ADMIN LAW CASES SET 5
G.R. No. 91718 July 13, 1990
GIL C. GALLARDO, petitioner, vs. FRANCO F. RIMANDO, respondent.
The issue in this petition for certiorari is the timeliness of the petitioner's election protest.
Petitioner Gil C. Gallardo and private respondent Franco F. Rimando were rival
candidates for the Office of Municipal Mayor of Naguilian, La Union, in the local elections
of January 18, 1988. On January 19, 1988, Rimando was proclaimed the winner over
Gallardo by a margin of 12 votes.
On January 22, 1988, Gallardo filed in the Commission on Elections (COMELEC) a
petition to annul the proclamation of Rimando. On December 8, 1988, the COMELEC
dismissed the petition.
On December 12, 1988, Gallardo appealed the COMELEC's final resolution to this Court
(Gallardo vs. COMELEC, G.R. No. 85974). On June 23, 1989, he received the Supreme
Court's final resolution dated May 30, 1989, dismissing his petition for review. On June
30, 1989, he filed an election protest entitled; "Gil C. Gallardo vs. Franco F.
Rimando," Case No. 4-Bg Municipal Election Protest, in the Regional Trial Court, Branch
33 at Bauang, La Union (p. 17, Rollo).
Rimando filed a motion to dismiss the protest on the ground that it was not filed within
ten (10) days after the proclamation of the results of the election fixed in Sec. 51 of the
Omnibus Election Code. Judge Avelino Quintos of the Regional Trial Court at Bauang, La
Union, denied the motion to dismiss.
Rimando filed a motion for reconsideration of Judge Quintos' order. He insisted that the
election protest was late because the COMELEC's decision in the pre-proclamation case
had become final and executory under Section 246 of the Omnibus Election Code, which
provides:
SEC. 246. Summary proceedings before the Commission. All pre-
proclamation controversies shall be heard summarily by the Commission after
due notice and healing, and its decisions shall be executory after the lapse of five
days from receipt by the losing party of the decision of the Commission, unless
restrained by the Supreme Court. (Emphasis ours, Sec. 55, BP 697.)
He argued that since the COMELEC's decision dated December 8, 1988, dismissing
Gallardo's petition to annul the proclamation of Rimando, became final five (5) days later,
on December 14, 1988, the filing of the election contest by Gallardo on June 30, 1989,
was tardy.
Following Rimando's argument, Judge Quintos issued an order on September 19, 1989
(p. 34, Rollo), setting aside his previous order of August 3, 1989 and dismissing the
election protest. On November 24, 1989, he denied Gallardo's motion for reconsideration
(Annex H, p. 39, Rollo; Annex K, p. 52, Rollo).
On December 7,1989, Gallardo filed a notice of appeal (Annex L, p. 57, Rollo) and on
December 18,1989, he filed this petition for review (p. 58, Rollo).
The question is: Was Gallardo's election protest filed on time? It was.
Section 251 of the Omnibus Election Code provides:
SEC. 251. Election contests for municipal offices. A sworn petition contesting
the election of a municipal officer shall be filed with the proper regional trial court
by any candidate who has duly filed a certificate of candidacy and has been
voted for the same office, within ten days after proclamation of the results of the
election. (Art. XVIII, Sec. 190, 1978 EC.)
Rimando was proclaimed by the Municipal Board of Canvassers as the duly elected
municipal mayor of Naguilian on January 19, 1988. Two (2) days later, or on-January 21,
1988, Gallardo filed in the COMELEC a pre-proclamation petition to annul the
proclamation. Hence, only eight (8) days of the reglementary period for filing an election
protest remained. This period was suspended during the pendency of the pre-
proclamation case, i.e., while it was pending in the COMELEC and in the Supreme
Court, until Gallardo received on June 23, 1989 the Supreme Court's final resolution
dismissing his petition for review of the COMELEC's decision in said case. Section 248
of the Omnibus Election Code provides:
Sec. 248. Effect of filing petition to annul or to suspend the proclamation.
The filing with the Commission of a petition to annul or to suspend the
proclamation of any candidate shall suspend the running of the period
within which to file an election protest or quo warranto proceedings.
After June 23,1989, the eight-day remainder of the reglementary period to file an election
protest resumed running. The deadline was July 1, 1989. Gallardo seasonably filed his
election protest on the 7th day-June 30, 1989.
In the light of Section 248, the lower court's statement that "the running of the ten-day
period to file an election protest is not stopped by protestant's elevation to the Supreme
Court of the COMELEC's decision" in the pre-proclamation case, is not correct. The
appeal by certiorari to the Supreme Court, which is a right secured to the defeated party
1

under Section 7, Title A, Article IX of the 1987 Constitution, is part of the annulment
proceeding. The case is not over until the Supreme Court has given its verdict, hence,
the computation of the ten-day-period for filing an election contest does not begin until
that verdict has been handed down by the Supreme Court.
Judge Quintos also misinterpreted Section 246 of the Omnibus Election Code which
provides that the decision of the COMELEC in a pre-proclamation controversy, etc. "shall
be executory after the lapse of five (5) days from receipt by the losing party of the
decision of the Commission, unless restrained by the Supreme Court." He erroneously
thought that because the Comelec's decision in the pre- proclamation case became final
and executory (absent a restraining order from the Supreme Court), the appellant lost his
right to file an election protest under Section 251 of the Omnibus Election Code. That is
not so.
The right of the prevailing party in a pre-proclamation case to the execution of the
COMELEC's decision (i.e., to be proclaimed and to assume office) after the lapse of five
(5) days from receipt of said decision by the losing party, unless restrained by the
Supreme Court, does not bar the losing party from filing an election contest within the
ten-day period fixed in Section 251. The absence of a restraining order from the
Supreme Court simply allows the prevailing party to be proclaimed and assume office.
His proclamation and assumption of office does not end the contest for the COMELEC in
a pre-proclamation controversy determines only the following issues:
(a) The legality of the composition or proceedings of the board of canvassers;
(b) Whether the canvassed election returns are incomplete, contain material
defects, appear to be tampered with or falsified, or contain discrepancies in the
same returns or in other authentic copies thereof as mentioned in Section 233,
234, 235 and 236 of this Code;
(c) Whether the election returns were prepared under duress, threats, coercion,
or intimidation, or they are obviously manufactured or not authentic; and
(d) Whether substitute or fraudulent returns in controverted polling places were
canvassed, the results of which materially affected the standing of the aggrieved
candidate or candidates. (Sec. 243, Omnibus Election Code.)
Its decision, therefore, is not a bar to the election contest where the task of the
regional trial court is to ascertain the results of the election or the true will of the
voters by a proper evaluation of the votes cast, and by determining the integrity
of the ballots and recounting them.
ADMIN LAW CASES SET 5
In "Gallardo vs. COMELEC," G.R. No. 85974, May 30, 1989, the appellant did not ask
this Court to restrain the execution of the COMELEC decision for the simple reason that
his opponent, Rimando, had already been proclaimed even before the pre-proclamation
case was filed by him (Gallardo) in the COMELEC. That circumstance, was precisely the
reason why the COMELEC dismissed the pre-proclamation case, for the rule is that after
the winning candidate has been proclaimed and assumed office, a pre-proclamation
petition does not lie against him (Casimiro, et al. vs. COMELEC, et al., G.R. Nos. 84462-
63, March 29, 1989; and Antonio, et al. vs. COMELEC, et al., G.R. Nos. 84678-79,
March 29, 1989). itc-asl
But, although already proclaimed and installed in office, he may still be unseated: (1)
when his opponent is adjudged the true winner of the election by a final judgment of the
courts in the election contest (Sec. 251, Omnibus Election Code); (2) when the prevailing
party is declared ineligible or disqualified by final judgment in a quo warranto case (Sec.
253, Omnibus Election Code); and (3) when the incumbent is removed from office for
cause (Sec. 264, Omnibus Election Code, Secs. 8, 9 and 12, Rep. Act No. 3019),
For all the foregoing, we hold that respondent Judge committed a patent error and a
grave abuse of discretion in dismissing Gallardo's timely election protest.
WHEREFORE, the petition for review is granted. The orders dated September 19, 1989
(Annex G, p. 34, Rollo) and November 24, 1989 (Annex K, p. 52, Rollo) of the Regional
Trial Court, Branch 33, of Bauang, La Union, in Municipal Election Protest No. 4-Bg are
hereby annulled and set aside. Respondent court is ordered to reinstate said election
protest and proceed to trial with dispatch. This decision is immediately executory. Costs
against the respondent.
SO ORDERED.
2

G.R. No. 125752 December 22, 1997
IRENEO A. MANAHAN, petitioner, vs. HON. JUDGE ARTURO M. BERNARDO,
Presiding Judge, RTC, Branch 36, Gapan, Nueva Ecija, and ABUNDIA L.
GARCIA, respondents.
Petitioner Ireneo A. Manahan and private respondent Abundia L. Garcia were candidates
for the mayoralty of the Municipality of Cabiao, Nueva Ecija during the May 8, 1995
elections.
On May 11, 1995, private respondent filed a petition with the Commission on Elections
(COMELEC), docketed as SPA No. 95-180, to suspend the canvass of the election
returns on account of the alleged irregularities committed by petitioner during the
elections like snatching and burning of ballot boxes and preventing watchers of petitioner
from taking close watch of the proceedings in the precincts. 1
On the same day, however, after completion of the canvass, petitioner was proclaimed
the winning candidate for mayor of the said municipality.
On May 12, 1995, private respondent filed another petition with the COMELEC, docketed
as SPC No. 95-058, to declare the proclamation of petitioner null and void. 2
On May 16, 1995, private respondent filed an appeal to the COMELEC praying for the
exclusion of the election returns from eighteen (18) precincts and for the declaration as
null and void of the proclamation of petitioner as mayor of Cabiao. Said appeal was
docketed as SPC No. 95-089. 3
On May 24, 1995, the COMELEC dismissed private respondent's appeal in SPC No. 95-
089. 4 The COMELEC ruled that private respondent's complaint regarding the alleged
snatching and taking away of ballot boxes, the exclusion of her watchers from the precincts
through threats and intimidation and the delay in the delivery of some ballot boxes to the
Municipal Building, are proper grounds for an election protest and not a pre-proclamation
controversy. The COMELEC further reasoned out that the presence of threats and
intimidation in the preparation of the election returns was not substantiated; that formal
defects regarding election returns do not affect their genuineness or authenticity; and that a
conclusion that an election return is manufactured or false should be approached with
extreme caution and needs the most convincing proof. Finally, the COMELEC expounded
that petitioner's proclamation had been rendered moot and academic by private respondent's
appeal, without prejudice to the seasonable filing in the proper forum of an election protest.
On May 26, 1995, the COMELEC dismissed private respondent's petition in SPC No. 95-
058 for lack of merit, stating that the latter's remedy was an election protest before the
regular courts. 5
ADMIN LAW CASES SET 5
On June 29, 1995, the COMELEC, likewise, dismissed private respondent's petition in
SPA No. 95-180 citing substantially the same reasons given in the two (2) preceding
resolutions. 6
Meanwhile, on June 5, 1995, private respondent as protestant filed a Petition Ad
Cautelum 7 before the Regional Trial Court of Gapan, Nueva Ecija, Branch 34, docketed as
Election Protest No. 95-04, praying for the following reliefs, viz:
WHEREFORE, it is respectfully prayed of this Honorable Court that:
1. Upon filing of this contest, an Order be issued directing that the list of voters, the
documents used in the election, ballots, ballot boxes and their keys and other relevant
items be kept and held secure in the offices of the Honorable Court, in the care and
custody of the Clerk of Court under the authority of the Presiding Judge.
2. After hearing, a judgment be rendered:
a. Ordering a recount and/or revision of the ballots in Precincts Nos. 01, 1-A, 2,
2-A, 3, 3-A, 4, 4-A, 5-M, 5-A, 10-M, 12, 13-A, 20, 20-A, 21-M, 21-M-1, 21-A, 21-
A-1, 22, 22-A, 23, 23-A, 24, 24-A, 36, 36-A, 37, 37-A, 38, 39, 40, 41, 41-A, 42,
42-A, 43, 43-A, 44, 44-A, 46, 48, 48-A, 49-M, 49-M-1, 49-A, 51, 51-A, 53, 53-A,
55, 55-A, 56, 56-A, 57, 57-A, 58, 58-A, 59, 59-A, 63, 63-A, 64 and 64-A of the
Municipality of Cabiao, Nueva Ecija, insofar as the votes for Mayor are
concerned;
b. Declaring the Certificate of Canvass of Votes and Proclamation of the Winning
Candidates dated 11 May 1995 proclaiming the protestee, IRENEO MANAHAN,
as the duly elected Mayor of the Municipality of Cabiao, Nueva Ecija as null and
void;
c. Declaring, after recounting and/or revision, the protestant as the duly elected
Mayor of the Municipality of Cabiao, Nueva Ecija;
d. Ordering protestee to pay protestant moral damages in the amount of One
Million Pesos (P1,000,000.00); and
e. Ordering protestee to pay protestant attorney's fees in the amount of One
Million Pesos (P1,000,000.00) plus cost of suit and revision.
The protestant further prays for other relief just and equitable. 8
3

Thereafter, petitioner filed three (3) motions with the trial court, to wit: Motion to
Dismiss, 9 Supplemental Motion to Dismiss 10 and Motion (to declare petition ad
cautelum automatically dismissed), 11 all alleging that the petition ad cautelum was filed
beyond the 10-day reglementary period for filing an election protest, that it states no cause of
action and that private respondent is not entitled to a judicial recount. All three motions were
opposed by private respondent.
Before the foregoing motions could be resolved, petitioner sought the inhibition of Judge
Rogelio de Guzman to whom the case was raffled for resolution. Said judge, though not
finding any compelling reason for his inhibition, nonetheless inhibited himself from the
hearing the case. Consequently, the case was assigned to respondent judge.
Petitioner again sought the inhibition of respondent judge but the latter denied the
motion.
Petitioner then brought the matter to the Court of Appeals via a petition for certiorari,
docketed as CA-G.R. SP No. 39492, raising the issue of the denial of his motion to inhibit
respondent judge. On March 29, 1996, the Court of Appeals denied the petition.
Aggrieved by the ruling, petitioner filed a petition for certiorari before this Court, docketed
as G.R. No. 124423, alleging grave abuse of discretion on the part of the Court of
Appeals in denying his petition. On May 28, 1996, this Court dismissed said petition on
the ground that the same was not the proper remedy; and even if the petition was treated
as one under Rule 45, it would still be denied as there was no reversible error committed
by the public respondent.
In the meantime, respondent judge resolved all the pending incidents of the case and
issued an Order dated April 23, 1996, which dispositively reads:
WHEREFORE, the motion to dismiss and the supplemental motion thereto as
well as the motion to declare the petition automatically dismissed are denied for
lack of merit. The revision or recounting of the ballot in Precinct Nos. 01, 1-A, 2,
2-A, 3, 3-A, 4, 4-A, 5-M, 5-A, 10-M, 12, 13-A, 20, 20-A, 21-M, 21-M-1, 21-A, 21-
A-1, 22, 22-A, 23, 23-A, 24, 24-A, 36, 36-A, 37, 37-A, 38, 39, 40, 41, 41-A, 42,
42-A, 43, 43-A, 44, 44-A, 46, 48, 48-A, 49-M, 49-M-1, 49-A, 51, 51-A, 53, 53-A,
55, 55-A, 56, 56-A, 57, 57-A, 58, 58-A, 59, 59-A, 63, 63-A, 64 and 64-A is
ordered.
In this connection, the protestant is directed to make a cash deposit of P300.00
for every ballot box.
SO ORDERED. 12
ADMIN LAW CASES SET 5
Petitioner's motion for reconsideration was denied in an Order of respondent judge dated
May 15, 1996. 13
Petitioner filed a second motion for reconsideration but the same was, likewise, denied in
an Order dated July 19, 1996. 14
Hence, the instant petition raising the same issues brought before the trial court, that is,
whether or not (1) the election case was filed within the 10-day reglementary period for
filing election protests under Section 251 of the Omnibus Election Code and (2) private
respondent is entitled to a judicial recount of the votes.
The petition is not impressed with merit.
Petitioner contends that while he was proclaimed mayor of Cabiao, Nueva Ecija on May
11, 1995, private respondent filed the instant election protest against him only on June 5,
1995 which was clearly beyond the 10-day reglementary period for filing election protests
for municipal officers under Section 251 15 of the Omnibus Election Code.
This argument must fall. While Section 251 provides that all election contests involving
municipal offices prescribe 10 days after proclamation of the results is made, under
Section 248 of the same Code, 16 the filing with the COMELEC of a petition to annul or to
suspend the proclamation of any candidate suspends the running of the 10-day period within
which to file an election protest.
As previously pointed out, private respondent filed three (3) petitions with the COMELEC,
all aimed at stopping the proclamation of the winner in the elections for mayor. First, she
filed a petition to suspend the canvass of election returns and proclamation of a winner in
the morning of May 11, 1995, before petitioner was proclaimed mayor. Second, she filed
a petition to declare the proclamation of petitioner null and void on May 12, 1995. Third,
on May 16, 1995 she filed an appeal to the COMELEC questioning the MBC's ruling on
the inclusion of several disputed election returns in the canvass and in proclaiming
petitioner winner in the election. The first was resolved on June 29, 1995, the second on
May 26, 1995, and third on May 24, 1995. Private respondent received a copy of the
resolution of the COMELEC dated May 24, 1995, in SPA No. 95-089 only on May 30,
1995. Evidently, the ten-day period within which to file an election protest had not yet
expired when private respondent instituted her petition on June 5, 1995 before the
Regional Trial Court contesting petitioner's election as the filing of the three (3)
aforementioned petitions before the COMELEC tolled or suspended the running of the
10-day prescriptive period.
Anent the second issue, petitioner maintains that respondent judge committed grave
abuse of discretion in ordering the re-opening of the ballot boxes and the recounting of
the votes without first requiring private respondent to prove the allegations in her protest.
4
 ADMIN LAW CASES SET 5
This contention is specious. Accordingly, we hold that respondent judge committed no grave abuse of discretion in
denying the petitioner's motion to dismiss, supplemental motion to dismiss as well as the
When private respondent seasonably filed with the court a quo her election protest motion to declare private respondent's petition ad cautelum automatically dismissed and
against petitioner, she averred as grounds therefor alleged anomalies and irregularities in ordering the revision and/or recounting of the ballots in the disputed precincts.
consisting of, inter alia, (a) rampant switching of ballot boxes and stuffing of ballot boxes
with fake ballots, (b) misappreciation, misreading, and non-reading of ballots pertaining PREMISES CONSIDERED, the instant petition is hereby DISMISSED. SO ORDERED.
to her, (c) multiple and inaccurate counting of votes in favor of petitioner, (d) erroneous
computation of votes, and (e) widespread irregularities in the conduct of the election.
Clearly, the grounds thus invoked require the opening of ballot boxes to effect the careful
perusal, examination and/or recounting of ballots in order to resolve the election contest.
Such recourse is explicitly provided in Section 255 of the Omnibus Election Code:

Sec. 255. Judicial counting of votes in election contest. Where allegations in a

protest or counter-protest so warrant, or whenever in the opinion of the court the
interests of justice so require, it shall immediately order the book of voters, ballot
boxes and their keys, ballots and other documents used in the election be
brought before it and that the ballots be examined and the votes recounted.

The above-quoted provision does not require that there be further proof than the
allegations of the protest before the court may allow the examination of the ballots and
the recounting of votes. The rationale for the doctrine was elucidated in Astorga
v. Fernandez, 17 to wit:

. . . Obviously the simplest, the most expeditious and the best means to
determine the truth or falsity of this allegation is to open the ballot box and
examine its contents. To require parol or other evidence on said alleged
irregularity before opening said box, would have merely given the protestee
ample opportunity to delay the settlement of the controversy, through lengthy
cross-examination of the witnesses for the protestant and the presentation of
testimonial evidence for the protestee to the contrary. As held in Cecilio
vs. Belmonte (supra), this "would be to sanction an easy to defeat a protest."

In Crispino v. Panganiban, 18 penned by Justice Hilario G. Davide, Jr., citing Pareja

v. Narvasa, 19 this Court categorically declared that:

Time and again, this Supreme Court has declared in numerous cases that, when
there is an allegation in an election protest that would require the perusal,
examination, or counting of ballots as evidence, it is the ministerial duty of the
trial court to order the opening of the ballot boxes and the examination and
counting of the ballots deposited therein.

5

G.R. No. 128165 April 15, 1998
EDUARDO V. ROQUERO, petitioner, vs. COMMISSION ON ELECTIONS, REYNALDO
A. VILLANO, and HONORABLE OSCAR P. BARRIENTOS, Presiding Judge, RTC,
Branch 82, Malolos, Bulacan, respondents.
This petition for certiorari and prohibition impugns the Resolution of respondent
Commission on Elections (COMELEC) dated January 28, 1997, dismissing the petition
for certiorari and prohibition filed by petitioner Eduardo V. Roquero.
The relevant antecedents are as follows:
Petitioner Eduardo V. Roquero and private respondent Reynaldo A. Villano were
candidates for Mayor of San Jose del Monte, Bulacan during the local elections held on
May 8, 1995.
On July 18, 1995, respondent COMELEC issued an order directing the Municipal Board
of Canvassers (MBC) to reconvene, prepare the certificate of canvass and proclaim the
winning candidates in said municipality.
On July 19, 1995, the MBC proclaimed petitioner Roquero as the duly elected Mayor of
San Jose del Monte, Bulacan garnering 20,131 votes to private respondent Villano's
18,312 votes.
Thereafter, or on July 24, 1995, private respondent Villano filed a motion for
reconsideration of the COMELEC Order dated July 18, 1995.
Said motion for reconsideration was denied by the COMELEC on September 8, 1995 in
a resolution received by private respondent Villano on September 11, 1995.
On October 10, 1995, private respondent filed a petition for certiorari before this Court
assailing the COMELEC's denial of his motion for reconsideration.
On January 30, 1996, this Court issued a resolution dismissing said petition. A
reconsideration of the same resolution was denied on April 16, 1996. This resolution was
received by private respondent Villano on May 7, 1996.
On May 17, 1996, private respondent Villano filed an election protest before the Regional
Trial Court of Malolos, Bulacan, Branch 82, docketed as Election Case No. 01-M-96.
ADMIN LAW CASES SET 5
On June 4, 1996, before summons were served to petitioner Roquero, private
respondent Villano filed a supplemental petition enumerating the 104 precincts of San
Jose del Monte he was contesting.
On June 14, 1996, petitioner Roquero filed an answer with omnibus motion and counter-
protest.
On July 15, 1996, petitioner filed a motion to dismiss on the ground that the election
protest did not allege facts constituting a cause of action for an election protest and that
the election protest was filed beyond the ten-day reglementary period for filing the same.
On August 29, 1996, respondent judge Oscar P. Barrientos issued an order denying
petitioner Roquero's motion to dismiss. A subsequent Order dated September 3, 1996
was likewise issued directing the parties to nominate their respective representatives to
serve as members of the Committee on Revision which was set to start its revision
and/or recounting of ballots on September 16, 1996.
Aggrieved by the issuance of the foregoing orders, petitioner Roquero filed a petition
for certiorari and prohibition before respondent COMELEC, docketed as SPR No. 38-96
on the following grounds, to wit.
A. Respondent Court committed grave abuse of discretion tantamount to lack or
excess of jurisdiction in not dismissing protestant's petition/protest for failure to
state ultimate facts to constitute a cause of action.
B. Respondent Court committed grave abuse of discretion tantamount to lack or
excess of jurisdiction in admitting protestant's supplemental petition/protest which
was filed without leave of court.
C. Respondent Court committed grave abuse of discretion tantamount to lack or
excess of jurisdiction by giving due course to protestant's supplemental
petition/protest despite that the same was filed outside of the reglementary
period.
D. Respondent court abused its discretion tantamount to lack or excess of
jurisdiction by setting the revision or recounting of ballots in violation of Sec. 2,
Rule 35 in conjunction with Sec. 2, Rule 17 of the Comelec Rules of Procedure. 1
On January 28, 1997, respondent COMELEC issued the questioned resolution (1)
dismissing the petition for lack of merit and (2) directing the RTC to proceed with the
revision of ballots and decide the election protest with dispatch. 2
6

In brushing aside petitioner Roquero's claim that respondent Villano's protest was filed
out of time, the COMELEC ratiocinated:
Anent Protestee's further allegations that the protest (together with the
supplement) was filed out of time and that the said supplement was filed by
lawyers who had not entered their appearance, the same are instantaneously
rejected because by law and jurisprudence which need no citation for being so
elementary, in the computation of the period, the first day shall be excluded and
the last day included. Suffice is it to say that said protest was filed on time as
after having received the Supreme Court resolution denying their motion to
dismiss on May 7, 1996 an election protest had been filed in this Court on May
17, 1996. 3
Hence, the present petition raising the following issues:
WHETHER OR NOT THE COMELEC COMMITTED GRAVE ABUSE OF
DISCRETION IN RULING THAT THE MERE ALLEGATION OF FRAUD IS
SUFFICIENT TO OPEN THE BALLOT BOX.
WHETHER OR NOT THE COMELEC COMMITTED GRAVE ABUSE OF
DISCRETION RULING THAT PRIVATE RESPONDENT'S ELECTION PROTEST
STATES A CAUSE OF ACTION.
WHETHER OR NOT THE COMELEC COMMITTED GRAVE ABUSE OF
DISCRETION IN NOT RULING THAT THE PRIVATE RESPONDENT'S
SUPPLEMENTAL PROTEST IS INADMISSIBLE FOR HAVING BEEN FILED
WITHOUT LEAVE OF COURT.
WHETHER OR NOT THE COMELEC COMMITTED GRAVE ABUSE OF
DISCRETION IN NOT RULING THAT THE PRIVATE RESPONDENT'S
ELECTION PROTEST WAS FILED OUT OF TIME. 4
The main question to be resolved is: Was the election protest filed by private respondent
Villano filed on time?
The COMELEC, in ruling that the election protest was filed on time, merely reckoned the
10-day period from May 7, 1996 (which was the receipt by respondent Villano of this
Court's resolution denying his motion for reconsideration of the resolution dismissing his
petition) to May 17, 1996 when he filed his election protest. In computing the 10-day
period, the COMELEC did not consider the running of the period from the date of
proclamation of the petitioner candidate to the date the pleading was filed with the
COMELEC to annul or suspend the proclamation; and from the time private respondent
ADMIN LAW CASES SET 5
received the ruling of the COMELEC denying the petition, to the time he filed the petition
before this Court questioning the COMELEC's ruling.
Section 251 of the Omnibus Election Code provides:
Sec. 251. Election contests for municipal offices. A sworn petition contesting
the election of a municipal officer shall be filed with the proper regional trial court
by any candidate who has duly filed a certificate of candidacy and has been
voted for the same office, within ten days after proclamation of the results of the
election. (Art. XVIII, Sec. 190, 1978 EC)
Petitioner Roquero was proclaimed by the MBC as the duly elected mayor of San Jose
del Monte, Bulacan on July 19, 1995. Five (5) days later, or on July 24, 1995, private
respondent Villano filed with respondent COMELEC a pre-proclamation motion for
reconsideration assailing the latter's order directing the MBC to proclaim petitioner
Roquero as the winning candidate for the mayoralty of the said municipality.
Consequently, only five (5) days of the ten (10) day reglementary period to file an
election protest remained.
Section 248 of the same Election Code is clear and provides thusly:
Sec. 248. Effect of filing petition to annul or to suspend the proclamation. The
filing with the Commission of a petition to annul or to suspend the proclamation of
any candidate shall suspend the running of the period within which to file an
election protest or quo warranto proceedings.
Applying the above provision to the instant case, the ten (10) day reglementary period
was suspended during the pendency of the pre-proclamation case in the COMELEC and
in this Court, until private respondent Villano received a copy of this Court's Resolution
dated April 16, 1996, denying his motion for reconsideration on May 7, 1996. Verily, on
May 7, 1996, the five-day remainder of the reglementary period to file an election protest
resumed to run again and expired on May 12, 1996. Private respondent Villano therefore
belatedly filed his election protest on May 17, 1996, five (5) days after the deadline for
filing the same. 5
The rule prescribing the ten-day period is mandatory and jurisdictional, and the filing of
an election protest beyond the period deprives the court of jurisdiction over the
protest. 6 Violation of this rule should not be taken lightly nor should it be brushed aside
as a mere procedural lapse that can be overlooked. The rule is not a mere technicality
but an essential requirement, the non-compliance of which would oust the court of
jurisdiction over the case.
7
 ADMIN LAW CASES SET 5
7 8
In Lim vs. COMELEC, citing. Kho vs. COMELEC, this Court reiterated the long
standing rule that a counterprotest must be filed within the period provided by law,
otherwise, the court acquires no jurisdiction to entertain it. 9

Relatedly, if the docket fees are not fully paid on time, even if the election protest is
timely filed, the court is deprived of jurisdiction over the case. 10

The Court would like to take note also of petitioner Roquero's contention that private
respondent Villano should have filed his election protest on September 17, 1995 (should
be September 16, 1995), five (5) days after he received a copy of the COMELEC
resolution deying his motion for reconsideration on September 11, 1995.

The running of the reglementary period to file an election protest is tolled by a party's
elevation to the Supreme Court of a COMELEC decision or resolution of a pre-
proclamation case. The appeal by certiorari to this Court is part of an entire proceeding.
The case is not terminated until this Court has rendered judgment. Consequently, the
computation of the ten-day period, or the remainder of said period for filing an election
contest, as in this case, does not commence to run until this Court hands down its
verdict. 11

Anent the rest of the errors raised, we find no reason to discuss the same, they having
been rendered moot and inutile by the preceding disquisition.

For all the foregoing, this Court holds that respondent COMELEC committed grave
abuse of discretion in denying petitioner Roquero's petition for certiorari and prohibition.

WHEREFORE, the present petition for certiorari is hereby given DUE COURSE and is
accordingly GRANTED. The Resolution dated January 28, 1997 of respondent
Commission on Elections in SPR No. 38-96 and the Orders dated August 29, 1996 and
September 3, 1996 of the Regional Trial Court of Malolos, Bulacan, Branch 82, in
Election Case No. 01-M-96 are hereby ANNULLED and SET ASIDE. Necessarily,
Election Case No. 01-M-96 is ordered DISMISSED for lack of jurisdiction.

SO ORDERED.

8

G.R. No. 87193 June 23, 1989
JUAN GALLANOSA FRIVALDO, petitioner, vs. COMMISSION ON ELECTIONS AND
THE LEAGUE OF MUNICIPALITIES, SORSOGON CHAPTER, HEREIN
REPRESENTED BY ITS PRESIDENT, SALVADOR NEE ESTUYE, respondents.
Petitioner Juan G. Frivaldo was proclaimed governor-elect of the province of Sorsogon
on January 22, 1988, and assumed office in due time. On October 27, 1988, the League
of Municipalities, Sorsogon Chapter (hereafter, League), represented by its President,
Salvador Estuye, who was also suing in his personal capacity, filed with the Commission
on Elections a petition for the annulment of Frivaldo; election and proclamation on the
ground that he was not a Filipino citizen, having been naturalized in the United States on
January 20, 1983. In his answer dated May 22, 1988, Frivaldo admitted that he was
naturalized in the United States as alleged but pleaded the special and affirmative
defenses that he had sought American citizenship only to protect himself against
President Marcos. His naturalization, he said, was "merely forced upon himself as a
means of survival against the unrelenting persecution by the Martial Law Dictator's
agents abroad." He added that he had returned to the Philippines after the EDSA
revolution to help in the restoration of democracy. He also argued that the challenge to
his title should be dismissed, being in reality a quo warranto petition that should have
been filed within ten days from his proclamation, in accordance with Section 253 of the
Omnibus Election Code. The League, moreover, was not a proper party because it was
not a voter and so could not sue under the said section.
Frivaldo moved for a preliminary hearing on his affirmative defenses but the respondent
Commission on Elections decided instead by its Order of January 20, 1988, to set the
case for hearing on the merits. His motion for reconsideration was denied in another
Order dated February 21, 1988. He then came to this Court in a petition for certiorari and
prohibition to ask that the said orders be set aside on the ground that they had been
rendered with grave abuse of discretion. Pending resolution of the petition, we issued a
temporary order against the hearing on the merits scheduled by the COMELEC and at
the same time required comments from the respondents.
In their Comment, the private respondents reiterated their assertion that Frivaldo was a
naturalized American citizen and had not reacquired Philippine citizenship on the day of
the election on January 18, 1988. He was therefore not qualified to run for and be
elected governor. They also argued that their petition in the Commission on Elections
was not really for quo warranto under Section 253 of the Omnibus Election Code. The
ultimate purpose was to prevent Frivaldo from continuing as governor, his candidacy and
election being null and void ab initio because of his alienage. Even if their petition were
to be considered as one for quo warranto, it could not have been filed within ten days
ADMIN LAW CASES SET 5
from Frivaldo's proclamation because it was only in September 1988 that they received
proof of his naturalization. And assuming that the League itself was not a proper party,
Estuye himself, who was suing not only for the League but also in his personal capacity,
could nevertheless institute the suit by himself alone.
Speaking for the public respondent, the Solicitor General supported the contention that
Frivaldo was not a citizen of the Philippines and had not repatriated himself after his
naturalization as an American citizen. As an alien, he was disqualified from public office
in the Philippines. His election did not cure this defect because the electorate of
Sorsogon could not amend the Constitution, the Local Government Code, and the
Omnibus Election Code. He also joined in the private respondent's argument that
Section 253 of the Omnibus Election Code was not applicable because what the League
and Estuye were seeking was not only the annulment of the proclamation and election of
Frivaldo. He agreed that they were also asking for the termination of Frivaldo's
incumbency as governor of Sorsogon on the ground that he was not a Filipino.
In his Reply, Frivaldo insisted that he was a citizen of the Philippines because his
naturalization as an American citizen was not "impressed with voluntariness." In support
he cited the Nottebohm Case, [(1955 I.C.J. 4; 49 A.J.I.L. 396 (1955)] where a German
national's naturalization in Liechtenstein was not recognized because it had been
obtained for reasons of convenience only. He said he could not have repatriated himself
before the 1988 elections because the Special Committee on Naturalization created for
the purpose by LOI No. 27C had not yet been organized then. His oath in his certificate
of candidacy that he was a natural-born citizen should be a sufficient act of repatriation.
Additionally, his active participation in the 1987 congressional elections had divested him
of American citizenship under the laws of the United States, thus restoring his Philippine
citizenship. He ended by reiterating his prayer for the rejection of the move to disqualify
him for being time-barred under Section 253 of the Omnibus Election Code.
Considering the importance and urgency of the question herein raised, the Court has
decided to resolve it directly instead of allowing the normal circuitous route that will after
all eventually end with this Court, albeit only after a, long delay. We cannot permit this
delay. Such delay will be inimical to the public interest and the vital principles of public
office to be here applied.
It is true that the Commission on Elections has the primary jurisdiction over this question
as the sole judge of all contests relating to the election, returns and qualifications of the
members of the Congress and elective provincial and city officials. However, the decision
on Frivaldo's citizenship has already been made by the COMELEC through its counsel,
9

the Solicitor General, who categorically claims that Frivaldo is a foreigner. We assume
this stance was taken by him after consultation with the public respondent and with its
approval. It therefore represents the decision of the COMELEC itself that we may now
review. Exercising our discretion to interpret the Rules of Court and the Constitution, we
shall consider the present petition as having been filed in accordance with Article IX-A
Section 7, of the Constitution, to challenge the aforementioned Orders of the COMELEC.
The basic question we must resolve is whether or not Juan G. Frivaldo was a citizen of
the Philippines at the time of his election on January 18, 1988, as provincial governor of
Sorsogon. All the other issues raised in this petition are merely secondary to this basic
question.
The reason for this inquiry is the provision in Article XI, Section 9, of the Constitution that
all public officials and employees owe the State and the Constitution "allegiance at all
times" and the specific requirement in Section 42 of the Local Government Code that a
candidate for local elective office must be inter alia a citizen of the Philippines and a
qualified voter of the constituency where he is running. Section 117 of the Omnibus
Election Code provides that a qualified voter must be, among other qualifications, a
citizen of the Philippines, this being an indispensable requirement for suffrage under
Article V, Section 1, of the Constitution.
In the certificate of candidacy he filed on November 19, 1987, Frivaldo described himself
as a "natural-born" citizen of the Philippines, omitting mention of any subsequent loss of
such status. The evidence shows, however, that he was naturalized as a citizen of the
United States in 1983 per the following certification from the United States District Court,
Northern District of California, as duly authenticated by Vice Consul Amado P. Cortez of
the Philippine Consulate General in San Francisco, California, U.S.A.
OFFICE OF THE CLERK
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
September 23, 1988
TO WHOM IT MAY CONCERN:
Our records show that JUAN GALLANOSA FRIVALDO, born on October 20, 1915, was
naturalized in this Court on January 20, 1983, and issued Certificate of Naturalization No.
11690178.
ADMIN LAW CASES SET 5
Petition No. 280225.
Alien Registration No. A23 079 270.
Very truly yours,
WILLIAM L. WHITTAKER Clerk
by:
(Sgd.)
ARACELI V. BAREN Deputy Clerk
This evidence is not denied by the petitioner. In fact, he expressly admitted it in his
answer. Nevertheless, as earlier noted, he claims it was "forced" on him as a measure of
protection from the persecution of the Marcos government through his agents in the
United States.
The Court sees no reason not to believe that the petitioner was one of the enemies of the
Marcos dictatorship. Even so, it cannot agree that as a consequence thereof he was
coerced into embracing American citizenship. His feeble suggestion that his
naturalization was not the result of his own free and voluntary choice is totally
unacceptable and must be rejected outright.
There were many other Filipinos in the United States similarly situated as Frivaldo, and
some of them subject to greater risk than he, who did not find it necessary nor do they
claim to have been coerced to abandon their cherished status as Filipinos. They did
not take the oath of allegiance to the United States, unlike the petitioner who solemnly
declared "on oath, that I absolutely and entirely renounce and abjure all allegiance and
fidelity to any foreign prince, potentate, state or sovereignty of whom or which I have
heretofore been a subject or citizen," meaning in his case the Republic of the Philippines.
The martyred Ninoy Aquino heads the impressive list of those Filipinos in exile who,
unlike the petitioner, held fast to their Philippine citizenship despite the perils of their
resistance to the Marcos regime.
The Nottebohm case cited by the petitioner invoked the international law principle of
effective nationality which is clearly not applicable to the case at bar. This principle is
expressed in Article 5 of the Hague Convention of 1930 on the Conflict of Nationality
Laws as follows:
10

Art. 5. Within a third State a person having more than one nationality shall be
treated as if he had only one. Without prejudice to the application of its law in
matters of personal status and of any convention in force, a third State shall, of
the nationalities which any such person possesses, recognize exclusively in its
territory either the nationality of the country in which he is habitually and
principally resident or the nationality of the country with which in the
circumstances he appears to be in fact most closely connected.
Nottebohm was a German by birth but a resident of Guatemala for 34 years when he
applied for and acquired naturalization in Liechtenstein one month before the outbreak of
World War II. Many members of his family and his business interests were in Germany.
In 1943, Guatemala, which had declared war on Germany, arrested Nottebohm and
confiscated all his properties on the ground that he was a German national. Liechtenstein
thereupon filed suit on his behalf, as its citizen, against Guatemala. The International
Court of Justice held Nottebohm to be still a national of Germany, with which he was
more closely connected than with Liechtenstein.
That case is not relevant to the petition before us because it dealt with a conflict between
the nationality laws of two states as decided by a third state. No third state is involved in
the case at bar; in fact, even the United States is not actively claiming Frivaldo as its
national. The sole question presented to us is whether or not Frivaldo is a citizen of the
Philippines under our own laws, regardless of other nationality laws. We can decide this
question alone as sovereign of our own territory, conformably to Section 1 of the said
Convention providing that "it is for each State to determine under its law who are its
nationals."
It is also worth noting that Nottebohm was invoking his naturalization in Liechtenstein
whereas in the present case Frivaldo is rejecting his naturalization in the United States.
If he really wanted to disavow his American citizenship and reacquire Philippine
citizenship, the petitioner should have done so in accordance with the laws of our
country. Under CA No. 63 as amended by CA No. 473 and PD No. 725, Philippine
citizenship may be reacquired by direct act of Congress, by naturalization, or by
repatriation.
While Frivaldo does not invoke either of the first two methods, he nevertheless claims he
has reacquired Philippine citizenship by virtue of a valid repatriation. He claims that by
actively participating in the elections in this country, he automatically forfeited American
citizenship under the laws of the United States. Such laws do not concern us here. The
alleged forfeiture is between him and the United States as his adopted country. It should
ADMIN LAW CASES SET 5
be obvious that even if he did lose his naturalized American citizenship, such forfeiture
did not and could not have the effect of automatically restoring his citizenship in the
Philippines that he had earlier renounced. At best, what might have happened as a result
of the loss of his naturalized citizenship was that he became a stateless individual.
Frivaldo's contention that he could not have repatriated himself under LOI 270 because
the Special Committee provided for therein had not yet been constituted seems to
suggest that the lack of that body rendered his repatriation unnecessary. That is far-
fetched if not specious Such a conclusion would open the floodgates, as it were. It would
allow all Filipinos who have renounced this country to claim back their abandoned
citizenship without formally rejecting their adoptedstate and reaffirming their allegiance to
the Philippines.
It does not appear that Frivaldo has taken these categorical acts. He contends that by
simply filing his certificate of candidacy he had, without more, already effectively
recovered Philippine citizenship. But that is hardly the formal declaration the law
envisions surely, Philippine citizenship previously disowned is not that cheaply
recovered. If the Special Committee had not yet been convened, what that meant simply
was that the petitioner had to wait until this was done, or seek naturalization by
legislative or judicial proceedings.
The argument that the petition filed with the Commission on Elections should be
dismissed for tardiness is not well-taken. The herein private respondents are seeking to
prevent Frivaldo from continuing to discharge his office of governor because he is
disqualified from doing so as a foreigner. Qualifications for public office are continuing
requirements and must be possessed not only at the time of appointment or election or
assumption of office but during the officer's entire tenure. Once any of the required
qualifications is lost, his title may be seasonably challenged. If, say, a female legislator
were to marry a foreigner during her term and by her act or omission acquires his
nationality, would she have a right to remain in office simply because the challenge to her
title may no longer be made within ten days from her proclamation? It has been
established, and not even denied, that the evidence of Frivaldo's naturalization was
discovered only eight months after his proclamation and his title was challenged shortly
thereafter.
This Court will not permit the anomaly of a person sitting as provincial governor in this
country while owing exclusive allegiance to another country. The fact that he was elected
by the people of Sorsogon does not excuse this patent violation of the salutary rule
limiting public office and employment only to the citizens of this country. The
qualifications prescribed for elective office cannot be erased by the electorate alone. The
11
 ADMIN LAW CASES SET 5
will of the people as expressed through the ballot cannot cure the vice of ineligibility,
especially if they mistakenly believed, as in this case, that the candidate was qualified.
Obviously, this rule requires strict application when the deficiency is lack of citizenship. If
a person seeks to serve in the Republic of the Philippines, he must owe his total loyalty
to this country only, abjuring and renouncing all fealty and fidelity to any other state.

It is true as the petitioner points out that the status of the natural-born citizen is favored
by the Constitution and our laws, which is all the more reason why it should be treasured
like a pearl of great price. But once it is surrendered and renounced, the gift is gone and
cannot be lightly restored. This country of ours, for all its difficulties and limitations, is like
a jealous and possessive mother. Once rejected, it is not quick to welcome back with
eager arms its prodigal if repentant children. The returning renegade must show, by an
express and unequivocal act, the renewal of his loyalty and love.

WHEREFORE, the petition is DISMISSED and petitioner JUAN G. FRIVALDO is hereby

declared not a citizen of the Philippines and therefore DISQUALIFIED from serving as
Governor of the Province of Sorsogon. Accordingly, he is ordered to vacate his office and
surrender the same to the duly elected Vice-Governor of the said province once this
decision becomes final and executory. The temporary restraining order dated March 9,
1989, is LIFTED. SO ORDERED.

12

G.R. No. 138969 December 17, 1999
SALIPONGAN DAGLOC, petitioner, vs. THE COMMISSION ON ELECTIONS, HON.
EMMANUEL BADOY, and SALAMBAI AMBOLODTO, respondents.
This is a petition for certiorari seeking to set aside the resolution, 1 dated June 29, 1999, of
the Commission on Elections en banc upholding the denial by the Regional Trial Court,
Branch 14, Cotabato City of petitioner's motion to dismiss the election protest filed by private
respondent and directing the continuance of the proceedings.
The antecedent facts are:
Private respondent Salambai Ambolodto and Sukarno Samad were mayoralty candidates
in the local elections held on May 11, 1998 in Kabuntalan, Maguindanao. Samad was
declared winner. He and herein petitioner Salipongan Dagloc, who was elected vice-
mayor, were proclaimed on May 14, 1998.
On May 23, 1998, private respondent filed a petition in the COMELEC entitled PETITION
TO DECLARE A FAILURE OF ELECTION AND/OR ANNUL THE ELECTION RESULTS
IN THE MUNICIPALITY OF KABUNTALAN, FIRST DISTRICT OF
MAGUINDANAO, 2 docketed as SPA No. 98-356. In addition, on June 19, 1998, she filed an
ELECTION PROTEST EX ABUNDANTI CAUTELA, 3 docketed as Election Protest No. 38-98,
in the RTC, Branch 14, Cotabato City.
On July 6, 1998, private respondent moved to withdraw SPA No. 98-356 in the
COMELEC in order to prosecute Election Protest No. 38-98 in the RTC. 4 The COMELEC
granted her motion in its order dated February 4, 1999. 5
Meanwhile, Samad filed his answer in Election Protest No. 38-98 in which he sought the
dismissal of the protest on the ground that it was filed more than 10 days from the date of
proclamation on May 14, 1998. He reiterated his motion to dismiss 6 in a subsequent
pleading, and, in addition, asked that it be resolved before private respondent's motion for
technical examination of C.E. Forms 1 and 2. In an order, dated August 18, 1998, the trial
court denied the motion to dismiss.
Samad then filed a petition for certiorari (SPR No. 37-98) in the COMELEC, assailing the
order of the RTC denying his motion to dismiss. While the case was pending, Samad
died, and herein petitioner, who had succeeded him as mayor of Kabuntalan, was
substituted in his place in the pending cases before the COMELEC (SPR No. 37-98) and
the RTC (Election Protest No. 38-98).
ADMIN LAW CASES SET 5
On June 29, 1999, the COMELEC en banc dismissed SPR No. 37-98 for lack of merit. It
held that while SPA No. 98-356 filed by Samad was denominated as PETITION TO
DECLARE A FAILURE OF ELECTION AND/OR TO ANNUL THE ELECTION RESULTS
IN THE MUNICIPALITY OF KABUNTALAN, FIRST DISTRICT OF MAGUINDANAO, the
case was actually a petition for annulment of proclamation which, under 248 of the
Omnibus Election Code, suspended the running of the period for filing an election
protest. Consequently, the filing of Election Protest No. 38-98 in the RTC on June 19,
1998 was timely as SPA No. 98-356, filed one day before the lapse of the period for filing
an election protest, prevented the expiration of said period.
Hence, this petition. On August 10, 1999, we issued a temporary restraining order
enjoining the COMELEC from implementing its questioned resolution in SPR No. 37-98
and the RTC from taking further action in Election Protest No. 38-98.
Petitioner contends that the COMELEC committed grave abuse of discretion in holding
that the filing of private respondent's petition for a declaration of a failure of election and
for the annulment of election results suspended the running of the reglemetary period for
filing an election protest. He maintains that what is contemplated in 248 of the Election
Code is the filing of a pre-proclamation controversy praying for annulment or suspension
of proclamation. In addition, petitioner questions the authority of COMELEC
Commissioner Abdul Gani M. Marohombsar who signed the COMELEC resolution in
question on June 29, 1999, when his term had already expired on June 4, 1999.
Private respondent, on the other hand, contends that 248 of the Election Code is not
limited to the filing of a pre-proclamation controversy but includes as well a petition for a
declaration of the failure of election. She argues that "[f]or so long as there is a prayer for
the annulment of a proclamation in a petition filed with the COMELEC and within the
COMELEC's jurisdiction, the filing thereof suspends the running of the 10-day period to
file an election protest or quo wararranto proceedings. . . . Even the filing of a petition for
disqualification praying for the annulment of proclamation on the ground of ineligibility
would suspend the running of the period to file an electoral protest." She also claims that
the petition in SPR No. 37-98 filed by petitioner's predecessor should have been
dismissed by the COMELEC since it is actually based on the denial by the RTC of a
motion to dismiss an election protest, which motion is a prohibited pleading under Rule
13, 1 of the COMELEC Rules of Procedure.
The primary issue in this case is whether 248 of the Election Code applies only to the
filing of a pre-proclamation controversy. On the resolution of this issue hinges the
question of whether private respondent's election protest was timely filed.
13

Sec. 248 reads:
Effect of filing petition to annul or to suspend the proclamation. The filing with
the Commission [on Elections] of a petition to annul or to suspend the
proclamation of any candidate shall suspend the running of the period within
which to file an election protest or quo warranto proceedings.
There is no question that the above provision covers the filing of pre-proclamation
controversies. This is clear from 242 of the Election Code which reads:
Commission's exclusive jurisdiction of all pre-proclamation controversies. The
Commission [on Elections] shall have exclusive jurisdiction of all pre-
proclamation controversies. It may motu proprio or upon written petition, and
after due notice and hearing, order the partial or total suspension of the
proclamation of any candidate-elect or annul partially or totally any proclamation,
if one has been made, as the evidence shall warrant in accordance with the
succeeding sections.
The reason for this is that unless the proclamation of a winning candidate is suspended
or, if it has been held, set aside, the policy behind the allowance of pre-proclamation
controversies, i.e., to prevent losing candidates from grabbing the proclamation and
delaying the resolution of the electoral contest, will be defeated. Thus, in Esquivel
v. Commission on Elections, 7 it was held that the 10-day period for filing an election protest
under 289 of the former Election Code was suspended by the filing of a petition for
annulment of proclamation. This Court said:
The suspension of the l0-day statutory period for the filing of an election protest
until such time as the Commission on Elections has finally decided the pending
pre-proclamation controversy is but logical and just, since if the protestant
prevails in the pre-proclamation controversy, there would be no further need for
him to file a regular election protest. . . .
This Court has since the case of Benjamin S. Abalos vs. Ernesto S.
Domingo [G.R. No. 52665, Resolution of February 29, 1980] deemed suspended
the 10-day statutory period for the filing of an election protest during the
pendency of a pre-proclamation controversy and in all subsequent cases, the
latest of which is its decision of July 25, 1980 [G.R. No. 53532, Noli M.
Valenzuela v. Comelec] wherein the losing party in the pre-proclamation
controversy was granted "a period of ten [10] days from receipt of this Resolution
ADMIN LAW CASES SET 5
[of dismissal] to file before the proper court a quo warranto suit or election
protest." 8
The filing of pre-proclamation controversies under 248 of the Omnibus Election Code,
however, is not the only ground for the suspension of proclamation. Two other instances
are provided in R.A. No. 6646, known as "The Electoral Reforms Law of 1987," viz.: (1)
Under 6 of the statute, the COMELEC may, upon motion of the complainant in an action
for disqualification, suspend the proclamation of the winning candidate if the evidence of
his guilt is strong, and (2) under 7 thereof, the COMELEC may likewise suspend the
proclamation of the winning candidate if there is ground for denying or canceling his
certificate of candidacy. Thus, 6 of R.A. No. 6646 provides:
Effect of Disqualification Case. Any candidate who has been declared by final
judgment to be disqualified shah not be voted for, and the votes cast for him shall
not be counted. If for any reason a candidate is not declared by final judgment
before an election to be disqualified and he is voted for and receives the winning
number of votes in such election, the Court or Commission shall continue with
the trial and hearing of the action, inquiry or protest and, upon motion of the
complainant or any intervenor, may during the pendency thereof order the
suspension of the proclamation of such candidate whenever the evidence of his
guilt is strong.
Sec. 7, on the other hand, states:
Petition to Deny Due Course to or Cancel a Certificate of Candidacy. The
procedure hereinabove provided shall apply to petitions to deny due course to or
cancel a certificate of candidacy provided in Section 78 of Batas Pambansa Blg.
881.
These actions are in the nature of pre-proclamation controversies and, thereof, like pre-
proclamation contests, their filing is a ground for the suspension of proclamation and,
consequently, of the period for filing either an election protest or a petition for quo
warranto.
However, petitioner is correct that SPA No. 98-356 is not a pre-proclamation controversy.
Much less is it a petition for disqualification or for the denial or cancellation of a certificate
of candidacy. Indeed, private respondent does not claim that her petition raises pre-
proclamation issues. She frankly admits that SPA No. 98-356 is a filed under 6 of the
Omnibus Election Code for a declaration of failure of election. 9 In fact, her petition clearly
states its nature, as it is denominated PETITION TO DECLARE A FAILURE OF ELECTION
14

AND/OR TO ANNUL THE ELECTION RESULTS IN THE MUNICIPALITY OF KABUNTALAN,
FIRST DISTRICT OF MAGUINDANAO, and alleges the following: 10
4.1 No valid and legitimate elections were actually held or conducted in the
above-mentioned municipality;
4.2 No valid and/or legitimate elections were actually held in the said municipality
as OFFICIAL BALLOTS were, in fact, PREPARED BY ONLY a few individuals.
This fact will be shown by the signatures and thumbmarks affixed in the Voting
Registration Records of each of the precincts in the municipality which do not
belong to the registered voters;
4.3 The official ballots having been prepared by persons other than the registered
voters, the votes reflected in the election returns coming from the various
precincts of the same municipality are not truly reflective of the actual and true
votes cast in the said precincts;
4.4 Widespread violence and intimidation were employed to force watchers of the
Petitioners to leave the polling places and thus, giving a chance for the
representatives of the respondent to perpetrate the above allegations.
Attached hereto and marked as Annexes are the sworn affidavits of witnesses of
Petitioners as well as certified true copies of the Voters Registration Records and
the Voter's Voting Records attesting to the facts of the allegations above-stated;
Please refer to the Annexes hereto attached.
The Voter's Registration Records duly certified by the Election Assistant of
Kabuntalan, Maguindanao, on May 19, 1998, shows that the Voting Record at
the back thereof is TOTALLY BLANK, meaning entries therein were not filled up.
The Voter's Voting Record, which is likewise, hereto attached, does not match
with the Voter's Registration Record. Even with our naked eye, one can already
conclude that there was actually NO voting that took place in the Municipality of
Kabuntalan.
5. By reason of the above terrorism, fraud and violence committed by the
respondent, her supporters and sympathizers, there was failure of election in
Kabuntalan, Maguindanao. Any proclamation of the respondent is void ab
initio there being a failure of election;
ADMIN LAW CASES SET 5
6. There is a need for technical examination of the Voter's Registration Records
and the List of Voters with Voting records for the purpose of determining the
massive substitute voting in the precincts in Kabuntalan, Maguindanao.
In Matalam v. COMELEC, 11 it was held that an action for a declaration of the failure of
election is not in the nature of a pre-proclamation controversy. The distinction between the
two actions was discussed by the Court in Loong v. COMELEC 12 in this wise:
While, however, the COMELEC is restricted, in pre-proclamation cases, to an
examination of the election returns on their face and is without jurisdiction to go
beyond or behind them and investigate election irregularities, the COMELEC is
duty bound to investigate allegations of fraud, terrorism, violence and other
analogous causes in actions for annulment of election results or for declaration of
failure of elections, as the Omnibus Election Code denominates the same. Thus,
the COMELEC, in the case of actions for annulment of election results or
declaration of failure of elections, may conduct technical examination of election
documents and compare and analyze voters' signatures and fingerprints in order
to determine whether or not the elections had indeed been free, honest and
clean. Needless to say, a pre-proclamation controversy is not the same as an
action for annulment of election results or declaration of failure of elections.
Private respondent, on the other hand, contends that as long as there is a prayer for the
annulment of a proclamation, the filing of such petition effectively suspends the running
of the period for filing an election protest. This contention has no merit. Not all actions
seeking the annulment of proclamation suspend the running of the period for filing an
election protest or a petition for quo warranto. For it is not the relief prayed for which
distinguishes actions under 248 from an election protest or quo warranto proceedings,
but the grounds on which they are based.
The purpose for allowing pre-proclamation controversies is to put a stop to the pernicious
practice of unscrupulous candidates of "grabbing the proclamation and prolonging the
protest." Accordingly, grounds which are proper for electoral protests should not be
allowed to delay the proclamation of the winners. As this Court pointed out in Dimaporo
v. Commission on Elections: 13
It may well be true that public policy may occasionally permit the occurrence of
"grab the proclamation and prolong the protest" situations; that public policy,
however, balances the possibility of such situations against the shortening of the
period during which no winners are proclaimed, a period commonly fraught with
tension and danger for the public at large.
15
 ADMIN LAW CASES SET 5
In view of the foregoing, we hold that the filing by private respondent of a petition for
declaration of failure of election (SPA No. 98-356) did not suspend the running of the
reglementary period within which to file an election protest or quo warranto proceedings.
The period for private respondent to do so expired on May 24, 1998, 10 days from the
proclamation of Sukarno Samad and petitioner as mayor and vice-mayor, respectively.
The filing of private respondent's election protest in the RTC on June 19, 1998 was made
out of time.

However, petitioner's contention that the assailed resolution is invalid because

Commissioner Abdul Gani M. Marohombsar had no authority to sign the same, because
his term had expired when the resolution was promulgated, is without merit. It appears
that Commissioner Marohombsar's term expired on June 3, 1999 (not June 4, 1999 as
alleged by petitioner), while the assailed resolution was promulgated on June 29, 1999.
The voting was 6-1. Even disregarding the vote of Commissioner Marohombsar there
was still a majority. The resolution in question is, therefore, valid.

On the other hand, private respondent contends that the petition in SPR No. 37-98 filed
in the COMELEC by Samad, petitioner's predecessor, should be dismissed and stricken
out since it is actually based on a motion to dismiss in Election Protest No. 38-98 in the
RTC, which is a prohibited pleading under the COMELEC Rules of Procedure.

The argument is also untenable. Private respondent apparently refers to the prohibition
found in Rule 13, 1 of the COMELEC Rules of Procedure, 14 under Part III entitled
INITIATION OF ACTIONS OR PROCEEDINGS BEFORE THE COMMISSION. As is evident
from the said heading, this provision is applicable only to actions or proceedings before the
COMELEC. Rule 1, 2 of the COMELEC Rules states:

These rules, except Part VI, shall apply to all actions and proceedings brought
before the Commission. Part VI shall apply to election contests and quo
warranto cases cognizable by courts of general or limited jurisdiction.

The prohibition, therefore, does not apply to the proceedings in the RTC where
the motion to dismiss was filed.

WHEREFORE, the resolution, dated June 29, 1999, of the Commission on Elections is
SET ASIDE and Election Protest No. 38-98 in the Regional Trial Court, Branch 14,
Cotabato City is ordered DISMISSED for having been filed out of time. SO ORDERED.

16

G.R. Nos. 95275-76 July 23, 1991
SIXTO DE LA VICTORIA, petitioner, vs. COMMISSION ON ELECTIONS, HEIRS OF
GENOVEVA S. MEDINA represented by FAUSTINO MESINA, JR., JUAN ALAO and
VICTOR S. MESINA, respondents.
This petition for certiorari with preliminary injunction and/or restraining order assails the
order of the Commission on Elections En Banc (COMELEC, for short) which allowed the
substitution of the heirs of a deceased candidate as protestee in the election protest filed
by her rival for the office of municipal mayor of Albuera, Leyte, in the local elections on
February 1, 1988, and allowed the same heirs to appeal the decision of the Regional
Trial Court declaring her rival (the protestant and herein petitioner), as the actual winner
in that election.
The contenders for the mayorship of Albuera, Leyte in the special local elections held on
February 1, 1988 were petitioner Sixto De la Victoria who obtained 5,093 votes, the late
Genoveva S. Mesina who obtained 5,103 votes, and Loly C. Fian who garnered 982
votes. On February 3, 1988, the Municipal Board of Canvassers proclaimed Mesina as
the duly elected municipal mayor of Albuera, Leyte. Elected and proclaimed vice-mayor
was her running-mate, Aquilino Cantiga, Jr.
In due time, the defeated mayoral candidate, De la Victoria, filed two pre-proclamation
cases (SPC Nos. 88-560 and 88-614) in the COMELEC but even while they were still
pending in the commission, he filed on October 21, 1988 in the Regional Trial Court
(RTC), Branch 14 in Baybay, Leyte, an election protest Ex Abundante Cautela against
Mesina (docketed as Election Protest No. B-44) with claims for damages, attorney's fees,
and costs. Mesina filed an Answer with counterclaims for damages and attorney's fees.
On July 22, 1989, Mesina died and was substituted as protestee by her Vice-Mayor,
Aquilino Cantiga, Jr., who assumed the mayorship by operation of law. Neither Mesina's
heirs (the private respondents herein), nor her counsel informed the trial court about her
death.
On May 16, 1990, De la Victoria withdrew from the COMELEC En Banc, his pre-
proclamation complaints (SPC Cases Nos. 88-560 and 88-614). The COMELEC granted
his motion.
On June 18, 1990, the incumbent Mayor, Aquilino Cantiga, Jr., filed in the Regional Trial
Court (RTC) a verified "Petition to Intervene" in the election protest of De la Victoria.
ADMIN LAW CASES SET 5
On June 20, 1990, De la Victoria filed a "Manifestation/Motion" waiving his claim for
damages and costs against the deceased protestee, Mesina. The trial court granted the
motion (p. 389, Rollo).
On June 22, 1990, counsel for Mesina filed a Notice of Death and Motion for Substitution
of the deceased protestee by her heirs, and requested that his motion be set for hearing
on July 2, 1990.
De la Victoria opposed the motion for substitution on the ground that the heirs of Mesina
are not the "real party in interest" and that since he (De la Victoria) had waived his claim
for damages against the deceased, her heirs have no more right to intervene in the case
or have been "erased from the picture altogether" (Lomugdang vs. Javier, 21 SCRA 402
and Vda. de Mesa vs. Mencias, 18 SCRA 533).
On July 2, 1990, the trial court noted the Motion for Substitution filed by the heirs of
Mesina and ruled that De la Victoria's waiver of his claim for damages against the said
protestee rendered the Motion for Substitution without basis in law, or moot and
academic.
On July 17, 1990, the trial court promulgated a decision in the Election Protest No. B-44,
declaring the protestant, De la Victoria, as the duly elected Mayor of Albuera, Leyte, by a
margin of 134 votes over the deceased protestee, Genoveva S. Mesina.
Two days later, on July 19, 1990, the heirs of Mesina appealed to the COMELEC by a
petition for certiorari and prohibition with preliminary injunction to restrain the trial court
from rendering a decision in Election Protest No. B-44 or conducting further proceedings
therein.
On July 20, 1990, the heirs of Mesina filed in the trial court a Notice of Appeal. De la
Victoria filed an "Urgent Motion to Disregard Notice of Appeal" on the ground that the
heirs had no standing in the case as they failed to appeal the July 2, 1990 Order of the
trial court denying their motion for substitution. The trial court in its Order of July 23,
1990, denied the Notice of Appeal and ordered its expulsion from the record of the case.
It held that the intervenor, Vice-Mayor Cantiga, who succeeded the deceased protestee
by operation of law, not the "heirs" of the deceased, is the "real party in interest" in the
continuation of the election protest after the demise of the protestee. Moreover, upon the
waiver by De la Victoria of his claim for damages against Mesina, the latter's heirs had
no more legal interest to defend in her behalf.
17

On July 24, 1990, De la Victoria filed a motion for execution of the trial court's decision. It
was granted by the court on July 25, 1990. Promptly, on the same day, De la Victoria was
sworn into office as the duly elected Mayor of Albuera.
As earlier mentioned, the heirs of Mesina appealed that decision to the COMELEC by a
petition for certiorari and prohibition with a prayer for the issuance of a writ of preliminary
injunction (SPR No. 9-90). In his Comment on the petition, De la Victoria adverted to the
decision dated July 17, 1990 of the trial court which became final and executory when no
appeal was taken therefrom.
On the same date, the COMELEC denied the heirs' application for a temporary
restraining order (TRO), but set the case for hearing before the COMELEC En Banc for
"preliminary determination of the sufficiency of the allegations in the main issue raised by
said respondents-heirs."
De la Victoria opposed the petition.
On August 6, 1990, the heirs filed in the COMELEC another petition
for certiorari and mandamus (SPR No. 11-90), praying that the execution of the decision
of the trial court in Election Protest No. B-44 be stopped.
On August 8, 1990, De la Victoria assumed office as Mayor of Albuera, Leyte.
On August 13, 1990, the COMELEC issued a status quo Order directing De la Victoria to
answer the petition in SPR No. 11-90, and setting the petition for preliminary injunction
for hearing on August 23, 1990.
On September 27, 1990, the COMELEC set aside the trial court's Order dated July 2,
1990 denying the motion for substitution of the heirs of the deceased protestee, and the
Order dated July 23, 1990 which denied due course to the Notice of Appeal of the heirs
from its decision dated July 17, 1990. It declared the writ of execution null and void and
ordered the elevation to it of the records of the case pursuant to Rule 22 of the
COMELEC Rules of Procedure (on appeal from election protest decided by trial courts of
general jurisdiction).
De la Victoria has come to us for relief through this petition for certiorari with prayer for
the issuance of a temporary restraining order (TRO) where the main issues raised are:
(1) whether the heirs of the deceased protestee in an election protest may be considered
as real party-in-interest even if the vice-mayor has been allowed to intervene and the
ADMIN LAW CASES SET 5
protestant had waived his claim for damages and costs in the proceedings; and (2)
whether said heirs may appeal the decision in the election protest (EPC No. B-44).
After careful deliberation, the Court is persuaded that the answer to both questions is no.
The late Genoveva Mesina's claim to the contested office was not in any sense a
transmissible right that devolved upon her surviving spouse and her children (herein
private respondents) after her death. "Public office is personal to the incumbent and
is not a property which passes to his heirs" (Santos vs. Secretary of Labor, 22 SCRA
848). Private respondents' only interest in the outcome of the case is limited to no more
than their interest in defending her against the protestant's claim for damages and costs
(which the protestant, herein petitioner, has already waived). They may no longer
prosecute her own counter-claim for damages against the protestant for that was
extinguished when death terminated her light to occupy the contested office of mayor of
Albuera, Leyte.
In the case of Vda. de Mesa vs. Mencias, 18 SCRA 533, 545, we ruled:
The same cannot, however, be said of the protestee's widow or of the local
Liberal Party chapter of Muntinlupa. The protestee's claim to the contested office
is not in any sense a right transmitted to his widow or heirs. Said widow's
remaining interest in the outcome of the case is limited to no more than the
possible award of costs against the deceased protestee. Besides not being such
an interest as would justify her substitution for her deceased husband as an
indispensable legal representative, the right to such an award if eventually made
has already been waived by protestant Argana. This effectively withdraws the
widow from the picture altogether. Much less has the local Liberal Party Chapter
any claim to substitution. Not being duly incorporated as a juridical person, it can
have no personality to sue or be sued as such. And while it conceivably may
derive some indirect benefit consequent to the resolution of the contest in favor
of the deceased protestee, neither the chapter itself nor the officers thereof would
become entitled thereby to any right to the contested office in case of a favorable
judgment, nor, for that matter, do they stand to sustain any direct prejudice in
case of an adverse one. No basis therefore exist upon which to predicate their
claim to substitution. (Emphasis supplied).
This ruling was not a mere obiter as the COMELEC erroneously supposed.
Vice Mayor Aquilino Cantiga's accession, by operation of law, to the position of Municipal
Mayor upon the death of Mesina on July 22, 1989, automatically made him the real
18

party-in-interest in the election contest for his right to hold the office of municipal mayor is
in jeopardy of being lost should De la Victoria win Ms protest. Thus did this Court hold
in Lomugdang vs. Javier, 21 SCRA 403:
The vice-mayor elect has the status of a real party-in-interest in the continuation
of the proceedings and is entitled to intervene therein. For if the protest succeeds
and the protestee is unseated, the vice-mayor succeeds to the office of mayor
that becomes vacant if the one duly elected cannot assume the post.
This ruling was reiterated in Unda vs. COMELEC (G.R. No. 94090, October 19, 1990):
Now under the Local Government Code, the vice-mayor stands next in line of
succession to the mayor in case of a permanent vacancy in the latter's position.
Upon the death of the protestee mayor in the case at bar, petitioner, as then
incumbent vice-mayor, succeeded by operation of law to the vacated office and is
ordinarily entitled to occupy the same for the unexpired term thereof. The
outcome of the election contest necessarily and primarily bears upon his right to
his present position and he is the person directly concerned in the fair and
regular conduct of the election in order that the true will of the electorate will be
upheld. His status as a real party-in-interest in the continuation of said case
cannot thus be disputed. (Emphasis supplied.)
ADMIN LAW CASES SET 5
for filing the same, their Motion for Extension of Time to File said Appellant's Brief having
been previously denied by the COMELEC for being a prohibited pleading under Section
1(c) of Rule 13 of the COMELEC Rules of Procedure, in relation to Section 9(b) Rule 22
of the COMELEC Rules of Procedure, The COMELEC's dismissal order reads:
Consequently, the dismissal of the herein appeal case pursuant to the Comelec
Rules of Procedure renders the decision of the Regional Trial Court of Leyte,
Branch XIV dated July 17, 1990, as FINAL AND EXECUTORY. (pp. 459-
460, Rollo.)
On January 28, 1991, petitioner De la Victoria reassumed the office of Mayor of Albuera,
Leyte (p. 460, Rollo).
WHEREFORE, finding merit in the petition for certiorari, the same is hereby GRANTED,
with costs against private respondents. The proclamation of Sixto de la Victoria as mayor
of Albuera, Leyte, is upheld.
SO ORDERED.

On the procedural aspects of the case, we find the following observations of the Solicitor
General in his Consolidated Comment dated January 8, 1991, to be well taken:

. . . respondent COMELEC acted with grave abuse of discretion in giving due

course to the [private respondents'] petitions for certiorari filed in SPR Nos. 9-90
and 11-90 filed on August 6, 1990 to set aside the final and executory decision of
the trial court promulgated on July 18, 1990, far beyond the 5-day period allowed
by [Section 22, Rule 35] Comelec Rules of Procedure, (p. 410, Rollo.)

Respondent COMELEC further gravely abused its discretion by issuing a

"permanent" and final injunction to prevent the execution of said final and
executory Decision dated July 17, 1990 of the trial court, without the
required bond contrary to its own Rule 30, Section 4, COMELEC Rules of
Procedure. (p. 411, Rollo.)

However, these issues have been rendered moot and academic by the COMELEC's
order of January 23, 1991 dismissing the "reinstated" appeal of the private respondents
(p. 447, Rollo), for failure to file their Appellant's Brief on December 9, 1990, the last day

19

G.R. No. 125249 February 7, 1997
JIMMY S. DE CASTRO, petitioner, vs. THE COMMISSION ON ELECTIONS and
AMANDO A. MEDRANO, respondent
Before us is a petition for certiorari raising twin issues as regards the effect of the
contestant's death in an election protest: Is said contest a personal action extinguished
upon the death of the real party in interest? If not, what is the mandatory period within
which to effectuate the substitution of parties?
The following antecedent facts have been culled from the pleadings and are not in
dispute:
Petitioner was proclaimed Mayor of Gloria, Oriental Mindoro during the May 8, 1995
elections.
In the same elections, private respondent was proclaimed Vice-Mayor of the same
municipality.
On May 19, 1995, petitioner's rival candidate, the late Nicolas M. Jamilla, filed an
election protest 1 before the Regional Trial Court of Pinamalayan, Oriental Mindoro. 2
During the pendency of said contest, Jamilla died. Four days after such death or on
3 imbued with paramount public interests. As we have held in the case of Vda. de De
December 19, 1995, the trial court dismissed the election protest ruling as it did that "[a]s this
case is personal, the death of the protestant extinguishes the case itself. The issue or issues
brought out in this protest have become moot and academic". 4
On January 9, 1995, private respondent learned about the dismissal of the protest from
one Atty. Gaudencio S. Sadicon, who, as the late Jamilla's counsel, was the one who
informed the trial court of his client's demise.
On January 15, 1996, private respondent filed his Omnibus Petition/Motion (For
Intervention and/or Substitution with Motion for Reconsideration). 5 Opposition thereto was
filed by petitioner on January 30, 1996. 6
In an Order dated February 14, 1996, 7 the trial court denied private respondent's Omnibus
Petition/Motion and stubbornly held that an election protest being personal to the protestant,
is ipso facto terminated by the latter's death.
Unable to agree with the trial court's dismissal of the election protest., private respondent
filed a petition for certiorari and mandamus before the Commission on Elections
ADMIN LAW CASES SET 5
(COMELEC); private respondent mainly assailed the trial court orders as having been
issued with grave abuse of discretion.
COMELEC granted the petition for certiorari and mandamus. 8 It ruled that an election
contest involves both the private interests of the rival candidates and the public interest in the
final determination of the real choice of the electorate, and for this reason, an election contest
necessarily survives the death of the protestant or the protestee.
We agree.
It is true that a public office is personal to the public officer and is not a property
transmissible to his heirs upon death. 9 Thus, applying the doctrine of actio personalis
moritur cum persona, upon the death of the incumbent, no heir of his may be allowed to
continue holding his office in his place.
But while the right to a public office is personal and exclusive to the public officer, an
election protest is not purely personal and exclusive to the protestant or to the protestee
such that the death of either would oust the court of all authority to continue the protest
proceedings.
An election contest, after all, involves not merely conflicting private aspirations but is
Mesa v. Mencias: 10
. . . It is axiomatic that an election contest, involving as it does not only the
adjudication and settlement of the private interests of the rival candidates but
also the paramount need of dispelling once and for all the uncertainty that
beclouds the real choice of the electorate with respect to who shall discharge the
prerogatives of the offices within their gift, is a proceeding imbued with public
interest which raises it onto a plane over and above ordinary civil actions. For this
reason, broad perspectives of public policy impose upon courts the imperative
duty to ascertain by all means within their command who is the real candidate
elected in as expeditious a manner as possible, without being fettered by
technicalities and procedural barriers to the end that the will of the people may
not be frustrated (Ibasco vs. Ilao, et al., G.R. L-17512, December 29, 1960;
Reforma vs. De Luna, G.R. L-13242, July 31, 1958). So inextricably intertwined
are the interests of the contestants and those of the public that there can be no
gainsaying the logic of the proposition that even the voluntary cessation in office
of the protestee not only does not ipso facto divest him of the character of an
adversary in the contest inasmuch as he retains a party interest to keep his
political opponent out of the office and maintain therein his successor, but also
20

does not in any manner impair or detract from the jurisdiction of the court to
pursue the proceeding to its final conclusion (De Los Angeles vs. Rodriguez, 46
Phil. 595, 597; Salcedo vs. Hernandez, 62 Phil. 584, 587; Galves vs. Maramba,
G.R. L-13206).
Upon the same principle, the death of the protestee De Mesa did not abate the
proceedings in the election protest filed against him, and it may stated as a rule
that an election contest survives and must be prosecuted to final judgment
despite the death of the protestee. 11
The death of the protestant, as in this case, neither constitutes a ground for the dismissal
of the contest nor ousts the trial court of its jurisdiction to decide the election contest.
Apropos is the following pronouncement of this court in the case of Lomugdang
v. Javier: 12
ADMIN LAW CASES SET 5
applied by analogy or in a suppletory character, 15
private respondent was correct to rely
thereon.
The above jurisprudence is not ancient; in fact these legal moorings have been recently
reiterated in the 1991 case of De la Victoria vs. COMELEC. 16 If only petitioner's diligence
in updating himself with case law is as spirited as his persistence in pursuing his legal
asseverations up to the highest court of the land, no doubt further derailment of the election
protest proceedings could have been avoided.
WHEREFORE, premises considered, the instant petition for certiorari is hereby
DISMISSED. Costs against petitioner. SO ORDERED.

Determination of what candidate has been in fact elected is a matter clothed with
public interest, wherefore, public policy demands that an election contest, duly
commenced, be not abated by the death of the contestant. We have squarely so
rule in Sibulo Vda. de Mesa vs. Judge Mencias, G.R. No. L-24583, October 29,
1966, in the same spirit that led this Court to hold that the ineligibility of the
protestant is not a defense (Caesar vs. Garrido, 53 Phil. 57), and that the
protestee's cessation in office is not a ground for the dismissal of the contest nor
detract the Courts jurisdiction to decide the case (Angeles vs. Rodriguez, 46 Phil.
595; Salcedo vs. Hernandez, 62 Phil. 584). 13

The asseveration of petitioner that private respondent is not a real party in interest
entitled to be substituted in the election protest in place of the late Jamilla, is utterly
without legal basis. Categorical was our ruling in Vda. de Mesa and Lomugdang that:

. . . the Vice Mayor elect has the status of a real party in interest in the
continuation of the proceedings and is entitled to intervene therein. For if the
protest succeeds and the Frotestee is unseated, the Vice-Mayor succeeds to the
office of Mayor that becomes vacant if the one duly elected can not assume the
post. 14

To finally dispose of this case, we rule that the filing by private respondent of his
Omnibus Petition/Motion on January 15, 1996, well within a period of thirty days from
December 19, 1995 when Jamilla's counsel informed the trial court of Jamilla's death,
was in compliance with Section 17, Rule 3 of the Revised Rules of Court. Since the
Rules of Court, though not generally applicable to election cases, may however be

21

P.E.T. Case No. 001 February 13, 1996
MIRIAM DEFENSOR-SANTIAGO, protestant, vs. FIDEL VALDEZ RAMOS, protestee.
In her motion of 16 August 1995, reiterated in her Comment of 29 August 1995,
Protestant Miriam Defensor-Santiago prayed that the revision of ballots in the remaining
precincts of the pilot areas be dispensed with and the revision process in the pilot areas
be deemed completed.
We deferred action on that motion and required the Protestant and the Protestee to
submit their respective memoranda on the issue of whether this case had been rendered
moot by the election of the Protestant as a Senator in the May 1995 election and her
assumption of office as such on 30 June 1995.
The Protestant answers this issue in the negative. Relying on Sibulo vda. de De Mesa
vs. Mencias,1 Lomugdang vs. Javier,2 and De Castro vs. Ginete,3 she asserts that an
election contest involves not only an adjudication and settlement of the private interests
of the rival candidates, but more importantly, the paramount need to dispel, once and for
all, the uncertainty that beclouds the true choice of the electorate. Hence, it is imbued
with public interest and should be pursued to its final conclusion to determine the bona
fide winner. She further asserts that an election case may be rendered moot only if the
term of the contested office has expired, 4 thus her election as Senator and assumption of
office as such cannot, under the rule laid down in Moraleja vs. Relova,5 be construed as
an abandonment of the instant protest. Finally, she alleges that this Court has departed
from the orthodox view that a case should be dismissed if it has been mooted. 6
For his part, the Protestee submits that there is strong legal basis for this Tribunal to rule
that the Protestant is deemed to have abandoned the instant protest, in light of the ruling
in Dimaporo vs. Mitra7 which construed Section 67, Article IX of B.P. Blg. 881 (Omnibus
Election Code).8 He submits, however, that public interest requires that this protest be
resolved on the merits considering that: (a) it involves a matter of paramount and grave
public interest; and (b) it was filed merely to keep Protestant Santiago in the limelight in
preparation for her Senatorial campaign. He likewise claims that a resolution on the
merits would confirm his victory in the 11 May 1992 presidential election and prove that
the instant protest is unfounded. Further more, it would establish guiding and controlling
principles or doctrines with respect to presidential election protest cases, thereby
educating the bench and the bar and preventing the indiscriminate filing of baseless
protest cases.
We cannot subscribe to the view of the Protestee that by filing her certificate of
candidacy for Senator Protestant Santiago ipso facto forfeited her claim to the office of
ADMIN LAW CASES SET 5
President pursuant to Section 67 of B.P. Blg. 881. Plainly, the said section applies
exclusively to an incumbent elective official who files a certificate of candidacy for any
office "other than the one he is holding in a permanent capacity." Even more plain is that
the Protestant was not the incumbent President at the time she filed her certificate of
candidacy for Senator nor at any time before that. Thus, the holding in Dimaporo does
not apply to the Protestant.
Neither do we find any convincing logic to the Protestee's proposition that this case
should nevertheless be resolved on the merits because its filing was done in bad
faith, i.e., merely to keep the Protestant in the limelight in preparation for her Senatorial
campaign. If that were so, then public interest would be served if this case were put to an
abrupt end after the Protestant won a seat in the Senate. Finally, neither do we find any
cogent nor compelling reason to proceed with this case, in the event that we find it to be
moot, simply to establish guiding and controlling principles or doctrines with respect to
election protests involving the office of the President or the Vice-President.
I.
The key then to the resolution of the aforestated issue is the consideration of public
interest and public policy and their encompassing effects on election cases which have
been unequivocally expressed in the cases cited by the Protestant.
In Sibulo vda. de De Mesa vs. Mencias,9 this Court stated:
It is axiomatic that an election contest, involving as it does not only the
adjudication and settlement of the private interests of the rival candidates but
also the paramount need of dispelling once and for all the uncertainty that
beclouds the real choice of the electorate with respect to who shall discharge the
prerogatives of the offices within their gift, is a proceeding imbued with public
interest which raises it onto a plane over and above ordinary civil actions. For this
reason, broad perspectives of public policy impose upon courts the imperative
duty to ascertain by all means within their command who is the real candidate
elected in as expeditious a manner as possible, without being fettered by
technicalities and procedural barriers to the end that the will of the people may
not be frustrated (Ibasco vs. Ilao, et al., G.R. L-17512, December 29, 1960;
Reforma vs. De Luna, G.R. L-13242, July 31, 1958). So inextricably intertwined
are the interests of the contestants and those of the public that there can be no
gainsaying the logic of the proposition that even the voluntary cessation in office
of the protestee not only does not ipso facto divest him or the character of an
adversary in the contest inasmuch as he retains a party interest to keep his
22

political opponent out of the office and maintain therein his successor, but also
does not in any manner impair or detract from the jurisdiction of the court to
pursue the proceeding to its final conclusion (De Los Angeles vs. Rodriguez, 46
Phil. 595, 597; Salcedo vs. Hernandez, 62 Phil. 584, 587; Galves vs. Maramba,
G.R. L-13206).
Upon the same principle, the death of the protestee De Mesa did not abate the
proceedings in the election protest filed against him, and it may be stated as a
rule that an election contest survives and must be prosecuted to final judgment
despite the death of the protestee. (In Silverio vs. Castro, 19 SCRA 520 [1967],
where the trial court proceeded with the trial of an election protest and decided it
even if the protestee had already died and his Vice-Mayor had assumed office by
succession, this Court, instead of dismissing the appeal brought on behalf of the
deceased protestee, required the Vice-Mayor to intervene on the side of the
appellant)
In Lomugdang vs. Javier,10 this Court declared:
Determination of what candidate has been in fact elected is a matter clothed with
public interest, wherefore, public policy demands that an election contest, duly
commenced, be not abated by the death of the contestant. We have squarely so
ruled in Sibulo vda. de Mesa vs. Judge Mencias, G.R. No. L-24583, October 26,
1966, in the same spirit that led this Court to hold that the ineligibility of the
protestant is not a defense (Caesar vs. Garrido, 53 Phil. 57), and that the
protestee's cessation in office is not a ground for the dismissal of the contest nor
detract the Court's jurisdiction to decide the case (Angeles vs. Rodriguez, 46
Phil. 595; Salcedo vs. Hernandez, 62 Phil. 584).
In the same Sibulo case, already cited, this Court likewise ruled that by virtue of
Section 7, Republic Act 2264, the vice-mayor elect has the status of a real party
in interest in the continuation of the proceedings and is entitled to intervene
therein. For if the protest succeeds and the protestee is unseated, the vice mayor
succeeds to the office of mayor that becomes vacant if the duly elected cannot
assume the post.
In Moraleja vs. Relova, this Court ruled:
11
As to the contention that by accepting such appointment as Technical Assistant,
protestant has abandoned his protest, all that need be said is that once the court
has acquired jurisdiction over an election contest, the public interest involved
ADMIN LAW CASES SET 5
demands that the true winner be known without regard to the wishes or acts of
the parties, so much so that there can be no default, compromise nor stipulation
of facts in this kind of cases. (Francisco, How To Try Election Cases, p.
163, citing Civilio v. Tomacruz, 62 Phil. 689). In the same manner that the
acceptance by the protestee of an appointment to another position is not a
ground for dismissal of the protest (Philippine Law on Elections by Martin, 1970
ed., pp. 258-259, citing Calvo v. Maramba, G.R. No. L-13206, January 7, 1918)
like the resignation of the protestee from the contested office (Angeles v.
Rodriguez, 46 Phil. 595), simply because it is of public interest that the real
winner be known, neither can the acceptance of a more or less temporary
employment, such as that of a technical assistant of the Vice-Governor, which is
a primarily confidential position, be considered as inconsistent with protestant's
determination to protect and pursue the public interest involved in the matter of
who is the real choice of the electorate. In such instances, the plight of protestant
may be viewed in the same light as that of an employee who has been illegally
dismissed and who, to find means to support himself and family while he
prosecutes his case for reinstatement, accepts a temporary employment
elsewhere. Such employee is not deemed to have abandoned the position he
seeks to recover. (Tan v. Gimenez, et al. G.R. No. L-12525, February 19, 1960,
107 Phil. 17; Potot v. Bagano, G.R. No. L-2456, January 25, 1949, 82 Phil. 679).
Of course, the case of protestant who accepts a permanent appointment to a
regular office could be different, but We are not ruling on it here.
In De Castro vs. Ginete,12 this Court stated:
The purpose of an election protest is to ascertain whether the candidate
proclaimed elected by the board of canvassers is really the lawful choice of the
electorate. What is sought in an election protest is the correction of the canvass
of the votes, which is the basis of the proclamation of the winning candidate. An
election contest involves a public office in which the public has an interest.
Certainly, the act of a losing candidate of recognizing the one who is proclaimed
the winner should not bar the losing candidate from questioning the validity of the
election of the winner in the manner provided by law.
The factual milieu in these cases is not on all fours with the instant protest.
In Sibulo vda. de De Mesa, as in the later case of Silverio vs. Castro,13 the protestee had
been proclaimed the winning mayoralty candidate and had assumed office, and then
died during the pendency of the election protest. While in Lomugdang, it was the
protestant who died during the pendency of the protest.
23

In Moraleja, the election protest survived the protestant's acceptance of temporary
employment during the pendency of his election protest. Likewise, in De los Angeles
vs. Rodriguez,14 cited in Sibulo vda. de De Mesa, an election protest was continued
despite the resignation from office of the protestee.
Finally, in De Castro, the only issue presented was whether the protest should be
dismissed on the ground of estoppel. In this proceeding, the protestant congratulated the
protestee after the latter was proclaimed the winner by the board of canvassers and even
exhorted those present during the inauguration and installation into office of the
protestee to support the latter's administration.
May the above dicta apply to the case of Protestant Santiago who assumed the office of
Senator after her election as such in the 8 May 1995 election? This question was
impliedly raised but not resolved in Moraleja. For after holding that the acceptance by the
protestant therein of a temporary appointment during the pendency of his protest did not
amount to an abandonment thereof, nor could it be considered inconsistent with his
determination to protect and pursue the public interest involved in the election protest,
this Court noted: "Of course, the case of a protestant who accepts a permanent
appointment to a regular office could be different, but We are not ruling on it here."15
Indeed, it would be entirely different where the protestant pursued the new position
through a popular election, as in the case of Protestant Santiago who filed a certificate of
candidacy for Senator in the 8 May 1995 election, campaigned for such office, and
submitted herself to be voted upon. She knew that the term of office of the Senators who
would then be elected would be six years, to commence at noon on the thirtieth day of
June next following their election 16 and to end at noon of 30 June 2001. Knowing her high
sense of integrity and candor, it is most unlikely that during her campaign, she promised
to serve the electorate as Senator, subject to the outcome of this protest. In short, she
filed her certificate of candidacy for the Senate without any qualification, condition, or
reservation.
In so doing, she entered into a political contract with the electorate that if elected, she
would assume the office of Senator, discharge its functions and serve her constituency
as such for the term for which she was elected. These are givens which are in full accord
with the principle enshrined in the Constitution that, public office is a public trust, and
public officers and employees must at all times be accountable to the people and serve
them with utmost responsibility, integrity, loyalty and efficiency.17
Indeed, it has been aptly said:
ADMIN LAW CASES SET 5
It is impossible that government shall be carried on, and the functions of civil
society exercised, without the aid and intervention of public servants or officers,
and every person, therefore, who enters into civil society and avails himself of the
benefits and protection of the government, must owe to this society, or, in other
words, to the public, at least a social duty to bear his share of the public burdens,
by accepting and performing, under reasonable circumstances, the duties of
those public offices to which he may be lawfully chosen.18
In this jurisdiction, an elected public official may even be held criminally liable should he
refuse to discharge an elective office.19
The term of office of the Senators elected in the 8 May 1995 election is six years, the first
three of which coincides with the last three years of the term of the President elected in
the 11 May 1992 synchronized elections. The latter would be Protestant Santiago's term
if she would succeed in proving in the instant protest. that she was the true winner in the
1992 elections. In assuming the office of Senator then, the Protestant has effectively
abandoned or withdrawn this protest, or at the very least, in the language of Moraleja,
abandoned her "determination to protect and pursue the public interest involved in the
matter of who is the real choice of the electorate." Such abandonment or withdrawal
operates to render moot the instant protest. Moreover, the dismissal of this protest would
serve public interest as it would dissipate the aura of uncertainty as to the results of the
1992 presidential election, thereby enhancing the all too crucial political stability of the
nation during this period of national recovery.
It must also be stressed that under the Rules of the Presidential Electoral Tribunal, an
election protest may be summarily dismissed, regardless of the public policy and public
interest implications thereof, on the following grounds:
(1) The petition is insufficient in form and substance;
(2) The petition is filed beyond the periods provided in Rules 14 and 15 hereof;
(3) The filing fee is not paid within the periods provided for in these Rules;
(4) The cash deposit, or the first P100,000.00 thereof, is not paid within 10 days
after the filing of the protest; and
(5) The petition or copies thereof and the annexes thereto filed with the Tribunal
are not clearly legible.20
24

Other grounds for a motion to dismiss, e.g., those provided in the Rules of Court which
apply in a suppletory character, 21 may likewise be pleaded as affirmative defenses in the
answer. After which, the Tribunal may, in its discretion, hold a preliminary hearing on
such grounds.22 In sum, if an election protest may be dismissed on technical grounds,
then it must be, for a decidedly stronger reason, if it has become moot due to its
abandonment by the Protestant.
II.
There is yet another reason why this case should now be dismissed.
This Tribunal cannot close its eyes to the fact that the Protestant has decided to waive
the revision of the remaining unrevised ballots from 4,017 precincts out of the 17,527
precincts of the designated three pilot areas. This is an unabashed reversal from her
original stand in her Motion and Manifestation dated 18 October 1993. Taking this into
account, this Tribunal declared in its resolution of 21 October 1993:
After deliberating on the foregoing pleadings and the arguments of the parties,
the Tribunal rules for the Protestant insofar as the revision of the remaining ballot
boxes from her pilot areas are concerned, and against the immediate application
of Rule 61 of the Rules of the Tribunal to the Protestee in respect of the Counter-
Protest.
At this stage of the proceedings in this case it cannot be reasonably determined
whether the revised ballots are "considerable" enough to establish a trend either
in favor of or against the Protestant as would justify an appropriate action
contemplated in Rule 61 of the Rules of the Tribunal, or whether the unrevised
ballots from said areas would not, in the language of the Protestant, "materially
affect the result of the representative sample of the ballot boxes so far revised."
As to the 1,300 ballot boxes from Makati, the proper time to raise the objections
to the ballot boxes and its contents would be during the revision stage.
Consequently, we resolved therein to:
A. ORDER the revision of the remaining unrevised ballot boxes enumerated in
the aforequoted paragraph A of the 5 October 1993 Resolution and for that
purpose to DIRECT the Acting Clerk of Court of the Tribunal to collect said ballot
boxes and other election documents and paraphernalia from their respective
custodians in the event that their revisions in connection with other election
protests in which they are involved have been terminated, and if such revisions
ADMIN LAW CASES SET 5
are not yet completed, to coordinate with the appropriate tribunal or court in
which such other election protests are pending and which have already obtained
custody of the ballot boxes and started revision with the end in view of either
seeking expeditious revisions in such other election protests or obtaining the
custody of the ballot boxes and related election documents and paraphernalia for
their immediate delivery to the Tribunal; and
B. REQUIRE the Protestant to inform the Tribunal, within ten (10) days from
receipt hereof, if after the completion of the revision of the ballots from her pilot
areas she would present evidence in connection therewith.
Until the present, however, the Protestant has not informed the Tribunal whether after the
completion of the revision of the ballots from her pilot areas, she still intends to present
evidence in connection therewith. This failure then, is nothing short of a manifest
indication that she no longer intends to do so.
It is entirely irrelevant at this stage of the proceedings that the Protestant's revisors
discovered in the course of the revisions alleged irregularities in 13,510 out of the 17,525
contested precincts in the pilot areas and have objected to thousands of ballots cast in
favor of the Protestee. Revision is merely the first stage, and not the alpha and omega,
of an election contest. In no uncertain terms then, this Tribunal declared in its resolution
of 18 March 1993 that:
Protestant knows only too well, being a lawyer and a former judge herself, that
the revision phase of her protest is but the first stage in the resolution of her
electoral protest and that the function of the revisors is very limited. In her 12
February 1993 Comment on Protestee's 5 February 1993 Urgent Motion for the
issuance of a resolution which, inter alia, would clarify that revisors may observe
the objections and/or claims made by the revisors of the other party as well as
the ballots subject thereof, and record such observations in a form to be provided
for that purpose, Protestant unequivocally stated:
8. Further, the principle and plan of the RPET [Rules of the Presidential
Electoral Tribunal] is to subdivide the entire election contest into various
stages. Thus, the first stage is the Revision Proper. Second is the
technical examination if so desired by either party. Third is the reception
of evidence. And Fourth, is the filing of parties' memoranda.
and described the function of the revisors as "solely to examine and segregate
the ballots according to which ballots they would like to contest or object
25

(contested ballots) and those which they admit or have no objections
(uncontested ballots)." Indeed, revisors do not have any judicial discretion; their
duties are merely clerical in nature (Hontiveros vs. Altavas, 24 Phil. 632 [1913]).
In fact, their opinion or decision on the more crucial or critical matter of what
ballots are to be contested or not does not even bind the Tribunal (Yalung vs.
Atienza, 52 Phil. 781 [1929]; Olano vs. Tibayan, 53 Phil. 168 [1929]). Thus, no
undue importance may be given to the revision phase of an election contest. It
can never serve as a logical or an acceptable basis for the conclusion that
massive fraud or irregularities were committed during an election or that a
Protestant had won in said election. If that were so, a Protestant may contest all
ballot boxes and, in the course of the revision thereof, object for any imagined
ground whatsoever, even if the same be totally unfounded and ridiculous to all
ballots credited to the Protestee; and then, at the end of the day, said Protestant
may even announce to the whole world that contrary to what is reflected in the
election returns, Protestee had actually lost the elections.
All told, a dismissal of this election protest is inevitable.
III.
However, three Members of the Tribunal outrightly disagree with the foregoing
disquisitions. Hence, a reply to the important points they raise is in order.
Mr. Justice Puno's perception that the majority would dismiss this "election protest as
moot and academic on two (2) grounds: first, that the findings of irregularities made by
the revisors of the protestant in the course of the revision of ballots in 13,510 contested
precincts are entirely irrelevant; and second, she abandoned her protest when she filed
her certificate of candidacy in the 8 May 1995 senatorial elections," is inaccurate. The
dispositive portion of this resolution leaves no room for any doubt or miscomprehension
that the dismissal is based on the ground that the protest "has been rendered moot and
academic by its abandonment or withdrawal by the Protestant as a consequence of her
election and assumption of office as Senator and her discharge of the duties and
functions thereof." There is, therefore, ONLY ONE reason or ground why the protest has
been rendered moot and academic, i.e., it has been abandoned or withdrawn. This was
the very issue upon which the parties were required, in the resolution of 26 September
1995, to submit their respective memoranda.
The majority neither conveyed, asserted nor even suggested, as Mr. Justice Puno has
apparently understood, that this protest has become moot and academic because the
finding of irregularities by the Protestant's revisors in the course of the revision of the
ADMIN LAW CASES SET 5
ballots in 13,510 contested precincts in the pilot areas are "entirely irrelevant," and that
the Protestant has abandoned this protest by filing a certificate of candidacy for the office
of Senator in the 8 May 1995 elections. The majority's views on "irrelevancy" and "on the
filing of the certificate of candidacy" are not the grounds themselves, but parts only of the
arguments to strengthen the conclusion reached, i.e., abandonment. Otherwise stated, in
order to make the point crystal clear, the majority never held that the irrelevancy of the
finding of irregularities is a ground why this protest has become moot and academic. It
only declared that the Protestant's: (a) waiver of revision of the unrevised ballots from the
remaining 4,017 contested precincts in the pilot areas; and (b) failure to comply with the
resolution of 21 October 1995 requiring her to inform the Tribunal within ten days from
notice if she would still present evidence after completion of the revision of the ballots
from her pilot areas rendered such "findings" of irregularities entirely irrelevant
considering the Tribunal's disquisitions on what revision is in its 18 March 1993
resolution.
In his dissent, Mr. Justice Puno lifted the words "entirely irrelevant"; from the fourth
paragraph under the heading "II" of this Resolution. It must, however, be stressed that
the said paragraph is inexorably linked to the preceding two paragraphs relating to the
above-mentioned waiver and non-compliance, which provide the major premises for the
fourth paragraph; more concretely, the latter is nothing more than the logical conclusion
which the major premises support.
The reasons adduced by Mr. Justice Puno for the Protestant's turn-around are mere
speculations. In any event, the protestant's possible "belief . . . that the contested ballots
in 13,500 precincts when properly appreciated will sufficiently establish her electoral
victory," cannot stand against her previous insistence to proceed with the revision of the
remaining unrevised ballots and the aforementioned finding of the Tribunal in its
resolution of 21 October 1993. The Tribunal is not to blame for "the slow pace of the
protest," if at all she so believes in such a state of things. Neither can the thought of
cutting costs be a valid reason. The Protestant knew from the outset that the revision of
the ballots in the pilot areas was a crucial phase of this protest because, under Rule 61
of the Rules of the Tribunal, the protest could forthwith be dismissed if the Tribunal were
convinced that she would probably fail to make out a case but only after examination of
the ballots from the pilot areas and the evaluation of the evidence offered in connection
therewith. It goes without saying that every ballot then in the pilot areas counts.
Then too, it was never the view of the majority that the Protestant's filing of the certificate
of candidacy for a seat in the Senate in the 8 May 1995 election was the sole and
exclusive operative act for what Mr. Justice Puno perceives to be the majority's second
ground why this protest has become moot and academic. To the majority, such filing was
only the initial step in a series of acts performed by the Protestant to convincingly evince
26

her abandonment of this protest, viz., campaigning for the office of Senator, assumption
of such office after her election and her discharge of the duties and functions of the said
office. Precisely, in the resolution of 26 September 1995, this Court directed the
Protestant and the Protestee to submit their respective memoranda on the issue
[o]f whether or not the protest has not been rendered moot and academic by the
election of the Protestant as Senator and her subsequent assumption of office as
such on 30 June 1995. (emphasis supplied)
As to the concept of abandonment, Mr. Justice Puno and Mr. Justice Kapunan cite
Black's Law Dictionary and the cases of Roebuck vs. Mecosta Country Road
Commission,23 Dober vs. Ukase Inv. Co., 24 and McCall vs. Cull,25cited therein. We have
turned to the primary sources of these cases, meticulously perused them, and found
none materially significant to this protest.
The first two cases above refer to abandonment of property. Roebuck involved the issue
of whether a roadway had been abandoned by the Mecosta Road Commission. The
Court therein held that in order for there to be an abandonment of land dedicated to
public use, two elements must concur, viz., (a) intention to relinquish the right or property,
but without intending to transfer title to any particular person; and (b) the external act
which such intention is carried into effect. While Dober, on the issue of whether the
plaintiff therein abandoned a certain property, quoted Corpus Juris that the intention to
abandon must be determined from the facts and circumstances of the case. There must
be a clear, unequivocal and decisive act of the party to constitute abandonment in
respect of a right secured an act done which shows a determination in the individual not
to have a benefit which is designed for him.
It is, of course, settled that a public office is not deemed property.26
Only McCall involved the issue of abandonment of office. It is stated therein as follows:
Abandonment is a matter of intention and, when thought of in connection with an
office, implies that the occupant has quit the office and ceased to perform its
duties. As long as he continues to discharge the duties of the office, even though
his source of title is two appointments, one valid and the other invalid, it cannot
be said he has abandoned it. It was said in Steingruber v. City of San Antonio,
Tex. Com. App., 220 S.W. 77, 78: "A public office may be abandoned.
Abandonment is a species of resignation. Resignation and abandonment are
voluntary acts. The former is a formal relinquishment; the latter a relinquishment
through non-user. Abandonment implies non-user, but non-user does not, of
ADMIN LAW CASES SET 5
itself, constitute abandonment. The failure to perform the duties pertaining to the
office must be with actual or imputed intention on the part of the officer to
abandon and relinquish the office. The intention may be inferred from the acts
and conduct of the party, and is a question of fact. Abandonment may result from
an acquiescence by the officer in his wrongful removal or discharge, but, as in
other cases of abandonment, the question of intention is involved.
Strictly speaking, McCall is inapplicable to this protest for, as correctly stated in the
dissent of Mr. Justice Kapunan, the Protestant could not abandon the office of President
which she was not holding at the time she filed the certificate of candidacy for Senator.
But the majority of the Tribunal never declared, nor even implied, that she abandoned the
office of President because it knew that she had yet nothing to abandon. Precisely, she
filed this protest to be declared the winner for that office, to thereafter assume and
perform the duties thereof, and exercise the powers appertaining thereto. What the
Tribunal explicitly states is that the Protestant abandoned this Protest, thereby rendering
this protest moot.
Mr. Justice Puno also insists that abandonment raises a question of fact and that the
Tribunal cannot resolve it "for lack of competent evidence"; moreover, he notes that the
Protestee "has not adduced evidence which can be the basis for a finding that she
intentionally abandoned her protest; on the contrary, the Protestee does not want the
protest to be dismissed on a technicality but prays that it be decided on the merits."
Suffice it to say that the Protestant herself has not denied nor questioned the following
facts, which by themselves, constitute overwhelming proof of the intention to abandon
the protest:
(a) Filing of a certificate of candidacy for Senator for the 8 May 1995 elections;
(b) Campaigning for the office of Senator in such election;
(c) Taking her oath of office as Senator upon the commencement of the term
therefor;
(d) Assumption of office as Senator; and
(e) Discharge and performance of the duties appertaining to the office of Senator.
These acts speak for themselves res ipsa loquitur to negate any proposition that the
Protestant has not abandoned this protest.
27

Thus, what initially appears to be the correct view in the dissent is, in the final analysis,
misplaced. This must also be the verdict upon the following pronouncements of Mr.
Justice Puno:
A more fundamental reason prevents me from joining the majority. With due
respect, I submit that the majority ruling on abandonment is inconsistent with the
doctrine that an election contest is concerned less with the private interest of the
candidates but more with public interest. Under a republican regime of
government, the overarching object of an election contest is to seek and enforce
the judgment of the people on who should govern them. It is not a happenstance
that the first declaration of policy of our Constitution underlines in bright that
"sovereignty resides in the people and all government authority emanates from
them." The first duty of a citizen as a particle of sovereignty in a democracy is to
exercise his sovereignty just as the first duty of any reigning government is to
uphold the sovereignty of the people at all cost. Thus, in Moraleja vs. Relova, we
emphatically held that ". . . once the court has acquired jurisdiction over an
election contest, the public interest involved demands that the true winner be
known without regard to the wishes or acts of the parties so much so that there
can be no default, compromise nor stipulation of facts in this kind of cases."
Wisely, this Tribunal has consistently demurred from dismissing election contests
even on the ground of death of the protestee or the protestant.
The majority appears to stray away from this lodestar of our Constitution. It will
dismiss the case at bar even while the protestee and the protestant are yet alive,
even while the term of the 1992 president-elect has yet to expire, and even while
the protestee and the protestant together plead, that the Tribunal should
determine the true will of the people by deciding their dispute on the merit[s] and
not on technicalities that trifle with the truth. I submit that it is the better stance for
the Tribunal to decide this election contest on the merit[s] and vindicate the
political judgment of the people which far surpasses in significance all other
considerations. Our duty to tell the people who have the right to govern them
cannot depend on the uncertain oscillations of politics of the litigants as often
times they are directed by the wind of convenience, and not by the weal of the
public.
For one, the majority has, in no uncertain terms, demonstrated the dissimilarities in the
factual settings of the instant protest vis-a-vis the earlier cases that enunciated the
doctrine relied on by Mr. Justice Puno. Then, too, it must be reiterated, to avoid further
miscomprehension, that the Moraleja ruling even conceded that the matter of
abandonment "could be different" if the petitioner therein had accepted "a permanent
appointment to a regular office" during the pendency of his protest. In short, Moraleja in
ADMIN LAW CASES SET 5
fact intimates abandonment of an election protest if, in the meantime, the Protestant
accepts a permanent appointment to a regular office. If that be so, then would it be, and
for weightier reasons, against a protestant who voluntarily sought election to an office
whose term would extend beyond the expiry date of the term of the contested office, and
after winning the said election, took her oath and assumed office and thereafter
continuously serves it.
In Moraleja, the Supreme Court was meticulous in excluding abandonment from the
enumeration of specific "acts or wishes" of the parties which must be disregarded
because of the public interest component of an election protest. As reflected in the above
quotation from Mr. Justice Puno's dissent, only default, compromise, or stipulation of
facts are included.
Finally, with all due respect, the above pronouncement of Mr. Justice Puno forgets that,
as distinctly pointed out in the early part of this Resolution, the Rules of the Tribunal
allow summary dismissal of election protests even for less important grounds, to repeat,
such as the petition filed with the Tribunal or the annexes attached thereto are not clearly
legible, or the filing fees and cash deposits were not filed within the periods fixed in the
Rules,27 and the additional provision for dismissal under Rule 61. All these provisions of
the Rules would then be put to naught or, at the very least, modified or amended in a
way not authorized by the Rules, if the theory of Mr. Justice Puno be accepted. Such
theory would unreasonably bind the Tribunal to the technical minutiae of trial on the
merits to bring to their ultimate end all protests or contests filed before it including those
filed by candidates who even forgot to vote for themselves and obtained no votes in the
final count, but, unable to accept defeat, filed a protest claiming massive fraud and
irregularities, vote-buying, and terrorism. Consequently, all the time and energy of the
Justices of the Supreme Court would be spent appreciating millions of revised ballots to
the prejudice of their regular judicial functions in the Court, as the electoral protest of
every Juan, Pedro, and Jose who lost in the presidential elections would have to be
heard on the merits. Public policy abhors such a scenario and no public good stands to
be thereby served.
WHEREFORE, the Tribunal hereby resolved to
(1) GRANT the Protestant's Motion of 16 August 1995 to dispense with the
revision of ballots and other election documents in the remaining precincts of the
pilot areas;
(2) DISMISS the instant election protest, since it has been rendered moot and
academic by its abandonment or withdrawal by the Protestant as a consequence
28
 ADMIN LAW CASES SET 5
of her election and assumption of office as Senator and her discharge of the
duties and functions thereof; and

(3) DISMISS, as a consequence, the Protestee's Counter-Protest.

No pronouncements as to costs.

SO ORDERED.

29

G.R. No. 140179 March 13, 2000
ROQUE FERMO, petitioner, vs. COMMISSION ON ELECTIONS and MANUEL D.
LAXINA SR., respondents.
Before us is a Petition for Certiorari (with prayer for the issuance of a restraining order or
a writ of preliminary injunction) assailing the Resolution 1 of the Commission on Elections
(COMELEC)2 in SPR No. 4-99 entitled "MANUEL D. LAXINA, SR. vs. ROQUE FERMO
and Hon. AMANTE T. BANDAYREL" which annulled the order of the Metropolitan Trial
Court (MTC) of Quezon City, Branch 40 granting petitioner Roque Fermo's (FERMO)
motion for execution pending appeal.
The factual antecedents of this case are as follows:
Manuel Laxina, Sr. and Roque Fermo were both candidates for the position of
Punong Barangay, Barangay Batasan Hills, District II, Quezon City, during the
May 12, 1997 elections. The canvassed results showed Laxina obtaining 1,957
votes and Fermo getting 1,712 votes. With a plurality of 245 votes, Laxina was
proclaimed duly elected to the post. Subsequently, Fermo filed an election
protest questioning the results in four (4) clustered precincts of Capitol Bliss and
twenty four (24) COA precincts on the ground that the elections therein was
attended by massive fraud and serious irregularities.
Summoned to answer, protestee Laxina filed his responsive pleading denying
protestant's allegations of anomalies and interposed the defense that the
"conduct of the elections in Barangay Batasan Hills, District II, Quezon City, from
the special registration of voters, the campaign as well as the voting and all the
way to and until the counting, canvassing and tallying of votes and the
proclamation of the winning candidates during the recent barangay elections has
been generally honest, orderly and peaceful, with the result of the elections being
truly reflective of the will of the electorate in the said barangay."
Protestee then moved for the dismissal of the case on the ground that the same
was filed beyond the ten day period allowed by law. The Court ruled that the case
was seasonably filed, dismissed the motion to dismiss and ordered a judicial
recount. For the purpose, a revision committee was constituted. After all the
proceedings were terminated, the Court a quo rendered its decision holding that
Fermo won the contested post. The Court's decision was promulgated on
January 8, 1999. On the same date, Laxina filed a Notice of Appeal manifesting
his intent to elevate the case to the Commission on Elections.
ADMIN LAW CASES SET 5
On January 12, 1999, Roque Fermo filed a Motion for Execution pending Appeal
grounded on the following averments:
That a decision was promulgated by the Honorable Court on January 8,
1999 whereby the protestant Roque Fermo was declared the winner in
the May 12, 1997 Barangay Election in Batasan Hills, District II by a
plurality of ONE HUNDRED THIRTY FOUR (134) votes over protestee,
Manuel Laxina;
That there is good and special reason for the issuance of a Writ of
Execution Pending Appeal, i.e., the possibility that the term of the
contested seat might have expired already long before the appeal has
been decided;
On January 19, 1999, Laxina opposed the motion maintaining that the Court had
lost jurisdiction over the case because of the perfection of the appeal.
On January 20, 1999, the Court issued an Order granting execution pending
appeal, the pertinent part of which reads:
The Court is clothed with discretionary power to execute judgment
pending appeal upon good reasons. The good reasons mentioned in
protestant's Motion for Execution Pending Appeal is the possibility that
the term of the contested seat of Barangay Captainship in Barangay
Batasan Hills, Quezon City might have expired long before the appeal
has been decided, considering also that the term of the contested office
had past almost midway of the whole term. To do otherwise would not
serve the end of justice.3
Not satisfied with the decision of the MTC, respondent Manuel D. Laxina
(LAXINA) appealed to the COMELEC, which reversed the order of the MTC
granting herein petitioner's motion for execution pending appeal. In reversing the
MTC, the COMELEC found that the possibility that the term of the contested seat
might expire by the time the appeal is decided was not a "good reason" to
warrant execution pending appeal.
Hence this petition with prayer for the issuance of a temporary restraining order
or a writ of preliminary injunction where petitioner assigns the following errors:
30

RESPONDENT COMELEC ACTED WITHOUT OR INEXCESS OF
JURISDICTION AND/OR WITH GRAVE ABUSE OF DISCRETION
TANTAMOUNT TO LACK OR EXCESS OF JURISDICTION
A. IN HOLDING THAT THE REASON INVOKED BY PETITIONER IN HIS
MOTION FOR EXECUTION PENDING APPEAL, i.e., SHORTNESS OF
TERM IS INSUFFICIENT OR DOES NOT QUALIFY AS "GOOD
REASONS" TO WARRANT EXECUTION PENDING APPEAL.
B. IN ANNULLING THE JANUARY 20, 1999 ORDER OF MTC
GRANTING THE MOTION FOR EXECUTION PENDING APPEAL ON
THE GROUND THAT THE MTC COMMITTED GRAVE ABUSE OF
DISCRETION.
C. IN ORDERING PETITIONER TO CEASE AND DESIST FROM
FURTHER PERFORMING THE FUNCTIONS OF PUNONG BARANGAY
AND TO RELINQUISH THE SAME TO PRIVATE RESPONDENT
PENDING FINAL RESOLUTION OF THE LATTER'S APPEAL, IN
EFFECT, GRANTING EXECUTION PENDING APPEAL IN FAVOR OF
PRIVATE RESPONDENT WITHOUT ANY MOTION THEREFOR.4
In support of his petition, FERMO maintains that the COMELEC acted with grave
abuse of discretion in ruling that the possibility that the term of the contested seat
might expire long before the appeal is decided is not a good reason to warrant
execution pending appeal. FERMO's theory is that such reason taken together
with the finding of the MTC that the election was tainted with fraud and
irregularities is sufficient reason to grant execution pending appeal. He further
argues that even assuming the COMELEC did not err in annulling the order of
execution, the COMELEC should not have ordered him to relinquish the position
as this is tantamount to granting execution pending appeal in favor of LAXINA
who did not file any such motion for that purpose nor cite any "good reasons"
therefor. Moreover, the order of COMELEC in effect prejudged the pending
appeal of FERMO considering that it ordered LAXINA to discharge the functions
of Punong Barangay pending the resolution of the appeal.
On the other hand, private respondent LAXINA agrees with the COMELEC's
conclusion that the "shortness of term" is not "good reason" to justify execution
pending appeal. He argues that petitioner's allegations are mere conjectures
unsupported by any factual or legal basis.
ADMIN LAW CASES SET 5
Public respondent COMELEC contends that since the term of Barangay officials
was extended to five (5) years or until 2002, the reliance of the petitioner on the
"shortness of term" to justify execution pending appeal is not justified. Moreover,
the decision of the MTC "contains questionable rulings which casts doubt on its
validity." It was not clearly established that petitioner in fact won. 5
The issue to be resolved in this petition is whether the COMELEC acted with
grave abuse of discretion amounting to lack of or excess of jurisdiction in
annulling the order of the MTC granting herein petitioner's motion for execution
pending appeal on the ground that there were no "good reasons" for the
issuance therefor.
We rule in the negative.
Execution of judgments pending appeal in election cases is governed by Section
2, Rule 39 6 of the Rules of Court which reads:
Sec. 2. Discretionary execution.
(a) Execution of a judgment or final order pending appeal. On motion
of the prevailing party with notice to the adverse party filed in the trial
court while it has jurisdiction over the case and is in possession of either
the original record or the record on appeal, as the case may be, at the
time of the filing of such motion, said court may, in its discretion, order
execution of a judgment or final order even before the expiration of the
period to appeal.
After the trial court has lost jurisdiction, the motion for execution pending
appeal may be filed in the appellate court.
Discretionary execution may only issue upon good reasons to be stated
in a special order after due hearing.
A valid exercise of the discretion to allow execution pending appeal requires that
it should be based "upon good reasons to be stated in a special order." The
following constitute "good reasons" and a combination of two or more of them will
suffice to grant execution pending appeal: (1.) public interest involved or will of
the electorate; (2.) the shortness of the remaining portion of the term of the
contested office; and (3.) the length of time that the election contest has been
pending (emphasis supplied).7 In Lauban vs. COMELEC8, this Court ruled that
31

"shortness of the remaining term of office and posting a bond are not good
reasons for execution of a judgment pending appeal . . ." . 9
In the present case, the petitioner relies solely on one ground to support his
petition i.e. "shortness of term". We find that the COMELEC committed no reversible
error in ruling that:
"Shortness of term", alone and by itself cannot justify premature execution. It
must be manifest in the decision sought to be executed that the defeat of the
protestee and the victory of the protestant has been clearly established. 10
Moreover, Republic Act No. 8524, 11 which took effect in 1998, has extended the term of
office of barangay officials to five (5) years, and this negates, or removes the factual
basis for the finding of the MTC that the term of the contested office "had past almost
midway of the whole term." COMELEC Chairman Harriet Demetriou correctly points out
in her SEPARATE CONCURRING OPINION 12 that:
Obviously, the court a quo erroneously assumed that the term of the barangay
captains is only for three (3) years. Hence, the conclusion that the term of the
1wphi1
contested office is almost in its midway. This, too, has no leg to stand on.
It shall be worth stressing that Republic Act No. 8524 which took effect sometime
in 1998 extended the term of office of barangay officials to five (5) years. Thus, it
provides:
Sec. 1. Section 43 of Republic Act No. 1760, otherwise known as the
Local Government Code of 1991, is hereby amended to read as follows:
Sec. 43. Term of Office. . . . . . . .
c the term of barangay officials and members of the sangguniang
kabataan shall be for five (5) years, which shall begin after the regular
election of barangay officials on the second Monday of May
1997 . . . . . . .
Sec. 2. The provisions of this Act shall apply to the incumbent barangay
officials . . . . . . . .
Perfunctorily, the term of the contested office will expire in the year 2002 or more
or less, three years from now. 13
ADMIN LAW CASES SET 5
Petitioner's argument that COMELEC's nullification of the MTC order does not imply that
LAXINA is entitled to discharge the functions of Punong Barangay and that FERMO
should cease and desist from performing said functions is flawed. The order of the
COMELEC annulling the grant of execution pending appeal would be inutile if it did not
have the effect of authorizing LAXINA to discharge the functions of Punong Barangay
during the pendency of the appeal. When the COMELEC nullified the writ of execution
pending appeal in favor of FERMO, the decision of the MTC proclaiming FERMO as the
winner of the election was stayed 14 and the "status quo" or the last actual peaceful
uncontested situation preceding the controversy 15 was restored. Thus, the COMELEC
correctly ordered FERMO to cease and desist from performing the functions of Punong
Barangay considering that LAXINA was the proclaimed winner of the election prior to
FERMO's filing of the election protest. The order for FERMO to relinquish his post to
LAXINA pending final resolution of the appeal is a logical and necessary consequence of
the denial of execution pending appeal.
Finally, there is nothing in the COMELEC Resolution which shows that the COMELEC
made "conclusionary findings" which would in effect "pre-judge" the MTC decision itself.
The Resolution categorically stated that the COMELEC shall not attempt to resolve who
between LAXINA and FERMO has the right to occupy the contested seat for that
question will appropriately be settled in the pending appeal. Although the Resolution
cited certain "lapses patent on the decision itself" which "cast a cloud of uncertainty over
the victory of Fermo", the observation was made to stress that no other justification other
than the "shortness of term" would justify premature execution.
WHEREFORE, the instant petition is hereby DISMISSED for failure of the petitioner to
show that respondent Commission on Elections acted with grave abuse of discretion in
rendering the challenged Resolution dated September 16, 1999 in SPR No. 4-99. 1wphi1.nt
Costs against petitioners.
SO ORDERED.
32

G.R. No. 157957. September 18, 2003
CHARITO NAVAROSA, petitioner, vs. COMMISSION ON ELECTIONS, HONORABLE
DEAN R. TELAN, as Presiding Judge, Regional Trial Court, Branch 9, Kalibo, Aklan
and ROGER M. ESTO, respondents.
The Case
This is a petition for certiorari of the Commission on Elections (COMELEC) En
Banc Resolution dated 15 April 2003 denying petitioner Charito Navarosas motion for
reconsideration of the COMELEC Second Division Resolution[1] dated 28 November
2002. The COMELEC Second Division Resolution ordered the execution pending appeal
of the Decision[2] of the Regional Trial Court, Branch 9, Kalibo, Aklan, proclaiming
respondent Roger M. Esto winner in the mayoralty race in the 14 May 2001 elections.
The Facts
Petitioner Charito Navarosa (petitioner Navarosa) and respondent Roger M. Esto
(respondent Esto) were candidates for mayor of Libacao, Aklan in the 14 May 2001
elections. On 17 May 2001, the COMELEC Municipal Board of Canvassers of Libacao
proclaimed petitioner Navarosa as the duly elected mayor, with a winning margin of three
(3) votes over respondent Esto.[3]
Claiming that irregularities marred the canvassing of ballots in several precincts,
respondent Esto filed an election protest docketed as Election Case No. 129 (election
protest) in the Regional Trial Court, Branch 9, Kalibo, Aklan (trial court). Petitioner
Navarosa, who also claimed that canvassing irregularities prejudiced her, filed a counter-
protest in the same case.
On 4 March 2002, after revision of the contested ballots, the trial court rendered
judgment in favor of respondent Esto. The trial court found that respondent Esto obtained
4,595 votes over petitioner Navarosas 4,553 votes. Thus, the trial court declared
respondent Esto the elected mayor of Libacao by a margin of 42 votes and annulled the
earlier proclamation of petitioner Navarosa. The trial court also ordered petitioner
Navarosa to pay respondent Esto actual damages and attorneys fees. The dispositive
portion of the decision provides:
WHEREFORE, judgment is hereby rendered:
a) Declaring the Proclamation of xxx protestee [Navarosa] as the duly elected
Mayor of Libacao, Aklan and the Certificate of Canvass of Votes and the
ADMIN LAW CASES SET 5
Proclamation of the Winning Candidates for Municipal Offices, dated May
17, 2001, as null and void;
b) Declaring the protestant, Roger M. Esto, as the duly elected Municipal Mayor
of Libacao, Aklan in the May 14, 2001 election;
c) Ordering the protestee [Navarosa] to pay the sum of P14,215.00 as actual
and compensatory damages, and the amount of P50,000.00 as and for
attorneys fees, plus the cost of suit.[4]
Petitioner Navarosa appealed the trial courts ruling to the COMELEC (EAC Case
No. A-9-2002). Respondent Esto, on the other hand, filed with the trial court a motion for
execution of the judgment pending petitioner Navarosas appeal. Petitioner Navarosa
opposed respondent Estos motion. In the alternative, petitioner Navarosa offered to file a
supersedeas bond to stay execution pending appeal, should the trial court grant
respondent Estos motion.
In its Order of 22 March 2002 (Order), the trial court granted respondent Estos
motion subject to the filing of a P300,000 bond. However, in the same order, the trial
court also granted petitioner Navarosas prayer to stay the execution pending appeal,
upon filing a P600,000 supersedeas bond. The Order reads:
The Supreme Court has explicitly recognized and given approval to execution of
judgments pending appeal in election cases, filed under existing election laws. In these
cases, the immediate execution was made in accordance with Sec. 2, Rule 39 of the
Rules of Court (Ramas et al. vs. COMELEC, et al., G.R. No. 130831, 2/10/98). There is,
therefore, no question now that execution pending appeal may be granted.
xxx
[T]he grant of execution would give substance and meaning to the peoples mandate
specially since the court has established protestants right to the office (Lindo vs.
COMELEC cited in the Ramas case); more than 10 months or nearly 1/3 of the 3-year
term for Mayor had already lapsed (Gutierrez vs. COMELEC, G.R. 126298, 3-25-97;
Tobon Uy vs. COMELEC also cited in the Ramas case). These are two good reasons to
justify execution of the decision pending appeal.
[P]rotestee [Navarosa] however, prays in the alternative, that should execution pending
appeal be granted, the same be stayed upon his [sic] filing of supersedeas bond to be
fixed by the court under Sec. 3, Rule 39, 1997 Rules of Civil Procedure.
33

Unlike Sec. 2, Rule 39 where the grant of execution pending appeal is conditioned upon
the presence of the good and valid reason for its grant, Sec. 3, Rule 39 does not provide
for any condition precedent before the discretionary execution of Rule 2 may be
stayed. All that it requires is that a sufficient supersedeas bond must be approved by
the court conditioned upon the performance of the judgment allowed to be executed in
case it shall be finally sustained in whole or in part. Under this section, therefore, the
filing of a supersedeas bond sufficient in amount is enough to stay the execution granted
under Sec. 2.
Moreover, the margin of 42 votes in the instant case is not so big, overwhelming or
insurmountable as to be practically beyond or improbable of being overturned by the
higher courts. xxx
WHEREFORE, in view of the foregoing[,] the court finds that the protestant, Roger M.
Esto is entitled to the execution of the decision dated March 4, 2002, pending appeal,
upon the filing of a bond which covers the salary and emoluments of the office of the
Municipal Mayor of Libacao, Aklan and or the payment of all damages in the amount
of P300,000.00, Philippine Currency, in cash, surety bond or real property with assessed
value in said amount to be filed on or before April 3, 2002, furnishing copy thereof to the
protestee or his duly authorized representative.
The protestee, Charito Navarosa, considering that the margin is not so insurmountable
as to be beyond reversal by the higher court[,] is hereby allowed to stay the execution of
the decision of March 4, 2002 pending appeal, by filing a supersedeas bond in double
the amount posted by the protestant, on or before April 3, 2002, furnishing copy thereof
the protestant or his duly authorized representative.[5]
Both petitioner Navarosa and respondent Esto sought reconsideration of the Order
but the trial court denied their motions on 5 April 2002.
Respondent Esto filed a petition for certiorari with the COMELEC against the
Order. In her memorandum to the petition, petitioner Navarosa raised for the first time the
issue of the trial courts failure to acquire jurisdiction over the election protest because of
respondent Estos failure to pay the COMELEC filing fee.
The Ruling of the COMELEC
In its Resolution dated 28 November 2002 (Resolution), the COMELEC Second
Division affirmed the trial courts Order granting execution pending appeal and nullified
ADMIN LAW CASES SET 5
the stay of the execution. The Second Division also found that respondent Esto duly paid
the COMELEC filing fee. The Resolution reads:
Going now to the main issue at hand, did respondent judge gravely abuse his discretion
and/or exceed his jurisdiction when he stayed the immediate execution of his decision on
a finding of good reasons he made in his questioned Order of March 22, 2002 by
allowing in the same Order the filing of a supersedeas bond double the amount posted
by petitioner?
The answer is yes.
It is [for] the Commission on Elections, in the exercise of its appellate jurisdiction to issue
the extraordinary writs of certiorari, prohibition, mandamus and injunction over all
contests involving elective municipal officials decided by the trial courts of general
jurisdiction elevated on appeal, and not the trial court, that may order the stay or restrain
the immediate execution of the decision pending appeal granted by the trial court of
general jurisdiction in an election contest. Except when the trial court reversed itself in a
motion for reconsideration of its order granting immediate execution, it cannot later on
stay or restrain the execution thereof in the guise of allowing the losing party to file a
supersedeas bond. The issue before the trial court where a motion for execution pending
appeal is filed is to determine whether or not there are good reasons to justify the
immediate execution pending appeal. The issue is not whether x x x there are good
reasons to stay the immediate execution of the decision pending appeal.
The trial court, by granting the immediate execution of the March 4, 2002 decision,
recognized that the good reasons cited in the questioned Order constitute superior
circumstances demanding urgency that will outweigh the injuries or damages to the
adverse party if the decision is reversed. By declaring that petitioner Esto is the duly
elected Mayor of Libacao, Aklan, the trial court gave substance and meaning to the
peoples mandate as expressed in the ballot, especially since it has established petitioner
Estos right to the office. The trial court cannot indirectly reverse its substantial finding of
good reasons by a rule of procedure which does not strictly apply in election protest
cases when it allowed the filing of a supersedeas bond under Section 3, Rule 39 of the
1997 Rules of Civil Procedure. To allow the application of the said procedural relief would
defeat the right of the winning candidate in an election protest to hold the public office by
virtue of the peoples mandate expressed through the ballot and to perform the functions
of the said public office.
xxx
34

It is interesting to note that instead of expounding on the propriety of the supersedeas
bond to stay the execution of a judgment in an election protest case, private respondent
raised for the first time in his [sic] memorandum the issue of lack of jurisdiction of the trial
court over the instant election protest for the alleged failure of petitioner Esto to pay the
filing fee of P300.00 required under Section 9, Rule 35 of the COMELEC Rules of
Procedure. However, the records of Election Case No. 129 of the RTC of Kalibo, Aklan,
Branch 9 showed otherwise. The Official Receipts issued by the RTC of Kalibo, Aklan
shows [sic] that petitioners paid a total of P515.00 filing fees in Election Case No. 129 by
specifically stating therein [F]iling Fee in Election Case No. 129. At the time of filing the
election protest, petitioner specified that the payment made was to cover the COMELEC
filing fee for the election protest. Upon assessment, petitioner paid not only the amount
of P300.00 required under Section 9, Rule 35 of the COMELEC Rules of Procedure, but
a total sum of P515.00 as filing fees. While it is true that the issue of jurisdiction may be
raised anytime, even on appeal, the same is of no moment now.[6]
Petitioner Navarosa sought reconsideration of this ruling but the COMELEC En
Banc denied her motion on 15 April 2003.
Hence, this petition.
On 10 June 2003, the Court required the parties to maintain the status quo pending
resolution of this petition.
The Issues
Petitioner Navarosa raises the following issues:
1. WHETHER PUBLIC RESPONDENT COMELEC EN BANC ACTED WITH
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION WHEN IT AFFIRMED THE 28 NOVEMBER 2002
RESOLUTION OF THE COMELEC SECOND DIVISION FOR FAILURE
TO RULE ON THE BASIC ISSUE OF LACK OF JURISDICTION OF THE
COURT A QUO OVER RESPONDENT ESTOS ELECTION PROTEST
FOR NON-PAYMENT OF THE MANDATORY COMELEC FILING FEE
OF P300.00.
2. WHETHER PUBLIC RESPONDENT COMELEC EN BANC ACTED WITH
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION WHEN IT AFFIRMED THE 28 NOVEMBER 2002
RESOLUTION OF THE COMELEC SECOND DIVISION DESPITE THE
ADMIN LAW CASES SET 5
FACT THAT THERE WERE NO GOOD REASONS TO EXECUTE THE 4
MARCH 2002 DECISION OF THE TRIAL COURT.
3. WHETHER PUBLIC RESPONDENT COMELEC EN BANC ACTED WITH
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION WHEN IT AFFIRMED THE 28 NOVEMBER 2002
RESOLUTION OF THE COMELEC SECOND DIVISION WHEN THE
LATTER RULED THAT THE TRIAL COURT HAD NO POWER TO
ORDER THE STAY OF EXECUTION OF ITS 4 MARCH 2002 DECISION
PENDING APPEAL IN AN ELECTION CONTEST, BECAUSE SECTION
3, RULE 39 OF THE REVISED RULES OF COURT DOES NOT APPLY
TO ELECTION CASES.[7]
The Ruling of the Court
The petition has no merit.
The Trial Court Acquired Jurisdiction Over
Election Case No. 129
Petitioner Navarosa contends that the trial court did not acquire jurisdiction over the
election protest because of respondent Estos failure to pay the COMELEC filing fee
under Rule 35, Section 9 of the COMELEC Rules of Procedure (Section 9). Procedurally,
petitioner Navarosa should not have raised this jurisdictional issue in this petition which
involves only the ancillary issue of whether to allow execution of the trial courts decision
pending appeal. Nevertheless, as the question of the trial courts jurisdiction also affects
its authority to issue ancillary orders such as its Order of 22 March 2002 subject of this
petition, we have resolved to pass upon this issue.
Section 9 provides:
Filing Fee. No protest, counter-protest, or protest-in-intervention shall be given due
course without the payment of a filing fee in the amount of three hundred pesos
(P300.00) for each interest.
Each interest shall further pay the legal research fee as required by law.
Respondent Esto must pay this filing fee before the trial court can exercise its jurisdiction
over the election protest.[8] The COMELEC filing fee, to distinguish from the other
35

mandatory fees under Rule 141 of the Rules of Court, as amended, is credited to the
Courts General Fund.[9]
Petitioner Navarosa claims that although the receipts issued by the trial court show
that respondent Esto paid P515 as filing and other fees, only P100 was credited to the
General Fund. The rest of what respondent Esto paid accrued to the Judiciary
Development Fund (P400), the Legal Research Fund (P10) and the Victims
Compensation Fund (P5).[10]Consequently, respondent Esto paid only P100 of the P300
COMELEC filing fee, for which reason the trial court did not acquire jurisdiction over the
election protest. Petitioner Navarosa also claimed that the Second Division did not rule
on this issue.
Contrary to petitioner Navarosas claim, the COMELEC Second Division did rule on
the issue of respondent Estos non-payment of the full amount of the COMELEC filing
fee. The Second Division held that the P515 fees respondent Esto paid already covered
the P300 COMELEC filing fee.
However, based on the trial courts Election Fees Form for Election Case No. 129,
[11] of the total amount of P515 respondent Esto paid, only P100 was indeed credited to
the General Fund. Consequently, respondent Esto only paid P100 of the required P300
COMELEC filing fee.
In an earlier ruling,[12] the Court held that an election protest is not dismissible if the
protestant, relying on the trial courts assessment, pays only a portion[13] of the
COMELEC filing fee. However, in Miranda v. Castillo,[14] the Court, reiterating Loyola v.
Commission on Elections,[15] held that it would no longer tolerate any mistake in the
payment of the full amount of filing fees for election cases filed after the promulgation of
the Loyola decision on March 25, 1997. Nevertheless, our rulings
in Miranda and Loyola are inapplicable to the present case.
At no time did petitioner Navarosa ever raise the issue of respondent Estos
incomplete payment of the COMELEC filing fee during the full-blown trial of the election
protest. Petitioner Navarosa actively participated in the proceedings below by filing her
Answer, presenting her evidence, and later, seeking a stay of execution by filing a
supersedeas bond. Not only this, she even invoked the trial courts jurisdiction by filing a
counter-protest against respondent Esto in which she must have prayed for affirmative
reliefs.[16]
Petitioner Navarosa raised the issue of incomplete payment of the COMELEC filing
fee only in her memorandum to respondent Estos petition before the COMELEC Second
ADMIN LAW CASES SET 5
Division.Petitioner Navarosas conduct estops her from claiming, at such late stage, that
the trial court did not after all acquire jurisdiction over the election protest. Although a
party cannot waive jurisdictional issues and may raise them at any stage of the
proceedings, estoppel may bar a party from raising such issues.[17] In Pantranco North
Express v. Court of Appeals,[18] this Court applied the doctrine of estoppel against a
party who also belatedly raised the issue of insufficient payment of filing fees to question
the courts exercise of jurisdiction over the case. We held:
The petitioner raised the issue regarding jurisdiction for the first time in its Brief filed with
public respondent [Court of Appeals] x x x After vigorously participating in all stages of
the case before the trial court and even invoking the trial courts authority in order to ask
for affirmative relief, the petitioner is effectively barred by estoppel from challenging the
trial courts jurisdiction.
Indeed, in Miranda and Loyola, as in every other case[19] where we sustained the
dismissal of the election protest for lack or incomplete payment of the COMELEC filing
fee, the protestee timely raised the non-payment in a motion to dismiss. Before any
revision of the contested ballots, the protestee filed a petition for certiorari questioning
the trial courts jurisdiction before the COMELEC and eventually before this Court. In
contrast, in the instant case, petitioner Navarosa did not raise the incomplete payment of
the COMELEC filing fee in a motion to dismiss. Consequently, the trial court proceeded
with the revision of the contested ballots and subsequently rendered judgment on the
election protest. Petitioner Navarosa raised for the first time the incomplete payment of
the COMELEC filing fee in her memorandum before the COMELEC Second Division.
Thus, estoppel has set in precluding petitioner Navarosa from questioning the
incomplete payment of the COMELEC filing fee, and in effect assailing the exercise of
jurisdiction by the trial court over the election protest. The law vests in the trial court
jurisdiction over election protests although the exercise of such jurisdiction requires the
payment of docket and filing fees by the party invoking the trial courts jurisdiction.
[20] Estoppel now prevents petitioner Navarosa from questioning the trial courts exercise
of such jurisdiction, which the law and not any act of the parties has conferred on the trial
court. At this stage, the remedy for respondent Estos incomplete payment is for him to
pay the P200 deficiency in the COMELEC filing fee.[21] It is highly unjust to the
electorate of Libacao, Aklan, after the trial court has completed revision of the contested
ballots, to dismiss the election protest and forever foreclose the determination of the true
winner of the election for a mere P200 deficiency in the COMELEC filing fee. We repeat
that:
36

[E]lection contests involve public interest, and technicalities and procedural barriers
should not be allowed to stand if they constitute an obstacle to the determination of the
true will of the electorate in the choice of their elective officials. And also settled is the
rule that laws governing election contests must be liberally construed to the end that the
will of the people in the choice of public officials may not be defeated by mere technical
objections. In an election case the court has an imperative duty to ascertain by all means
within its command who is the real candidate elected by the electorate.[22]
Good Reasons Exist to Grant Execution
Pending Appeal in this Case
To grant execution pending appeal in election protest cases, the following requisites
must concur: (1) there must be a motion by the prevailing party with notice to the adverse
party; (2) there must be good reasons for the execution pending appeal; and (3) the
order granting execution pending appeal must state the good reasons.[23] Petitioner
Navarosa concedes respondent Estos compliance with the first and third requisites.
What she contests is the trial courts finding that there are good reasons to order
discretionary execution of its decision.
In Ramas v. Commission on Elections,[24] the Court, after reviewing pertinent
jurisprudence, summarized the circumstances qualifying as good reasons justifying
execution pending appeal, thus:
In a nutshell, the following constitute good reasons, and a combination of two or more of
them will suffice to grant execution pending appeal: (1) the public interest involved or the
will of the electorate; (2) the shortness of the remaining portion of the term of the
contested office; and (3) the length of time that the election contest has been pending.
The trial court in the present case, relying on cases[25] reviewed in Ramas, invoked
two good reasons to justify its order allowing execution pending appeal. First, the order
will give substance and meaning to the peoples mandate. Second, more than 10 months
or nearly 1/3 of the 3-year term of the office in question had already lapsed. The
COMELEC found these good reasons sufficient. Being consistent with Ramas, we find
no grave abuse of discretion in the ruling of the trial court or of the COMELEC.
Petitioner Navarosas invocation of Camlian v. Commission on Elections[26] is
unavailing. In Camlian, the COMELEC ruled that circumstances such as public interest in
the true outcome of the elections[;] that the protestee illegally manufactured votes[;] and
that the appeal was interposed for delay do not suffice to justify execution pending
ADMIN LAW CASES SET 5
appeal. On appeal, we sustained the COMELEC, noting that not every invocation of
public interest with x x x reference to the will of the electorate can be appreciated as a
good reason especially so if the same appears to be self-serving and has not been
clearly established. The Court further pointed out that the protestant failed to substantiate
his claim that the appeal is dilatory as it in fact assails the trial courts ruling. These
circumstances are absent in the present case, precluding Camlians application.
Section 3 of Rule 39 Not Applicable
To Election Protest Cases
Unlike the Election Code of 1971,[27] which expressly provided for execution
pending appeal of trial courts rulings in election protests, the present election laws are
silent on such remedy. Nevertheless, Section 2, Rule 39 (Section 2) of the Rules of Court
(now 1997 Rules of Civil Procedure) applies in suppletory character to election cases,
thus allowing execution pending appeal in the discretion of the court. As explained
in Ramas:
The Omnibus Election Code of the Philippines (B.P. Blg. 881) and the other election laws
do not specifically provide for execution pending appeal of judgment in election cases,
unlike the Election Code of 1971 whose Section 218 made express reference to the
Rules of Court on execution pending appeal; xxx
The failure of the extant election laws to reproduce Section 218 of the Election Code of
1971 does not mean that execution of judgment pending appeal is no longer available in
election cases. In election contests involving elective municipal officials, which are
cognizable by courts of general jurisdiction; and those involving elective barangay
officials, which are cognizable by courts of limited jurisdiction, execution of judgment
pending appeal under Section 2 of Rule 39 of the Rules of Court are permissible
pursuant to Rule 143 of the Rules of Court, which is now Section 4, Rule 1 of the 1997
Rules of Civil Procedure. This Section 4 provides:
SEC 4. In what cases not applicable.- These Rules shall not apply to election cases, land
registration, cadastral, naturalization and insolvency proceedings, and other cases not
herein provided for, except by analogy or in a suppletory character and whenever
practicable and convenient.
As to election cases involving regional, provincial, and city officials, which fall within the
exclusive original jurisdiction of the COMELEC, Section 3 of Article IX-C of the
Constitution vests the COMELEC with the authority to promulgate its rules of procedure
37

in order to expedite disposition of election cases, including pre-proclamation
controversies. Additionally, Section 52(c), Article VII of the Omnibus Election Code
empowers the COMELEC to promulgate rules and regulations implementing the
provisions of the Code or other laws which it is required to enforce and
administer. Accordingly, the COMELEC promulgated the COMELEC Rules of
Procedure. Section 1 of Rule 41 thereof expressly provides that [i]n the absence of any
applicable provision in [said] Rules, the pertinent provisions of the Rules of Court in the
Philippines shall be applicable by analogy or in a suppletory character and effect.[28]
In the earlier case of Gahol v. Riodique,[29] the Court explained the legislative intent
behind the enactment of Section 218 of the Election Code of 1971. In Gahol, the Court
gave an additional justification for allowing execution pending appeal of decisions of trial
courts, thus:
xxx [T]his innovative provision is the product of the bad experience of the people under
the previous election laws. Public policy underlies it. xxx [S]omething had to be done to
strike the death blow at the pernicious grab-the-proclamation-prolong-the-protest
technique often, if not invariably, resorted to by unscrupulous politicians who would
render nugatory the peoples verdict against them and persist in continuing in an office
they very well know they have no legitimate right to hold. xxx [T]o uphold the theory of
Protestee that the very nature of the matter in dispute in election contests, the holding of
a public office and the performance of its functions, makes gravely doubtful the propriety
of an execution pending appeal, what with the possible placing of the corresponding
powers of government in the hands of one who might ultimately turn out not to be really
entitled to the position, is to negate the unquestionable and patent intent of the
legislature to give as much recognition to the worth of a trial judges decision as that
which is initially ascribed by the law to the proclamation by the board of canvassers. Why
should the proclamation by the board of canvassers suffice as basis of the right to
assume office, subject to future contingencies attendant to a protest, and not the
decision of a court of justice? Indeed, when it is considered that the board of canvassers
is composed of persons who are less technically prepared to make an accurate
appreciation of the ballots, apart from their being more apt to yield extraneous
considerations, that the board must act summarily, practically [racing] against time, while,
on the other hand, the judge has the benefit of all the evidence the parties can offer and
of admittedly better technical preparation and background, apart from his being allowed
ample time for conscientious study and mature deliberation before rendering judgment,
one cannot but perceive the wisdom of allowing the immediate execution of decisions in
election cases adverse to the protestees, notwithstanding the perfection and pendency of
appeals therefrom, as long as there are, in the sound discretion of the court, good
reasons therefor. (Emphasis supplied)
ADMIN LAW CASES SET 5
Thus, a primordial public interest to obviate a hollow victory for the duly elected
candidate as determined by the trial court lies behind the present rule giving suppletory
application to Section 2. Only a more compelling contrary policy consideration can
prevent the suppletory application of Section 2. In insisting that the simple expedient of
posting a supersedeas bond can stay execution pending appeal, petitioner Navarosa
neither claims nor offers a more compelling contrary policy consideration. Instead, she
merely contends that Section 3 of Rule 39 (Section 3) applies also in a suppletory
character because its Siamese twin[30] provision, Section 2, is already being so
applied. Such simplistic reasoning both ignores and negates the public interest
underlying Section 2s application. We cannot countenance such argument.
Furthermore, a supersedeas bond under Section 3 cannot fully protect the interests
of the prevailing party in election protest cases. Section 3 provides:
Stay of discretionary execution. Discretionary execution issued under the preceding
section may be stayed upon approval by the proper court of a sufficient bond, filed by the
party against whom it is directed, conditioned upon the performance of the judgment or
order allowed to be executed in case it shall be finally sustained in whole or in part. The
bond thus given may be proceeded against on motion with notice to the
surety. (Emphasis supplied)
A supersedeas bond secures the performance of the judgment or order appealed
from in case of its affirmation.[31] Section 3 finds application in ordinary civil actions
where the interest of the prevailing party is capable of pecuniary estimation, and
consequently, of protection, through the filing of a supersedeas bond. Thus, the
penultimate sentence of Section 3 states: [T]he bond thus given may be proceeded
against on motion with notice to the surety. Consequently, it finds no application in
election protest cases where judgments invariably include orders which are not capable
of pecuniary estimation such as the right to hold office and perform its functions. As well
observed by the COMELEC Second Division in its Resolution in the instant case:
The supersedeas bond, as used under Section 3, Rule 39 of the 1997 Rules of Civil
Procedure, refers to a bond, either in cash or a surety bond, filed by the losing party in an
ordinary civil action to secure the performance or to satisfy the judgment appealed from
in case it is affirmed on appeal in favor of the prevailing party. A supersedeas bond is
filed purposely for the performance of the judgment appealed from in case it is affirmed
by the appellate court. On the assumption that the filing of the supersedeas bond applies
in an election protest case, the practical considerations of the matter dictate that it cannot
secure the performance of or satisfy the judgment rendered in an election protest which
basically involves the right to hold a public office and the performance of its functions in
38
 ADMIN LAW CASES SET 5
accordance with the mandate of the law, except insofar as the monetary award provided
in the special order. By allowing the filing of a supersedeas bond to stay the execution of
a judgment in an election protest declaring the protestant, as in the case of petitioner
herein, as the winning candidate who is entitled to the right to hold and perform the
functions of the contested public office, would render the judgment in an election protest
illusory. xxx While the supersedeas bond ensures that the appealed decision if affirmed
is satisfied, in an election protest case, such bond, in the event the appealed case is
affirmed and the execution pending appeal is proven to be meritorious, cannot
adequately answer for the deprivation of a duly elected candidate of his post, and his
constituents of their leader of choice, such deprivation being unquantifiable.[32]
(Emphasis added)

As applied to the present case, the supersedeas bond petitioner Navarosa filed can
only answer for that portion of the trial courts ruling ordering her to pay to respondent
Esto actual damages, attorneys fees and the cost of the suit. It cannot secure execution
of that portion proclaiming respondent Esto duly elected mayor of Libacao, Aklan by
popular will of the electorate and authorizing him to assume the office. This anomalous
situation defeats the very purpose for the filing of the supersedeas bond in the first place.

In sum, the Court holds that the COMELEC did not commit grave abuse of
discretion in ordering execution pending appeal of the trial courts decision. Grave abuse
of discretion implies capricious and whimsical exercise of judgment amounting to lack of
jurisdiction, or arbitrary and despotic exercise of power because of passion or personal
hostility. The grave abuse of discretion must be so patent and gross as to amount to an
evasion or refusal to perform a duty enjoined by law.[33] This does not obtain in the
present case.

WHEREFORE, we DISMISS the instant petition. The Resolution dated 28

November 2002 of the COMELEC Second Division, and the Resolution dated 15 April
2003 of the COMELEC En Banc, are AFFIRMED. The status quo order dated 10 June
2003 is LIFTED and the COMELEC is directed to cause the implementation of
the Decision of the Regional Trial Court of Kalibo, Aklan, Branch 9, in Election Case No.
129, without prejudice to any judgment the COMELEC may render in EAC Case No. A-9-
2002. Moreover, respondent Roger M. Esto shall pay immediately the P200 deficiency in
the COMELEC filing fee. SO ORDERED.

39

G.R. No. 94521 October 28, 1991
OLIVER O. LOZANO, petitioner, vs. HON. COMMISSIONER HAYDEE B. YORAC OF
THE COMMISSION ON ELECTIONS, respondents.
G.R. No. 94626 October 28, 1991
OLIVER O. LOZANO, petitioner, vs. COMMISSIONER ON ELECTIONS and JEJOMAR
C. BINAY, respondents.
Petitioner Oliver L. Lozano filed these two special civil actions for certiorari, namely: G.R.
No. 94521 which seeks the review of the undated
order 1 of respondent Commissioner Haydee B. Yorac denying the motion for her
voluntary inhibition and/or disqualification in SPC No. 88-040, entitled "Oliver O. Lozano,
et al. vs. Mayor Jejomar C. Binay"; and G.R. No. 94626 which prays for a reversal of
the en banc resolution 2 promulgated by respondent Commission on Elections
(COMELEC) on August 7, 1990 3 dismissing the disqualification petition and criminal
complaint for vote buying against respondent Mayor Jejomar C. Binay in connection with
the January 18, 1988 local elections, and its minute resolution of August 15,
1990 4 denying due course to petitioner's motion for reconsideration.
The backdrop of this case on record reveals the following antecedent facts:
1. On January 11, 1988, prior to the January 18, 1988 local elections, petitioner and
Bernadette Agcorpa, a registered voter of Makati, filed with the COMELEC a petition for
disqualification against then candidate for mayor Jejomar C. Binay on the ground that
respondent Binay used P9.9 million of municipal funds to enhance his candidacy and his
entire ticket under the Lakas ng Bansa.
2. The disqualification case was assigned to the Second Division of the COMELEC
composed of Commissioner Haydee B. Yorac, as presiding officer, and Commissioners
Andres R. Flores and Magdara B. Dimaampao, as members.
3. The Second Division, through its Presiding Commissioner, referred the case to the
Law Department of respondent commission for preliminary investigation of the criminal
aspect. On February 4, 1988, Binay filed his counter-affidavit with said department.
4. On June 21, 1988, petitioner filed an Omnibus Motion praying for the inhibition and/or
disqualification of Commissioners Yorac and Africa. This was the first of several motions
for inhibition filed by petitioner before respondent commission. Petitioner also prayed that
the disqualification petition be referred for consideration en banc. Commissioner Yorac
ADMIN LAW CASES SET 5
denied the motion for inhibition. On August 10, 1988, the COMELEC en banc denied the
prayer that the case be heard en banc, ruling that "no substantial reason exists why this
case should be taken en banc; and considering finally that the case is set for hearing by
the Second Division."
5. On October 26, 1988, petitioner Lozano himself filed a motion to disqualify
Commissioner Yorac because she postponed motu proprio a hearing set on the ground
that she will study the issue of jurisdiction. Said motion was denied.
6. On November 3, 1988, the COMELEC en banc promulgated Resolution No. 2050
which provides that petitions for disqualification filed prior to the January 18, 1988 local
elections based on Section 68 of the Omnibus Election Code but not resolved before the
elections shall be referred for preliminary investigation to the Law Department which
shall submit its report to the Commission en banc. Pursuant to said resolution, the
Second Division on even date referred back the disqualification case against respondent
Binay to the Law Department "before taking any action thereon."
7. On November 8, 1988, petitioner filed another motion praying that the disqualification
case be heard and decided en banc invoking therein COMELEC Resolution No. 2050.
Instead of issuing a formal resolution, respondent COMELEC authorized then Chairman
Hilario G. Davide, Jr. (now a member of this Court) to reply to petitioner's counsel.
8. On May 23, 1990, the Law Department submitted its investigation
report 5 recommending that criminal charges be filed against respondent Binay for
violation of Section 261(a) of the Omnibus Election Code, as follows:
PREMISES CONSIDERED, the Law Department (Investigation and Prosecution
Division) RECOMMENDS as follows:
1. To file the necessary information against Mayor Jejomar Binay before the
proper Regional Trial Court of the National Capital Region for violation of Section
261(a) of the Omnibus Election Code, the prosecution thereof to be handled by
the Special Prosecution Committee;
2. To dismiss the charge against Mayor Jejomar Binay for threats and
intimidation under Section 261(e) of the Omnibus Election Code for lack of
evidence; and
3. To dismiss the charge against Conchitina Bernardo for insufficiency of
evidence.
40

9. On July 2, 1990, petitioner filed a motion praying that the disqualification case be,
resolved jointly with the investigation report of the Law Department.
10 On July 9, 1990, petitioner filed a third motion for the voluntary inhibition and/or
disqualification of Commissioner Yorac for having issued a previous memorandum
addressed to the chairman and members of respondent commission expressing her
opinion that Binay should first be convicted by the regular courts of the offense of vote
buying before he could be disqualified. The full text of said memorandum 6 reads:
I submit for the Commission's consideration the matter of the procedural
problems in the above case.
The chronology of events, so far as this case is concerned, is as follows:
1. SPC No. 88-040 for the disqualification of Jejomar Binay, then candidate for
Mayor of Makati was filed on January 11, 1988. It was assigned to the second
Division.
2. On July 29, 1988, petitioners filed a motion to set the case for hearing alleging
that the Commission on Audit (COA) had officially confirmed the allegations of
the complainants.
3. Hearings were actually conducted on August 11, September 12, October 12
and October 19, 1988.
4. On November 3, 1988, the Commission en banc adopted Resolution No. 88-
2050, which, inter alia provides that:
1. . . .
In case such complaint was not resolved before the election, the
commission may motu proprio, or on motion of any of the parties, refer
the complaint to the Law Department of the Commission as an
instrument of the latter in the exercise of its exclusive power to conduct a
preliminary investigation of all cases involving criminal infractions of the
election laws. Such recourse may be availed of irrespective of whether
the respondent has been elected or has lost in the election;
xxx xxx xxx
ADMIN LAW CASES SET 5
3. The Law Department shall terminate the preliminary investigation
within thirty (30) days from receipt of the referral and shall submit its
study, report and recommendation to the Commission en banc within five
(5) days from the conclusion of the preliminary investigation. If it makes
a prima facie finding of guilt, it shall submit with such study the
information for filing with the appropriate court.
5. On the same date, conformable with Resolution No. 88-2050, the
Second Division referred SPC No. 88-040 to the Law Department.
6. In the course of the investigation by the Law Department, the case
became entangled with procedural difficulties the resolution of which has
been sought in the Second Division.
My own personal thinking on the matter is that since the preliminary
investigation is the determination of criminal liability, with the
administrative consequence of removal imposable only as long term
sanction, i.e., after final criminal conviction, the matter of procedure in the
preliminary investigation is one that should be addressed to the
commission en banc rather than to either of its divisions.
11. On August 2, 1990, petitioner received a notice setting the promulgation of
judgment en banc for August 6, 1990. Petitioner on August 3, 1990 filed an objection to
the promulgation of judgment en banc, allegedly because there was no showing that the
case was referred to the commission en banc upon unanimous vote of all the members
of the Second Division.
12. In its aforestated August 7, 1990 resolution which is herein assailed, the
COMELEC en banc dismissed the petition for disqualification and the criminal complaint
for vote buying against respondent Binay. During the promulgation of judgment,
petitioner asked that the same be suspended until after the resolution of the legal issues
raised involving constitutional and jurisdictional questions. Commissioner Yorac was
likewise requested by petitioner to decide the motion for her inhibition. In her undated
order subject of the petition in G.R. No. 94521, as stated in limine, Commissioner Yorac
denied the motion for for inhibition, stating that:
During the deliberations on this case, I seriously considered inhibiting myself
from participating and voting despite the flimsy basis which was cited for it. But I
became convinced, from the information that was coming in, that the motion was
really part of a numbers game, being played out on the basis of information
41

emanating from the Commission itself as to the developments in the deliberation
and the voting. Reliable information also shows that approaches have been
made to influence the voting.
It is for this reason that I do not inhibit myself from the voting in this case
consistent with my reading of the law and the evidence.
13. The aforesaid resolution of August 7, 1990 dismissed the petition for disqualification
for lack of merit. The motion for reconsideration filed by herein petitioner was denied in a
resolution dated August 15, 1990, on the ground that "pursuant to Section 1(d), Rule 13
of the Comelec Rules of Procedure, a motion for reconsideration of an en banc ruling of
the Commission is one of the prohibited pleadings, and therefore not allowed under the
Rules.
Succinctly condensed, the petition filed against respondents COMELEC and Binay raises
the following issues:
1. Contrary to the requirement under Section 2, Rule 3 of the COMELEC Rules
of Procedure, SPC No. 88-040 was referred to the Comission en banc without
the required unanimous vote of all the members of the Second Division.
2. The minute resolution of August 15, 1990 is null and void for having been
issued without prior notice to the parties and without fixing a date for the
promulgation thereof.
3. Respondent commission committed a grave abuse of discretion amount to
lack of jurisdiction in not finding Binay guilty of vote- buying, contrary to the
evidence presented by petitioner. 7
In G.R. No. 94521, this Court issued on August 16, 1990 a temporary restraining
order 8 ordering respondent Commissioner Yorac to cease and desist from participating
in the deliberation and resolution of the motion for reconsideration dated August 9, 1990
filed in SPC No. 88-040, entitled "Oliver O. Lozano, et al. vs. Jejomar Binay." The order
was served in the office of Commissioner Yorac on August 17, 1990 at 11:25 A.M. 9 It
appears, however, that the motion for reconsideration was denied by respondent
commission en banc in a resolution dated August 15, 1990, copy of which was served on
petitioner on August 17, 1990 at 12:35 P.M. Consequently, the issue on the inhibition and
disqualification of Commissioner Yorac has been rendered moot and academic.
ADMIN LAW CASES SET 5
Granting arguendo that the petition for inhibition of Commissioner Yorac has not been
mooted by the resolution en banc dismissing the main case for disqualification,
petitioner's postulation that she should have inhibited herself form hearing the main case,
for allegedly having prejudged the case when she advanced the opinion that respondent
Binay could only be disqualified after conviction by the regional trial court, is of exiguous
validity. In the first place, the COMELEC Rules of Procedure, specifically Section 1, Rule
4 thereof, prohibits a member from, among others, sitting in a case in which he has
proof. There is no showing that the memorandum wherein Commissioner Yorac rendered
her opinion was ever made public either by publication or dissemination of the same to
the public. Furthermore, the opinion of Commissioner Yorac was based on prior cases for
disqualification filed with the COMELEC wherein prior conviction of the respondent was
considered a condition sine qua non for the filing of the disqualification case. 10 We
accordingly find no compelling reason to inhibit Commissioner Yorac from participating in
the hearing and decision of the case.
Similarly, we find the petition in G.R. No. 94626 devoid of merit. Petitioner first avers that
under Section 2, Rule 3 of the COMELEC Rules of Procedure, a case pending in a
division may be referred to and decided by the Commission en banc only on a
unanimous vote of all the members of the division. It is contended that SPC No. 88-040
which was pending before the COMELEC's Second Division was referred to the
Commission en banc without the required unanimous vote of all the division members,
petitioner alleging that Commissioner Andres R. Flores voted for the referral of the
petition for disqualification to the division. It is, therefore, the submission of petitioner that
the resolution of the Commission en banc dated August 17, 1990 is null and void for lack
of jurisdiction and for being unconstitutional.
The argument of petitioner is not well taken. COMELEC Resolution No. 1050 issued by
the commission en banc on November 3, 1988 is the applicable law in this
disqualification case. It provides:
xxx xxx xxx
RESOLVED, as it hereby resolves, to formulate the following rules governing the
disposition of cases of disqualification filed by virtue of Section 68 of the
Omnibus Election Code in relation to Section 6 of R.A. 6646 otherwise known as
the Electoral Reforms Law of 1987:
1. Any complaint for the disqualification of a duly registered candidate based
upon any of the grounds specifically enumerated under Section 68 of the
Omnibus Election Code, filed directly with the Commission before an election in
42

which the respondent is a candidate, shall be inquired into by the Commission for
the purpose of determining whether the acts complained of have in fact been
committed. Where the inquiry by the Commission results in a finding before
election, that the respondent candidate did in fact commit the acts complained
(of), the Commission shall order the disqualification of the respondent candidate
from continuing as such candidate.
In case such complaint was not resolved before the election, the Commission
may motu proprio, or on motion of any of the parties, refer the complaint to the
Law Department of the Commission as the instrument of the latter in the exercise
of its exclusive power to conduct a preliminary investigation of all cases involving
criminal infractions of the election laws. Such recourse may be availed of
irrespective of whether the respondent has been elected or has lost in the
election.
2. Any complaint for disqualification based on Section 68 of the Omnibus Election
Code in relation to Section 6 of the Rep. Act No. 6646 filed after the election
against a candidate who has already been proclaimed as winner shall be
dismissed as a disqualification case. However, the complaint shall be referred for
preliminary investigation to the Law Department of the Commission.
Where a similar complaint is filed after election but before proclamation of the
respondent candidate, the complaint shall, nevertheless, be dismissed as a
disqualification case. However, the complaint shall be referred for preliminary
investigation to the Law Department. If, before proclamation, the Law
Department makes a prima facie finding of guilt and the corresponding
information has been filed with the appropriate trial court, the complainant may
file a petition for suspension of the proclamation of the respondent with the court
before which the criminal case is pending and the said court may order the
suspension of the proclamation if the evidence of guilt is strong.
3. The Law Department shall terminate the preliminary investigation within thirty
(30) days from receipt of the referral and shall submit its study, report and
recommendation to the Commission en banc within five (5) days from the
conclusion of the preliminary investigation. If it makes a prima facie finding of
guilt, it shall submit with such study the information for filing with the appropriate
court. 11
xxx xxx xxx
ADMIN LAW CASES SET 5
Contrary to petitioner's submission that said resolution has been repealed by the
COMELEC Rules of Procedure which took effect on November 15, 1988, there is nothing
in the resolution which appears to be inconsistent with the procedural rules issued by the
COMELEC.
Firstly, Resolution No. 2050 was passed by reason of the variance in opinions of the
members of respondent commission on matters of procedure in dealing with cases of
disqualification filed pursuant to Section 68 of the Omnibus Election Code in relation to
Section 6 of Republic Act No. 6646, or the Electoral Reforms Law of 1987, and the
manner of disposing of the same had not been uniform. Hence, the COMELEC decided
to lay down a definite policy in the disposition of these disqualification cases. Within this
purpose in mind, the Commission en banc adopted Resolution No. 2050. The transitory
provision under Section 2, Rule 44 of the COMELEC Rules of Procedure provides that
these rules shall govern all cases pending at the time of effectivity thereof, except to the
extent that in the opinion of the commission, or the court in appropriate cases, an
application would not be feasible or would work injustice, in which event the former
procedure shall apply. We believe that Resolution No. 2050 qualifies and should be
considered as an exception to the generally retroactive effect of said rules.
Secondly, prior to the issuance of Resolution No. 2050, petitioner had filed several
motions with the Second Division asking for the referral of the disqualification case to the
Commission en banc. After the COMELEC en banc issued Resolution No. 2050,
petitioner filed another motion for the referral of the case to the Commission en banc,
specifically invoking Resolution No.
2050. 12 In the words of petitioner in his said motion, under the aforesaid resolution,
"once the petition for disqualification is forwarded to the Law Department, the case is
deemed en banc because the report is submitted En banc by the law Department."
Petitioner having invoked the jurisdiction of the Commission en banc is now estopped
from questioning the same after obtaining an adverse judgment therefrom.
Thirdly, Commissioner Andres R. Flores, who opined that the disqualification case should
first be resolved by the Second Division, has since then clarified his position after he was
reminded that Resolution No. 2050, which he had admittedly "completely forgotten" had
"laid down a definite policy on the disposition of disqualification cases contemplated in
Section 68 of the Omnibus Election Code. 13
Lastly, Resolution No. 2050 specifically mandates a definite policy and procedure for
disqualification cases. The COMELEC Rules of Procedure speak of special actions,
which include disqualification cases, in general. Hence, as between a specific and a
general rule, the former shall necessarily prevail.
43

Anent the propriety of the issuance of the resolution denying petitioner's motion for
reconsideration, suffice it to say that the requirement of notice in the promulgation of
resolutions and decisions of the COMELEC embodied in Section 5 of Rule 18 of the
Rules does not apply in the case at bar for the simple reason that a motion for
reconsideration of an en banc ruling, resolution, order or decision is not allowed under
Section 1, Rule 13 thereof.
Respondent COMELEC, in dismissing the petition for disqualification and in holding that
respondent Binay is not guilty of vote buying, ruled as follows:
xxx xxx xxx
The commission concurs with the findings of the Law Department on
enumeration Nos. 2 and 3 but rejects exception to the recommendation for
prosecution of respondent Binay under No. 1 therefor, it appearing that there is a
clear misappreciation of the evidence submitted considering the inconsistencies
in the testimonies of material witnesses for the petitioners, as well as the correct
interpretation and application of the law cited as basis for the prosecution of
respondent Binay.
xxx xxx xxx
The seventeen (17) Affidavits submitted by petitioners attached to their original
petition for disqualification dated January 11, 1988, differ form the twenty (20)
affidavits attached to the memorandum of petitioners filed with the Commission
(Second Division) on August 22, 1988. The records of the case do not show that
these seventeen (17) affidavits attached to the original petition were affirmed by
the affiants during the investigation conducted by the Law Department of this
Commission. Of the twenty (20) affidavits appended to the Memorandum of
August 22, 1988, only five (5) of the affiants were able to affirm their testimonies
before hearing officer Alioden Dalaig of the Law Department of this Commission .
..
xxx xxx xxx
In his counter affidavit, respondent Jejomar C. Binay denied the allegations in the
petition for disqualification and interposed the defense that:
The Christmas gift-giving is an annual project of the Municipal
Government of Makati ever since the time of Mayors Estrella and
ADMIN LAW CASES SET 5
Yabut in the spirit of yuletide season wherein basic and essential
items are distributed to the less fortunate and indigent residents
of Makati out of funds appropriated for the purpose duly budgeted
and subject to audit by the Commission on Audit and same were
prepared sometime on October 1987 long before I filed my
certificate of candidacy and ceased to be the Acting Mayor of
Makati, . . .
The alleged ticket bearing my name, assuming its existence,
indicates nothing of significance except that of a Christmas and
New Year greeting and is not suggestive of anything which may
be considered or interpreted to be political in nature such as
indorsing my candidacy for that matter. . . .
xxx xxx xxx
It is undisputed that at the time the supposed "gift-giving" transpired between the
periods of December 22-30, 1987, respondent Binay was no longer Mayor of the
Municipality of Makati having resigned from the position on December 2, 1987, to
pursue his candidacy for re-election to the same position. The OIC Mayor of
Makati on the dates complained of, December 22-30, 1987, was OIC Mayor
Sergio S. Santos who stated in his affidavit dated February 4, 1988, that he was
Officer-in-Charge of Makati, Metro Manila, from December 2, 1987 to February 2,
1988, and that as such he implemented on December 18, 1987 the municipal
government's annual and traditional distribution of Christmas gifts.
There is ample evidence to show that it was not respondent Binay who "gave"
the plastic bags containing Christmas gifts to the witnesses who executed
affidavits for the petitioners. The "giver" was in fact the Municipality of Makati.
And this is evidenced by the following documents attached to the records of this
case:
1) Certification dated January 11, 1988 issued by OIC Roberto A. Chang
attached as Annex A to respondent Binay's counter affidavit dated
February 5, 1988.
2) COA Report dated January 11, 1988 attached as Annex "R" to the
pleading denominated as Motion to Set Hearing filed by complainant
Oliver Lozano dated July 26, 1988, filed in connection with SPC No. 88-
040 for disqualification against respondent Binay;
44

The findings of the COA Report itself (dated June 21, 1988) upon which
petitioners rely heavily in their disqualifications case against respondent Binay,
identify the "giver" of the Christmas gifts as the Municipality of Makati and not
respondent Binay. . . .
xxx xxx xxx
Respondent Binay's allegation that the gift-giving was an annual project of the
Municipal Government of Makati was not denied nor disputed by the petitioners
who in fact made capital of the aforequoted findings of the Commission on Audit
in their charge against respondent Binay for alleged misuse of public funds. Also,
petitioners in their latest pleading filed with the Commission on July 2, 1990,
entitled "Motion To Resolve The Disqualification Case Jointly With The
Investigation Report of the Law Department" instead of rebutting respondent
Binay's allegation that the Christmas gift giving is an annual project of the
Municipal Government of Makati ever since the time of Mayors Estrella and
Yabut, merely stated that:
. . . Assuming arguendo that Mayor Estrella had practiced this gift-giving
every Christmas, the fact is, that there had been no electoral campaign
on-going during such distribution and/or no election was scheduled
during Mayor Estrella's tenure.
"This is also true in the case of Mayor Yabut."
More Petitioners' documentary evidence, among which are Exhibits "A", "A-1";
"A-2"; "A-20";"B"; "B-1"; "B-2"; "B-25"; "C-1"; "C-2"; "C-27"; "D"; "E" and "F", all
show indubitably that the Christmas packages which were distributed between
the periods of December 22-30, 1987, were ordered, purchased and paid for by
the Municipality of Makati and not by respondent Binay. There is more than prima
facie proofs to show that those gift packages received by the witnesses for
petitioners were intended as Christmas presents to Makati's indigents in
December 1988.
It would therefore appear from the evidence submitted by the petitioners
themselves that the giver, if any, of the Christmas gifts which were received by
the witnesses for the petitioners was in fact, the Municipality of Makati and not
respondent Jejomar C. Binay. The presence of respondent Binay, if at all true at
the time the gifts were distributed by the Municipality of Makati to the recipients of
the Christmas gifts, was incidental. It did not make respondent Binay as the
ADMIN LAW CASES SET 5
"giver" of those Christmas gifts. Nor did the giving of such gifts by the Municipal
Government of Makati influence the recipients to vote for respondent Binay
considering that the affiants themselves who testified for the petitioners admitted
and were aware that the gift packages came from the Municipality of Makati and
not from respondent Jejomar C. Binay.
The foregoing conclusion is confirmed by petitioners' witnesses in the persons of
Lolita Azcarraga, Johnson Carillo, Rommel Capalungan, Renato Leonardo,
Manuel Allado, Edwin Pascua, Wilberto Torres, Apolonio De Jesus, Caridad
Reposar, Artemus Runtal and Jose Ermino who, in their sworn statements,
uniformly described the gift package as labelled with the words "Pamaskong
Handog ng Makati", a clear indication that the "giver" of the Christmas gifts was
indeed the Municipality of Makati and not respondent Binay.
There is one aspect of this case which somehow lends credence to respondent
Binay's claim that the instant petition is a political harassment. It is noted by the
commission that while the criminal indictment against respondent Binay is for
alleged violation of Section 261 (a) of the Omnibus Election Code, petitioners did
not implead as party respondents the affiants who received the Christmas
packages apparently in exchange for their votes. The law on "vote buying"
[Section 261 (a) supra] also penalizes "vote-buying" and "vote-selling", then the
present indictment should have been pursued against both respondent Binay and
against the affiants, against the former for buying votes and against the latter for
selling the votes. 14
xxx xxx xxx
We uphold the foregoing factual findings, as well as the conclusions reached by
respondent COMELEC, in dismissing the petition for the disqualification of respondent
Binay. No clear and convincing proof exists to show that respondent Binay was indeed
engaged in vote buying. The traditional gift-giving of the Municipality of Makati during the
Christmas season is not refuted. That it was implemented by respondent Binay as OIC
Mayor of Makati at that time does not sufficiently establish that respondent was trying to
influence and induce his constituents to vote for him. This would be stretching the
interpretation of the law too far. Petitioner deduces from this act of gift-giving that
respondent was buying the votes of the Makati residents. It requires more than a mere
tenuous deduction to prove the offense of vote-buying. There has to be concrete and
direct evidence or, at least, strong circumstantial evidence to support the charge that
respondent was indeed engaged in vote-buying. We are convinced that the evidence
presented, as swell as the facts obtaining in the case at bar, do not warrant such finding.
45
 ADMIN LAW CASES SET 5
Finally, we have consistently held that under the 1935 and 1973 Constitutions, and the . . . A review of the respondent Commission's factual findings/conclusions made
same is true under the present one, this court cannot review the factual findings of the on the basis of the evidence evaluated is urged by the petitioner, "if only to guard
Commission on Elections absent a grave abuse of discretion and a showing of against or prevent any possible misuse or abuse of power." To do so would mean
arbitratriness in its decision, order or resolution. Thus: "digging into the merits and unearthing errors of judgment" rendered on matters
within the exclusive function of the Commission, which is proscribed by the
The principal relief sought by petitioner is predicated on the certiorari jurisdication Aratuc and other decisions of this Court. . . . 15
of this court as provided in Section 11, Article XII-C, 1973 Constitution. It is, as
explained in Aratuc vs. Commission on Elections, "not as broad as it used to be" The charge against respondent Binay for alleged malversation of public funds should be
under the old Constitution and it "should be confined to instances of grave abuse threshed out and adjudicated in the appropriate proceeding and forum having jurisdiction
of discretion amounting to patent and substantial denial of due process." over the same. Consequently, it was properly dismissed by the Commission on
Moreover, the legislative construction of the constitutional provision has narrowed Elections.
down "the scope and extent of the inquiry the Court is supposed to undertake to
what is strictly the office of certiorari as distinguished from review." And WHEREFORE, the questioned order of respondent Commissioner Haydee B. Yorac in
in Lucman vs. Dimaporo, a case decided under the Constitution of 1935, this G.R. No. 94521 and the challenged resolutions of respondent Commission on Elections
Court speaking through then Chief Justice Concepcion, ruled that "this Court can subject of the petition in G.R. No. 94626 are hereby AFFIRMED. The temporary
not . . . review rulings or findings of fact of the Commission on Elections," as restraining order issued in G.R. No. 94521 is hereby LIFTED and SET ASIDE. SO
there is "no reason to believe that the framers of our Constitution intended to ORDERED.
place the [said] Commission created and explicitly made "independent" by the
Constitution itself on a lower level" than statutory administrative organs
(whose factual findings are not "disturbed by courts of justice, except when there
is absolutely no evidence or no substantial evidence in support of such findings.")
Factual matters were deemed not proper for consideration in proceedings
brought either "as an original action for certiorari or as an appeal by certiorari. . .
[for] the main issue in . . . certiorari is one of jurisdiction lack of jurisdiction or
grave abuse of discretion amounting to excess of jurisdiction" while "petitions for
review on certiorari are limited to the consideration of questions of law."

The aforementioned rule was reiterated in the cases of Ticzon and Bashier.
Indeed, as early as the year 1938, applying Section 4, Article VI of the 1935
Constitution, this Court held that the Electoral Commission's "exclusive
jurisdiction" being clear from the language of the provision, "judgment
rendered . . . in the exercise of such an acknowledged power is beyond judicial
interference, except "upon a clear showing of such arbitrary and improvement
use of the power as will constitute a denial of due process of law." Originally
lodged in the legislature, that exclusive function of being the "sole judge" of
contests "relating to the election, returns, and qualifications "of members of the
legislature was transferred "in its totality" to the Electoral Commission by the
1935 Constitution. That grant of power, to use the language of the late justice
Jose P. Laurel, "was intended to be as complete and unimpaired as if it had
remained originally in the legislature . . . " . . .

46

G.R. No. 115962 February 15, 2000
DOMINADOR REGALADO, JR., petitioner, vs. COURT OF APPEALS and PEOPLE OF
THE PHILIPPINES, respondents.
This is a petition for review on certiorari of the decision1 of the Court of Appeal affirming
the ruling of the Regional Trial Court, Branch 38, Negros Oriental, which found petitioner
Dominador Regalado, Jr. guilty of violating 261(h) of the Batas Pambansa Blg. 881
(Omnibus Election Code), as amended.2
The Information against petitioner alleged:
That on or about January 25, 1988, at Tanjay, Negros Oriental, Philippines, and
within the jurisdiction of this Honorable Court, said accused DOMINADOR S.
REGALADO, JR., [as] OIC Mayor of the Municipality of Tanjay, Negros Oriental,
did then and there unlawfully, feloniously and illegally TRANSFER one MRS.
EDITHA P. BARBA, a permanent Nursing Attendant, Grade I, in the Office of the
[M]ayor of Tanjay, from her permanent assignment to a very remote Barangay of
Sto. Nio during the election period and without obtaining prior permission or
clearance from the Commission on Elections, Manila.
The evidence for the prosecution shows that on January 15, 1987, complainant Editha
Barba was appointed nursing attendant in the Rural Health Office of Tanjay, Negros
Oriental by then Officer-In-Charge Mayor Rodolfo Navarro. 3 Although she was detailed
at, and received her salary from, the Office of the Mayor, she reported for work at the
Puriculture Center, Poblacion, Tanjay. As Navarro decided to run for mayor of Tanjay in
the January 18, 1988 elections, petitioner Dominador Regalado, Jr. was appointed
substitute OIC-Mayor. His brother, Arturo S. Regalado, was also a mayoralty candidate.
Petitioner's brother won in the elections. Four days later, on January 22, 1988, petitioner,
still sitting as OIC-Mayor, issued a memorandum to Barba informing her that effective
January 25, 1988, she would be reassigned from Poblacion, Tanjay to Barangay Sto.
Nio,4 about 25 kilometers from Poblacion. 5 The transfer was made without the prior
approval of the Commission on Elections (COMELEC). Barba continued to report at the
Puriculture Center, Poblacion, Tanjay, however. Hence, on February 18, 1988, petitioner
issued another memorandum to Barba directing her to explain, within 72 hours, why she
refuses to comply with the memorandum of January 22, 1988. 6
In response, Barba, on February 21, 1988, sent a letter to petitioner protesting her
transfer which she contended was illegal. 7 She then filed, on February 16, 1988, a
complaint8 against petitioner for violation of 261(h) of the Omnibus Election Code, as
ADMIN LAW CASES SET 5
amended, and after preliminary investigation, the Provincial Election Officer of Negros
Oriental, Atty. Gerardo Lituanas, charged petitioner before the Regional Trial Court,
Branch 38, Negros Oriental. 1wphi1.nt
On September 27, 1991, the lower court rendered a decision, the dispositive portion of
which states:9
Finding the accused guilty beyond reasonable doubt of a violation of Section 261,
paragraph (h), of the Omnibus Election Code, the accused Dominador S.
Regalado, Jr., is sentenced to undergo imprisonment for an indeterminate period
ranging from one (1) year minimum to three (3) years maximum without the
benefit of probation and to suffer disqualification to hold public office and
deprivation of the right of suffrage. He is further sentenced to indemnify the
offended party, Editha P. Barba, as civil liability arising from the offense
charged[,] in the sum of Five Hundred (P500.00) Pesos . . . . for moral damages.
As petitioner's motion for reconsideration was denied, 10 he elevated the matter to the
Court of Appeals, which, on February 3, 1994, affirmed the lower court's decision. He
moved for a reconsideration, but his motion was likewise denied, hence this appeal.
Petitioner alleges that
I.THE PUBLIC RESPONDENT FAILED TO CONSIDER THE ORGANIZATIONAL
STRUCTURE OF THE RURAL HEALTH UNIT OF THE MUNICIPALITY OF
TANJAY, NEGROS ORIENTAL, VIZ-A-VIZ, THE LETTERS OF APPOINTMENT
OF PRIVATE RESPONDENT.
II.THE MEMORANDUM DID NOT EFFECT A TRANSFER, BUT MERELY A "RE-
ASSIGNMENT" OF PRIVATE RESPONDENT.
III.EXIGENCIES OF SERVICE WERE NOT ACCOUNTED FOR.11
Petitioner's contentions have no merit.
First. The two elements of the offense prescribed under 261(h) of the Omnibus Election
Code, as amended, are: (1) a public officer or employee is transferred or detailed within
the election period as fixed by the COMELEC, and (2) the transfer or detail was effected
without prior approval of the COMELEC in accordance with its implementing rules and
regulations.12
47

The implementing rule involved is COMELEC Resolution No. 1937, which pertinently
13
provides:
Sec. 1.Prohibited Acts.
xxx xxx xxx
Effective November 19, 1987 up to February 17, 1988, no public official shall
make or cause any transfer or detail whatsoever of any officer or employee in the
Civil Service, including public school teachers, except upon prior approval of the
Commission.
Sec. 2. Request for authority of the Commission. Any request for . . . .
approval to make or cause any transfer or detail must be submitted in writing to
the Commission stating all the necessary data and reason for the same which
must satisfy the Commission that the position is essential to the proper
functioning of the office or agency concerned, and that the . . . . filling thereof
shall not in any manner influence the election.
Petitioner admits that he issued the January 22, 1988 memorandum within the election
period set in Resolution No. 1937 without the prior approval of the COMELEC. He
contends, however, that he did not violate 261(h) because he merely effected a "re-
assignment" and not a "transfer" of personnel by moving Barba from one unit or place of
designation (Poblacion, Tanjay) to another (Sto. Nio, Tanjay) of the same office, namely,
the Rural Health Office of Tanjay, Negros Oriental. 14 In support of his contention, he relies
upon the following portions of 24 of P.D. No. 807 (Civil Service Law): 15
(c) Transfer a movement from one position to another which is of equivalent
rank, level, or salary without break of service involving the issuance of an
appointment.
xxx xxx xxx
(g) Reassignment an employee may be reassigned from one organizational
unit to another in the same agency. Provided, that such reassignment shall not
involve a reduction in rank, status, or salary.
Petitioner, however, ignores the rest of 24(c) which provides that:
ADMIN LAW CASES SET 5
[A transfer] shall not be considered disciplinary when made in the interest of the
public service, in which case, the employee concerned shall be informed of the
reasons therefor. If the employee believes that there is no justification for the
transfer, he may appeal his case to the Commission.
The transfer may be from one department or agency to another or from one
organizational unit to another in the same department or
agency: Provided, however, That any movement from the non-career service to
the career service shall not be considered a transfer. (Emphasis added).
Thus, contrary to petitioner's claim, a transfer under 24(c) of P.D. No. 807 in fact
includes personnel movement from one organizational unit to another in the same
department or agency.
Moreover, 261(h) of B.P. No. 881, as amended, provides that it is an election offense for
Any public official who makes or causes any transfer or detail whatever of any
officer or employee in the civil service including public school teachers, within the
election period except upon prior approval of the Commission. (Emphasis
added).
As the Solicitor General notes, "the word transfer or detail, as used [above], is modified
by the word whatever. This indicates that any movement of personnel from one station to
another, whether or not in the same office or agency, during the election is covered by
the prohibition."16
Finally, the memorandum itself issued by petitioner to Barba on January 22, 1988 stated
that the latter was being "transferred," thus:17
Effective Monday, January 25, 1988, your assignment as Nursing Attendant will
be transferred from RHU I Tanjay Poblacion to Barangay Sto. Nio, this
Municipality.
You are hereby directed to perform the duties and functions as such immediately
in that area.
For strict compliance.(Emphasis added)
48
 ADMIN LAW CASES SET 5
Second. Petitioner next contends that his order to transfer Barba to Barangay Sto. Nio
was prompted by the lack of health service personnel therein and that this, in effect,
constitutes sufficient justification for his non-compliance with 261(h). 18

The contention has no merit.

It may well be that Barangay Sto. Nio in January 1988 was in need of health service
personnel. Nonetheless, this fact will not excuse the failure of petitioner to obtain prior
approval from the COMELEC for the movement of personnel in his office.

Indeed, appointing authorities can transfer or detail personnel as the exigencies of public
service require.19However, during election period, as such personnel movement could be
used for electioneering or even to harass subordinates who are of different political
persuasion, 261(h) of the Omnibus Election Code, as amended, prohibits the same
unless approved by the COMELEC.

Third. The award of P500,000.00 as moral damages to Barba must be deleted. Under
264, par. 1 of the Omnibus Election Code, as amended, the only imposable penalties
for the commission of any of the election offenses thereunder by an individual are

imprisonment of not less than one year but not more than six years [which] shall
not be subject to probation. In addition, the guilty party shall be sentenced to
suffer disqualification to hold public office and deprivation of the right of suffrage.

WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the

MODIFICATION that the award of moral damages is deleted.

SO ORDERED. 1wphi1.nt

49

G.R. No. 125586 June 29, 2000
DR. TERESITA G. DOMALANTA and DR. AGRIPINA B. FRANCISCO, petitioners, vs.
THE COMMISSION ON ELECTIONS, AQUILINO Q. PIMENTEL, JR. and THE OFFICE
OF THE STATE PROSECUTOR, DEPARTMENT OF JUSTICE, MANILA, respondents.
Challenged in this petition for certiorari and prohibition is COMELEC En Banc Resolution
No. 96-1616 dated May 28, 19861 which
RESOLVED:
1. to file an Information against PES Vitaliano Fabros, Provincial Prosecutor
Pacifico Paas, and Division Schools Superintendent Olympia Marquez,
Chairman, Vice-Chairman, and Member-Secretary, respectively of the provincial
Board of Canvassers, Isabela together with its staff members, namely: Dr.
Teresita Domalanta, Agripina Francisco, Dante Limon, Edwardo Tamang and
George Noriega, before the Regional Trial Court of Isabela for violation of
Section 27 (b) of Republic Act No. 6646, the prosecution of which shall be
handled by the Chief State Prosecutor Zenon de Guia, with the duty to submit
periodic report[s] thereon after every hearing of the case; and
2. to file an administrative complaint against said respondents for grave
misconduct, gross dishonesty, and conduct unbecoming public officials to the
prejudice of the best interest of the public service;
ADMIN LAW CASES SET 5
The instant case stemmed from the alleged irregularity committed by the
Provincial Board of Canvassers of Isabela in crediting unauthorized additional
votes, thus: (a) Twenty seven thousand seven hundred fifty five (27,755) to Juan
Ponce Enrile, (b) Seven thousand (7,000) to Ramon Mitra, and (c) Ten thousand
(10,000) to Gregorio Honasan.
After the submission of the counter-affidavits of the respondents, Pimentel filed
on September 1, 1995 an amended complaint impleading the members of the
staff of the Board namely: Dr. Teresita Domalanta, Agripina Francisco, Dante
Limon, Eduardo Tamang and George Noriega, as additional respondents.
Aquilino Pimentel alleged that the unauthorized additional number of votes were
included in the total votes for senatorial candidates Enrile, Mitra and Honasan in
the Provincial Certificate of Canvass duly signed and thumbmarked by the
members of the PBC of Isabela and which same was submitted to the Comelec
as National Board of Canvassers which was included in the canvass on which
the proclamation was based. In order to prove his charge, complainant submitted
in evidence the Certificate of Canvass supported by Statement of Votes per
precinct of Santiago City, Municipalities of Angadanan, Cauayan, Cordon, Delfin
Albano, Echague, San Mariano, San Pablo, Ilagan and San Mateo. A comparison
of the votes indicated in the Statement of Votes by city/municipality and that of
the municipal/city Certificate of Canvass was submitted by the complainant which
is hereunder reproduced:

3. to preventively suspend the respondents for a period of ninety (90) days Municipality Votes as indicated Votes as indicated Discrepancy
reckoned from receipt of this resolution. in the Municipality/City in the Statement
Certificate of of Votes by
From the record, it appears that on August 4, 1995, then senatorial candidate Aquilino Canvass Municipality/City
Pimentel, Jr. filed a complaint-affidavit 2 charging Provincial Election Supervisor (PES) prepared by the
Vitaliano Fabros, Provincial Prosecutor Pacifico Paas and Division Superintendent of Provincial Board
Schools Dr. Olympia Marquez, Chairman, Vice-Chairman and Member-Secretary, of Canvassers of
respectively, of the Provincial Board of Canvassers of Isabela with alleged violation of Isabela
Section 27 (b) of Republic Act No. 6646, otherwise known as the Guingona Electoral Santiago City Enrile 15,454 16,454 +1,000
Reform Law of 1987. Angadanan Enrile 5,996 7,996 +2,000
Mitra 3,888 4,888 +1,000
The case, docketed as E.O. Case No. 95-408 entitled "Aquilino Pimentel, Jr. v. PBC of Cauayan Enrile 13,710 19,710 +6,000
Honasan 11,205 21,205 +10,000
Isabela" for alleged violation of the Omnibus Election Code was thereafter referred to the
Cordon Enrile 6,794 9,794 3,000
Law Department of the Commission of Elections (COMELEC) for evaluation and report.
Delfin Albano Enrile 3,972 4,972 +1,000
The COMELEC's Law Department summarized the facts of the controversy in its
Echague Enrile 10,552 15,552 +5,000
evaluation report dated May 20, 1996,3 thus:
San Mariano Enrile 5,683 8,253 +2,570
50
 ADMIN LAW CASES SET 5
San Pablo Enrile 2,418 3,438 +1,020 Iligan Mitra 14,457 20,457 +6,000

51

San Mateo Enrile 9,424 15,589 +6,165
In their defense, Provincial Election Supervisor Vitaliano Fabros, Provincial
Prosecutor Pacifico Paas and Division Superintendent of Schools Dr. Olympia
Marquez, Chairman, Vice-Chairman and Member-Secretary, respectively, of the
Provincial Board of Canvassers of Isabela were in unison in vehemently denying
the charges imputed against them and declared that they faithfully performed
their poll duties assigned to them.
PES Vitaliano Fabros, in his counter-affidavit, asserted that it could not have
been possible not to read the actual figures reflected in the municipality/city
Certificate of Canvass considering the presence of counsels and watchers of
candidates and political parties and if ever there are discrepancies between the
city/municipal Certificate of Canvass and that of the Provincial Certificate of
Canvass the same may be attributable to human fatigue.
Respondent Pacifico Paas declared that he assumed the opening of the
envelopes containing the election returns by municipality and broke the
corresponding paper seals and handed the same to the Chairman who in turn
assumed the reading of votes through a microphone with the tabulators and
recorders reflecting the figures in the Statement of Votes and further declared
that he had no direct view over the votes read by Chairman Fabros nor had he
interfered save for one or two election returns in the reading. He even vigorously
denied any privy (sic) to the discrepancy of the figures indicated in the
"Statement of Votes by Municipality" and "Provincial Certificate of Canvass"
because he honestly believed that these are the true and faithful reproduction of
the figures indicated in the Provincial Board of Canvasser's copy of the election
returns provided them which were used in the canvass. 1wphi1.nt
Respondent Dr. Olympia Marquez stated that it was Chairman Fabros who read
the votes obtained by the candidates through an amplifier sound system and
correspondingly the recorders tabulated the figures as read into the Statement of
Votes by municipality; that she did not so much interfere in the opening of the
envelopes and the election returns, nor in the reading of the votes in the duration
of the canvassing and that she conveniently sat side by side with the recorders
and periodically see to it that votes correspondingly read and announced were
faithfully reflected in the Statement of Votes.
Respondents Dr. Teresita Domalanta and Agripina Francisco, in their joint
counter-affidavit, categorically denied the charges, and declared that they
faithfully recorded the votes obtained by the candidates as read and announced
ADMIN LAW CASES SET 5
by the Chairman of the Provincial Board of Canvassers and during the recording
Dr. Olympia Marquez periodically checked the correctness of the entries in the
Tally Sheet for the Statement of Votes; that they recorded the votes obtained by
local candidates in some municipalities including senatorial candidates whose
surname begins with letter "T" and that they did not participate in the preparation
of the Provincial Certificate of Canvass.
Respondents Dante Limon and Eduardo Tamang, in their joint-affidavit,
vehemently denied the charges. They claimed that their assigned duty is only to
record the names of candidates and their corresponding number of votes
obtained as announced by PBC Chairman, Atty. Vitaliano Fabros because they
have no access to the votes written in the Municipal Certificate of Canvass.
Respondent George Noriega, in his counter-affidavit likewise denied the charges
and averred that he had no direct knowledge in the preparation of the alleged
falsified Provincial Certificate of Canvass, and as Tabulator, he only added what
was recorded in the Statement of Votes prepared by other persons and denied
any participation in the alleged falsification of the Statement of Votes.
On the basis of the foregoing factual findings, the COMELEC's Law Department
recommended that:
1. an information be filed aganst Provincial Election Supervisor Vitaliano
Fabros, Provincial Prosecutor Pacifico Paas, and Division Superintendent
of Schools Dr. Olympia Marquez, Chairman, Vice-Chairman and
Member-Secretary, respectively of the Board of Canvassers of Isabela
before the Regional Trial Court Isabela for violation of Section 27 (b) of
Republic Act No. 6646, the prosecution of which shall be handled by
Regional Election Director Samuel Barangan of Region II, with the duty to
submit periodic progress report[s] after every hearing of the case;
2. an administrative complaint against said respondent for grave
misconduct, gross dishonesty, and conduct unbecoming public officials to
the prejudice of the best interest of the service; and
3. the cases against Dr. Teresita Domalanta, Agripina Francisco, Dante
Limon, Edwardo Tamang and George Noriega be dismissed for
insufficiency of evidence to establish a probable cause.
In justifying its stand, the COMELEC Law Department reasoned as follows:
52

Respondents stand charged with alleged violation of Section 27 (b) of Republic
Act No. 6646 which provides:
Sec. 27. Election offenses. In addition to the prohibited acts and
election offenses enumerated in Section 261 and 262 of Batas
Pambansa Blg. 881, as amended, the following shall be guilty of an
election offense.
xxx xxx xxx
(b) Any member of the board of election inspectors or board of
canvassers who tampers with, increases or decreases votes received by
a candidate in any election or any member of the board who
refuses, after proper verification and hearing, to credit the correct votes
or deduct such tampered votes. (Emphasis ours)
There is no question there was indeed an increase in the number of votes
obtained by senatorial candidates Enrile, Mitra and Honasan which the
complainant called it [a] glaring discrepancy. An examination of the Municipal
Certificate of Canvass with its Statement of Votes per precinct in relation to the
Provincial Certificate of Canvass as supported by the Statement of Votes by
City/Municipality would show that the votes of the aforementioned candidates
were illegally increased in Santiago City and in the nine (9) municipalities of
Isabela.
The crucial and pivotal issue for determination in the case at bar is whether or
not the respondent's alleged act of increasing the number of votes garnered by
senatorial candidates Enrile, Mitra and Honasan constitutes a violation of Section
27 (b) of Republic Act No. 7168.
By a general overview, in order to have judicious evaluation of the case, it is
imperatively necessary to define MISTAKE, NEGLIGENCE and GROSS
NEGLIGENCE which may aid in arriving [at] an intelligent findings (sic).
Mistakes, concededly committed by public officers are not actionable without any
clear showing that they were motivated by malice or gross negligence amounting
to bad faith.4
Negligence is the omission to do something which a reasonable man guided by
those consideration[s] which ordinarily regulate the conduct of human affairs
ADMIN LAW CASES SET 5
would do, or the doing of something which a prudent and reasonable man would
not do5 or the failure to observe for the protection of the interest of another
person, that degree of precaution and vigilance which the circumstances justly
demand, whereby such other person suffers injury.6
Gross negligence has been defined as negligence characterized by the want of
even slight care, acting or omitting to act in a situation where there is [a] duty to
act, not inadvertently but willfully and intentionally with a conscious indifference
to consequences insofar as other persons may be affected.7
It cannot be disputed that the Certificate of Canvass for senatorial candidates
and its supporting statements of votes by municipality and city, are sensitive
election documents where the entries therein shall be highly scrutinized.
From the foregoing guidepost, we find the contention of respondents members of
the Provincial Board of Canvassers that the erroneous crediting of additional
votes to senatorial candidates Enrile, Mitra and Honasan was an honest mistake
due to human fatigue, patently not tenable. This is so because there appears to
be a pattern as shown in the comparison between the Statement of Votes by
Precinct of each of the nine (9) municipalities and one (1) city and the Statement
of Votes by Municipality prepared by the Provincial Board of Canvassers, thus,
in Santiago City senatorial candidate, Enrile obtained fifteen thousand four
hundred fifty four (15,454) as per City Certificate of Canvass while in the
Statement of Votes by City prepared by the Provincial Board of Canvassers was
sixteen thousand four hundred fifty four (16,454); in the Municipality
of Angadanan, senatorial candidates Enrile and Mitra were credited with five
thousand nine hundred ninety six (5,996) votes and three thousand eight
hundred eight (3,888), respectively, as indicated in Municipal Certificate of
Canvass but in the Statement of Votes by Municipality of Cauayan, Enrile and
Honasan were credited thirteen thousand seven hundred ten (13,710) and
eleven thousand two hundred five (11,205), respectively, while the Statement of
Votes by Municipality would show that Enrile got thirteen thousand seven
hundred ten (19,710) and Honasan, twenty one thousand two hundred five
(21,205); in the Municipality of Cordon, Enrile obtained six thousand seven
hundred ninety four (6,794) but in the Statement of Votes by Municipality the
number of votes for Enrile was nine thousand seven hundred ninety four (9,794);
in the municipality of Delfin Albano, per Municipal Certificate of Canvass Enrile
garnered three thousand nine hundred seventy two (3,972) votes while in the
Statement of Votes by Municipality Enrile was credited with four thousand nine
hundred seventy two (4,972); in the municipality of Echague, Enrile obtained ten
thousand five hundred fifty two (10,552) votes as reflected in the Votes by
53

Municipality he was credited with fifteen thousand five hundred fifty two (15,552)
votes; and in the Municipality of Ilagan, Mitra was credited with fourteen
thousand four hundred fifty seven (14,457) votes but in the Statement of Votes by
Municipality, Mitra's vote was twenty thousand four hundred fifty seven (20,457).
As can be gleaned from the figures shown, save in the municipalities of San
Mariano, San Pablo and San Mateo, the last three digits of the number of votes
in the Municipal Certificate of Canvass of the other municipalities were retained
in the padded votes which will give rise to the presumption that the act was done
intentionally and deliberately.
The position preferred by the respondent board members that they cannot be
held liable even if the votes reflected in the assailed certificate of canvass do not
tally with the figures on the other copies of the Municipal Certificate of Canvass
because the copies in the possession of the complainant and any other copies
thereof were never used in the provincial canvass, is patently without merit.
Neither is the assertion by respondent board members that the offense imputed
against them is not mala prohibita but mala in se where criminal intent is material
by invoking the ruling of the Court of Appeals in the case of People
vs. Sunico, et. al., a valid argument at all.
Based on the facts obtaining in this case, there appears a malice on the part of
the members of the board to increase the votes of the three (3) senatorial
candidates taking into account the pattern of the distribution of the increase of
votes as clearly illustrated above. This illegal act will jibe with the position of the
respondents that violation of Section 27 (b) of Rep. Act No. 6646, is mala in se.
Besides, what we are proving here is the existence of a prima facie case only,
and not a proof beyond reasonable doubt.
IT MUST BE POINTED OUT CLEARLY THAT THE ALLEGED FALSIFIED
PROVINCIAL CERTIFICATE OF CANVASS OF ISABELA WAS SEASONABLY
RETABULATED OR CORRECTED BY THE COMELEC EN BANC SITTING AS
THE NATIONAL BOARD OF CANVASSERS WHICH ABSOLUTELY BELIE THE
GRATUITOUS ALLEGATION OF PIMENTEL THAT THE INCREASE OF VOTES
WERE INCLUDED IN THE CANVASS AND MADE AS ONE OF THE BASIS IN
THE PROCLAMATION OF THE WINNING SENATORIAL CANDIDATES
[Capitalization ours].
ADMIN LAW CASES SET 5
But notwithstanding that the illegal increase of the votes of Enrile, Mitra and
Honasan were retabulated or corrected, the members of the Provincial Board of
Canvassers of Isabela are criminally liable to the alleged act committed.
More importantly, A CAREFUL READING OF THE COUNTER-AFFIDAVITS OF
OTHER RESPONDENTS ATTY. PACIFICO PAAS, DR. OLYMPIA MARQUEZ
INCLUDING THE MEMBERS OF THE STAFF WOULD POINT TO THE
CHAIRMAN OF THE BOARD, ATTY. FABROS AS THE SOURCE OF THE DATA
RECORDED AND TABULATED. SUCH BEING THE CASE, ABSENT A CLEAR
AND CONVINCING PROOF O CONSPIRACY OR COLLUSION BETWEEN THE
RESPONDENTS MEMBERS OF THE PROVINCIAL BOARD AND ITS
RESPONDENTS STAFFS, THE LATTER CANNOT BE FAULTED ON THE
ALLEGED WRONG DOING. The Chairman and the Member Secretary may be
indicted for the offense charged as earlier indicated, and the fact that they
certified that the entries reflected in the Provincial Certificate of Canvass and
Statement of Votes By Municipality were true and correct. However, the
exoneration of the tabulators and recorders was further strengthened by the
corroborating statement of Member-Secretary Dr. Olympia Marquez when she
stated, in her counter-affidavit, that she sat beside the tabulators and recorders in
order to see to it that the correct figures are reflected in the Statement of Votes
By Municipality.
Based on the foregoing findings, the Law Department recommended that the cases
against both petitioners be dismissed. However, the COMELEC en banc still issued the
assailed Resolution which petitioners challenge on the grounds that:
1. Minute Resolution No. 96-1616 Finding Conspiracy Among The Members Of
The Provincial Board Of Canvassers and the Herein. Petitioners Has No Factual
Basis and Runs Counter To The Study and Report, Annex "C", Upon Which The
Questioned Minute Resolution Was Based.
Hence, Its Issuance Was Attended By Grave Abuse Of Discretion Amounting To
Lack Or Excess Of Jurisdiction.
2. Findings of the Law Department Refers to Members Of The PBOC Only And
Does Not Include Petitioners.
3. Findings Of Conspiracy Not Supported By any Evidence.
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 ADMIN LAW CASES SET 5
4. The Continuous Media Blitzkrieg On "Dagdag-Bawas" And The Attack On The Section 27 of R.A. No. 6646 with regard to the padding of votes during the May 8, 1995
Inside Workings Of. The Comelec Terrified Or Terrorized COMELEC Into elections.
Including Petitioners In The Charge.
The argument is tenuous.
5. Participation Of Petitioners Limited To Canvass Of Local Officials And Two
Senators Starting With The Letter "T" And Does Not Cover Scope Of Instant It needs be stressed that for the May 8, 1995 elections, petitioners were part of the
Complaint Of Atty. Pimentel. support or technical staff of the Provincial Board of Canvassers (PBC) of the Province of
Isabela that was tasked with the canvassing of the Municipal/City Certificates of Canvass
6. The Three (3) Important Documents Upon Which Complaint Was Based Does (CoC), the preparation of the Provincial Certificates of Canvass and the supporting
Not Carry The Signatures Of Movants. Statement of Votes (SoV) per Municipality/City which entries in said documents were
certified to as correct by the PBC. It is upon a comparison between the Municipal/City
7. Respondent Pimentel, When Informed About The Innocence Of Movants That CoC submitted to the PBC and the SoV per Municipality/City as prepared by the
They Did Not Tally Votes For Enrile, Honasan and Mitra Commented "that is a members of the PBC and their support staff, including herein petitioners, that one would
good point" An Admission Rendering The Case Against Petitioners Dismissible. readily see the neatly padded. vote totals for the three (3) senatorial candidates, namely,
Enrile, Honasan and Mitra, viz:
8. Overzealousness In The Prosecution Of Election Offenses Must Be Tempered
With The Yardstick That The Innocent Must Not Be Victims Of Injustice. Municipality/City Votes appearing in Votes Canvassed Discrepancy
Candidate Municipal/City by COMELEC
9. A Serious Review Is an Imperative Necessity To Protect Movants From The Certificates based on PBC's
Onslaught Of A Public Trial That Carries The Stigma Of Perpetual Santiago City
Embarassment. Enrile 15,454 16,454 1,000
Angadanan
10. Petitioners Are Awardees Of COMELEC Hope I And II And Committing An Enrile 5,996 7,996 2,000
Anomaly Repugnant To What They Have Taught Is Beyond Their Wildest Mitra 3,888 4,888 1,000
Dreams. Cauayan
Enrile 13,710 19,710 6,000
Honasan 11,205 21,205 10,000
11. Petitioner Dr. Domalanta Is A Career Official Of The DECS And Has An
Cordon
Irreproachable Character To Protect And Would Not Do An Act That will Forever
Enrile 6,794 9,794 3,000
Destroy Her Good Reputation.
Delfin Albano
Enrile 3,972 4,972 1,000
12. The Same is True With Petitioner Dr. Francisco Who Has Just Retired From Echague
Public Service As Assistant Division Superintendent. Enrile 10,552 15,552 5,000
San Mariano
The primordial issue to be resolved is whether or not the COMELEC gravely abused its Enrile 5,683 8,253 2,570
discretion in directing the filing of criminal and administrative complaints against the San Pablo
petitioners. Enrile 2,418 3,438 1,020
Iligan
In sum, petitioners insist on their innocence in any wrongdoing in the preparation of the Mitra 14,457 20,457 6,000
statement of Votes per Municipality, arguing that there is no evidence on record to show San Mateo
a hint of probable cause against them for the commission of an election offense under Enrile 9,424 15,589 6,165
55
 ADMIN LAW CASES SET 5
TOTAL 103,553 148,308 44,755 . . . as the existence of such facts and circumstances as would excite the belief,
in a reasonable mind, acting on the facts within the knowledge of the prosecutor,
that the person charged was guilty of the crime for which he was
Candidate Unauthorized Additional Votes prosecuted. 10 This definition is still relevant today as we continue to cite it in
ENRILE 27,755 recent cases. 11 . . . Pilapil v. Sandiganbayan 12 sets the standard for determining
HONASAN 10,000 probable cause. . . . There we said:
MITRA 7,000
It can be clearly seen from the list above that the discrepancies are too substantial and
Probable cause is a reasonable ground of presumption that a matter is,
rounded off to be categorized as a mere "computation error" or a result of fatigue. There
or may be, well founded, such a state of facts in the mind of the
is a limit to what can be construed as an honest mistake or oversight in the performance
prosecutor as would lead a person of ordinary caution and prudence to
of official duty. Suffice it to state that the magnitude of the error as reflected in the
believe or entertain an honest or strong suspicion, that a thing is so. The
discrepancies itemized above renders unacceptable the defense of "computer error" or
term does not mean "actual or positive cause" nor does it import absolute
honest mistake.
certainty. It is merely based on opinion and reasonable belief. Thus, a
finding of probable cause does not require an inquiry into whether there
In the separate counter-affidavits8 submitted by members of the PBC of Isabela, all three
is sufficient evidence to procure a conviction. It is enough that it is
of them asserted their lack of knowledge of any irregularity committed despite the glaring
believed that the act or omission complained of constitutes the offense
discrepancies detailed above. However, paragraph 2 of the Joint Counter-Affidavit 9 of
charged. Precisely, there is a trial for the reception of evidence of the
petitioner Domalanta and Dr. Olympia G. Marquez, acting as Member-Secretary of the
prosecution in support of the charge.
PBC, avers that in recording the vote totals of the senatorial candidates appearing in the
Municipal CoCs in the SoV per Municipality/City, the Board was assisted by the
Whether an act was done causing undue injury to the government and
petitioners, two (2) clerks also from the DECS, Messrs. Dante Limon and Edward
whether the same was done with manifest partiality or evident bad faith
Tamang as well as Mr. George Noriega, a representative of the Provincial Accountant's
can only be made out by proper and sufficient testimony. Necessarily, a
Office. Implicit in the averment of paragraph 2 of said Joint Counter-Affidavit is the
conclusion can be arrived at when the case has already proceeded on
insinuation that the anomalies or the tampering of the results of the senatorial canvass in
sufficient proof. 13
Isabela could only have been done by their staff.
. . . Probable cause to warrant arrest is not an opaque concept in our jurisdiction.
It was indeed highly unlikely that the padded vote totals were entered in the SoV per
Continuing accretions of case law reiterate that they are facts and circumstances
Municipality/City without the knowledge of petitioners, if they were faithfully and regularly
which would lead a reasonably discreet and prudent man to believe that an
performing their assigned tasks. A reasonably prudent man on the other hand would
offense has been committed by the person sought to be arrested. 14 Other
readily come to the conclusion that there exists a probable cause to believe that the
jurisdictions utilize the term man of reasonable caution 15 or the term ordinarily
petitioners are culpable together with the other members of the support staff as well as
prudent and cautious man. 16 The terms are legally synonymous and their
the PBC members in the padding of the vote totals of the said senatorial candidates. It
reference is not to a person with training in the law such as a prosecutor or a
can not be denied that the members of the PBC and their support staff, including herein
judge but to the average man on the street. 17 It ought to be emphasized that in
petitioners, were the only ones in control and in possession of said documents during its
determining probable cause, the average man weighs facts and circumstances
preparation. It need not be overemphasized, given this fact, that the padding of the vote
without resorting to the calibration of our technical rules of evidence of which his
totals could only have been done by all of them acting in concert with one another.
knowledge is nil. Rather, he relies on the calculus of common sense of which all
reasonable men have an abundance.
It bears stressing in this regard that all that is required in the preliminary investigation is
the determination of probable cause so as to justify the holding of petitioners for trial.
xxx xxx xxx
Probable cause is defined

56

. . . A finding of probable cause needs only to rest on evidence showing that more
likely than not likely than not a crime has been committed and was committed by
the suspects. Probable cause need not be based on clear and convincing
evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt
and definitely, not on evidence establishing absolute certainty of guilt. As well put
in Brinegar v. United States, 18 while probable cause requires more than "bare
suspicion", it requires "less than evidence which would justify . . . conviction. A
finding of probable cause is not a pronouncement of guilt. 19
The peculiar factual circumstances prevailing in this case hardly paints a picture of
manifest human error or fatigue in the tabulation of the votes of the senatorial candidates
in Isabela. It, in fact, discloses a pernicious scheme which would not have been
successfully perpetrated without the indispensable cooperation of all members of the
PBC and their support staff which included herein petitioners. The latter's protestations in
the counter-affidavits that they only tabulated the vote totals of senatorial candidates
Tillah and Tolentino are at best convenient and self-serving explanations to justify their
exculpation from any wrong-doing. Their claims are, moreover, not substantiated by any
of the PBC members. Indeed, as this Court pointedly observed in Velayo
v. COMELEC 20 the "self-serving nature of said Affidavits cannot be discounted. As this
Court has pronounced, reliance should not be placed on mere affidavits."
Be that as it may, petitioners' claims are a matter of defense and as pointed out by the
Court recently in Pimentel, Jr. v. COMELEC 21
. . . the merit of defenses such as honest mistake, simple error, good faith, and
the mere performance of ministerial duties, as interposed by persons charged
with the election offense of tampering, increasing or decreasing votes received
by a candidate in any election, are best ventilated in the trial proper than at the
preliminary investigation.
Second. Section 27 (b) of R.A. No. 6646 which reads, viz:
. . . [T]he following shall be guilty of an election offense:
xxx xxx xxx
ADMIN LAW CASES SET 5
(b) Any member of the board of election inspectors or board of
canvassers who tampers, increases or decreases the votes received by a
candidate in any election or any member of the board who refuses, after
proper verification and hearing to credit the correct votes or deduct such
tampered votes.
penalizes two (2) acts: first the tampering, increasing or decreasing of votes
received by a candidate in any election; and second, the refusal, after proper
verification and hearing to credit the correct votes or deduct such tampered
votes. The first obtains in this case.
Petitioner categorically charged private respondents . . . with "illegal acts of
padding the votes of the senatorial candidates" amounting to "violations of the
Omnibus Election Code, as amended, and Section 27 of R.A. 6646." They never
denied that the total number of votes of the senatorial candidate . . . as appearing
in the CoCs and SoVs is significantly and considerably higher . . . than that
appearing in the election returns, . . .
These circumstances in themselves, constitute probable cause that justifies the
belief that more likely than not, the election offense was committed and was
committed by private respondents . . . . Probable cause is based neither on clear
and convincing evidence of guilt nor evidence establishing absolute certainty of
guilt. 22 It is merely based on opinion and reasonable belief, and so it is enough
that there exists such state of facts as would lead a person of ordinary caution
and prudence to believe or entertain an honest or strong suspicion that a thing is
so. 23 Considering that private respondents . . . in invoking the defenses of honest
mistake, oversight due to fatigue and performance of ministerial duties virtually
admitted the existence of the discrepancies in the total number of votes garnered
by petitioner and other senatorial candidates, which discrepancies by no stretch
of imagination could be dismissed as negligible or inconsequential, there is not
merely a strong suspicion that they actually committed the election offense which
they are charged. The burden of proof appears to have shifted to them to prove
that the said discrepancies cannot be considered illegal and criminal.
The instant petition for certiorari and prohibition, therefore, must be dismissed. It is
grounded on alleged grave abuse of discretion amounting to lack or excess of
jurisdiction. Only recently in Sadikul Sahali v. COMELEC, 24 the Court, citing Garcia, et
al. v. HRET, 25 said:
57

Certiorari as a special civil action can be availed of only if there is a concurrence
of the essential requisites, to wit: (a) the tribunal, board or officer exercising
judicial functions has acted without or in excess of jurisdiction or with grave
abuse of discretion amounting to lack or in excess of jurisdiction, and (b) there is
no appeal, nor any plain, speedy and adequate remedy in the ordinary course of
law for the purpose of annulling or modifying the proceeding. There must be a
capricious, arbitrary and whimsical, exercise of power for it to prosper.
To question the jurisdiction of the lower court or the agency exercising judicial
or quasi-judicial functions, the remedy is a special civil action for certiorari under
Rule 65 of the Rules of Court. The petitioner in such cases must clearly show
that the public respondent acted without jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction. Grave abuse of discretion
defies exact definition but generally refers to "capricious or whimsical exercise of
judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be
patent and gross as to amount to an evasion of positive duty or a virtual refusal
to perform a duty enjoined by law, or to act at all in contemplation of law, as
where the power is exercised in an arbitrary and despotic manner by reason of
passion and hostility.
ADMIN LAW CASES SET 5
It has been held, however, that no grave abuse of discretion may be
attributed to a court simply because of its alleged misappreciation of facts
and evidence. A writ of certiorari may not be used to correct a lower
tribunal's evaluation of the evidence and factual findings. In other words,
it is not a remedy for mere errors of judgment, which are correctible by an
appeal or a petition for review under Rule 45 of the Rules of Court.
In fine, certiorari will only issue to correct errors of jurisdiction not errors
of procedure or mistakes in the findings or conclusions of the lower court.
As long as a court acts within its jurisdiction, any alleged errors
committed in the exercise of its discretion will amount to nothing more
than errors of judgment which are reviewable by timely appeal and not by
special civil action for certiorari. 26
WHEREFORE, the petition is hereby DISMISSED for lack of merit.
SO ORDERED. 1wphi1.nt
58