Case Digest: Varias v. COMELEC & Penano G.R. No. manner not contemplated by law.
lated by law. Its actions clearly fit
189078: February 11, 2010 MAYOR VIRGILIO P.
VARIAS, Petitioner, v. COMMISSION ON ELECTIONS
and JOSE "JOY" D. PENO, Respondents. BRION, J.:
FACTS: Varias and Peno were candidates for the
position of Mayor of Alfonso, Cavite in the May 14,
2007 elections. Varias was proclaimed the winner after
having a margin of 241 votes. Penano filed an election
protest with the RTC Tagaytay and alleged that there
are irregularities and misappreciations of votes and
such were not counted correctly in favor of protestant.
The election protest proceeded in due course and the
revision of the ballots was scheduled. After completion
of the revision that saw the physical count of all the
protested precincts, the Revision Committee submitted
a Report showing that Peno garnered more votes than
Varias. The RTC rendered a decision in favor of
Penano citing the case of Rosal v. COMELEC and
ruled that the ballots can still be considered as the best
evidence in determining the results of the election. It
further ruled that as there was no evidence presented
that the ballot box was not properly preserved or that it
was molested after it was brought in the Municipal Hall,
the court has no other option than to accept that the
contents thereof remained the same while it was kept
thereat. On appeal, First Division of COMELEC
affirmed the RTC decision. Like the RTC, the
COMELEC First Divisions count largely relied on the
results of the revision of the ballots. The COMELEC en
banc denied Varias motion for reconsideration. Hence,
this petition. ISSUE: Whether or not COMELEC erred
in in not requiring protestant to prove that the integrity
of the ballot boxes was preserved HELD: Yes. Political
Law- Rosal v. Commission on Elections (Rosal)
instructively tells us how to appreciate revision of ballot
results as against election returns in an electoral
contest The Rosal ruling, to be sure, does not involve
issues merely related to the appreciation or calibration
of evidence; its critical ruling is on the propriety of
relying on the revision of ballot results instead of the
election returns in the proclamation of a winning
candidate. In deciding this issue, what it notably
established was a critical guide in arriving at its
conclusion the need to determine whether the court or
the COMELEC looked at the correct considerations in
making its ruling. As earlier adverted to, the courts or
the COMELECs use of the wrong or irrelevant
considerations in choosing between revision results
and the election returns can taint its action with grave
abuse of discretion. We agree with Varias contentions,
as our own consideration of the issues raised shows
that the COMELEC indeed failed to follow Rosal.
Specifically, we hold that Varias successfully
discharged the burden of proving the likelihood of ballot
tampering by presenting competent and reliable
evidence facts and circumstances that are simply too
obvious to ignore or gloss over. The COMELEC sadly
looked at the wrong considerations, thereby acting in a
the "grave abuse of discretion" definition cited above.
Rosal, we preliminarily note, does not, as it should not,
always require direct proof of tampering; even if the
protestant has shown compliance with legal
requirements for the preservation of ballots, the burden
of evidence that shifts to the prostestee is not confined
to proof of actual tampering, but extends to its
likelihood. This cannot but be a reasonable rule, since
ballot tampering and ballot substitution are not
actsdone openly and without precaution for stealth;
they are done clandestinely, and to require direct proof
of actual tampering almost amounts to a requirement
to do the impossible. Direct proof of actual tampering
is therefore not the only acceptable evidence that
negates the reliability of the ballots subjected to
revision; other relevant considerations should be taken
into account, most especially those resulting from the
examination of physical evidence. Correctly
appreciated, the NBI Report is part of a chain of facts
and circumstances that, when considered together,
lead to the conclusion that there was, at the very least,
the likelihood of ballot tampering. That there are
superimpositions of names in the ballots or that various
sets of ballots were written by one person indicate that
the ballots had not been preserved in the manner
Rosal mandated. The COMELEC took these indicators
very lightly and simply concluded that they do not
conclusively prove the presence of an election fraud.
The COMELEC, in short, considered as insignificant
the finding that there had been superimpositions or that
sets of ballots were written by one person. We add to
these circumstances the NBIs expert finding that the
ballots in each of the four precincts contained
signatures different from those of their respective BEI
Chairs. We agree with Varias that, other than the NBI
Report, there was a systematic pattern of post-election
ballot tampering, which arguments Peno never
substantially countered. As we stated above, the
dramatic changes in the tally occurred only in four out
of the 14 protested precincts, yet the shaving off of
Varias lead and accompanying additions to Penos a
classic case of dagdag-bawas in these four precincts
were more than enough to alter the results. If votes for
Peno were indeed erroneously and deliberately
credited to Varias at the precinct level, we agree with
Varias that an irregularity of this magnitude could not
have escaped the attention of Penos poll watchers. In
sum, we find that the COMELEC gravely abused its
discretion in declaring Peno, based on the results of
the revision of ballots, the winner in the mayoralty
contest for the Municipality of Alfonso, Cavite. The
ballots, after proof of tampering, cannot be considered
reflective of the will of the people of Alfonso.
GRANTEDcosts. *Note: mejo taglish to, para mas
maintindihan ko, for recitation purposes only ang peg
a. Election contests / fraud
> Varias nasa notebook well preserved, and that there had been no tampering
of the ballots, that it will accord credibility to the
Regio vs COMELEC results of the revision. And applying Rosal Dotrine,
GR 204828, Dec 3, 2013 may grave abuse of disretion on the part of Comelec
En Banc
The petition filed under rule 64 in relation to 65 seeks
to nullify Dec 7, 2012 COMELEC reso. Si Co, hindi nia naprove na ang integrity ng ballots ay
napreserve, walang testimonial evidence. Waalang
Facts: Sina Regio at Co ay tumakbo nung Dec 25, independent, direct or indirect, evidence to prove the
2010 para sa brgy elections sa Manila. Ang preservation of the ballots and other election
kinalabasan ay Si Regio may 478 votes, tpos si Co may paraphernalia. Co has the burden of proof of
336 votes, so panalo si Regio. Nov 2010, nag-file ng preservation of the ballots. Ung mga witnesses ni Co,
election protest si Co claiming that Board of Election hndi dn dmating nung trial.
Tellers did not follow COMELEC Reso No. 9030, as
it: Kay Regio naman, dnia klngan maprove ang actual
tampering ng ballots. A candidate for a public elective
1) Did not permit his supporters to vote position ought to familiarize himself with election
2) Allowed flying voters to cast votes laws, pertinent jusripuridence and comelec
3) Ignored the rules on the appreciation of resolutions, rules and regulations.
ballots, resulting in misreading, miscounting
Sa kauna-unahan pa, moot and academic n daw ito.
and misappreciation of ballots inside the
Pero na-decide pa dn ng SC.
polling centers during the day of the elections
Petition for Certiorari, granted
Mayrong 7 clustered precints at may hindi isinama si
Co. Nung prelim conference, ang TC allowed the
revision of the ballots na nangyare nung Jan 13-14,
2011. Nung si CO na nagpresent ng evidence snbi lng
nia n basta sia ang may mas mataas n votes. Sa
results ng revision sa TC nanalo p dn si Regio. Sabi ng
tC dapat dw malaman muna na ang mga ballots n
nakita sa box during revision are the same ballots
deposited by the voters, bago pa man maniwala s result
ng revision. Sabi dn ng TC, credible ang witnesses ni
Regio.

Si Co, nagfile ng appeal sa COMELEC, pero

nadismiss dn un ng COMELEC 1st division, at sinabi
ring Co failed to show the integrity of the ballots in
questions preserved, not established wala daw
kasing reports, panu sila mnniniwala. Walang mga
testimonies din daw mula kay Co

Nagfile ng MR si Co, ang COMELEC en Banc,

pumanig s knya. Aggrieved si Regio

Issue: w/n COMELEC en Banc committed grave

abuse of discretion nung na-set aside nia ung prior
rulings

Held: granted to para kay Regio, ang Rosal Ruling

gawa ng it was promulgated precisely to honor the BEdol vs Comelec
presumption of regularity in the performance of GR 179830, Dec 3, 2009
official functions. It is only when the court or the Facts: Ang Chair ng Provincial Board of
comelec is fully satisfied that the ballots have been Canvassers para sa province of Maguindanao,
Bedol failed to submit canvass of votes of 22
cities of said province, ay dapat natransmit sa
COMELEC noong May 22, 2007, 8 days after ng
May 14 Elections. SI COMELEC nagconduct ng
fact-finding activity to further investigate the
matter, during which BEdol explained that the
election returns and othe paraphernalia were
stolen while in his custody.
Si Bedol hndi na umattend ng further hearings
and investigations, pero he appeared s mga
newspapers and interviews with a pistol on his
waist challenging those that want to sue him.
Hinahamon ang ibang babangga sa knya. This
forced the COMELEC to file a warrant of arrest
against petitioner and charged him with
Contempt. Si Bedol, knkquestion ang legal basis
ng COMELEC para s pag-aresto s knya at kng
ang board ay may jurisdiction para macharge sia
ng contempt
Issue:w/n ang initiation and issuance ng contempt
order ay within s constitutional powers ng
COMELEC
Held:
Comelec have the power to conduct
investigations and arrest any violators of election
laws as stated in Sec 2, (6) Art IX and Omni
Election Code Section 52 (c). in carrying out their
quasi-judicial functions in the administrative
officers or bodies are required to investigate facts
or ascertain the existence of facts, hold hearings,
weigh evidence, and draw conclusions from them
as basis for their official action and exercise of
discretion in a jurisprudence. The COMELEC
possesses the power to conduct investigations as
an adjunct to its constitutional duty to enforce and
administer all election laws, by virtue of the
explicit provisions of paragraph 6, Section 2,
Article IX of the 1987 Constitution, which reads:
Article IX-C, Section 2. xxx
(6) xxx; investigate and, where appropriate,
prosecute cases of violations of election laws,
including acts or omissions constituting election
frauds, offenses, and malpractices.
The powers and functions of the COMELEC,
conferred upon it by the 1987 Constitution and
the Omnibus Election Code, may be classified
into administrative, quasi-legislative, and quasi-
judicial. The quasi-judicial power of the
COMELEC embraces the power to resolve
controversies arising from the enforcement of
election laws, and to be the sole judge of all pre-
proclamation controversies; and of all contests
relating to the elections, returns, and
qualifications. Its quasi-legislative power refers
to the issuance of rules and regulations to
implement the election laws and to exercise such
legislative functions as may expressly be
delegated to it by Congress. Its administrative
function refers to the enforcement and
administration of election laws. In the exercise of
such power, the Constitution (Section 6, Article
IX-A) and the Omnibus Election Code (Section
52 [c]) authorize the COMELEC to issue rules
and regulations to implement the provisions of
the 1987 Constitution and the Omnibus Election
Code.
The quasi-judicial or administrative adjudicatory
power is the power to hear and determine
questions of fact to which the legislative policy is
to apply, and to decide in accordance with the
standards laid down by the law itself in enforcing
and administering the same law.
The exercise of judicial functions may involve
the performance of legislative or administrative
duties, and the performance of and administrative
or ministerial duties, may, in a measure, involve
the exercise of judicial functions. It may be said
generally that the exercise of judicial functions is
to determine what the law is, and what the legal
rights of parties are, with respect to a matter in
controversy; and whenever an officer is clothed
with that authority, and undertakes to determine
those questions, he acts judicially.
The language of the Omnibus Election Code and
the COMELEC Rules of Procedure is broad
enough to allow the initiation of indirect
contempt proceedings by the COMELEC motu
proprio. Furthermore, the above-quoted provision
of Section 52(e), Article VII of the Omnibus
Election Code explicitly adopts the procedure and
penalties provided by the Rules of Court.
Findings of guilt of indirect contempt

Petitioner was found guilty of contempt on four

(4) grounds.

First, he repeatedly failed to attend, despite notice

of the scheduled[12] canvassing of the Provincial
Certificates of Canvass, the hearing of the Task
Force Maguindanao; and refused to submit his
explanation for such absences, which he had
undertaken to submit, in violation of paragraphs
(b) and (f) of Section 2, Rule 29 of the
COMELEC Rules of Procedure.
Second, he unlawfully assumed custody of
accountable election documents, which were lost
while in his possession, and consequently failed
to deliver the same, in violation of paragraphs (a),
(c) and (d) Section 2, Rule 29 of same Rules.
Third and fourth, he publicly displayed disrespect
for the authority of the COMELEC through the
media (interviews on national television
channels, and in newspapers and radios) by
flaunting an armory of long firearms and side
arms in public, and posing for the front page of a
national broadsheet, with a shiny pistol tucked in
a holster, in violation of paragraphs (a) and (d),
Section 2, Rule 29 of same Rules.

WHEREFORE, the petition is hereby

DISMISSED and the prayer for a Temporary
Restraining Order and/or a Writ of Preliminary

Injunction is hereby DENIED. No costs.

> Diocese of Bacolod vs COMELEC Jan 21,

2015
Published by admin on January 17, 2016 | Leave a
response
G.R. No. 205728 January 21, 2015
PONENTE: Leonen
TOPIC: Right to expression, right to political speech,
right to property
FACTS:
On February 21, 2013, petitioners posted two (2)
tarpaulins within a private compound housing the San
Sebastian Cathedral of Bacolod. Each tarpaulin was
approximately six feet (6) by ten feet (10) in size.
They were posted on the front walls of the cathedral
within public view. The first tarpaulin contains the
message IBASURA RH Law referring to the
Reproductive Health Law of 2012 or Republic Act No.
10354. The second tarpaulin is the subject of the
present case. This tarpaulin contains the heading
Conscience Vote and lists candidates as either
(Anti-RH) Team Buhay with a check mark, or
(Pro-RH) Team Patay with an X mark. The right. Even assuming arguendo that the COMELEC
electoral candidates were classified according to their
vote on the adoption of Republic Act No. 10354,
otherwise known as the RH Law. Those who voted for
the passing of the law were classified by petitioners as
comprising Team Patay, while those who voted
against it form Team Buhay.
Respondents conceded that the tarpaulin was neither
sponsored nor paid for by any candidate. Petitioners
also conceded that the tarpaulin contains names
ofcandidates for the 2013 elections, but not of
politicians who helped in the passage of the RH Law
but were not candidates for that election.
ISSUES:
Whether or not the size limitation and its
reasonableness of the tarpaulin is a political question,
hence not within the ambit of the Supreme Courts
power of review.
Whether or not the petitioners violated the principle of
exhaustion of administrative remedies as the case was
not brought first before the COMELEC En Banc or
any if its divisions.
Whether or not COMELEC may regulate expressions
made by private citizens.
Whether or not the assailed notice and letter for the
removal of the tarpaulin violated petitioners
fundamental right to freedom of expression.
Whether the order for removal of the tarpaulin is a
content-based or content-neutral regulation.
Whether or not there was violation of petitioners right
to property.
Whether or not the tarpaulin and its message are
considered religious speech.
HELD: fIRST ISSUE: No.
The Court ruled that the present case does not call for
the exercise of prudence or modesty. There is no
political question. It can be acted upon by this court
through the expanded jurisdiction granted to this court
through Article VIII, Section 1 of the Constitution..
The concept of a political question never precludes
judicial review when the act of a constitutional organ
infringes upon a fundamental individual or collective
did have the discretion to choose the manner of
regulation of the tarpaulin in question, it cannot do so
by abridging the fundamental right to expression.
Also the Court said that in our jurisdiction, the
determination of whether an issue involves a truly
political and non-justiciable question lies in the answer
to the question of whether there are constitutionally
imposed limits on powers or functions conferred upon
political bodies. If there are, then our courts are duty-
bound to examine whether the branch or
instrumentality of the government properly acted
within such limits.
A political question will not be considered justiciable
if there are no constitutionally imposed limits on
powers or functions conferred upon political bodies.
Hence, the existence of constitutionally imposed limits
justifies subjecting the official actions of the body to
the scrutiny and review of this court.
In this case, the Bill of Rights gives the utmost
deference to the right to free speech. Any instance that
this right may be abridged demands judicial scrutiny.
It does not fall squarely into any doubt that a political
question brings.
SECOND ISSUE: No.
the Court held that the argument on exhaustion of
administrative remedies is not proper in this case.
Despite the alleged non-exhaustion of administrative
remedies, it is clear that the controversy is already ripe
for adjudication. Ripeness is the prerequisite that
something had by then been accomplished or
performed by either branch or in this case, organ of
government before a court may come into the picture.
Petitioners exercise of their right to speech, given the
message and their medium, had understandable
relevance especially during the elections.
COMELECs letter threatening the filing of the
election offense against petitioners is already an
actionable infringement of this right. The impending
threat of criminal litigation is enough to curtail
petitioners speech.
In the context of this case, exhaustion of their
administrative remedies as COMELEC suggested in
their pleadings prolongs the violation of their freedom
of speech.
THIRD ISSUE: No.
Respondents cite the Constitution, laws, and
jurisprudence to support their position that they had
the power to regulate the tarpaulin. However, the
Court held that all of these provisions pertain to
candidates and political parties. Petitioners are not
candidates. Neither do they belong to any political
party. COMELEC does not have the authority to
regulate the enjoyment of the preferred right to
freedom of expression exercised by a non-candidate in
this case.
FOURTH ISSUE: Yes.
The Court held that every citizens expression with
political consequences enjoys a high degree of
protection.
Moreover, the respondents argument that the
tarpaulin is election propaganda, being petitioners
way of endorsing candidates who voted against the RH
Law and rejecting those Who voted for it, holds no
water.
The Court held that while the tarpaulin may influence
the success or failure of the named candidates and
political parties, this does not necessarily mean it is
election propaganda. The tarpaulin was not paid for or
posted in return for consideration by any candidate,
political party, or party-list group.
By interpreting the law, it is clear that personal
opinions are not included, while sponsored messages
are covered.
The content of the tarpaulin is a political speech
Political speech refers to speech both intended and
received as a contribution to public deliberation about
some issue, fostering informed and civic minded
deliberation. On the other hand, commercial speech
has been defined as speech that does no more than
propose a commercial transaction. The expression
resulting from the content of the tarpaulin is, however,
definitely political speech.
FIFTH ISSUE: Content-based regulation.
Content-based restraint or censorship refers to
restrictions based on the subject matter of the
utterance or speech. In contrast, content-neutral
regulation includes controls merely on the incidents of
the speech such as time, place, or manner of the
speech.
The Court held that the regulation involved at bar is
content-based. The tarpaulin content is not easily
divorced from the size of its medium.
Content-based regulation bears a heavy presumption
of invalidity, and this court has used the clear and
present danger rule as measure.
Under this rule, the evil consequences sought to be
prevented must be substantive, extremely serious and
the degree of imminence extremely high. Only
when the challenged act has overcome the clear and
present danger rule will it pass constitutional muster,
with the government having the burden of overcoming
the presumed unconstitutionality.
Even with the clear and present danger test,
respondents failed to justify the regulation. There is no
compelling and substantial state interest endangered
by the posting of the tarpaulin as to justify curtailment
of the right of freedom of expression. There is no
reason for the state to minimize the right of non-
candidate petitioners to post the tarpaulin in their
private property. The size of the tarpaulin does not
affect anyone elses constitutional rights.
SIXTH ISSUE: Yes.
The Court held that even though the tarpaulin is
readily seen by the public, the tarpaulin remains the
private property of petitioners. Their right to use their It has a secular legislative purpose;
property is likewise protected by the Constitution.
It neither advances nor inhibits religion; and
Any regulation, therefore, which operates as an
effective confiscation of private property or It does not foster an excessive entanglement with
constitutes an arbitrary or unreasonable infringement religion.
of property rights is void, because it is repugnant to the
constitutional guaranties of due process and equal
protection of the laws.

The Court in Adiong case held that a restriction that

regulates where decals and stickers should be posted
is so broad that it encompasses even the citizens
private property. Consequently, it violates Article III,
Section 1 of the Constitution which provides that no
person shall be deprived of his property without due
process of law.

SEVENTH ISSUE: No.

The Court held that the church doctrines relied upon

by petitioners are not binding upon this court. The
position of the Catholic religion in the Philippines as
regards the RH Law does not suffice to qualify the
posting by one of its members of a tarpaulin as
religious speech solely on such basis. The enumeration
of candidates on the face of the tarpaulin precludes any
doubt as to its nature as speech with political
consequences and not religious speech.

Doctrine of benevolent neutrality

With religion looked upon with benevolence and not

hostility, benevolent neutrality allows accommodation
of religion under certain circumstances.
Accommodations are government policies that take
religion specifically into account not to promote the
governments favored form of religion, but to allow
individuals and groups to exercise their religion
without hindrance. Their purpose or effect therefore is
to remove a burden on, or facilitate the exercise of, a
persons or institutions religion.

As Justice Brennan explained, the government may

take religion into account . . . to exempt, when
possible, from generally applicable governmental
regulation individuals whose religious beliefs and
practices would otherwise thereby be infringed, or to
create without state involvement an atmosphere in
which voluntary religious exercise may flourish.

Lemon test

A regulation is constitutional when:

> Cagas vs COMELEC Jan 24, 2012
G.R. No. 194139 : January 24, 2012
DOUGLAS R. CAGAS, Petitioner, v. THE
COMMISSION ON ELECTIONS, AND CLAUDE P.
BAUTISTA,Respondents.
BERSAMIN, J.:
FACTS:
The petitioner and respondent Claude P. Bautista
(Bautista) contested the position of Governor of the
Province of Davao del Sur in the May 10, 2010
automated national and local elections. Results led to
the completion by May 14, 2010 of the canvassing of
votes cast for Governor of Davao del Sur, and the
petitioner was proclaimed the winner.
Alleging fraud, anomalies, irregularities, vote-buying
and violations of election laws, rules and resolutions,
Bautista filed an electoral protest on May 24, 2010
(EPC No. 2010-42).
In his answer submitted on June 22, 2010, the
petitioner averred as his special affirmative defenses
that Bautista did not make the requisite cash deposit
on time; and that Bautista did not render a detailed
specification of the acts or omissions complained of.
COMELEC First Division issued the first assailed
order denying the special affirmative defenses of the
petitioner.
The petitioner moved to reconsider on the ground that
the order did not discuss whether the protest specified
the alleged irregularities in the conduct of the
elections. He prayed that the matter be certified to the
COMELEC en banc. Bautista countered that the
assailed orders, being merely interlocutory, could not
be elevated to the COMELEC en banc pursuant to the
ruling in Panlilio v. COMELEC.
COMELEC First Division issued its second assailed
order, denying the petitioners motion for
reconsideration for failing to show that the first order
was contrary to law. Not satisfied, the petitioner
commenced this special civil action directly in this
Court.
ISSUE: Whether or not COMELEC gravely abused its
discretion in refusing to dismiss the protest for
insufficiency in form and content
HELD: No. Petition Denied
Political Law- SC cannot review a decision of a
COMELEC Division
The governing provision is Section 7, Article IX of the
1987 Constitution, which provides:
Section 7. Each Commission shall decide by a
majority vote of all its Members any case or matter
brought before it within sixty days from the date of its
submission for decision or resolution. A case or matter
is deemed submitted for decision or resolution upon
the filing of the last pleading, brief, or memorandum
required by the rules of the Commission or by the
Commission itself. Unless otherwise provided by this
Constitution or by law, any decision, order, or ruling
of each Commission may be brought to the Supreme
Court on certiorari by the aggrieved party within thirty
days from receipt of a copy thereof.
This provision, although it confers on the Court the
power to review any decision, order or ruling of the
COMELEC, limits such power to a final decision or
resolution of the COMELEC en banc, and does not
extend to an interlocutory order issued by a Division
of the COMELEC. Otherwise stated, the Court has no
power to review on certiorari an interlocutory order or
even a final resolution issued by a Division of the
COMELEC.
The mode by which a decision, order or ruling of the
Comelec en banc may be elevated to the Supreme
Court is by the special civil action of certiorari under
Rule 65 of the 1964 Revised Rules of Court, now
expressly provided in Rule 64, 1997 Rules of Civil
Procedure, as amended.
Rule 65, Section 1, 1997 Rules of Civil Procedure, as
amended, requires that there be no appeal, or any plain,
speedy and adequate remedy in the ordinary course of
law. A motion for reconsideration is a plain and
adequate remedy provided by law. Failure to abide by
this procedural requirement constitutes a ground for
dismissal of the petition.
In like manner, a decision, order or resolution of a
division of the Comelec must be reviewed by the
Comelec en banc via a motion for reconsideration
before the final en banc decision may be brought to the
Supreme Court on certiorari. The pre-requisite filing
of a motion for reconsideration is mandatory.
There is no question, therefore, that the Court has no
jurisdiction to take cognizance of the petition
forcertiorari assailing the denial by the COMELEC
First Division of the special affirmative defenses of the
petitioner. The proper remedy is for the petitioner to
wait for the COMELEC First Division to first decide
the protest on its merits, and if the result should
aggrieve him, to appeal the denial of his special
affirmative defenses to the COMELEC en banc along
with the other errors committed by the Division upon
the merits.

Political Law- no final decision, resolution or order

has yet been made which will necessitate the elevation
of the case and its records to the Commission en banc

In the instant case, it does not appear that the subject

controversy is one of the cases specifically provided
under the COMELEC Rules of Procedure in which the
Commission may sit en banc. Neither is it shown that
the present controversy a case where a division is not
authorized to act nor a situation wherein the members
of the First Division unanimously voted to refer the
subject case to the Commission en banc. Clearly, the
Commission en banc, under the circumstances shown
above, cannot be the proper forum which the matter
concerning the assailed interlocutory orders can be
referred to.

In a situation such as this where the Commission in

division committed grave abuse of discretion or acted
without or in excess of jurisdiction in issuing
interlocutory orders relative to an action pending
before it and the controversy did not fall under any of
the instances mentioned in Section 2, Rule 3 of the
COMELEC Rules of Procedure, the remedy of the
aggrieved party is not to refer the controversy to the
Commission en banc as this is not permissible under
its present rules but to elevate it to this Court via a
petition for certiorari under Rule 65 of the Rules of
Court.
Case Digest: Bulilis v. Nuez, et al.
G.R. No.195953 : August 9, 2011
CERIACO BULILIS, Petitioner, v. VICTORINO
NUEZ, Hon. PRESIDING JUDGE, 6th MCTC, Ubay,
Bohol, Hon. Presiding Judge, RTC, Branch 52,
Talibon, Bohol, Respondents.
LEONARDO-DE CASTRO, J.:
FACTS:
On October 25, 2010, petitioner Ceriaco Bulilis was
proclaimed winner of the elections for punong
barangay of Barangay Bulilis, Ubay, Bohol. He won
over Victorino Nuez by a margin of 4 votes. On
November 2, 2010,Nuez filed an Election Protest. It
was inexplicably docketed as Civil Case No. 134-10.
Bulilis denied the allegations in the protest and
praying for its dismissal on the ground that the MCTC
had no jurisdiction since the protest failed to implead
the Chairman and the Members of the Board of
Election Inspectors who were purportedly
indispensable parties. On the same date, the Clerk of
Court of the MCTC issued a notice of "hearing" for
November 9, 2010. However, counsel for Bulilis
claimed that he never received said "notice" nor was
he in any way informed that the November 9, 2010
hearing was a preliminary conference. At about 1:45
p.m., on November 9, 2010, counsel for Bulilis filed
his Preliminary Conference Brief with the Clerk of
Court and also furnished Nuez counsel with a copy.
However, when the case was called at 2:10 p.m.,
counsel for Nuez moved in open court to be allowed
to present evidence ex parte. Noting that counsel for
Bulilis failed to file his brief and to furnish a copy of
the brief on the other party at least one (1) day prior to
the preliminary conference as required by Section 4,
Rule 9 of A.M. No. 07-4-15-SC, Judge Daniel Jose J.
Garces granted Nuez motion to present evidence ex
parte.
Counsel for Bulilis filed a motion for reconsideration
on November 10, 2010, asserting the lack of proper
notice to him of the preliminary conference. The
MCTC denied the motion. The RTC likewise denied
Bulilis subsequent petition and motion for
reconsideration. Hence, this petition.
ISSUE: Whether or not the RTC committed no grave
abuse of discretion in dismissing the petition for lack
of jurisdiction?
HELD: The order of the RTC is upheld.
It appears from the record that the questioned notice of
preliminary conference issued in the instant election
protest may have been defective in that (1) the notice
issued by the MCTC clerk of court was a generic
notice of hearing without any mention that it was for
preliminary conference, and (2) it was served on the
party himself despite being represented by counsel in
contravention of Rule 9, Section 2 of A.M. No. 07-4-
15-SC. For this reason the Court disagrees with the
RTC finding that impliedly ascribed all fault to
petitioner in failing to timely file his preliminary
conference brief. We, nonetheless, finds that the RTC
and even the Court itself have no jurisdiction to correct
any error that may have been committed by MCTC
Judge Garces in his order to allow the protestant to
present evidence ex parte.
Petitioner contends that the petition for certiorari that
he filed with the RTC was "not an election case", but
one imputing grave abuse of discretion on the part of
the MCTC judge in his issuance of an interlocutory
order. He further claims that the COMELEC appellate
jurisdiction is only limited to "decided barangay
election cases."
There is no merit in petitioner argument that Rule 28,
Section 1 of the COMELEC Rules of Procedure limits
the COMELEC's jurisdiction over petitions for
certiorari in election cases to issues related to
elections, returns and qualifications of elective
municipal and barangay officials. Said provision,
taken together with the succeeding section, undeniably
shows that an aggrieved party may file a petition for
certiorari with the COMELEC whenever a judge
hearing an election case has acted without or in excess
of his jurisdiction or with grave abuse of discretion and
there is no appeal, nor any plain, speedy, and adequate
remedy in the ordinary course of law.
This Court also recognizes the COMELEC appellate
jurisdiction over petitions for certiorari against all acts
or omissions of courts in election cases. Indeed, in the
recent case of Galang v. Geronimo,the Court had the
opportunity to rule that a petition for certiorari
questioning an interlocutory order of a trial court in an
electoral protest was within the appellate jurisdiction
of the COMELEC. To quote the relevant portion of for certiorari involving acts of the municipal trial
that decision: courts in such election contests.

The question then is, would taking cognizance of a DISMISSED

petition for certiorari questioning an interlocutory
order of the regional trial court in an electoral protest
case be considered in aid of the appellate jurisdiction
of the COMELEC? The Court finds in the affirmative.

Interpreting the phrase "in aid of its appellate

jurisdiction," the Court held in J.M. Tuason & Co., Inc.
v. Jaramillo, et al. that if a case may be appealed to a
particular court or judicial tribunal or body, then said
court or judicial tribunal or body has jurisdiction to
issue the extraordinary writ of certiorari, in aid of its
appellate jurisdiction. This was reiterated in De Jesus
v. Court of Appeals, where the Court stated that a court
may issue a writ of certiorari in aid of its appellate
jurisdiction if said court has jurisdiction to review, by
appeal or writ of error, the final orders or decisions of
the lower court.

Note that Section 8, Rule 14 of the 2010 Rules of

Procedure in Election Contests Before the Courts
Involving Elective Municipal Officials states that:

Sec. 8. Appeal. An aggrieved party may appeal the

decision to the COMELEC within five (5) days after
promulgation, by filing a notice of appeal with the
court that rendered the decision, with copy served on
the adverse counsel or on the adverse party who is not
represented by counsel.

Since it is the COMELEC which has jurisdiction to

take cognizance of an appeal from the decision of the
regional trial court in election contests involving
elective municipal officials, then it is also the
COMELEC which has jurisdiction to issue a writ of
certiorari in aid of its appellate jurisdiction. Clearly,
petitioner erred in invoking this Court's power to issue
said extraordinary writ. (Emphasis supplied.)

Although Galang involved a petition for certiorari

involving an interlocutory order of a regional trial
court in a municipal election contest, the rationale for
the above ruling applies to an interlocutory order
issued by a municipal trial court in a barangay election
case. Under Rule 14, Section 8 of A.M. No. 07-4-15-
SC, decisions of municipal trial courts in election
contests involving barangay officials are appealed to
the COMELEC. Following the Galang doctrine, it is
the COMELEC which has jurisdiction over petitions
c. Adjudicatory powers of Comelec
> Violago vs COMELEC and Alarilla
GR 194143
Peralta; J
Facts: this is a petition for certiorari under Rule 65,
ung alawa parehong candidates para maging mayor
nung May 10, 2010 sa Meycauayan, Bulacan. Nanalo
si Respondent
On May 21, 2010, petitioner filed a Petition1 with the
COMELEC questioning the proclamation of private
respondent on the following grounds: (1) massive
vote-buying; (2) intimidation and harassment; (3)
election fraud; (4) non-appreciation by the Precinct
Count Optical Scan (PCOS) machines of valid votes
cast during the said election; and, (5) irregularities due
to non-observance of the guidelines set by the
COMELEC
Sabi ni respondent insufficient in form and substance
daw, then ang Comelec 2nd division issued an order
setting the prelim conference sa Auf 12, dapat
makapagpasa ng Briefs 1 day before (aug 11 un)
Respondent complied, pero si petitioner ngppaextend,
ung counsel ni respondent aba ndi sila nasunod s
order ah, ipadismiss n tong case
In its assailed Order7 dated August 12, 2010, the
COMELEC 2nd Division dismissed petitioners
protest on the ground that the latter belatedly filed his
Brief in violation of the COMELEC rule on the filing
of briefs.
the COMELEC en banc denied petitioners Motion for
Reconsideration on the ground that petitioner failed to
file a verified motion in violation of Section 3, Rule 19
of the COMELEC Rules of Procedure.
not to dismiss petitioners protest on technical
grounds. Petitioner should not be penalized for
belatedly filing his Preliminary Conference Brief.
With respect to the COMELEC en bancs denial of
petitioners Motion for Reconsideration, it is true that
Section 3, Rule 20 of the COMELEC Rules of
Procedure on Disputes in an Automated Election
System,14 as well as Section 3, Rule 19 of the
COMELEC Rules of Procedure, clearly require that a
motion for reconsideration should be verified.
However, the settled rule is that the COMELEC Rules
of Procedure are subject to liberal construction.
In the present case, notwithstanding the fact that
petitioners motion for reconsideration was not
verified, the COMELEC en banc should have
considered the merits of the said motion in light of
petitioners meritorious claim that he was not given
timely notice of the date set for the preliminary
conference. The essence of due process is to be
afforded a reasonable opportunity to be heard and to
submit any evidence in support of ones claim or
defense
Granted

Petitioners basic contention is that the COMELEC

2nd Division and the COMELEC en banc committed
grave abuse of discretion in dismissing his electoral
protest and in denying his motion for reconsideration,
respectively.

The Court finds the petition meritorious.

Held: masyadong harsh sa petitioner, may naipresent

nmanag copy ng certification issued by the postmaster
n Meycauayan Bualcan,; nalipat pa ang telecom office
s sta maria, Fairness and prudence dictate that the
COMELEC 2nd Division should have first waited for
the requested certification before deciding whether or
Case Digest: Cayetano vs. COMELEC
G.R. No. 193846 : April 12, 2011
MARIA LAARNI L. CAYETANO, Petitioner, v.
THE COMMISSION ON ELECTIONS and DANTE
O. TINGA, Respondents.
NACHURA, J.:
FACTS:
In the automated national and local elections held on
May 10, 2010, petitioner and private respondent were
candidates for the position of Mayor of Taguig City.
Petitioner was proclaimed the winner thereof,
receiving a total of 95,865 votes as against the 93,445
votes received by private respondent.
The private respondent filed an Election Protest
against petitioner before the COMELEC for allegedly
committing election frauds and irregularities which
translated to the latters ostensible win as Mayor of
Taguig City. On the whole, private respondent claims
that he is the actual winner of the mayoralty elections
in Taguig City.
In the petitioners Answer with Counter-Protest and
Counterclaim, she raised, among others, the
affirmative defense of insufficiency in form and
content of the Election Protest and prayed for the
immediate dismissal thereof. However, it was denied
by the COMELEC.
ISSUE: Whether or not the COMELEC committed
grave abuse of discretion amounting to lack or excess
of jurisdiction in refusing to dismiss the protest of
private respondent for insufficiency in form and
content.
HELD: The petition is denied.
POLITICAL LAW : Decisions of the COMELEC
The general rule is that a decision or an order of a
COMELEC Division cannot be elevated directly to
this Court through a special civil action for certiorari.
Furthermore, a motion to reconsider a decision,
resolution, order, or ruling of a COMELEC Division
shall be elevated to the COMELEC En Banc.
However, a motion to reconsider an interlocutory
order of a COMELEC Division shall be resolved by
the division which issued the interlocutory order,
except when all the members of the division decide to
refer the matter to the COMELEC En Banc.Thus, in
general, interlocutory orders of a COMELEC Division
are not appealable, nor can they be proper subject of a
petition for certiorari. This does not mean that the
aggrieved party is without recourse if a COMELEC
Division denies the motion for reconsideration. The
aggrieved party can still assign as error the
interlocutory order if in the course of the proceedings
he decides to appeal the main case to the COMELEC
En Banc. The exception enunciated is when the
interlocutory order of a COMELEC Division is a
patent nullity because of absence of jurisdiction to
issue the interlocutory order, as where a COMELEC
Division issued a temporary restraining order without
a time limit, or where a COMELEC Division admitted
an answer with counter-protest which was filed
beyond the reglementary period.
The Court has no jurisdiction to review an order,
whether final or interlocutory, even a final resolution
of a division of the COMELEC. Stated otherwise, the
Court can only review via certiorari a decision, order,
or ruling of the COMELEC en banc. In short, the final
order of the COMELEC (Second Division) denying
the affirmative defenses of petitioner cannot be
questioned before this Court even via a petition for
certiorari. Although the rule admits of exceptions as
when the issuance of the assailed interlocutory order
is a patent nullity because of the absence of
jurisdiction to issue the same. However, none of the
circumstances permitting an exception to the rule
occurs in this instance.
In addition to that, certiorari will not lie in this case.
The issuance of a special writ of certiorari has two
prerequisites: (1) a tribunal, board, or officer
exercising judicial or quasi-judicial functions has
acted without or in excess of its or his jurisdiction, or
with grave abuse of discretion amounting to lack or
excess of jurisdiction; and (2) there is no appeal, or any
plain, speedy, and adequate remedy in the ordinary
course of law.
Although it is not the duty of the Court to point
petitioner, or all litigants for that matter, to the
appropriate remedy which she should have taken. The
aggrieved party can still assign as error the
interlocutory order if in the course of the proceedings
he decides to appeal the main case to the COMELEC
En Banc. moreover, the protest filed by private
respondent and the counter-protest filed by petitioner
remain pending before the COMELEC, which should
afford petitioner ample opportunity to ventilate her
grievances. Thereafter, the COMELEC should decide
these cases with dispatch.

THEREFORE, the petition is dismissed


d. Jurisdition /election contest/ campaign expendi/
criminal acts
> Dr MAhid Mulan vs COMELEC
Gr 171248
Carpio, J:
Facts: Mutilan and Ampatuan were candidates for
Governor during the election of regional officials nung
Aug 8, 2005 sa ARMM nung Aug 11, 2005,
respondent was proclaimed as the duly elected
Governor of the ARMM. Nung aug 2005, nagprotesta
si petitioner (huhu, siang ntalo e). sabi nia wala daw
actual elections sa 4 Provinces. At di naman daw tlg
bumoto at ung mga baota ay ffilled up ng mga non-
registered voters s 4provinces n un.
Nung initial hearing 2nd div Comelec, inamin n ndi sia
election protest, kundi motion to annul elections.
Hiniling na maelevate s COMELEC en banc para mas
bumilis ang kaso. Dinismiss tuloy ng 2nd div, for lact
of jurisdiction,, holding tthat petiitons for annulment
is vested in COMELEC en banc. Denied dn ang MR
Issue:
w/n division is prohibited from elevatning the case to
the COMELEC en banc / NO
- While automatic elevation of a case
erroneously filed with the Division to En
banc is not provided in the Comelec
RoProcedure, such action is not prohibited,
dnaman as in sobrang bawal, so in a way
mejo pwde, kasi wala naman express
prohibition
w/m comelec 2nd div has jurisdiction / NO
- Under sec 4, RA 7166, juris over
postponements , failure of elections and
special elections vests in the COMELEC en
banc, not in a division.
Sw/n there was failure of elections /NO
- Petitioner alleged that no actual election was
conducted in the contested areas. He further
alleged that the voters did not actually vote
and the ballots were filled up by non
registered voters and that there was massive
disenfranchisement
We agree with petitioner. While automatic
elevation of a case erroneously filed with the
Division to En Banc is not provided in the
COMELEC Rules of Procedure, such action
is not prohibited. Section 4, Rule 2 of the
COMELEC Rules of Procedure provides:
Means to Effect Jurisdiction. - All auxiliary
writs, processes and other means necessary to
carry into effect its powers or jurisdiction
may be employed by the Commission; and if
the procedure to be followed in the exercise
of such power or jurisdiction is not
specifically provided for by law or these
rules, any suitable process or proceeding may
be adopted. (Emphasis supplied)
Section 3, Rule 19 of the COMELEC Rules of
Procedure requires that the motion for reconsideration
be verified.[23] The COMELEC En Banc ruled that
there was no valid motion for reconsideration because
petitioner failed to comply with Section 3, Rule 19 of
the COMELEC Rules of Procedure. The COMELEC
En Banc ruled that the Order of the COMELEC
Second Division had become final and executory.
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.[24] It
is not sufficient that a tribunal, in the exercise of its
power, abused its discretion; such abuse must be
grave.[25] 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.[26] In this case, we
see no grave abuse of discretion on the part of the
COMELEC En Banc in denying petitioners motion for
reconsideration. The Motion to Admit Verified Copies
of Motion for Reconsideration was filed only after the
denial by the COMELEC En Banc of the original and
unverified motion for reconsideration.
WHEREFORE, we DISMISS the petition. We
AFFIRM the 28 December 2005 Order of the
COMELEC En Banc.