, 1984, is entitled "AN ACT TO GOVERN THE ELECTION OF
MEMBERS OF THE BATASANG PAMBANSA ON MAY 14, 1984 AND THE SELECTION OF SECTORAL
REPRESENTATIVES THEREAFTER, APPROPRIATING FUNDS THEREFOR AND FOR OTHER PURPOSES.
Section 50 provides:
Sec. 50. Definition. Pre-proclamation controversy refers to any question pertaining
to or affecting the proceedings of the Board of Canvassers which may be raised by any
candidate, political party or coalition of political parties before the board or directly
with the Commission.
The Commission Elections shall be the sole judge and shall have exclusive jurisdiction
over all pre-proclamation controversies.
The Commission is hereby vested with exclusive authority to hear and decide petitions
for certiorari, prohibition and mandamus involving election cases.(Emphasis supplied).
We have debated among ourselves whether Section 50, B.P. Blg. 697, has been repealed. We have
come to the conclusion that it has not been repealed. The repealing provision in the Omnibus Election
Code (BP Blg. 881, December 3, 1985), provides:

Sec. 282. Repealing Clause. Presidential Decree No. 1296 otherwise known as the
The 1978 Election Code, as amended, is hereby repealed. All other election Laws,
decrees, executive orders, rules and regulations or parts thereof, inconsistent with the
provisions of this Code is hereby repealed, except Presidential Decree No. 1618 and
Batas Pambansa Blg. 20 governing the election of the members of the Sangguniang
Pampook of Regions IX and XII. (Emphasis supplied).
B.P. Blg. 697 has not been expressly repealed, and Section 50 thereof is not inconsistent with the
provisions of the Omnibus Election Code. Besides, in the cited Garcia/Uy cases, as reiterated in the
Veloria case, the Supreme Court itself said, reiterating previous cases, that implied repeal of statutes
is frowned upon, thus:
Just as implied repeal of statutes frowned upon, so also should the grant of original
jurisdiction by mere implication to a quasi-judicial body be tabooed. (Garcia/Uy/Veloria
Cases: Emphasis supplied).
xxx xxx xxx
It is equally clear that Executive Order No. 90 . . . did not modify or repeal, whether
expressly or impliedly, Section 23 of P.D. No. 1752. It is common place Learning that
implied repeal are not favored in Law and are not casually to be assumed. The first
effort of a court must always be to reconcile or adjust the provisions of one statute
with those of another so as to give sensible effect to both provisions (Jalandoni vs.
Andaya, 55 SCRA 261 (1974); Villegas vs. Subido, 41 SCRA 190, 196-197 (1971);
National Power Corporation vs. ARCA, 25 SCRA 931 (1968); U.S. vs. Palacios, 33 Phil.
208 (1916); and Iloilo Palay and Corn Planters Association, Inc. vs. Feliciano, 13 SCRA
377(1965). Only when there is clear inconsistency and conflict between the provisions
of two (2) statutes, may a court hold that the provisions later in point of time have
impliedly repealed the earlier ones" that (Philippine American Management Co., Inc.,
vs. Philippine American Management Employees Association, 49 SCRA 194 (1973);
and Villegas vs. Subido, 41 SCRA 190 (1971) (Larga vs. Ranada, Jr., No. L-7976,
August 3, 1984, 164 SCRA 25).
It was even suggested that Batas Pambansa Blg. 697 self-destructed after the Batasang Pambansa
elections of 1984; because of the provisions of Section 1 (Title and Applicability) which provides: "This
act shall be known and cited as "The Law on the 1984 Batasang Pambansa Election." It shall govern
the election for the regular Batasang Pambansa which shall be held on May 14, 1984, and the
selection of sectoral representatives thereafter as provided by the Constitution.
While that may be true with most of its provisions which were applicable only for the particular
election (like election and campaign periods, voting constituency, etc.) most if not all of the remaining
provisions could be applicable to future elections. It is not lost to the Commission that B.P. Blg. 697
was passed also "for other purposes."
But the important consideration is that the authority granted to the Commission under B.P. Blg. 697 is
not inconsistent with our election laws. It should be mentioned that the provisions of Republic Act No.
6638 which governed the local elections of January 18, 1988, as to the number of councilors in
specified cities (Sec. 3) and the number of Sangguniang members in different provinces and cities
(Sec. 4) are still applicable up to this day. In fact, it became one of the important controlling provision
which governed the May 11, 1992 elections. If provisions of Republic Act No. 6636 which are not
inconsistent with the present election laws did not self-destruct, why should Section 50 of B.P. Blg.
697?
Another provision which did not self-destruct is that which provides that "any city or municipal judge,
who includes or excludes any voter without any legal basis in inclusion and exclusion proceedings,
shall be guilty of an election offense," although this provision is found in Section 10 of Executive Order
No. 134 supposedly with limited application as the enabling act for the elections for Members of
Congress on May 11, 1987 and for other purposes.
Clearly the intent of the law, was to give certiorari, jurisdiction to the Commission on Elections
because the Pimentel case said there was none, to fill a void in the law, and avoid an incongruous
situation.

A statute's clauses and phrases must not be taken separately but in its relation to the
statute's totality. Each statute must, in fact, be construed as to "harmonized it with
the pre-existing body of laws." Unless clearly repugnant, provisions of statutes must
be reconciled. . . . (Commissioner of Customs vs. ESSO Standard Eastern, Inc. L28329, August 7, 1975, 66 SCRA 113).
xxx xxx xxx
The statutory construction rule is: "When the Legislature enacts provision, it is
understood that it is aware of previous statutes relating to the same subject matter
and that in the absence of any express repeal or amendment therein, the new
provision should be deemed enacted pursuant to the legislative policy embodied in the
prior statutes." (Legaspi vs. Executive Secretary, L-36153, November 28, 1975, 68
SCRA 253).
The Commission is the most logical body whenever it performs judicial functions to take jurisdiction of
petitions for certiorari, prohibition and mandamus because it has appellate jurisdiction in election
cases granted by the Constitution itself. The Court of Appeals has no more appellate jurisdiction over
such cases And in the case of the Supreme Court, Justice de Castro in the Pimentel case pointed out,
in his dissenting opinion that under the Constitution the certiorari jurisdiction of the Supreme Court in
election cases should properly be limited to decisions, orders or rulings of the Commission on
Elections, not from lower courts.
It was of course different under the Election Code of 1971 (R.A. No. 6388, September 2, 1971)
because the Supreme Court and the Court of Appeals then had appellate jurisdiction in election case
decided by the lower courts.
In the Veloria case, it now appears that only the Supreme Court and the Court of Appeals have
certiorari jurisdiction over election cases from the lower courts because after reiterating the ruling in
the Garcia and Uy cases, the Supreme Court said:
In view of this pronouncement, an original civil action of certiorari, prohibition or
mandamus against a regional trial court in an election contest may be filed only in the
Court of Appeals or in this Court being the only courts given such original jurisdiction
under the Constitution and the Law. (Emphasis supplied).
While these two appellate Courts do have the jurisdiction under the Constitution and the law, it is most
logical for the Commission whenever it performs judicial functions to have the authority to issue these
prerogative writs. . . .
...
In traversing the first issue, we are citing our decision laid down in the case of Antonio Dictado vs.
Hon. Rodrigo N. Cosico and Emilio Tiongco promulgated on July 29, 1993. In this case, the
Commission en banc had occasion to rule on the question of whether or not the Commission has the
authority to hear and decide petitions for certiorari in election cases.
The Commission En Banc, speaking through Hon. Commissioner Regalado E. Maambong, ruled that
there is [a] law which grants the Commission, the exclusive authority to issue special writs of
certiorari, prohibition and mandamus in election cases, and there are also Supreme Court decisions,
recent in fact, which declare that the Commission has no such authority precisely because; according
to the decisions, there is no law granting such authority, and without any hint whatsoever of the
existence of Sec. 50 of Batas vs. Pambansa Blg. 697.
As gleaned from the case of Dictado, respondents were arguing that Sec. 50 of BP Blg. 697 was
repealed by the Omnibus Election Code (BP Blg. 881, December 3, 1985). Furthermore, in their
answer, respondents cited Supreme Court decisions where it was declared that, indeed, the
Commission has no jurisdiction to issue special writs of certiorari, prohibition and mandamus in aid of
its appellate jurisdiction.
It is still the position of this Commission that Sec. 50, BP Blg. 697 has not been repealed.

As defined in the Constitution, "Judicial power" includes the duty of the Courts of Justice to settle
actual controversies involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess, of jurisdiction
on the part of any branch or instrumentality of the government (Sec. 1, par. 2, Art. VII).
Since the COMELEC, in discharging its appellate jurisdiction pursuant to Sec. 2 (2), Art. IX-C, acts as a
court of justice performing judicial power and said power includes the determination of whether or not
there has been grave abuse of discretion amounting to lack or excess of jurisdiction, it necessarily
follows that the Comelec, by constitutional mandate, is vested with jurisdiction to issue writs of
certiorari in aid of its appellate jurisdiction. 5
It set aside, for having been issued with grave abuse of discretion, the trial court's order of execution pending appeal
and the writ of execution because
[a]t the time the Motion for Execution Pending Appeal was filed on July 12, 1994 the court a quo had
already lost jurisdiction over the case for as early as July 8, 1994, it had already acknowledged
through its order issued on that date, the perfection of the appeal of petitioner as in fact it ordered the
elevation of the records of the case to this Honorable Commission. 6
Aggrieved by the resolution, the petitioner filed the instant special civil action.
In the resolution of 21 February 1985, the Court required the respondents to comment on the petition and issued a
temporary restraining order enjoining the respondent COMELEC to cease and desist from enforcing is challenged
resolution.
As naturally expected, the private respondent, in her Comment, opposed the petition by invoking the very arguments
adduced by the respondent COMELEC in its challenged the resolution and the dissenting opinion in the Garcia and Uy
cases.
In its comment filed by the Office of the Solicitor General, the respondent COMELEC postulates that it issued the said
resolution after it had taken cognizance of the appeal interposed by the private respondent from the RTC decision,
unlike in the Garcia and Uy cases, and therefore, in the exercise of its appellate jurisdiction, thus:
it cannot be gainsaid that [it] possesses inherent powers to employ means necessary to carry into
effect the powers conferred upon it by law (Sec. 6, Rule 135 of the Revised Rules of Court) and verily,
there was no need for any statutory grant for that purpose. Indeed, in annulling the Order of
Execution of the Regional Trial Court, public respondent did not exceed its jurisdiction since its action
in this regard was necessary to preserve the subject of the appeal and to maintain the status quo of
the parties pending the final outcome of its review of the correctness of the appealed decision. 7
It tried to show that in Pimentel and Garcia, the trial courts still had jurisdiction over the cases unlike in the instant
case where the trial court had already given due course to the appeal and elevated the records of the case to the
COMELEC which had taken cognizance of the appeal.
This Court resolved to give due course to this petition and to decide it on its merits.
The contention of the respondent COMELEC as advanced by the Office of the Solicitor General is unacceptable. It goes
against its theory in the assailed resolution and is not supported by the facts. The challenged resolution involves a
case which the COMELEC docketed as a special relief case (SPR. No. 1-94). Under Rule 28 of its Rules of Procedure,
the special relief cases are petitions for certiorari, prohibition, mandamus, and contempt proceedings. The ordinary
appeal from the RTC decision was, as disclosed in the challenged resolution; docketed as EAC No. 108-94. 8 Clearly
then, the COMELEC had recognized and taken cognizance of two cases: one, the ordinary appeal from the RTC
decision (EAC No. 108-94), and two, the special civil action for certiorari docketed as SPR No. 1-94. The two cases
were not consolidated. The dissimilarities between them need no further elaboration. Since it issued the challenged
resolution under the latter case, it cannot now be heard to state that it issued it as an incident in the former, the
ordinary appeal. This erroneous contention of the Office of the of the Solicitor General notwithstanding, the position
taken by the COMELEC in its resolution now in question paves the way for a re-examination of this Court's
pronouncement in the Garcia and Uy cases.
As earlier stated, in Garcia and Uy, 9 and later, in Veloria, 10 this Court ruled that the COMELEC has no jurisdiction over
the extraordinary writs of certiorari, prohibition, and mandamus because there is no specific constitutional or statutory
conferment to it of such jurisdiction.

The respondent COMELEC, however, points out that Section 50 of B.P. Blg. 697 expressly granted it such jurisdiction.
Indeed, it did. Nevertheless, considering that the said law was, per Section 1 thereof, "to govern the election for the
regular Batasang Pambansa which shall be held on May 14, 1984, and the selection of sectoral representatives
thereafter as provided by the Constitution," and in view of the passage of the Omnibus Election Code (B.P. Blg. 881)
by the regular Batasang Pambansa, 11 this Court is then confronted with the twin issues of whether said B.P. Blg. 697
became functus officio after the 14 May 1984 election of members of the regular Batasang Pambansa or the selection
thereafter of the sectoral representatives at the latest, and whether it was repealed by the Omnibus Election Code.
The Court agrees with the respondent COMELEC that there are provisions in B.P. Blg. 697 whose lifetime go beyond
the 14 May 1984 election or the subsequent selection of sectoral representatives. In fact, by the very wording of the
last paragraph of its Section 50, to: wit:
Sec. 50. Definition.
xxx xxx xxx
The Commission is hereby vested with the exclusive authority to hear and decide petitions for
certiorari, prohibition and mandamus involving election cases. (Emphasis supplied).
it is quite clear that the exercise of the power was not restricted within a specific period of time. Taken in the context
of the conspicuous absence of such jurisdiction as ruled in Pimentel vs. Commission on Elections, 12 it seems quite
obvious that the grant was intended as a remedial legislation to eliminate the seeming incongruity or irrationality
resulting in a splitting of jurisdiction pointed out in the dissenting opinion of Justice De Castro in the said case.
But did not the Omnibus Election Code (B.P. Blg. 881) repeal B.P. Blg. 697? The repealing clause of the latter reads as
follows:
Sec. 282. Repealing clause. Presidential decree No. 1296, otherwise known as The 1978 Election
Code, as amended, is hereby repealed. All other election laws, decrees, executive orders, rules and
regulations, or parts thereof, inconsistent with the provisions of this Code are hereby repealed, except
Presidential Decree No. 1618 .and Batas Pambansa Blg. 20 governing the election of the members of
the Sangguniang Pampook of Regions IX and XII.
The second sentence is in the nature of a general repealing clause. It has been said:
An express general repealing clause to the effect that. all inconsistent enactments are repealed; is in
legal contemplation a nullity. Repeals must either be expressed or result by implication. Although it
has in some instances been held to be an express recognition that there are acts in conflict with the
act in which it is included and as indicative of the legislative intent to repeal such acts, a general
repealing clause cannot be deemed an express repeal because it fails to identify or designate any act
to be repealed. It cannot be determinative of an implied repeal for if does not declare any
inconsistency but conversely, merely predicates a repeal upon the condition that a substantial conflict
is found under application of the rules of implied repeals. If its inclusion is more than mere mechahical
verbiage, it is more often a detriment than an aid to the establishment of a repeal, for such clause is
construed as an express limitation of the repeal to inconsistent acts. 13
This Court is not unaware of the equally settled rule in statutory construction that in the revision or codification of
laws, all parts and provisions of the old laws that are omitted in the revised statute or code are deemed repealed,
unless the statute or code provides otherwise expressly or impliedly. 14
By the tenor of its aforequoted Repealing Clause, it does not evidently appear that the Batasang Pambansa had
intended to codify all prior election statutes and to replace them with the new Code. It made, in fact, by the second
sentence, a reservation that all prior election statutes or parts thereof not inconsistent with any provisions of the Code
shall remain in force. That sentence
predicates the intended repeal upon the condition that a substantial conflict must be found on existing
and prior acts of the same subject matter. Such being the case, the presumption against implied
repeals and the rule on strict construction regarding implied repeals apply ex proprio vigore. For the
legislature is presumed to know the existing laws so that, if repeal of particular or specific law or laws
is intended, the proper step is to express it. The failure to add a specific repealing clause particularly
mentioning the statute to be repealed indicates that the intent was not to repeal any existing law on

the matter, unless an irreconcilable inconsistency and repugnancy exist in the terms of the new and
the old laws. 15
This being the case, the Court painstakingly examined the aforesaid last paragraph of Section 50 of the Omnibus
Election Code to determine if the former is inconsistent with any of the provisions of the latter, It found none.
In the face of the foregoing disquisitions, the Court must, as it now does, abandon the ruling in the Garcia and Uy and
Veloria cases, We now hold that the last paragraph of Section 50 of B.P. Blg. 697 providing as follows:
The Commission is hereby vested with exclusive authority to hear and decide petitions for certiorari,
prohibition and mandamus involving election cases.
remains in full force and effect but only in such cases where, under paragraph (2), Section 1, Article IX-C of the
Constitution, it has exclusive appellate jurisdiction. Simply put, the COMELEC has the authority to issue the
extraordinary writs of certiorari, prohibition, and mandamus only in aid of its appellate jurisdiction.
The jurisdiction of the COMELEC having been settled, we now proceed to review the substance of the challenged
resolution.
That the trial court acted with palpable and whimsical abuse of discretion in granting the petitioner's motion for
execution pending appeal and in issuing the writ of execution is all too obvious. Since both the petitioner and the
private respondent received copies of the decision on 1 July 1994, an appeal therefrom may be filed within five days 16
from 1 July 1994, or on or before 6 July 1994. Any motion for execution pending appeal must be filed before the
period for the perfection of the appeal. Pursuant to Section 23 of the Interim Rules Implementing B.P. Blg. 129, which
is deemed to have supplementary effect to the COMELEC Rules of Procedures pursuant to Rule 43 of the latter, an
appeal would be deemed perfected on the last day for any of the parties to appeal, 17 or on 6 July 1994. On 4 July
1994, the private respondent filed her notice of appeal and paid the appeal fee. On 8 July 1994, the trial court gave
due course to the appeal and ordered the elevation of the records of the case to the COMELEC. Upon the perfection of
the appeal, the trial court was divested of its jurisdiction over the case. 18 Since the motion for execution pending
appeal was filed only on 12 July 1994, or after the perfection of the appeal, the trial court could no longer validly act
thereon. It could have been otherwise if the motion was filed before the perfection of the appeal. 19 Accordingly, since
the respondent COMELEC has the jurisdiction to issue the extraordinary writs of certiorari, prohibition, and
mandamus, then it correctly set aside the challenged order granting the motion for execution pending appeal and writ
of execution issued by the trial court.
WHEREFORE, the instant petition is DENIED and the challenged resolution of 9 February 1995 of the Commission on
Elections in SPR No. 1-94 entitled "Rosita Cumba vs. Manuel M. Relampagos, et al. " is AFFIRMED.
The temporary restraining order issued on 21 February 1995 is hereby LIFTED.
No pronouncemnt as to costs.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Romero, Bellosillo, Quiason, Puno, Vitug, and Mendoza, JJ., concur.
Regalado, J., concurs in the result.
Melo, Kapunan and Francisco, JJ., are on leave.
Footnotes
1 G.R. No. 88158 and G.R. No. 97108-09, respectively, 206 SCRA 779 [1992]. The voting was 7-6. Per Melencio-Herrera, J., with
the concurrence of Cruz (who wrote a separate opinion), Padilla, Grio-Aquino, Regalado, Romero, and Nocon, JJ.; and with Bidin,
J., dissenting, with whom Narvasa, C. J., Gutierrez, Jr., Feliciano, Medialdea, and Davide, Jr., JJ., concur. Paras, J.; took no part.
2 101 SCRA 769 [1980].
3 211 SCRA 907 [1992].
4 Annex "H" of Petition; Rollo, 20-43. By a 4-2 vote.

5 Rollo, 25-30, 39-41.

6 Id., 41.
7 Rollo, 67 et seq.
8 Dispositive portion of the Resolution; Rollo, 42. EAC is the docket designation for appealed cases, while SPR is for special relief
cases (Section 4, Rule 7, to COMELEC Rules of Procedure).
9 Supra note 1.
10 Supra note 3.
11 Passed on 28 November 1985 and approved on 3 December 1985.
12 Supra note 2.
13 C. DALLAS SANDS, Sutherland, Statutes and Statutory Construction. 23.08 (Vol. 14, 4th ed. 1972).
14 RUBEN E; ACPALO, Statutory Construction 284 [2nd ed. 1990], citing People vs. Benuya, 61 Phil. 208 [1935].
15 AGPALO, op. cit., at 292, citing Iloilo Palay and Corn Planters Assn., Inc. vs. Feliciano, 13 SCRA 377 [1965]; City of Naga vs.
Agna, 71 SCRA 176 [1976].
16 Section 3, Rule 22, in relation to Section 20, Rule 35, COMELEC Rules of Procedure.
17 Bank of the Philippine Islands vs. East Molasses Corp., 198 SCRA 689 [1991].
18 Fortune Life & General Insurance Co., Inc. vs. Court of Appeals, 224 SCRA 829 [1993].

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 136282

February 15, 2000

FRANCISCO D. OCAMPO, petitioner,

vs.
COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF STA. RITA, PAMPANGA and
ARTHUR L. SALALILA, respondents.
x-----------------------------x
G.R. No. 137470

February 15, 2000

FRANCISCO D. OCAMPO, petitioner,

vs.
ARTHUR L. SALALILA, respondent.
KAPUNAN, J.:
The case before us hinges on the question of whether or not to include in the canvass the contested election returns.
The facts are as follows:
Francisco D. Ocampo and Arthur L. Salalila were candidates for Mayor in the Municipality of Sta. Rita, Province of
Pampanga during the May 11, 1998 elections. There were 78 precincts in said municipality. During the canvassing of
the election returns which started on May 12, 1998 and ended on May 14, 1998 petitioner moved for the exclusion of
the election returns in 8 precincts from Barangay Basilia considering that the turnout of votes was allegedly lopsided
against his favor. The results were as follows:

Precinct No.

VOTES RECEIVED BY
OCAMPO

SALALILA

1. 88-A-1

165

2. 89-A-1

104

3. 90-A & 90-A-1

192

4. 92-A

152

5. 93-A & 94-A

236

6. 99-A & 100-A

205

7. 104-A

155

8. 105-A

1151

25 votes

1,324 votes

The grounds for the exclusion of the election returns in the aforementioned precincts were: i.e: (1) that the same
were obviously manufactured; (2) they were defective for they contained no data on the number of registered votes in
the precinct, actual number of votes cast and the number of valid votes cast; and (3) other alleged discrepancies in
the data on votes cast and total number of registered voters and excess ballots. 2
Finding the contested election returns to be genuine and authentic and without merit, the Municipal Board of
Canvassers (MBC) ruled to order the inclusion in the canvass of the contested election returns. 3
On May 16, 1998, petitioner went to see the Chairman of the MBC at his office to file his Notice of Appeal. Since the
latter was not present, petitioner instead filed said notice with Board Members Nelia Salvador and Diosdado L. Amio
who, however, refused to accept the same in line with the Board's earlier ruling not to receive anymore the Notice of
Appeal. Upon request, a Certification to that effect was issued by Nelia Salvador and Disodado Amio on the same
date.4
On May 18, 1998, petitioner went to the COMELEC and filed a formal appeal. 5 This was docketed as SPC No. 98-056.
On June 29, 1998, the COMELEC Second Division, rendered a Resolution stating the following:

xxx

xxx

xxx

Respondent MBC should have at least suspended its canvass in so far as the questioned or contested election
returns were concerned, . . . .
In precinct 88-A-1 the election return is lacking in material data as there were no entries as to the number of
registered voters in the precinct, the actual number of votes cast and the number of valid votes cast. In such
a situation it is incumbent upon the MBC to call the members of the Board of Election Inspectors (BEI) to
complete the data which failed to do so.
In precinct 89-A-1 there was a discrepancy in the figure of the total number of valid votes cast and the
number of votes received by private respondent Salalila. Moreover, two (2) member (sic) of the BEI did not
affixed (sic) their thumbmark in the questioned election returns rendering their authenticity doubtful. There is
material discrepancy in the election return as it is (sic) states therein that there were 197 voters who actually
voted. And also it was also stated therein that there were 22 excess ballots and therefore the number of
voters who actually voted will be 219 in excess of the 215 total number of registered voters for the precinct.
In precincts 92-A the return states that there were 153 voters who actually voted and private respondent
Salalila received 152 votes while petitioner got zero (0), one (1) vote therefore is clearly missing.
In 93-A and 94-A there were an excess of the number of voters who actually voted. The election returns
shows that there were 245 voters who actually voted yet there were 27 excess ballots found in the ballot box,
but the number of voters in the precinct is only 272, meaning there was a one hundred per cent (100%) turnout of voters for those precinct but the election return states that there were only 245 who actually voted.
In precinct 99-A, 100-A and 104-A there were also no entries on the data of voters and ballots. Again the MBC
should have at least called the members of the BEI to complete the data in the election return and explain
why they failed to do the same.
In precinct 105-A it is obvious that there were discrepancies in the material data in that the total number of
registered voters in the precinct is 141 while the total number accordingly of the voters who actually voted is
121 but found out inside the ballot box were 144 valid ballots which obviously in excess of three (3) from the
total number of the registered voters for the precinct.
But more than the above findings what is significant is that in Precincts 93-A and 94-A there were erasures in
the election return which accordingly was made to reflect the correct votes received by petitioner and private
respondent. According to the Chairman of BEI, private respondent received 96 votes while, petitioner received
4 votes instead of 97 yet the election returns states that petitioner received only three votes instead of four as
claimed but (sic) the Chairman of the BEI. Such erasures manifest (sic) on the election return puts the
authenticity of the same in issue and should have been excluded in the canvass.
While it is true that the Board of Canvassers is essentially a ministerial body and has no power to pass upon
questions of whether there are illegal voters or other election frauds. (Dizon v. Provincial Board, 52 Phil 47;
Sangki v. Comelec, 21 SCRA 1392), it is also true that in case of patent irregularity in the election returns,
such as patent erasures and super-impositions in words and figures on the face of the returns submitted to
the board, it is imperative for the board to stop the canvass of such returns so as to allow time for verification.
A canvass and proclamation made withstanding such patent defects in the returns which may affect the result
of the election, without awaiting remedies, is null and void. (Purisima v. Salonga, 15 SCRA 704).
WHEREFORE, the Commission (Second Division) resolves to GIVE DUE COURSE to the appeal and the eight
(8) contested election returns are hereby ordered excluded from the canvass for the position of the municipal
mayor of Sta. Rita, Pampanga.
The proclamation made by respondent MBC on May 14, 1998 proclaiming private respondent as duly elected
Mayor of Municipality of Sta. Rita, Pampanga is hereby SUSPENDED.
Respondent MBC is hereby directed to re-convene and issue a new certificate of canvass of votes excluding the
election returns subject of this appeal and on the basis of which proclaim the winning candidate for Mayor of
the Municipality of Sta. Rita, Pampanga.
SO ORDERED.6

On July 3, 1998, private respondent Salalila filed a motion for reconsideration. 7

On November 19, 1998, the COMELEC en banc promulgated the questioned resolution reversing the findings of the
COMELEC Second Division. The decretal portion of which states:
WHEREFORE, in view of the foregoing, the Resolution promulgated by this Commission (Second Division) on
29 June 1998 is hereby reversed and set aside. The suspension of the effects of the proclamation of the
respondent/appellee ARTHUR L. SALALILA, is hereby lifted. His proclamation as MAYOR of the municipality of
Sta. Rita, Pampanga on 14 May 1998 is hereby confirmed.
SO ORDERED.8
Hence, petitioner Ocampo filed the iinstant petition citing the grave abuse of discretion committed by the COMELEC en
banc in reversing the findings of the COMELEC Second Division. A temporary restraining order was also prayed for to
enjoin the effects of private respondent Salalila's proclamation as municipal mayor.
On December 15, 1998, this Court issued a Temporary Restraining Order directing the COMELEC to cease and desist
from enforcing its Resolution, dated November 19, 1998 in SPC No. 98-056.
Meanwhile, on March 1, 1999, petitioner filed a separate petition before this Court to cite private respondent Salalila
for contempt. This was docketed as G.R. No. 137470. In this petition, petitioner claimed that despite the issuance of a
Temporary Restraining Order by this Court on December 15, 1998 in G.R. No. 136282, private respondent Salalila
continued to act as the Mayor of Sta. Rita, Pampanga.
Petitioner would like to impress upon this Court that the returns in the subject precincts (25 votes with zero 0 votes in
3 precincts, as against private respondent Salalila's 1,333 votes) were statistically improbable considering that he was
a re-electionist and with assigned watchers therein. Although he admits that the precincts were private respondent
Salalila's bailiwick, precedence dictates that every election document coming from a candidate's bailiwick must be
carefully scrutinized.
Petitioner claims that the election returns did not contain data as required in Section 212 of the Omnibus Election
Code which reads:
The returns shall also show the date of the election, the polling place, the barangay and the city or
municipality in which it was held, the total number of ballots found in the compartment for valid ballots, the
total number of valid ballots withdrawn from the compartment for spoiled ballots because they were
erroneously placed therein, the total number of excess ballots, the total number of marked or void ballots, and
the total number of votes obtained by each candidate, writing out the said number in words and figures and,
at the end thereof, the board of election inspectors shall certify that the contents are correct. The returns shall
be accomplished in a single sheet of paper, but if this is not possible, additional sheets may be used which
shall be prepared in the same manner as the first sheet and likewise certified by the board of election
inspectors.
xxx

xxx

xxx

Petitioner further contends that these data on voters and ballots are just as important as the data on votes credited to
the candidate on the same election returns. The absence such data without any explanation or correction on the part
of the Board of Election Inspectors who prepared those election documents renders them invalid. Violations of
Sections 234 and 235 relating to material defects in the election returns and tampered or falsified election returns are
considered election offenses under Section 262 of the Omnibus Election Code. 9
The pertinent provisions read as follows:
Sec. 234. Material defects in the election returns. If it should clearly appear that some requisites in form or
data had been omitted in the election returns, the board of canvassers shall call for all the members of the
board of election inspectors concerned by the most expeditious means, for the same board to effect the
correction. Provided, That in case of the omission in the election returns of the name of any candidate and/or
his corresponding votes, the board of canvassers shall require the board of election inspectors concerned to
complete the necessary data in the election returns and affix therein their initials: Provided, further, That if
the votes omitted in the returns cannot be ascertained by other means except by recounting the ballots, the
Commission, after satisfying itself that the identity and integrity of the ballot box have not been violated, shall
order the board of election inspectors to open the ballot box, and, also after satisfying itself that the integrity

of the ballots therein has been duly preserved, order the board of election inspectors to count the votes for
the candidate whose votes have been omitted with notice thereof to all candidates for the position involved
and thereafter complete the returns.
The right of a candidate to avail of this provision shall not be lost or affected by the fact that an election
protest is subsequently filed by any of the candidates.
Sec. 235. When election returns appear to be tampered with or falsified. If the election returns submitted to
the board of canvassers appear to be tampered with, altered or falsified after they have left the hands of the
board of election inspectors, or otherwise not authentic, or were prepared by the board of election inspectors,
the board of canvassers shall use the other copies of said election returns and, if necessary, the copy inside
the ballot box which upon previous authority given by the Commission may be retrieved in accordance with
Section 220 hereof. If the other copies of the returns are likewise tampered with, altered, falsified, not
authentic, prepared under duress, force, intimidation, or prepared by persons other than the members of the
board of election inspectors, the board of canvassers or any candidate affected shall bring the matter to the
attention of the Commission. The Commission shall then, after giving notice to all candidates concerned and
after satisfying itself that nothing in the ballot box indicate that its identity and integrity have been violated,
order the opening of the ballot box and, likewise after satisfying itself that the integrity of the ballots therein
has been duly preserved shall order the board of election inspectors to recount the votes of the candidates
affected and prepare a new return which shall then be used by the board of canvassers as basis of the
canvass. (Sec. 173, 1978 EC).
The petition must fail.
It must be borne in mind that we are persuaded strongly by the principle that the findings of facts of administrative
bodies charged with their specific field of expertise, are afforded great weight by the courts, and in the absence of
substantial showing that such findings are made from an erroneous estimation of the evidence presented, they are
conclusive, and in the interest of stability of the governmental structure, should not be disturbed. 10 The COMELEC, as
an administrative agency and a specialized constitutional body charged with the enforcement and administration of all
laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall, has more than
enough expertise in its field that its findings or conclusions are generally respected and even given finality.11 We do
not find the instant case an exception to this avowed rule.
In order to allay any suspicion of gravely abusing its discretion, the COMELEC made a careful examination of the
contested election returns. "To check and double check" if it were true that the contested election returns were
tampered with, altered or falsified, the COMELEC en banc examined two separate copies of the election returns: (1)
the copy for the Municipal Board of Canvassers and (2) the COMELEC copy. Thus, the following findings were made:
In the election returns for precinct 88-A-1, only formal defects are present, there being no entries on the
requisite data as to the number of registered voters in the precinct, the actual number of votes cast and the
number of valid votes cast. However, the number of votes credited to the petitioner and private respondent
and the taras therein do not contain any erasure or alteration as to bring the number of votes obtained by the
petitioner and private respondent within the realm of controversy. We, therefore, rule for the inclusion of the
election returns for this precinct.
The election returns for precinct 89-A-1 was ruled excluded by the Second Division for several reasons. It was
alleged (1) that there is a discrepancy in the total number of valid votes cast and number of votes received by
private respondent Salalila; (2) that two (2) members of the Board of election Inspectors did not affix their
thumb mark in the questioned election returns; and (3) that the election returns states that there were 197
voters who actually voted while there were 22 excess ballots which means that the number of voters who
actually voted will be 219 in excess of the 215 total number of registered voters in the precinct. An
examination of this election returns shows that all pages of the election returns have been signed and thumb
marked by the chairman and members of the board of election inspectors except on page 3 where the
members did not thumb mark but the chairman did and on page 4 where the chairman had no thumb mark
but the members did have. This is a mere oversight and it did not vitiate the validity of the votes credited to
each candidate nor did it destroy the integrity of the election return. A perusal of the election returns for the
mayoral candidates shows that Salalila got one hundred four (104) votes while petitioner/appellant Ocampo
received zero (0). The fact that private respondent/appellee got almost all the votes cast in this precinct is not
necessarily proof of fraud for there is nothing in the returns to show that it was tampered or altered. The
election returns itself reflects with clarity the votes obtained by Salalila and Ocampo. It bears no sign
whatsoever of tampering or alteration. Moreover, contrary to the findings of the Second Division, the election
returns for this precinct did not state that there were 197 voters who actually voted and that there were 22
excess ballots but rather, the number of voters who actually voted is only 105 out of 115 total registered

voters in this precinct and the excess ballots is zero. We, therefore, rule for the inclusion in the canvass of the
election returns for this precinct.
In the election returns for precinct 92-A, it was ruled excluded on the ground that one (1) vote is missing
therein, 153 voters having actually voted and private respondent Salalila received 152 votes while petitioner
got zero (0). We overrule. The fact that Salalila got one hundred fifty two (152) votes out of 153 voters who
actually voted while Ocampo got zero (0), does not necessarily mean that one (1) vote is missing. One (1)
voter in this precinct might have desisted from casting his vote for the mayor or may have voted but the vote
was not credited because it was stray or just illegible. But the missing vote cannot be a ground for exclusion.
Hence, We rule for the inclusion of the election returns in the canvass.
In the election returns for clustered precincts 93-A and 94-A, an examination of the returns shows that it is
complete with entries of the requisite data and that it had been signed by all the members of the board of
election inspectors. It also discloses that it is not true there was one hundred percent (100%) turn-out of
voters for this clustered precincts as there were only two hundred forty five (245) voters who actually voted
out of the two hundred seventy two (272) registered voters. Hence, there is nothing mysterious about the 27
excess but unused ballots found in the ballot box. Similarly, we saw no erasures or alteration on the face of
the election returns, specifically the portion showing the number of votes. If at all, there were superimposition
made on the faintly written names of the candidates to make the same easily readable. Such superimposition
on the names of candidates did not in any manner render the number of votes garnered by the candidates
subject to doubt as to bring the same within the realm of controversy. Moreover, We find intriguing the finding
that chairman of the board of election inspectors claimed that private respondent received 96 votes instead of
97 while petitioner received 4 votes yet the election returns states that petitioner received only three votes
instead of four. We find nothing in the records to support it. The election returns itself shows that Salalila
obtained two hundr4ed thirty six (236) votes while Ocampo got seven (7) votes. We, therefore, rule for the
inclusion in the canvass of said election returns.
In the election returns for clustered precincts 99-A and 100-A, and precinct 104-A, only formal defects are
present, there being no entries of the requisite data as to the number of registered voters in the precincts, the
actual number of votes cast, and the number of valid votes cast. However, the number of votes credited to the
petitioner/appellant and respondent/appellee as reflected by the taras show correctness of count. There were
no erasures or alteration as to put the same into question. We, therefore, likewise rule for the inclusion in the
canvass of this election returns.
In the election returns for precinct 105-A, it was ruled excluded because of alleged discrepancies in the
material data in that the total number of registered voters in the precinct is 141 while the total number of the
voters who actually voted is 121 but found out inside the ballot box were 144 valid ballots which is excess of
three (3) from the total number of registered voters for the precinct. The three (3) "excess" ballots are in
reality not excess ballots. The precinct ratio on ballot distribution adopted by the Commission in the 11 May
1998 elections is one (1) ballot for every registered voter plus four (4) ballots. At any rate, an examination of
the questioned election returns shows that the defects are only formal and not material as to warrant the
outright exclusion from canvass of the questioned election returns. The number of votes credited to
petitioner/appellant who got three (3) votes and private respondent/appellee who received one hundred
fifteen (15) votes was undisturbed and does not bear any sign of alteration as to put the result of the election
into question. We, therefore, likewise rule for the inclusion in the canvass of the election returns for this
precinct.12
Notably, the COMELEC en banc merely sustained the findings and rulings of the Municipal Board of Canvassers who, at
the first instance, found the contested election returns to be genuine and authentic and the objections to be without
merit. Moreover, the COMELEC en banc did not meet any opposition or dissent from any of the Commissioners who
have rendered the resolution13 reversing the decision of the MBC. This only goes to show that there was a painstaking
review and examination of the returns by the COMELEC en banc which does not warrant a different conclusion from
this Court.
That the election returns were obviously manufactured must be evident from the face of said documents. 14 In the
absence of a strong evidence establishing spuriousness of the returns, the basic rule that the election returns shall be
accorded prima facie status as bona fide reports of the results of the count of the votes for canvassing and
proclamation purposes must perforce prevail. 15 The COMELEC en banc did not find any signs of alterations or
tampering on the election returns nor did the petitioner present any hard evidence of such irregularity. The only thing
which we surmise came too close to such a change was the written superimposition made on the family names of the
candidates in the election returns of the clustered precincts 93-A and 94-A. This was certainly not an alteration or
tampering since the COMELEC en banc found that such superimposition was necessarily done in order to make the
names readable. Nonetheless, petitioner failed to deduce evidence to the contrary. The other thing which petitioner
considered the returns to be "obviously manufactured" was the fact that petitioner garnered zero (0) votes in three

(3) precincts which was allegedly statistically improbable. To this claim, the case of Sanki v. COMELEC16 is worth
reiterating:
. . . Indeed, the bare fact that candidates for public office had received zero votes is not enough to make the
returns statistically improbable. In the Lagumbay decision itself, Chief Justice Cesar Bengzon, who delivered
the majority opinion, did not say that when one candidate receives nothing in an election return, such a
circumstance alone will make said return statistically improbable. . . .
xxx

xxx

xxx

. . . we can not, with certainty, conclude from the facts before us that the returns questioned were "not true
returns of legal votes actually cast, but simply manufactured evidences of an attempt to defeat the popular
will.
To be sure, it cannot be said here as this Court did intimate in Lagumbay that respondent board of
canvassers may legally deny "prima facie recognition to such returns on the ground that they are manifestly
fabricated or falsified;" or that "the fraud is so palpable from the return itself (res ipsa loquitur the thing
speaks for itself)", such that "there is no reason to accept and give it prima facie value.
The factual background of this case suggests that we should not unduly expand the reach of the statistically
improbable doctrine carved out of the facts obtaining in Lagumbay. Rather, we should say that respondent
board of canvassers sustained by Comelec in refusing to reject canvass of the returns from the disputed
precincts, properly performed the functions allocated to it by law. It did well in not overstepping its authority. .
..
Anent the objection as to the omitted data in the election returns, a close reading of Section 234 of the Omnibus
Election Code shows that nothing in said provision provides for the exclusion of the election returns.
Moreover, such omitted data are merely formal defects and not so material as to affect the votes the candidates
obtained in the election. We find the case of Baterina vs. Commission on Elections17 similar to the case at bar, where
the Court elucidated that:
[T]he grounds raised by petitioners for the exclusion of the election returns from the canvassing, as stated in
their "Appeal Memorandum" before the COMELEC (Rollo, p. 92), refer to the failure to close the entries with
the signatures of the election inspectors; lack of inner and outer paper seals, canvassing by the BOARD of
copies not intended for it; lack of time and date of receipt by the BOARD of election returns; lack of signatures
of petitioners' watchers; and lack of authority of the person receiving the election returns.
While the aforesaid grounds may, indeed, involve a violation of the rules governing the preparation and
delivery of election returns for canvassing, they do not necessarily affect the authenticity and genuineness of
the subject election returns as to warrant their exclusion from the canvassing. The grounds for objection to
the election returns made by petitioner are clearly defects in form insufficient to support a conclusion that the
election returns were tampered with or spurious. "A conclusion that an election return is obviously
manufactured or false and consequently should be disregarded in the canvass must be approached with
extreme caution and only upon the most convincing proof. . . .
For as long as the election returns which on their face appear regular and wanting of any physical signs of tampering,
alteration or other similar vice, such election returns cannot just be unjustifiably excluded. To look beyond or behind
these returns is not a proper issue in a pre-proclamation controversy as in the case at bar.18
WHEREFORE, the petition for certiorari in G.R. No. 136282 is hereby DISMISSED for its failure to show grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of the Commission on Elections (COMELEC) in
rendering the assailed Resolution, dated November 19, 1998. G.R. No. 133470 is, likewise, DISMISSED. The
Temporary Restraining Order issued on December 15, 1998 is hereby LIFTED.1wphi1.nt
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Purisima, Buena, Gonzaga-Reyes,
Ynares-Santiago and De Leon, Jr., JJ., concur.
Pardo, J., took no part.
Footnotes

Rollo, p. 7.

Id., at 27-28.

Id., at 28.

Id., at 69.

Id., at 49-66.

Id., at 44-45.

Id., at 99-112.

Id., at 38.

Id., at 14.

10

Malonzo v. COMELEC, 269 SCRA 380 (1997).

11

Grego v. COMELEC, 274 SCRA 481 (1997).

12

Rollo, pp. 32-35.

13

Justice Pardo was appointed to the Supreme Court.

14

Dipatuan v. COMELEC, 185 SCRA 86 (1990).

15

Matalam v. COMELEC, 271 SCRA 733 (1997).

16

21 SCRA 1392 (1967).

17

205 SCRA 1 (1992).

18

Salih vs. COMELEC, 279 SCRA 19 (1997).

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 158830

August 10, 2004

ELLAN MARIE P. CIPRIANO, a minor represented by her father ROLANDO CIPRIANO, (AND OTHER YOUTH
OF THE LAND AFFECTED AND SIMILARLY SITUATED), petitioners,
vs.
COMMISSION ON ELECTIONS, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, Election Officer

LOPE GAYO, JR., 1st District, Pasay City, SANGGUNIANG BARANGAY thru its Chairman JOHNNY SANTIAGO
of Barangay 38, Pasay City, GREG PAOLO ALCERA in his capacity as SK Federation President of Pasay City,
EDNA TIBAR a minor assisted by parents, KRISTAL GALE BONGGO a minor assisted by parents, SK
Chairman RUEL TAYAM DECENA of Barangay 142, Pasay City, THE PRESIDENT OF THE PAMBANSANG
KATIPUNAN NG MGA SANGGUNIANG ABATAAN, and ALL SK OFFICERS AND YOUTH OF THE LAND
SIMILARLY SITUATED and THEIR AGENTS AND REPRESENTATIVES, respondents.
DECISION
PUNO, J.:
May the Commission on Elections (COMELEC), on its own, in the exercise of its power to enforce and administer
election laws, look into the qualifications of a candidate and cancel his certificate of candidacy on the ground that he
lacks the qualifications prescribed by law? This is the issue that needs to be resolved in this petition for certiorari filed
by Ellan Marie P. Cipriano, the duly elected SK Chairman of Barangay 38, Pasay City, whose certificate of candidacy
was cancelled by the COMELEC motu proprio on the ground that she was not a registered voter in the barangay where
she intended to run.
On June 7, 2002, petitioner filed with the COMELEC her certificate of candidacy as Chairman of the Sangguniang
Kabataan (SK) for the SK elections held on July 15, 2002. 1
On the date of the elections, July 15, 2002, the COMELEC issued Resolution No. 5363 adopting the recommendation of
the Commissions Law Department to deny due course to or cancel the certificates of candidacy of several candidates
for the SK elections, including petitioners. The ruling was based on the findings of the Law Department that petitioner
and all the other candidates affected by said resolution were not registered voters in the barangay where they
intended to run.2
Petitioner, nonetheless, was allowed to vote in the July 15 SK elections and her name was not deleted from the official
list of candidates. After the canvassing of votes, petitioner was proclaimed by the Barangay Board of Canvassers the
duly elected SK Chairman of Barangay 38, Pasay City.3 She took her oath of office on August 14, 2002. 4
On August 19, 2002, petitioner, after learning of Resolution No. 5363, filed with the COMELEC a motion for
reconsideration of said resolution. She argued that a certificate of candidacy may only be denied due course or
cancelled via an appropriate petition filed by any registered candidate for the same position under Section 78 of the
Omnibus Election Code in relation to Sections 5 and 7 of Republic Act (R.A.) No. 6646. According to petitioner, the
report of the Election Officer of Pasay City cannot be considered a petition under Section 78 of the Omnibus Election
Code, and the COMELEC cannot, by itself, deny due course to or cancel ones certificate of candidacy. Petitioner also
claimed that she was denied due process when her certificate of candidacy was cancelled by the Commission without
notice and hearing. Petitioner further argued that the COMELEC en banc did not have jurisdiction to act on the
cancellation of her certificate of candidacy on the first instance because it is the Division of the Commission that has
authority to decide election-related cases, including pre-proclamation controversies. Finally, she contended that she
may only be removed by a petition for quo warranto after her proclamation as duly-elected SK Chairman. 5
On October 7, 2002, the COMELEC issued Resolution No. 5781, 6 resolving petitioners motion for reconsideration. It
cited its previous resolution, Resolution No. 5584, in relation to Resolution No. 4801. The Commission stated in
Resolution No. 5584 its policy on proclaimed candidates found to be ineligible for not being registered voters in the
place where they were elected. It explained:
A portion of Resolution No. 5584 explained the procedure adopted by the Commission in denying due course
the certificate of candidacy of a candidate. It reads:
Under COMELEC Resolution No. 4801, Election Officers were given the duty to: (1) verify whether all
candidates for barangay and sangguniang kabataan positions are registered voters of the barangay
where they filed their certificates of candidacy; and (2) examine the entries of the certificates of
candidacy and determine on the basis of said entries whether the candidate concerned possesses all
the qualifications of a candidate.
Further, Election Officers are mandated to report by registered mail and by rush telegram to the Law
Department of this Commission the names of candidates who are not registered voters in the place
where they seek to run for public office within three (3) days from the last day for filing of certificates
of candidacy. The names of these candidates, however, shall still be included in the certified lists of
candidates until the Commission directs otherwise.

By virtue of the said report, the Law Department makes a recommendation to the Commission En
Banc, and the latter, by virtue of an En Banc Resolution either gives due course to or denies/cancels
the certificates of candidacy of the said candidates.
Verily, the administrative inquiry of the Commission on the eligibility of candidates starts from the time
they filed their certificates of candidacy. The candidates, by virtue of the publication of COMELEC
Resolution No. 4801 on May 25, 2002 in the Manila Standard and Manila Bulletin are deemed to have
constructive notice of the said administrative inquiry. Thus, the Commission, by virtue of its
administrative powers, may motu proprio deny/cancel the certificates of candidacy of candidates who
are found to be not registered voters in the place where they seek to run for public office.
Any registered candidate for the same office may also file a verified petition to deny due course to or
cancel a certificate of candidacy pursuant to Section 69 (nuisance candidate) or Sec. 78 (material
misrepresentation in the certificate of candidacy) of the Omnibus Election Code either personally or
through a duly authorized representative within five (5) days from the last day for filing of certificate
of candidacy directly with the Office of the Provincial Election Supervisor or with the Office of the
Election Officer concerned.
Hence, as long as the Election Officer reported the alleged ineligibility in accordance with COMELEC
Resolution No. 4801, or the petition to deny due course to or cancel a certificate of candidacy was filed
within the reglementary period, the fact that the Resolution of this Commission, denying due course to
or canceling the certificate of candidacy of an ineligible candidate, was not promulgated or did not
arrive prior to or on the day of the elections is therefore of no moment. The proclamation of an
ineligible candidate is not a bar to the exercise of this Commissions power to implement the said
Resolution of the Commission En Banc because it already acquired the jurisdiction to determine the
ineligibility of the candidates who filed their certificates of candidacy even before elections by virtue of
either the report of the Election Officer or the petition to deny due course to or cancel the certificate of
candidacy filed against them.
On the matter of petitions for disqualification, the provisions of COMELEC Resolution No. 4801 are
likewise clear: (1) A verified petition to disqualify a candidate on the ground of ineligibility or under
Section 68 of the Omnibus Election Code may be filed at anytime before proclamation of the winning
candidate by any registered voter or any candidate for the same office, (2) All disqualification cases
filed on the ground of ineligibility shall survive, although the candidate has already been proclaimed.
Clearly, by virtue of the above-quoted provisions, the proclamation of a candidate who is found to be
disqualified is also not a bar to the Commissions power to order a proclaimed candidate to cease and
desist from taking his oath of office or from assuming the position to which he was elected.
By way of contrast, in case of proclaimed candidates who were found to be ineligible only after they
were elected and proclaimed, the provisions of Section 253 of the Omnibus Election Code are clear:
The remedy of losing candidates is to file a petition for quo warranto before the metropolitan or
municipal trial court. This is logical The Commission did not acquire jurisdiction over these
proclaimed candidates prior to election (i.e., There was no report from the Election Officer regarding
their ineligibility and no petition to deny due course to or cancel certificate of candidacy and/or
petition for disqualification was filed against them.) Thus, the Commission has no jurisdiction to annul
their proclamation on the ground of ineligibility, except in cases wherein the proclamation is null and
void for being based on incomplete canvass.
Thus, the Commission ruled:
Premises considered, the Commission, RESOLVED, as it hereby RESOLVES, to establish a policy as follows:
ON PROCLAIMED CANDIDATES FOUND TO BE INELIGIBLE FOR BEING NOT REGISTERED VOTERS IN THE
PLACE WHERE THEY WERE ELECTED.
(a) For a proclaimed candidate whose certificate of candidacy was denied due course to or cancelled
by virtue of a Resolution of the Commission En Banc albeit such Resolution did not arrive on time.
1. To DIRECT the Election Officers concerned to implement the resolution of the Commission deleting
the name of the candidate whose certificate of candidacy was denied due course;

2. To DIRECT the candidate whose name was ordered deleted to cease and desist from taking his oath
of office or from assuming the position to which he was elected, unless a temporary restraining order
was issued by the Supreme Court; and
3. To RECONVENE the Board of Canvassers for the purpose of proclaiming the duly-elected candidates
and correcting the Certificate of Canvass of Proclamation. 7
The Commission further stated:
Considering that there are queries as to the status of the proclamation of disqualified candidates as an
offshoot of Resolution No. 5584, the same was amended by virtue of Resolution No. 5666, the dispositive
portion of which now reads:
Considering the above-quoted provision, the Commission RESOLVED, as it hereby RESOLVES, to
APPROVE the recommendation of Commissioner Sadain to amend Resolution No. 5584 promulgated on
10 August 2002 with modification.
Accordingly, Resolution No. 5584 shall now read as follows:
I
ON PROCLAIMED CANDIDATES FOUND TO BE INELIGIBLE FOR BEING NOT REGISTERED VOTERS IN THE
PLACE WHERE THEY WERE ELECTED XXX XXX
(a) xxx
(b) xxx
(c) xxx
(d) For both (a) and (b), in the event that the disqualified candidate is proclaimed the winner despite
his disqualification or despite the pending disqualification case filed before his proclamation, but which
is subsequently resolved against him, the proclamation of said disqualified candidate is hereby
declared void from the beginning, even if the dispositive portion of the resolution disqualifying him or
canceling his certificate of candidacy does not provide for such an annulment. 8
Hence, petitioner filed the instant petition seeking:
a) To declare illegal and unconstitutional the COMELEC Resolution No. 5363 promulgated on 15 July 2002 and
COMELEC Resolution No. 5781 promulgated on October 7, 2002 and any other COMELEC actions and
resolutions which are intended to summarily oust and remove petitioner as SK Chairman of Barangay 38,
Pasay City without any notice, inquiry, election protest, petition for quo warranto, investigation and hearing,
and therefore a clear violation of due process of law.
b) To declare illegal the aforesaid COMELEC Resolutions sitting en banc which does not have authority to
decide election related case, including pre-proclamation controversies, in the first instance, in consonance to
this Honorable Courts ruling in the cases of Sarmiento vs. COMELEC, G.R. No. 87308, August 29, 1989 and
Garvida vs. Sales, G.R. No. 124893, April 18, 1997.
c) To declare unconstitutional Sections 6 and 7 of R.A. 9164 and also to declare the age of membership and its
officers of the KK or SK organization from 15 to 21 years old in accordance with Sec. 39 (f) and Sec. 423 (b)
and other provisions of R.A. 7160 otherwise known as Local Government Code of 1991.
d) If Sections 6 and 7 of R.A. 9164 are sustained as constitutional to direct all SK Officers and Members who
are now more than 18 years old to cease and desist from continuously functioning as such SK Officers and
Members and to vacate their respective SK Officers position, as they are no longer members of the
Sangguniang Kabataan organization or Katipunan ng Kabataan organization for being over age upon attaining
the age of 18 years old.
e) To direct respondents to pay the salary, allowance and other benefits of the petitioner as SK Chairperson of
Barangay 38, Pasay City.9

Stripped of the non-essentials, the only issue in this case is the validity of Resolution No. 5363 of the COMELEC.
Petitioner argues that she was deprived of due process when the COMELEC issued Resolution No. 5363 canceling her
certificate of candidacy. She claims that the resolution was intended to oust her from her position as SK Chairman
without any appropriate action and proceedings.
The COMELEC, on the other hand, defends its resolution by invoking its administrative power to enforce and
administer election laws. Thus, in the exercise of such power, it may motu proprio deny or cancel the certificates of
candidacy of candidates who are found to be unqualified for the position they are seeking. The Commission further
contends that the publication of COMELEC Resolution No. 4801 governing the conduct of the Barangay and SK
elections in two newspapers of general circulation is sufficient notice to the candidates regarding the Commissions
administrative inquiry into their certificates of candidacy.
The petition is impressed with merit.
The COMELEC is an institution created by the Constitution to govern the conduct of elections and to ensure that the
electoral process is clean, honest, orderly, and peaceful. It is mandated to "enforce and administer all laws and
regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall." 10 As an independent
Constitutional Commission, it is clothed with the three powers of government - executive or administrative, legislative,
and quasi-judicial powers. The administrative powers of the COMELEC, for example, include the power to determine
the number and location of polling places, appoint election officials and inspectors, conduct registration of voters,
deputize law enforcement agencies and government instrumentalities to ensure free, orderly, honest, peaceful and
credible elections; register political parties, organization or coalitions, accredit citizens arms of the Commission,
prosecute election offenses, and recommend to the President the removal or imposition of any other disciplinary
action upon any officer or employee it has deputized for violation or disregard of its directive, order or decision. It also
has direct control and supervision over all personnel involved in the conduct of election. 11 Its legislative authority is
found in its power to promulgate rules and regulations implementing the provisions of the Omnibus Election Code or
other laws which the Commission is required to enforce and administer.12 The Constitution has also vested it with
quasi-judicial powers when it was granted exclusive original jurisdiction over all contests relating to the elections,
returns and qualifications of all elective regional, provincial and city officials; and appellate jurisdiction over all
contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective
barangay officials decided by trial courts of limited jurisdiction. 13
Aside from the powers vested by the Constitution, the Commission also exercises other powers expressly provided in
the Omnibus Election Code, one of which is the authority to deny due course to or to cancel a certificate of candidacy.
The exercise of such authority, however, must be in accordance with the conditions set by law.
The COMELEC asserts that it is authorized to motu proprio deny due course to or cancel a certificate of candidacy
based on its broad administrative power to enforce and administer all laws and regulations relative to the conduct of
elections.
We disagree. The Commission may not, by itself, without the proper proceedings, deny due course to or cancel a
certificate of candidacy filed in due form. When a candidate files his certificate of candidacy, the COMELEC has a
ministerial duty to receive and acknowledge its receipt. This is provided in Sec. 76 of the Omnibus Election Code,
thus:
Sec. 76. Ministerial duty of receiving and acknowledging receipt. - The Commission, provincial election
supervisor, election registrar or officer designated by the Commission or the board of election inspectors under
the succeeding section shall have the ministerial duty to receive and acknowledge receipt of the certificate of
candidacy.
The Court has ruled that the Commission has no discretion to give or not to give due course to petitioners certificate
of candidacy.14 The duty of the COMELEC to give due course to certificates of candidacy filed in due form is ministerial
in character. While the Commission may look into patent defects in the certificates, it may not go into matters not
appearing on their face. The question of eligibility or ineligibility of a candidate is thus beyond the usual and proper
cognizance of said body.15
Nonetheless, Section 78 of the Omnibus Election Code allows any person to file before the COMELEC a petition to deny
due course to or cancel a certificate of candidacy on the ground that any material representation therein is false. It
states:

Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. - A verified petition seeking to
deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground
that any material representation contained therein as required under Section 74 hereof is false. The petition
may be filed at any time not later than twenty-five days from the time of the filing of the certificate of
candidacy and shall be decided, after notice and hearing, not later than fifteen days before the election.
Under Rule 23 of the COMELEC Rules of Procedure, the petition shall be heard summarily after due notice.
It is therefore clear that the law mandates that the candidate must be notified of the petition against him and he
should be given the opportunity to present evidence in his behalf. This is the essence of due process. Due process
demands prior notice and hearing. Then after the hearing, it is also necessary that the tribunal shows substantial
evidence to support its ruling. In other words, due process requires that a party be given an opportunity to adduce his
evidence to support his side of the case and that the evidence should be considered in the adjudication of the case. 16
In a petition to deny due course to or cancel a certificate of candidacy, since the proceedings are required to be
summary, the parties may, after due notice, be required to submit their position papers together with affidavits,
counter-affidavits, and other documentary evidence in lieu of oral testimony. When there is a need for clarification of
certain matters, at the discretion of the Commission en banc or Division, the parties may be allowed to cross-examine
the affiants.17
Contrary to the submission of the COMELEC, the denial of due course or cancellation of ones certificate of candidacy is
not within the administrative powers of the Commission, but rather calls for the exercise of its quasi-judicial functions.
Administrative power is concerned with the work of applying policies and enforcing orders as determined by proper
governmental organs.18 We have earlier enumerated the scope of the Commissions administrative functions. On the
other hand, where a power rests in judgment or discretion, so that it is of judicial nature or character, but does not
involve the exercise of functions of a judge, or is conferred upon an officer other than a judicial officer, it is deemed
quasi-judicial.19
The determination whether a material representation in the certificate of candidacy is false or not, or the
determination whether a candidate is eligible for the position he is seeking involves a determination of fact where both
parties must be allowed to adduce evidence in support of their contentions. Because the resolution of such fact may
result to a deprivation of ones right to run for public office, or, as in this case, ones right to hold public office, it is
only proper and fair that the candidate concerned be notified of the proceedings against him and that he be given the
opportunity to refute the allegations against him. It should be stressed that it is not sufficient, as the COMELEC
claims, that the candidate be notified of the Commissions inquiry into the veracity of the contents of his certificate of
candidacy, but he must also be allowed to present his own evidence to prove that he possesses the qualifications for
the office he seeks.
In view of the foregoing discussion, we rule that Resolution No. 5363 and Resolution No. 5781, canceling petitioners
certificate of candidacy without proper proceedings, are tainted with grave abuse of discretion and therefore void.
We need not rule on the question raised by petitioner as regards the constitutionality of Sections 6 and 7 of Republic
Act No. 9164 lowering the age of membership in the SK as it is not the lis mota of this case.
IN VIEW WHEREOF, COMELEC Resolution No. 5363 promulgated on July 15, 2002 and COMELEC Resolution No.
5781 issued on October 7, 2002 are hereby SET ASIDE.
SO ORDERED.
Davide, Jr., C.J., Panganiban, Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-Morales,
Callejo, Sr., Azcuna, Tinga, and Chico-Nazario, JJ., concur.
Sandoval-Gutierrez, J., on leave.
Footnotes
1

Annex "E," Petition, Rollo, p. 73.

Annex "A," Petition, Rollo, pp. 53-56.

Annex "F," Petition, Rollo, p. 74.

Annex "G," Petition, Rollo, p. 75.

Annex "B," Petition, Rollo, pp. 57-62.

Annex "C," Petition, Rollo, pp. 63-71.

Rollo, pp. 67-69.

Rollo, p. 70.

Petition, Rollo, pp. 6-7.

10

Sec. 2 (1), Article IX C, 1987 Constitution.

11

Sec. 2, Article IX C, 1987 Constitution; Sandoval vs. Comelec, 323 SCRA 403 (2000).

12

Sec. 52(c), Omnibus Election Code.

13

Sec. 2 (2), Article IX C, 1087 Constitution.

14

Abcede vs. Hon. Imperial, 103 Phil. 136 (1958).

15

Sanchez vs. Del Rosario, 111 Phil. 733 (1961).

16

Sandoval vs. Comelec, supra.

17

Saya-ang, Sr. vs. COMELEC, et al., G.R. No. 155087, November 28, 2003.

18

Ople vs. Torres, 293 SCRA 150 (1998).

19

Sandoval vs. Comelec, supra.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 150605

December 10, 2002

EUFROCINO M. CODILLA, SR., petitioner,

vs.
HON. JOSE DE VENECIA, ROBERTO P. NAZARENO, in their official capacities as Speaker
and Secretary-General of the House of Representatives, respectively,
and MA. VICTORIA L. LOCSIN, respondents.

DECISION
PUNO, J.:
In a democracy, the first self-evident principle is that he who has been rejected by the people cannot represent the
people. Respondent Ma. Victoria L. Locsin lost to petitioner Eufrocino M. Codilla, Sr. by 17,903 votes in the May 14,
2001 elections as Representative of the 4th legislative district of Leyte. The most sophisticated legal alchemy cannot
justify her insistence that she should continue governing the people of Leyte against their will. The enforcement of the
sovereign will of the people is not subject to the discretion of any official of the land.
This is a Petition for Mandamus and Quo Warranto directed against respondents Speaker Jose De Venecia and
Secretary-General Roberto P. Nazareno of the House of Representatives to compel them to implement the decision of
the Commission on Elections en banc by (a) administering the oath of office to petitioner as the duly-elected
Representative of the 4th legislative district of Leyte, and (b) registering the name of the petitioner in the Roll of
Members of the House of Representatives, and against respondent Ma. Victoria L. Locsin for usurping, intruding into,
and unlawfully holding and exercising the said public office on the basis of a void proclamation.
The facts are uncontroverted. Petitioner and respondent Locsin were candidates for the position of Representative of
the 4th legislative district of Leyte during the May 14, 2001 elections. At that time, petitioner was the Mayor of Ormoc
City while respondent Locsin was the sitting Representative of the 4th legislative district of Leyte. On May 8, 2001,
one Josephine de la Cruz, a registered voter of Kananga, Leyte, filed directly with the COMELEC main office a Petition
for Disqualification 1 against the petitioner for indirectly soliciting votes from the registered voters of Kananga and
Matag-ob, Leyte, in violation of Section 68 (a) of the Omnibus Election Code. It was alleged that the petitioner used
the equipments and vehicles owned by the City Government of Ormoc to extract, haul and distribute gravel and sand
to the residents of Kananga and Matag-ob, Leyte, for the purpose of inducing, influencing or corrupting them to vote
for him. Attached to the petition are the (a) Affidavits of Basilio Bates, 2 Danilo D. Maglasang,3 Cesar A. Laurente;4 (b)
Joint Affidavit of Agripino C. Alferez and Rogelio T. Salvera; 5 (c) Extract Records from the Police Blotter executed by
Police Superintendent Elson G. Pecho;6 and (d) Photographs showing government dump trucks, haulers and surfacers
and portions of public roads allegedly filled-in and surfaced through the intercession of the respondent. 7 The case was
docketed as SPA No. 01-208 and assigned to the COMELEC's Second Division.
On May 10, 2001, the COMELEC Second Division issued an Order delegating the hearing and reception of evidence on
the disqualification case to the Office of the Regional Director of Region VIII.8 On May 11, 2001, the COMELEC Second
Division sent a telegram informing the petitioner that a disqualification case was filed against him and that the petition
was remanded to the Regional Election Director for investigation. 9
At the time of the elections on May 14, 2001, the Regional Election Director had yet to hear the
disqualification case. Consequently, petitioner was included in the list of candidates for district representative and
was voted for. The initial results showed that petitioner was the winning candidate.
On May 16, 2001, before the counting could be finished, respondent Locsin joined as intervenor in SPA No. 128 and
filed a "Most Urgent Motion to Suspend Proclamation of Respondent [herein petitioner]" with the COMELEC
Second Division.10 Respondent Locsin alleged that "the evidence on record against respondent is very strong and
unless rebutted remains." She urged the Commission to set the hearing of the disqualification case and prayed for the
suspension of the proclamation of the respondent "so as not to render the present disqualification case moot and
academic." A copy of the Motion was allegedly served on petitioner by registered mail but no registry
receipt was attached thereto.11
On May 18, 2001, respondent Locsin filed a "Second Most Urgent Motion to Suspend Proclamation of
Respondent" stating "there is clear and convincing evidence showing that the respondent is undoubtedly guilty of the
charges against him and this remains unrebutted by the respondent." A copy of the Motion was sent to the petitioner
and the corresponding registry receipt was attached to the pleading. 12 The records, however, do not show the date the
petitioner received the motion.
On the same day, May 18, 2001, the COMELEC Second Division issued an Ex-Parte Order13 directing the Provincial
Board of Canvassers of Leyte to suspend the proclamation of petitioner in case he obtains the highest number of votes
by reason of "the seriousness of the allegations in the petition for disqualification." 14 It also directed the Regional
Election Director to speed up the reception of evidence and to forward immediately the complete records together with
its recommendation to the Office of the Clerk of the Commission. 15 As a result, petitioner was not proclaimed as
winner even though the final election results showed that he garnered 71,350 votes as against respondent Locsin's
53,447 votes.16

At the time that the COMELEC Second Division issued its Order suspending his proclamation, the petitioner has yet to
be summoned to answer the petition for disqualification. Neither has said petition been set for hearing. It was only on
May 24, 2001 that petitioner was able to file an Answer to the petition for his disqualification with the Regional
Election Director, alleging that: (a) he has not received the summons together with the copy of the petition; (b) he
became aware of the matter only by virtue of the telegram sent by the COMELEC Second Division informing him that a
petition was filed against him and that the Regional Election Director was directed to investigate and receive evidence
therewith; and (c) he obtained a copy of the petition from the COMELEC Regional Office No. 8 at his own instance. 17
Petitioner further alleged that the maintenance, repair and rehabilitation of barangay roads in the municipalities of
Matag-ob and Kananga were undertaken without his authority, participation or directive as City Mayor of Ormoc. He
attached in his Answer the following: (a) Affidavit of Alex B. Borinaga; 18 (b) Copy of the Excerpt from the Minutes of
the Regular Session of Barangay Monterico;19 (c) Affidavit of Wilfredo A. Fiel;20 (d) Supplemental Affidavit of Wilfredo
A. Fiel;21 and (e) Affidavit of Arnel Y. Padayao.22
On May 25, 2001, petitioner filed a Motion to Lift Order of Suspension,23 alleging that (a) he did not receive a copy
of the Motion to Suspend his Proclamation and hence, was denied the right to rebut and refute the allegations in the
Motion; (b) that he did not receive a copy of the summons on the petition for disqualification and after personally
obtaining a copy of the petition, filed the requisite answer only on May 24, 2001; and (c) that he received the
telegraph Order of the COMELEC Second Division suspending his proclamation only on May 22, 2001. He attached
documentary evidence in support of his Motion to Lift the Suspension of his proclamation, and requested the setting of
a hearing on his Motion.24
On May 30, 2001, an oral argument was conducted on the petitioner's Motion and the parties were ordered to submit
their respective memoranda.25 On June 4, 2001, petitioner submitted his Memorandum 26 in support of his Motion
assailing the suspension of his proclamation on the grounds that: (a) he was not afforded due process; (b) the order
has no legal and factual basis; and (c) evidence of his guilt is patently inexistent for the purpose of suspending his
proclamation. He prayed that his proclamation as winning congressional candidate be expediently made, even while
the disqualification case against him continue upon due notice and hearing. He attached the following additional
evidence in his Memorandum: (a) Copy of certification issued by PNP Senior Inspector Benjamin T. Gorre; 27 (b)
Certification issued by Elena S. Aviles, City Budget Officer; 28 (c) Copy of certification issued by Wilfredo A. Fiel, City
Engineer of Ormoc;29 (d) Joint Affidavit of Antonio Patenio and Pepito Restituto; 30 and (e) Affidavits of Demetrio
Brion,31 Igmedio Rita32 and Gerardo Monteza.33 Respondent Locsin's memorandum also contained additional affidavits
of his witnesses.34
Petitioner's Motion to Lift the Order of Suspension, however, was not resolved. Instead, on June 14, 2001,
the COMELEC Second Division promulgated its Resolution 35 in SPA No. 01-208 which found the petitioner
guilty of indirect solicitation of votes and ordered his disqualification. It directed the "immediate proclamation of
the candidate who garnered the highest number of votes xxx." A copy of said Resolution was sent by fax to
the counsel of petitioner in Cebu City in the afternoon of the following day.36
By virtue of the said Resolution, the votes cast for petitioner, totaling 71,350, were declared stray even
before said Resolution could gain finality. On June 15, 2001, respondent Locsin was proclaimed as the duly
elected Representative of the 4th legislative district of Leyte by the Provincial Board of Canvassers of Leyte. It issued a
Certificate of Canvass of Votes and Proclamation of the Winning Candidates for Member of the House of
Representatives stating that "MA. VICTORIA LARRAZABAL LOCSIN obtained a total of FIFTY THREE THOUSAND FOUR
HUNDRED FORTY SEVEN (53,447) votes representing the highest number of votes legally cast in the legislative
district for said office."37 Respondent Locsin took her oath of office on June 18, 2001 and assumed office on
June 30, 2001.
On June 20, 2001, petitioner seasonably filed with the COMELEC en banc a Motion for Reconsideration 38 from
the June 14, 2001 Resolution of the COMELEC Second Division which ordered his disqualification, as well as an
Addendum to the Motion for Reconsideration. 39 Petitioner alleged in his Motion for Reconsideration that the COMELEC
Second Division erred: (1) in disqualifying petitioner on the basis solely of the dubious declaration of the witnesses
for respondent Locsin; (2) in adopting in toto the allegations of the witnesses for respondent Locsin; and (3) in
promulgating the resolution in violation of its own rules of procedure and in directing therein the immediate
proclamation of the second highest 'vote getter.' Respondent Locsin and her co-petitioner in SPA No. 01-208 filed a
joint Opposition to the Motion for Reconsideration. 40
On June 21, 2001, petitioner filed with the COMELEC en banc a Petition for Declaration of Nullity of
Proclamation,41 docketed as SPC No. 01-324, assailing the validity of the proclamation of respondent Locsin who
garnered only the second highest number of votes. Respondent Locsin filed her Answer alleging that: (1) the
Commission lost jurisdiction to hear and decide the case because of the proclamation of Locsin and that any question
on the "election, returns, and qualification" of Locsin can only be taken cognizance of by the House of Representatives
Electoral Tribunal (HRET); (2) the case should be filed and heard in the first instance by a Division of the Commission

and not directly by the Commission en banc; and (3) the proclamation of Locsin was valid because she received the
highest number of valid votes cast, the votes of Codilla being stray.
On June 28, 2001, petitioner filed an Urgent Manifestation42 stating that he was deprived of a fair hearing on the
disqualification case because while the documentary evidence adduced in his Memorandum was in support of
his Motion for the lifting of the suspension of his proclamation, the COMELEC Second Division instead
ruled on the main disqualification case. In consonance with his prayer that a full-dress hearing be conducted on
the disqualification case, he submitted Affidavits of additional witnesses 43 which he claims would refute and
substantially belie the allegations of petitioner's/intervenor's witnesses. A Reply,44 Rejoinder45 and Sur-Rejoinder46
were respectively filed by the parties. Consequently, the motion for reconsideration in SPA No. 01-208 and the petition
for declaration of nullity in SPC No. 01-324 were submitted for resolution.
From the records, it appears that initially, a "Resolution" penned by Commissioner Rufino S.B. Javier, dated July 24,
2001, was submitted to the Office of the Chairman, dismissing the petition for declaration of nullity for lack of
jurisdiction and denying the motion for reconsideration filed by petitioner Codilla. 47 Commissioners Florentino A.
Tuason, Jr. and Resurreccion Z. Borra submitted their respective dissenting opinions 48 to the Javier resolution. It bears
emphasis that Commissioner Tuason, Jr. was the ponente of the Resolution of the COMELEC Second Division which
ordered the disqualification of petitioner but after considering the additional evidence presented by the latter, he
concluded that the totality of the evidence was clearly in petitioner's favor. Equally worth mentioning is the fact that
Commissioner Ralph C. Lantion, who was the Presiding Commissioner of the Second Division, also dissented and voted
to grant Codilla's motion for reconsideration on the ground that "[T]he people of Leyte have spoken and I respect the
electorate's will. x x x." 49
On August 29, 2001, then COMELEC Chairman Alfredo L. Benipayo issued a "Vote and Opinion and Summary of Votes"
reversing the resolution of the Second Division and declaring the proclamation of respondent Locsin as
null and void. The dispositive portion reads:
"JUDGMENT
WHEREFORE, in view of all the foregoing considerations, I concur with Commissioner Resurreccion Z. Borra,
Commissioner Florentino A. Tuason, Jr. and Commissioner Ralph C. Lantion, in SPA No. 01-208, to GRANT the motion
for reconsideration and to REVERSE the resolution of the Commission (Second Division) promulgated on June 1, 2001,
disqualifying Codilla; and subsequently, in SPC No. 01-324, to GRANT the petition of Eufrocino M. Codilla, Sr., and
declare as null and void the proclamation of losing candidate Locsin.
Accordingly:
1. On the Motion for Reconsideration of the disqualification resolution against Codilla, promulgated by the
Commission (Second Division) on June 14, 2001 (SPA No. 01-208), I vote:
(a) to GRANT the Motion for Reconsideration of respondent-movant Eufrocino M. Codilla, Sr., and to
REVERSE the Resolution of the Commission (Second Division) promulgated on June 14, 2001, for
insufficiency of evidence;
(b) to lift the order of suspension of proclamation of petitioner Codilla, issued by the Commission
(Second Division) on May 18, 2001, having been issued without hearing and without any finding that
the evidence of guilt of petitioner Codilla is strong and, thus, null and void;
(c) to nullify the order contained in the Resolution of the Commission (Second Division) promulgated
on June 14, 2001, for "(t)he immediate proclamation of the candidate who garnered the highest
number of votes, to the exclusion of respondent" and the concurrent order for "the Provincial Board of
Canvasser (sic) of Leyte to immediately reconvene and thereafter proclaim forthwith the candidate
who obtained the highest number of votes counting out the Respondent" the same being violative of
election laws, established jurisprudence, and resolutions of the Commission;
(d) to nullify the ruling contained in the Resolution of the Commission (Second Division) promulgated
o June 14, 2001, that the votes of respondent Codilla are "considered stray and invalid" said ruling
being issued on the basis of an inapplicable decision, and contrary to established jurisprudence;
(e) to order the Provincial Board of Canvassers of Leyte, upon the finality of this resolution, to
reconvene and proclaim petitioner Codilla as the winning candidate for Representative of the Fourth

Legislative district of Leyte to comply with its ministerial duty to proclaim the candidate who garnered
the highest number of votes in the elections for that position; and
(f) to order intervenor-oppositor Locsin, upon the finality of this resolution, to vacate the office of
Representative of the House of Representatives representing the Fourth legislative district of Leyte
and, for this purpose, to inform the House of Representatives through the Honorable Speaker of this
resolution for its attention and guidance; and
2. On the petition for Declaration of Nullity of proclamation of respondent Ma. Victoria L. Locsin (SPC No. 01-324), I
vote:
(a) to GRANT the petition of Eufrocino M. Codilla, Sr., and declare as null and void the proclamation of losing
candidate Locsin, the proclamation being violative of election laws, established jurisprudence, and resolutions
of the Commission on Elections;
(b) to lift the order of suspension of proclamation of petitioner Codilla, issued by the Commission (Second
Division) on May 18, 2001, in SPA No. 01-208, having been issued without hearing and without any finding
that the evidence of guilt of petitioner Codilla is strong and, thus, null and void;
(c) to nullify the order contained in the Resolution of the Commission (Second Division) promulgated on June
14, 2001, in SPA No. 01-208, for "(t)he immediate proclamation of the candidate who garnered the highest
number of votes, to the exclusion of respondent" and the concurrent order for "the provincial Board of
Canvasser (sic) of Leyte to immediately reconvene and thereafter proclaim forthwith the candidate who
obtained the highest number of votes counting out the Respondent" the same being violative of election laws,
established jurisprudence, and resolutions of the Commission;
(d) to nullify the ruling contained in the Resolution of the Commission (Second Division) promulgated on June
14, 2001, in SPA No. 01-208, that the votes of respondent Codilla are "considered stray and invalid" said
ruling being issued on the basis of an inapplicable decision, and contrary to established jurisprudence;
(e) to order the provincial Board of Canvassers of Leyte, upon the finality of this resolution, to reconvene and
proclaim petitioner Codilla as the winning candidate for Representative of the Fourth legislative district of
Leyte he (sic) having garnered the highest number of votes in the elections for the position; and
(f) to order respondent Locsin, upon the finality of this resolution, to vacate the office of Representative of the
House of Representatives representing the Fourth Legislative district of Leyte and, for this purpose, to inform
the House of Representatives through the Honorable Speaker of this resolution for its attention and guidance.
Summary of Votes
Considering the FOUR (4) VOTES of the Chairman and Commissioners Resurreccion Z. Borra, Florentino A. Tuason, Jr.,
and Ralph C. Lantion, to grant the Motion for Reconsideration of Codilla and reverse the disqualification Resolution of
the Commission (Second Division) in SPA No. 01-208, promulgated on June 14, 2001, and as an inevitable
consequence, in voting to grant the petition for declaration of nullity of the proclamation of Ma. Victoria L. Locsin in
SPC No. 01-324, the verdict/opinion of the Chairman and the three (3) Commissioners taken together now stands, as
it is, the MAJORITY DECISION of the Commission En Banc in both cases; and the "Resolution" submitted by three (3)
Commissioners, namely, Commissioner Rufino S.B. Javier, Commissioner Luzviminda G. Tancangco, and Commissioner
Mehol K. Sadain, is considered, as it is, the MINORITY DECISION of the Commission En Banc in both cases.
The MAJORTIY DECISION was arrived at after proper consultation with those who joined the majority. The Chairman
and the three (3) Commissioners comprising the majority decided that no one will be assigned to write a Majority
Decision. Instead, each one will write his own separate opinion. Commissioners Borra, Tuason, Jr. and the undersigned
Chairman submitted separate opinions. Commissioner Lantion wrote an explanation on his vote." 50
The aforequoted judgment was adopted in a "Vote of Adoption" signed by Commissioners Ralph C. Lantion,
Resurreccion Z. Borra and Florentino A. Tuason, Jr.51
Respondent Locsin did not appeal from this decision annulling her proclamation. Instead, she filed a
"Comment and Manifestation" 52 with the COMELEC en banc questioning the procedure and the manner by which the
decision was issued. In addition, respondent Locsin requested and was issued an opinion by House of Representatives
Executive Director and Chief Legal Counsel Leonardo B. Palicte III declaring that the COMELEC has no jurisdiction to
nullify the proclamation of respondent Locsin after she had taken her oath and assumed office since it is the HRET

which is the sole judge of election, returns and qualifications of Members of the House. 53 Relying on this opinion,
respondent Locsin submitted a written privileged speech to the House during its regular session on September 4,
2001, where she declared that she will not only disregard but will openly defy and disobey the COMELEC en banc
resolution ordering her to vacate her position. 54
On September 6, 2001, the COMELEC en banc issued an Order 55 constituting the members of the Provincial Board of
Canvassers of Leyte to implement the aforesaid decision. It likewise ordered the Board to reconvene and "proclaim the
candidate who obtained the highest number of votes in the district, as the duly-elected Representative of the Fourth
Legislative district of Leyte, and accordingly issue a Certificate of Canvass and Proclamation of Winning Candidate for
Member of the House of Representatives x x x, based on the city/municipal certificates of canvass submitted
beforehand to the previous Provincial Board of Canvassers of Leyte x x x."
On September 12, 2001, petitioner Codilla was proclaimed by the Provincial Board of Canvassers as the dulyelected Representative of the 4th legislative district of Leyte, having obtained a total of 71,350 votes
representing the highest number of votes cast in the district. 56 On the same day, petitioner took his oath of office
before Executive Judge Fortunito L. Madrona of the Regional Trial Court of Ormoc City.57
On September 14, 2001, petitioner wrote the House of Representatives, thru respondent Speaker De Venecia,
informing the House of the August 29, 2001 COMELEC en banc resolution annulling the proclamation of respondent
Locsin, and proclaiming him as the duly-elected Representative of the 4th legislative district of Leyte. 58 Petitioner also
served notice that "I am assuming the duties and responsibilities as Representative of the fourth legislative district of
Leyte to which position I have been lawfully elected and proclaimed. On behalf of my constituents, I therefore expect
that all rights and privileges intended for the position of Representative of the fourth legislative district of Leyte be
accorded to me, including all physical facilities and staff support." On the basis of this letter, a Memorandum 59 dated
October 8, 2001 was issued by Legal Affairs Deputy Secretary-General Gaudencio A. Mendoza, Jr., for Speaker De
Venecia, stating that "there is no legal obstacle to complying with the duly promulgated and now final and executory
COMELEC Decision of August 29, 2001 x x x."
These notwithstanding, and despite receipt by the House of Representatives of a copy of the COMELEC en banc
resolution on September 20, 2001, 60 no action was taken by the House on the letter-appeal of petitioner. Hence,
petitioner sought the assistance of his party, LAKAS-NUCD-UMDP, which sent a letter 61 addressed to respondent
Speaker De Venecia, dated October 25, 2001, and signed by Party President Teofisto T. Guingona, Jr., SecretaryGeneral Heherson T. Alvarez, and Region VIII Party Chairman Sergio Antonio F. Apostol, requesting the House of
Representatives to act decisively on the matter in order that petitioner "can avail of whatever remedy is available
should their action remain unfavorable or otherwise undecisive."
In response, Speaker De Venecia sent a letter 62 dated October 30, 2001, stating that:
"We recognize the finality of the COMELEC decision and we are inclined to sustain it. However, Rep. Locsin has
officially notified the HOUSE in her privilege speech, inserted in the HOUSE Journal dated September 4, 2001, that she
shall 'openly defy and disobey' the COMELEC ruling. This ultimately means that implementing the decision would
result in the spectacle of having two (2) legislators occupying the same congressional seat, a legal situation, the only
consideration, that effectively deters the HOUSE's liberty to take action.
In this light, the accepted wisdom is that the implementation of the COMELEC decision is a matter that
can be best, and with finality, adjudicated by the Supreme Court, which, hopefully, shall act on it most
expeditiously." (emphases supplied)
Hence, the present petition for mandamus and quo warranto.
Petitioner submits that by virtue of the resolution of the COMELEC en banc which has become final and executory for
failure of respondent Locsin to appeal therefrom, it has become the ministerial duty: (1) of the Speaker of the House
of Representatives, as its Administrative Head and Presiding Officer, to implement the said resolution of the COMELEC
en banc by installing him as the duly-elected Representative of the 4th legislative district of Leyte; and (2) of the
Secretary-General, as official custodian of the records of the House, to formally register his name in the Roll of
Members of the House and delete the name of respondent Locsin therefrom. Petitioner further contends that
respondent Locsin has been usurping and unlawfully holding the public office of Representative of the 4th legislative
district of Leyte considering that her premature proclamation has been declared null and void by the COMELEC en
banc. He alleges that the action or inaction of public respondents has deprived him of his lawful right to assume the
office of Representative of the 4th legislative district of Leyte.

In his Comment,63 public respondent Speaker De Venecia alleged that mandamus will not lie to compel the
implementation of the COMELEC decision which is not merely a ministerial duty but one which requires the exercise of
discretion by the Speaker of the House considering that: (1) it affects the membership of the House; and (2) there is
nothing in the Rules of the House of Representatives which imposes a duty on the House Speaker to implement a
COMELEC decision that unseats an incumbent House member.
In his Comment,64 public respondent Secretary-General Nazareno alleged that in reading the name of respondent
Locsin during the roll call, and in allowing her to take her oath before the Speaker-elect and sit as Member of the
House during the Joint Session of Congress, he was merely performing official acts in compliance with the opinions 65
rendered by House of Representatives Chief Counsel and Executive Director Leonardo C. Palicte III stating that the
COMELEC has no jurisdiction to declare the proclamation of respondent Locsin as null and void since it is the HRET
which is the sole judge of all election, returns and qualifications of Members of the House. He also contends that the
determination of who will sit as Member of the House of Representatives is not a ministerial function and cannot, thus,
be compelled by mandamus.
Respondent Locsin, in her Comment,66 alleged that the Supreme Court has no original jurisdiction over an action for
quo warranto involving a member of the House of Representatives for under Section 17, Article VI of the Constitution
it is the HRET which is the sole judge of all contests relating to the election, returns and qualifications of Members of
the House of Representatives. She likewise asserts that this Court cannot issue the writ of mandamus against a coequal legislative department without grossly violating the principle of separation of powers. She contends that the act
of recognizing who should be seated as a bona fide member of the House of Representatives is not a ministerial
function but a legislative prerogative, the performance of which cannot be compelled by mandamus. Moreover, the
prayer for a writ of mandamus cannot be directed against the Speaker and Secretary-General because they do not
have the authority to enforce and implement the resolution of the COMELEC.
Additionally, respondent Locsin urges that the resolution of the COMELEC en banc is null and void for lack of
jurisdiction. First, it should have dismissed the case pending before it after her proclamation and after she had taken
her oath of office. Jurisdiction then was vested in the HRET to unseat and remove a Member of the House of
Representatives. Second, the petition for declaration of nullity is clearly a pre-proclamation controversy and the
COMELEC en banc has no original jurisdiction to hear and decide a pre-proclamation controversy. It must first be
heard by a COMELEC Division. Third, the questioned decision is actually a "hodge-podge" decision because of the
peculiar manner in which the COMELEC disposed of the case.
Finally, respondent Locsin asserts that the matter of her qualification and eligibility has been categorically affirmed by
the HRET when it dismissed the quo warranto case filed against her, docketed as HRET Case No. 01-043, entitled
"Paciano Travero vs. Ma. Victoria Locsin," on the ground that "the allegations stated therein are not proper
grounds for a petition for quo warranto against a Member of the House of Representatives under section 253 of the
Omnibus Election Code and Rule 17 of the HRET Rules, and that the petition was filed late." 67
In his Reply,68 petitioner asserts that the remedy of respondent Locsin from the COMELEC decision was to file a
petition for certiorari with the Supreme Court, not to seek an opinion from the Chief Legal Counsel of the House of
Representatives; that the HRET has no jurisdiction over a petition for declaration of nullity of proclamation which is
based not on ineligibility or disloyalty, but by reason that the candidate proclaimed as winner did not obtain the
highest number of votes; that the petition for annulment of proclamation is a pre-proclamation controversy and,
hence, falls within the exclusive jurisdiction of the COMELEC pursuant to section 242 of B.P. Blg. 881 69 and section 3,
Article IX (C) of the Constitution; that respondent Speaker De Venecia himself recognizes the finality of the COMELEC
decision but has decided to refer the matter to the Supreme Court for adjudication; that the enforcement and
implementation of a final decision of the COMELEC involves a ministerial act and does not encroach on the legislative
power of Congress; and that the power to determine who will sit as Member of the House does not involve an exercise
of legislative power but is vested in the sovereign will of the electorate.
The core issues in this case are: (a) whether the proclamation of respondent Locsin by the COMELEC Second Division
is valid; (b) whether said proclamation divested the COMELEC en banc of jurisdiction to review its validity; and (c)
assuming the invalidity of said proclamation, whether it is the ministerial duty of the public respondents to recognize
petitioner Codilla, Sr. as the legally elected Representative of the 4th legislative district of Leyte vice respondent
Locsin.
I
Whether the proclamation of respondent Locsin is valid.
After carefully reviewing the records of this case, we find that the proclamation of respondent Locsin is null and void
for the following reasons:

First. The petitioner was denied due process during the entire proceedings leading to the proclamation of
respondent Locsin.
COMELEC Resolution Nos. 340270 sets the procedure for disqualification cases pursuant to section 68 of the Omnibus
Election Code, viz:
"C. PETITION TO DISQUALIFY A CANDIDATE PURSUANT TO SEC. 68 OF THE OMNIBUS ELECTION CODE AND
PETITION TO DISQUALIFY FOR LACK OF QUALIFICATIONS OR POSSESSING SAME GROUNDS FOR DISQUALIFICATION
(1) The verified petition to disqualify a candidate pursuant to Sec. 68 of the Omnibus Election Code and the
verified petition to disqualify a candidate for lack of qualifications or possessing same grounds for
disqualification, may be filed any day after the last day for filing of certificates of candidacy but not later than
the date of proclamation.
(2) The petition to disqualify a candidate pursuant to Sec. 68 of the Omnibus Election Code shall be filed in ten
(10) legible copies by any citizen of voting age, or duly registered political party, organization or coalition of
political parties against any candidate who in an action or protest in which he is a party is declared by final
decision of a competent court guilty of, or found by the Commission of:
2.a having given money or other material consideration to influence, induce or corrupt the voters or
public officials performing electoral functions;
2.b having committed acts of terrorism to enhance his candidacy;
2.c having spent in his election campaign an amount in excess of that allowed by the Omnibus Election
Code;
2.d having solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and
104 of the Omnibus Election Code;
2.e having violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6 of the Omnibus Election Code, shall be disqualified from continuing as a candidate, or if
he has been elected, from holding the office.
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(4) Upon payment of the filing fee of P1,000.00 and legal research fee of P20.00, the offices concerned shall
docket the petition and assign to it a docket number which must be consecutive, according to the order of
receipt and must bear the year and prefixed as SPA with the corresponding initial of the name of the office,
i.e. SPA (RED) No. C01-001; SPA (PES) No. C01-001;
(5) Within three (3) days from filing of the petitions, the offices concerned shall issue summons to the
respondent candidate together with a copy of the petition and its enclosures, if any;
(6) The respondent shall be given three (3) days from receipt of summons within which to file his verified
answer (not a motion to dismiss) to the petition in ten (10) legible copies, serving a copy thereof upon the
petitioner. Grounds for Motion to Dismiss may be raised as an affirmative defense;
(7) The proceeding shall be summary in nature. In lieu of the testimonies, the parties shall submit their
affidavits or counter-affidavits and other documentary evidences including their position paper;
(8) The hearing must be completed within ten (10) days from the date of the filing of the answer. The hearing
officer concerned shall submit to the Clerk of the Commission through the fastest means of communication,
his findings, reports and recommendations within five (5) days from the completion of the hearing and
reception of evidence together with the complete records of the case;
(9) Upon receipt of the records of the case of the findings, reports and recommendation of the hearing officer
concerned, the Clerk of the Commission shall immediately docket the case consecutively and calendar the
same for raffle to a division;

(10) The division to whom the case is raffled, shall after consultation, assign the same to a member who shall
pen the decision, within five (5) days from the date of consultation."
Resolution No. 3402 clearly requires the COMELEC, through the Regional Election Director, to issue summons to the
respondent candidate together with a copy of the petition and its enclosures, if any, within three (3) days from the
filing of the petition for disqualification. Undoubtedly, this is to afford the respondent candidate the opportunity to
answer the allegations in the petition and hear his side. To ensure compliance with this requirement, the COMELEC
Rules of Procedure requires the return of the summons together with the proof of service to the Clerk of Court of the
COMELEC when service has been completed, viz:
"Rule 14. Summons
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Section 5. Return.- When the service has been completed by personal service, the server shall give notice thereof, by
registered mail, to the protestant or his counsel and shall return the summons to the Clerk of Court concerned who
issued it, accompanied with the proof of service.
Section 6. Proof of Service.- Proof of service of summons shall be made in the manner provided for in the Rules of
Court in the Philippines."
Thereafter, hearings, to be completed within ten (10) days from the filing of the Answer, must be conducted. The
hearing officer is required to submit to the Clerk of the Commission his findings, reports and recommendations within
five (5) days from the completion of the hearing and reception of evidence together with the complete records of the
case.
(a) Petitioner was not notified of the petition for his disqualification through the service of summons nor
of the Motions to suspend his proclamation.
The records of the case do not show that summons was served on the petitioner. They do not contain a copy of the
summons allegedly served on the petitioner and its corresponding proof of service. Furthermore, private respondent
never rebutted petitioner's repeated assertion that he was not properly notified of the petition for his disqualification
because he never received summons.71 Petitioner claims that prior to receiving a telegraphed Order from the
COMELEC Second Division on May 22, 2001, directing the District Board of Canvassers to suspend his proclamation,
he was never summoned nor furnished a copy of the petition for his disqualification. He was able to obtain a copy of
the petition and the May 22 Order of the COMELEC Second Division by personally going to the COMELEC Regional
Office on May 23, 2001. Thus, he was able to file his Answer to the disqualification case only on May 24, 2001.
More, the proclamation of the petitioner was suspended in gross violation of section 72 of the Omnibus Election Code
which provides:
"Sec. 72. Effects of disqualification cases and priority.- The Commission and the courts shall give priority to cases of
disqualification by reason of violation of this Act to the end that a final decision shall be rendered not later than
seven days before the election in which the disqualification is sought.
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. Nevertheless, 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, his violation of the provisions of the preceding sections shall not prevent his proclamation and
assumption to office." (emphases supplied)
In the instant case, petitioner has not been disqualified by final judgment when the elections were conducted on May
14, 2001. The Regional Election Director has yet to conduct hearing on the petition for his disqualification. After the
elections, petitioner was voted in office by a wide margin of 17,903. On May 16, 2001, however, respondent Locsin
filed a Most Urgent Motion for the suspension of petitioner's proclamation. The Most Urgent Motion contained a
statement to the effect that a copy was served to the petitioner through registered mail. The records reveal that no
registry receipt was attached to prove such service. 72 This violates COMELEC Rules of Procedure requiring notice and
service of the motion to all parties, viz:
"Section 4. Notice.- Notice of a motion shall be served by the movant to all parties concerned, at least three (3) days
before the hearing thereof, together with a copy of the motion. For good cause shown, the motion may be heard on
shorter notice, especially on matters which the Commission or the Division may dispose of on its own motion.

The notice shall be directed to the parties concerned and shall state the time and place of the hearing of the motion.
Section 5. Proof of Service.- No motion shall be acted upon by the Commission without proof of service of notice
thereof, except when the Commission or a Division is satisfied that the rights of the adverse party or parties are not
affected."
Respondent's Most Urgent Motion does not fall under the exceptions to notice and service of motions. First, the
suspension of proclamation of a winning candidate is not a matter which the COMELEC Second Division can dispose of
motu proprio. Section 6 of R.A. No. 664673 requires that the suspension must be "upon motion by the complainant or
any intervenor", viz:
"Section 6. Effect 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 (COMELEC) shall continue with the trial or 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." (emphases supplied)
Second, the right of an adverse party, in this case, the petitioner, is clearly affected. Given the lack of service of the
Most Urgent Motion to the petitioner, said Motion is a mere scrap of paper.74 It cannot be acted upon by the COMELEC
Second Division.
On May 18, 2001 at exactly 5:00 p.m.,75 respondent Locsin filed a Second Most Urgent Motion for the suspension of
petitioner's proclamation. Petitioner was served a copy of the Second Motion again by registered mail. A registry
receipt76 was attached evidencing service of the Second Most Urgent Motion to the petitioner but it does not appear
when the petitioner received a copy thereof. That same day, the COMELEC Second Division issued an Order
suspending the proclamation of petitioner. Clearly, the petitioner was not given any opportunity to contest the
allegations contained in the petition for disqualification. The Order was issued on the very same day the Second Most
Urgent Motion was filed. The petitioner could not have received the Second Most Urgent Motion, let alone answer the
same on time as he was served a copy thereof by registered mail.
Under section 6 of R.A. No. 6646, the COMELEC can suspend proclamation only when evidence of the winning
candidate's guilt is strong. In the case at bar, the COMELEC Second Division did not make any specific finding
that evidence of petitioner's guilt is strong. Its only basis in suspending the proclamation of the petitioner is the
"seriousness of the allegations" in the petition for disqualification. Pertinent portion of the Order reads:
"Without giving due course to the petition xxx the Commission (2 nd Division), pursuant to Section 72 of the Omnibus
Election Code in relation to Section 6, Republic Act No. 6646 xxx and considering the serious allegations in the
petition, hereby directs the Provincial Board of Canvassers of Leyte to suspend the proclamation of
respondent, if winning, until further orders."77 (emphases supplied)
We hold that absent any finding that the evidence on the guilt of the petitioner is strong, the COMELEC Second
Division gravely abused its power when it suspended his proclamation.
(b) The COMELEC Second Division did not give ample opportunity to the petitioner to adduce evidence in
support of his defense in the petition for his disqualification.
All throughout the proceeding, no hearing was conducted on the petition for disqualification in gross violation of
section 6 of R.A. No. 6646 which specifically enjoins the COMELEC to "continue with the trial or hearing of the
action, inquiry, or protest." This is also in violation of COMELEC Resolution No. 3402 requiring the Regional Election
Director to complete the hearing and reception of evidence within ten (10) days from the filing of the Answer,
and to submit his findings, reports, and recommendations within the five (5) days from completion of the hearing and
the reception of evidence.
Petitioner filed a Motion to Lift the Order of Suspension of his proclamation on May 25, 2001. Although an oral
argument on this Motion was held, and the parties were allowed to file their respective memoranda, the Motion was
not acted upon. Instead, the COMELEC Second Division issued a Resolution on the petition for disqualification against
the petitioner. It was based on the following evidence: (a) the affidavits attached to the Petition for Disqualification;
(b) the affidavits attached to the Answer; and (c) the respective memoranda of the parties.

On this score, it bears emphasis that the hearing for Motion to Lift the Order of Suspension cannot be substituted for
the hearing in the disqualification case. Although intrinsically linked, it is not to be supposed that the evidence of the
parties in the main disqualification case are the same as those in the Motion to Lift the Order of Suspension. The
parties may have other evidence which they may deem proper to present only on the hearing for the disqualification
case. Also, there may be evidence which are unavailable during the hearing for the Motion to Lift the Order of
Suspension but which may be available during the hearing for the disqualification case.
In the case at bar, petitioner asserts that he submitted his Memorandum merely to support his Motion to Lift the Order
of Suspension. It was not intended to answer and refute the disqualification case against him. This submission was
sustained by the COMELEC en banc. Hence, the members of the COMELEC en banc concluded, upon consideration of
the additional affidavits attached in his Urgent Manifestation, that the evidence to disqualify the petitioner was
insufficient. More specifically, the ponente of the challenged Resolution of the COMELEC Second Division held:
"Indeed, I find from the records that the May 30, 2001 hearing of the COMELEC (Second Division) concerns only the
incident relating to the Motion to Lift Order of Suspension of Proclamation. It also appears that the order for the
submission of the parties' respective memoranda was in lieu of the parties' oral argument on the motion. This would
explain the fact that Codilla's Memorandum refers mainly to the validity of the issuance of the order of suspension of
proclamation. There is, however, no record of any hearing on the urgent motion for the suspension of proclamation.
Indeed, it was only upon the filing of the Urgent Manifestation by Codilla that the Members of the
Commission (Second Division) and other Members of the Commission en banc had the opportunity to
consider Codilla's affidavits. This time, Codilla was able to present his side, thus, completing the
presentation of evidentiary documents from both sides." 78 (emphases supplied)
Indeed, careful reading of the petitioner's Memorandum shows that he confined his arguments in support of his Motion
to Lift the Order of Suspension. In said Memorandum, petitioner raised the following issues: (a) he was utterly
deprived of procedural due process, and consequently, the order suspending his proclamation is null and void; (b) the
said order of suspension of proclamation has no legal and factual basis; and (c) evidence of guilt on his part is
patently inexistent for the purpose of directing the suspension of his proclamation. 79 He urged the COMELEC Second
Division to conduct a full dress hearing on the main disqualification case should the suspension be lifted. 80
(c) the Resolution of the COMELEC Second Division disqualifying the petitioner is not based on substantial
evidence.
The Resolution of the COMELEC Second Division cannot be considered to be based on substantial evidence. It relied
merely on affidavits of witnesses attached to the petition for disqualification. As stressed, the COMELEC Second
Division gave credence to the affidavits without hearing the affiants. In reversing said Resolution, the COMELEC en
banc correctly observed:
"Lacking evidence of Codilla, the Commission (Second Division) made its decisions based mainly on the allegation of
the petitioner and the supporting affidavits. With this lopsided evidence at hand, the result was predictable. The
Commission (Second Division) had no choice. Codilla was disqualified." 81
Worse, the Resolution of the COMELEC Second Division, even without the evidence coming from the petitioner, failed
to prove the gravamen of the offense for which he was charged. 82
Petitioner allegedly violated section 68 (a) of the Omnibus Election Code which reads:
"Section 68. Disqualifications.- Any candidate who, in action or protest in which he is a party is declared by final
decision of a competent court guilty of, or found by the Commission of having (a) given money or other material
consideration to influence, induce or corrupt the voters or public officials performing official functions, xxx shall be
disqualified from continuing as candidate, or if he has been elected, from holding office"
To be disqualified under the above-quoted provision, the following elements must be proved: (a) the candidate,
personally or through his instructions, must have given money or other material consideration; and (b) the act of
giving money or other material consideration must be for the purpose of influencing, inducing, or corrupting the voters
or public officials performing electoral functions.
In the case at bar, the petition for disqualification alleged that (a) petitioner ordered the extraction, hauling and
distribution of gravel and sand, and (b) his purpose was to induce and influence the voters of Kananga and Matag-ob,
Leyte to vote for him. Pertinent portion of the petition reads:

"[T]he respondent [herein petitioner], within the election period, took advantage of his current elective position as
City Mayor of Ormoc City by illegally and unlawfully using during the prohibited period, public equipments and vehicles
belonging to and owned by the City Government of Ormoc City in extracting, hauling and distributing gravel and sand
to the residents and voters of the Municipalities of Kananga and Matag-ob Leyte, well within the territorial limits of the
4th Congressional District of Leyte, which acts were executed without period, and clearly for the illicit purpose of
unduly inducing or directly corrupting various voters of Kananga and Matag-ob, within the 4th legislative district of
Leyte, for the precise purpose of inducing and influencing the voters/beneficiaries of Kananga and Matag-ob, Leyte to
cast their votes for said respondent." 83
The affidavits relied upon by the COMELEC Second Division failed to prove these allegations. For instance, Cesar A.
Laurente merely stated that he saw three (3) ten-wheeler dump trucks and a Hyundai Payloader with the markings
"Ormoc City Government" extracting and hauling sand and gravel from the riverbed adjacent to the property owned
by the Codilla family.84
Agripino C. Alferez and Rogelio T. Sulvera in their Joint Affidavit merely stated that they saw white trucks owned by
the City Government of Ormoc dumping gravel and sand on the road of Purok 6, San Vicente, Matag-ob, Leyte. A
payloader then scattered the sand and gravel unloaded by the white trucks. 85
On the other hand, Danilo D. Maglasang, a temporary employee of the City Government of Ormoc assigned to check
and record the delivery of sand and gravel for the different barangays in Ormoc, stated as follows:
"3. That on April 20, 2001, I was ordered by Engr. Arnel Padayo, an employee of the City Engineering Office, Ormoc
City to go to Tagaytay, Kangga (sic), Leyte as that will be the source of the sand and gravel. I inquired why we had to
go to Kananga but Engr. Padayao said that it's not a problem as it was Mayor Eufrocino M. Codilla, Sr. who ordered
this and the property is owned by the family of Mayor Codilla. We were to deliver sand and gravel to whoever requests
from Mayor Codilla."86
Similarly, the Affidavit of Basilio Bates cannot prove the offense charged against the petitioner. He alleged that on
April 18, 2001, a white truck with the marking "City Government of Ormoc" came to his lot at Montebello, Kananga,
Leyte and unloaded mixed sand and that the driver of the truck told him to "vote for Codilla as a (sic) congressman
during election."87 His statement is hearsay. He has no personal knowledge of the supposed order of the petitioner to
distribute gravel and sand for the purpose of inducing the voters to vote for him. The same could be said about the
affidavits of Randy T. Merin,88 Alfredo C. De la Pea,89 Miguel P. Pandac,90 Paquito Bregeldo, Cristeta Alferez , Glicerio
Rios,91 Romulo Alkuino, Sr.,92 Abner Casas,93 Rita Trangia,94 and Judith Erispe95 attached to respondent Locsin's
Memorandum on the Motion to Lift the Suspension of Proclamation.
Also valueless are the affidavits of other witnesses96 of respondent Locsin, all similarly worded, which alleged that the
petitioner ordered the repair of the road in Purok 6, Barangay San Vicente, Matag-ob, Leyte and the flattening of the
area where the cockfights were to be held. These allegations are extraneous to the charge in the petition for
disqualification. More importantly, these allegations do not constitute a ground to disqualify the petitioner based on
section 68 of the Omnibus Election Code.
To be sure, the petition for disqualification also ascribed other election offenses against the petitioner, particularly
section 261 of the Omnibus Election Code, viz:
"Section 261. Prohibited Acts.- The following shall be guilty of an election offense:
(a) Vote-buying and vote-selling.- (1) Any person who gives, offers or promises money or anything of value,
gives or promises any office or employment, franchise or grant, public or private, or make or offers to make
an expenditure, directly or indirectly, or cause an expenditure to be made to any person, association,
corporation, entity or community in order to induce anyone or the public in general, to vote for or against any
candidate or withhold his vote in the election, or to vote for or against any aspirant for the nomination or
choice of a candidate in a convention or similar selection process of a political party.
xxxxxxxxx
(o) Use of public funds, money deposited in trust, equipment, facilities owned or controlled by the government
for an election campaign.- Any person who uses under any guise whatsoever directly or indirectly, xxx (3) any
equipment, vehicle, facility, apparatus, or paraphernalia owned by the government or by its political
subdivisions, agencies including government-owned or controlled corporations, or by the Armed Forces of the
Philippines for any election campaign or for any partisan political activity x x x."

However, the jurisdiction of the COMELEC to disqualify candidates is limited to those enumerated in section 68
of the Omnibus Election Code. All other election offenses are beyond the ambit of COMELEC jurisdiction. 97
They are criminal and not administrative in nature. Pursuant to sections 265 and 268 of the Omnibus Election
Code, the power of the COMELEC is confined to the conduct of preliminary investigation on the alleged election
offenses for the purpose of prosecuting the alleged offenders before the regular courts of justice, viz:
"Section 265. Prosecution.- The Commission shall, through its duly authorized legal officers, have the
exclusive power to conduct preliminary investigation of all election offenses punishable under this Code, and to
prosecute the same. The Commission may avail of the assistance of other prosecuting arms of the
government: Provided, however, That in the event that the Commission fails to act on any complaint within
four months from his filing, the complainant may file the complaint with the office of the fiscal or with the
Ministry of Justice for proper investigation and prosecution, if warranted.
xxxxxxxxx
Section 268. Jurisdiction.- The regional trial court shall have the exclusive original jurisdiction to try and decide any
criminal action or proceeding for violation of this Code, except those relating to the offense of failure to register or
failure to vote which shall be under the jurisdictions of metropolitan or municipal trial courts. From the decision of the
courts, appeal will lie as in other criminal cases."
The COMELEC Second Division grievously erred when it decided the disqualification case based on section 261 (a) and
(o), and not on section 68 of the Omnibus Election Code.
(d) Exclusion of the votes in favor of the petitioner and the proclamation of respondent Locsin was done
with undue haste.
The COMELEC Second Division ordered the exclusion of the votes cast in favor of the petitioner, and the proclamation
of the respondent Locsin, without affording the petitioner the opportunity to challenge the same. In the morning of
June 15, 2001, the Provincial Board of Canvassers convened, and on the strength of the said Resolution excluding the
votes received by the petitioner, certified that respondent Locsin received the highest number of votes. On this basis,
respondent Locsin was proclaimed.
Records reveal that the petitioner received notice of the Resolution of the COMELEC Second Division only through his
counsel via a facsimile message in the afternoon of June 15, 2001 98 when everything was already fait accompli.
Undoubtedly, he was not able to contest the issuance of the Certificate of Canvass and the proclamation of respondent
Locsin. This is plain and simple denial of due process.
The essence of due process is the opportunity to be heard. When a party is deprived of that basic fairness, any
decision by any tribunal in prejudice of his rights is void.
Second. The votes cast in favor of the petitioner cannot be considered "stray" and respondent cannot be
validly proclaimed on that basis.
The Resolution of the COMELEC Second Division in SPA No. 01-208 contains two dispositions: (1) it ruled that the
petitioner was disqualified as a candidate for the position of Congressman of the Fourth District of Leyte; and (2) it
ordered the immediate proclamation of the candidate who garnered the highest number of votes, to the exclusion of
the respondent [herein petitioner].
As previously stated, the disqualification of the petitioner is null and void for being violative of due process and for
want of substantial factual basis. Even assuming, however, that the petitioner was validly disqualified, it is still
improper for the COMELEC Second Division to order the immediate exclusion of votes cast for the petitioner as stray,
and on this basis, proclaim the respondent as having garnered the next highest number of votes.
(a) The order of disqualification is not yet final, hence, the votes cast in favor of the petitioner cannot be
considered "stray."
Section 6 of R.A. No. 6646 and section 72 of the Omnibus Election Code require a final judgment before the
election for the votes of a disqualified candidate to be considered "stray." Hence, when a candidate has not yet been
disqualified by final judgment during the election day and was voted for, the votes cast in his favor cannot be
declared stray. To do so would amount to disenfranchising the electorate in whom sovereignty resides. 99 For in voting
for a candidate who has not been disqualified by final judgment during the election day, the people voted for him bona

fide, without any intention to misapply their franchise, and in the honest belief that the candidate was then qualified
to be the person to whom they would entrust the exercise of the powers of government. 100
This principle applies with greater force in the case at bar considering that the petitioner has not been declared by
final judgment to be disqualified not only before but even after the elections. The Resolution of the COMELEC
Second Division disqualifying the petitioner did not attain finality, and hence, could not be executed, because of the
timely filing of a Motion for Reconsideration. Section 13, Rule 18 of the COMELEC Rules of Procedure on Finality of
Decisions and Resolutions reads:
"Sec. 13. Finality of Decisions or Resolutions.- (a) In ordinary actions, special proceedings, provisional remedies and
special reliefs, a decision or resolution of the Commission en banc shall become final and executory after thirty (30)
days from its promulgation.
(b) In Special Actions and Special Cases a decision or resolution of the Commission en banc shall become final and
executory after five (5) days in Special Actions and Special Cases and after fifteen (15) days in all other proceedings,
following their promulgation.
(c) Unless a motion for reconsideration is seasonably filed, a decision or resolution of a Division shall
become final and executory after the lapse of five (5) days in Special Actions and Special Cases and after
fifteen (15) days in all other actions or proceedings, following its promulgation." (emphasis supplied)
In this wise, COMELEC Resolution No. 4116, 101 issued in relation to the finality of resolutions or decisions in
disqualification cases, provides:
"This pertains to the finality of decisions or resolutions of the Commission en banc or division, particularly on Special
Actions (Disqualification Cases).
Special Action cases refer to the following:
(a) Petition to deny due course to a certificate of candidacy;
(b) Petition to declare a candidate as a nuisance candidate;
(c) Petition to disqualify a candidate; and
(d) Petition to postpone or suspend an election.
Considering the foregoing and in order to guide field officials on the finality of decisions or resolutions on special action
cases (disqualification cases) the Commission, RESOLVES, as it is hereby RESOLVED, as follows:
(1) the decision or resolution of the En Banc of the Commission on disqualification cases shall become final
and executory after five (5) days from its promulgation unless restrained by the Supreme Court;
(2) the decision or resolution of a Division on disqualification cases shall become final and executory after the
lapse of five (5) days unless a motion for reconsideration is seasonably filed;
(3) where the ground for disqualification case is by reason of non-residence, citizenship, violation of election
laws and other analogous cases and on the day of the election the resolution has not become final and
executory the BEI shall tally and count the votes for such disqualified candidate;
(4) the decision or resolution of the En Banc on nuisance candidates, particularly whether the nuisance
candidate has the same name as the bona fide candidate shall be immediately executory;
(5) the decision or resolution of a DIVISION on nuisance candidate, particularly where the nuisance candidate
has the same name as the bona fide candidate shall be immediately executory after the lapse of five (5) days
unless a motion for reconsideration is seasonably filed. In which case, the votes cast shall not be considered
stray but shall be counted and tallied for the bona fide candidate.
All resolutions, orders and rules inconsistent herewith are hereby modified or repealed."

Considering the timely filing of a Motion for Reconsideration, the COMELEC Second Division gravely abused its
discretion in ordering the immediate disqualification of the petitioner and ordering the exclusion of the votes cast in
his favor. Section 2, Rule 19 of the COMELEC Rules of Procedure is very clear that a timely Motion for Reconsideration
shall suspend the execution or implementation of the resolution, viz:
Section 2. Period for filing Motion for Reconsideration.- A motion to reconsider a decision, resolution, order, or ruling of
a Division shall be filed within five (5) days from the promulgation thereof. Such motion, if not pro forma,
suspends the execution or implementation of the decision, resolution, order or ruling." (emphases supplied)
(b) Respondent Locsin, as a mere second placer, cannot be proclaimed.
More brazen is the proclamation of respondent Locsin which violates the settled doctrine that the candidate who
obtains the second highest number of votes may not be proclaimed winner in case the winning candidate is
disqualified.102 In every election, the people's choice is the paramount consideration and their expressed will must at
all times be given effect. When the majority speaks and elects into office a candidate by giving him the highest
number of votes cast in the election for the office, no one can be declared elected in his place. 103 In Domino v.
COMELEC,104 this Court ruled, viz:
"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 representative
of a constituency, the majority of which have positively declared through their ballots that they do not choose him. To
simplistically assume that the second placer would have received that (sic) other votes would be to substitute our
judgment for the mind of the voters. He could not be considered the first among the qualified candidates because in a
field which excludes the qualified candidate, the conditions would have substantially changed.
xxxxxxxxx
The effect of a decision declaring a person ineligible to hold an office is only that the election fails entirely, that 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 in favor of the person who has obtained a plurality of votes, and does not entitle the
candidate receiving the next highest number of votes to be declared elected. In such case, the electors have failed to
make a choice and the election is a nullity. To allow the defeated and repudiated candidate to take over the elective
position despite his rejection by the electorate is to disenfranchise the electorate without any fault on their part and to
undermine the importance and meaning of democracy and the people's right to elect officials of their choice." 105
Respondent Locsin proffers a distinction between a disqualification based on personal circumstances such as age,
residence or citizenship and disqualification based on election offenses. She contends that the election of candidates
later disqualified based on election offenses like those enumerated in section 68 of the Omnibus Election Code should
be invalidated because they violate the very essence of suffrage and as such, the votes cast in his favor should not be
considered.106
This contention is without merit. In the recent case of Trinidad v. COMELEC,107 this Court ruled that the effect of a
judgment disqualifying a candidate, after winning the election, based on personal circumstances or section 68 of the
Omnibus Election Code is the same: the second placer could not take the place of the disqualified winner.
II
Whether the proclamation of respondent Locsin divested the COMELEC en banc of jurisdiction to review its validity.
Respondent Locsin submits that the COMELEC en banc has no jurisdiction to annul her proclamation. She maintains
that the COMELEC en banc was been divested of jurisdiction to review the validity of her proclamation because she
has become a member of the House of Representatives. Thus, she contends that the proper forum to question her
membership to the House of Representatives is the House of Representative Electoral Tribunal (HRET).
We find no merit in these contentions.
First. The validity of the respondent's proclamation was a core issue in the Motion for Reconsideration
seasonably filed by the petitioner.
In his timely Motion for Reconsideration with the COMELEC en banc, petitioner argued that the COMELEC Second
Division erred thus:

"(1) in disqualifying petitioner on the basis solely of the dubious declaration of the witnesses for respondent
Locsin;
(2) in adopting in toto the allegations of the witnesses for respondent Locsin; and
(3) in promulgating the resolution in violation of its own rules of procedure and in directing therein
the immediate proclamation of the second highest 'vote getter.'" (emphases supplied)
In support of his third assignment of error, petitioner argued that "the Second Division's directive for the immediate
proclamation of the second highest vote-getter is premature considering that the Resolution has yet to become final
and executory."108 Clearly, the validity of respondent Locsin's proclamation was made a central issue in the Motion for
Reconsideration seasonably filed by the petitioner. Without doubt, the COMELEC en banc has the jurisdiction to rule on
the issue.
The fact that the Petition for Nullity of Proclamation was filed directly with the COMELEC en banc is of no moment.
Even without said Petition, the COMELEC en banc could still rule on the nullity of respondent's proclamation because it
was properly raised in the Motion for Reconsideration.
Section 3, Article IX-C of the 1987 Constitution empowers the COMELEC en banc to review, on motion for
reconsideration, decisions or resolutions decided by a division, viz:
"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 decision shall be decided by the
Commission en banc."
Pursuant to this Constitutional mandate, the COMELEC Rules of Procedure provides:
"Rule 19. Motions for Reconsideration.Section 1. Grounds for Motion for Reconsideration.- A motion for reconsideration may be filed on the grounds
that the evidence is insufficient to justify the decision, order or ruling, or that the said decision, order or ruling
is contrary to law.
Section 2. Period for filing Motion for Reconsideration.- A motion to reconsider a decision, resolution, order, or
ruling of a Division shall be filed within five (5) days from the promulgation thereof. Such motion, if not pro
forma, suspends the execution or implementation of the decision, resolution, order or ruling."
Section 3. Form and Contents of Motion for Reconsideration.- The motion shall be verified and shall point out
specifically the findings or conclusions of the decision, resolution, order or ruling which are not supported by
the evidence or which are contrary to law, making express reference to the testimonial or documentary
evidence or to the provisions of law alleged to be contrary to such findings or resolutions.
Section 4. Effect of Motion for Reconsideration on Period to Appeal.- A motion to reconsider a decision,
resolution, order or ruling when not pro forma, suspends the running of the period to elevate the matter to
the Supreme Court.
Section 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.
Section 6. Duty of the Clerk of Court of the Commission to set Motion for Hearing.- 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." (emphases supplied)
Since the petitioner seasonably filed a Motion for Reconsideration of the Order of the Second Division suspending his
proclamation and disqualifying him, the COMELEC en banc was not divested of its jurisdiction to review the validity of
the said Order of the Second Division. The said Order of the Second Division was yet unenforceable as it has not
attained finality; the timely filing of the motion for reconsideration suspends its execution. It cannot, thus, be used as

the basis for the assumption in office of the respondent as the duly elected Representative of the 4th legislative
district of Leyte.
Second. It is the House of Representatives Electoral Tribunal (HRET) which has no jurisdiction in the
instant case.
Respondent contends that having been proclaimed and having taken oath as representative of the 4th legislative
district of Leyte, any question relative to her election and eligibility should be brought before the HRET pursuant to
section 17 of Article VI of the 1987 Constitution. 109
We reject respondent's contention.
(a) The issue on the validity of the Resolution of the COMELEC Second Division has not yet been resolved
by the COMELEC en banc.
To stress again, at the time of the proclamation of respondent Locsin, the validity of the Resolution of the COMELEC
Second Division was seasonably challenged by the petitioner in his Motion for Reconsideration. The issue was still
within the exclusive jurisdiction of the COMELEC en banc to resolve. Hence, the HRET cannot assume jurisdiction over
the matter.
In Puzon vs. Cua,110 even the HRET ruled that the "doctrinal ruling that once a proclamation has been made and a
candidate-elect has assumed office, it is this Tribunal that has jurisdiction over an election contest involving members
of the House of Representatives, could not have been immediately applicable due to the issue regarding the
validity of the very COMELEC pronouncements themselves." This is because the HRET has no jurisdiction to
review resolutions or decisions of the COMELEC, whether issued by a division or en banc.
(b) The instant case does not involve the election and qualification of respondent Locsin.
Respondent Locsin maintains that the proper recourse of the petitioner is to file a petition for quo warranto with the
HRET.
A petition for quo warranto may be filed only on the grounds of ineligibility and disloyalty to the Republic of the
Philippines.111 In the case at bar, neither the eligibility of the respondent Locsin nor her loyalty to the Republic of the
Philippines is in question. There is no issue that she was qualified to run, and if she won, to assume office.
A petition for quo warranto in the HRET is directed against one who has been duly elected and proclaimed for having
obtained the highest number of votes but whose eligibility is in question at the time of such proclamation. It is evident
that respondent Locsin cannot be the subject of quo warranto proceeding in the HRET. She lost the elections to the
petitioner by a wide margin. Her proclamation was a patent nullity. Her premature assumption to office as
Representative of the 4th legislative district of Leyte was void from the beginning. It is the height of absurdity for the
respondent, as a loser, to tell petitioner Codilla, Sr., the winner, to unseat her via a quo warranto proceeding.
III
Whether it is the ministerial duty of the public respondents to
recognize petitioner Codilla, Sr. as the legally elected Representative
of the 4th legislative district of Leyte vice respondent Locsin.
Under Rule 65, section 3 of the 1997 Rules of Civil Procedure, any person may file a verified petition for mandamus
"when any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use
and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate
remedy in the ordinary course of law."112 For a petition for mandamus to prosper, it must be shown that the subject of
the petition for mandamus is a ministerial act or duty, and not purely discretionary on the part of the board,
officer or person, and that the petitioner has a well-defined, clear and certain right to warrant the grant thereof.
The distinction between a ministerial and discretionary act is well delineated. A purely ministerial act or duty is one
which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of
a legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act

done. If the law imposes a duty upon a public officer and gives him the right to decide how or when the duty shall be
performed, such duty is discretionary and not ministerial. The duty is ministerial only when the discharge of the same
requires neither the exercise of official discretion or judgment. 113
In the case at bar, the administration of oath and the registration of the petitioner in the Roll of Members of the House
of Representatives representing the 4th legislative district of Leyte is no longer a matter of discretion on the part of
the public respondents. The facts are settled and beyond dispute: petitioner garnered 71,350 votes as against
respondent Locsin who only got 53, 447 votes in the May 14, 2001 elections. The COMELEC Second Division initially
ordered the proclamation of respondent Locsin; on Motion for Reconsideration the COMELEC en banc set aside the
order of its Second Division and ordered the proclamation of the petitioner. The Decision of the COMELEC en banc has
not been challenged before this Court by respondent Locsin and said Decision has become final and executory.
In sum, the issue of who is the rightful Representative of the 4th legislative district of Leyte has been finally settled by
the COMELEC en banc, the constitutional body with jurisdiction on the matter. The rule of law demands that its
Decision be obeyed by all officials of the land. There is no alternative to the rule of law except the reign of
chaos and confusion.
IN VIEW WHEREOF, the Petition for Mandamus is granted. Public Speaker of the House of Representatives shall
administer the oath of petitioner EUFROCINO M. CODILLA, SR., as the duly-elected Representative of the 4th
legislative district of Leyte. Public respondent Secretary-General shall likewise register the name of the petitioner in
the Roll of Members of the House of Representatives after he has taken his oath of office. This decision shall be
immediately executory.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, AustriaMartinez, Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur.
Carpio, J., no part.
Footnotes
1

Records, SPA No. 01-208, vol. I, pp. 1-7.

Id., Annex "A-1," p. 8.

Id., Annex "A-2," p. 9.

Id., Annex "A-4," p. 11.

Id., Annex "A-3," p. 10.

Id., Annexes "A-5" to "A-6," pp. 12-13.

Id., Annexes "B-1" to "B-5," pp. 14-18.

Id., p. 23.

Id., p. 21.

10

Id., pp. 24-26. From the Records, it appears that respondent Locsin did not file a separate Motion for Intervention.

11

Id., p. 26.

12

Id., Registry Receipt No. 78660, p. 30.

13

Id., pp. 36-40.

14

Id., p. 39.

15

Id., pp. 39-40.

16

Id., p. 234.

17

Id., pp. 74-79.

18

Id., Annex "1," pp. 80-81.

19

Id., Annex "1-A," p. 82.

20

Id., Annex "2," pp. 83-84.

21

Id., Annex "2-A," pp. 122-123.

22

Id., Annex "3," pp. 124-125.

23

Id., pp. 41-46.

24

Id., p. 47.

25

Id., p. 71.

26

Id., pp. 211-233.

27

Id., Annex "4," p. 281.

28

Id., Annex "6," p. 283.

29

Id., Annex "7," p. 284.

30

Id., Annex "8," pp. 285-286.

31

Id., Annex "9," p. 287.

32

Id., Annex "10," p. 288.

33

Id., Annex "11," p. 421.

34

Id., pp. 92-93.

35

Records, SPA No. 01-208, vol II, pp. 6-20.

36

Id., Annexes "B" and "C", pp. 57-76.

37

Id., Annex "D-1", p. 138.

38

Id., pp. 23-41.

39

Id., p. 87.

40

Id., pp. 174-192.

41

Records, SPC No. 01-324, pp. 1-14.

42

Records, SPA No. 01-208, vol. II, pp. 163-165.

Id., pp. 166-173. Annex "A" contains the Affidavits of Edgardo Apuya, Carmelita Manongsong, Danilo Pingoy, Rolando Viovicente, and
Samuel Antipuesto; Annex "B" includes the Affidavits of Samuel Antipuesto, Pastora Capuyan and Feliciano Apuya; Annex "C" consists of
Affidavits of Agripino Beltran, Taciana Beltran, Samuel Antipuesto, Buenaventura Tasan, Rustico Alogbate, Pastora Capuyan, Feliciano Apuya,
Ellen Pingoy and Joel Ranolas; Annex "D" contains the Affidavits of Noel Gomez and Jovito Laurente; and Annex "E" contains the Affidavit of
Roman Domasin.
43

44

Records, SPC No. 01-324, pp. 108-115.

45

Id., pp. 43-163.

46

Id., pp. 212-219.

47

Petition, Annex B-2; Rollo, pp. 149-159.

48

Petition, Annexes B-4 and B-5; Rollo, pp. 162-179.

49

Rollo, pp. 40-44.

50

Petition, Annex B; Rollo, pp. 40-146.

51

Id., Annex B-1; id., pp. 147-148.

52

Rollo, pp. 323-337.

53

Memorandum dated August 31, 2001; Rollo, pp. 403-407.

54

Petition, Annex D-1; Rollo, pp. 216-225.

55

Id., Annex E; id., pp. 226-233.

56

Id., Annex A; id., p. 34.

57

Id., Annex A-5; id., p. 39.

58

Id., Annex F; id., pp. 234-242.

59

Id., Annex H-1; id., pp. 245-249.

60

Id., Annex G; id., p. 243.

61

Id., Annex I; id., pp. 250-255.

62

Id., Annex J; id., pp. 256-257.

63

Rollo, pp. 281-287.

64

Id., pp. 382-401.

The first Memorandum of Chief Counsel Palicte III dated July 22, 2001 was issued at the instance of Secretary General Nazareno on the
basis of a Memorandum issued by COMELEC Chairman Benipayo ordering the investigation of the Provincial Board of Canvassers and the
Provincial Election Supervisor of Leyte in connection with the proclamation of respondent Locsin, id., pp. 408-412. A second Memorandum
reiterating his previous opinion was issued on August 31, 2001 pursuant to a request made by respondent Locsin relative to the COMELEC En
Banc Resolution of August 29, 2001, id., pp. 403-407.
65

66

Rollo, pp. 288-348.

67

Resolution dated October 18, 2001, HRET Case No. 01-043; Annex 5, Comment of Respondent Locsin; Rollo, pp.377-379.

68

Rollo, pp. 426-454.

69

Omnibus Election Code of the Philippines, December 3, 1985.

Rules Delegating to COMELEC Field Officials the Hearing and Reception of Evidence of Disqualification Cases Filed in Connection with the
May 14, 2001 National and Local Elections, December 15, 2000.
70

See petitioner's Answer, Records, SPA No. 01-208, vol. I, p. 74; Motion to Lift Suspension of Proclamation, id., p. 42; Memorandum, id., p.
343; Motion for Reconsideration, id., vol. II, p. 24.
71

72

Records, SPA No. 01-208, vol. I, p. 26.

73

The Electoral Reform Law of 1987, January 5, 1988.

74

Cledera vs. Sarmiento, 39 SCRA 562 (1971); Andra v. CA, 60 SCRA 379 (1979); Sembrano v. Ramirez, 166 SCRA 30 (1988).

75

Records, SPA No. 01-208, vol. I, p. 27.

76

Id., p. 30, Registry Receipt No. 78660.

77

Id., pp. 36-40.

78

Rollo, p. 89.

79

Records, SPA No. 01-208, vol. I, pp. 214-228.

80

Id., pp. 229-231.

81

Rollo, p. 89.

82

Id., pp. 95-102.

83

Records, SPA No. 01-208, vol. I, p. 3.

84

Id., p. 11.

85

Id., p. 10.

86

Id., p. 9.

87

Id., p. 8.

88

Id., p. 304.

89

Id., p. 306

90

Id., p. 307.

91

Id., p. 310.

92

Id., p. 312.

93

Id., p. 313.

94

Id., p. 318.

95

Id., p. 319.

See Affidavits of Arnel Surillo, id., p. 308; Tolentino Denoy, id., p. 314; Jerome Ychon, id., p. 315; Benjamin Aparis, id., p. 316; and Rene
Maurecio, id., p. 317.
96

Rule 34 of the COMELEC Rules of Procedure states: "Section 1. Authority of the Commission to Prosecute Election Offenses.- The
Commission shall have the exclusive power to conduct preliminary investigation of all election offenses punishable under the election laws and
to prosecute the same, except as may otherwise be provided by law."
97

98

Copy of the facsimile message was attached to the petitioner's Motion for Reconsideration. See Records, SPA No. 01-208, vol. II, p. 57-76.

99

Labo v. COMELEC, 176 SCRA 1 (1989).

100

Reyes v. COMELEC, 254 SCRA 514 (1996); Nolasco v. COMELEC, 275 SCRA 762 (1997).

101

May 7, 2001.

102

Labo v. COMELEC, supra; Abella v. COMELEC, 201 SCRA 253 (1991); Aquino v. COMELEC, supra.

103

Benito v. COMELEC, 235 SCRA 546 (1994).

104

310 SCRA 546 (1999).

105

Id., pp. 573-574 (citations omitted).

106

Records, SPA No. 01-208, vol. II, p. 87.

107

315 SCRA 175 (1999).

108

Records, SPA No. 01-208, vol. II, p. 37.

"The Senate and the House of Representatives shall have an Electoral Tribunal which shall be the sole judge of all contests relating to the
election, returns and qualifications of their respective members."
109

110

HRET Case No. 42, July 25, 1988, 1 HRET 32-33.

Rule 17, Revised Rules of HRET provides: "Quo Warranto.- A verified petition for quo warranto contesting the election of a Member of the
House of Representatives shall be filed by any candidate who has duly filed a certificate of candidacy and has been voted for the same office,
within ten (10) days after the proclamation of the winner."
111

112

Section 3 of Rule 65, 1997 Rules of Civil Procedure.

Samson v. Barrios, 63 Phil. 198 (1936); Lemi v. Valencia, 26 SCRA 203 (1968); Meralco Securities Corp. v. Savellano, et al., 177 SCRA 804
(1982), as cited in I Regalado, Remedial Law Compendium 714 (1997).
113

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 95346 January 18, 1991

PERFECTO V. GALIDO, petitioner,
vs.
COMMISSION ON ELECTIONS and SATURNINO R. GALEON, respondents.

Paulino G. Clarin and Giselo Galido for petitioner.

De Castro & Cagampang Law Offices for private respondent.
RESOLUTION

PADILLA, J.:p
This is a special civil action for certiorari and preliminary injunction with prayer for a temporary restraining order, to
prohibit respondent Commission on Elections from implementing its questioned decision dated 14 December 1989 and
resolution dated 20 September 1990, and private respondent Saturnino R. Galeon from assuming office as Mayor of
Garcia-Hernandez, Province of Bohol.
Petitioner and private respondent were candidates during the 18 January 1988 local elections for the position of mayor
in the Municipality of Garcia-Hernandez, Province of Bohol. Petitioner was proclaimed duly-elected Mayor of GarciaHernandez, by the Municipal Board of Canvassers.
On 25 January 1988, private respondent Saturnino R. Galeon filed an election protest before the Regional Trial Court
of Bohol, 7th Judicial Region, Branch I, Tagbilaran City. After hearing, the said court upheld the proclamation of
petitioner as the duly-elected Mayor of Garcia-Hernandez, by a majority of eleven (11) votes.
Private respondent appealed the RTC decision to the Commission on Elections (COMELEC). Through its First Division,
the COMELEC reversed the trial court's decision and declared private respondent the duly-elected mayor by a plurality
of five (5) votes. Petitioner's motion for reconsideration was denied by the COMELEC in its en banc resolution of 20
September 1990 which affirmed the decision of its First Division. The COMELEC held that the fifteen (15) ballots in the
same precinct containing the initial "C" after the name "Galido" were marked ballots and, therefore, invalid. The
COMELEC said:
On the argument relied upon by the appellee that the case of Inguito vs. Court of Appeals is not the
case in point but the cases of Bisnar vs. Lapasa and Katigbak vs. Mendoza, supra should be the
applicable jurisprudence, the settled rule and which is controlling is where a word or a letter recurs in
a pattern or system to mark and identify ballots, the ballots containing the same should be rejected as
marked ballots (Silverio vs. Castro, supra; Inguito vs. Court of Appeals, 21 SCRA 1015), and the
introduction of evidence aliunde is not necessary when the repetition of a word or letter in several
ballots in the same precinct constitutes a clear and convincing proof of a design to indentify the
voters. (P. 38, Rollo of G.R. No. 95346)
On 25 September 1990, petitioner filed before this Court a petition for certiorari and injunction, which was docketed
as G.R. No. 95135.
On 27 September 1990, we resolved to dismiss the said petition for failure of petitioner to comply with paragraph 4 of
the Court's Circular No. 1-88 which requires that a petition shall contain a verified statement of the date when notice
of the questioned judgment, order or resolution was received and the date of receipt of the denial of the motion for
reconsideration, if any was filed. Petitioner filed a motion for reconsideration which we denied with finality in the
resolution of 4 October 1990.
Undaunted, petitioner filed on 6 October 1990 the present petition for certiorari and injunction with prayer for a
restraining order (G.R. No. 95346) which contains the same allegations and legal issues contained in G.R. No. 95135.
On 11 October 1990, we issued the temporary restraining order prayed for by petitioner and required respondents to
file comment on the petition.
In his Comment, private respondent Saturnino R. Galeon moves for the dismissal of the present petition, for the
following three (3) main reasons:
1. Final decisions, orders or rulings of the Commission on Elections (COMELEC) in election contests involving elective
municipal offices are final and executory, and not appealable. Private respondent cites Article IX (C), Section 2(2),
paragraph 2 of the 1987 Constitution, which reads as follows:

Decisions, final orders, or ruling of the Commission on election contests involving elective municipal
and barangay offices shall be final, executory, and not appealable.
The above constitutional provision is implemented in the Rules of Procedure promulgated by the COMELEC,
particularly Part VII Rule 39, Section 2 thereof, which reads:
Sec. 2. Non-reviewable decisions. Decisions in appeals from courts of general or limited jurisdiction
in election cases relating to the elections, returns, and qualifications of municipal and barangay official
are not appealable.
According to private respondent, since appeals of COMELEC decisions in election contests involving municipal and
barangay officials are not allowed by the Constitution, it follows that the COMELEC decision in the case at bar should
be executed or implemented.
2. The petition involves pure questions of fact as they relate to appreciation of evidence (ballots) which is beyond the
power of review of this Court. The COMELEC found that the writing of the letter "C" after the word "Galido" in the
fifteen (15) ballots of Precinct 14 is a clear and convincing proof of a pattern or design to identify the ballots and/or
voters. This finding should be conclusive on the Court.
3. Exactly the same petition involving identical allegations, grounds and legal issues was dismissed with finality
by this Court in G.R. No. 95135. The inadvertent issuance of a temporary restraining order by the Court in this case
has wreaked havoc and chaos in the municipality of Garcia-Hernandez where private respondent has already assumed
his position as the duly-elected mayor.
In his Reply to the Comment, petitioner avers
1 Article IX (A), Section 7 of the 1987 Constitution provides:
Sec. 7. Each Commission shall decide by a majority vote of all its Members any case or matter brought
before it within sixty days from the date of its submission for decision or resolution. A case or matter
is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or
memorandum required by the rules of the Commission or by the Commission itself Unless otherwise
provided by this Constitution or by law, any decision, order, or ruling of each Commission may be
brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a
copy thereof.
Since under the same Constitution (Article VIII, Section 1), judicial power is vested in one Supreme Court, the present
petition can still be brought to the Supreme Court by certiorari. Petitioner contends that this petition is not an ordinary
appeal contemplated by the Rules of Court or by provision of the Constitution.
2. The petition involves pure questions of law. The correct interpretation of Section 211. No. 10 of Batas Pambansa
Blg. 881 is definitely a question of law. It states:
10. The erroneous initial of the first name which accompanies the correct surname of a candidate, the
erroneous initial of the surname accompanying the correct first name of the candidate, or the
erroneous middle initial of the candidate shall not annul the vote in favor of the latter.
In several cases decided by this Court, according to petitioner, it was held that in the appreciation of ballots where
there is no evidence aliunde of a purpose to identify the ballots, the same should not be invalidated as marked ballots.
The COMELEC thus committed grave abuse of discretion when it disregarded the cited decisions of this Court and
declared that the suffix "C" after the name Galido was in reality a countersign and not a mere erroneous initial.
3. The dismissal with finality of G.R. No. 95135 (the first petition) did not refer to the merits of the petition. The said
dismissal was due to the failure of petitioner to submit requisite papers duly certified. That is why upon petitioner's
submission of the requirements in his second (the present) petition, this Court granted the request for the issuance of
a temporary restraining order.
The Court finds the petition to be without sufficient merit.
The Commission on Elections (COMELEC) has exclusive original jurisdiction over all contests relating to the elections,
returns, and qualifications of all elective regional, provincial, and city officials and has appellate jurisdiction over all

contests involving elective municipal officials decided by trial courts of general jurisdiction or involving elective
barangay officials decided by trial courts of limited jurisdiction. (Article IX (C), Section 2 (2), paragraph 1 of the 1987
Constitution).
In the present case, after a review of the trial court's decision, the respondent COMELEC found that fifteen (15)
ballots in the same precinct containing the letter "C" after the name Galido are clearly marked ballots. May this
COMELEC decision be brought to this court by a petition for certiorari by the aggrieved party (the herein petitioner)?
Under Article IX (A) Section 7 of the Constitution, which petitioner cites in support of this petition, it is stated:
"(U)nless otherwise provided by this Constitution or by law, any decision, order, or ruling of each (Constitutional)
Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt
of a copy thereof."
On the other hand, private respondent relies on Article IX, (C), Section 2(2), paragraph 2 of the Constitution which
provides that decisions, final orders, or rulings of the Commission on Elections in contests involving elective municipal
and barangay offices shall be final, executory, and not appealable. (Emphasis supplied)
We resolve this issue in favor of the petitioner. The fact that decisions, final orders or rulings of the Commission on
Elections in contests involving elective municipal and barangay offices are final, executory and not appealable, does
not preclude a recourse to this Court by way of a special civil action of certiorari. The proceedings in the Constitutional
Commission on this matter are enlightening. Thus
MR. FOZ. So, the amendment is to delete the word "inappealable."
MR. REGALADO. Before that, on page 26, line 26, we should have a transposition because decisions
are always final, as distinguished from interlocutory orders. So, it should read: "However, decisions,
final orders or rulings," to distinguish them from intercolutory orders, ". . . of the Commission on
Elections on municipal and barangay officials shall be final and IMMEDIATELY executory."
That would be my proposed amendment.
MR. FOZ. Accepted, Mr. Presiding Officer.
MR. REGALADO. It is understood, however, that while these decisions with respect to barangay and
municipal officials are final and immediately executory and, therefore, not appealable, that does not
rule out the possibility of an original special civil action for certiorari, prohibition, or mandamus, as the
case may be, under Rule 65 of the Rules of Court.
MR. FOZ. That is understood, Mr. Presiding Officer.
MR. REGALADO. At least it is on record.
Thank you, Mr. Presiding Officer.

We do not, however, believe that the respondent COMELEC committed grave abuse of discretion amounting to lack or
excess of jurisdiction in rendering the questioned decision. It is settled that the function of a writ of certiorari is to
keep an inferior court or tribunal within the bounds of its jurisdiction or to prevent it from committing a grave abuse of
discretion amounting to lack or excess of jurisdiction.
As correctly argued by public respondent COMELEC, it has the inherent power to decide an election contest on
physical evidence, equity, law and justice, and apply established jurisprudence in support of its findings and
conclusions; and that the extent to which such precedents apply rests on its discretion, the exercise of which should
not be controlled unless such discretion has been abused to the prejudice of either party. (Rollo, p. 107)
Finally, the records disclose that private respondent had already assumed the position of Mayor of Garcia-Hernandez
as the duly-elected mayor of the municipality by virtue of the COMELEC decision. The main purpose of prohibition is to
suspend all action and prevent the further performance of the act complained of. In this light, the petition at bar has
become moot and academic. (G.R. No. 81383. Atty. Felimon et al. vs. Atty. Belena et al. Apr. 5, 1988 resolution.)
ACCORDINGLY, the petition is DISMISSSED. The temporary restraining order earlier issued by the Court is LIFTED.

SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Bidin, Sarmiento, GrioAquino, Medialdea and Regalado, JJ., concur.

Footnotes
1 Record of the Constitutional Commission, Vol. I, p. 562.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 133676 April 14, 1999

TUPAY T. LOONG, petitioner,
vs.
COMMISSION ON ELECTIONS and ABDUSAKUR TAN, respondents.

YUSOP JIKIRI, intervenor.

PUNO, JIn a bid to, improve our elections, Congress enacted R.A. No. 8436 on December 22, 1997 prescribing the
adoption of an automated election system. The new system was used in the May 11, 1998 regular elections held in
the Autonomous Region in Muslim Mindanao (ARMM) which includes the Province of Sulu. Atty. Jose Tolentino, Jr.
headed the COMELEC Task Force to have administrative oversight of the elections in Sulu.
The voting in Sulu was relatively peaceful and orderly. 1 The problem started during the automated counting of votes
for the local officials of Sulu at the Sulu at the Sulu State College. At about 6 a.m. of May 12, 1998, some election
inspectors and watchers informed Atty. Tolentino, Jr. of discrepancies between the election returns and the votes cast
for the mayoralty candidates in the municipality of Pata. Some ballots picked at random by Atty. Tolentino, Jr.
confirmed that votes in favor of a mayoralty candidate were not reflected in the printed election returns. He
suspended the automated counting of ballots in Pata and immediately communicated the problem to the technical
experts of COMELEC and the suppliers of the automated machine. After the consultations, the experts told him that
the problem was caused by misalignment of the ovals opposite the names of candidates in the local ballots. They
found nothing wrong with the automated machines. The error was in the printing of the local ballots, as a
consequence of which, the automated machines failed to read them correctly. 2
At 12:30 p.m. of the same day, Atty. Tolentino, Jr. called for an emergency meeting of the local candidates and the
military-police officials overseeing the Sulu elections. Those who attended were the various candidates for governor,
namely, petitioner Tupay Loong, private respondent Abdusakar Tan, intervenor Yusop Jikiri and Kimar Tulawie. Also in
attendance were Brig. Gen. Edgardo Espinosa, AFP, Marine forces, Southern Philippines, Brig. Gen. Percival Subala,
AFP, 3rd Marine Brigade, Supt. Charlemagne Alejandrino, Provincial Director, Sulu, PNP Command and congressional
candidate Bensandi Tulawie. 3
The meeting discussed how the ballots in Pata should be counted in light of the misaligned ovals. There was lack of
agreement. Those who recommended a shift to manual count were Brig. Generals Espinosa and Subala, PNP Director
Alejandro, gubernational candidates Tan and Tulawie and congressional candidate Bensandi Tulawie. Those who
insisted on an automated count were gubernational candidates Loong and Jikiri. In view of their differences in opinion,
Atty. Tolentino, Jr. requested the parties to submit their written position papers. 4
Reports that the automated counting of ballots in other municipalities in Sulu was not working well were received by
the COMELEC Task Force. Local ballots in five (5) municipalities were rejected by the automated machines. These
municipalities were Talipao, Siasi, Tudanan, Tapul and Jolo. The ballots were rejected because they had the wrong
sequence code. 5
Private respondent Tan and Atty. Tolentino, Jr. sent separate commucations to the COMELEC en banc in Manila. Still,
on May 12, 1998, Tan requested for the suspension of the automated counting of ballots throughout the Sulu
province. 6 On the same day, COMELEC issued Minute Resolution No. 98-1747 ordering a manual count but only in the
municipality of Pata. The resolution reads: 7
xxx xxx xxx
In the matter of the Petition dated May 12, 1998 of Abdusakur Tan, Governor, Sulu, to suspend or stop
counting of ballots through automation (sic) machines for the following grounds, quoted to wit:
1. The Election Returns for the Municipality of Pata, Province of Sulu-District II do not
reflect or reveal the mandate of the voters:
DISCUSSIONS
That the watchers called the attention of our political leaders and candidates regarding
their discovery that the election returns generated after the last ballots for a precinct
is scanned revealed that some candidates obtained zero votes, among others the
Provincial Board Members, Mayor, Vice-Mayor, and the councilors for the LAKAS-NUCDUMDP;
That the top ballot, however, reveals that the ballots contained votes for Anton
Burahan, candidate for Municipal Mayor while the Election Return shows zero vote;

That further review of the Election Return reveals that John Masillam, candidate for
Mayor under the LAKAS-NUCD-UMDP-MNLF obtains (sic) 100% votes of the total
number of voters who actually voted;
The foregoing discrepancies were likewise noted and confirmed by the chairmen, poll
clerks and members of the Board of Election Inspectors (BEI) such as Rena Jawan,
Amkanta Hajirul, Dulba Kadil, Teddy Mirajuli, Rainer Talcon, Mike Jupakal, Armina
Akmad, Romulo Roldan and Lerma Amrawali to mention some;
The Pata incident can be confirmed by no less than Atty. Jose Tolentino, Head, task
Force Sulu, whose attention was called regarding the discrepancies;
The foregoing is a clear evidence that the automated machine (scanner) cannot be
relied upon as to truly reflect the contents of the ballots. If such happened in the
Municipality of Pata, it is very possible that the same is happening in the counting of
votes in the other municipalities of this province. If this will not be suspended or
stopped, the use of automated machines will serve as a vehicle to frustrate the will of
the sovereign people of Sulu;
Wherefore, the foregoing premises considered and in the interest of an honest and
orderly election, it is respectfully prayed of this Honorable Commission that an Order
be issued immediately suspending or stopping the use of the automated machine
(scanner) in the counting of votes for all the eighteen (18) municipalities in the
Province of Sulu and in lieu thereof, to avoid delay, counting be done through the usual
way known tested by us.
While the commission does not agree with the conclusions stated in the petition, and the failure of the
machine to read votes may have been occasioned by other factors, a matter that requires immediate
investigation, but in the public interest, the Commission,
RESOLVED to grant the Petition dated May 12, 1998 and to Order that the counting of
votes shall be done manually in the Municipality of PATA, the only place in Sulu where
the automated machine failed to read the ballots, subject to notice to all parties
concerned.
Before midnight of May 12, 1998, Atty. Tolentino, Jr. was able to send to the COMELEC en banc his report and
recommendation, urging the use of the manual count in the entire Province of Sulu, viz: 8
The undersigned stopped the counting in the municipality of Pata since he discovered that votes for a
candidate for mayor was credited in favor of the other candidate. Verification with the Sulu Technical
Staff, including Pat Squires of ES & S, reveals that the cause of the errors is the way the ballot was
printed. Aside from misalignment of the ovals and use of codes assigned to another municipality
(which caused the rejection of all local ballots in one precinct in Talipao), error messages appeared on
the screen although the actual condition of the ballots would have shown a different message.
Because of these, the undersigned directed that counting for all ballots in Sulu be stopped to enable
the Commission to determine the problem and rectify the same. It is submitted that stopping the
counting is more in consonance with the Commission's mandate than proceeding with an automated
but inaccurate count.1wphi1.nt
In view of the error discovered in Pata and the undersigned's order to suspend that counting, the
following documents were submitted to him.
1. Unsigned letter dated May 12, 1998 submitted by Congressman
Tulawie for manual counting and canvassing;
2. Petition of Governor Sakur Tan for manual counting;
3. Position paper of Tupay Loong, Benjamin Loong, and Asani Tamang
for automated count;
4. MNLF Position for automated count; and

5. Recommendation of General E.V. Espinosa, General PM Subala, and

PD CS Alejandrino for manual count;
Additional marines have been deployed at the SSC. The undersigned is not sure if it is merely intended
to tame a disorderly crowd, inside and outside SSC, or a show of force.
It is submitted that since an error was discovered in a machine which is supposed to have an error
rate of 1: 1,000,000, not a few people would believe that this error in Pata would extend to the other
municipalities. Whether or not this true, it would be more prudent to stay away from a lifeless thing
that has sown tension and anxiety among and between the voters of Sulu.
Respectfully submitted:
12 May 1998
(Sgd.) JOSE M. TOLENTINO, JR.
The next day, May 13, 1998, COMELEC issued Resolution No. 98-1750 approving, Atty. Tolentino, Jr.'s
recommendation and the manner of its implementation as suggested by Executive Director Resurrection Z. Borra. The
Resolution reads: 9
In the matter of the Memorandum dated 13 May 1998 of Executive Director Resurrection Z. Borra,
pertinent portion of which is quoted as follows:
In connection with Min. Res. No. 98-1747 promulgated May 12, 1998 which resolved to order that the
counting of votes shall be done manually in the municipality of Pata, the only place in Sulu where the
automated counting machine failed to read the ballots, subject to notice to all parties concerned,
please find the following:
1. Handwritten Memo of Director Jose M. Tolentino, Jr., Task Force Head, Sulu,
addressed to the Executive Director on the subject counting and canvassing in the
municipality of Pata due to the errors of the counting of votes by the machine brought
about by the error in the printing of the ballot, causing misalignment of ovals and use
of codes assigned to another municipality.
He recommended to revert to the manual counting of votes in the whole of Sulu. He
attached the stand of Congressman Tulawie, Governor Sakur Tan and recommendation
of Brigadier General Edgardo Espinosa, General Percival Subla, P/Supt. Charlemagne
Alejandrino for manual counting. The position paper of former Governor Tupay Loong,
Mr. Benjamin Loong and Mr. Asani S. Tammang, who are candidates for Governor and
Congressman of 1st and 2nd Districts respectively, who wanted the continuation of the
automated counting.
While the forces of AFP are ready to provide arm (sic) security to our Comelec officials, BEIs and other
deputies, the political tensions and imminent violence and bloodshed may not be prevented, as per
report received, the MNLF forces are readying their forces to surround the venue for automated
counting and canvassing in Sulu in order that the automation process will continue.
Director Borra recommends, that while he supports Minute Resolution No. 98-1747, implementation
thereof shall be done as follows:
1. That all the counting machines from Jolo, Sulu be transported back by C130 to
Manila and be located at the available space at PICC for purposes of both automated
and manual operations. This approach will keep the COMELEC officials away from
violence and bloodshed between the two camps who are determined to slug each
other as above mentioned in Jolo, Sulu. Only authorized political party and candidate
watchers will be allowed in PICC with proper security, both inside and outside the
perimeters of the venue at PICC.
2. With this process, there will be an objective analysis and supervision of the
automated and manual operations by both the MIS and Technical Expert of the ES & S

away from the thundering mortars and the sounds of sophisticated heavy weapons
from both sides of the warring factions.
3. Lastly, it will be directly under the close supervision and control of Commission on
Elections En Banc.
RESOLVED:
1. To transport all counting machines from Jolo, Sulu by C130 to
Manila for purposes of both automated and manual operations, with
notice to all parties concerned;
2. To authorize the official travel of the board of canvassers concerned
for the conduct of the automated and manual operations of the
counting of votes at PICC under the close supervision and control of
the Commission En Banc. For this purpose, to make available a
designated space at the PICC;
3. To authorize the presence of only the duly authorized representative
of the political parties concerned and the candidates watchers both
outside and inside the perimeters of the venue at PICC.
Atty. Tolentino, Jr. furnished the parties with copies of Minute Resolution No. 98-1750 and called for another meeting
the next day, May 14, 1998, to discuss the implementation of the resolution. 10 The meeting was attended by the
parties, by Lt. Gen. Joselin Nazareno, then Chief of the AFP Southern Command, the NAMFREL, media, and the public.
Especially discussed was the manner of transporting the ballots and the counting machines to the PICC in Manila.
They agreed allow each political party to have at least one (1) escort/watcher for municipality to acompany the flight.
Two C130s were used for purpose. 11
On May 15, 1998, the COMELEC en banc issued Minute Resolution No. 98-1796 laying down the rules for the manual
count, viz: 12
In the matter of the Memorandum dated 15 May 1998 of Executive Director Resurrection Z. Borra,
quoted to wit:
In the implementation of COMELEC Min. Resolution No. 98-1750 promulgated 13 May
1998 in the manual counting of votes of Pata, Sulu, and in view of the arrival of the
counting machines, ballot boxes, documents and other election paraphernalia for the
whole province of Sulu now stored in PICC, as well as the arrival of the Municipal
Board of Canvassers of said Municipality in Sulu, and after conference with some
members of the Senior Staff and Technical Committee of this Commission, the
following are hereby respectfully recommended:
1. Manual counting of the local ballots of the automated election
system in Pata, Sulu;
2. Automated counting of the national ballots considering that there
are no questions raised on the National Elective Officials as pre-printed
in the mark-sensed ballots;
3. The creation of the following Special Boards of Inspectors under the
supervision of Atty. Jose M. Tolentino, Jr., Task Force Head, Sulu,
namely:
a) Atty. Mamasapunod M. Aguam
Ms. Gloria Fernandez
Ms. Esperanza Nicolas
b) Director Ester L. Villaflor-Roxas

Ms. Celia Romero

Ms. Rebecca Macaraya
c) Atty. Zenaida S. Soriano
Ms. Jocelyn Guiang
Ma. Jacelyn Tan
d) Atty. Erlinda C. Echavia
Ms. Theresa A. Torralba
Ms. Ma. Carmen Llamas
e) Director Estrella P. de Mesa
Ms. Teresita Velasco
Ms. Nelly Jaena
4. Additional Special Board of Inspectors may be created when
necessary.
5. The Provincial Board of Canvassers which by standing Resolution is
headed by the Task Force Sulu Head shall consolidate the manual and
automated results as submitted by the Municipal Boards of Canvassers
of the whole province with two members composed of Directors
Estrella P. de Mesa and Ester L. Villaflor-Roxas;
6. The political parties and the candidates in Sulu as well as the PartyList Candidates are authorized to appoint their own watchers upon
approval of the Commission',
RESOLVED to approve the foregoing recommendations in the implementation of Min.
Resolution No. 98-1750 promulgated on 13 May 1998 providing for the manual
counting of votes in the municipality of Pata, Sulu.
RESOLVED, moreover, considering the recommendation of Comm. Manolo B. Gorospe,
Commissioner-In-Charge, ARMM, to conduct a parallel manual counting on all 18
municipalities of Sulu as a final guidance of the reliability of the counting machine
which will serve as basis for the proclamation of the winning candidates and for future
reference on the use of the automated counting machine.
On May 18, 1998, petitioner filed his objection to Minute Resolution No. 98-1796, viz:

13

1. The minute resolution under agenda No. 98-1796 violates the provisions of Republic Act No. 8436
providing for an automated counting of the ballots in the Autonomous Region in Muslim Mindanao. The
automated counting is mandatory and could not be substituted by a manual counting. Where the
machines are allegedly defective, the only remedy provided for by law is to replace the machine.
Manual counting is prohibited by law;
2. There are strong indications that in the municipality of Pata the ballots of the said municipality were
rejected by the counting machine because the ballots were tampered and/or the texture of the ballots
fed to the counting machine are not the official ballots of the Comelec;
3. The automated counting machines of the Comelec have been designed in such a way that only
genuine official ballots could be read and counted by the machine;

4. The counting machines in the other municipalities are in order. In fact, the automated counting has
already started. The automated counting in the municipalities of Lugus and Panglima Tahil has been
completed. There is no legal basis for the "parallel manual counting" ordained in the disputed minute
resolution.
Nonetheless, COMELEC started the manual count on the same date, May 18, 1998.
On May 25, 1998, petitioner filed with this Court a petition for certiorari and prohibition under Rule 65 of the Rules of
Court. He contended that: (a) COMELEC issued Minute Resolution Nos. 98-1747, 98-1750, and 98-1798 without prior
notice and hearing to him; (b) the order for manual counting violated R.A. No. 8436; (c) manual counting gave
"opportunity to the following election cheatings," namely:
(a) The counting by human hands of the tampered, fake and counterfeit ballots which the counting
machines have been programmed to reject (Section 7, 8 & 9 of Rep. Act 8436).
(b) The opportunity to substitute the ballots all stored at the PICC. In fact, no less than the head of
the COMELEC Task Force of Sulu, Atty. Jose M. Tolentino, Jr. who recommended to the COMELEC the
anomalous manual counting, had approached the watchers of petitioners to allow the retrival of the
ballots, saying "tayo, tayo lang mga watchers, pag-usapan natin," clearly indicating overtures of
possible bribery of the watchers of petitioner (ANNEX E).
(c) With the creation by the COMELEC of only 22 Boards of Election Inspectors to manually count the
1,194 precincts, the manipulators are given sufficient time to change and tamper the ballots to be
manually counted.
(d) There is the opportunity of delaying the proclamation of the winning candidates through the
usually dilatory moves in a pre-proclamation controversy because the returns and certificates of
canvass are already human (sic) made. In the automated counting there is no room for any dilatory
pre-proclamation controversy because the returns and the MBC and PBC certificates of canvass are
machine made and immediate proclamation is ordained thereafter.
Petitioner then prayed:
WHEREFORE, it is most especially prayed of the Honorable Court that:
1. upon filing of this petition, a temporary restraining order be issued enjoining the COMELEC from
conducting a manual counting of the ballots of the 1,194 precincts of the 18 municipalities of the
Province of Sulu but instead proceed with the automated counting of the ballots, [preparation of the
election returns and MBC, PBC certificates of canvass and proclaim the winning candidates on the
basis of the automated counting and consolidation of results;
2. this petition be given due course and the respondents be required to answer;
3. after due hearing, the questioned COMELEC En Banc Minute Resolutions of May 12, 13, 15, and 17,
1998 be all declared null and void ab initio for having been issued without jurisdiction and/or with
grave abuse of discretion amounting to lack of jurisdiction and for being in violation of due process of
law;
4. the winning candidates of the Province of Sulu be proclaimed on the basis of the results of the
automated counting, automated election returns, automated MBC and PBC certificates of canvass;
xxx xxx xxx
On June 8, 1998, private respondents Tan was proclaimed governor-elect of Sulu on the basis of the manual count.
Private respondents garnered 43,573 votes. Petitioner was third with 35,452 votes or a difference of 8,121 votes.

14

On June 23, 1998, this Court required the respondents to file their Comment to the petition and directed the parties
"to maintain the status quo prevailing at the time of the filing of the petition." 15 The vice-governor elect was allowed
to temporarily discharge the powers and functions of governor.

On August 20, 1998, Yusop Jikiri, the LAKAS-NUCD-UMDP-MNLF candidate for governor filed a motion for intervention
and a Memorandum in Intervention. 16 The result of the manual count showed he received 38,993 votes and placed
second. Similarly, he alleged denial of due process, lack of factual basis of the COMELEC resolutions and illegality of
manual count in light of R.A. No. 8436. The Court noted his intervention. 17 A similar petition for intervention filed by
Abdulwahid Sahidulla, a candidate for vice-governor, on October 7, 1998 was denied as it was filed too late.
In due time, the parties filed their respective Comments. On September 25, 1998, the Court heard the parties in oral
argument 18 which was followed by the submission of their written memoranda.
The issues for resolution are the following:
1. Whether or not a petition for certiorari and prohibition under Rule 65 of the Rules of
Court is the appropriate remedy to invalidate the disputed COMELEC resolutions.
2. Assuming the appropriateness of the remedy, whether or not COMELEC committed
grave abuse of discretion amounting to lack of jurisdiction in ordering a manual count.
2.a. Is there a legal basis for the manual count?
2.b. Are its factual bases reasonable?
2.c. Were the petitioner and the intervenor denied due process by the
COMELEC when it ordered a manual count?
3. Assuming the manual count is illegal and that its result is unreliable, whether or not
it is proper to call for a special election for the position of governor of Sulu.
We shall resolve the issues in seriatim.
First. We hold that certiorari is the proper remedy of the petitioner. Section 7, Article IX (A) of the 1987 Constitution
states that "unless provided by this Constitution or by law, any decision, order or ruling of each Commission may be
brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof."
We have interpreted this provision to mean final orders, rulings and decisions of the powers. 19 Contrariwise,
administrative orders of the COMELEC are not, as a general rule, fit subjects of a petition for certiorari. The main issue
in the case at bar is whether the COMELEC gravely abused its discretion when it ordered a manual count of the 1998
Sulu local elections. A resolution of the issue will involve an interpretation of R.A. No. 8436 on automated election in
relation to the broad power of the COMELEC under Section 2(1), Article IX(C) of the Constitution "to enforce and
administer all laws and regulations relative to the conduct of an election . . .." The issue is not only legal but one of
first impression and undoubtedly suffered with significance to the entire nation. It is adjudicatory of the right of the
petitioner, the private respondents and the intervenor to the position of governor of Sulu. These are enough
considerations to call for an exercise of the certiorari jurisdiction of this Court.
Second. The big issue, one of first impression, is whether the COMELEC committed grave abuse of discretion
amounting to lack of jurisdiction when it ordered a manual count in light of R.A. No. 8436. The post election realities
on ground will show that the order for a manual count cannot be characterized as arbitrary, capricious or whimsical.
a. It is well established that the automated machines failed to read correctly the
ballots in the municipality of Pata. A mayoralty candidate, Mr. Anton Burahan, obtained
zero votes despite the representations of the Chairman of the Board of Election
Inspectors and others that they voted for him. Another candidate garnered 100% of
the votes.
b. It is likewise conceded that the automated machines rejected and would not count
the local ballots in the municipalities of Pata, Talipao, Siasi, Indanan, Tapal and Jolo.
c. These flaws in the automated counting of local ballots in the municipalities of Pata,
Talipao, Siasi, Indanan, Tapal and Jolo were carefully analyzed by the technical experts
of COMELEC and the supplier of the automated machines. All of them found nothing
wrong the automated machines. They traced the problem to the printing of local
ballots by he National Printing Office. In the case of the of the municipality of Pata, it
was discovered that the ovals of the local ballots were misaligned and could not be

read correctly by the automated machines. In the case of the municipalities of Talipao,
Siasi, Indanan, Tapal and Jolo, it turned out that the local ballots contained the wrong
sequence code. Each municipality was assigned a sequence code as a security
measure. Ballots with the wrong sequence code were programmed to be rejected by
the automated machines.
It is plain that to continue with the automated count in these five (5) municipalities would result in a grossly
erroneous count. It cannot also be gainsaid that the count in these five (5) municipalities will affect the local elections
in Sulu. There was no need for more sampling of locals ballots in these municipalities as they suffered from the same
defects. All local ballots in Pata with misaligned ovals will be erroneously read by the automated machines. Similarly,
all local ballots in Talipao, Siasi, Indanan, Tapal and Jolo with wrong sequence codes are certain to be rejected by the
automated machines. There is no showing in the records that the local ballots in these five (5) municipalities are
dissimilar which could justify the call for their greater sampling.
Third. These failures of automated counting created post election tension in Sulu, a province with a history of violent
elections. COMELEC had to act desively in view of the fast deteriorating peace and order situation caused by the delay
in the counting of votes. The evidence of this fragile peace and order cannot be downgraded. In his handwritten report
to the COMELEC dated May 12, 1998, Atty. Tolentino, Jr. stated:
xxx xxx xxx
Additional marines have been deployed at the SSC. The undersigned is not sure if it is merely intended
to tame a disorderly crowd inside and outside SSC, or a show of force.
It is submitted that since an error was discovered in a machine which is supposed to have an error
rate of 1:1,000,000, not a few people would believe that this error in Pata would extend to the other
municipalities. Whether or not this is true, it would be more prudent to stay away from a lifeless thing
that has shown tension and anxiety among and between the voters of Sulu.
Executive Director Resurreccion Z. Borra, Task Force Head, ARMM in his May 13, 1998 Memorandum to the
COMELEC likewise stated:
xxx xxx xxx
While the forces of AFP are ready to provide arm (sic) security to our COMELEC officials, BEI's and
other deputies, the political tensions and imminent violence and bloodshed may not be prevented, as
per report received, the MNLF forces are readying their forces to surround the venue for automated
counting and canvassing in Sulu in order that automation process will continue.
Last but not the least, the military and the police authorities unanimously recommended manual counting to
preserve peace and order. Brig. Gen. Edgardo V. Espinosa, Commanding General, Marine Forces Southern
Philippines, Brig. Gen. Percival M. Subala, Commanding General, 3rd Marine Brigade, and Supt. Charlemagne
S. Alejandrino, Provincial Director, Sulu PNP Command explained that it". . . will not only serve the interest of
majority of the political parties involved in the electoral process but also serve the interest of the military and
police forces in maintaining peace and order throughout the province of Sulu."
An automated count of the local votes in Sulu would have resulted in a wrong count, a travesty of the sovereignty of
the electorate. Its aftermath could have been a bloodbath. COMELEC avoided this imminent probality by ordering a
manual count of the votes. It would be the height of irony if the Court condemns COMELEC for aborting violence in the
Sulu elections.
Fourth. We also find that petitioner Loong and intervenor Jikiri were not denied process. The Tolentino memorandum
clearly shows that they were given every opportunity to oppose the manual in count of the local ballots in Sulu. They
were orally heard. They later submitted written position papers. Their representatives escorted the transfer of the
ballots and the automated machines from Sulu to Manila. Their watchers observed the manual count from beginning
to end. We quote the Tolentino memorandum, viz:
xxx xxx xxx
On or about 6:00 a.m. of May 12, 1998, while automated counting of all the ballots for the province of
Sulu was being conducted at the counting center located at the Sulu State College, the COMELEC Sulu

Task Force Head (TF Head) proceeded to the room where the counting machine assigned to the
municipality of Pata was installed to verify the cause of the commotion therein.
During the interview conducted by the TF Head, the members of the Board of Election Inspectors (BEI)
and watchers present in said room stated that the counting machine assigned to the municipality of
Pata did not reflect the true results of the voting thereat. The members of the BEI complained that
their votes were not reflected in the printout of the election returns since per election returns of their
precincts, the candidate they voted for obtained "zero". After verifying the printout of some election
returns as against the official ballots, the TF Head discovered that votes cast in favor of a mayoralty
candidate were credited in favor of his opponent.
In his attempt to remedy the situation, the TF Head suspended the counting of all ballots for said
municipality to enable COMELEC field technicians to determine the cause of the technical error, rectify
the same, and thereafter proceed with automated counting. In the meantime, the counting of the
ballots for the other municipalities proceeded under the automated system.
Technical experts of the supplier based in Manila were informed of the problem and after numerous
consultations through long distance calls, the technical experts concluded that the cause of the error
was in the manner the ballots for local positions were printed by the National Printing Office (NPO),
namely, that the ovals opposite the names of the candidates were not properly aligned. As regards the
ballots for national positions, no error was found.
Since the problem was not machine-related, it was obvious that the use of counting machines from
other municipalities to count the ballots of the municipality of Pata would still result in the same
erroneous count. Thus, it was found necessary to determine the extent of the error in the ballot
printing process before proceeding with the automated counting.
To avoid a situation where proceeding with automation will result in an erroneous count, the TF Head,
on or about 11:45 a.m. ordered the suspension of the counting of all ballots in the province to enable
him to call a meeting with the heads of the political parties which fielded candidates in the province,
inform them of the technical error, and find solutions to the problem.
On or about 12:30 p.m., the TF Head presided over a conference at Camp General Bautista (3rd
Marine Brigade) to discuss the process by which the will of the electorate could be determined. Present
during the meeting were:
1. Brig. Gen. Edgardo Espinoza
Marine Forces, Southern Philippines.
2. Brig. Gen. Percival Subala
3rd Marine Brigade
3. Provincial Dir. Charlemagne Alejandrino
Sulu PNP Command
4. Gubernatorial Candidate Tupay Loong
LAKAS-NUCD Loong Wing
5. Gubernatorial Candidate Abdusakur Tan
LAKAS-NUCD Tan Wing
6. Gubernatorial Candidate Yusop Jikiri
LAKAS-NUCD Tan Wing

7. Gubernatorial Candidate Kimar Tulawie

LAMMP
8. Congressional Candidate Bensaudi Tulawie
LAMMP
During said meeting, all of the above parties verbally advanced their respective positions. Those in
favor of a manual count were:
1. Brig. Gen. Edgardo Espinoza
2. Brig. Gen. Percival Subala
3. Provincial Dir. Charlemagne Alejandrino
4. Gubernatorial Candidate Abdusakur Tan
5. Gubernatorial Candidate Kimar Tulawie
6. Congressional Candidate Bensaudi Tulawie
and those in favor of an automated count were:
1. Gubernatorial Candidate Tupay Loong
2. Gubernatorial Candidate Yusop Jikiri
Said parties were then requested by the TF Head to submit their respective position papers so that the
same map be forwarded to the Commission en banc, together with the recommendations of the TF
Head.
The TF Head returned to the counting center at the Sulu State College and called his technical staff to
determine the extent of the technical error and to enable him to submit the appropriate
recommendation to the Commission en banc.
Upon consultation with the technical staff, it was discovered that in the Municipality of Talipao, some of
the local ballots were rejected by the machine. Verification showed that while the ballots were
genuine, ballot paper bearing a wrong "sequence code" was used by the NPO during the printing
process.
Briefly, the following is the manner by which a "sequence code" determined genuineness of a ballot. A
municipality is assigned a specific (except for Jolo, which assigned two (2) machines, and sharing of
one (1) machine by two (2) municipalities, namely, H.P. Tahil and Maimbung, Apandami and K.
Caluang, Pata and Tongkil and Panamao and Lugus). A machine is then assigned a specific "sequence
code" as one of the security features to detect whether the ballots passing through it are genuine.
Since a counting machine is programmed to read the specific "sequence code" assigned to it, ballots
which bear a "sequence code" assigned to another machine/municipality, even if said ballots were
genuine will be rejected by the machine.
Other municipalities, such as Siasi, Indanan, Tapul and Jolo also had the same problem of rejected
ballots. However, since the operators were not aware that one of the reasons for rejection of ballots is
the use of wrong "sequence code", they failed to determine whether the cause for rejection of ballots
for said municipalities was the same as that for the municipality of Talipao.
In the case of "misaligned ovals", the counting machine will not reject the ballot because all the
security features, such as "sequence code", are present in the ballot, however, since the oval is
misaligned or not placed in its proper position, the machine will credit the shaded oval for the position
where the machine is programmed to "read" the oval. Thus, instead of rejecting the ballot, the

machine will credit the votes of a candidate in favor of his opponent, or in the adjacent space where
the oval should be properly placed.
It could not be determined if the other municipalities also had the same technical error in their official
ballots since the "misaligned ovals" were discovered only after members of the Board of Election
Inspectors of the Municipality of Pata complained that their votes were not reflected in the printout of
the election results.
As the extent or coverage of the technical errors could not be determined, the TF Head, upon
consultation with his technical staff, was of the belief that it would be more prudent to count the
ballots manually than to proceed with an automated system which will result in an erroneous count.
The TF Head thus ordered the indefinite suspension of counting of ballots until such time as the
Commission shall have resolved the petition/position papers to be submitted by the parties. The TF
Head and his staff returned to Camp General Bautista to await the submission of the position papers of
the parties concerned.
Upon receipt of the position papers of the parties, the TF Head faxed the same in the evening of May
12, 1998, together with his handwritten recommendation to proceed with a manual count. Attached
are copies of the recommendations of the TF Head (Annex "1"), and the position papers of the
Philippine Marines and Philippine National Police (Annex "2"), LAKAS-NUCD Tan Wing Annex (Annex
"3"), Lakas-NUCD Loong Wing (Annex "4"), LAKAS-NUCD-MNLF Wing (Annex "5") and LAMMP (Annex
"6"). Said recommendations and position papers were the bases for the promulgation of COMELEC
Minute Resolution No. 98-1750 dated May 13, 1998 (Annex "7"), directing, among other things, that
the ballots and counting machines be transported by C130 to Manila for both automated and manual
operations.
Minute Resolution No. 98-1750 was received by the TF Head through fax on or about 5:30 in the
evening of May 13, 1998. Copies were then served through personal delivery to the heads of the
political parties, with notice to them that another conference will be conducted at the 3rd Marine
Brigade on May 14, 1998 at 9:00 o'clock in the morning, this time, with Lt. General Joselin Nazareno,
then AFP Commander, Southern Command. Attached is a copy of said notice (Annex "8") bearing the
signatures of candidates Tan (Annex "8-A") and Loong (Annex "8-B") and the representatives of
candidates Tulawie (Annex "8-C") and Jikiri (Annex "8-D").
On May 14, 1998, the TF Head presided over said conference in the presence of the heads of the
political parties of Sulu, together with their counsel, including Lt. Gen. Nazareno, Brig. Gen. Subala,
representatives of the NAMFREL, media and the public.
After hearing the sides of all parties concerned, including that of NAMFREL, the procedure by which
the ballots and counting machines were to be transported to Manila was finalized, with each political
party authorized to send at least one (1) escort/watcher for every municipality to accompany the
ballot boxes and counting machines from the counting center at the Sulu State College to the Sulu
Airport to the PICC, where the COMELEC was then conducting its Senatariol Canvass. There being four
parties, a total of seventy-two (72) escorts/watchers accompanied the ballots and counting machines.
Two C130s left Sulu on May 15, 1998 to transport all the ballot boxes and counting machines,
accompanied by all the authorized escorts. Said ballots boxes reached the PICC on the same day, with
all escorts/watchers allowed to station themselves at the ballot box storage area. On May 17, 1998,
another C130 left Sulu to ferry the members of the board of canvassers.
Fifth. The evidence is clear that the integrity of the local ballots was safeguarded when they were transferred from
Sulu to Manila and when they were manually counted.
A shown by the Tolentino memorandum, representatives of the political parties escorted the transfer of ballots from
Sulu to PICC. Indeed, in his May 14, 1992 letter to Atty. Tolentino, Jr., petitioner Tupay Loong himself submitted the
names of his representative who would company the ballot boxes and other election paraphernalia, viz: 20
Dear Atty. Tolentino:
Submitted herewith are the names of escort(s) to accompany the ballot boxes and other election
pharaphernalia to be transported to COMELEC, Manila, to wit:

1. Jolo Joseph Lu
2. Patikul Fathie B. Loong
3. Indanan Dixon Jadi
4. Siasi Jamal Ismael
5. K. Kaluang Enjimar Abam
6. Pata Marvin Hassan
7. Parang Siyang Loong
8. Pangutaran Hji. Nasser Loong
9. Marunggas Taib Mangkabong
10. Luuk Jun Arbison
11. Pandami Orkan Osman
12. Tongkil Usman Sahidulla
13. Tapul Alphawanis Tupay
14. Lugus Patta Alih
15. Maimbong Mike Bangahan
16. P. Estino Yasir Ibba
17. Panamso Hamba Loong
18. Talipao Ismael Sali
Hoping for your kind and (sic) consideration for approval on this matter.
Thank you.
Very truly yours,
(Sgd.) Tupay T. Loong
(sgd.) Asani S.
Tammang
The ballot boxes were consistently under the watchful eyes of the parties representatives. They were placed in an
open space at the PICC. The watchers stationed themselves some five (5) meters away form the ballot boxes. They
watched 24 hours a day and slept at the PICC. 21
The parties' watchers again accompanied the transfer of the ballot boxes from PICC to the public schools of Pasay City
where the ballots were counted. After the counting, they once more escorted the return of the ballot boxes to
PICC. 22
In fine, petitioner's charge that the ballots could have been tampered with before the manual counting is totally
unfounded.

Sixth. The evidence also reveals that the result of the manual count is reliable.
It bears stressing that the ballots used in the case at bar were specially made to suit an automated election. The
ballots were uncomplicated. They had fairly large ovals opposite the names of candidates. A voter needed only to
check the oval opposite the name of his candidate. When the COMELEC ordered a manual count of the votes, it issued
special rules as the counting involved a different kind of ballot, albeit, more simple ballots. The Omnibus Election Code
rules on appreciation of ballots cannot apply for they only apply to elections where the names of candidates are
handwritten in the ballots. The rules were spelled out in Minute Resolution 98-1798, viz: 23
In the matter of the Memorandum dated 17 May 1998 of Executive Director Resurreccion Z. Borra,
reprocedure of the counting of votes for Sulu for the convening of the Board of Election Inspectors, the
Municipal Board of Canvassers and the Provincial Board on May 18, 1998 at 9:00 a.m. at the Philippine
International Convention Center (PICC).
RESOLVED to approve the following procedure for the counting of votes for Sulu at the
PICC:
I. Common Provisions:
1. Open the ballot box, retrieve the Minutes of Voting and the
uncounted ballots or the envelope containing the counted ballots as
the case may be;
2. Segregate the national ballots from the local ballots;
3. Count the number of pieces of both the national and local ballots
and compare the same with the number of votes who actually voted as
stated in the Minutes of Voting:
If there is no Minutes of Voting, refer to the Voting Records at the back
of the VRRs to determine the number of voters who actually voted.
If there are more ballots than the number of voters who actually
voted, the poll clerk shall draw out as many local and national ballots
as may be equal to the excess and place them in the envelope for
excess ballots.
II. Counting of Votes
A. National Ballots:
1. If the national ballots have already been counted, return the same
inside the envelope for counted ballots, reseal and place the envelope
inside the ballot box;
2. If the national ballots have not yet been counted, place them inside
an envelope and give the envelope through a liaison officer to the
machine operator concerned for counting and printing of the election
returns;
3. The machine operator shall affix his signature and thumbmark
thereon, and return the same to the members of the BEI concerned for
their signatures and thumbmarks;
4. The said returns shall then be placed in corresponding envelopes for
distribution;
B. Local Ballots:
1. Group the local ballots in piles of fifty (50);

2. The Chairman shall read the votes while the poll clerk and the third
member shall simultaneously accomplish the election returns and the
tally board respectively.
If the voters shaded more ovals than the number of positions to be
voted for, no vote shall be counted in favor of any candidate.
3. After all the local ballots shall have been manually counted, the
same shall be given to the machine operator concerned for counting by
the scanning machine. The machine operator shall then save the
results in a diskette and print out the election returns for COMELEC
reference.
4. The BEI shall accomplish the certification portion of the election
returns and announce the results;
5. Place the election returns in their respective envelopes and
distribute them accordingly;
6. Return all pertinent election documents and paraphernalia inside the
ballot box.
III. Consolidation of Results
A. National Ballots
1. The results of the counting for the national ballots for each
municipality shall be consolidated by using the ERs of the automated
election system;
2. After the consolidation, the Machine Operator shall print the
certificate of canvass by municipality and statement of votes by
precinct;
3. To consolidate the provincial results, the MO shall load all the
diskettes used in the scanner to the ERs;
4. The MO shall print the provincial certificate of canvass and the SOV
by municipality;
5. In case there is system failure in the counting and/or consolidation
of the results, the POBC/MOBC shall revert to manual consolidation.
B. Local Ballots
1. The consolidation of votes shall be done manually by the
Provincial/Municipal Board of Canvassers;
2. The proclamation of winning candidates shall be based manual
consolidation.
RESOLVED, moreover that the pertinent provisions of COMELEC Resolution Nos. 2971
and 3030 shall apply.
Let the Executive Director implement this resolution.
As aforestated, five (5) Special Boards were initially created under Atty. Tolentino, Jr. to undertake the manual
counting, 24 viz:
a) Atty. Mamasapunod M. Aguam

Ms. G1oria Fernandez

Ms. Esperanza Nicolas
b) Director Ester L. Villaflor-Roxas
Ms. Celia Romero
Ms. Rebecca Macaraya
c) Atty. Zenaida S. Soriano
Ms. Jocelyn Guiang
Ma. Jocelyn Tan
d) Atty. Erlinda C. Echavia
Ms. Teresa A. Torralba
Ms. Ma. Carmen Llamas
e) Director Estrella P. de Mesa
Ms. Teresita Velasco
Ms. Nelly Jaena
Later, the COMELEC utilized the services of 600 public school teachers from Pasay City to do the manual
counting. Five (5) elementary schools served as the venues of the counting, viz: 25
1. Gotamco Elementary School, Gotamco Street, Pasay City for the
municipalities of Indanan, Pangutaran, Panglima Tahil, Maimbung;
2. Zamora Elementary School, Zamora Street, Pasay City for the
municipalities of Jolo, Talipao, Panglima Estino, and Tapul;
3. Epifanio Elementary School, Tramo Street, Pasay City for the
municipalities of Parang, Lugus, Panamao;
4. Burgos Elementary School, Burgos Street, Pasay City for the
municipalities of Luuk and Tongkil;
5. Palma Elementary School for the municipalities of Siasi and
Kalingalang Caluang.
From beginning to end, the manual counting was done with the watchers of the parties concerned in attendance.
Thereafter, the certificates of canvass were prepared and signed by the City/Municipal Board of Canvassers composed
of the Chairman, Vice-Chairman, and Secretary. They were also signed by the parties' watchers. 26
The correctness of the manual count cannot therefore be doubted. There was no need for an expert to count the
votes. The naked eye could see the checkmarks opposite the big ovals. Indeed, nobody complained that the votes
could not be read and counted. The COMELEC representatives had no difficulty counting the votes. The 600 public
school teachers of Pasay City had no difficulty. The watchers of the parties had no difficulty. Petitioner did not object to
the rules on manual count on the ground that the ballots cannot be manually counted. Indeed, in his original Petition,
petitioner did not complain that the local ballots could not be counted by a layman. Neither did the intervenor
complain in his petition for intervention. The allegation that it will take a trained eye to read the ballots is more
imagined than real.

This is not all. As private respondent Tan alleged, the manual count could not have been manipulated in his favor
because the results shows that most of his political opponents won. Thus, "the official results show that the two
congressional seats in Sulu were won by Congressman Hussin Amin of the LAKAS-MNLF Wing for the 1st District and
Congressman Asani Tammang of the LAKAS-Loong Wing for the 2nd District. In the provincial level, of the eight (8)
seats for the Sangguniang Panlalawigan, two (2) were won by the camp of respondent Tan; three (3) by the camp of
petitioner Loong; two (2) by the MNLF; and one (1) by LAMMP. In the mayoral race, seven (7) out of eighteen (18)
victorious municipal mayors were identified with respondent Tan; four (4) with petitioner Loong; three (3) with the
MNLF; two (2) with LAMMP and one (1) with REPORMA. 27 There is logic to private respondent Tan's contention that if
the manual count was tampered, his candidates would not have miserably lost.1wphi1.nt
Seventh. We further hold that petitioner cannot insist on automated counting under R.A. No. 8436 after the machines
misread or rejected the local ballots in five (5) municipalities in Sulu. Section 9 of R.A. No. 8436 provides:
Sec. 9. Systems Breakdown in the Counting Center. In the event of a systems breakdown of all
assigned machines in the counting center, the Commission shall use any available machine or any
component thereof from another city/municipality upon approval of the Commission En Banc or any of
its divisions.
The transfer of such machines or any component thereof shall be undertaken in the presence of
representatives of political parties and citizens' arm of the Commission who shall be notified by the
election officer of such transfer.
There is a systems breakdown in the counting center when the machine fails to read the ballots or
fails to store/save results or fails to print the results after it has read the ballots; or when the
computer fails to consolidate election results/reports or fails to print election results-reports after
consolidation.
As the facts show, it was inutile for the COMELEC to use other machines to count the local votes in Sulu. The
errors in counting were due to the misprinting of ovals and the use of wrong sequence codes in the local
ballots. The errors were not machine-related. Needless to state, to grant petitioner's prayer to continue the
machine count of the local ballots will certainly result in an erroneous count and subvert the will of the
electorate.
Eighth. 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 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
COMELEC in the conduct of our elections. Thus, we held in Sumulong v. COMELEC: 28
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 the initiative which by constitutional and legal mandates properly belongs to
it.
In the case at bar, the COMELEC order for a manual count was not reasonable. It was the only way to count
the decisive local votes in the six (6) municipalities of Pata, Talipao, Siasi, Tudanan, Tapul and Jolo. 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. It ought to be self-evident that the
Constitution did not envision a COMELEC that cannot count the result of an election.
Ninth. 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. Even more, we cannot order a special election unless demanded by exceptional
circumstances. Thus, the plea for this Court to call a special election for the governorship of Sulu is completely offline. The plea can only be grounded on failure of election. Section 6 of the Omnibus Election Code tells us when there
is a failure of election, viz:
Sec. 6. Failure of election. If, on account of force majeure, terrorism, fraud, or other analogous
causes, the election in any polling place has not been held on the date fixed, or had been suspended
before the hour fixed by law for the closing of the voting, or after the voting and during the
preparation and the transmission of the election returns or in the custody or canvass thereof, such
election results in a failure to elect, and in any of such cases the failure or suspension of election
would affect the result of the election, the Commission shall on the basis of a verified petition by any
interested party and after due notice and hearing, call for the holding or continuation of the election,
not held, suspended or which resulted in a failure to elect but not later than thirty days after the
cessation of the cause of such postponement or suspension of the election or failure to elect.
To begin with, the plea for a special election must be addressed to the COMELEC and not to this Court. Section
6 of the Omnibus Election Code should be read in relation to Section 4 of R.A. No. 7166 which provides:
Sec. 4. Postponement, Failure of Election and Special Elections. The postponement, declaration of
failure of elections and the calling of special elections as provided in Sections 5, 6, and 7 of the
Omnibus Election Code shall be decided by the Commission en banc by a majority vote of its
members. The causes for the declaration of a failure of election may occur before or after casting of
votes or on the day of the election.
The grounds for failure of election force majeure, terrorism, fraud or other analogous causes clearly
involve questions of fact. It is for this reason that they can only be determined by the COMELEC en banc after
due notice and hearing to the parties. In the case at bar, petitioner never asked the COMELEC en banc to call
for a special election in Sulu. Even his original petition with this Court, petitioner did not pray for a special
election. His plea for a special election is a mere afterthought. Too late in the day and too unprocedural.
Worse, the grounds for failure of election are inexistent. The records show that the voters of Sulu were able to
cast their votes freely and fairly. Their votes were counted correctly, albeit manually. The people have spoken.
Their sovereign will has to be obeyed.
There is another reason why a special election cannot be ordered by this Court. To hold a special election only for the
position of Governor will be discriminatory and will violate the right of private respondent to equal protection of the
law. The records show that all elected officials in Sulu have been proclaimed and are now discharging their powers and
duties. Thus, two (2) congressmen, a vice-governor, eight (8) members of the Sangguniang Panlalawigan and
eighteen (18) mayors, numerous vice-mayors and municipal councilors are now serving in their official capacities.
These officials were proclaimed on the basis of the same manually counted votes of Sulu. If manual counting is illegal,
their assumption of office cannot also be countenanced. Private respondent's election cannot be singled out as invalid
for alikes cannot be treated unalikes.
A final word. Our decision merely reinforces our collective efforts to endow COMELEC with enough power to hold free,
honest, orderly and credible elections. A quick flashback of its history is necessary lest our efforts be lost in the
labyrinth of time.
The COMELEC was organized under Commonwealth Act No. 607 enacted on August 22, 1940. The power to enforce
our election laws was originally vested in the President and exercised through the Department of Interior. According to
Dean Sinco, 29 the view ultimately that an independent body could better protect the right of suffrage of our people.
Hence, the enforcement of our election laws, while an executive power, was transferred to the COMELEC.
From a statutory creation, the COMELEC was transformed to a constitutional body by virtue of the 1940 amendments
to the 1935 Constitution which took effect on December 2, 1940. COMELEC was generously granted the power to
"have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections . . .. 30
Then came the 1973 Constitution. It further broadened the powers of COMELEC by making it the sole judge of all
election contests relating to the election, returns and qualifications of members of the national legislature and elective
provincial and city officials. 31 In fine, the COMELEC was given judicial power aside from its traditional administrative
and executive functions.

The 1987 Constitution quickened this trend of strengthening the COMELEC. Today, COMELEC enforces and administers
all laws and regulations relative to the conduct of elections, plebiscites, initiatives, referenda and recalls. Election
contests involving regional, provincial and city elective officials are under its exclusive original jurisdiction. All contests
involving elective municipal and barangay officials are under its appellate jurisdiction. 32
Our decisions have been in cadence with the movement towards empowering the COMELEC in order that it can more
effectively perform its duty of safeguarding the sanctity of our elections. In Cauton vs. COMELEC, 33 we laid down this
liberal approach, viz:
xxx xxx xxx
The purpose of the Revised Election Code is to protect the integrity of elections and to suppress all
evils that may violate its purity and defeat the will of the voters. The purity of the elections is one of
the most fundamental requisites of popular government. The Commission on Elections, by
constitutional mandate, must do everything in its power to secure a fair and honest canvass of the
votes cast in the elections. In the performance of its duties, the Commission must be given a
considerable latitude in adopting means and methods that will insure the accomplishment of the great
objective for which it was created to promote free, orderly, and honest elections. The choice of
means taken by the Commission on Elections, unless they are clearly illegal or constitute grave abuse
of discretion, should not be interfered with.
In Pacis vs. COMELEC, 34 we reiterated the guiding principle that "clean elections control the appropriateness
of the remedy." The dissent, for all its depth, is out of step with this movement. It condemns COMELEC for
exercising its discretion to resort to manual count when this was its only viable alternative. It would set aside
the results of the manual count even when the results are free from fraud and irregularity. Worse, it would set
aside the judgment of the people electing the private respondent as Governor. Upholding the sovereignty of
the people is what democracy is all about. When the sovereignty of the people expressed thru the ballot is at
stake, it is not enough for this Court to make a statement but it should do everything have that sovereignty
obeyed by all. Well done is always better than well said.
IN VIEW WHEREOF, the petition of Tupay Loong and the petition in intervention of Yusop Jikiri are dismissed, there
being no showing that public respondent gravely abused its discretion in issuing Minute Resolution Nos. 98-1748, 981750, 98-1796 and 98-1798. Our status quo order of June 23, 1998 is lifted. No costs.
SO ORDERED.
Davide, Jr., C.J., Romero, Bellosillo, Melo, Vitug, Kapunan, Mendoza, Quisumbing, Purisima, Buena and GonzagaReyes, JJ., concur.
Panganiban, J., Please see dissenting opinion.
Pardo and Santiago, JJ., took no part.

Separate Opinions
PANGANIBAN, J., dissenting opinion;
With due respect, I dissent. I submit that the Commission on Elections (Comelec) blatantly violated its express and
specific statutory mandate to conduct automated elections in the Province of Sulu without any adequate legal or
factual bases. Specifically, the Comelec gravely abused its discretion in the following acts:
1. In peremptorily stopping the ongoing automated counting of ballots in the
Municipality of Pata and in the entire Province of Sulu on the flimsy ground that three
ballots for a mayoralty candidate in said municipality were not tallied by the counting
machine assigned to said town

2. In changing the venue and the mode of counting from automated to manual, due to
alleged imminent danger of violence
3. In violating its own Resolution ordering both an automated count and a parallel
manual count, by actually holding only a manual count, without giving any reason for
completely abandoning the automated system which was already 65 percent complete
in the entire province
4. In counting and appreciating the automated ballots with the use of the rules
peculiar to manual elections, not to the automated election system; that is, the
Comelec manually tallied the ballots in a way different from how the automated
machines would have counted them; hence, the results as manually appreciated
substantially differed from the machine-generated ones
5. In issuing, without due process of law, its assailed Minute Resolutions relating to the
change in the manner and venue of counting
Let me explain each of these grounds.
1. Stoppage of Automated Count
Legally and Factually Flawed
To begin with, there is absolutely no dispute that Congress required the Comelec to conduct automated, not manual,
elections in the Autonomous Region in Muslim Mindanao (ARMM), including the Province of Sulu, during the May 11,
1998 elections. Republic Act (RA) 8436 explicitly mandates the Comelec to "use an automated election system . . . for
process of voting, counting of votes and canvassing/consolidation of results" 1 in the ARMM.
However, contrary to its above clear mandate, the Comelec abondoned the ongoing automated counting of votes in
Sulu during the last elections and substituted it mid-stream with the manual system. This reversion to the manual
election system is nowhere authorized in the same or any other law. Clearly, the poll body has no legislative power to
modify, much less to contravene, the law. 2 Neither can it assume powers not granted to it either by the Constitution
or by Congress.
On the other hand, the majority justifies this reversion to the manual method as a valid exercise of the Comelec's
discretion to ensure a free, orderly, honest, and credible electoral exercise, stressing that this Court's ruling is "in
cadence with the movement towards empowering the Comelec in order that it can more effectively perform its duty of
safeguarding the sanctity of our elections." I respectfully say, however, that such "movement" should be canalized by
the proposition that the Comelec may exercise its discretion only in accordance with law and never in violation of it.
In any event, let me delve deeper into the factual and legal antecedents which led to the stoppage of the automated
count, if only to demonstrate the utter lack of prudence in the Comelec's actions.
Factual Antecedents of
Stoppage of Count
About 6:00 a.m. on May 12, 1998, the day after the election, while the automated counting of the ballots was being
conducted at the Sulu State College, some election inspectors as well as watchers called the attention of the Comelec
Task Force head in Sulu, Atty. Jose Tolentino Jr., to allegedly patent discrepancies between the printed election returns
and the actual votes cast for the mayoralty candidates in the Municipality of Pata. On the spot, Atty. Tolentino picked
out three local ballots that had already been counted. He noticed that while they contained votes for a certain
mayoralty candidate, such votes were not credited in the latter's favor in the precinct election return, which showed
zero (0) vote for that candidate (Mr. Anton Burahan). Atty. Tolentino then took it upon himself to immediately order
the suspension of the automated counting of the ballots from Pata. Tracing the error to misprinted ballots, he
forthwith ordered a province-wide suspension of the automated count, on the suspicion that the printing defect was
prevalent province-wide. At that point, about 65 percent of the ballots cast in Sulu were already machine-counted.
Intervenor Jikiri alleged he was at the time leading the count.
I believe that Atty. Tolentino acted with grave abuse of discretion. First, he had no legal authority to order even a
temporary stoppage of the counting. During the Oral Argument on September 15, 1998, he candidly admitted that he

had no statutory or even regulatory basis for his action. 3 Second, the verbal manifestation of a BEI member or a
watcher that a vote for a certain candidate was not reflected in the election return conferred no legal authority upon
the election official to examine the ballots personally. Third, granting that Atty. Tolentino had such authority, the
factual basis of his exercise of discretion was sorely insufficient. He saw only three (3) ballots out of about 200 from a
single precinct in Pata, which had 27 precincts; noted that the votes for a certain mayoralty candidate, which were
indicated in the three ballots, were not reflected on the election return, which instead printed zero vote for such
candidate; when without much ado, ordered the stoppage of the counting of the rest of the ballots from Pata. At the
time, only 13 ballot boxes had been, and 14 more remained to be, counted. Under RA 8436, it would have taken only
one (1) minute for the counting machine to process 100 to 150 ballots. 4 Thus, it would not have taken very long to
finish the count for the entire municipality.
Atty., Tolentino did not even try to get the aggregate votes cast in the municipality for each mayoral candidate, in
order to see if three or even 200 votes would spell a material difference in the result. Even under the manual election
system, election cases are heard on the assumption that the protested ballots or returns would, if validated, change
the election results. By analogy, the same logic should apply to automated elections. But Atty. Tolentino immediately
assumed that the three ballots would be determinative of the election results in the municipality, where about 5,400 5
votes had been cast. Not even the manual election system allows a suspension of the entire counting process on the
mere allegation that a few ballots or votes for one candidate in one precinct are questionable.
Doctrinally, it would be imprudent, even dangerous, to discard the automated system cavalierly and thereafter resort
to manual count on the flimsy basis that a few ballots were allegedly miscounted. Such holding would give losing
parties and candidates a convenient device to scuttle the automated system by the simple expedient of alleging that a
few ballots were improperly counted by the machine. It would give them a convenient excuse to revive and use an
antiquated and fraud-ridden electoral method and thus lead to a prolonged counting and canvassing, the very evil
sought to be remedied by RA 8436.
Remedy in Cases of False Returns
and Questionable Ballots
Moreover, since verbal complaints of incorrect tallying by the machine were not a valid reason to suspend the
counting, the charges made by the candidates' watchers should have prompted Atty. Tolentino to require the
complaining parties to file their protests for proper action in accordance with law and the Comelec rules. During the
canvassing (which, under the automated system, is also done separately from the counting), the adversely affected
parties could have objected to the inclusion of the questioned election return and followed, by analogy, the procedure
for a pre-proclamation controversy laid down in Section 243 of the OEC, as amended by Section 20 of RA 7166. Had
that recourse failed, the aggrieved candidate's remedy was an election protest. Suspending and finally stopping the
automated count were completely uncalled for. There simply was no basis for it.
Making matters worse, Atty. Tolentino directed the suspension of the automated count in all the 18 municipalities of
Sulu, even the alleged errors were reportedly discovered in partial returns from only six (6) municipalities Pata,
Talipao, Siasi, Indanan, Tapul and Jolo.
If only on this basis, the assailed Comelec Minute Resolutions authorizing the manual count must be set aside and
declared null and void for having been issued with grave abuse of discretion amounting to lack or excess of
jurisdiction. 6 But there are even more odious grounds, as I will now show.
2. No Imminent
Danger of Violence
The ponencia justifies the Comelec's precipitate shift to manual counting "in view of the fast deteriorating peace and
order situation caused by the delay in the counting of the votes." It pays heed to the unsubstantiated report of Atty.
Tolentino, but totally ignores the PNP provincial director's Comprehensive Report on the Sulu Election 7 dated May 18,
1998, which was submitted to this Court by, Private Respondent Tan. Said Report makes no mention of or reference to
any incident that would substantiate Tolentino's statement. Rather, it bares the relative tranquillity of the recent,
electoral process in the province, viz.
1. The conduct of election in the province of Sulu, by her own standard, was generally peaceful sans
some isolated cases of mortar shelling and failure of voting in some barangays of Panamao, ballot
boxes damaged resulting from pump boat capsizing in Tongkil and failure of conducting elections in
two precincts is Siasi, all of Sulu. Automated counting of the ballots, however, was stopped the day

after the election when inconsistency in the print out of results were discovered in the counting
machine assigned to Pata municipality. This prompted the COMELEC to order the counting to be done
in Manila.
xxx xxx xxx
SIGNIFICANT INCIDENTS
Voting in the areas assigned to Sulu PPO was generally peaceful and orderly except for some minor
hitches. In Tongkil, three ballot boxes fell into the sea when the pump boat carrying them capsized.
There was also allegation of ballot snatching thereat and this matter is being investigated by this PPO.
In Indanan, there was a minor misunderstanding between the Ahajan brothers of Brgy. Panabuan but
this was immediately resolved. In Jolo, particularly at the polling places at Hadji Butu School of Arts
and Trade there was a short commotion among followers of candidates.
In the areas covered by the 3rd MBde, violence erupted only in Talipao, and Panamao. Reportedly,
there [was] gunfire heard in the outskirts of Tapul but neither opposing group reacted.
xxx xxx xxx
3. ASSESSMENT
The conduct of election in Sulu was generally peaceful compared with the previous elections. Political
rivalry was less intense; the extent of cheating was also less; and a good number of registered voters
actually voted. This phenomenon may have been brought about by the fact that since there were four
sets of candidates, the partisan armed groups were thinly distributed, meaning the more number of
groupings, the lesser is the threat of violence.
Even assuming arguendo that imminent violence threatened the counting center, such situation would justify only the
transfer of the counting venue. Even then, the concurrence of the majority of the watchers for such transfer is still
required under the OEC. It does not appear on record that the consent of the watchers was ever sought, not to say
given. On the contrary, Minute Resolution No. 98-1750 (dated May 13, 1998), which ordered the change of venue for
the counting, was issued ex parte by the Comelec en banc, without any petition, recommendation or proper
investigation for said purpose. Such arbitrary and peremptory issuance, in violation of law, again amounted to an
abusive exercise of discretion.
But, even granting arguendo that the transfer of the counting venue was valid, the abandonment of the automated
count was definitely not a necessary legal consequence thereof. In other words, only the venue could have been
changed, but not the method of counting. If the Comelec had conducted an automated count in Manila, that may even
be arguably sustained. I repeat, the alleged imminent threat of violence did not at all justify the manualization of the
counting process; if at all, it only authorized a change of venue of the automated count.
3. No Justification to
Abandon Automated Count
Please note that the Comelec, in its Minute Resolution 98-1796 8 dated May 15, 1998, actually resolved "to conduct a
parallel manual counting [i]n all 18 municipalities of Sulu . . .. 9 Originally, it would appear that the Commission
intended to conduct in Manila an automated count first, and then a parallel manual count. Hence, it ordered the airlifting to its head office of all the relevant election paraphernalia, including the automated machines.
However, the Comelec did not obey its own Resolution. Worse, it did not explain why this vital provision requiring an
automated count was not implemented, and why only a manual count was conducted. I could have conceded the
propriety of a parallel manual count which plainly means that both automated and manual counts were to be
performed. Although not expressly sanctioned by law, such parallel manual count may arguably be regarded as falling
within the residual regulatory authority of the Comelec. Unfortunately and inexplicably, however, only a manual count
was done; the Resolution ordering an automated count was simply ignored without the Comelec giving any reason
therefor.

To repeat, there was no reason at all to completely abandon the automated count. The Comelec had a duty to comply
with the mandate of Congress. Yet, for unstated and I submit, unexplainable reasons, it simply substituted the will of
Congress with its own arbitrary action. Clearly, the Comelec acted without or in excess of its jurisdiction.
4. Rules for Manual Elections Different from
Those for the Automated System
I would like to emphasize that the resort to a manual appreciation of the ballots is precluded by the basic features of
the automated election system, 10 which requires minimum human intervention, the use of a special quality of ballot
paper, the use of security codes, the mere shading of an oval corresponding to the name of the candidate voted for,
and the mechanized discrimination of genuine from spurious ballots, as well as rejection of fake or counterfeit ones.
The automated system takes away the discretion of the boards of election inspectors (BEI) in appreciating ballots. 11
A simple cursory reading of the rules 12 laid down in the Omnibus Election Code (OEC) for the appreciation and
counting of ballots cast in a manual election easily discloses that they are inappropriate, if not downright useless, to
the proper appreciation and reading of the ballots used in the automated system, wherein the names of the
candidates are printed on the ballots beforehand and are not handwritten by the voters themselves, and wherein each
name has a corresponding oval which must have its own exact location on the ballot, conforming to the design that
has been programmed in the counting machine. In other words, the automated election system has peculiar features
designed for electronic, not manual, verification.
Under the automated system, the machines are programmed to recognize or read only the presence of carbon in the
ovals. To erase a vote is, in fact, not advisable (the voter may, under Comelec rules, ask for a new ballot), because
some carbon content may be left in the oval that would still be recognized and tallied by the machine. Human
handling of the automated ballots will also make it all too easy to nullify the voter's will. A blank ballot (in which the
voter intentionally refrained from voting for any candidate) can be easily pencil-marked in favor a certain candidate.
Or a vote can be facilely nullified by simply marking the oval of another candidate for the same office. The point is:
human handling of automated ballots is fraught with dangers to the integrity of the votes therein; it actually makes
the political exercise more vulnerable to electoral fraud.
To be more concrete and specific, during the physical examination of the ballots used in several precincts in Pata and
Jolo, conducted pursuant to the Court's Resolution dated February 9, 1999, as well as in the operation of the counting
machines to which these ballots were fed, 13 there were significant discrepancies between the results of the manual
count, as reflected in the official election returns, and those of the machine count. 14 Such were brought about by the
following:
1. Ovals that were ink-shaded were validated by the BEIs pursuant to the OEC 15 and the Comelec
rules. 16 On the other hand, these were ignored by the machines, which could detect only ovals with
sufficient carbon content.
2. Some ovals that were only partly shaded were not read by the machines, but were counted by the
BEI, pursuant to said Comelec rules.
3. In some ballots, several ovals for candidates for one office were shaded but, except for one, also
crossed out or marked with an "X." The counting machine invalidated these votes, because it could not
recognize the difference between an "X" mark and any other mark on the oval. All it could "read" was
the carbon content, and due to the presence of carbon on more than one oval for a single office, the
machine concluded that there was an "over-vote." Under the automated program, an "over-vote" is
considered "no vote." However, the BEIs counted the remaining uncrossed vote, considering it the
voter's true and valid vote, pursuant to the OEC rules. 17
4. Ballots on which the voter manually wrote the candidates' names were considered marked ballots
by some BEIs, pursuant to the OEC. But the machines counted the votes therein and ignored such
writings, as long as they were not found inside the ovals.
I could cite several other examples of why the manual count was not reflective of the machine count. Inspite of the
ponencia's plain admission that the OEC Rules on the appreciation of ballots "only apply to elections where the names
of the candidates are handwritten in the ballots," the stark fact is that such Rules were actually (and erroneously)
used here.

Indeed, he use of inappropriate Rules by the BEIs necessarily begot a misappreciation of the ballots. Such
misappreciation, in turn, led to a substantial difference in the election results, as yielded by the manual and the
automated counts. In sum, the manual count was not reflective of the automated count.
This Court's Ruling
Sets Back Election Modernization
It must be borne in mind that, verily, the consistency and the accuracy of the machine count were the underlying
factors in adopting the automated system of election. Precisely, human error, inconsistency and fraud were intended
to be eliminated in the automated system. In fact, the BEIs had no role in the counting and canvassing. Thus, the
resort to a manual count under the facts of this case was antithetical to the rationale and intent behind RA 8436. The
very purpose of the law was defeated by the cumbersome, inaccurate and error-prone manual system of counting
automated votes.
Indeed, to uphold the results of the manual count would set a dangerous precedent. It would be tantamount to
validating the arbitrary and illegal acts of the Comelec. It would provide the candidates a degenerated means to delay
the proclamation of winners. It would effectively nullify the purpose of delivering speedy and accurate election results
and thus defeat the election modernization ordained by Congress. Definitely, it would critically set back efforts at
eliminating electoral fraud. To paraphrase then Vice President, now President, Joseph E. Estrada, the automated
election system, which was prescribed as the "cure for electoral fraud," may, in the imprudent hands of an indiscreet
poll body, be truly "worse than the disease."
5. Lack of Due Process in Issuance
of Assailed Comelec Resolutions
The ponencia, citing the Tolentino Memorandum, states that Petitioner Loong and Intervenor Jikiri "were given every
opportunity to oppose the manual count of the local ballots in Sulu." Hence, contrary to their allegations, they were
not denied due process.
Again, I beg to disagree. Some factual antecedents have to be brought up to set the record straight.
The meeting among the candidates and other parties concerned, which Atty. Tolentino convened in the early afternoon
of May 12, 1998, was already post facto. The talking points in that meeting related to the alleged incorrect reading of
ballots for Pata, Sulu. They did not discuss the issue of whether to stop the tallying because much earlier in the
morning of that same day, Atty. Tolentino had already suspended the counting in that municipality and, shortly
thereafter, in the entire province. Furthermore, the group that convened did not yet take up the alleged rejection by
the machines of ballots in other municipalities, since the reports thereon came only after the said meeting. And such
stoppage, as I discussed earlier, was based merely on the verbal complaints of some watchers and members of the
BEI and Atty. Tolentino's personal, albeit unauthorized, examination of three ballots from one precinct, which showed
that votes for a certain mayoralty candidate were not reflected in the election return.
Immediately after that meeting adjourned, Private Respondent Abdusakur Tan sent his petition 18 directly to the
Comelec, requesting the immediate suspension of the automated count and the holding of a manual count in the
entire Province of Sulu. In response, the Comelec en banc forthwith issued on the very same day May 12, 1998
assailed Minute Resolution 98-1747, 19 granting the petition insofar as the votes in the Municipality of Pata were
concerned.
The assailed Resolution was issued even before the report-recommendation of Atty. Tolentino was submitted to the
Comelec en banc, close to midnight of that day. 20 While the effectivity of Minute Resolution 98-1747 was expressly
"subject to notice to all parties concerned," its very issuance by the Comelec en banc was obviously (1) without notice
to the other candidates, (2) without any hearing at all, and (3) without an independent investigation by the Comelec.
It relied totally on the contents of the petition itself.
Clearly, while the parties may have been heard by Atty. Tolentino, their inputs were definitely not communicated to
nor required by the Commission en banc prior to its issuance of Minute Resolution 98-1747. Besides, the Tolentino
meeting took up the problems in the Municipality of Pata only, for the alleged problems in the five other municipalities
of Sulu were discovered after that meeting was adjourned already. Such meeting, therefore, did not serve as a
sufficient basis for the Comelec to abandon the automated count in the entire province; to transfer the counting venue
from Sulu to Manila; and to totally shift to the manual count. In making these decisions and issuing the resolutions

therefor, the Comelec clearly did not accord the parties due process. It did not give them any opportunity to be heard
prior the promulgation of its rulings. The Comelec simply acted on its own.
Epilogue
Special Election as
the Equitable Remedy
The assailed Comelec Resolutions have heretofore been shown to be tainted with grave abuse of discretion; hence, the
manual count has no legal leg to stand on. Consequently, its results cannot be upheld. That which proceeds from a
void order is likewise void. The invalidity of the manual count resulted in no count at all. Equally important, the
manual count was not reflective of the results of an automated count because the ballots were not appreciated in the
manner the scanning machine would have counted them.
During the Oral Argument, the parties, as well as the solicitor general, agreed that an automated count was no longer
possible because, after the ballots had been manually handled (and blemished or rumpled in the process), the
scanning machines could not accurately read all of them anymore. 21 While the great majority of the ballots could still
be counted by the machines, there were those that could no longer be electronically processed ballots that were
torn, dirty or sticky; and the damp ones that the machine found difficult to disengage.
The ultimate effect of the invalidity of the manual count and the futility of an automated count at this time is the
annulment or junking of the votes of the people of Sulu in the last elections. The will of the electorate, expressed
through the ballots, has been frustrated or virtually canceled by the unauthorized acts of the Comelec. There is then
no basis for the proclamation of Private Respondent Tan as the duly elected governor of Sulu.
It must be pointed out, however, that the nullity of Tan's proclamation is not equivalent to a judicial
disenfranchisement of the Sulu electorate. Indeed, there is no evidence showing that the voting process itself was
tainted with undue irregularity. It was the counting process, rather, that was shrouded with uncertainty. The manual
count, I repeat, was not the prescribed or even the appropriate method of validating the ballots intended to be
electronically verified.
Time and again, the Court has held that the sovereign will must prevail over legal technicalities. 22 But when the
popular will itself is placed in serious doubt due to the irregularity of the very method used in determining it, we must
allow the people involved another chance to express their true choice. We simply cannot impose upon the people of
Sulu one who was not their clear choice, or whose election was, at the very least, placed in serious doubt by the
spuriousness of the method used in counting the votes.
The consequent loss of a legal and appropriate means to ascertain the genuine will of the voters during the last
election in Sulu necessitates the holding of a special election. I believe that this is the only equitable remedy left under
the circumstances, if we are to give true justice to the people of Sulu and let their sovereign will prevail. 23 Such
special election will, however, concern only the position of governor of the Province of Sulu. Only this position was
contested in the instant petition; only the candidates therefor have timely sought relief from this Court to assail the
manual count and the subject Minute Resolutions of the Comelec. The same relief cannot be granted to the candidates
for the other positions who, insofar as they are concerned, are deemed to have accepted the results of the manual
count as truly reflective of the will of the people of Sulu. Their failure to object in due time to the process, as well as
the results, manifests their conformity and acceptance. They are now estopped from questioning the validity of the
assumption into office of the duly proclaimed winners of the other positions in the province, whose rights cannot be
adversely affected in these proceedings without them being haled to and accorded their day in court. 24 Even this
Court has admitted the wisdom of this caveat as it denied the late intervention of Vice Gubernatorial Candidate
Abdulwahid Sahidulla.
The Need for Legislative Action
The foregoing disquisition shows that RA 8436 had not foreseen flaws in the automated system that were unrelated to
the counting machines or components thereof; thus, the lacuna of the proper recourse in such event. No remedies
were expressly prescribed (1) for candidates who believe there was a wrong count or canvass by the machine, or
more relevantly, (2) on whether Comelec may resort to a manual count of automated ballots, and if so, under what
circumstances. 25
Well-settled is the rule, that courts have no jurisdiction to make legislative pronouncements. 26 They have no power to
fill a vacuum in the law. Thus, the Court, I submit, should not give its imprimatur to the Comelec's resort to the

manual method of determining election results, where Congress has categorically prescribed the automated system.
Only Congress, the legislative arm of the government, can prescribe a precise remedy that will address the flaws
identified in this case. For the courts or the Comelec to do so (like a resort to manual count) would be tantamount to
judicial or administrative legislation, a course diametrical to the constitutional principle of separation of powers.
WHEREFORE, I vote that the petition be GRANTED. Assailed Comelec Resolution Nos. 98-1747, 98-1750, 98-1796 and
98-1798 should be declared NULL and VOID. The manually determined election results for the position of governor of
Sulu and the proclamation of Respondent Abdusakur Tan as the elected governor of said province must thus be SET
ASIDE and the Comelec ORDERED to call a special election for such position as soon as practicable.
Footnotes
1 See Report of Charlemagne Salamat Alejandrino, Police Superintendent, GSC, Provincial Director, pp. 1-2; Rollo, pp. 318-319.
2 See Memorandum of Atty. Tolentino, Jr. to Atty. Jose Balbuena, Director IV, Legal Department, COMELEC, pp. 1-2; Rollo, pp. 284285.
3 Ibid., p. 3; Rollo, p. 286.
4 Ibid., p. 4; Rollo, p. 287.
5 Ibid., p. 6; Rollo, p. 289.
6 Rollo, pp. 303-304.
7 Ibid., pp. 25-26.
8 Rollo, pp. 299-301.
9 Rollo, pp. 27-29.
10 Rollo, pp. 290-291.
11 Ibid.
12 Ibid., pp. 30-32.
13 Rollo, pp. 37-45.
14 Rollo, p. 54.
15 Ibid., p. 46.
16 Ibid., pp. 157-184.
17 Ibid., p. 330.
18 Ibid., p. 392.
19 Filipino Engineering and Machine Shop v. Ferrer, 135 SCRA 25 (1985).
20 Rollo, p. 314.
21 Supplemental Memorandum of the Solicitor General, pp. 11-12; Rollo, pp. 433-434.
22 Tolentino memorandum, op. cit., p. 14; Rollo, p. 297.
23 Rollo, pp. 34-35.
24 See Resolution No. 98-1796.
25 Rollo, p. 328.
26 Rollo, pp. 62-97.

27 Memorandum, p. 9; Rollo, p. 264.

28 73 Phil. 288, 295-296 (1941).
29 Philippine Political Law, 1962 ed., pp. 383-386.
30 Sec. 2, Art. X of the 1935 Constitution.
31 Sec. 2, Art. XII(C) of the 1973 Constitution.
32 Sec. 2, Art. IX(C) of the 1987 Constitution.
33 19 SCRA 911, 921-922 (1967).
34 25 SCRA 377, 388 (1968).
Panganiban, J., dissenting opinion;
1 6, RA 8436.
2 Cortez v. Comelec, 79 Phil. 350 (1947); Lawsin v. Escalona, 11 SCRA 643 (1964).
3 I Transcript 49-50.
4 7, No. 7.
5 According to Atty. Tolentino, there were about 200 ballots contained in a ballot box (II Transcript 46). The 27 ballot boxes for the
27 precincts of Pata, Sulu would thus yield about 5,400 ballots or votes.
6 Sanchez v. Comelec, 193 SCRA 320, January 24, 1991; Loong v. Comelec, 257 SCRA 1, May 16, 1996; Villanueva v. Court of
Appeals, 259 SCRA 14, July 15, 1996; Garay v. Comelec, 261 SCRA 222, August 26, 1996; Jagunap v. Comelec, 104 Phil 204, April
24, 1981; Sarmiento v. Comelec, 212 SCRA 313, August 6, 1992; PNCC v. NLRC, 217 SCRA 455, January 22, 1993; Philippine Air
Lines, Inc. v. NLRC, 225 SCRA 259, August 10, 1993; Philippine Air Lines, Inc. v. Confesor, 231 SCRA 41, March 10, 1994; Allado v.
Diokno, 232 SCRA 192, May 5, 1994; Labor v. NLRC, 248 SCRA 183, September 14, 1995; San Miguel Corp. v. NLRC, 209 SCRA
494, June 2, 1992.
7 Annex "3" to the Memorandum of Private Respondent Tan; rollo, pp. 256 et seq.
8 Rollo, pp. 30-32.
9 Emphasis supplied.
10 See Sec. 7, RA 8436.
11 Regalado E. Maambong, "New Technologies of Modernization in Electoral Administration: The Philippine Experience," Symposium
on Asian Elections in the 21st Century: A Report, January 1997, p. 30.
12 Sec. 211. Rules for the appreciation of ballots. 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. The board of election inspectors shall observe the following rules,
bearing in mind that the object of the election is to obtain the expression of the voters' will:
1. Where only the first name of a candidate or only his surname is written, the vote for such candidate is valid,
if there is no other candidate with same first name or surname for the same office.
2. Where only the first name of a candidate is written on the ballot, which when read, has a sound similar to
the surname of another candidate, the vote shall be counted in favor of the candidate with such surname. If
there are two or more candidates with the same full name, first name or surname and one of them is the
incumbent and on the ballot is written only such full name, first name or surname, the vote shall be counted in
favor of the incumbent.
3. In case the candidate is a woman who uses her maiden or married surname or both and there is another
candidate with the same surname, a ballot bearing only such surname shall be counted in favor of the
candidate who is an incumbent.
4. When two or more words are written on the same line on the ballot, all of which are the surnames of two or
more candidates, the same shall not be counted for any of them, unless one is a surname of an incumbent who
has served for at least one year in which case it shall be counted in favor of the latter.

When two or more words are written on different lines on the ballot all of which are the surnames of two or
more candidates bearing the same surname for an office for which the law authorize the election of more than
one and there are the same number of such surnames written as there are candidates with that surnames, the
vote shall be counted in favor of all the candidates bearing the surname.
5. When on the ballots is written a single word which is the first name of a candidate and which is at the same
time the surname of his opponent, the vote shall be counted in favor of the latter.
6. When two words are written on the ballot, one of which is the first name of the candidate and the other is
the surname of his opponent, the vote shall not be counted for either.
7. A name or surname incorrectly writtten which, when read, has a sound similar to the name or surname of a
candidate when correctly written shall be counted in his favor.
8. When a name of a candidate appears in a space of the ballot for an office for which he is a candidate and in
another space for which he is not a candidate, it shall be counted in his favor for the office for which he is a
candidate and the vote for the office for which he is not a candidate shall be considered as stray, except when it
is used as a means to identify the voter, in which case, the whole ballot shall be void.
If the word or words written on the appropriate blank on the ballot is the identical name or surname or full
name, as the case may be, of two or more candidates for the same office none of whom is an incumbent, the
vote shall be counted in favor of that candidate to whose ticket belong all the other candidates voted for in the
same ballot for the same constituency.
9. When in a space in the ballot there appears a name of a candidate that is erased and another clearly written,
the vote is valid for the latter.
10. The erroneous initial of the first name which accompanies the correct surname of a candidate, the
erroneous initial of the surname accompanying the correct first name of a candidate, or the erroneous middle
initial of the candidate shall not annul the vote in favor of the latter.
11. The fact that there exists another person who is not a candidate with the first name or surname of a
candidate shall not prevent the adjudication of the vote of the latter.
12. Ballots which contain prefixes as "Sr.," "Mr.," "Datu," "Ginoo," "Hon.," "Gob." or suffixes like "Hijo," "Jr.,"
"Segundo" are valid.
13. The use of the nicknames and appellations of affection and friendship, if accompanied by the first name or
surname of the candidate, does not annul such vote, except when they were used as a means to identify the
voter, in which case the whole, ballot is invalid: Provided, That if the nickname used is unaccompanied by the
name or surname of a candidate and it is the one by which he is generally or popularly known in the locality,
the name shall be counted in favor of said candidate, if there is no other candidate for the same office with the
same nickname.
14. Any vote containing initials only or which is illegible or which does not sufficiently identify the candidate for
whom it is intended shall be considered as a stray vote but shall not invalidate the whole ballot.
15. If on the ballot is correctly written the first name of a candidate but with a different surname, or the
surname of the candidate is correctly written but with different first name, the vote shall not be counted in
favor of any candidate having such first name and/or surname but the ballot shall be considered valid for other
candidates.
16. Any ballot written with crayon, lead pencil, or in ink, wholly or in part, shall be valid.
17. Where there are two or more candidates voted for in an office for which the law authorizes the election of
only one, the vote shall not be counted in favor of any of them, but this shall not affect the validity of the other
votes therein.
18. If the candidates voted for exceed the number of those to be elected, the ballot is valid, but the votes shall
be counted only in favor of the candidates whose names were firstly written by the voter within the spaces
provided for said office in the ballot until the authorized number is covered.
19. Any vote in favor of a person who has not filed a certificate of candidacy or in favor of a candidate for an
office for which he did not present himself shall be considered as astray vote but it shall not invalidate the
whole ballot.
20. Ballots containing the name of a candidate printed and pasted on a blank space of the ballot or affixed
thereto through any mechanical process are totally null and void.
21. Circles, crosses or lines put on the spaces on which the voter has not voted shall be considered as signs to
indicate his desistance from voting and shall not invalidate the ballot.

22. Unless it should clearly appear that they have been deliberately put by the voter to serve as identification
marks, commas, dots, lines or hyphens between the first name and surname of a candidate, or in other parts of
the ballot, traces of the letter "T", "J", and other similar ones, the first letters or syllables of names which the
voter does not continue, the use of two or more kinds of writing and unintentional or accidental flourishes,
strokes, or strains, shall not invalidate the ballot.
23. Any ballot which clearly appears to have been filled by two distinct persons before it was deposited in the
ballot box during the voting is totally null and void.
24. Any vote cast in favor of a candidate who has been disqualified by final judgment shall be considered as
stray and shall not be counted but it shall not invalidate the ballot.
25. Ballots wholly written in Arabic in localities where it is of general use are valid. To read them, the board of
election inspectors may employ an interpreter who shall take an oath that he shall read the votes correctly.
26. The accidental tearing or perforation of a ballot does not annul it.
27. Failure to remove the detachable coupon from a ballot does not annul such ballot.
13 With the help of Comelec personnel, the counting machines were used only for clean or smudge-free ballots, which were fed into
the machines to assure the integrity of the machine count.
14 During this process, Comelec personnel led by Atty. Jose Tolentino Jr. actually ran the automated ballots through the scanning
machines, thus showing a sampling comparison between the manual results and the machine-generated totals.
15 211, No. 16.
16 Part II, No. 8, of the Comelec Procedure for Manual Counting, dated May 23,1998.
17 See 211, No. 9.
18 Annex "1" to Comment; rollo, pp. 121-123.
19 Rollo, pp. 25-26.
20 II Transcript 13-14.
21 The caveat must be stated here, however, that during the sampling demonstration made by Comelec, which showed
discrepancies in the automated and manual counts, most of the ballots could still be read by the machines. Only one or two ballots
per precinct were spoiled or blemished to the point of being non-readable by the machine.
22 Frivaldo v. Comelec, 257 SCRA 727, 771, June 28, 1996; Benito v. Comelec, 235 SCRA 436, 442, August 17, 1994, citing several
cases.
23 The ponencia rules out this remedy, arguing that a special election was not prayed for by the parties and, at any rate, can be
authorized only in accordance with Sections 4, 5, 6 and 7 of the OEC. I stress however that, under the circumstances, a special
election is the EQUITABLE remedy because to uphold the manual count, as the majority did, merely gave imprimatur to arbitrary
acts of the Comelec and validated the inaccurate and unauthorized manual count.
24 Tan v. Barrios, 190 SCRA 686, 698-699, October 18, 1990; citing Icasiano v. Tan, 84 Phil 860 (1949); Busacay v. Buenaventura,
93 Phil 786 (1953).
25 Earlier, I opined that, by analogy, the parties could avail of pre-proclamation contests or election protests. However, such
analogy cannot be extended to manual elections because no law provides for such remedy.
26 Santiago v. Guingona Jr., GR. No. 134577, November 18, 1998; Javellana v. Executive Secretary, 50 SCRA 30, 84, March 31,
1973.1wphi1.nt

d.i.g.e.s.t.s at kung anetch anetch

Buac v. COMELEC
FACTS:
On April 25, 1998, the COMELEC conducted a plebiscite in Taguig, Metro Manila on the conversion of this municipality
into a highly urbanized city as mandated by Republic Act No. 8487. The residents of Taguig were asked this question:
Do you approve the conversion of the Municipality of Taguig, Metro Manila into a highly urbanized city to be known as
the City of Taguig, as provided for in Republic Act No. 8487?
On April 26, 1998, the Plebiscite Board of Canvassers (PBOC), without completing the canvass of sixty-four (64) other
election returns, declared that the No votes won, indicating that the people rejected the conversion of Taguig into a
city.
However, upon order of the COMELEC en banc, the PBOC reconvened and completed the canvass of the plebiscite
returns, eventually proclaiming that the negative votes still prevailed.
Alleging that fraud and irregularities attended the casting and counting of votes, private respondents, filed with the
COMELEC a petition seeking the annulment of the announced results of the plebiscite with a prayer for revision and
recount of the ballots. The COMELEC treated the petition as an election protest, docketed as EPC No. 98-102. It was
raffled to the Second Division.
Petitioner intervened in the case. He then filed a motion to dismiss the petition on the ground that the COMELEC has
no jurisdiction over an action involving the conduct of a plebiscite. He alleged that a plebiscite cannot be the subject of
an election protest.
The COMELEC Second Division issued a Resolution granting petitioners motion and dismissing the petition to annul
the results of the Taguig plebiscite for lack of jurisdiction. The COMELEC en banc affirmed this Resolution.
Accordingly, on April 19, 2004, the COMELEC Second Division issued an Order in EPC No. 98-102 constituting the
committees for the revision/recount of the plebiscite ballots.
On April 28, 2004, the revision/recount proceedings commenced and upon its termination, the Committees on
Revision submitted their complete and final reports.
Thereafter, the COMELEC Second Division set the case for hearing. As no witnesses were presented by petitioner, the
parties were directed to submit their respective memoranda, which they did.
Petitioner contends that the revision of the plebiscite ballots cannot be relied upon for the determination of the will of
the electorate because the revision is incomplete. He claims that:
Based on the Final Report of the Committee on Revision for each of the eight (8) Revision Committees, the revision of
ballots yielded a total of 15,802 votes for Yes and a total of 12,602 votes for No. The revision committee thus
canvassed only a total of 28,404 ballots.
As shown by the records, the COMELEC considered not only the total number of votes reflected in the Final
Canvassing Report of the Taguig PBOC, but also the voting results based on (1) the physical count of the ballots; (2)
the returns of the uncontested precincts; and (3) the appreciation of the contested ballots, all summed up and tallied
as follows:

Affirmative Negative
Total Number of Votes Per PBOC Canvassing Report 19,413 21,890
Minus: Number of Invalid Votes 253 419
Minus: Number of Votes Deducted from the
Plebiscite Returns After Physical Count (Table D) 0 2,024
Plus: Number of Votes Added After Physical Count 1,936 0

(Table D)
Plus: Credited Claimed Ballots 9 13
Total 21,105 19,460

ISSUE:
Whether or not the COMELEC gravely abused its discretion.
HELD:
Petitions dismissed for lack of merit.
The above factual findings of the COMELEC supported by evidence, are accorded, not only respect, but finality. This is
so because the conduct of plebiscite and determination of its result have always been the business of the COMELEC
and not the regular courts. Such a case involves the appreciation of ballots which is best left to the COMELEC. As an
independent constitutional body exclusively charged with the power of enforcement and administration of all laws and
regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall, the COMELEC has the
indisputable expertise in the field of election and related laws. Its acts, therefore, enjoy the presumption of regularity
in the performance of official duties.
In fine, we hold that in issuing the challenged Resolution and Order in these twin petitions, the COMELEC did not
gravely abuse its discretion.