Election Cases

BAGO P. PASANDALAN, petitioner, vs.
COMMISSION ON ELECTIONS and BAI

SALAMONA L. ASUM, respondents.
DECISION
CARPIO, J.:
A petition for declaration of failure of election must specifically allege the essential grounds
that would justify the exercise of this extraordinary remedy. Otherwise, the Comelec can
dismiss outright the petition for lack of merit. No grave abuse of discretion can be
attributed to the Comelec in such a case because the Comelec must exercise with utmost
circumspection the power to declare a failure of election to prevent disenfranchising voters
and frustrating the electorates will.
The Case
Before us is a petition for review on certiorari of the Resolution[1] of the Commission on

Elections en banc dated October 12, 2001 dismissing petitioner Bago P. Pasandalans
(Pasandalan for brevity) petition to declare a failure of election.
Pasandalan and private respondent Bai Salamona L. Asum (Asum for brevity) were
candidates for mayor in the Municipality of Lumbayanague, Lanao del Sur during the May
14, 2001 elections.
On May 23, 2001, Pasandalan filed a petition[2] before public respondent Commission on
Elections (Comelec for brevity) seeking to nullify the election results in Barangay
Cabasaran (Precinct Nos. 9A, 10A, 11A and 12A), Barangay Deromoyod (Precinct Nos. 24A,
25A and 26A), Lamin (Precinct Nos. 29A and 30A), Barangay Wago (Precinct Nos. 46A, 47A
and 48A), Barangay Meniros (Precinct Nos. 32A, 33A and 34A), Barangay Bualan (Precinct
Nos. 6A, 7A and 8A) and Barangay Pantaon (Precinct Nos. 38A and 39A), all of
Lumbayanague, Lanao del Sur.
Petitioner alleged that on May 14, 2001, while voting was going on, some Cafgus stationed
near Sultan Gunting Elementary School indiscriminately fired their firearms causing the
voters to panic and leave the polling center without casting their votes. Taking advantage
of the confusion, supporters of Asum allegedly took the official ballots, filled them up with
the name of Asum and placed them inside the ballot boxes. The incident allegedly marred
the election results in Precinct Nos. 9A-12A, 24A-26A and 29A-30A.
In Precinct Nos. 46A, 47 and 48A, the members of the Board of Election Inspectors (BEI for
brevity) allegedly failed to sign their initials at the back of several official ballots and to
remove the detachable coupons. The BEI members allegedly affixed their initials only
during the counting of votes.
In Precinct Nos. 6A-8A, 32A-34A and 38A-39A, Pasandalan claims that Asums supporters,
taking advantage of the fistfight between Asums nephew and the supporters of candidate
Norania Salo, grabbed the official ballots and filled them up with the name of Asum.
Pasandalan contends that a technical examination of several official ballots from the
contested precincts would show that only a few persons wrote the entries.
On June 26, 2001, Asum filed an Answer denying Pasandalans allegation that the volley of
shots fired on May 14, 2001 disrupted the voting. Private respondent countered that the
gunshots were heard around 2:35 p.m. and not at the start of the voting. On June 30, 2001,
Asum was sworn into office and assumed the position of municipal mayor of the
Lumbayanague, Lanao del Sur.
On October 12, 2001, the Comelec issued a Resolution dismissing the petition for lack of
merit.[3]
Hence, this petition.
The Comelecs Ruling
The Comelec ruled that the power to declare a failure of election, being an extraordinary
remedy, could be exercised only in three instances: (1) the election is not held; (2) the
election is suspended; or (3) the election results in a failure to elect. The third instance is
understood in its literal sense, that is, nobody was elected.
The Comelec dismissed the petition because none of the grounds relied upon by Pasandalan
falls under any of the three instances justifying a declaration of failure of election. First, the
elections in the questioned precincts were held as scheduled. Second, the gunshots heard
during the casting of votes did not suspend the election as the voting continued
normally. Third, Asum was elected by a plurality of votes.
The authenticity and integrity of the election returns were left undisturbed throughout the
preparation, transmission, custody and canvass of the returns. Pasandalan alleges fraud
and terrorism, in that there was massive substitution of voters, firing of guns to frighten
the voters, and failure of the BEI members to sign at the back of some official ballots and to
remove the detachable coupons. The Comelec ruled that these allegations are better
ventilated in an election contest.
The Comelec did not give credence to Pasandalans evidence in support of his allegations of
terrorism and fraud since the evidence consisted only of affidavits executed by Pasandalans
own poll watchers. The Comelec considered these affidavits self-serving and insufficient to
annul the results of the election. Thus, the Comelec dismissed the petition for lack of merit.
The Issues
Pasandalan now assails the Comelecs dismissal of his petition, raising the following issues:
1. WHETHER THE COMMISSION ON ELECTIONS ACTED WITHOUT OR IN EXCESS
OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN DISMISSING THE
PETITION IN SPA NO. 01-305 FOR ALLEGED LACK OF MERIT;
2. WHETHER THE COMMISSION ON ELECTIONS COMMITTED GRAVE ABUSE OF

DISCRETION AMOUNTING TO LACK OF JURISDICTION IN NOT ANNULING THE
ELECTION OR DECLARING A FAILURE OF ELECTION IN THE SIXTEEN (16)
QUESTIONED PRECINCTS;
3. WHETHER THE COMMISSION ON ELECTIONS ACTED WITHOUT OR IN EXCESS

OF ITS JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN NOT
DECLARING AS ILLEGAL, NULL AND VOID AB INITIO THE PROCLAMATION OF
THE PRIVATE RESPONDENT AS THE DULY ELECTED MAYOR OF
LUMBAYANAGUE, LANAO DEL SUR IN THE LAST MAY 14, 2001 REGULAR
ELECTIONS AND MAY 30, 2001 SPECIAL ELECTIONS.[4]
The Courts Ruling
We rule that the petition is without merit. The Comelec correctly dismissed the petition for
declaration of failure of election because the irregularities alleged in the petition should
have been raised in an election protest, not in a petition to declare a failure of election.
Under Republic Act No. 7166, otherwise known as The Synchronized Elections Law of
1991,[5] the Comelec en banc is empowered to declare a failure of election under Section 6
of the Omnibus Election Code (B.P. Blg. 881). Section 6 of the Code prescribes the
conditions for the exercise of this power, thus:
SEC. 6. Failure of Election. - If, on account of force majeure, violence, terrorism, fraud or
other analogous causes the election in any polling place has not been held on the date fixed,
or had been suspended before the hour fixed by law for closing of the voting, or after the
voting and during the preparation and the transmission of the election returns or in the
custody or canvass thereof, such election results in a failure to elect, and in any of such
cases the failure or suspension of election would affect the result of the election, the
Commission shall, on the basis of a verified petition by any interested party and after due
notice and hearing, call for the holding or continuation of the election not held, suspended
or which resulted in a failure to elect but not later than thirty days after the cessation of
the cause of such postponement or suspension of the election or failure to elect.
Based on the foregoing provision, three instances justify a declaration of failure of

election. These are:
(a) the election in any polling place has not been held on the date fixed on account of force
majeure, violence, terrorism, fraud or other analogous causes;
(b) the election in any polling place has been suspended before the hour fixed by law for the
closing of the voting on account of force majeure, violence, terrorism, fraud or other
analogous causes; or
(c) after the voting and during the preparation and transmission of the election returns or
in the custody or canvass thereof, such election results in a failure to elect on account of
force majeure, violence, terrorism, fraud or other analogous causes.[6]
What is common in these three instances is the resulting failure to elect.[7] In the first
instance, no election is held while in the second, the election is suspended.[8] In the third
instance, circumstances attending the preparation, transmission, custody or canvas of the
election returns cause a failure to elect. The term failure to elect means nobody emerged as
a winner. [9]
Pasandalan asserts that the conditions for the declaration of failure of election are present
in this case. The volley of shots from high-powered firearms allegedly forced the voters to
scamper away from the polling place, paving the way for Asums supporters to write the
name of Asum on the ballots. The gunfire also frightened Pasandalans poll watchers. The
heavy firing allegedly suspended or prevented the holding of elections in the contested
precincts, resulting in failure to elect. The victory of Asum is thus put in serious doubt.
We do not agree. Pasandalans allegations do not fall under any of the instances that would
justify the declaration of failure of election. The election was held in the 16 protested
precincts as scheduled. At no point was the election in any of the precincts suspended. Nor
was there a failure to elect because of force majeure, violence, terrorism, fraud or other
analogous causes during the preparation, transmission, custody and canvass of the election
returns. The alleged terrorism was not of such scale and prevalence to prevent the holding
of the election or to cause its suspension. In fact, the casting and counting of votes, the
preparation, transmission and canvassing of election returns and the proclamation of the
winning candidate took place in due course.
Courts exercise the power to declare a failure of election with deliberate caution so as not to
disenfranchise the electorate.[10] The fact alone that actual voting took place already
militates against Pasandalans cause. Also, Pasandalans allegations of terrorism and fraud
are not sufficient to warrant a nullification of the election in the absence of any of the three
instances justifying a declaration of failure of election. Terrorism may not be invoked to
declare a failure of election and to disenfranchise the greater number of the electorate
through the misdeeds of only a few,[11] absent any of the three instances specified by law.
To warrant a declaration of failure of election on the ground of fraud, the fraud must
prevent or suspend the holding of an election, or mar fatally the preparation, transmission,
custody and canvass of the election returns.[12] The conditions for the declaration of failure
of election are stringent. Otherwise, elections will never end for losers will always cry fraud
and terrorism.[13]
The allegations of massive substitution of voters, multiple voting, and other electoral
anomalies should be resolved in a proper election protest[14] in the absence of any of the
three instances justifying a declaration of failure of election. In an election protest, the
election is not set aside, and there is only a revision or recount of the ballots cast to
determine the real winner.[15]
The nullification of elections or declaration of failure of elections is an extraordinary

remedy.[16] The party who seeks the nullification of an election has the burden of proving
entitlement to this remedy. It is not enough that a verified petition is filed. The allegations
in the petition must make out a prima facie case for the declaration of failure of election,
and convincing evidence must substantiate the allegations.[17]
In the instant case, it is apparent that the allegations do not constitute sufficient grounds
for the nullification of the election. Pasandalan even failed to substantiate his allegations of
terrorism and irregularities. His evidence consisted only of affidavits. Mere affidavits are
insufficient,[18] more so in this case since the affidavits were all executed by Pasandalans
own poll watchers. Factual findings of the Comelec are binding on this
Court.[19] Accordingly, the following findings of the Comelec in the instant case must be
respected:
xxx There was an allegation in the amended petition that while voting was taking place in
Sultan Gunting Elementary School, gunshots were heard causing the voters to scamper for
safety and leave the polling center without having cast their votes. However, other than his
bare allegation and the pre-typed affidavits of his watchers, petitioner did not present
substantial and convincing evidence to support his claim. On the other hand, 1 Lt.
Frederick Galang Pa of the 29th Infantry Battalion assigned in Lumbayanague
categorically declared in his affidavit that despite the gunshots which were heard at around
2:35 PM when the polls were about to close, the voting continued normally. This statement
was bolstered by the narrative report of Urangutan Mamailao, Election Officer of
Lumbayanague, on the conduct of the election in said municipality. The report was
spontaneously prepared when the incident happened. Taken in the light of the presumption
of regularity in the performance of official functions, these two affidavits carry great
weight. Third, the authenticity and integrity of the election returns are left undisturbed
throughout the preparation, transmission, custody and canvass thereof. There was no
allegation, much less proof that the sanctity of the election returns was defiled.
xxx
A thorough examination of the affidavits reveals that they suffer from both extrinsic and
intrinsic invalidity. The form and the contents of the affidavits were pre-typed, and all the
affiants had to do was to fill-up the blank spaces for their names and precinct
assignments. This clearly shows that some other person prepared the affidavits and it is
doubtful whether the affiants understood the contents thereof before they signed them.
Also worth noting is the fact that the contents of the affidavits are identical. It is highly
questionable why different persons have exactly the same observation of different
incidents. Even persons confronted with the same occurrence would have different
observations of the same incident because human perception is essentially affected by
several factors like the senses, mental condition, personal disposition, environment, etc.
Moreover, the affidavits contain inconsistent statements and incredible allegations which
bolster the conclusion that they were tailored to suit the needs of the petitioner. For
example, the joint-affidavit of Badjomura Calauto and Macaruog Ampuan states that they
were in Barangay Cabasaran during the May 14 election when they saw the men of
respondent fill-up the ballots in Precinct Nos. 29A-30A of Barangay Lamin. The venue of
voting for Barangay Cabasaran was Sultan Gunting Central Elementary School while that
of Barangay Lamin was Lamin Primary School. How they were able to witness said
incident when they were miles away from where it happened is mystifying. Besides, this is
not the proper forum to challenge illegal voters. Even at the precinct level, petitioners
watchers are empowered to question any irregularity which they think may have been
committed by any person or to challenge the capacity of any person offering to vote. Failing
to avail himself of this remedy, petitioner cannot now pass the burden to innocent voters by
calling for the annulment of the results of a validly held election.[20]
Pasandalan bewails the Comelecs dismissal of his petition without first conducting a
technical examination of the questioned precincts. Pasandalan claims that had the Comelec
made a technical examination of the questioned precincts, the Comelec would have
discovered massive substitution of voters, terrorism, violence, threats, coercion,
intimidation and other electoral frauds, resulting in a failure of election. Pasandalan insists
that a technical examination in this case would have been proper as in Typoco, Jr. v.
Commission on Elections,[21] which is also a case of failure of election.
The Comelec is not mandated to conduct a technical examination before it dismisses a

petition for nullification of election when the petition is, on its face, without merit.
In Typoco, petitioner Typoco buttressed his petition with independent evidence that
compelled the Comelec to conduct a technical examination of the questioned
returns. Typoco filed a Motion to Admit Evidence to prove that a substantial number of
election returns were manufactured. Typoco claimed that the returns were prepared by
only one person based on the report of Francisco S. Cruz, a licensed examiner of questioned
documents, who examined copies of the election returns of Lakas-NUCD. In the present
case, Pasandalan failed to attach independent and objective evidence other than the self-
serving affidavits of his own poll watchers.
In Mitmug v. Commission on Elections,[22] we ruled that the Comelec could dismiss

outright a petition for nullification of election if it is plainly groundless and the allegations
therein could be better ventilated in an election protest. In Banaga, Jr. v. Commission on
Elections,[23] we reiterated this doctrine, thus -
Finally, petitioner claims that public respondent gravely abused its discretion when it
dismissed his petition motu propio. However, the fact that a verified petition has been filed
does not mean that a hearing on the case should first be held before Comelec can act on
it. The petition to declare a failure of election and/or to annul election results must show on
its face that the conditions necessary to declare a failure to elect are present. In their
absence, the petition must be denied outright. Public respondent had no recourse but to
dismiss the petition. Nor may petitioner now complain of denial of due process, on this
score, for his failure to properly file an election protest. The Comelec can only rule on what
was filed before it. It committed no grave abuse of discretion in dismissing his petition to
declare failure of elections and/or for annulment of elections for being groundless, hence
without merit.
Clearly, the fact that a verified petition is filed with the Comelec does not necessarily mean
that a technical examination or a hearing on the case should be conducted first before the
Comelec can act on the petition. There is no grave abuse of discretion if the Comelec
dismisses the petition even without a technical examination or hearing if the petition fails
to show on its face the existence of any of the three instances required by law to declare a
failure of election. The Comelec in this case correctly dismissed the petition.
Pasandalan believes that notwithstanding the fact that actual voting took place in the
questioned precincts, the election in this case, just like in Basher v. Commission on
Elections,[24]was illegal, irregular, and void.[25] Citing Basher, Pasandalan argues that
the peculiar set of facts in this case do not merely show a failure of election but the absence
of a valid electoral exercise.[26]
The fact that an election is actually held prevents as a rule a declaration of failure of
election. It is only when the election is attended by patent and massive irregularities and
illegalities that this Court will annul the election. Basher is an example of such a case.
In Basher, after a series of failed elections in Barangay Maidan, Municipality of Tugaya,

Lanao del Sur during the 1997 barangay elections, the election was reset to August 30,
1997.Due to the prevailing tension in the locality, the voting started only at around 9 p.m.
and lasted until the early morning of the following day. Basher filed a petition for the
nullification of election. The Comelec ruled against a failure of election because actual
voting had taken place. However, we overturned the Comelec ruling because the election
was unauthorized and invalid. The electorate was not given sufficient notice that the
election would push through after 9 p.m. of the same day. Moreover, the voting did not
comply with the procedure laid down by law and by Comelec rules as to the time and place
of voting. Thus, we held that the election was illegal, irregular and void. Consequently, we
annulled the proclamation of the winning candidate and ordered a special election.
Basher does not apply to this case. Unlike in Basher, the election in this case proceeded as
scheduled, in accordance with law and Comelec rules. None of the extreme circumstances
that marred the election in Basher is present in this case. We have ruled that there is
failure of election only if the will of the electorate is muted and cannot be ascertained.[27] If
the will of the people is determinable, the same must be respected as much as
possible.[28] In this case, the will of the electorate is readily discernible. Pasandalan should
have filed an election protest to substantiate his allegations of electoral anomalies, not a
petition to declare a failure of election.
WHEREFORE, the instant petition is DISMISSED. The assailed Resolution of public

respondent Comelec is AFFIRMED. Costs against petitioner.
SO ORDERED.
Bellosillo, (Acting C.J.), Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing,

Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez, and Corona, JJ., concur.
Davide, Jr., C.J., on leave.
Typoco JR., petitioner, vs. COMMISSION ON ELECTIONS (COMELEC) EN BANC, and

JESUS EMMANUEL PIMENTEL, respondents.
DECISION
GONZAGA_REYES, J.:
Before us is a petition for certiorari and prohibition to annul and set aside the resolution of
the Commission on Elections (COMELEC) En Banc dated October 12, 1998 which
dismissed herein petitioner Jesus Typoco, Jr.s (TYPOCO) petition for Annulment of
Election or Election Results and/or Declaration of Failure of Elections docketed as SPA No.
98-413.
The factual antecedents insofar as pertinent to the instant petition are as follows:
TYPOCO and private respondent Jesus Pimentel (PIMENTEL) were both candidates for
the position of Governor in Camarines Norte during the May 11, 1998 elections. On May 22,
1998, TYPOCO together with Winifredo Oco (OCO), a candidate for the position of
Congressman of the Lone District of Camarines Norte filed a Joint Appeal before the
COMELEC docketed as SPC-No. 98-133. TYPOCO and OCO questioned therein the ruling
of the Provincial Board of Canvassers of Camarines Norte which included in the canvass of
votes the Certificate of Canvass of the Municipality of Labo, Camarines Norte. TYPOCO
also filed a Motion to Admit Evidence to Prove That a Substantial Number of Election
Returns Were Manufactured as They Were Prepared by One Person based on the report of
one Francisco S. Cruz, a Licensed Examiner of Questioned Document, who examined copies
of election returns of the LAKAS-NUCD.
On June 4, 1998, COMELEC (Second Division) issued an Order dismissing the Joint
Appeal. Thereafter, TYPOCO filed a Motion for Reconsideration reiterating his motion to
admit evidence to prove the manufacturing and/or spurious character of the questioned
returns which were allegedly prepared in group by only one person and which will
materially affect the results of the election for the position of Governor.
In the meantime, on June 10, 1998, TYPOCO and OCO filed with the COMELEC En
Banc a separate petition for Annulment of Election or Election Results and/or Declaration
of Failure of Elections in several precincts, docketed as SPA No. 98-413, subject of the
instant petition. The petition alleged that massive fraud and irregularities attended the
preparation of the election returns considering that upon technical examination, 305
election returns were found to have been prepared in group by one person.
On July 15, 1998, the COMELEC En Banc issued an Order directing the Voters
Identification Division of the Commissions Election Records and Statistics Department
(ERSD) to examine the COMELEC copies of the 305 election returns questioned by
TYPOCO.
On August 12, 1998, the COMELECs ERSD Voters Identification Division submitted its
Questioned Document Report to the COMELEC En Banc on the results of its technical
examination of the questioned election returns. The report disclosed, among others, that
the handwritten entries on 278 COMELEC copies of election returns particularly under the
columns Congressman/Governor/Vice-Governor Nickname or Stage Name, were written by
one and the same person in groups.[1]
On August 31, 1998, the COMELEC En Banc issued the resolution denying petitioners
motion for reconsideration in SPC No. 98-133 on the ground that an election protest is the
proper remedy.
TYPOCO then filed a petition for certiorari and prohibition under Rule 65 with prayer for
the issuance of a temporary restraining order and/or writ of preliminary injunction
assailing the Order dated June 4, 1998 and the Resolution dated August 31, 1998,
respectively issued in SPC No. 98-133 by the COMELEC (Second Division) and the
COMELEC En Banc.[2] In a resolution dated September 22, 1998, this Court dismissed the
petition finding no grave abuse of discretion on the part of respondent COMELEC in
issuing the aforesaid assailed orders. TYPOCOs motion for reconsideration was likewise
denied by this Court with finality on September 29, 1998.
On October 12, 1998, the COMELEC En Banc promulgated a resolution in SPA 98-413,
dismissing TYPOCOs petition for the Declaration of Failure of Elections and/or Annulment
of Elections in Camarines Norte for lack of merit, thus:
The grounds cited by petitioners do not fall under any of the instances enumerated in Sec. 6
of the Omnibus Election Code.
In Mitmug vs. Commission on Elections, 230 SCRA 54, the Supreme Court ruled that
before the Comelec can act on a verified petition seeking to declare a failure of elections, at
least two (2) conditions must concur: (a) no voting has taken place in the precincts on the
date fixed by law, or even if there was voting, the election nevertheless resulted in failure to
elect; and (b) the votes that were not cast would affect the result of the election. From the
allegations of the petition in the instant cases, it is clear that an election took place and
that it did not result in a failure to elect. In fact, by separate resolution, the Commission
has authorized the provincial board of canvassers to proclaim the winning candidates and
this as been implemented.
WHEREFORE, the Commission hereby DISMISSES the petition in each of the above cases,
for lack of merit.[3]
Hence, the instant petition on the grounds that the COMELEC En Banc gravely abused its
discretion as follows: 1. in holding that the grounds cited by TYPOCO do not fall under any
of the instances enumerated in Section 6 of the Omnibus Election Code; 2. in refusing to
annul the election or the election results or to declare a failure of election despite the fact
that massive fraud and irregularities attended the preparation of the election returns; 3. in
failing to proclaim TYPOCO as the winning candidate for Governor; 4. in failing to annul
the proclamation of PIMENTEL which is null and void from the beginning; 5. in ruling that
an election protest is the proper remedy and not an annulment of the election or election
results and/or declaration of failure of elections.[4]
Simply stated, did the COMELEC commit grave abuse of discretion in not declaring a
failure of elections for the position of Governor in Camarines Norte in the May 11, 1998
elections?
In a Manifestation and Motion (In Lieu of Comment) filed by the Office of the Solicitor
General (OSG), the latter joins TYPOCOs prayer for affirmative relief. The OSG explains
thus:
13. The petition a quo (SPA No. 98-413) specifically prayed for annulment of election
returns and/or election results in the protested precincts where massive fraud and
irregularities were allegedly committed in the preparation of the election returns which,
upon technical examination of their authentic copies, were found to have been prepared in
groups by one person (Petition, Annex A, p.2).
14. On this score, it should be stressed that election returns are prepared separately and
independently by the Board of Election Inspectors assigned in each and every
precinct. Hence, uniformity in the handwritten entries in the election returns emanating
from different electoral precincts, as in this case speaks only of one thing --- THE
ELECTION RETURNS WERE FABRICATED OR TAMPERED WITH.
Here, the COMELEC itself, through its own Voters Identification Department, certified
that out of the 305 election returns in the 12 municipalities of Camarines Norte, 278 or
91.14% thereof were found to have been written by one person which fact lucidly speaks of
massive fraud in the preparation of election returns.
15. Precisely, massive fraud committed after the voting and during the preparation of the
election returns resulting in a failure to elect, is a ground for annulment of election under
Section 6 of the Omnibus Election Code. As such therefore, the case at bar falls within the
jurisdiction of COMELEC.
x x x x x x x x x.
18. At any rate, there is merit to petitioners claim that the votes in the subject election
returns, if correctly appreciated, will materially affect the results of the election for
Governor, i.e.,
TYPOCO PIMENTEL
Votes per PBC Canvass 53,454 64,358
Less: Votes obtained from
Fraudulent Returns 11,253 27,060
Difference 42,201 37,325
Vote Lead of Petitioner 4,876[5]
The authority of the COMELEC to declare a failure of elections is derived from Section 4 of
Republic Act No. 7166, otherwise known as, The Synchronized Elections Law of 1991,
which provides that the COMELEC sitting En Banc by a majority vote of its members may
decide, among others, the declaration of failure of election and the calling of special
elections as provided in Section 6 of the Omnibus Election Code. Said Section 6, in turn,
provides as follows:
Sec. 6. Failure of election. - If, on account of force majeure, violence, terrorism, fraud or
other analogous causes the election in any polling place has not been held on the date fixed
or had been suspended before the hour fixed by the law for the closing of the voting, or after
the voting and during the preparation and the transmission of the election returns or in the
custody or canvass thereof, such election results in a failure to elect, and in any of such
Commission shall, on the basis of verified petition by any interested party and after due
or which resulted in a failure to elect on a date reasonably close to the date of the election
not held, suspended or which resulted in a failure to elect but not later than thirty days
after the cessation of the cause of such postponement or suspension of the election or failure
to elect.
The same provision is reiterated under Section 2, Rule 26 of the Revised COMELEC Rules.
Based on the foregoing laws, the instant petition must fail because the allegations therein
do not justify a declaration of failure of election.
The COMELEC correctly pointed out that in the case of Mitmug vs. Commission on
Elections[6], this Court held that before COMELEC can act on a verified petition seeking to
declare a failure of election, two (2) conditions must concur: first, no voting has taken place
in the precincts concerned on the date fixed by law or, even if there was voting, the election
nevertheless resulted in a failure to elect; and second, the votes cast would affect the result
of the election. In Loong vs. Commission on Elections[7], this Court added that the cause of
such failure of election should have been any of the following:force majeure, violence,
terrorism, fraud of other analogous cases. Further, in Borja, Jr. vs. Commission on
Elections[8], we stated that:
The COMELEC can call for the holding or continuation of election by reason of failure of
election only when the election is not held, is suspended or results in a failure to elect. The
latter phrase, in turn, must be understood in its literal sense, which is nobody was elected.
Clearly then, there are only three (3) instances where a failure of election may be declared,
namely: (a) the election in any polling place has not been held on the date fixed on account
of force majeure, violence, terrorism, fraud, or other analogous causes; (b) the election in
any polling place had been suspended before the hour fixed by law for the closing of the
voting on account of force majeure, violence, terrorism, fraud or other analogous causes; (c)
after the voting and during the preparation and transmission of the election returns or in
the custody or canvass thereof, such election results in a failure to elect on account of force
majeure, violence, terrorism, fraud, or other analogous causes.[9] In all instances there
must have been failure to elect; this is obvious in the first scenario where the election was
not held and the second where the election was suspended. As to the third scenario, the
preparation and transmission of the election returns which give rise to the consequence of
failure to elect must as aforesaid be literally interpreted to mean that nobody emerged as a
winner.
None of these circumstances is present in the case at bar. While the OSG joins TYPOCO in
pinpointing anomalies in the preparation of the election returns due to the uniformity of
the handwriting in the same, implying that fraud was committed at that stage, the fact is
that the casting and counting of votes proceeded up to the proclamation of the winning
candidate thus precluding the declaration of a failure of election. While fraud is a ground to
declare a failure of election, the commission of fraud must be such that it prevented or
suspended the holding of an election including the preparation and transmission of the
election returns.[10]
It can thus readily be seen that the ground invoked by TYPOCO is not proper in a
declaration of failure of election. TYPOCOs relief was for COMELEC to order a recount of
the votes cast, on account of the falsified election returns, which is properly the subject of
an election contest.[11]
The COMELEC, therefore, had no choice but to dismiss TYPOCOs petition in accordance
with clear provisions of the law and jurisprudence.
WHEREFORE, finding no grave abuse of discretion committed by public respondent

Commission on Elections, the petition is DISMISSED and its Resolution En Banc of
October 12,1998 dismissing the petition before it on the ground that the allegations therein
do not justify a declaration of failure of election is AFFIRMED.
SO ORDERED.
Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 106270-73 February 10, 1994
SULTAN MOHAMAD L. MITMUG, petitioner,

vs.
COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF LUMBA-
BAYABAO, LANAO DEL SUR, and DATU GAMBAI DAGALANGIT, respondents.
Pimentel, Apostol, Layosa & Sibayan Law Office for petitioner.
Brillantes, Nachura, Navarro & Arcilla for private respondent.
BELLOSILLO, J.:
The turnout of voters during the 11 May 1992 election in Lumba-Bayabao, Lanao del Sur,
was abnormally low. As a result, several petitions were filed seeking the declaration of
failure of election in precincts where less than 25% of the electorate managed to cast their
votes. But a special election was ordered in precincts where no voting actually took place.
The Commission on Elections (COMELEC) ruled that for as long as the precincts
functioned and conducted actual voting during election day, low voter turnout would not
justify a declaration of failure of election. We are now called upon to review this ruling.
Petitioner SULTAN MOHAMAD L. MITMUG and private respondent DATU GAMBAI
DAGALANGIT were among the candidates for the mayoralty position of Lumba-Bayabao
during the 11 may 1992 election. There were sixty-seven (67) precincts in the municipality.
As was heretofore stated, voter turnout was rather low, particularly in forty-nine (49)
precincts where the average voter turnout was 22.26%, i.e., only 2,330 out of 9,830
registered voters therein cast their votes. Five (5) of these precincts did not conduct actual
voting at all.1
Consequently, COMELEC ordered the holding of a special election on 30 May 1992 in the
five (5) precincts which failed to function during election day. On 30 July 1992 another
special election was held for a sixth precinct.2
In the interim, petitioner filed a petition seeking the annulment of the special election
conducted on 30 May 1992 alleging various irregularities such as the alteration, tampering
and substitution of ballots. But on 13 July 1992, COMELEC considered the petition moot
since the votes in the subject precincts were already counted.3
Other petitions seeking the declaration of failure of election in some or all precincts of
Lumba-Bayabao were also filed with COMELEC by other mayoralty candidates, to wit:
1. SPA No. 92-324: On 6 June 1992, private respondent Datu Gamba Dagalangit filed an
urgent petition praying for the holding of a special election in Precinct No. 22-A alleging
therein that when the ballot box was opened, ballots were already torn to pieces. On 14 July
1992, the petition was granted and a special election for Precinct No. 22-A was set for 25
July 1992.4
2. SPC No. 92-336: On 16 June 19992, Datu Elias Abdusalam, another mayoralty
candidate, filed a petition to declare failure of election in twenty-nine (29) more precincts as
a result of alleged tampering of ballots5 and clustering of precincts.6 On 16 July 1992, the
petition was dismissed. COMELEC ruled that there must be a situation where there is
absolute inability to vote before a failure of election can be declared.7 Since voting was
actually conducted in the contested precincts, there was no basis for the petition.
3. SPA No 92-368: On 20 June 1992, private respondent filed another petition, this time
seeking to exclude from the counting the ballots cast in six (6) precincts on the ground that
the integrity of the ballot boxes therein was violated.8Again, on 14 July 1992, COMELEC
considered the petition moot, as the issue raised therein was related to that of SPA No. 92-
311 which on 9 July 1992 was already set aside as moot.9
4. SPA No. 92-347: On 1 July 1992, Datu Bagato Khalid Lonta, a fourth mayoralty
candidate, filed a petition which in the main sought the declaration of failure of election in
all sixty-seven (67) precincts of
Lumba-Bayabao, Lanao del Sur, on the ground of massive disenfranchisement of
voters. 10 On 9 July 1992, COMELEC dismissed the petition, ruling that the allegations
therein did not support a case of failure of election.11
On 8 July 1992, petitioner filed a motion to intervene in these four (4) petitions. 12 But
COMELEC treated the same as a motion for reconsideration and promptly denied it
considering that under the COMELEC Rules of Procedure such motion was a prohibited
pleading. 13
Thereafter, a new board of Election Inspectors was formed to conduct the special election
set for 25 July 1992. Petitioner impugned the creation of this Board. Nevertheless, on 30
July 1992, the new Board convened and began the canvassing of votes. Finally, on 31 July
1992, private respondent was proclaimed the duly elected Mayor of Lumba-Bayabao, Lanao
del Sur.
On 3 August 1992, petitioner instituted the instant proceedings seeking the declaration of
failure of election in forty-nine (49) precincts where less than a quarter of the electorate
were able to cast their votes. He also prayed for the issuance of a temporary restraining
order to enjoin private respondent from assuming office.
On 10 August 1992, petitioner lodged an election protest with the Regional trial Court of
Lanao del Sur disputing the result not only of some but all the precincts of Lumba-Bayabao,
del Sur. 14
Respondents, on the other hand, assert that with the filing of an election protest, petitioner
is already deemed to have abandoned the instant petition.
It may be noted that when petitioner filed his election protest with the Regional Trial Court
of Lanao del Sur, he informed the trial court of the pendency of these proceedings.
Paragraph 3 of his protest states "[T]hat on August 3, 1992, your protestant filed a Petition
for Certiorari with the
Supreme Court . . . docketed as G.R. No. 106270 assailing the validity of the proclamation
of the herein protestee. . . ." 15 Evidently, petitioner did not intend to abandon his recourse
with this Court. On the contrary, he intended to pursue it. Where only an election
protest ex abundante ad cautela is filed, the Court retains jurisdiction to hear the petition
seeking to annul an election. 16
The main issue is whether respondent COMELEC acted with grave abuse of discretion
amounting to lack of jurisdiction in denying motu proprio and without due notice and
hearing the petitions seeking to declare a failure of election in some or all of the precincts in
Lumba-Bayabao, Lanao del Sur. After all, petitioner argues, he has meritorious grounds in
support thereto, viz., the massive disenfranchisement of voters due to alleged terrorism and
unlawful clustering of precincts, which COMELEC should have at least heard before
rendering its judgment.
Incidentally, a petition to annul an election is not a pre-proclamation controversy.
Consequently, the proclamation of a winning candidate together with his subsequent
assumption of office is not an impediment to the prosecution of the case to its logical
conclusion.17
Under the COMELEC Rules of Procedure, within twenty-four (24) hours from the filing of a
verified petition to declare a failure to elect, notices to all interested parties indicating
therein the date of hearing should be served through the fastest means available. 18 The
hearing of the case will also be summary in nature.19
Based on the foregoing, the clear intent of the law is that a petition of this nature must be
acted upon with dispatch only after hearing thereon shall have been conducted. Since
COMELEC denied the other petitions 20 which sought to include forty-three (43) more
precincts in a special election without conducting any hearing, it would appear then that
there indeed might have been grave abuse of discretion in denying the petitions.
However, a closer examination of the COMELEC Rules of Procedure, particularly Sec. 2,

Rule 26, thereof which was lifted from Sec. 6, B.P. 881, otherwise known as the Omnibus
Election Code of the Philippines, indicates otherwise. It reads —
Sec. 2. Failure of election. — If, on account of force majeure, violence, terrorism, fraud or
other analogous causes the election in any precinct has not been held on the date fixed, or
had been suspended before the hour fixed by law for the closing of the voting, or after the
custody of canvass thereof, such election results in a failure to elect, and in any of such
not held, suspended or which resulted in a failure to elect but not later than thirty (30) days
to elect.
Before COMELEC can act on a verified petition seeking to declare a failure of election, two
(2) conditions must concur: first, no voting has taken place in the precinct or precincts on
the date fixed by law or, even if there was voting, the election nevertheless results in failure
to elect; and, second, the votes not cast would affect the result of the election. 21
In the case before us, it is indubitable that the votes not cast will definitely affect the
outcome of the election. But, the first requisite is missing, i.e., that no actual voting took
place, or even if there is, the results thereon will be tantamount to a failure to elect. Since
actual voting and election by the registered voters in the questioned precincts have taken
place, the results thereof cannot be disregarded and excluded. 22 COMELEC therefore did
not commit any abuse of discretion, much less grave, in denying the petitions outright.
There was no basis for the petitions since the facts alleged therein did not constitute
sufficient grounds to warrant the relief sought. For, the language of the law expressly
requires the concurrence of these conditions to justify the calling of a special election. 23
Indeed, the fact that a verified petition is filed does not automatically mean that a hearing
on the case will be held before COMELEC will act on it. The verified petition must still
show on its face that the conditions to declare a failure to elect are present. In the absence
thereof, the petition must be denied outright.
Considering that there is no concurrence of the two (2) conditions in the petitions seeking to
declare failure of election in forty-three (43) more, precincts, there is no more need to
receive evidence on alleged election irregularities.
Instead, the question of whether there have been terrorism and other irregularities is
better ventilated in an election contest. These irregularities may not as a rule be invoked to
declare a failure of election and to disenfranchise the electorate through the misdeeds of a
relative few. 24 Otherwise, elections will never be carried out with the resultant
disenfranchisement of innocent voters as losers will always cry fraud and terrorism.
There can be failure of election in a political unit only if the will of the majority has been
defiled and cannot be ascertained. But, if it can be determined, it must be accorded respect.
After all, there is no provision in our election laws which requires that a majority of
registered voters must cast their votes. All the law requires is that a winning candidate
must be elected by a plurality of valid votes, regardless of the actual number of ballots
cast. 25 Thus, even if less than 25% of the electorate in the questioned precincts cast their
votes, the same must still be respected. There is prima facie showing that private
respondent was elected through a plurality of valid votes of a valid constituency.
WHEREFORE, there being no grave abuse of discretion, the Petition for Certiorari is
DISMISSED.
SO ORDERED.
Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 106270-73 February 10, 1994

SULTAN MOHAMAD L. MITMUG, petitioner,
vs.
COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF LUMBA-
BAYABAO, LANAO DEL SUR, and DATU GAMBAI DAGALANGIT, respondents.
Pimentel, Apostol, Layosa & Sibayan Law Office for petitioner.
Brillantes, Nachura, Navarro & Arcilla for private respondent.
BELLOSILLO, J.:
The turnout of voters during the 11 May 1992 election in Lumba-Bayabao, Lanao del Sur,
was abnormally low. As a result, several petitions were filed seeking the declaration of
failure of election in precincts where less than 25% of the electorate managed to cast their
votes. But a special election was ordered in precincts where no voting actually took place.
The Commission on Elections (COMELEC) ruled that for as long as the precincts
functioned and conducted actual voting during election day, low voter turnout would not
justify a declaration of failure of election. We are now called upon to review this ruling.
Petitioner SULTAN MOHAMAD L. MITMUG and private respondent DATU GAMBAI

DAGALANGIT were among the candidates for the mayoralty position of Lumba-Bayabao
during the 11 may 1992 election. There were sixty-seven (67) precincts in the municipality.
As was heretofore stated, voter turnout was rather low, particularly in forty-nine (49)
precincts where the average voter turnout was 22.26%, i.e., only 2,330 out of 9,830
registered voters therein cast their votes. Five (5) of these precincts did not conduct actual
voting at all.1
Consequently, COMELEC ordered the holding of a special election on 30 May 1992 in the
five (5) precincts which failed to function during election day. On 30 July 1992 another
special election was held for a sixth precinct.2
In the interim, petitioner filed a petition seeking the annulment of the special election
conducted on 30 May 1992 alleging various irregularities such as the alteration, tampering
and substitution of ballots. But on 13 July 1992, COMELEC considered the petition moot
since the votes in the subject precincts were already counted.3
Other petitions seeking the declaration of failure of election in some or all precincts of
Lumba-Bayabao were also filed with COMELEC by other mayoralty candidates, to wit:
1. SPA No. 92-324: On 6 June 1992, private respondent Datu Gamba Dagalangit filed an
urgent petition praying for the holding of a special election in Precinct No. 22-A alleging
therein that when the ballot box was opened, ballots were already torn to pieces. On 14 July
1992, the petition was granted and a special election for Precinct No. 22-A was set for 25
July 1992.4
2. SPC No. 92-336: On 16 June 19992, Datu Elias Abdusalam, another mayoralty
candidate, filed a petition to declare failure of election in twenty-nine (29) more precincts as
a result of alleged tampering of ballots5 and clustering of precincts.6 On 16 July 1992, the
petition was dismissed. COMELEC ruled that there must be a situation where there is
absolute inability to vote before a failure of election can be declared.7 Since voting was
actually conducted in the contested precincts, there was no basis for the petition.
3. SPA No 92-368: On 20 June 1992, private respondent filed another petition, this time
seeking to exclude from the counting the ballots cast in six (6) precincts on the ground that
the integrity of the ballot boxes therein was violated.8Again, on 14 July 1992, COMELEC
considered the petition moot, as the issue raised therein was related to that of SPA No. 92-
311 which on 9 July 1992 was already set aside as moot.9
4. SPA No. 92-347: On 1 July 1992, Datu Bagato Khalid Lonta, a fourth mayoralty
candidate, filed a petition which in the main sought the declaration of failure of election in
all sixty-seven (67) precincts of
Lumba-Bayabao, Lanao del Sur, on the ground of massive disenfranchisement of
voters. 10 On 9 July 1992, COMELEC dismissed the petition, ruling that the allegations
therein did not support a case of failure of election.11
On 8 July 1992, petitioner filed a motion to intervene in these four (4) petitions. 12 But
COMELEC treated the same as a motion for reconsideration and promptly denied it
considering that under the COMELEC Rules of Procedure such motion was a prohibited
pleading. 13
Thereafter, a new board of Election Inspectors was formed to conduct the special election
set for 25 July 1992. Petitioner impugned the creation of this Board. Nevertheless, on 30
July 1992, the new Board convened and began the canvassing of votes. Finally, on 31 July
1992, private respondent was proclaimed the duly elected Mayor of Lumba-Bayabao, Lanao
del Sur.
On 3 August 1992, petitioner instituted the instant proceedings seeking the declaration of
failure of election in forty-nine (49) precincts where less than a quarter of the electorate
were able to cast their votes. He also prayed for the issuance of a temporary restraining
order to enjoin private respondent from assuming office.
On 10 August 1992, petitioner lodged an election protest with the Regional trial Court of
Lanao del Sur disputing the result not only of some but all the precincts of Lumba-Bayabao,
del Sur. 14
Respondents, on the other hand, assert that with the filing of an election protest, petitioner
is already deemed to have abandoned the instant petition.
It may be noted that when petitioner filed his election protest with the Regional Trial Court
of Lanao del Sur, he informed the trial court of the pendency of these proceedings.
Paragraph 3 of his protest states "[T]hat on August 3, 1992, your protestant filed a Petition
for Certiorari with the
Supreme Court . . . docketed as G.R. No. 106270 assailing the validity of the proclamation
of the herein protestee. . . ." 15 Evidently, petitioner did not intend to abandon his recourse
with this Court. On the contrary, he intended to pursue it. Where only an election
protest ex abundante ad cautela is filed, the Court retains jurisdiction to hear the petition
seeking to annul an election. 16
The main issue is whether respondent COMELEC acted with grave abuse of discretion
amounting to lack of jurisdiction in denying motu proprio and without due notice and
hearing the petitions seeking to declare a failure of election in some or all of the precincts in
Lumba-Bayabao, Lanao del Sur. After all, petitioner argues, he has meritorious grounds in
support thereto, viz., the massive disenfranchisement of voters due to alleged terrorism and
unlawful clustering of precincts, which COMELEC should have at least heard before
rendering its judgment.
Incidentally, a petition to annul an election is not a pre-proclamation controversy.

Consequently, the proclamation of a winning candidate together with his subsequent
assumption of office is not an impediment to the prosecution of the case to its logical
conclusion.17
Under the COMELEC Rules of Procedure, within twenty-four (24) hours from the filing of a
verified petition to declare a failure to elect, notices to all interested parties indicating
therein the date of hearing should be served through the fastest means available. 18 The
hearing of the case will also be summary in nature.19
Based on the foregoing, the clear intent of the law is that a petition of this nature must be
acted upon with dispatch only after hearing thereon shall have been conducted. Since
COMELEC denied the other petitions 20 which sought to include forty-three (43) more
precincts in a special election without conducting any hearing, it would appear then that
there indeed might have been grave abuse of discretion in denying the petitions.
However, a closer examination of the COMELEC Rules of Procedure, particularly Sec. 2,

Rule 26, thereof which was lifted from Sec. 6, B.P. 881, otherwise known as the Omnibus
Election Code of the Philippines, indicates otherwise. It reads —
Sec. 2. Failure of election. — If, on account of force majeure, violence, terrorism, fraud or
other analogous causes the election in any precinct has not been held on the date fixed, or
had been suspended before the hour fixed by law for the closing of the voting, or after the
custody of canvass thereof, such election results in a failure to elect, and in any of such
not held, suspended or which resulted in a failure to elect but not later than thirty (30) days
to elect.
Before COMELEC can act on a verified petition seeking to declare a failure of election, two
(2) conditions must concur: first, no voting has taken place in the precinct or precincts on
the date fixed by law or, even if there was voting, the election nevertheless results in failure
to elect; and, second, the votes not cast would affect the result of the election. 21
In the case before us, it is indubitable that the votes not cast will definitely affect the
outcome of the election. But, the first requisite is missing, i.e., that no actual voting took
place, or even if there is, the results thereon will be tantamount to a failure to elect. Since
actual voting and election by the registered voters in the questioned precincts have taken
place, the results thereof cannot be disregarded and excluded. 22 COMELEC therefore did
not commit any abuse of discretion, much less grave, in denying the petitions outright.
There was no basis for the petitions since the facts alleged therein did not constitute
sufficient grounds to warrant the relief sought. For, the language of the law expressly
requires the concurrence of these conditions to justify the calling of a special election. 23
Indeed, the fact that a verified petition is filed does not automatically mean that a hearing
on the case will be held before COMELEC will act on it. The verified petition must still
show on its face that the conditions to declare a failure to elect are present. In the absence
thereof, the petition must be denied outright.
Considering that there is no concurrence of the two (2) conditions in the petitions seeking to
declare failure of election in forty-three (43) more, precincts, there is no more need to
receive evidence on alleged election irregularities.
Instead, the question of whether there have been terrorism and other irregularities is
better ventilated in an election contest. These irregularities may not as a rule be invoked to
declare a failure of election and to disenfranchise the electorate through the misdeeds of a
relative few. 24 Otherwise, elections will never be carried out with the resultant
disenfranchisement of innocent voters as losers will always cry fraud and terrorism.
There can be failure of election in a political unit only if the will of the majority has been
defiled and cannot be ascertained. But, if it can be determined, it must be accorded respect.
After all, there is no provision in our election laws which requires that a majority of
registered voters must cast their votes. All the law requires is that a winning candidate
must be elected by a plurality of valid votes, regardless of the actual number of ballots
cast. 25 Thus, even if less than 25% of the electorate in the questioned precincts cast their
votes, the same must still be respected. There is prima facie showing that private
respondent was elected through a plurality of valid votes of a valid constituency.
WHEREFORE, there being no grave abuse of discretion, the Petition for Certiorari is
DISMISSED.
SO ORDERED.
Sunday, June 24, 2012
Magno vs. CA (Crim1)
Oriel Magno, petitioner, vs. Honorable Court of Appeals and People of the Philippines,
respondents.
June 26, 1992
Paras, J:
Facts:
Oriel Magno, lacking fund in acquiring complete set of equipment to make his car repair
shop operational, approached Corazon Teng, Vice President of Mancor Industries.
VP Teng referred Magno to LS Finance and Management Corporation, advising its Vice
President, Joey Gomez, that Mancor was willing to supply the pieces of equipment needed if
LS Finance could accommodate Magno and and provide him credit facilities.
The arrangement went on requiring Magno to pay 30% of the total amount of the
equipment as warranty deposit but Magno couldn't afford to pay so he requested VP Gomez
to look for third party who could lend him that amount.
Without Magno's knowledge, Corazon was the one who provided that amount.
As payment to the equipment, Magno issued six checks, two of them were cleared and the
rest had no sufficient fund.
Because of the unsuccessful venture, Magno failed to pay LS Finance which then pulled out
the equipment.
Magno was charged of violation of BP Blg. 2 (The Bouncing Checks Law) and found guilty.
Issue:
Whether or not Magno should be punished for the issuance of the checks in question.
Held:
No
Ratio:
To charge Magno for the refund of a warranty deposit which he did not withdraw as it was
not his own account, it having remained with LS Finance, is to even make him pay an
unjust debt since he did not receive the amount in question. All the while, said amount was
in the safekeeping of the financing company which is managed by the officials and
employees of LS Finance.
[G.R. No. 148326. November 15, 2001]
PABLO C. VILLABER, petitioner, vs. COMMISSION ON ELECTIONS and REP.

DOUGLAS R. CAGAS, respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
In this petition for certiorari, Pablo C. Villaber, petitioner, seeks the nullification of two
Resolutions of the Commission on Elections (COMELEC) in SPA-01-058. The first one was
issued by its Second Division on April 30, 2001, disqualifying him as a candidate for the
position of Congressman in the First District of the Province of Davao del Sur in the last
May 14, 2001 elections, and cancelling his certificate of candidacy; and the second is the en
banc Resolution dated May 10, 2001 denying his motion for reconsideration.
Both petitioner Villaber and respondent Douglas R. Cagas were rival candidates for a
congressional seat in the First District of Davao del Sur during the May 14, 2001
elections. Villaber filed his certificate of candidacy for Congressman on February 19,
2001,[1] while Cagas filed his on February 28, 2001.[2]
On March 4, 2001, Cagas filed with the Office of the Provincial Election Supervisor,
Commission On Elections (COMELEC), Davao del Sur, a consolidated petition[3] to
disqualify Villaber and to cancel the latters certificate of candidacy. Cagas alleged in the
said consolidated petition that on March 2, 1990, Villaber was convicted by the Regional
Trial Court of Manila, Branch 15, in Criminal Case No. 86-46197 for violation of Batas
Pambansa Blg. 22 and was sentenced to suffer one (1) year imprisonment. The check that
bounced was in the sum of P100,000.00.[4] Cagas further alleged that this crime involves
moral turpitude; hence, under Section 12 of the Omnibus Election Code, he is disqualified
to run for any public office. On appeal, the Court of Appeals (Tenth Division), in its Decision
dated April 23, 1992 in CA-G.R. CR No. 09017,[5] affirmed the RTC Decision. Undaunted,
Villaber filed with this Court a petition for review on certiorari assailing the Court of
Appeals Decision, docketed as G.R. No. 106709.However, in its Resolution[6] of October 26,
1992, this Court (Third Division) dismissed the petition. On February 2, 1993, our
Resolution became final and executory.[7] Cagas also asserted that Villaber made a false
material representation in his certificate of candidacy that he is Eligible for the office I seek
to be elected which false statement is a ground to deny due course or cancel the said
certificate pursuant to Section 78 of the Omnibus Election Code.
In his answer[8] to the disqualification suit, Villaber countered mainly that his conviction
has not become final and executory because the affirmed Decision was not remanded to the
trial court for promulgation in his presence.[9] Furthermore, even if the judgment of
conviction was already final and executory, it cannot be the basis for his disqualification
since violation of B.P. Blg. 22 does not involve moral turpitude.
After the opposing parties submitted their respective position papers, the case was
forwarded to the COMELEC, Manila, for resolution.
On April 30, 2001, the COMELEC (Second Division), finding merit in Cagas petition, issued
the challenged Resolution[10] in SPA 01-058 declaring Villaber disqualified as a candidate
for and from holding any elective public office and canceling his certificate of
candidacy. The COMELEC ruled that a conviction for violation of B.P Blg. 22 involves
moral turpitude following the ruling of this Court en banc in the administrative case
of People vs. Atty. Fe Tuanda.[11]
Villaber filed a motion for reconsideration but was denied by the COMELEC en banc in a
Resolution[12] dated May 10, 2001.
Hence, this petition.
The sole issue for our Resolution is whether or not violation of B.P. Blg. 22 involves moral
turpitude.
The COMELEC believes it is. In disqualifying petitioner Villaber from being a candidate for
Congressman, the COMELEC applied Section 12 of the Omnibus Election Code which
provides:
Sec. 12. Disqualifications. - Any person who has been declared by competent authority
insane or incompetent, or has been sentenced by final judgment for subversion,
insurrection, rebellion, or for any offense for which he has been sentenced to a penalty of
more than eighteen months, or for a crime involving moral turpitude, shall be disqualified
to be a candidate and to hold any office, unless he has been given plenary pardon or granted
amnesty.
The disqualifications to be a candidate herein provided shall be deemed removed upon the
declaration by competent authority that said insanity or incompetence had been removed or
after the expiration of a period of five years from his service of sentence, unless within the
same period he again becomes disqualified. (Emphasis ours)
As to the meaning of moral turpitude, we have consistently adopted the definition in Blacks
Law Dictionary as an act of baseness, vileness, or depravity in the private duties which a
man owes his fellow men, or to society in general, contrary to the accepted and customary
rule of right and duty between man and woman, or conduct contrary to justice, honesty,
modesty, or good morals.[13]
In In re Vinzon,[14] the term moral turpitude is considered as encompassing everything

which is done contrary to justice, honesty, or good morals.
We, however, clarified in Dela Torre vs. Commission on Elections[15] that not every
criminal act involves moral turpitude, and that as to what crime involves moral turpitude is
for the Supreme Court to determine.[16] We further pronounced therein that:
in International Rice Research Institute vs. NLRC (221 SCRA 760 [1993]), the Court
admitted that it cannot always be ascertained whether moral turpitude does or does not
exist by merely classifying a crime as malum in se or as malum prohibitum. There are
crimes which are mala in se and yet but rarely involve moral turpitude, and there are
crimes which involve moral turpitude and are mala prohibita only. In the final analysis,
whether or not a crime involves moral turpitude is ultimately a question of fact and
frequently depends on all the circumstances surrounding the violation of the
statute.(Emphasis ours)
We reiterate here our ruling in Dela Torre[17] that the determination of whether a crime
involves moral turpitude is a question of fact and frequently depends on all the
circumstances surrounding the violation of the statute.
In the case at bar, petitioner does not assail the facts and circumstances surrounding the
commission of the crime. In effect, he admits all the elements of the crime for which he was
convicted. At any rate, the question of whether or not the crime involves moral turpitude
can be resolved by analyzing its elements alone, as we did in Dela Torre which involves the
crime of fencing punishable by a special law.[18]
Petitioner was charged for violating B.P. Blg. 22 under the following Information:
That on or about February 13, 1986, in the City of Manila, Philippines, the said accused did
then and there willfully, unlawfully and feloniously make or draw and issue to Efren D.
Sawal to apply on account or for value Bank of Philippine Islands (Plaza Cervantes,
Manila) Check No. 958214 dated February 13, 1986 payable to Efren D. Sawal in the
amount of P100,000.00, said accused well knowing that at the time of issue he did not have
sufficient funds in or credit with the drawee bank for payment of such check in full upon its
presentment, which check, when presented for payment within ninety (90) days from the
date thereof, was subsequently dishonored by the drawee bank for insufficiency of funds,
and despite receipt of notice of such dishonor, said accused failed to pay said Efren D.
Sawal the amount of said check or to make arrangement for full payment of the same
within five (5) banking days after receiving said notice. (Emphasis ours)
He was convicted for violating Section 1 of B.P. Blg. 22 which provides:
SECTION 1. Checks without sufficient funds. - Any person who makes or draws and issues
any check to apply on account or for value, knowing at the time of issue that he does not
have sufficient funds in or credit with the drawee bank for the payment of such check in full
upon its presentment, which check is subsequently dishonored by the drawee bank for
insufficiency of funds or credit or would have been dishonored for the same reason had not
the drawer, without any valid reason, ordered the bank to stop payment, shall be punished
by imprisonment of not less than thirty days but not more than one (1) year or by a fine of
not less than but not more than double the amount of the check which fine shall in no case
exceed Two Hundred Thousand Pesos, or both such fine and imprisonment at the discretion
of the court. (Emphasis ours).
The elements of the offense under the above provision are:
1. The accused makes, draws or issues any check to apply to account or for value;
2. The accused knows at the time of the issuance that he or she does not have sufficient
funds in, or credit with, the drawee bank for the payment of the check in full upon its
presentment; and
3. The check is subsequently dishonored by the drawee bank for insufficiency of funds or
credit, or it would have been dishonored for the same reason had not the drawer, without
any valid reason, ordered the bank to stop payment.[19]
The presence of the second element manifests moral turpitude. In People vs. Atty. Fe
Tuanda[20] we held that a conviction for violation of B.P. Blg. 22 imports deceit and
certainly relates to and affects the good moral character of a person.[21] The effects of the
issuance of a worthless check, as we held in the landmark case of Lozano vs.
Martinez,[22] through Justice Pedro L. Yap, transcends the private interests of the parties
directly involved in the transaction and touches the interests of the community at
large. The mischief it creates is not only a wrong to the payee or holder, but also an injury
to the public since the circulation of valueless commercial papers can very well pollute the
channels of trade and commerce, injure the banking system and eventually hurt the welfare
of society and the public interest.[23]Thus, paraphrasing Blacks definition, a drawer who
issues an unfunded check deliberately reneges on his private duties he owes his fellow men
or society in a manner contrary to accepted and customary rule of right and duty, justice,
honesty or good morals.
Petitioner contends that this Courts pronouncement in People v. Atty. Fe
Tuanda,[24] insofar as it states that conviction under B.P. Blg. 22 involves moral turpitude,
does not apply to him since he is not a lawyer.
This argument is erroneous.
In that case, the Court of Appeals affirmed Atty. Fe Tuandas conviction for violation of B.P.
Blg. 22 and, in addition, suspended her from the practice of law pursuant to Sections 27
and 28 of Rule 138 of the Revised Rules of Court. Her motion seeking the lifting of her
suspension was denied by this Court on the ground that the said offense involves moral
turpitude. There we said in part:
We should add that the crimes of which respondent was convicted also import deceit and
violation of her attorneys oath and the Code of Professional Responsibility, under both of
which she was bound to obey the laws of the land. Conviction of a crime involving moral
turpitude might not (as in the instant case, violation of B.P. Blg. 22 does not) relate to the
exercise of the profession of a lawyer; however, it certainly relates to and affects the good
moral character of a person convicted of such offense. x x x.[25] (Emphasis ours)
Clearly, in Tuanda, this Court did not make a distinction whether the offender is a lawyer
or a non-lawyer. Nor did it declare that such offense constitutes moral turpitude when
committed by a member of the Bar but is not so when committed by a non-member.
We cannot go along with petitioners contention that this Courts ruling in Tuanda has been
abandoned or modified in the recent case of Rosa Lim vs. People of the
Philippines,[26] which reiterated the ruling in Vaca vs. Court of Appeals.[27] In these two
latter cases, the penalty of imprisonment imposed on the accused for violation of B.P. Blg.
22 was deleted by this Court. Only a fine was imposed.Petitioner insists that with the
deletion of the prison sentence, the offense no longer involves moral turpitude. We made no
such pronouncement. This is what we said in Rosa Lim:
In Vaca v. Court of Appeals, we held that in determining the penalty to be imposed for
violation of B.P. Blg. 22, the philosophy underlying the Indeterminate Sentence Law
applies. The philosophy is to redeem valuable human material, and to prevent unnecessary
deprivation of personal liberty and economic usefulness with due regard to the protection of
the social order. There we deleted the prison sentence imposed on petitioners. We imposed
on them only a fine double the amount of the check issued. We considered the fact that
petitioners brought the appeal, believing in good faith, that no violation of B.P. Blg. 22 was
committed, otherwise, they would have simply accepted the judgment of the trial court and
applied for probation to evade prison term. We do the same here. We believe such would
best serve the ends of criminal justice.
In fine, we find no grave abuse of discretion committed by respondent COMELEC in issuing

the assailed Resolutions.
WHEREFORE, the petition is DISMISSED. Costs against petitioner.
SO ORDERED.
FACTS: Respondent Fe T. Tuanda, a member of the Philippine Bar, asks this Court to lift
the suspension from the practice of law imposed upon her by a decision of the Court of
Appeals. In 1983, Atty. Fe Tuanda received from one Herminia A. Marquez several pieces of
jewelry with a total value of P36,000 for sale on commission basis. In 1984, instead of
returning the unsold pieces of jewelry worth P26,250, she issued 3 checks. These checks
were dishonored by the drawee bank, Traders Royal Bank, for insufficiency of funds.
Notwithstanding receipt of the notice of dishonor, Tuanda made no effort to settle her
obligation. Criminal cases were filed, wherein she was acquitted of estafa but was found
guilty of violation of BP 22 (The Anti-Bouncing CheckLaw). The appellate court affirmed
the decision of the trial court and imposed further suspension against Tuanda in the
practice of law, on the ground that the offense involves moral turpitude. Tuanda is now
appealing to the Supreme Court for her suspension to be lifted arguing that her suspension
was a penalty so harsh on top of the fines imposed to her in violation of the aforementioned
law. Arguing further that she intends no damage to the plaintiff-appellee (Herminia A.
Marquez)and she is not guilty of the offense charged.
ISSUE: Whether or not the suspension of Atty. Tuanda be lifted.
HELD: NO. The Court of Appeals correctly ruled that "the offense [of] which she is found
guilty involved moral turpitude. Sections 27 and 28 of Rule 138 of the Revised Rules
of Court provide as follows:
Sec. 27. Attorneys renewed or suspended by Supreme Court on what grounds. A member of
the bar may be removed or suspended from his office as attorney by the Supreme Court of
any deceit, malpractice, or other gross misconduct in such office, grossly
immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for
any violation of the oath which he is required to take before admission to practice, or for a
wilful disobedience of any lawful order of a superior court, or for corruptly or wilfully
appearing as an attorney for a party to a case without authorityso to do. The practice of
soliciting cases at law for the purpose of gain, either personally or through paid agents or
brokers, constitutes malpractice. (Italics supplied)
Sec. 28. Suspension of attorney by the Court of Appeals or a Court of First Instance. —
The Court of Appeals or a Court of First Instance may suspend an attorney from practice
for any of the causes named in the last preceding section, and after such suspension such
attorney shall not practice his profession until further action of the Supreme Court in the
premises.
Conviction of a crime involving moral turpitude relates to and affects the good moral
character of a person convicted of such offense. Herein, BP 22 violation is a serious criminal
offense which deleteriously affects public interest and public order. The effects of the
issuance of a worthless check transcends the private interest of parties directly involved in
the transaction and touches the interest of the community at large. Putting valueless
commercial papers in circulation, multiplied a thousand fold, can very well pollute the
channels of trade and commerce, injure the banking system and eventually hurt the welfare
of society and the public interest. The crimes of which respondent was convicted also import
deceit and violation of her attorney's oath and the Code of Professional Responsibility under
both of which she was bound to "obey the laws of the land."
ACCORDINGLY, the Court Resolved to DENY the Motion to Lift Order of Suspension.
Respondent shall remain suspended from the practice of law until further orders from
this Court.
Facts:
Comelec denied petitioner’s request to substitute her deceased husband in the Barangay
Chairman Candidacy despite the fact that petitioner apparently garnered the highest votes
when constituents wrote her name in the ballots. Respondents cited resolution 4801 and
Section 7 of the Omnibus Election Code which prohibits substitution of candidates. Private
respondent Placido contended that it was only right that he be proclaimed winner since he
was the only one who filed a certificate of candidacy and, hence, the only candidate
running.
Issue:
Whether or not there was grave abuse of discretion when Comelec denied petitioner’s
request that she be allowed to run for elections.
Ruling:
There being no specific provision governing substitution of candidates in barangay

elections, a prohibition against said substitution cannot be said to exist.
Petitioner’s letter-request was considered a certificate of candidacy when COMELEC issued

its resolution denying the same. In the contested election, it was petitioner who obtained
the plurality of votes. Technicalities and procedural niceties in election cases should not be
made to stand in the way of the true will of the electorate. Laws governing election contests
must be liberally construed to the end that the will of the people in the choice of public
officials may not be defeated by mere technical objections.
DECISION
PERALTA, J.:
This is a petition for certiorari[1] alleging that the First Division of the Commission on
Elections (COMELEC) committed grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing the Orders dated November 25, 2008 and January 9, 2009. The
Order[2] dated November 25, 2008 dismissed petitioners appeal for failure to pay the
appeal fee prescribed by the COMELEC Rules of Procedure within the reglementary
period. The Order[3] dated January 9, 2009 denied petitioners motion for reconsideration.
The facts are as follows:
Petitioner Carmelinda C. Barro and private respondent Elpedio P. Continedas, Jr. were
candidates for Punong Barangay of Barangay Plaridel, Palompon, Leyte during the October
29, 2007 synchronized Barangay and Sangguniang Kabataan Elections. Petitioner garnered
150 votes, while respondent garnered 149 votes. The Barangay Board of Canvassers
proclaimed petitioner as the duly elected Punong Barangay, winning by a margin of only
one vote.
On November 5, 2007, private respondent filed an election protest before the Municipal
Trial Court of Palompon, Leyte (trial court), impugning the result of the canvass in two
precincts of the barangay.
After the revision of ballots, the trial court found that petitioner and respondent both
garnered 151 votes.
In its Decision[4] dated May 5, 2008, the trial court held:
In sum, the Protestant is credited with three (3) votes and the Protestee with two (2) votes
of the contested votes.
The three (3) credited votes added to the 148 votes of the protestant equals 151 votes. The
two (2) credited votes added to the 149 votes of the protestee equals 151 votes. The
protestant and the protestee, therefore, received the same number of votes.
It appearing that the Protestant and the Protestee received the same number of votes for
the position of Barangay Chairman of Brgy. Plaridel, Palompon, Leyte, there shall be a
drawing of lots and the party favored by luck shall be proclaimed as the duly-elected
Barangay Chairman of Barangay Plaridel, Palompon, Leyte.[5]
On May 13, 2008, petitioner filed a Notice of Appeal[6] with the trial court and she stated in
her petition that she also paid the appeal fee required under Section 9, Rule 14 of the Rules
of Procedure in Election Contests Before the Courts Involving Elective Municipal and
Barangay Officials (A.M. No. 07-4-15-SC).[7] Thereafter, the records of the case were
forwarded to the COMELEC.
On November 25, 2008, the First Division of the COMELEC issued an Order dismissing
petitioners appeal for failure to pay the appeal fee, thus:
Pursuant to Sections 3 and 4, Rule 40 of the COMELEC Rules of Procedure which provide
for the payment of appeal fee in the amount of P3,000.00 within the period to file the notice
of appeal, and Section 9 (a), Rule 22 of the same Rules, which provides that failure to pay
the correct appeal fee is a ground for the dismissal of the appeal, the Commission (First
Division) RESOLVED as it hereby RESOLVES to DISMISS the instant appeal for
Protestee-AppeIlant's failure to pay the appeal fee as prescribed by the Comelec Rules of
Procedure within the five (5)-day reglementary period.[8]
On December 15, 2008, petitioner filed a Motion for Reconsideration[9] of the Order
dated November 25, 2008. On the same date, she also posted Postal Money Order Nos.
A0820039317; B0810040373 and J1350301774 in the total sum of P3,200.00 payable to the
Cash Division of the COMELEC to cover the appeal fee.
Petitioners motion for reconsideration was denied by the First Division of the COMELEC in
its Order dated January 9, 2009, thus:
Protestee-Appellant's "Motion for Reconsideration" filed thru registered mail on 15

December 2008 and received on 23 December 2008, seeking reconsideration of the
Commission's (First Division) Order dated 25 November 2008, is hereby DENIED for
failure of the movant to pay the necessary motion fees under Sec. 7 (f), Rule 40 of the
Comelec Rules of Procedure as amended by Comelec Resolution No. 02-0130. The Judicial
Records Division-ECAD, this Commission, is hereby directed to return to the protestee-
appellant the Postal Money Order Nos. A0820039317 in the amount of two thousand pesos
(P2,000.00); B0810040373 in the amount of one thousand pesos (P1,000.00) and
J1350301774 in the amount of two hundred pesos (P200.00) representing his belated
payment of appeal fee.[10]
On February 19, 2009, petitioner filed this petition raising the following issues:
1. WHETHER OR NOT THE [FIRST DIVISION OF THE COMELEC] COMMITTED

GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN DISMISSING THE APPEAL.

JURISDICTION IN DENYING THE MOTION FOR RECONSIDERATION FILED BY
PETITIONER.
JURISDICTION IN ACTING ON THE MOTION FOR RECONSIDERATION WITHOUT
ELEVATING THE SAME TO THE COMELEC EN BANC.[11]
The first issue is whether or not the First Division of the COMELEC gravely abused its
discretion in dismissing petitioners appeal.
Grave abuse of discretion implies a capricious and whimsical exercise of

judgment amounting to lack of jurisdiction or an arbitrary and despotic exercise of power
because of passion or personal hostility.[12] 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.[13]
The Court notes that in petitioners Notice of Appeal,[14] she manifested payment of the
appeal fees and other lawful fees required for the appeal per Official Receipt Nos. 7719538
and 7719488. However, the receipts were not attached to the record of the case. In her
Petition, petitioner stated that when she filed her Notice of Appeal on May 13, 2008, she
also paid the appeal fee required under Section 9, Rule 14 of A.M. No. 07-4-15-SC.[15] In
her Reply,[16] petitioner also stated that she relied on the provision of Sections 8 and
9, Rule 14 of A.M. No. 07-4-15-SC,[17] which took effect on May 15, 2007, and that she
believed in good faith that the said new Rules of Procedure repealed the COMELEC Rules.
Based on petitioners pleadings and the fact that the trial court gave due course to
petitioners appeal, it may be presumed that petitioner paid the appeal fee of P1,000.00 to
the trial court simultaneously with the filing of the Notice of Appeal, despite absence of the
receipt showing payment of the appeal fee of P1,000.00.
Petitioner contends in her Reply[18] that the recent case of Jerry B. Aguilar v. Commission
on Elections, et al.,[19] applies to her case. The Court agrees with petitioner.
In Aguilar, petitioner Aguilar won as barangay chairman in the October 29,

2007 barangay elections. An election protest was filed against him with the municipal trial
court. The municipal trial court found that Aguilar lost by a margin of one vote; hence, his
proclamation was annulled. On April 21, 2008, Aguilar filed a Notice of Appeal and paid the
appeal fee of P1,000.00 to the municipal trial court in accordance with A.M. No. 07-4-15-
SC. The First Division of the COMELEC dismissed his appeal pursuant to Section 9 (a),
Rule 22 of the COMELEC Rules of Procedure for non-payment of the appeal fee
of P3,000.00 as required in Sections 3 and 4, Rule 40 of the same Rules. His first and second
motions for reconsideration were denied by the First Division of the COMELEC. He filed a
petition for certiorari with this Court, which held:
xxxx
With the promulgation of A.M. No. 07-4-15-SC, the previous rule that the appeal is
perfected only upon the full payment of the appeal fee, now pegged at P3,200.00, to the
COMELEC Cash Division within the period to appeal, as stated in the COMELEC Rules of
Procedure, as amended, no longer applies.
It thus became necessary for the COMELEC to clarify the procedural rules on the payment
of appeal fees. For this purpose, the COMELEC issued on July 15, 2008, Resolution No.
8486, which the Court takes judicial notice of.
xxxx
x x x The appeal to the COMELEC of the trial court's decision in election contests involving
municipal and barangay officials is perfected upon the filing of the notice of appeal and the
payment of the P1,000.00 appeal fee to the court that rendered the decision within the five-
day reglementary period. The non-payment or the insufficient payment of the additional
appeal fee of P3,200.00 to the COMELEC Cash Division, in accordance with Rule 40,
Section 3 of the COMELEC Rules of Procedure, as amended, does not affect the perfection
of the appeal and does not result in outright or ipso facto dismissal of the appeal. Following,
Rule 22, Section 9 (a) of the COMELEC Rules, the appeal may be dismissed. And pursuant
to Rule 40, Section 18 of the same rules, if the fees are not paid, the COMELEC may refuse
to take action thereon until they are paid and may dismiss the action or the proceeding. In
such a situation, the COMELEC is merely given the discretion to dismiss the appeal or not.
Accordingly, in the instant case, the COMELEC First Division, may dismiss petitioner's
appeal, as it in fact did, for petitioner's failure to pay the P3,200.00 appeal fee.
Be that as it may, the Court still finds that the COMELEC First Division gravely abused its
discretion in issuing the order dismissing petitioner's appeal. The Court notes that the
notice of appeal and the P1,000.00 appeal fee were, respectively, filed and paid with the
MTC of Kapatagan, Lanao del Norte on April 21, 2008. On that date, the petitioner's appeal
was deemed perfected. COMELEC issued Resolution No. 8486 clarifying the rule on the
payment of appeal fees only on July 15, 2008, or almost three months after the appeal was
perfected. Yet, on July 31, 2008, or barely two weeks after the issuance of Resolution No.
8486, the COMELEC First Division dismissed petitioner's appeal for non-payment to the
COMELEC Cash Division of the additional P3,200.00 appeal fee.
Considering that petitioner filed his appeal months before the clarificatory resolution on
appeal fees, petitioner's appeal should not be unjustly prejudiced by COMELEC Resolution
No. 8486. Fairness and prudence dictate that the COMELEC First Division should have
first directed petitioner to pay the additional appeal fee in accordance with the clarificatory
resolution, and if the latter should refuse to comply, then, and only then, dismiss the
appeal. Instead, the COMELEC First Division hastily dismissed the appeal on the strength
of the recently promulgated clarificatory resolution which had taken effect only a few days
earlier. This unseemly haste is an invitation to outrage.
In this case, the appeal to the COMELEC was perfected when petitioner filed her Notice of
Appeal and paid the appeal fee of P1,000.00 on May 13, 2008, which was two
months before the COMELEC issued Resolution No. 8486,[20] clarifying the rule on the
payment of appeal fees. As stated in Aguilar, fairness and prudence dictate that the First
Division of the COMELEC should have first directed petitioner to pay the additional appeal
fee of P3,200.00 in accordance with the clarificatory resolution; and if petitioner refused to
comply, only then should the appeal be dismissed. The First Division of the COMELEC
should have been more cautious in dismissing petitioners appeal on the mere technicality of
non-payment of the additional appeal fee of P3,200.00 given the public interest involved in
election cases.[21]
In view of the foregoing, the Court finds that the First Division of the COMELEC gravely
abused its discretion in issuing the Order dated November 25, 2008, dismissing petitioners
appeal. The case is remanded to the First Division of the COMELEC for disposition of the
appeal in accordance with this decision, subject to the presentation by petitioner of the
receipt evidencing payment of the appeal fee of P1,000.00 as required under Section 9,
Rule 14 of A. M. No. 07-4-15-SC.
It must be stated, however, that for notices of appeal filed after the promulgation on July
27, 2009 of Divinagracia v. Commission on Elections,[22] errors in the matter of non-
payment or incomplete payment of the two appeal fees in election cases are no longer
excusable.
The second and third issues shall be discussed jointly.
Petitioner contends that the First Division of the COMELEC committed grave abuse of
discretion amounting to lack or excess of jurisdiction in acting on the motion for
reconsideration without elevating the same to the COMELEC en banc, and in denying the
motion for reconsideration.
The contention is meritorious.
It is settled that under Section 7, Article IX-A of the Constitution,[23] what may be brought
to this Court on certiorari is the decision, order or ruling of the COMELEC en
banc. However, this rule should not apply when a division of the COMELEC arrogates unto
itself and deprives the en banc of the authority to rule on a motion for reconsideration, like
in this case.[24]
Section 3, Article IX-C of the Constitution provides for the procedure for the resolution of
election cases by the COMELEC, thus:
Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall
promulgate its rules of procedure in order to expedite disposition of election cases, including
pre-proclamation controversies. All such election cases shall be heard and decided in
division, provided that motions for reconsideration of decisions shall be decided by the
Commission en banc.
The constitutional provision is reflected in Sections 5 and 6, Rule 19 of the COMELEC

Rules of Procedure as follows:
Sec. 5. How Motion for Reconsideration Disposed of. Upon the filing of a motion to
reconsider a decision, resolution, order or ruling of a Division, the Clerk of Court concerned
shall, within twenty-four (24) hours from the filing thereof, notify the Presiding
Commissioner. The latter shall within two (2) days thereafter certify the case to the
Commission en banc.
Sec. 6. Duty of Clerk of Court of Commission to Calendar Motion for Reconsideration. The
Clerk of Court concerned shall calendar the motion for reconsideration for the resolution of
the Commission en banc within ten (10) days from the certification thereof.
In this case, the First Division of the COMELEC violated the cited provisions of the
Constitution and the COMELEC Rules of Procedure when it resolved petitioner's motion for
reconsideration of its final Order dated November 25, 2008, which dismissed petitioners
appeal. By arrogating unto itself a power constitutionally lodged in the Commission en
banc, the First Division of the COMELEC exercised judgment in excess of, or without,
jurisdiction.[25] Hence, the Order issued by the First Division of the COMELEC
dated January 9, 2009, denying petitioners motion for reconsideration, is null and void.
Petitioner stated in her Reply[26] that on April 1, 2009, the First Division of the
COMELEC issued an Order declaring the Order dated November 25, 2008 as final and
executory, and ordering the issuance of an Entry of Judgment. On April 1, 2009, an Entry
of Judgment was issued by the Electoral Contests Adjudication Department.
WHEREFORE, the petition is GRANTED. The Orders dated November 25, 2008
and January 9, 2009 by the First Division of the COMELEC, and the Entry of Judgment
issued on April 1, 2009 by the Electoral Contests Adjudication
Department are ANNULLED and SET ASIDE. The case is REMANDED to the First
Division of the Commission on Elections for disposition in accordance with this Decision.
No costs.
Marcoleta case
DECISION
CARPIO MORALES, J.:
When the party-list group Alagad first won a seat in the House of Representatives in 1998,
Diogenes S. Osabel (Osabel) sat as the partys representative in Congress. In 2004, when
the party again won one seat, Rodante D. Marcoleta (Marcoleta) sat as Alagads
representative.
Due to infighting within Alagads ranks, however, Osabel and Marcoleta parted ways, each
one claiming to represent the partys constituency. For the 2007 National and Local
Elections, the warring factions of Osabel and Marcoleta each filed a separate list of
nominees for Alagad at the Commission on Elections (Comelec).
With Alagad again winning a part-list seat in the House of Representatives, the Marcoleta
and Osabel blocs contested the right to represent the party in the 14th Congress.[1] Osabel,
purportedly the bona fide president of Alagad, sought the cancellation of the certificates of
nomination of the Marcoleta group.[2]
By Omnibus Resolution[3] of July 18, 2007, the Comelecs First Division, then composed of
Commissioners Resurreccion Borra and Romeo Brawner, resolved the dispute in favor of
Osabel, disposing as follows:
WHEREFORE, in view of the foregoing, the Commission (First Division) GRANTS the
Petition in SPA No. 07-020 finding it imbued with merit. The Certificate of Nominationfiled
by ALAGAD represented by ALBERTO M. MALVAR on January 15, 2007 and subject
of SPA No. 07-020 is hereby SET ASIDE. The Manifestation of Intent to Participate in the
Party-List System of Representation submitted by ALAGAD represented by its legitimate
president DIOGENES S. OSABEL on January 25, 2007, and subject of SPP No. 07-023 is
hereby ADMITTED. The Manifestation of Intent to Participate in the Party-List System of
Representation submitted by ALAGAD represented by ALBERTO M. MALVAR on January
15, 2007 and subject of SPP No. 07-003 is DENIED DUE COURSE. (Emphasis in the
original)
The controversy was then elevated by the Marcoleta group to the Comelec En Banc which,
by Resolution[4] of November 6, 2007, reversed the First Divisions Omnibus Resolution and
reinstated the certificates of nomination of the Marcoleta group. In the voting,
however, there were only two (2) commissioners who concurred in the Resolution while
three (3) commissioners dissented.[5]
For thus failing to muster the required majority voting, the Comelec En Banc ordered a
rehearing of the controversy on November 20, 2007.[6]
From the records,[7] it appears that what was taken up during the scheduled November 20,
2007 hearing was the issue of whether the [Comelec] could hear these cases on the
rehearing aspect.[8]
The First Divisions Omnibus Resolution in favor of Osabel was eventually affirmed by the
Comelec En Banc by Resolution of February 5, 2008, viz:[9]
During said rehearing, both parties agreed to file their simultaneous memoranda and
thereafter to submit these cases for resolution.
The Commission received their respective memoranda on December 3, 2007. (Emphasis and
underscoring supplied)
x x x x.
It appearing that the votes of the members of the Commission are still the same, or the
necessary majority cannot be had, pursuant to Sec. 6, Rule 18, Comelec Rules of Procedure
which reads:
x x x x.
the Resolution of the First Division is hereby AFFIRMED.[10] (Emphasis in the original;
underscoring supplied)
On February 12, 2008, Marcoleta filed an ex parte motion to rectify[11] the Comelec En
Banc February 5, 2008 Resolution, contending that it inadvertently therein mentioned that
there was a rehearing undertaken on November 20, 2007 when in fact there was none as
the matter taken up on said date actually delved on the propriety of a rehearing; and that
no memorandum from either of the parties was submitted on December 3, 2007.
By Order of February 12, 2008,[12] Commissioner Romeo Brawner, acting in his capacity as
acting chairman of the Comelec, suspended until further orders the implementation of the
Comelec First Division February 5, 2008 Omnibus Resolution.
Subsequently, by Order of February 26, 2008,[13] the Comelec En Banc acknowledged that
no rehearing had yet been undertaken and reiterated the earlier order of suspension of
the February 5, 2009 First Division Omnibus Resolution. The Comelec En Banc, also
therein resolving the prejudicial question raised by Osabel on whether there was a
necessity of a rehearing, held in the affirmative, reasoning that:
x x x x. The voting in the resolution disposing of the motion for reconsideration on the July
18, 2007 resolution of the First Division which yielded the 2-3 voting resulted in the failure
to obtain the required number of votes for the pronouncement of a decision. Hence, a
rehearing should be conducted x x x x.
A rehearing of the controversy between the parties was thereupon calendared for March 4,
2008. From the records, it appears that the scheduled rehearing did not push through in
view of the filing in the interim of the present petitions by the contending parties.
In the above-captioned G.R. No. 181377 (the petition filed by the Marcoleta group
on February 7, 2008), petitioners fault the Comelec En Banc as follows:
a. The COMELEC en banc committed grave abuse of discretion amounting to lack or excess
of jurisdiction when it issued the February 5, 2008 Order without the benefit of a rehearing,
in violation of Section 6, Rule 18 of the COMELEC Rules of Procedure;
b. The COMELEC en banc committed grave abuse of discretion amounting to lack or excess
of jurisdiction when it affirmed the ruling of its First Division that Private Respondent
Osabel did not resign his post as President of Alagad;
c. The COMELEC en banc committed grave abuse of discretion amounting to lack or excess
of jurisdiction when it gave credence to the Minutes submitted by the Private Respondent,
even though it was not approved by the Secretary-General of the Party;
d. The COMELEC en banc committed grave abuse of discretion amounting to lack or excess
of jurisdiction when it did not consider the provision in the Partys Constitution and By-
Laws that limits the tenure of officers and members of the Executive Committee to three (3)
years.[14]
Meanwhile, G.R. No. 181726 filed on March 4, 2008 by Alagad, represented by Osabel,
assails the suspension of the effects of the Comelec First Division February 5, 2008
Resolution as well as the February 26, 2008 Order that called for a rehearing.[15]
Alagad asserts that the Comelec should not have suspended the effects of the February 5,
2008 Resolution when, on its face, the ex parte motion to rectify filed by Marcoleta suffered
from lack of proof of service on the adverse party and the requisite notice of hearing;
instead, an order to comment on the motion should have been the proper recourse of the
Comelec.[16]
In further arguing against the rehearing order of the Comelec, petitioner Alagad invites the
Courts attention to the earlier mentioned En Banc Resolution of November 6, 2007
(reinstating the certificates of nomination of the Marcoleta group) where it appears that the
Osabel group secured a majority vote of the quorum: three (3) against two (2) in a quorum
of five commissioners, in spite the fact that Osabel is not the movant, and hence, not the
party required to secure a majority to reverse the First Division Omnibus Resolution.[17]
By Resolution of March 11, 2008, the Court consolidated both petitions.[18]

G.R. No. 181377 was filed on February 7, 2008 by the Marcoleta group before it filed
on February 12, 2008 before the Comelec the ex parte motion to rectify. In light of the filing
of said motion as well as the positive action of the Comelec in its Order of February 26,
2008 for a rehearing of the controversy, the petition had been rendered moot and
academic. More importantly, the extraordinary writ of certiorari, cannot be invoked when
there is a plain, adequate and speedy remedy in the ordinary course of law,[19] as shown by
petitioners recourse.
The Court now proceeds to resolve G.R. No. 181726 filed by Alagad. The twin issues to be
determined are whether the Comelec En Banc committed grave abuse of discretion in
ordering a rehearing of the controversy; and in suspending the implementation of the Order
of February 5, 2008 for lack of rehearing.
The petition fails.
While at first impression, the November 6, 2007 Resolution of the Comelec En Banc seems
to have affirmed the First Divisions ruling, the said Resolution merely reflected the manner
of voting of the Comelec members.
From the 2-3 voting, it is readily discerned that the Comelec En Banc cannot overturn
the First Division on mere two assenting votes. On the other hand, the same situation
obtains in the case of
the dissenters, there being a shortage of one vote to sustain the First Divisions findings.
To break this legal stalemate, Section 6, Rule 18 of the Comelec Rules of Procedure provides
that:
Sec. 6. Procedure if Opinion is Equally Divided.When the Commission en banc is equally

divided in opinion, or the necessary majority cannot be had, the case shall be reheard, and
if on rehearing no decision is reached, the action or proceeding shall be dismissed if
originally commenced in the Commission; in appealed cases, the judgment or order
appealed from shall stand affirmed; and in all incidental matters, the petition or motion
shall be denied. (Emphasis, italics and underscoring supplied)
Majority, in this case, means a vote of four members of the Comelec. The Court in Estrella
v. Comelec[20] pronounced that Section 5 (a)[21] of Rule 3 of the Comelec Rules of
Procedure and Section 7 of Article IX-A[22] of the Constitution require that a majority vote
of all the members of the Comelec, and not only those who participated and took part in the
deliberations, is necessary for the pronouncement of a decision, resolution, order or ruling.
Alagads reasoning that a rehearing is unnecessary since it garnered a majority vote of the
quorum does not thus impress.
The Comelec, despite the obvious inclination of three commissioners to affirm the
Resolution of the First Division, cannot do away with a rehearing since its Rules clearly
provide for such a proceeding for the body to have a solicitous review of the controversy
before it. A rehearing clearly presupposes the participation of the opposing parties for the
purpose of presenting additional evidence, if any, and further clarifying and amplifying
their arguments.[23]
To reiterate, neither the assenters nor dissenters can claim a majority in the En
Banc Resolution of November 6, 2007. The Resolution served no more than a record of
votes, lacking in legal effect despite its pronouncement of reversal of the First Division
Resolution. Accordingly, the Comelec did not commit any grave abuse of discretion in
ordering a rehearing.
The propriety of a rehearing now resolved, the issue of whether the Comelec committed
grave abuse of discretion in suspending the effects of its En Banc Order of February 5,
2008 for lack of a rehearing comes to the fore.
From the records as well as the admission of inadvertence on the part of the Comelec, there
is likewise nothing gravely abusive of the Comelecs assailed action.
A certification[24] from the Office of the Clerk of the Commission itself bolsters the
assertion that the Comelec committed an evident oversight, thus:
x x x [T]here is no calendar of hearing with respect to these particular cases

between November 21, 2007 and February 5, 2008.
For the most part, the Comelec was well within its authority to order a re-hearing, it
having the inherent power to amend or control its processes and orders before these become
final and executory.[25] It can even proceed to issue an order motu proprio to reconsider,
recall or set aside an earlier resolution which is still under its control.[26]
The Comelecs own Rules of Procedure authorize the body to amend and control its
processes and orders so as to make them conformable to law and justice,[27] and even to
suspend said Rules or any portion thereof in the interest of justice and in order to obtain
speedy disposition of all matters pending before the Commission.[28]
Thus, the supposed lack of proof of service on the adverse party and lack of notice of
hearing of Marcoletas ex parte motion to rectify deserve little consideration in invalidating
the Order of February 12, 2008. Moreover, that Alagad even moved to execute the
Comelecs February 5, 2008 Order on the same day the ex parte motion to rectify was filed
(February 12, 2008)[29] all the more justified the Comelecs action.
The Comelec, confronted with a glaring procedural lapse, lost no time in rectifying its action
by suspending the effects of an earlier resolution and scheduling a mandatory rehearing. To
be sure, this negates any indication of grave abuse of discretion on its part in order to
correct a lapse.
WHEREFORE, G.R. No. 181377 is DISMISSED for being moot. G.R. No. 181726 is
likewise DISMISSED for lack of merit.
Let the case be REMANDED to the Comelec En Banc for it to proceed with utmost dispatch
with its intended rehearing and render the appropriate decision on the case at the earliest
opportunity.
No costs.
SO ORDERED.
VICTORINO X. FORNIER, vs. HON. COMMISSION ON ELECTIONS and FPJ
Facts:
Petitioners sought for respondent Poe’s disqualification in the presidential elections for
having allegedly misrepresented material facts in his (Poe’s) certificate of candidacy by
claiming that he is a natural Filipino citizen despite his parents both being foreigners.
Comelec dismissed the petition, holding that Poe was a Filipino Citizen. Petitioners assail
the jurisdiction of the Comelec, contending that only the Supreme Court may resolve the
basic issue on the case under Article VII, Section 4, paragraph 7, of the 1987 Constitution.
Issue:
Whether or not it is the Supreme Court which had jurisdiction.
Whether or not Comelec committed grave abuse of discretion in holding that Poe was a
Filipino citizen.
Ruling:
1.) The Supreme Court had no jurisdiction on questions regarding “qualification of a

candidate” for the presidency or vice-presidency before the elections are held.
“Rules of the Presidential Electoral Tribunal” in connection with Section 4, paragraph 7, of

the 1987 Constitution, refers to “contests” relating to the election, returns and
qualifications of the “President” or “Vice-President”, of the Philippines which the Supreme
Court may take cognizance, and not of “candidates” for President or Vice-President before
the elections.
2.) Comelec committed no grave abuse of discretion in holding Poe as a Filipino Citizen.
The 1935 Constitution on Citizenship, the prevailing fundamental law on respondent’s

birth, provided that among the citizens of the Philippines are “those whose fathers are
citizens of the Philippines.”
Tracing respondent’s paternal lineage, his grandfather Lorenzo, as evidenced by the latter’s
death certificate was identified as a Filipino Citizen. His citizenship was also drawn from
the presumption that having died in 1954 at the age of 84, Lorenzo would have been born in
1870. In the absence of any other evidence, Lorenzo’s place of residence upon his death in
1954 was presumed to be the place of residence prior his death, such that Lorenzo Pou
would have benefited from the “en masse Filipinization” that the Philippine Bill had
effected in 1902. Being so, Lorenzo’s citizenship would have extended to his son, Allan—
respondent’s father.
Respondent, having been acknowledged as Allan’s son to Bessie, though an American

citizen, was a Filipino citizen by virtue of paternal filiation as evidenced by the
respondent’s birth certificate. The 1935 Constitution on citizenship did not make a
distinction on the legitimacy or illegitimacy of the child, thus, the allegation of bigamous
marriage and the allegation that respondent was born only before the assailed marriage
had no bearing on respondent’s citizenship in view of the established paternal filiation
evidenced by the public documents presented.
But while the totality of the evidence may not establish conclusively that respondent FPJ is
a natural-born citizen of the Philippines, the evidence on hand still would preponderate in
his favor enough to hold that he cannot be held guilty of having made a material
misrepresentation in his certificate of candidacy in violation of Section 78, in relation to
Section 74 of the Omnibus Election Code.
IMELDA ROMUALDEZ-MARCOS, plaintiff vs. COMMISSION

OF ELECTIONS, defendant
248 SCRA 300
Facts:
March 23,1995, Cirilo Roy Montejo, filed a petition for cancellation

and disqualification with the COMELEC alleging that Imelda-Romualdez Marcos did
not meet the constitutional requirement for residency. March 29, 1995, Marcos filed
a corrected certificate of candidacy changing the entry “seven” months to “since childhood”.
The COMELEC en banc denied petitioner’s motion for reconsideration declaring her not
qualified to run for the position of the member of the House of Representatives for the First
District of Leyte. In a supplemental petition, Marcosaverred that she was the
overwhelming winner of the election.
Issue:
Whether or not petitioner was a resident, for election purposes, of the First District of Leyte
for a period of one year at the time of the May 9, 1995 elections.
Held:
Residence is synonymous with domicile which reveals a tendency or mistake the concept
of domicile for actual residence, a conception not intended for the purpose of determining a
candidate’s qualifications for the election to the House of Representatives as required by
the 1987 Constitution. An individual does not lose his domicile even if he has lived and
maintained residences in different places. In the case at bench, the evidence adduced by
Motejo lacks the degree of persuasiveness as required to convince the court that
an abandonment of domicile of origin in favor of a domicile of choice indeed incurred. It
cannot be correctlyargued that Marcos lost her domicile of origin by operation of law as a
result of her marriage to the late President Ferdinand E. Marcos. Having determined
that Marcosposses the necessary residence qualifications to run for a seat in the House of
Representatives in the First District of Leyte, the COMELEC’s questioned resolutions
dated April 24, May 7, May11, and May 25 are set aside. Provincial Board of Canvassers is
directed to proclaim Marcos as the duly elected Representative of the First District of Leyte.
Aquino v COMELEC (1995)
Aquino vs. Comelec

Agapito A. Aquino, petitioner vs. Commission on Election, Move Makati, Mateo Bedon, and
Juanito Icaro, respondents
Sept, 18, 1995
Special Civil Action in the Supreme Court. Certiorari.
Relevant Provisions:
Section 6, Article VI of the 1987 Constitution
No person shall be a Member of the House of Representatives unless he is a natural-born
citizen of the Philippines and, on the day of the election, is at least twenty-five years of age,
able to read and write, and, except the party-list representatives, a registered voter in the
district in which he shall be elected, and a resident thereof for a period of not less than one
year immediately preceding the day of the election.
Facts:
On 20 March 1995, Agapito A. Aquino, the petitioner, filed his Certificate of Candidacy for
the position of Representative for the new (remember: newly created) Second Legislative
District of Makati City. In his certificate of candidacy, Aquino stated that he was a resident
of the aforementioned district (284 Amapola Cor. Adalla Sts., Palm Village, Makati) for 10
months.
Move Makati, a registered political party, and Mateo Bedon, Chairman of LAKAS-NUCD-
UMDP of Barangay Cembo, Makati City, filed a petition to disqualify Aquino on the ground
that the latter lacked the residence qualification as a candidate for congressman which
under Section 6, Article VI of the 1987 Constitution, should be for a period not less than one
year preceding the (May 8, 1995) day of the election.
Faced with a petition for disqualification, Aquino amended the entry on his residency in his
certificate of candidacy to 1 year and 13 days. The Commission on Elections passed a
resolution that dismissed the petition on May 6 and allowed Aquino to run in the election of
8 May. Aquino, with 38,547 votes, won against Augusto Syjuco with 35,910 votes.
Move Makati filed a motion of reconsideration with the Comelec, to which, on May 15, the
latter acted with an order suspending the proclamation of Aquino until the Commission
resolved the issue. On 2 June, the Commission on Electionsfound Aquino ineligible and
disqualified for the elective office for lack of constitutional qualification of residence.
Aquino then filed a Petition of Certiorari assailing the May 15 and June 2 orders.
Issue:
1. Whether “residency” in the certificate of candidacy actually connotes “domicile” to
warrant the disqualification of Aquino from the position in the electoral district.
2. WON it is proven that Aquino has established domicile of choice and not just residence
(not in the sense of the COC)in the district he was running in.
Held:
1. Yes, The term “residence” has always been understood as synonymous with “domicile”
not only under the previous constitutions but also under the 1987 Constitution. The Court
cited the deliberations of the Constitutional Commission wherein this principle was
applied.
Mr. Nolledo:
I remember that in the 1971 Constitutional Convention, there was an attempt to require
residence in the place not less than one year immediately preceding the day of elections.
…
What is the Committee’s concept of residence for the legislature? Is it actual residence or is
it the concept of domicile or constructive residence?
Mr. Davide:
This is in the district, for a period of not less than one year preceding the day of election.
This was in effect lifted from the 1973 constituition, the interpretation given to it was
domicile.
Mrs. Braid:
On section 7, page2, Noledo has raised the same point that resident has been interpreted at
times as a matter of intention rather than actual residence.
…
Mr. De los Reyes
So we have to stick to the original concept that it should be by domicile and not physical
and actual residence.
Therefore, the framers intended the word “residence” to have the same meaning of domicile.
The place “where a party actually or constructively has his permanent home,” where he, no
matter where he may be found at any given time, eventually intends to return and remain,
i.e., his domicile, is that to which the Constitution refers when it speaks of residence for the
purposes of election law.
The purpose is to exclude strangers or newcomers unfamiliar with the conditions and needs
of the community from taking advantage of favorable circumstances existing in that
community for electoral gain.
While there is nothing wrong with the purpose of establishing residence in a given area for
meeting election law requirements, this defeats the essence of representation, which is to
place through assent of voters those most cognizant and sensitive to the needs of a
particular district, if a candidate falls short of the period of residency mandated by law for
him to qualify.
Which brings us to the second issue.
2. No, Aquino has not established domicile of choice in the district he was running in.
The SC agreed with the Comelec’s contention that Aquino should prove that he established
a domicile of choice and not just residence.
The Constitution requires a person running for a post in the HR one year of residency prior
to the elections in the district in which he seeks election to .
Aquino’s certificate of candidacy in a previous (May 11, 1992) election indicates that he was
a resident and a registered voter of San Jose, Concepcion, Tarlac for more than 52 years
prior to that election. His birth certificate indicated that Conception as his birthplace and
his COC also showed him to be a registered voter of the same district. Thus his domicile of
origin (obviously, choice as well) up to the filing of his COC was in Conception, Tarlac.
Aquino’s connection to the new Second District of Makati City is an alleged lease agreement
of a condominium unit in the area. The intention not to establish a permanent home in
Makati City is evident in his leasing a condominium unit instead of buying one. The short
length of time he claims to be a resident of Makati (and the fact of his stated domicile in
Tarlac and his claims of other residences in Metro Manila) indicate that his sole purpose in
transferring his physical residence is not to acquire a new, residence or domicile but only to
qualify as a candidate for Representative of the Second District of Makati City.
Aquino’s assertion that he has transferred his domicile from Tarlac to Makati is a bare
assertion which is hardly supported by the facts in the case at bench. To successfully effect
a change of domicile, petitioner must prove an actual removal or an actual change of
domicile, a bona fide intention of abandoning the former place of residence and establishing
a new one and definite acts which correspond with the purpose.
Aquino was thus rightfully disqualified by the Commission on Elections due to his lack of
one year residence in the district.
Decision
Instant petition dismissed. Order restraining respondent Comelec from proclaiming the
candidate garnering the next highest number of votes in the congressional elections of
Second district of Makati City made permanent.
Dicta:
I. Aquino’s petition of certiorari contents were:
A. The Comelec’s lack of jurisdiction to determine the disqualification issue involving
congressional candidates after the May 8, 1995 elections, such determination reserved with
the house of representatives electional tribunal
B. Even if the Comelec has jurisdiction, the jurisdiction ceased in the instant case after
the elections and the remedy to the adverse parties lies in another forum which is the HR
Electoral Tribunal consistent with Section 17, Article VI of the 1987 Constitution.
C. The COMELEC committed grave abuse of discretion when it proceeded to promulagate
its questioned decision despite its own recognition that a threshold issue of jurisdiction has
to be judiciously reviewed again, assuming arguendo that the Comelec has jurisdiction
D. The Comelec’s finding of non-compliance with the residency requirement of one year
against the petitioner is contrary to evidence and to applicable laws and jurisprudence.
E. The Comelec erred in failing to appreciate the legal impossibility of enforcing the one
year residency requirement of Congressional candidates in newly created political districts
which were only existing for less than a year at the time of the election and barely four
months in the case of petitioner’s district in Makati.
F. The Comelec committed serious error amounting to lack of jurisdiction when it ordered
the board of canvassers to determine and proclaim the winner out of the remaining
qualified candidates after the erroneous disqualification of the petitioner in disregard of the
doctrine that a second place candidate or a person who was repudiated by the electorate is a
loser and cannot be proclaimed as substitute winner.
II. Modern day carpetbaggers can’t be allowed to take advantage of the creation of new
political districts by suddenly transplanting themselves in such new districts, prejudicing
their genuine residents in the process of taking advantage of existing conditions in these
areas.
III. according to COMELEC: The lease agreement was executed mainly to support the one
year residence requirement as a qualification for a candidate of the HR, by establishing a
commencement date of his residence. If a oerfectly valid lease agreement cannot, by itself
establish a domicile of choice, this particular lease agreement cannot be better.

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BAGO P. PASANDALAN, petitioner, vs.

COMMISSION ON ELECTIONS and BAI

Before us is a petition for review on certiorari of the Resolution[1] of the Commission on

Hence, this petition.

The Comelecs Ruling

2. WHETHER THE COMMISSION ON ELECTIONS COMMITTED GRAVE ABUSE OF

3. WHETHER THE COMMISSION ON ELECTIONS ACTED WITHOUT OR IN EXCESS

The Courts Ruling

Based on the foregoing provision, three instances justify a declaration of failure of

The nullification of elections or declaration of failure of elections is an extraordinary

The Comelec is not mandated to conduct a technical examination before it dismisses a

In Mitmug v. Commission on Elections,[22] we ruled that the Comelec could dismiss

In Basher, after a series of failed elections in Barangay Maidan, Municipality of Tugaya,

WHEREFORE, the instant petition is DISMISSED. The assailed Resolution of public

Bellosillo, (Acting C.J.), Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing,

Davide, Jr., C.J., on leave.

Typoco JR., petitioner, vs. COMMISSION ON ELECTIONS (COMELEC) EN BANC, and

Votes per PBC Canvass 53,454 64,358

Less: Votes obtained from

Fraudulent Returns 11,253 27,060

Difference 42,201 37,325

Vote Lead of Petitioner 4,876[5]

WHEREFORE, finding no grave abuse of discretion committed by public respondent

Republic of the Philippines

G.R. No. 106270-73 February 10, 1994

SULTAN MOHAMAD L. MITMUG, petitioner,

Pimentel, Apostol, Layosa & Sibayan Law Office for petitioner.

Brillantes, Nachura, Navarro & Arcilla for private respondent.

However, a closer examination of the COMELEC Rules of Procedure, particularly Sec. 2,

Republic of the Philippines

G.R. No. 106270-73 February 10, 1994

Pimentel, Apostol, Layosa & Sibayan Law Office for petitioner.

Brillantes, Nachura, Navarro & Arcilla for private respondent.

Petitioner SULTAN MOHAMAD L. MITMUG and private respondent DATU GAMBAI

Incidentally, a petition to annul an election is not a pre-proclamation controversy.

However, a closer examination of the COMELEC Rules of Procedure, particularly Sec. 2,

Sunday, June 24, 2012

Magno vs. CA (Crim1)

June 26, 1992

[G.R. No. 148326. November 15, 2001]

PABLO C. VILLABER, petitioner, vs. COMMISSION ON ELECTIONS and REP.

Hence, this petition.

In In re Vinzon,[14] the term moral turpitude is considered as encompassing everything

He was convicted for violating Section 1 of B.P. Blg. 22 which provides:

The elements of the offense under the above provision are:

This argument is erroneous.

In fine, we find no grave abuse of discretion committed by respondent COMELEC in issuing

ISSUE: Whether or not the suspension of Atty. Tuanda be lifted.

There being no specific provision governing substitution of candidates in barangay

Petitioner’s letter-request was considered a certificate of candidacy when COMELEC issued

The facts are as follows:

In its Decision[4] dated May 5, 2008, the trial court held:

Protestee-Appellant's "Motion for Reconsideration" filed thru registered mail on 15

1. WHETHER OR NOT THE [FIRST DIVISION OF THE COMELEC] COMMITTED

2. WHETHER OR NOT THE [FIRST DIVISION OF THE COMELEC] COMMITTED

Grave abuse of discretion implies a capricious and whimsical exercise of

In Aguilar, petitioner Aguilar won as barangay chairman in the October 29,

The second and third issues shall be discussed jointly.

The contention is meritorious.

The constitutional provision is reflected in Sections 5 and 6, Rule 19 of the COMELEC

CARPIO MORALES, J.:

By Resolution of March 11, 2008, the Court consolidated both petitions.[18]

The petition fails.

Sec. 6. Procedure if Opinion is Equally Divided.When the Commission en banc is equally