A.M. No.
MTJ-92-728 July 8, 1994 Respondent admitted having issued without jurisdiction the questioned order of 14 May 1992. He
MAYOR PERLITA LIBARDOS, complainant,
vs.
JUDGE ABDULLAH M. CASAR, respondent.
PADILLA, J.:
A sworn complaint, dated 27 October 1992, was filed before this court by complainant, Mayor
Perlita P. Libardos of Maigo, Lanao del Norte, against respondent Judge Abdullah M. Casar of the
Municipal Circuit Trial Court (MCTC), Kolambugan-Maigo, Lanao del Norte, for gross ignorance of
the law, grave misconduct, arbitrariness and conduct unbecoming a judge.
The complaint is an offshoot of an order dated 14 May 1992 in Special Proceedings No. 19, issued by
respondent restraining the COMELEC Board of Canvassers of Maigo, Lanao del Norte, from
canvassing the election returns of Precinct No. 10-A until either the COMELEC or the Regional Trial
Court in Iligan City could act on the petition of Wilfredo P. Randa, a mayoralty candidate of the
Nationalist People's Coalition (NPC).
Complainant alleged that she was an official mayoralty candidate of the Laban ng Demokratikong
Pilipino (LDP) in Maigo, Lanao del Norte, in the synchronized national and local elections held on 11
May 1992; that during the canvassing of the election returns, the candidate of the Nationalist
People's Coalition (NPC), Wilfredo Randa, filed a complaint for Preliminary Injunction with the
Municipal Circuit Trial Court (MCTC) of Kolambugan-Maigo, Lanao del Norte, presided over by
respondent judge, docketed as Special Proceedings No. 19, entitled "Wilfredo P. Randa, candidate
for Mayor under NPC against Board of Canvassers, Maigo, Lanao del Norte;" that on the basis of the
said complaint, subscribed before respondent judge, said respondent issued the aforesaid order
dated 14 May 1992, ordering the Board of Canvassers to suspend the canvassing of the election
returns of Precinct No. 10-A until either the Commission on Elections, Manila, or the Regional Trial
Court in Iligan City could act on the complaint of Wilfredo Randa; that the said order caused the
delay in the canvassing of the election returns which was resumed only after the Provincial Election
Supervisor of Lanao del Norte sent a message to the COMELEC (Manila) requesting that an order be
issued ordering the Board of Canvassers, Maigo, Lanao del Norte, to disregard the restraining order
of respondent judge.
Complainant further avers that despite the fact that respondent judge lacked jurisdiction over the
matter, he nevertheless issued the assailed order of 14 May 1992 on the alleged ground that the
judges of the "RTC at Iligan City are not available to issue a Preliminary Injunction, and, it is
admitted fact the COMELEC, Manila is very far and might not receive on time the appeal of the
petitioner." Complainant asserts that respondent's justification in issuing the order constituted
ignorance of the law, considering that on 14 May 1992 there was as yet no appeal to speak of from
the decision of the Board of Canvassers because the election returns had not been canvassed and
that it is an express provision of law that an appeal can be had only after the Board of Canvassers
has rendered its ruling on the objections of any party to the inclusion or exclusion of election
returns.
In compliance with the Court's resolution dated 2 February 1993, respondent submitted his
Comment dated 17 March 1993.
justified its issuance "as an immediate remedy and arrangement to prevent bloodshed between the
contending parties, the complainant's followers, the LDP and the oppositions (sic) followers, the
NPC, which if said eminent (sic) trouble will occur, would caused (sic) not only irreparable damages
but may ignite and give rise to the revival of the old centuries (sic) conflict between Christians and
Muslims in the province." He pointed out that complainant's failure to question or move for a
reconsideration of the assailed order implied her acceptance thereof. He likewise suggested that
complainant filed the complaint for the purpose of harassing him and to block his application for
promotion to the Regional Trial Court.
On 23 November 1993, the Court referred this case to the Office of the Court Administrator for
evaluation, report and recommendation.
The report of the Court Administrator states as follows:
We find for the complainant. As admitted by the respondent and after having
been ruled upon by the COMELEC in its En Banc Resolution dated May 19,
1992 (Rollo, p. 14), that the assailed Order was issued without jurisdiction, the
acts complained of should be met with a corresponding sanction. Formal
investigation of the charge against the respondent for issuing the questioned
order without jurisdiction is no longer necessary in view of the respondent's
admission. The reason/defense interposed by the respondent is unavailing. As
a judicial officer, he is to (sic) know and keep abreast with the latest law and
jurisprudence. His feeling of sympathy and fairness cannot serve as a license
for him to deliberately transgress or dispense with the existing laws involving
the controversy. To hold the respondent administratively liable for ignorance
of the law, there must be reliable evidence to show the judicial acts complained
of were ill-motivated and corrupt. The documents on file in the case do not
show that questioned order was ill-motivated or corrupt.
We, however, cannot overlook the fact that respondent acted with grave abuse
of discretion in issuing his Order dated May 14, 1992 ordering the Board of
Canvassers of Maigo, Lanao del Norte to suspend the canvassing of the election
returns knowing full (sic) well that he does not have jurisdiction to act on the
petition filed by Wilfredo Randa.
By and large, we agree with the conclusions of the Court Administrator. We find respondent's
actuation as unbecoming that of a worthy Judge, for a judge should be faithful to the law and
maintain professional competence (Rule 3.01, Canon 3, Code of Judicial Conduct). While his reasons
for issuing the assailed order are perhaps commendable and demonstrative of his concern for peace
and order during the election period in the given community, he lost sight of his bounden duty, as a
Judge, to be the embodiment of competence, integrity, and independence (Rule 1.01, Canon
1, supra). A Judge should behave at all times as to promote public confidence in the integrity and
impartiality of the judiciary (Rule 2.01, Canon 2, supra).
ACCORDINGLY, the Court RESOLVED to hold respondent judge administratively liable for having
knowingly issued an order without jurisdiction and with grave abuse of discretion, and to impose on
him a fine of FIVE THOUSAND PESOS (P5,000.00), with a STERN WARNING that a repetition of the
same or similar act or acts in the future will be dealt with more severely.
SO ORDERED.
1
G.R. No. L-68113 November 19, 1985
AQUILINO Q. PIMENTEL, JR., petitioner
vs.
COMMISSION ON ELECTIONS, KILUSANG BAGONG LIPUNAN, and PEDRO N. ROA respondents.
Lorenzo M. Tañada, Eduardo Araullo, Rene A.V. Saguisag and Joker Arroyo for petitioner.
Romulo C. Felizmena and Norberto Quisumbing for respondent Roa.
MAKASIAR, CJ.:
Petitioner Aquilino Pimentel Jr. seeks in his original petition
(1) to enjoin respondent comelec
(a) from enforcing its resolution dated June 20, 1984 and July 10, 1984, and
(b) from further proceeding with PPC No, 16-14,
alleging lack of jurisdiction on the part of Comelec over the subject matter and over his person (pp.
2-23, Vol. 1, rec.).
In his urgent motion dated and filed on October 25, 1984, petitioner prays for the issuance of a writ
of preliminary prohibitory injunction and/or temporary restraining order to enjoin respondents
from enforcing the decision of the Second Division of respondent Comelec promulgated on October
24, 1984 (pp. 341-349, Vol. 2, rec.), and to cite the Presiding Commissioner and two members of the
Second Division for contempt of court for disobeying the temporary restraining order issued by this
Court on August 9, 1984 and modified on August 16, 1984.
In the May 14, 1984 elections for assemblyman for the lone seat in Cagayan de Oro City, the
following candidates with their respective political parties, filed their certificates of candidacy:
Aquilino Q. Pimentel..................... PDP-LABAN
Pedro N. Roa................................. KBL
Guerrero Adaza...................... Mindanao Alliance
Galvino Jardin
Magnaye Alsal
After the casting of the ballots, the Board of Canvassers for Cagayan de Oro City (Board) convened at
7:18 P.M. of election day with the following as its composition:
Chairman—Atty. Jose B. Amarga
Members—Fiscal Noli T. Catli
—Supt. Teodoro P. Dano
—Atty. Arturo Legaspi—KBL Representative
—Atty. Graciano Neri Jr.—MA Representative
Considering that at the time there were no election returns available for canvass, the Board
temporarily adjourned and resumed at 10;15 of the same night, at which time there were 20
election returns from 20 voting centers. The canvass, upon motion of PDP-Laban was again
adjourned and reset for the following day May 15, 1984 at 9:00 in the morning. (Minutes, Page 1).
The canvass terminated at 7:00 P.M. of May 16, 1984 and the Board proclaimed Pimentel as the
winner with a vote of 63,784. The other candidates received the following votes:
1. Pedro N. Roa........ 59,102
2. Guerrero A. Adaza... 2,472
3. Galvino Jardino...... 496
4. Elsal Magnaye....... 205
(Minutes, Page 104).
After the proclamation, a series of pleadings of petitioner were received by the Commission on
Elections Commission in Manila (Comelec Decision of Oct. 24,1984, pp, 390, 391, Vol. 11, rec.).
It is to be noted that, prior to the elections, the PDP LABAN asked the Comelec that it be accredited
as the dominant opposition party in Cagayan de Oro City. The Comelec, however, denied PDP-
LABAN's request and, instead, accredited the Mindanao Alliance as the dominant opposition party in
Cagayan de Oro City for the May 14, 1984 elections.
Not being recognized as the dominant opposition party, the PDP-LABAN, therefore, was not entitled
to have any representative in the citizens election committee and in the city board of canvassers.
Only the KBL and the Mindanao Alliance were duly represented because they were the ones
recognized by the Comelec.
Shortly before the City Board of Canvassers; convened on May 14, 1984 to canvass the election
results, Atty. Bernardita F. Cabacungan, the City Election Registrar of Cagayan de Oro City, was
relieved by the Regional Director of the Comelec Region X of her duty as Chairman of the City Board
of Canvassers and replaced by the Regional Legal Officer, Atty. Jose B. Amarga. The order of relief
(Annex "A", p. 25, rec.) was contained in a telegram dated May 9, 1984 sent by the Assistant Director
of Operations of the Comelec, Silvestre H. Bello, Jr., to the Regional Election Director of Comelec,
Region X.
In the evening of May 14, 1984, the Board convened to start the canvassing. No canvassing however
was made because of the request for postponement made by a representative of the PDP-LABAN
which was granted by the Board notwithstanding objections raised by the KBL and Mindanao
Alliance representatives. The canvassing was reset for the following day, May 15, 1984.
On May 15, 1984, during the canvassing, private respondent Pedro N. Roa, thru his duly authorized
representatives, filed with the Board of Canvassers a petition for the exclusion from the canvass of
5-q election returns from 53 voting centers (Annex "3-Roa", p. 205, rec.), to wit: 288, 284, 298, 301,
303, 305, 302, 312, 310, 309, 21111, 351, 245, 372-A, 347, 353, 280, 260-A, 282, 358, 357, 287, 294,
295, 300, 278, 277, 205, 109, 258, 279, 288, 345, 367, 255-A, 255, 253, 359, 249-A, 220, 224, 247-A,
247, 248, 215, 224-A, 228-A, 231, 238, 198, 372-A, 363 and 238A. Private respondent herein alleged
that the questioned election returns were fatally defective, irregularly prepared, not properly
Identified and submitted to the Board of Canvassers, and appear to be tampered with or contain
discrepancies.
Likewise, during the canvassing on May 15, 1984, Atty. Arturo Legaspi, KBL representative in the
Board, objected in writing to the inclusion in the canvass of three (3) bundles of election returns
coming from voting centers Nos. 21-199, inclusive, except those coming from voting centers Nos.
109 and 198; on the ground that the manner of their delivery and transmittal was not in accordance
with Section 46 and BP 697; each bundle tied only by a plastic ribbon, and not placed in a padlocked
ballot box (Affidavit of Atty. Arturo Legaspi marked as Annex "4-Roa", P. 206, rec).
The City Board of Canvassers, however, overruled all the objections raised by herein private
respondent.
On May 16, 1984, private respondent herein filed with respondent comelec a "Petition for certiorari
and Prohibition with Preliminary Injunction or Restraining Order: entitled: KILUSANG BAGONG
LIPUNAN and/or PEDRO N. "OLOY" ROA, KBL CANDIDATE, Petitioners, versus CITY BOARD OF
2
CANVASSERS of CAGAYAN DE ORO CITY, Respondent, without impleading herein petitioner
Aquilino Q. Pimentel Jr. as party respondent (Annex "C", pp. 17-31, rec.). In this petition, private
respondent herein assailed the proceedings of the Board of Canvassers and the inclusion of the
election returns from 53 voting centers.
On the same day, May 17, 1984, private respondent filed with Comelec an "Urgent Appeal"—
docketed as Pre-Proclamation Case No. 16-84 — entitled: KILUSANG BAGONG LIPUNAN and/or
PEDRO N. "OLOY" ROA, KBL CANDIDATE, Pititioner-Appellant, versus CITY BOARD OF CANVASSERS
OF CAGAYAN DE ORO CITY, Respondent/Appellee, for annulment of canvass ad proclamation and
appointmetn of substitute board of canvassers (Annex "D", pp. .32-37, rec.), again, without
impeading Pimentel Jr. as party respondent.
On May 18, 1984, private respondent filed another pleading, "Supplement to Urgent Appeal dated
May 17, 1984" entitled KILUSANG BAGONG LIPUNAN and/or PEDRO N. "OLOY" ROA, KBL
CANDIDATE, Ptitioner/Appellant, versus CITY BOARD OF CANVASSERS OF CAGAYAN DE ORO CITY,
Respondent/Appellee, praying for annulment of canvass and proclamation and appointment of
substitute board of canvassers, likewise without impleading Pimentel Jr. as party respondent
(Annex "E", pp. 38-40, rec.).
On May 19, 1984, private respondent herein filed with Comelec, central office, by registered mail, a
pleading captioned "Petition for Exclusion of Election Returns and to Declare Void A b Initio
Proclamation of 'Nene' Pimentel, " this time expressly impleading Pimentel as party respondent.
Said petition assailed the inclusion in the canvass of 176 election returns from Voting Centers Nos.
21 to 199 excluding Voting Centers Nos. 198 and 109 (Annex "K", pp. 77- 83, rec.).
The aforestated pleading was mailed by Atty. Jesus V. Agana, one of the counsels of private
respondent, to Comelec, Manila, on May 19, 1984 under Registry Receipt No. 31543, Post Office of
Cagayan de Oro City. This mail matter is certified by Romeo C. Salcedo, Postmaster No. 6, of Cagayan
de Oro City to have been"dispatched to destination under Bill No. 247. "However, Comelec said it did
not receive the abovementioned pleading. Private respondent, however, annexed a copy of the
aforementioned pleading to his opposition to Motion to Dismiss, which private respondent herein
filed on June 14,1984.
Atty. Jose B. Amarga, Chairman of the Board of Canvassers of Cagayan de Oro City, was furnished on
May 19, 1984 a copy of the aforementioned pleading under Registry Receipt No. 31541, which Atty.
Amarga received on May 21, 1984 as per return card (Exhibit "F", Exhibits of Roa, Vol. V, rec.).
Petitioner Pimentel was likewise furnished a copy of the same pleading under Registry No. 31542,
which was received by Pimentel on May 21, 1984 as per return card signed by a certain Mr. Chavez,
Pimentel's agent (Annex "7-Roa," p. 211, rec.).
On May 22, 1984, the respondent Comelec set for hearing Pre-Proclamation Case No. 16-84. Atty.
Raul Gonzales, who was then in the Comelec office for another case, entered his appearance for
Aquilino Q. Pimentel Jr. and undertook to con tact herein petitioner Pimentel Jr. as well as apprise
him for the hearing scheduled on May 24, 1984.
On May 24, 1984, Atty. Raul Gonzales appeared for herein petitioner Pimentel. Private respondent
herein, thru counsel, furnished Atty. Gonzales copies of his petition, urgent appeal, supplemental to
urgent appeal as well as exhibits (Annex "J", pp. 75-76, rec.). No copy of private respondent's
"Petition for Exclusion of Election Returns and to Declare Void Ab Initio Proclamation of 'Nene'
Pimentel" was furnished to Atty. Gonzales.
During the hearing before the Comelec (Second Division) on May 24, 1984, Cagayan de Oro City
Fiscal Noli Catli, a member of the Board of Canvassers, testified before the respondent Commission.
Fiscal Catli categorically admitted, upon questioning by Commissioner Jaime Opinion, that during
the canvassing held on May 15, 1984, private respondent Pedro N. Roa, thru duly authorized
representatives, objected in writing to the inclusion in the canvass of 53 election returns from 53
voting centers as well as to 176 election returns which arrived in three bundles tied with plastic
ribbons. Fiscal Catli likewise admitted that the Board overruled all objections raised by Roa's
representatives and decided to include in the canvass each and every election return objected to,
and, thereafter, proclaimed herein petitioner Aquilino Q. Pimentel Jr. as the winning candidate,
without authority from the Comelec in Manila (pp. 14-16, Decision of Comelec dated Oct. 24, 1984).
At the hearing on May 31, 1984, Atty. Gonzales appeared again for petitioner Pimentel and
considering that the petitioner has not yet filed his responsive pleading, respondent Comelec gave
him three (3) days within which to file such pleading and reset, the case for June 5, 1984.
On May 30, 1984, herein petitioner, thru counsel Atty. Joker Arroyo, filed a Motion to Dismiss on the
ground that the respondent Commission has no jurisdiction over the person of petitioner Pimentel
for the reason that petitioner Pimentel has not been formally impleaded as party respondent by
herein private respondent (petitioner thereon) Pedro N. Roa,
On June 14, 1984, private respondent filed an Opposition to petitioner's Motion to Dismiss alleging
that: (a) Petitioner Pimentel has been impleaded as party respondent in a "Petition for Exclusion of
Election Returns and to Declare Void Ab Initio Proclamation of 'Nene' Pimentel"; and (b) petitioner
Pimentel is not an indispensable party because:
(1) the case before the Comelec is an appeal from the ruling of the City Board of Canvassers,
thus Comelec exercises appellate-jurisdiction;
(2) final determination could be had of the appeal without joining Pimentel.
On June 5, 1984, Comelec (Second Division) issued an Order which reads as follows:
After extensive oral arguments this morning, the parties are hereby given a period of five (5) days
from today within which to simultaneously submit their memoranda on all the issues raised in
today's hearing, including the appeal and the request for the production before this Commission, of
the Provincial Board of Canvassers' copies of the election returns n•w in Cagayan de Oro City. After
the submission of these memoranda, this case shall be considered submitted for resolution by this
Commission.
On June 20, 1984, respondent City Board of Canvassers filed its answer to the petition filed by
private respondent.
On June 20. 1984, respondent Comelec issued the first questioned resolution (Annex "G", pp. 43-50,
rec.), the dispositive portion of which reads:
In view of the foregoing, the Commission (Second Division) resolved:
a) To deny the Motion to Dismiss;
b) To order the records of the proceedings of the Board of Canvassers including the minutes, the
pleadings, documents and submission filed before said Board by the parties, and the election
returns contested during the canvassing namely: 21 to 199, 205, 220, 224, 224-A, 228-A, 231, 2381
238-A, 245, 247, 247-A, 248, 249, 249-A, 253, 255, 255-A, 258, 260-A, 277, 278, 282, 284, 287, 288,
294, 295, 298, 300, 302, 303. 305. 310, 312, 345, 347, 353, 357, 358, 359, 361, 376 and 373-A be
brought to the Commission on Election, Manila, not later than June 25, 1984.
In this connection, the Chairman of the Board of Canvassers of Cagayan de Oro City, Jose Amarga Jr.
is hereby directed to bring the aforementioned election documents and paraphernalia and election
returns with prior notice to the petitioner and Aquilino Pimentel Jr. and informing these parties as
to the date (June 25, 1984) and time said election documents and election returns shall be brought
to Manila including the transportation to be taken. The Chairman of the Board of Canvassers is
3
hereby also directed to provide adequate security of the transporting of these election documents
and election returns to Manila and to allow the parties to accompany these election returns and
documents to the Commission on Elections office in Manila.
The Provincial Commander of Misamis Oriental is hereby ordered to provide necessary security to
accompany the election returns, and other election documents mentioned in this resolution from
Cagayan de Oro City until they are deposited with the Commission on Election in Manila.
On June 26, 19S4, the case was heard and at the said hearing, counsel for petitioner Pimentel raised
the following points, wit:
a that the 53 election returns questioned by private respondent would not be sufficient to
change the results of the election and Pimentel would still come out the winner:
b that the 176 election returns from Voting Center Nos. 21 to 199 (except 198 & 109) could
not be the subject of an appeal before the Comelec as these returns were not duly protested to in
writing during the canvass in Cagayan de Oro City as required by Section 54 of BP 697.
Prolonged oral arguments were then had on the issues raised the parties herein, after which, the
parties were required by, respondent Commission (Second Division) to submit their memoranda on
the question of whether or not the aforementioned 176 election returns are included in the present
pre-proclamation case.
On July 10, 1984, the respondent Commission (Second Division) issued the second questioned
resolution (Annex "H", Petition, pp. 52-57, rec.) ruling that the 176 election returns are included in
the pre-proclamation case, and ordering the transfer of the 229 election returns as previously
ordered in the June 20,1984 resolution. The dispositive portion of said resolution reads:
WHEREFORE, the Commission (Second Division) resolved:
To order the records of the proceedings of the Board of Canvassers including the minutes, the
pleadings and all other documents filed before said Board by the parties, and the election returns
contested during the canvassing enumerated in the first paragraph of this Resolution be brought to
the Commission on Elections, Manila, not later than July 13, 1984.
To order the petitioner Pedro Roa and respondent Aquilino Pimentel to submit their exhibits,
affidavits and other submission on the election returns sought to be excluded/included in the
canvass by the City Board of Canvassers within five days from receipt of this order.
In this connection, the Chairman of the Board of Canvassers of Cagayan de Oro City, Jose Amarga, Jr.,
is hereby directed to bring the aforementioned records and election returns with prior notice to the
Petitioner and respondent Aquilino Pimentel, Jr. and informing these parties as to the date (July 13,
1984) and time the same shall be brought to Manila including the transportation to be taken. The
Chairman of the Board of Canvassers is hereby also directed to provide adequate security for the
transporting of these election documents and election returns to Manila and to allow the parties to
accompany the same in transit to the Commission on Elections office in Manila.
The Provincial Commander of Misamis Oriental is hereby ordered to provide the necessary security
to accompany the election returns and other election documents mentioned in his resolution from
Cagayan de Oro City until they are deposited with the Commission on Elections in Manila."
On July 17, 1984, herein petitioner Pimentel filed an Urgent Motion with respondent COMELEC
assailing the jurisdiction of the Second Division of respondent Commission on the ground that it
does not have the authority to decide controversies involving members of the National Assembly
which can only be decided en banc.
On August 4, 1984, respondent COMELEC issued a resolution denying petitioner's motion of July 17,
1984 and reiterating therein the transfer from Cagayan de Oro City to Manila of the 229 election
returns including other election documents.
On July 30, 1984, herein petitioner Pimentel filed with this Court the instant petition for certiorari,
prohibition and mandamus with restraining order, praying among others that the COMELEC Second
Division has no jurisdiction over the subject matter and over his person.
On July 31, 1984, We resolved to require the respondents to comment on the petition for certiorari,
prohibition and mandamus with prayer for a writ of preliminary injunction (p. 85, rec.).
On August 8, 1984, herein petitioner Pimentel filed an "Urgent Motion for Leave to Reiterate Prayer
for Issuance of Restraining Order" (pp. 86-89, rec.).
On August 9, 1984, this Court en banc issued a resolution (p. 92, rec.) quoted as follows:
G.R. No. 68113 (Aquilino Pimentel, Jr. vs. Commission on Elections, et al.).—Acting on the urgent
motion filed by counsel for petitioner for leave to reiterate the prayer in their petition for the
issuance of a restraining order, the Court Resolved to ISSUE a TEMPORARY RESTRAINING ORDER
limited to enjoining the respondent Commission on Elections or its duly authorized representatives
from ordering and/or implementing any order for the transfer of the pleadings, records, documents
and contested election returns mentioned and described in the COMELEC resolutions dated June 20,
1984 and July 10, 1984, (and reiterated in the Resolution dated August 4, 1984), from Cagayan de
Oro to the COMELEC offices in Manila, effective immediately and continuing until further orders
from this Court, it being understood that this restraining order does not enjoin the COMELEC from
acting on and resolving (subject to the terms of this restraining order which enjoins the transfer of
the said pleadings, records, documents and contested election returns to Manila) the urgent appeal
dated May 17, 1984 for annulment of canvass and proclamation and appointment of substitute
Board of Canvassers and the supplement to urgent appeal, dated May 18, 1984, praying for the (1)
annulment of the canvass and proclamation allegedly irregularly and illegally had; (2) appointment
of a new Board of Canvassers to ensure fair and just canvass and proclamation, and (3) constitution
of a newly appointed Board of Canvassers to recanvass all returns from the very beginning and to
cause the proclamation to whoever be determined as the winner.
On August 14, 1984, respondent Commission on Elections filed a "Motion to Dissolve Restraining
Order" (pp. 95-100, rec.).
On August 16, 1984, this Court resolved to amend the order dated August 9, 1984 and the
restraining order issued pursuant thereto, by adding two paragraphs thereto, to wit:
BOTH PETITIONER AQUILINO Q. PIMENTEL, JR. AND PRIVATE RESPONDENT PEDRO N. ROA ARE
HEREBY AUTHORIZED TO DETAIL AN EQUAL NUMBER OF UNARMED WATCHERS TO STAND
GUARD OUTSIDE THE BUILDING WHERE THE ELECTION RETURNS, BALLOT BOXES AND OTHER
ELECTION PARAPHERNALIA USED IN CONNECTION WITH THE ELECTION FOR ASSEMBLYMAN
FOR THE LONE SEAT FOR CAGAYAN DE ORO CITY HELD ON MAY 14,1984 ARE KEPT.
THE PC PROVINCIAL COMMANDER OR THE ASSISTANT PROVINCIAL COMMANDER OF MISAMIS
ORIENTAL IS DIRECTED TO PERSONALLY LEAD A PC TEAM ALSO TO STAND GUARD OUTSIDE THE
THIRTY (30) METER RADIUS FROM THE BUILDING WHERE THE ELECTION RETURNS, BALLOT
BOXES AND OII'HER ELECTION PARAPHERNALIA ARE KEPT, TO MAINTAIN PEACE AND ORDER IN
THE AREA.
Justice Aquino voted to grant the motion. (p. 102, rec.)
On September 5, 1984, respondent Commission on Elections filed its comment (pp. 132-168, rec.) in
compliance with the resolution dated July 31, 1984 of this Court.
4
On September 13 , 1984, private respondent Pedro N. Roa, thru counsel, filed his comment (pp. 172-
202, rec.).
On September 20, 1984, this Court resolved to give due course to the original petition filed by herein
petitioner Aquilino Q. Pimentel, Jr. (p. 330, rec.).
Respondent Roa submitted before the respondent COMELEC his evidence consisting of seven (7)
affidavits of Pimentel's Vigilantes '84 and affidavits of KBL inspectors, watchers, and registered
voters' stating that the election returns were prepared before the voting and or actual canvass by
the Citizens Election Committee.
Petitioner Pimentel waived his right to present evidence in his behalf after having been granted an
extension, upon his request, up to September 10, 1984 to submit his formal offer of evidence (pp.
429-430, Vol. 2 rec.).
On October 24,1984, respondent COMELEC promulgated a decision (pp. 390-478, rec.) on Pre-
Proclamation Case No. 1684, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered:
a) Declaring null and void ab initio the proclamation of respondent Aquilino Q. Pimentel as
elected member of the office of the Batasang Pambansa made by the Cagayan de Oro City Board of
Canvassers on May 16, 1984;
b) Declaring null and void the election returns from the following voting centers, namely:
37, 33. 39, 40, 41, 78, 85, 87, 88, 101, 103, 105, 106, 109, 122, 123, 124, 125, 126, 127, 129, 130,
131, 132, 133, 134, 136. 137-A, 140, 142, 142-A, 143, 144, 145, 146, 148, 149, 150, 151, 151-A, 152,
153, 155, 156, 157, 158, 164, 165, 166, 169, ',-70, 171, 172, 173, 174, 175, 176, 179, 180, 182, 183,
184, 187, 188, 190, 193, 194, 196, 197, 199, 245, 247-A, 249-A, 255, 255-A, 258, 282,
288,294,305,310,347,353,357,359,361;
c) Declaring that the total number of votes received by Aquilino Q. Pimentel Jr. and Pedro N.
Roa from the above annulled election returns which are 17, 651 and 11,439, respectively, be
deducted from the total number of votes accredited to them by the Board of Canvassers of Cagayan
de Oro which are 63,784 and 59,102 respectively, thus accrediting to Aquilino Q. Pimentel Jr., the
total of 46,133 votes and to Pedro N. Roa the total of 47,663;
d) Declaring that Pedro N. Roa, in view of the above, has received the highest number of
votes in the elections of May 14, 1984 in Cagayan de Oro City;
e) Proclaiming Pedro N. Roa as the duly elected Member for the Office of the Batasang
Pambansa for the Lone Seat of Cagayan de Oro City in the election of May 14, 1984;
f) To refer to the Law Department of this Commission an the affidavits presented for
inquiry and investigation regarding violation of the election laws; and
g) To direct the Executive Director of this Commission to furnish a copy of this Decision to
the Secretary General of the Batasang Pambansa at Quezon City. "This decision is final and no
motion for reconsideration will be entertained."
On October 25, 1984, this court acting on the urgent motion for the issuance of a writ of preliminary
prohibitory injunction and to cite the members of the Second Division of respondent Commission on
Elections in contempt of court, filed by petitioner herein, dated October 25, 1984, the Court resolved
to require the respondents to comment on the aforesaid urgent motion and set for hearing the
prayer for the issuance of a temporary restraining order on October 30, 1984.
On October 29, 1984, herein private respondent filed his comment (pp. 480-490, rec.). alleging,
among others, that he took his oath as Mambabatas Pambansa (MP) on October 25, 1984.
On October 29, 1984, respondent Comelec filed its comment (pp. 494-507, rec.).
On October 31, 1984, this Court issued a temporary restraining order which, inter alia, enjoins both
petitioner Aquilino Q. Pimentel, Jr. and respondent Pedro N. Roa, from discharging the functions of a
member of Batasang Pambansa for Cagayan de Oro City until further orders of the Court.
On November 7, 1984, respondent Pedro N. Roa, thru counsel, filed a motion for reconsideration of
the resolution of October 31, 1984.
In a resolution dated November 8, 1984, this Court resolved to require the petitioner to comment on
the motion filed by respondent Pedro N. Roa.
On November 9, 1984, petitioner Aquilino Q. Pimentel, Jr. filed a counter-manifestation to the
motion for reconsideration filed by respondent Pedro Roa of the resolution dated October 31, 1984.
On November 12, 1984, respondent Pedro N. Roa filed a reply to the counter-manifestation of
petitioner Pimentel dated November 9, 1984. On November 13, 1984, petitioner Aquilino Q.
Pimentel, Jr, filed a motion for reconsideration of the resolution dated October 31, 1984 and the
temporary restraining order issued on November 2, 1984.
Also on November 13, 1984, private respondent Roa filed a supplement to manifestation dated
November 6, 1984.
Likewise, on November 13, 1984, this Court issued a resolution requiring the respondents to
comment on the motion filed by counsel of petitioner for the reconsideration of the resolution of
October 31, 1984.
On November 15, 1984, petitioner Aquilino Q. Pimentel, Jr. filed a report together with the official
report of the Station Commander of the Integrated National Police (INP) Command of Cagayan de
Oro City, Lt. Col. Jeronimo M. Bagsican, submitted to the Provincial Commander/Police,
Superintendent, Misamis Oriental PC, INP Command, Camp Alajar, Cagayan de Oro City, as well as
the certification of the City Treasurer of Cagayan de Oro City relative to the condition of the ballot
boxes in the storeroom of the Property Division, City Treasurer's Office, Cagayan de Oro City.
On November 19, 1984, respondent Pedro N. Roa filed his comment/opposition to petitioner's
motion for reconsideration.
Also on November 19, 1984, public respondent COMELEC (Second Division) filed its comment on
petitioner Pimentel's motion for reconsideration of this Court's resolution dated October 31, 1984.
Likewise, on November 19, 1984, respondent COMELEC filed a motion for reconsideration of this
Court's resolution of October 31, 1984 insofar as it resolved to:
(3) Order, as part of the proceedings herein in the exercise of its powers under the
constitution, that the ballot boxes containing the 228 questioned election returns and the ballots be
brought to the Supreme Court with adequate security accompanied by representatives of
respondent Commission on Election as well as of both petitioner Pimentel and respondent Roa for
the purpose of counting the votes in the presence of counsel of the above parties and thereafter
determining in accordance with the applicable laws who is entitled to the office of assemblyman for
Cagayan de Oro City.
5
On November 20, 1984, this Court issued a resolution relative to the report filed by petitioner
Aquilino Q. Pimentel, Jr. requiring the parties to comment on the aforesaid report.
On November 21, 1984, petitioner Aquilino Q. Pimentel, Jr. filed his consolidated opposition to
respondent's separate motions for reconsideration and consolidated reply to respondents' separate
comments to petitioner's motion for reconsideration.
On November 29, 1984, this Court issued a resolution requiring the COMELEC to forward to this
Court the complete records of PPC No. 610-84, entitled KBL and/or Pedro N. Oloy Roa vs. City Board
of Canvassers of Cagayan de Oro City, minutes of the canvass proceedings of the City Board of
Canvassers of Cagayan de Oro City canvassing the election returns.for assemblyman for the lone
seat in Cagayan de Oro City, certificate of canvass and copies of any written objections submitted
during the canvassing under See. 54 of Batas Pambansa Blg. 697. The same resolution also ordered
the canvassing Board Chairman, Atty. Jose B. Amarga, Regional Legal Officer, and Atty. Benardita F.
Cabacungan, City Election Registrar, both in Cagayan de Oro City, to submit to this Court certified
true copies of the items stated above. The Clerk of Court of this Court was likewise directed to send
such order to Cagayan de Oro City by telegram,
On December 6, 1984, respondent COMELEC filed a manifestation and motion stating that it was not
in a position ,o make any comment on the report of the station commander of the IN P command of
Cagayan de Oro City dated November 8, 1984, and the certification of the City Treasurer of Cagayan
de Oro City as to the condition of the ballot boxes in the storeroom of the Property Division, City
Treasurer's Office, Cagayan de Oro City.
On December 10, 1984, petitioner Aquilino Q. Pimentel, Jr. filed with this Court a manifestation in
connection with the resolution dated November 29, 1984, stating inter alia, that Commissioner
Sagadraca of the COMELEC was not in the Philippines when the contested resolution was
promulgated by respondent COMELEC on October 24, 1984.
On December 17, 1984, respondent Pedro N. Roa, thru counsel, filed his comment on the petitioner's
report dated November 15,1984,
On December 19, 1984. this Court, in a resolution, resolved issue the implementing order of its
October 31, 1984 resolution. thus:—
xxx xxx xxx
2. To issue subpoenas duces tecum to the chairman of the City Board of Canvassers, Atty.
Jose Amarga, Jr., and the City Election Registrar, Atty. Bernardita F. Cabacungan, and/or the City
'Treasurer of Cagayan de Oro City to produce and deposit with the Supreme Court offices in Manila
the aforesaid 228 ballot boxes, keys and election returns of the canvassing and to assist and
coordinate closely with Gen. Ramos in safely bringing said ballot boxes, keys and election returns to
Manila as herein above directed.
3. To designate Acting Court Administrator Arturo Buena and,'or Deputy Court
Administrator Leo Medialdea as the Court's Official representative(s) to assist and coordinate
closely with Gen. Ramos and all the parties concerned in the safe transportation of the aforesaid 228
ballot boxes, keys and election returns from Cagayan de Oro City to Manila and for their safe deposit
in the Supreme Court offices in Manila.
4. Finally, to direct that such transportation and deposit of "he aforesaid 228 ballot boxes,
keys and election returns from Cagayan de Oro to the Supreme Court offices in Manila be effected
not later than Monday, January 14, 1985. after which all parties concerned will be served with
notice of the commencement of the proceedings for the examination of the election returns in
question and opening of the ballot boxes and counting of the votes if determined by the Court to be
in order.
On December 21, 1984, the COMELEC filed with this Court an urgent manifestation.
On January 11, 1985, respondent Pedro Roa filed with this Court a Motion to declare petition
deemed dismissed.
On January 16, 1985, respondent Roa filed an Omnibus Motion with this Court,
On January 17, 1985, this Court resolved, inter alia, to set the case for hearing on January 22, 1985
and to require both parties to produce their copies of the disputed election returns.
On January 21, 1985, petitioner Pimentel filed his Comment,/Opposition re respondent Roa's
Omnibus Motion.
On January 22, 1985, respondent Pedro N Roa filed a Reply Comment/Opposition (to omnibus
motion dated January 15 1985) and a Citation of Authorities (re Omnibus motion dated January
1985).
On January 24, 1985, this Court issued a resolution denying the respondent's omnibus motion and
ordering the respondent to produce his copies of the disputed election returns, pursuant to the
Resolution of January 17, 1985.
On February 21, 1985, petitioner Pimentel filed a Motion seeking clarification as to what specific
provisions of the Election Code should govern the proceedings to be conducted by this Court, and
likewise praying that the temporary restraining order enjoining him from discharging the duties
and performing the functions of member of Parliament for Cagayan de Oro City be lifted. On
February 28, 1985, respondent Pedro N. Roa filed a Memorandum on the recanvass of the 225
election returns.
On March 1, 1985, petitioner Pimentel filed a Summation of his observations on the election returns
earlier examined by this Court.
On March 6, 1985, private respondent Roa filed his Reply to petitioner's summation.
Also on March 6, 1985, petitioner Pimentel filed a reply summation.
On March 13, 1985, respondent Pedro N. Roa filed his Comment on petitioner's motion dated
February 21, 1985.
On March 27, 1985, petitioner Pimentel, thru counsel, filed an Opposition and Manifestation to the
motion filed by respondent COMELEC dated March 12, 1985 for extension of time (30 days) within
which to file its comment on petitioner's motion that Sections 172, 173, and 174 of the 1978
Election Code should govern the revision proceedings before this Court.
On April 1, 1985, respondent COMELEC filed its Comment on petitioner's motion dated February 21,
1985.
In a resolution dated April 25, 1985, this Court, after examination of the 225 election returns,
resolved by a vote of ten to two, to proceed with the opening of 225 ballot boxes and to count the
ballots therein by the Justices themselves without need or assistance of any expert. The resolution
also created three groups of revisors, each group composed of three members, one representing the
Court as Chairman, one representing the petitioner, and the other one representing the respondent.
The revisors were directed to finish the counting of the ballots, segregating disputed and
undisputed ballots and to submit weekly reports to the Court.
6
On April 30, 1985, petitioner Pimentel submitted the names of his representatives and/or
substitutes to the groups of revisors, pursuant to the resolution of the Court dated April 25, 1985.
On May 2, 1985, private respondent Pedro N. Roa, thru counsel, filed his compliance to the
resolution of the Court dated April 25, 1985. In his compliance, private respondent herein submitted
the names of three persons (Mr. Eduardo Maniwang, Atty. Desiderio A. Pagui, and PC/LT. Pelagio A.
Casilao (Ret.) as "experts on questioned documents as revisors in the appreciation and counting of
the ballots." The same compliance also listed the names of three other substitutes.
In a resolution dated May 7, 1985, this Court denied and/or disapproved the designation by counsel
for private respondent of the experts on questioned documents as respondent's representatives and
substitutes.
On May 9, 1985, private respondent Pedro N. Roa filed a motion for reconsideration of the Court's
resolution dated May 7, 1985.
On May 28,1985, petitioner Pimentel filed a Motion praying that the one-month period within which
the revision of the ballots should be terminated be made non-extendible and that the revision
should be governed by Section 40 of Batas Pambansa Blg. 697. It was also prayed that the team of
revisors be increased from three to ten.
On May 30, 1985, this Court resolved to require the respondent to comment on the motion filed by
petitioner on May 28, 1985.
On June 3, 1985, petitioner herein filed a supplemental motion to motion filed on May 28, 1985.
On July 2, 1985, the Court resolved:
... (1) that the appreciation and counting of the ballots inside the questioned 225 ballot boxes shall
be govemed by all the applicable rules and principles and said 22,5 ballot boxes shall be opened in
numerical order in accordance with the resolution of April 25, 1985; (2) that only the chairman of
each group of revisors shall be allowed to handle or touch the ballots; (3) that the disputed ballots
shall be marked as exhibits of the party disputing the same; (4) that the marking of the exhibits shall
be done only by the chairman of each group of revisors; (5) that the parties and the chairmen of the
groups of revisors shall meet again to discuss the forms to be used in the revision, not later than July
5, 1985; (6) that the groups of revisors shall be increased from three to ten should the same be
necessary to speed up the revision; (7) that the revision by the teams of revisors shall commence at
9:00 o'clock in the morning on July 8, 1985 and shall continue daily thereafter until such
appreciation and counting are completed within one month thereafter, as directed in the April 25,
1985 Resolution; and (8) that the public shall be excluded from the revision room so that the groups
of revisors will be free from any form of disturbance, interference or distraction while performing
their duties.
On October 11, 11985, petitioner Aquilino Q. Pimentel, Jr. filed a Motion to Resolve and/or To Lift
Temporary Restraining Order in Respect to Petitioner Pimentel, In a resolution dated October 15,
1985, this Court required respondent Roa to comment on the aforesaid motion.
On October 28, 1985, private respondent Roa filed his Comment to Pimentel's motion dated October
11, 1985 and filed on the same day.
The COMELEC, in its decision dated October 24, 1984, stated that in arriving upon the conclusion
that there was a serious common irregularity in the preparation of all the 87 election returns-
specifically the fact that the election returns of the 87 voting centers were completed before the
counting of the ballots was finished-it was guided or aided by the totality of the evidence and
circumstances, namely:
xxx xxx xxx
b) The unrebutted joint affidavit of seven (7) members of Pimentel's Vigilantes '84' that they
picked up three (3) bundles of election returns corresponding to Voting Centers Nos. 21 to 199
except Voting Center No. 108 and 198, from a restaurant and brought the same to the house of
Pimentel, all on Pimentel's order in the evening of May 14, 1984;
c) The unexplained appearance of these three (3) bundles of election returns on the table of
Atty. Jose Amarga, Chairman of the Board when the Board resumed in the morning of May 15, 1984;
d) The unrebutted testimonies of 87 witnesses, each categorically stating among others that
the 87 election returns (one -,witness for each return) were accomplished without finishing the
counting of the ballots.
xxx xxx xxx
Respondent Roa objected in writing to the inclusion in the canvass of three bundles of election
returns coming from Voting Centers Nos. 21-199, inclusive, except those coming from voting centers
Nos. 109 and 198; on the ground that the manner of their delivery and transmittal was not in
accordance with Sec. 46 of B.P. 697, thereby causing serious doubts as to its integrity and
authenticity. In support of said allegation, respondent Roa submitted the joint affidavit of seven
persons who alleged that they are members of "Vigilantes '84", a supposed political action group of
Pimentel's PDP-Laban of Cagayan de Oro City. These seven persons stated that they obtained three
bundles of election returns from a restaurant in downtown Cagayan de Oro City which they brought
to the house of Pimentel. These three bundles of election returns allegedly found their way in the
morning of May 15, 1985 to, the office of Atty. Jose Amarga, the Chairman of the Board of Canvassers
of Cagayan de Oro City.
Aside from the joint affidavit of the seven members of the "Vigilantes '84", respondent Roa likewise
submitted a total of 105 affidavits, all concerning the manner of the elections, the counting of the
ballots and the preparation of the election returns in the following voting centers: 26, 37, 38, 39, 40,
41, 42, 60, 61, 62, 78, 82, 83, 85, 87, 88, 94, 98, 101, 103, 104, 105, 106, 109, 122, 123, 124, 125, 126,
127, 129, 130, 131, 132, 133, 134, 136. 140, 137-A, 138, 139, 142, 142-A, 143, 144, 145, 146, 148,
149, 150, 151, 151, A, 152, 153, 155,
156,157,158,164,165.166,168,169,170,171,172,173,174,175,176,179,180, 181, 182, 183, 184, 187,
188, 189, 190, 193, 194, 195, 196, 197, and 199 which voting centers correspond to some of the
election returns which arrived in three bundles.
In its decision dated October 24, 1984, respondent Comelec
xxx xxx xxx
We are not prepared to annul or overcome the presumption of validity of the election returns on the
mere fact that their delivery to the Board was not in accordance with the law, particularly Section
46 of B.P. 697. For this reason, the election returns enumerated and protested in Exhibit A as well as
those protested which comprise the three (3) big bundles and which do not have corroborative or
direct evidence to show any anomaly in the preparation of said returns are valid and good returns
and should be included in the canvass.
It should be emphasized that in arriving at the conclusion that there was a serious common
irregularity in the preparation of 87 election returns, respondent Comelec relied mainly on the joint
affidavit of seven (7) members of Pimentel's so called "Vigilantes '84" and on the affidavits of some
KBL inspectors/watchers and registered voters. Respondent Comelec, based solely on the aforesaid
affidavits presented before it, made the sweeping conclusion that the 87 election returns have lost
their authenticity and genuineness and must be considered as falsified returns which would
necessitate their exclusion from the canvass, This conclusion reached by the respondent Comelec
7
runs counter to the settled doctrine that the Comelec must exercise "extreme caution" in rejecting
or excluding election returns and may do so only upon conclusive proof that the returns are
obviously manufactured (Anni vs. Isquierdo, et al., L-35918, June 28, 1974, reaffirmed and
reiterated in Aratuc vs. Comelec, 88 SCRA 251, 282-283). The respondent Comelec should have
compared its own copies of the election returns with the copies of the election returns of both
parties pertaining to the 225 voting centers, which copies were furnished them separately from the
copies submitted to the Board of Canvassers (Sec. 42, Batas Pambansa No. 697).
From the examination by the lawyers of both parties presided by Justices Teehankee, Makasiar,
Herrera, Relova and Cuevas of the 225 ballot boxes in open court, and the copies of the election
returns contained therein, as well as the comparison of said copies of the election returns inside the
ballot boxes with the copies of petitioner Pimentel and the copies of respondent Roa, no tampering
appeared on the physical condition of the ballot boxes, although there were minor discrepancies in
some copies of the election returns.
The findings of the respondent Comelec that there was a serious common irregularity" in the
preparation of the 87 election returns, is completely belied by the findings of the Group of Revisors
created by this Court purposely to aid this Court in the appreciation of the ballots and the election
returns of the 225 voting centers disputed by the parties herein.
I which copies were also presented or submitted to the Court during the examination of the physical
As heretofore stated, the canvass by the Board of Canvassers of all the votes from all the Voting
Centers in Cagayan de Oro City shows that petitioner Pimentel garnered 63,784 votes, while
respondent Roa obtained 59,102, giving Pimentel a majority of 4,682 votes.
II
In order to aid the Court in the appreciation of the ballots of ,the 225 voting centers, the Court
created six (6) teams of Revisors.
Each team of revisor was composed of Acting Court Administrator Arturo B. Buena, Deputy Court
Administrator Romeo D. Mendoza, Deputy Court Administrator Leo D. Medialdea, Deputy Clerk of
Court Vicente Bengzon, Deputy Clerk of Court Daniel Martinez, Deputy Clerk of Court Demasita M.
Aquino, as Chairmen of their substitutes, namely Atty. Narciso Pena, Jr., Atty. Roberto Makalintal,
Atty. Orlando Carino, Atty. Reynold Yaneza, Atty. Rogelio de Lacuesta and Atty. Virginia A. Soriano,
all Supreme Court employees, and one representative each from Pimentel and Roa.
In the course of the revision of the ballots, the six teams of revisors likewise found out that the ballot
boxes were generally, in good condition, properly sealed by padlocks and secured by Comelec metal
seals,
There was no indication that the padlocks and the Comelec metal seals were tampered with,
although some metal seals were not locked.
The revision teams observed that the ballots cast for the different candidates, which were
meticulously and carefully appreciated and counted during the revision, tallied with the votes
credited to said candidates and duly recorded in the election returns found inside the ballot boxes.
Although there were discrepancies noted by the revision teams, however. the same were very,
minor, presumably due to human error in the preparation of and entering minor data -in the
election returns.
The revision teams concluded that there was no indicium of irregularity in the preparation of the
election returns pertaining to the 225 voting centers, including the 87 voting centers whose election
returns were annulled by the respondent Comelec.
The omission to lock some metal seals attached to a few ballot boxes annd the minor lapses in the
preparation, of and in the entries of some data copies of said election returns could be ascribed to
the fact that the preparation of the election returns was done close to midnight subsequent to the
conclusion of the canvass in the voting centers when the members of the Citizen Election Committee
were already tired and hungry, aggravated by lack of adequate lighting.
It should be recalled that as late as 10:15 P.M. of May 14, 1984, only 20 election returns were
received by the Board of Canvassers, which was constrained to postpone the canvass the following
morning of May 15, 1984.
The six teams of Revisors categorized the objections of the contending parties into SERIOUS,
DOUBTFUL and FRIVOLOUS.
Likewise included in the classification of disputed ballots are the ballots claimed by either partv,
which ballots were not counted by the Citizen Election Committee in favor of either candidate
although they were contained inside the ballot boxes.
After the revision of the ballots coming from the questioned 225 voting centers, the Chairmen of the
6 teams of revisors submitted their summary and evaluation which included the figures appearing
in the copies of the election returns in the possession of the election registrar (The City Treasurer)
condition of the ballot boxes and the comparison of the entries in the copies of the election returns
contained in the ballot boxes and the copies of the said election returns of the parties before the
aforementioned members of the Court,
III
The revision by the teams of revisors of the ballots coming from the challenged 225 voting centers
shows that respondent Roa objected to 26, 846 votes which were counted in favor of petitioner
Pimentel; while petitioner Pimentel objected to 30, 158 votes which were counted in favor of
respondent Roa.
Deducting the 26, 846 votes for Pimentel but objected to by - espondent Roa from the overall total
of 63,784 votes in favor of Pimentel, leaves a balance of 36,938 -%notes for Pimentel.
Deducting the 30,158 votes of Roa but objected to by Pimentel from Roa's overall total of 59,102
votes, leaves a balance of 28,944 votes for Roa. The balance of 36,938 votes for Pimentel still gives
Pimentel a majority of 7,994 votes over i.lie balance of 28,944 votes in favor of respondent Roa.
The copies of the election returns of the election registrar pertaining to the aforesaid 225 voting
centers show that Pimentel obtained 37,619 votes, as against Roa's 31,962, which still gives
Pimentel a majority of 5,667 votes.
The copies of the election returns of the Board of Canvassers covering the 225 voting centers, show
that Pimentel obtained 37,529 votes as against Roa's 31,841 votes, giving Pimentel a majority of
5,688 votes. Respondent Roa, however, objected to the 26,846 votes for Pimentel. Deducting the
said 26,846 votes from Pimentel's 37,529 and 37,619, leaves a balance respectively of 10,683 votes
and 10,773 votes for Pimentel.
Pimentel objected to the 30,158 votes for Roa. Deducting the said 30,158 votes from 31,841 votes
and 31,962 votes, leaves a balance of 1,683 votes and 1,804 votes respectively for Roa.
Deducting the 1,683 votes and 1,804 votes respectively for Roa from the 10,683 votes and 10,773
votes for Pimentel, leaves a balance of 9,000 and 8,969 votes, respectively, for Pimentel.
8
From the foregoing mathematical computation, it is therefore clear that petitioner Aquilino Q.
Pimentel, Jr. has obtained the highest number of votes during the election of May 14, 1984 for
members of the Batasang Pambansa in Cagayan de Oro City.

The City of Cagayan de Oro —a highly urbanized city—has been without representation in the
Batasang Pambansa since October 31, 1984, when this Court issued the temporary restraining order
enjoining both petitioner Aquilino Q. Pimentel, Jr. and respondent Pedro N. Roa from discharging
the functions and performing the duties of a member of the Batasang Pambansa. It would be unfair
to the people of Cagayan de Oro City to be left indefinitely without representation in the Batasang
Pambansa.

This case is merely a pre-proclamation dispute. Respondent Roa can still file a regular election
protest, during the hearing of which the disputed ballots will be examined and appreciated.

WHEREFORE, THE DECISION OF THE RESPONDENT COMELEC (SECOND DIVISION) OF OCTOBER

24, 1984 IS HEREBY ANNULLED AND SET ASIDE. THE TEMPORARY RESTRAINING ORDER
HERETOFORE ISSUED 1S HEREBY LIFTED INSOFAR AS IT CONCERNS PETITIONER AQUILINO Q.
PIMENTEL, JR.. THIS IS WITHOUT PREJUDICE TO THE RIGHT OF RESPONDENT ROA TO FILE A
REGULAR ELECTION PROTEST WITHIN TEN (10) DAYS FROM THE DATE THIS DECISION BECOMES
FINAL. THIS DECISION IS IMMEDIATELY EXECUTORY. NO COSTS.

SO ORDERED.

9
[G.R. No. 158371. December 11, 2003]
SONIA R. LORENZO, petitioner, vs. COMMISSION ON ELECTIONS, BENJAMIN S. ABALOS, SR., in
his capacity as Chairman, Commission on Elections, and NESTOR B. MAGNO, respondents.
DECISION
YNARES-SANTIAGO, J.:
Petitioner Sonia R. Lorenzo and respondent Nestor B. Magno were rival candidates for Mayor of San
Isidro, Nueva Ecija in the local elections of May 14, 2001. A certain Carlos Montes, resident of San
Isidro, filed with the Commission on Elections a petition, docketed as SPA 01-153, for the
disqualification of respondent Magno as a candidate on the ground of his conviction by the
Sandiganbayan of four counts of Direct Bribery. On May 7, 2001, the COMELEC Second Division
issued a Resolution disqualifying respondent Magno. This was affirmed on appeal by the COMELEC
En Banc on May 12, 2001.
The aforesaid Resolution was disseminated for implementation by the Municipal Board of
Canvassers of San Isidro. Hence, on May 18, 2001, petitioner Lorenzo was proclaimed as the Mayor-
elect of San Isidro.
Meanwhile, respondent Magno brought a petition for certiorari before this Court, assailing his
disqualification by the COMELEC, which petition was docketed as G.R. No. 147904. On October 4,
2002, this Court rendered a Decision reversing and setting aside the two challenged Resolutions of
the COMELEC dated May 7 and 12, 2001, and declaring that Magno was under no disqualification to
run for mayor of San Isidro, Nueva Ecija in the May 14, 2001 elections. The relevant portion of the
Decision reads:
[A]lthough [Magnos] crime of direct bribery involved moral turpitude, petitioner nonetheless could
not be disqualified from running in the 2001 elections. Article 12 of the Omnibus Election Code (BP
881) must yield to Article 40 of the Local Government Code (RA 7160). [Magno]s disqualification
ceased as of March 5, 2000 and he was therefore under no such disqualification anymore when he
ran for mayor of San Isidro, Nueva Ecija in the May 14, 2001 elections.
Unfortunately, however, neither this Court nor this case is the proper forum to rule on (1) the
validity of Sonia Lorenzos proclamation and (2) the declaration of petitioner as the rightful winner.
Inasmuch as Sonia Lorenzo had already been proclaimed as the winning candidate, the legal remedy
of petitioner would have been a timely election protest.
WHEREFORE, the instant petition is hereby PARTIALLY GRANTED. The challenged resolutions of
the Commission on Elections dated May 7, 2001 and May 12, 2001 are hereby reversed and set
aside. The petitioners prayer in his supplemental petition for his proclamation as the winner in the
May 14, 2001 mayoralty elections in San Isidro, Nueva Ecija, not being within our jurisdiction, is
hereby denied.
SO ORDERED.[1]
On October 21, 2002, respondent Magno filed an Omnibus Motion with the COMELEC in SPA 01-153,
seeking: (a) that his name be reinstated in the certified list of candidates for municipal mayor of San
Isidro, Nueva Ecija in the May 14, 2001 local election; (b) the nullification of the proclamation of
Lorenzo as mayor of San Isidro, Nueva Ecija; (c) that a special board of canvassers be formed to
continue the canvas of votes cast in favor of respondent Magno; and (d) after completion of the
canvas, that Magno be proclaimed the winner.
The COMELEC En Banc thereafter issued a Resolution dated May 13, 2003, wherein it (a) ordered
the creation of new Boards of Election Inspectors for all precincts in the municipality of San Isidro,
for the purpose of counting the votes cast for Magno and preparing new election returns for
submission to the Municipal Board of Canvassers of San Isidro; and (b) constituted a new Municipal
Board of Canvassers for the purpose of canvassing said election returns and submitting the results
to the COMELEC.
Subsequently, on May 22, 2003, the COMELEC partially modified the above Resolution to order the
immediate constitution of a new Municipal Board of Canvassers, it appearing that the old Municipal
Board of Canvassers of San Isidro, Nueva Ecija had already canvassed all the election returns for all
precincts except the votes for Magno. The COMELEC reiterated the directive in an Order dated June
10, 2003, and ordered the immediate implementation and execution thereof.
Hence, the instant petition for certiorari and mandamus, assailing the validity of the Resolution
dated May 13, 2003 and the Orders dated May 22, 2003 and June 10, 2003.
On June 17, 2003, this Court directed public respondents to observe the status quo prevailing before
the filing of the petition.
Petitioner argues that the COMELECs order for the canvass of votes defies this Courts ruling in G.R.
No. 147904 that Magno should have filed an election protest.
We find in favor of the respondent.
Well settled is the doctrine that election contests involve public interest, and technicalities and
procedural barriers should not be allowed to stand if they constitute an obstacle to the
determination of the true will of the electorate in the choice of their elective officials.[2] Also settled
is the rule that laws governing election contests must be liberally construed to the end that the will
of the people in the choice of public officials may not be defeated by mere technical objections.[3] In
an election case, the court has an imperative duty to ascertain by all means within its command who
is the real candidate elected by the electorate.[4]
As a general rule, the proper remedy after the proclamation of the winning candidate for the
position contested would be to file a regular election protest or a petition for quo warranto.[5] This
rule, however, admits of exceptions, to wit: (1) where the board of canvassers was improperly
constituted; (2) where quo warranto was not the proper remedy; (3) where what was filed was not
really a petition for quo warranto or an election protest but a petition to annul the proclamation; (4)
where the filing of a quo warranto petition or an election protest was expressly made without
prejudice to the pre-proclamation controversy or was made ad cautelam; and (5) where the
proclamation was null and void.[6]
This case falls squarely within the fifth exception to the general rule, i.e. the proclamation of
Lorenzo as Mayor of San Isidro was null and void. As of May 18, 2001, the date on which Lorenzo
was proclaimed Mayor-elect of San Isidro, the question as regards Magnos qualifications for said
post was still pending, and was raised as an issue before this Court in certiorari proceedings in G.R.
No. 147904. The question of Magnos qualifications for the office of Mayor was not resolved until
October 4, 2002, when we expressly ruled that Magno was qualified for said post.[7]
Since the question of Magnos eligibility for the position of Mayor was still pending, the canvass
which excluded Magno from the list of qualified candidates was an incomplete canvass, and
Lorenzos proclamation, on the basis thereof, was illegal. An incomplete canvass is illegal and cannot
be the basis of a valid proclamation.[8]
In a long line of cases, we have affirmed the power of the COMELEC to annul an illegal canvass and
an illegal proclamation,[9] which respondent COMELEC has implicitly done in its Resolution of May
13, 2003 and Orders of May 22, 2003 and June 10, 2003.
10
Moreover, as correctly argued by the Solicitor General, respondent Magno cannot be faulted for his
failure to file an election protest.[10] The question of his qualification or disqualification for the
position of Mayor had not yet been settled as of the expiration of the ten-day reglementary period.
As such, Magno was not yet eligible to file an election protest and, therefore, the fact that no such
protest was filed should not be an impediment to his proclamation as mayor if the results of the
canvass of the new Municipal Board of Canvassers would show that he garnered the highest number
of votes.

Petitioners other contentions that she was denied due process,[11] and that the COMELEC
Chairman modified an en banc resolution without notice and hearing[12] deserve scant
consideration.

First, the records of the case clearly show that petitioner was given full opportunity to participate in
SPA 01-153, both via due notice of and attendance at hearings and the opportunity to submit
memoranda and pleadings.

Second, there was no substantial modification of the COMELECs En Banc Resolution dated May 13,
2003. The Orders issued by respondent COMELEC Chairman dated May 22, 2003 and June 10, 2003
were merely to implement the COMELEC En Bancs Resolution, with the end goal of canvassing the
votes cast in the most expeditious way possible.

WHEREFORE, in view of the foregoing, the petition is DISMISSED. The Resolution dated May 13,
2003, and the Orders dated May 22, 2003 and June 10, 2003 of the Commission on Elections, which
(a) ordered the creation of a new Board of Election Inspectors for all precincts in the municipality of
San Isidro in Nueva Ecija; and (b) ordered the immediate constitution of a new Municipal Board of
Canvassers in San Isidro, Nueva Ecija, are hereby AFFIRMED.

SO ORDERED.

11
G.R. No. 82726 August 13, 1990
CIRILO M. QUILALA, petitioner,
vs.
THE HONORABLE COMMISSION ON ELECTIONS (Second Division), THE MUNICIPAL BOARD OF
CANVASSERS OF CURRIMAO, ILOCOS NORTE, and WILBUR GO, respondents.
Guerrero, Lazo & Associates for petitioner.
Valdez, Gonzales, Lucero & Associates for W. Go.
PARAS, J.:
Petitioner Cirilo M. Quilala was the KBL candidate for Mayor in the Municipality of Currimao, Ilocos
Norte while private respondent Wilbur Go was the official administration candidate for the same
position in the January 18, 1988 elections.
The Municipal Board of Canvassers of Currimao, Ilocos Norte completed its canvass of the election
returns in the afternoon of January 19, 1988, and immediately thereafter proclaimed the winning
candidates. The "Certificate of Canvass of Votes etc." (Annex C, p. 31, Rollo) dated January 19, 1988
states "that after such canvass, it appears that Wilbur C. Go received 2,594 votes for the Office of
Mayor of the aforesaid Municipality, the same being a plurality of the votes legally cast for the said
office."
On January 21, 1988, petitioner filed a petition with the respondent Commission on Elections,
docketed as SPC No. 88214. The petition is principally anchored on the allegation that petitioner
was not represented in the canvassing of the election returns, firstly, because the canvass was
conducted only in the morning of January 19, 1988 in gross and palpable violation of the provisions
of the Omnibus Election Code which requires the Board to immediately meet and canvass the
election returns not later than six o'clock in the afternoon of election day; Secondly because
petitioner was not notified of the resetting of the canvassing and the time, place and date when the
same would take place; and thirdly, because petitioner's representative was prevented from
witnessing the canvass, by elements of the Philippine Marines. Such absence of representation,
petitioner claims can be gleaned from the fact that the Certificate of Canvass of Votes and
Proclamation for the municipality does not contain the signature of the representative of the KBL.
On the basis of the above allegations, petitioner prays for a declaration of nullity of the canvass and
the proclamation of respondent Wilbur Go and for an order directing the Board of Canvassers to
conduct a proper canvass.
On April 6, 1988, respondent Commission on Elections (Second Division) issued its now assailed
Decision dismissing SPC No. 88-214 and confirming the validity of the proceeding of the Board of
Canvassers of Currimao, Ilocos Norte. The pertinent portion of the said Decision reads —
There is no dispute that petitioner was notified that the Board of Canvassers would convene to
canvass the election returns for Currimao at 6:00 p.m. on January 18, 1988 at the Municipal Hall of
the town. There is no dispute either that petitioner was not represented in the canvass until the
proclamation of private respondent Wilbur Go as winning candidate for Mayor. The disagreement is
as to the circumstances which brought about such absence of representation. (p. 19, Rollo)
xxx xxx xxx
The resolution of the issue regarding the non-representation of petitioner in the canvassing hinges
upon the credence that must be extended to the testimonies of the witnesses for petitioner and
respondent.
Petitioner would stress the admission of Mr. Anolin that he left the Municipal Hall around 6:00 p.m.
and conclude on that basis that he cannot claim that the Board convened at 6:00 p.m. In fact there is
not necessarily any inconsistency. It is possible, and the Commission believes, that the Board met
briefly at 6:00 p.m. and called for representatives of the political parties and when it appeared that
no election returns were available for canvass, Mr. Anolin left for his office and returned at 10:00
p.m.
But the meeting at 6:00 p.m. is important only in relation to the subsequent absence of the KBL
representative at 10:00 p.m. when the Board commenced actual canvass as the election returns
arrived.
While the presence of a candidate's or a party's watcher is a right under the law, Sec. 239, B.P. Big.
881, See. 25, R.A. 6646, Sec. 12, Res. No. 1965, there is no compulsion on the part of such candidate
or party to send such representative. The presence of such watchers may be waived, or such
watchers may deliberately or by mishap, fail to attend the canvassing. Such absence does not affect
the proceedings of the Board so long as notice of the proceedings had been properly served and an
opportunity to send a watcher was given. The duty to protect one's interest lies with the candidate
or the party.
The question that arises in this is whether the Board was required to serve another notice after it
recessed at 6:00 p.m.
We hold that there was no such necessity. It was the responsibility of petitioner or his watcher to
verify when actual canvass of the returns were going to be made. Such verification could have been
readily made notwithstanding the transfer of the venue of the canvass to another office in the
Municipal Building, firstly, because, the actual canvass was in the same municipal building, and,
secondly, because notwithstanding the temporary absence of the poll clerk, the two other members
of the board, the Chairman and the Vice-Chairman, remained in said building throughout the night
from 6:00 p.m. of January 18 until the termination of the canvass at 6:17 a.m. January 19, 1988.
We reject as unreliable the testimony of Ms. Laed that she checked all the rooms of the Municipal
Building after 6:00 p.m. when she could not locate the meeting of the Board because this is belied
even by the witness for the petitioner Mr. Sevilla who stated that he remained in his office from 6:00
p.m. onwards.
Witness also said on cross-examination that she returned to the Municipal Building only at around
3:00 a.m. of January 19, 1988 at which time she was allegedly prevented by Marines from entering.
If this were true, and considering that this was not the first election where Ms. Laed served as
watcher, this demonstrated the extent of the. interest of petitioner and his watcher in the
proceedings.
The rest of her testimony must likewise be rejected for want of credibility. Her claim, that she was
prevented by military men from entering the Municipal Building is belied by her admission that
teachers who were members of the Board of Election Inspectors came and went as they delivered
election returns. Her allegation that she simply stayed in the vicinity of the Municipal Building after
being barred from entering the same is not worthy of belief because this is not a natural reaction of
a watcher who is keenly interested in protecting the interest of her candidate.
Mr. Sevilla's own testimony is full of contradictions on material points. In his affidavit of January 21,
1988 he stated when the Board deliberated and canvassed the results of the election in the morning
of January 19, 1988, that lie noticed Tio representative for the KBL was present. (par. 2)
In his affidavit of January 24,1988, on the other hand he asserts that at about 10:00 p.m. of January
18, 1988 Mr. Balbuena (the Chairman) called him for the start of the canvass and he called the
attention of the latter to the absence of representatives of parties. Such inconsistency on so
12
important a matter must taint the whole of the testimony which must therefore altogether be
rejected.
It must also be pointed out here that nowhere in the affidavit of Mr. Sevilla is there any indication
that there were defects in the election returns which could have been bases for objections.
On the while, we find the evidence for the respondent the more credible version of what happened
in the canvassing in Currimao between January 18 to 19, 1988.
The rest of petitioner's objections do not relate to pre-proclamation controversies and need not be
considered here. (pp. 21-24, Rollo)
Another matter which militates against the cause of petitioner is that he has not shown that he
suffered prejudice because of the failure of his watcher to attend the canvassing. Had the watcher
been present, what substantive issues would he have raised? Petitioner does not disclose. Could it
be that even if the watcher was present, the result of the canvassing would have been the same?
There is therefore no merit in petitioner's claim that respondent Commission on Elections gravely
abused its discretion in issuing its questioned decision. And, as emphatically stated in Sidro v.
Comelec, 102 SCRA 853, this Court has invariably followed the principle that "in the absence of any
jurisdictional infirmity or an error of law of the utmost gravity, the conclusion reached by the
respondent Commission on a matter that falls within its competence is entitled to the utmost
respect, .... There is justification in this case to reiterate this principle.

Claiming grave abuse of discretion on the part of respondent Commission on Elections, petitioner WHEREFORE, the instant petition is DISMISSED.
came to Us on a petition for certiorari.
SO ORDERED.
The thrust of petitioner's argument is that he was notified that the Board of Canvassers would
convene to canvass the election returns for Currimao at 6:00 p.m. on January 18, 1988 at the Session
Hall of the Sangguniang Bayan of Currimao. But he was not notified of the subsequent canvass which
was held on January 19, 1988 at the Treasurer's Office of the same Sangguniang Bayan. This
according to petitioner violated his right to due process.

In this regard, We agree with respondent Commission that there was no necessity to send another
notice to petitioner when the Board of Canvassers recessed at 6:00 o'clock in the afternoon of
January 18, 1988 because "it was the responsibility of petitioner or his watcher to verify when
actual canvass of the returns were going to be made." (pp. 22-23, Rollo)

Indeed, the notice demanded by petitioner is not necessary because there was no subsequent
meeting of the Board of Canvassers to speak of. It merely recessed after it convened at 6:00 p.m. on
January 18, 1988 because there were no returns to canvass yet. However, it resumed its
proceedings as soon as the returns arrived.

It should be noted that the law requires the Board of Canvasser to "meet continuously from day to
day until the canvass is completed and may adjourn but only for the purpose of awaiting the other
election returns from other polling places within its jurisdiction" and "as soon as the other election
returns are delivered, the board shall immediately resume canvassing until all the returns have
been canvassed" (Section 231, B.P. 881). The Board of Canvassers must complete their canvass
within thirty-six hours. (ibid.)

Petitioner may not claim ignorance of the aforesaid provisions as these are matters directly
affecting his political fortune. Consequently, with or without notice, it was the duty of the petitioner
and all candidates for that matter to assign their watchers or representatives in the counting of
votes and canvassing of election returns in order to insure the sanctity and purity of the ballots.
(Sabeniano vs. Comelec, 101 SCRA 289, 301) It is a matter of judicial notice that the candidates, their
representatives and watchers station or deploy themselves among the various voting and
canvassing centers to watch the proceedings from the first hour of voting through the counting of
votes in the voting centers until the completion of the canvassing of election returns so that they can
make of record in the minutes of the election committee and canvassing board their objections
remarks regarding the conduct of the proceedings.

The alleged defect in the notice is only one of form, not substance. Petitioner is making a big issue of
the discrepancy between the specific place in the Sangguniang Bayan stated in the notice as the site
of the canvassing and the place in the same building where the canvassing was actually held, but
does not explain why his watcher, with just a modicum of diligence and resourcefulness, failed to
find the place of the canvassing. The Sangguniang Bayan is not a cavernous structure and canvass
giving is not a very quiet affair.

13
[G. R. No. 150111. January 31, 2002]
ABDULAKARIM D. UTTO, petitioner, vs. COMMISSION ON ELECTIONS, DATU ALMANSA B.
ANGAS and THE NEW MUNICIPAL BOARD OF CANVASSERS OF SULTAN SA BARONGIS,
respondents.
DECISION
PARDO, J.:
In this petition for certiorari and prohibition, petitioner seeks to annul the resolutions[1] of the
Commission on Elections (Comelec) en banc, affirming in toto the resolution of the Comelec (First
Division)[2] directing the inclusion of five (5) election returns excluded by the municipal board of
canvassers during the canvass of votes for the May 14, 2001 election in the municipality of Sultan sa
Barongis, Maguindanao and finding petitioners proclamation to be illegal and void ab initio.
Petitioner Abdulkarim D. Utto and respondent Datu Almansa B. Angas were candidates for the
position of the mayor of the municipality of Sultan sa Barongis, Maguindanao in the May 14, 2001
election.
For the canvassing of votes of the May 14, 2001 election returns, the original municipal board of
canvassers was composed of Nena Alid as chairman, and Maceda Lidasan Abo and Noron Gonina, as
members. During the canvassing on May 16, 2001, election returns in Precinct Nos. 15A, 25A/26A,
66A, and 68A/69A were presented.
On May 18, 2001, respondent filed a petition to inhibit Alid and Abo, which resulted in the
suspension of the canvassing. Alid and Abo inhibited themselves from the proceedings.
On May 24, 2001, Bai Haidy D. Mamalinta took over as chairperson, with Roihaida Khalid and Noron
Gonina, as members of the municipal board of canvassers. The canvassing was again suspended
when both Khalid and Gonina also inhibited themselves from participating in the proceedings.
On May 27, 2001, the provincial election supervisor designated Rufden Mangelen and Tamano
Diolanen as members of the municipal board of canvassers. In an affidavit executed on May 31,
2001, Tamano Diolanen stated that at around 6:00 in the morning of that day, chairperson
Mamalinta called him up and informed him that she would convene the board of canvassers, with
instruction for him not to attend because he was already replaced. He further stated that on May 28,
2001, Rufden Mangelen called him up to tell him of his (Mangelen) decision to inhibit himself as
member of the board of canvassers due to pressure exerted by chairperson Mamalinta.[3]
In the morning of May 31, 2001, the municipal board of canvassers convened with chairperson
Mamalinta and member Asuncion Corazon Reneido present.[4] The other member, Mowakiram
Samuang was absent.[5] Before the start of the canvass, chairperson Mamalinta distributed to the
parties present a report on the status of canvassing. Out of the 98 precincts, the municipal board of
canvassers issued four (4) separate rulings excluding the above-cited five (5) election returns.
Particularly, the municipal board of canvassers ruled that:
With respect to 67A, the copy of the ER for local position is not original. At the instance of the
interested parties, the same was excluded from the canvass.
With respect to 15A, the ER is not the Board copy and the data on the votes of the candidates are
manifestly tampered by touch and go and not initialed by the BEI. The votes in taras, words and
figures are different.
With respect to 25A and 26A, the ER is Ballot Box copy and from the testimony of the BEI, it could
not be determined as to where are the Board copies. The Ballot Box copy is originally signed by the
BEI and the watchers instead of reflected in carbon copy.
With respect to 66A, the envelope has no outer seal. The Election Officer admitted that when the
envelope was received by him, it was already opened. The ER contained in the envelope has no
inner seal. The ER is two times exposed to substitution or switching.
With respect to 68A and 69A, the outer seal appeared to be deliberately cut. The Election Officer
confirmed that the outer seal was deliberately cut. There is no inner seal, exposing two times the ER.
With respect to 126A and 127A, the Board copy is only for the Party List, none for other returns. The
BEI could not determine where are the other copies.[6]
At this point, respondent orally manifested his intention to appeal the ruling,[7] and simultaneously
filed a verified notice of appeal, which Bai Haidy D. Mamalinta (chairperson of the municipal board
of canvassers) refused to accept.[8]
Meanwhile, despite respondents manifestation, the municipal board of canvassers proceeded with
the proclamation of the candidates for municipal offices. The board proclaimed petitioner as the
duly elected mayor of the municipality.[9]
On June 1, 2001, Corazon Reniedo sent a letter to Atty. Wynne Asdala, acting provincial election
supervisor of Maguindanao irrevocably resigning as member of the municipal board of canvassers
of Sultan sa Barongis, Maguindanao in connection with the canvass of the election returns because
she was being pressured to proclaim mayoralty candidate Abdulkarim Utto in gross violation of
Section 20, Republic Act No. 7166 and Section 38 (9), Comelec Resolution No. 3848.[10] Based on
the canvass of 93 election returns, petitioner obtained a margin of 149 votes over respondent. The
total number of registered voters from the five excluded election returns is 944. Clearly, the results
of the municipal election would be adversely affected by the uncanvassed returns.[11]
On June 4, 2001, respondent filed a verified appeal[12] with Comelec raising the issue of (1)
whether the exclusion of four (4) returns in Precinct Nos. 15A, 25A/26A, 66A and 68A/69A was
justified or not; and (2) whether the returns of Precinct No. 126A/127A would be included in the
canvass since there was a ruling directing its exclusion from the canvass.[13]
On June 7, 2001, respondent filed with Comelec a motion to annul pendente lite petitioners
proclamation,[14] contending that such proclamation violated Section 20 (i), Republic Act No.
7166.[15] Inspite of the laws mandate to suspend the canvassing and await the decision of the
Comelec on the appeal, the municipal board of canvassers proceeded with the proclamation. The
questioned election returns rejected by the municipal board of canvassers would materially affect
the results of the municipal election. The number of registered voters by precinct is:
Precinct No. No. of Voters
15A 142
25A/26A 233
66A 120
68A/69A 206
126A/127A 243
TOTAL 944[16]
14

On June 14, 2001, vice-mayoralty candidate Roger L. Mamalo and Sangguniang Bayan candidates
Ayongan Kaidum M. Sali, Frias S. Mamalo, and Khasmer S. Balutinik, who, together with petitioner,
were proclaimed by the municipal board of canvassers on May 31, 2001 filed with Comelec motions
for intervention[17] contending that their proclamation would not be affected by the five (5)
election returns. Hence, it should be upheld.[18]
On June 23, 2001, Comelec sent petitioner via telegram summons with notice of hearing attaching
thereto a copy of respondents verified appeal.[19] Comelec gave petitioner three (3) non-extendible
days from receipt to file a verified answer. The case was set for hearing on June 29, 2001, at 9:00 in
the morning at the session hall of Comelec, Intramuros, Manila.
When the case was called for hearing on June 29, 2001, before the Comelec, First Division, only
counsel for respondent and intervenor vice-mayor appeared.[20] Considering that petitioner had
not filed an answer, Comelec (First Division) issued an order[21] re-setting the hearing to July 6,
2001, at 10:00 in the morning. In the same order, the Comelec declared the motion to annul
proclamation submitted for resolution.[22] Petitioner was notified via telegram of the re-setting of
the hearing.[23]
On June 30, 2001, Comelec (First Division) promulgated a resolution ordering the inclusion of the
uncanvassed election returns, and setting aside petitioners proclamation.[24] The Comelec (First
Division) found petitioners proclamation to be illegal. Upon the filing of the verified notice of appeal,
the board of canvassers must submit the appropriate report to the Comelec en banc elevating
therewith the complete records and evidence submitted during the canvassing and suspend the
proclamation. Any proclamation made is void ab initio. The dispositive portion of the resolution
reads:
In view of the foregoing, the Commission First Division resolves as follows:
1. the rulings of the MBC directing the exclusion of the four (4) returns of Precinct Nos. 15A,
15A/26A, 66A, 68A/69A are hereby reversed and the same are hereby ordered included in the
canvass. The proclamation of the respondent Abdulkarim D. Utto as alleged elected mayor of Sultan
sa Barongis made on 31 May 2001 is hereby annulled and set aside;
2. the returns of Precinct No. 126A/127A is hereby included in the canvass. The Board of Canvassers
shall use the copies of the Provincial Board of Canvassers, the COMELEC copy, or the ballot box copy
whichever of the returns is available;
3. a new Municipal Board of Canvassers for Sultan sa Barongis is hereby created composed of
lawyers from the main office in COMELEC, Manila and are hereby ordered to reconvene in the city of
Manila to re-canvass the five (5) election returns ordered included in accordance with this decision
and thereafter proclaim the winning candidate for Mayor; and
4. the new Municipal Board of Canvassers shall also re-canvass the results of the election for the
position of Members of the Sangguniang Bayan in accordance with this decision.
SO ORDERED.[25]
Meanwhile, petitioner took his oath at noon of the same day and immediately assumed office as
mayor of the municipality of Sultan sa Barongis, Maguindanao.[26]
On July 5, 2001, petitioner filed with Comelec, First Division, a motion to reconsider the resolution
of June 30, 2001, assailing it as contrary to law and the evidence and issued without affording him
notice and opportunity to be heard as he was not impleaded as a party to the petition.[27] In
support thereof, petitioner cited Sandoval v. Comelec,[28] reiterating the ruling that Comelec shall
comply with the twin requirement of prior notice and hearing in the annulment of the proclamation.
Petitioner prayed that the inclusion of the uncanvassed return be set aside and the case remanded
to the Comelec (First Division) for the amendment of the petition to include all indispensable
parties.[29]
On October 5, 2001, the COMELEC en banc promulgated a resolution, the dispositive portion of
which reads:
IN VIEW OF ALL THE FOREGOING, the Motion for Reconsideration is hereby DENIED for lack of
merit and the Resolution of June 30, 2001 of the First Division is hereby AFFIRMED. Accordingly, a
new Board of Canvassers is hereby created composed of Atty. Jubail Surmeida as Chairman and Atty.
Nelia Aureus and Abner Cabisuelas as members. This new Board is ordered to immediately convene
at the Session Hall, Comelec, Manila to canvass and proclaim the winning candidates in Sultan sa
Barongis, Maguindanao.
SO ORDERED.[30]
In its ruling, the COMELEC en banc adopted the findings of the First Division, thus:
1. The election returns of Precinct No. 25A/26A was excluded simply because what was retrieved
from the envelope containing the election returns and submitted to the MBC was the ballot box copy
of the returns. The Board clearly erred. The ballot box copy is an authentic copy of the election
returns and could be used as basis for the canvass. Likewise, it appears that no oral or written
objection was presented for its exclusion. There being no objection, it should have been canvassed
outright. The BEI Chairman appeared before the Board of Canvassers and explained why they
signed anew the ballot box copy. The Chairman testified that the signatures of the BEI were not
clearly visible and so the BEI members signed anew over and above their carbonized signatures.
2. The election returns of Precinct No. 68A/69A and precinct No. 66A--- The returns of Precinct No.
68A/69A was excluded because the envelope containing the returns did not have a paper seal. That
of Precinct No. 66A was rejected because the paper seal attached to the envelope containing the
returns was broken. The grounds relied upon by the MBC are formal defects that do not affect the
genuineness of the election returns. [Ocampo vs. Comelec, G. R. No. 136282 & 137470, February 15,
2000 citing Baterina vs. Comelec, 205 SCRA 1]
3. The election returns of Precinct No. 15A-- This particular election return was excluded by the
Board on the ground that what was submitted to the Board was not the copy of the MBC and that
the data on the votes of the candidates are manifestly tampered with touch and go and not initialed
by the BEI. The MBC also ruled that the votes in taras, words and figures are different. But there is
no showing that the alleged tampered votes are those for the position for Mayors. In his appeal,
appellant says that what was submitted to the Board is the copy for the Municipal Board of
Canvassers. He also submitted the copy of the returns for the dominant majority party. An
examination of the same showed that there was no tampering with or alterations in the votes of the
mayoralty candidates. The alterations appear to be in the position for Councilors particularly for the
candidates Sayana Mamalo and Frias Mamalo.
4. The election returns of Precinct No. 126A/127A-- There is no ruling either by the original Board
or the Board headed by Mamalinta directing the exclusion of the returns of Precinct No. 126A/127A.
This returns had to be included in the canvass otherwise the canvass would be incomplete. When
the envelope containing the returns was opened, only the returns for the party-list was found. The
returns for the national, provincial, and local officials were not found inside the envelope. The
situation is covered by the provision of Sec. 233 of the Omnibus Election Code. The Board was under
obligation to summon the BEI and if the election returns have been lost or destroyed, the authority
of the Commission must be obtained to use in the canvass the other authentic copies of the election
returns. Here, the MBC ignored the provisions of Sec. 233 of the Omnibus Election Code providing
that:
15
Sec 233. When election returns are delayed, lost or destroyed.-- In case its copy of the election
returns is missing, the board of canvassers shall, by messenger or otherwise, obtain such missing
election returns from the board of election inspectors concerned, or if said returns have been lost or
destroyed, the board of canvassers, upon prior authority of the Commission, may use any of the
authentic copies of said election returns or a certified copy of said election returns issued by the
Commission, and forthwith direct its representative to investigate the case and immediately report
the matter to the Commission. (Omnibus Election Code)
The MBC is ordered to use the COMELEC copy, the PBC copy, or the ballot box copy for the purpose
of determining the results of Precinct No. 126A/127.[31]
On October 16, 2001, petitioner filed with the Supreme Court the instant petition for certiorari and
prohibition with prayer for temporary restraining order.[32]
On October 23, 2001, the Court issued a temporary restraining order, effective immediately, and
ordering Comelec to cease and desist from implementing the resolutions of June 30, 2001 and
October 5, 2001 in SPC No. 01-253.[33]
We deny the petition.
Petitioner claims that respondent by skillful strategy made it appear that he (petitioner) was a party
in the appeal proceedings by filing a motion to annul proclamation in the same proceedings and
naming him party respondent without obtaining prior leave of the Comelec.
Citing Velayo v. Comelec,[34] petitioner averred that his right to due process was violated due to his
non-inclusion as respondent and lack of notice of the proceedings in the Comelec which resulted in
the cancellation of his proclamation.[35] Without the required notice and hearing, petitioner
contended that his proclamation cannot be annulled.
In reviewing administrative decisions, the Supreme Court generally respected the findings of fact of
administrative agencies as long as they are supported by substantial evidence.[36] Such findings of
fact of administrative agencies, being considered experts in their field are binding on the Supreme
Court.[37]
There was substantial evidence that petitioner was duly notified of the appeal and annulment
proceedings. On June 23, 2001, the clerk of the Comelec sent petitioner via telegram, summons with
notice of hearing attaching thereto a copy of respondents verified appeal.[38] Respondent furnished
him, by registered mail, a copy of the appeal[39] and position paper in support of the appeal and
motion to annul the proclamation,[40] received by petitioners daughter on June 20, 2001 as
certified by Saabudin P. Daud, acting postmaster of Sultan sa Barongis, Maguindanao.[41] Likewise,
on the same date petitioner received copy of the motion to annul proclamation sent through
registered mail.[42]
The factual circumstances in the instant petition are far different from that obtaining in Velayo.[43]
Hence, the ruling enunciated therein is not applicable to petitioners situation.
In administrative proceedings, the essence of due process is simply an opportunity to be heard, or
an opportunity to explain ones side or opportunity to seek a reconsideration of the action or ruling
complained of.[44] At the hearing before the Comelec en banc of petitioners motion for
reconsideration, petitioner was given full opportunity to present his case. He did not present
controverting evidence to justify the exclusion of the five (5) election returns.
Considering that at the time respondent filed the motion to annul proclamation no responsive
pleading had been served, amendment of the appeal was still a matter of right. Rule 9, Section 1,
1993 Comelec Rules of Procedure explicitly provides:
Section 1. When Amendments Allowed as a Matter of Right.- A party may amend his pleading once
as a matter of course at any time before a responsive pleading is served, or, if the pleading is one to
which no responsive pleading is permitted and the action has not been placed upon the trial
calendar, he may so amend it at any time within five days after it is served.
Hence, petitioners contention that the amendment was illegal in the absence of prior leave of court
is erroneous.
Assuming arguendo that petitioner was not given notice or an opportunity to be heard, the petition
would still be denied. The twin-requirement of notice and hearing in annulment of proclamation is
not applicable because of the illegality of petitioners proclamation.
Section 38 (9), Comelec Resolution No. 3848[45] provided the procedure in the disposition of
contested election returns and certificate of canvass. The Comelec precludes the board of canvassers
from proclaiming any candidate as winner, except upon its authorization after it has ruled on the
appeal of the losing party. Any proclamation made in violation thereof shall be void ab initio, unless
the contested returns will not adversely affect the results of the election. This provision is
mandatory and requires strict observance.
Section 20 (i), Republic Act No. 7166 where Comelec Resolution No.3848 finds basis further states:
SEC. 20. Procedure in Disposition of Contested Election Returns.--(a) x x x
(i) The board of canvassers shall not proclaim any candidate as winner unless authorized by the
Commission after the latter has ruled on the objections brought to it on appeal by the losing party.
Any proclamation made in violation hereof shall be void ab initio, unless the contested returns will
not adversely affect the results of the election.
Consequently, petitioners proclamation was null and void. It was made on May 31, 2001 after
respondent manifested his intention to appeal the ruling of the board of canvassers. On the day of
the proclamation, respondent attempted to file a verified notice of appeal, but the chairperson of the
municipal board of canvassers refused to accept the appeal. Within the reglementary period for
filing an appeal, respondent went to the Comelec. Pursuant to Section 20 (i), Republic Act No. 7166,
the municipal board of canvassers may not proclaim any candidate without waiting for the
authorization of the Comelec. Considering that petitioner had a very small margin of 149 votes over
respondent, and there were 944 registered voters from the five excluded election returns, the
results of the municipal election would be undoubtedly adversely affected by the contested returns.
The proclamation thus made is void ab initio.[46]
It is now settled that an incomplete canvass of votes is illegal and cannot be the basis of a
proclamation.[47] A canvass cannot be reflective of the true vote of the electorate unless all returns
are considered and none is omitted.[48] When the municipal board of canvassers disregarded the
five (5) election returns, it in effect disenfranchised the voters of the excluded precincts.[49]
Thus, the Comelec did not abuse its discretion for convening a new board of canvassers and
directing the inclusion of the uncanvassed election returns and, thereafter proclaiming the winning
candidate for mayor and other municipal officials.
Time and again, the Court has given its imprimatur on the principle that Comelec is with authority
to annul any canvass and proclamation illegally made.[50] The fact that a candidate illegally
proclaimed has assumed office is not a bar to the exercise of such power. It is also true that after
proclamation, the remedy of a party aggrieved in an election is an election protest.[51] This is on the
assumption, however, that there has been a valid proclamation. Where a proclamation is null and
void, the proclaimed candidates assumption of office cannot deprive Comelec of the power to
declare such proclamation a nullity.[52]
16
The reason behind the view herein expressed is as aptly elucidated in Aguam, to wit:

We draw from past experience. A pattern of conduct observed in past elections has been the
pernicious grab-the-proclamation-prolong-the-protest-slogan of some candidates or parties. Really,
were a victim of a proclamation to be precluded from challenging the validity thereof after that
proclamation and the assumption of office thereunder, baneful effects may easily supervene. It may
not be out of place to state that in the long history of election contests in this country, as observed in
Lagumbay vs. Climaco,[53] a successful contestant in an election protest often wins but a mere
pyrrhic victory, i. e., a vindication when the term of office is about to expire or has expired. Protests,
counter-protests, revisions of ballots, appeals, dilatory tactics, may well frustrate the will of the
electorate. And what if the protestant may not have the resources and an unwavering determination
with which to sustain a long drawn-out election contest? In this context therefore all efforts should
be strainedas far as is humanly possible to take election returns out of the reach of the
unscrupulous; and to prevent illegal or fraudulent proclamation from ripening into illegal
assumption of office.[54]

WHEREFORE, the Court hereby DENIES the petition for certiorari and AFFIRMS in toto the October
5, 2001 Comelec en banc resolution in SPC No. 01-253. The temporary restraining order issued on
October 23, 2001 is hereby set aside.

This decision is immediately executory.

No costs.

SO ORDERED.

17
[G.R. No. 134163-64. December 13, 2000]
MUSLIMIN SEMA, petitioner, vs. COMMISSION ON ELECTIONS and RODEL MAARA,
respondents.
[G.R. No. 141249-50. December 13, 2000]
RODEL MAARA, petitioner, vs. COMMISSION ON ELECTIONS and MUSLIMIN SEMA,
respondents.
[G.R. No. 141534-35. December 13, 2000]
RODEL MAARA, petitioner, vs. COMMISSION ON ELECTIONS and MUSLIMIN SEMA,
respondents.
DECISION
KAPUNAN, J.:
Muslimin Sema*and Rodel Maara were two (2) of the eleven (11) candidates for city mayor of
Cotabato City during the May 11, 1998 elections.
During the canvassing of the election returns from the three hundred sixty-two (362) precincts of
Cotabato City by the City Board of Canvassers (CBC), numerous petitions for exclusion of election
returns were filed. For his part, Sema objected to thirty (30) election returns from the following
precincts, namely: Precinct Nos. 295A/A1, 274A/275A, 46A2, 262A/263A, 218A/219A, 178A,
255A/256A, 158A/158A1, 214A/214A1, 104A/104A1, 154A/154A1, 92A, 212A/212A1,
109A/109A1, 184A1; 175A1, 168A/168A1, 233A/233A1, 209A/209A1, 121A1, 275A, 198A/198A1,
237A/237A1, 176A, 213A1/213A2, 241A, 167A, 180A, 103A, 264A/265A/266A and thereafter, filed
a petition for exclusion of such returns with the CBC on the ground that the same contained material
defects, were allegedly tampered with or falsified, prepared under duress, threat, coercion, and
intimidation, or substituted with fraudulent ones. If the 30 election returns were to be excluded,
Sema and Maara would obtain 13,338 and 12,484 votes, respectively. Including the 30 election
returns, the votes of Sema and Maara would be 13,713 and 15,442, respectively.
On May 22, 1998, the CBC issued an order dismissing one hundred-sixteen (116) petitions for
exclusion of election returns including the petitions for exclusion filed by Sema with respect to
thirteen (13) of the thirty (30) contested returns he filed.
On May 23, 1998, the CBC issued another order dismissing fifty-five (55) petitions for exclusion of
election returns including Semas petitions for exclusion with respect to fifteen (15) of the remaining
seventeen (17) contested returns. In effect then, only two (2) election returns remained contested.
No appeal was taken from these orders.
Nonetheless, on May 30, 1998, the CBC issued another order dated May 29, 1998, this time granting
Semas petition for exclusion of the thirty (30) election returns. A copy of this order was actually
served upon Maara in the morning of May 31, 1998. On May 30, 1998, counsel for Maara, already
aware of the existence of the May 29, 1998 order, questioned the illegal proceedings of the CBC
saying that it had previously ruled upon the inclusion of twenty-eight (28) of said thirty (30)
contested returns. In addition, Maara questioned the composition of the CBC, the legality of its
proceedings and the capacity of the board to act fairly and judiciously. The latter did not rule on his
objection.
Upon the resumption of the canvassing in the evening of May 31, 1998, counsel for Maara again
called the CBCs attention to the fact that it had already ruled upon and dismissed the petition for
exclusion of Sema in its Orders dated May 22, and 23, 1998, and which orders had already become
final and executory because no appeal was taken therefrom. But the CBC ignored the manifestation,
explaining that the previous orders did not include Semas objections. Consequently, Maaras counsel
manifested his intent to appeal from the May 29, 1998 order of the CBC.
On May 31, 1998, Sema and the other winning candidates for the City of Cotabato were proclaimed
by the CBC. Notably, said proclamation was based on the canvass of only three hundred thirty-two
(332) election returns, thirty (30) returns having been excluded from the total of three hundred
sixty-two (362) returns pursuant to the CBCs Order of May 29, 1998.
On June 2, 1998, Maara filed his written notice of appeal with the CBC.
On June 5, 1998, Maara filed his appeal with the Commission on Elections (COMELEC), docketed as
SPC No. 98-240, questioning the exclusion of the thirty (30) election returns in the canvass and the
proceeding of the CBC in promulgating the May 29, 1998 order which he claimed to be illegal. The
appeal was anchored on the following grounds: (1) the CBC exceeded its authority in its ruling of
May 29, 1998 excluding from the canvass the 30 election returns, considering that the CBC had
already dismissed the petition for exclusion in its orders dated May 22 and 23, 1998; (2) the CBC
was illegally constituted when it issued its ruling of May 29, 1998 because it was presided by Casan
Macadatu, who had already been replaced by Atty. Lintang Bidol effective May 25, 1998; and (3) the
CBCs proclamation of Sema as Mayor of the City of Cotabato was invalid as it was only on May 31,
1998 that the CBC completed the canvassing of 362 election returns and it was in the morning of the
same day when the Board was not in session that Maara was furnished with a copy of the CBCs
questioned ruling of May 29, 1998; such being the case, it was only at nightfall of May 31, 1998
when the Board held session that Maara was able to manifest his intent to appeal from the said
ruling.
On June 9, 1998, Maara filed with the COMELEC a petition for annulment of the proclamation of
Sema which was docketed as SPC No. 98-262.
Initially, the hearing of Maaras appeal and petition for annulment of proclamation was set on June
19, 1998 before the COMELEC en banc. However, the hearing was cancelled and the two (2) cases
were referred to the First Division of the COMELEC instead.
Said cases were then heard on June 27, 1998 by the First Division of the COMELEC afterwhich they
were submitted for resolution.
On June 29, 1998, the First Division of the COMELEC issued an order which reads as follows:
Without prejudice to the issuance at a later time of a formal Resolution in these cases, but based on
the pleadings, the evidence adduced by the parties during the hearing on June 27, 1998, and the
facts established therein, the effects and consequences of the proclamation for the position of City
Mayor per Certificate of Canvass of Votes and Proclamation dated May 31, 1998 issued by the City
Board of Canvassers of Cotabato City is HEREBY SUSPENDED.
Respondent Muslimin Sema is directed to cease and desist from taking his oath of office as City
Mayor and/or from discharging the functions of said office.
The Clerk of the Commission is directed to furnish a copy of this order to the Hon. Secretary of the
Department of Interior and Local Government, and Land Bank of the Philippines, thru its branch at
Cotabato City.
The Regional Election Director, Atty. Hector Masna shall serve immediately to the parties a copy of
this Order.[1]
18
Despite the above order of the COMELEC, Sema assumed the office of the city mayor of Cotabato and
commenced to discharge the functions of said office.
On July 3, 1998, Sema filed a petition for certiorari and prohibition before this Court to annul the
order of the COMELEC dated June 29, 1998 with prayer for the issuance of a temporary restraining
order and/or writ of preliminary injunction directing the COMELEC to desist from enforcing the
questioned order. The case was docketed as G.R. Nos. 134163-64. As grounds therefor, Sema alleged
that:
The pendency of the appeal which was apparently filed out of time and the petition for annulment of
proclamation is not a sufficient basis to enjoin petitioner from discharging the functions of the
contested office especially where, as here, he had already taken his oath of office and assumed the
same in accordance with law.
The evidence submitted by the private respondent before the Comelec proved beyond doubt that
his appeal (SPC No. 98-240) was filed out of time and that he failed to comply with the requirements
of a pre-proclamation controversy.[2]
On July 14, 1998, this Court issued a resolution directing the parties to maintain the status quo
prevailing at the time of the issuance of the order of the COMELEC dated June 29, 1998 in SPC Nos.
98-240 and 98-262.[3]
On August 17, 1999, this Court directed the COMELEC to resolve SPC Nos. 98-240 and 98-262 within
thirty (30) days from receipt of the resolution and to make a report of the same to the Court within
five (5) days from its promulgation.[4]
On September 17, 1999, the COMELEC filed a manifestation and motion for extension of time to
resolve SPC Nos. 98-240 and 98-262 stating that the Commissioner to whom the cases were raffled
to and assigned for writing of the Commissions opinion was out of the country and would be back
on October 8, 1999. Consequently, it asked for a period of thirty (30) days from October 8, 1999 or
until November 7, 1999 to resolve the said cases.[5]
On October 19, 1999, the Court noted the manifestation and granted the motion for extension of
time to resolve the said cases.[6]
On October 27, 1999, the COMELEC submitted its compliance[7] to the Courts Resolution of August
17, 1999 and attached therewith a copy of the resolution of the First Division of the COMELEC dated
October 18, 1999[8] denying due course to SPC No. 98-240 for having been filed out of time,
dismissing SPC No. 98-262 for lack of merit and affirming the proclamation of Sema as mayor of
Cotabato City.
On November 5, 1999, Maara filed his comment on the COMELECs compliance stating, among other
things, that the same is premature since it is only a resolution of the First Division and not a final
resolution of the Commission en banc.[9]
Consequently, on December 7, 1999 this Court issued a resolution directing the COMELEC en banc
to resolve SPC Nos. 98-240 and 98-262 with finality within a non-extendible period of thirty (30)
days from receipt of the resolution and to forthwith make a report thereon to the Court within five
(5) days from the promulgation of the resolution.
On January 19, 2000, respondent COMELEC submitted its compliance and reported that it issued a
resolution[10] on January 2, 2000 denying the motion for reconsideration filed by Maara.[11]
On January 24, 2000, Sema filed a manifestation with motion to consider G.R. Nos. 134163-64 closed
and terminated.
On January 27, 2000, Maara filed a counter-manifestation with motion to resolve the petition in G.R.
Nos. 134163-64 on the merits.
On February 14, 2000, Sema filed a motion for leave of court to file an incorporated reply to Maaras
counter-manifestation.
All motions were noted by this Court.
Previously, or on January 13, 2000, Maara filed a petition for certiorari captioned petition ex
abundanti cautela, docketed as G.R. Nos. 141249-50, questioning the COMELEC Resolutions dated
October 18, 1999 and January 2, 2000. He prayed that the proclamation of Sema as mayor of
Cotabato City be annulled and that the COMELEC be ordered to canvass the thirty (30) election
returns excluded by the CBC. This petition, however, was dismissed by the Court on January 25,
2000 for lack of a verified statement on material dates. An addendum to said petition was noted
without action by the Court on February 8, 1999.[12]
On February 7, 2000, Maara seasonably[13] filed a petition for certiorari, docketed as G.R. Nos.
141534-35.[14] Aside from questioning the non-observance of the COMELEC of its own Rules of
Procedure, the petition challenges the illegal proclamation of Sema which proceeded from the illegal
proceedings of the CBC in excluding thirty (30) election returns in the canvassing of votes for mayor
in the City of Cotabato when it had earlier ruled for the inclusion of twenty-eight (28) of said
returns. It ascribes to the COMELEC the following errors, viz:
A
WHETHER OR NOT THE COMMISSION ACTED WITH JURISDICTION OR SOUND DISCRETION, OR
WITHOUT OR IN EXCESS OF JURISDICTION, OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR IN EXCESS OF DISCRETION IN ALLOWING ONE AND THE SAME COMMISSIONER AS
PONENTE FOR BOTH THE CHALLENGED RESOLUTIONS;
B
WHETHER OR NOT THE COMMISSION ACTED WITH JURISDICTION OR SOUND DISCRETION, OR
WITHOUT OR IN EXCESS OF JURISDICTION, OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR IN EXCESS OF JURISDICTION IN ALLOWING A COMMISSIONER OF THE SECOND
DIVISION TO SIGN AS MEMBER OF THE FIRST DIVISION ON THE CHALLENGED SPLIT
RESOLUTION, ANNEX "A" HEREOF, NOTWITHSTANDING THE FACT THAT THERE WAS NO
VACANCY IN THE COMPOSITION OF THE FIRST DIVISION;
C
WHETHER OR NOT THE COMMISSION ACTED WITH SOUND DISCRETION OR WITH GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION IN NOT PRIORLY
RESOLVING THE CRISES IN QUORUM OF THE COMMISSION EN BANC SO AS TO ACCORD TO
PETITIONER THE EQUAL PROTECTION OF THE LAW;
D
WHETHER OR NOT THE COMMISSION ACTED WITH SOUND DISCRETION OR WITH GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION IN BY-PASSING IN ITS
CHALLENGED SPLIT RESOLUTION THE ISSUES RAISED BY PETITIONER IN HIS SPC NO. 98-240
AND SPC NO. 98-262;
E
19
WHETHER OR NOT THE COMMISSION ACTED WITH SOUND DISCRETION OR WITH GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION IN DISTORTING THE
MATERIAL FACTS OF THE CASE, WHICH THE HONORABLE COURT, IN ITS RESOLUTION OF
AUGUST 17, 1999, HAS ALREADY ASCERTAINED;
F intents and purposes prescribed. The May 30, 1998 ruling of the City Board of Canvassers of
WHETHER OR NOT THE COMMISSION ACTED WITH JURISDICTION OR SOUND DISCRETION, OR
WITHOUT OR IN EXCESS OF JURISDICTION, OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR IN EXCESS OF JURISDICTION IN UPHOLDING THE BOARD IN ITS ILLEGAL
PROCLAMATION OF PRIVATE RESPONDENT MUSLIMEN SEMA AS THE ELECTED MAYOR OF
COTABATO CITY WHICH PETITIONER IN SPC NO. 98-240 AND SPC NO. 98-262 CHALLENGED AND
QUESTIONED FOR BEING NULL AND VOID AB INITIO.
G Further assuming that the reckoning date for appeal was May 30, 1998 and not May 31, 1998, it
WHETHER OR NOT THE COMMISSION ACTED WITH SOUND DISCRETION OR WITH GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION IN NOT GIVING DUE
COURSE TO PETITIONER'S SPC NO. 98-240 AND SPC NO. 98-262, ON THE TECHNICALITY GROUND
THAT THE SAME WERE ALLEGEDLY FILED OUT OF TIME, WHICH IS NOT IN ACCORD WITH LAW
AND CONTRARY TO THE SETTLED DECISION OF THE HONORABLE COURT.[15]
I SEC. 19. Contested Composition or Proceedings of the Board; Period to Appeal; Decision by the
The pivotal issue in this case is whether or not the order of the CBC of Cotabato City dated May 29,
1998 granting Semas 28 petitions for exclusion of the 30 contested election returns is null and void
for having been issued after its earlier ruling embodied in its orders of May 22 and 23, 1998
directing the exclusion of the same returns had already become final.
It may be recalled that on May 22, 1998, the CBC issued an order dismissing 13 of the 30 petitions
for exclusion filed by Sema. On May 23, 1998, the CBC issued another order dismissing 15 of the
remaining 17 petitions for exclusion he filed. He did not appeal from these orders within the
reglementary period, consequently, the same already became final. However, the CBC issued
another order on May 29, 1998, this time granting Semas petitions for exclusion of 30 election
returns, among which were the 28 election returns already ordered included for canvass.
It was blatantly absurd for the CBC to rationalize that the May 22 and 23, 1998 orders dismissing
the petitions for exclusions refer only to candidates Guianis and Leyretanas petitions and not Semas.
The wordings of the May 23, 1998 order is plain and unequivocal. It says: all petitions/cases against
the hereunder contested precincts are hereby being DISMISSED for lack of merit xxx. If all
petitions/cases were dismissed, then, these necessarily included Semas petition. Furthermore, there
was nothing in the aforementioned orders which would indicate that the CBC reserved its right to
rule on Semas petition at a later time. Neither do the minutes of the board even intimate such a
reservation.
II
Even assuming arguendo that the orders of the CBC of May 22 and 23, 1998 had not become final
and executory, we are not persuaded by the COMELECs pronouncement that Maara belatedly filed
his appeal from the May 29, 1998 ruling of the CBC on June 5, 1998. According to the COMELEC's
First Division in its Resolution dated October 18, 1999:
Records show that the ruling which aggrieved appellant was issued on or about 4:00 p.m. of May 30,
1998. Following the instructions of the provisions above-cited, Maara had, until 4:00 p.m. of June 1,
1998 to file his notice of appeal with the Board. As it was, he filed said notice only on June 2, 1998.
In this regard alone, appellant had already committed a procedural lapse. He aggravated his errors
when he filed his appeal before the Commission on June 5, 1998, a full day beyond the 5-day
reglementary period. The law, we have to stress, specifically ruled out any extension of the five-day
period. It is most unfortunate that in committing not only one but two fatal lapses, appellant
disregarded a procedure which according to COMELEC Resolution No. 2962 is mandatory and shall
be strictly observed by the Board of Canvassers. It cost him his appeal because the same had, for all
Cotabato City, not having been seasonably questioned can no longer be disturbed.[16]
It would appear that the May 29, 1998 ruling of the CBC was received by Maara only on May 31,
1998 which was the same date the CBC declared that it had completed the canvassing of 362
returns. It was also in the evening of May 31, 1998 while the CBC was in session that Maara
manifested his intent to appeal from said ruling. The appeal was therefore filed with the COMELEC
on June 5, 1998 within the period prescribed in Section 20 (e) and (f) of R.A. No. 7166. [17]
bears stressing that the petition brought by Maara to the COMELEC on June 5, 1998, docketed as
SPC No. 98-240, in effect challenged the composition of the CBC and the legality of its proceedings. If
such be the situation, the proceedings would be governed by Section 19 of R.A. No. 7166 and Section
8, Rule 27 of the COMELEC Rules of Procedure, to wit:
Section 19 of R.A. No. 7166 reads:
Commission.Parties adversely affected by a ruling of the board of canvassers on questions affecting
the composition or proceedings of the board may appeal the matter to the Commission within three
(3) days from a ruling thereon. The Commission shall summarily decide the case within five (5) days
from the filing thereof.
Section 8, Rule 27 of the COMELEC Rules of Procedure provides:
SEC. 8. Procedure Before the Board of Canvassers When Composition or Proceedings of Board are
Contested. (a) When the composition or proceeding of the board of canvassers are contested, the
board of canvassers shall, within twenty-four (24) hours, make a ruling thereon with notice to the
contestant who, if adversely affected, may appeal the matter to the Commission within three (3)
days after the ruling with proper notice to the board of canvassers. The Commission en banc shall
summarily decide the case within five (5) days from the filing thereof.
(b) Upon receipt of such appeal, the Clerk of Court concerned shall immediately set the case for
hearing, with due notice to the parties, by the Commission en banc.
(c) During the pendency of the appeal, the board of canvassers shall immediately suspend the
canvass until the Commission orders the continuation or resumption thereof.
Pursuant to the foregoing provisions, the party adversely affected by a ruling of the board must take
an appeal within three (3) days from the date of the ruling. In this case, the facts would suggest that
the CBC adjourned its proceedings on May 30 and 31, 1998 without making any ruling on Maaras
objections to the CBCs proceedings. When Maara filed his appeal in SPC No. 98-240 on June 5, 1998,
it cannot be correctly argued that the 3-day period set by law for its submission had expired
because the CBC never ruled on his objections to the boards proceedings. The failure or refusal of
the CBC to rule on Maaras objections should not prevent his right to elevate the matter to the
COMELEC for proper review.[18] On this score, we find persuasive and logical the dissent of
Commissioner Teresita Dy-Liacco Flores to the First Divisions ruling, thus:
Maara filed the present Appeal on 5 June 1998. Whether it is within the three day period to file,
nobody knows, because the Board never issued any ruling from 30 May 1998 when the proceedings
of the board was challenged up to the time it adjourned on 31 May 1998. It never made a ruling at
20
all even after that. The boards adjournment without making any written and express ruling thereon
means that the Board has not complied with its duty to rule thereon. The absence of any ruling
makes it impossible for Maara to file his appeal within the prescribed period because there was no
ruling to appeal from in the first place. The absence of compliance of the duty by the board makes it
legally unjustifiable for this Commission to dismiss the present appeal because the three-day period
within which to appeal must be counted from the time the ruling was made which in the case at bar
is absent.

Maara has every right to expect a ruling from the Board on its objection over the latters
proceedings. Up to this time, however, the Board has not complied with its statutory responsibility
to come up with a ruling thereon. The failure of the Board to discharge this obligation should not in
any way prejudice Maaras right to elevate the matter to this Commission on appeal. Otherwise, all
that a partial board can do to favor a party is to refuse to make a ruling on the latters opponents
objections effectively preventing its review by this Commission. (Abella vs. Larrazabal 180 SCRA
509). It is in this light that the instant appeal must be considered seasonably filed. This Commission
must assume jurisdiction, entertain the allegations raised and resolve the issues involved in SPC No.
98-240.[19]

It is clear that the CBC acted without authority when it issued its May 29, 1998 ruling. Consequently,
the COMELEC acted without or in excess of its jurisdiction and with grave abuse of discretion when
it rendered the questioned resolution of October 18, 1999 denying due course to SPC No. 98-240 for
allegedly having been filed out of time and affirming the proclamation of Sema as Mayor of Cotabato
City; and the resolution of January 2, 2000 denying Maaras motion for reconsideration of the
October 18, 1999 resolution.

Accordingly, the proclamation of Sema is null and void as it was based on an incomplete canvass. An
incomplete canvass is illegal and cannot be the basis of a valid proclamation.[20] A proclamation
made where the contested returns set aside will affect the result of the election and the board of
canvassers proceeded to proclaim without the authority from the COMELEC is null and void.[21]

WHEREFORE, the petition for certiorari, docketed as G.R. Nos. 141534-35 is hereby GRANTED. The
Resolutions of the Commission on Elections dated October 18, 1999 and January 2, 2000 are hereby
REVERSED and SET ASIDE. The COMELEC is ORDERED to direct the City Board of Canvassers of
Cotabato City to reconvene within ten (10) days from receipt of this decision for the purpose of
completing the canvass of votes and proclaiming the winner. The petition for certiorari in G.R. Nos.
134163-64 is deemed CLOSED and TERMINATED. The status quo order dated July 14, 1998 is
hereby ordered LIFTED.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, P

21
[G.R. No. 145802. April 4, 2001]
DOMINADOR T. BELAC, petitioner, vs. COMMISSION ON ELECTIONS and ROMMEL DIASEN,
respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
This is a petition for certiorari and prohibition with prayer for a temporary restraining order and
preliminary injunction, assailing the Resolutions dated February 22, 2000 and November 16, 2000
of the Commission on Elections (COMELEC) en banc in SPC No. 98-170.
The facts as shown by the records are:
Rommel Diasen of the LAMMP and Dominador Belac of the LAKAS-NUCD were candidates for
governor in the province of Kalinga during the May 11, 1998 national and local elections.
On May 14, 1998, the Provincial Board of Canvassers started to canvass the results of the election.
On May 15, 1998, when the Certificate of Canvass and Statement of Votes for the municipality of
Pinukpuk were scheduled for canvassing, Diasen objected to the inclusion of the election returns of
42 precincts in the said municipality.
On May 19, 1998, Diasen also questioned the inclusion of the election returns of 28 precincts of the
town of Tinglayan.
Within twenty-four (24) hours therefrom, Diasen filed with the Kalinga Provincial Board of
Canvassers a petition for exclusion of the Certificates of Canvass and Statements of Votes for
Pinukpuk and Tinglayan, alleging in the main that:
1. The Certificates of Canvass and Statements of Votes were not prepared by the Board of Election
Inspectors as the same were not signed by the respective watchers for the candidates political
parties.
2. There were discrepancies in the tally of votes. The official LAMMP copies of the official returns
have a lesser number of votes than those appearing in the Statements of Votes for the said
municipalities.
However, the Provincial Board of Canvassers proceeded to include in its canvass the results as
stated in the election returns for Pinukpuk. On Diasens objection to the inclusion of the election
returns for Tinglayan, the Board ruled that it will only issue a certificate of correction since the
discrepancies were caused by mere error in indicating the entries.
On May 19, 1998, the Provincial Board of Canvassers proclaimed Belac as the duly elected governor
for the province of Kalinga.
On May 21, 1998, Diasen appealed to the COMELEC (First Division) from the rulings of the
Provincial Board of Canvassers.
On June 4, 1998, the COMELEC (First Division) issued a Resolution dismissing Diasens appeal for
lack of merit, thus:
Wherefore, premises considered, the appeal is hereby dismissed for lack of merit. The rulings of the
Provincial Board of Canvassers on the petition for exclusion of Certificate of Canvass and Statement
of Votes are hereby affirmed. The Provincial Board of Canvassers for Kalinga is hereby directed to
reconvene and continue with the canvassing with reasonable dispatch and proclaim the winning
candidate if the votes from the four precincts of Tinglayan, Kalinga where there was failure of
elections would not materially affect the results of the election.
Considering that the records of the case show that additions in the COCs and SOVs of Pinukpuk for
the votes of gubernatorial candidate Dominador Belac were made, the Law Department is directed
to conduct a preliminary investigation for the commission of an election offense against the
members of the Municipal Board of Canvassers of Pinukpuk, Kalinga.
The Law Department is similarly directed to conduct an immediate investigation on the possible
commission of electoral fraud as alluded to in the ultimate paragraph before the herein dispositive
portion. The Election Officer of Pinukpuk is directed immediately to cause the transfer of the Book
of Voters for the 69 precincts of Pinukpuk to the Comelec Main Office [c/o Law Department] for this
purpose.
On June 19, 1998, Diasen filed a motion for reconsideration of the above Resolution which was
elevated to the COMELEC en banc.
While the said motion was pending resolution in the COMELEC en banc, the Chairman of the
Provincial Board of Canvassers, Atty. Nicasio Aliping, convened the Board by calling the two other
members in order to proclaim Belac as the new governor. But the two members declined, so only
Atty. Aliping proceeded with Belacs proclamation.
On June 28, 1998, Diasen filed with the COMELEC a separate petition (SPC No. 98-291) to dispute
the proclamation of Belac.
Meanwhile, on February 22, 2000, or almost two years after the filing of Diasens motion for
reconsideration on June 19, 1998, the COMELEC en banc promulgated the first assailed Resolution
modifying the ruling of the First Division, thus:
WHEREFORE, premises considered, the resolution of the Commission (First Division) subject of the
instant Motion for Reconsideration is hereby modified as follows:
1) The Provincial Board of Canvassers for Kalinga is hereby directed to proceed with the canvassing
of votes for the office of the provincial governor deducting from the Certificates of Canvass of the
Municipalities of Tinglayan and Pinukpuk the votes reflected on the election returns from the
above-excluded precincts and thereafter proclaim the winning candidate for governor;
2) The directive to the Law Department to conduct appropriate investigations is affirmed with the
modification, however, that the Board of Election Inspectors concerned for the municipalities of
Pinukpuk and Tinglayan, as well as John Does, be likewise investigated for possible collusion in the
commission of the election offense and election anomaly, subject of petitioners case.
The above Resolution was penned by Commissioner Manolo Gorospe, concurred in by
Commissioners Japal Guiani and Luzviminda Tancangco. Chairman Harriet Demetriou and
Commissioner Julio Desamito joined Commissioner Teresita Dy-liacco Flores in her dissent. In short,
the voting was 3-3.
In view of the results of the voting, Belac filed a motion praying that the COMELEC en banc desist
from implementing the February 22, 2000 Resolution in favor of Diasen, citing Section 6, Rule 18 of
the COMELEC Rules of Procedure.[1] The COMELEC granted the motion in its February 24, 2000
order and set the re-hearing on March 9, 2000.
On February 28, 2000, pursuant to the COMELEC en bancs February 22, 2000 Resolution, the
Provincial Board of Canvassers proclaimed Diasen as the duly elected governor. On the same date,
Diasen took his oath of office as governor of Kalinga Province.
22

On March 9, 2000, after receiving Atty. Alipings Report on March 3, 2000 on Diasens proclamation,
the COMELEC en banc issued an order:
1. To direct Rommel Diasen to cease and desist from discharging the duties and functions of the
Office of the Governor of Kalinga Province until further orders of this Commission during the
pendency of this case;
2. To require both parties to comment on the report of Atty. Nicasio M. Aliping, Jr., Regional Election
Attorney and Chairman of the Provincial Board of Canvassers of Kalinga, x x x, and to include in said
comment why the proceedings of the Provincial Board of Canvassers on February 25, 2000 and the
subsequent proclamation of Atty. Rommel Diasen on 28 February 2000 be declared null and void.
Thereafter, the COMELEC en banc re-scheduled the re-hearing of Diasens motion for
reconsideration (in view of the 3-3 voting) set on March 9 to March 23, 2000. The parties agreed to
file their respective memoranda.
Meanwhile, on October 3, 2000, the COMELEC (Second Division) issued a Resolution in SPC Case No.
98-291 declaring null and void the proclamation of Belac as governor, holding that:
The proclamation of respondent Belac by the PBC Chairman alone against the votes of the other two
members of the PBC is illegal because the Omnibus Election Code (Section 255) provides that a
majority vote of all the members of the Board of Canvassers shall be necessary to render a decision.
On November 16, 2000, Belac filed his Manifestation with Formal Motion claiming that the votes of
Commissioners Gorospe and Guiani in the assailed Resolution dated February 22, 2000 should not
be considered since they retired on February 15, 2000, or before the promulgation, citing the
recently decided case of Ambil vs. COMELEC.[2] In this case, the Supreme Court held that one who is
no longer a member of the Commission at the time the final decision or resolution is promulgated
cannot validly take part in that resolution or decision.
Chairman Demetriou denied Belacs motion.
On November 16, 2000, the Commission en banc, now with new members in view of the retirement
of Commissioners Manolo Gorospe and Japal Guiani, promulgated the second challenged Resolution,
the dispositive portion of which reads:
WHEREFORE, premises considered, the motion for reconsideration is hereby GRANTED.
Accordingly, We hereby:
1. AFFIRM the proclamation of Petitioner-Appellant ROMMEL W. DIASEN as the duly elected
Governor of Kalinga by Public Respondent Provincial Board of Canvassers of Kalinga;
2. RECALL and LIFT the Order promulgated on March 9, 2000 directing Petitioner-Appellant to
cease and desist from performing the duties and functions of the Office of Governor for the province
of Kalinga;
3. AFFIRM the directive to the LAW DEPARTMENT to conduct appropriate investigations of the
Board of Election Inspectors for the municipalities of Pinukpuk and Tinglayan, as well as John Does,
for possible collusion in the commission of election offenses and irregularities, subject in the above-
entitled case; and
4. FURNISH a copy of this Resolution to the Office of the President, the Secretary of Interior and
Local Government, the Chairman of the Commission on Audit, and the Secretary of the Sangguniang
Panlalawigan of Kalinga Province, for their guidance and information.
The above Resolution was concurred in by Commissioners Julio Desamito, Luzviminda Tancangco,
Ralph Lantion and Rufino Javier. Commissioner Teresita Dy-Liaco-Flores again wrote a dissenting
opinion, joined by Chairman Demetriou.
Hence, this petition by Dominador Belac on the following grounds:
First Ground
Respondent COMELEC committed grave abuse of discretion amounting to lack and/or excess of
jurisdiction and in fact implicitly deprived petitioner of DUE PROCESS, when it manifestly,
deliberately and utterly FAILED AND REFUSED to act WITH DISPATCH on private respondents
SUMMARY Petition on Pre-Proclamation Controversy; the Supposed Final Resolution on Mere
REHEARING promulgated only on November 16, 2000, AFTER MORE THAN 30 MONTHS from the
filing of the Petition, clearly violated petitioners right to due process, to a speedy disposition of
cases and an (sic) clearly an act of grave abuse of discretion.
Second Ground
The November 16 Questioned Resolution (Annex A) was absolutely useless and was indeed
superflous (sic) and totally NULL AND VOID, considering that the same was supposed to be a Final
Resolution on a supposed REHEARING under Rule 18, Section 6 of the COMELEC Rules, wrongfully
premised on a supposed previous EQUALLY DIVIDED VOTE in the February 22, 2000 Resolution of
the COMELEC En Banc, However, legally, procedurally and truthfully there was no such prior
Equally Divided Resolution/Vote that would have required a Rehearing, as the COMELEC En Banc
patently erred in counting and accepting even the null and void VOTES/signatures of two (2)
Commissioners who retired on February 15, 2000 - prior to the February 22, 2000 promulgation.
Third Ground
RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK
AND/OR EXCESS OF JURISDICTION WHEN IT EXCLUDED FROM CANVASS FORTY TWO (42)
ELECTION RETURNS FOR PINUKPUK AND TWENTY EIGHT (28) ELECTION RETURNS FOR
TINGLAYAN, DESPITE UTTER LACK OF LEGAL AND FACTUAL BASES THEREFOR AND IN GROSS
AND WANTON DISREGARD OF LAW AND WELL-SETTLED JURISPRUDENCE.
Public respondent COMELEC en banc and private respondent Rommel Diasen filed their respective
comments on the petition.
Respondent COMELEC, in its comment, states that based on evidence on record, there were serious
irregularities, tampering and falsification of the questioned election returns in the contested
precincts at Pinukpuk and Tinglayan. On this ground, although an exception, the COMELEC can rule
on the exclusion of the questioned election returns.
In his comment, respondent Diasen maintains that petitioner Belac can not be considered the duly
elected governor of Kalinga because the respondent COMELEC (Second Division) unanimously
declared null and void his proclamation in its resolution promulgated on October 3, 2000. Likewise,
petitioner was not deprived of due process considering that he was given the opportunity to be
heard and that he actively participated in the proceedings before the COMELEC. And by such active
participation, he is estopped from questioning the validity of the votes cast by Commissioners
Gorospe and Guiani who retired.
The basic issue for our resolution is whether or not respondent COMELEC in a pre-proclamation
case can go beyond the face of the election returns.
It may be recalled that when the Provincial Board of Canvassers commenced the canvassing of the
Certificates of Canvass and Statements of Votes for Pinukpuk and Tinglayan, respondent Diasen
23
objected to the inclusion of the election returns of several precincts in both municipalities; and that
within twenty-four hours therefrom, he filed a formal petition with the Provincial Board of
Canvassers for the exclusion of the Certificates of Canvass and Statements of Votes for the said
municipalities.
Section 241 of the Omnibus Election Code provides that a pre-proclamation controversy refers to
any question pertaining to or affecting the proceedings of the Board of Canvassers which may be
raised by any candidate or by any registered political party or coalition of political parties before the
Board or directly with the Commission, on any matter raised under Sections 233, 234, 235 and 236
in relation to the preparation, transmission, receipt, custody and appreciation of the election
returns.
Section 243 of the Code enumerates the specific issues that may be raised in a pre-proclamation
controversy as follows:
(a) Illegal composition or proceedings of the board of canvassers;
(b) The canvassed election returns are incomplete, contain material defects, appear to be tampered
with or falsified, or contain discrepancies in the same returns or in other authentic copies thereof as
mentioned in Sections 233, 234, 235 and 236 of this Code;
(c) The election returns were prepared under duress, threats, coercion, or intimidation, or they are
obviously manufactured or not authentic; and
(d) When substitute or fraudulent returns in controverted polling places were canvassed, the
results of which materially affected the standing of the aggrieved candidate or candidates.
The above enumeration is restrictive and exclusive. Thus, in Sanchez vs. COMELEC,[3] this Court
held:
3. The scope of pre-proclamation controversy is limited to the issues enumerated under sec. 243 of
the Omnibus Election Code. The enumeration therein of the issues that may be raised in pre-
proclamation controversy, is restrictive and exclusive. In the absence of any clear showing or proof
that the election returns canvassed are incomplete or contain material defects (sec. 234), appear to
have been tampered with, falsified or prepared under duress (sec. 235) and/or contain
discrepancies in the votes credited to any candidate, the difference of which affects the result of the
election (sec. 236), which are the only instances where a pre-proclamation recount may be resorted
to, granted the preservation of the integrity of the ballot box and its contents, Sanchez petition must
fail.
In his petition with the Provincial Board of Canvassers, respondent Diasen raised the following
grounds:
1. The Certificate of Canvass of Votes is falsified.
2. The Certificate of Votes were prepared under duress, threats, coercion or intimidation.
3. The certificate of Canvass of votes is obviously manufactured as the Statement of Votes
supporting it is likewise manufactured and falsified.
4. There was a deliberate and massive operation DAGDAG-BAWAS in the Certificate of Canvass and
Statement of Votes in Pinukpuk, Kalinga.
1. The votes of Candidate for Governor, Dominador Belac, in Precincts 1A, 2A, 3A, x x x were all
padded (OPERATION DAGDAG) or increased in the Statement of Votes per precinct as well as in the
Election Returns.
2. The Election Returns in the above-stated precincts cannot be the basis of a proper correction of
the votes garnered by Belac because said election returns were likewise tampered with, falsified
and manufactured as can be determined from the documents (ELECTION RETURNS) themselves
due to the following:
A. The aforesaid election returns were already prepared even before the actual counting of votes as
shown by the fact that they were prepared by persons other than the BEIs; (Board of Inspectors)
B. The PENCRAFT of the BEIs in the aforesaid precincts differ from the pencraft of those who
prepared the election returns;
C. In the aforesaid election returns, the votes of Belac were drastically and obviously increased as
can be gleaned from the fact that Belac garnered almost 100% of the registered voters in said
precincts;
D. That in order to determine the true will of the electorate[s], a RECOUNT of the votes must be
ordered.
Respondent Diasens petition pertains to a pre-proclamation controversy. Specifically, it alleges that
the votes for petitioner Belac were all padded through Operation Dagdag; the election returns for
him (Diasen) was tampered, falsified and manufactured; and that the election returns were already
prepared even before the counting of votes. He thus prays that the votes must be recounted.
Diasen did not say that the alleged irregularities appear on the face of the election returns.
Obviously, they came from external sources and, therefore, not manifest on the election returns.
In fact, even the Certificates of Canvass and Statements of Votes for Pinukpuk and Tinglayan were in
order.
The Provincial Board of Canvassers explained that it refused to exclude the Certificate of Canvass of
Tinglayan because it was regular on its face and the grounds raised by respondent Diasen are not
among those in the list enumerated by law. Nothing therein shows it was manufactured or prepared
under duress, threat or intimidation or that it was tampered or falsified.
As to the Statement of Votes for Tinglayan, the reason why some election returns were not
canvassed was because of ballot snatching in some areas. The incompleteness of the Statement of
Votes, therefore, did not vitiate the Certificate of Canvass.
With respect to the Certificate of Canvass and Statement of Votes for Pinukpuk, the Board checked
the entries therein of the election returns in the presence of the parties representatives. Having
found there were some Dagdag for Belac, the Board required the correction of the Statement of
Votes and the Certificate of Canvass basing the correction on the figures in the election returns,
pursuant to the General Instructions for Boards of Canvassers. It was only after the proper
correction was made that the Board included the Certificate of Canvass in the provincial canvass.
In Matalam vs. COMELEC,[4] this Court held that in a pre-proclamation controversy, the COMELEC,
as a rule, is restricted to an examination of the election returns and is without jurisdiction to go
beyond or behind them and investigate election irregularities. Indeed, in the case of Loong vs.
COMELEC,[5] the Court, through Mr. Justice Regino Hermosisima, Jr., declared that the prevailing
doctrine in this jurisdiction xxx is that as long as the returns appear to be authentic and duly
accomplished on their face, the Board of Canvassers cannot look beyond or behind them to verify
allegations of irregularities in the casting or the counting of the votes.
Loong cited the earlier ruling of the Court in Dipatuan vs. COMELEC[6] and held: The policy
consideration underlying the delimitation both of substantive ground and procedure is the policy to
24
determine as quickly as possible the result of the election on the basis of the canvass. Thus, in the
case of Dipatuan vs. Commission on Elections, we categorically ruled that in a pre-proclamation
controversy, COMELEC is not to look beyond or behind election returns which are on their face
regular and authentic returns. A party seeking to raise issues resolution of which would, compel or
necessitate COMELEC to pierce the veil of election returns which appear prima facie regular on their
face, has his proper remedy in a regular election protest. By their very nature, and given the obvious
public interest in the speedy determination of the results of elections, pre-proclamation
controversies are to be resolved in summary proceedings without the need to present evidence
aliunde and certainly without having to go through voluminous documents and subjecting them to
meticulous technical examinations which take up considerable time.
The above ruling was reiterated in the more recent case of June Genevieve R. Sebastian, et al. vs.
COMELEC, et al.,[7] this Court stressing that it sees no reason to depart from this rule.
In granting respondent Diasens motion for reconsideration of the Resolution of its First Division, the
COMELEC ruled:
Based on evidence on record, there were serious irregularities, tampering, and falsification of the
questioned returns in the said contested precincts in the municipalities of Tingalayan and Pinukpuk,
Kalinga province. On these factual findings, We find for their exclusion from canvass, albeit in a pre-
proclamation proceedings.
xxx
Upon a re-examination and comparison of the copies for this Commission and for the LAMMP, We
find that the same were prepared by a few select persons, assembled in a particular place, and
pressured by circumstances attendant during elections. There is a striking likeness and uniformity
of the handwriting found in the questioned election returns from the different precincts in the two
aforementioned municipalities. We are in awe on the evident likeness of strokes in the handwriting
in the entries in the election returns, despite the geographic distance of the two municipalities.
There is no inescapable conclusionary finding that could be made other than to declare that the
contested election returns as manufactured, and therefore, could not be a basis for a valid
Certificates of Canvass and Statement of Votes. (Italics supplied).
In concluding that there were serious irregularities, tampering and falsification of the questioned
election returns; and that they were manufactured, respondent COMELEC looked beyond the face of
the documents, hence, exceeding its authority, contrary to the mandate of Loong, reiterated in
Matalam and Sebastian.
We thus hold that respondent COMELEC committed grave abuse of discretion when it granted
respondent Diasens motion for reconsideration.
At this point, counsel for respondent Diasen must remember that he should have determined
carefully the proper legal remedy or recourse for his client, such as an election protest. Needless to
state, a procedural flaw, as in this case, causes prejudice to the litigants and impairs the proper
administration of justice.
We now come on the peripheral issue regarding the votes of Commissioners Gorospe and Guiani in
the February 22, 2000 Resolution. They had retired when they participated in the promulgation of
the said Resolution.
In Jamil vs. COMELEC,[8] this Court ruled:
x x x A decision becomes binding only after it is validly promulgated. Consequently, if at the time of
the promulgation of a decision or resolution, a judge or a member of the collegiate court who had
earlier signed or registered his vote, has vacated his office, his vote is automatically withdrawn or
cancelled.
The reason for the rule, which is logically applicable to decisions of constitutional commissions and
administrative bodies or agencies, is cogently expressed in the case of Consolidated Bank and Trust
Corporation v. Intermediate Appellate Court:
xxx
'A decision becomes binding only after it is validly promulgated and not before. As we said only
recently in In re Emiliano Jurado, a decision or resolution of the Court becomes such, for all legal
intents and purposes, only from the moment of its promulgation. According to Chief Justice Moran in
the landmark case of Araneta v. Dinglasan:
Accordingly, one who is no longer a member of this court at the time a decision is signed and
promulgated, cannot validly take part in that decision. As above indicated, the true decision of the
Court is the decision signed by the Justices and duly promulgated. Before that decision is so signed
and promulgated, there is no decision of the Court to speak of. The vote cast by a member of the
Court after the deliberation is always understood to be subject to confirmation at the time he has to
sign the decision that is to be promulgated. The vote is of no value if it is not thus confirmed by the
Justice casting it. The purpose of this practice is apparent. Members of this Court, even after they
have cast their votes, wish to preserve their freedom of action till the last moment when they have
to sign the decision, so that they may take full advantage of what they may believe to be the best
fruit of their most mature reflection and deliberation. In consonance with this practice, before a
decision is signed and promulgated, all opinions and conclusions stated during and after the
deliberation of the Court, remain in the breasts of the Justices, binding upon no one, not even upon
the Justices themselves. Of course, they may serve for determining what the opinion of the majority
provisionally is and for designating a member to prepare the decision of the Court, but in no way is
that decision binding unless and until signed and promulgated.
We add that at any time before promulgation, the ponencia may be changed by the ponente. Indeed,
if any member of the court who may have already signed it so desires, he may still withdraw his
concurrence and register a qualification or dissent as long as the decision has not yet been
promulgated. A promulgation signifies that on the date it was made the judge or judges who signed
the decision continued to support it.
If at the time of the promulgation, a judge or a member of a collegiate court has already vacated his
office, his vote is automatically withdrawn. x x x
The rule has not been modified. In fact in the recently decided case of Ruperto A. Ambil, Jr. vs.
COMELEC,[9] this Court passed upon a resolution written by Commissioner Guiani himself, holding
that the said resolution is null and void ab initio because:
A final decision or resolution becomes binding only after it is promulgated and not before.
Accordingly, one who is no longer a member of the Commission at the time the final decision or
resolution is promulgated cannot validly take part in that resolution or decision. Much more could
he be the ponente of the resolution or decision. The resolution or decision [of the Division] must be
signed by a majority of its members and duly promulgated.
Upon their retirement, Commissioners Gorospe and Guiani had been stripped of all authority to
participate in the promulgation of the February 22, 2000 Resolution. Pursuant to Section 6 of the
COMELEC Rules of Procedure, earlier quoted, the Resolution dated June 4, 1998 of the First Division
is therefore deemed affirmed as the votes of Commissioners Gorospe and Guiani are considered
cancelled.
25
Indeed, there was initially no evenly divided vote in the February 22, 2000 Resolution that should
have merited a rehearing or the issuance of the challenged Resolution dated November 16, 2000 by
the new members of respondent COMELEC.

On petitioners contention that there was a long and deliberate delay on the part of public
respondent COMELEC as previously stated, respondent Diasens motion for reconsideration of the
Resolution of the COMELEC First Division was filed with respondent COMELEC en banc on June 19,
1998. However, it was only on February 22, 2000, or after almost two (2) years, when the motion
was resolved. In view of the equally divided voting, a rehearing was ordered. The parties merely
submitted memoranda. Yet, it was only on November 16, 2000, or after almost nine (9) months from
February 22, 2000, when respondent COMELEC finally promulgated the other challenged
Resolution dated November 16, 2000.

Pre-proclamation controversies are mandated by law to be summarily disposed of.[10]

Here, the COMELEC failed to comply with this mandate. Let it be reminded that pre-proclamation
controversies, by their very nature, are to be resolved in summary proceedings which obviously
should be disposed of without any unnecessary delay.

WHEREFORE, the petition is hereby given due course and is GRANTED. The challenged Resolutions
dated February 22, 2000 and November 16, 2000 of respondent COMELEC en banc are SET ASIDE,
while the Resolution of the COMELEC (First Division) dated June 4, 1998 is AFFIRMED. Respondent
COMELEC is directed to forthwith conduct the proclamation of petitioner Dominador Belac in
accordance with law.

SO ORDERED.

26
G.R. No. 171063 March 2, 2007
In recapitulation, the votes garnered by each candidate in the contested precincts are as follows:
EDUARD V. TUGADE, Petitioner,
vs. Precincts Nos. 60-A/60-A-1
COMMISSION ON ELECTIONS and FLORENCIO P. AGUSTIN, Respondents
Florencio Agustin 119 + 1 = 120
DECISION Eduard Tugade 125 - 3 = 122
The final tally, therefore, is:
SANDOVAL-GUTIERREZ, J.:
Precinct
Before us for resolution is a special civil action for certiorari under Rule 65 of the 1997 Rules of Civil 60-A/60-A-1 Precinct
Procedure, as amended, assailing the Resolution1 dated October 25, 2005 and Order2 dated January 61-A/61-A-1 Total
5, 2006 of respondent Commission on Elections (COMELEC) issued in EAC No. 34-2002. Florencio Agustin 120 126 246
Eduard Tugade 122 120 242
The facts are: On the same date, private respondent filed a motion for execution of the MTC Decision pending
appeal.
Petitioner Eduard V. Tugade and private respondent Florencio P. Agustin were candidates for the
position of Punong Barangay of San Raymundo, Balungao, Pangasinan during the July 15, 2002 For his part, petitioner, on September 4, 2002, filed a notice of appeal and an opposition to private
synchronized Barangay and Sangguniang Kabataan elections. respondent’s motion for execution pending appeal.

The result of the canvass showed that petitioner obtained 246 votes, while private respondent
garnered 245 votes, or a margin of only one (1) vote.
Hence, on July 16, 2002, the Barangay Board of Canvassers proclaimed petitioner as the elected
Punong Barangay.
On July 23, 2002, private respondent filed with the Municipal Trial Court (MTC) of Balungao,
Pangasinan an election protest, docketed as Election Protest Case No. 900. He questioned the results
of the votes cast and counted in Precinct No. 60-A/60-A-1.
On September 9, 2002, the MTC issued an Order denying private respondent’s motion. In another
Order of the same date, the court ordered the transmittal of the complete records of the case to
respondent COMELEC.
On appeal, the COMELEC (Second Division), on October 25, 2005, issued the assailed Resolution4
declaring a tie between petitioner and private respondent, thus:
Based on the above findings, the total number of votes for protestant-appellee and protestee-
appellant is as follows:

In his answer with counterclaim, petitioner countered that the conduct and final outcome of the Agustin Tugade
election have been regular, credible and in accordance with the Omnibus Election Code and the Total votes from the uncontested precinct per election return 126 120
Rules and Regulations of the July 15, 2002 synchronized Barangay and Sangguniang Kabataan ADD:
Elections.
Total votes per physical count from contested precinct 119 125
On August 13, 2002, the MTC created a Revision Committee. Its report, based on the election returns ADD:
and the tally sheets, showed the following:
Validated claimed votes 1 2
Florencio P. Agustin - 119 LESS:
Eduard V. Tugade - 126
TOTAL 245 Invalidated votes per COMELEC ruling: 0 1
However, after the segregation and recount of the ballots contained in the sealed envelopes for the GRAND TOTAL 246 246
candidates in the contested precincts, the following results were obtained: The final tally, therefore, is two hundred forty six (246) votes for protestant-appellee Agustin and
two hundred forty six (246) votes for protestee-appellant. The foregoing appreciation therefore
Florencio P. Agustin - 119 shows a tie between the two candidates.
Eduard V. Tugade - 125
Stray Ballots - 11 xxx
TOTAL 255
Thereafter, the parties, through their Revisors, submitted their respective objections and claims, WHEREFORE, premises considered, the instant appeal is GRANTED. The September 3, 2002
thus: private respondent objected to three (3) ballots for petitioner (Exhibits "A", "B", "C") and laid Decision of Acting Presiding Judge Manuel F. Pastor, Jr. of the Municipal Trial Court of Balungao,
claim to one (1) ballot considered as stray by the Board of Canvassers. Petitioner, on the other hand, Pangasinan in Election Protest Case No. 900 declaring protestant-appellee Florencio P. Agustin the
objected to two (2) ballots counted for private respondent (Exhibits "1" and "2") and laid claim to winner for the position of Punong Barangay of Barangay San Raymundo, Balungao, Pangasinan
two (2) ballots (Exhibits "3" and "4"). Later, petitioner withdrew his claim to Exhibit "4". during the July 15, 2002 synchronized Barangay and Sangguniang Kabataan elections is hereby
REVERSED and SET ASIDE.
On September 3, 2002, the MTC rendered its Decision3 declaring private respondent the duly
elected Punong Barangay, thus:
27
The Barangay Board of Canvassers of Barangay San Raymundo, Balungao, Pangasinan is hereby
ordered to RECONVENE and, after five (5) days due notice to herein protestee-appellant and
protestant-appellee, hold a special public meeting at which it shall proceed to the DRAWING OF
LOTS (not tossing of a coin) and shall proclaim as elected Punong Barangay of San Raymundo the
candidate who may be favored by luck, pursuant to Section 240 of the Omnibus Election Code.
The Election Officer of Balungao, Pangasinan is hereby directed to implement this Resolution. In the
accomplishment thereof, he is hereby authorized to appoint new members of the Barangay Board of
Canvassers in the event that some members are already unavailable or to convene a new Barangay
Board of Canvassers altogether in the absence of the old one.
SO ORDERED.
On November 11, 2005, petitioner filed a motion for reconsideration with respondent COMELEC En
Banc.
On January 5, 2006, petitioner’s motion for reconsideration was denied because of his failure (1) to
file the same within the five-day reglementary period under Section 2, Rule 19, COMELEC Rules of
Procedure; (2) to pay the required motion fees prescribed under Section 7(f), Rule 40 of the same
Rules, as amended by Comelec Minute Resolution No. 02-0130 dated September 18, 2003; (3) to
verify the motion in accordance with Section 3, Rule 19, of the same Rules; and (4) to file with the
COMELEC the required number of copies of his motion,5 pursuant to Section 1, Rule 7, also of the
same Rules.
parties, acted in accordance with Section 240 of Batas Pambansa 881, otherwise known as the
Omnibus Election Code of the Philippines which provides:
Sec. 240. Election resulting in tie. - Whenever it shall appear from the canvass that two or more
candidates have received an equal and highest number of votes, or in cases where two or more
candidates are to be elected for the same position and two or more candidates received the same
number of votes for the last place in the number to be elected, the board of canvassers, after
recording this fact in its minutes, shall by resolution, upon five days notice to all the tied candidates,
hold a special public meeting at which the board of canvassers shall proceed to the drawing of lots
of the candidates who have tied and shall proclaim as elected the candidates who may be favored by
luck, and the candidates so proclaimed shall have the right to assume office in the same manner as if
he had been elected by plurality of vote. The board of canvassers shall forthwith make a certificate
stating the name of the candidate who had been favored by luck and his proclamation on the basis
thereof.
Nothing in this section shall be construed as depriving a candidate of his right to contest the
election.
WHEREFORE, the petition is DISMISSED. Costs against petitioner.
SO ORDERED.

Hence, the present petition based on the following ground:

THE QUESTIONED RESOLUTION DATED OCTOBER 25, 2005 AND THE ORDER DATED JANUARY 5,
2006 OF RESPONDENT COMMISSION, WITH DUE RESPECT, ARE NOT IN ACCORD WITH THE LAW
OR WITH THE APPLICABLE DECISIONS OF THIS HONORABLE SUPREME COURT.

In his Comment,6 private respondent contends that this petition for certiorari should be dismissed
because it does not allege facts showing grave abuse of discretion amounting to lack or in excess of
jurisdiction on the part of respondent COMELEC. The petition only states a general and sweeping
statement that the assailed Resolution and Order "are not in accord with the law or with the
applicable decisions."

The petition must fail.

In certiorari proceedings, questions of fact are not generally permitted, the inquiry being limited
essentially to whether or not the respondent tribunal had acted without or in excess of its
jurisdiction or with grave abuse of discretion.7 Here, petitioner is questioning respondent
COMELEC’s conclusion that there is a "tie between the two candidates." Definitely, this is a factual
issue.

Grave abuse of discretion is committed when an act is 1) done contrary to the Constitution, the law
or jurisprudence, or 2) executed "whimsically or arbitrarily" in a manner "so patent and so gross as
to amount to an evasion of a positive duty or a virtual refusal to perform the duty enjoined,"8 as
where the power is exercised in an arbitrary and despotic manner because of passion or personal
hostility.9 An act of a court or tribunal may constitute grave abuse of discretion when the same is
performed in a capricious or whimsical exercise of judgment amounting to lack of jurisdiction.

Such act is wanting in the present case.

Moreover, it is relevant to state that respondent COMELEC En Banc, in ordering the immediate
implementation of the Resolution issued by its Second Division for the drawing of lots of the herein

28
[G.R. No. 136282. February 15, 2000]
FRANCISCO D. OCAMPO, petitioner, vs. COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF
CANVASSERS OF STA. RITA, PAMPANGA and ARTHUR L. SALALILA, respondents.
[G.R. No. 137470. February 15, 2000]
FRANCISCO D. OCAMPO, petitioner, vs. ARTHUR L. SALALILA, respondent.
DECISION
KAPUNAN, J.:
The case before us hinges on the question of whether or not to include in the canvass the contested
election returns.
The facts are as follows:
Francisco D. Ocampo and Arthur L. Salalila were candidates for Mayor in the Municipality of Sta.
Rita, Province of Pampanga during the May 11, 1998 elections. There were 78 precincts in said
municipality. During the canvassing of the election returns which started on May 12, 1998 and
ended on May 14, 1998 petitioner moved for the exclusion of the election returns in 8 precincts
from Barangay Basilia considering that the turnout of votes was allegedly lopsided against his favor.
The results were as follows: Ky-le
Precinct No.........................VOTES RECEIVED BY
.....................................OCAMPO............SALALILA
1. 88-A-1..............................0......................165
2. 89-A-1..............................0......................104
3. 90-A & 90-A-1..................3......................192
4. 92-A.................................0......................152
5. 93-A & 94-A.....................7......................236
6. 99-A & 100-A...................7......................205
7. 104-A...............................5......................155
8. 105-A...............................3......................115[1]
..........................................------.................------
..........................................25 votes................1,324 votes
The grounds for the exclusion of the election returns in the aforementioned precincts were: i.e: (1)
that the same were obviously manufactured; (2) they were defective for they contained no data on
the number of registered votes in the precinct, actual number of votes cast and the number of valid
votes cast; and (3) other alleged discrepancies in the data on votes cast and total number of
registered voters and excess ballots.[2]
Finding the contested election returns to be genuine and authentic and without merit, the Municipal
Board of Canvassers (MBC) ruled to order the inclusion in the canvass of the contested election
returns.[3]
On May 16, 1998, petitioner went to see the Chairman of the MBC at his office to file his Notice of
Appeal. Since the latter was not present, petitioner instead filed said notice with Board Members
Nelia Salvador and Diosdado L. Amio who, however, refused to accept the same in line with the
Boards earlier ruling not to receive anymore the Notice of Appeal. Upon request, a Certification to
that effect was issued by Nelia Salvador and Disodado Amio on the same date.[4]
On May 18, 1998, petitioner went to the COMELEC and filed a formal appeal.[5] This was docketed
as SPC No. 98-056. On June 29, 1998, the COMELEC Second Division, rendered a Resolution stating
the following: E-xsm
xxx
Respondent MBC should have at least suspended its canvass in so far as the question or contested
election returns were concerned. x x x x
In precinct 88-A-1 the election return is lacking in material data as there were no entries as to the
number of registered voters in the precinct, the actual number of votes cast and the number of valid
votes cast. In such a situation it is incumbent upon the MBC to call the members of the Board of
Election Inspectors (BEI) to complete the data which failed to do so.
In precinct 89-A-1 there was a discrepancy in the figure of the total number of valid votes cast and
the number of votes received by private respondent Salalila. Moreover, two (2) member (sic) of the
BEI did not affixed (sic) their thumbmark in the questioned election returns rendering their
authenticity doubtful. There is material discrepancy in the election return as it is (sic) states therein
that there were 197 voters who actually voted. And also it was also stated therein that there were
22 excess ballots and therefore the number of voters who actually voted will be 219 in excess of the
215 total number of registered voters for the precinct.
In precincts 92-A the return states that there were 153 voters who actually voted and private
respondent Salalila received 152 votes while petitioner got zero (0), one (1) vote therefore is clearly
missing.
In 93-A and 94-A there were an excess of the number of voters who actually voted. The election
returns shows that there were 245 voters who actually voted yet there were 27 excess ballots found
in the ballot box, but the number of voters in the precinct is only 272, meaning there was a one
hundred per cent (100%) turn-out of voters for those precinct but the election return states that
there were only 245 who actually voted.
In precinct 99-A, 100-A and 104-A there were also no entries on the data of voters and ballots. Again
the MBC should have at least called the members of the BEI to complete the data in the election
return and explain why they failed to do the same. Me-sm
In precinct 105-A it is obvious that there were discrepancies in the material data in that the total
number of registered voters in the precinct is 141 while the total number accordingly of the voters
who actually voted is 121 but found out inside the ballot box were 144 valid ballots which obviously
in excess of three (3) from the total number of the registered voters for the precinct.
But more than the above findings what is significant is that in Precincts 93-A and 94-A there were
erasures in the election return which accordingly was made to reflect the correct votes received by
petitioner and private respondent. According to the Chairman of BEI, private respondent received
96 votes while, petitioner received 4 votes instead of 97 yet the election returns states that
petitioner received only three votes instead of four as claimed but (sic) the Chairman of the BEI.
29
Such erasures manifest (sic) on the election return puts the authenticity of the same in issue and
should have been excluded in the canvass.
While it is true that the Board of Canvassers is essentially a ministerial body and has no power to
pass upon questions of whether there are illegal voters or other election frauds. (Dizon v. Provincial
Board, 52 Phil 47; Sangki v. Comelec, 21 SCRA 1392), it is also true that in case of patent irregularity
in the election returns, such as patent erasures and super-impositions in words and figures on the
face of the returns submitted to the board, it is imperative for the board to stop the canvass of such
returns so as to allow time for verification. A canvass and proclamation made withstanding such
patent defects in the returns which may affect the result of the election, without awaiting remedies,
is null and void. (Purisima v. Salonga, 15 SCRA 704).
WHEREFORE, the Commission (Second Division) resolves to GIVE DUE COURSE to the appeal and
the eight (8) contested election returns are hereby ordered excluded from the canvass for the
position of the municipal mayor of Sta. Rita, Pampanga.
The proclamation made by respondent MBC on May 14, 1998 proclaiming private respondent as
duly elected Mayor of Municipality of Sta. Rita, Pampanga is hereby SUSPENDED. S-l-x
Respondent MBC is hereby directed to reconvene and issue a new certificate of canvass of votes
excluding the election returns subject of this appeal and on the basis of which proclaim the winning
candidate for Mayor of the Municipality of Sta. Rita, Pampanga.
SO ORDERED.[6]
On July 3, 1998, private respondent Salalila filed a motion for reconsideration.[7]
On November 19, 1998, the COMELEC en banc promulgated the questioned Resolution reversing the
findings of the Comelec Second Division. The decretal portion of which states:
WHEREFORE, in view of the foregoing, the Resolution promulgated by this Commission (Second
Division) on 29 June 1998 is hereby reversed and set aside. The suspension of the effects of the
proclamation of the respondent/appellee, ARTHUR L. SALALILA, is hereby lifted. His proclamation
as MAYOR of the municipality of Sta. Rita, Pampanga on 14 May 1998 is hereby confirmed.
SO ORDERED.[8]
Hence, petitioner Ocampo filed the iinstant petition citing the grave abuse of discretion committed
by the COMELEC en banc in reversing the findings of the COMELEC Second Division. A temporary
restraining order was also prayed for to enjoin the effects of private respondents Salalilas
proclamation as municipal mayor.
On December 15, 1998, this Court issued a Temporary Restraining Order directing the COMELEC to
cease and desist from enforcing its Resolution, dated November 19, 1998 in SPC No. 98-056.
Meanwhile, on March 1, 1999, petitioner filed a separate petition before this Court to cite private
respondent Salalila for contempt. This was docketed as G.R. No. 137470. In this petition, petitioner
claimed that despite the issuance of a Temporary Restraining Order by this Court on December 15,
1998 in G.R. No. 136282, private respondent Salalila continued to act as the Mayor of Sta. Rita,
Pampanga. Es-mso
Petitioner would like to impress upon this Court that the returns in the subject precincts (25 votes
with zero 0 votes in three precincts, as against private respondents Salalilas 1,333 votes) were
statistically improbable considering that he was a re-electionist and with assigned watchers therein.
Although he admits that the precincts were private respondent Salalilas bailiwick, precedence
dictates that every election document coming from a candidates bailiwick must be carefully
scrutinized.
Petitioner claims that the election returns did not contain data as required in Section 212 of the
Omnibus Election Code which reads:
The returns shall also show the date of the election, the polling place, the barangay and the city or
municipality in which it was held, the total number of ballots found in the compartment for valid
ballots, the total number of valid ballots withdrawn from the compartment for spoiled ballots
because they were erroneously placed therein, the total number of excess ballots, the total number
of marked or void ballots, and the total number of votes obtained by each candidate, writing out the
said number in words and figures and, at the end thereof, the board of election inspectors shall
certify that the contents are correct. The returns shall be accomplished in a single sheet of paper,
but if this is not possible, additional sheets may be used which shall be prepared in the same
manner as the first sheet and likewise certified by the board of election inspectors.
xxx
Petitioner further contends that these data on voters and ballots are just as important as the data on
votes credited to the candidate on the same election returns. The absence such data without any
explanation or correction on the part of the Board of Election Inspectors who prepared those
election documents renders them invalid. Violations of Sections 234 and 235 relating to material
defects in the election returns and tampered or falsified election returns are considered election
offenses under Section 262 of the Omnibus Election Code.[9]
The pertinent provisions read as follows: Sc-slx
Sec. 234. Material defects in the election returns.- If it should clearly appear that some requisites in
form or data had been omitted in the election returns, the board of canvassers shall call for all the
members of the board of election inspectors concerned by the most expeditious means, for the same
board to effect the correction. Provided, That in case of the omission in the election returns of the
name of any candidate and/or his corresponding votes, the board of canvassers shall require the
board of election inspectors concerned to complete the necessary data in the election returns and
affix therein their initials: Provided, further, That if the votes omitted in the returns cannot be
ascertained by other means except by recounting the ballots, the Commission, after satisfying itself
that the identity and integrity of the ballot box have not been violated, shall order the board of
election inspectors to open the ballot box, and, also after satisfying itself that the integrity of the
ballots therein has been duly preserved, order the board of election inspectors to count the votes for
the candidate whose votes have been omitted with notice thereof to all candidates for the position
involved and thereafter complete the returns.
The right of a candidate to avail of this provision shall not be lost or affected by the fact that an
election protest is subsequently filed by any of the candidates.
Sec. 235. When election returns appear to be tampered with or falsified. - If the election returns
submitted to the board of canvassers appear to be tampered with, altered or falsified after they have
left the hands of the board of election inspectors, or otherwise not authentic, or were prepared by
the board of election inspectors, the board of canvassers shall use the other copies of said election
returns and, if necessary, the copy inside the ballot box which upon previous authority given by the
Commission may be retrieved in accordance with Section 220 hereof. If the other copies of the
returns are likewise tampered with, altered, falsified, not authentic, prepared under duress, force,
intimidation, or prepared by persons other than the members of the board of election inspectors,
the board of canvassers or any candidate affected shall bring the matter to the attention of the
Commission. The Commission shall then, after giving notice to all candidates concerned and after
satisfying itself that nothing in the ballot box indicate that its identity and integrity have been
violated, order the opening of the ballot box and, likewise after satisfying itself that the integrity of
30
the ballots therein has been duly preserved shall order the board of election inspectors to recount
the votes of the candidates affected and prepare a new return which shall then be used by the board
of canvassers as basis of the canvass. (Sec. 173, 1978 EC). Sl-xsc
The petition must fail.
It must be borne in mind that we are persuaded strongly by the principle that the findings of facts of
administrative bodies charged with their specific field of expertise, are afforded great weight by the
courts, and in the absence of substantial showing that such findings are made from an erroneous
estimation of the evidence presented, they are conclusive, and in the interest of stability of the
governmental structure, should not be disturbed.[10] The COMELEC, as an administrative agency
and a specialized constitutional body charged with the enforcement and administration of all laws
and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall,
has more than enough expertise in its field that its findings or conclusions are generally respected
and even given finality.[11] We do not find the instant case an exception to this avowed rule.
In order to allay any suspicion of gravely abusing its discretion, the COMELEC made a careful
examination of the contested election returns. "To check and double check" if it were true that the
contested election returns were tampered with, altered or falsified, the COMELEC en banc examined
two separate copies of the election returns: (1) the copy for the Municipal Board of Canvassers and
(2) the COMELEC copy. Thus, the following findings were made:
In the election returns for precinct 88-A-1, only formal defects are present, there being no entries on
the requisite data as to the number of registered voters in the precinct, the actual number of votes
cast and the number of valid votes cast. However, the number of votes credited to the petitioner and
private respondent and the taras therein do not contain any erasure or alteration as to bring the
number of votes obtained by the petitioner and private respondent within the realm of controversy.
We, therefore, rule for the inclusion of the election returns for this precinct. Sl-xm-is
The election returns for precinct 89-A-1 was ruled excluded by the Second Division for several
reasons. It was alleged (1) that there is a discrepancy in the total number of valid votes cast and
number of votes received by private respondent Salalila; (2) that two (2) members of the Board of
election Inspectors did not affix their thumb mark in the questioned election returns; and (3) that
the elections returns states that there were 197 voters who actually voted while there were 22
excess ballots which means that the number of voters who actually voted will be 219 in excess of the
215 total number of registered voters in the precinct. An examination of this election returns shows
that all pages of the election returns have been signed and thumb marked by the chairman and
members of the board of election inspectors except on page 3 where the members did not thumb
mark but the chairman did and on page 4 where the chairman had no thumb mark but the members
did have. This is a mere oversight and it did not vitiate the validity of the votes credited to each
candidate nor did it destroy the integrity of the election return. A perusal of the election returns for
the mayoral candidates shows that Salalila got one hundred four (104) votes while
petitioner/appellant Ocampo received zero (0). The fact that private respondent/appellee got
almost all the votes cast in this precinct is not necessarily proof of fraud for there is nothing in the
returns to show that it was tampered or altered. The election returns itself reflects with clarity the
votes obtained by Salalila and Ocampo. It bears no sign whatsoever of tampering or alteration.
Moreover, contrary to the findings of the Second Division, the election returns for this precinct did
not state that there were 197 voters who actually voted and that there were 22 excess ballots but
rather, the number of voters who actually voted is only 105 out of 115 total registered voters in this
precinct and the excess ballots is zero. We, therefore, rule for the inclusion in the canvass of the
election returns for this precinct. M-issdaa
In the election returns for precinct 92-A, it was ruled excluded on the ground that one (1) vote is
missing therein, 153 voters having actually voted and private respondent Salalila received 152 votes
while petitioner got zero (0). We overrule. The fact that Salalila got one hundred fifty two (152)
votes out of 153 voters who actually voted while Ocampo got zero (0), does not necessarily mean
that one (1) vote is missing. One (1) voter in this precinct might have desisted from casting his vote
for the mayor or may have voted but the vote was not credited because it was stray or just illegible.
But the missing vote cannot be a ground for exclusion. Hence, We rule for the inclusion of the
election returns in the canvass.
In the election returns for clustered precincts 93-A and 94-A, an examination of the returns shows
that it is complete with entries of the requisite data and that it had been signed by all the members
of the board of election inspectors. It also discloses that it is not true there was one hundred percent
(100%) turn-out of voters for this clustered precincts as there were only two hundred forty five
(245) voters who actually voted out of the two hundred seventy two (272) registered voters. Hence,
there is nothing mysterious about the 27 excess but unused ballots found in the ballot box. Similarly,
we saw no erasures or alteration on the face of the election returns, specifically the portion showing
the number of votes. If at all, there were superimposition made on the faintly written names of the
candidates to make the same easily readable. Such superimposition on the names of candidates did
not in any manner render the number of votes garnered by the candidates subject to doubt as to
bring the same within the realm of controversy. Moreover, We find intriguing the finding that
chairman of the board of election inspectors claimed that private respondent received 96 votes
instead of 97 while petitioner received 4 votes yet the election returns states that petitioner
received only three votes instead of four. We find nothing in the records to support it. The election
returns itself shows that Salalia obtained two hundred thirty six (236) votes while Ocampo got
seven (7) votes. We, therefore, rule for the inclusion in the canvass of said election returns.
In the election returns for clustered precincts 99-A and 100-A, and precinct 104-A, only formal
defects are present, there being no entries of the requisite data as to the number of registered
voters in the precincts, the actual number of votes cast, and the number of valid votes cast.
However, the number of votes credited to the petitioner/appellant and respondent/appellee as
reflected by the taras show correctness of count. There were no erasures or alteration as to put the
same into question. We therefore, likewise rule for the inclusion in the canvass of this election
returns. Sd-aad-sc
In the election returns for precinct 105-A, it was ruled excluded because of alleged discrepancies in
the material data in that the total number of registered voters in the precinct is 141 while the total
number of the voters who actually voted is 121 but found out inside the ballot box were 144 valid
ballots which is excess of three (3) from the total number of registered voters for the precinct. The
three (3) "excess" ballots are in reality not excess ballots. The precinct ratio on ballot distribution
adopted by the Commission in the 11 May 1998 elections is one (1) ballot for every registered voter
plus four (4) ballots. At any rate, an examination of the questioned election returns shows that the
defects are only formal and not material as to warrant the outright exclusion from canvass of the
questioned election returns. The number of votes credited to petitioner/appellant who got three (3)
votes and private respondent/appellee who received one hundred fifteen (15) votes was
undisturbed and does not bear any sign of alteration as to put the result of the election into
question. We, therefore, likewise rule for the inclusion in the canvass of the election returns for this
precinct.[12]
Notably, the COMELEC en banc merely sustained the findings and rulings of the Municipal Board of
Canvassers who, at the first instance, found the contested election returns to be genuine and
authentic and the objections to be without merit. Moreover, the COMELEC en banc did not meet any
oppositions or dissent from any of the Commissioners who have rendered the resolution[13]
reversing the decision of the MBC. This only goes to show that there was a painstaking review and
examination of the returns by the COMELEC en banc which does not warrant a different conclusion
from this Court. Rtc-spped
That the election returns were obviously manufactured must be evident from the face of said
documents.[14] In the absence of a strong evidence establishing spuriousness of the returns, the
basic rule that the election returns shall be accorded prima facie status as bona fide reports of the
results of the count of the votes for canvassing and proclamation purposes must perforce
31
prevail.[15] The COMELEC en banc did not find any signs of alterations or tampering on the election
returns nor did the petitioner present any hard evidence of such irregularity. The only thing which
we surmise came too close to such a change was the written superimposition made on the family
names of the candidates in the election returns of the clustered precincts 93-A and 94-A. This was
certainly not an alteration or tampering since the COMELEC en banc found that such
superimposition was necessarily done in order to make the names readable. Nonetheless, petitioner
failed to deduce evidence to the contrary. The other thing which petitioner considered the returns
to be "obviously manufactured" was the fact that petitioner garnered zero (0) votes in three (3)
precincts which was allegedly statistically improbable. To this claim, the case of Sanki v.
COMELEC[16] is worth reiterating:
x x x Indeed, the bare fact that candidates for public office had received zero votes is not enough to
make the returns statistically improbable. In the Lagumbay decision itself, Chief Justice Cesar
Bengzon, who delivered the majority opinion, did not say that when one candidate receives nothing
in an election return; such a circumstance alone will make said return statistically improbable. x x x
disregarded in the canvass must be approached with extreme caution and only upon the most
convincing proof. x x x
For as long as the election returns which on their face appear regular and wanting of any physical
signs of tampering, alteration or other similar vice, such election returns cannot just be unjustifiably
excluded. To look beyond or behind these returns is not a proper issue in a pre-proclamation
controversy as in the case at bar.[18]
WHEREFORE, the petition for certiorari in G.R. No. 136282 is hereby DISMISSED for its failure to
show grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the
Commission on Elections (COMELEC) in rendering the assailed Resolution, dated November 19,
1998. G.R. No. 133470 is, likewise, DISMISSED. The Temporary Restraining Order issued on
December 15, 1998 is hereby LIFTED.
SO ORDERED.

xxx

x x x we can not, with certainty, conclude form the facts before us that the returns questioned were
"not true returns of legal votes actually cast, but simply manufactured evidences of an attempt to
defeat the popular will. Sc-lex

To be sure, it cannot be said here - as this Court did intimate in Lagumbay - that respondent board
of canvassers may legally deny "prima facie recognition to such returns on the ground that they are
manifestly fabricated or falsified;" or that "the fraud is so palpable from the return itself (res ipsa
loquitur - the thing speaks for itself)", such that "there is no reason to accept and give it prima facie
value."

The factual background of this case suggests that we should not unduly expand the reach of the
statistically improbable doctrine carved out of the facts obtaining in Lagumbay. Rather, we should
say that respondent board of canvassers - sustained by Comelec - in refusing to reject canvass of the
returns from the disputed precincts, properly performed the functions allocated to it by law. It did
well in not overstepping its authority. x x x

Anent the objection as to the omitted data in the election returns, a close reading of Section 234 of
the Omnibus Election Code shows that nothing in said provision provides for the exclusion of the
election returns.

Moreover, such omitted data are merely formal defects and not so material as to affect the votes the
candidates obtained in the election. We find the case of Baterina vs. Commission on Elections[17]
similar to the case at bar, where the Court elucidated that:

[T]he grounds raised by petitioners for the exclusion of the election returns from the canvassing, as
stated in their "Appeal Memorandum", before the COMELEC (Rollo, p. 92), refer to the failure to
close the entries with the signatures of the election inspectors; lack of inner and outer paper seals;
canvassing by the BOARD of copies not intended for it; lack of time and date of receipt by the
BOARD of election returns; lack of signatures of petitioners watchers; and lack of authority of the
person receiving the election returns. Scmis

While the aforesaid grounds may, indeed, involve a violation of the rules governing the preparation
and delivery of elections returns for canvassing, they do not necessarily affect the authenticity and
genuineness of the subject election returns as to warrant their exclusion from the canvassing. The
grounds for objection to the election returns made by petitioner are clearly defects in form
insufficient to support a conclusion that the election returns were tampered with or spurious. "A
conclusion that an election return is obviously manufactured or false and consequently should be

32
[G.R. No. 135627. December 9, 1999]
ROGELIO G. SIQUIAN, JR., petitioner, vs. COMMISSION ON ELECTIONS and FELICITAS P. ONG,
respondents.
DECISION
YNARES-SANTIAGO, J.:
Petitioner and private respondent were candidates for mayor in Angadanan, Isabela in the May 11,
1998 elections. In the canvassing of votes, petitioner interposed no objections to the inclusion of
election returns from several precincts. It was only on May 16, 1998 that he presented objections to
the inclusion of certain returns on various grounds such as the presence of the Barangay Captain in
the polling areas, that the latter was influencing his constituents to vote for a certain candidate, and
the election returns were accomplished in areas outside of the polling centers. On the same date,
private respondent was proclaimed winner but the same was annulled by the COMELEC (First
Division) in a resolution dated June 15, 1998. The COMELEC also enjoined the proclaimed
candidates from assuming their posts and ordered the Municipal Board of Canvassers to reconvene
and to finish the canvassing.
Canvassers cannot look behind or beyond them to verify allegations of irregularities in the casting
or counting of votes.[5] A party, such as petitioner herein, seeking to raise issues, resolution of
which would compel or necessitate the COMELEC to pierce the veil of election returns which appear
prima facie regular on their face has his proper remedy in a regular election protest.[6] Other than
the general allegations that certain returns were prepared under duress, threats, coercion,
intimidation, petitioner failed to point out specific objections to said returns[7] and likewise
presented no adequate substantiation of his self-described Mob-ruled proclamation made by the
Board of Canvassers. It has been ruled that objections raised before the Board of Canvassers that
certain votes were not freely cast is not a valid ground for a pre-proclamation controversy and is
beyond the competence of the Board.[8]
WHEREFORE, finding no grave abuse of discretion, the petition is DISMISSED.
SO ORDERED.

After proceeding with the canvassing, the Board denied the petition for exclusion of the election
returns in some precincts filed by the petitioner (Nos. 65A, 16A/16A1) and granted the exclusion
sought for with respect to those in other precincts (Nos. 95A, 93-A/93A1, 94-A1, 81A, 58A). Both
parties appealed to the COMELEC (First Division), which affirmed the rulings issued by the Board on
the grant and denial of exclusion of the aforementioned election returns. It also ordered the Board
to continue the canvassing and proclaim the winner. Private respondent filed a motion for
reconsideration with the Commission en banc which on October 6, 1998 ruled that all the election
returns which petitioner initially sought to exclude be included in the canvassing. Thereafter,
private respondent was proclaimed winner on October 12, 1998. In a petition for certiorari before
this Court, petitioner imputes grave abuse of discretion to respondent COMELEC in allowing the
inclusion of the election returns from the precincts which were ordered excluded by the Board of
Canvassers.

The Court finds that the charge of grave abuse of discretion is more apparent than real. Section 20 of
R.A 7166 and Section 36 of COMELEC Resolution 2962 requires that an oral objection to the
inclusion or exclusion of election returns in the canvassing shall be submitted to the Chairman of the
Board of Canvassers at the time the questioned return is presented for inclusion in the canvass. It is
not denied by petitioner that the objections interposed were made after the election returns in
certain precincts were included in the canvass. Such belated objections are fatal to petitioners cause.
Compliance with the period set for objections on exclusion and inclusion of election returns is
mandatory.[1] Otherwise, to allow objections after the canvassing would be to open the floodgates
to schemes designed to delay the proclamation and frustrate the electorates will by some candidates
who feels that the only way to fight for a lost cause is to delay the proclamation of the winner. It
should be noted that proceedings before the Board of Canvassers is summary in nature which is
why the law grants the parties a short period to submit objections and the Board a short period to
rule on matters brought to them.[2] Petitioners plea for a liberal interpretation of technical rules
and allow his untimely objections cannot be granted in this case. Liberal construction of election
laws applies only when it becomes necessary to uphold the peoples voice.[3]

Assuming arguendo that petitioners objections to the inclusion of the subject returns were timely
filed, his contention that the votes in some of the objected precincts were cast under the influence of
the Barangay Captain and that some election returns were prepared under duress, fraud, coercion
has no merit. Even assuming that such were the facts, the same can no longer be considered since
the winners were already proclaimed and there is no sufficient reason or evidence presented that
the Board of Canvassers has made an invalid proclamation.[4] Moreover, it is settled that as long as
the election returns appear to be authentic and duly accomplished on their face, the Board of
33
[G.R. No. 154829. December 10, 2003]
ARSENIO A. LATASA, petitioner, vs. COMMISSION ON ELECTIONS, and ROMEO SUNGA,
respondents.
DECISION
AZCUNA, J.:
This is a petition for certiorari under Rule 65 of the Rules of Court which seeks to challenge the
resolution issued by the First Division of the Commission on Elections (COMELEC) dated April 27,
2001 in SPA Case No. 01-059 entitled, Romeo M. Sunga, petitioner, versus Arsenio A. Latasa,
respondent, and the Resolution of the COMELEC en banc denying herein petitioners Motion for
Reconsideration. The assailed Resolution denied due course to the certificate of candidacy of
petitioner Arsenio A. Latasa, declaring him disqualified to run for mayor of Digos City, Davao del Sur
Province in the May 14, 2001 elections, ordering that all votes cast in his favor shall not be counted,
and if he has been proclaimed winner, declaring said proclamation null and void.
The facts are fairly simple.
Petitioner Arsenio A. Latasa, was elected mayor of the Municipality of Digos, Davao del Sur in the
elections of 1992, 1995, and 1998. During petitioners third term, the Municipality of Digos was
declared a component city, to be known as the City of Digos. A plebiscite conducted on September 8,
2000 ratified Republic Act No. 8798 entitled, An Act Converting the Municipality of Digos, Davao del
Sur Province into a Component City to be known as the City of Digos or the Charter of the City of
Digos. This event also marked the end of petitioners tenure as mayor of the Municipality of Digos.
However, under Section 53, Article IX of the Charter, petitioner was mandated to serve in a hold-
over capacity as mayor of the new City of Digos. Hence, he took his oath as the city mayor.
On February 28, 2001, petitioner filed his certificate of candidacy for city mayor for the May 14,
2001 elections. He stated therein that he is eligible therefor, and likewise disclosed that he had
already served for three consecutive terms as mayor of the Municipality of Digos and is now
running for the first time for the position of city mayor.
On March 1, 2001, private respondent Romeo M. Sunga, also a candidate for city mayor in the said
elections, filed before the COMELEC a Petition to Deny Due Course, Cancel Certificate of Candidacy
and/ or For Disqualification[1] against petitioner Latasa. Respondent Sunga alleged therein that
petitioner falsely represented in his certificate of candidacy that he is eligible to run as mayor of
Digos City since petitioner had already been elected and served for three consecutive terms as
mayor from 1992 to 2001.
On March 5, 2001, petitioner Latasa filed his Answer,[2] arguing that he did not make any false
representation in his certificate of candidacy since he fully disclosed therein that he had served as
mayor of the Municipality of Digos for three consecutive terms. Moreover, he argued that this fact
does not bar him from filing a certificate of candidacy for the May 14, 2001 elections since this will
be the first time that he will be running for the post of city mayor.
Both parties submitted their position papers on March 19, 2001.[3]
On April 27, 2001, respondent COMELECs First Division issued a Resolution, the dispositive portion
of which reads, as follows:
Wherefore, premises considered, the respondents certificate of candidacy should be cancelled for
being a violation of the three (3)-term rule proscribed by the 1987 Constitution and the Local
Government Code of 1991.[4]
Petitioner filed his Motion for Reconsideration dated May 4, 2001,[5] which remained unacted upon
until the day of the elections, May 14, 2001. On May 16, 2001, private respondent Sunga filed an Ex
Parte Motion for Issuance of Temporary Restraining Order Enjoining the City Board of Canvassers
From Canvassing or Tabulating Respondents Votes, and From Proclaiming Him as the Duly Elected
Mayor if He Wins the Elections.[6] Despite this, however, petitioner Latasa was still proclaimed
winner on May 17, 2001, having garnered the most number of votes. Consequently, private
respondent Sunga filed, on May 27, 2001, a Supplemental Motion[7] which essentially sought the
annulment of petitioners proclamation and the suspension of its effects.
On July 1, 2001, petitioner was sworn into and assumed his office as the newly elected mayor of
Digos City. It was only on August 27, 2002 that the COMELEC en banc issued a Resolution denying
petitioners Motion for Reconsideration.
Hence, this petition.
It cannot be denied that the Court has previously held in Mamba-Perez v. COMELEC[8] that after an
elective official has been proclaimed as winner of the elections, the COMELEC has no jurisdiction to
pass upon his qualifications. An opposing partys remedies after proclamation would be to file a
petition for quo warranto within ten days after the proclamation.
On the other hand, certain peculiarities in the present case reveal the fact that its very heart is
something which this Court considers of paramount interest. This Court notes from the very
beginning that petitioner himself was already entertaining some doubt as to whether or not he is
indeed eligible to run for city mayor in the May 14, 2001 elections. In his certificate of candidacy,
after the phrase I am eligible, petitioner inserted a footnote and indicated:
*Having served three (3) term[s] as municipal mayor and now running for the first time as city
mayor.[9]
Time and again, this Court has held that rules of procedure are only tools designed to facilitate the
attainment of justice, such that when rigid application of the rules tend to frustrate rather than
promote substantial justice, this Court is empowered to suspend their operation. We will not
hesitate to set aside technicalities in favor of what is fair and just.[10]
The spirit embodied in a Constitutional provision must not be attenuated by a rigid application of
procedural rules.
The present case raises a novel issue with respect to an explicit Constitutional mandate: whether or
not petitioner Latasa is eligible to run as candidate for the position of mayor of the newly-created
City of Digos immediately after he served for three consecutive terms as mayor of the Municipality
of Digos.
As a rule, in a representative democracy, the people should be allowed freely to choose those who
will govern them. Article X, Section 8 of the Constitution is an exception to this rule, in that it limits
the range of choice of the people.
Section 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the full term for which he was
elected.
An examination of the historical background of the subject Constitutional provision reveals that the
members of the Constitutional Commission were as much concerned with preserving the freedom of
choice of the people as they were with preventing the monopolization of political power. In fact,
they rejected a proposal set forth by Commissioner Edmundo Garcia that after serving three
34
consecutive terms or nine years, there should be no further re-election for local and legislative
officials.[11] The members, instead, adopted the alternative proposal of Commissioner Christian
Monsod that such officials be simply barred from running for the same position in the succeeding
election following the expiration of the third consecutive term:
MR. MONSOD: Madam President, I was reflecting on this issue earlier and I asked to speak because
in this draft Constitution, we are recognizing peoples power. We have said that now there is a new
awareness, a new kind of voter, a new kind of Filipino. And yet at the same time, we are
prescreening candidates among whom they will choose. We are saying that this 48-member
Constitutional Commission has decreed that those who have served for a period of nine years are
barred from running for the same position.
The argument is that there may be other positions. But there are some people who are very skilled
and good at legislation, and yet are not of a national stature to be Senators. They may be perfectly
honest, perfectly competent and with integrity. They get voted into office at the age of 25, which is
the age we provide for Congressmen. And at 34 years old we put them into pasture.
Second, we say that we want to broaden the choices of the people. We are talking here only of
congressional or senatorial seats. We want to broaden the peoples choice but we are making
prejudgment today because we exclude a certain number of people. We are, in effect, putting an
additional qualification for office that the officials must have not have served a total of more than a
number of years in their lifetime.
Third, we are saying that by putting people to pasture, we are creating a reserve of statesmen, but
the future participation of these statesmen is limited. Their skills may be only in some areas, but we
are saying that they are going to be barred from running for the same position.
Madam President, the ability and capacity of a statesman depend as well on the day-to-day honing
of his skills and competence, in intellectual combat, in concern and contact with the people, and
here we are saying that he is going to be barred from the same kind of public service.
I do not think it is in our place today to make such a very important and momentous decision with
respect to many of our countrymen in the future who may have a lot more years ahead of them in
the service of their country.
If we agree that we will make sure that these people do not set up structures that will perpetuate
them, then let us give them this rest period of three years or whatever it is. Maybe during that time,
we would even agree that their fathers or mothers or relatives of the second degree should not run.
But let us not bar them for life after serving the public for number of years.[12]
The framers of the Constitution, by including this exception, wanted to establish some safeguards
against the excessive accumulation of power as a result of consecutive terms. As Commissioner Blas
Ople stated during the deliberations:
x x x I think we want to prevent future situations where, as a result of continuous service and
frequent re-elections, officials from the President down to the municipal mayor tend to develop a
proprietary interest in their positions and to accumulate these powers and perquisites that permit
them to stay on indefinitely or to transfer these posts to members of their families in a subsequent
election. x x x [13]
An elective local official, therefore, is not barred from running again in for same local government
post, unless two conditions concur: 1.) that the official concerned has been elected for three
consecutive terms to the same local government post, and 2.) that he has fully served three
consecutive terms.[14]
In the present case, petitioner states that a city and a municipality have separate and distinct
personalities. Thus they cannot be treated as a single entity and must be accorded different
treatment consistent with specific provisions of the Local Government Code. He does not deny the
fact that he has already served for three consecutive terms as municipal mayor. However, he asserts
that when Digos was converted from a municipality to a city, it attained a different juridical
personality. Therefore, when he filed his certificate of candidacy for city mayor, he cannot be
construed as vying for the same local government post.
For a municipality to be converted into a city, the Local Government Code provides:
SECTION 450. Requisites for Creation. - (a) A municipality or a cluster of barangays may be
converted into a component city it has an average annual income, as certified by the Department of
Finance, of at least Twenty million pesos (20,000,000.00) for the last two (2) consecutive years
based on 1991 constant prices, and if it has either of the following requisites:
(i) a contiguous territory of at least one hundred (100) square kilometers, as certified by the Land
Management Bureau; or,
(ii) a population of not less than one hundred fifty thousand (150,000) inhabitants, as certified by
the National Statistics Office.
Provided, That, the creation thereof shall not reduce the land area, population, and income of the
original unit or units at the time of said creation to less than the minimum requirements prescribed
herein.
(b) The territorial jurisdiction of a newly-created city shall be properly identified by metes and
bounds. The requirement on land are shall not apply where the city proposed to be created is
composed of one (1) or more island. The territory need not be contiguous if it comprises two (2) or
more islands.
(c) The average annual income shall include the income accruing to the general fund, exclusive of
special funds, transfers, and non-recurring income.[15]
Substantial differences do exist between a municipality and a city. For one, there is a material
change in the political and economic rights of the local government unit when it is converted from a
municipality to a city and undoubtedly, these changes affect the people as well.[16] It is precisely for
this reason why Section 10, Article X of the Constitution mandates that no province, city,
municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially
altered, without the approval by a majority of the votes cast in a plebiscite in the political units
directly affected.
As may be gleaned from the Local Government Code, the creation or conversion of a local
government unit is done mainly to help assure its economic viability. Such creation or conversion is
based on verified indicators:
Section 7. Creation and Conversion. --- As a general rule, the creation of a local government unit or
its conversion from one level to another shall be based on verifiable indicators or viability and
projected capacity to provide services, to wit:
(a) Income. --- It must be sufficient, based on acceptable standards, to provide for all essential
government facilities and services and special functions commensurate with the size of its
population, as expected of the local government unit concerned;
(b) Population. --- It shall be determined as the total number of inhabitants within the territorial
jurisdiction of the local government unit concerned; and
35
(c) Land Area. --- It must be contiguous, unless it comprises two (2) or more islands or is separated
by a local government unit independent of the others; properly identified by metes and bounds with
technical descriptions; and sufficient to provide for such basic services and facilities to meet the
requirements of its populace.
Compliance with the foregoing indicators shall be attested to by the Department of Finance (DOF),
the National Statistics Office (NSO), and the Lands Management Bureau (LMB) of the Department of
Environment and Natural Resources (DENR).[17]
On the other hand, Section 2 of the Charter of the City of Digos provides:
Section 2. The City of Digos --- The Municipality of Digos shall be converted into a component city to
be known as the City of Digos, hereinafter referred to as the City, which shall comprise the present
territory of the Municipality of Digos, Davao del Sur Province. The territorial jurisdiction of the City
shall be within the present metes and bounds of the Municipality of Digos. x x x
Moreover, Section 53 of the said Charter further states:
Section 53. Officials of the City of Digos. --- The present elective officials of the Municipality of Digos
shall continue to exercise their powers and functions until such a time that a new election is held
and the duly-elected officials shall have already qualified and assumed their offices. x x x.
As seen in the aforementioned provisions, this Court notes that the delineation of the metes and
bounds of the City of Digos did not change even by an inch the land area previously covered by the
Municipality of Digos. This Court also notes that the elective officials of the Municipality of Digos
continued to exercise their powers and functions until elections were held for the new city officials.
True, the new city acquired a new corporate existence separate and distinct from that of the
municipality. This does not mean, however, that for the purpose of applying the subject
Constitutional provision, the office of the municipal mayor would now be construed as a different
local government post as that of the office of the city mayor. As stated earlier, the territorial
jurisdiction of the City of Digos is the same as that of the municipality. Consequently, the inhabitants
of the municipality are the same as those in the city. These inhabitants are the same group of voters
who elected petitioner Latasa to be their municipal mayor for three consecutive terms. These are
also the same inhabitants over whom he held power and authority as their chief executive for nine
years.
This Court must distinguish the present case from previous cases ruled upon this Court involving
the same Constitutional provision.
In Borja, Jr. v. COMELEC,[18] the issue therein was whether a vice-mayor who became the mayor by
operation of law and who served the remainder of the mayors term should be considered to have
served a term in that office for the purpose of the three-term limit under the Constitution. Private
respondent in that case was first elected as vice-mayor, but upon the death of the incumbent mayor,
he occupied the latters post for the unexpired term. He was, thereafter, elected for two more terms.
This Court therein held that when private respondent occupied the post of the mayor upon the
incumbents death and served for the remainder of the term, he cannot be construed as having
served a full term as contemplated under the subject constitutional provision. The term served must
be one for which [the official concerned] was elected.
It must also be noted that in Borja, the private respondent therein, before he assumed the position
of mayor, first served as the vice-mayor of his local government unit. The nature of the
responsibilities and duties of the vice-mayor is wholly different from that of the mayor. The vice-
mayor does not hold office as chief executive over his local government unit. In the present case,
petitioner, upon ratification of the law converting the municipality to a city, continued to hold office
as chief executive of the same territorial jurisdiction. There were changes in the political and
economic rights of Digos as local government unit, but no substantial change occurred as to
petitioners authority as chief executive over the inhabitants of Digos.
In Lonzanida v. COMELEC,[19] petitioner was elected and served two consecutive terms as mayor
from 1988 to 1995. He then ran again for the same position in the May 1995 elections, won and
discharged his duties as mayor. However, his opponent contested his proclamation and filed an
election protest before the Regional Trial Court, which ruled that there was a failure of elections and
declared the position of mayor vacant. The COMELEC affirmed this ruling and petitioner acceded to
the order to vacate the post. During the May 1998 elections, petitioner therein again filed his
certificate of candidacy for mayor. A petition to disqualify him was filed on the ground that he had
already served three consecutive terms. This Court ruled, however, that petitioner therein cannot be
considered as having been duly elected to the post in the May 1995 elections, and that said
petitioner did not fully serve the 1995-1998 mayoral term by reason of involuntary relinquishment
of office.
In the present case, petitioner Latasa was, without a doubt, duly elected as mayor in the May 1998
elections. Can he then be construed as having involuntarily relinquished his office by reason of the
conversion of Digos from municipality to city? This Court believes that he did involuntarily
relinquish his office as municipal mayor since the said office has been deemed abolished due to the
conversion. However, the very instant he vacated his office as municipal mayor, he also assumed
office as city mayor. Unlike in Lonzanida, where petitioner therein, for even just a short period of
time, stepped down from office, petitioner Latasa never ceased from acting as chief executive of the
local government unit. He never ceased from discharging his duties and responsibilities as chief
executive of Digos.
In Adormeo v. COMELEC,[20] this Court was confronted with the issue of whether or not an
assumption to office through a recall election should be considered as one term in applying the
three-term limit rule. Private respondent, in that case, was elected and served for two consecutive
terms as mayor. He then ran for his third term in the May 1998 elections, but lost to his opponent. In
June 1998, his opponent faced recall proceedings and in the recall elections of May 2000, private
respondent won and served for the unexpired term. For the May 2001 elections, private respondent
filed his certificate of candidacy for the office of mayor. This was questioned on the ground that he
had already served as mayor for three consecutive terms. This Court held therein that private
respondent cannot be construed as having been elected and served for three consecutive terms. His
loss in the May 1998 elections was considered by this Court as an interruption in the continuity of
his service as mayor. For nearly two years, private respondent therein lived as a private citizen. The
same, however, cannot be said of petitioner Latasa in the present case.
Finally, in Socrates v. COMELEC,[21] the principal issue was whether or not private respondent
Edward M. Hagedorn was qualified to run during the recall elections. Therein respondent Hagedorn
had already served for three consecutive terms as mayor from 1992 until 2001 and did not run in
the immediately following regular elections. On July 2, 2002, the barangay officials of Puerto
Princesa convened themselves into a Preparatory Recall Assembly to initiate the recall of the
incumbent mayor, Victorino Dennis M. Socrates. On August 23, 2002, respondent Hagedorn filed his
certificate of candidacy for mayor in the recall election. A petition for his disqualification was filed
on the ground that he cannot run for the said post during the recall elections for he was disqualified
from running for a fourth consecutive term. This Court, however, ruled in favor of respondent
Hagedorn, holding that the principle behind the three-term limit rule is to prevent consecutiveness
of the service of terms, and that there was in his case a break in such consecutiveness after the end
of his third term and before the recall election.
It is evident that in the abovementioned cases, there exists a rest period or a break in the service of
the local elective official. In Lonzanida, petitioner therein was a private citizen a few months before
the next mayoral elections. Similarly, in Adormeo and Socrates, the private respondents therein
lived as private citizens for two years and fifteen months respectively. Indeed, the law contemplates
a rest period during which the local elective official steps down from office and ceases to exercise
36
power or authority over the inhabitants of the territorial jurisdiction of a particular local
government unit.

This Court reiterates that the framers of the Constitution specifically included an exception to the
peoples freedom to choose those who will govern them in order to avoid the evil of a single person
accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged
stay in the same office. To allow petitioner Latasa to vie for the position of city mayor after having
served for three consecutive terms as a municipal mayor would obviously defeat the very intent of
the framers when they wrote this exception. Should he be allowed another three consecutive terms
as mayor of the City of Digos, petitioner would then be possibly holding office as chief executive
over the same territorial jurisdiction and inhabitants for a total of eighteen consecutive years. This
is the very scenario sought to be avoided by the Constitution, if not abhorred by it.

Finally, respondent Sunga claims that applying the principle in Labo v. COMELEC,[22] he should be
deemed the mayoralty candidate with the highest number of votes. On the contrary, this Court held
in Labo that the disqualification of a winning candidate does not necessarily entitle the candidate
with the highest number of votes to proclamation as the winner of the elections. As an obiter, the
Court merely mentioned that the rule would have been different if the electorate, fully aware in fact
and in law of a candidates disqualification so as to bring such awareness within the realm of
notoriety, would nonetheless cast their votes in favor of the ineligible candidate. In such case, the
electorate may be said to have waived the validity and efficacy of their votes by notoriously
misapplying their franchise or throwing away their votes, in which case, the eligible candidate
obtaining the next higher number of votes may be deemed elected. The same, however, cannot be
said of the present case.

This Court has consistently ruled that the fact that a plurality or a majority of the votes are cast for
an ineligible candidate at a popular election, or that a candidate is later declared to be disqualified
to hold office, does not entitle the candidate who garnered the second highest number of votes to be
declared elected. The same merely results in making the winning candidates election a nullity.[23]
In the present case, moreover, 13,650 votes were cast for private respondent Sunga as against the
25,335 votes cast for petitioner Latasa.[24] The second placer is obviously not the choice of the
people in that particular election. In any event, a permanent vacancy in the contested office is
thereby created which should be filled by succession.[25]

WHEREFORE, the petition is DISMISSED. No pronouncement as to costs.

SO ORDERED.

37
G.R. No. L-25444 January 31, 1966
WENCESLAO RANCAP LAGUMBAY, petitioner,
vs.
THE COMMISSION ON ELECTIONS and CESAR CLIMACO, respondents.
Wenceslao R. Lagumbay for the petitioner.
Ambrosio Padilla for the respondents.
BENGZON, C.J.:
This petition prays for revision of an order of the Commission on Elections declining to reject the
returns of certain precincts of some municipalities in Mindanao. The Constitution provides for
review by this Court of the rulings of the said Commission.
The matter being urgent, and having reached the conclusion that the returns of certain questioned
precincts were "obviously manufactured" within the meaning of pertinent jurisprudence,
particularly Mitchell v. Stevens,1 we issued on December 24, 1965, a short resolution upholding the
Commission's power and duty to reject the returns of about fifty precincts.
It appearing therein that — contrary to all statistical probabilities — in the first set, in each precinct
the number of registered voters equalled the number of ballots and the number of votes reportedly
cast and tallied for each and every candidate of the Liberal Party, the party in power; whereas, all
the candidates of the Nacionalista Party got exactly zero; and in the second set, — again contrary to
all statistical probabilities — all the reported votes were for candidates of the Liberal Party, all of
whom were credited with exactly the same number of votes in each precinct, ranging from 240 in
one precinct to 650 in another precinct; whereas, all the candidates of the Nacionalista Party were
given exactly zero in all said precincts.
We opined that the election result to said precincts as reported, was utterly improbable and clearly
incredible. For it is not likely, in the ordinary course of things, that all the electors of one precinct
would, as one man, vote for all the eight candidates of the Liberal Party, without giving a single vote
to one of the eight candidates of the Nacionalista Party. Such extraordinary coincidence was quite
impossible to believe, knowing that the Nacionalista Party had and has a nationwide organization,
with branches in every province, and was, in previous years, the party in power in these islands.
We also know from our experience in examining ballots in the three Electoral Tribunals
(Presidential, Senate, and House) that a large portion of the electors do not fill all the blanks for
senators in their ballots. Indeed, this observation is confirmed by the big differences in the votes
received by the eight winning senators in this as well as in previous national elections;2 almost a
million votes between the first place and the eight. Furthermore, in 1965, the total number of
electors who cast their votes was 6,833,369 (more or less). If every voter had written eight names
on his ballot, the total number of votes cast for all the candidates would be that number multiplied
by 8, namely 54,666,952. But the total number of the votes tallied for the candidates for senator
amounted to 49,374,942 only. The difference between the two sums represents the number of
ballots that did not contain eight names for senators. In other words, some 5 million ballots did not
carry eight names. Of course, this is a rough estimate, because some ballots may have omitted more
names, in which case, the number of incomplete ballots would be less. But the general idea and the
statistical premise is there.
The same statistical result is deducible from the 1963 election data: total number of electors who
voted, 7,712,019; if each of them named eight senators, the total votes tallied should have been
61,696,152; and yet the total number tallied for all the senatorial candidates was 45,812,470 only. A
greater number of incomplete ballots.
It must be noted that this is not an instance wherein one return gives to one candidate all the votes
in the precinct, even as it gives exactly zero to the other. This is not a case where some senatorial
candidates obtain zero exactly, while some others receive a few scattered votes. Here, all the eight
candidates of one party garnered all the votes, each of them receiving exactly the same number,
whereas all the eight candidates of the other party got precisely nothing.
The main point to remember is that there is no block-voting nowadays.
What happened to the vote of the Nacionalista inspector? There was one in every precinct.
Evidently, either he became a traitor to his party, or was made to sign a false return by force or
other illegal means. If he signed voluntarily, but in breach of faith, the Nacionalista inspector
betrayed his party; and, any voting or counting of ballots therein, was a sham and a mockery of the
national suffrage.
Hence, denying prima facie recognition to such returns on the ground that they are manifestly
fabricated or falsified, would constitute a practical approach to the Commission's mission to insure
free and honest elections.
In Mitchell vs. Stevens, supra, the returns showed a noticeable excess of votes over the number of
registered voters, and the court rejected the returns as obviously "manufactured". Why? The excess
could have been due to the fact that, disregarding all pertinent data, the election officers wrote the
number of votes their fancy dictated; and so the return was literally a "manufactured", "fabricated"
return. Or maybe because persons other than voters, were permitted to take part and vote; or
because registered voters cast more than one ballot each, or because those in charge of the tally
sheet falsified their counts. Hence, as the Mitchell decision concluded, the returns were "not true
returns . . . but simply manufactured evidences of an attempt to defeat the popular will." All these
possibilities and/or probabilities were plain fraudulent practices, resulting in misrepresentation of
the election outcome. "Manufactured" was the word used. "Fabricated" or "false" could as well have
been employed.
The same ratio decidendi applies to the situation in the precincts herein mentioned. These returns
were obviously false or fabricated — prima facie. Let us take for example, precinct No. 3 of Andong,
Lanao del Sur. There were 648 registered voters. According to such return all the eight candidates of
the Liberal Party got 648 each,3 and the eight Nacionalista candidates got exactly zero. We hold
such return to be evidently fraudulent or false because of the inherent improbability of such a result
— against statistical probabilities — specially because at least one vote should have been received
by the Nacionalista candidates, i.e., the vote of the Nacionalista inspector. It is, of course, "possible"
that such inspector did not like his party's senatorial line-up; but it is not probable that he disliked
all of such candidates, and it is not likely that he favored all the eight candidates of the Liberal Party.
Therefore, most probably, he was made to sign an obviously false return, or else he betrayed his
party, in which case, the election therein — if any — was no more than a barefaced fraud and a
brazen contempt of the popular polls.
Of course we agree that frauds in the holding of the election should be handled — and finally settled
— by the corresponding courts or electoral tribunals. That is the general rule, where testimonial or
documentary evidence, is necessary; but where the fraud is so palpable from the return itself (res
ipsa loquitur — the thing speaks for itself), there is no reason to accept it and give it prima facie
value.
At any rate, fraud or no fraud, the verdict in these fifty precincts may ultimately be ascertained
before the Senate Electoral Tribunal.4 All we hold now, is that the returns show "prima facie" that
they do not reflect true and valid reports of regular voting. The contrary may be shown by candidate
Climaco — in the corresponding election protest.
The well-known delay in the adjudication of election protests often gave the successful contestant a
mere pyrrhic victory, i.e., a vindication when the term of office is about to expire, or has expired.
38
And so the notion has spread among candidates for public office that the "important thing" is the
proclamation; and to win it, they or their partisans have tolerated or abetted the tampering or the
"manufacture" of election returns just to get the proclamation, and then let the victimized candidate
to file the protest, and spend his money to work for an empty triumph.

It is generally admitted that the practice has prevailed in all previous elections. Never was the point
pressed upon us in a more clear-cut manner. And without, in any way, modifying our stand as
outlined in the Nacionalista Party vs. Commission decision, we feel the mores of the day require
application — even extension — of the principle in the Mitchell decision, which is realistic and
common sensical even as it strikes a blow at such pernicious "grab - the - proclamation - prolong -
the - protest" slogan of some candidates or parties.

It is strongly urged that the results reported in these returns are quite "possible", bearing in mind
the religious or political control of some leaders in the localities affected. We say, possible, not
probable. It is possible to win the sweepstakes ten times; but not probable. Anyway, judges are not
disposed to believe that such "control" has proved so powerful as to convert the electors into mere
sheep or robots voting as ordered. Their reason and conscience refuse to believe that 100% of the
voters in such precincts abjectly yet lawfully surrendered their precious freedom to choose the
senators of this Republic.

Indeed, social scientists might wonder whether courts could, consistently with morality and public
policy,5 render judgment acknowledging such "control" or validating such "controlled votes" as
candidate Climaco chose to call them.

In view of the foregoing, and overlooking some intemperate language which detracts from the force
of the arguments, we hereby deny the motion to reconsider our resolution of December 24, 1965, as
well as the petition for a re-hearing.

39
G.R. No. 178413 March 13, 2008
AQUILINO L. PIMENTEL III, petitioner,
vs.
THE COMMISSION ON ELECTIONS EN BANC SITTING AS THE NATIONAL BOARD OF
CANVASSERS, THE SPECIAL PROVINCIAL BOARD OF CANVASSERS FOR MAGUINDANAO
CHAIRED BY ATTY. EMILIO S. SANTOS, and JUAN MIGUEL F. ZUBIRI, respondents.
DECISION
CHICO-NAZARIO, J.:
On 4 July 2007, petitioner Aquilino L. Pimentel III (Pimentel) filed the present Petition for Certiorari
and Mandamus (with Urgent Prayer for Temporary Restraining Order and/or Status Quo Ante
Order).1
The Petition stemmed from the 14 May 2007 national elections for 12 senatorial posts. At the time
of filing of the Petition, around two months after the said elections, the 11 candidates with the
highest number of votes had already been officially proclaimed and had taken their oaths of office as
Senators. With other candidates conceding, the only remaining contenders for the twelfth and final
senatorial post were Pimentel and private respondent Juan Miguel F. Zubiri (Zubiri). Public
respondent Commission on Elections (COMELEC) en banc, acting as the National Board of
Canvassers (NBC), continued to conduct canvass proceedings so as to determine the twelfth and last
Senator-elect in the 14 May 2007 elections.
Pimentel assailed the proceedings before the NBC and its constituted Special Provincial Board of
Canvassers for Maguindanao (SPBOC-Maguindanao) in which the Provincial and Municipal
Certificates of Canvass (PCOC and MCOCs) from the province of Maguindanao were respectively
canvassed.
The SPBOC-Maguindanao was created because the canvass proceedings held before the original
Provincial Board of Canvassers for Maguindanao (PBOC-Maguindanao), chaired by Provincial
Election Supervisor (PES) Lintang Bedol, were marred by irregularities, and the PCOC (Bedol PCOC)
and other electoral documents submitted by the said PBOC-Maguindanao were tainted with fraud
and statistical improbabilities. Hence, the Bedol PCOC was excluded from the national canvass then
being conducted by the NBC.
Task Force Maguindanao, headed by COMELEC Chairman Benjamin S. Abalos, Sr. and Commissioner
Nicodemo T. Ferrer, retrieved and collected 21 MCOCs from the municipalities of Maguindanao,
mostly copy 2, or the copy intended to be posted on the wall. The SPBOC-Maguindanao was then
tasked to re-canvass the MCOCs submitted by Task Force Maguindanao. The re-canvassing of the
Maguindanao MCOCs was conducted by the SPBOC-Maguindanao from 25 to 26 June 2007 at Shariff
Aguak, Maguindanao. Although PES Bedol and the Chairpersons of the Municipal Boards of
Canvassers of Maguindanao (MBOCs-Maguindanao) were present during the canvass proceedings
before the SPBOC-Maguindanao, the candidates’ legal counsels were not allowed to ask them any
questions. Due to the consistent denial by the SPBOC-Maguindanao of the repeated and persistent
motions made by Pimentel’s counsel to propound questions to PES Bedol and the Chairpersons of
the MBOCs-Maguindanao regarding the due execution and authenticity of the Maguindanao MCOCs,
Pimentel’s counsel manifested her continuing objection to the canvassing of the said MCOCs. In
particular, Pimentel’s counsel objected to the Maguindanao MCOCs because:
a) the proceedings were illegal;
b) the MCOCs were palpably manufactured;
c) the results reflected in the MCOCs were statistically improbable;
d) there is no basis for saying the MCOCs were authentic because there were no other available
copies for comparison purposes;
e) in most of the MCOCs[,] no watcher signed;
f) there was no evidence or indication that the copy 2 MCOCs had been posted as intended by law;
g) the serial numbers of the MCOCs are not clearly stamped;
h) copy 2 of the MCOCs cannot be used for canvass;
i) that the MCOCs are therefore, improper, unworthy and unfit for canvass;
j) that the manner the "re-canvassing" which was being done where the parties are not allowed to
ask questions was patently illegal; and
k) that it has not been established that the other copies of the MCOCs have been lost.2
All of the foregoing observations, manifestations, and objections made by Pimentel’s counsel, as well
as those made by the other candidates’ counsels, were simply noted by the SPBOC-Maguindanao
without specific action thereon.
On 29 June 2007, the SPBOC-Maguindanao submitted to the NBC the second PCOC for Maguindanao.
In the proceedings before the NBC, Pimentel’s counsel reiterated her request to propound questions
to PES Bedol and the Chairpersons of the MBOCs-Maguindanao and the SPBOC-Maguindanao. The
NBC, however, refused to grant her request. Pimentel’s counsel thereafter moved for the exclusion
of the second Maguindanao PCOC from the canvass, maintaining that the said PCOC did not reflect
the true results of the elections because it was based on the manufactured Maguindanao MCOCs, the
authenticity and due execution of which had not been duly established. The motion to exclude made
by Pimentel’s counsel was once again denied by the NBC, and she was ordered to sit down or she
would be forcibly evicted from the session hall. The second Maguindanao PCOC was thus included in
the canvass proceedings conducted by the NBC and, resultantly, Pimentel’s lead over Zubiri was
significantly reduced from 133,000 votes to only 4,000 votes.
Pimentel averred that said canvass proceedings were conducted by the NBC and SPBOC-
Maguindanao in violation of his constitutional rights to substantive and procedural due process and
equal protection of the laws, and in obvious partiality to Zubiri. Pimentel thus filed the Petition at
bar on 4 July 2007, anchored on the following grounds:
I. The petitioner [Pimentel] was denied his right to due process of law when the respondent SPBOC
and the respondent NBC adopted an unconstitutional procedure which disallowed the petitioner
[Pimentel] the opportunity to raise questions on the COCs subject of the canvass.
II. The petitioner [Pimentel] was denied his right to equal protection of the law when the
respondent SPBOC and the respondent NBC unconstitutionally adopted a procedure of "no
questions" in the canvass of COCs from Maguindanao, different from the procedure adopted in the
canvass of COCs from other provinces/areas.
III. The respondent NBC acted with manifest grave abuse of discretion when it refused to exercise its
broad, plenary powers in fully or accurately ascertaining due execution, authenticity and fitness for
the canvass of the MCOCs collected by the Comelec in the exercise of such broad plenary powers. It
violated its own rules when it deprived petitioner [Pimentel] of the right to ventilate and prove his
objections to the Maguindanao COCs.3
Pimentel seeks from this Court the following remedies:
40

1. Forthwith ISSUE A TEMPORARY RESTRAINING ORDER enjoining the respondent Commission on
Elections en banc sitting as the National Board of Canvassers for Senators for the May 14, 2007
elections ("NBC") from proceeding with any proclamation (of the twelfth and last winner of the May
14, 2007 Elections for Senators) based on the on-going senatorial canvass which includes the
new/second Provincial Certificate of Canvass of Maguindanao, until further orders from this Court,
or, in the alternative, in the event that the proclamation of Respondent Zubiri is made before the
application for a TRO is acted upon, ISSUE A STATUS QUO ANTE ORDER requiring the parties to
observe the status quo at the time of the filing of the Petition, in order to maintain and preserve the
situation of the parties at the time of the filing of this Petition, so as not to render the issues raised in
this Petition moot and academic;
2. After proper proceedings, RENDER JUDGMENT: (a) ANNULLING AND SETTING ASIDE for being
unconstitutional and illegal the proceedings and acts of respondent Commission on Elections en
banc sitting as the National Board of Canvassers for Senators for the May 14, 2007 elections ("NBC")
of including, on June 29, 2007, in the national canvass of votes for Senators the results from the
Province of Maguindanao as reflected in its new/second Provincial Certificate of Canvass as well as
the proceedings and acts of the respondent Special Provincial Board of Canvassers for Maguindanao
("SPBOC") in canvassing or "re-canvassing" the collected MCOCs, on June 25, 26 and 27, 2007,
leading to the preparation of the new/second PCOC for Maguindanao, and (b) COMPELLING or
ORDERING respondent NBC and its deputy, the SPBOC, to perform their ministerial constitutional
duty of fully determining the due execution and authenticity of the MCOCs, including, but not limited
to, allowing petitioner [Pimentel] to substantiate his claim of manufactured results and propound
questions to the officers concerned, primarily, the Chairpersons of the former PBOC and SPBOC of
Maguindanao and the Chairpersons of the Municipal Boards of Canvassers of Maguindanao.
Petitioner [Pimentel] also prays for other reliefs, just and equitable, under the premises.4
Pursuant to the Resolution5 dated 10 July 2007 issued by this Court, Zubiri filed his Comment6 on
the Petition at bar on 12 July 2007; while the NBC and SPBOC-Maguindano, chaired by Atty. Emilio
S. Santos, filed their joint Comment7 on even date. The respondents Zubiri, NBC, and SPBOC-
Maguindanao collectively sought the denial of Pimentel’s application for Temporary Restraining
Order (TRO) and/or Status Quo Ante Order and the dismissal of the instant Petition.
Pimentel’s prayer for the issuance of a TRO and/or Status Quo Ante Order was set for oral
arguments on 13 July 2007. After hearing the parties’ oral arguments, the Court voted seven for the
grant and seven for the denial of Pimentel’s prayer for the issuance of a TRO and/or Status Quo Ante
Order; thus, said prayer was deemed denied for failure to garner the required majority vote. The
parties were then directed to submit their respective Memoranda, after which, the case would be
deemed submitted for resolution.8 All the parties complied, with Zubiri submitting his
Memorandum9 on 31 July 2007; Pimentel,10 on 1 August 2007; and the NBC and SPBOC-
Maguindanao,11 on 10 August 2007.
In the meantime, without any TRO and/or Status Quo Ante Order from the Court, the canvass
proceedings before the NBC continued, and by 14 July 2007, Zubiri (with 11,004,099 votes) and
Pimentel (with 10,984,807 votes) were respectively ranked as the twelfth and thirteenth Senatorial
candidates with the highest number of votes in the 14 May 2007 elections. Since the NBC found that
the remaining uncanvassed certificates of canvass would no longer materially affect Zubiri’s lead of
19,292 votes over Pimentel, it issued Resolution No. NBC 07-67,12 dated 14 July 2007, proclaiming
Zubiri as the twelfth duly elected Senator of the Philippines in the 14 May 2007 elections, to serve
for a term of six years beginning 30 June 2007 in accordance with the provisions of the Constitution.
On 19 July 2007, Zubiri filed with this Court a Manifestation with Motion to Dismiss.13 Zubiri sought
the dismissal of the Petition at bar arguing that, in consideration of his proclamation pursuant to
Resolution No. NBC 07-67 and his formal assumption of office on 16 July 2007, controversies
involving his election and qualification as a Senator are now within the exclusive jurisdiction of the
Senate Electoral Tribunal (SET).
Zubiri further informed the Court through a Manifestation,14 dated 16 August 2007, that Pimentel
filed an Election Protest (Ex Abudante Ad Cautelam) before the SET on 30 July 2007, docketed as
SET Case No. 001-07, to which Zubiri filed his Answer Ad Cautelam (With Special Affirmative
Defenses, Counter-Protest and Petition for a Preliminary Hearing on the Affirmative Defenses) on 13
August 2007. In his election protest, Pimentel prays, among other remedies, for the annulment of
Zubiri’s proclamation as the twelfth winning Senator in the 14 May 2007 elections. Zubiri called the
attention of the Court to the "glaring reality" that with G.R. No. 178413 before this Court and SET
Case No. 001-07 before the SET, "there are now two cases involving the same parties with
practically the same issues and similar remedies sought filed before the two (2) separate
courts/tribunals." Zubiri also pointed out Pimentel’s ostensible failure to inform this Court of his
institution of SET Case No. 001-07 and the subsequent developments therein.
On 23 August 2007, Pimentel filed before this Court his Comment/Opposition (to Private
Respondent’s Manifestation with Motion to Dismiss).15 Pimentel alleged that Zubiri’s Motion to
Dismiss solely relied on Aggabao v. Commission on Elections.16 However, Pimentel argued that
Aggabao cannot be applied to the instant Petition because of the difference in the factual
backgrounds of the two cases. In Aggabao, therein petitioner Aggabao filed his Petition before this
Court after the proclamation of therein private respondent Miranda as Congressman for the Fourth
District of Isabela; while in the present case, Pimentel already filed his Petition before this Court
prior to the proclamation of Zubiri as Senator. Moreover, Pimentel asserted that his Petition
questioned not Zubiri’s proclamation, but the conduct of the canvass proceedings before the NBC
and SPBOC-Maguindanao. He maintained that his case was one of first impression and no existing
jurisprudence could be used as precedent for its summary dismissal. Pimentel then reiterated his
arguments in his Memorandum that Sections 37 and 38 of Republic Act No. 9369,17 amending
Sections 30 and 15 of Republic Act No. 7166,18 respectively, significantly affected and changed the
nature of canvass proceedings, the nature of the duty of canvassing boards, and the extent of
allowable pre-proclamation controversies in Senatorial elections. Based on the foregoing, Pimentel
prayed for the denial of Zubiri’s Motion to Dismiss.
After a close scrutiny of the allegations, arguments, and evidence presented by all the parties before
this Court, this Court rules to dismiss the present Petition.
Pre-proclamation controversy/case
A pre-proclamation controversy has been defined by Batas Pambansa Blg. 881, otherwise known as
the Omnibus Election Code of the Philippines, as follows:
SEC. 241. Definition. – A pre-proclamation controversy is any question pertaining to or affecting the
proceeding of the board of canvassers which may be raised by any candidate or by any registered
political party or coalition of political parties before the board or directly with the Commission, or
any matter raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission,
receipt, custody and appearance of the election returns.
Under Republic Act No. 7166, providing for synchronized national and local elections, pre-
proclamation controversies refer to matters relating to the preparation, transmission, receipt,
custody and appearance of election returns and certificates of canvass.19
Essentially reiterating Section 243 of the Omnibus Election Code, but adding the reference to the
certificates of canvass, COMELEC Resolution No. 7859, dated 17 April 2007, identified the issues
that may be subject of a pre-proclamation controversy, to wit:
SEC. 37. Issues that may be raised in pre-proclamation controversy. – The following shall be proper
issues that may be raised in a pre-proclamation controversy:
41
1) Illegal composition or proceedings of the Board of Canvassers;
2) The canvassed election returns/certificates of canvass are incomplete, contain material defects,
appear to be tampered with or falsified, or contain discrepancies in the same returns/certificates or
in the other authentic copies thereof as mentioned in Sections 233, 234, 235 and 236 of the
Omnibus Election Code;
3) The election returns/certificates of canvass were prepared under duress, threats, coercion, or
intimidation, or they are obviously manufactured or not authentic; and
4) When substitute or fraudulent election return/certificates of canvass were canvassed, the results
of which materially affected the standing of the aggrieved candidate or candidates.
Pre-proclamation cases to resolve pre-proclamation controversies are allowed in local elections.
According to Section 16 of Republic Act No. 7166:
SEC. 16. Pre-proclamation Cases Involving Provincial, City and Municipal Offices. – Pre-proclamation
cases involving provincial, city and municipal officer shall be allowed and shall be governed by
Sections 17, 18, 19, 20, 21 and 22 hereof.
All pre-proclamation cases pending before the Commission shall be deemed terminated at the
beginning of the term of the office involved and the rulings of the boards of canvassers concerned
shall be deemed affirmed, without prejudice to the filing of a regular election protest by the
aggrieved party. However, proceedings may continue when on the basis of the evidence thus far
presented, the Commission determines that the petition appears meritorious and accordingly issues
an order for the proceeding to continue or when an appropriate order has been issued by the
Supreme Court in a petition for certiorari.
SEC. 17. Pre-proclamation Controversies: How Commenced. – Questions affecting the composition
or proceedings of the board of canvassers may be initiated in the board or directly with the
Commission. However, matters raised under Sections 233, 234, 235 and 236 of the Omnibus
Election Code in relation to the preparation, transmission, receipt, custody and appreciation of the
election returns, and the certificates of canvass shall be brought in the first instance before the
board of canvassers only.
However, as to elections for President, Vice-President, Senators, and Members of the House of
Representatives, pre-proclamation cases are prohibited. Section 15 of Republic Act No. 7166, prior
to its amendment, read:
SEC. 15. Pre-proclamation Cases Not Allowed in Elections for President, Vice-President, Senator, and
Member of the House of Representatives. – For purposes of the elections for President, Vice-
President, Senator, and Member of the House of Representatives, no pre-proclamation cases shall be
allowed on matters relating to the preparation, transmission, receipt, custody and appreciation of
the election returns or the certificates of canvass, as the case may be. However, this does not
preclude the authority of the appropriate canvassing body motu propio or upon written complaint
of an interested person to correct manifest errors in the certificate of canvass or election returns
before it.
Questions affecting the composition or proceedings of the board of canvassers may be initiated in
the board or directly with the Commission in accordance with Section 19 hereof.
Any objection on the election returns before the city or municipal board of canvassers, or on the
municipal certificates of canvass before the provincial board of canvassers or district boards of
canvassers in Metro Manila Area, shall be specifically noted in the minutes of their respective
proceedings.
As Section 15 of Republic Act No. 7166 was then worded, it would appear that any pre-proclamation
case relating to the preparation, transmission, receipt, custody and appreciation of election returns
or certificates of canvass, was prohibited in elections for President, Vice-President, Senators and
Members of the House of Representatives. The prohibition aims to avoid delay in the proclamation
of the winner in the election, which delay might result in a vacuum in these sensitive posts.
Proceedings which may delay the proclamation of the winning candidate beyond the date20 set for
the beginning of his term of office must be avoided, considering that the effect of said delay is, in the
case of national offices for which there is no hold over, to leave the office without any incumbent.21
The law, nonetheless, recognizes an exception and allows the canvassing body motu proprio or an
interested person to file a written complaint for the correction of manifest errors in the election
returns or certificates of canvass even in elections for President, Vice-President, Senators and
Members of the House of Representatives, for the simple reason that the correction of manifest
error will not prolong the process of canvassing nor delay the proclamation of the winner in the
election.22 To be manifest, the errors must appear on the face of the certificates of canvass or
election returns sought to be corrected and/or objections thereto must have been made before the
board of canvassers and specifically noted in the minutes of their respective proceedings.23 The law
likewise permits pre-proclamation cases in elections for President, Vice-President, Senators and
Members of the House of Representatives, when these cases question the composition or
proceedings of the board of canvassers before the board itself or the COMELEC, since such cases do
not directly relate to the certificate of canvass or election returns.
Section 15 of Republic Act No. 7166, after the amendment introduced by Republic Act No. 9369,
now reads:
SEC. 15. Pre-proclamation Cases in Elections for President, Vice-President, Senator, and Member of
the House of Representatives. – For purposes of the elections for president, vice-president, senator,
and member of the House of Representatives, no pre-proclamation cases shall be allowed on
matters relating to the preparation, transmission, receipt, custody and appreciation of election
returns or the certificates of canvass, as the case may be, except as provided for in Section 30 hereof.
However, this does not preclude the authority of the appropriate canvassing body motu propio or
upon written complaint of an interested person to correct manifest errors in the certificate of
canvass or election returns before it.
Questions affecting the composition or proceedings of the board of canvassers may be initiated in
the board or directly with the Commission in accordance with Section 19 hereof.
Any objection on the election returns before the city or municipal board of canvassers, or on the
municipal certificates of canvass before the provincial board of canvassers or district board of
canvassers in Metro Manila Area, shall be specifically noticed in the minutes of their respective
proceedings. (Emphasis supplied.)
Republic Act No. 9369 significantly amended Section 15 of Republic Act No. 7166 by adding an
excepting phrase to the general prohibition against pre-proclamation controversies in elections for
President, Vice-President, Senators and Members of the House of Representatives. According to the
amended Section 15, no pre-proclamation cases on matters relating to the preparation,
transmission, receipt, custody and appreciation of election returns or the certificates of canvass
shall be allowed in elections for President, Vice-President, Senators and Members of the House of
Representatives, except as provided by Section 30 of the same statute.
Section 30 of Republic Act No. 7166, which was likewise amended by Republic Act No. 9369,
provides:
SEC. 30. Congress as the National Board of Canvassers for the Election of President and Vice
President: The Commission en banc as the National Board of Canvassers for the election of senators:
42
Determination of Authenticity and Due Execution of Certificates of Canvass. – Congress and the
Commission en banc shall determine the authenticity and due execution of the certificate of canvass
for president and vice-president and senators, respectively, as accomplished and transmitted to it
by the local board of canvassers, on a showing that: (1) each certificate of canvass was executed,
signed and thumbmarked by the chairman and members of the board of canvassers and transmitted
or caused to be transmitted to Congress by them; (2) each certificate of canvass contains the names
of all of the candidates for president and vice-president or senator, as the case may be, and their
corresponding votes in words and figures; (3) there exists no discrepancy in other authentic copies
of the certificates of canvass or in any of its supporting documents such as statement of votes by
city/municipality/by precinct or discrepancy in the votes of any candidate in words and figures in
the certificate; and (4) there exists no discrepancy in the votes of any candidate in words and figures
in the certificate of canvass against the aggregate number of votes appearing in the election returns
of precincts covered by the certificate of canvass: Provided, That certified print copies of election
returns or certificates of canvass may be used for the purpose of verifying the existence of the
discrepancy.
When the certificate of canvass, duly certified by the board of canvassers of each province, city or
district, appears to be incomplete the Senate President or the Chairman of the Commission, as the
case may be shall require the board of canvassers concerned to transmit by personal delivery the
election returns from polling places that were not included in the certificate of canvass and
supporting statements. Said election returns shall be submitted by personal delivery within two (2)
days from receipt of notice.
When it appears that any certificate of canvass or supporting statement of votes by
city/municipality or by precinct bears erasures or alterations which may cast doubt as to the
veracity of the number of votes stated herein and may affect the result of the election, upon request
of the presidential, vice-presidential or senatorial candidate concerned or his party, Congress or the
Commission en banc, as the case may be, shall, for the sole purpose of verifying the actual number of
votes cast for President and Vice-President or senator, count the votes as they appear in the copies
of the election returns submitted to it.
In case of any discrepancy, incompleteness, erasure or alteration as mentioned above, the
procedure on pre-proclamation controversies shall be adopted and applied as provided in Sections
17, 18, 19 and 20.
Any person who presents in evidence a simulated copy of an election return, certificate of canvass
or statement of votes, or a printed copy of an election return, certificate of canvass or statement of
votes bearing a simulated certification or a simulated image, shall be guilty of an election offense
and shall be penalized in accordance with Batas Pambansa Blg. 881. (Emphasis supplied.)
The highlighted portions in the afore-quoted section identify the amendments introduced by
Republic Act No. 9369, specifically: (1) the duty to determine the authenticity and due execution of
certificates of canvass is now imposed, not only on Congress acting as the NBC for the election for
President and Vice-President, but also on COMELEC en banc acting as the NBC for the election for
Senators; (2) the third criterion for the determination of the authenticity and due execution of the
certificates of canvass requires the absence of discrepancy in comparison not only with other
authentic copies of the said certificates, but also with the supporting documents, such as the
statements of votes; (3) a fourth criterion for the determination of the authenticity and due
execution of the certificates of canvass was added, mandating the absence of discrepancy between
the number of votes of a candidate in a certificate when compared with the aggregate number of
votes appearing in the election returns of the precincts covered by the same certificate; (4) pursuant
to the exception now provided in Section 15 of Republic Act No. 7166, as amended by Republic Act
No. 9369, permissible pre-proclamation cases shall adopt and apply the procedure provided in
Sections 17 to 20 of the same statute; and (5) the use of a simulated copy of an election return,
certificate of canvass, or statement of vote, or a printed copy of said election documents bearing a
simulated certification or image shall be penalized as an election offense.
Indeed, this Court recognizes that by virtue of the amendments introduced by Republic Act No. 9369
to Sections 15 and 30 of Republic Act No. 7166, pre-proclamation cases involving the authenticity
and due execution of certificates of canvass are now allowed in elections for President, Vice-
President, and Senators. The intention of Congress to treat a case falling under Section 30 of
Republic Act No. 7166, as amended by Republic Act No. 9369, as a pre-proclamation case is
apparent in the fourth paragraph of the said provision which adopts and applies to such a case the
same procedure provided under Sections 17,24 18,25 1926 and 2027 of Republic Act No. 7166 on
pre-proclamation controversies.
In sum, in elections for President, Vice-President, Senators and Members of the House of
Representatives, the general rule still is that pre-proclamation cases on matters relating to the
preparation, transmission, receipt, custody and appreciation of election returns or certificates of
canvass are still prohibited. As with other general rules, there are recognized exceptions to the
prohibition, namely: (1) correction of manifest errors; (2) questions affecting the composition or
proceedings of the board of canvassers; and (3) determination of the authenticity and due execution
of certificates of canvass as provided in Section 30 of Republic Act No. 7166, as amended by
Republic Act No. 9369.
The Petition at bar
Pimentel’s objections to the Maguindanao MCOCs delve into "matters relating to the preparation,
transmission, receipt, custody and appreciation" of the said MCOCs by the SPBOC-Maguindanao. He
suspects the authenticity and due execution of the Maguindanao MCOCs used by the SPBOC-
Maguindanao in its canvass, which were mostly copy 2 or the copy for the wall,28 because of the
supposed mysterious circumstances surrounding the loss or unavailability of any other copy of the
said MCOCs. He decries the denial by the SPBOC-Maguindanao and the NBC of the opportunity to
question PES Bedol and the Chairpersons of the MBOCs-Maguindanao on "where did that copy 2
come from, what was the basis, when was it accomplished, how was it posted x x x";29 and to
substantiate his claim that the Maguindanao MCOCs are palpably manufactured and are not fit for
canvass.30 He is raising issues related to the tampering with, falsification of, or discrepancies in the
Maguindanao MCOCs, which are properly the subject of a pre-proclamation controversy.31
Pimentel insists that the SPBOC-Maguindanao and the NBC should hear his observations, accept his
evidence, and rule on his objections to the Maguindanao MCOCs in what would undeniably be a pre-
proclamation case. Ultimately, what Pimentel seeks is that his pre-proclamation case be given due
course by the boards of canvassers.
Respondents contend that Pimentel cannot initiate and pursue a pre-proclamation case before the
SPBOC-Maguindanao or the NBC, since such a case is prohibited in elections for Senators. Pimentel,
however, argues that his pre-proclamation case is an exception to the prohibition pursuant to
Section 30, in relation to Section 15, of Republic Act No. 7166, as amended by Republic Act No. 9369.
This Court rules for the respondents.
Proceedings before the SPBOC-Maguindanao
The SPBOC-Maguindanao, in the conduct of its canvass proceedings, properly refused to allow
Pimentel to contest the Maguindanao MCOCs at that stage by questioning PES Bedol and the
Chairpersons of the MBOCs-Maguindanao and presenting evidence to prove the alleged
manufactured nature of the said MCOCs, for such would be tantamount to a pre-proclamation case
still prohibited by Section 15 of Republic Act No. 7166, even after its amendment by Republic Act
No. 9369.
The SPBOC-Maguindanao, as its name suggests, was constituted to be of the same stature and to
perform the same function as the PBOC-Maguindano: to canvass the Maguindanao MCOCs and
43
prepare the Maguindanao PCOC to be submitted to the NBC. Undeniably, the SPBOC-Maguindanao is
not Congress nor COMELEC en banc acting as the NBC, specifically charged by Section 30 of Republic
Act No. 7166, as amended by Republic Act No. 9369, with the duty to determine the authenticity and
due execution of the certificates of canvass submitted to it in accordance with the four given criteria.
There is no ambiguity in the said provision, at least, as to whom it imposes the duty, namely: (1)
Congress as the NBC for the election for President and Vice-President; and (2) COMELEC en banc as
the NBC for the election for Senators. This is a case where the law is clear. It speaks in a language
that is categorical. It is quite explicit; it is too plain to be misread. No interpretation is needed. All
that is called for is to apply the statutory command.32
Even if there is still a need for this Court to construe Section 30 of Republic Act No. 7166, as
amended by Republic Act No. 9369, it still cannot extend the scope of said provision to local boards
of canvassers. A pre-proclamation case under Section 30 is allowed only as an exception to the
prohibition under Section 15 of Republic Act No. 7166, as amended by Republic Act No. 9369.
According to the rules of statutory construction, exceptions, as a general rule, are strictly, but
reasonably construed; they extend only so far as their language fairly warrants, and all doubts
should be resolved in favor of the general provisions rather than the exception. Where a general
rule is established by statute with exceptions, the court will not curtail the former nor add to the
latter by implication.33 A maxim of recognized practicality is the rule that the expressed exception
or exemption excludes others. Exceptio firmat regulim in casibus non exceptis. The express mention
of exceptions operates to exclude other exceptions; conversely, those which are not within the
enumerated exceptions are deemed included in the general rule.34 And, in this case, the exception
applies only to Congress or the COMELEC en banc acting as the NBC, and not to local boards of
canvassers who must still be deemed covered by the prohibition on pre-proclamation controversies.
It is also significant to note that Section 15 of Republic Act No. 7166, as amended by Republic Act
No. 9369, prohibits pre-proclamation cases in elections for President, Vice-President, Senators, and
Members of the House of Representatives; while Section 30 of the same statute, as amended, refers
only to elections for President, Vice-President and Senators. The intent of the Legislature to confine
the application of Section 30 of Republic Act No. 7166, as amended by Republic Act No. 9369, only to
Congress or the COMELEC en banc acting as the NBC thus becomes even more evident, considering
that the said provision does not apply to elections for Members of the House of Representatives. It
must be borne in mind that only the votes for national elective positions such as the President, Vice-
President, and Senators are canvassed by the NBC. The canvassing of votes for local elective
positions, including those for Members of the House of Representatives, end with the local boards of
canvassers. Therefore, it would be contrary to the legislative intent to extend Section 30 of Republic
Act No. 7166, as amended by Republic Act No. 9369, even to the canvass proceedings before local
boards of canvassers.
This Court can only conclude that the canvass proceedings before local boards of canvassers in
elections for Senators are unaffected by the amendment of Republic Act No. 7166 by Republic Act
No. 9369. They still remain administrative and summary in nature, so as to guard against the
paralyzation of canvassing and proclamation proceedings that would lead to a vacuum in so
important and sensitive office as that of Senator of the Republic.35
For the same reasons stated in the preceding paragraphs, the four criteria enumerated by Section 30
of Republic Act No. 7166, as amended by Republic Act No. 9369, are not mandatory on local boards
of canvassers in their determination of authenticity and due execution of the certificates of canvass
submitted to them. It is already well-settled that the local boards of canvassers, as well as the
SPBOC-Maguindanao in this case, may proceed with the canvassing of the election returns or
certificates of canvass for as long as they appear to be authentic and duly accomplished on their
face.36
Boards of canvassers are ad hoc bodies that exist only for the interim task of canvassing election
returns. They do not have the facilities, the time and even the competence to hear, examine and
decide on alleged election irregularities, unlike regular courts or the COMELEC itself or the electoral
tribunals (Presidential, Senate, and House), which are regular agencies of government tasked and
equipped for the purpose. While this Court has time and again expressed its abhorrence of the
nefarious "grab the proclamation and prolong the protest" strategy of some candidates, nonetheless,
it recognizes the very limited jurisdiction of MBOCs and PBOCs. Unless Pimentel is able to show
cogently and clearly his entitlement to the summary exclusion of clearly unacceptable certificates of
canvass, this Court must uphold the constitutional and legal presumption of regularity in the
performance of official functions and authenticity of official documents.37
The burden is upon Pimentel to establish that the Maguindanao MCOCs are manufactured, and that
it is evident on the face thereof. Pimentel’s insistence on being allowed to propound questions to
PES Bedol and the Chairpersons of the MBOCs-Maguindanao and SPBOC-Maguindanao reveals that,
although he has his suspicions, he has yet no actual evidence that the Maguindanao MCOCs were
indeed manufactured.
Moreover, Pimentel’s main objection to the Maguindanao MCOCs used in the canvass by the SPBOC-
Maguindanao is that they are mostly copy 2 or the copy intended to be posted on the wall. According
to Section 43 of COMELEC Resolution No. 7859, dated 17 April 2007, the MBOCs must transmit copy
1 of the MCOCs to the PBOC for use in the provincial canvassing of votes. The SPBOC-Maguindanao
was compelled to use copy 2 of the Maguindanao MCOCs in the absence of copy 1 thereof. The fact
that copy 2 of the Maguindanao MCOCs was not the copy meant for the PBOC-Maguindanao does not
necessarily mean that copy 2 of the said MCOCs was manufactured, falsified or tampered with. All
the seven copies of the MCOCs required to be prepared by the MBOCs should be considered
duplicate originals.38 Just like copy 1 of the MCOCs, copy 2 should be afforded the presumption of
authenticity as an official document prepared by the MBOCs-Maguindanao in the regular
performance of their official functions. Copy 2 is no less authentic than all the other copies of the
MCOCs although it may be more susceptible to manufacture, falsification, or tampering. If the
manufacture, falsification, or tampering of copy 2 of the MCOCs is not apparent on its face, the
burden to prove the same falls on the candidate making the allegation in a regular election protest.
At least as far as the proceedings before the local boards of canvassers are concerned, this Court’s
ruling in Pangarungan v. Commission on Elections39 still holds true: it is not required that all the
other copies of the election returns or certificates of canvass be taken into account and compared
with one another before one of them, determined to be authentic, may be used or included in the
canvass.
The SPBOC-Maguindanao determined that copy 2 of the Maguindanao MCOCs is authentic and duly
executed on its face, while Pimentel insists otherwise. This issue involves the appreciation of copy 2
of the Maguindanao MCOCs by the SPBOC-Maguindanao, the proper subject of a pre-proclamation
controversy, which, as this Court already declared, is still prohibited in proceedings before local
boards of canvassers for elections for Senators.
The resolution of the issues raised by Pimentel as to the irregularities and suspicious circumstances
surrounding the Maguindanao MCOCs, which appear prima facie regular on their face, compels or
necessitates the piercing of the veil of the said MCOCs. These issues, however, are more appropriate
in a regular election protest, wherein the parties may litigate all the legal and factual issues raised
by them in as much detail as they may deem necessary or appropriate.40
Proceedings before the COMELEC en banc acting as the NBC for elections for Senators
Similarly, the COMELEC en banc acting as the NBC for the election for Senators, did not violate
Section 30 of Republic Act No. 7166, as amended by Republic Act No. 9369, when it denied
Pimentel’s request to question PES Bedol and the Chairpersons of the MBOCs-Maguindanao and
SPBOC-Maguindanao, and his subsequent motion to exclude the second Maguindanao PCOC.
As already declared by this Court, the NBC has the duty to determine the authenticity and due
execution of the certificates of canvass submitted to it in accordance with the four criteria
enumerated in Section 30 of Republic Act No. 7166, as amended by Republic Act No. 9369. It has not
44
been established to the satisfaction of this Court that the NBC failed to comply with its duty under
said provision.
Pimentel asserts that in the absence of all the other copies of the Maguindanao MCOCs, except copy
2, there is no way to apply the third criterion under Section 30 of Republic Act No. 7166, as
amended by Republic Act No. 9369. According to this criterion for authenticity and due execution of
a certificate of canvass, there must exist no discrepancy in other authentic copies of the certificate or
in any of its supporting documents such as the statement of votes by city/municipality/precinct and
no discrepancy in the votes of any candidate in words and figures in the certificate. Pimentel posits
that without any other copies available for comparison, then copy 2 of the Maguindanao MCOCs
cannot be deemed authentic and duly executed.
While it is true that having only one copy of the certificate of canvass may raise problems as to the
determination by the NBC of its authenticity and due execution since there are no other copies to
compare it with, such is not the situation in the Petition at bar.
According to Section 30 of Republic Act No. 7166, as amended by Republic Act No. 9369, Congress
and the COMELEC en banc, acting as the NBC, shall determine the authenticity and due execution of
the certificates of canvass for President, Vice-President and Senators, respectively, as accomplished
and transmitted to them by the local boards of canvassers. For the province of Maguindanao, it is
the PBOC which transmits the PCOC to the NBC. For the 14 May 2007 senatorial elections, the NBC
excluded from the national canvass the Bedol PCOC submitted by the PBOC-Maguindanao after it
found the same to be tainted by irregularities and statistical improbabilities. Thereafter, the SPBOC-
Maguindanao was created, which re-canvassed the Maguindanao MCOCs and prepared and
submitted to the NBC the second Maguindanao PCOC.
Hence, the four criteria enumerated in Section 30 of Republic Act No. 7166, as amended by Republic
Act No. 9369, must be applied by the NBC to the second Maguindanao PCOC. The authenticity and
due execution of the Maguindanao MCOCs, which had already been determined by the SPBOC-
Maguindanao, are no longer in issue before the NBC. To allow Pimentel to revive again before the
NBC the issue of authenticity and due execution of the Maguindanao MCOCs after a determination
thereof by the SPBOC-Maguindanao is like granting him an appeal, a remedy which is without any
statutory or regulatory basis.
The SPBOC-Maguindanao prepared all seven copies of the second Maguindanao PCOC. It properly
submitted the first copy to the NBC for national canvassing of the votes for Senators. All the six
other copies are in existence and have been distributed to the intended recipients. There is no
allegation or proof that there is a discrepancy among the seven authentic copies of the second
Maguindanao PCOC. Neither is it shown that the second Maguindanao PCOC contains any
discrepancy when compared with its supporting documents. It would thus appear to this Court that
the second Maguindanao PCOC passed the third criterion for its authenticity and due execution as
provided in Section 30 of Republic Act No. 7166, as amended by Republic Act No. 9369. As for the
three other criteria, there is no sufficient allegation, much less proof, that the NBC did not apply
them to the second Maguindanao PCOC or that the second Maguindanao PCOC actually failed to
meet any of them.
Given the foregoing, there is indeed no merit in Pimentel’s request before the NBC to still question
PES Bedol and the Chairpersons of the MBOCs-Maguindanao and SPBOC-Maguindanao regarding
the Maguindanao MCOCs. There is also no reason to exclude the second Maguindanao PCOC from
the national canvass of votes for Senators after its authenticity and due execution had been
determined by the NBC in accordance with the criteria provided by the law.
Due process and equal protection of the law
Pimentel alleges that the proceedings before the NBC and the SPBOC-Maguindanao disallowing him
from asking certain election officials, such as PES Bedol and the Chairpersons of the MBOCs-
Maguindanao and SPBOC-Maguindanao, questions regarding the Maguindanao PCOC and MCOCs,
deprived him of his right to due process.
In City of Manila v. Hon. Laguio, Jr.,41 this Court already provided a discourse on due process, to wit:
The constitutional safeguard of due process is embodied in the fiat "(N)o person shall be deprived of
life, liberty or property without due process of law x x x."
There is no controlling and precise definition of due process. It furnishes though a standard to
which governmental action should conform in order that deprivation of life, liberty or property, in
each appropriate case, be valid. This standard is aptly described as a responsiveness to the
supremacy of reason, obedience to the dictates of justice, and as such it is a limitation upon the
exercise of the police power.
The purpose of the guaranty is to prevent governmental encroachment against the life, liberty and
property of individuals; to secure the individual from the arbitrary exercise of the powers of the
government, unrestrained by the established principles of private rights and distributive justice; to
protect property from confiscation by legislative enactments, from seizure, forfeiture, and
destruction without a trial and conviction by the ordinary mode of judicial procedure; and to secure
to all persons equal and impartial justice and the benefit of the general law.
The guaranty serves as a protection against arbitrary regulation, and private corporations and
partnerships are "persons" within the scope of the guaranty insofar as their property is concerned.
This clause has been interpreted as imposing two separate limits on government, usually called
"procedural due process" and "substantive due process."
Procedural due process, as the phrase implies, refers to the procedures that the government must
follow before it deprives a person of life, liberty, or property. Classic procedural due process issues
are concerned with what kind of notice and what form of hearing the government must provide
when it takes a particular action.
Substantive due process, as that phrase connotes, asks whether the government has an adequate
reason for taking away a person’s life, liberty, or property. In other words, substantive due process
looks to whether there is a sufficient justification for the government’s action. Case law in the United
States (U.S.) tells us that whether there is such a justification depends very much on the level of
scrutiny used. For example, if a law is in an area where only rational basis review is applied,
substantive due process is met so long as the law is rationally related to a legitimate government
purpose. But if it is an area where strict scrutiny is used, such as for protecting fundamental rights,
then the government will meet substantive due process only if it can prove that the law is necessary
to achieve a compelling government purpose.
This Court finds Pimentel’s argument of deprivation of due process problematic since he has not
established what he is being deprived of: life, liberty, or property. He was a candidate in the
senatorial elections. At the time he filed the instant Petition, he might have been leading in the
canvassing of votes, yet the canvass proceedings were still ongoing, and no winner for the twelfth
and last senatorial post had been proclaimed. May he already claim a right to the elective post prior
to the termination of the canvass proceedings and his proclamation as winner, and may such a right
be considered a property right which he cannot be deprived of without due process? These were
clearly substantial and weighty issues which Pimentel did not address. Unfortunately, this Court
cannot argue and settle them for him.
Pimentel only made a sweeping claim that in the canvass proceedings of the Maguindanao votes
before the NBC and the SPBOC-Maguindanao, he was deprived of his constitutional right to due
process, both procedural and substantive. After going over his allegations, however, and the
definition of substantive due process, this Court finds that Pimentel cannot invoke denial of
45
substantive due process because he is not assailing any law, which, arbitrarily or without sufficient
justification, supposedly deprived him of life, liberty, or property.
At most, Pimentel can claim that he was denied procedural due process when he was not allowed by
the NBC and the SPBOC-Maguindanao to propound questions to certain election officials. But even
on this point, Pimentel fails to convince this Court. Asking election officials questions and
confronting them with evidence are not part of the canvass proceedings. There is no statute or
regulation expressly providing for such a procedure.
Any objection or manifestation concerning a certificate of canvass before the NBC, as well as any
contest involving the inclusion or exclusion of an election return or certificate of canvass before a
local board of canvassers, must be orally submitted to the Chairperson of the NBC or the local board
of canvassers, as the case may be. Simultaneous with the oral submission, the party concerned must
submit his written objection, manifestation, or contest in the form required. The objection,
manifestation, or contest shall also be recorded in the minutes of the canvass. In the event that the
NBC or local board of canvassers shall determine that there is a proper case for the objection,
manifestation, or contest submitted, it shall automatically defer the canvass of the assailed election
return or certificate of canvass. Within 24 hours from the submission of the objection,
manifestation, or contest, the party concerned shall submit his evidence which shall be attached to
his written objection, manifestation, or contest. Within the same 24-hour period, any party may file
a written and verified opposition to the objection, manifestation, or contest. Upon receipt of the
evidence, the NBC or the local board of canvassers shall take up the assailed election return or
certificate of canvass, and after considering the objection, manifestation or contest, together with
the opposition thereto and the evidences submitted, shall summarily and immediately rule
thereon.42
The afore-described procedure does not provide any party the opportunity to question and confront
election officials and other witnesses. It may have been allowed on occasion by the boards of
canvassers, but it does not necessarily ripen into a legally demandable right. Again, canvass
proceedings are administrative and summary in nature. As for local boards of canvassers, in
elections for Senators, they only need to determine the authenticity and due execution of the
election returns or certificates of canvass on the face thereof. As for the COMELEC en banc, acting as
the NBC, the determination of the authenticity and due execution of the certificates of canvass shall
be limited only to those submitted before it by the local boards of canvassers and in accordance
with the criteria provided in Section 30 of Republic Act No. 7166, as amended by Republic Act No.
9369. The limitations on the powers and duties of the boards of canvassers are meant to avoid any
delay in the proclamation of the elected official. Issues whose resolution would require the
presentation and examination of witnesses are more properly raised in a regular election protest.
And as a final observation on the matter of due process, this Court notes that although Pimentel was
not able to propound questions to the election officials involved in the preparation and canvassing
of the Maguindanao MCOCs and PCOC, he was still able, through his counsel, to state his
observations, manifestations, and objections regarding the said certificates, which were duly
noted.43 He may not have received the response or action that he wanted with respect to his
observations, manifestations, and objections, but Pimentel cannot deny that these were heard and
presented in the canvass proceedings. Pimentel further admitted that he did not submit his written
observations, manifestations, and objections as the rules of procedure before the NBC and the local
boards of canvassers require.44 He cannot now decry that his observations, manifestations, and
objections were not given due course when he himself failed to comply with the procedure
governing the same.
Equally baseless is Pimentel’s averment that his right to equal protection of the laws was violated
when the NBC and the SPBOC-Maguindanao adopted a procedure of "no questions" in the canvass of
the Maguindanao MCOCs, different from the procedure adopted in the canvass of the certificates of
canvass from other provinces/areas. Article III, Section 1 of the 1987 Constitution guarantees that
no person shall be denied equal protection of the laws. According to a long line of decisions, equal
protection simply requires that all persons or things similarly situated should be treated alike, both
as to rights conferred and responsibilities imposed. Similar subjects, in other words, should not be
treated differently, so as to give undue favor to some and unjustly discriminate against others.45
According to Pimentel, he was deprived of equal protection of the laws when he was not allowed to
question the election officials involved in the canvass proceedings for Maguindanao, although he
was allowed to do so for other provinces or districts. In support of his claim, Pimentel compared his
own experiences in the canvass proceedings for different provinces or districts. This Court,
however, finds Pimentel’s assessment misplaced. What would have been essential for Pimentel to
allege and prove was that other senatorial candidates were allowed during the canvass proceedings
to question the election officials involved in the preparation and canvassing of the Maguindanao
MCOCs and PCOC, while he was not; and that the other senatorial candidates were given undue
favor, while he was the only one unjustly discriminated against. It seems apparent to this Court that
the position of the SPBOC-Maguindanao and the NBC not to allow, during the canvass proceedings,
the questioning of election officials involved in the preparation and canvassing of the Maguindanao
MCOCs and PCOC, was consistent for all senatorial candidates. Hence, petitioner was similarly
situated with all the other senatorial candidates and they were all treated alike insofar as the
canvass proceedings for Maguindanao were concerned.
Electoral protest before the Senate Electoral Tribunal (SET)
Pimentel’s Petition is for Certiorari and Mandamus, both governed by Rule 65 of the Rules of Court.
A special civil action for certiorari may be filed under the following circumstances:
SECTION 1. Petition for certiorari. – When any tribunal, board or officer exercising judicial or quasi-
judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy,
and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified
petition in the proper court, alleging the facts with certainty and praying that judgment be rendered
annulling or modifying the proceedings of such tribunal, board or officer, and granting such
incidental reliefs as law and justice may require.
In a special civil action for certiorari, the burden is on the part of petitioner to prove not merely
reversible error, but grave abuse of discretion amounting to lack or excess of jurisdiction on the part
of the public respondent issuing the impugned order. Grave abuse of discretion means a capricious
and whimsical exercise of judgment as is equivalent to lack of jurisdiction. Mere abuse of discretion
is not enough, it must be so grave as when the power is exercised in an arbitrary or despotic manner
by reason of passion or personal hostility, and must be so patent and so gross as to amount to an
evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in
contemplation of law.46
The extraordinary remedy of mandamus, on the other hand, may be availed of under the conditions
provided below:
RULE 65, SECTION 3. Petition for mandamus. – When any tribunal, corporation, board, officer or
person unlawfully neglects the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust, or station, or unlawfully excludes another from the use and
enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and
adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified
petition in the proper court, alleging the facts with certainty and praying that judgment be rendered
commanding the respondent, immediately or at some other time to be specified by the court, to do
the act required to be done to protect the rights of the petitioner, and to pay the damages sustained
by the petitioner by reason of the wrongful acts of the respondent.
The writ of mandamus shall be issued only if the legal right to be enforced is well defined, clear and
certain. It lies only to compel an officer to perform a ministerial duty, not a discretionary one. The
46
duty is ministerial only when its discharge requires neither the exercise of official discretion nor
judgment.47
To avail of both special civil actions, there must be no other plain, speedy and adequate remedy in
the ordinary course of law available to the petitioner, and in this, Pimentel’s Petition falters.
It must be kept in mind that Zubiri was proclaimed the twelfth Senator-elect in the 14 May 2007
elections on 14 July 2007, and that he formally assumed office on 16 July 2007. In accordance with
this Court’s ruling in Aggabao, Pimentel’s Petition must be dismissed, for his recourse lies, not with
this Court, but with the SET.
This Court elucidated in Aggabao48 that:
Article VI, Section 17 of the 1987 Constitution provides:
Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which
shall be the sole judge of all contests relating to the election, returns, and qualifications of their
respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom
shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six
shall be Members of the Senate or the House of Representatives, as the case may be, who shall be
chosen on the basis of proportional representation from the political parties and the parties or
organization registered under the party-list system represented therein. The senior Justice in the
Electoral Tribunal shall be its Chairman.
In Pangilinan v. Commission on Elections we ruled that:
The Senate and the House of Representatives now have their respective Electoral Tribunals which
are the "sole judge of all contests relating to the election, returns, and qualifications of their
respective Members, thereby divesting the Commission on Elections of its jurisdiction under the
1973 Constitution over election cases pertaining to the election of the Members of the Batasang
Pambansa (Congress). It follows that the COMELEC is now bereft of jurisdiction to hear and decide
pre-proclamation controversies against members of the House of Representatives as well as of the
Senate.
The HRET has sole and exclusive jurisdiction over all contests relative to the election, returns, and
qualifications of members of the House of Representatives. Thus, once a winning candidate has been
proclaimed, taken his oath, and assumed office as a Member of the House of Representatives,
COMELEC’s jurisdiction over election contests relating to his election, returns, and qualifications
ends, and the HRET’s own jurisdiction begins.
It is undisputed that Miranda has already been proclaimed, taken his oath and assumed office on
June 14, 2004. As such, petitioner’s recourse would have been to file an electoral protest before the
HRET. His remedy is not this petition for certiorari. Thus:
Finally, the private respondent Feliciano Belmonte, Jr. has already been proclaimed as the winner in
the congressional elections in the fourth district of Quezon City. He has taken his oath of office and
assumed his duties as representative; hence, the remedy open to the petitioner was to have filed an
electoral protest with the Electoral Tribunal of the House of Representatives.
The allegation that Miranda’s proclamation is null and void ab initio does not divest the HRET of its
jurisdiction. Thus:
(I)n an electoral contest where the validity of the proclamation of a winning candidate who has
taken his oath of office and assumed his post as Congressman is raised, that issue is best addressed
to the HRET. The reason for this ruling is self-evident, for it avoids duplicity of proceedings and a
clash of jurisdiction between constitutional bodies, with due regard to the people’s mandate.
In Lazatin v. Commission on Elections we ruled that, upon proclamation of the winning candidate
and despite its alleged invalidity, the COMELEC is divested of its jurisdiction to hear the protest.
Thus:
The petition is impressed with merit because the petitioner has been proclaimed winner of the
Congressional elections in the first district of Pampanga, has taken his oath of office as such, and
assumed his duties as Congressman. For this Court to take cognizance of the electoral protest
against him would be to usurp the functions of the House Electoral Tribunal. The alleged invalidity
of the proclamation (which has been previously ordered by the COMELEC itself) despite alleged
irregularities in connection therewith, and despite the pendency of the protests of the rival
candidates, is a matter that is also addressed, considering the premises, to the sound judgment of
the Electoral Tribunal.
In this case, certiorari will not lie considering that there is an available and adequate remedy in the
ordinary course of law for the purpose of annulling or modifying the proceedings before the
COMELEC. After the proclamation, petitioner’s remedy was an electoral protest before the HRET.
The resolution of the issues presented in this petition is best addressed to the sound judgment and
discretion of the electoral tribunal.
The afore-quoted pronouncements are likewise applicable to the Petition at bar, with the references
therein to the jurisdiction of the House of Representatives Electoral Tribunal over election protests
involving members of the House of Representatives also being true for the SET as regards election
protests involving Senators.
In Chavez v. Commission on Elections,49 this Court similarly ruled that the word "sole" in Article VI,
Section 17 of the 1987 Constitution underscores the exclusivity of the electoral tribunals'
jurisdiction over election contests relating to their respective members. It is therefore crystal clear
that this Court has no jurisdiction to entertain a petition for certiorari and mandamus on matters
which may be threshed out in an election contest. It is the SET which has exclusive jurisdiction to act
on the complaint of Pimentel involving, as it does, a contest relating to the election of Zubiri, now a
member of the Senate.
Pimentel attempts to bring his case outside the jurisprudential precedent set by Aggabao, but to no
avail.
That Pimentel filed the present Petition prior to Zubiri’s proclamation is insignificant. Since
Pimentel’s prayer for a TRO and/or Status Quo Ante Order had been denied, Zubiri was proclaimed
the twelfth winning Senator in the 2007 Senatorial Elections.
Pimentel further claims that he is not challenging Zubiri’s proclamation, but rather the conduct of
the proceedings before the NBC and the SPBOC-Maguindanao. This is just a roundabout argument.
Pimentel cannot deny that he assails the canvass proceedings because he believes that the
annulment and setting aside thereof would result in his winning as the twelfth Senator in the 14
May 2007 elections; and if he is the rightful winner, then logically and necessarily, Zubiri’s
proclamation must also be annulled and set aside.
Finally, while Section 15, in relation to Section 30, of Republic Act No. 7166, as amended by Republic
Act No. 9369, did introduce an additional exception to the prohibition against pre-proclamation
controversies in elections for President, Vice-President, and Senators, this Court has already
established in the preceding discussion that Pimentel cannot invoke the same in his Petition. The
provisions in question did not materially change the nature of canvass proceedings before the
boards of canvassers, which still remain summary and administrative in nature for the purpose of
canvassing the votes and determining the elected official with as little delay as possible and in time
for the commencement of the new term of office.
47
This Court deems it necessary to stress that attempts to delay the canvass proceedings, except for
the permissible pre-proclamation controversies, must be shunned. Grounds which are proper for
electoral protests should not be allowed to delay the proclamation of the winners.50 It may well be
true that public policy may occasionally permit the occurrence of "grab the proclamation and
prolong the protest" situations; that public policy, however, balances the possibility of such
situations against the shortening of the period during which no winners are proclaimed, a period
commonly fraught with tension and danger for the public at large. For those who disagree with that
public policy, the appropriate recourse is not to ask this Court to abandon case law, which merely
interprets faithfully existing statutory norms, to engage in judicial legislation and in effect to rewrite
portions of the Omnibus Election Code. The appropriate recourse is, of course, to the Legislative
Department of the Government and to ask that Department to strike a new and different
equilibrium in the balancing of the public interests at stake.51

IN VIEW OF THE FOREGOING, the present Petition for Certiorari and Mandamus is hereby
DISMISSED. No costs.

SO ORDERED.

48
[G.R. No.133842. January 26, 2000]
FEDERICO S. SANDOVAL, petitioner, vs. COMMISSION ON ELECTIONS and CANUTO SENEN A.
ORETA, respondents.
DECISION
PUNO, J.:
The petition at bar assails the order of the Commission on Elections , (COMELEC) en banc dated June
2, 1998 nullifying and setting aside the proclamation of petitioner Federico S. Sandoval as
congressman-elect for the Malabon-Navotas legislative district.
The facts are as follows:
Petitioner Federico S. Sandoval and private respondent Canuto Senen Greta, together with Pedro
Domingo, Mariano Santiago, Symaco Benito and Warren Serna, vied for the congressional seat for
the Malabon-Navotas legislative district during the election held on May 11, 1998.
On election day, after the votes have been cast and counted in the various precincts in the two
municipalities, their respective board of canvassers convened to canvass the election returns
forwarded by the board of election inspectors.
In Malabon, a reception group and several canvassing committees were formed to expedite the
canvass. The reception group received, examined and recorded the sealed envelopes containing the
election returns, as well as the ballot boxes coming from the precincts. The reception group then
distributed the election returns among the canvassing committees. The committees simultaneously
canvassed the election returns assigned to them in the presence of the lawyers and watchers of the
candidates.
On May 16, 1998, counsels for private respondent made a written request upon Malabon Election
Officer Armando Mallorca to furnish them with a complete list of the statement of votes so that they
could verify whether all statements of votes have been tabulated.[1] They likewise requested for a
complete list of precincts in the municipality together with the number of canvassed votes for
petitioner and private respondent as of May 16, 1998. They also sought permission to conduct an
audit of the tabulation reports made by the municipal board of canvassers.[2] These requests,
however, were denied by the municipal ,board of canvassers on the following grounds: (1) that any
counsel for a candidate has neither personality nor right to conduct an audit of the tabulation report
as the proceedings of the board are presumed to be regular, and (2) that the granting of the requests
would delay the proceedings of the board to the prejudice of the will of the people of Malabon.[3]
Calrky
On May 17, 1998, the Malabon municipal board of canvassers concluded its proceedings. The board
issued a certificate of canvass of votes stating that it canvassed 804 out of 805 precincts in the
municipality. The certificate of canvass showed that private respondent obtained the highest
number of votes in Malabon with 57,760 votes, with petitioner coming in second with 42,892
votes.[4]
On the same day, after obtaining copies of the statements of votes, Ma. Rosario O. Lapuz, authorized
representative of private respondent wrote then COMELEC Chairman Bernardo Pardo[5] and
informed him that several election returns were not included in the canvass conducted by the
Malabon municipal board of canvassers. She moved that the certificate of canvass issued by said
board be declared "not final."[6]
On May 19, 1998, Ms. Lapuz again wrote Chairman Pardo. The letter reiterated the allegations in her
letter dated May 17, 1998 and requested that the Malabon municipal board of canvassers be
ordered to canvass the election returns which it allegedly failed to include in its canvass.[7]
On May 23, 1998, private respondent filed with the COMELEC an Urgent Petition entitled "In re:
Petition to Correct Manifest Error in Tabulation of Election Returns by the Municipal Board of
Canvassers of Malabon, NCR. Canuto Tito Oreta vs. Municipal Board of Canvassers of Malabon." The
petition was docketed as SPC No.98-143. It alleged that while the certificate of canvass showed that
804 election returns were canvassed and tabulated, only 790 election returns were actually
canvassed. Private respondent contended that there was a manifest error in the non-recording or
copying of the results in 14 election returns from 14 precincts into the statement of votes. It prayed:
(1) that the municipal, board of canvassers of Malabon be reconvened to correct said manifest error
by entering the results of the elections in the 14 election returns into the statement of , votes and
that the certificate of canvass be corrected to reflect the complete results in 804 precincts; and (2)
that the canvass of the results for the congressional election by the district board of canvassers for
Malabon and Navotas be suspended until the alleged manifest error is corrected.[8] Mesm
Meanwhile, the proceedings of the municipal board of canvassers of Navotas were disrupted by the
riotous exchange of accusations by the supporters of the opposing mayoralty candidates. The
COMELEC had to move the venue to the Philippine International Convention Center in Manila to
finish the canvass. On May 27, 1998, Chairman Pardo issued a memorandum to Atty. Ma. Anne V. G.
Lacuesta, Chairman, District Board of Canvassers for Malabon-Navotas, authorizing her to
immediately reconvene the district board of canvassers, complete the canvassing of the municipal
certificate of canvass and supporting statement of votes per municipality , and proclaim the winning
candidate for the congressional seat of the Malabon-Navotas legislative district.[9]
On May 28, 1998, private respondent filed with the COMELEC an Urgent Manifestation/Motion in
connection with SPC No.98-143. It prayed that the canvass of the, results of the congressional
election by the district board of canvassers be suspended until the alleged manifest error in SPC
No.98-143 is corrected.[10]
At 4:15 in the afternoon on May 28, 1998, the district board of canvassers convened at the
Philippine International Convention Center. It took up private respondent's petition to correct the
manifest error arising from the non-inclusion of 19 election returns in the canvass. After examining
the statement of votes by precinct and the certificate of canvass signed and thumbmarked by three
watchers from different parties, the district board of canvassers found that a total of 804 election
returns were canvassed by the Malabon municipal board of canvassers.[11]
The district board of canvassers then proceeded to canvass the certificates of canvass from the two
municipalities. Counsel for private respondent requested that the canvassing be suspended until the
Commission has resolved their petition for correction of manifest error in the certificate of canvass
of Malabon. The district board of canvassers, however, denied the request for the following reasons:
"1. absence of restraining order from the Commission;
"2. order of the Chairman dated May 27, 1998 directing the district board to proceed with the
canvass and proclamation of winning candidates for the district of Malabon-Navotas; Scslx
"3. there is no irregularity in the submitted certificate of canvass from both municipalities and there
were no objections raised for both certificates of canvass of the counsels present;
"4. no report coming from the municipal board of canvassers from Malabon that there were
uncanvassed election return except for one;
49
"5. the municipal board of canvassers of Malabon submitted to the district board of canvassers
certificate of canvass which indicated that the number of canvassed returns for District I is 397 and
407 for District II for a total of 804 out of 805 election returns;
"6. the board has only the ministerial duty to tally the votes as reflected on the certificate of canvass
supplemented by the statement of votes and has no authority to verify allegations of irregularities in
the preparation thereof; and
"7. there is no pre-proclamation contest for the position of congressman."[12]
Private respondent's counsel sought reconsideration of the decision of the district board' of
canvassers but it was likewise denied by the board.
After canvassing the municipal certificates of canvass, the district board of canvassers proclaimed
petitioner the duly elected congressman of the legislative district of Malabon-Navotas. The board
declared that petitioner obtained a total vote of 82,339 over private respondent's 80,319 votes.[13]
Petitioner took his oath of office on the same day.[14] Slxs c
The following day, on May 29, 1998, private respondent filed with the COMELEC in connection with
SPC No.98-143 an "Urgent Appeal from the Decision of the Legislative District Board of Canvassers
for Malabon and Navotas with Prayer for the Nullification of the Proclamation of Federico S.
Sandoval as Congressman." It alleged that there was a verbal order from the COMELEC Chairman to
suspend the canvass and proclamation of the winning candidate for congressman of the Malabon-
Navotas legislative district; that the district board of canvassers proceeded with the canvass and
proclamation despite the verbal order; and that the non-inclusion of the 19 election returns in the
canvass would result in an incomplete canvass of the election returns. It prayed that the decision of
the district board of canvassers be reversed and that the municipal board of canvassers of Malabon
be reconvened to complete its canvass. It also prayed that the proclamation of petitioner as
congressman be annulled.[15]
On May 30, 1998, private respondent filed with the COMELEC an Urgent Petition docketed as SPC
No.98-206. The petition sought the annulment of , petitioner's proclamation as congressman. It
alleged that at about 4:00 in the afternoon on May 28, 1998, the COMELEC Chairman directed the
district board of canvassers to suspend the canvass and proclamation pending the resolution of the
petition for correction of manifest error in the municipal certificate of canvass of Malabon; that the
district board of canvassers still proceeded with the canvass in spite of the order; that the
proclamation was made despite the non-inclusion of election returns from 19 precincts in Malabon;
and that the non-inclusion of these election returns will materially affect the result of the election.
Private respondent prayed that the proclamation of petitioner as congressman be annulled and that
the municipal board of canvassers of Malabon be ordered to reconvene to include the 19 election
returns in the canvass.[16]
On June 2, 1998, the COMELEC en banc issued an order setting aside the proclamation of petitioner.
The COMELEC ruled that the proclamation by the district board of canvassers was void because: (1)
it was made in defiance of the verbal order by the COMELEC Chairman relayed through Executive
Director Resurrection Z. Borra to suspend the proclamation of the winner in the congressional
election until the Commission has resolved private respondent's petition for correction of manifest
error in the certificate of canvass; and (2) it was based on an incomplete canvass. The dispositive
portion of the order reads: slx mis
"WHEREFORE, the proclamation made by the District Board of Canvassers of Malabon and Navotas
for the position of Congressman being void ab initio is no proclamation at all. Meantime, it is hereby
set aside.
"Atty .Ma. Anne Lacuesta is hereby relieved as Chairman, District Board of Canvassers of Malabon-
Navotas, and Atty. Consuelo B. Diola is named Chairman of said Board. Atty. Diola is directed to
maintain the status quo prior to the Board's unauthorized proclamation, until further orders.
"Meantime, let these cases be set for hearing en banc on 09 June 1998 at 10:00 in the morning.
"SO ORDERED."[17]
On June 8, 1998, petitioner filed this petition for certiorari seeking the annulment and reversal of
said order. Petitioner contended:
"1. Respondent COMELEC's annulment of petitioner Sandoval's proclamation as winner in the
election for congressman of Malabon-Navotas, without the benefit of prior hearing, is grossly
indecent and violates his right to due process of law.
"2. Respondent COMELEC's action on respondent Oreta's petitions violates Republic Act 7166 which
bars pre-proclamation cases in the elections of members of the House of Representative.
"3. Respondent Oreta's remedy for seeking correction of alleged manifest errors in the certificate of
canvass for members of Congress does not lie with respondent COMELEC but, initially with the
municipal board of canvassers.
"4. At any rate, respondent Oreta's right to raise questions concerning alleged manifest errors in the
Malabon certificate of canvass is barred by his failure to raise such questions before petitioner
Sandoval's proclamation.
"5. Respondent Oreta's recourse lies with the House of Representatives Electoral Tribunal which is
not precluded from passing upon the allegedly uncanvassed election returns in Malabon."[18]
On June 9, 1998, we required the respondents to comment on the petition. We also issued a
temporary restraining order mandating the COMELEC to cease and desist from implementing and
enforcing the questioned order.[19]
The COMELEC nonetheless conducted a hearing on June 9, 1998 , concerning SPC No.98-143 and
SPC No.98-206.
Private respondent filed his comment[20] on June 22, 1998. He argued:
"1. Respondent COMELEC committed no jurisdictional error in declaring void ab initio the
proclamation of petitioner Sandoval as Congressman-elect for the Malabon-Navotas legislative
district. Missdaa
a. The premature and hasty proclamation of respondent Sandoval made by the District Board on the
basis of an incomplete canvass is illegal, hence, null and void.
b. Respondent COMELEC substantially complied with the requirements of due process in declaring
the proclamation of respondent Sandoval an absolute nullity.
"2. Respondent COMELEC properly took cognizance of respondent Oreta's petition to correct
manifest error in the certificate of canvass issued by the Malabon board.
a. While technically a pre-proclamation case, correction of manifest errors for purposes of the
congressional elections is within the power and authority of the COMELEC to order, in the exercise
of its appellate and original jurisdiction over such subject matter.
50
b. The failure of the Malabon board to tabulate the results of seventeen ( 17) election returns and to
record the votes supporting the certificate of canvass resulted in a manifest error in the certificate
of canvass which should be summarily corrected by ordering the Malabon board to reconvene,
canvass the 17 election returns, record the votes in the statement of votes and prepare a new
certificate of canvass."
On June 29, 1998, then Solicitor General Silvestre Bello III filed a Manifestation and Motion in Lieu of
Comment.[21] He found the assailed order of the COMELEC null and void for the following reasons:
"1. Respondent COMELEC's motu proprio and ex parte annulment of petitioner's proclamation as
winner in the election for congressman of Malabon-Navotas is tainted with grave abuse of discretion
amounting to lack or excess of jurisdiction and violated petitioner's right to due process; and
"2. Respondent COMELEC had no jurisdiction over the petitions filed by respondent Oreta, hence its
order dated June 2, 1998 annulling petitioner's proclamation is null and void."
In view of. the Solicitor General's manifestation and motion, we required the COMELEC to file its
own comment.
The COMELEC filed its comment on August 11, 1998. It invoked its power of direct control and
supervision over the board of canvassers, allowing it to review, revise and reverse the board's
actions. It said that it rendered the questioned order upon finding that petitioner's proclamation
was illegal and therefore void ab initio. It cited two reasons to support its findings: first, it was made
in disregard of the Chairman's verbal order to suspend the canvass and proclamation, and second, it
was based on an incomplete canvass.[22] Sda adsc
On August 27, 1998, the new Solicitor General, Ricardo P. Galvez, filed a Manifestation and Motion
withdrawing the Manifestation and Motion filed ,by former Solicitor General Bello. The Solicitor
General, this time, upheld the validity of the assailed order. In essence, he argued that the Malabon
municipal board of canvassers failed to include 17 election returns in its canvass; that such omission
constitutes manifest error in the certificate of canvass which must be corrected by the district board
of canvassers; and that the proclamation of petitioner was void ab initio because it was based on an
incomplete canvass.[23]
Petitioner and private respondent subsequently filed their respective reply, rejoinder and sur-
rejoinder.
Considering the arguments raised by the parties, the issues that need to be resolved in this case are:
1. whether the COMELEC has the power to take cognizance of SPC No. 98-143 and SPC No. 98-206,
both alleging the existence 'of manifest error in the certificate of canvass issued by the Malabon
municipal board of canvassers and seeking to reconvene said board of canvassers to allow it to
correct the alleged error; and
2. whether the COMELEC's order to set aside petitioner's proclamation was valid.
On the first issue, we uphold the jurisdiction of the COMELEC over the petitions filed by private
respondent. As a general rule, candidates and registered political parties involved in an election are
allowed to file pre-proclamation cases before the COMELEC. Pre-proclamation cases refer to any
question pertaining to or affecting the proceedings of the board of canvassers which may be raised
by, any candidate or by any registered political party or coalition of political parties before the
board or directly with the Commission, or any matter raised under Sections 233, 234, 235 and 236
in relation to the preparation, transmission, receipt, custody and appreciation of election
returns.[24] The COMELEC has exclusive jurisdiction over all pre-proclamation controversies.[25]
As an exception, however, to the general rule, Section 15 of Republic Act (RA) 7166[26]. prohibits
candidates in the presidential, vice-presidential, senatorial and congressional elections from filing
pre-proclamation cases.[27] It states:
"Sec. 15. Pre-proclamation Cases Not Allowed in Elections for President, Vice-President, Senator,
and Members of the House of Representatives.-- For purposes of the elections for President, Vice-
President, Senator and Member of the House of Representatives, no pre-proclamation cases shall be
allowed on matters relating to the preparation, transmission, receipt, custody and appreciation of
election returns or the certificates of canvass, as the case may be. However, this does not preclude
the authority of the appropriate canvassing body motu propio or upon written complaint of an
interested person to correct manifest errors in the certificate of canvass or election returns before
it." Rtc spped
The prohibition aims to avoid delay in the proclamation of the winner in the election, which delay
might result in a vacuum in these sensitive posts.[28] The law, nonetheless, provides an exception to
the exception. The second sentence of Section 15 allows the filing of petitions for correction of
manifest errors in the certificate of canvass or election returns even in elections for president, vice-
president and members of the House of Representatives for the simple reason that the correction of
manifest error will not prolong the process of canvassing nor delay the proclamation of the winner
in the election. This rule is consistent with and complements the authority of the COMELEC under
the Constitution to, "enforce and administer all laws and regulations relative to the conduct of an,
election, plebiscite, initiative, referendum and recall"[29] and its power to "decide, except those
involving the right to vote, all questions affecting elections."[30]
Applying the foregoing rule, we hold that the Commission has jurisdiction over SPC No. 98- 143 and
SPC No.98-206, both filed by private respondent seeking to correct the alleged manifest error in the
certificate of canvass issued by the Malabon municipal board of canvassers. These petitions
essentially allege that there exists a manifest error in said certificate of canvass as the board failed
to include several election returns in the canvassing. Private respondent prays that the board be
reconvened to correct said error. Section 15 of RA 7166 vests the COMELEC with jurisdiction over
cases of this nature. We reiterate the long-standing rule that jurisdiction is conferred by law and is
determined by the allegations in the petition regardless of whether or not the petitioner is entitled
to the relief sought.[31]
The authority to rule on petitions for correction of manifest error is vested in the COMELEC en banc.
Section 7 of Rule 27 of the 1993 COMELEC Rules of Procedure[32] provides that if the error is
discovered before proclamation, the board of canvassers may motu proprio, or upon verified
petition by any candidate, political party, organization or coalition of political parties, after due
notice and hearing, correct the errors committed. The aggrieved party may appeal the decision of
the board to the Commission and said appeal shall be heard and decided by the Commission en
banc. Section 5, however of the same rule states that a petition for correction of manifest error may
be filed directly with the Commission en banc provided that such errors could not have been
discovered during the canvassing despite the exercise of due diligence and proclamation of , the
winning candidate had already been made. Thus, we held in Ramirez vs. COMELEC:[33] Korte
"Although in Ong, Jr. v. COMELEC it was said that 'By now it is settled that election cases which
include pre-proclamation controversies must first be heard and decided by a division of the
Commission' -- and a petition for correction of manifest error in the Statement of Votes, like SPC 95-
198 is a pre-proclamation ; controversy -- in none of the cases cited to support this proposition was
the issue the correction of a manifest error in the Statement of Votes under Sec. 231 of the Omnibus
Election Code (BP. Blg. 881) or Sec. 15 of R.A. No.7166. On the other hand, Rule 27, Sec. 5 of the
1993 Rules of the COMELEC expressly provides that pre - proclamation controversies involving,
inter alia, manifest errors in the tabulation or tallying of the results may be filed directly with the
COMELEC en banc x x x."[34]
51
Petitioner nonetheless contends that SPC No. 98-143 and SPC No. 98-206 must be dismissed
because private respondent failed to raise the issue of manifest error before the appropriate board
of canvassers in accordance with the second sentence of Section 15 of RA 7166.
We disagree.
The issue of manifest error in the certificate of canvass for Malabon has been raised before the
district board of canvassers before petitioner could be proclaimed and said board has in fact ruled
on the issue.[35] We find this as sufficient compliance with the law. The facts show that it was
impossible for private respondent to raise the issue before the Malabon municipal board of
canvassers as it still did not have a copy of the statement of votes and the precinct list at the time of
the canvassing in the municipal level. At that time, private respondent still had no knowledge of the
alleged manifest error. He, however, lost no time in notifying the COMELEC Chairman and the
district board of the alleged error upon discovery thereof. We find petitioner's argument, therefore,
to be devoid of merit.
We now go to the second issue. Although the COMELEC is clothed with jurisdiction over the subject
matter and issue of SPC No.98-143 and SPC No. 98-206, we find the exercise of its jurisdiction
tainted with illegality. We hold that its order to set aside the proclamation of petitioner is invalid for
having been rendered without due process of law. Procedural due process demands prior notice
and hearing. Then after the hearing, it is also necessary that the tribunal show substantial evidence
to support its ruling.[36] In other words, due process requires that a party be given an opportunity
to adduce his evidence to support his side of the case and that the evidence should be considered in
the adjudication of the case.[37] The facts show that COMELEC set aside the proclamation of
petitioner , without the benefit of prior notice and hearing and it rendered the questioned order
based solely on private respondent's allegations. We held in Bince, Jr. vs. COMELEC:[38] x law
"Petitioner cannot be deprived of his office without due process of law. Although public office is not
property under Section 1 of the Bill of Rights of the Constitution, and one cannot acquire a vested
right to public office, it is, nevertheless, a protected right. Due process in proceedings before the
COMELEC, exercising its quasi-judicial functions, requires due notice and hearing, among others.
Thus, although the COMELEC possesses, in appropriate cases, the power to annul or suspend the
proclamation of any candidate, We had ruled in Farinas vs. Commission on Elections, Reyes vs.
Commission on Elections and Gallardo vs. Commission on Elections that the COMELEC is without
power to partially or totally annul a proclamation or suspend the effects of a proclamation without
notice and hearing."[39]
Citing Section 242 of the Omnibus Election Code, private respondent argues that the COMELEC is
authorized to annul an illegal proclamation even without notice and hearing because the law states
that it may motu proprio order a partial or total suspension of the proclamation of any candidate-
elect or annul partially or totally any proclamation, if one has been made. We reject the argument.
Section 242 of the Omnibus Election Code reads:
"Sec. 242. Commission's exclusive jurisdiction of all pre-proclamation controversies.-- The
Commission shall have exclusive jurisdiction of all pre-proclamation controversies. It may motu
proprio or upon written petition, and after due notice and hearing, order the partial or total
suspension of the proclamation of any candidate-elect or annul partially or totally any proclamation,
if one has been made, as the evidence shall warrant in accordance with the succeeding sections."
The phrase "motu proprio" does not refer to the annulment of proclamation but to the manner of
initiating the proceedings to annul a proclamation made by the board of canvassers. The law
provides two ways by which annulment proceedings may be initiated. It may be at the own initiative
of the COMELEC (motu proprio) or by written petition. In either case, notice and hearing is required.
This is clear from the language of the law. Scmis
We likewise reject private respondent's assertion that the hearing held on June 9, 1998
substantially satisfies the due process requirement. The law requires that the hearing be held before
the COMELEC rules on the petition. Here, the public respondent first issued an order annulling the
proclamation of petitioner and then set the date of the hearing. We explained in Farinas vs.
COMELEC[40] the pernicious effect of such procedure:
"As aptly pointed out by the Solicitor General, 'to sanction the immediate annulment or even the
suspension of the effects of a proclamation before the petition seeking such annulment or
suspension of its effects shall have been heard would open the floodgates of unsubstantiated
petitions after the results are known, considering the propensity of the losing candidates to put up
all sorts of obstacles in an open display of unwillingness to accept defeat, or would encourage the
filing of baseless petitions not only to the damage and prejudice of winning candidates but also to
the frustration of the sovereign will of the electorate.'" (citations omitted)
Public respondent submits that procedural due process need not be observed in this case because it
was merely exercising its administrative power to review, revise and reverse the actions of the
board of canvassers. It set aside the proclamation made by the district board of canvassers for the
position of congressman upon finding that it was tainted with illegality.
We cannot accept public respondent's argument.
Taking cognizance of private respondent's petitions for annulment of petitioner's proclamation,
COMELEC was not merely performing an administrative function. The administrative powers of the
COMELEC include the power to determine the number and location of polling places, appoint
election officials and inspectors, conduct registration of voters, deputize law enforcement agencies
and government instrumentalities to ensure free, orderly, honest, peaceful and credible elections,
register political parties, organizations or coalitions, accredit citizens' arms of the Commission,
prosecute election offenses, and recommend to the President the removal of or imposition of any
other disciplinary action upon any officer or employee it has deputized for violation or disregard of
its directive, order or decision. In addition, the Commission also has direct control and supervision
over all personnel involved in the conduct of election. However , the resolution of the adverse claims
of private respondent and petitioner as regards the existence of a manifest error in the questioned
certificate of canvass requires the COMELEC to act as an arbiter. It behooves the Commission to hear
both parties to determine the veracity of their allegations and to decide whether the alleged error is
a manifest error. Hence, the resolution of this issue calls for the exercise by the COMELEC of its
quasi- judicial power. It has been said that where a power rests in judgment or discretion, so that it
is of judicial nature or character, but does not involve the exercise of functions of a judge, or is
conferred upon an officer other than a judicial officer, it is deemed quasi-judicial.[41] The COMELEC
therefore, acting as quasi-judicial tribunal, cannot ignore the requirements of procedural due
process in resolving the petitions filed by private respondent. Mis sc
IN VIEW WHEREOF, the COMELEC order dated June 2, 1998 in SPC No. 98-143 and SPC No. 98-206
is ANNULLED. This case is REMANDED to the COMELEC and the Commission is hereby ordered to
hold a hearing on the issues presented in SPC No. 98-143 and SPC No. 98-206, and thereafter render
a decision based on the evidence adduced and the applicable laws. The incident of whether or not
petitioner may continue discharging the functions of the office of congressman pending resolution
of the case on its merit shall be addressed by the COMELEC in the exercise of its reasonable
discretion.
SO ORDERED.
52
G.R. Nos. 95347-49 January 6, 1992
SALACNIB F. BATERINA, CANDIDO BALBIN, GUILLERMO BALLESTEROS, NATHANIEL
ESCOBAR, BENJAMIN GALAPIA, LEONARDO ROLDAN, FILEMON SISON, ERWIN REYES-ULEP,
EVELYN VALDEZ, OCTAVIO VILLANUEVA, COALITION FOR GOOD GOVERNMENT OF ILOCOS
SUR, AND LAKAS NG BANSA, petitioners,
vs.
COMMISSION ON ELECTIONS, EVARISTO "TITONG" SINGSON, CARIDAD ALCANTARA,
MARIANO TAJON, WINSTON AGUIRRE, HEREDIO BELLO, BENJAMIN BUGARIN, TERESITA
CORDERO, JOSE DIVINA, RODOLFO GALIMA, DEOGRACIAS VICTOR SAVELLANO, VICTOR
VILORIA and AND THE PROVINCIAL BOARD CANVASSERS OF ILOCOS SUR, respondents.
Diosdado P. Peralta for petitioners.
Bonifacio A. Alentajan for private respondents.
MELENCIO-HERRERA, J.:
Petitioners assail the en banc Resolution of the Commission on Elections (COMELEC), dated 6
September 1990, affirming the Resolution, dated 23 March 1988, and Decision dated 5 June 1989,
rendered by its First and Second Divisions, respectively. The aforesaid Resolutions and Decision
ruled adversely against petitioners in the pre-proclamation cases initiated by them before the
COMELEC.
Petitioner Salacnib F. Baterina was a candidate for Governor of Ilocos Sur in the special local
elections held on 25 January 1988. The other petitioners, Octavio Villanueva and Evelyn Valdez,
Felimon Sison, Leonardo Roldan, Gil Ballesteros, Benjamin Galapia, Erwin Reyes-Ulep, and Nathaniel
Escobar, were candidates for Vice Governor and Provincial Board Members, respectively, in the
same local elections. Petitioners ran under the banner of the Lakas ng Bansa. Private respondent
Evaristo Singson, on the other hand, was also a candidate for Governor of Ilocos Sur. Private
respondent Mariano Tajon was a candidate for Vice Governor. The rest of the private respondents
were candidates for the other disputed positions.
The Provincial Board of Canvassers of Ilocos Sur (BOARD) has likewise been impleaded in this
petition.
The canvassing of the election returns commenced as the ballot boxes containing the returns from
the various municipalities of Ilocos Sur were received by the BOARD.
In the course of the canvass proceedings, verbal objections were raised by petitioners to certain
election returns based on the grounds mentioned in Sections 233 (lost or destroyed election
returns), 234 (material defects in the election returns), 235 (tampered or falsified election returns)
and 236 (discrepancies in election returns), in relation to the preparation, transmission, receipt and
custody of the election returns. The objections were aimed at excluding the election returns from
the canvass.
Petitioners submitted to the BOARD their objections in written form within twenty four (24) hours
from the time the verbal objections were made as required in Section 245 of the Omnibus Election
Code. They also submitted written protests before the BOARD, which reiterated their objections to
certain election retunns.
The BOARD, in several Resolutions dated 29, 30 and 31 January 1988, denied the objections and
protests of petitioners mainly on the ground that the alleged defects of the election returns were
merely formal and did not affect their authenticy, validity and genuineness as to warrant their
exclusion from the canvass. Petitioners filed with the BOARD notices of appeal from its rulings.
On 30 January 1988, petitioners filed with the COMELEC a "Petition Contesting the Legality of the
Proceedings of the Board of Canvassers with Motion to Restrain Canvassing and Proclamation
and/or Suspend the Effects of any Proclamation," docketed as SPC No. 88-453 and assigned to the
First Division (Suspension of Proclamation Case). The Petition sought the suspension of the
canvassing and proclamation of any winning candidate.
On 31 January 1988 the BOARD issued the "Certification of Canvass of Votes and Proclamation of
the Winning Candidates for Provincial Offices, January 18, 1988 Elections," proclaiming respondents
Evaristo C. Singson as the duly elected Governor of Ilocos Sur, Mariano M. Tajon as Vice Governor
and the others as Members of the Sangguniang Panlalawigan of the province.
On 1 February 1988, petitioners filed with the COMELEC an "Appeal," docketed as SPC No. 88-490
and assigned to the Second Division, wherein petitioners prayed that the Resolutions of the BOARD
denying their protests be set aside. On the same date, petitioners also filed an "Appeal
Memorandum," docketed as SPC No. 88-506, which was assigned likewise to the Second Division.
The "Appeal Memorandum" was an appeal from the rulings of the BOARD denying petitioners'
written objections to the inclusion in the canvass of certain election returns. Petitioners prayed for
their exclusion from the canvass. An "Addendum to Appeal Memorandum" was filed by petitioners
on 8 February 1985 appealing the other rulings of the BOARD denying their objections.
On 9 February l988, petitioners followed up their Petition on the Suspension of Proclamation Case
(SPC No. 88-453) and sought the suspension of the effects of the proclamation of private
respondents as well as the annulment of the proclamation, or in the alternative, the declaration of a
failure of elections in Ilocos Sur.
On 23 March 1985, the First Division of the COMELEC issued a Minute Resolution dismissing the
Suspension of Proclamation Case (SPC No. 88-453) filed on 30 January 1988, on the ground that the
winning candidates had already been proclaimed on "21 January 1988" (should be 31 January
1988). It advised the petitioners to file instead an election protest with the COMELEC if desired (p.
104, Rollo).
Petitioners appealed the dismissal of the Petition alleging error in that the proclamation was made
on 31 January 1988, not 21 January, as stated in the First Division Resolution. Petitioners also
alleged that the First Division failed to consider the other petition filed by them in the same SPC No.
88-453, dated 9 February 1988, thereby effectively dismissing said petition without notice and
hearing in violation of Sections 242 and 246 of the Omnibus Election Code.
On 5 June 1989, the Second Division of the COMELEC promulgated a decision in SPC Nos. 88-490
and 88-506 (Rollo, p. 124) dismissing petitioners' "Appeal" and "Appeal Memorandum" on the
ground that no substantial objection had been raised against the election returns in accordance with
Sections 233-236 and Section 245 of the Omnibus Election Code.
On 10 June 1989, petitioners appealed the Decision of the Second Division (in SPC Nos. 88-490 and
88-506) to the COMELEC en banc. On 6 September 1990, that body issued a per curiam Resolution,
in SPC Nos. 88-453, 58-490, and 88-506, dismissing petitioners' appeals from the rulings rendered
by its First and Second Divisions on the ground that no genuine pre-proclamation controversies had
been raised by petitioners.
That dismissal prompted petitioners to avail of these Certiorari proceedings.
Can the COMELEC be faulted with grave abuse of discretion in upholding the dismissal of the
Suspension of Proclamation Case (SPC No. 88-453) and of petittoners' "Appeals" (SPC Nos. 88-490
and 88-506) ordered by its First and Second Divisions respectively?
53
The Court thinks not. The Suspension of Proclamation Case, filed on 30 January, 1988 (SPC No. 88-
453), was dismissed by the First Division considering "that the winning candidates have been
proclaimed on January 21, 1988" (Rollo, p. 104). Petitioners claim that the petition was dismissed
because it appeared that the petition was filed after the proclamation of private respondent on "21
January 1988, " as stated in the Resolution (Rollo, p. 14), whereas the proclamation was actually
made on 31 January 1988 or after they had filed, on 30 January 1988, their Suspension of
Proclamation Case (SPC No. 88-453).
Petitioners further contend that the proclamation made on 31 January 1988 is void ab initio
because it was made by the BOARD without previous authority from the COMELEC in violation of
Section 245 of the Omnibus Election Code, which provides:
xxx xxx xxx
The board of canvassers shall not proclaim any candidate as winner unless authorized by the
Commission after the latter has ruled on the objections brought to it on appeal by the losing party
and any proclamation made in violation hereof shall be void ab initio, unless the contested returns
will not adversely affect the results of the election.
Petitioners' aforesaid submissions lack substance. The date "21 January 1988" appearing in the
Resolution of the COMELEC First Division is plainly a typographical error. The correct date is 31
January 1988. But even if so, the mere filing of the Suspension of Proclamation Case (SPC No. 88-
453) on 30 January 1988 meeting to restrain the canvassing and proclamation of the winning
candidates does not automatically divest the BOARD of the authority to make a proclamation.
Neither does it ipso facto annul a proclamation which may have been already made.
In this regard, petitioners' reliance on Section 245 to support their claim of nullity of the
proclamation made by the BOARD for lack of authorization from the COMELEC is misplaced. That
provision applies to a situation where a party, aggrieved by the rulings of the Board of Canvassers
rejecting the objections to election returns raised by him, appeals the rulings to the COMELEC. In
which case, no proclamation can be made by the Board of Canvassers without authorization of the
COMELEC until after the latter has ruled on the objections brought to it on appeal by the losing
party.
In the case at bar, when the proclamation was made by the BOARD on 31 January 1988, there was
no pending appeal filed by petitioners before the COMELEC from the rulings made by the BOARD on
their objections to election returns rendered on 29, 30 and 31, 1988 (Annexes B to B-17, Petition).
The "Appeal" and "Appeal Memorandum," docketed as SPC Nos. 88-490 and 88-506, respectively,
which appealed to the COMELEC the rulings of the BOARD denying petitioners' objections to
election returns were filed by them only on 1 February 1988, after the proclamation of private
respondents had been made by the BOARD on 31 January 1988. What was filed by petitioners on 30
January 1988, before the proclamation, was a petition seeking merely to restrain the canvass and
proclamation or suspend the effects of any proclamation. This petition, however, is clearly not the
appeal referred to in Section 245 that will operate to bar the BOARD from making any proclamation
of the winning candidates without authority from the COMELEC after the latter has ruled on the
objections elevated to it on appeal. Consequently, there was no legal impediment to the
proclamation of private respondents by the BOARD on 31 January 1988.
In dismissing the Suspension of Proclamation Case (SPC No. 88-453), the First Division also
disposed of the other petition filed in the same case by petitioners on 9 February 1988, praying that
the proclamation made by the BOARD be declared null and void ab initio. As pointed out earlier,
however, the proclamation was validly done by the BOARD since this is not an instance calling for
the application of Section 245. Moreover, it is well settled that after the proclamation of the winning
candidates, a pre-proclamation controversy ceases and is no longer viable at this point and should
be dismissed, the proper remedy of the aggrieved party being an election protest.
Notably, the proclamation was made after completion of the canvass of the election returns by the
BOARD, which has the legal obligation, after said canvass, to proclaim the elected candidates, that
duty being ministerial after
the mechanical or mathematical act of counting the votes cast has been accomplished (Casimiro v.
Commission on Elections, L-84462-63, 29 March 1989, 171 SCRA 468). No grave abuse of discretion
can be attributed to the COMELEC, therefore, in dismissing the petitions in the Suspension of
Proclamation Case (SPC No. 8-453).
Petitioners also fault the COMELEC for dismissing the "Appeal" and "Appeal Memorandum" filed by
them in SPC Nos. 88-490 and 88-506, respectively, on 1 February 1988 (or one [1] day after the
proclamation). These pleadings appealed the rulings of the BOARD denying their objections to
election returns. Petitioners anchored their objections to the election returns on the ground that
they were fraudulent. They aIlege that there were five hundred fifty two (552) election returns
coming from various precincts of the province which did not contain the signatures of their
watchers. Petitioners claim that the absence of these signatures casts doubts on the authenticity and
integrity of the election returns. Thus, petitioners point to instances where the tallies in the election
returns were not closed by thumbmarks and signatures; lack of or unauthorized signatures in the
envelopes; tampering of paper seals; erasures or tampering of figures, numbers and letters;
irregular receipt of ballot boxes and other alleged irregularities in the preparation and delivery of
election returns (Rollo, pp. 19-20).
The objections were rejected by the BOARD in several Resolutions dated 29, 30 and 31 January
1988 (Rollo, pp. 57-71) because the grounds raised for the exclusion of the election returns were
merely formal defects that did not affect the authenticity and genuineness of the election returns. On
appeal to the COMELEC, the rulings of the BOARD were sustained.
Again, the Court finds no grave abuse of discretion in the dismissal of the Appeals (SPC Nos. 88-490
and 88-506). While petitioners assailed the authenticity of the contested election returns, the
records do not indicate that they presented any proof before the BOARD to support their allegations
that the election returns were tampered with and fraudulent. Neither was there any indication in
the appeals filed by petitioners before the COMELEC pointing to specific evidence that would
reasonably support their allegations that the election returns objected to were not authentic. It is
not enough that an election return is objected to. A mere allegation by a party that an election return
is spurious does not automatically operate to exclude the same in the canvassing.
The grounds raised by petitioners for the exclusion of the election returns from the canvassing, as
stated in their "Appeal Memorandum" before the COMELEC (Rollo, p. 92), refer to the failure to
close the entries with the signatures of the election inspectors; lack of inner and outer paper seals;
canvassing by the BOARD of copies not intended for it; lack of time and date of receipt by the
BOARD of election returns; lack of signatures of petitioners' watchers; and lack of authority of the
person receiving the election returns.
While the aforesaid grounds may, indeed, involve a violation of the rules governing the preparation
and delivery of election returns for canvassing, they do not necessarily affect the authenticity and
genuineness of the subject election returns as to warrant their exclusion from the canvassing. The
grounds for objection to the election returns made by petitioners are clearly defects in form
insufficient to support a conclusion that the election returns were tampered with or spurious. "A
conclusion that an election return is obviously manufactured or false and consequently should be
disregarded in the canvass must be approached with extreme caution and only upon the most
convincing proof" (Estrada v. Navarro, L-28340, 29 December 1967, 21 SCRA 1514). It is only when
the election returns are palpably irregular that they may be rejected (Mutuc v. Commission on
Elections, L-28517, 21 February 1968, 22 SCRA 662). On the basis of formal defects alone, such
palpable irregularity can not be said to have been established herein.
Petitioners, however, suggest that the lack of the signatures of their watchers in the contested
election returns render their authenticity questionable. Such a lack, however, is not enough to
54
impugn the genuineness of the returns. Section 12 of Rep. Act No. 6646 (Electoral Reforms Law of
1988) provides:

xxx xxx xxx

In addition to their rights and duties under Section 179 of Batas Fambansa Blg. 881, the two
principal watchers representing the ruling coalition and the dominant opposition coalition in a
precinct, shall, if available, affix their signature and thumbmarks on the election returns for that
precinct. If both or either of them is not available, unwilling or should they refuse to do so, any
watcher present, preferably with political affiliation or alignment compatible with that of the absent
or unwilling watcher, may be required by the board of election inspectors to do so. (Emphasis
supplied)

The foregoing provision negates the contention that an election return is spurious owing to the
failure of a watcher to affix his signature. Under this provision, a watcher signs the election returns
only if he is available. If he is not, or is unwilling, or refuses to sign them, any other watcher present
may be required to sign. In this case, the signature of any watcher present is not even a mandatory
requirement as can be gleaned from the text of the provision. In other words, while the signing of an
election return by a watcher is a measure intended to discourage the preparation of falsified
returns, the absence of said signature does not give rise to a presumption that the election returns
are manufactured or spurious and should consequently be excluded in the canvass. Otherwise, a
party's watcher can easily cause the nullification of election returns reflecting results unfavorable to
the candidate he is representing by simply refusing to sign the returns.

In fine, the BOARD correctly included the contested election returns in the canvass as they did not
suffer from any serious infirmities affecting their integrity. It is the "ministerial function of a board
of canvassers to count the results as they appear in the returns which on their face does not reveal
any irregularities nor falsities" (Demafiles v. Commission on Elections, L-28396, 29 December 1967,
21 SCRA 1462).

Petitioners also assail the dismissal of their petitions by the COMELEC without hearing. Suffice it to
cite the ruling in Ilarde v. Commission on Elections, (L-31446, 23 January 1970, 31 SCRA 72) that
"canvass proceedings are administrative and summary in nature, and a strong prima facie case
backed up by a specific offer of the evidence and indication of its nature and importance has to be
made out to warrant the reception of evidence aliunde and the presentation of witnesses and the
delays necessarily entailed thereby. Otherwise, the paralyzation of canvassing and proclamation
leading to a vacuum in an important office could easily be brought about." In their case before us,
the petitions and appeals filed by petitioners in their pre-proclamation cases before the COMELEC
did not even point prima facie to a tampering of election returns, nor to returns with patent
erasures and superimpositions, but merely raised objections based on defects that are, at best,
formal in nature. The COMELEC, therefore, did not gravely abuse its discretion in concluding that in
the absence of genuine pre-proclamation issues a full-blown hearing was rendered unnecessary.

WHEREFORE, the writ of certiorari prayed for is DENIED for lack of merit.

SO ORDERED.

55
[G.R. No. 122391. August 7, 1997]
FELIPE L. LAODENIO, petitioner, vs. COMMISSION ON ELECTIONS, THE MUNICIPAL BOARD OF
CANVASSERS OF MAPANAS, NORTHERN SAMAR and ROGELIO LONGCOP, respondents.
DECISION
BELLOSILLO, J.:
FELIPE L. LAODENIO, petitioner, and ROGELIO LONGCOP, respondent, were candidates for the
position of Mayor of Mapanas, Northern Samar, during the 8 May 1995 elections. On 15 May 1995
Longcop was proclaimed winner by the Municipal Board of Canvassers.
On 20 May 1995 Laodenio filed a petition with respondent Commission on Elections (COMELEC) to
annul the proclamation of Longcop and to declare illegal the constitution of the Municipal Board of
Canvassers as well as its proceedings. He alleged in his petition that -
During the canvass, respondent board of canvassers adjourned repeatedly starting May 9, 1995,
after the poll clerk of precinct no. 7-A testified before the Board that the election returns for the said
precinct was tampered with and falsified to increase the total votes cast in favor of respondent
Longcop from 88 to 188.
On 10 May 1995, the Board resumed its canvass but it adjourned again at past 5:00 o'clock in the
afternoon as it has (sic) not yet decided on what to do with the election returns for precinct (sic)
nos. 7-A and 5-A. When it adjourned on May 10, 1995 it announced that it will (sic) only resume
canvass on 12 May 1995 at the capital town of Catarman, Northern Samar. The Board however
reconvened on 12 May 1995 in Mapanas and proceeded with the canvass. The respondent board
thereafter adjourned and surreptitiously reconvened on 15 May 1995, with a new chairman who
was allegedly appointed by the Provincial Election Supervisor.
When the election returns from Precinct (sic) Nos. 5-A and 7-A were (sic) about to be canvassed,
petitioner manifested his oral objections thereto and likewise submitted his written objections on
the same day, 12 May 1995.
The respondent board however did not give the petitioner opportunity to file an appeal (from?) its
decision to proceed with the canvass of the election returns from precinct (sic) nos. 7-A and 5-A.
The respondent board of canvassers was informed by Elie Acquiat (poll clerk) that the election
returns from precinct no. 7-A was tampered, and the votes for the respondent Longcop was
increased from 88 to 188. Similarly, the BEI Chairman of Precinct 5-A Arnulfo Nueva and the third
member Dolor Rowela informed the board of canvassers that the election returns from precinct 5-A
was tampered by increasing the votes for the respondent Longcop from 117 to 173. With the
testimony of those witnesses, the board should have proceeded in accordance with Section 235 of
the Omnibus Election Code but the board disregarded the clear mandate of the law and closed its
eyes to the overwhelming evidence of falsification and lent its hand to the consummation by
canvassing the falsified election returns.[1]
On 25 May 1995 petitioner filed an election protest before the Regional Trial Court.
On 28 August 1995 respondent COMELEC dismissed the petition of Laodenio for lack of merit.[2] It
was of the view that the adjournments were justified and were not improperly prolonged as claimed
by petitioner; he was in fact deemed to have acquiesced to the new composition of the Municipal
Board of Canvassers when he actively participated in the proceedings therein; there was no
showing that he manifested on time his intent to appeal the rulings of the Board, neither was there
any proof that he appealed therefrom; and, on the authority of Padilla v. Commission on Elections[3]
the pre-proclamation controversy was no longer viable since Longcop had already been proclaimed
and had assumed office. On 23 October 1995 the motion for reconsideration was denied.[4]
Petitioner raises these issues: (1) The direct filing of a petition with COMELEC to contest the illegal
conduct of the Board of Canvassers is allowed under Rule 27, Sec. 4, of the COMELEC Rules of
Procedure; and, (2) The pre-proclamation controversy was not rendered moot and academic by the
filing of an ordinary election protest.
Laodenio claims that a petition may be filed directly with COMELEC pursuant to Rule 27, Sec. 4, of
the COMELEC Rules of Procedure when, as in this case, the issue involves the illegal composition of
the Board of Canvassers or the canvassing was a ceremony that was pre-determined and
manipulated to result in nothing but a sham proceeding and there was disregard of manifest
irregularities in the questioned returns. In particular, petitioner argues that the Board was illegally
constituted on 15 May 1995 since the new Chairman was appointed merely by the Provincial
Election Supervisor and not by respondent COMELEC, in clear contravention of Sec. 10 of COMELEC
Resolution No. 2756. Also, the Board proceeded illegally when it canvassed tampered election
returns unmindful of Sec. 235 of the Omnibus Election Code which refers to election returns that
appear to be tampered with or falsified.
This argument is devoid of merit. Apparently, it emanates from a misapprehension of the
applicability of certain election laws. Sec. 17 of R.A. 7166[5] provides -
Sec. 17. Pre-proclamation Controversies: How Commenced. - Questions affecting the composition or
proceedings of the board of canvassers may be initiated in the board or directly with the
Commission. However, matters raised under Sections 233, 234, 235 and 236 of the Omnibus
Election Code in relation to the preparation, transmission, receipt, custody and appreciation of the
election returns, and the certificates of canvass shall be brought in the first instance before the
board of canvassers only.
As evidenced by the Minutes of the Board, petitioner indeed raised the matter of illegal composition
of the Board at the first instance before said Board when his counsel questioned the authority of the
new Chairman. However, after seeing the notice of the Provincial Election Supervisor, his counsel
agreed to the opening of the canvassing. In fact, petitioner thereafter actively participated in the
proceedings. Consequently, COMELEC concluded that -
x x x x Such acts could be justifiably taken as acquiescence to the new composition of the Board.
Otherwise, had he felt aggrieved thereby, he should have elevated the issue on appeal to the
Commission x x x x [6]
Particularly, Sec. 19 of R.A. 7166 provides -
Sec. 19. Contested Composition or Proceedings of the Board; Period to Appeal; Decision by the
Commission. - Parties adversely affected by a ruling of the board of canvassers on questions
affecting the composition or proceedings of the board may appeal the matter to the Commission
within three (3) days from a ruling thereon x x x x
Although Sec. 17 of R.A. 7166 and Sec. 5, par. (a)(1) (not Sec. 4 as erroneously cited by petitioner), of
Rule 27 of the COMELEC Rules of Procedure also allow filing of a petition directly with respondent
COMELEC when the issue involves the illegal composition of the Board, Sec. 5, par. (b), of the same
Rule requires that it must be filed immediately when the Board begins to act as such, or at the time
of the appointment of the member whose capacity to sit as such is objected to if it comes after the
canvassing of the Board, or immediately at the point where the proceedings are or begin to be
illegal. In the present case, the petition was filed five (5) days after respondent Longcop had been
proclaimed by the Board. At any rate, the real issue appears to be - not what it appears to petitioner
- whether he can still dispute the composition of the Board after having actively participated in the
proceedings therein. In this regard, we sustain respondent COMELEC.
56

Section 20 of R.A. 7166 (not Sec. 235 of the Omnibus Election Code as mistakenly invoked by
petitioner) outlines the procedure in the disposition of contested election returns -
Sec. 20. Procedure in Disposition of Contested Election Returns. - (a) Any candidate, political party
or coalition of political parties contesting the inclusion or exclusion in the canvass of any election
returns on any of the grounds authorized under Article XX or Sections 234, 235 and 236 of Article
XIX of the Omnibus Election Code shall submit their oral objection to the chairman of the board of
canvassers at the time the questioned return is presented for inclusion in the canvass. Such
objection shall be recorded in the minutes of the canvass.
xxxx
(c) Simultaneous with the oral objection, the objecting party shall also enter his objection in the
form for written objections to be prescribed by the Commission. Within twenty-four (24) hours
from and after the presentation of such an objection, the objecting party shall submit the evidence in
support of the objection x x x x The board shall not entertain any objection or opposition unless
reduced to writing in the prescribed forms x x x x
(d) Upon receipt of the evidence, the board shall take up the contested returns, consider the written
objections thereto and opposition, if any, and summarily and immediately rule thereon. The board
shall enter its ruling on the prescribed form and authenticate the same by the signatures of its
members.
(e) Any party adversely affected by the ruling of the board shall immediately inform the board if he
intends to appeal said ruling. The board shall enter said information in the minutes of the canvass x
xxx
(f) After all the uncontested returns have been canvassed and the contested returns ruled upon by
it, the board shall suspend the canvass. Within forty-eight (48) hours therefrom, any party adversely
affected by the ruling may file with the board a written and verified notice of appeal; and within an
unextendible period of five (5) days thereafter, an appeal may be taken to the Commission.
The Minutes of the Board revealed the following facts -
May 10, 1995 - The Board resumes at 8:00 a.m. Precinct 7-A, Jubasan, was received by the Board.
While the Board was about to open said returns, a written protest was filed by Laodenio. The
protest was for two precincts; precinct 7-A and precinct 5-A; informing the board to stop counting
on the ground that the returns are (sic) tampered. Although the protest was not in proper form, the
Board deferred the canvass of said return to give protestant enough time to present his evidence.
After a thorough discussion of the two legal counsel, the members of the board of canvassers denied
the objections of Laodenio on the ground that an oral objection should simultaneously be filed with
a written objection in a proper form. Majority of the board voted for the inclusion of the returns
from precinct 7-A on the ground that the protest was not in proper form. The parties were notified
of the ruling of the Board in open session. The Chairman of the Board start(ed?) to open the
envelope of precinct no. 7-A and the same was examined by counsel of both parties.[7]
The Board, upon examination of the returns from precinct 7-A, found it to be inside an envelope
with serial no. 073983 signed by all the members of the Board and with paper seal no. 516478
likewise signed by all of them. The returns bore the respective signatures and thumbmarks of the
poll clerk, the third member and all six watchers. The Minutes disclosed further -
May 12, 1995, at 2:00 p.m., the members of the Board resume to canvass the election returns for
precinct 7-A. It was supposed to canvass last May 10, 1995, but was deferred because the Board
waited for protestant Laodenio to file his appeal from our ruling on May 10, 1995. Since there was
no appeal, the Board proceeded with the canvass of precinct 7-A.
At 2:37 p.m., Laodenio filed his protest in proper form but the board denied the protest on the
ground that it was filed out of time. The protest was filed after the canvass of the election returns
was completed.[8]
With regard to the action of the Board on the election returns from precinct 5-A, the Minutes
narrated as follows -
Precinct 5-A. - An envelope with serial no. 073973 signed by all the members of the board with
paper seal. The envelope is in good condition. The election returns was properly signed by all
members of the board with their thumbmarks and the watchers have also their signatures and
thumbmarks in the corresponding spaces. An oral protest was filed by petitioner. At 4:49 p.m., a
protest in prescribed form was filed. At 8:00 p.m., the Board of Canvassers voted as follows: The
chairman for exclusion and the two members for inclusion because on its face the election returns
does not have any sign of tampering and that when the election returns copy for the Municipal Trial
Court was opened to compare with the contested returns the entries are (sic) the same. The parties
were informed of the ruling in open session. After the ruling, the protestant did not indicate his
intention to appeal.[9]
Clearly, the proceedings of the Board were in accordance with law.
Petitioner argues next that the election protest was filed ad cautelam or as a precautionary measure
to preserve his rights which did not thereby oust respondent COMELEC of jurisdiction. He invokes
Samad v. COMELEC[10] where it was held that, as a general rule, the filing of an election protest or a
petition for quo warranto precludes the subsequent filing of a pre-proclamation controversy or
amounts to the abandonment of one earlier filed, thus depriving the COMELEC of the authority to
inquire into and pass upon the title of the protestee or the validity of his proclamation. The reason is
that once the competent tribunal has acquired jurisdiction of an election protest or a petition for
quo warranto all questions relative thereto will have to be decided in the case itself and not in
another proceeding, otherwise, there will be confusion and conflict of authority. Conformably
therewith, we have ruled in a number of cases that after a proclamation has been made a pre-
proclamation case before the COMELEC is, logically, no longer viable.[11] The rule admits of
exceptions, however, as where: (a) the board of canvassers was improperly constituted; (b) quo
warranto was not the proper remedy; (c) what was filed was not really a petition for quo warranto
or an election protest but a petition to annul a proclamation; (d) the filing of a quo warranto petition
or an election protest was expressly made without prejudice to the pre-proclamation controversy or
was made ad cautelam; and, (e) the proclamation was null and void.
Petitioner relies on the fourth exception and invokes Agbayani v. Commission on Elections[12]
where the Court found that petitioner's real intention in filing the election protest ad cautelam was
to insure the preservation of all the ballot boxes used in the local elections. Thus -
Under COMELEC Res. No. 2035 dated September 7, 1988, all such ballot boxes would be made
available for the then forthcoming barangay elections as long as they were not involved in any pre-
proclamation controversy, election protest or official investigation. As the above-mentioned cases
involved only nine precincts, it was only prudent for the petitioner to file his protest ad cautelam in
case the pre-proclamation controversy was ultimately dismissed and it becomes necessary for him
to activate his protest. The protest would involve all the precincts in the province. If he had not
taken this precaution, all the other ballot boxes would have been emptied and their contents would
have been burned and forever lost.
But, a distinction must be drawn between Agbayani and the instant case. Petitioner here simply
alleges that the election protest was filed as a precautionary measure to preserve his rights without
bothering to elaborate thereon. There is no reason at all for the exception to apply in the case before
57
us. Rather, COMELEC's reliance on Padilla is the more appropriate remedy.[13] Respondent
Longcop having been proclaimed and having assumed office -

x x x x pre-proclamation controversy is no longer viable at this point of time and should be

dismissed x x x x Pre-proclamation proceedings are summary in nature. There was no full-dress
hearing essential to the task of adjudication with respect to the serious charges of 'irregularities,'
etc., made by petitioner. An election contest would be the most appropriate remedy. Instead of the
submission of mere affidavits, the parties would be able to present witnesses subject to the right of
confrontation, etc. Recourse to such remedy would settle the matters in controversy conclusively
and once and for all.

In the absence of any jurisdictional infirmity or error of law, the conclusion reached by respondent
COMELEC on a matter that falls within its competence and primary jurisdiction is entitled to utmost
respect.[14]

WHEREFORE, the petition is DISMISSED. The Resolution of respondent Commission on Elections of

28 August 1995 dismissing the pre-proclamation controversy as well as its Resolution denying
reconsideration thereof is AFFIRMED.

SO ORDERED.

58
[A.M. No. MTJ-00-1250. February 28, 2001]
RIMEO S. GUSTILO, complainant, vs. HON. RICARDO S. REAL, SR., Presiding Judge, 2nd
Municipal Circuit Trial Court of Victorias- Manapla, Negros Occidental, respondent.
RESOLUTION
QUISUMBING, J.:
In a verified complaint[1] dated June 15, 1997, Rimeo S. Gustilo charged respondent Judge Ricardo
S. Real, Sr., of the Municipal Circuit Trial Court of Victorias-Manapla, Negros Occidental with gross
misconduct, gross incompetence, gross ignorance of the law, and violation of the Anti-Graft and
Corrupt Practices Act relative to Civil Case No. 703-M entitled Weddy C. Libo-on v. Rimeo S. Gustilo,
et al. for recounting of ballots of Precinct Nos. 27 and 27-A, Barangay Punta Mesa, Manapla, Negros
Occidental.
Complainant avers that he was a candidate for punong barangay of Barangay Punta Mesa, Manapla,
Negros Occidental in the May 12, 1997 elections. His lone opponent was Weddy C. Libo-on, then the
incumbent punong barangay and the representative of the Association of Barangay Captains (ABC)
to the Sangguniang Bayan of Manapla and the Sangguniang Panlalawigan of Negros Occidental. Both
complainant and Libo-on garnered eight hundred nineteen (819) votes during the elections,
resulting in a tie. The breaking of the tie by the Board of Canvassers was in complainants favor and
he was proclaimed duly elected punong barangay of Punta Mesa, Manapla.[2]
On May 20, 1997, his opponent filed an election protest case, docketed as Civil Case No. 703-M,
before the MCTC of Victorias-Manapla, Negros Occidental. Libo-on sought the recounting of ballots
in two precincts, preliminary prohibitory injunction, and damages.
On May 21, 1997, respondent ordered the issuance of summons to the parties and set the hearing on
June 6, 1997.[3]
On May 27, 1997, however, Libo-on filed a motion to advance the hearing to May 29 and 30, 1997.
The next day, respondent granted Libo-ons motion. The hearing was advanced to May 29 and 30,
1997 cancelling the hearing for June 6, 1997.[4] Complainant avers that he was not furnished a copy
of this Order dated May 28, 1997.
On May 29, 1997, respondent judge issued a temporary restraining order (TRO) and annulled the
proclamation of complainant as the duly elected punong barangay of Punta Mesa, Manapla.[5]
Complainant declares that no copy of this Order dated May 29, 1997 was served on him. That same
day, however, he was able to secure copies of the orders of respondent dated May 28 and May 29,
1997 from the COMELEC Registrar of Manapla, Negros Occidental and the Department of Interior
and Local Government (DILG). Moreover, it was only in the afternoon of May 29, 1997 that
complainant received a copy of Libo-ons petition in Civil Case No. 703-M and respondents Order
dated May 21, 1997.
On May 30, 1997, complainant took his oath of office as punong barangay.[6] That same day, he also
filed a petition for certiorari before the Regional Trial Court of Silay City, Negros Occidental, Branch
69 docketed as Special Civil Action No. 1936-69.
On June 5, 1997, the RTC lifted the TRO issued by respondent and declared as null and void the
order nullifying complainants proclamation as duly elected punong barangay.[7]
Believing that respondent could not decide Civil Case No. 703-M impartially, complainant moved for
his inhibition.
On June 11, 1997, respondent denied complainants motion for inhibition and after hearing Libo-ons
motion for permanent injunction, issued a second TRO to maintain the status quo between the
contending parties.[8]
Complainant argues that by issuing the second TRO, respondent reversed the order of the RTC of
Silay City dated June 5, 1997. He also claims that by preventing him from assuming office, he was
excluded by the DILG from participating in the election of the Liga ng Mga Barangay on June 14,
1997.
In his Comment, respondent denied the allegations. He claimed that when Libo-on filed his motion
to advance the hearing of the prayer for injunction on May 27, 1997 in Civil Case No. 703-M,
complainant was served a copy by registered mail as shown by the registry receipts attached to said
motion. Considering the urgency of the matter and since there was substantial compliance with due
process, he issued the Order of May 28, 1997 which cancelled the hearing set for June 6, 1997 and
advanced it to May 29 and 30, 1997.
Respondent claims that on May 29, 1997, Libo-on and his counsel appeared but complainant did
not, despite due notice. The hearing then proceeded, with Libo-on presenting his evidence. As a
result, he issued the TRO prayed for and annulled complainants proclamation. Respondent admits
that the Order of May 29, 1997, particularly the annulment of complainants proclamation, was
outside the jurisdiction of his court. But since the COMELEC ignored Libo-ons petition for correction
of erroneous tabulation and Libo-on had no other remedy under the law, he was constrained to
annul complainants proclamation, which from the very beginning was illegal. He justified his action
by our rulings in Bince, Jr. v. COMELEC, 312 Phil. 316 (1995) and Tatlonghari v. COMELEC, 199
SCRA 849 (1991), which held that a faulty tabulation cannot be the basis of a valid proclamation.
Respondent also faults the RTC of Silay City for issuing the Order dated June 5, 1997, which lifted
the TRO he issued and declared void his nullification of complainants proclamation. Respondent
contends that complainant should first have exhausted all remedies in his court before resorting to
the special civil action for certiorari with the RTC. The latter court, in turn, should have dismissed
the action for certiorari for failure to exhaust judicial remedies.
With respect to his Order of June 11, 1997, respondent explains that it was never meant to reverse
the Order of the RTC of Silay City dated June 5, 1997. He points out that both parties in Civil Case No.
703-M were present during the hearing after due notice. After receiving their evidence, he found
that unless a TRO was issued, Libo-on would suffer a grave injustice and irreparable injury. He
submits that absent fraud, dishonesty, or corruption, his acts, even if erroneous, are not the subject
of disciplinary action.
In its evaluation and recommendation report dated November 29, 1999, the Office of the Court
Administrator (OCA) found that respondents errors were not honest mistakes in the performance of
his duties. Rather, his actions showed a bias in favor of Libo-on and evinced a pattern to prevent the
complainant from assuming office as the duly elected punong barangay despite his having been
proclaimed as such by the Board of Canvassers. The OCA recommends that respondent be fined
P20,000.00 and warned that a repetition of similar acts in the future will be dealt with more
severely.
Supreme Court Administrative Circular No. 20-95 provides:
2. The application for a TRO shall be acted upon only after all parties are heard in a summary
hearing conducted within twenty-four (24) hours after the records are transmitted to the branch
selected by raffle. The records shall be transmitted immediately after raffle (Emphasis supplied).
xxx
59
4. With the exception of the provisions which necessarily involve multiple-sala stations, these rules
shall apply to single-sala stations especially with regard to immediate notice to all parties of all
applications for TRO.
The foregoing clearly show that whenever an application for a TRO is filed, the court may act on the
application only after all parties have been notified and heard in a summary hearing. In other words,
a summary hearing may not be dispensed with.[9] In the instant case, respondent admits that he
issued the injunctive writ sought on May 29, 1997 after receiving the applicants evidence ex parte.
His failure to abide by Administrative Circular No. 20-95 in issuing the first TRO is grave abuse of
authority, misconduct, and conduct prejudicial to the proper administration of justice.
Worse, he compounded the infraction by annulling complainants proclamation as the duly elected
punong barangay of Punta Mesa, Manapla and prohibiting him from assuming office. Respondent
admits that his court was not vested with the power or jurisdiction to annul the proclamation, but
seeks to justify his action on the ground that the proclamation was void ab initio. In so doing,
respondent wantonly usurped a power exclusively vested by law in the COMELEC.[10] A judge is
expected to know the jurisdictional boundaries of courts and quasi-judicial bodies like the
COMELEC as mapped out by the Constitution and statutes and to act only within said limits. A judge
who wantonly arrogates unto himself the authority and power vested in other agencies not only
acts in oppressive disregard of the basic requirements of due process, but also creates chaos and
contributes to confusion in the administration of justice. Respondent, in transgressing the
jurisdictional demarcation lines between his court and the COMELEC, clearly failed to realize the
position that his court occupies in the interrelation and operation of the countrys justice system. He
displayed a marked ignorance of basic laws and principles. Rule 3.01 of the Code of Judicial Conduct
provides that a judge shall be faithful to the law and maintain professional competence. By annulling
complainants proclamation as the duly elected punong barangay, despite being aware of the fact
that his court had no power to do so, not only is respondent guilty of grave abuse of authority, he
also manifests unfaithfulness to a basic legal rule as well as injudicious conduct.
In a similar case, a judge was fined P5,000.00 for failure to observe the requirements of
Administrative Circular No. 20-95 when he issued a TRO enjoining a duly proclaimed barangay
captain from participating in the elections of officers of the ABC of Taft, Eastern Samar.[13] Note,
however, that in the instant case, the respondents infractions are not limited to the mere issuance of
a restraining order without conducting the summary conference required by Administrative
Circular No. 20-95. He also annulled the proclamation of the complainant knowing very well that he
had no such authority. When his first restraining order was set aside and nullification of
complainants proclamation was declared null and void by the RTC of Silay City, a superior court, he
again issued a TRO, which showed his partiality to complainants political rival. Respondent is thus
guilty of violating Rules 3.01 and 3.02 of the Code of Judicial Conduct; knowingly rendering an
unjust order; gross ignorance of the law or procedure; as well as bias and partiality. All of the
foregoing are serious charges under Rule 140, Section 3 of the Rules of Court. We agree with the
sanction recommended by the OCA, finding it to be in accord with Rule 140, Section 10 (A) of the
Rules of Court.
WHEREFORE, this COURT finds respondent judge GUILTY of violating Rules 3.01 and 3.02 of the
Code of Judicial Conduct, knowingly rendering an unjust order, gross ignorance of the law and
procedure, and bias and partiality. Accordingly, a fine of Twenty Thousand Pesos (P20,000.00) is
hereby imposed upon respondent with a STERN WARNING that a repetition of the same or similar
acts will be dealt with more severely.
SO ORDERED.

Moreover, in willfully nullifying complainants proclamation despite his courts want of authority,
respondent knowingly issued an unjust order.

Note that the RTC of Silay City corrected respondents errors by declaring null and void his Order
dated May 29, 1997. Nonetheless, he compounded his previous errors of judgment by proceeding to
hear Libo-ons motion for permanent injunction and issuing a second TRO on June 11, 1997 on the
ground that extreme urgency and grave injustice and irreparable injury will arise if no injunctive
remedy were granted. Respondent insists that his act did not reverse the Order of the RTC in Special
Civil Action No. 1936-69, since the second TRO he issued satisfied the notice and hearing
requirements of Circular No. 20-95.

Before an injunctive writ can be issued, it is essential that the following requisites be present: (1)
there must be a right in esse or the existence of a right to be protected; and (2) the act against which
injunction to be directed is a violation of such right.[11] The onus probandi is on movant to show
that there exists a right to be protected, which is directly threatened by the act sought to be
enjoined. Further, there must be a showing that the invasion of the right is material and substantial
and that there is an urgent and paramount necessity for the writ to prevent a serious damage.[12] In
this case, complainant had been duly proclaimed as the winning candidate for punong barangay. He
had taken his oath of office. Unless his election was annulled, he was entitled to all the rights of said
office. We do not see how the complainants exercise of such rights would cause an irreparable
injury or violate the right of the losing candidate so as to justify the issuance of a temporary
restraining order to maintain the status quo. We see no reason to disagree with the finding of the
OCA that the evident purpose of the second TRO was to prevent complainant from participating in
the election of the Liga ng mga Barangay. Respondent must be held liable for violating Rule 3.02 of
the Code of Judicial Conduct which provides that, In every case, a judge shall endeavor diligently to
ascertain the facts and the applicable law unswayed by partisan interests, public opinion, or fear of
criticism.
60
MAYOR NOEL E. ROSAL, G.R. No. 168253
NACHURA, JJ.
Petitioner,

COMMISSION ON ELECTIONS
-versus-
and MICHAEL VICTOR IMPERIAL,

Respondents. Promulgated:
COMMISSION ON ELECTIONS,

Second Division, and MICHAEL

March 16, 2007
VICTOR IMPERIAL,

Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

x- - - - - - - - - - - - - - - - - - - - - - - - x DECISION

CORONA, J.:
MAYOR NOEL E. ROSAL, G.R. No. 172741

Petitioner,
Petitioner Noel E. Rosal and private respondent Michael Victor C. Imperial were candidates for
Present: mayor of Legaspi City in the May 10, 2004 elections. After the counting and canvassing of votes,
petitioner was proclaimed as the duly elected mayor of Legaspi City, having received 44,792 votes
PUNO, C.J., over private respondents 33,747 and thereby winning by a margin of 11,045 votes.

QUISUMBING,

YNARES-SANTIAGO, On May 24, 2004, private respondent instituted a petition to annul the proclamation,[1] assailing
the canvass of election returns in the 520 precincts that had functioned during the election. On July
SANDOVAL-GUTIERREZ, 6, 2004, the case was superseded by an election protest filed by private respondent with the
Commission on Elections (Comelec) contesting the results of the election in all 520 precincts on the
CARPIO, grounds of miscounting, misreading and misappreciation of votes, substitute voting,
disenfranchisement of voters, substitution and padding of votes, and other alleged irregularities.
AUSTRIA-MARTINEZ, The protest was docketed as EPC No. 2004-61 and raffled to the Second Division of the Comelec.

- v e r s u s - CORONA,

CARPIO MORALES, After an initial hearing on private respondents protest and petitioners answer, the Second Division
issued on November 17, 2004 an order directing the collection of the ballot boxes from the
CALLEJO, SR.,* contested precincts and their delivery to the Comelec. On December 16, 2004, private respondent
filed a manifestation[2] apprising the Second Division of the fact that out of the 520 ballot boxes
AZCUNA, retrieved for delivery to the Comelec, 95 had no plastic seals, 346 had broken plastic seals and only
79 remained intact with whole plastic seals and padlocks.
TINGA,

CHICO-NAZARIO,
Revision of the contested ballots commenced in mid-January of 2005[3] and concluded on February
GARCIA, 2, 2005. The revision report indicated a reduction in petitioners vote count from 44,792 votes to
39,752 and an increase in that of private respondent from 22,474 to 39,184 votes. Shortly
VELASCO, JR. and thereafter, petitioner filed a motion for technical examination of contested ballots on the ground
61
that thousands of ballots revised by the revision committees were actually spurious ballots that had
been stuffed inside the ballot boxes sometime after the counting of votes but before the revision
proceedings. The Second Division denied the motion.
After the revision, the case was set for hearing on February 24, 2005. In that hearing, private
respondent manifested that he would no longer present testimonial evidence and merely asked for
time to pre-mark his documentary evidence. On March 9, 2005, private respondent filed his formal
offer of evidence, thereby resting his case and signaling petitioners turn to present evidence in his
defense.
On March 17, 2005, the first hearing set for the presentation of his evidence, petitioner was directed
to pre-mark his exhibits and formalize his intention to have his witnesses subpoenaed. Accordingly,
petitioner filed on April 11, 2005 a motion for issuance of subpoena duces tecum and ad
testificandum to witnesses whose testimonies would allegedly prove that a significant number of
the revised ballots were not the same ballots that had been read and counted by the Board of
Election Inspectors (BEI) during the election.
In an order dated April 25, 2005,[4] the Second Division ruled that the testimonies of the proposed
witnesses were unnecessary inasmuch as the Comelec had the authority and wherewithal to
determine by itself the ballots authenticity and, for that reason, denied the motion and directed
petitioner to file forthwith his formal offer of evidence.
Asserting his right to present evidence in his defense, petitioner filed on May 6, 2005 a motion for
reconsideration of the April 25, 2005 order. In an order dated May 12, 2005, the Second Division
denied the motion.
On June 4, 2005, petitioner filed an Ad Cautela (sic) Offer of Protestees Evidence[5] as a
precautionary measure against the foreclosure of his right to comply with the Second Divisions
April 25, 2005 order. Petitioners evidence included: (1) provincial election supervisor Serranos
report that, at the time he took custody of the ballot boxes, their security seals bore signs of having
been tampered with and (2) the affidavits of 157 BEI chairpersons who swore to the effect that the
authenticating signatures on certain ballots[6] identified and enumerated in their affidavits (that is,
signatures purporting to be theirs) were clear forgeries.
On June 15, 2005, petitioner filed in this Court a petition for certiorari[7] under Rule 65 of the Rules
of Court (docketed as G.R. No. 1628253) assailing the April 25 and May 12, 2005 orders of the
Comelecs Second Division for having been rendered with grave abuse of discretion. Petitioner
complained, in substance, that the Second Division had, by these orders, denied him due process by
effectively depriving him of a reasonable opportunity to substantiate with competent evidence his
contention that the revised ballots were not the same ballots cast and counted during the elections,
meaning, the revised ballots were planted inside the ballot boxes after the counting of votes (in
place of the genuine ones) pursuant to a fraudulent scheme to manufacture grounds for a successful
election protest.
Meanwhile, the Second Division continued with the proceedings and, following the submission of
the parties memoranda, considered EPC No. 2004-61 submitted for resolution.
In a resolution[8] dated January 23, 2006, the Second Division then composed of only two sitting
members, namely, Presiding Commissioner Mehol Sadain (now retired) and Commissioner
Florentino Tuason, Jr. declared private respondent Imperial the winning candidate for mayor of
Legaspi City and ordered petitioner Rosal to vacate said office and turn it over peacefully to private
respondent.
Commissioner Sadain, who wrote the main opinion, relied on the election return count only in
precincts the ballot boxes of which were found to contain fake ballots notwithstanding petitioners
assertion that genuine but otherwise invalid ballots might have been switched with the ones
actually cast in the elections. These numbered a mere 129 precincts. For the rest, he examined,
appreciated and counted the ballots themselves, invalidating in the process over 14,000 ballots cast
for petitioner for having been written by two persons or for being in groups written by one hand.
Commissioner Sadain ended up crediting private respondent with 32,660 valid votes over 30,517
for petitioner.
Commissioner Tuason filed a separate concurring opinion[9] manifesting disagreement with
Commissioner Sadains appreciation of certain ballots but arriving at the same practical result.
On January 30, 2006, petitioner filed a motion for reconsideration of the Second Divisions
resolution. The motion was denied by the Comelec en banc in a resolution dated May 29, 2006.[10]
In due time, petitioner came to this Court with a petition for certiorari and prohibition assailing the
Comelec en banc resolution. The case was docketed as G.R. No. 172741 and consolidated with G.R.
No. 168253.[11]
INTERLOCUTORY ORDERS
AND RULE 65
Before focusing on the merits of this case, the Court sees fit to address a procedural concern with
respect to G.R. No. 168253. Private respondent has persistently thrust upon us the proposition that
the April 25, 2005 order subject of the petition in G.R. No. 168253, being, as it is, an interlocutory
order rendered by a division of the Comelec, cannot be assailed by means of a special civil action for
certiorari, as only final orders of the Comelec en banc can be brought to the Supreme Court by that
mode.
We disagree. Section 1, Rule 65 of the Rules of Court, which governs petitions for certiorari,
provides that:
62
When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without
or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary
course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging
the facts with certainty and praying that judgment be rendered annulling or modifying the
proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice
may require.
xxx xxx xxx
Under the foregoing provision, one may resort to a special civil action for certiorari under three
conditions:
(1) the petition must be directed against a tribunal, board or officer exercising judicial or
quasi-judicial functions;
(2) the tribunal, board or officer has acted without or in excess of jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction; and
(3) there is no plain, speedy and adequate remedy in the ordinary course of law.
Other than these three, the Supreme Courts jurisdiction over petitions for certiorari has no preset
boundaries. Any act by an officer or entity exercising judicial or quasi-judicial functions, if done
without or in excess of jurisdiction or with grave abuse of discretion, may be assailed by means of a
special civil action for certiorari when no appeal or any other plain, speedy and adequate remedy in
the ordinary course of law is available. In other words, no judicial or quasi-judicial act or order is
excluded a priori from the ambit of the Supreme Courts power to correct through the writ of
certiorari. It is therefore incorrect to say that interlocutory orders issued by a division of the
Comelec, or by any judicial or quasi-judicial body for that matter, are beyond the reach of this Court.
That the Supreme Court has jurisdiction over petitions for certiorari assailing interlocutory orders
rendered by a Comelec division from which no recourse to the Comelec en banc could be had was, in
fact, acknowledged in Kho v. Commission on Elections.[12] In that case, Kho, an election protestant,
filed a petition for certiorari in the Supreme Court questioning the Comelec First Divisions
interlocutory orders relating to the admission of his opponents belatedly filed answer.
One of the issues in Kho was whether the controversial orders should have first been referred to the
Comelec en banc. Citing Section 5(c), Rule 3 of the Comelec Rules of Procedure which states that:
[a]ny motion to reconsider a decision, resolution, order or ruling of a Division shall be resolved by
the Commission en banc except motions on interlocutory orders of the division which shall be
resolved by the division which issued the order
this Court ruled that the authority to resolve such incidental matters fell on the division itself. The
Court went on to say that:
where the Commission in division committed grave abuse of discretion or acted without or in excess
of jurisdiction in issuing interlocutory orders relative to an action pending before it and the
controversy did not fall under any of the instances mentioned in Section 2, Rule 3 of the COMELEC
Rules of Procedure [which enumerates the cases in which the Comelec may sit en banc],[13] the
remedy of the aggrieved party is not to refer the controversy to the Commission en banc as this is
not permissible under its present rules but to elevate it to this Court via a petition for certiorari
under Rule 65 of the Rules of Court.[14]
In fine, Kho tells us that an interlocutory order of a Comelec division should be challenged at the
first instance through a proper motion, such as a motion for reconsideration, filed with the division
that rendered the order. If that fails and no other plain, speedy and adequate remedy (such as
recourse to the Comelec en banc) is available, the party aggrieved by the interlocutory order may
elevate the matter to the Supreme Court by means of a petition for certiorari on the ground that the
order was issued without or in excess of jurisdiction or with grave abuse of discretion.
Private respondent asserts, however, that Kho has been superseded by the more recent case of
Repol v. Commission on Elections[15] from which he cites the dictum that:
[t]he Supreme Court has no power to review via certiorari an interlocutory order or even a final
resolution of a Division of the COMELEC. Failure to abide by this procedural requirement constitutes
a ground for dismissal of the action.[16]
Again, we disagree.
There is no contradiction between Kho and Repol that calls for the application of the doctrine that a
later judgment supersedes a prior one in case of inconsistency. In Repol, the petitioner went directly
to the Supreme Court from an interlocutory order of the Comelec First Division without first filing a
motion for reconsideration with said division. That was properly a cause for concern inasmuch as
failure to move for reconsideration of the act or order before challenging it through a petition for
certiorari often constitutes a ground for dismissal for non-compliance with the condition in Rule 65:
that resort to certiorari should be justified by the unavailability of an appeal or any other plain,
speedy and adequate remedy in the ordinary course of law. In the end, however, the Court in Repol
applied the ruling in ABS-CBN Broadcasting Corporation v. COMELEC[17] that an exception to the
procedural requirement of filing a motion for reconsideration was warranted since there was hardly
enough time to move for reconsideration and obtain a swift resolution in time for the impending
elections.
63
A sensible reading of our decision shows that Repol was not a negation or repudiation of this Courts
jurisdiction over petitions for certiorari from interlocutory orders rendered by a Comelec division.
Had it been so, then we would have dismissed the petition on the ground that it was beyond our
jurisdiction. Rather, this Court in Repol merely applied the rule that a petition for certiorari must be
justified by the absence of a plain, speedy and adequate remedy in the ordinary course of law; we
said that the rule had been satisfied inasmuch as a motion for reconsideration was not a plain,
speedy and adequate remedy under the circumstances.
Repol therefore merely serves as a reminder that, in a petition for certiorari from an interlocutory
order, the petitioner bears the burden of showing that the remedy of appeal taken after a judgment
or final order (as opposed to an interlocutory one) has been rendered will not afford adequate and
expeditious relief,[18] as it is often the better practice for a party aggrieved by an interlocutory
order to continue with the case in due course and, in the event of an adverse decision, appeal from it
and include the interlocutory order as one of the errors to be corrected by the reviewing body.
In this instance, petitioner filed a motion for reconsideration of the Second Divisions order. When
that failed, no other speedy and adequate remedy against the unpardonable vices attending the
Second Divisions treatment of the election protest was left to him except recourse to this Court
under Rule 65. Under the circumstances, he was without the shadow of a doubt justified in taking it.
ELECTION PROTEST AND
BALLOTS AS EVIDENCE
It will be recalled that the Second Division had been apprised of the ballot boxes impaired condition
even prior to the commencement of the revision proceedings. This notwithstanding, it brushed
aside petitioners protestations that he was the victim of an ingenious post-election fraud involving
infiltration of the ballot boxes and the clever switching of ballots actually cast with invalid ones to
ensure his defeat in the election protest. The division ruled that:
mere allegations cannot suffice to convince this Commission that switching of ballots has occurred,
absent any positive and direct evidence in the form of fake ballots themselves being found among
genuine ballots. Regardless of any technical examination that may have been conducted or
testimonial evidence presented, as emphatically moved by the protestee but denied by the
Commission, the best proof of the alleged substitution of ballots is the ballots themselves. And the
process by which this proof is established is by way of an evaluation of the ballots by the
Commission itself during its appreciation of the revised ballots.[19]
On the basis of this reasoning, the Second Division proceeded with an appreciation and recount of
the ballots from over 300 precincts and set aside the physical count of the revised ballots in favor of
the election returns only in precincts the ballot boxes of which were found to contain spurious
ballots.
In view of the facts of this case, the Court cannot but hold that the Second Division adopted a
manifestly unreasonable procedure, one totally unfit to address the single most vital threshold
question in an election protest, namely, whether the ballots found in the ballot boxes during the
revision proceedings were the same ballots that were cast and counted in the elections.
The purpose of an election protest is to ascertain whether the candidate proclaimed elected by the
board of canvassers is the true and lawful choice of the electorate.[20] Such a proceeding is usually
instituted on the theory that the election returns, which are deemed prima facie to be true reports of
how the electorate voted on election day[21] and which serve as the basis for proclaiming the
winning candidate, do not accurately reflect the true will of the voters due to alleged irregularities
that attended the counting of ballots. In a protest prosecuted on such a theory, the protestant
ordinarily prays that the official count as reflected in the election returns be set aside in favor of a
revision and recount of the ballots, the results of which should be made to prevail over those
reflected in the returns pursuant to the doctrine that in an election contest where what is involved
is the number of votes of each candidate, the best and most conclusive evidence are the ballots
themselves.[22]
It should never be forgotten, though, that the superior status of the ballots as evidence of how the
electorate voted presupposes that these were the very same ballots actually cast and counted in the
elections. Thus, it has been held that before the ballots found in a box can be used to set aside the
returns, the court (or the Comelec as the case may be) must be sure that it has before it the same
ballots deposited by the voters.[23]
PROCEDURE TO ADDRESS
POST-ELECTION FRAUD
How, then, can one establish that the ballots sought to be revised are the same ballots cast by the
voters during the elections? Obviously, the proof cannot be supplied by an examination of the
ballots themselves, their identity being the very fact in dispute. Answers may be found in abundance
in the early case of Cailles v. Gomez[24] in which the following doctrines were quoted with favor:
In an election contest the ballots cast by the voters is the primary and best evidence of the intention
of the voters, but the burden of proof is on the contestor to show that the ballots have been
64
preserved in the manner provided by law and have not been tampered with, and the fact that the
ballots have been in the custody of the proper officers from the time of the canvass to the time of the
recount is only prima facie and not conclusive proof of their integrity.
In an election contest the rule that as between the ballots and the canvass of them, the ballots
control, has no application where the ballots have been tampered with. The court must be sure that
it has before it the identical and unaltered ballots deposited by the voters before they become
controlling as against the certificate of the election officers of the result of the canvass.
xxx xxx xxx
Where an official count has been made, it is better evidence of who was elected than the ballots,
unless he who discredits the count shows affirmatively that the ballots have been preserved with a
care which precludes the opportunity of tampering and all suspicion of change, abstraction or
substitution.
The law is well settled that the burden of proof is on the plaintiff, when he seeks to introduce the
ballots to overturn the official count, to show affirmatively that the ballots have not been tampered
with, and that they are the genuine ballots cast by the voters.
In an action to contest the right of a party to an office to which he has been declared elected, the
returns of the election boards should be received as prima facie true. In order to overcome this
evidence by a recount of the ballots cast at the election, the contestant must affirmatively prove that
the ballots have not been tampered with, and that they remained in the same condition as they were
when delivered to the proper custody by the judges of election. If it appear to the satisfaction of the
court that the ballots have not been tampered with, it should adopt the result as shown by the
recount, and not as returned by the election board.
xxx xxx xxx
The principles of law and the rules of evidence governing cases such as this have been so often
declared that a review of the many authorities is unnecessary. Those curious or interested in
pursuing the subject will find in the reporter's notes, preceding, many instructive cases collated by
the industry of counsel. Suffice it here to say that, while the ballots are the best evidence of the
manner in which the electors have voted, being silent witnesses which can neither err nor lie, they
are the best evidence only when their integrity can be satisfactorily established. One who relies,
therefore, upon overcoming the prima facie correctness of the official canvass by a resort to the
ballots must first show that the ballots, as presented to the court, are intact and genuine. Where a
mode of preservation is enjoined by the statute proof must be made of a substantial compliance
with the requirements of that mode. But such requirements are construed as directory merely, the
object looked to being the preservation inviolate of the ballots. If this is established it would be
manifestly unjust to reject them merely because the precise mode of reaching it had not been
followed.
So, too, when a substantial compliance with the provisions of the statute has been shown, the
burden of proof shifts to the contestee of establishing that, notwithstanding this compliance, the
ballots have in fact been tampered with, or that they have been exposed under such circumstances
that a violation of them might have taken place. But this proof is not made by a naked showing that
it was possible for one to have molested them. The law cannot guard against a mere possibility, and
no judgment of any of its courts is ever rendered upon one.
The probative value of the result of the return made by the board of inspectors is a question already
settled at various times by the courts of the United States. In the case of Oakes vs. Finlay, the
following doctrine was laid:
The returns of an election board, when legally and properly authenticated, are not only conclusive
upon the board of canvassing officers, but are also prima facie evidence of the number of votes cast,
in a proceeding to contest the election; and the burden of proof is upon the person who assails the
correctness of these returns.
In the case of Stafford vs. Sheppard, the court said:
Certificates of the result of an election, made by the commissioners at the precincts, are prima facie
evidence of the result of the election. The ballots, if identified as the same cast, are primary and
higher evidence; but, in order to continue the ballots as controlling evidence, it must appear that
they have been preserved in the manner and by the officers prescribed by the statute, and that,
while in such custody, they have not been changed or tampered with. (internal citations
omitted)[25]
We summarize the foregoing doctrines: (1) the ballots cannot be used to overturn the official count
as reflected in the election returns unless it is first shown affirmatively that the ballots have been
preserved with a care which precludes the opportunity of tampering and all suspicion of change,
abstraction or substitution; (2) the burden of proving that the integrity of the ballots has been
preserved in such a manner is on the protestant; (3) where a mode of preserving the ballots is
enjoined by law, proof must be made of such substantial compliance with the requirements of that
mode as would provide assurance that the ballots have been kept inviolate notwithstanding slight
deviations from the precise mode of achieving that end; (4) it is only when the protestant has shown
substantial compliance with the provisions of law on the preservation of ballots that the burden of
proving actual tampering or the likelihood thereof shifts to the protestee and (5) only if it appears to
the satisfaction of the court or Comelec that the integrity of the ballots has been preserved should it
adopt the result as shown by the recount and not as reflected in the election returns.
Our election laws are not lacking in provisions for the safekeeping and preservation of the ballots.
Among these are Sections 160, 217, 219 and 220 of the Omnibus Election Code[26] which provide:
65

SECTION 160. Ballot boxes. (a) There shall be in each polling place on the day of the voting a ballot
box one side of which shall be transparent which shall be set in a manner visible to the voting public
containing two compartments, namely, the compartment for valid ballots which is indicated by an
interior cover painted white and the compartment for spoiled ballots which is indicated by an
interior cover painted red. The boxes shall be uniform throughout the Philippines and shall be
solidly constructed and shall be closed with three different locks as well as three numbered security
locks and such other safety devices as the Commission may prescribe in such a way that they can
not be opened except by means of three distinct keys and by destroying such safety devices.
(b) In case of the destruction or disappearance of any ballot box on election day, the board of
election inspectors shall immediately report it to the city or municipal treasurer who shall furnish
another box or receptacle as equally adequate as possible. The election registrar shall report the
incident and the delivery of a new ballot box by the fastest means of communication on the same
day to the Commission and to the provincial election supervisor.
SECTION 217. Delivery of the ballot boxes, keys and election supplies and documents. Upon the
termination of the counting of votes, the board of election inspectors shall place in the compartment
for valid ballots, the envelopes for used ballots hereinbefore referred to, the unused ballots, the tally
board or sheet, a copy of the election returns, and the minutes of its proceedings, and then shall lock
the ballot box with three padlocks and such safety devices as the Commission may prescribe.
Immediately after the box is locked, the three keys of the padlocks shall be placed in three separate
envelopes and shall be sealed and signed by all the members of the board of election inspectors. The
authorized representatives of the Commission shall forthwith take delivery of said envelopes,
signing a receipt therefor, and deliver without delay one envelope to the provincial treasurer,
another to the provincial fiscal and the other to the provincial election supervisor.
The ballot box, all supplies of the board of election inspectors and all pertinent papers and
documents shall immediately be delivered by the board of election inspectors and the watchers to
the city or municipal treasurer who shall keep his office open all night on the day of election if
necessary for this purpose, and shall provide the necessary facilities for said delivery at the expense
of the city or municipality. The book of voters shall be returned to the election registrar who shall
keep it under his custody. The treasurer and the election registrar, as the case may be, shall on the
day after the election require the members of the board of election inspectors who failed to send the
objects referred to herein to deliver the same to him immediately and acknowledge receipt thereof
in detail.
SECTION 219. Preservation of the ballot boxes, their keys and disposition of their contents. (a) The
provincial election supervisor, the provincial treasurer and the provincial fiscal shall keep the
envelope containing the keys in their possession intact during the period of three months following
the election. Upon the lapse of this period, unless the Commission has ordered otherwise, the
provincial election supervisor and the provincial fiscal shall deliver to the provincial treasurer the
envelope containing the keys under their custody.
(b) The city and municipal treasurer shall keep the ballot boxes under their responsibility for three
months and stored unopened in a secure place, unless the Commission orders otherwise whenever
said ballot boxes are needed in any political exercise which might be called within the said period,
provided these are not involved in any election contest or official investigation, or the Commission
or other competent authority shall demand them sooner or shall order their preservation for a
longer time in connection with any pending contest or investigation. However, upon showing by any
candidate that the boxes will be in danger of being violated if kept in the possession of such officials,
the Commission may order them kept by any other official whom it may designate. Upon the lapse of
said time and if there should be no order to the contrary, the Commission may authorize the city
and municipal treasurer in the presence of its representative to open the boxes and burn their
contents, except the copy of the minutes of the voting and the election returns deposited therein
which they shall take and keep.
(c) In case of calamity or fortuitous event such as fire, flood, storm, or other similar calamities which
may actually cause damage to the ballot boxes and/or their contents, the Commission may authorize
the opening of said ballot boxes to salvage the ballots and other contents by placing them in other
ballot boxes, taking such other precautionary measures as may be necessary to preserve such
documents.
SECTION 220. Documents and articles omitted or erroneously placed inside the ballot box. If after
the delivery of the keys of the ballot box to the proper authorities, the board of election inspectors
shall discover that some documents or articles required to be placed in the ballot box were not
placed therein, the board of election inspectors, instead of opening the ballot box in order to place
therein said documents or articles, shall deliver the same to the Commission or its duly authorized
representatives. In no instance shall the ballot box be reopened to place therein or take out
therefrom any document or article except to retrieve copies of the election returns which will be
needed in any canvass and in such excepted instances, the members of the board of election
inspectors and watchers of the candidates shall be notified of the time and place of the opening of
said ballot box: Provided, however, That if there are other copies of the election returns outside of
the ballot box which can be used in canvass, such copies of the election returns shall be used in said
canvass and the opening of the ballot box to retrieve copies of the election returns placed therein
shall then be dispensed with.
Additional safeguards were provided for in Comelec Resolution No. 6667 (General Instructions for
the Boards of Election Inspectors on the Casting and Counting of Votes in Connection with the May
10, 2004 National and Local Elections) which laid down the following directives:
Section 50. Disposition of ballot boxes, keys, election returns and other documents. - Upon the
termination of the counting of votes and the announcement of the results of the election in the
precinct, the BEI shall:
a. Place the following documents inside the compartment of the ballot box for valid ballots.
1. Envelope containing used/counted official ballots;
66
2. Envelope containing excess/marked/spoiled/half of torn unused official ballots;
3. Envelope containing the copy of the election returns for the ballot box;
4. Envelope containing one copy of the Minutes of Voting and Counting of Votes (copy for the
ballot box);
5. Tally Board; and
6. Stubs of used pads of official ballots.
b. Close the inner compartments of the ballot box, lock them with one (1) self-locking fixed-
length seal and then lock the outer cover with the (3) padlocks and one (1) self-locking fixed-length
seal. The three keys to the padlocks shall be placed in separate envelopes which shall be sealed and
signed by all members of the BEI;
c. Deliver the ballot box to the city or municipal treasurer. In case the ballot box delivered
by the BEI was not locked and/or sealed, the treasurer shall lock and/or seal the ballot box. The
treasurer shall include such fact, including the serial number of the self-locking fixed-length seal
used, in his report to the Commission;
d. Deliver to the Election Officer:
xxx xxx xxx
5. Three (3) envelopes, each containing a key to a padlock of the ballot box which shall be
delivered, under proper receipt, by the election officer to the provincial election supervisor, the
provincial prosecutor and the provincial treasurer. In the case of cities whose voters do not vote for
provincial officials, and municipalities in the National Capital Region, the election officer shall retain
one envelope and distribute the two other envelopes to the city/municipal prosecutor and
city/municipal treasurer, as the case may be.
xxx xxx xxx
The ballot box, all supplies of the BEI and all pertinent papers and documents shall immediately be
delivered by the BEI, accompanied by watchers, to the city/municipal treasurer. For this purpose,
the city/municipal treasurer shall, if necessary, keep his office open all night on the day of the
election and shall provide the necessary facilities for said delivery at the expense of the
city/municipality.
Section 52. Omission or erroneous inclusion of documents in ballot box. - If after locking the ballot
box, the BEI discovers that some documents or articles required to be placed in the ballot box were
not placed therein, the BEI, instead of opening the ballot box in order to place therein said
documents or articles, shall deliver the same to the election officer. In no instance shall the ballot
box be reopened to place therein or to take out therefrom any document or article except in proper
cases and with prior written authority of the Commission, or its duly authorized official, to retrieve
copies of the election returns which will be needed in any canvass. In such instance, the members of
the BEI and the watchers shall be notified of the time and place of the opening of said ballot box.
However, if there are other copies of the election returns outside of the ballot box which can be used
in the canvass, such copies of the election returns shall be used in said canvass and the opening of
the ballot box to retrieve copies of the election returns placed therein shall then be dispensed with.
In case the BEI fails to place the envelope containing the counted ballots inside the ballot box, the
election officer shall, with notice to parties, deposit said envelopes in a separate ballot box which
shall be properly sealed, padlocked and stored in a safe place in his office. Said ballot boxes shall
remain sealed unless otherwise ordered by the Commission.
As made abundantly clear by the foregoing provisions, the mode of preserving the ballots in this
jurisdiction is for these to be stored safely in sealed and padlocked ballot boxes which, once closed,
shall remain unopened unless otherwise ordered by the Comelec in cases allowed by law. The
integrity of the ballots and therefore their probative value, as evidence of the voters will, are
contingent on the integrity of the ballot boxes in which they were stored. Thus, it is incumbent on
the protestant to prove, at the very least, that the safety features meant to preserve the integrity of
the ballot boxes and their contents were installed and that these remained in place up to the time of
their delivery to the Comelec for the revision proceedings. If such substantial compliance with these
safety measures is shown as would preclude a reasonable opportunity of tampering with the ballot
boxes contents, the burden shifts to the protestee to prove that actual tampering took place. If the
protestee fails to discharge this burden, the court or the Comelec, as the case may be, may proceed
on the assumption that the ballots have retained their integrity and still constitute the best evidence
of the election results. However, where a ballot box is found in such a condition as would raise a
reasonable suspicion that unauthorized persons could have gained unlawful access to its contents,
no evidentiary value can be given to the ballots in it and the official count reflected in the election
return must be upheld as the better and more reliable account of how and for whom the electorate
voted.
The procedure adopted by the Second Division was a complete inverse of the one outlined above
and was contrary to reason. There was complete arbitrariness on its part.
First, there was no indication at all that it ever considered the condition of the ballot boxes at the
time they were delivered to the Comelec for revision. We find this rather puzzling, considering that
it had been apprised of such information even before revision and even its own Rules of Procedure
on election protests requires the revision committee to make a statement of the condition in which
the ballot boxes and their contents were found upon the opening of the same[27] in recognition of
the vital significance of such facts.
Second, it placed the burden of proving actual tampering of the ballots on petitioner herein (the
protestee below) notwithstanding private respondents previous manifestation that most of the
ballot boxes bore overt signs of tampering[28] and only 79 ballot boxes were found intact.
67
Third, instead of diligently examining whether the ballot boxes were preserved with such care as to
preclude any reasonable opportunity for tampering with their contents, the Second Division made
the probative value of the revised ballots dependent solely on whether spurious ballots were found SO ORDERED.
among them. It failed to recognize that, in view of reports that the ballot boxes had been tampered
with and allegations that their contents had been switched with genuine but invalid ballots, the
question of whether the revised ballots could be relied on as the same ones cast and counted during
the elections could not obviously be settled by an examination of the ballots themselves. Clearly, the
time when these were deposited in the ballot boxes a detail of utmost importance could not possibly
have been determined by that means.

These errors on the part of the Second Division were infinitely far from harmless; the proper legal
procedure could have made a substantial difference in the result of the election protest and most
certainly could have led to a better approximation of the true will of the electorate. This, in the final
analysis, is what election protests are all about.

Under the circumstances, the question as to who between the parties was duly elected to the office
of mayor cannot be settled without further proceedings in the Comelec. In keeping with the precepts
laid down in this decision, the Comelec must first ascertain, after due hearing, whether it has before
it the same ballots cast and counted in the elections. For this purpose, it must determine: (1) which
ballot boxes sufficiently retained their integrity as to justify the conclusion that the ballots
contained therein could be relied on as better evidence than the election returns and (2) which
ballot boxes were in such a condition as would afford a reasonable opportunity for unauthorized
persons to gain unlawful access to their contents. In the latter case, the ballots must be held to have
lost all probative value and cannot be used to set aside the official count reflected in the election
returns.

WHEREFORE, the petitions are GRANTED. The April 25 and May 12, 2005 orders and the January
23, 2006 resolution of the Commission on Elections Second Division and the May 29, 2006
resolution of the Commission on Elections en banc in EPC No. 2004-61 are hereby declared NULL
and VOID. The Commission on Elections is hereby DIRECTED to determine, with utmost dispatch
and all due regard for the parties right to be heard, the true result of the 2004 elections for mayor of
Legaspi City. To this end, it shall:

(1) identify the precincts the ballot boxes of which were found intact with complete and
undamaged seals and padlocks or were otherwise preserved with such substantial compliance with
statutory safety measures as to preclude a reasonable opportunity for tampering with their
contents. The ballots from these precincts shall be deemed to have retained their integrity in the
absence of evidence to the contrary and the Commission on Elections may consider them in the
recount.

(2) ascertain the precincts the ballot boxes of which were found in such a condition as would
afford a reasonable opportunity for unlawful access to their contents. The Commission on Elections
shall exclude from the recount the ballots from these precincts and shall rely instead on the official
count stated in the election returns.

The status quo ante order issued by this Court on June 7, 2006 is, for all intents and purposes
consistent with this decision, hereby MAINTAINED.
68
SALVADOR D. VIOLAGO, SR., SERENO,

Petitioner, REYES, and

PERLAS-BERNABE, JJ.

Promulgated:

October 4, 2011

- versus - x---------------------------------------------------------------------------------------x

DECISION

PERALTA, J.:

Before the Court is a special civil action for certiorari under Rule 65 of the Rules of Court seeking to
COMMISSION ON ELECTIONS and JOAN V. ALARILLA, set aside the August 12, 2010 Order of the 2nd Division of the Commission on Elections (COMELEC)
and the Order of the COMELEC en banc dated September 21, 2010 in EPC No. 2010-23. The August
Respondents. 12, 2010 Order dismissed the election protest filed by herein petitioner against herein private
respondent, while the September 21, 2010 Order denied petitioner’s Motion for Reconsideration.
G.R. No. 194143

The factual and procedural antecedents of the case are as follows:

Present:

Herein petitioner and private respondent were candidates for the mayoralty race during the May
CORONA, C.J., 10, 2010 elections in the City of Meycauayan, Bulacan. Private respondent was proclaimed the
winner.
CARPIO,

VELASCO, JR., On May 21, 2010, petitioner filed a Petition1 with the COMELEC questioning the proclamation of
private respondent on the following grounds: (1) massive vote-buying; (2) intimidation and
LEONARDO-DE CASTRO, harassment; (3) election fraud; (4) non-appreciation by the Precinct Count Optical Scan (PCOS)
machines of valid votes cast during the said election; and, (5) irregularities due to non-observance
BRION, of the guidelines set by the COMELEC.

PERALTA,
On June 15, 2010, private respondent filed her Answer with Motion to Set for Hearing Affirmative
BERSAMIN, Defenses in the Nature of a Motion to Dismiss for Being Insufficient in Form and Substance.2

DEL CASTILLO,
Thereafter, on July 16, 2010, the COMELEC 2nd Division issued an Order3 setting the preliminary
ABAD, conference on August 12, 2010 and directing the parties to file their Preliminary Conference Briefs
at least one (1) day before the scheduled conference.
VILLARAMA, JR.,

PEREZ, On August 11, 2010, private respondent filed her Preliminary Conference Brief.4

MENDOZA,
69
Petitioner, on the other hand, filed his Brief5 on the day of the scheduled preliminary conference.
He, likewise, filed an Urgent Motion to Reset Preliminary Conference on the ground that he did not
receive any notice and only came to know of it when he inquired with the COMELEC a day before
the scheduled conference. Petitioner also claimed that on the date set for the preliminary
conference, his counsel and his associate were scheduled to appear before different tribunals in
connection with other cases they were handling.6 Subsequently, petitioner and his counsel failed to
appear during the actual conference on August 12, 2010. On even date, private respondent’s counsel
moved for the dismissal of the case.
In its assailed Order7 dated August 12, 2010, the COMELEC 2nd Division dismissed petitioner’s
protest on the ground that the latter belatedly filed his Brief in violation of the COMELEC rule on the
filing of briefs.
On August 19, 2010, petitioner filed a Motion for Reconsideration8 with the COMELEC en banc
contending that it was only on August 16, 2010 that he received a copy of the Order of the COMELEC
which set the preliminary conference on August 12, 2010.
In its second assailed Order9 dated September 21, 2010, the COMELEC en banc denied petitioner’s
Motion for Reconsideration on the ground that petitioner failed to file a verified motion in violation
of Section 3, Rule 19 of the COMELEC Rules of Procedure.
Hence, the present petition based on the following grounds:
No notice of preliminary conference hearing was sent to petitioner before the August 12, 2010
hearing.
2. The COMELEC did not exercise sound judicial discretion when it denied the Motion for
Reconsideration.
3. Petitioner is totally blameless and the COMELEC committed undue haste and speed in disposing
the case.
4. The denial of the MR, although within the discretion of the COMELEC, was not based on sound
judicial discretion.10
Petitioner’s basic contention is that the COMELEC 2nd Division and the COMELEC en banc
committed grave abuse of discretion in dismissing his electoral protest and in denying his motion
for reconsideration, respectively.
The Court finds the petition meritorious.
The COMELEC 2nd Division’s reason for dismissing petitioner’s election protest is the latter’s failure
to timely file his Preliminary Conference Brief.
However, a perusal of the records of the instant case would show that petitioner was able to present
a copy of the Certification11 issued by the Postmaster of Meycauayan City, Bulacan, attesting to the
fact that the Order sent by the COMELEC to petitioner’s counsel informing the latter of the
scheduled hearing set on August 12, 2010 and directing him to file his Preliminary Conference Brief
was received only on August 16, 2010. Petitioner likewise submitted an advisory issued by the Chief
of the Operations Division of the TELECOM Office in Meycauayan that the telegraph service in the
said City, through which the COMELEC also supposedly sent petitioner a notice through telegram,
has been terminated and the office permanently closed and transferred to Sta. Maria, Bulacan as of
April 1, 2009.12 Respondent did not question the authenticity of these documents.
On the basis of the abovementioned documents, the Court finds no justifiable reason why the
COMELEC 2nd Division hastily dismissed petitioner’s election protest. There is no indication that
the COMELEC 2nd Division made prior verification from the proper or concerned COMELEC
department or official of petitioner’s allegation that he did not receive a copy of the subject Order. In
fact, it was only on the day following such dismissal that the Electoral Contests Adjudication
Department, through the 2nd Division Clerk, sent a letter to the Postmaster of Meycauayan City,
Bulacan requesting for a certification as to the date of receipt of the said Order stating therein that
the “certification is urgently needed for the proper and appropriate disposition”13 of petitioner’s
election protest. Fairness and prudence dictate that the COMELEC 2nd Division should have first
waited for the requested certification before deciding whether or not to dismiss petitioner’s protest
on technical grounds.
Petitioner should not be penalized for belatedly filing his Preliminary Conference Brief. While it may
be argued that petitioner acquired actual knowledge of the scheduled conference a day prior to the
date set through means other than the official notice sent by the COMELEC, the fact remains that,
unlike his opponent, he was not given sufficient time to thoroughly prepare for the said conference.
A one-day delay, as in this case, does not justify the outright dismissal of the protest based on
technical grounds where there is no indication of intent to violate the rules on the part of petitioner
and the reason for the violation is justifiable. Thus, the COMELEC 2nd Division committed grave
abuse of discretion in dismissing petitioner’s protest.
With respect to the COMELEC en banc’s denial of petitioner’s Motion for Reconsideration, it is true
that Section 3, Rule 20 of the COMELEC Rules of Procedure on Disputes in an Automated Election
System,14 as well as Section 3, Rule 19 of the COMELEC Rules of Procedure, clearly require that a
motion for reconsideration should be verified. However, the settled rule is that the COMELEC Rules
of Procedure are subject to liberal construction.
In Quintos v. Commission on Elections,15 this Court held that “the alleged lack of verification of
private respondent’s Manifestation and Motion for Partial Reconsideration is merely a technicality
that should not defeat the will of the electorate. The COMELEC may liberally construe or even
suspend its rules of procedure in the interest of justice, including obtaining a speedy disposition of
all matters pending before the COMELEC.”16
In the same manner, this Court, in the case of Panlilio v. Commission on Elections,17 restated the
prevailing principle that the COMELEC’s rules of procedure for the verification of protests and
certifications of non-forum shopping should be liberally construed.
70
In Pacanan v. Commission on Elections,18 this Court, in clarifying the mandated liberal construction
of election laws, held thus:
x x x An election contest, unlike an ordinary civil action, is clothed with a public interest. The
purpose of an election protest is to ascertain whether the candidate proclaimed by the board of
canvassers is the lawful choice of the people. What is sought is the correction of the canvass of votes,
which was the basis of proclamation of the winning candidate. An election contest therefore
involves not only the adjudication of private and pecuniary interests of rival candidates but
paramount to their claims is the deep public concern involved and the need of dispelling the
uncertainty over the real choice of the electorate. And the court has the corresponding duty to
ascertain, by all means within its command, who is the real candidate elected by the people.
Hence, by denying petitioner’s motion for reconsideration, without taking into consideration the
violation of his right to procedural due process, the COMELEC en banc is also guilty of grave abuse of
discretion.
WHEREFORE, the petition for certiorari is GRANTED. The Order of the COMELEC 2nd Division dated
August 12, 2010, as well as the Order of the COMELEC en banc dated September 21, 2010, in EPC
No. 2010-23 are REVERSED and SET ASIDE. Petitioner’s election protest is REINSTATED. The
COMELEC 2nd Division is hereby DIRECTED to continue with the proceedings in EPC No. 2010-23
and to resolve the same with dispatch.

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

It has been frequently decided, and it may be stated as a general rule recognized by all courts, that
statutes providing for election contests are to be liberally construed to the end that the will of the
people in the choice of public officers may not be defeated by mere technical objections. An election
contest, unlike an ordinary action, is imbued with public interest since it involves not only the
adjudication of the private interests of rival candidates but also the paramount need of dispelling
the uncertainty which beclouds the real choice of the electorate with respect to who shall discharge
the prerogatives of the office within their gift. Moreover, it is neither fair nor just to keep in office
for an uncertain period one who’s right to it is under suspicion. It is imperative that his claim be
immediately cleared not only for the benefit of the winner but for the sake of public interest, which
can only be achieved by brushing aside technicalities of procedure which protract and delay the trial
of an ordinary action.19

This principle was reiterated in the more recent consolidated cases of Tolentino v. Commission on
Elections,20 and De Castro v. Commission on Elections,21 where the Court held that in exercising its
powers and jurisdiction, as defined by its mandate to protect the integrity of elections, the
COMELEC “must not be straitjacketed by procedural rules in resolving election disputes.”

In the present case, notwithstanding the fact that petitioner’s motion for reconsideration was not
verified, the COMELEC en banc should have considered the merits of the said motion in light of
petitioner’s meritorious claim that he was not given timely notice of the date set for the preliminary
conference. The essence of due process is to be afforded a reasonable opportunity to be heard and
to submit any evidence in support of one’s claim or defense.22 It is the denial of this opportunity
that constitutes violation of due process of law.23 More particularly, procedural due process
demands prior notice and hearing.24 As discussed above, the fact that petitioner somehow acquired
knowledge or information of the date set for the preliminary conference by means other than the
official notice sent by the COMELEC is not an excuse to dismiss his protest, because it cannot be
denied that he was not afforded reasonable notice and time to adequately prepare for and submit
his brief. This is precisely the reason why petitioner was only able to file his Preliminary Conference
Brief on the day of the conference itself. Petitioner’s counsel may not likewise be blamed for failing
to appear during the scheduled conference because of prior commitments and for, instead, filing an
Urgent Motion to Reset Preliminary Conference.

71
[G.R. No. 125249. February 7, 1997]
JIMMY S. DE CASTRO, petitioner, vs. THE COMMISSION ON ELECTIONS and AMANDO A.
MEDRANO, respondents.
DECISION
HERMOSISIMA, JR., J.:
Before us is a petition for certiorari raising twin issues as regards the effect of the contestants death
in an election protest: Is said contest a personal action extinguished upon the death of the real party
in interest? If not, what is the mandatory period within which to effectuate the substitution of
parties?
The following antecedent facts have been culled from the pleadings and are not in dispute:
Petitioner was proclaimed Mayor of Gloria, Oriental Mindoro during the May 8, 1995 elections.
In the same elections, private respondent was proclaimed Vice-Mayor of the same municipality.
On May 19, 1995, petitioners rival candidate, the late Nicolas M. Jamilla, filed an election protest[1]
before the Regional Trial Court of Pinamalayan, Oriental Mindoro.[2]
During the pendency of said contest, Jamilla died.[3] Four days after such death or on December 19,
1995, the trial court dismissed the election protest ruling as it did that [a]s this case is personal, the
death of the protestant extinguishes the case itself. The issue or issues brought out in this protest
have become moot and academic.[4]
On January 9, 1995, private respondent learned about the dismissal of the protest from one Atty.
Gaudencio S. Sadicon, who, as the late Jamillas counsel, was the one who informed the trial court of
his clients demise.
On January 15, 1996, private respondent filed his Omnibus Petition/Motion (For Intervention
and/or Substitution with Motion for Reconsideration).[5] Opposition thereto was filed by petitioner
on January 30, 1996.[6]
In an Order dated February 14, 1996,[7] the trial court denied private respondents Omnibus
Petition/Motion and stubbornly held that an election protest being personal to the protestant, is
ipso facto terminated by the latters death.
Unable to agree with the trial courts dismissal of the election protest, private respondent filed a
petition for certiorari and mandamus before the Commission on Elections (COMELEC); private
respondent mainly assailed the trial court orders as having been issued with grave abuse of
discretion.
COMELEC granted the petition for certiorari and mandamus.[8] It ruled that an election contest
involves both the private interests of the rival candidates and the public interest in the final
determination of the real choice of the electorate, and for this reason, an election contest necessarily
survives the death of the protestant or the protestee.
We agree.
It is true that a public office is personal to the public officer and is not a property transmissible to
his heirs upon death.[9] Thus, applying the doctrine of actio personalis moritur cum persona, upon
the death of the incumbent, no heir of his may be allowed to continue holding his office in his place.
But while the right to a public office is personal and exclusive to the public officer, an election
protest is not purely personal and exclusive to the protestant or to the protestee such that the death
of either would oust the court of all authority to continue the protest proceedings.
An election contest, after all, involves not merely conflicting private aspirations but is imbued with
paramount public interests. As we have held in the case of Vda. de De Mesa v. Mencias:[10]
x x x. It is axiomatic that an election contest, involving as it does not only the adjudication and
settlement of the private interests of the rival candidates but also the paramount need of dispelling
once and for all the uncertainty that beclouds the real choice of the electorate with respect to who
shall discharge the prerogatives of the offices within their gift, is a proceeding imbued with public
interest which raises it onto a plane over and above ordinary civil actions. For this reason, broad
perspectives of public policy impose upon courts the imperative duty to ascertain by all means
within their command who is the real candidate elected in as expeditious a manner as possible,
without being fettered by technicalities and procedural barriers to the end that the will of the
people may not be frustrated (Ibasco vs. Ilao, et al., G.R. L-17512, December 29, 1960; Reforma vs.
De Luna, G.R. L-13242, July 31, 1958). So inextricably intertwined are the interests of the
contestants and those of the public that there can be no gainsaying the logic of the proposition that
even the voluntary cessation in office of the protestee not only does not ipso facto divest him of the
character of an adversary in the contest inasmuch as he retains a party interest to keep his political
opponent out of the office and maintain therein his successor, but also does not in any manner
impair or detract from the jurisdiction of the court to pursue the proceeding to its final conclusion
(De Los Angeles vs. Rodriguez, 46 Phil. 595, 597; Salcedo vs. Hernandez, 62 Phil. 584, 587; Galves vs.
Maramba, G.R. L-13206).
Upon the same principle, the death of the protestee De Mesa did not abate the proceedings in the
election protest filed against him, and it may stated as a rule that an election contest survives and
must be prosecuted to final judgment despite the death of the protestee.[11]
The death of the protestant, as in this case, neither constitutes a ground for the dismissal of the
contest nor ousts the trial court of its jurisdiction to decide the election contest. Apropos is the
following pronouncement of this court in the case of Lomugdang v. Javier:[12]
Determination of what candidate has been in fact elected is a matter clothed with public interest,
wherefore, public policy demands that an election contest, duly commenced, be not abated by the
death of the contestant. We have squarely so rule in Sibulo Vda. de Mesa vs. Judge Mencias, G.R. No.
L-24583, October 29, 1966, in the same spirit that led this Court to hold that the ineligibility of the
protestant is not a defense (Caesar vs. Garrido, 53 Phil. 57), and that the protestees cessation in
office is not a ground for the dismissal of the contest nor detract the Courts jurisdiction to decide the
case (Angeles vs. Rodriguez, 46 Phil. 595; Salcedo vs. Hernandez, 62 Phil. 584).[13]
The asseveration of petitioner that private respondent is not a real party in interest entitled to be
substituted in the election protest in place of the late Jamilla, is utterly without legal basis.
Categorical was our ruling in Vda. de Mesa and Lomugdang that:
x x x the Vice Mayor elect has the status of a real party in interest in the continuation of the
proceedings and is entitled to intervene therein. For if the protest succeeds and the protestee is
unseated, the Vice-Mayor succeeds to the office of Mayor that becomes vacant if the one duly elected
can not assume the post.[14]
To finally dispose of this case, we rule that the filing by private respondent of his Omnibus
Petition/Motion on January 15, 1996, well within a period of thirty days from December 19, 1995
when Jamillas counsel informed the trial court of Jamillas death, was in compliance with Section 17,
Rule 3 of the Revised Rules of Court. Since the Rules of Court, though not generally applicable to
election cases, may however be applied by analogy or in a suppletory character,[15] private
respondent was correct to rely thereon.
72
The above jurisprudence is not ancient; in fact these legal moorings have been recently reiterated in
the 1991 case of De la Victoria vs. COMELEC.[16] If only petitioners diligence in updating himself
with case law is as spirited as his persistence in pursuing his legal asseverations up to the highest
court of the land, no doubt further derailment of the election protest proceedings could have been
avoided.

WHEREFORE, premises considered, the instant petition for certiorari is hereby DISMISSED.

Costs against petitioner.

SO ORDERED.

73
 TINGA,

PRESIDENTIAL ELECTORAL TRIBUNAL CHICO-NAZARIO,*

VELASCO, JR.,**

LOREN B. LEGARDA, NACHURA,

Protestant, REYES, and

P.E.T. Case No. 003 LEONARDO-DE CASTRO, JJ.

NOLI L. DE CASTRO,

Protestee.

Promulgated:

January 18, 2008

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

RESOLUTION

- versus -

QUISUMBING, J.:

On June 23, 2004, Congress sitting as the National Board of Canvassers (NBC) proclaimed[1]
protestee Noli L. de Castro the duly elected Vice-President of the Republic of the Philippines. The
Present: official count of the votes cast for Vice-President in the May 10, 2004 elections showed that the
protestee obtained the highest number of votes, garnering 15,100,431 votes as against the
14,218,709 votes garnered by the protestant Loren B. Legarda, who placed second, in a field
consisting of four candidates for Vice-President.
PUNO, C.J.,
On July 23, 2004, the protestant filed this protest with this Tribunal praying for the annulment of
QUISUMBING, the protestees proclamation as the duly elected Vice-President of the Republic of the Philippines.[2]

YNARES-SANTIAGO, The protest has two main parts. The First Aspect originally covered all the erroneous, if not
manipulated, and falsified results as reflected in the final canvass documents for 9,007 precincts in
SANDOVAL-GUTIERREZ, six provinces, one city and five municipalities.[3] Protestant avers that the correct results appearing
in the election returns were not properly transferred and reflected in the subsequent election
CARPIO, documents and ultimately, in the final canvass of documents used as basis for protestees
proclamation. Protestant seeks the recomputation, recanvass and retabulation of the election
AUSTRIA-MARTINEZ, returns to determine the true result.

CORONA, The Second Aspect required revision of ballots in 124,404 precincts specified in the protest.[4]

CARPIO MORALES, The Tribunal confirmed its jurisdiction over the protest and denied the motion of protestee for its
outright dismissal. Protestee filed a motion for reconsideration arguing in the main that the
AZCUNA, Tribunal erred in ruling that the protest alleged a cause of action sufficient to contest protestees
victory in the May 2004 elections.[5]
74
 Accordingly, without prejudice to its recomputation, the number of ballot boxes involved in the
On March 31, 2005, the Tribunal ruled that: precincts of the provinces which the protestant has identified to the Tribunal as best exemplifying
the irregularities in connection with the said elections are as follows:
On the matter of sufficiency of the protest, protestee failed to adduce new substantial arguments to
reverse our ruling. We hold that while Pea v. House of Representatives Electoral Tribunal on Lanao del Sur
requisites of sufficiency of election protest is still good law, it is inapplicable in this case. We
dismissed the petition in Pea because it failed to specify the contested precincts. In the instant -
protest, protestant enumerated all the provinces, municipalities and cities where she questions all
the results in all the precincts therein. The protest here is sufficient in form and substantively, 1,568
serious enough on its face to pose a challenge to protestees title to his office. In our view, the instant
protest consists of alleged ultimate facts, not mere conclusions of law, that need to be proven in due Lanao del Norte
time.
-
Considering that we find the protest sufficient in form and substance, we must again stress that
nothing as yet has been proved as to the veracity of the allegations. The protest is only sufficient for 2,317
the Tribunal to proceed and give the protestant the opportunity to prove her case pursuant to Rule
61 of the PET Rules. Although said rule only pertains to revision of ballots, nothing herein prevents Surigao del Sur
the Tribunal from allowing or including the correction of manifest errors, pursuant to the Tribunals
rule-making power under Section 4, Article VII of the Constitution. -

On a related matter, the protestant in her reiterating motion prays for ocular inspection and 1,454
inventory-taking of ballot boxes, and appointment of watchers. However, the Tribunal has already
ordered the protection and safeguarding of the subject ballot boxes; and it has issued also the Cebu City
appropriate directives to officials concerned. At this point, we find no showing of an imperative
need for the relief prayed for, since protective and safeguard measures are already being -
undertaken by the custodians of the subject ballot boxes.
10,127
WHEREFORE, protestees motion for reconsideration is hereby DENIED WITH FINALITY for lack of
merit. Protestants reiterating motion for ocular inspection and inventory-taking with very urgent Pampanga
prayer for the appointment of watchers is also DENIED for lack of showing as to its actual necessity.
-
Further, the protestant LOREN B. LEGARDA is ORDERED to specify, within ten (10) days from
notice, the three (3) provinces best exemplifying the manifest errors alleged in the first part of her 5,458
protest, and three (3) provinces best exemplifying the frauds and irregularities alleged in the second
part of her protest, for the purpose herein elucidated. Maguindanao

Lastly, the Tribunal hereby ORDERS the Commission on Elections to SUBMIT, within 30 days hereof, -
the official project of precincts of the May 2004 Elections.
1,755
SO ORDERED.[6]
Total
On April 11, 2005, protestant identified three (3) provinces as pilot areas best exemplifying her
grounds for the First Aspect of the protest. She chose the provinces of Lanao del Sur, Lanao del -
Norte, and Surigao del Sur with the following number of protested precincts: 1,607, 2,346 and 350,
respectively, or a total of 4,303 out of the original 9,007 precincts.[7] 22,679 ballot boxes

On June 21, 2005, the Tribunal ascertained[8] the number of ballot boxes subject of the protest, to
wit:

The Tribunal Resolved to NOTE the Letter dated 30 May 2005 filed by Executive Director Pio Jose S.
Joson, COMELEC, in compliance with the Letter dated 14 April 2005 of Atty. Luzviminda D. Puno, involved in the precincts
Acting Clerk of the Tribunal, informing the Tribunal that one thousand four hundred fifty-four
(1,454) ballot boxes are involved in the precincts of the province of Surigao del Sur which the
protestant has identified to the Tribunal as best exemplifying the irregularities in connection with
the 10 May 2004 National and Local Elections. x P500.00

75
P11,339,500.00
On November 2, 2005 protestant moved to withdraw and abandon almost all pilot precincts in the
First Aspect except those in the province of Lanao del Sur.[9] On November 22, 2005, the Tribunal
granted the said motion withdrawing and abandoning the protest involving the manifest errors in
the municipalities of Lanao del Norte and Surigao del Sur.[10]
Thereafter, proceedings duly ensued concerning both the First and Second Aspects. Former
Associate Justice Bernardo P. Pardo as Hearing Commissioner[11] heard the presentation of
evidence of both parties for the First Aspect. Subpoenas were issued to the witnesses of the
protestant, e.g.
the President/General Manager of Ernest Printing Corporation[12] and then Commission on
Elections Chairman Benjamin Abalos.[13] On August 28, 2006, a preliminary conference was called
by Hearing Commissioner Bernardo P. Pardo to schedule the presentation of evidence. The latter
then ordered as follows:
Pursuant to the Resolution of the Tribunal dated 22 August 2006, setting the preliminary
conference of the parties with the Hearing Commissioner today, the designated Hearing
Commissioner called the preliminary conference in order to consider the order of hearing and
presentation of evidence of the parties according to the procedure prescribed in the Resolution of
the Tribunal of 1 August 2006, under paragraph B (1 and 2).
The following are the appearances:
1) Protestant Loren B. Legarda, in person;
2) Atty. Sixto S. Brillantes, Jr. and Atty. Jesus P. Casila, for the protestant;
3) Protestee Noli L. de Castro did not appear;
4) Atty. Armando M. Marcelo and Atty. Carlo Vistan, for the protestee.
Atty. Brillantes manifested that the protestant is ready to adduce testimonial and documentary
evidence on a date to be scheduled and agreed upon by the parties; they have about seven witnesses
to testify on the first aspect as indicated in the Tribunals Resolution of 1 August 2006. He suggested
6 September 2006 as the initial date of the hearing. Atty. Marcelo stated that he was leaving for
abroad on 6 September 2006 for one month and suggested a hearing after his return in October
2006. At any rate, protestee has a pending motion for reconsideration of the Tribunals Resolution of
22 August 2006 designating a retired Justice of the Supreme Court as Hearing Commissioner. They
wanted an incumbent Justice of the Supreme Court or an official of the Tribunal who is a member of
the Bar to be the designated Hearing Commissioner.
The undersigned Hearing Commissioner suggested that the initial hearing be held on 4 September
2006, at 10:00 a.m., when protestees counsel will still be in town, without prejudice to the
resolution of the Tribunal on his motion for reconsideration.
The undersigned Hearing Commissioner suggested to protestants counsel to submit by this
afternoon the list of the names of the proposed witnesses and documents to be produced so that the
proper process may be issued to them.
The undersigned Hearing Commissioner set the initial hearing tentatively on Monday, 4 September
2006, at 10:00 a.m., at the same venue, subject to the Tribunals ruling on protestees motion for
reconsideration of the person of the Hearing Commissioner, and protestant to submit by this
afternoon the list of witnesses and documents to be produced at the hearing.
IT IS SO ORDERED.[14]
Several hearings on the First Aspect were held wherein the protestant adduced evidence and the
protestee interposed his continuing objection to such in the form of motions and comments. Months
of continuous trial took place until the Hearing Commissioner made his final report of the
proceedings for detailed consideration by the Tribunal.
On January 31, 2006, while the case was sub judice, the Tribunal ordered both parties to refrain
from sensationalizing the case in the media. Its extended resolution on the matter reads as follows:
On December 12, 2005, the re-tabulation of election returns (ERs) from the ten (10) protested
municipalities of Lanao del Sur commenced. According to the report submitted by the Acting Clerk
of the Tribunal, Atty. Maria Luisa D. Villarama, the correction team was able to re-tabulate only the
ERs from four (4) of the ten (10) protested municipalities of Lanao del Sur, namely, Balindong,
Masiu, Mulondo and Taraka. The ERs of the other six (6) protested municipalities were not found
inside the ballot boxes collected from the House of Representatives, but found were the ERs from
municipalities not subject of the protest.
Therefore, acting on the aforementioned report of the Acting Clerk, the Tribunal resolves to
REQUIRE Hon. Roberto Nazareno, Secretary General of the House of Representatives and Atty.
Artemio Adasa, Jr., Deputy Secretary General for Operation, of the House of Representatives, within
a non-extendible period of five (5) days from notice, to
(a) DELIVER to the Tribunal the election returns and other election documents/paraphernalia used
in the May 2004 National/Local elections for the remaining six (6) protested municipalities of Lanao
del Sur, namely (1) Bacolod-Kalawi; (2) Ganassi; (3) Kapai; (4) Sultan Gumander; (5) Tamparan; and
(6) Wao;
(b) EXPLAIN why the election returns and other election documents and paraphernalia which were
turned over to the PET Retrieval Team are incomplete when compared to the COMELECs total
number of clustered precincts for Lanao del Sur; and
(c) SUBMIT to the Tribunal the complete list of all the election returns, Provincial/District
Certificates of Canvass and Statements of Votes and other election documents and paraphernalia
used in the May 2004 National and Local Elections for the province of Lanao del Sur which were in
its official custody.
In the resolution dated December 6, 2005, the Tribunal granted protestants motion to suspend the
remittance of additional cash deposit amounting to P3,882,000 as required in the resolution of
November 22, 2005. Protestant also manifested in said motion that she will make the required cash
deposit sometime in the year 2006. Thus, the Tribunal resolves to REQUIRE protestant to comply
with the resolution of November 22, 2005 requiring her to make additional cash deposit of
P3,882,000 within ten (10) days.
On another matter, the Presidential Electoral Tribunal notes the following news reports:
(1) In an article entitled Recount shows fraud, says Legarda appearing in the December 13, 2005
issue of The Manila Times, protestant Legarda said that the election returns from Congress had been
tampered after initial retabulation of votes by the Tribunal showed that the lead of protestee De
Castro over her has widened. She added that this discovery confirmed her claim of massive poll
fraud in favor of protestee in the 2004 election.
(2) In an article entitled Intel feelers offer proof of poll fraud to Loren published in the December
13, 2005 issue of The Daily Tribune, sources from protestants legal team said that feelers from the
76
militarys intelligence service arm have reached their camp offering videotapes of cheating in the
2004 elections for a price they cannot afford.
(3) In another article entitled Election returns altered inside CongressLoren published in the
December 15, 2005 issue of Philippine Daily Inquirer, protestant claimed that the altering of
election returns from Lanao del Sur occurred right inside Congress as borne out by the spurious
returns being retabulated by the Tribunal. She said the crime could have been perpetrated by the
operatives of protestee.
(4) In a news article entitled Cebu recount shows Noli, Loren votes tally with NBC appearing in the
January 6, 2006 issue of The Manila Times, Atty. Romulo Macalintal, counsel of protestee, stated that
the initial recount in Lapu-lapu showed that there was no tampering of the ballot boxes in the city,
and further noted that the four (4) out of the 40 ballot boxes contained tampered or spurious
ballots, but these are not connected to the protest of Senator Legarda but on local protests.
(5) In an article entitled Noli condemns tampering of ballots appearing in the January 6, 2006 issue
of Manila Standard Today, Atty. Armando Marcelo said that their revisors at the PET discovered that
several ballots of Legarda had been substituted with fake and spurious ballots. Atty. Macalintal
added that the substitution of ballots was so clear, that the security markings of the substitute
ballots were not reflected or visible or that the ultraviolet markings of the COMELEC seal do not
appear or are not present, and that these ultraviolet markings are readily visible in a genuine ballot
once lighted with an ultraviolet light.
(6) In an article entitled No cheating in Cebu, Noli's lawyer insists, published in the January 19, 2006
issue of Philippine Daily Inquirer, Atty. Macalintal said that the results of the actual count of the
ballots for Legarda and De Castro from the cities of Mandaue and Lapu-lapu tallied with the results
as reflected in the election returns and tally boards. There was no sign of any tampering of the
results of the ballot count as well as the votes reflected on the returns and tally boards. He also said
that protestant Legarda is already estopped from questioning the results of the election in these
cities since she failed to object to the returns.
(7) In an article entitled GMA-Noli poll win in Cebu affirmed, published in the January 19, 2006 issue
of The Philippine Star, it was reported that Atty. Macalintal, in his speech before the Rotary Club of
Pasay City, denied protestants claim that 90 percent of the ballots from two major cities of the
province were found to be spurious by the Tribunal. He added that if a candidate would allow
himself to be cheated by 90 percent, then he or she has no business to be in politics.
(8) In an article entitled Why Noli is unacceptable appearing in the January 20, 2006 issue of The
Daily Tribune, protestant told the media that the real ballots from Mandaue City and Lapu-lapu City
were clearly substituted with fakes so that they would correspond with the similarly spurious
results reflected in the election returns (ERs).
Surely, the parties do not harbor the idea that the re-tabulation of election returns and revision of
ballots is the end of the election protest. They are merely the first phase of the process and must still
pass closer scrutiny by the Tribunal.
The great public interest at stake behooves the Tribunal to exercise its power and render judgment
free from public pressure and uninterrupted by the parties penchant for media mileage. Therefore,
in view of the foregoing reports where press statements of both parties appeared as an attempt to
influence the proceedings, convince the public of their version of facts, and create bias, prejudice
and sympathies, the Tribunal resolves to WARN both parties and counsels from making public
comments on all matters that are sub judice.
Finally, acting on the pleadings filed in this electoral protest case, the Tribunal further Resolves to
(a) NOTE the Comment on Protestees Motion to Allow Revisors to Examine All Ballots dated January
24, 2006, filed by counsel for protestant Legarda, in compliance with the resolution of January 17,
2006, informing the Tribunal that she interposes no objection and opposition to the motion and
GRANT the aforesaid motion of the protestee;
(b) DIRECT all Head Revisors to ALLOW the parties to examine the ballots within a reasonable time;
(c) NOTE the Manifestation dated January 24, 2006, filed by counsel for protestant relative to the
Motion to Intervene filed by Intervenor/Movant Amytis D. Batao, informing the Tribunal that she is
not waiving the revision of the thirty-five (35) ballot boxes subject of the electoral protest for the
mayoralty post of Carmen, Cebu, and proposing that priority be given and extended to the same so
that upon completion of the revision by the Tribunal, said ballot boxes can be returned to the
Regional Trial Court of Mandaue City, at the earliest time possible; and
(d) DENY the above Motion to Intervene of Intervenor/Movant Amytis D. Batao, with regard to the
return of the ballot boxes considering that the Tribunal has priority in their possession and
examination. Ynares Santiago, J., no part.[15]
Revision of ballots was also conducted for the Second Aspect in the Tribunals premises by the duly
designated officials and trained personnel with both parties duly represented. After ten months of
continuous work by twenty-four revision teams, under the supervision of Atty. Orlando Cario as the
designated Consultant, the revision of the ballots from the pilot province of Cebu was completed.
Revision also started for the second pilot province of Pampanga, but was suspended after the
Tribunal granted the protestees Motion for Partial Determination of Election Protest Based on the
Results of the Revision of Ballots of the Province of Cebu and the Recanvass of Election Returns from
Lanao Del Sur and to Hold in Abeyance Revision of Ballots from Pampanga.[16]
On May 3, 2007, the protestant was required to deposit P3,914,500 for expenses necessary for the
continuation of the revision of ballots.[17] But protestant failed to pay on the due date. Thus,
protestee moved to dismiss the protest. The Tribunal extended the period for protestant to make
the necessary deposit. Even with this extension, she still failed to pay. Thus, in a Resolution dated
June 5, 2007, the Tribunal partially granted the protestees motion to dismiss pursuant to Rule
33[18] of PET rules, and ordered the dismissal of the Second Aspect of the protest as follows:
PET Case No. 003 (Loren B. Legarda vs. Noli L. de Castro). Acting on the protestees Motion to
Dismiss dated May 9, 2007, the Tribunal Resolved to
(a) PARTIALLY GRANT the aforesaid motion pursuant to Rule 33 of the 2005 PET Rules; and
(b) DISMISS the second aspect of the protest (revision of ballots), for protestants failure to make
the required deposit.
The Tribunal further Resolved to DENY the request of Atty. Eric C. Reginaldo in his letter dated May
29, 2007 that he be furnished with a copy of the petition in this case for case study, as he is neither a
party nor a counsel of any party in this protest.[19]
On June 13, 2007, Hearing Commissioner Bernardo P. Pardo submitted to the Tribunal a Report of
the Proceedings of the First Aspect.[20]
On June 18 2007, protestant filed an Urgent Motion to Resolve First Aspect of the Protest, stating
that she formally moved for the immediate resolution of the submitted portion of the First Aspect of
the protest.[21] Protestee did not interpose any objection to this motion.
On July 10, 2007, the Tribunal resolved to note the report of the Hearing Commissioner. In response
to the motion filed by the protestant, the Tribunal required the parties to submit their respective
memoranda within twenty days from notice, pursuant to Rule 61[22] of the PET Rules.[23]
77
On August 2, 2007, by counsel protestant submitted her memorandum.[24] On August 16, 2007,
also by counsel protestee filed his memorandum.[25]
On October 1, 2007, Hearing Commissioner Bernardo P. Pardo submitted his Final Report of the
Proceedings on the First Aspect. After a thorough analysis of the parties memoranda and the results
of the proceedings on the protest, he recommended the dismissal of the First Aspect.[26]
For her part, protestant filed a memorandum stating that based on the pieces of evidence she
presented, both documentary and testimonial, she has shown that electoral fraud or cheating was
committed through the so-called dagdag-bawas strategy in the elections for President and Vice-
President held last May 14, 2004. Protestant in particular submitted that electoral fraud was
perpetuated as follows:
1. That the correct votes of the parties were properly recorded and tabulated in the election
returns (ERs), wherein she garnered a higher number of votes over protestee De Castro;[27]
2. That when the ERs were canvassed at the municipal level, the ER results were wrongly and
erroneously transposed and transferred to the Statement of Votes by Precinct (SOV-P), such that the
protestee was given a higher number of votes;[28]
3. That the inaccurate results shown in the SOV-P were totaled and transferred to the Municipal
Certificate of Canvass (MCOC), with protestee prevailing over protestant;[29]
4. That the MCOC, with incorrect totals, was transmitted to the Provincial Board of Canvassers,
wherein the inaccurate MCOC totals were transposed to the Statement of Votes by Municipalities
(SOV-M);[30]
5. That the numbers reflected in the individual SOV-Ms were totaled, and the sum for the whole
province was indicated in the Provincial Certificate of Canvass (PCOC);[31]
6. That the PCOCs, with the erroneously transposed totals stemming from the incorrect SOV-Ps,
were the ones canvassed by Congress, acting as the National Board of Canvassers for the
presidential and vice-presidential positions;[32] and
7. That Congress, sitting as the National Board of Canvassers, merely noted and denied
protestants request to view the precinct-source ERs, and proceeded to canvass the already-
manipulated/dagdag-bawas PCOCs, resulting in the flawed and farcical victory of protestee De
Castro.[33]
Protestant avers that fraud, by means of the anomalous election practices, was sufficiently proven
by using her sample-pilot precincts in two municipalities in Lanao del Sur, particularly Balindong
and Taraka. She likewise alleges that the dagdag-bawas scheme, which was perpetrated through the
deliberate and erroneous transposition of results from the authentic ERs to the SOV-Ps, was further
aggravated by an alleged cover-up operation to hide the same. According to protestant, the
Congress-retrieved copies of the ERs which tally with the SOV-Ps, were fake and spurious; they
were intended to cover-up the electoral fraud committed. Protestant submits that the correct voting
results are those reflected in the COMELEC and NAMFRELs copies of the ERs, not those in the copies
retrieved from Congress.
Protestant further claims that while she presented pieces of evidence, both testimonial and
documentary, in only two municipalities of Lanao del Sur, i.e., Balindong and Taraka, to prove the
electoral fraud perpetrated through the dagdag-bawas strategy, she could have shown that such
fraudulent machination was replicated in several other municipalities of Lanao del Sur and other
provinces, such as Basilan, Sulu, Tawi-Tawi, Maguindanao, Sultan Kudarat, and Lanao del Sur if she
had enough time.
Protestee, for his part, argues that the Congress-retrieved ERs are public documents as defined
under Section 19 (a),[34] Rule 132 of the Rules of Court, and thus, they enjoy the presumption of
regularity accorded thereto, and they are prima facie evidence of the facts stated therein. He avers
that there is prima facie presumption that the Congress-retrieved copies of the ERs are genuine,
authentic and duly executed. Protestee submits that protestant has failed to rebut such presumption
with clear and convincing evidence.
Protestee adds that a blank or unused ER form duly authenticated by the COMELEC, with the correct
and complete set of security features and markings, should have been marked and offered as
evidence, to serve as basis for comparison with the various sets of ERs presented to prove the
genuiness of the security features and markings in the ER forms. On this score, according to
protestee, the protestants counsel has failed in his task. At any rate, protestee points out that the
witnesses presented by protestant, i.e., COMELEC Chairman Benjamin S. Abalos and Mr. Robert
Payongayong of the Ernest Printing Corporation, testified that they were able to discern security
features and markings in the Congress-retrieved copies of the ERs. Protestee also claims that when
Mr. Payongayong testified about the security features on the Congress copies, he was shown only a
sample set thereof, and was not able to examine all Congress copies being contested. Protestee thus
concludes that the Tribunal cannot rely on the testimonies of the protestants witnesses debunking
the authenticity of the Congress-retrieved copies vis--vis the other sets of ER copies.
Protestee further contends that, assuming arguendo that the results reflected in the COMELEC,
NAMFREL and MBOCs[35] copies of the ERs are re-tabulated, in lieu of the results in the Congress-
retrieved copies, or even if all the votes in the 497 precincts included in the pilot areas, as well as in
the remaining protested precincts in the First Aspect, are counted in favor of protestant, said votes
would be insufficient to overcome the lead of the protestee totaling 881,722 votes. Hence, in view of
the failure of the protestant to make out her case for the First Aspect of the protest, the same and
ultimately the protest in its entirety, must be dismissed without consideration of the other
provinces mentioned.
The Hearing Commissioner further recommended, following the precedent set in Defensor-Santiago
v. Ramos,[36] that the protest be dismissed for being moot and academic due to abandonment and
withdrawal resulting from protestants election and assumption of office as senator. He also
emphasized that assuming that dagdag-bawas had indeed occurred and that the results in the
COMELECs ER copies indicated in Annex A were to be used for re-tabulation, protestant would be
entitled to an additional 4,912 votes for the municipality of Taraka and 5,019 votes for Balindong, or
a total of 9,931 votes, which is not adequate to surpass protestees lead of 881,722 votes over
protestant.
On protestants charges of electoral fraud allegedly aggravated by a cover-up operation that
switched or exchanged the Congress ER copies with spurious ones, the Hearing Commissioner
stressed that the Congress-retrieved ERs are public documents which enjoy the presumption of
regularity and are prima facie evidence of the facts stated therein. He concluded that the protestant
failed to adequately and convincingly rebut the presumption. The Hearing Commissioner also
emphasized that protestant failed to substantiate sufficiently her claim that the Congress-retrieved
ERs are spurious and were switched with the authentic copies during an alleged break-in at the
storage area of the House of Representatives as no evidence was presented to prove such break-in.
Hence, the alleged discrepancies found in NAMFREL, MBOC and COMELECs copies of the ERs are
insufficient to exclude the Congress-retrieved ER copies from the re-tabulation. The Hearing
Commissioner also observed that in 11 out of the 51 precincts in Balindong, Lanao del Sur, there are
similar entries in the Congress-retrieved ERs and in the COMELECs copies of the ERs, where
protestant garnered a higher number of votes over protestee, while the entries in the respective
SOV-Ms are different in that the protestee received more votes, belying protestants assertion that
the Congress-retrieved ERs should all be disregarded since the results therein differ from those in
the COMELECs copies of ERs and that they have been manipulated to favor protestee. Consequently,
according to the Hearing Commissioners report, protestant failed to make out her case.
78

Thus, the Hearing Commissioner recommended that the protestants Motion to Resolve the First
Aspect of the Protest under consideration should be denied, and consequently, the protest itself, be
dismissed for lack of legal and factual basis, as the pilot-tested revision of ballots or re-tabulation of
the certificates of canvass would not affect the winning margin of the protestee in the final canvass
of the returns, in addition to the ground of abandonment or withdrawal by reason of her candidacy
for, election and assumption of office as Senator of the Philippines.[37]
After thorough deliberation and consideration of the issues in this case, this Tribunal finds the
abovestated recommendations of its Hearing Commissioner well-taken, and adopts them for its
own.
Further, we are also in agreement that the protestant, in assuming the office of Senator and
discharging her duties as such, which fact we can take judicial notice of,[38] has effectively
abandoned or withdrawn her protest, or abandoned her determination to protect and pursue the
public interest involved in the matter of who is the real choice of the electorate. The most relevant
precedent on this issue is Defensor-Santiago v. Ramos,[39] a decision rendered by this Tribunal,
which held that:
The term of office of the Senators elected in the 8 May 1995 election is six years, the first three of
which coincides with the last three years of the term of the President elected in the 11 May 1992
synchronized elections. The latter would be Protestant Santiagos term if she would succeed in
proving in the instant protest that she was the true winner in the 1992 elections. In assuming the
office of Senator then, the Protestant has effectively abandoned or withdrawn this protest, or at the
very least, in the language of Moraleja, abandoned her determination to protect and pursue the
public interest involved in the matter of who is the real choice of the electorate. Such abandonment
or withdrawal operates to render moot the instant protest. Moreover, the dismissal of this protest
would serve public interest as it would dissipate the aura of uncertainty as to the results of the 1992
presidential election, thereby enhancing the all-[too] crucial political stability of the nation during
this period of national recovery.
It must also be stressed that under the Rules of the Presidential Electoral Tribunal, an election
protest may be summarily dismissed, regardless of the public policy and public interest implications
thereof, on the following grounds:
(1) The petition is insufficient in form and substance;
(2) The petition is filed beyond the periods provided in Rules 14 and 15 hereof;
(3) The filing fee is not paid within the periods provided for in these Rules;
(4) The cash deposit, or the first P100,000.00 thereof, is not paid within 10 days after the filing of
the protest; and
(5) The petition or copies thereof and the annexes thereto filed with the Tribunal are not clearly
legible.
Other grounds for a motion to dismiss, e.g., those provided in the Rules of Court which apply in a
suppletory character, may likewise be pleaded as affirmative defenses in the answer. After which,
the Tribunal may, in its discretion, hold a preliminary hearing on such grounds. In sum, if an election
protest may be dismissed on technical grounds, then it must be, for a decidedly stronger reason, if it
has become moot due to its abandonment by the Protestant.[40]
In the case at bar, protestants tenure in the Senate coincides with the term of the Vice-Presidency
2004-2010, that is the subject of her protest. In Defensor-Santiago v. Ramos, the protestants tenure
in the Senate also coincided with the term of the Presidency she was vying for. Like the protestant in
the aforementioned case, the protestant in the case at bar filed her certificate of candidacy for the
Senate, campaigned for the office, assumed office after election, and discharged the duties and
functions of said office. Thus, we agree concerning the applicability of the Defensor-Santiago case as
a precedent in the resolution of the present protest, though they differ in that Defensor-Santiagos
case involves the Presidency while Legardas protest concerns only the Vice-Presidency.
On the matter of the alleged spurious ER copies, we agree with the protestee that the protestant had
not adequately and convincingly rebutted the presumption that as public documents, the Congress-
retrieved ER copies, used for the proclamation of the protestee by the NBC, are authentic and duly
executed in the regular course of official business. The evidence adduced by protestee to show that
the supposed security features and markings in the Congress-retrieved ERs and the
COMELEC/NAMFRELs copies are different, did not categorically establish that the Congress-
retrieved ERs are fake and spurious. To overcome the presumption of regularity, there must be
evidence that is clear, convincing and more than merely preponderant. Absent such convincing
evidence, the presumption must be upheld.[41] In fact, the records show that even the witnesses
presented by the protestant testified that they were able to discern security features and markings
in the Congress-retrieved ERs. The records also show that witnesses were not made to examine all
Congress-retrieved ERs in making observations relative to security features and markings, but only
a sample set thereof was utilized, resulting in grave insufficiency in the evidence presented by
protestant.
As to the alleged break-in in Congress, which allegedly facilitated the switching of ERs, no conclusive
evidence has been given. One of the protestants own witnesses, Atty. Artemio Adasa, Deputy
General for Legislative Operations of the House of Representatives, categorically denied that a
break-in and a switching of ERs had occurred in Congress.[42]
At any rate, as pointed out by protestee, even assuming arguendo that all the votes in the 497
precincts included in the pilot areas for the First Aspect with approximately 99,400 votes are
considered in favor of protestant, still the protestant would not be able to overcome the lead of the
protestee. The margin in favor of protestee adds up to a total of 881,722 votes, and it would take
much more than a hundred thousand votes to overcome this lead. This is what the protestant had
set out to do in her protest before the Tribunal, but unfortunately she failed to make out her
case.[43] In fact, Taraka and Balindong, the only two municipalities on which protestant anchors her
arguments for the First Aspect, would only yield an additional 9,931 votes (4,912 votes for Taraka
and 5,019 votes for Balindong), a mere fraction of the lead of protestee over protestant. To say that
she could have shown that such fraudulent machination was replicated in several other
municipalities of Lanao del Sur and other provinces, such as Basilan, Sulu, Tawi-Tawi, Maguindanao,
Sultan Kudarat and Lanao del Sur if she had enough time, is mere conjecture and can not be
considered convincing by this Tribunal. It is the protestant herself who admits that she was able to
adduce evidence only in Taraka and Balindong, for lack of time. But this Tribunal has been liberal in
granting her plea for time extension. To say that the protestant had shown enough evidence to
prove that the whole or even half (440,862)[44] of the lead of the protestee over the protestant is
spurious, would go against the grain of the evidence on hand. One cannot say that half a million
votes were illegally obtained based on unclear evidence of cheating in less than ten thousand. The
protestant has been afforded ample opportunity to adduce evidence in her behalf for the First
Aspect of the protest but the evidence presented is simply insufficient to convince the Tribunal to
render invalid all or even half of the 881,722 votes that protestee had over her in the last elections
for Vice-President.
WHEREFORE, the First Aspect of the protest is hereby DISMISSED for lack of legal and factual basis,
as the pilot-tested revision of ballots or re-tabulation of the certificates of canvass would not affect
the winning margin of the protestee in the final canvass of the returns, in addition to the ground of
abandonment or withdrawal by reason of protestants candidacy for, election to and assumption of
the office of Senator of the Philippines. The Second Aspect, having been already DISMISSED on June
5, 2007, pursuant to Rule 33 of this Tribunal, the entire Protest is now deemed DISMISSED and
TERMINATED.
79
G.R. No. 203302 April 11, 2013
MAYOR EMMANUEL L. MALIKSI, Petitioner,
vs.
COMMISSION ON ELECTIONS AND HOMER T. SAQUILAVAN, Respondents.
RESOLUTION
BERSAMIN, J.:
The Court hereby resolves the Extremely Urgent Motion for Reconsideration tiled by petitioner
Emmanuel L. Maliksi against the Court's decision promulgated on March 12, 2013, dismissing his
petition for certiorari assailing the resolution dated September 14, 2012 of the Commission on
Elections (COMELEC) En Bane that sustained the declaration of respondent Homer T. Saquilayan as
the duly elected Mayor of Imus, Cavite.
For clarity, we briefly restate the factual antecedents.
During the 2010 Elections, the Municipal Board of Canvassers proclaimed Saquilayan the winner for
the position of Mayor of Imus, Cavite. Maliksi, the candidate who garnered the second highest
number of votes, brought an election protest in the Regional Trial Court (RTC) in Imus, Cavite
alleging that there were irregularities in the counting of votes in 209 clustered precincts.
Subsequently, the RTC held a revision of the votes, and, based on the results of the revision, declared
Maliksi as the duly elected Mayor of Imus commanding Saquilayan to cease and desist from
performing the functions of said office. Saquilayan appealed to the COMELEC. In the meanwhile, the
RTC granted Maliksi’s motion for execution pending appeal, and Maliksi was then installed as
Mayor.
In resolving the appeal, the COMELEC First Division, without giving notice to the parties, decided to
recount the ballots through the use of the printouts of the ballot images from the CF cards. Thus, it
issued an order dated March 28, 2012 requiring Saquilayan to deposit the amount necessary to
defray the expenses for the decryption and printing of the ballot images. Later, it issued another
order dated April 17, 2012 for Saquilayan to augment his cash deposit.
On August 15, 2012, the First Division issued a resolution nullifying the RTC’s decision and
declaring Saquilayan as the duly elected Mayor.1
Maliksi filed a motion for reconsideration, alleging that he had been denied his right to due process
because he had not been notified of the decryption proceedings. He argued that the resort to the
printouts of the ballot images, which were secondary evidence, had been unwarranted because
there was no proof that the integrity of the paper ballots had not been preserved.
On September 14, 2012, the COMELEC En Banc resolved to deny Maliksi’s motion for
reconsideration.2
Maliksi then came to the Court via petition for certiorari, reiterating his objections to the decryption,
printing, and examination of the ballot images without prior notice to him, and to the use of the
printouts of the ballot images in the recount proceedings conducted by the First Division.1âwphi1
In the decision promulgated on March 12, 2013, the Court, by a vote of 8-7, dismissed Maliksi’s
petition for certiorari. The Court concluded that Maliksi had not been denied due process because:
(a) he had received notices of the decryption, printing, and examination of the ballot images by the
First Division — referring to the orders of the First Division directing Saquilayan to post and
augment the cash deposits for the decryption and printing of the ballot images; and (b) he had been
able to raise his objections to the decryption in his motion for reconsideration. The Court then
pronounced that the First Division did not abuse its discretion in deciding to use the ballot images
instead of the paper ballots, explaining that the printouts of the ballot images were not secondary
images, but considered original documents with the same evidentiary value as the official ballots
under the Rule on Electronic Evidence; and that the First Division’s finding that the ballots and the
ballot boxes had been tampered had been fully established by the large number of cases of double-
shading discovered during the revision.
In his Extremely Urgent Motion for Reconsideration, Maliksi raises the following arguments, to wit:
I.
WITH ALL DUE RESPECT, THIS HONORABLE SUPREME COURT EN BANC GRAVELY ERRED IN
DISMISSING THE INSTANT PETITION DESPITE A CLEAR VIOLATION OF PETITIONER’S
CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW CONSIDERING THAT DECRYPTION, PRINTING
AND EXAMINATION OF THE DIGITAL IMAGES OF THE BALLOTS, WHICH IS THE BASIS FOR THE
ASSAILED 14 SEPTEMBER 2012 RESOLUTION OF THE PUBLIC RESPONDENT, WHICH IN TURN
AFFIRMED THE 15 AUGUST 2012 RESOLUTION OF THE COMELEC FIRST DIVISION, WERE DONE
INCONSPICUOUSLY UPON A MOTU PROPRIO DIRECTIVE OF THE COMELEC FIRST DIVISION SANS
ANY NOTICE TO THE PETITIONER, AND FOR THE FIRST TIME ON APPEAL.
II.
WITH ALL DUE RESPECT, THIS HONORABLE SUPREME COURT EN BANC GRAVELY ERRED IN
UPHOLDING THE COMELEC FIRST DIVISION’S RULING TO DISPENSE WITH THE PHYSICAL
BALLOTS AND RESORT TO THEIR DIGITAL IMAGES NOTWITHSTANDING THE FACT THAT THE
BALLOTS ARE THE BEST AND MOST CONCLUSIVE EVIDENCE OF THE VOTERS’ WILL, AND THAT
BALLOT IMAGES CAN BE RESORTED TO ONLY IF THE OFFICIAL BALLOTS ARE LOST OR THEIR
INTEGRITY WAS COMPROMISED AS DETERMINED BY THE RECOUNT/REVISION COMMITTEE,
CIRCUMSTANCES WHICH ARE WANTING IN THIS CASE, AND IN FACT THE INTEGRITY OF THE
BALLOT BOXES AND ITS CONTENTS WAS PRESERVED AND THE ISSUE OF TAMPERING WAS ONLY
BELATEDLY RAISED BY THE PRIVATE RESPONDENT AFTER THE REVISION RESULTS SHOWED
THAT HE LOST.
III.
WITH ALL DUE RESPECT, IT IS THE HUMBLE SUBMISSION OF THE PETITIONER-MOVANT THAT
THE 12 MARCH 2013 RESOLUTION ISSUED BY THE HONORABLE SUPREME COURT EN BANC IS
NULL AND VOID AB INITIO AND THEREFORE OF NO FORCE AND EFFECT, FOR HAVING BEEN
PROMULGATED DESPITE THE ABSENCE OF HONORABLE SUPREME COURT JUSTICE JOSE
PORTUGAL PEREZ AT THE TIME OF THE DELIBERATION AND VOTING ON THE 12 MARCH 2013
RESOLUTION IN THE INSTANT CASE.3
Maliksi insists: (a) that he had the right to be notified of every incident of the proceedings and to be
present at every stage thereof; (b) that he was deprived of such rights when he was not informed of
the decryption, printing, and examination of the ballot images by the First Division; (c) that the
March 28, 2012 and April 17, 2012 orders of the First Division did not sufficiently give him notice
inasmuch as the orders did not state the date, time, and venue of the decryption and printing of the
ballot images; and (d) that he was thus completely deprived of the opportunity to participate in the
decryption proceedings.
Maliksi contends that the First Division’s motu proprio directive for the decryption, printing, and
examination of the ballot images was highly irregular. In this regard, he asserts: (a) that the
decryption, printing, and examination should have taken place during the revision before the trial
court and after the revision committee had determined that the integrity of the official ballots had
not been preserved; (b) that the trial court did not make such determination; (c) that, in fact,
Saquilayan did not allege or present any proof in the RTC to show that the ballots or the ballot boxes
had been tampered, and had, in fact, actively participated in the revision proceedings; (d) that the
80
First Division should not have entertained the allegation of ballot tampering belatedly raised on
appeal; (e) that the First Division should have limited itself to reviewing the evidence on record; and
(f) that the First Division did not even explain how it had arrived at the conclusion that the integrity
of the ballots had not been preserved.
Maliksi submits that the decision promulgated on March 12, 2013 is null and void for having been
promulgated despite the absence from the deliberations and lack of signature of Justice Jose
Portugal Perez.
Ruling
The Court grants Maliksi’s Extremely Urgent Motion for Reconsideration, and reverses the decision
promulgated on March 12, 2013 on the ground that the First Division of the COMELEC denied to him
the right to due process by failing to give due notice on the decryption and printing of the ballot
images. Consequently, the Court annuls the recount proceedings conducted by the First Division
with the use of the printouts of the ballot images.
It bears stressing at the outset that the First Division should not have conducted the assailed
recount proceedings because it was then exercising appellate jurisdiction as to which no existing
rule of procedure allowed it to conduct a recount in the first instance. The recount proceedings
authorized under Section 6, Rule 15 of COMELEC Resolution No. 8804, as amended, are to be
conducted by the COMELEC Divisions only in the exercise of their exclusive original jurisdiction
over all election protests involving elective regional (the autonomous regions), provincial and city
officials.4
As we see it, the First Division arbitrarily arrogated unto itself the conduct of the recount
proceedings, contrary to the regular procedure of remanding the protest to the RTC and directing
the reconstitution of the Revision Committee for the decryption and printing of the picture images
and the revision of the ballots on the basis thereof. Quite unexpectedly, the COMELEC En Banc
upheld the First Division’s unwarranted deviation from the standard procedures by invoking the
COMELEC’s power to "take such measures as the Presiding Commissioner may deem proper," and
even citing the Court’s minute resolution in Alliance of Barangay Concerns (ABC) Party-List v.
Commission on Elections5 to the effect that the "COMELEC has the power to adopt procedures that
will ensure the speedy resolution of its cases. The Court will not interfere with its exercise of this
prerogative so long as the parties are amply heard on their opposing claims."
Based on the pronouncement in Alliance of Barangay Concerns (ABC) v. Commission on Elections,
the power of the COMELEC to adopt procedures that will ensure the speedy resolution of its cases
should still be exercised only after giving to all the parties the opportunity to be heard on their
opposing claims. The parties’ right to be heard upon adversarial issues and matters is never to be
waived or sacrificed, or to be treated so lightly because of the possibility of the substantial prejudice
to be thereby caused to the parties, or to any of them. Thus, the COMELEC En Banc should not have
upheld the First Division’s deviation from the regular procedure in the guise of speedily resolving
the election protest, in view of its failure to provide the parties with notice of its proceedings and an
opportunity to be heard, the most basic requirements of due process.
I.
Due process requirements
The picture images of the ballots are electronic documents that are regarded as the equivalents of
the original official ballots themselves.6 In Vinzons-Chato v. House of Representatives Electoral
Tribunal,7 the Court held that "the picture images of the ballots, as scanned and recorded by the
PCOS, are likewise ‘official ballots’ that faithfully capture in electronic form the votes cast by the
voter, as defined by Section 2(3) of R.A. No. 9369. As such, the printouts thereof are the functional
equivalent of the paper ballots filled out by the voters and, thus, may be used for purposes of
revision of votes in an electoral protest."
That the two documents—the official ballot and its picture image—are considered "original
documents" simply means that both of them are given equal probative weight. In short, when either
is presented as evidence, one is not considered as weightier than the other.
But this juridical reality does not authorize the courts, the COMELEC, and the Electoral Tribunals to
quickly and unilaterally resort to the printouts of the picture images of the ballots in the
proceedings had before them without notice to the parties. Despite the equal probative weight
accorded to the official ballots and the printouts of their picture images, the rules for the revision of
ballots adopted for their respective proceedings still consider the official ballots to be the primary
or best evidence of the voters’ will. In that regard, the picture images of the ballots are to be used
only when it is first shown that the official ballots are lost or their integrity has been compromised.
For instance, the aforesaid Section 6, Rule 15 of COMELEC Resolution No. 8804 (In Re: Comelec
Rules of Procedure on Disputes In An Automated Election System in Connection with the May 10,
2010 Elections), as amended by COMELEC Resolution No. 9164, itself requires that "the Recount
Committee determines that the integrity of the ballots has been violated or has not been preserved,
or are wet and otherwise in such a condition that (the ballots) cannot be recounted" before the
printing of the image of the ballots should be made, to wit:
xxxx
(g) Only when the Recount Committee, through its chairman, determines that the integrity of the
ballots has been preserved or that no signs of tampering of the ballots are present, will the recount
proceed. In case there are signs that the ballots contained therein are tampered, compromised, wet
or are otherwise in such a condition that it could not be recounted, the Recount Committee shall
follow paragraph (l) of this rule.
xxxx
(l) In the event the Recount Committee determines that the integrity of the ballots has been violated
or has not been preserved, or are wet and otherwise in such a condition that it cannot be recounted,
the Chairman of the Committee shall request from the Election Records and Statistics Department
(ERSD), the printing of the image of the ballots of the subject precinct stored in the CF card used in
the May 10, 2010 elections in the presence of the parties. Printing of the ballot images shall proceed
only upon prior authentication and certification by a duly authorized personnel of the Election
Records and Statistics Department (ERSD) that the data or the images to be printed are genuine and
not substitutes. (Emphases supplied.)
xxxx
Section 6, Rule 10 (Conduct of Revision) of the 2010 Rules of Procedure for Municipal Election
Contests, which governs the proceedings in the Regional Trial Courts exercising original jurisdiction
over election protests, provides:
xxxx
(m) In the event that the revision committee determines that the integrity of the ballots and the
ballot box have not been preserved, as when proof of tampering or substitution exists, it shall
proceed to instruct the printing of the picture image of the ballots stored in the data storage device
for the precinct. The court shall provide a non-partisan technical person who shall conduct the
necessary authentication process to ensure that the data or image stored is genuine and not a
substitute. Only after this determination can the printed picture image be used for the recount.
(Emphases supplied.)
81

xxxx
A similar procedure is found in the 2010 Rules of the Presidential Electoral Tribunal, to wit:
Rule 43. Conduct of the revision. – The revision of votes shall be done through the use of
appropriate PCOS machines or manually and visually, as the Tribunal may determine, and according
to the following procedures:
xxxx
(q) In the event that the RC determines that the integrity of the ballots and the ballot box was not
preserved, as when there is proof of tampering or substitution, it shall proceed to instruct the
printing of the picture image of the ballots of the subject precinct stored in the data storage device
for the same precinct. The Tribunal may avail itself of the assistance of the COMELEC for the service
of a non-partisan technical person who shall conduct the necessary authentication process to
ensure that the data or images stored are genuine and not merely substitutes. It is only upon such
determination that the printed picture image can be used for the revision of votes. (Emphases
supplied.)
xxxx
Also, the House of Representative Electoral Tribunal’s Guidelines on the Revision of Ballots requires
a preliminary hearing to be held for the purpose of determining whether the integrity of the ballots
and ballot boxes used in the May 10, 2010 elections was not preserved, as when there is proof of
tampering or substitutions, to wit:
Section 10. Revision of Ballots
xxxx
(d) When it has been shown, in a preliminary hearing set by the parties or by the Tribunal, that the
integrity of the ballots and ballot boxes used in the May 10, 2010 elections was not preserved, as
when there is proof of tampering or substitutions, the Tribunal shall direct the printing of the
picture images of the ballots of the subject precinct stored in the data storage device for the same
precinct. The Tribunal shall provide a non-partisan technical person who shall conduct the
necessary authentication process to ensure that the data or image stored is genuine and not a
substitute. It is only upon such determination that the printed picture image can be used for the
revision. (As amended per Resolution of February 10, 2011; Emphases supplied.)
xxxx
All the foregoing rules on revision of ballots stipulate that the printing of the picture images of the
ballots may be resorted to only after the proper Revision/Recount Committee has first determined
that the integrity of the ballots and the ballot boxes was not preserved.
The foregoing rules further require that the decryption of the images stored in the CF cards and the
printing of the decrypted images take place during the revision or recount proceedings. There is a
good reason for thus fixing where and by whom the decryption and the printing should be
conducted. It is during the revision or recount conducted by the Revision/Recount Committee when
the parties are allowed to be represented, with their representatives witnessing the proceedings
and timely raising their objections in the course of the proceedings. Moreover, whenever the
Revision/Recount Committee makes any determination that the ballots have been tampered and
have become unreliable, the parties are immediately made aware of such determination.
When, as in the present case, it was not the Revision/Recount Committee or the RTC exercising
original jurisdiction over the protest that made the finding that the ballots had been tampered, but
the First Division in the exercise of its appellate jurisdiction, the parties should have been given a
formal notice thereof.
Maliksi was not immediately made aware of that crucial finding because the First Division did not
even issue any written resolution stating its reasons for ordering the printing of the picture images.
The parties were formally notified that the First Division had found that the ballots had been
tampered only when they received the resolution of August 15, 2012, whereby the First Division
nullified the decision of the RTC and declared Saquilayan as the duly elected Mayor. Even so, the
resolution of the First Division to that effect was unusually mute about the factual bases for the
finding of ballot box tampering, and did not also particularize how and why the First Division was
concluding that the integrity of the ballots had been compromised. All that the First Division
declared as justification was a simple generalization of the same being apparent from the allegations
of ballot and ballot box tampering and upon inspection of the ballot boxes, viz:
xxxx
The Commission (First Division) took into consideration the allegations of ballot and ballot box
tampering and upon inspecting the ballot boxes, it is apparent that the integrity of the ballots had
been compromised so, to be able to best determine the true will of the electorate, we decided to go
over the digital image of the appealed ballots.8 (Emphasis supplied)
xxxx
It was the COMELEC En Banc’s assailed resolution of September 14, 2012 that later on provided the
explanation to justify the First Division’s resort to the picture images of the ballots, by observing
that the "unprecedented number of double-votes" exclusively affecting the position of Mayor and
the votes for Saquilayan had led to the belief that the ballots had been tampered. However, that
explanation by the COMELEC En Banc did not cure the First Division’s lapse and did not erase the
irregularity that had already invalidated the First Division’s proceedings.
In his dissenting opinion, Justice Antonio T. Carpio advances the view that the COMELEC’s finding of
ballot tampering was a mere surplusage because there was actually no need for such finding before
the ballots’ digital counterparts could be used. He cites Section 3, Rule 16 of COMELEC Resolution
No. 8804, as amended by Resolution No. 9164, which states:
Section 3. Printing of Ballot Images. - In case the parties deem it necessary, they may file a motion to
be approved by the Division of the Commission requesting for the printing of ballot images in
addition to those mentioned in the second paragraph of item (e). Parties concerned shall provide
the necessary materials in the printing of images such as but not limited to copying papers, toners
and printers. Parties may also secure, upon prior approval by the Division of the Commission, a soft
copy of the ballot images contained in a secured/hashed disc on the condition that the ballot images
be first printed, at the expense of the requesting party, and that the printed copies be signed by the
parties’ respective revisors or representatives and by an ERSD IT-capable representative and
deposited with the Commission.
The Over-all chairman shall coordinate with the Director IV, Election Records and Statistics
Department (ERSD), for the printing of images. Said director shall in turn designate a personnel who
will be responsible in the printing of ballot images.
Justice Carpio posits that when a party files a motion for the printing of the ballots that he or she
deems necessary, there is actually no need for a finding of tampering of the ballots or the ballot
boxes before the COMELEC Division may grant the motion. He states that a determination by the
parties that the printing is necessary under Section 3 is a ground separate from Section 6(e), which
in turn pertinently states that:
82

Section 6. Conduct of the Recount –
xxxx
(e) Before the opening of the ballot box, the Recount Committee shall note its condition as well as
that of the locks or locking mechanism and record the condition in the recount report. From its
observation, the Recount Committee must also make a determination as to whether the integrity of
the ballot box has been preserved.
In the event that there are signs of tampering or if the ballot box appears to have been
compromised, the Recount Committee shall still proceed to open the ballot box and make a physical
inventory of the contents thereof. The committee shall, however, record its general observation of
the ballots and other documents found in the ballot box.
The application of Section 3 to this case is inappropriate, considering that the First Division did not
in any way suggest in its decision dated August 15, 2010 that it was resolving Saquilayan’s motion
to print the ballot images. Instead, the First Division made therein a finding of tampering, thus:
The COMELEC (First Division) took into consideration the allegations of ballot and ballot box
tampering and upon inspecting the ballot boxes, it is apparent that the integrity of the ballots had
been compromised so, to be able to best determine the true will of the electorate, we decided to go
over the digital images of the appealed ballots.
Even the COMELEC En Banc did not indicate in its decision dated September 14, 2012 that the First
Division merely resolved Saquilayan’s motion for the printing of the ballot images; instead, it
reinforced the First Division’s finding that there was tampering of the ballots. The non-mention of
Saquilayan’s motion was a clear indication of the COMELEC’s intention to act motu proprio; and also
revealed its interpretation of its very own rules, that there must be justifiable reason, i.e. tampering,
before the ballot images could be resorted to.
The application of Section 3 would only highlight the First Division’s denial of Maliksi’s right to due
process. For, if the First Division was really only acting on a motion to allow the printing of the
ballot images, there was a greater reason for the First Division to have given the parties notice of its
ruling thereon. But, as herein noted, the First Division did not issue such ruling.
To interpret Section 3 as granting to any one of the parties the right to move for the printing of the
ballot images should such party deem it necessary, and the COMELEC may grant such motion, is
contrary to its clear wording. Section 3 explicitly states: "in case the parties deem it necessary, they
may file a motion." The provision really envisions a situation in which both parties have agreed that
the ballot images should be printed. Should only one of the parties move for the printing of the
ballot images, it is not Section 3 that applies but Section 6(e), which then requires a finding that the
integrity of the ballots has been compromised.
The disregard of Maliksi’s right to be informed of the decision to print the picture images of the
ballots and to conduct the recount proceedings during the appellate stage cannot be brushed aside
by the invocation of the fact that Maliksi was able to file, after all, a motion for reconsideration. To
be exact, the motion for reconsideration was actually directed against the entire resolution of the
First Division, while Maliksi’s claim of due process violation is directed only against the First
Division’s recount proceedings that resulted in the prejudicial result rendered against him. Notably,
the First Division did not issue any order directing the recount. Without the written order, Maliksi
was deprived of the chance to seek any reconsideration or even to assail the irregularly-held
recount through a seasonable petition for certiorari in this Court. In that context, he had no real
opportunity to assail the conduct of the recount proceedings.
The service of the First Division orders requiring Saquilayan to post and augment the cash deposits
for the printing of the picture images did not sufficiently give Maliksi notice of the First Division’s
decision to print the picture images. The said orders did not meet the requirements of due process
because they did not specifically inform Maliksi that the ballots had been found to be tampered. Nor
did the orders offer the factual bases for the finding of tampering. Hence, to leave for Maliksi to
surmise on the factual bases for finding the need to print the picture images still violated the
principles of fair play, because the responsibility and the obligation to lay down the factual bases
and to inform Maliksi as the party to be potentially prejudiced thereby firmly rested on the
shoulders of the First Division.
Moreover, due process of law does not only require notice of the decryption, printing, and recount
proceedings to the parties, but also demands an opportunity to be present at such proceedings or to
be represented therein. Maliksi correctly contends that the orders of the First Division simply
required Saquilayan to post and augment his cash deposit. The orders did not state the time, date,
and venue of the decryption and recount proceedings. Clearly, the First Division had no intention of
giving the parties the opportunity to witness its proceedings.
Mendoza v. Commission on Elections9 instructs that notice to the parties and their participation are
required during the adversarial aspects of the proceedings. In that case, after the revision of the
ballots and after the election protest case was submitted for decision, the ballots and ballot boxes
were transferred to the Senate Electoral Tribunal (SET) in connection with a protest case pending in
the SET. Mendoza later learned that the COMELEC, with the permission of the SET, had meanwhile
conducted proceedings within the SET’s premises. Mendoza then claimed that his right to due
process was violated because he had not been given notice by the COMELEC that it would be
conducting further proceedings within the SET premises. The Court did not sustain his claim,
however, and pointed out:
After consideration of the respondents’ Comments and the petitioner’s petition and Reply, we hold
that the contested proceedings at the SET ("contested proceedings") are no longer part of the
adversarial aspects of the election contest that would require notice of hearing and the participation
of the parties. As the COMELEC stated in its Comment and without any contrary or disputing claim
in the petitioner’s Reply:
"However, contrary to the claim of petitioner, public respondent in the appreciation of the contested
ballots in EPC No. 2007-44 simultaneously with the SET in SET Case No. 001-07 is not conducting
"further proceedings" requiring notice to the parties. There is no revision or correction of the
ballots because EPC No. 2007-04 was already submitted for resolution. Public respondent, in
coordinating with the SET, is simply resolving the submitted protest case before it. The parties
necessarily take no part in said deliberation, which require utmost secrecy. Needless to state, the
actual decision-making process is supposed to be conducted only by the designated members of the
Second Division of the public respondent in strict confidentiality."
In other words, what took place at the SET were the internal deliberations of the COMELEC, as a
quasi-judicial body, in the course of appreciating the evidence presented and deciding the provincial
election contest on the merits. These deliberations are no different from judicial deliberations which
are considered confidential and privileged. We find it significant that the private respondent’s
Comment fully supported the COMELEC’s position and disavowed any participation in the contested
proceeding the petitioner complained about. The petitioner, on the other hand, has not shown that
the private respondent was ever present in any proceeding at the SET relating to the provincial
election contest.1âwphi1
To conclude, the rights to notice and to be heard are not material considerations in the COMELEC’s
handling of the Bulacan provincial election contest after the transfer of the ballot boxes to the SET;
no proceedings at the instance of one party or of COMELEC has been conducted at the SET that
would require notice and hearing because of the possibility of prejudice to the other party. The
COMELEC is under no legal obligation to notify either party of the steps it is taking in the course of
83
deliberating on the merits of the provincial election contest. In the context of our standard of review
for the petition, we see no grave abuse of discretion amounting to lack or excess of jurisdiction
committed by the COMELEC in its deliberation on the Bulacan election contest and the appreciation
of ballots this deliberation entailed.10 (Emphasis supplied.)
Here, the First Division denominated the proceedings it had conducted as an "appreciation of
ballots" like in Mendoza. But unlike in Mendoza, the proceedings conducted by the First Division
were adversarial, in that the proceedings included the decryption and printing of the picture images
of the ballots and the recount of the votes were to be based on the printouts of the picture images.
The First Division did not simply review the findings of the RTC and the Revision Committee, but
actually conducted its own recount proceedings using the printouts of the picture image of the
ballots. As such, the First Division was bound to notify the parties to enable them to participate in
the proceedings.
Significantly, Section 6(l), Rule 15 of COMELEC Resolution No, 8804, as amended by COMELEC
Resolution No. 9164, requires the parties’ presence during the printing of the images of the ballots,
thus:
In the absence of particular rules to govern its proceedings in accordance with this disposition, the
COMELEC is urged to follow and observe Rule 15 of COMELEC Resolution No. 8804, as amended by
COMELEC Resolution No. 9164.
The Court, by this resolution, does not intend to validate the victory of any of the parties in the 2010
Elections. That is not the concern of the Court as yet. The Court simply does not want to
countenance a denial of the fundamental right to due process, a cornerstone of our legal system.11
After all, it is the Court’s primary duty to protect the basic rights of the people vis-à-vis government
actions, thus:
It cannot be denied that most government actions are inspired with noble intentions, all geared
towards the betterment of the nation and its people. But then again, it is important to remember
this ethical principle: "The end does not justify the means." No matter how noble and worthy of
admiration the purpose of an act, but if the means to be employed in accomplishing it is simply
irreconcilable with constitutional parameters, then it cannot still be allowed. The Court cannot just
turn a blind eye and simply let it pass. It will continue to uphold the Constitution and its enshrined
principles.12

xxxx
(l) In the event the Recount Committee determines that the integrity of the ballots has been violated
or has not been preserved, or are wet and otherwise in such a condition that it cannot be recounted,
the Chairman of the Committee shall request from the Election Records and Statistics Department
(ERSD), the printing of the image of the ballots of the subject precinct stored in the CF card used in
the May 10, 2010 elections in the presence of the parties. Printing of the ballot images shall proceed
only upon prior authentication and certification by a duly authorized personnel of the Election
Records and Statistics Department (ERSD) that the data or the images to be printed are genuine and
not substitutes.
xxxx
WHEREFORE, the Court PARTIALLY GRANTS the Extremely Urgent Motion for Reconsideration of
petitioner Emmanuel Maliksi; REVERSES the Court's decision promulgated on March 12, 2013; and
DIRECTS the Commission on Elections En Bane to conduct proceedings for the decryption of the
picture images of the ballots involved in the protest after due authentication, and for the recount of
ballots by using the printouts of the ballot images, with notice to and in the presence of the parties
or their representatives in accordance with the procedure laid down by Rule 15 of COMELEC
Resolution No. 8804, as amended by Resolution No. 9164.
No pronouncement on costs of suit.
SO ORDERED.

We should not ignore that the parties’ participation during the revision and recount proceedings
would not benefit only the parties, but was as vital and significant for the COMELEC as well, for only
by their participation would the COMELEC’s proceedings attain credibility as to the result. The
parties’ presence would have ensured that the requisite procedures have been followed, including
the required authentication and certification that the images to be printed are genuine. In this
regard, the COMELEC was less than candid, and was even cavalier in its conduct of the decryption
and printing of the picture images of the ballots and the recount proceedings. The COMELEC was
merely content with listing the guidelines that the First Division had followed in the appreciation of
the ballots and the results of the recount. In short, there was vagueness as to what rule had been
followed in the decryption and printing proceeding.

II.

Remand to the COMELEC

We are mindful of the urgent need to speedily resolve the election protest because the term of the
position involved is about to end. Thus, we overlook pro hac vice the lack of factual basis for the
COMELEC’s decision to use the digital images of the ballots and sustain its decision thereon.
Although a remand of the election protest to the RTC would have been the appropriate procedure,
we direct the COMELEC En Banc instead to conduct the decryption and printing of the digital images
of the ballots and to hold recount proceedings, with due notice to all the parties and opportunity for
them to be present and to participate during such proceedings. Nothing less serves the ideal
objective safeguarded by the Constitution.

84
G.R. No. 201716 January 8, 2013
MAYOR ABELARDO ABUNDO, SR., Petitioner,
vs.
COMMISSION ON ELECTIONS and ERNESTO R. VEGA, Respondents.
DECISION
VELASCO, JR., J.:
The Case
In this Petition for Certiorari under Rule 65, petitioner Abelardo Abundo, Sr. (Abundo) assails and
seeks to nullify (1) the February 8, 2012 Resolution1 of the Second Division, Commission on
Elections (COMELEC), in EAC (AE) No. A-25-2010 and (2) the May 10, 2012 Resolution2 of the
COMELEC en banc affirming that division’s disposition. The assailed issuances, in turn, affirmed the
Decision of the Regional Trial Court (RTC) of Virac, Catanduanes, Branch 43, dated August 9, 2010,
in Election Case No. 55 declaring Abundo as ineligible, under the three-term limit rule, to run in the
2010 elections for the position of, and necessarily to sit as, Mayor of Viga, Catanduanes.
The antecedent facts are undisputed.
For four (4) successive regular elections, namely, the 2001, 2004, 2007 and 2010 national and local
elections, Abundo vied for the position of municipal mayor of Viga, Catanduanes. In both the 2001
and 2007 runs, he emerged and was proclaimed as the winning mayoralty candidate and
accordingly served the corresponding terms as mayor. In the 2004 electoral derby, however, the
Viga municipal board of canvassers initially proclaimed as winner one Jose Torres (Torres), who, in
due time, performed the functions of the office of mayor. Abundo protested Torres’ election and
proclamation. Abundo was eventually declared the winner of the 2004 mayoralty electoral contest,
paving the way for his assumption of office starting May 9, 2006 until the end of the 2004-2007
term on June 30, 2007, or for a period of a little over one year and one month.
Then came the May 10, 2010 elections where Abundo and Torres again opposed each other. When
Abundo filed his certificate of candidacy3 for the mayoralty seat relative to this electoral contest,
Torres lost no time in seeking the former’s disqualification to run, the corresponding petition,4
docketed as SPA Case No. 10-128 (DC), predicated on the three-consecutive term limit rule. On June
16, 2010, the COMELEC First Division issued a Resolution5 finding for Abundo, who in the
meantime bested Torres by 219 votes6 and was accordingly proclaimed 2010 mayor-elect of Viga,
Catanduanes.
Meanwhile, on May 21, 2010, or before the COMELEC could resolve the adverted disqualification
case Torres initiated against Abundo, herein private respondent Ernesto R. Vega (Vega) commenced
a quo warranto7 action before the RTC-Br. 43 in Virac, Catanduanes, docketed as Election Case No.
55, to unseat Abundo on essentially the same grounds Torres raised in his petition to disqualify.
The Ruling of the Regional Trial Court
By Decision8 of August 9, 2010 in Election Case No. 55, the RTC declared Abundo ineligible to serve
as municipal mayor, disposing as follows:
WHEREFORE, Decision is, hereby, rendered GRANTING the petition and declaring Abelardo Abundo,
Sr. ineligible to serve as municipal mayor of Viga, Catanduanes.
SO ORDERED.9
In so ruling, the trial court, citing Aldovino, Jr. v. COMELEC,10 found Abundo to have already served
three consecutive mayoralty terms, to wit, 2001-2004, 2004-2007 and 2007-2010, and, hence,
disqualified for another, i.e., fourth, consecutive term. Abundo, the RTC noted, had been declared
winner in the aforesaid 2004 elections consequent to his protest and occupied the position of and
actually served as Viga mayor for over a year of the remaining term, i.e., from May 9, 2006 to June
30, 2007, to be exact. To the RTC, the year and a month service constitutes a complete and full
service of Abundo’s second term as mayor.
Therefrom, Abundo appealed to the COMELEC, his recourse docketed as EAC (AE) No. A-25-2010.
The Ruling of the COMELEC
On February 8, 2012, in EAC (AE) No. A-25-2010, the COMELEC’s Second Division rendered the first
assailed Resolution, the dispositive portion of which reads as follows:
WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court Branch 73, Virac,
Catanduanes is AFFIRMED and the appeal is DISMISSED for lack of merit.
SO ORDERED.11
Just like the RTC, the COMELEC’s Second Division ruled against Abundo on the strength of Aldovino,
Jr. and held that service of the unexpired portion of a term by a protestant who is declared winner in
an election protest is considered as service for one full term within the contemplation of the three-
term limit rule.
In time, Abundo sought but was denied reconsideration by the COMELEC en banc per its equally
assailed Resolution of May 10, 2012. The fallo of the COMELEC en banc’s Resolution reads as
follows:
WHEREFORE, premises considered, the motion for reconsideration is DENIED for lack of merit. The
Resolution of the Commission (Second Division) is hereby AFFIRMED.
SO ORDERED.12
In affirming the Resolution of its Second Division, the COMELEC en banc held in essence the
following: first, there was no involuntary interruption of Abundo’s 2004-2007 term service which
would be an exception to the three-term limit rule as he is considered never to have lost title to the
disputed office after he won in his election protest; and second, what the Constitution prohibits is
for an elective official to be in office for the same position for more than three consecutive terms
and not to the service of the term.
Hence, the instant petition with prayer for the issuance of a temporary restraining order (TRO)
and/or preliminary injunction.
Intervening Events
In the meantime, following the issuance by the COMELEC of its May 10, 2012 Resolution denying
Abundo’s motion for reconsideration, the following events transpired:
1. On June 20, 2012, the COMELEC issued an Order13 declaring its May 10, 2012 Resolution final
and executory. The following day, June 21, 2012, the COMELEC issued an Entry of Judgment.14
2. On June 25, 2012, Vega filed a Motion for Execution15 with the RTC-Br. 43 in Virac, Catanduanes.
85
3. On June 27, 2012, the COMELEC, acting on Vega’s counsel’s motion16 filed a day earlier, issued an
Order17 directing the bailiff of ECAD (COMELEC) to personally deliver the entire records to said
RTC.
On June 29, 2012, the COMELEC ECAD Bailiff personally delivered the entire records of the instant
case to, and were duly received by, the clerk of court of RTC-Br. 43.
4. On June 29, 2012, or on the same day of its receipt of the case records, the RTC-Br. 43 in Virac,
Catanduanes granted Vega’s Motion for Execution through an Order18 of even date. And a Writ of
Execution19 was issued on the same day.
5. On July 2, 2012, Sheriff Q. Tador, Jr. received the Writ of Execution and served the same at the
office of Mayor Abundo on the same day via substituted service.
6. On July 3, 2012, the Court issued a TRO20 enjoining the enforcement of the assailed COMELEC
Resolutions.
7. On July 4, 2012, Vega received the Court’s July 3, 2012 Resolution21 and a copy of the TRO. On the
same day, Vice-Mayor Emeterio M. Tarin and First Councilor Cesar O. Cervantes of Viga,
Catanduanes took their oaths of office22 as mayor and vice-mayor of Viga, Catanduanes,
respectively.
8. On July 5, 2012, Vega received a copy of Abundo’s Seventh (7th) Most Extremely Urgent
Manifestation and Motion23 dated June 28, 2012 praying for the issuance of a TRO and/or status
quo ante Order. On the same day, Vice-Mayor Emeterio M. Tarin and First Councilor Cesar O.
Cervantes––who had taken their oaths of office the day before—assumed the posts of mayor and
vice-mayor of Viga, Catanduanes.24
9. On July 6, 2012, Vega interposed a Motion (To Admit Attached Manifestation)25 and
Manifestation with Leave to Admit26 dated July 5, 2012 stating that the TRO thus issued by the
Court has become functus officio owing to the execution of the RTC’s Decision in Election Case No.
55.
10. On July 10, 2012, Vega filed his Comment/Opposition with Leave to the Petitioner’s Prayer for
the Issuance of a Status Quo Ante Order27 reiterating the argument that since Vice-Mayor Emeterio
M. Tarin and First Councilor Cesar O. Cervantes already assumed the posts of Mayor and Vice-Mayor
of Viga, Catanduanes, then a Status Quo Ante Order would serve no purpose.
11. On July 12, 2012, Abundo filed his Most Urgent Manifestation and Motion to Convert the July 3,
2012 TRO into a Status Quo Ante Order (In View of the Unreasonable and Inappropriate Progression
of Events).28
It is upon the foregoing backdrop of events that Abundo was dislodged from his post as incumbent
mayor of Viga, Catanduanes. To be sure, the speed which characterized Abundo’s ouster despite the
supervening issuance by the Court of a TRO on July 3, 2012 is not lost on the Court. While it is not
clear whether Vice-Mayor Tarin and First Councilor Cervantes knew of or put on notice about the
TRO either before they took their oaths of office on July 4, 2012 or before assuming the posts of
mayor and vice-mayor on July 5, 2012, the confluence of events following the issuance of the
assailed COMELEC en banc irresistibly tends to show that the TRO––issued as it were to maintain
the status quo, thus averting the premature ouster of Abundo pending this Court’s resolution of his
appeal––appears to have been trivialized.
On September 11, 2012, Vega filed his Comment on Abundo’s petition, followed not long after by
public respondent COMELEC’s Consolidated Comment.29
The Issues
Abundo raises the following grounds for the allowance of the petition:
6.1 The Commission En Banc committed grave abuse of discretion amounting to lack or excess of
jurisdiction when it declared the arguments in Abundo’s motion for reconsideration as mere rehash
and reiterations of the claims he raised prior to the promulgation of the Resolution.
6.2 The Commission En Banc committed grave abuse of discretion amounting to lack or excess of
jurisdiction when it declared that Abundo has consecutively served for three terms despite the fact
that he only served the remaining one year and one month of the second term as a result of an
election protest.30
First Issue:
Arguments in Motion for Reconsideration Not Mere Reiteration
The COMELEC en banc denied Abundo’s motion for reconsideration on the basis that his arguments
in said motion are mere reiterations of what he already brought up in his appeal Brief before the
COMELEC Second Division. In this petition, petitioner claims otherwise.
Petitioner’s assertion is devoid of merit.
A comparison of Abundo’s arguments in the latter’s Brief vis-à-vis those in his Motion for
Reconsideration (MR) reveals that the arguments in the MR are elucidations and amplications of the
same issues raised in the brief. First, in his Brief, Abundo raised the sole issue of lack of jurisdiction
of the RTC to consider the quo warranto case since the alleged violation of the three-term limit has
already been rejected by the COMELEC First Division in SPA Case No. 10-128 (DC), while in his MR,
Abundo raised the similar ground of the conclusiveness of the COMELEC’s finding on the issue of his
qualification to run for the current term. Second, in his Brief, Abundo assailed RTC’s reliance on
Aldovino, Jr., while in his MR, he argued that the Court’s pronouncement in Aldovino, Jr., which dealt
with preventive suspension, is not applicable to the instant case as it involves only a partial service
of the term. Abundo argued in his Brief that his situation cannot be equated with the case of
preventive suspension as held in Aldovino, Jr., while in his MR, he argued before that the almost two
years which he did not sit as mayor during the 2004-2007 term is an interruption in the continuity
of his service for the full term.
Thus, COMELEC did not err in ruling that the issues in the MR are a rehash of those in the Brief.
Core Issue:
Whether or not Abundo is deemed to have served three consecutive terms
The pivotal determinative issue then is whether the service of a term less than the full three years
by an elected official arising from his being declared as the duly elected official upon an election
protest is considered as full service of the term for purposes of the application of the three
consecutive term limit for elective local officials.
On this core issue, We find the petition meritorious. The consecutiveness of what otherwise would
have been Abundo’s three successive, continuous mayorship was effectively broken during the
2004-2007 term when he was initially deprived of title to, and was veritably disallowed to serve and
occupy, an office to which he, after due proceedings, was eventually declared to have been the
rightful choice of the electorate.
The three-term limit rule for elective local officials, a disqualification rule, is found in Section 8,
Article X of the 1987 Constitution, which provides:
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Sec. 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the full term for which he was
elected. (Emphasis supplied.)
and is reiterated in Sec. 43(b) of Republic Act No. (RA) 7160, or the Local Government Code (LGC) of
1991, thusly:
Sec. 43. Term of Office. —
xxxx
(b) No local elective official shall serve for more than three (3) consecutive terms in the same
position. Voluntary renunciation of the office for any length of time shall not be considered as an
interruption in the continuity of service for the full term for which the elective official concerned
was elected. (Emphasis Ours.)
To constitute a disqualification to run for an elective local office pursuant to the aforequoted
constitutional and statutory provisions, the following requisites must concur:
(1) that the official concerned has been elected for three consecutive terms in the same local
government post; and
(2) that he has fully served three consecutive terms.31
Judging from extant jurisprudence, the three-term limit rule, as applied to the different factual
milieus, has its complicated side. We shall revisit and analyze the various holdings and relevant
pronouncements of the Court on the matter.
As is clearly provided in Sec. 8, Art. X of the Constitution as well as in Sec. 43(b) of the LGC,
voluntary renunciation of the office by the incumbent elective local official for any length of time
shall NOT, in determining service for three consecutive terms, be considered an interruption in the
continuity of service for the full term for which the elective official concerned was elected. In
Aldovino, Jr., however, the Court stated the observation that the law "does not textually state that
voluntary renunciation is the only actual interruption of service that does not affect ‘continuity of
service for a full term’ for purposes of the three-term limit rule."32
As stressed in Socrates v. Commission on Elections,33 the principle behind the three-term limit rule
covers only consecutive terms and that what the Constitution prohibits is a consecutive fourth term.
Put a bit differently, an elective local official cannot, following his third consecutive term, seek
immediate reelection for a fourth term,34 albeit he is allowed to seek a fresh term for the same
position after the election where he could have sought his fourth term but prevented to do so by
reason of the prohibition.
There has, in fine, to be a break or interruption in the successive terms of the official after his or her
third term. An interruption usually occurs when the official does not seek a fourth term,
immediately following the third. Of course, the basic law is unequivocal that a "voluntary
renunciation of the office for any length of time shall NOT be considered an interruption in the
continuity of service for the full term for which the elective official concerned was elected." This
qualification was made as a deterrent against an elective local official intending to skirt the three-
term limit rule by merely resigning before his or her third term ends. This is a voluntary
interruption as distinguished from involuntary interruption which may be brought about by certain
events or causes.
While appearing to be seemingly simple, the three-term limit rule has engendered a host of disputes
resulting from the varying interpretations applied on local officials who were elected and served for
three terms or more, but whose terms or service was punctuated by what they view as involuntary
interruptions, thus entitling them to a, but what their opponents perceive as a proscribed, fourth
term. Involuntary interruption is claimed to result from any of these events or causes: succession or
assumption of office by operation of law, preventive suspension, declaration of the defeated
candidate as the winner in an election contest, declaration of the proclaimed candidate as the losing
party in an election contest, proclamation of a non-candidate as the winner in a recall election,
removal of the official by operation of law, and other analogous causes.
This brings us to an examination of situations and jurisprudence wherein such consecutive terms
were considered or not considered as having been "involuntarily interrupted or broken."
(1) Assumption of Office by Operation of Law
In Borja, Jr. v. Commission on Elections and Jose T. Capco, Jr.35 (1998) and Montebon v. Commission
on Elections36 (2008), the Court delved on the effects of "assumption to office by operation of law"
on the three-term limit rule. This contemplates a situation wherein an elective local official fills by
succession a higher local government post permanently left vacant due to any of the following
contingencies, i.e., when the supposed incumbent refuses to assume office, fails to qualify, dies, is
removed from office, voluntarily resigns or is otherwise permanently incapacitated to discharge the
functions of his office.37
In Borja, Jr., Jose T. Capco, Jr. (Capco) was elected vice-mayor of Pateros on January 18, 1988 for a
term ending June 30, 1992. On September 2, 1989, Capco became mayor, by operation of law, upon
the death of the incumbent mayor, Cesar Borja. Capco was then elected and served as mayor for
terms 1992-1995 and 1995-1998. When Capco expressed his intention to run again for the
mayoralty position during the 1998 elections, Benjamin U. Borja, Jr., who was then also a candidate
for mayor, sought Capco’s disqualification for violation of the three-term limit rule.
Finding for Capco, the Court held that for the disqualification rule to apply, "it is not enough that an
individual has served three consecutive terms in an elective local office, he must also have been
elected to the same position for the same number of times before the disqualification can apply."38
There was, the Court ruled, no violation of the three-term limit, for Capco "was not elected to the
office of the mayor in the first term but simply found himself thrust into it by operation of law"39
when a permanent vacancy occurred in that office.
The Court arrived at a parallel conclusion in the case of Montebon. There, Montebon had been
elected for three consecutive terms as municipal councilor of Tuburan, Cebu in 1998-2001, 2001-
2004, and 2004-2007. However, in January 2004, or during his second term, Montebon succeeded
and assumed the position of vice-mayor of Tuburan when the incumbent vice-mayor retired. When
Montebon filed his certificate of candidacy again as municipal councilor, a petition for
disqualification was filed against him based on the three-term limit rule. The Court ruled that
Montebon’s assumption of office as vice-mayor in January 2004 was an interruption of his
continuity of service as councilor. The Court emphasized that succession in local government office
is by operation of law and as such, it is an involuntary severance from office. Since the law no less
allowed Montebon to vacate his post as councilor in order to assume office as vice-mayor, his
occupation of the higher office cannot, without more, be deemed as a voluntary renunciation of his
position as councilor.
(2) Recall Election
With reference to the effects of recall election on the continuity of service, Adormeo v. Commission
on Elections40 (2002) and the aforementioned case of Socrates (2002) provide guidance.
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In Adormeo, Ramon Talaga, Jr. (Talaga) was elected and served as mayor of Lucena City during
terms 1992-1995 and 1995-1998. During the 1998 elections, Talaga lost to Bernard G. Tagarao.
However, before Tagarao’s 1998-2001 term ended, a recall election was conducted in May 2000
wherein Talaga won and served the unexpired term of Tagarao until June 2001. When Talaga ran
for mayor in 2001, his candidacy was challenged on the ground he had already served as mayor for
three consecutive terms for violation of the three term-limit rule. The Court held therein that the
remainder of Tagarao’s term after the recall election during which Talaga served as mayor should
not be considered for purposes of applying the three-term limit rule. The Court emphasized that the
continuity of Talaga’s mayorship was disrupted by his defeat during the 1998 elections.
A similar conclusion was reached by the Court in Socrates. The petitioners in that case assailed the
COMELEC Resolution which declared Edward Hagedorn qualified to run for mayor in a recall
election. It appeared that Hagedorn had been elected and served as mayor of Puerto Princesa City
for three consecutive terms: in 1992-1995, 1995-1998 and 1998-2001. Obviously aware of the
three-term limit principle, Hagedorn opted not to vie for the same mayoralty position in the 2001
elections, in which Socrates ran and eventually won. However, midway into his term, Socrates faced
recall proceedings and in the recall election held, Hagedorn run for the former’s unexpired term as
mayor. Socrates sought Hagedorn’s disqualification under the three-term limit rule.
In upholding Hagedorn’s candidacy to run in the recall election, the Court ruled:
x x x After Hagedorn ceased to be mayor on June 30, 2001, he became a private citizen until the
recall election of September 24, 2002 when he won by 3,018 votes over his closest opponent,
Socrates.
From June 30, 2001 until the recall election on September 24, 2002, the mayor of Puerto Princesa
was Socrates. During the same period, Hagedorn was simply a private citizen. This period is clearly
an interruption in the continuity of Hagedorn’s service as mayor, not because of his voluntary
renunciation, but because of a legal prohibition.41
The Court likewise emphasized in Socrates that "an elective local official cannot seek immediate
reelection for a fourth term. The prohibited election refers to the next regular election for the same
office following the end of the third consecutive term and, hence, any subsequent election, like recall
election, is no longer covered x x x."42
(3) Conversion of a Municipality into a City
On the other hand, the conversion of a municipality into a city does not constitute an interruption of
the incumbent official’s continuity of service. The Court said so in Latasa v. Commission on
Elections43 (2003).
Latasa is cast against the ensuing backdrop: Arsenio A. Latasa was elected and served as mayor of
the Municipality of Digos, Davao del Sur for terms 1992-1995, 1995-1998, and 1998-2001. During
his third term, Digos was converted into a component city, with the corresponding cityhood law
providing the holdover of elective officials. When Latasa filed his certificate of candidacy as mayor
for the 2001 elections, the Court declared Latasa as disqualified to run as mayor of Digos City for
violation of the three-term limit rule on the basis of the following ratiocination:
This Court believes that (Latasa) did involuntarily relinquish his office as municipal mayor since the
said office has been deemed abolished due to the conversion. However, the very instant he vacated
his office as municipal mayor, he also assumed office as city mayor. Unlike in Lonzanida, where
petitioner therein, for even just a short period of time, stepped down from office, petitioner Latasa
never ceased from acting as chief executive of the local government unit. He never ceased from
discharging his duties and responsibilities as chief executive of Digos.
(Emphasis supplied.)
(4) Period of Preventive Suspension
In 2009, in the case Aldovino Jr., the Court espoused the doctrine that the period during which a
local elected official is under preventive suspension cannot be considered as an interruption of the
continuity of his service. The Court explained why so:
Strict adherence to the intent of the three-term limit rule demands that preventive suspension
should not be considered an interruption that allows an elective official’s stay in office beyond three
terms. A preventive suspension cannot simply be a term interruption because the suspended official
continues to stay in office although he is barred from exercising the functions and prerogatives of
the office within the suspension period. The best indicator of the suspended official’s continuity in
office is the absence of a permanent replacement and the lack of the authority to appoint one since
no vacancy exists.44 (Emphasis supplied.)
(5) Election Protest
With regard to the effects of an election protest vis-à-vis the three-term limit rule, jurisprudence
presents a more differing picture. The Court’s pronouncements in Lonzanida v. Commission on
Elections45 (1999), Ong v. Alegre46 (2006), Rivera III v. Commission on Elections47 (2007) and
Dizon v. Commission on Elections48 (2009), all protest cases, are illuminating.
In Lonzanida, Romeo Lonzanida was elected and had served as municipal mayor of San Antonio,
Zambales in terms 1989-1992, 1992-1995 and 1995-1998. However, his proclamation relative to
the 1995 election was protested and was eventually declared by the RTC and then by COMELEC null
and void on the ground of failure of elections. On February 27, 1998, or about three months before
the May 1998 elections, Lonzanida vacated the mayoralty post in light of a COMELEC order and writ
of execution it issued. Lonzanida’s opponent assumed office for the remainder of the term. In the
May 1998 elections, Lonzanida again filed his certificate of candidacy. His opponent, Efren Muli,
filed a petition for disqualification on the ground that Lonzanida had already served three
consecutive terms in the same post. The Court, citing Borja Jr., reiterated the two (2) conditions
which must concur for the three-term limit to apply: "1) that the official concerned has been elected
for three consecutive terms in the same local government post and 2) that he has fully served three
consecutive terms."49
In view of Borja, Jr., the Court ruled that the foregoing requisites were absent in the case of
Lonzanida. The Court held that Lonzanida cannot be considered as having been duly elected to the
post in the May 1995 elections since his assumption of office as mayor "cannot be deemed to have
been by reason of a valid election but by reason of a void proclamation." And as a corollary point,
the Court stated that Lonzanida did not fully serve the 1995-1998 mayoral term having been
ordered to vacate his post before the expiration of the term, a situation which amounts to an
involuntary relinquishment of office.This Court deviated from the ruling in Lonzanida in Ong v.
Alegre50 owing to a variance in the factual situations attendant.
In that case, Francis Ong (Ong) was elected and served as mayor of San Vicente, Camarines Norte for
terms 1995-1998, 1998-2001, and 2001-2004. During the 1998 mayoralty elections, or during his
supposed second term, the COMELEC nullified Ong’s proclamation on the postulate that Ong lost
during the 1998 elections. However, the COMELEC’s decision became final and executory on July 4,
2001, when Ong had fully served the 1998-2001 mayoralty term and was in fact already starting to
serve the 2001-2004 term as mayor-elect of the municipality of San Vicente. In 2004, Ong filed his
certificate of candidacy for the same position as mayor, which his opponent opposed for violation of
the three-term limit rule.
Ong invoked the ruling in Lonzanida and argued that he could not be considered as having served as
mayor from 1998-2001 because he was not duly elected to the post and merely assumed office as a
"presumptive winner." Dismissing Ong’s argument, the Court held that his assumption of office as
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mayor for the term 1998-2001 constitutes "service for the full term" and hence, should be counted
for purposes of the three-term limit rule. The Court modified the conditions stated in Lonzanida in
the sense that Ong’s service was deemed and counted as service for a full term because Ong’s
proclamation was voided only after the expiry of the term. The Court noted that the COMELEC
decision which declared Ong as not having won the 1998 elections was "without practical and legal
use and value" promulgated as it was after the contested term has expired. The Court further
reasoned:
Petitioner Francis Ong’s contention that he was only a presumptive winner in the 1998 mayoralty
derby as his proclamation was under protest did not make him less than a duly elected mayor. His
proclamation as the duly elected mayor in the 1998 mayoralty election coupled by his assumption
of office and his continuous exercise of the functions thereof from start to finish of the term, should
legally be taken as service for a full term in contemplation of the three-term rule.
The absurdity and the deleterious effect of a contrary view is not hard to discern. Such contrary
view would mean that Alegre would – under the three-term rule - be considered as having served a
term by virtue of a veritably meaningless electoral protest ruling, when another actually served
such term pursuant to a proclamation made in due course after an election.51 (Emphasis supplied.)
The Court did not apply the ruling in Lonzanida and ruled that the case of Ong was different, to wit:
The difference between the case at bench and Lonzanida is at once apparent. For one, in Lonzanida,
the result of the mayoralty election was declared a nullity for the stated reason of "failure of
election", and, as a consequence thereof, the proclamation of Lonzanida as mayor-elect was
nullified, followed by an order for him to vacate the office of mayor. For another, Lonzanida did not
fully serve the 1995-1998 mayoral term, there being an involuntary severance from office as a
result of legal processes. In fine, there was an effective interruption of the continuity of service.52
(Emphasis supplied.)
Ong’s slight departure from Lonzanida would later find reinforcement in the consolidated cases of
Rivera III v. Commission on Elections53 and Dee v. Morales.54 Therein, Morales was elected mayor
of Mabalacat, Pampanga for the following consecutive terms: 1995-1998, 1998-2001 and 2001-
2004. In relation to the 2004 elections, Morales again ran as mayor of the same town, emerged as
garnering the majority votes and was proclaimed elective mayor for term commencing July 1, 2004
to June 30, 2007. A petition for quo warranto was later filed against Morales predicated on the
ground that he is ineligible to run for a "fourth" term, having served as mayor for three consecutive
terms. In his answer, Morales averred that his supposed 1998-2001 term cannot be considered
against him, for, although he was proclaimed by the Mabalacat board of canvassers as elected mayor
vis-à-vis the 1998 elections and discharged the duties of mayor until June 30, 2001, his
proclamation was later nullified by the RTC of Angeles City and his closest rival, Anthony Dee,
proclaimed the duly elected mayor. Pursuing his point, Morales parlayed the idea that he only
served as a mere caretaker.
The Court found Morales’ posture untenable and held that the case of Morales presents a factual
milieu similar with Ong, not with Lonzanida. For ease of reference, the proclamation of Francis Ong,
in Ong, was nullified, but after he, like Morales, had served the three-year term from the start to the
end of the term. Hence, the Court concluded that Morales exceeded the three-term limit rule, to wit:
Here, respondent Morales was elected for the term July 1, 1998 to June 30, 2001. He assumed the
position. He served as mayor until June 30, 2001. He was mayor for the entire period
notwithstanding the Decision of the RTC in the electoral protest case filed by petitioner Dee ousting
him (respondent) as mayor. To reiterate, as held in Ong v. Alegre, such circumstance does not
constitute an interruption in serving the full term.
xxxx
Respondent Morales is now serving his fourth term. He has been mayor of Mabalacat continuously
without any break since July 1, 1995. In just over a month, by June 30, 2007, he will have been
mayor of Mabalacat for twelve (12) continuous years.55 (Emphasis supplied.)
The Court ruled in Rivera that the fact of being belatedly ousted, i.e., after the expiry of the term,
cannot constitute an interruption in Morales’ service of the full term; neither can Morales, as he
argued, be considered merely a "caretaker of the office" or a mere "de facto officer" for purposes of
applying the three-term limit rule.
In a related 2009 case of Dizon v. Commission on Elections,56 the Court would again find the same
Mayor Morales as respondent in a disqualification proceeding when he ran again as a mayoralty
candidate during the 2007 elections for a term ending June 30, 2010. Having been unseated from his
post by virtue of this Court’s ruling in Rivera, Morales would argue this time around that the three-
term limit rule was no longer applicable as to his 2007 mayoralty bid. This time, the Court ruled in
his favor, holding that for purposes of the 2007 elections, the three-term limit rule was no longer a
disqualifying factor as against Morales. The Court wrote:
Our ruling in the Rivera case served as Morales’ involuntary severance from office with respect to
the 2004-2007 term. Involuntary severance from office for any length of time short of the full term
provided by law amounts to an interruption of continuity of service. Our decision in the Rivera case
was promulgated on 9 May 2007 and was effective immediately. The next day, Morales notified the
vice mayor’s office of our decision. The vice mayor assumed the office of the mayor from 17 May
2007 up to 30 June 2007. The assumption by the vice mayor of the office of the mayor, no matter
how short it may seem to Dizon, interrupted Morales’ continuity of service. Thus, Morales did not
hold office for the full term of 1 July 2004 to 30 June 2007.57 (Emphasis supplied)
To summarize, hereunder are the prevailing jurisprudence on issues affecting consecutiveness of
terms and/or involuntary interruption, viz:
1. When a permanent vacancy occurs in an elective position and the official merely assumed the
position pursuant to the rules on succession under the LGC, then his service for the unexpired
portion of the term of the replaced official cannot be treated as one full term as contemplated under
the subject constitutional and statutory provision that service cannot be counted in the application
of any term limit (Borja, Jr.). If the official runs again for the same position he held prior to his
assumption of the higher office, then his succession to said position is by operation of law and is
considered an involuntary severance or interruption (Montebon).
2. An elective official, who has served for three consecutive terms and who did not seek the elective
position for what could be his fourth term, but later won in a recall election, had an interruption in
the continuity of the official’s service. For, he had become in the interim, i.e., from the end of the 3rd
term up to the recall election, a private citizen (Adormeo and Socrates).
3. The abolition of an elective local office due to the conversion of a municipality to a city does not,
by itself, work to interrupt the incumbent official’s continuity of service (Latasa).
4. Preventive suspension is not a term-interrupting event as the elective officer’s continued stay and
entitlement to the office remain unaffected during the period of suspension, although he is barred
from exercising the functions of his office during this period (Aldovino, Jr.).
5. When a candidate is proclaimed as winner for an elective position and assumes office, his term is
interrupted when he loses in an election protest and is ousted from office, thus disenabling him
from serving what would otherwise be the unexpired portion of his term of office had the protest
been dismissed (Lonzanida and Dizon). The break or interruption need not be for a full term of
three years or for the major part of the 3-year term; an interruption for any length of time, provided
the cause is involuntary, is sufficient to break the continuity of service (Socrates, citing Lonzanida).
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6. When an official is defeated in an election protest and said decision becomes final after said
official had served the full term for said office, then his loss in the election contest does not
constitute an interruption since he has managed to serve the term from start to finish. His full
service, despite the defeat, should be counted in the application of term limits because the
nullification of his proclamation came after the expiration of the term (Ong and Rivera).
The Case of Abundo
Abundo argues that the RTC and the COMELEC erred in uniformly ruling that he had already served
three consecutive terms and is, thus, barred by the constitutional three-term limit rule to run for the
current 2010-2013 term. In gist, Abundo arguments run thusly:
1. Aldovino, Jr. is not on all fours with the present case as the former dealt with preventive
suspension which does not interrupt the continuity of service of a term;
2. Aldovino, Jr. recognizes that the term of an elected official can be interrupted so as to remove him
from the reach of the constitutional three-term limitation;
3. The COMELEC misinterpreted the meaning of "term" in Aldovino, Jr. by its reliance on a mere
portion of the Decision and not on the unified logic in the disquisition;
4. Of appropriate governance in this case is the holding in Lonzanida58 and Rivera III v. Commission
on Elections.59
5. The COMELEC missed the point when it ruled that there was no interruption in the service of
Abundo since what he considered as an "interruption" of his 2004-2007 term occurred before his
term started; and
6. To rule that the term of the protestee (Torres) whose proclamation was adjudged invalid was
interrupted while that of the protestant (Abundo) who was eventually proclaimed winner was not
so interrupted is at once absurd as it is illogical.
Both respondents Vega and the COMELEC counter that the ratio decidendi of Aldovino, Jr. finds
application in the instant case. The COMELEC ruled that Abundo did not lose title to the office as his
victory in the protest case confirmed his entitlement to said office and he was only unable to
temporarily discharge the functions of the office during the pendency of the election protest.
We note that this present case of Abundo deals with the effects of an election protest, for which the
rulings in Lonzanida, Ong, Rivera and Dizon appear to be more attuned than the case of Aldovino Jr.,
the interrupting effects of the imposition of a preventive suspension being the very lis mota in the
Aldovino, Jr. case. But just the same, We find that Abundo’s case presents a different factual
backdrop.
Unlike in the abovementioned election protest cases wherein the individuals subject of
disqualification were candidates who lost in the election protest and each declared loser during the
elections, Abundo was the winner during the election protest and was declared the rightful holder
of the mayoralty post. Unlike Mayor Lonzanida and Mayor Morales, who were both unseated toward
the end of their respective terms, Abundo was the protestant who ousted his opponent and had
assumed the remainder of the term.
Notwithstanding, We still find this Court’s pronouncements in the past as instructive, and consider
several doctrines established from the 1998 case of Borja, Jr. up to the most recent case of Aldovino
Jr. in 2009, as potent aids in arriving at this Court’s conclusion.
The intention behind the three-term limit rule was not only to abrogate the "monopolization of
political power" and prevent elected officials from breeding "proprietary interest in their
position"60 but also to "enhance the people’s freedom of choice."61 In the words of Justice Vicente
V. Mendoza, "while people should be protected from the evils that a monopoly of power may bring
about, care should be taken that their freedom of choice is not unduly curtailed."62
In the present case, the Court finds Abundo’s case meritorious and declares that the two-year period
during which his opponent, Torres, was serving as mayor should be considered as an interruption,
which effectively removed Abundo’s case from the ambit of the three-term limit rule.
It bears to stress at this juncture that Abundo, for the 2004 election for the term starting July 1,
2004 to June 30, 2007, was the duly elected mayor. Otherwise how explain his victory in his election
protest against Torres and his consequent proclamation as duly elected mayor. Accordingly, the first
requisite for the application of the disqualification rule based on the three-term limit that the official
has been elected is satisfied.
This thus brings us to the second requisite of whether or not Abundo had served for "three
consecutive terms," as the phrase is juridically understood, as mayor of Viga, Catanduanes
immediately before the 2010 national and local elections. Subsumed to this issue is of course the
question of whether or not there was an effective involuntary interruption during the three three-
year periods, resulting in the disruption of the continuity of Abundo’s mayoralty.
The facts of the case clearly point to an involuntary interruption during the July 2004-June 2007
term.
There can be no quibbling that, during the term 2004-2007, and with the enforcement of the
decision of the election protest in his favor, Abundo assumed the mayoralty post only on May 9,
2006 and served the term until June 30, 2007 or for a period of a little over one year and one month.
Consequently, unlike Mayor Ong in Ong and Mayor Morales in Rivera, it cannot be said that Mayor
Abundo was able to serve fully the entire 2004-2007 term to which he was otherwise entitled.
A "term," as defined in Appari v. Court of Appeals,63 means, in a legal sense, "a fixed and definite
period of time which the law describes that an officer may hold an office."64 It also means the "time
during which the officer may claim to hold office as a matter of right, and fixes the interval after
which the several incumbents shall succeed one another."65 It is the period of time during which a
duly elected official has title to and can serve the functions of an elective office. From paragraph (a)
of Sec. 43, RA 7160,66 the term for local elected officials is three (3) years starting from noon of
June 30 of the first year of said term.
In the present case, during the period of one year and ten months, or from June 30, 2004 until May
8, 2006, Abundo cannot plausibly claim, even if he wanted to, that he could hold office of the mayor
as a matter of right. Neither can he assert title to the same nor serve the functions of the said
elective office. The reason is simple: during that period, title to hold such office and the
corresponding right to assume the functions thereof still belonged to his opponent, as proclaimed
election winner. Accordingly, Abundo actually held the office and exercised the functions as mayor
only upon his declaration, following the resolution of the protest, as duly elected candidate in the
May 2004 elections or for only a little over one year and one month. Consequently, since the legally
contemplated full term for local elected officials is three (3) years, it cannot be said that Abundo
fully served the term 2004-2007. The reality on the ground is that Abundo actually served less.
Needless to stress, the almost two-year period during which Abundo’s opponent actually served as
Mayor is and ought to be considered an involuntary interruption of Abundo’s continuity of service.
An involuntary interrupted term, cannot, in the context of the disqualification rule, be considered as
one term for purposes of counting the three-term threshold.67
The notion of full service of three consecutive terms is related to the concepts of interruption of
service and voluntary renunciation of service. The word interruption means temporary cessation,
intermission or suspension.68 To interrupt is to obstruct, thwart or prevent.69 When the
90
Constitution and the LGC of 1991 speak of interruption, the reference is to the obstruction to the
continuance of the service by the concerned elected official by effectively cutting short the service of
a term or giving a hiatus in the occupation of the elective office. On the other hand, the word
"renunciation" connotes the idea of waiver or abandonment of a known right. To renounce is to give
up, abandon, decline or resign.70 Voluntary renunciation of the office by an elective local official
would thus mean to give up or abandon the title to the office and to cut short the service of the term
the concerned elected official is entitled to.
In its assailed Resolution, the COMELEC en banc, applying Aldovino, Jr.,71 held:
It must be stressed that involuntary interruption of service which jurisprudence deems an
exception to the three-term limit rule, implies that the service of the term has begun before it was
interrupted. Here, the respondent did not lose title to the office. As the assailed Resolution states:
In the case at bar, respondent cannot be said to have lost his title to the office. On the contrary, he
actively sought entitlement to the office when he lodged the election protest case. And respondent-
appellant’s victory in the said case is a final confirmation that he was validly elected for the
mayoralty post of Viga, Catanduanes in 2004-2007. At most, respondent-appellant was only unable
to temporarily discharge the functions of the office to which he was validly elected during the
pendency of the election protest, but he never lost title to the said office.72 (Emphasis added.)
The COMELEC’s Second Division, on the other hand, pronounced that the actual length of service by
the public official in a given term is immaterial by reckoning said service for the term in the
application of the three-term limit rule, thus:
As emphasized in the case of Aldovino, "this formulation—no more than three consecutive terms—
is a clear command suggesting the existence of an inflexible rule." Therefore we cannot subscribe to
the argument that since respondent Abundo served only a portion of the term, his 2004-2007
"term" should not be considered for purposes of the application of the three term limit rule. When
the framers of the Constitution drafted and incorporated the three term limit rule, it is clear that
reference is to the term, not the actual length of the service the public official may render. Therefore,
one’s actual service of term no matter how long or how short is immaterial.73
In fine, the COMELEC ruled against Abundo on the theory that the length of the actual service of the
term is immaterial in his case as he was only temporarily unable to discharge his functions as
mayor.
The COMELEC’s case disposition and its heavy reliance on Aldovino, Jr. do not commend themselves
for concurrence. The Court cannot simply find its way clear to understand the poll body’s
determination that Abundo was only temporarily unable to discharge his functions as mayor during
the pendency of the election protest.
As previously stated, the declaration of being the winner in an election protest grants the local
elected official the right to serve the unexpired portion of the term. Verily, while he was declared
winner in the protest for the mayoralty seat for the 2004-2007 term, Abundo’s full term has been
substantially reduced by the actual service rendered by his opponent (Torres). Hence, there was
actual involuntary interruption in the term of Abundo and he cannot be considered to have served
the full 2004-2007 term.
This is what happened in the instant case. It cannot be overemphasized that pending the favorable
resolution of his election protest, Abundo was relegated to being an ordinary constituent since his
opponent, as presumptive victor in the 2004 elections, was occupying the mayoralty seat. In other
words, for almost two years or from July 1, 2004—the start of the term—until May 9, 2006 or
during which his opponent actually assumed the mayoralty office, Abundo was a private citizen
warming his heels while awaiting the outcome of his protest. Hence, even if declared later as having
the right to serve the elective position from July 1, 2004, such declaration would not erase the fact
that prior to the finality of the election protest, Abundo did not serve in the mayor’s office and, in
fact, had no legal right to said position.
Aldovino Jr. cannot possibly lend support to respondent’s cause of action, or to COMELEC’s
resolution against Abundo. In Aldovino Jr., the Court succinctly defines what temporary inability or
disqualification to exercise the functions of an elective office means, thus:
On the other hand, temporary inability or disqualification to exercise the functions of an elective
post, even if involuntary, should not be considered an effective interruption of a term because it
does not involve the loss of title to office or at least an effective break from holding office; the office
holder, while retaining title, is simply barred from exercising the functions of his office for a reason
provided by law.74
We rule that the above pronouncement on preventive suspension does not apply to the instant case.
Verily, it is erroneous to say that Abundo merely was temporarily unable or disqualified to exercise
the functions of an elective post. For one, during the intervening period of almost two years,
reckoned from the start of the 2004-2007 term, Abundo cannot be said to have retained title to the
mayoralty office as he was at that time not the duly proclaimed winner who would have the legal
right to assume and serve such elective office. For another, not having been declared winner yet,
Abundo cannot be said to have lost title to the office since one cannot plausibly lose a title which, in
the first place, he did not have. Thus, for all intents and purposes, even if the belated declaration in
the election protest accords him title to the elective office from the start of the term, Abundo was
not entitled to the elective office until the election protest was finally resolved in his favor.1âwphi1
Consequently, there was a hiatus of almost two years, consisting of a break and effective
interruption of his service, until he assumed the office and served barely over a year of the
remaining term. At this juncture, We observe the apparent similarities of Mayor Abundo’s case with
the cases of Mayor Talaga in Adormeo and Mayor Hagedorn in Socrates as Mayors Talaga and
Hagedorn were not proclaimed winners since they were non-candidates in the regularelections.
They were proclaimed winners during the recall elections and clearly were not able to fully serve
the terms of the deposed incumbent officials. Similar to their cases where the Court deemed their
terms as involuntarily interrupted, Abundo also became or was a private citizen during the period
over which his opponent was serving as mayor. If in Lonzanida, the Court ruled that there was
interruption in Lonzanida’s service because of his subsequent defeat in the election protest, then
with more reason, Abundo’s term for 2004-2007 should be declared interrupted since he was not
proclaimed winner after the 2004 elections and was able to assume the office and serve only for a
little more than a year after winning the protest.
As aptly stated in Latasa, to be considered as interruption of service, the "law contemplates a rest
period during which the local elective official steps down from office and ceases to exercise power
or authority over the inhabitants of the territorial jurisdiction of a particular local government
unit."75 Applying the said principle in the present case, there is no question that during the
pendency of the election protest, Abundo ceased from exercising power or authority over the good
people of Viga, Catanduanes.
Consequently, the period during which Abundo was not serving as mayor should be considered as a
rest period or break in his service because, as earlier stated, prior to the judgment in the election
protest, it was Abundo’s opponent, Torres, who was exercising such powers by virtue of the still
then valid proclamation.
As a final note, We reiterate that Abundo’s case differs from other cases involving the effects of an
election protest because while Abundo was, in the final reckoning, the winning candidate, he was
the one deprived of his right and opportunity to serve his constituents. To a certain extent, Abundo
was a victim of an imperfect election system. While admittedly the Court does not possess the
mandate to remedy such imperfections, the Constitution has clothed it with enough authority to
establish a fortress against the injustices it may bring.
91
In this regard, We find that a contrary ruling would work damage and cause grave injustice to
Abundo––an elected official who was belatedly declared as the winner and assumed office for only a
short period of the term. If in the cases of Lonzanida and Dizon, this Court ruled in favor of a losing
candidate––or the person who was adjudged not legally entitled to hold the contested public office
but held it anyway––We find more reason to rule in favor of a winning candidate-protestant who, by
popular vote, deserves title to the public office but whose opportunity to hold the same was halted
by an invalid proclamation.

Also, more than the injustice that may be committed against Abundo is the injustice that may
likewise be committed against the people of Viga, Catanduanes by depriving them of their right to
choose their leaders. Like the framers of the Constitution, We bear in mind that We "cannot arrogate
unto ourselves the right to decide what the people want"76 and hence, should, as much as possible,
"allow the people to exercise their own sense of proportion and rely on their own strength to curtail
the power when it overreaches itself."77 For democracy draws strength from the choice the people
make which is the same choice We are likewise bound to protect.

WHEREFORE, the instant petition is PARTLY GRANTED. Accordingly, the assailed February 8, 2012
Resolution of the Commission on Elections Second Division and May 10, 2012 Resolution of the
Commission on Elections en banc in EAC (AE) No. A-25-2010 and the Decision of the Regional Trial
Court (RTC) of Virac, Catanduanes, Branch 43, dated August 9, 2010, in Election Case No. 55, are
hereby REVERSED and SET ASIDE.

Petitioner Abelardo Abundo, Sr. is DECLARED ELIGIBLE for the position of Mayor of Viga,
Catanduanes to which he was duly elected in the May 2010 elections and is accordingly ordered
IMMEDIATELY REINSTATED to said position. Withal, Emeterio M. Tarin and Cesar O. Cervantes are
ordered to immediately vacate the positions of Mayor and Vice-Mayor of Viga, Catanduanes,
respectively, and shall revert to their original positions of Vice-Mayor and First Councilor,
respectively, upon receipt of this Decision.

The TRO issued by the Court on July 3, 2012 is hereby LIFTED.

This Decision is immediately executory.

SO ORDERED.

92
[G.R. No. 103903. September 11, 1992.]
MELANIO D. SAMPAYAN, DIEGO L. TURLA, JR., and LEONARDO G. TIOZON, Petitioners, v.
RAUL. A. DAZA, HON. CAMILO SABIO, as Secretary of the House of Representatives, MR. JOSE
MARIA TUAÑO, as Officer-in-Charge, Gen. Services Division of the House of Representatives,
MRS. ROSALINDA G. MEDINA, as Chief Accountant of the House of Representatives, and the
HON. COMMISSION ON AUDIT, Respondents.
Luis H. Dado, for Petitioners.
Sevilla, Hechanova, Ballicud & Associates for respondent Raul Daza.
SYLLABUS
1. POLITICAL LAW; LEGISLATIVE DEPARTMENT; HOUSE ELECTORAL TRIBUNAL; SHALL
BE THE SOLE JUDGE OF ALL CONTESTS RELATING TO THE ELECTION, RETURNS AND
QUALIFICATIONS OF ITS MEMBERS. — Under Section 17 of Article VI of the 1987 Constitution, it is
the House Electoral Tribunal which shall be the sole judge of all contests relating to the election,
returns and qualification of its members. Since petitioners challenge the qualifications of
Congressman Daza, the appropriate remedy should have been to file a petition to cancel respondent
Daza’s certificate of candidacy before the election or a quo warranto case with the House Electoral
Tribunal within ten (10) days after Daza’s proclamation.
2. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; WRIT OF PROHIBITION; NOT INTENDED TO
PROVIDE FOR ACTS ALREADY CONSUMMATED. — A writ of prohibition can no longer be issued
against respondent since his term has already expired. A writ of prohibition is not intended to
provide for acts already consummated.
3. ADMINISTRATIVE LAW; PUBLIC OFFICERS; DE FACTO OFFICERS; ENTITLED TO
EMOLUMENT FOR ACTUAL SERVICES RENDERED. — As a de facto public officer, respondent cannot
be made to reimburse funds disbursed during his term of office because his acts are as valid as those
of a de jure officer. Moreover, as a de facto officer, he is entitled to emoluments for actual services
rendered.
RESOLUTION
ROMERO, J.:
On February 18, 1992, Petitioners, residents of the second Congressional District of Northern Samar
filed the instant petition for prohibition seeking to disqualify respondent Raul Daza, then incumbent
congressman of the same congressional district, from continuing to exercise the functions of his
office, on the ground that the latter is a greencard holder and a lawful permanent resident of the
United States since October 16, 1974.
Petitioners allege that Hr. Daza has not, by any act or declaration, renounced his status as
permanent resident, thereby violating Section 68 of Batas Pambansa Bilang 881 (Omnibus Election
Code) and Section 18, Article XI of the 1987 Constitution.chanrobles.com:cralaw:red
On February 25, 1992, we required respondents to comment. On March 13, 1992, Respondents,
through the Solicitor General, filed a motion for extension of time to file their comment for a period
of thirty days or until April 12, 1992. Reacting to the said motion, petitioners on March 30, 1992,
manifested their opposition to the 30-day extension of time stating that such extension was
excessive and prayed that respondent instead be granted only 10 days to file their comment. On
May 5, 1992, the Court noted the manifestation and opposition.
On April 7, 1992, petitioners manifested before us that on April 2, 1992, they filed a petition before
the COMELEC to disqualify respondent Daza from running in the recent May 11, 1992 elections on
the basis of Section 68 of the Omnibus Election Code (SPC 92-084) and that the instant petition is
concerned with the unlawful assumption of office by respondent Daza from June 30, 1987 until June
30, 1992. 1
On April 10, 1992, respondent Congressman Daza filed his comment denying the fact that he is a
permanent resident of the United States; that although he was accorded a permanent residency
status on October 8, 1980 as evidenced by a letter order of the District Director, US Immigration and
Naturalization Service, Los Angeles, U.S.A., 2 he had long waived his status when he returned to the
Philippines on August 12, 1985. 3
On April 13, 1992, public respondent Camilo Sabio, Secretary General of the House of
Representatives, Mr. Jose Mari Tuaño, as OIC of the General Services Division, Mrs. Rosalinda G.
Medina, as Chief Accountant of the House of Representatives and Commission on Audit, filed their
comment. They contend that if indeed Congressman Daza is a greencard holder and a permanent
resident of the United States of America, then he should be removed from his position as
Congressman. However, they opined that only Congressman Daza can best explain his true and
correct status as a greencard holder. Until he files his comment to the petition, petitioners’ prayer
for temporary restraining order and/or writ of preliminary injunction should not be granted. 4
Eight (8) days later, respondent Daza, reacting to the petition before the COMELEC (SPC 92-084)
and hypothesizing that the case before the COMELEC would become moot should this Court find
that his permanent resident status ceased when he was granted a US non-immigrant visa, asked this
Court to direct the COMELEC to dismiss SPC No. 92-084. 5
On May 5, 1992, petitioners filed their reply. On May 21, 1992, this Court gave due course to the
petition and required the parties to file their respective memoranda.chanrobles virtual lawlibrary
The central issue to be resolved in this case is whether or not respondent Daza should be
disqualified as a member of the House of Representatives for violation of Section 68 of the Omnibus
Election Code.
Petitioners insist that Congressman Daza should be disqualified from exercising the functions of his
office being a permanent resident alien of the United States at the time when he filed his certificate
of candidacy for the May 11, 1987 Elections. To buttress their contention, petitioners cite the recent
case of Caasi v. Court of Appeals. 6
In support of their charge that respondent Daza is a greencard holder, petitioners presented to us a
letter from the United States Department of Justice, Immigration and Naturalization Service (INS)
which reads: 7
File No. A20 968 618
Date: Nov. 5, 1991
LOS914732
Geraghty, O’Loughlin and Kenney
Attn: David C. Hutchinson
93
386 N. Wasbasha Street

St. Paul, Minn. 55102-1308

SUBJECT:chanrob1es virtual 1aw library

Daza, Raul A.

Your request was received in this office on _________; please note the paragraph(s) checked
below:chanrob1es virtual 1aw library

x x x

10. [XX] Other remarks:chanrob1es virtual 1aw library

Service File A20 968 619 relating to Raul Daza reflects: subject became a Lawful Permanent
Resident on Oct. 16, 1974. As far as we know subject (sic) still has his greencard. No he has not
applied for citizenship.

Sincerely, (sic)

Sgd.

District Director

Form G-343 (Rev. 8-20-82)N

We vote to dismiss the instant prohibition case. First, this case is already moot and academic for it is
evident from the manifestation filed by petitioners dated April 6, 1992 8 that they seek to unseat
respondent from his position as Congressman for the duration of his term of office commencing
June 30, 1987 and ending June 30, 1992. Secondly, jurisdiction of this case rightfully pertains to the
House Electoral Tribunal. Under Section 17 of Article VI of the 1987 Constitution, it is the House
Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns and
qualification of its members. Since petitioners challenge the qualifications of Congressman Daza, the
appropriate remedy should have been to file a petition to cancel respondent Daza’s certificate of
candidacy before the election 9 or a quo warranto case with the House Electoral Tribunal within ten
(10) days after Daza’s proclamation. 10 Third, a writ of prohibition can no longer be issued against
respondent since his term has already expired. A writ of prohibition is not intended to provide for
acts already consummated. 11 Fourth, as a de facto public officer, 12 respondent cannot be made to
reimburse funds disbursed during his term of office because his acts are as valid as those of a de
jure officer. Moreover, as a de facto officer, he is entitled to emoluments for actual services
rendered. 13

ACCORDINGLY, the Court Resolved to DISMISS the instant petition for being MOOT and ACADEMIC.

SO ORDERED.

Narvasa C.J., Padilla, Bidin, Griño-Aquino, Medialdea, Regalado, Davide, Jr., Nocon and Bellosillo, JJ.,
concur.

Gutierrez, Jr., Cruz and Feliciano, JJ., are on leave.

Melo and Campos, Jr., JJ., took no part.

94
G.R. No. 195649 April 16, 2013
CASAN MACODE MAQUILING, Petitioner,
vs.
COMMISSION ON ELECTIONS, ROMMEL ARNADO y CAGOCO, LINOG G. BALUA, Respondents.
DECISION
SERENO, CJ.:
THE CASE
This is a Petition for Certiorari ender Rule 64 in conjunction with Rule 65 of the Rules of Court to
review the Resolutions of the Commission on Elections (COMELEC). The Resolution1 in SPA No. 10-
1 09(DC) of the COMELEC First Division dated 5 October 201 0 is being assailed for applying Section
44 of the Local Government Code while the Resolution2 of the COMELEC En Banc dated 2 February
2011 is being questioned for finding that respondent Rommel Arnado y Cagoco (respondent
Arnado/Arnado) is solely a Filipino citizen qualified to run for public office despite his continued
use of a U.S. passport.
FACTS
Respondent Arnado is a natural born Filipino citizen.3 However, as a consequence of his subsequent
naturalization as a citizen of the United States of America, he lost his Filipino citizenship. Arnado
applied for repatriation under Republic Act (R.A.) No. 9225 before the Consulate General of the
Philippines in San Franciso, USA and took the Oath of Allegiance to the Republic of the Philippines
on 10 July 2008.4 On the same day an Order of Approval of his Citizenship Retention and Re-
acquisition was issued in his favor.5
The aforementioned Oath of Allegiance states:
I, Rommel Cagoco Arnado, solemnly swear that I will support and defend the Constitution of the
Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted
authorities of the Philippines and I hereby declare that I recognize and accept the supreme authority
of the Philippines and will maintain true faith and allegiance thereto; and that I impose this
obligation upon myself voluntarily without mental reservation or purpose of evasion.6
On 3 April 2009 Arnado again took his Oath of Allegiance to the Republic and executed an Affidavit
of Renunciation of his foreign citizenship, which states:
I, Rommel Cagoco Arnado, do solemnly swear that I absolutely and perpetually renounce all
allegiance and fidelity to the UNITED STATES OF AMERICA of which I am a citizen, and I divest
myself of full employment of all civil and political rights and privileges of the United States of
America.
I solemnly swear that all the foregoing statement is true and correct to the best of my knowledge
and belief.7
On 30 November 2009, Arnado filed his Certificate of Candidacy for Mayor of Kauswagan, Lanao del
Norte, which contains, among others, the following statements:
I am a natural born Filipino citizen / naturalized Filipino citizen.
I am not a permanent resident of, or immigrant to, a foreign country.
I am eligible for the office I seek to be elected to.
I will support and defend the Constitution of the Republic of the Philippines and will maintain true
faith and allegiance thereto. I will obey the laws, legal orders and decrees promulgated by the duly
constituted authorities.
I impose this obligation upon myself voluntarily without mental reservation or purpose of evasion.8
On 28 April 2010, respondent Linog C. Balua (Balua), another mayoralty candidate, filed a petition
to disqualify Arnado and/or to cancel his certificate of candidacy for municipal mayor of
Kauswagan, Lanao del Norte in connection with the 10 May 2010 local and national elections.9
Respondent Balua contended that Arnado is not a resident of Kauswagan, Lanao del Norte and that
he is a foreigner, attaching thereto a certification issued by the Bureau of Immigration dated 23
April 2010 indicating the nationality of Arnado as "USA-American."10To further bolster his claim of
Arnado’s US citizenship, Balua presented in his Memorandum a computer-generated travel
record11 dated 03 December 2009 indicating that Arnado has been using his US Passport No.
057782700 in entering and departing the Philippines. The said record shows that Arnado left the
country on 14 April 2009 and returned on 25 June 2009, and again departed on 29 July 2009,
arriving back in the Philippines on 24 November 2009.
Balua likewise presented a certification from the Bureau of Immigration dated 23 April 2010,
certifying that the name "Arnado, Rommel Cagoco" appears in the available Computer
Database/Passenger manifest/IBM listing on file as of 21 April 2010, with the following pertinent
travel records:
DATE OF Arrival : 01/12/2010
NATIONALITY : USA-AMERICAN
PASSPORT : 057782700
DATE OF Arrival : 03/23/2010
NATIONALITY : USA-AMERICAN
PASSPORT : 05778270012
On 30 April 2010, the COMELEC (First Division) issued an Order13 requiring the respondent to
personally file his answer and memorandum within three (3) days from receipt thereof.
After Arnado failed to answer the petition, Balua moved to declare him in default and to present
evidence ex-parte.
Neither motion was acted upon, having been overtaken by the 2010 elections where Arnado
garnered the highest number of votes and was subsequently proclaimed as the winning candidate
for Mayor of Kauswagan, Lanao del Norte.
It was only after his proclamation that Arnado filed his verified answer, submitting the following
documents as evidence:14
1. Affidavit of Renunciation and Oath of Allegiance to the Republic of the Philippines dated 03 April
2009;
2. Joint-Affidavit dated 31 May 2010 of Engr. Virgil Seno, Virginia Branzuela, Leoncio Daligdig, and
Jessy Corpin, all neighbors of Arnado, attesting that Arnado is a long-time resident of Kauswagan
95
and that he has been conspicuously and continuously residing in his family’s ancestral house in
Kauswagan;
3. Certification from the Punong Barangay of Poblacion, Kauswagan, Lanao del Norte dated 03 June
2010 stating that Arnado is a bona fide resident of his barangay and that Arnado went to the United
States in 1985 to work and returned to the Philippines in 2009;
4. Certification dated 31 May 2010 from the Municipal Local Government Operations Office of
Kauswagan stating that Dr. Maximo P. Arnado, Sr. served as Mayor of Kauswagan, from January
1964 to June 1974 and from 15 February 1979 to 15 April 1986; and
5. Voter Certification issued by the Election Officer of Kauswagan certifying that Arnado has been a
registered voter of Kauswagan since 03 April 2009.
THE RULING OF THE COMELEC FIRST DIVISION
Instead of treating the Petition as an action for the cancellation of a certificate of candidacy based on
misrepresentation,15 the COMELEC First Division considered it as one for disqualification. Balua’s
contention that Arnado is a resident of the United States was dismissed upon the finding that "Balua
failed to present any evidence to support his contention,"16 whereas the First Division still could
"not conclude that Arnado failed to meet the one-year residency requirement under the Local
Government Code."17
In the matter of the issue of citizenship, however, the First Division disagreed with Arnado’s claim
that he is a Filipino citizen.18
We find that although Arnado appears to have substantially complied with the requirements of R.A.
No. 9225, Arnado’s act of consistently using his US passport after renouncing his US citizenship on
03 April 2009 effectively negated his Affidavit of Renunciation.
xxxx
Arnado’s continued use of his US passport is a strong indication that Arnado had no real intention to
renounce his US citizenship and that he only executed an Affidavit of Renunciation to enable him to
run for office. We cannot turn a blind eye to the glaring inconsistency between Arnado’s
unexplained use of a US passport six times and his claim that he re-acquired his Philippine
citizenship and renounced his US citizenship. As noted by the Supreme Court in the Yu case, "a
passport is defined as an official document of identity and nationality issued to a person intending
to travel or sojourn in foreign countries." Surely, one who truly divested himself of US citizenship
would not continue to avail of privileges reserved solely for US nationals.19
The dispositive portion of the Resolution rendered by the COMELEC
First Division reads:
WHEREFORE, in view of the foregoing, the petition for disqualification and/or to cancel the
certificate of candidacy of Rommel C. Arnado is hereby GRANTED. Rommel C. Arnado’s
proclamation as the winning candidate for Municipal Mayor of Kauswagan, Lanao del Nore is hereby
ANNULLED. Let the order of succession under Section 44 of the Local Government Code of 1991
take effect.20
The Motion for Reconsideration and
the Motion for Intervention
Arnado sought reconsideration of the resolution before the COMELEC En Banc on the ground that
"the evidence is insufficient to justify the Resolution and that the said Resolution is contrary to
law."21 He raised the following contentions:22
1. The finding that he is not a Filipino citizen is not supported by the evidence consisting of his Oath
of Allegiance and the Affidavit of Renunciation, which show that he has substantially complied with
the requirements of R.A. No. 9225;
2. The use of his US passport subsequent to his renunciation of his American citizenship is not
tantamount to a repudiation of his Filipino citizenship, as he did not perform any act to swear
allegiance to a country other than the Philippines;
3. He used his US passport only because he was not informed of the issuance of his Philippine
passport, and that he used his Philippine passport after he obtained it;
4. Balua’s petition to cancel the certificate of candidacy of Arnado was filed out of time, and the First
Division’s treatment of the petition as one for disqualification constitutes grave abuse of discretion
amounting to excess of jurisdiction;23
5. He is undoubtedly the people’s choice as indicated by his winning the elections;
6. His proclamation as the winning candidate ousted the COMELEC from jurisdiction over the case;
and
7. The proper remedy to question his citizenship is through a petition for quo warranto, which
should have been filed within ten days from his proclamation.
Petitioner Casan Macode Maquiling (Maquiling), another candidate for mayor of Kauswagan, and
who garnered the second highest number of votes in the 2010 elections, intervened in the case and
filed before the COMELEC En Banc a Motion for Reconsideration together with an Opposition to
Arnado’s Amended Motion for Reconsideration. Maquiling argued that while the First Division
correctly disqualified Arnado, the order of succession under Section 44 of the Local Government
Code is not applicable in this case. Consequently, he claimed that the cancellation of Arnado’s
candidacy and the nullification of his proclamation, Maquiling, as the legitimate candidate who
obtained the highest number of lawful votes, should be proclaimed as the winner.
Maquiling simultaneously filed his Memorandum with his Motion for Intervention and his Motion
for Reconsideration. Arnado opposed all motions filed by Maquiling, claiming that intervention is
prohibited after a decision has already been rendered, and that as a second-placer, Maquiling
undoubtedly lost the elections and thus does not stand to be prejudiced or benefitted by the final
adjudication of the case.
RULING OF THE COMELEC EN BANC
In its Resolution of 02 February 2011, the COMELEC En Banc held that under Section 6 of Republic
Act No. 6646, the Commission "shall continue with the trial and hearing of the action, inquiry or
protest even after the proclamation of the candidate whose qualifications for office is questioned."
As to Maquiling’s intervention, the COMELEC En Banc also cited Section 6 of R.A. No. 6646 which
allows intervention in proceedings for disqualification even after elections if no final judgment has
been rendered, but went on further to say that Maquiling, as the second placer, would not be
prejudiced by the outcome of the case as it agrees with the dispositive portion of the Resolution of
the First Division allowing the order of succession under Section 44 of the Local Government Code
to take effect.
96
The COMELEC En Banc agreed with the treatment by the First Division of the petition as one for
disqualification, and ruled that the petition was filed well within the period prescribed by law,24
having been filed on 28 April 2010, which is not later than 11 May 2010, the date of proclamation.
However, the COMELEC En Banc reversed and set aside the ruling of the First Division and granted
Arnado’s Motion for Reconsideration, on the following premises:
First:
By renouncing his US citizenship as imposed by R.A. No. 9225, the respondent embraced his
Philippine citizenship as though he never became a citizen of another country. It was at that time,
April 3, 2009, that the respondent became a pure Philippine Citizen again.
xxxx
The use of a US passport … does not operate to revert back his status as a dual citizen prior to his
renunciation as there is no law saying such. More succinctly, the use of a US passport does not
operate to "un-renounce" what he has earlier on renounced. The First Division’s reliance in the case
of In Re: Petition for Habeas Corpus of Willy Yu v. Defensor-Santiago, et al. is misplaced. The
petitioner in the said case is a naturalized citizen who, after taking his oath as a naturalized Filipino,
applied for the renewal of his Portuguese passport. Strict policy is maintained in the conduct of
citizens who are not natural born, who acquire their citizenship by choice, thus discarding their
original citizenship. The Philippine State expects strict conduct of allegiance to those who choose to
be its citizens. In the present case, respondent is not a naturalized citizen but a natural born citizen
who chose greener pastures by working abroad and then decided to repatriate to supposedly help
in the progress of Kauswagan. He did not apply for a US passport after his renunciation. Thus the
mentioned case is not on all fours with the case at bar.
xxxx
The respondent presented a plausible explanation as to the use of his US passport. Although he
applied for a Philippine passport, the passport was only issued on June 18, 2009. However, he was
not notified of the issuance of his Philippine passport so that he was actually able to get it about
three (3) months later. Yet as soon as he was in possession of his Philippine passport, the
respondent already used the same in his subsequent travels abroad. This fact is proven by the
respondent’s submission of a certified true copy of his passport showing that he used the same for
his travels on the following dates: January 31, 2010, April 16, 2010, May 20, 2010, January 12, 2010,
March 31, 2010 and June 4, 2010. This then shows that the use of the US passport was because to his
knowledge, his Philippine passport was not yet issued to him for his use. As probably pressing
needs might be undertaken, the respondent used whatever is within his control during that time.25
In his Separate Concurring Opinion, COMELEC Chairman Sixto Brillantes cited that the use of foreign
passport is not one of the grounds provided for under Section 1 of Commonwealth Act No. 63
through which Philippine citizenship may be lost.
"The application of the more assimilative principle of continuity of citizenship is more appropriate
in this case. Under said principle, once a person becomes a citizen, either by birth or naturalization,
it is assumed that he desires to continue to be a citizen, and this assumption stands until he
voluntarily denationalizes or expatriates himself. Thus, in the instant case respondent after
reacquiring his Philippine citizenship should be presumed to have remained a Filipino despite his
use of his American passport in the absence of clear, unequivocal and competent proof of
expatriation. Accordingly, all doubts should be resolved in favor of retention of citizenship."26
On the other hand, Commissioner Rene V. Sarmiento dissented, thus:
Respondent evidently failed to prove that he truly and wholeheartedly abandoned his allegiance to
the United States. The latter’s continued use of his US passport and enjoyment of all the privileges of
a US citizen despite his previous renunciation of the afore-mentioned citizenship runs contrary to
his declaration that he chose to retain only his Philippine citizenship. Respondent’s submission with
the twin requirements was obviously only for the purpose of complying with the requirements for
running for the mayoralty post in connection with the May 10, 2010 Automated National and Local
Elections.
Qualifications for elective office, such as citizenship, are continuing requirements; once any of them
is lost during his incumbency, title to the office itself is deemed forfeited. If a candidate is not a
citizen at the time he ran for office or if he lost his citizenship after his election to office, he is
disqualified to serve as such. Neither does the fact that respondent obtained the plurality of votes
for the mayoralty post cure the latter’s failure to comply with the qualification requirements
regarding his citizenship.
Since a disqualified candidate is no candidate at all in the eyes of the law, his having received the
highest number of votes does not validate his election. It has been held that where a petition for
disqualification was filed before election against a candidate but was adversely resolved against him
after election, his having obtained the highest number of votes did not make his election valid. His
ouster from office does not violate the principle of vox populi suprema est lex because the
application of the constitutional and statutory provisions on disqualification is not a matter of
popularity. To apply it is to breath[e] life to the sovereign will of the people who expressed it when
they ratified the Constitution and when they elected their representatives who enacted the law.27
THE PETITION BEFORE THE COURT
Maquiling filed the instant petition questioning the propriety of declaring Arnado qualified to run
for public office despite his continued use of a US passport, and praying that Maquiling be
proclaimed as the winner in the 2010 mayoralty race in Kauswagan, Lanao del Norte.
Ascribing both grave abuse of discretion and reversible error on the part of the COMELEC En Banc
for ruling that Arnado is a Filipino citizen despite his continued use of a US passport, Maquiling now
seeks to reverse the finding of the COMELEC En Banc that Arnado is qualified to run for public office.
Corollary to his plea to reverse the ruling of the COMELEC En Banc or to affirm the First Division’s
disqualification of Arnado, Maquiling also seeks the review of the applicability of Section 44 of the
Local Government Code, claiming that the COMELEC committed reversible error in ruling that "the
succession of the vice mayor in case the respondent is disqualified is in order."
There are three questions posed by the parties before this Court which will be addressed seriatim as
the subsequent questions hinge on the result of the first.
The first question is whether or not intervention is allowed in a disqualification case.
The second question is whether or not the use of a foreign passport after renouncing foreign
citizenship amounts to undoing a renunciation earlier made.
A better framing of the question though should be whether or not the use of a foreign passport after
renouncing foreign citizenship affects one’s qualifications to run for public office.
The third question is whether or not the rule on succession in the Local Government Code is
applicable to this case.
OUR RULING
97
Intervention of a rival candidate in a
disqualification case is proper when
there has not yet been any
proclamation of the winner.
Petitioner Casan Macode Maquiling intervened at the stage when respondent Arnado filed a Motion
for Reconsideration of the First Division Resolution before the COMELEC En Banc. As the candidate
who garnered the second highest number of votes, Maquiling contends that he has an interest in the
disqualification case filed against Arnado, considering that in the event the latter is disqualified, the
votes cast for him should be considered stray and the second-placer should be proclaimed as the
winner in the elections.
It must be emphasized that while the original petition before the COMELEC is one for cancellation of
the certificate of candidacy and / or disqualification, the COMELEC First Division and the COMELEC
En Banc correctly treated the petition as one for disqualification.
The effect of a disqualification case is enunciated in Section 6 of R.A. No. 6646:
Sec. 6. Effect of Disqualification Case. - Any candidate who has been declared by final judgment to be
disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a
candidate is not declared by final judgment before an election to be disqualified and he is voted for
and receives the winning number of votes in such election, the Court or Commission shall continue
with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or
any intervenor, may during the pendency thereof order the suspension of the proclamation of such
candidate whenever the evidence of his guilt is strong.
Mercado v. Manzano28
clarified the right of intervention in a disqualification case. In that case, the Court said:
That petitioner had a right to intervene at that stage of the proceedings for the disqualification
against private respondent is clear from Section 6 of R.A. No. 6646, otherwise known as the
Electoral Reforms Law of 1987, which provides: Any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If
for any reason a candidate is not declared by final judgment before an election to be disqualified and
he is voted for and receives the winning number of votes in such election, the Court or Commission
shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the
complainant or any intervenor, may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of guilt is strong. Under this provision,
intervention may be allowed in proceedings for disqualification even after election if there has yet
been no final judgment rendered.29
Clearly then, Maquiling has the right to intervene in the case. The fact that the COMELEC En Banc
has already ruled that Maquiling has not shown that the requisites for the exemption to the second-
placer rule set forth in Sinsuat v. COMELEC30 are present and therefore would not be prejudiced by
the outcome of the case, does not deprive Maquiling of the right to elevate the matter before this
Court.
Arnado’s claim that the main case has attained finality as the original petitioner and respondents
therein have not appealed the decision of the COMELEC En Banc, cannot be sustained. The elevation
of the case by the intervenor prevents it from attaining finality. It is only after this Court has ruled
upon the issues raised in this instant petition that the disqualification case originally filed by Balua
against Arnado will attain finality.
The use of foreign passport after renouncing one’s foreign citizenship is a positive and voluntary act
of representation as to one’s nationality and citizenship; it does not divest Filipino citizenship
regained by repatriation but it recants the Oath of Renunciation required to qualify one to run for an
elective position.
Section 5(2) of The Citizenship Retention and Re-acquisition Act of 2003 provides:
Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil and
political rights and be subject to all attendant liabilities and responsibilities under existing laws of
the Philippines and the following conditions:
xxxx
(2)Those seeking elective public in the Philippines shall meet the qualification for holding such
public office as required by the Constitution and existing laws and, at the time of the filing of the
certificate of candidacy, make a personal and sworn renunciation of any and all foreign before any
public officer authorized to administer an oath.
x x x31
Rommel Arnado took all the necessary steps to qualify to run for a public office. He took the Oath of
Allegiance and renounced his foreign citizenship. There is no question that after performing these
twin requirements required under Section 5(2) of R.A. No. 9225 or the Citizenship Retention and
Re-acquisition Act of 2003, he became eligible to run for public office.
Indeed, Arnado took the Oath of Allegiance not just only once but twice: first, on 10 July 2008 when
he applied for repatriation before the Consulate General of the Philippines in San Francisco, USA,
and again on 03 April 2009 simultaneous with the execution of his Affidavit of Renunciation. By
taking the Oath of Allegiance to the Republic, Arnado re-acquired his Philippine citizenship. At the
time, however, he likewise possessed American citizenship. Arnado had therefore become a dual
citizen.
After reacquiring his Philippine citizenship, Arnado renounced his American citizenship by
executing an Affidavit of Renunciation, thus completing the requirements for eligibility to run for
public office.
By renouncing his foreign citizenship, he was deemed to be solely a Filipino citizen, regardless of the
effect of such renunciation under the laws of the foreign country.32
However, this legal presumption does not operate permanently and is open to attack when, after
renouncing the foreign citizenship, the citizen performs positive acts showing his continued
possession of a foreign citizenship.33
Arnado himself subjected the issue of his citizenship to attack when, after renouncing his foreign
citizenship, he continued to use his US passport to travel in and out of the country before filing his
certificate of candidacy on 30 November 2009. The pivotal question to determine is whether he was
solely and exclusively a Filipino citizen at the time he filed his certificate of candidacy, thereby
rendering him eligible to run for public office.
Between 03 April 2009, the date he renounced his foreign citizenship, and 30 November 2009, the
date he filed his COC, he used his US passport four times, actions that run counter to the affidavit of
renunciation he had earlier executed. By using his foreign passport, Arnado positively and
voluntarily represented himself as an American, in effect declaring before immigration authorities
of both countries that he is an American citizen, with all attendant rights and privileges granted by
the United States of America.
The renunciation of foreign citizenship is not a hollow oath that can simply be professed at any time,
only to be violated the next day. It requires an absolute and perpetual renunciation of the foreign
98
citizenship and a full divestment of all civil and political rights granted by the foreign country which
granted the citizenship.
Mercado v. Manzano34 already hinted at this situation when the Court declared:
His declarations will be taken upon the faith that he will fulfill his undertaking made under oath.
Should he betray that trust, there are enough sanctions for declaring the loss of his Philippine
citizenship through expatriation in appropriate proceedings. In Yu v. Defensor-Santiago, we
sustained the denial of entry into the country of petitioner on the ground that, after taking his oath
as a naturalized citizen, he applied for the renewal of his Portuguese passport and declared in
commercial documents executed abroad that he was a Portuguese national. A similar sanction can
be taken against anyone who, in electing Philippine citizenship, renounces his foreign nationality,
but subsequently does some act constituting renunciation of his Philippine citizenship.
While the act of using a foreign passport is not one of the acts enumerated in Commonwealth Act
No. 63 constituting renunciation and loss of Philippine citizenship,35 it is nevertheless an act which
repudiates the very oath of renunciation required for a former Filipino citizen who is also a citizen
of another country to be qualified to run for a local elective position.
When Arnado used his US passport on 14 April 2009, or just eleven days after he renounced his
American citizenship, he recanted his Oath of Renunciation36 that he "absolutely and perpetually
renounce(s) all allegiance and fidelity to the UNITED STATES OF AMERICA"37 and that he "divest(s)
himself of full employment of all civil and political rights and privileges of the United States of
America."38
We agree with the COMELEC En Banc that such act of using a foreign passport does not divest
Arnado of his Filipino citizenship, which he acquired by repatriation. However, by representing
himself as an American citizen, Arnado voluntarily and effectively reverted to his earlier status as a
dual citizen. Such reversion was not retroactive; it took place the instant Arnado represented
himself as an American citizen by using his US passport.
This act of using a foreign passport after renouncing one’s foreign citizenship is fatal to Arnado’s bid
for public office, as it effectively imposed on him a disqualification to run for an elective local
position.
Arnado’s category of dual citizenship is that by which foreign citizenship is acquired through a
positive act of applying for naturalization. This is distinct from those considered dual citizens by
virtue of birth, who are not required by law to take the oath of renunciation as the mere filing of the
certificate of candidacy already carries with it an implied renunciation of foreign citizenship.39 Dual
citizens by naturalization, on the other hand, are required to take not only the Oath of Allegiance to
the Republic of the Philippines but also to personally renounce foreign citizenship in order to
qualify as a candidate for public office.
By the time he filed his certificate of candidacy on 30 November 2009, Arnado was a dual citizen
enjoying the rights and privileges of Filipino and American citizenship. He was qualified to vote, but
by the express disqualification under Section 40(d) of the Local Government Code,40 he was not
qualified to run for a local elective position.
In effect, Arnado was solely and exclusively a Filipino citizen only for a period of eleven days, or
from 3 April 2009 until 14 April 2009, on which date he first used his American passport after
renouncing his American citizenship.
This Court has previously ruled that:
Qualifications for public office are continuing requirements and must be possessed not only at the
time of appointment or election or assumption of office but during the officer's entire tenure. Once
any of the required qualifications is lost, his title may be seasonably challenged. x x x.41
The citizenship requirement for elective public office is a continuing one. It must be possessed not
just at the time of the renunciation of the foreign citizenship but continuously. Any act which
violates the oath of renunciation opens the citizenship issue to attack.
We agree with the pronouncement of the COMELEC First Division that "Arnado’s act of consistently
using his US passport effectively negated his "Affidavit of Renunciation."42 This does not mean, that
he failed to comply with the twin requirements under R.A. No. 9225, for he in fact did.
It was after complying with the requirements that he performed positive acts which effectively
disqualified him from running for an elective public office pursuant to Section 40(d) of the Local
Government Code of 1991.
The purpose of the Local Government Code in disqualifying dual citizens from running for any
elective public office would be thwarted if we were to allow a person who has earlier renounced his
foreign citizenship, but who subsequently represents himself as a foreign citizen, to hold any public
office.
Arnado justifies the continued use of his US passport with the explanation that he was not notified
of the issuance of his Philippine passport on 18 June 2009, as a result of which he was only able to
obtain his Philippine passport three (3) months later.43
The COMELEC En Banc differentiated Arnado from Willy Yu, the Portuguese national who sought
naturalization as a Filipino citizen and later applied for the renewal of his Portuguese passport. That
Arnado did not apply for a US passport after his renunciation does not make his use of a US passport
less of an act that violated the Oath of Renunciation he took. It was still a positive act of
representation as a US citizen before the immigration officials of this country.
The COMELEC, in ruling favorably for Arnado, stated "Yet, as soon as he was in possession of his
Philippine passport, the respondent already used the same in his subsequent travels abroad."44 We
cannot agree with the COMELEC. Three months from June is September. If indeed, Arnado used his
Philippine passport as soon as he was in possession of it, he would not have used his US passport on
24 November 2009.
Besides, Arnado’s subsequent use of his Philippine passport does not correct the fact that after he
renounced his foreign citizenship and prior to filing his certificate of candidacy, he used his US
passport. In the same way that the use of his foreign passport does not undo his Oath of
Renunciation, his subsequent use of his Philippine passport does not undo his earlier use of his US
passport.
Citizenship is not a matter of convenience. It is a badge of identity that comes with attendant civil
and political rights accorded by the state to its citizens. It likewise demands the concomitant duty to
maintain allegiance to one’s flag and country. While those who acquire dual citizenship by choice
are afforded the right of suffrage, those who seek election or appointment to public office are
required to renounce their foreign citizenship to be deserving of the public trust. Holding public
office demands full and undivided allegiance to the Republic and to no other.
We therefore hold that Arnado, by using his US passport after renouncing his American citizenship,
has recanted the same Oath of Renunciation he took. Section 40(d) of the Local Government Code
applies to his situation. He is disqualified not only from holding the public office but even from
becoming a candidate in the May 2010 elections.
We now resolve the next issue.
99

Resolving the third issue necessitates revisiting Topacio v. Paredes45 which is the jurisprudential
spring of the principle that a second-placer cannot be proclaimed as the winner in an election
contest. This doctrine must be re-examined and its soundness once again put to the test to address
the ever-recurring issue that a second-placer who loses to an ineligible candidate cannot be
proclaimed as the winner in the elections.
The Facts of the case are as follows:
On June 4, 1912, a general election was held in the town of Imus, Province of Cavite, to fill the office
of municipal president. The petitioner, Felipe Topacio, and the respondent, Maximo Abad, were
opposing candidates for that office. Topacio received 430 votes, and Abad 281. Abad contested the
election upon the sole ground that Topacio was ineligible in that he was reelected the second time
to the office of the municipal president on June 4, 1912, without the four years required by Act No.
2045 having intervened.46
Abad thus questioned the eligibility of To p a c i o on the basis of a statutory prohibition for seeking
a second re-election absent the four year interruption.
The often-quoted phrase in Topacio v. Paredes is that "the wreath of victory cannot be transferred
from an ineligible candidate to any other candidate when the sole question is the eligibility of the
one receiving a plurality of the legally cast ballots."47
This phrase is not even the ratio decidendi; it is a mere obiter dictum. The Court was comparing "the
effect of a decision that a candidate is not entitled to the office because of fraud or irregularities in
the elections x x x with that produced by declaring a person ineligible to hold such an office."
The complete sentence where the phrase is found is part of a comparison and contrast between the
two situations, thus:
Again, the effect of a decision that a candidate is not entitled to the office because of fraud or
irregularities in the elections is quite different from that produced by declaring a person ineligible
to hold such an office. In the former case the court, after an examination of the ballots may find that
some other person than the candidate declared to have received a plurality by the board of
canvassers actually received the greater number of votes, in which case the court issues its
mandamus to the board of canvassers to correct the returns accordingly; or it may find that the
manner of holding the election and the returns are so tainted with fraud or illegality that it cannot
be determined who received a plurality of the legally cast ballots. In the latter case, no question as to
the correctness of the returns or the manner of casting and counting the ballots is before the
deciding power, and generally the only result can be that the election fails entirely. In the former, we
have a contest in the strict sense of the word, because of the opposing parties are striving for
supremacy. If it be found that the successful candidate (according to the board of canvassers)
obtained a plurality in an illegal manner, and that another candidate was the real victor, the former
must retire in favor of the latter. In the other case, there is not, strictly speaking, a contest, as the
wreath of victory cannot be transferred from an ineligible candidate to any other candidate when
the sole question is the eligibility of the one receiving a plurality of the legally cast ballots. In the one
case the question is as to who received a plurality of the legally cast ballots; in the other, the
question is confined to the personal character and circumstances of a single individual.48
(Emphasis supplied)
Note that the sentence where the phrase is found starts with "In the other case, there is not, strictly
speaking, a contest" in contrast to the earlier statement, "In the former, we have a contest in the
strict sense of the word, because of the opposing parties are striving for supremacy."
The Court in Topacio v. Paredes cannot be said to have held that "the wreath of victory cannot be
transferred from an ineligible candidate to any other candidate when the sole question is the
eligibility of the one receiving a plurality of the legally cast ballots."
A proper reading of the case reveals that the ruling therein is that since the Court of First Instance is
without jurisdiction to try a disqualification case based on the eligibility of the person who obtained
the highest number of votes in the election, its jurisdiction being confined "to determine which of
the contestants has been duly elected" the judge exceeded his jurisdiction when he "declared that no
one had been legally elected president of the municipality of Imus at the general election held in that
town on 4 June 1912" where "the only question raised was whether or not Topacio was eligible to
be elected and to hold the office of municipal president."
The Court did not rule that Topacio was disqualified and that Abad as the second placer cannot be
proclaimed in his stead. The Court therein ruled:
For the foregoing reasons, we are of the opinion and so hold that the respondent judge exceeded his
jurisdiction in declaring in those proceedings that no one was elected municipal president of the
municipality of Imus at the last general election; and that said order and all subsequent proceedings
based thereon are null and void and of no effect; and, although this decision is rendered on
respondents' answer to the order to show cause, unless respondents raised some new and
additional issues, let judgment be entered accordingly in 5 days, without costs. So ordered.49
On closer scrutiny, the phrase relied upon by a host of decisions does not even have a legal basis to
stand on. It was a mere pronouncement of the Court comparing one process with another and
explaining the effects thereof. As an independent statement, it is even illogical.
Let us examine the statement:
"x x x the wreath of victory cannot be transferred from an ineligible candidate to any other
candidate when the sole question is the eligibility of the one receiving a plurality of the legally cast
ballots."
What prevents the transfer of the wreath of victory from the ineligible candidate to another
candidate?
When the issue being decided upon by the Court is the eligibility of the one receiving a plurality of
the legally cast ballots and ineligibility is thereafter established, what stops the Court from
adjudging another eligible candidate who received the next highest number of votes as the winner
and bestowing upon him that "wreath?"
An ineligible candidate who receives the highest number of votes is a wrongful winner. By express
legal mandate, he could not even have been a candidate in the first place, but by virtue of the lack of
material time or any other intervening circumstances, his ineligibility might not have been passed
upon prior to election date. Consequently, he may have had the opportunity to hold himself out to
the electorate as a legitimate and duly qualified candidate. However, notwithstanding the outcome
of the elections, his ineligibility as a candidate remains unchanged. Ineligibility does not only pertain
to his qualifications as a candidate but necessarily affects his right to hold public office. The number
of ballots cast in his favor cannot cure the defect of failure to qualify with the substantive legal
requirements of eligibility to run for public office.
The popular vote does not cure the
ineligibility of a candidate.
The ballot cannot override the constitutional and statutory requirements for qualifications and
disqualifications of candidates. When the law requires certain qualifications to be possessed or that
certain disqualifications be not possessed by persons desiring to serve as elective public officials,
100
those qualifications must be met before one even becomes a candidate. When a person who is not
qualified is voted for and eventually garners the highest number of votes, even the will of the
electorate expressed through the ballot cannot cure the defect in the qualifications of the candidate.
To rule otherwise is to trample upon and rent asunder the very law that sets forth the qualifications
and disqualifications of candidates. We might as well write off our election laws if the voice of the
electorate is the sole determinant of who should be proclaimed worthy to occupy elective positions
in our republic.
This has been, in fact, already laid down by the Court in Frivaldo v. COMELEC50 when we
pronounced:
x x x. The fact that he was elected by the people of Sorsogon does not excuse this patent violation of
the salutary rule limiting public office and employment only to the citizens of this country. The
qualifications prescribed for elective office cannot be erased by the electorate alone.
The will of the people as expressed through the ballot cannot cure the vice of ineligibility, especially
if they mistakenly believed, as in this case, that the candidate was qualified. Obviously, this rule
requires strict application when the deficiency is lack of citizenship. If a person seeks to serve in the
Republic of the Philippines, he must owe his total loyalty to this country only, abjuring and
renouncing all fealty and fidelity to any other state.51 (Emphasis supplied)
This issue has also been jurisprudentially clarified in Velasco v. COMELEC52 where the Court ruled
that the ruling in Quizon and Saya-ang cannot be interpreted without qualifications lest "Election
victory x x x becomes a magic formula to bypass election eligibility requirements."53
We have ruled in the past that a candidate’s victory in the election may be considered a sufficient
basis to rule in favor of the candidate sought to be disqualified if the main issue involves defects in
the candidate’s certificate of candidacy. We said that while provisions relating to certificates of
candidacy are mandatory in terms, it is an established rule of interpretation as regards election
laws, that mandatory provisions requiring certain steps before elections will be construed as
directory after the elections, to give effect to the will of the people. We so ruled in Quizon v.
COMELEC and Saya-ang v. COMELEC:
The present case perhaps presents the proper time and opportunity to fine-tune our above ruling.
We say this with the realization that a blanket and unqualified reading and application of this ruling
can be fraught with dangerous significance for the rule of law and the integrity of our elections. For
one, such blanket/unqualified reading may provide a way around the law that effectively negates
election requirements aimed at providing the electorate with the basic information to make an
informed choice about a candidate’s eligibility and fitness for office.
The first requirement that may fall when an unqualified reading is made is Section 39 of the LGC
which specifies the basic qualifications of local government officials. Equally susceptive of being
rendered toothless is Section 74 of the OEC that sets out what should be stated in a COC. Section 78
may likewise be emasculated as mere delay in the resolution of the petition to cancel or deny due
course to a COC can render a Section 78 petition useless if a candidate with false COC data wins. To
state the obvious, candidates may risk falsifying their COC qualifications if they know that an
election victory will cure any defect that their COCs may have. Election victory then becomes a
magic formula to bypass election eligibility requirements. (Citations omitted)
What will stop an otherwise disqualified individual from filing a seemingly valid COC, concealing
any disqualification, and employing every strategy to delay any disqualification case filed against
him so he can submit himself to the electorate and win, if winning the election will guarantee a
disregard of constitutional and statutory provisions on qualifications and disqualifications of
candidates?
It is imperative to safeguard the expression of the sovereign voice through the ballot by ensuring
that its exercise respects the rule of law. To allow the sovereign voice spoken through the ballot to
trump constitutional and statutory provisions on qualifications and disqualifications of candidates
is not democracy or republicanism. It is electoral anarchy. When set rules are disregarded and only
the electorate’s voice spoken through the ballot is made to matter in the end, it precisely serves as
an open invitation for electoral anarchy to set in.1âwphi1
Maquiling is not a second-placer as
he obtained the highest number of
votes from among the qualified
candidates.
With Arnado’s disqualification, Maquiling then becomes the winner in the election as he obtained
the highest number of votes from among the qualified candidates.
We have ruled in the recent cases of Aratea v. COMELEC54 and Jalosjos v. COMELEC55 that a void
COC cannot produce any legal effect.
Thus, the votes cast in favor of the ineligible candidate are not considered at all in determining the
winner of an election.
Even when the votes for the ineligible candidate are disregarded, the will of the electorate is still
respected, and even more so. The votes cast in favor of an ineligible candidate do not constitute the
sole and total expression of the sovereign voice. The votes cast in favor of eligible and legitimate
candidates form part of that voice and must also be respected.
As in any contest, elections are governed by rules that determine the qualifications and
disqualifications of those who are allowed to participate as players. When there are participants
who turn out to be ineligible, their victory is voided and the laurel is awarded to the next in rank
who does not possess any of the disqualifications nor lacks any of the qualifications set in the rules
to be eligible as candidates.
There is no need to apply the rule cited in Labo v. COMELEC56 that when the voters are well aware
within the realm of notoriety of a candidate’s disqualification and still cast their votes in favor said
candidate, then the eligible candidate obtaining the next higher number of votes may be deemed
elected. That rule is also a mere obiter that further complicated the rules affecting qualified
candidates who placed second to ineligible ones.
The electorate’s awareness of the candidate’s disqualification is not a prerequisite for the
disqualification to attach to the candidate. The very existence of a disqualifying circumstance makes
the candidate ineligible. Knowledge by the electorate of a candidate’s disqualification is not
necessary before a qualified candidate who placed second to a disqualified one can be proclaimed as
the winner. The second-placer in the vote count is actually the first-placer among the qualified
candidates.
That the disqualified candidate has already been proclaimed and has assumed office is of no
moment. The subsequent disqualification based on a substantive ground that existed prior to the
filing of the certificate of candidacy voids not only the COC but also the proclamation.
Section 6 of R.A. No. 6646 provides:
Section 6. Effect of Disqualification Case. - Any candidate who has been declared by final judgment
to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any
reason a candidate is not declared by final judgment before an election to be disqualified and he is
voted for and receives the winning number of votes in such election, the Court or Commission shall
continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the
101
complainant or any intervenor, may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt is strong.

There was no chance for Arnado’s proclamation to be suspended under this rule because Arnado
failed to file his answer to the petition seeking his disqualification. Arnado only filed his Answer on
15 June 2010, long after the elections and after he was already proclaimed as the winner.

The disqualifying circumstance surrounding Arnado’s candidacy involves his citizenship. It does not
involve the commission of election offenses as provided for in the first sentence of Section 68 of the
Omnibus Election Code, the effect of which is to disqualify the individual from continuing as a
candidate, or if he has already been elected, from holding the office.

The disqualifying circumstance affecting Arnado is his citizenship. As earlier discussed, Arnado was
both a Filipino and an American citizen when he filed his certificate of candidacy. He was a dual
citizen disqualified to run for public office based on Section 40(d) of the Local Government Code.

Section 40 starts with the statement "The following persons are disqualified from running for any
elective local position." The prohibition serves as a bar against the individuals who fall under any of
the enumeration from participating as candidates in the election.

With Arnado being barred from even becoming a candidate, his certificate of candidacy is thus
rendered void from the beginning. It could not have produced any other legal effect except that
Arnado rendered it impossible to effect his disqualification prior to the elections because he filed his
answer to the petition when the elections were conducted already and he was already proclaimed
the winner.

To hold that such proclamation is valid is to negate the prohibitory character of the disqualification
which Arnado possessed even prior to the filing of the certificate of candidacy. The affirmation of
Arnado's disqualification, although made long after the elections, reaches back to the filing of the
certificate of candidacy. Arnado is declared to be not a candidate at all in the May 201 0 elections.

Arnado being a non-candidate, the votes cast in his favor should not have been counted. This leaves
Maquiling as the qualified candidate who obtained the highest number of votes. Therefore, the rule
on succession under the Local Government Code will not apply.

WHEREFORE, premises considered, the Petition is GRANTED. The Resolution of the COMELEC En
Bane dated 2 February 2011 is hereby ANNULLED and SET ASIDE. Respondent ROMMEL ARNADO y
CAGOCO is disqualified from running for any local elective position. CASAN MACODE MAQUILING is
hereby DECLARED the duly elected Mayor of Kauswagan, Lanao del Norte in the 10 May 2010
elections.

This Decision is immediately executory.

Let a copy of this Decision be served personally upon the parties and the Commission on Elections.

No pronouncement as to costs.

SO ORDERED.

102
G.R. No. 195649 April 16, 2013
CASAN MACODE MAQUILING, Petitioner,
vs.
COMMISSION ON ELECTIONS, ROMMEL ARNADO y CAGOCO, LINOG G. BALUA, Respondents.
DECISION
SERENO, CJ.:
THE CASE
This is a Petition for Certiorari ender Rule 64 in conjunction with Rule 65 of the Rules of Court to
review the Resolutions of the Commission on Elections (COMELEC). The Resolution1 in SPA No. 10-
1 09(DC) of the COMELEC First Division dated 5 October 201 0 is being assailed for applying Section
44 of the Local Government Code while the Resolution2 of the COMELEC En Banc dated 2 February
2011 is being questioned for finding that respondent Rommel Arnado y Cagoco (respondent
Arnado/Arnado) is solely a Filipino citizen qualified to run for public office despite his continued
use of a U.S. passport.
FACTS
Respondent Arnado is a natural born Filipino citizen.3 However, as a consequence of his subsequent
naturalization as a citizen of the United States of America, he lost his Filipino citizenship. Arnado
applied for repatriation under Republic Act (R.A.) No. 9225 before the Consulate General of the
Philippines in San Franciso, USA and took the Oath of Allegiance to the Republic of the Philippines
on 10 July 2008.4 On the same day an Order of Approval of his Citizenship Retention and Re-
acquisition was issued in his favor.5
The aforementioned Oath of Allegiance states:
I, Rommel Cagoco Arnado, solemnly swear that I will support and defend the Constitution of the
Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted
authorities of the Philippines and I hereby declare that I recognize and accept the supreme authority
of the Philippines and will maintain true faith and allegiance thereto; and that I impose this
obligation upon myself voluntarily without mental reservation or purpose of evasion.6
On 3 April 2009 Arnado again took his Oath of Allegiance to the Republic and executed an Affidavit
of Renunciation of his foreign citizenship, which states:
I, Rommel Cagoco Arnado, do solemnly swear that I absolutely and perpetually renounce all
allegiance and fidelity to the UNITED STATES OF AMERICA of which I am a citizen, and I divest
myself of full employment of all civil and political rights and privileges of the United States of
America.
I solemnly swear that all the foregoing statement is true and correct to the best of my knowledge
and belief.7
On 30 November 2009, Arnado filed his Certificate of Candidacy for Mayor of Kauswagan, Lanao del
Norte, which contains, among others, the following statements:
I am a natural born Filipino citizen / naturalized Filipino citizen.
I am not a permanent resident of, or immigrant to, a foreign country.
I am eligible for the office I seek to be elected to.
I will support and defend the Constitution of the Republic of the Philippines and will maintain true
faith and allegiance thereto. I will obey the laws, legal orders and decrees promulgated by the duly
constituted authorities.
I impose this obligation upon myself voluntarily without mental reservation or purpose of evasion.8
On 28 April 2010, respondent Linog C. Balua (Balua), another mayoralty candidate, filed a petition
to disqualify Arnado and/or to cancel his certificate of candidacy for municipal mayor of
Kauswagan, Lanao del Norte in connection with the 10 May 2010 local and national elections.9
Respondent Balua contended that Arnado is not a resident of Kauswagan, Lanao del Norte and that
he is a foreigner, attaching thereto a certification issued by the Bureau of Immigration dated 23
April 2010 indicating the nationality of Arnado as "USA-American."10To further bolster his claim of
Arnado’s US citizenship, Balua presented in his Memorandum a computer-generated travel
record11 dated 03 December 2009 indicating that Arnado has been using his US Passport No.
057782700 in entering and departing the Philippines. The said record shows that Arnado left the
country on 14 April 2009 and returned on 25 June 2009, and again departed on 29 July 2009,
arriving back in the Philippines on 24 November 2009.
Balua likewise presented a certification from the Bureau of Immigration dated 23 April 2010,
certifying that the name "Arnado, Rommel Cagoco" appears in the available Computer
Database/Passenger manifest/IBM listing on file as of 21 April 2010, with the following pertinent
travel records:
DATE OF Arrival : 01/12/2010
NATIONALITY : USA-AMERICAN
PASSPORT : 057782700
DATE OF Arrival : 03/23/2010
NATIONALITY : USA-AMERICAN
PASSPORT : 05778270012
On 30 April 2010, the COMELEC (First Division) issued an Order13 requiring the respondent to
personally file his answer and memorandum within three (3) days from receipt thereof.
After Arnado failed to answer the petition, Balua moved to declare him in default and to present
evidence ex-parte.
Neither motion was acted upon, having been overtaken by the 2010 elections where Arnado
garnered the highest number of votes and was subsequently proclaimed as the winning candidate
for Mayor of Kauswagan, Lanao del Norte.
It was only after his proclamation that Arnado filed his verified answer, submitting the following
documents as evidence:14
1. Affidavit of Renunciation and Oath of Allegiance to the Republic of the Philippines dated 03 April
2009;
2. Joint-Affidavit dated 31 May 2010 of Engr. Virgil Seno, Virginia Branzuela, Leoncio Daligdig, and
Jessy Corpin, all neighbors of Arnado, attesting that Arnado is a long-time resident of Kauswagan
103
and that he has been conspicuously and continuously residing in his family’s ancestral house in
Kauswagan;
3. Certification from the Punong Barangay of Poblacion, Kauswagan, Lanao del Norte dated 03 June
2010 stating that Arnado is a bona fide resident of his barangay and that Arnado went to the United
States in 1985 to work and returned to the Philippines in 2009;
4. Certification dated 31 May 2010 from the Municipal Local Government Operations Office of
Kauswagan stating that Dr. Maximo P. Arnado, Sr. served as Mayor of Kauswagan, from January
1964 to June 1974 and from 15 February 1979 to 15 April 1986; and
5. Voter Certification issued by the Election Officer of Kauswagan certifying that Arnado has been a
registered voter of Kauswagan since 03 April 2009.
THE RULING OF THE COMELEC FIRST DIVISION
Instead of treating the Petition as an action for the cancellation of a certificate of candidacy based on
misrepresentation,15 the COMELEC First Division considered it as one for disqualification. Balua’s
contention that Arnado is a resident of the United States was dismissed upon the finding that "Balua
failed to present any evidence to support his contention,"16 whereas the First Division still could
"not conclude that Arnado failed to meet the one-year residency requirement under the Local
Government Code."17
In the matter of the issue of citizenship, however, the First Division disagreed with Arnado’s claim
that he is a Filipino citizen.18
We find that although Arnado appears to have substantially complied with the requirements of R.A.
No. 9225, Arnado’s act of consistently using his US passport after renouncing his US citizenship on
03 April 2009 effectively negated his Affidavit of Renunciation.
xxxx
Arnado’s continued use of his US passport is a strong indication that Arnado had no real intention to
renounce his US citizenship and that he only executed an Affidavit of Renunciation to enable him to
run for office. We cannot turn a blind eye to the glaring inconsistency between Arnado’s
unexplained use of a US passport six times and his claim that he re-acquired his Philippine
citizenship and renounced his US citizenship. As noted by the Supreme Court in the Yu case, "a
passport is defined as an official document of identity and nationality issued to a person intending
to travel or sojourn in foreign countries." Surely, one who truly divested himself of US citizenship
would not continue to avail of privileges reserved solely for US nationals.19
The dispositive portion of the Resolution rendered by the COMELEC
First Division reads:
WHEREFORE, in view of the foregoing, the petition for disqualification and/or to cancel the
certificate of candidacy of Rommel C. Arnado is hereby GRANTED. Rommel C. Arnado’s
proclamation as the winning candidate for Municipal Mayor of Kauswagan, Lanao del Nore is hereby
ANNULLED. Let the order of succession under Section 44 of the Local Government Code of 1991
take effect.20
The Motion for Reconsideration and
the Motion for Intervention
Arnado sought reconsideration of the resolution before the COMELEC En Banc on the ground that
"the evidence is insufficient to justify the Resolution and that the said Resolution is contrary to
law."21 He raised the following contentions:22
1. The finding that he is not a Filipino citizen is not supported by the evidence consisting of his Oath
of Allegiance and the Affidavit of Renunciation, which show that he has substantially complied with
the requirements of R.A. No. 9225;
2. The use of his US passport subsequent to his renunciation of his American citizenship is not
tantamount to a repudiation of his Filipino citizenship, as he did not perform any act to swear
allegiance to a country other than the Philippines;
3. He used his US passport only because he was not informed of the issuance of his Philippine
passport, and that he used his Philippine passport after he obtained it;
4. Balua’s petition to cancel the certificate of candidacy of Arnado was filed out of time, and the First
Division’s treatment of the petition as one for disqualification constitutes grave abuse of discretion
amounting to excess of jurisdiction;23
5. He is undoubtedly the people’s choice as indicated by his winning the elections;
6. His proclamation as the winning candidate ousted the COMELEC from jurisdiction over the case;
and
7. The proper remedy to question his citizenship is through a petition for quo warranto, which
should have been filed within ten days from his proclamation.
Petitioner Casan Macode Maquiling (Maquiling), another candidate for mayor of Kauswagan, and
who garnered the second highest number of votes in the 2010 elections, intervened in the case and
filed before the COMELEC En Banc a Motion for Reconsideration together with an Opposition to
Arnado’s Amended Motion for Reconsideration. Maquiling argued that while the First Division
correctly disqualified Arnado, the order of succession under Section 44 of the Local Government
Code is not applicable in this case. Consequently, he claimed that the cancellation of Arnado’s
candidacy and the nullification of his proclamation, Maquiling, as the legitimate candidate who
obtained the highest number of lawful votes, should be proclaimed as the winner.
Maquiling simultaneously filed his Memorandum with his Motion for Intervention and his Motion
for Reconsideration. Arnado opposed all motions filed by Maquiling, claiming that intervention is
prohibited after a decision has already been rendered, and that as a second-placer, Maquiling
undoubtedly lost the elections and thus does not stand to be prejudiced or benefitted by the final
adjudication of the case.
RULING OF THE COMELEC EN BANC
In its Resolution of 02 February 2011, the COMELEC En Banc held that under Section 6 of Republic
Act No. 6646, the Commission "shall continue with the trial and hearing of the action, inquiry or
protest even after the proclamation of the candidate whose qualifications for office is questioned."
As to Maquiling’s intervention, the COMELEC En Banc also cited Section 6 of R.A. No. 6646 which
allows intervention in proceedings for disqualification even after elections if no final judgment has
been rendered, but went on further to say that Maquiling, as the second placer, would not be
prejudiced by the outcome of the case as it agrees with the dispositive portion of the Resolution of
the First Division allowing the order of succession under Section 44 of the Local Government Code
to take effect.
104
The COMELEC En Banc agreed with the treatment by the First Division of the petition as one for
disqualification, and ruled that the petition was filed well within the period prescribed by law,24
having been filed on 28 April 2010, which is not later than 11 May 2010, the date of proclamation.
However, the COMELEC En Banc reversed and set aside the ruling of the First Division and granted
Arnado’s Motion for Reconsideration, on the following premises:
First:
By renouncing his US citizenship as imposed by R.A. No. 9225, the respondent embraced his
Philippine citizenship as though he never became a citizen of another country. It was at that time,
April 3, 2009, that the respondent became a pure Philippine Citizen again.
xxxx
The use of a US passport … does not operate to revert back his status as a dual citizen prior to his
renunciation as there is no law saying such. More succinctly, the use of a US passport does not
operate to "un-renounce" what he has earlier on renounced. The First Division’s reliance in the case
of In Re: Petition for Habeas Corpus of Willy Yu v. Defensor-Santiago, et al. is misplaced. The
petitioner in the said case is a naturalized citizen who, after taking his oath as a naturalized Filipino,
applied for the renewal of his Portuguese passport. Strict policy is maintained in the conduct of
citizens who are not natural born, who acquire their citizenship by choice, thus discarding their
original citizenship. The Philippine State expects strict conduct of allegiance to those who choose to
be its citizens. In the present case, respondent is not a naturalized citizen but a natural born citizen
who chose greener pastures by working abroad and then decided to repatriate to supposedly help
in the progress of Kauswagan. He did not apply for a US passport after his renunciation. Thus the
mentioned case is not on all fours with the case at bar.
xxxx
The respondent presented a plausible explanation as to the use of his US passport. Although he
applied for a Philippine passport, the passport was only issued on June 18, 2009. However, he was
not notified of the issuance of his Philippine passport so that he was actually able to get it about
three (3) months later. Yet as soon as he was in possession of his Philippine passport, the
respondent already used the same in his subsequent travels abroad. This fact is proven by the
respondent’s submission of a certified true copy of his passport showing that he used the same for
his travels on the following dates: January 31, 2010, April 16, 2010, May 20, 2010, January 12, 2010,
March 31, 2010 and June 4, 2010. This then shows that the use of the US passport was because to his
knowledge, his Philippine passport was not yet issued to him for his use. As probably pressing
needs might be undertaken, the respondent used whatever is within his control during that time.25
In his Separate Concurring Opinion, COMELEC Chairman Sixto Brillantes cited that the use of foreign
passport is not one of the grounds provided for under Section 1 of Commonwealth Act No. 63
through which Philippine citizenship may be lost.
"The application of the more assimilative principle of continuity of citizenship is more appropriate
in this case. Under said principle, once a person becomes a citizen, either by birth or naturalization,
it is assumed that he desires to continue to be a citizen, and this assumption stands until he
voluntarily denationalizes or expatriates himself. Thus, in the instant case respondent after
reacquiring his Philippine citizenship should be presumed to have remained a Filipino despite his
use of his American passport in the absence of clear, unequivocal and competent proof of
expatriation. Accordingly, all doubts should be resolved in favor of retention of citizenship."26
On the other hand, Commissioner Rene V. Sarmiento dissented, thus:
Respondent evidently failed to prove that he truly and wholeheartedly abandoned his allegiance to
the United States. The latter’s continued use of his US passport and enjoyment of all the privileges of
a US citizen despite his previous renunciation of the afore-mentioned citizenship runs contrary to
his declaration that he chose to retain only his Philippine citizenship. Respondent’s submission with
the twin requirements was obviously only for the purpose of complying with the requirements for
running for the mayoralty post in connection with the May 10, 2010 Automated National and Local
Elections.
Qualifications for elective office, such as citizenship, are continuing requirements; once any of them
is lost during his incumbency, title to the office itself is deemed forfeited. If a candidate is not a
citizen at the time he ran for office or if he lost his citizenship after his election to office, he is
disqualified to serve as such. Neither does the fact that respondent obtained the plurality of votes
for the mayoralty post cure the latter’s failure to comply with the qualification requirements
regarding his citizenship.
Since a disqualified candidate is no candidate at all in the eyes of the law, his having received the
highest number of votes does not validate his election. It has been held that where a petition for
disqualification was filed before election against a candidate but was adversely resolved against him
after election, his having obtained the highest number of votes did not make his election valid. His
ouster from office does not violate the principle of vox populi suprema est lex because the
application of the constitutional and statutory provisions on disqualification is not a matter of
popularity. To apply it is to breath[e] life to the sovereign will of the people who expressed it when
they ratified the Constitution and when they elected their representatives who enacted the law.27
THE PETITION BEFORE THE COURT
Maquiling filed the instant petition questioning the propriety of declaring Arnado qualified to run
for public office despite his continued use of a US passport, and praying that Maquiling be
proclaimed as the winner in the 2010 mayoralty race in Kauswagan, Lanao del Norte.
Ascribing both grave abuse of discretion and reversible error on the part of the COMELEC En Banc
for ruling that Arnado is a Filipino citizen despite his continued use of a US passport, Maquiling now
seeks to reverse the finding of the COMELEC En Banc that Arnado is qualified to run for public office.
Corollary to his plea to reverse the ruling of the COMELEC En Banc or to affirm the First Division’s
disqualification of Arnado, Maquiling also seeks the review of the applicability of Section 44 of the
Local Government Code, claiming that the COMELEC committed reversible error in ruling that "the
succession of the vice mayor in case the respondent is disqualified is in order."
There are three questions posed by the parties before this Court which will be addressed seriatim as
the subsequent questions hinge on the result of the first.
The first question is whether or not intervention is allowed in a disqualification case.
The second question is whether or not the use of a foreign passport after renouncing foreign
citizenship amounts to undoing a renunciation earlier made.
A better framing of the question though should be whether or not the use of a foreign passport after
renouncing foreign citizenship affects one’s qualifications to run for public office.
The third question is whether or not the rule on succession in the Local Government Code is
applicable to this case.
OUR RULING
105
Intervention of a rival candidate in a
disqualification case is proper when
there has not yet been any
proclamation of the winner.
Petitioner Casan Macode Maquiling intervened at the stage when respondent Arnado filed a Motion
for Reconsideration of the First Division Resolution before the COMELEC En Banc. As the candidate
who garnered the second highest number of votes, Maquiling contends that he has an interest in the
disqualification case filed against Arnado, considering that in the event the latter is disqualified, the
votes cast for him should be considered stray and the second-placer should be proclaimed as the
winner in the elections.
It must be emphasized that while the original petition before the COMELEC is one for cancellation of
the certificate of candidacy and / or disqualification, the COMELEC First Division and the COMELEC
En Banc correctly treated the petition as one for disqualification.
The effect of a disqualification case is enunciated in Section 6 of R.A. No. 6646:
Sec. 6. Effect of Disqualification Case. - Any candidate who has been declared by final judgment to be
disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a
candidate is not declared by final judgment before an election to be disqualified and he is voted for
and receives the winning number of votes in such election, the Court or Commission shall continue
with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or
any intervenor, may during the pendency thereof order the suspension of the proclamation of such
candidate whenever the evidence of his guilt is strong.
Mercado v. Manzano28
clarified the right of intervention in a disqualification case. In that case, the Court said:
That petitioner had a right to intervene at that stage of the proceedings for the disqualification
against private respondent is clear from Section 6 of R.A. No. 6646, otherwise known as the
Electoral Reforms Law of 1987, which provides: Any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If
for any reason a candidate is not declared by final judgment before an election to be disqualified and
he is voted for and receives the winning number of votes in such election, the Court or Commission
shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the
complainant or any intervenor, may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of guilt is strong. Under this provision,
intervention may be allowed in proceedings for disqualification even after election if there has yet
been no final judgment rendered.29
Clearly then, Maquiling has the right to intervene in the case. The fact that the COMELEC En Banc
has already ruled that Maquiling has not shown that the requisites for the exemption to the second-
placer rule set forth in Sinsuat v. COMELEC30 are present and therefore would not be prejudiced by
the outcome of the case, does not deprive Maquiling of the right to elevate the matter before this
Court.
Arnado’s claim that the main case has attained finality as the original petitioner and respondents
therein have not appealed the decision of the COMELEC En Banc, cannot be sustained. The elevation
of the case by the intervenor prevents it from attaining finality. It is only after this Court has ruled
upon the issues raised in this instant petition that the disqualification case originally filed by Balua
against Arnado will attain finality.
The use of foreign passport after renouncing one’s foreign citizenship is a positive and voluntary act
of representation as to one’s nationality and citizenship; it does not divest Filipino citizenship
regained by repatriation but it recants the Oath of Renunciation required to qualify one to run for an
elective position.
Section 5(2) of The Citizenship Retention and Re-acquisition Act of 2003 provides:
Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil and
political rights and be subject to all attendant liabilities and responsibilities under existing laws of
the Philippines and the following conditions:
xxxx
(2)Those seeking elective public in the Philippines shall meet the qualification for holding such
public office as required by the Constitution and existing laws and, at the time of the filing of the
certificate of candidacy, make a personal and sworn renunciation of any and all foreign before any
public officer authorized to administer an oath.
x x x31
Rommel Arnado took all the necessary steps to qualify to run for a public office. He took the Oath of
Allegiance and renounced his foreign citizenship. There is no question that after performing these
twin requirements required under Section 5(2) of R.A. No. 9225 or the Citizenship Retention and
Re-acquisition Act of 2003, he became eligible to run for public office.
Indeed, Arnado took the Oath of Allegiance not just only once but twice: first, on 10 July 2008 when
he applied for repatriation before the Consulate General of the Philippines in San Francisco, USA,
and again on 03 April 2009 simultaneous with the execution of his Affidavit of Renunciation. By
taking the Oath of Allegiance to the Republic, Arnado re-acquired his Philippine citizenship. At the
time, however, he likewise possessed American citizenship. Arnado had therefore become a dual
citizen.
After reacquiring his Philippine citizenship, Arnado renounced his American citizenship by
executing an Affidavit of Renunciation, thus completing the requirements for eligibility to run for
public office.
By renouncing his foreign citizenship, he was deemed to be solely a Filipino citizen, regardless of the
effect of such renunciation under the laws of the foreign country.32
However, this legal presumption does not operate permanently and is open to attack when, after
renouncing the foreign citizenship, the citizen performs positive acts showing his continued
possession of a foreign citizenship.33
Arnado himself subjected the issue of his citizenship to attack when, after renouncing his foreign
citizenship, he continued to use his US passport to travel in and out of the country before filing his
certificate of candidacy on 30 November 2009. The pivotal question to determine is whether he was
solely and exclusively a Filipino citizen at the time he filed his certificate of candidacy, thereby
rendering him eligible to run for public office.
Between 03 April 2009, the date he renounced his foreign citizenship, and 30 November 2009, the
date he filed his COC, he used his US passport four times, actions that run counter to the affidavit of
renunciation he had earlier executed. By using his foreign passport, Arnado positively and
voluntarily represented himself as an American, in effect declaring before immigration authorities
of both countries that he is an American citizen, with all attendant rights and privileges granted by
the United States of America.
The renunciation of foreign citizenship is not a hollow oath that can simply be professed at any time,
only to be violated the next day. It requires an absolute and perpetual renunciation of the foreign
106
citizenship and a full divestment of all civil and political rights granted by the foreign country which
granted the citizenship.
Mercado v. Manzano34 already hinted at this situation when the Court declared:
His declarations will be taken upon the faith that he will fulfill his undertaking made under oath.
Should he betray that trust, there are enough sanctions for declaring the loss of his Philippine
citizenship through expatriation in appropriate proceedings. In Yu v. Defensor-Santiago, we
sustained the denial of entry into the country of petitioner on the ground that, after taking his oath
as a naturalized citizen, he applied for the renewal of his Portuguese passport and declared in
commercial documents executed abroad that he was a Portuguese national. A similar sanction can
be taken against anyone who, in electing Philippine citizenship, renounces his foreign nationality,
but subsequently does some act constituting renunciation of his Philippine citizenship.
While the act of using a foreign passport is not one of the acts enumerated in Commonwealth Act
No. 63 constituting renunciation and loss of Philippine citizenship,35 it is nevertheless an act which
repudiates the very oath of renunciation required for a former Filipino citizen who is also a citizen
of another country to be qualified to run for a local elective position.
When Arnado used his US passport on 14 April 2009, or just eleven days after he renounced his
American citizenship, he recanted his Oath of Renunciation36 that he "absolutely and perpetually
renounce(s) all allegiance and fidelity to the UNITED STATES OF AMERICA"37 and that he "divest(s)
himself of full employment of all civil and political rights and privileges of the United States of
America."38
We agree with the COMELEC En Banc that such act of using a foreign passport does not divest
Arnado of his Filipino citizenship, which he acquired by repatriation. However, by representing
himself as an American citizen, Arnado voluntarily and effectively reverted to his earlier status as a
dual citizen. Such reversion was not retroactive; it took place the instant Arnado represented
himself as an American citizen by using his US passport.
This act of using a foreign passport after renouncing one’s foreign citizenship is fatal to Arnado’s bid
for public office, as it effectively imposed on him a disqualification to run for an elective local
position.
Arnado’s category of dual citizenship is that by which foreign citizenship is acquired through a
positive act of applying for naturalization. This is distinct from those considered dual citizens by
virtue of birth, who are not required by law to take the oath of renunciation as the mere filing of the
certificate of candidacy already carries with it an implied renunciation of foreign citizenship.39 Dual
citizens by naturalization, on the other hand, are required to take not only the Oath of Allegiance to
the Republic of the Philippines but also to personally renounce foreign citizenship in order to
qualify as a candidate for public office.
By the time he filed his certificate of candidacy on 30 November 2009, Arnado was a dual citizen
enjoying the rights and privileges of Filipino and American citizenship. He was qualified to vote, but
by the express disqualification under Section 40(d) of the Local Government Code,40 he was not
qualified to run for a local elective position.
In effect, Arnado was solely and exclusively a Filipino citizen only for a period of eleven days, or
from 3 April 2009 until 14 April 2009, on which date he first used his American passport after
renouncing his American citizenship.
This Court has previously ruled that:
Qualifications for public office are continuing requirements and must be possessed not only at the
time of appointment or election or assumption of office but during the officer's entire tenure. Once
any of the required qualifications is lost, his title may be seasonably challenged. x x x.41
The citizenship requirement for elective public office is a continuing one. It must be possessed not
just at the time of the renunciation of the foreign citizenship but continuously. Any act which
violates the oath of renunciation opens the citizenship issue to attack.
We agree with the pronouncement of the COMELEC First Division that "Arnado’s act of consistently
using his US passport effectively negated his "Affidavit of Renunciation."42 This does not mean, that
he failed to comply with the twin requirements under R.A. No. 9225, for he in fact did.
It was after complying with the requirements that he performed positive acts which effectively
disqualified him from running for an elective public office pursuant to Section 40(d) of the Local
Government Code of 1991.
The purpose of the Local Government Code in disqualifying dual citizens from running for any
elective public office would be thwarted if we were to allow a person who has earlier renounced his
foreign citizenship, but who subsequently represents himself as a foreign citizen, to hold any public
office.
Arnado justifies the continued use of his US passport with the explanation that he was not notified
of the issuance of his Philippine passport on 18 June 2009, as a result of which he was only able to
obtain his Philippine passport three (3) months later.43
The COMELEC En Banc differentiated Arnado from Willy Yu, the Portuguese national who sought
naturalization as a Filipino citizen and later applied for the renewal of his Portuguese passport. That
Arnado did not apply for a US passport after his renunciation does not make his use of a US passport
less of an act that violated the Oath of Renunciation he took. It was still a positive act of
representation as a US citizen before the immigration officials of this country.
The COMELEC, in ruling favorably for Arnado, stated "Yet, as soon as he was in possession of his
Philippine passport, the respondent already used the same in his subsequent travels abroad."44 We
cannot agree with the COMELEC. Three months from June is September. If indeed, Arnado used his
Philippine passport as soon as he was in possession of it, he would not have used his US passport on
24 November 2009.
Besides, Arnado’s subsequent use of his Philippine passport does not correct the fact that after he
renounced his foreign citizenship and prior to filing his certificate of candidacy, he used his US
passport. In the same way that the use of his foreign passport does not undo his Oath of
Renunciation, his subsequent use of his Philippine passport does not undo his earlier use of his US
passport.
Citizenship is not a matter of convenience. It is a badge of identity that comes with attendant civil
and political rights accorded by the state to its citizens. It likewise demands the concomitant duty to
maintain allegiance to one’s flag and country. While those who acquire dual citizenship by choice
are afforded the right of suffrage, those who seek election or appointment to public office are
required to renounce their foreign citizenship to be deserving of the public trust. Holding public
office demands full and undivided allegiance to the Republic and to no other.
We therefore hold that Arnado, by using his US passport after renouncing his American citizenship,
has recanted the same Oath of Renunciation he took. Section 40(d) of the Local Government Code
applies to his situation. He is disqualified not only from holding the public office but even from
becoming a candidate in the May 2010 elections.
We now resolve the next issue.
107

Resolving the third issue necessitates revisiting Topacio v. Paredes45 which is the jurisprudential
spring of the principle that a second-placer cannot be proclaimed as the winner in an election
contest. This doctrine must be re-examined and its soundness once again put to the test to address
the ever-recurring issue that a second-placer who loses to an ineligible candidate cannot be
proclaimed as the winner in the elections.
The Facts of the case are as follows:
On June 4, 1912, a general election was held in the town of Imus, Province of Cavite, to fill the office
of municipal president. The petitioner, Felipe Topacio, and the respondent, Maximo Abad, were
opposing candidates for that office. Topacio received 430 votes, and Abad 281. Abad contested the
election upon the sole ground that Topacio was ineligible in that he was reelected the second time
to the office of the municipal president on June 4, 1912, without the four years required by Act No.
2045 having intervened.46
Abad thus questioned the eligibility of To p a c i o on the basis of a statutory prohibition for seeking
a second re-election absent the four year interruption.
The often-quoted phrase in Topacio v. Paredes is that "the wreath of victory cannot be transferred
from an ineligible candidate to any other candidate when the sole question is the eligibility of the
one receiving a plurality of the legally cast ballots."47
This phrase is not even the ratio decidendi; it is a mere obiter dictum. The Court was comparing "the
effect of a decision that a candidate is not entitled to the office because of fraud or irregularities in
the elections x x x with that produced by declaring a person ineligible to hold such an office."
The complete sentence where the phrase is found is part of a comparison and contrast between the
two situations, thus:
Again, the effect of a decision that a candidate is not entitled to the office because of fraud or
irregularities in the elections is quite different from that produced by declaring a person ineligible
to hold such an office. In the former case the court, after an examination of the ballots may find that
some other person than the candidate declared to have received a plurality by the board of
canvassers actually received the greater number of votes, in which case the court issues its
mandamus to the board of canvassers to correct the returns accordingly; or it may find that the
manner of holding the election and the returns are so tainted with fraud or illegality that it cannot
be determined who received a plurality of the legally cast ballots. In the latter case, no question as to
the correctness of the returns or the manner of casting and counting the ballots is before the
deciding power, and generally the only result can be that the election fails entirely. In the former, we
have a contest in the strict sense of the word, because of the opposing parties are striving for
supremacy. If it be found that the successful candidate (according to the board of canvassers)
obtained a plurality in an illegal manner, and that another candidate was the real victor, the former
must retire in favor of the latter. In the other case, there is not, strictly speaking, a contest, as the
wreath of victory cannot be transferred from an ineligible candidate to any other candidate when
the sole question is the eligibility of the one receiving a plurality of the legally cast ballots. In the one
case the question is as to who received a plurality of the legally cast ballots; in the other, the
question is confined to the personal character and circumstances of a single individual.48
(Emphasis supplied)
Note that the sentence where the phrase is found starts with "In the other case, there is not, strictly
speaking, a contest" in contrast to the earlier statement, "In the former, we have a contest in the
strict sense of the word, because of the opposing parties are striving for supremacy."
The Court in Topacio v. Paredes cannot be said to have held that "the wreath of victory cannot be
transferred from an ineligible candidate to any other candidate when the sole question is the
eligibility of the one receiving a plurality of the legally cast ballots."
A proper reading of the case reveals that the ruling therein is that since the Court of First Instance is
without jurisdiction to try a disqualification case based on the eligibility of the person who obtained
the highest number of votes in the election, its jurisdiction being confined "to determine which of
the contestants has been duly elected" the judge exceeded his jurisdiction when he "declared that no
one had been legally elected president of the municipality of Imus at the general election held in that
town on 4 June 1912" where "the only question raised was whether or not Topacio was eligible to
be elected and to hold the office of municipal president."
The Court did not rule that Topacio was disqualified and that Abad as the second placer cannot be
proclaimed in his stead. The Court therein ruled:
For the foregoing reasons, we are of the opinion and so hold that the respondent judge exceeded his
jurisdiction in declaring in those proceedings that no one was elected municipal president of the
municipality of Imus at the last general election; and that said order and all subsequent proceedings
based thereon are null and void and of no effect; and, although this decision is rendered on
respondents' answer to the order to show cause, unless respondents raised some new and
additional issues, let judgment be entered accordingly in 5 days, without costs. So ordered.49
On closer scrutiny, the phrase relied upon by a host of decisions does not even have a legal basis to
stand on. It was a mere pronouncement of the Court comparing one process with another and
explaining the effects thereof. As an independent statement, it is even illogical.
Let us examine the statement:
"x x x the wreath of victory cannot be transferred from an ineligible candidate to any other
candidate when the sole question is the eligibility of the one receiving a plurality of the legally cast
ballots."
What prevents the transfer of the wreath of victory from the ineligible candidate to another
candidate?
When the issue being decided upon by the Court is the eligibility of the one receiving a plurality of
the legally cast ballots and ineligibility is thereafter established, what stops the Court from
adjudging another eligible candidate who received the next highest number of votes as the winner
and bestowing upon him that "wreath?"
An ineligible candidate who receives the highest number of votes is a wrongful winner. By express
legal mandate, he could not even have been a candidate in the first place, but by virtue of the lack of
material time or any other intervening circumstances, his ineligibility might not have been passed
upon prior to election date. Consequently, he may have had the opportunity to hold himself out to
the electorate as a legitimate and duly qualified candidate. However, notwithstanding the outcome
of the elections, his ineligibility as a candidate remains unchanged. Ineligibility does not only pertain
to his qualifications as a candidate but necessarily affects his right to hold public office. The number
of ballots cast in his favor cannot cure the defect of failure to qualify with the substantive legal
requirements of eligibility to run for public office.
The popular vote does not cure the
ineligibility of a candidate.
The ballot cannot override the constitutional and statutory requirements for qualifications and
disqualifications of candidates. When the law requires certain qualifications to be possessed or that
certain disqualifications be not possessed by persons desiring to serve as elective public officials,
108
those qualifications must be met before one even becomes a candidate. When a person who is not
qualified is voted for and eventually garners the highest number of votes, even the will of the
electorate expressed through the ballot cannot cure the defect in the qualifications of the candidate.
To rule otherwise is to trample upon and rent asunder the very law that sets forth the qualifications
and disqualifications of candidates. We might as well write off our election laws if the voice of the
electorate is the sole determinant of who should be proclaimed worthy to occupy elective positions
in our republic.
This has been, in fact, already laid down by the Court in Frivaldo v. COMELEC50 when we
pronounced:
x x x. The fact that he was elected by the people of Sorsogon does not excuse this patent violation of
the salutary rule limiting public office and employment only to the citizens of this country. The
qualifications prescribed for elective office cannot be erased by the electorate alone.
The will of the people as expressed through the ballot cannot cure the vice of ineligibility, especially
if they mistakenly believed, as in this case, that the candidate was qualified. Obviously, this rule
requires strict application when the deficiency is lack of citizenship. If a person seeks to serve in the
Republic of the Philippines, he must owe his total loyalty to this country only, abjuring and
renouncing all fealty and fidelity to any other state.51 (Emphasis supplied)
This issue has also been jurisprudentially clarified in Velasco v. COMELEC52 where the Court ruled
that the ruling in Quizon and Saya-ang cannot be interpreted without qualifications lest "Election
victory x x x becomes a magic formula to bypass election eligibility requirements."53
We have ruled in the past that a candidate’s victory in the election may be considered a sufficient
basis to rule in favor of the candidate sought to be disqualified if the main issue involves defects in
the candidate’s certificate of candidacy. We said that while provisions relating to certificates of
candidacy are mandatory in terms, it is an established rule of interpretation as regards election
laws, that mandatory provisions requiring certain steps before elections will be construed as
directory after the elections, to give effect to the will of the people. We so ruled in Quizon v.
COMELEC and Saya-ang v. COMELEC:
The present case perhaps presents the proper time and opportunity to fine-tune our above ruling.
We say this with the realization that a blanket and unqualified reading and application of this ruling
can be fraught with dangerous significance for the rule of law and the integrity of our elections. For
one, such blanket/unqualified reading may provide a way around the law that effectively negates
election requirements aimed at providing the electorate with the basic information to make an
informed choice about a candidate’s eligibility and fitness for office.
The first requirement that may fall when an unqualified reading is made is Section 39 of the LGC
which specifies the basic qualifications of local government officials. Equally susceptive of being
rendered toothless is Section 74 of the OEC that sets out what should be stated in a COC. Section 78
may likewise be emasculated as mere delay in the resolution of the petition to cancel or deny due
course to a COC can render a Section 78 petition useless if a candidate with false COC data wins. To
state the obvious, candidates may risk falsifying their COC qualifications if they know that an
election victory will cure any defect that their COCs may have. Election victory then becomes a
magic formula to bypass election eligibility requirements. (Citations omitted)
What will stop an otherwise disqualified individual from filing a seemingly valid COC, concealing
any disqualification, and employing every strategy to delay any disqualification case filed against
him so he can submit himself to the electorate and win, if winning the election will guarantee a
disregard of constitutional and statutory provisions on qualifications and disqualifications of
candidates?
It is imperative to safeguard the expression of the sovereign voice through the ballot by ensuring
that its exercise respects the rule of law. To allow the sovereign voice spoken through the ballot to
trump constitutional and statutory provisions on qualifications and disqualifications of candidates
is not democracy or republicanism. It is electoral anarchy. When set rules are disregarded and only
the electorate’s voice spoken through the ballot is made to matter in the end, it precisely serves as
an open invitation for electoral anarchy to set in.1âwphi1
Maquiling is not a second-placer as
he obtained the highest number of
votes from among the qualified
candidates.
With Arnado’s disqualification, Maquiling then becomes the winner in the election as he obtained
the highest number of votes from among the qualified candidates.
We have ruled in the recent cases of Aratea v. COMELEC54 and Jalosjos v. COMELEC55 that a void
COC cannot produce any legal effect.
Thus, the votes cast in favor of the ineligible candidate are not considered at all in determining the
winner of an election.
Even when the votes for the ineligible candidate are disregarded, the will of the electorate is still
respected, and even more so. The votes cast in favor of an ineligible candidate do not constitute the
sole and total expression of the sovereign voice. The votes cast in favor of eligible and legitimate
candidates form part of that voice and must also be respected.
As in any contest, elections are governed by rules that determine the qualifications and
disqualifications of those who are allowed to participate as players. When there are participants
who turn out to be ineligible, their victory is voided and the laurel is awarded to the next in rank
who does not possess any of the disqualifications nor lacks any of the qualifications set in the rules
to be eligible as candidates.
There is no need to apply the rule cited in Labo v. COMELEC56 that when the voters are well aware
within the realm of notoriety of a candidate’s disqualification and still cast their votes in favor said
candidate, then the eligible candidate obtaining the next higher number of votes may be deemed
elected. That rule is also a mere obiter that further complicated the rules affecting qualified
candidates who placed second to ineligible ones.
The electorate’s awareness of the candidate’s disqualification is not a prerequisite for the
disqualification to attach to the candidate. The very existence of a disqualifying circumstance makes
the candidate ineligible. Knowledge by the electorate of a candidate’s disqualification is not
necessary before a qualified candidate who placed second to a disqualified one can be proclaimed as
the winner. The second-placer in the vote count is actually the first-placer among the qualified
candidates.
That the disqualified candidate has already been proclaimed and has assumed office is of no
moment. The subsequent disqualification based on a substantive ground that existed prior to the
filing of the certificate of candidacy voids not only the COC but also the proclamation.
Section 6 of R.A. No. 6646 provides:
Section 6. Effect of Disqualification Case. - Any candidate who has been declared by final judgment
to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any
reason a candidate is not declared by final judgment before an election to be disqualified and he is
voted for and receives the winning number of votes in such election, the Court or Commission shall
continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the
109
complainant or any intervenor, may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt is strong.

There was no chance for Arnado’s proclamation to be suspended under this rule because Arnado
failed to file his answer to the petition seeking his disqualification. Arnado only filed his Answer on
15 June 2010, long after the elections and after he was already proclaimed as the winner.

The disqualifying circumstance surrounding Arnado’s candidacy involves his citizenship. It does not
involve the commission of election offenses as provided for in the first sentence of Section 68 of the
Omnibus Election Code, the effect of which is to disqualify the individual from continuing as a
candidate, or if he has already been elected, from holding the office.

The disqualifying circumstance affecting Arnado is his citizenship. As earlier discussed, Arnado was
both a Filipino and an American citizen when he filed his certificate of candidacy. He was a dual
citizen disqualified to run for public office based on Section 40(d) of the Local Government Code.

Section 40 starts with the statement "The following persons are disqualified from running for any
elective local position." The prohibition serves as a bar against the individuals who fall under any of
the enumeration from participating as candidates in the election.

With Arnado being barred from even becoming a candidate, his certificate of candidacy is thus
rendered void from the beginning. It could not have produced any other legal effect except that
Arnado rendered it impossible to effect his disqualification prior to the elections because he filed his
answer to the petition when the elections were conducted already and he was already proclaimed
the winner.

To hold that such proclamation is valid is to negate the prohibitory character of the disqualification
which Arnado possessed even prior to the filing of the certificate of candidacy. The affirmation of
Arnado's disqualification, although made long after the elections, reaches back to the filing of the
certificate of candidacy. Arnado is declared to be not a candidate at all in the May 201 0 elections.

Arnado being a non-candidate, the votes cast in his favor should not have been counted. This leaves
Maquiling as the qualified candidate who obtained the highest number of votes. Therefore, the rule
on succession under the Local Government Code will not apply.

WHEREFORE, premises considered, the Petition is GRANTED. The Resolution of the COMELEC En
Bane dated 2 February 2011 is hereby ANNULLED and SET ASIDE. Respondent ROMMEL ARNADO y
CAGOCO is disqualified from running for any local elective position. CASAN MACODE MAQUILING is
hereby DECLARED the duly elected Mayor of Kauswagan, Lanao del Norte in the 10 May 2010
elections.

This Decision is immediately executory.

Let a copy of this Decision be served personally upon the parties and the Commission on Elections.

No pronouncement as to costs.

SO ORDERED.

110
[G.R. No. 142527. March 1, 2001]
ARSENIO ALVAREZ, petitioner, vs. COMMISSION ON ELECTIONS and LA RAINNE ABAD-
SARMIENTO, respondents.
RESOLUTION
QUISUMBING, J.:
This petition for certiorari assails the Resolution of the Commission on Elections En Banc, denying
the Motion for Reconsideration of herein petitioner and affirming the Resolution of the Second
Division of the COMELEC that modified the decision dated December 4, 1997 of the Metropolitan
Trial Court, Br. 40, of Quezon City in Election Case No. 97-684. Said decision declared herein private
respondent La Rainne Abad-Sarmiento the duly elected Punong Barangay of Barangay Doa Aurora,
Quezon City during the May 12, 1997 elections; directed the herein petitioner to vacate and
turnover the office of Punong Barangay to private respondent upon the finality of the resolution;
and directed the Clerk of the COMELEC to notify the appropriate authorities of the resolution upon
final disposition of this case, in consonance with the provisions of Section 260 of B.P. Blg. 881
otherwise known as the Omnibus Election Code, as amended.[1]
The facts of the case are as follows:
On May 12, 1997, petitioner was proclaimed duly elected Punong Barangay of Doa Aurora, Quezon
City. He received 590 votes while his opponent, private respondent Abad-Sarmiento, obtained 585
votes. Private respondent filed an election protest claiming irregularities, i.e. misreading and
misappreciation of ballots by the Board of Election Inspectors. After petitioner answered and the
issues were joined, the Metropolitan Trial Court ordered the reopening and recounting of the ballots
in ten contested precincts. It subsequently rendered its decision that private respondent won the
election. She garnered 596 votes while petitioner got 550 votes after the recount.[2]
On appeal, the Second Division of the COMELEC ruled that private respondent won over petitioner.
Private respondent, meanwhile, filed a Motion for Execution pending appeal which petitioner
opposed. Both petitioners Motion for Reconsideration and private respondents Motion for
Execution pending appeal were submitted for resolution. The COMELEC En Banc denied the Motion
for Reconsideration and affirmed the decision of the Second Division.[3] It granted the Motion for
Execution pending appeal.
Petitioner brought before the Court this petition for Certiorari alleging grave abuse of discretion on
the part of the COMELEC when:
(1) it did not preferentially dispose of the case;
(2) it prematurely acted on the Motion for Execution pending appeal; and
(3) it misinterpreted the Constitutional provision that decisions, final orders, or rulings of the
Commission on Election contests involving municipal and barangay officials shall be final, executory
and not appealable.
First, petitioner avers that the Commission violated its mandate on preferential disposition of
election contests as mandated by Section 3, Article IX-C, 1987 Constitution as well as Section 257,
Omnibus Election Code that the COMELEC shall decide all election cases brought before it within
ninety days from the date of submission. He points out that the case was ordered submitted for
resolution on November 15, 1999[4] but the COMELEC En Banc promulgated its resolution only on
April 4, 2000,[5] four months and four days after November 14, 1999.
We are not unaware of the Constitutional provision cited by petitioner. We agree with him that
election cases must be resolved justly, expeditiously and inexpensively. We are also not unaware of
the requirement of Section 257 of the Omnibus Election Code that election cases brought before the
Commission shall be decided within ninety days from the date of submission for decision.[6] The
records show that petitioner contested the results of ten (10) election precincts involving scrutiny
of affirmation, reversal, validity, invalidity, legibility, misspelling, authenticity, and other
irregularities in these ballots. The COMELEC has numerous cases before it where attention to
minutiae is critical. Considering further the tribunals manpower and logistic limitations, it is
sensible to treat the procedural requirements on deadlines realistically. Overly strict adherence to
deadlines might induce the Commission to resolve election contests hurriedly by reason of lack of
material time. In our view this is not what the framers of the Code had intended since a very strict
construction might allow procedural flaws to subvert the will of the electorate and would amount to
disenfranchisement of voters in numerous cases.
Petitioner avers the COMELEC abused its discretion when it failed to treat the case preferentially.
Petitioner misreads the provision in Section 258 of the Omnibus Election Code. It will be noted that
the preferential disposition applies to cases before the courts[7]and not those before the COMELEC,
as a faithful reading of the section will readily show.
Further, we note that petitioner raises the alleged delay of the COMELEC for the first time. As
private respondent pointed out, petitioner did not raise the issue before the COMELEC when the
case was pending before it. In fact, private respondent points out that it was she who filed a Motion
for Early Resolution of the case when it was before the COMELEC. The active participation of a party
coupled with his failure to object to the jurisdiction of the court or quasi-judicial body where the
action is pending, is tantamount to an invocation of that jurisdiction and a willingness to abide by
the resolution of the case and will bar said party from later impugning the court or the bodys
jurisdiction.[8] On the matter of the assailed resolution, therefore, we find no grave abuse of
discretion on this score by the COMELEC.
Second, petitioner alleges that the COMELEC En Banc granted the Motion for Execution pending
appeal of private respondents on April 2, 2000 when the appeal was no longer pending. He claims
that the motion had become obsolete and unenforceable and the appeal should have been allowed
to take its normal course of finality and execution after the 30-day period. Additionally, he avers it
did not give one good reason to allow the execution pending appeal.
We note that when the motion for execution pending appeal was filed, petitioner had a motion for
reconsideration before the Second Division. This pending motion for reconsideration suspended the
execution of the resolution of the Second Division. Appropriately then, the division must act on the
motion for reconsideration. Thus, when the Second Division resolved both petitioners motion for
reconsideration and private respondents motion for execution pending appeal, it did so in the
exercise of its exclusive appellate jurisdiction. The requisites for the grant of execution pending
appeal are: (a) there must be a motion by the prevailing party with notice to the adverse party; (b)
there must be a good reason for the execution pending appeal; and (c) the good reason must be
stated in a special order.[9] In our view, these three requisites were present. In its motion for
execution, private respondent cites that their case had been pending for almost three years and the
remaining portion of the contested term was just two more years. In a number of similar cases and
for the same good reasons, we upheld the COMELECs decision to grant execution pending appeal in
the best interest of the electorate.[10] Correspondingly, we do not find that the COMELEC abused its
discretion when it allowed the execution pending appeal.
Third, petitioner contends that the COMELEC misinterpreted Section 2 (2), second paragraph,
Article IX-C of the 1987 Constitution. He insists that factual findings of the COMELEC in election
cases involving municipal and barangay officials may still be appealed. He cites jurisprudence
stating that such decisions, final orders or rulings do not preclude a recourse to this Court by way of
a special civil action for certiorari,[11] when grave abuse of discretion has marred such factual
determination,[12] and when there is arbitrariness in the factual findings.[13]
111
We agree with petitioner that election cases pertaining to barangay elections may be appealed by
way of a special civil action for certiorari. But this recourse is available only when the COMELECs
factual determinations are marred by grave abuse of discretion. We find no such abuse in the instant
case. From the pleadings and the records, we observed that the lower court and the COMELEC
meticulously pored over the ballots reviewed. Because of its fact-finding facilities and its knowledge
derived from actual experience, the COMELEC is in a peculiarly advantageous position to evaluate,
appreciate and decide on factual questions before it. Here, we find no basis for the allegation that
abuse of discretion or arbitrariness marred the factual findings of the COMELEC. As previously held,
factual findings of the COMELEC based on its own assessments and duly supported by evidence, are
conclusive on this Court, more so in the absence of a grave abuse of discretion, arbitrariness, fraud,
or error of law in the questioned resolutions.[14] Unless any of these causes are clearly
substantiated, the Court will not interfere with the COMELECs findings of fact.

WHEREFORE, the instant petition is DISMISSED, and the En Banc Resolution of the Commission on
Election is AFFIRMED. Costs against petitioner.

SO ORDERED.

112

G.R. No. 94771 July 29, 1992
ATTY. RAMON J. VELORIA, ENGR. RENATO J. ESPEJO, JESUS O. BANDOLIN, SEGUNDO D.
BILLOTE, GERONIMO B. ENRIQUEZ, RODOLFO C. MADRIAGA, and SOFRONIO L. MANGONON,
and HON. ROMULO E. ABASOLO, as Presiding Judge-Designate, Regional Trial Court, First
Judicial Region, Branch 49, Urdaneta, Pangasinan, petitioners,
vs.
COMMISSION ON ELECTIONS, composed of DARIO C. RAMA, Commissioner-Ponente, HAYDEE
B. YORAC, Acting Chairperson, ALFREDO E. ABUEG, Commissioner, LEOPOLDO L. AFRICA,
Commissioner, ANDRES R. FLORES, Commissioner, MAGDARA B. DIMAAMPAO,
Commissioner, HON SANTIAGO G. ESTRELLA, as Presiding Judge, Regional Trial Court, First
Judicial Region, Branch 49, Urdaneta, Pangasinan, ATTY. PEDRO N. SALES, ENGR. WILFREDO
E. SORIANO, ERLINDA C. TAMBAOAN, ENGR. EMILIO M. ANGELES, JR., ELEUTERIO C. SISON,
MANUEL FERRER and SANTOS SIBAYAN, respondents.
GRIÑO-AQUINO, J.:
This petition for certiorari seeks the nullification of the (1) resolution 1 of the Commission on
Elections dated August 2, 1990, and (2) resolution 2 dated March 7, 1990 issued by Judge Santiago
Estrella dismissing the election protest filed by the petitioners against the private respondents, Atty.
Pedro N. Sales. Engr. Wilfredo E. Soriano, Erlinda C. Tambaoan, Engr. Emilio M. Angeles, Jr., Eleuterio
C. Sison, Manuel Ferrer and Santos Sibayan.
The seven (7) petitioners, Ramon Veloria, Renato Espejo, Jesus Bandolin, Segundo Billote, Geronimo
Enriquez, Rodolfo Madriaga and Sofronio Mangonon, as well as the seven (7) private respondents,
Pedro Sales, Wilfredo Soriano, Erlinda Tambaoan, Emilio Angeles, Jr., Eleuterio Sison, Manuel Ferrer
and Santos Sibayan were candidates for municipal mayor (Veloria and Sales), vice-mayor (Espejo
and Soriano) and members of the Sangguniang Bayan of Manaoag, Pangasinan, in the local elections
of January 18, 1988.
After the canvass of the election returns on January 31, 1988, the private respondents were
proclaimed duly elected to the positions they ran for.
Dissatisfied, the petitioners filed Election Protest No. U-4659 which was raffled to Branch 48 of the
Regional Trial Court of Urdaneta, Pangasinan, then presided over by the late Hon. Alfredo de Vera.
Several proceedings were had, and some issues were brought up to the Court of Appeals and this
Court for determination.
Finally, the revision of ballots was set on February 26, 1990 by Judge Santiago Estrella, Presiding
Judge of Branch 49, Regional Trial Court of Urdaneta, Pangasinan, where the Election Protest No. U-
4659 was re-assigned by raffle after Judge Vera's untimely death.
On February 26, 1990, during the scheduled initial revision of the ballots in Precinct No. 22,
Barangay Licsi, the private respondents, as protestees, filed a "Motion to Dismiss" on the ground
that the RTC had not acquired jurisdiction over the election protest on account of the following:
(1) that the election protest involves the contests over three (3) different Municipal Offices
joined together in one (1) single petition namely: the Office of Municipal Mayor, the Office of Vice
Mayor, and the Offices of the Sangguniang Bayan, in wanton violation and clear disregard of the
specific and mandatory provisions of Section 2, Rule 35, Part VI of the COMELEC RULES OF
PROCEDURE, and/or Section 2, Rule II of Comelec Resolution No. 1451 (Procedural Rules for
Election Contests);
(2) that the Election Protest was verified by only four (4) of the seven (7) protestants in
violation of Section 6, Rule 35, Part VI of the COMELEC RULES OF PROCEDURE, and/or Section 3,
Rule II of Comelec Resolution No. 1451; and
(3) that there is no showing that the protestants paid the requisite filing fees and legal
research fees for each interest, also in violation of Section 9, Rule 35, Part VI of the COMELEC RULES
OF PROCEDURE, and/or Section 6, Rule IV of the Procedural Rules for Election Contests.
On March 5, 1990, the private respondents filed a Supplemental Motion to Dismiss, alleging as
additional ground for the dismissal of the protest that:
(4) the seven (7) protestants representing seven (7) interests or seven (7) election contests
or protests failed to make the necessary cash deposit within the period required by this Honorable
Court in clear violation of Section 10, subparagraph (b) of Rule 35, Part VI of the COMELEC RULES
OF PROCEDURE.
The petitioners-protestants opposed the Motion to Dismiss. On March 7, 1990, Judge Santiago
Estrella dismissed the election protest (p. 27, Rollo).
The petitioners received a copy of the court's Resolution on March 15, 1990. However, instead of
perfecting an appeal within five (5) days as provided by law, the petitioners filed a Motion for
Reconsideration on March 20, 1990.
The protestees opposed the Motion for Reconsideration, and the petitioners filed a Rejoinder.
In the meantime, Judge Romulo E. Abasolo, presiding judge of Branch 47, RTC of Urdaneta,
Pangasinan, was assigned to take charge of the cases in Branch 49 in view of Judge Santiago
Estrella's detail in Branch 69, Regional Trial Court of Pasig, Metro Manila, by order of this Court.
On March 29, 1990, Judge Abasolo denied petitioners' Motion for Reconsideration. On April 3, 1990,
the petitioners (as protestants) filed a Notice of Appeal.
On April 10, 1990, the private respondents filed a "Motion to Dismiss Notice of Appeal" on the
grounds, that:
1. the Notice of Appeal was filed out of time in violation of Section 256, Art. XXI of the
Omnibus Election Code of the Philippines (BP Blg. 881) and/or Section 22, Rule 35, Part VI of the
COMELEC Rules of Procedure.
2. the Resolution of the trial court dated March 7, 1990 dismissing the election protest had
already become final and executory.
On May 10, 1990, Judge Abasolo gave due course to petitioners' Notice of Appeal.
The private respondents (as protestees) sought recourse in the Commission on Elections
(COMELEC) by a petition for certiorari and Prohibition with a Prayer for a Writ of Preliminary
Injunction or Restraining Order (SPR No. 8-90) to annul Judge Abasolo's order giving due course to
the appeal.
On May 30, 1990, the Commission en banc issued a Temporary Restraining Order enjoining Judge
Abasolo from implementing his Order of May 10, 1990.
On June 14, 1990, the Commission en banc issued the following Order defining the issues:
After a thorough discussion of the issues, the following crystallized as the only issues to be
presented for resolution by the Commission, namely: (1) the issue of whether or not a Motion for
113
Reconsideration in electoral cases is a prohibited pleading; and (2) the parties agreed that in case
the answer to the first issue is "yes," the notice of appeal was filed out of time and in case the answer
is "no," the notice of appeal was filed on time.
Having agreed on these issues, the parties also agreed to submit the same for resolution on the basis
thereof. (p. 20, Rollo.)
On August 2, 1990, the COMELEC granted the petition for certiorari. The dispositive portion of its
resolution reads:
WHEREFORE, premises considered, the Commission En Banc RESOLVES, as it hereby RESOLVES, to:
1. GRANT the petition for Certiorari;
2. Permanently ENJOIN Public Respondent from implementing the order of May 10, 1990:
and
3. ORDER the Court a quo to proceed with the disposition of Election Protest Case No. U-
4659 in accordance with the Resolution of March 7, 1990 dismissing the election protest against
herein Petitioners. (pp. 22-23, Rollo.)
Hence, this special civil action of Certiorari and Prohibition with prayer for a writ of preliminary
injunction and/or temporary restraining order, filed on August 31, 1990 by the petitioners
(protestants below), pursuant to Rule 39, Section 1, COMELEC RULES OF PROCEDURE (on Review
of decisions of the COMELEC) attacking:
1. the Resolution of the COMELEC En Banc dated August 2, 1990; and
2. the Resolution of Judge Santiago Estrella dated March 7, 1990 dismissing the election
protest of the petitioners.
Without giving due course to the petition, we required the respondents to comment.
After the latter had filed their Comments (pp. 37-63, 110-124, Rollo), the petitioners asked for
extensions of time to reply (which the Court granted but they did not file the promised pleading).
As grounds of this petition, the petitioners allege that the questioned resolutions are not only
erroneous but were issued by the COMELEC "with grave abuse of discretion tantamount to lack of
jurisdiction."
There is no merit in this petition for review for the COMELEC correctly found that the petitioners'
appeal from the court's order dismissing their election protest was indeed tardy. It was tardy
because their motion for reconsideration did not suspend their period to appeal. The petitioners'
reliance on Section 4, Rule 19 of the COMELEC RULES OF PROCEDURE which provides:
Sec. 4. Effect of motion for reconsideration on period to appeal. — A motion to reconsider a
decision, resolution, order, or ruling when not pro-forma, suspends the running of the period to
elevate the matter to the Supreme Court.
is misplaced. The "motion for reconsideration" referred to above is a motion for reconsideration
filed in the COMELEC, not in the trial court where a motion for reconsideration is not entertained.
The rule applicable to decisions or orders of the court in election protests is Section 20, Rule 35 of
the COMELEC RULES OF PROCEDURE which provides:
Sec. 20. Promulgation and Finality of Decision. — The decision of the court shall be promulgated
on a date set by it of which due notice must be given the parties. It shall become final five (5) days
after promulgation. No motion for reconsideration shall be entertained. (Emphasis supplied.)
The above COMELEC rule implements Section 256 of the Omnibus Election Code quoted below:
Sec. 256. Appeals. — Appeals from any decision rendered by the regional trial court under Section
251 and paragraph two, Section 253 hereof with respect to quo-warranto petitions filed in election
contests affecting municipal officers, the aggrieved party may appeal to the Intermediate Appellate
Court [now Commission on Elections] within five days after receipt of a copy of the decision. No
motion for reconsideration shall be entertained by the Court. The appeal shall be decided within
sixty days after the case has been submitted for decision. (Emphasis supplied.)
Petitioners admitted receipt of the resolution of the trial court dated March 7, 1990 on March 15,
1990 but they filed a notice of appeal on April 3, 1990 only, instead of on or before March 20, 1990
(five days from receipt of the trial court's decision), because they filed a motion for reconsideration
which, as previously stated, is prohibited by Section 256 of the Omnibus Election Code and Section
20, Rule 35 of the COMELEC RULES OF PROCEDURE.
The COMELEC, therefore, correctly ruled that the motion for reconsideration filed by the petitioners
in the trial court on March 20, 1990 did not suspend the period to appeal since a "motion for
reconsideration" is prohibited under Section 256 of the Omnibus Election Code.
Since the right to appeal is not a natural right nor is it a part of due process, for it is merely a
statutory privilege that must be exercised in the manner and according to procedures laid down by
law (Borre vs. Court of Appeals, 158 SCRA 560), and its timely perfection within the statutory
period is mandatory and jurisdictional (Delgado vs. Republic, 164 SCRA 347; Sembrano vs. Ramirez,
166 SCRA 30; PCI Bank vs. Ortiz, 150 SCRA 380; Quiqui vs. Boncaros, 151 SCRA 416), Judge Abasolo
gravely abused his discretion when he gave due course to the petitioners' tardy appeal from his
predecessor's (Judge Santiago Estrella's) resolution of March 7, 1990 dismissing the petitioners'
election protest. Said resolution had become final and unappealable.
Nevertheless, we must grant this petition for certiorari for the COMELEC does not possess
jurisdiction to grant the private respondents' petition for certiorari. This Court, through Mme.
Justice Ameurfina A. Melencio-Herrera, in the consolidated cases of "Garcia, et al. vs. COMELEC, et
al." (G.R. No. 88158)and "Tobon Uy vs. COMELEC and Neyra" (G.R. Nos. 97108-09) promulgated on
March 4, 1992, ruled that the COMELEC has not been given, by the Constitution nor by law,
jurisdiction to issue writs of certiorari, prohibition and mandamus:
In the Philippine setting, the authority to issue Writs of Certiorari, Prohibition and Mandamus
involves the exercise of original jurisdiction. Thus, such authority has always been expressly
conferred, either by the Constitution or by law. As a matter of fact, the well-settled rule is that
jurisdiction is conferred only by the Constitution or by law. (Orosa, Jr. vs. Court of Appeals, G.R. Nos.
76828-32, 28 January 1991; Bacalso vs. Ramolete, G.R. No. L-22488, 26 October 1967, 21 SCRA
519). It is never derived by implication. Indeed, "[w]hile the power to issue the writ of certiorari is
in some instance conferred on all courts by constitutional or statutory provisions, ordinarily, the
particular courts which have such power are expressly designated" (J. Aquino's Concurring Opinion
in Pimentel, supra, citing 14 C.J. S. 202; Emphasis supplied).
Thus, our Courts exercise the power to issue Writs of Certiorari, Prohibition and Mandamus by
virtue of express constitutional grant or legislative enactments. To enumerate:
(1) Section 5[l], Article VIII of the 1987 Constitution conferred upon this Court such
jurisdiction;
114
(2) Section 9[1] of Batas Pambansa Blg. 129, or the Judiciary Regorganization Act of 1980, to
the Court of Appeals (then Intermediate Appellate Court).

(3) Section 21[l] of the said Act, to Regional Trial Courts;

(4) Section 5[1] of Republic Act No. 6734, or the Organic Act for the Autonomous Region in
Muslim Mindanao, to the newly created Shari'ah Appellate Court; and

(5) Article 143 [e], Chapter I, Title I, Book IV of Presidential Decree No. 1083, or the Code of
Muslim Personal Law, to Shari'a District Courts.

Significantly, what the Constitution granted the COMELEC was appellate jurisdiction. The
Constitution makes no mention of any power given the COMELEC to exercise original jurisdiction
over Petitions for Certiorari, Prohibition and Mandamus unlike in the case of the Supreme Court
which was specifically conferred such authority (Art. VIII, Sec. 5[1]. The immutable doctrine being
that jurisdiction is fixed by law, the power to issue such Writs can not be implied from the mere
existence of appellate jurisdiction. Just as implied repeal of statutes are frowned upon, so also
should the grant of original jurisdiction by mere implication to a quasi-judicial body be tabooed. If
appellate jurisdiction has to be statutorily granted, how much more the original jurisdiction to issue
the prerogative Writs?

In view of this pronouncement, an original special civil action of certiorari, prohibition or

mandamus against a regional trial court in an election contest may be filed only in the Court of
Appeals or in this Court, being the only courts given such original jurisdiction under the
Constitution and the law.

WHEREFORE, the petition for certiorari is GRANTED. The Resolution dated August 2, 1990, of the
COMELEC en banc is annulled for lack of jurisdiction. The Resolution dated March 7, 1990 of RTC
Judge Santiago Estrella, dismissing the election protest of the petitioners is AFFIRMED and declared
final and executory. Costs against the petitioners.

SO ORDERED.

115
MATEO R. NOLLEN, JR., BERSAMIN,

Petitioner, DEL CASTILLO,

ABAD, and

VILLARAMA, JR., JJ.

- versus - Promulgated:

January 11, 2009

x-----------------------------------------------------------------------------------------x

DECISION

COMMISSION ON ELECTIONS and SUSANA M. CABALLES,

Respondents. VELASCO, JR., J.:

The Case

G.R. No. 187635 In this petition for certiorari under Rule 64 in relation to Rule 65, Mateo R. Nollen, Jr. assails and
seeks to nullify the Order[1] dated September 22, 2008 of the Commission on Elections (COMELEC)
First Division in EAC BRGY 360-2008 and the Resolution[2] of April 2, 2009 of the COMELEC En
Banc denying his motion for reconsideration.
Present:

The Facts
PUNO, C.J.,

CARPIO,
Respondent Susana M. Caballes and petitioner Mateo R. Nollen, Jr. were candidates for punong
CORONA, barangay of Gibanga, Sariaya, Quezon in the October 29, 2007 barangay elections. Having garnered
four hundred and fifty-six (456) votes as against the four hundred and forty-eight (448) votes
CARPIO MORALES, Caballes obtained, Nollen was declared as the punong barangay-elect.

VELASCO, JR.,

NACHURA, Dissatisfied with the result, Caballes instituted an election protest with the Municipal Trial Court
(MTC) in Sariaya, Quezon. On June 3, 2008, the MTC rendered a decision declaring protestant
LEONARDO-DE CASTRO, Caballes as punong barangay-elect, having garnered four hundred fifty-six (456) votes, or five (5)
votes more than the four hundred fifty-one (451) votes of Nollen.
BRION,

PERALTA,

116
Unable, as to be expected, to admit defeat, Nollen filed on June 5, 2008 his notice of appeal and paid
the MTC the appeal fee of PhP 1,000.
Following the elevation of the MTCs records to the COMELEC, the First Division of the COMELEC, by
Order of September 22, 2008 in EAC BRGY 360-2008, dismissed Nollens appeal for his failure to pay
the appeal fee of PhP 3,000 prescribed by Sections 3 and 4, Rule 40 of the COMELEC Rules of
Procedure within the reglementary period of five (5) days.
From the above order, Nollen moved for reconsideration, praying for the liberal interpretation of
the rules, but stating in the same breath that his PhP 1,000 appeal fee payment was sufficient to
perfect his appeal.[3] To still require him to pay the additional amount of PhP 3,000 as appeal fee
and a bailiff fee of PhP 200 on top of what he already paid the MTC, would amount, so he claimed, to
a denial of his right to due process. On October 6, 2008, Nollen, despite his earlier avowal to pay his
deficiency only if the COMELEC En Banc would reconsider the dismissal order of the First Division,
paid the poll bodys Cash Division the amount of PhP 3,200.
Ruling of the COMELEC En Banc
By Resolution[4] dated April 2, 2009, the COMELEC En Banc denied Nollens motion for
reconsideration on the rationalization that, while he timely filed his notice of appeal and
simultaneously paid the PhP 1,000 appeal fee with the MTC on June 5, 2008, the appeal would be
deemed duly registered and docketed only upon full payment of the filing fee to the COMELEC. By its
ruling, the COMELEC En Banc evidently had in mind Zamoras v. COMELEC,[5] among other cases.[6]
And citing jurisprudence, the COMELEC held that the error in the payment of filing fees in election
cases is no longer excusable.[7]
The Issue
Hence, this recourse on the singular issue of whether or not the COMELECin first dismissing Nollens
appeal from the MTC and then denying his motion for reconsiderationacted without or in excess of
its jurisdiction or with grave abuse of discretion, amounting to lack, or in excess, of jurisdiction.
The Courts Ruling
The petition is meritorious.
Pending resolution of this petition, several relevant incidents transpired bearing on the payment of
the appeal fees imposed by different rules in election cases. Payment of appeal fees in appealed
election protest cases is now separately required by the Rules of Court and Sec. 3, Rule 40 of the
COMELEC Rules of Procedure, as amended by Resolution No. 02-0130, Series of 2002, a situation
not obtaining previously. The Court, thus, deems it right to put things in proper perspective.
As may be recalled, the Court, in Miranda v. Castillo,[8] held that in election protest cases, the
incomplete payment of the filing fee required by the COMELEC Rules is correctible by the payment
of the deficiency. Earlier, the Court did not dismiss an election protest case for incomplete payment
of the COMELEC-imposed filing fee arising from incorrect assessment by the clerk of court.[9] Then
came Zamoras,[10] a 2004 case in which the petitioner failed to fully pay the COMELEC-prescribed
appeal fee of PhP 3,200 exacted under COMELEC Resolution No. 02-0130, Series of 2002. There, the
Court held, The subsequent payment of the filing fee [two months after Zamoras received a copy of
the MTCs decision] x x x did not relieve Zamoras of his mistake. A case is not deemed registered and
docketed until full payment of the filing fee. Otherwise stated, the date of the payment of the filing
fee is deemed the actual date of the filing.
On May 15, 2007, the Court issued A.M. No. 07-4-15-SC providing the Rules of Procedure in Election
Contests Before the Courts Involving Elective Municipal and Barangay Officials. Among other things,
it required the payment of a PhP 1,000 appeal fee upon the filing of a notice of appeal. Secs. 8 and 9
of A.M. No. 07-4-15-SC provide:
SEC. 8. Appeal.An aggrieved party may appeal the decision to the [COMELEC] within five (5) days
after promulgation, by filing a notice of appeal with the court that rendered the decision x x x.
SEC. 9. Appeal fee.The appellant in an election contest shall pay to the court that rendered the
decision an appeal fee of One Thousand Pesos (PhP 1,000), simultaneously with the filing of the
notice of appeal.
In a bid to untangle the confusion in the implementation of its procedural rules engendered by the
requirement of appeal fees separately assessed under the Rules of Court and its Rules of
Procedures, the COMELEC issued on July 15, 2008 Resolution No. 8486, providing as follows:
1. That if the appellant had already paid the amount of PhP 1,000 before the Regional Trial Court,
x x x [MTC] x x x within the five-day period, pursuant to Section 9, Rule 14 of the Rules of Procedure
on Election Contests Before the Court Involving Elective Municipal and Barangay Officials (Supreme
Court Administrative Order No. 07-4-15) and his Appeal is given due course by the Court, said
appellant is required to pay the COMELEC appeal fee of P3,200.00 x x x within a period of fifteen
(15) days from the time of filing of the Notice of Appeal with the lower court. If no payment is made
within the prescribed period, the appeal shall be dismissed pursuant to Section 9(a) of Rule 22 of
the COMELEC Rules of Procedure.
SEC. 9 Grounds for Dismissal of Appeal. The appeal may be dismissed x x x (a) for failure to pay the
correct appeal fee x x x.
117
2. That if the appellant failed to pay the PhP 1,000-appeal fee with the lower court within the five-
day period as prescribed by the Supreme Court New Rules of Procedure, but the case was
nonetheless elevated to the Commission, the appeal shall be dismissed outright. x x x (Emphasis
added.)
On June 30, 2009, the Court, in Aguilar v. COMELEC,[11] pronounced aptly:
It should be noted from the aforequoted sections [8 and 9] of the Rule that the appeal fee of PhP
1,000 is paid not to the COMELEC but to the trial court that rendered the decision. Thus the filing of
the notice of appeal and the payment of the PhP 1,000-appeal fee perfect the appeal consonant with
Sections 10 and 11 of the same Rule. Upon the perfection of the appeal, the records have to be
transmitted to the x x x COMELEC within 15 days. x x x
xxxx
x x x 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 PhP 3,200 to the COMELEC Cash
Division within the period to appeal [five (5) days from notice of the trial courts decision], as stated
in the COMELEC Rules of Procedure, as amended, no longer applies.
The non-payment or the insufficient payment of the additional appeal fee of PhP 3,200 to the
COMELEC Cash Division x x x 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.
The Court takes judicial notice that the COMELEC, in light of, and expressly adverting to, Aguilar,
promulgated on August 4, 2009 Resolution No. 8654.[12] With regard to the determination of the
sufficiency and timely payment of the appeal fees as requisite for the perfection of appeals, the
Resolution provides:
WHEREFORE, in view of the foregoing, the Commission hereby RESOLVES to consider and adopt the
following guidelines on (a) the payment of appeal fees and (b) the disposition of motions for
reconsideration; to wit:
1. The appeal to the COMELEC of the trial courts decision in election contests involving
municipal and barangay officials is perfected upon the filing of the notice of appeal and the payment
of the PhP 1,000-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 PhP 3,200 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.
2. If the appellant filed his appeal before the effectivity of COMELEC Resolution No. 8486,
the appellant shall be directed to pay the additional appeal fee of PhP 3,200 within fifteen (15) days
from receipt of notice from the Commission, in accordance with Resolution No. 8486. If the latter
should refuse to comply, then, and only then shall the appeal be dismissed. (Emphasis supplied.)
As Aguilar stated and COMELEC Resolution No. 8654 reiterated, the payment of the PhP 1,000
appeal fee within five days from the promulgation of the Regional Trial Court or MTC decision
technically perfects the appeal from the trial courts decision. Such appeal is not dismissible as a
matter of course on account alone of the inadequate payment or nonpayment of the filing fee of PhP
3,200. The legal situation, however, changes if the appellant, in the words of Resolution No. 8654,
fails, as directed, to pay the amount within 15 days from receipt of notice from the COMELEC. In the
instant case, albeit Nollen paid the PhP 3,200 only in October 2008, or long after his receipt of the
June 2008 MTC decision, his appeal may validly be viewed as not fatally belated. COMELEC
Resolution No. 8654 is applicable to his appeal, as the appeal was on June 5, 2008, or prior to July
24, 2008 when the more stringent Resolution No. 8486 took effect.
For the sake of laying down clearly the rules regarding the payment of the appeal fee, a discussion of
the application of the recent Divinagracia v. COMELEC[13] to election contests involving elective
municipal and barangay officials is necessary. Divinagracia explained the purpose of Resolution No.
8486 which, as earlier stated, the COMELEC issued to clarify existing rules and address the resulting
confusion caused by the two appeal fees required, for the perfection of appeals, by the two different
jurisdictions: the court and COMELEC. Divinagracia stressed that if the appellants had already paid
the amount of PhP 1,000 to the lower courts within the five-day reglementary period,[14] they are
further required to pay the COMELEC, through its Cash Division, the appeal fee of PhP 3,200 within
fifteen (15) days from the time of the filing of the notice of appeal with the lower court. If the
appellants failed to pay the PhP 3,200 within the prescribed period, then the appeal should be
dismissed.[15] The Court went on to state in Divinagracia that Aguilar[16] did not dilute the force of
COMELEC Resolution No. 8486 on the matter of compliance with the COMELEC-required appeal
fees.[17] The resolution, to reiterate, was mainly issued to clarify the confusion caused by the
requirement of payment of two appeal fees.
Divinagracia, however, contained the following final caveat: that for notice of appeal filed after the
promulgation of this decision, errors in the matter of non-payment or incomplete payment of the
two appeal fees in election cases are no longer excusable.[18]
It cannot be overemphasized, however, that the warning given in Divinagracia is inapplicable to the
case at bar, since the notice of appeal in the instant case was filed on June 5, 2008. In the strict legal
viewpoint, Divinagracia contextually finds applicability only in cases where notices of appeal were
filed at least after the promulgation of the Divinagracia decision on July 27, 2009. Since petitioner
118
paid the appeal fee of PhP 1,000 simultaneously with his filing of his notice of appeal on June 5,
2008, the appeal is considered perfected pursuant to COMELEC Resolution No. 8654, taking it
beyond the ambit of Divinagracia. Again, petitioners failure to pay the remaining PhP 3,200 within
the prescribed period cannot be taken against him, since the COMELEC failed to notify him
regarding the additional appeal fee, as provided by Resolution No. 8654. Although Nollen, following
superseded jurisprudence, failed to pay the filing fee on time, he nonetheless voluntarily paid the
remaining PhP 3,200 appeal fee on October 6, 2008. We, thus, credit him for remitting the amount of
PhP 3,200, which, applying extant rules and prevailing jurisprudence, cannot be considered as
having been belatedly paid. Hence, his petition should be given due course.

WHEREFORE, the petition for certiorari is hereby GRANTED. The Order of the COMELEC First
Division dated September 22, 2008 and the Resolution of the COMELEC En Banc dated April 2, 2009
are REVERSED and SET ASIDE. The case is REMANDED to the COMELEC for its review of the
assailed June 3, 2008 MTC decision.

SO ORDERED.

119
G.R. No. 118861 April 27, 1995
EMMANUEL M. RELAMPAGOS, petitioner,
vs.
ROSITA C. CUMBA and the COMMISSION ON ELECTIONS, respondents.
DAVIDE, JR., J.:
This special civil action of certiorari under Rule 65 of the Rules of Court revives the issue of whether
or not the Commission on Elections (COMELEC) has jurisdiction over petitions for, certiorari,
prohibition, and mandamus in election cases where it has exclusive appellate jurisdiction In the split
decision of 4 March 1992 in the consolidated cases of Garcia vs. De Jesus and Uy vs. Commission on
Elections,1 this Court ruled in the negative because of the absence of any specific conferment upon
the COMELEC, either by the constitution or by legislative fiat, of jurisdiction to issue such
extraordinary writs. It held that jurisdiction or the legal power to hear and determine a cause or
causes of action, must exist as a matter of law, whether the jurisdiction is original or appellate, and
since these two classes of jursdiction are exclusive of each other, each must expressly conferred by
law. One does not flow, nor is inferred, from the other. This Court proceeded to state that in the
Philippine setting, the authority to issue the aforesaid writs involves the exercise of original
jurisdiction which has always been expressly conferred either by Constitution or by law. It is never
derived by implication. Although the Constitution grants the COMELEC appellate jurisdiction, it does
not grant it any power to exercise original jurisdiction over petitions for certiorari, prohibition, and
mandamus unlike the case of this Court which is specifically conferred with such authority in
Section 5(1) of Article VIII. It also pointed out that the doctrines laid down in Pimentel vs.
COMELEC2 — that neither the Constitution nor any law has conferred jurisdiction on the COMELEC
to issue such writs — still finds application under the 1987 Constitution.
In the decision of 29 July 1992 in Veloria vs. Commission on Elections, 3 this Court reiterated the
Garcia and Uy doctrine.
In the challenged resolution at bench, the respondent COMELEC adhered to the affirmative view of
the issue, citing as authority therefore its own decision of 29 July 1993 in Dictado vs. Cosico and the
last paragraph of Section 50 of B. P. Blg. 697, which reads:
Sec. 50. Definition. —
xxx xxx xxx
The Commission is hereby vested with exclusive authority to hear and decide petitions for certiorari
prohibition, and mandamus involving election cases.
The petitioner herein pleads that this resolution be set aside and nullified for having been issued
with grave abuse of discretion amounting to lack or excess of jurisdiction. He contends that while
the COMELEC's position is inherently compelling, it deserves scant consideration in view of Garcia
and Uy and Veloria and the nature and purpose of B. P. Blg. 697 which was to govern solely the
Batasang Pambansa election of 14 May 1984; hence, it was a temporary statute which self-
destructed after such election.
The antecedent facts that led to the filing of this action are uncomplicated and undisputed.
In the synchronized elections of 11 May 1992, the petitioner and private respondent Rosita Cumba
were candidates for the position of Mayor in the municipality of Magallanes, Agusan del Norte. The
latter was proclaimed the winning candidate, with a margin of only twenty-two votes over the
former.
Unwilling to accept defeat, the petitioner filed an election protest with the Regional Trial Court
(RTC) of Agusan del Norte, which was assigned to Branch 2 thereof in Butuan City.
On 29 June 1994, the trial court, per Judge Rosario F. Dabalos, found the petitioner to have won with
a margin of six votes over the private respondent and rendered judgement in favor of the petitioner
as follows:
WHEREFORE, in view of the foregoing results, the court hereby declares the protestant as having
won the mayoralty election and as duly elected Mayor of the Municipality of Magallanes, Agusan del
Norte in the local election held on May 11, 1992, the protestant having obtained six (6) votes more
than that of the protestee's votes.
Copies of the decision were sent to and received by the petitioner and the private respondent on 1
July 1994.
On 4 July 1994, the private respondent appealed the decision to the COMELEC by filing her notice of
appeal and paying the appellate docket fees.
On 8 July 1994, the trial court gave due course to the appeal.
On 12 July 1994, the petitioner filed with the trial court a motion for execution pending appeal,
which the private respondent opposed on 22 July 1994.
On 3 August 1994, the trial court granted the petitioner's motion for execution pending appeal. The
corresponding writ of execution was forthwith issued. Thereafter, the private respondent filed a
motion for a reconsideration of the order of execution and the sheriff held in abeyance the
implementation of the writ. This motion was denied on 5 August 1994.
The private respondent then filed with the respondent COMELEC a petition for certiorari to annul
the aforesaid other of the trial court granting the motion for execution pending appeal and the writ
of execution. The petition was docketed as SPR No. 1-94.
On 9 February 1995, the COMELEC promulgated its resolution granting the petition.4 The
dispositive portion thereof reads as follows:
WHEREFORE, premises considered, the Commission RESOLVES that is [sic] has exclusive authority
to hear and decide petitions for certiorari, prohibition and mandamus in election cases as
authorized by law, and therefore, assumes jurisdiction of the instant petition for certiorari which is
hereby GRANTED. The Order of the court a quo of August 3, 1994 is hereby declared NULL and VOID
and the Writ of Execution issued on August 4, 1994 LIFTED.
Accordingly, petitioner Rosita Cumba is ordered restored to her position .as Municipality Mayor of
Magallanes, Agusan del Norte, pending resolution of the appeal before this Commission in the case
of Relampagos vs. Cumba in EAC No. 108-94.
In upholding its jurisdiction in certiorari, prohibition, and mandamus cases, the respondent
COMELEC maintains that there is a special law granting it such jurisdiction, viz., Section 50 of B.P.
Blg. 697, which remains in full force as it was not expressly repealed by the Omnibus Election Code
(B.P. Blg. 881),and that it is not exactly correct that this law self-destructed after the May 1984
election. It further reasoned out that in the performance of its judicial functions, the COMELEC, is
the most logical body to issue the extraordinary writs of certiorari, prohibition and mandamus in
election cases where it has appellate jurisdiction. It ratiocinated as follows:
It is therefore clear that if there is a law which specifically confers jurisdiction to issue the
prerogative Writs, then the Commission has jurisdiction.
120

Such a law exists. Section 50, B.P. Blg. 697 is that law.
B.P. Blg. 697, approved on March 14, 1984, is entitled "AN ACT TO GOVERN THE ELECTION OF
MEMBERS OF THE BATASANG PAMBANSA ON MAY 14, 1984 AND THE SELECTION OF SECTORAL
REPRESENTATIVES THEREAFTER, APPROPRIATING FUNDS THEREFOR AND FOR OTHER
PURPOSES. Section 50 provides:
Sec. 50. Definition.— Pre-proclamation controversy refers to any question pertaining to or
affecting the proceedings of the Board of Canvassers which may be raised by any candidate, political
party or coalition of political parties before the board or directly with the Commission.
The Commission Elections shall be the sole judge and shall have exclusive jurisdiction over all pre-
proclamation controversies.
The Commission is hereby vested with exclusive authority to hear and decide petitions for
certiorari, prohibition and mandamus involving election cases.(Emphasis supplied).
We have debated among ourselves whether Section 50, B.P. Blg. 697, has been repealed. We have
come to the conclusion that it has not been repealed. The repealing provision in the Omnibus
Election Code (BP Blg. 881, December 3, 1985), provides:
Sec. 282. Repealing Clause. — Presidential Decree No. 1296 otherwise known as the The 1978
Election Code, as amended, is hereby repealed. All other election Laws, decrees, executive orders,
rules and regulations or parts thereof, inconsistent with the provisions of this Code is hereby
repealed, except Presidential Decree No. 1618 and Batas Pambansa Blg. 20 governing the election of
the members of the Sangguniang Pampook of Regions IX and XII. (Emphasis supplied).
B.P. Blg. 697 has not been expressly repealed, and Section 50 thereof is not inconsistent with the
provisions of the Omnibus Election Code. Besides, in the cited Garcia/Uy cases, as reiterated in the
Veloria case, the Supreme Court itself said, reiterating previous cases, that implied repeal of statutes
is frowned upon, thus:
Just as implied repeal of statutes frowned upon, so also should the grant of original jurisdiction by
mere implication to a quasi-judicial body be tabooed. (Garcia/Uy/Veloria Cases: Emphasis
supplied).
xxx xxx xxx
It is equally clear that Executive Order No. 90 . . . did not modify or repeal, whether expressly or
impliedly, Section 23 of P.D. No. 1752. It is common place Learning that implied repeal are not
favored in Law and are not casually to be assumed. The first effort of a court must always be to
reconcile or adjust the provisions of one statute with those of another so as to give sensible effect to
both provisions (Jalandoni vs. Andaya, 55 SCRA 261 (1974); Villegas vs. Subido, 41 SCRA 190, 196-
197 (1971); National Power Corporation vs. ARCA, 25 SCRA 931 (1968); U.S. vs. Palacios, 33 Phil.
208 (1916); and Iloilo Palay and Corn Planters Association, Inc. vs. Feliciano, 13 SCRA 377·(1965).
Only when there is clear inconsistency and conflict between the provisions of two (2) statutes, may
a court hold that the provisions later in point of time have impliedly repealed the earlier ones" that
(Philippine American Management Co., Inc., vs. Philippine American Management Employees
Association, 49 SCRA 194 (1973); and Villegas vs. Subido, 41 SCRA 190 (1971) (Larga vs. Ranada, Jr.,
No. L-7976, August 3, 1984, 164 SCRA 25).
It was even suggested that Batas Pambansa Blg. 697 self-destructed after the Batasang Pambansa
elections of 1984; because of the provisions of Section 1 (Title and Applicability) which provides:
"This act shall be known and cited as "The Law on the 1984 Batasang Pambansa Election." It shall
govern the election for the regular Batasang Pambansa which shall be held on May 14, 1984, and the
selection of sectoral representatives thereafter as provided by the Constitution.
While that may be true with most of its provisions which were applicable only for the particular
election (like election and campaign periods, voting constituency, etc.) most if not all of the
remaining provisions could be applicable to future elections. It is not lost to the Commission that
B.P. Blg. 697 was passed also "for other purposes."
But the important consideration is that the authority granted to the Commission under B.P. Blg. 697
is not inconsistent with our election laws. It should be mentioned that the provisions of Republic Act
No. 6638 which governed the local elections of January 18, 1988, as to the number of councilors in
specified cities (Sec. 3) and the number of Sangguniang members in different provinces and cities
(Sec. 4) are still applicable up to this day. In fact, it became one of the important controlling
provision which governed the May 11, 1992 elections. If provisions of Republic Act No. 6636 which
are not inconsistent with the present election laws did not self-destruct, why should Section 50 of
B.P. Blg. 697?
Another provision which did not self-destruct is that which provides that "any city or municipal
judge, who includes or excludes any voter without any legal basis in inclusion and exclusion
proceedings, shall be guilty of an election offense," although this provision is found in Section 10 of
Executive Order No. 134 supposedly with limited application as the enabling act for the elections for
Members of Congress on May 11, 1987 and for other purposes.
Clearly the intent of the law, was to give certiorari, jurisdiction to the Commission on Elections
because the Pimentel case said there was none, to fill a void in the law, and avoid an incongruous
situation.
A statute's clauses and phrases must not be taken separately but in its relation to the statute's
totality. Each statute must, in fact, be construed as to "harmonized it with the pre-existing body of
laws." Unless clearly repugnant, provisions of statutes must be reconciled. . . . (Commissioner of
Customs vs. ESSO Standard Eastern, Inc. L-28329, August 7, 1975, 66 SCRA 113).
xxx xxx xxx
The statutory construction rule is: "When the Legislature enacts provision, it is understood that it is
aware of previous statutes relating to the same subject matter and that in the absence of any
express repeal or amendment therein, the new provision should be deemed enacted pursuant to the
legislative policy embodied in the prior statutes." (Legaspi vs. Executive Secretary, L-36153,
November 28, 1975, 68 SCRA 253).
The Commission is the most logical body whenever it performs judicial functions to take jurisdiction
of petitions for certiorari, prohibition and mandamus because it has appellate jurisdiction in
election cases granted by the Constitution itself. The Court of Appeals has no more appellate
jurisdiction over such cases And in the case of the Supreme Court, Justice de Castro in the Pimentel
case pointed out, in his dissenting opinion that under the Constitution the certiorari jurisdiction of
the Supreme Court in election cases should properly be limited to decisions, orders or rulings of the
Commission on Elections, not from lower courts.
It was of course different under the Election Code of 1971 (R.A. No. 6388, September 2, 1971)
because the Supreme Court and the Court of Appeals then had appellate jurisdiction in election case
decided by the lower courts.
In the Veloria case, it now appears that only the Supreme Court and the Court of Appeals have
certiorari jurisdiction over election cases from the lower courts because after reiterating the ruling
in the Garcia and Uy cases, the Supreme Court said:
121
In view of this pronouncement, an original civil action of certiorari, prohibition or mandamus
against a regional trial court in an election contest may be filed only in the Court of Appeals or in
this Court being the only courts given such original jurisdiction under the Constitution and the Law.
(Emphasis supplied).
While these two appellate Courts do have the jurisdiction under the Constitution and the law, it is
most logical for the Commission whenever it performs judicial functions to have the authority to
issue these prerogative writs. . . .
...
In traversing the first issue, we are citing our decision laid down in the case of Antonio Dictado vs.
Hon. Rodrigo N. Cosico and Emilio Tiongco promulgated on July 29, 1993. In this case, the
Commission en banc had occasion to rule on the question of whether or not the Commission has the
authority to hear and decide petitions for certiorari in election cases.
The Commission En Banc, speaking through Hon. Commissioner Regalado E. Maambong, ruled that
there is [a] law which grants the Commission, the exclusive authority to issue special writs of
certiorari, prohibition and mandamus in election cases, and there are also Supreme Court decisions,
recent in fact, which declare that the Commission has no such authority precisely because;
according to the decisions, there is no law granting such authority, and without any hint whatsoever
of the existence of Sec. 50 of Batas vs. Pambansa Blg. 697.
As gleaned from the case of Dictado, respondents were arguing that Sec. 50 of BP Blg. 697 was
repealed by the Omnibus Election Code (BP Blg. 881, December 3, 1985). Furthermore, in their
answer, respondents cited Supreme Court decisions where it was declared that, indeed, the
Commission has no jurisdiction to issue special writs of certiorari, prohibition and mandamus in aid
of its appellate jurisdiction.
It is still the position of this Commission that Sec. 50, BP Blg. 697 has not been repealed.
As defined in the Constitution, "Judicial power" includes the duty of the Courts of Justice to settle
actual controversies involving rights which are legally demandable and enforceable, and to
determine whether or not there has been a grave abuse of discretion amounting to lack or excess, of
jurisdiction on the part of any branch or instrumentality of the government (Sec. 1, par. 2, Art. VII).
Since the COMELEC, in discharging its appellate jurisdiction pursuant to Sec. 2 (2), Art. IX-C, acts as a
court of justice performing judicial power and said power includes the determination of whether or
not there has been grave abuse of discretion amounting to lack or excess of jurisdiction, it
necessarily follows that the Comelec, by constitutional mandate, is vested with jurisdiction to issue
writs of certiorari in aid of its appellate jurisdiction. 5
It set aside, for having been issued with grave abuse of discretion, the trial court's order of execution
pending appeal and the writ of execution because
[a]t the time the Motion for Execution Pending Appeal was filed on July 12, 1994 the court a quo had
already lost jurisdiction over the case for as early as July 8, 1994, it had already acknowledged
through its order issued on that date, the perfection of the appeal of petitioner as in fact it ordered
the elevation of the records of the case to this Honorable Commission. 6
Aggrieved by the resolution, the petitioner filed the instant special civil action.
In the resolution of 21 February 1985, the Court required the respondents to comment on the
petition and issued a temporary restraining order enjoining the respondent COMELEC to cease and
desist from enforcing is challenged resolution.
As naturally expected, the private respondent, in her Comment, opposed the petition by invoking
the very arguments adduced by the respondent COMELEC in its challenged the resolution and the
dissenting opinion in the Garcia and Uy cases.
In its comment filed by the Office of the Solicitor General, the respondent COMELEC postulates that
it issued the said resolution after it had taken cognizance of the appeal interposed by the private
respondent from the RTC decision, unlike in the Garcia and Uy cases, and therefore, in the exercise
of its appellate jurisdiction, thus:
it cannot be gainsaid that [it] possesses inherent powers to employ means necessary to carry into
effect the powers conferred upon it by law (Sec. 6, Rule 135 of the Revised Rules of Court) and
verily, there was no need for any statutory grant for that purpose. Indeed, in annulling the Order of
Execution of the Regional Trial Court, public respondent did not exceed its jurisdiction since its
action in this regard was necessary to preserve the subject of the appeal and to maintain the status
quo of the parties pending the final outcome of its review of the correctness of the appealed
decision. 7
It tried to show that in Pimentel and Garcia, the trial courts still had jurisdiction over the cases
unlike in the instant case where the trial court had already given due course to the appeal and
elevated the records of the case to the COMELEC which had taken cognizance of the appeal.
This Court resolved to give due course to this petition and to decide it on its merits.
The contention of the respondent COMELEC as advanced by the Office of the Solicitor General is
unacceptable. It goes against its theory in the assailed resolution and is not supported by the facts.
The challenged resolution involves a case which the COMELEC docketed as a special relief case (SPR.
No. 1-94). Under Rule 28 of its Rules of Procedure, the special relief cases are petitions for certiorari,
prohibition, mandamus, and contempt proceedings. The ordinary appeal from the RTC decision was,
as disclosed in the challenged resolution; docketed as EAC No. 108-94.8 Clearly then, the COMELEC
had recognized and taken cognizance of two cases: one, the ordinary appeal from the RTC decision
(EAC No. 108-94), and two, the special civil action for certiorari docketed as SPR No. 1-94. The two
cases were not consolidated. The dissimilarities between them need no further elaboration. Since it
issued the challenged resolution under the latter case, it cannot now be heard to state that it issued
it as an incident in the former, the ordinary appeal. This erroneous contention of the Office of the of
the Solicitor General notwithstanding, the position taken by the COMELEC in its resolution now in
question paves the way for a re-examination of this Court's pronouncement in the Garcia and Uy
cases.
As earlier stated, in Garcia and Uy, 9 and later, in Veloria, 10 this Court ruled that the COMELEC has
no jurisdiction over the extraordinary writs of certiorari, prohibition, and mandamus because there
is no specific constitutional or statutory conferment to it of such jurisdiction.
The respondent COMELEC, however, points out that Section 50 of B.P. Blg. 697 expressly granted it
such jurisdiction. Indeed, it did. Nevertheless, considering that the said law was, per Section 1
thereof, "to govern the election for the regular Batasang Pambansa which shall be held on May 14,
1984, and the selection of sectoral representatives thereafter as provided by the Constitution," and
in view of the passage of the Omnibus Election Code (B.P. Blg. 881) by the regular Batasang
Pambansa, 11 this Court is then confronted with the twin issues of whether said B.P. Blg. 697
became functus officio after the 14 May 1984 election of members of the regular Batasang
Pambansa or the selection thereafter of the sectoral representatives at the latest, and whether it was
repealed by the Omnibus Election Code.
The Court agrees with the respondent COMELEC that there are provisions in B.P. Blg. 697 whose
lifetime go beyond the 14 May 1984 election or the subsequent selection of sectoral representatives.
In fact, by the very wording of the last paragraph of its Section 50, to: wit:
122
Sec. 50. Definition. —
xxx xxx xxx
The Commission is hereby vested with the exclusive authority to hear and decide petitions for
certiorari, prohibition and mandamus involving election cases. (Emphasis supplied).
it is quite clear that the exercise of the power was not restricted within a specific period of time.
Taken in the context of the conspicuous absence of such jurisdiction as ruled in Pimentel vs.
Commission on Elections, 12 it seems quite obvious that the grant was intended as a remedial
legislation to eliminate the seeming incongruity or irrationality resulting in a splitting of jurisdiction
pointed out in the dissenting opinion of Justice De Castro in the said case.
But did not the Omnibus Election Code (B.P. Blg. 881) repeal B.P. Blg. 697? The repealing clause of
the latter reads as follows:
Sec. 282. Repealing clause. — Presidential decree No. 1296, otherwise known as The 1978 Election
Code, as amended, is hereby repealed. All other election laws, decrees, executive orders, rules and
regulations, or parts thereof, inconsistent with the provisions of this Code are hereby repealed,
except Presidential Decree No. 1618 .and Batas Pambansa Blg. 20 governing the election of the
members of the Sangguniang Pampook of Regions IX and XII.
The second sentence is in the nature of a general repealing clause. It has been said:
An express general repealing clause to the effect that. all inconsistent enactments are repealed; is in
legal contemplation a nullity. Repeals must either be expressed or result by implication. Although it
has in some instances been held to be an express recognition that there are acts in conflict with the
act in which it is included and as indicative of the legislative intent to repeal such acts, a general
repealing clause cannot be deemed an express repeal because it fails to identify or designate any act
to be repealed. It cannot be determinative of an implied repeal for if does not declare any
inconsistency but conversely, merely predicates a repeal upon the condition that a substantial
conflict is found under application of the rules of implied repeals. If its inclusion is more than mere
mechahical verbiage, it is more often a detriment than an aid to the establishment of a repeal, for
such clause is construed as an express limitation of the repeal to inconsistent acts.13
This Court is not unaware of the equally settled rule in statutory construction that in the revision or
codification of laws, all parts and provisions of the old laws that are omitted in the revised statute or
code are deemed repealed, unless the statute or code provides otherwise expressly or impliedly. 14
By the tenor of its aforequoted Repealing Clause, it does not evidently appear that the Batasang
Pambansa had intended to codify all prior election statutes and to replace them with the new Code.
It made, in fact, by the second sentence, a reservation that all prior election statutes or parts thereof
not inconsistent with any provisions of the Code shall remain in force. That sentence
predicates the intended repeal upon the condition that a substantial conflict must be found on
existing and prior acts of the same subject matter. Such being the case, the presumption against
implied repeals and the rule on strict construction regarding implied repeals apply ex proprio
vigore. For the legislature is presumed to know the existing laws so that, if repeal of particular or
specific law or laws is intended, the proper step is to express it. The failure to add a specific
repealing clause particularly mentioning the statute to be repealed indicates that the intent was not
to repeal any existing law on the matter, unless an irreconcilable inconsistency and repugnancy
exist in the terms of the new and the old laws.15
This being the case, the Court painstakingly examined the aforesaid last paragraph of Section 50 of
the Omnibus Election Code to determine if the former is inconsistent with any of the provisions of
the latter, It found none.
In the face of the foregoing disquisitions, the Court must, as it now does, abandon the ruling in the
Garcia and Uy and Veloria cases, We now hold that the last paragraph of Section 50 of B.P. Blg. 697
providing as follows:
The Commission is hereby vested with exclusive authority to hear and decide petitions for
certiorari, prohibition and mandamus involving election cases.
remains in full force and effect but only in such cases where, under paragraph (2), Section 1, Article
IX-C of the Constitution, it has exclusive appellate jurisdiction. Simply put, the COMELEC has the
authority to issue the extraordinary writs of certiorari, prohibition, and mandamus only in aid of its
appellate jurisdiction.
The jurisdiction of the COMELEC having been settled, we now proceed to review the substance of
the challenged resolution.
That the trial court acted with palpable and whimsical abuse of discretion in granting the
petitioner's motion for execution pending appeal and in issuing the writ of execution is all too
obvious. Since both the petitioner and the private respondent received copies of the decision on 1
July 1994, an appeal therefrom may be filed within five days 16 from 1 July 1994, or on or before 6
July 1994. Any motion for execution pending appeal must be filed before the period for the
perfection of the appeal. Pursuant to Section 23 of the Interim Rules Implementing B.P. Blg. 129,
which is deemed to have supplementary effect to the COMELEC Rules of Procedures pursuant to
Rule 43 of the latter, an appeal would be deemed perfected on the last day for any of the parties to
appeal,17 or on 6 July 1994. On 4 July 1994, the private respondent filed her notice of appeal and
paid the appeal fee. On 8 July 1994, the trial court gave due course to the appeal and ordered the
elevation of the records of the case to the COMELEC. Upon the perfection of the appeal, the trial
court was divested of its jurisdiction over the case. 18 Since the motion for execution pending
appeal was filed only on 12 July 1994, or after the perfection of the appeal, the trial court could no
longer validly act thereon. It could have been otherwise if the motion was filed before the perfection
of the appeal. 19 Accordingly, since the respondent COMELEC has the jurisdiction to issue the
extraordinary writs of certiorari, prohibition, and mandamus, then it correctly set aside the
challenged order granting the motion for execution pending appeal and writ of execution issued by
the trial court.
WHEREFORE, the instant petition is DENIED and the challenged resolution of 9 February 1995 of
the Commission on Elections in SPR No. 1-94 entitled "Rosita Cumba vs. Manuel M. Relampagos, et
al. " is AFFIRMED.
The temporary restraining order issued on 21 February 1995 is hereby LIFTED.
No pronouncemnt as to costs.
SO ORDERED.
123
G.R. No. 84297 December 8, 1988
CARMELO F. LAZATIN, petitioner,
vs.
THE HOUSE ELECTORAL TRIBUNAL and LORENZO G. TIMBOL, respondents.
Angara, Abello, Concepcion, Regala & Cruz for petitioner.
The Solicitor General for respondents.
CORTES, J.:
Petitioner and private respondent were among the candidates for Representative of the first district
of Pampanga during the elections of May 11, 1987. During the canvassing of the votes, private
respondent objected to the inclusion of certain election returns. But since the Municipal Board of
Canvassers did not rule on his objections, he brought his case to the Commission on Elections. On
May 19, 1987, the COMELEC ordered the Provincial Board of Canvassers to suspend the
proclamation of the winning candidate for the first district of Pampanga. However, on May 26, 1987,
the COMELEC ordered the Provincial Board of Canvassers to proceed with the canvassing of votes
and to proclaim the winner. On May 27, 1987, petitioner was proclaimed as Congressman-elect.
Private respondent thus filed in the COMELEC a petition to declare petitioners proclamation void ab
initio. Later, private respondent also filed a petition to prohibit petitioner from assuming office. The
COMELEC failed to act on the second petition so petitioner was able to assume office on June 30,
1987. On September 15, 1987, the COMELEC declared petitioner's proclamation void ab initio.
Petitioner challenged the COMELEC resolution before this Court in a petition entitled "Carmelo F.
Lazatin v. The Commission on Elections, Francisco R. Buan, Jr. and Lorenzo G. Timbol," docketed as
G.R. No. 80007. In a decision promulgated on January 25, 1988, the Court set aside the COMELEC's
revocation of petitioner's proclamation. On February 8, 1988, private respondent filed in the House
of Representatives Electoral Tribunal (hereinafter referred to as HRET an election protest, docketed
as Case No. 46.
Petitioner moved to dismiss private respondent's protest on the ground that it had been filed late,
citing Sec. 250 of the Omnibus Election Code (B.P. Blg. 881). However, the HRET filed that the
protest had been filed on time in accordance with Sec. 9 of the HRET Rules. Petitioner's motion for
reconsideration was also denied. Hence, petitioner has come to this Court, challenging the
jurisdiction of the HRET over the protest filed by private respondent.
A. The Main Case
This special civil action for certiorari and prohibition with prayer for the issuance of a writ of
preliminary injunction and/or restraining order seeks the annulment and setting aside of (1) the
resolution of the HRET, dated May 2, 1988, in Case No. 46, holding that the protest filed by private
respondent had been filed on time, and (2) its July 29, 1988 resolution denying the motion for
reconsideration.
Without giving due course to the petition, the Court required the respondents to comment on the
petition. The Solicitor General filed a comment in behalf of the HRET while the private respondent
filed his comment with a motion to admit counter/cross petition and the petitioner filed his
consolidated reply. Thereafter, the Court resolved to give due course to the petition, taking the
comments filed as the answers to the petition, and considered the case submitted for decision.
Resolution of the instant controversy hinges on which provision governs the period for filing
protests in the HRET. Should Sec. 250 of the Omnibus Election Code be held applicable, private
respondent's election protest would have been filed out of time. On the other hand, if Sec. 9 of the
HRET Rules is applicable, the filing of the protest would be timely. Succinctly stated, the basic issue
is whether or not private respondent's protest had been seasonably filed.
To support his contention that private respondent's protest had been filed out of time and,
therefore, the HRET did not acquire jurisdiction over it, petitioner relies on Sec. 250 of the Omnibus
Election Code, which provides:
Sec. 250. Election contests for Batasang Pambansa, regional, provincial and city offices. — A sworn
petition contesting the election of any Member of the Batasang Pambansa or any regional, provincial
or city official shall be filed with the Commission by any candidate who has duly filed a certificate of
candidacy and has been voted for the same office, within ten days after the proclamation of the
results of the election. [Emphasis supplied.]
Petitioner argues that even assuming that the period to file an election protest was suspended by
the pendency of the petition to annul his proclamation, the petition was filed out of time,
considering that he was proclaimed on May 27, 1987 and therefore private respondent had only
until June 6, 1987 to file a protest; that private respondent filed a petition to annul the proclamation
on May 28, 1987 and the period was suspended and began to run again on January 28, 1988 when
private respondent was served with a copy of the decision of the Court in G.R, No. 80007; that
private respondent therefore only had nine (9) days left or until February 6, 1988 within which to
file his protest; but that private respondent filed his protest with the HRET only on February 8,
1988.
On the other hand, in finding that the protest was flied on time, the HRET relied on Sec. 9 of its
Rules, to wit:
Election contests arising from the 1987 Congressional elections shall be filed with the Office of the
Secretary of the Tribunal or mailed at the post office as registered matter addressed to the Secretary
of the Tribunal, together with twelve (12) legible copies thereof plus one (1) copy for each
protestee, within fifteen (15) days from the effectivity of these Rules on November 22, 1987 where
the proclamation has been made prior to the effectivity of these Rules, otherwise, the same may be
filed within fifteen (15) days from the date of the proclamation. Election contests arising from the
1987 Congressional elections filed with the Secretary of the House of Representatives and
transmitted by him to the Chairman of the Tribunal shall be deemed filed with the tribunal as of the
date of effectivity of these Rules, subject to payment of filing fees as prescribed in Section 15 hereof.
[Emphasis supplied.]
Thus, ruled the HRET:
On the basis of the foregoing Rule, the protest should have been filed within fifteen (15) days from
November 22, 1987, or not later than December 7, 1987. However, on September 15, 1987, the
COMELEC acting upon a petition filed by the Protestant (private respondent herein), promulgated a
Resolution declaring the proclamation void ab initio. This resolution had the effect of nullifying the
proclamation, and such proclamation was not reinstated until Protestant received a copy of the
Supreme Court's decision annulling the COMELEC Resolution on January 28, 1988. For all intents
and purposes, therefore, Protestee's (petitioner herein) proclamation became effective only on
January 28, 1988, and the fifteen-day period for Protestant to file his protest must be reckoned from
that date.
Protestant filed his protest on February 8, 1988, or eleven (11) days after January 28. The protest,
therefore, was filed well within the reglementary period provided by the Rules of this Tribunal.
(Rollo, p. 129.]
The Court is of the view that the protest had been filed on time and, hence, the HRET acquired
jurisdiction over it.
124
Petitioner's reliance on Sec. 250 of the Omnibus Election Code is misplaced. Sec. 250 is couched in
unambiguous terms and needs no interpretation. It applies only to petitions filed before the
COMELEC contesting the election of any Member of the Batasang Pambansa, or any regional,
provincial or city official. Furthermore, Sec. 250 should be read together with Sec. 249 of the same
code which provides that the COMELEC "shall be the sole judge of all contests relating to the
elections, returns and qualifications of all Members of the Batasang Pambansa, elective regional,
provincial and city officials," reiterating Art. XII-C, Sec. 2(2) of the 1973 Constitution. It must be
emphasized that under the 1973 Constitution there was no provision for an Electoral Tribunal, the
jurisdiction over election contests involving Members of the Batasang Pambansa having been vested
in the COMELEC.
That Sec. 250 of the Omnibus Election Code, as far as contests regarding the election, returns and
qualifications of Members of the Batasang Pambansa is concerned, had ceased to be effective under
the 1987 Constitution is readily apparent. First, the Batasang Pambansa has already been abolished
and the legislative power is now vested in a bicameral Congress. Second, the Constitution vests
exclusive jurisdiction over all contests relating to the election, returns and qualifications of the
Members of the Senate and the House of Representatives in the respective Electoral Tribunals [Art.
VI, Sec. 171. The exclusive original jurisdiction of the COMELEC is limited by constitutional fiat to
election contests pertaining to election regional, provincial and city offices and its appellate
jurisdiction to those involving municipal and barangay offices [Art. IX-C, Sec. 2(2)].
Petitioner makes much of the fact that the provisions of the Omnibus Election Code on the conduct
of the election were generally made applicable to the congressional elections of May 11, 1987. It
must be emphasized, however, that such does not necessarily imply the application of all the
provisions of said code to each and every aspect of that particular electoral exercise, as petitioner
contends. On the contrary, the Omnibus Election Code was only one of several laws governing said
elections. *
An examination of the Omnibus Election Code and the executive orders specifically applicable to the
May 11, 1987 congressional elections reveals that there is no provision for the period within which
to file election protests in the respective Electoral Tribunals. Thus, the question may well be asked
whether the rules governing the exercise of the Tribunals' constitutional functions may be
prescribed by statute.
The Court is of the considered view that it may not.
The power of the HRET, as the sole judge of all contests relating to the election, returns and
qualifications of the Members of the House of Representatives, to promulgate rules and regulations
relative to matters within its jurisdiction, including the period for filing election protests before it, is
beyond dispute. Its rule-making power necessarily flows from the general power granted it by the
Constitution. This is the import of the ruling in the landmark case of Angara v. Electoral Commission
[63 Phil. 139 (1936)], where the Court, speaking through Justice Laurel, declared in no uncertain
terms:
... [The creation of the Electoral Commission carried with it ex necessitate rei the power regulative
in character to limit the time within which protests entrusted to its cognizance should be filed. It is a
settled rule of construction that where a general power is conferred or duly enjoined, every
particular power necessary for the exercise of the one or the performance of the other is also
conferred (Cooley, Constitutional Limitations, eighth ed., vol. 1, pp. 138, 139). In the absence of any
further constitutional provision relating to the procedure to be followed in filing protests before the
Electoral Commission, therefore, the incidental power to promulgate such rules necessary for the
proper exercise of its exclusive power to judge all contests relating to the election, returns and
qualifications of members of the National Assembly, must be deemed by necessary implication to
have been lodged also in the Electoral Commission. [At p. 177; emphasis supplied.]
A short review of our constitutional history reveals that, except under the 1973 Constitution, the
power to judge all contests relating to the election, returns and qualifications of the members of the
legislative branch has been exclusively granted either to the legislative body itself [i.e., the
Philippine Assembly under the Philippine Bill of 1902 and the Senate and the House of
Representatives under the Philippine Autonomy Act (Jones Law)] or to an independent, impartial
and non-partisan body attached to the legislature [i.e., the Electoral Commission under the 1935
Constitution and the Electoral Tribunals under the amended 1935 and the 1987 Constitutions].
Except under the 1973 Constitution, the power granted is that of being the sole judge of all contests
relating to the election, returns and qualifications of the members of the legislative body. Article VI
of the 1987 Constitution states it in this wise:
See. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which
shall be the sole judge of all contests relating to the election, returns, and qualifications of their
respective Members. Each Electoral tribunal shall be composed of nine Members, three of whom
shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six
shall be Members of the Senate or the House of Representatives, as the case may be, who shall be
chosen on the basis of proportional representation from the political parties and the parties or
organizations registered under the party-list system represented therein. The senior Justice in the
Electoral Tribunal shall be its Chairman.
The use of the word "sole" emphasizes the exclusive character of the jurisdiction conferred [Angara
v. Electoral Commission, supra, at 1621. The exercise of the power by the Electoral Commission
under the 1935 Constitution has been described as "intended to be as complete and unimpaired as if
it had remained originally in the legislature" [Id. at 175]. Earlier, this grant of power to the
legislature was characterized by Justice Malcolm as "full, clear and complete" [Veloso v. Board of
Canvassers of Leyte and Samar, 39 Phil. 886 (1919)]. Under the amended 1935 Constitution, the
power was unqualifiedly reposed upon the Electoral Tribunal Suanes v. Chief Accountant of the
Senate, 81 Phil. 818 (1948)] and it remained as full, clear and complete as that previously granted
the legislature and the Electoral Commission Lachica v. Yap, G.R. No. L25379, September 25, 1968,
25 SCRA 1401. The same may be said with regard to the jurisdiction of the Electoral Tribunals under
the 1987 Constitution.
The 1935 and 1987 Constitutions, which separate and distinctly apportion the powers of the three
branches of government, lodge the power to judge contests relating to the election, returns and
qualifications of members of the legislature in an independent, impartial and non-partisan body
attached to the legislature and specially created for that singular purpose (i.e., the Electoral
Commission and the Electoral Tribunals) [see Suanes v. Chief Accountant of the Senate, supra]. It
was only under the 1973 Constitution where the delineation between the powers of the Executive
and the Legislature was blurred by constitutional experimentation that the jurisdiction over
election contests involving members of the Legislature was vested in the COMELEC, an agency with
general jurisdiction over the conduct of elections for all elective national and local officials.
That the framers of the 1987 Constitution intended to restore fully to the Electoral Tribunals
exclusive jurisdiction over all contests relating to the election, returns and qualifications of its
Members, consonant with the return to the separation of powers of the three branches of
government under the presidential system, is too evident to escape attention. The new Constitution
has substantially retained the COMELEC's purely administrative powers, namely, the exclusive
authority to enforce and administer all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall; to decide, except those involving the right to vote, all
questions affecting elections; to deputize law enforcement agencies and government
instrumentalities for election purposes; to register political parties and accredit citizens' arms; to
file in court petitions for inclusion and exclusion of voters and prosecute, where appropriate,
violations of election laws [Art. IX(C), Sec. 2(1), (3)-(6)], as well as its rule-making power. In this
sense, and with regard to these areas of election law, the provisions of the Omnibus Election Code
are fully applicable, except where specific legislation provides otherwise. But the same cannot be
125
said with regard to the jurisdiction of the COMELEC to hear and decide election contests. This has
been trimmed down under the 1987 Constitution. Whereas the 1973 Constitution vested the
COMELEC with jurisdiction to be the sole judge of all contests relating to the elections, returns and
qualifications of all Members of the Batasang Pambansa and elective provincial and city officials
[Art. XII(C), Sec. 2(2)], the 1987 Constitution, while lodging in the COMELEC exclusive original
jurisdiction over all contests relating to the elections, returns and qualifications of all elective
regional, provincial and city officials and appellate jurisdiction over contests relating to the election
of municipal and barangay officials [Art. IX(C), Sec. 2(2)]. expressly makes the Electoral Tribunals of
the Senate and the House of Representatives the sole judge of all contests relating to the election,
returns and qualifications of their respective Members [Art. VI, Sec. 17].
rendered by the [Electoral] Commission in the exercise of such an acknowledged power is beyond
judicial interference, except, in any event, upon a clear showing of such arbitrary and improvident
use of the power as will constitute a denial of due process of law." Under the 1987 Constitution, the
scope of the Court's authority is made explicit. The power granted to the Court includes the duty "to
determine whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government (Art. VIII, Sec. 11. Thus,
only where such grave abuse of discretion is clearly shown shall the Court interfere with the HRET's
judgment. In the instant case, there is no occasion for the exercise of the Court's collective power,
since no grave abuse of discretion that would amount to lack or excess of jurisdiction and would
warrant the issuance of the writs prayed for has been clearly shown.

The inescapable conclusion from the foregoing is that it is well within the power of the HRET to WHEREFORE, the instant Petition is hereby DISMISSED. Private respondent's Counter/Cross
prescribe the period within which protests may be filed before it. This is founded not only on Petition is likewise DISMISSED.
historical precedents and jurisprudence but, more importantly, on the clear language of the
Constitution itself. SO ORDERED.

Consequently, private respondent's election protest having been filed within the period prescribed Paras, Gancayco, Padilla, Bidin, Griño-Aquino, Medialdea and Regalado, JJ., concur.
by the HRET, the latter cannot be charged with lack of jurisdiction to hear the case.
Fernan, C.J., Melencio-Herrera, Gutierrez, Jr., Sarmiento, Cruz and Feliciano, JJ., took no part.
B. Private-Respondent's Counter/Cross Petition
Narvasa, J., is on leave.
Private respondent in HRET Case No. 46 prayed for the issuance of a temporary restraining order
and/or writ of preliminary injunction to enjoin petitioner herein from discharging his functions and
duties as the Representative of the first district of Pampanga during the pendency of the protest.
However, on May 5, 1988, the HRET resolved to defer action on said prayer after finding that the
grounds therefor did not appear to be indubitable. Private respondent moved for reconsideration,
but this was denied by the HRET on May 30, 1988. Thus, private respondent now seeks to have the
Court annul and set aside these two resolutions and to issue a temporary restraining order and/or
writ of preliminary injunction on the premise that the grounds therefor are too evident to be
doubted.

The relief prayed for in private respondent's counter/cross petition is not forthcoming.

The matter of whether or not to issue a restraining order or a writ of preliminary injunction during
the pendency of a protest lies within the sound discretion of the HRET as sole judge of all contests
relating to the election, returns and qualifications of the Members of the House of Representatives.
Necessarily, the determination of whether or not there are indubitable grounds to support the
prayer for the aforementioned ancilliary remedies also lies within the HRETs sound judgment. Thus,
in G.R. No. 80007, where the Court declined to take cognizance of the private respondent's electoral
protest, this Court said:

The alleged invalidity of the proclamation (which had been previously ordered by the COMELEC
itself) despite alleged irregularities in connection therewith, and despite the pendency of the
protests of the rival candidates, is a matter that is also addressed, considering the premises, to the
sound judgment of the Electoral Tribunal.

Moreover, private respondent's attempt to have the Court set aside the HRET's resolution to defer
action on his prayer for provisional relief is undeniably premature, considering that the HRET had
not yet taken any final action with regard to his prayer. Hence, there is actually nothing to review or
and and set aside. But then again, so long as the Constitution grants the HRET the power to be the
sole judge of all contests relating to the election, returns and qualifications of Members of the House
of Representatives, any final action taken by the HRET on a matter within its jurisdiction shall, as a
rule, not be reviewed by this Court. As stated earlier, the power granted to the Electoral Tribunal is
full, clear and complete and "excludes the exercise of any authority on the part of this Court that
would in any wise restrict or curtail it or even affect the same." (Lachica v. Yap, supra, at 143.] As
early as 1938 in Morrero v. Bocar (66 Phil. 429, 431 (1938)), the Court declared that '[the judgment
126
G.R. No. 118597 July 14, 1995
JOKER P. ARROYO, petitioner,
vs.
HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL (HRET) and AUGUSTO L. SYJUCO, JR.,
respondents.
FRANCISCO, J.:
Congressional candidate private respondent Augusto L. Syjuco, Jr., filed an election protest before
public respondent House of Representatives Electoral Tribunal (HRET) five days after the Makati
board of canvassers proclaimed petitioner Joker P. Arroyo the duly elected congressman for the
lone district of Makati in the May 11, 1992 synchronized national and local elections. Essentially
premised on alleged irregularities/anomalies in the tabulation and entries of votes and massive
fraud, private respondent Syjuco sought the revision and recounting of ballots cast in 1,292 out of
the total 1,714 precincts of Makati from which result he aimed to be declared as the duly elected
congressman of Makati. Petitioner filed a counter-protest questioning the residence qualification of
private respondent Syjuco, but the same was dismissed by public respondent HRET.
As prayed for by private respondent, revision of the ballots was undertaken, but not without serious
irregularities having been unearthed in the course thereof. Tasked by public respondent HRET to
investigate on the matter, now retired Supreme Court Justice Emilio Gancayco confirmed the
irregularities and anomalies engineered by some HRET officials and personnel.1 The findings
contained in Justice Gancayco's Report and Recommendation were aptly summarized in the
"Dissenting Opinion" of Justice Bidin in this wise:
In his Report and Recommendation, Justice Gancayco found, in essence, that the respondent HRET
employees, while taking advantage of their official authority and control over the operational details
of the revision of ballots, and for corrupt motives, subverted the revision exercise in at least three
(3) protest cases, including this case (HRET Case No. 92-019), by maintaining a pool of individuals
subject to their control which were offered or foisted upon party litigants as their revisors. Once
functioning as party-revisors, these individuals implemented instructions given by the respondent
HRET employees to pilfer, dump (i.e., place ballots voted for one party with other ballots which do
not indicate votes for either party such as unclaimed, stray, spoiled or unused ballots, or ballots for
other candidates), and mark (in order to spoil) or fill-in ballots of one or the other of the litigants.
At the core of Justice Gancayco's findings and evaluation are protested precincts in this case which
exhibited cases of dumping, consistent reduction in Arroyo votes, falsification of revision reports
and pilferage of ballots, as testified on by the prosecution witness, principally, Atty. William Chua
and Mr. Ritchillier M. Matias.2
On this point, Justice Gancayco declared:
. . . Arroyo votes were consistently reduced at the revision and the deducted votes were found and
included in the stray ballots, while Syjuco was always constant and "there were instances where
ballots were deducted from the protestee (Arroyo)" and that "another modus operandi is to falsify
the revision reports by intercalation, false entries or simply switching of true results of the counting.
Congressman Joker Arroyo is the classic victim of this unlawful exercise."3
At or about the time the revision was completed and with three precincts left unaccounted for,
private respondent Syjuco moved for the withdrawal of these remaining unrevised protested
precincts on the ground that he has presumably overtaken petitioner Arroyo's lead of 13,559 votes.
With neither private respondent Syjuco nor petitioner Arroyo availing of their right to move for a
technical examination after completion of revision, as provided for under Rules 42-49 of the HRET
Rules, reception of their respective evidence followed.
Private respondent's evidence were all documentary and voluminous at that consisting of over
200,000 pages. These exhibits, however, and which private respondent as well as public respondent
HRET4 does not seriously dispute are in general, "mere photocopies and not certified or
authenticated by comparison with the original documents or identification by any witness . . . ."5
and were formally offered by merely asking that they be marked. On the other hand, petitioner's
evidence consisted of certified true copies of the Revision Reports and election returns.6 Despite the
vigorous objection raised by petitioner with respect to the admission of and the probative value of
private respondent's exhibits, public respondent HRET admitted the evidence for whatever they
may be worth.7
Thereafter, pursuant to Rule 66 of the HRET Rules,8 petitioner and private respondent filed their
respective memoranda simultaneously. In his memorandum cum addendum, private respondent
veered away from his original posture that his protest should be decided on the basis of a revision
and recounting of ballots, and instead called upon public respondent HRET to decide the case on the
basis of what private respondent himself expressly admits as a "truly innovative and NON-
TRADITIONAL process" — the PRECINCT-LEVEL DOCUMENT-BASED EVIDENCES. Private
respondent thus averred, among others, that:
2.3. Scope and Emphasis of the Instant Protest case.
2.3.1. Protestant implores the Tribunal to take special and careful NOTE of the fact that while
one cannot deny that adjudication of the REGULAR protest case generally rests on the result and
outcome derived from the revision and subsequent appreciation of the BALLOTS which are disputed
and contested by the parties in the course of the revision proceedings — in this particular instance,
the protestant has opted to resort to a truly innovative and NON-TRADITIONAL process, by
undertaking . . . our most concerted efforts in identifying and presenting such extensive numbers of .
. . what protestant has denominated as PRECINCT-LEVEL DOCUMENT-BASED EVIDENCES (sic).
2.3.2. Thus, readily discernible, not only from the comprehensive ADDENDUM of protestant,
but more so from the volumes of documentary exhibits presented, adduced and admitted, is the
relentless pursuit undertaken by protestant to locate most relevant electoral documents used not
only during the actual balloting/voting stage, but also those availed of even much earlier, as early
(as) the time of the registration of voters. Such resourcefulness had undoubtedly resulted in the
accumulation of what has now been appropriately coined by protestant as "Precinct-Level,
Document-Based Evidences."
xxx xxx xxx
2.3.5. However, significant and material as they are, the results gathered from the ordinary and
traditional BALLOT revision process, do not constitute the ONUS of protestant('s) case. From
protestant's point of view, "the ballot(s) themselves bear only incidental significance in our chosen
approach, because, in our world of cause and effect, the ballots are mere effects of the document-
based anomalies. . . . ." [ADDENDUM, D-3; Presentation, Part 2, Revision of Ballots]. For truly, the
CONCENTRATION . . . the emphasis is on the Precinct-Level Document-Based Evidence.
2.3.6. And in so concentrating, the Tribunal should realize that the protestant, even as early as
the filing of the protest soon after protestee's proclamation, was fully aware that in disputing the
sham victory of protestee, the anticipated/expected results of the regular, traditional and normal
process of REVISION of ballots, would, by itself, be unavailing, and insufficient to overturn
protestee's supposed victory.
127
2.3.7. Hence, when in the ADDENDUM, there is a continuing reference to the GRAND PATTERN
OF MASSIVE DOCUMENT-BASED FRAUDS (sic) AT PRECINCT LEVEL, such is simply in support of
the initial allegation and pronouncement contained in the original protest, where protestant has
asserted most strongly that "There was massive fraud in the above-protested precinct." . . . and that
the protest was instituted precisely "in order that the massive fraud perpetrated against the
protestant shall be corrected" . . . .
xxx xxx xxx
[iv] Protestee most definitely failed to comprehend the very CORE of protestant's electoral
protest. His was devoted to the traditional and normal BALLOT-BASED procedure, where protestee
pounds recklessly and incessantly on alleged irregularities and anomalies in the ballots during the
REVISION, completely blocking his mind to the fact that protestant's action is founded principally
and mainly on electoral anomalies which occurred long BEFORE the revision was ever conducted;
ANOMALIES in the precinct level, committed even before the elections of May 11, 1992, like in the
voters' registration process; and also ANOMALIES during the election day, at the actual balloting.
xxx xxx xxx
[vii] On the other hand, as the proponent of the electoral protest, herein protestant was well-
aware from the moment of commencement of the protest that to overcome a substantial margin of
well over 12,000 votes, the revision of the ballots alone would not suffice.
xxx xxx xxx
4.2. Besides, as discussed in detail above, protestant's protest case rests NOT on the results of
the revision, which is categorized as "incidental"; but mainly on the broader and more equitable
NON-TRADITIONAL determination of the existence of the PRECINCT-LEVEL DOCUMENT-BASED
ANOMALIES, minutely detailed in the ADDENDUM, and its supporting evidence. (emphasis supplied;
Ibid., pp. 14-16)9
By reason of private respondent's new allegations, public respondent HRET ordered him to show
cause why his protest should not be dismissed. The "show-cause" order reads in part:
It appearing from the memorandum and addendum filed by protestant Syjuco, after revision of the
ballots case in the 1,292 protested precincts as prayed for in his Amended Protest, that inter alia,
herein protestant was well-aware from the moment of the commencement of the protest that to
overcome a substantial margin of well over 12,000 votes, the revision of ballots alone, would not
suffice, and that the electoral protest case rests "NOT" on the results of the revision which he
considers as merely "incidental" to the broader and more equitable NON-TRADITIONAL
determination of the existence of the PRECINCT-LEVEL DOCUMENT-BASED ANOMALIES' (pp. 14-
15; 16), without, however, demonstrating any legal basis or implementing procedures therefor; it
appearing further that protestant Syjuco's memorandum and addendum appear to incorporate
substantial amendments which broaden the scope of his protest, change his theory of the case at
this stage of the proceedings or introduce additional causes of action in violation of Rule 28. Revised
Rules of the Tribunal, . . . ." (Res. No. 93-277)10
However, by a 6-3 vote (the six Congressmen-members as against the three Justices-members),
public respondent HRET resolved not to dismiss the protest, to continue with the examination and
evaluation of the evidence on record, and thereafter to decide the case on the merits. The Resolution
was issued on February 15, 1994. In their dissenting opinion, the three (3) Justices-members had
this to say:
. . . that protestant's radical shift in his cause of action from the original and traditional ballot
revision process to his "innovative and non-traditional process", which he now calls precinct-level
document-based anomalies, has no legal precedent; it constitutes a substantial amendment, which if
considered, will broaden the scope of the electoral protest or introduce an additional cause of action
in violation of Rule 28 of the Revised Rules of the Tribunal.
xxx xxx xxx
Since the allegation of the protest and its prayer calls for recounting and revision of the ballots in
order that the alleged massive fraud perpetrated against protestant shall be corrected, the instant
protest should be decided in accordance with the tradition process of recounting and revision (and
ultimately appreciation) of ballots as provided by the Rules of the Tribunal and not by any
innovative and non-traditional process denominated as precinct-level document-based evidence
alleged in protestant's memorandum.
Nonetheless, protestant was candid enough to admit in his memorandum "that to overcome a
substantial margin of all over 12,000 votes, the revision of ballots alone would not suffice."
However, to keep his protest alive, after the adverse result of the revision, protestant has to devise
the broader and (allegedly) more equitable non-traditional determination of the existence of
precinct-level document-based anomalies' even if the same is not authorized by law nor even
alleged in his protest.11
Petitioner moved to dismiss the protest but to no avail. No hearings were conducted thereafter.
Then on January 25, 1995, public respondent HRET, by the same vote of six Congressmen-members
against three Justices-members, rendered its now assailed Decision annulling petitioner Arroyo's
proclamation and declaring private respondent Syjuco as the duly elected congressman. The
dispositive portion of the Decision reads:
WHEREFORE, judgment is hereby rendered:
1. ANNULLING and SETTING ASIDE the proclamation of Protestee JOKER P. ARROYO.
2. DECLARING Protestant AUGUSTO L. SYJUCO, JR. as the duly elected Representative, Lone
District of Makati, National Capital Region, for having obtained, after due revision and appreciation,
a plurality of 1,565 votes, over the second placer Protestee Joker P. Arroyo, and for not being
disqualified from holding said office.
In view of the seriousness of the massive frauds, irregularities and violations of election laws found
in this case and in conformity with the constitutional mandate of the Commission on Elections "to
prosecute cases of violations of election laws, including acts or omissions constituting election
frauds, offenses and malpractices" (par. (6), Sec. 2, ART. IX-C, 1987 Constitution), the Tribunal,
Resolved to REFER this case to the Commission on Elections for appropriate actions, including but
not limited to, investigation of any and all parties concerned, or who may have participated in said
violations or frauds committed.
On any irregularities or offenses in this case, found to have been committed by any public officers
and employees, during the May, 11, 1992 electoral processes, involving misuse of public office, in
violation of the constitutional provision that "Public office is a public trust. Public officers and
employees must at all times be accountable to the people, serve them with utmost responsibility,
integrity, loyalty, and efficiency, act with patriotism and justice, and lead modes lives." (SEC. 1, ART.
XI, 1987 Constitution), the Tribunal also Resolved to REFER to the Office of the Special Prosecutor
(SEC. 2. ART. XI, 1987 Constitution) for appropriate actions, including but not limited to,
investigation of any and all public officers and employees concerned who may have participated in
said irregularities or offenses, or who may have been negligent in the performance of their duties.
For the foregoing purposes, and if requested by the Commission on Elections and/or the Office of
the Special Prosecutor, records or copies of this case shall be made available or forwarded to them
for their reference or evidence.
128

Costs are charged against Protestee Arroyo, pursuant to Rule 36 of the Tribunal.
As soon as this Decision becomes final, notice and copies thereof shall be sent to the President of the
Philippines, the House of Representatives through the Speaker, and the Commission on Audit,
through its Chairman, pursuant to Rule 73 of the Revised Rules of the House of Representatives
Electoral Tribunal.
SO ORDERED.12
Without filing a motion for reconsideration of public respondent HRET's decision, petitioner Arroyo
filed the instant petition setting forth the following issues:
A. Whether or not public respondent acted with grave abuse of discretion and without
jurisdiction when it refused to dismiss HRET Case No. 92-109 after Syjuco had belatedly changed
the theory of his case and introduced new issues and, thereafter, when it proceeded with the
protest.
B. Whether or not the HRET's Decision in Case No. 92-019 dated 25 January 1995 was
rendered in violation of petitioner's right to due process.
C. Whether or not public respondent acted capriciously, arbitrarily, and with grave abuse of
discretion when it:
(1) Rejected long standing legal doctrines and precedents on elections and annulment;
(2) Disregard the people's right to suffrage;
(3) Ignored the basic rules of evidence and breached the internal procedures of the Tribunal;
and
(4) Gravely and/or deliberately misapprehended the facts.13
Briefly stated, the crucial question involved in this case is: Did public respondent HRET commit
grave abuse of discretion in (1) proceeding to decide the election protest based on private
respondent's "precinct level document based anomalies/evidence" theory; (2) rendering judgment
on the kind of evidence before it and the manner in which the evidence was procured, and (3)
annulling election results in some contested precincts?
I. The "precinct level document based anomalies/evidence" theory
However guised or justified by private respondent, this innovative theory he introduced for the first
time in his memorandum cum addendum indeed broadened the scope of the election protest
beyond what he originally sought-the mere revision of ballots. From his initial prayer for revision
which lays primary, if not exclusive emphasis on the physical recount and appreciation of ballots
alone, private respondent's belated attempt to inject this theory at the memorandum stage calls for
presentation of evidence (consisting of thousands of documents) aside from, or other than, the
ballots themselves. By having done so, private respondent in fact intended to completely abandon
the process and results of the revision and thereafter sought to rely on his brainchild process he
fondly coined as "precinct-level document-based evidence." This is clearly substantial amendment
of the election protest expressly proscribed by Rule 28 of the HRET internal rules which reads:
After the expiration of the period for filing of the protest, counter-protest or petition for quo
warranto, substantial amendments which broaden the scope of the action or introduce an additional
cause of action shall not be allowed. . . . .
The majority members of the Tribunal in fact had already sensed the impropriety of private
respondent's belated shift of theory when it issued its "show-cause" order requiring the latter to
explain why his election protest should not be dismissed. But the majority violated with open eyes
its own rules when they resolved not to dismiss the protest — a clear indication of grave abuse of
discretion. The least that public respondent HRET could have done thereafter was to conduct
further hearing so that petitioner Arroyo may have examined, objected to and adduced evidence
controverting private respondent Syjuco's "precinct-level document-based evidence" despite the
time within which the parties are allowed to present their evidence has already lapsed.14 But
nothing in the records indicates that one was conducted. Petitioner's right to due process was
clearly violated at this particular stage of the proceedings.
Granting that private respondent's change in theory (being a substantial amendment) is merely
disallowed and not a valid ground for the outright dismissal of his election protest, nonetheless it
has been consistently held that substantial amendments to the protest maybe allowed only within
the same period for the filing of the election protest15 which, under Rule 16 of the HRET Rules, is
ten (10) days after the proclamation of the winner. Private respondent's "precinct-level document-
based anomalies/evidence" theory having been introduced only at the homestretch of the
proceedings, he is bound by the issue which he essentially raised in his election protest and that is, a
revision of the ballots will confirm his victory and the irregularities/anomalies and massive fraud
foisted upon him during the 1992 synchronized elections. For the rule in an election protest is that
the protestant or counterprotestant must stand or fall upon the issues he had raised in his original
or amended pleading filed prior to the lapse of the statutory period for the filing of protest or
counter
protest. 16 (emphasis supplied) Private respondent is therefore bound by the final results of the
revision confirming petitioner's victory over him by a plurality of 13,092 votes.17 Petitioner's
inevitable victory in the revision was even conceded to by private respondent himself when he
stated in his memorandum cum addendum that:
. . . in disputing the sham victory of protestee, the anticipated/expected results of the regular,
traditional and normal process of REVISION of ballots, would, by itself, be unavailing and
insufficient to overturn protestee's supposed victory (quoted on p. 6 of this decision).
This statement is clearly an admission against private respondent's own interest equally binding
and conclusive upon him, there being no showing that he made it through palpable mistake (Section
4, Rule 129, Rules of Court).
Thus, the final results of the revision and the admission of his eventual loss therein were sufficient
reasons to confirm at a much earlier time petitioner Arroyo's victory over private respondent
Syjuco. These are the offshoots of the theory and cause of action private respondent Syjuco
originally banked on (revision). Private respondent cannot escape its adverse effects by later on
contriving unprecedented and wholly untested processes or theories such as the "precinct-level
document-based anomalies/evidence", the applicable and well-settled principle being "a party is
bound by the theory he adopts and by the cause of action he stands on and cannot be permitted
after having lost thereon to repudiate his theory and cause of action and adopt another and seek to
re-litigate the matter anew either in the same forum or on appeal".18 This is in essence putting
private respondent in estoppel to question the revision. In this connection, what the Court said in
"Lucero vs. De Guzman" (45 Phil. 852, 871-872), becomes meaningfully relevant:
When the boxes are opened and the truth concerning an election made accessible, considerations of
public policy require that the proof thus supplied should be accepted. The public at large has the
deepest concern in the integrity of elections, and this public interest must be regarded as well as the
technical rights of the litigants themselves. It would be most scandalous for us to sanction a practice
under which a party to an election contest could be permitted to force an examination of the ballots
and when the result is found unfavorable to himself require the court to cover up the wrong, with
consequences injurious to the cause of justice. When boxes are opened at the instance of the parties
to the contest, they are estopped from questioning the true result of the revision whatever that
129
result may be. The plain duty of the court, under the circumstances presented in this case, was to
proceed to a revision of the count, with the report of the commissioners before him, and assisted by
the facts appearing in those documents.
II. The kind of evidence used and how they were procured
a) The majority members of public respondent HRET undisputedly admitted and
appreciated as evidence mere photocopies of election-related documents when there is not even the
slightest showing that the original or even certified true copies thereof cannot be reasonably
produced before the Tribunal. These photocopies violate the best evidence rule19 which is simply
meant that no evidence shall be received which is merely substitutionary in its nature so long as the
original evidence can be had.20 They should have been rejected altogether unworthy of any
probative value at all, being incompetent pieces of evidence.
b) Certain vital election documents (such as certified xerox copy of the number of registered
voters per precinct and photocopies of statements of votes) were procured at the sole instance of
the ponente of the majority decision21 which, as the Tribunal readily admitted, were never offered
in evidence by either of the parties.22 Aside from that, acting upon the self-serving allegation of
private respondent Syjuco supported by mere photocopied election documents that around 12,075
signatures of voters scattered in 777 precincts were forged or falsified, the majority congressmen-
members of the Tribunal by themselves without the participation of any of the three (3) remaining
Justices-members, declared that 10,484 of the contested signature are fake.23 This course of action
grossly violates not only Rule 68 of the Tribunal's own rules which requires that all questions shall
be submitted to the Tribunal as a body, but also Rule 5 thereof which further requires the presence
of at least one (1) Justice-member to constitute a valid quorum. In order, therefore, that any and all
matters presented before it can be properly addressed and considered, the Tribunal is mandated to
act as a collegial body. And without collective effort as enjoined by Rule 68 but qualified by Rule 5 in
this particular and most crucial stage of the proceedings, any resulting action purporting to be the
official act the Tribunal should be, as it is hereby, struck down as highly irregular. The Court in "Free
Employment and Workers Association (FEWA) vs. CIR" (14 SCRA 781, 785) held that:
. . . the Commissioners cannot act upon their own information, as could jurors in primitive days. All
parties must be fully apprised of the evidence submitted or to be considered, and must be given
opportunity to cross-examine witnesses, to inspect documents, and to offer evidence in explanation
or rebuttal. In no other way can a party maintain its rights or make its defense. In no other way can
it test the sufficiency of the facts to support the finding; for otherwise, even though it appeared that
the order was without evidence, the manifest deficiency could always be explained on the theory
that the Commission had before it extraneous, unknown, but presumptively sufficient information
to support the finding. (United States v. Baltimore & O.S.W.R. Co., 226 U.S. 14, ante, 104, 33 Sup. Ct.
Rep. 5)
III. Nullification of election results
The power to annul an election should be exercised with the greatest care as it involves the free and
fair expression of the popular will. It is only in extreme cases of fraud and under circumstances
which demonstrate to the fullest degree a fundamental and wanton disregard of the law that
elections are annulled, and then only when it becomes impossible to take any other step.24 Thus, as
a guide for the exercise of this power, no less than public respondent Electoral Tribunal itself has
laid down two mandatory requisites for the annulment of election returns based on fraud,
irregularities or terrorism, namely (1) that more than fifty percent (50%) of the total number of
votes in the precinct or precincts were involved, and (2) that the votes must be shown to have been
affected or vitiated by such fraud, irregularities or terrorism.25 Public respondent HRET proceeded
to annul 50,00026 votes without a dint of compliance with these requisites as it annulled the results
on the basis of lost or destroyed ballots despite the presence and availability of election return
and other competent secondary evidence whose authenticity were never questioned,27 and on the
basis of alleged forged signatures which were never competently proved and substantiated by
private respondent.28 Further, the tribunal nullified the 10% margin in several contested precincts
with alleged substitute voting which the dissenting opinion correctly observed as "a far cry from the
existing 50% rule".29 What is even worse is that the nullification of these votes was based on
inadmissible documents some of them not offered in evidence by private respondent. The Court
cannot countenance such blatant nullification of votes as it fails to comply with the established
standard on annulment. Elections should never be held void unless they are clearly illegal; it is the
duty of the court to sustain an election authorized by law if it has been so conducted as to give a free
and fair expression of the popular will, and the actual result thereof is clearly ascertained.30
Additionally, public respondent HRET disregarded election results on several precincts on the basis
of omissions committed either through mere oversight or plain negligence on the part of election
officials or employees. The bulk of these omissions consisted of lack or absence of the signature of
the chairman of the Board of Election Inspectors on the voter's affidavits or lists of voters/voting
records, absence or excess of detachable coupons, number of detachable coupons not tallying with
the number of ballots, and missing voter's lists. We find that these omissions, mainly administrative
in nature, cannot be used as a ground to nullify election results in the absence of a clear showing of
fraud. Voters duly registered and who have exercised their right of suffrage should not be penalized
by disregarding and junking their votes due to omissions not of their own making. The settled rule is
that in the absence of fraud, mere irregularities or omissions committed by election officials which
do not subvert the expression of popular will, as in this case, cannot countenance the nullification of
election results.31 Corollarily, the misconduct of election officers or irregularities on their part will
not justify rejecting the whole vote of a precinct (as was done in this case) where it does not appear
that the result was affected thereby, even though the circumstances may be such as to subject the
officers to punishment.32 These omissions are not decisive since actual voting and election by
registered voters had taken place in the questioned precincts.33 The Court, therefore, cannot stamp
with approval the conduct exhibited by public respondent HRET as it was attended by arbitrariness.
From the above findings, it now becomes apparent why private respondent's argument that the
petition should be dismissed for failure to first file a motion for reconsideration of public
respondent HRET's majority decision, is untenable. Indeed, the general rule is that a tribunal
rendering a decision must be given an opportunity to rectify its error through a motion for
reconsideration. However, the partiality of the majority of the members of the Electoral Tribunal
having been shown through their concerted action to disregard tribunal rules and the basic rules on
evidence, recourse for a reconsideration of its decision becomes nugatory and an immediate
recourse to this Court can be had based on the fundamental principle of due process. And it is well-
settled that a prior motion for reconsideration can be dispensed with if, as in this case, petitioner's
fundamental right to due process was violated.34
All told, the procedural flaws which marred the proceedings in the public respondent HRET from
the time private respondent's "precinct-level document based anomalies/evidence" theory was
embraced by the majority members up to the rendition of judgment suffice in themselves to render
the public respondent HRET's majority decision declaring private respondent Syjuco as the duly
elected congressman of the then lone district of Makati a complete nullity. The persistent and
deliberate violation of the Tribunal's own governing rules and of even the most basic rules of
evidence cannot be justified by simply invoking that procedural rules should be liberally construed.
For even if Rule 2 of the Tribunal's internal rules states that:
In case of reasonable doubt, these rules shall be liberally construed in order to achieve a just,
expeditions and inexpensive determination and disposition of every contest brought before the
Tribunal.
Rule 80 of the very same internal rules expressly makes the Rules of Court, Supreme Court
decisions, and Electoral Tribunal decisions of suppletory application. In fact, public respondent
HRET quite consistently in the past ultimately relied on the rules of evidence established by the
Rules of Court in disposing election cases brought before it. To name a pertinent few: "Cuneta vs.
Claudio" (HRET Adm. Case No. 92-010, Feb. 24, 1994); "Hernandez vs. Sanchez" (HRET Case No. 92-
130
012, July 27, 1993); "Loyola vs. Dragon" (HRET Case No. 92-026, Jan. 31, 1994); and "Claver vs.
Bulut" (HRET Case No. 92-015, Nov. 23, 1993). More specifically, in the "Cuneta" case, the HRET
struck down certain foreign documents presented by petitioner Cuneta as being inadmissible under
the best evidence rule (Section 4, Rule 130, Rules of Court) and for failure to meet the requirements
for the admissibility in evidence of foreign documents under Sections 24 and 25, Rule 132 of the
Rules of Court as applied in the "Hernandez" case and in "De Leon vs. Sanchez" (HRET Case No. 92-
013). In the "Loyola" case, certain pictures presented by protestant Loyola depicting the unlawful
display of protestee Dragon's streamer outside the authorized areas were not given any probative
value by the HRET for their lack of identification and authentication by any witness other than
protestant Loyola who presented the pictures by himself. And in the "Claver" case, the HRET said
that it can only consider documents formally offered in evidence, a ruling made apparently pursuant
to Rule 60 of the HRET internal rules which provides that:
Evidence not formally presented shall be deemed waived and shall not be considered by the
Tribunal in deciding the case.
and as likewise provided in Section 35, Rule 132 of the Rules of Court which reads:
The court shall consider no evidence which has not been formally offered. The purpose for which
the evidence is offered must be specified.
But why the change of heart and open defiance in this case when the very same objections raised by
public respondent HRET in these cases squarely apply to the entirety of private respondent's
massive documentary evidence?
If the Court, in striking down the majority decision of public respondent HRET, pays unwavering
reverence to the rules of evidence as provided by the Rules of Court and jurisprudence, it is because
they have been tested through years of experience as the most effective means of ferreting out the
truth in any judicial controversy. And the Court will not allow even the slightest diminution of, much
less a complete and brazen departure from these time-honored rules especially when the will of the
electorate as expressed through the ballot, is at stake. Rules and uniformity of procedure are as
essential to procure truth and exactness in elections as in anything else.35 Thus, with the patent
nullity of the entire proceedings before the public respondent HRET and its majority decision in the
election protest filed by private respondent, petitioner's proclamation as the winning congressman
of the then lone district of Makati is deemed not to have been challenged at all.
And finally, in a Resolution dated March 14, 1995 the Court required private respondent to explain
why he should not be held for indirect contempt since his statements in his Addendum which he
prepared without aid of counsel appear to seriously undermine the integrity of some members of
the Court, to wit:
xxx xxx xxx
Despite Mr. Arroyo's unconscionable barrage on the six (6) congressional membership in the HRET,
records will show that I have not questioned the integrity of any of the three (3) Justices, despite the
fact that on various occasions, I have been convinced, in my heart, that at least two (2) of them were
working for protestee Arroyo in HRET deliberations and the resultant delays therein. (p. 2)
xxx xxx xxx
There may also be linkages between protestee Arroyo and Justice Flerida Ruth Romero, about
whom unkind rumors are rife that Her Honor is "gumagapang" in the Supreme Court, for Arroyo. (p.
2)
xxx xxx xxx
. . . we submit that like Caesar's wife this case at bar should be handled by magistrates who have not
"shared a bed" with protestee Arroyo, at one time or another. (p. 3)
xxx xxx xxx
If Arroyo had been a stranger to Justice Bidin, could Arroyo have moved Justice Bidin, through a
mere phone call, to violate HRET Rule 38? (p. 10).
The Court notes that even a Justice who is not a member of the HRET has been made the object of
calumny in extremely vulgar language by imputing linkages between her and petitioner, although a
thinly veiled attempt was made by private respondent to absolve himself by ascribing such
imputation to "unkind rumors".
In compliance thereto private respondent filed an explanation dated March 25, 1995. In his
explanation, private respondent averred that he merely expressed a simple citizen's grievance in
accordance to his observations and based on his firm convictions and beliefs and that his statements
were not aimed at seriously undermining the integrity of some Members of the Court. Private
respondent, in closing, offered his apology. We find the explanation unsatisfactory. Implicit in his
statements is the notion that aforesaid Justices are insensible and partial in the adjudication of the
case which could make their actuation suspect. The statements make it plain that said Justices were
not free from appearance of impropriety as it emphasized that said Justices must be above suspicion
at all times like Ceasar's wife. Indeed, the above statements manifest the idea that the dispensation
of justice can be compromised through unsubstantiated linkages. These statements not only
undermine the integrity of some members of this Court but also degrade the administration of
justice.
To be proscribed then is the use of unnecessary language which jeopardizes high esteem in courts,
creates or promotes distrust in judicial administration, or which could have the effect of "harboring
and encouraging discontent which, in many cases, is the source of disorder, thus undermining the
foundation upon which those who are aggrieved turn for protection and relief.36
Want of intention to undermine the integrity of the Court is no excuse for the language employed by
private respondent for it is a well-known and established rule that derogatory words are to be taken
in the ordinary meaning attached to them by impartial observers (Paragas v. Cruz, 14 SCRA 809,
812; In re Franco, 67 Phil. 313, 316; Rheem of the Philippines v. Ferrer, supra at p. 446). Finding
private respondent's statements contemptous and uncalled for he is hereby declared guilty of
indirect contempt.
WHEREFORE, in view of the foregoing, the petition is hereby GRANTED, and public respondent
HRET's majority decision dated January 25, 1995 is SET ASIDE. Private respondent Augusto L.
Syjuco, Jr., having been found guilty of indirect contempt, is hereby fined the amount of one
thousand pesos (P1,000.00) to be paid within five (5) days from receipt of this decision.
SO ORDERED.
Narvasa, C.J., Romero, Quiason and Kapunan, JJ., concur.
Feliciano, Regalado and Davide, Jr., JJ., took no part.
Bellosillo, J., is on leave.
131

[G.R. No. 126394. April 24, 1998]
AQUILINO Q. PIMENTEL, JR., petitioner, vs. COMMISSION ON ELECTIONS, DOMINADOR MICO,
DIONISIO CAOILI, OFELIA PASTOR, FLOR MERCADO, and MARVELYN RAMIRO, respondent.
DECISION
KAPUNAN, J.:
The Commission on Elections or COMELEC, acting as a National Canvassing Board for the May 8,
1995 elections, while canvassing the returns in the senatorial race, found a discrepancy between the
Provincial Certificate of Canvas for Ilocos Norte and its supporting Statement of Votes per precinct
or municipality for the province, such that the votes for candidates Juan Ponce Enrile, Franklin M.
Drilon, Ramon V. Mitra, as appearing in the Provincial Certificate of Canvass[1] were more than the
votes tallied as appearing in the Statement of Votes,[2] thus:
Candidate Votes appearing in the Votes appearing in the Increase
Statement of Votes Provincial Certificate
of Canvas
Enrile 65,343 95,343 30,000
Drilon 48,726 78,726 30,000
Mitra 42,959 62,959 20,000
On the basis of such discrepancy, the COMELEC motu proprio ordered an investigation and referred
the matter to its Law Department.[3]
Petitioner Aquilino Pimentel, Jr., himself a senatorial candidate in the May 8, 1995 elections, filed his
own complaint with the COMELECs Law Department, docketed as E.O. Case No.95-294 against Atty.
Dominador Mico,[4] Atty. Dionisio Caoili and Dr. Ofelia T. Pastor, Chairman, Vice-Chairman and
Member-Secretary, respectively, of the Provincial Board of Canvassers of Ilocos Norte, Marvelyn
Ramiro, Election Assistant for the COMELEC for San Nicolas, Ilocos Norte and member of the
support staff of the Provincial Board of Canvassers, and Flor Mercado, Elementary School Principal
of the Department of Education, Culture and Sports, Ilocos Norte and also a member of the support
staff of the Provincial Board of Canvassers.[5]
Petitioner charged respondents with violation of Section 27 of Republic Act No. 6646, otherwise
known as the Electoral Reforms Law of 1987, which provides:
x x x the following shall be guilty of an election offense:
xxx
(b) Any member of the board of election inspectors or board of canvassers who tampers, increases
or decreases the votes received by a candidate in any election or any member of the board who
refuses, after proper verification and hearing, to credit the correct votes or deduct such tampered
votes.
Specifically, petitioner alleged in his affidavit-complaint that:
2. A comparison between the Provincial Certificate of Canvass and the Supporting Statement of
Votes per Municipality for the Province of Ilocos Norte show an increase in the vote totals for
senatorial candidate Enrile from 65, 343 as indicated in the Statement of Votes by Municipality to
95,343 in words and figures in the Provincial Certificate of Canvass; senatorial candidate Drilon,
from 48,726 to 78,726, and senatorial candidate Mitra, from 42,959 to 62,959.
3. The said respondents acting together and conspiring with one another were responsible for the
falsification of the tallies for senatorial candidates Enrile, Drilon and Mitra above mentioned in that
as members of the Provincial Board of Canvassers, the respondents Mico, Caoili and Pastor certified
to the correctness of the said tallies despite the fact those tallies had been padded, added to and
falsified and the respondents Ramiro and Mercado as members of the staff of the respondent
Provincial Board of Canvassers confabulating with each other caused the false tallies to be recorded
in favor of Enrile, Drilon and Mitra in the said Provincial Certificates of Canvass of Ilocos Norte.
4. By these illegal acts, the respondents willfully, feloniously and intentionally committed an
election offense. The discrepancies were so glaring that under no circumstance can we say that
these were mere honest error.[6]
The respondents filed their respective counter-affidavits.[7] Subsequently, the parties filed their
respective Memoranda.[8]
In Minute Resolution No. 96-1497 dated May 14, 1996, the COMELEC en banc resolved to file
criminal as well as administrative charges against respondent for violation of Section 27 (b) of
Republic Act No. 6646, thus:
In the matter of prosecuting Comelec field officials and deputies involved in certain irregularities as
discovered by the Commission of Elections sitting as the National Board of Canvassers for the 1995
Senatorial Canvass. Considering the study dated 9 May 1996 of the Law Department in the case,
Aquilino Pimentel, Jr. vs. Provincial Board of Canvassers, et al. Ilocos Norte (E.O. Case No. 95-294),
for alleged violation of Sec. 27(b) of Republic Act No. 6646 (any member of the board of canvassers
who tampers, increases or decreases the vote received by a candidate in any election), that
respondents, Dominador Micu, Chairman, Dionisio Caoili, Vice Chairman and Ofelia Pastor, Member,
PBC, Ilocos Norte, did not dispute the fact that there was really an irregular increase of votes for
some senatorial candidates in the Certificate of Canvass namely: Enrile, from 65,343 to 95,343;
Drilon, from 48,726 to 78,726 and Mitra, from 42,959 to 62,959; considering, further, that
complainant Mr. Pimentel, Jr. filed an amended complaint on December 13, 1995 charging Mrs.
Marvelyn Ramiro, Election Assistant of San Nicolas, Ilocos Norte who dictated and prepared the
entries, respectively, from the statement of votes to the certificate of canvass,
RESOLVED:
1) To file criminal charges against respondents Atty. Dominador, Micu, Assistant Regional Election
Director, Region I, Atty. Dionisio Caoili, Provincial Prosecutor and Dr. Ofelia Pastor, Division
Superintendent of School, Chairman, Vice Chairman and member-secretary respectively of the PBC
of Ilocos Norte, for alleged violation of Section 27(b) of Rep. Act. 6646 during the May 8, 1995
elections;
2) To file criminal charges against the other respondents Mrs. Marvelyn Ramiro, Election Assistant
of San Nicolas, Ilocos Norte and Flor Mercado, Elementary School Principal of DECS, for the same
offense (violation of Section 27(b) of Rep. Act 6646 during the May 8, 1995 elections); and
3) To initiate administrative proceedings against the foregoing respondents and thereafter, to
suspend them for a period of ninety (90) days without pay; if no administrative case is filed against
the three other respondents, namely Atty. Dionisio Caoili, Dr. Ofelia Pastor and Ms. Flor Mercado, to
recommend to the agencies concerned to file administrative cases against them, with suspension
and without pay for the period of suspension.[9]
132
Respondents filed a motion for reconsideration,[10] to which petitioner filed his comment.[11]
On August 13, 1996, the COMELEC en banc issued the assailed Minute Resolution No. 96-2333
where it was resolved to dismiss the complaint for lack of sufficient evidence to establish probable
cause and, in the administrative case, to reprimand respondents with stern warning that a
repetition of the same act in the future shall be dealt with accordingly.[12]
It is from the COMELECs dismissal of his complaint that petitioner files the instant petition for
certiorari asserting that :
[t]he COMELEC committed grave abuse of discretion when they flip-flopped from their earlier
issued Minute Resolution No. 96-1497 in E.O. Case No. 95-294 where they found the existence of
probable cause and ordered the filing of a criminal information against the private respondents and
then in the subject Minute Resolution No. 96-2333, without giving any substantial justification for
the same, ordered the dismissal of the charges against all of the private respondents for
insufficiency of evidence, despite the absence of any newly discovered evidence or of any new legal
arguments raised in private respondents motion for reconsideration - this clearly shows an
arbitrary and capricious exercise of discretion by the COMELEC amounting to lack of
jurisdiction.[13]
The Solicitor General filed a Manifestation and Motion (In Lieu of Comment) where he prayed for
the nullification and setting aside of COMELECs Minute Resolution No. 96-2333 dated August 13,
1996.
We first deal with the assertion of the COMELEC[14] that the Solicitor Generals Manifestation be
stricken from the record as it is a plain and actual comment indubitably supporting the petition of
petitioner Pimentel who is a private person, thus beyond the powers and functions of the Office of
the Solicitor General.[15]
True, the Solicitor General is mandated to represent the Government, its agencies and
instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter
requiring the services of a lawyer.[16] However, the Solicitor General may, as it has in instances[17]
take a position adverse and contrary to that of the Government on the reasoning that it is incumbent
upon him to present to the court what he considers would legally uphold the best interest of the
government although it may run counter to a clients position.[18]
In the instant case, it is the position of the Solicitor General that the COMELECs assailed resolution
has no basis and does not conform to the evidence which establish probable cause to indict private
respondents for an election offense.[19] We take such position into serious consideration and do
not, as the COMELEC does, dismiss the same as entirely misplaced.[20] As we commented on the
role of the Solicitor General in cases pending before this Court:
This Court does not expect the Solicitor General to waver in the performance of his duty. As a matter
of fact, the Court appreciates the participation of the Solicitor General in many proceedings and his
continued fealty to his assigned task. He should not therefore desist from appearing before this
Court even in those cases he finds his opinion inconsistent with the Government or any of its agents
he is expected to represent. The Court must be advised of his position just as well.[21]
The COMELEC also argues that petitioners remedy is inappropriate. This argument is easily
disposed of. When filed, the petition was denominated as a petition for review on certiorari.
Petitioner, however, filed a Motion to Treat Petition as a Special Civil Action Under Rule 65 of the
Rules of Court where he pointed out that [t]he petition was filed within the 30-day period to file a
petition for certiorari from the Resolution of the COMELEC[22] and that [t]he arguments raised
therein make out the same grounds for the issuance of the extraordinary writ of certiorari.[23] We
noted the Motion in En Banc Resolution dated November 12, 1996.[24]
We now come to the heart of the matter at hand. As summarized by the Solicitor General, the issue
here in WHETHER OR NOT PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION IN
REVERSING ITS EARLIER RESOLUTION BY DISMISSING THE COMPLAINT AGAINST PRIVATE
RESPONDENTS FOR VIOLATION OF SECTION 27(B) OF RA NO. 6646, ON THE GROUND OF LACK OF
SUFFICIENT EVIDENCE TO ESTABLISH PROBABLE CAUSE.[25]
We are here asked to determine whether the COMELEC, in including that probable cause did not
exist to warrant prosecution of the respondents, committed grave abuse of discretion. We
emphasize that we do so take cognizance of the case exceptionally under Rule 65 of the Revised
Rules of Court pursuant to Section I, Article VIII of the 1987 Constitution, as we recognize that the
COMELEC must be accorded full discretion whether or not to initiate a criminal case, pursuant to its
power to investigate and prosecute election offenses.[26] We note that when investigating and
prosecuting election offenses, the COMELEC is acting analogous to the Ombudsman with its
investigatory and prosecutory powers. We have no occasion looked into the Ombudsmans action
upon the allegation of grave abuse of discretion.[27]
The COMELEC in its Comment maintained that no probable cause exists there being no evidence
showing that petitioner prior to his filing of the complaint against the board members x x x called
the attention of the latter to what he claimed were incorrect or tampered votes and that
respondents were given the chance to verify and be heard on the claim but refused to rectify when
asked, arguing that [t]he clear meaning of [Section 27(b), R.A. No. 6646] is that the erring board
member must first be given the chance to credit the correct votes or deduct the tampered votes and
the refusal to do so gives rise to his criminal responsibility.[28]
We find the COMELECs view askant. We examine the provision under which respondents are
charged. Section 27(b) of R.A. No. 6646, reads:
x x x the following shall be guilty of an election offense:
xxx
(b) Any member of the board of election inspectors or board of canvassers who tampers, increases
or decreases the votes received by a candidate in any election or any member of the board who
refuses, after proper verification and hearing, to credit the correct votes or deduct such tampered
votes.
A rule in statutory construction is that the word or is disjunctive term signifying dissociation and
independence of one thing from other things enumerated unless the context requires a different
interpretation.[29] In criminal and penal statues, like Section 27(b) of R.A. 6646, the word and
cannot be read or, and conversely, as the rule of strict construction apply,[30] except when the spirit
and reason of the law require it.[31]
From a reading of Section 27(b) of R.A. 6646 in its entire context, we cannot but conclude that giving
a non-disjunctive meaning to the word or is not warranted.[32]
Thus, under the provision, two acts, not one, are penalized: first, the tampering, increasing or
decreasing of votes received by a candidate in any election; and second, the refusal, after proper
verification and hearing, to credit the correct votes or deduct such tampered votes. The second part
of the provision cannot be conjoined with the first part and regarded as a mere element of one
crime, as is the interpretation of the COMELEC. Such cannot be the intent of the framers of the law,
and it is with grave abuse of discretion that the COMELEC gave Section 27(b) of R.A. No. 6646 of
interpretation it did.
Petitioner in paragraph 5 of his complaint-affidavit[33] categorically charged respondents with
having tamper[ed], increase[ed] the votes received by a candidate in any election. The fact that the
133
votes of candidates Enrile, Drilon and Mitra as appearing in the Certificate of Canvass were
considerably more than that appearing in the Statement of Votes is not denied by respondents.
Instead, they put forward the defenses of honest mistake, simple error, good faith, and the mere
performance of ministerial duties.
In his counter-affidavit,[34] respondent Dominador Mico alleged that:
x x x there was no malice or deliberate intent to commit a crime, but that the discrepancy or error
was the result of an honest mistake or oversight due to failure on our part to cross check the entries
there was no malice or deliberate intent to commit a crime, but that from the Statement of Votes to
the Certificate of Canvass thereby relying completely on our confidence and trust reposed on the
support staff who did the typing of the entries from the Statement of Votes to the Certificate of
Canvass who proved only human after all.
In a subsequent affidavit[35] denominated as Discovery of the Discrepancy, respondent Mico
expounded on when and how he discovered the discrepancy in the Statement of Votes and the
Certificate of Canvass thus:
As per instruction, the three (3) dominant political parties were to provide each of the other parties
a xerox copy of the COC. It was only after such xerox copies were made but before the same were
put in envelopes that I noted the unusually high number of votes credited to senatorial candidates
Juan Ponce Enrile and Ramon Mitra at the same time discovering that said votes did not tally with
the corresponding entries in the statement of votes. Upon nothing the discrepancy, I remarked
aloud that our attention will be called thereto and that we should expect trouble in connection
therewith. I cannot however, remember whether when I made such statement the two other
members of the Board were still inside the hall and were within hearing distance.
Since some of the other copies of the COC were already distributed and the rest already sealed in the
envelopes, I considered it improper or irregular to reconvene the Board to make the correction,
neither did I reflect the discrepancy in the minutes because the Board has already become functus
de oficio, and further because the the certificate of canvass had to be submitted immediately, the 72
hours prescribed within which to finish the canvass having long lapsed.
Respondent Dionisio A. Caoili alleged in his Counter-affidavit:[36]
That the shown disparities in the results of the senatorial elections in Ilocos Norte, as reflected in
the SOV and COC, were not deliberate but the outcome and congruence of mechanical as well as
honest human error;
In her Counter-Affidavit,[37] respondent Ofelia T. Pastor alleged that:
x x x the discrepancies were purely human error and honest mistake yet done with due respect in
good faith x x x.
Respondent Marvelyn R. Ramiro alleged in her Counter-Affidavit:[38]
Respondent Flor Mercado alleged in her Counter-Affidavit[39] that:
My participation in the preparation of the COC of Ilocos Norte was purely ministerial since I was
merely directed by Atty. Dominador Mico, Chairman, PBC, Ilocos Norte, to record/type the entries in
the COC;
We agree with the Solicitor General that the merit of respondents defenses are best ventilated in the
trial proper than at the preliminary investigation.[40] For a preliminary investigation is essentially
inquisitorial and is only the means to discover who may be charged with a crime, its function being
merely to determine probable cause.[41] We emphasize that:
[a] finding of probable cause needs only to rest on evidence showing that more likely than not a
crime has been committed and was by the suspects. Probable cause need not be based on clear and
convincing evidence of guilt, neither on evidence establishing absolute certainty of guilt. As well put
in Brinegar v. United States, while probable cause demands more than bare suspicion, it requires
less than evidence which would justify x x x conviction. A finding of probable cause merely binds
over the suspect to stand trial. It is not a pronouncement of guilt.
To take the view, as that adopted by the COMELEC when it executed an about-face, that a member of
the board of election inspectors or board of canvassers cannot be charged with the offense under
Section 27(b) of R.A. 6646 unless his attention is first called to the tampering, increasing or
decreasing of the votes of a candidate and unless he is first given the opportunity to rectify, correct
or undo his illegal act, is to tolerate, if not abet, a massive tampering of votes by allowing the
wrongdoer a built-in and sure-fire defense for his exoneration. In the face of accusations of dagdag
bawas (tampering) of votes flying thick and fast in our electoral landscape, the COMELECs stand is
starkly illogical and retrogressive and flies in the face of its mandated duty to protect the sanctity of
the ballot.
Strangely, what is extant from the records is the admission of respondent Mico that early on he
already noted the discrepancy in the votes for certain senators which did not tally with the
corresponding entries and the statement of votes to which he promptly called the attention of the
other members of the Provincial Board of Canvassers. Yet, absolutely nothing had been done by the
members of the board to correct the glaring disparities in the results of the Senatorial votes in Ilocos
Norte. This means that, even if we assume for the sake of argument, that Section 27(b) of R.A. 6646
penalizes only one act, still, the COMELECs dismissal of the case against the respondents is totally
erroneous amounting to grave abuse of discretion.
The other issues raised by the COMELEC - whether the offenses punished under Section 27(b) of
R.A. No. 6646, a special law, are mala prohibita or mala in se[42] and whether damage is an element
of the offenses.[43] are likewise matters which are properly raised in the trial court and threshed
out in a judicial proceeding, being necessarily interconnected with the defense raised by
respondents.
In sum, we find that the COMELEC acted with grave abuse of discretion in dismissing the complaint
on the ground lack of sufficient evidence to establish probable cause, curiously after it had
previously found probable cause on the basis of the same evidence. Moreover, significantly, it is on
record that upon discovering the discrepancies while canvassing the returns in the senatorial race
and in obvious and manifest recognition of the gravity of the occurrence, the COMELEC motu propio
initiated an investigation. Under the COMELEC Rules of Procedure, a complaint initiated motu
proprio by the Commission is presumed to be based on sufficient probable cause for purposes of
issuing subpoenas to the respondents.[44]
The grant to the COMELEC, as embodied in the 1987 Constitution, of the power to investigate and
prosecute election offenses as an adjunct to the enforcement and administration of all election laws,
is intended to enable the Commission to effectively insure to the people the free, orderly and honest
conduct of elections, failure of which would result in the frustration of the true will of the people
and make a mere idle ceremony of the sacred right and duty of every qualified citizen to vote.[45]
The people expect from the COMELEC nothing less than perfect and undiminished fealty to this
objective.
The finding of the existence or non-existence of probable cause in the prosecution of criminal cases
brought before it, rests in the discretion of the COMELEC in the exercise of its Constitutional
authority to investigate and, where appropriate, prosecute cases of violation of election laws,
including acts or omissions constituting election frauds, offenses and malpractices.[46] The Court
would normally not interfere with such finding of the COMELEC. However, in extreme situations, as
134
in the case at bar, this Court will not hesitate to correct acts committed by said body in grave abuse
of discretion.

WHEREFORE, in view of the foregoing, the assailed Minute Resolution No. 96-2333 of the
Commission on Elections dated August 3, 1996 is SET ASIDE and its Minute Resolution No. 96-1497
dated May 14, 1996 issued in E.O. No. 95-294 is REINSTATED.

SO ORDERED.

135
[G.R. No. 125586. June 29, 2000] which the proclamation was based. In order to prove his charge, complainant submitted in evidence
the Certificate of Canvass supported by Statement of Votes per precinct of Santiago City,
DR. TERESITA G. DOMALANTA and DR. AGRIPINA B. FRANCISCO, petitioners, vs. THE Municipalities of Angadanan, Cauayan, Cordon, Delfin Albano, Echague, San Mariano, San Pablo,
COMMISSION ON ELECTIONS, AQUILINO Q. PIMENTEL, JR. and THE OFFICE OF THE STATE Ilagan and San Mateo. A comparison of the votes indicated in the Statement of Votes by
PROSECUTOR, DEPARTMENT OF JUSTICE, MANILA, respondents. city/municipality and that of the municipal/city Certificate of Canvass was submitted by the
complainant which is hereunder reproduced:
DECISION
Municipality
YNARES-SANTIAGO, J.:
Votes as indicated in the Municipality/City Certificate of Canvass
Challenged in this petition for certiorari and prohibition is COMELEC En Banc Resolution No. 96-
1616 dated May 28, 1996[1] which Votes as indicated in the Statement of Votes by Municipality/City prepared by the Provincial Board
of Canvassers of Isabela
RESOLVED:
Discrepancy
1. to file an Information against PES Vitaliano Fabros, Provincial Prosecutor Pacifico Paas, and
Division Schools Superintendent Olympia Marquez, Chairman, Vice-Chairman, and Member- Santiago City
Secretary, respectively of the provincial Board of Canvassers, Isabela together with its staff
members, namely : Dr. Teresita Domalanta, Agripina Francisco, Dante Limon, Edwardo Tamang and
George Noriega, before the Regional Trial Court of Isabela for violation of Section 27 (b) of Republic
Act No. 6646, the prosecution of which shall be handled by the Chief State Prosecutor Zenon de Guia,
with the duty to submit periodic report[s] thereon after every hearing of the case; and

2. to file an administrative complaint against said respondents for grave misconduct, gross
dishonesty, and conduct unbecoming public officials to the prejudice of the best interest of the Enrile
public service;
15,454
3. to preventively suspend the respondents for a period of ninety (90) days reckoned from receipt of
this resolution. 16,454

From the record, it appears that on August 4, 1995, then senatorial candidate Aquilino Pimentel, Jr. +1,000
filed a complaint-affidavit[2] charging Provincial Election Supervisor (PES) Vitaliano Fabros,
Provincial Prosecutor Pacifico Paas and Division Superintendent of Schools Dr. Olympia Marquez, Angadanan
Chairman, Vice-Chairman and Member-Secretary, respectively, of the Provincial Board of
Canvassers of Isabela with alleged violation of Section 27 (b) of Republic Act No. 6646, otherwise
known as the Guingona Electoral Reform Law of 1987.

The case, docketed as E.O. Case No. 95-408 entitled "Aquilino Pimentel, Jr. v. PBC of Isabela" for
alleged violation of the Omnibus Election Code was thereafter referred to the Law Department of
the Commission of Elections (COMELEC) for evaluation and report. The COMELECs Law Department
summarized the facts of the controversy in its evaluation report dated May 20, 1996,[3] thus: Enrile

The instant case stemmed from the alleged irregularity committed by the Provincial Board of 5,996
Canvassers of Isabela in crediting unauthorized additional votes, thus: (a) Twenty seven thousand
seven hundred fifty five (27,755) to Juan Ponce Enrile, (b) Seven thousand (7,000) to Ramon Mitra, 7,996
and (c) Ten thousand (10,000) to Gregorio Honasan.
+2,000
After the submission of the counter-affidavits of the respondents, Pimentel filed on September 1,
1995 an amended complaint impleading the members of the staff of the Board namely: Dr. Teresita Mitra
Domalanta, Agripina Francisco, Dante Limon, Eduardo Tamang and George Noriega, as additional
respondents. 3,888

Aquilino Pimentel alleged that the unauthorized additional number of votes were included in the 4,888
total votes for senatorial candidates Enrile, Mitra and Honasan in the Provincial Certificate of
Canvass duly signed and thumbmarked by the members of the PBC of Isabela and which same was +1,000
submitted to the Comelec as National Board of Canvassers which was included in the canvass on
136
Cauayan Echague

Enrile Enrile

13,710 10,552

19,710 15,552

+6,000 +5,000

Honasan San Mariano

11,205

21,205

+10,000

Cordon Enrile

5,683

8,253

+2,570

Enrile San Pablo

6,794

9,794

3,000

Delfin Albano Enrile

2,418

3,438

+1,020

Enrile Ilagan

3,972

4,972

+1,000

137
Mitra
14,457
20,457
+6,000
San Mateo
Enrile
9,424
15,589
+6,165
In their defense, Provincial Election Supervisor Vitaliano Fabros, Provincial Prosecutor Pacifico Paas
and Division Superintendent of Schools Dr. Olympia Marquez, Chairman, Vice-Chairman and
Member-Secretary, respectively, of the Provincial Board of Canvassers of Isabela were in unison in
vehemently denying the charges imputed against them and declared that they faithfully performed
their poll duties assigned to them.
PES Vitaliano Fabros, in his counter-affidavit, asserted that it could not have been possible not to
read the actual figures reflected in the municipality/city Certificate of Canvass considering the
presence of counsels and watchers of candidates and political parties and if ever there are
discrepancies between the city/municipal Certificate of Canvass and that of the Provincial
Certificate of Canvass the same may be attributable to human fatigue.
Respondent Pacifico Paas declared that he assumed the opening of the envelopes containing the
election returns by municipality and broke the corresponding paper seals and handed the same to
the Chairman who in turn assumed the reading of votes through a microphone with the tabulators
and recorders reflecting the figures in the Statement of Votes and further declared that he had no
direct view over the votes read by Chairman Fabros nor had he interfered save for one or two
election returns in the reading. He even vigorously denied any privy (sic) to the discrepancy of the
figures indicated in the "Statement of Votes by Municipality" and "Provincial Certificate of Canvass"
because he honestly believed that these are the true and faithful reproduction of the figures
indicated in the Provincial Board of Canvassers copy of the election returns provided them which
were used in the canvass.
Respondent Dr. Olympia Marquez stated that it was Chairman Fabros who read the votes obtained
by the candidates through an amplifier sound system and correspondingly the recorders tabulated
the figures as read into the Statement of Votes by municipality; that she did not so much interfere in
the opening of the envelopes and the election returns, nor in the reading of the votes in the duration
of the canvassing and that she conveniently sat side by side with the recorders and periodically see
to it that votes correspondingly read and announced were faithfully reflected in the Statement of
Votes.
Respondents Dr. Teresita Domalanta and Agripina Francisco, in their joint counter-affidavit,
categorically denied the charges, and declared that they faithfully recorded the votes obtained by
the candidates as read and announced by the Chairman of the Provincial Board of Canvassers and
during the recording Dr. Olympia Marquez periodically checked the correctness of the entries in the
Tally Sheet for the Statement of Votes; that they recorded the votes obtained by local candidates in
some municipalities including senatorial candidates whose surname begins with letter "T" and that
they did not participate in the preparation of the Provincial Certificate of Canvass.
Respondents Dante Limon and Eduardo Tamang, in their joint-affidavit, vehemently denied the
charges. They claimed that their assigned duty is only to record the names of candidates and their
corresponding number of votes obtained as announced by PBC Chairman, Atty. Vitaliano Fabros
because they have no access to the votes written in the Municipal Certificate of Canvass.
Respondent George Noriega, in his counter-affidavit likewise denied the charges and averred that he
had no direct knowledge in the preparation of the alleged falsified Provincial Certificate of Canvass,
and as Tabulator, he only added what was recorded in the Statement of Votes prepared by other
persons and denied any participation in the alleged falsification of the Statement of Votes.
On the basis of the foregoing factual findings, the COMELECs Law Department recommended that:
1. an information be filed aganst Provincial Election Supervisor Vitaliano Fabros, Provincial
Prosecutor Pacifico Paas, and Division Superintendent of Schools Dr. Olympia Marquez, Chairman,
Vice- Chairman and Member-Secretary, respectively of the Board of Canvassers of Isabela before the
Regional Trial Court Isabela for violation of Section 27 (b) of Republic Act No. 6646 , the prosecution
of which shall be handled by Regional Election Director Samuel Barangan of Region II, with the duty
to submit periodic progress report[s] after every hearing of the case;
2. an administrative complaint against said respondent for grave misconduct, gross dishonesty, and
conduct unbecoming public officials to the prejudice of the best interest of the service; and
3. the cases against Dr. Teresita Domalanta, Agripina Francisco, Dante Limon, Edwardo Tamang and
George Noriega be dismissed for insufficiency of evidence to establish a probable cause.
In justifying its stand, the COMELEC Law Department reasoned as follows:
Respondents stand charged with alleged violation of Section 27 (b) of Republic Act No. 6646 which
provides:
Section 27. Election offenses. In addition to the prohibited acts and election offenses enumerated in
Section 261 and 262 of Batas Pambansa Blg. 881, as amended, the following shall be guilty of an
election offense.
x x x...........................x x x...........................x x x
(b)....Any member of the board of election inspectors or board of canvassers who tampers with,
increases or decreases votes received by a candidate in any election or any member of the board
who refuses, after proper verification and hearing, to credit the correct votes or deduct such
tampered votes. (Underscoring ours)
There is no question there was indeed an increase in the number of votes obtained by senatorial
candidates Enrile, Mitra and Honasan which the complainant called it [a] glaring discrepancy. An
examination of the Municipal Certificate of Canvass with its Statement of votes per precinct in
relation to the Provincial Certificate of Canvass as supported by the Statement of Votes by
City/Municipality would show that the votes of the aforementioned candidates were illegally
increased in Santiago City and in the nine (9) municipalities of Isabela.
138
The crucial and pivotal issue for determination in the case at bar is whether or not the respondents
alleged act of increasing the number of votes garnered by senatorial candidates Enrile, Mitra and
Honasan constitutes a violation of Section 27 (b) of Republic Act No. 7168.
By a general overview, in order to have judicious evaluation of the case, it is imperatively necessary
to define MISTAKE, NEGLIGENCE and GROSS NEGLIGENCE which may aid in arriving [at] an
intelligent findings (sic).
Mistakes, concededly committed by public officers are not actionable without any clear showing
that they were motivated by malice or gross negligence amounting to bad faith.[4]
Negligence is the omission to do something which a reasonable man guided by those
consideration[s] which ordinarily regulate the conduct of human affairs would do, or the doing of
something which a prudent and reasonable man would not do[5] or the failure to observe for the
protection of the interest of another person, that degree of precaution and vigilance which the
circumstances justly demand, whereby such other person suffers injury.[6]
Gross negligence has been defined as negligence characterized by the want of even slight care,
acting or omitting to act in a situation where there is [a] duty to act, not inadvertently but willfully
and intentionally with a conscious indifference to consequences insofar as other persons may be
affected.[7]
It cannot be disputed that the Certificate of Canvass for senatorial candidates and its supporting
statements of votes by municipality and city, are sensitive election documents where the entries
therein shall be highly scrutinized.
From the foregoing guidepost, we find the contention of respondents members of the Provincial
Board of Canvassers that the erroneous crediting of additional votes to senatorial candidates Enrile,
Mitra and Honasan was an honest mistake due to human fatigue, patently not tenable. This is so
because there appears to be a pattern as shown in the comparison between the Statement of Votes
by Precinct of each of the nine (9) municipalities and one (1) city and the Statement of Votes by
Municipality prepared by the Provincial Board of Canvassers, thus, in Santiago City senatorial
candidate, Enrile obtained fifteen thousand four hundred fifty four (15,454) as per City Certificate of
Canvass while in the Statement of Votes by City prepared by the Provincial Board of Canvassers was
sixteen thousand four hundred fifty four (16,454); in the Municipality of Angadanan, senatorial
candidates Enrile and Mitra were credited with five thousand nine hundred ninety six (5,996) votes
and three thousand eight hundred eight (3,888), respectively, as indicated in Municipal Certificate of
Canvass but in the Statement of Votes by Municipality of Cauayan, Enrile and Honasan were credited
thirteen thousand seven hundred ten (13,710) and eleven thousand two hundred five (11,205),
respectively, while the Statement of Votes by Municipality would show that Enrile got thirteen
thousand seven hundred ten (19,710) and Honasan, twenty one thousand two hundred five
(21,205); in the Municipality of Cordon, Enrile obtained six thousand seven hundred ninety four
(6,794) but in the Statement of Votes by Municipality the number of votes for Enrile was nine
thousand seven hundred ninety four (9,794); in the municipality of Delfin Albano, per Municipal
Certificate of Canvass Enrile garnered three thousand nine hundred seventy two (3,972) votes while
in the Statement of Votes by Municipality Enrile was credited with four thousand nine hundred
seventy two (4,972); in the municipality of Echague, Enrile obtained ten thousand five hundred fifty
two (10,552) votes as reflected in the Votes by Municipality he was credited with fifteen thousand
five hundred fifty two (15,552) votes; and in the Municipality of Ilagan, Mitra was credited with
fourteen thousand four hundred fifty seven (14,457) votes but in the Statement of Votes by
Municipality, Mitras vote was twenty thousand four hundred fifty seven (20,457).
As can be gleaned from the figures shown, save in the municipalities of San Mariano, San Pablo and
San Mateo, the last three digits of the number of votes in the Municipal Certificate of Canvass of the
other municipalities were retained in the padded votes which will give rise to the presumption that
the act was done intentionally and deliberately.
The position proferred by the respondent board members that they cannot be held liable even if the
votes reflected in the assailed certificate of canvass do not tally with the figures on the other copies
of the Municipal Certificate of Canvass because the copies in the possession of the complainant and
any other copies thereof were never used in the provincial canvass, is patently without merit.
Neither is the assertion by respondent board members that the offense imputed against them is not
mala prohibita but mala in se where criminal intent is material by invoking the ruling of the Court of
Appeals in the case of People vs. Sunico, et. al., a valid argument at all.
Based on the facts obtaining in this case, there appears a malice on the part of the members of the
board to increase the votes of the three (3) senatorial candidates taking into account the pattern of
the distribution of the increase of votes as clearly illustrated above. This illegal act will jibe with the
position of the respondents that violation of Section 27 (b) of Rep. Act No. 6646, is mala in se.
Besides, what we are proving here is the existence of a prima facie case only, and not a proof beyond
reasonable doubt.
IT MUST BE POINTED OUT CLEARLY THAT THE ALLEGED FALSIFIED PROVINCIAL CERTIFICATE
OF CANVASS OF ISABELA WAS SEASONABLY RETABULATED OR CORRECTED BY THE COMELEC EN
BANC SITTING AS THE NATIONAL BOARD OF CANVASSERS WHICH ABSOLUTELY BELIE THE
GRATUITOUS ALLEGATION OF PIMENTEL THAT THE INCREASE OF VOTES WERE INCLUDED IN
THE CANVASS AND MADE AS ONE OF THE BASIS IN THE PROCLAMATION OF THE WINNING
SENATORIAL CANDIDATES [Capitalization ours]
But notwithstanding that the illegal increase of the votes of Enrile, Mitra and Honasan were
retabulated or corrected, the members of the Provincial Board of Canvassers of Isabela are
criminally liable to the alleged act committed.
More importantly, A CAREFUL READING OF THE COUNTER-AFFIDAVITS OF OTHER RESPONDENTS
ATTY. PACIFICO PAAS, DR. OLYMPIA MARQUEZ INCLUDING THE MEMBERS OF THE STAFF WOULD
POINT TO THE CHAIRMAN OF THE BOARD, ATTY. FABROS AS THE SOURCE OF THE DATA
RECORDED AND TABULATED. SUCH BEING THE CASE, ABSENT A CLEAR AND CONVINCING PROOF
OF CONSPIRACY OR COLLUSION BETWEEN THE RESPONDENTS MEMBERS OF THE PROVINCIAL
BOARD AND ITS RESPONDENT STAFFS, THE LATTER CANNOT BE FAULTED ON THE ALLEGED
WRONG DOING. The Chairman and the Member Secretary may be indicted for the offense charged
as earlier indicated, and the fact that they certified that the entries reflected in the Provincial
Certificate of Canvass and Statement of Votes By Municipality were true and correct. However, the
exoneration of the tabulators and recorders was further strengthened by the corroborating
statement of Member-Secretary Dr. Olympia Marquez when she stated, in her counter-affidavit, that
she sat beside the tabulators and recorders in order to see to it that the correct figures are reflected
in the Statement of Votes By Municipality.
Based on the foregoing findings, the Law Department recommended that the cases against both
petitioners be dismissed. However, the COMELEC en banc still issued the assailed Resolution which
petitioners challenge on the grounds that:
1.....Minute Resolution No. 96-1616 Finding Conspiracy Among The Members Of The Provincial
Board Of Canvassers and the Herein Petitioners Has No Factual Basis and Runs Counter To The
Study and Report, Annex "C", Upon Which The Questioned Minute Resolution Was Based.
Hence, Its Issuance Was Attended By Grave Abuse Of Discretion Amounting To Lack Or Excess Of
Jurisdiction.
2.....Findings of the Law Department Refers to Members Of The PBOC Only And Does Not Include
Petitioners.
3. Findings Of Conspiracy Not Supported By any Evidence.
139
 Discrepancy
4.....The Continuous Media Blitzkrieg On "Dagdag-Bawas" And The Attack On The Inside Workings Of
The Comelec Terrified Or Terrorized COMELEC Into Including Petitioners In The Charge. Santiago City

5.....Participation Of Petitioners Limited To Canvass Of Local Officials And Two Senators Starting
With The Letter "T" And Does Not Cover Scope Of Instant Complaint Of Atty. Pimentel.

6. The Three (3) Important Documents Upon Which Complaint Was Based Does Not Carry The
Signatures Of Movants.

7. Respondent Pimentel, When Informed About The Innocence Of Movants That They Did Not Tally Enrile
Votes For Enrile, Honasan and Mitra Commented "that is a good point" An Admission Rendering The
Case Against Petitioners Dismissible. 15,454

8. Overzealousness In The Prosecution Of Election Offenses Must Be Tempered With The Yardstick 16,454
That The Innocent Must Not Be Victims Of Injustice.
1,000
9.....A Serious Review Is an Imperative Necessity To Protect Movants From The Onslaught Of A
Public Trial That Carries The Stigma Of Perpetual Embarassment. Angadanan

10.....Petitioners Are Awardees Of COMELEC Hope I And II And Committing An Anomaly Repugnant
To What They Have Taught Is Beyond Their Wildest Dreams.

11.....Petitioner Dr. Domalanta Is A Career Official Of The DECS And Has An Irreproachable Character
To Protect And Would Not Do An Act That Will Forever Destroy Her Good Reputation.

12.....The Same is True With Petitioner Dr. Francsico Who Has Just Retired From Public Service As Enrile
Assistant Division Superintendent.
5,996
The primordial issue to be resolved is whether or not the COMELEC gravely abused its discretion in
directing the filing of criminal and administrative complaints against the petitioners. 7,996

In sum, petitioners insist on their innocence in any wrongdoing in the preparation of the Statement 2,000
of Votes per Municipality, arguing that there is no evidence on record to show a hint of probable
cause against them for the commission of an election offense under Section 27 of R.A. No. 6646 with Mitra
regard to the padding of votes during the May 8, 1995 elections.
3,888
The argument is tenuous.
4,888
It needs be stressed that for the May 8, 1995 elections, petitioners were part of the support or
technical staff of the Provincial Board of Canvassers (PBC) of the Province of Isabela that was tasked 1,000
with the canvassing of the Municipal/City Certificates of Canvass (CoC), the preparation of the
Provincial Certificates of Canvass and the supporting Statement of Votes (SoV) per Cauayan
Municipality/City which entries in said documents were certified to as correct by the PBC. It is upon
a comparison between the Municipal/City CoC submitted to the PBC and the SoV per
Municipality/City as prepared by the members of the PBC and their support staff, including herein
petitioners, that one would readily see the neatly padded vote totals for the three (3) senatorial
candidates, namely, Enrile, Honasan and Mitra, viz:

Municipality/
City Candidate Enrile

Votes appearing in Municipal/City Certificates 13,710

Votes canvassed by COMELEC based on PBCs 19,710

140
6,000 5,000

Honasan San Mariano

11,205

21,205

10,000

Cordon Enrile

5,683

8,253

2,570

Enrile San Pablo

6,794

9,794

3,000

Delfin Albano Enrile

2,418

3,438

1,020

Enrile Ilagan

3,972

4,972

1,000

Echague Mitra

14,457

20,457

6,000

Enrile San Mateo

10,552

15,552

141
 the anomalies or the tampering of the results of the senatorial canvass in Isabela could only have
been done by their staff.
Enrile
It was indeed highly unlikely that the padded vote totals were entered in the SoV per
9,424 Municipality/City without the knowledge of petitioners, if they were faithfully and regularly
performing their assigned tasks. A reasonably prudent man on the other hand would readily come
15,589 to the conclusion that there exists a probable cause to believe that the petitioners are culpable
together with the other members of the support staff as well as the PBC members in the padding of
6,165 the vote totals of the said senatorial candidates. It can not be denied that the members of the PBC
and their support staff, including herein petitioners, were the only ones in control and in possession
TOTAL of said documents during its preparation. It need not be overemphasized, given this fact, that the
padding of the vote totals could only have been done by all of them acting in concert with one
103,553 another.

148,308 It bears stressing in this regard that all that is required in the preliminary investigation is the
determination of probable cause so as to justify the holding of petitioners for trial. Probable cause is
44,755 defined -

Candidate as the existence of such facts and circumstances as would excite the belief, in a reasonable mind,
acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the
Unauthorized Additional Votes crime for which he was prosecuted.[10] This definition is still relevant today as we continue to cite
it in recent cases.[11] xxx Pilapil v. Sandiganbayan[12] sets the standard for determining probable
cause. xxx There we said:

ENRILE Probable cause is a reasonable ground of presumption that a matter is, or may be, well founded,
such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and
27,755 prudence to believe or entertain an honest or strong suspicion, that a thing is so. The term does not
mean "actual or positive cause" nor does it import absolute certainty. It is merely based on opinion
and reasonable belief. Thus, a finding of probable cause does not require an inquiry into whether
there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or
HONASAN omission complained of constitutes the offense charged. Precisely, there is a trial for the reception of
evidence of the prosecution in support of the charge.
10,000
Whether an act was done causing undue injury to the government and whether the same was done
with manifest partiality or evident bad faith can only be made out by proper and sufficient
testimony. Necessarily, a conclusion can be arrived at when the case has already proceeded on
MITRA sufficient proof.[13]

7,000
It can be clearly seen from the list above that the discrepancies are too substantial and rounded off
to be categorized as a mere computation error or a result of fatigue. There is a limit to what can be
construed as an honest mistake or oversight in the performance of official duty. Suffice it to state
that the magnitude of the error as reflected in the discrepancies itemized above renders
unacceptable the defense of computer error or honest mistake.
In the separate counter-affidavits[8] submitted by members of the PBC of Isabela, all three of them
asserted their lack of knowledge of any irregularity committed despite the glaring discrepancies
detailed above. However, paragraph 2 of the Joint Counter-Affidavit[9] of petitioner Domalanta and
Dr. Olympia G. Marquez, acting as Member-Secretary of the PBC, avers that in recording the vote
totals of the senatorial candidates appearing in the Municipal CoCs in the SoV per Municipality/City,
the Board was assisted by the petitioners, two (2) clerks also from the DECS, Messrs. Dante Limon
and Edward Tamang as well as Mr. George Noriega, a representative of the Provincial Accountants
Office. Implicit in the averment of paragraph 2 of said Joint Counter-Affidavit is the insinuation that
Probable cause to warrant arrest is not an opaque concept in our jurisdiction. Continuing accretions
of case law reiterate that they are facts and circumstances which would lead a reasonably discreet
and prudent man to believe that an offense has been committed by the person sought to be
arrested.[14] Other jurisdictions utilize the term man of reasonable caution[15] or the term
ordinarily prudent and cautious man.[16] The terms are legally synonymous and their reference is
not to a person with training in the law such as a prosecutor or a judge but to the average man on
the street.[17] It ought to be emphasized that in determining probable cause, the average man
weighs facts and circumstances without resorting to the calibration of our technical rules of
evidence of which his knowledge is nil. Rather, he relies on the calculus of common sense of which
all reasonable men have an abundance.
xxx...........................xxx...........................xxx
A finding of probable cause needs only to rest on evidence showing that more likely than not a crime
has been committed and was committed by the suspects. Probable cause need not be based on clear
and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt
and definitely, not on evidence establishing absolute certainty of guilt. As well put in Brinegar v.
United States,[18] while probable cause requires more than "bare suspicion", it requires "less than
142
evidence which would justify xxx conviction." A finding of probable cause is not a pronouncement of
guilt.[19]
The peculiar factual circumstances prevailing in this case hardly paints a picture of manifest human
error or fatigue in the tabulation of the votes of the senatorial candidates in Isabela. It, in fact,
discloses a pernicious scheme which would not have been successfully perpetrated without the
indispensable cooperation of all members of the PBC and their support staff which included herein
petitioners. The latters protestations in the counter-affidavits that they only tabulated the vote
totals of senatorial candidates Tillah and Tolentino are at best convenient and self-serving
explanations to justify their exculpation from any wrong-doing. Their claims are, moreover, not
substantiated by any of the PBC members. Indeed, as this Court pointedly observed in Velayo v.
COMELEC[20] the "self-serving nature of said Affidavits cannot be discounted. As this Court has
pronounced, reliance should not be placed on mere affidavits."
Be that as it may, petitioners claims are a matter of defense and as pointed out by the Court recently
in Pimentel, Jr. v. COMELEC [21] -
the merit of defenses such as honest mistake, simple error, good faith, and the mere performance of
ministerial duties, as interposed by persons charged with the election offense of tampering,
increasing or decreasing votes received by a candidate in any election, are best ventilated in the trial
proper than at the preliminary investigation.
The instant petition for certiorari and prohibition, therefore, must be dismissed. It is grounded on
alleged grave abuse of discretion amounting to lack or excess of jurisdiction. Only recently in
Sadikul Sahali v. COMELEC,[24] the Court, citing Garcia, et al. v. HRET,[25] said:
Certiorari as a special civil action can be availed of only if there is a concurrence of the essential
requisites, to wit: (a) the tribunal, board or officer exercising judicial functions has acted without or
in excess of jurisdiction or with grave abuse of discretion amounting to lack or in excess of
jurisdiction, and (b) there is no appeal, nor any plain, speedy and adequate remedy in the ordinary
course of law for the purpose of annulling or modifying the proceeding. There must be a capricious,
arbitrary and whimsical exercise of power for it to prosper.
To question the jurisdiction of the lower court or the agency exercising judicial or quasi-judicial
functions, the remedy is a special civil action for certiorari under Rule 65 of the Rules of Court. The
petitioner in such cases must clearly show that the public respondent acted without jurisdiction or
with grave abuse of discretion amounting to lack or excess of jurisdiction. Grave abuse of discretion
defies exact definition but generally refers to "capricious or whimsical exercise of judgment as is
equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to
an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in
contemplation of law, as where the power is exercised in an arbitrary and despotic manner by
reason of passion and hostility.

Second. Section 27 (b) of R.A. No. 6646 which reads, viz:
xxx [T]he following shall be guilty of an election offense:
x x x...........................x x x...........................x x x
It has been held, however, that no grave abuse of discretion may be attributed to a court simply
because of its alleged misappreciation of facts and evidence. A writ of certiorari may not be used to
correct a lower tribunals evaluation of the evidence and factual findings. In other words, it is not a
remedy for mere errors of judgment, which are correctible by an appeal or a petition for review
under Rule 45 of the Rules of Court.

(b)....Any member of the board of election inspectors or board of canvassers who tampers, increases In fine, certiorari will only issue to correct errors of jurisdiction not errors of procedure or mistakes
or decreases the votes received by a candidate in any election or any member of the board who in the findings or conclusions of the lower court. As long as a court acts within its jurisdiction, any
refuses, after proper verification and hearing to credit the correct votes or deduct such tampered alleged errors committed in the exercise of its discretion will amount to nothing more than errors of
votes. judgment which are reviewable by timely appeal and not by special civil action for certiorari.[26]

penalizes two (2) acts: first the tampering, increasing or decreasing of votes received by a candidate WHEREFORE, the petition is hereby DISMISSED for lack of merit.
in any election; and second, the refusal, after proper verification and hearing to credit the correct
votes or deduct such tampered votes. The first obtains in this case. SO ORDERED.

Petitioner categorically charged private respondents xxx with illegal acts of padding the votes of the
senatorial candidates amounting to violations of the Omnibus Election Code, as amended, and
Section 27 of R.A. 6646. They never denied that the total number of votes of the senatorial candidate
xxx as appearing in the CoCs and SoVs is significantly and considerably higher xxx than that
appearing in the election returns. xxx

These circumstances in themselves, constitute probable cause that justifies the belief that more
likely than not, the election offense was committed and was committed by private respondents xxx.
Probable cause is based neither on clear and convincing evidence of guilt nor evidence establishing
absolute certainty of guilt.[22] It is merely based on opinion and reasonable belief, and so it is
enough that there exists such state of facts as would lead a person of ordinary caution and prudence
to believe or entertain an honest or strong suspicion that a thing is so.[23] Considering that private
respondents xxx in invoking the defenses of honest mistake, oversight due to fatigue and
performance of ministerial duties virtually admitted the existence of the discrepancies in the total
number of votes garnered by petitioner and other senatorial candidates, which discrepancies by no
stretch of imagination could be dismissed as negligible or inconsequential, there is not merely a
strong suspicion that they actually committed the election offense which they are charged. The
burden of proof appears to have shifted to them to prove that the said discrepancies cannot be
considered illegal and criminal.
143
[G.R. No. 115962. February 15, 2000]
DOMINADOR REGALADO, JR., petitioner, vs. COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, respondents. Spped
DECISION
MENDOZA, J.:
This is a petition for review on certiorari of the decision[1] of the Court of Appeals affirming the
ruling of the Regional Trial Court, Branch 38, Negros Oriental, which found petitioner Dominador
Regalado, Jr. guilty of violating 261(h) of the Batas Pambansa Blg. 881 (Omnibus Election Code), as
amended.[2]
The Information against petitioner alleged: Josp-ped
That on or about January 25, 1988, at Tanjay, Negros Oriental, Philippines, and within the
jurisdiction of this Honorable Court, said accused DOMINADOR S. REGALADO, JR., [as] OIC Mayor of
the Municipality of Tanjay, Negros Oriental, did then and there unlawfully, feloniously and illegally
TRANSFER one MRS. EDITHA P. BARBA, a permanent Nursing Attendant, Grade I, in the Office of the
[M]ayor of Tanjay, from her permanent assignment to a very remote Barangay of Sto. Nio during the
election period and without obtaining prior permission or clearance from the Commission on
Elections, Manila.
The evidence for the prosecution shows that on January 15, 1987, complainant Editha Barba was
appointed nursing attendant in the Rural Health Office of Tanjay, Negros Oriental by then Officer-In-
Charge Mayor Rodolfo Navarro.[3] Although she was detailed at, and received her salary from, the
Office of the Mayor, she reported for work at the Puriculture Center, Poblacion, Tanjay. As Navarro
decided to run for mayor of Tanjay in the January 18, 1988 elections, petitioner Dominador
Regalado, Jr. was appointed substitute OIC-Mayor. His brother, Arturo S. Regalado, was also a
mayoralty candidate.
Petitioners brother won in the elections. Four days later, on January 22, 1988, petitioner, still sitting
as OIC-Mayor, issued a memorandum to Barba informing her that effective January 25, 1988, she
would be reassigned from Poblacion, Tanjay to Barangay Sto. Nio,[4] about 25 kilometers from
Poblacion.[5] The transfer was made without the prior approval of the Commission on Elections
(COMELEC). Barba continued to report at the Puriculture Center, Poblacion, Tanjay, however.
Hence, on February 18, 1988, petitioner issued another memorandum to Barba directing her to
explain, within 72 hours, why she refuses to comply with the memorandum of January 22,
1988.[6]Spp-edjo
In response, Barba, on February 21, 1988, sent a letter to petitioner protesting her transfer which
she contended was illegal.[7] She then filed, on February 16, 1988, a complaint[8] against petitioner
for violation of 261(h) of the Omnibus Election Code, as amended, and after preliminary
investigation, the Provincial Election Officer of Negros Oriental, Atty. Gerardo Lituanas, charged
petitioner before the Regional Trial Court, Branch 38, Negros Oriental.
On September 27, 1991, the lower court rendered a decision, the dispositive portion of which
states:[9]
Finding the accused guilty beyond reasonable doubt of a violation of Section 261, paragraph (h), of
the Omnibus Election Code, the accused Dominador S. Regalado, Jr., is sentenced to undergo
imprisonment for an indeterminate period ranging from one (1) year minimum to three (3) years
maximum without the benefit of probation and to suffer disqualification to hold public office and
deprivation of the right of suffrage. He is further sentenced to indemnify the offended party, Editha
P. Barba, as civil liability arising from the offense charged[,] in the sum of Five Hundred (P500.00)
Pesos . . . . for moral damages. Mi-so
As petitioners motion for reconsideration was denied,[10] he elevated the matter to the Court of
Appeals, which, on February 3, 1994, affirmed the lower courts decision. He moved for a
reconsideration, but his motion was likewise denied, hence this appeal.
Petitioner alleges that
I. THE PUBLIC RESPONDENT FAILED TO CONSIDER THE ORGANIZATIONAL STRUCTURE OF THE
RURAL HEALTH UNIT OF THE MUNICIPALITY OF TANJAY, NEGROS ORIENTAL, VIZ-A-VIZ, THE
LETTERS OF APPOINTMENT OF PRIVATE RESPONDENT.
II. THE MEMORANDUM DID NOT EFFECT A TRANSFER, BUT MERELY A "RE-ASSIGNMENT" OF
PRIVATE RESPONDENT.
III. EXIGENCIES OF SERVICE WERE NOT ACCOUNTED FOR.[11]
Petitioners contentions have no merit.
First. The two elements of the offense prescribed under 261(h) of the Omnibus Election Code, as
amended, are: (1) a public officer or employee is transferred or detailed within the election period
as fixed by the COMELEC, and (2) the transfer or detail was effected without prior approval of the
COMELEC in accordance with its implementing rules and regulations.[12]Ne-xold
The implementing rule involved is COMELEC Resolution No. 1937,[13] which pertinently provides:
Section 1. Prohibited Acts.
....
Effective November 19, 1987 up to February 17, 1988, no public official shall make or cause any
transfer or detail whatsoever of any officer or employee in the Civil Service, including public school
teachers, except upon prior approval of the Commission.
Section 2. Request for authority of the Commission. - Any request for . . . . approval to make or cause
any transfer or detail must be submitted in writing to the Commission stating all the necessary data
and reason for the same which must satisfy the Commission that the position is essential to the
proper functioning of the office or agency concerned, and that the . . . . filling thereof shall not in any
manner influence the election.
Petitioner admits that he issued the January 22, 1988 memorandum within the election period set
in Resolution No. 1937 without the prior approval of the COMELEC. He contends, however, that he
did not violate 261(h) because he merely effected a "re-assignment" and not a "transfer" of
personnel by moving Barba from one unit or place of designation (Poblacion, Tanjay) to another
(Sto. Nio, Tanjay) of the same office, namely, the Rural Health Office of Tanjay, Negros Oriental.[14]
In support of his contention, he relies upon the following portions of 24 of P.D. No. 807 (Civil Service
Law):[15]Man-ikx
(c) Transfer a movement from one position to another which is of equivalent rank, level, or salary
without break of service involving the issuance of an appointment.
....
144
(g) Reassignment an employee may be reassigned from one organizational unit to another in the imprisonment of not less than one year but not more than six years [which] shall not be subject to
same agency. Provided, that such reassignment shall not involve a reduction in rank, status, or probation. In addition, the guilty party shall be sentenced to suffer disqualification to hold public
salary. office and deprivation of the right of suffrage.

Petitioner, however, ignores the rest of 24(c) which provides that: WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the MODIFICATION that the
award of moral damages is deleted. Nc-m
[A transfer] shall not be considered disciplinary when made in the interest of the public service, in
which case, the employee concerned shall be informed of the reasons therefor. If the employee SO ORDERED.
believes that there is no justification for the transfer, he may appeal his case to the Commission.

The transfer may be from one department or agency to another or from one organizational unit to
another in the same department or agency: Provided, however, That any movement from the non-
career service to the career service shall not be considered a transfer. (Emphasis added) Manik-s

Thus, contrary to petitioners claim, a transfer under 24(c) of P.D. No. 807 in fact includes personnel
movement from one organizational unit to another in the same department or agency.

Moreover, 261(h) of B.P. No. 881, as amended, provides that it is an election offense for

Any public official who makes or causes any transfer or detail whatever of any officer or employee
in the civil service including public school teachers, within the election period except upon prior
approval of the Commission. (Emphasis added)

As the Solicitor General notes, "the word transfer or detail, as used [above], is modified by the word
whatever. This indicates that any movement of personnel from one station to another, whether or
not in the same office or agency, during the election is covered by the prohibition."[16]

Finally, the memorandum itself issued by petitioner to Barba on January 22, 1988 stated that the
latter was being "transferred," thus:[17]Man-ikan

Effective Monday, January 25, 1988, your assignment as Nursing Attendant will be transferred from
RHU I Tanjay Poblacion to Barangay Sto. Nio, this Municipality.

You are hereby directed to perform the duties and functions as such immediately in that area.

For strict compliance.(Emphasis added)

Second. Petitioner next contends that his order to transfer Barba to Barangay Sto. Nio was
prompted by the lack of health service personnel therein and that this, in effect, constitutes
sufficient justification for his non-compliance with 261(h).[18]

The contention has no merit.

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

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

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

145
G.R. No. 115022 August 14, 1995
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. WILFREDO D. REYES, Presiding Judge, RTC, Branch 36, Manila and BUENAVENTURA C.
MANIEGO, respondents.
PUNO, J.:
This is a petition for certiorari and mandamus under Rule 65 of the Revised Rules of Court to annul
and set aside the orders dated September 23, 1993 and January 25, 1994 of respondent Judge
Wilfredo D. Reyes, Regional Trial Court, Branch 36, Manila in Criminal Case No. 93-120275.
The facts reveal that respondent Buenaventura C. Maniego, Collector of Customs, Collection District
II, Bureau of Customs, Manila International Container Port (MICP), issued MICP Customs Personnel
Order No. 21-92 dated January 10, 1992 assigning Jovencio D. Ebio, Customs Operation Chief, MICP
to the Office of the Deputy Collector of Customs for Operations as Special Assistant.1 The actual
transfer of Ebio was made on January 14, 1992.
On May 4, 1992, Ebio filed with the Commission on Elections (COMELEC) a letter-complaint
protesting his transfer. Ebio claimed that his new assignment violated COMELEC Resolution No.
2333 and section 261 (h) of B.P. Blg. 881, the Omnibus Election Code, which prohibit the transfer of
any employee in the civil service 120 days before the May 11, 1992 synchronized national and local
elections.
After a preliminary investigation, the COMELEC filed on May 6, 1995 an information with the
Regional Trial Court, Branch 36, Manila charging respondent Maniego with a violation of Section
261 (h) of B. P. Blg. 881 committed as follows:
That on or about January 14, 1992 which was within the election period of the May 11, 1992
synchronized elections and within the effectivity of the ban on transfer or detail of officers and
employees in the civil service, in the City of Manila, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, a public official, being the Collector of Customs VI,
Manila International Container Port, Bureau of Customs, by taking advantage of his position and
abuse of authority, did, then and there, wilfully and unlawfully, transfer Jovencio D. Ebio, Chief of the
Piers and Inspection Division, Manila International Container Port, Bureau of Customs, to Special
Assistant in the office of the Deputy Collector for Operations, of the same office, without a prior
written authority from the Commission on Elections.2
Before the arraignment, respondent Maniego moved to quash the information on the ground that
the facts alleged do not constitute an offense. He contended that the transfer of Ebio on January 14,
1992 did not violate B.P. Blg. 881 because on that date the act was not yet punishable as an election
offense. It purportedly became punishable only on January 15, 1992, the date of effectivity of
COMELEC Resolution No. 2333 implementing Section 261 (h) of B.P. Blg. 881. Petitioner, through
the COMELEC, opposed the motion to quash.
On September 23, 1993, the trial court granted private respondent's motion to quash and dismissed
Criminal Case No. 93-120275.3 Petitioner moved to reconsider but the same was denied on January
25, 1995.4 Petitioner forthwith elevated the case to this Court on a pure question of law.
We affirm.
The basic law supposed to have been violated by respondent Maniego is Section 261 (h) of B.P. Blg.
881 which reads as follows:
Sec. 261. Prohibited acts. — The following shall be guilty of any election offense:
xxx xxx xxx
(h) Transfer of officers and employees in the civil service. — Any public official who makes or
causes any transfer or detail whatever of any officer or employee in the civil service including public
school teachers, within the election period except upon prior approval of the Commission.
(Emphasis supplied)
The Constitution has fixed the election period for all elections to commence ninety (90) days before
the day of election and end thirty (30) days thereafter, unless otherwise fixed in special cases by the
COMELEC.5 For the May 11, 1992 synchronized national and local elections, the COMELEC fixed a
longer election period of one hundred twenty (120) days before the scheduled elections and thirty
(30) days thereafter. It issued Resolution No. 2314 on September 23, 1991 primarily adopting
therein a calendar of activities. In the process, it designated January 12, 1992 to June 10, 1992 as the
election period, viz.:
RESOLUTION NO. 2314
Pursuant to the powers vested in it by the Constitution of the Republic of the Philippines, the
Omnibus Election Code (B.P. Blg. 881), and Republic Act No. 7166, the Commission on Elections has
RESOLVED to adopt, the following calendar of activities for the May 11, 1992 elections:
Date/Period Activities
November 28, 1991 — Start of the period of nomination and selection of official candidates
for President, Vice-President and Senators (165 days, SEC. 6, R.A.7166)
January 2, 1992 — Last day for appointment of members of boards of election
inspectors (Sec.164, OEC) (Subject to appointments which may be extended later in account of lack
of public school teachers and disqualifications due to relationship to candidates.)
January 12, 1992 — ELECTION PERIOD (120 (Sunday) todays, per Res. No. ____ )
June 10, 1992 Bans on carrying of firearms Wednesday suspension of elective local officials,
organization of strike forces, etc. (Sec. 261,
OEC)6
xxx xxx xxx
On January 2, 1992, the COMELEC promulgated Resolution No. 2328 for the sole and specific
purpose of fixing for the said elections the election period from January 12, 1992 to June 10, 1992.7
This Resolution was published in the January 5, 1992 issue of the Manila Times and the January 6,
1992 issue of the Philippine Times Journal.8
On January 2, 1992, the COMELEC also passed Resolution No. 2333 which promulgated the
necessary rules to enforce Section 261 of B.P. Blg. 881. We quote its pertinent portions:
RESOLUTION NO. 2333
WHEREAS, the Omnibus Election Code of the Philippines provides:
Sec. 261. Prohibited acts, — The following shall be guilty of an election offense:
xxx xxx xxx
146
(h) Transfer of officers and employees in the civil service. — Any public official who makes or
causes any transfer or detail whatever of any officer or employee in the civil service including public
school teachers, within the election period except upon prior approval of the Commission.
xxx xxx xxx
WHEREAS, to enforce effectively the foregoing provisions, there is need to promulgate the
necessary rules for the guidance of all concerned;
NOW, THEREFORE, pursuant to the power vested in it by the Constitution, the Omnibus Election
Code, Republic Acts No. 6646 and 7166 and other election laws, the Commission has RESOLVED to
promulgate, as it hereby promulgates, the following rules to implement the provisions of Sec. 261,
subsections (g), (h) and (x) of the Omnibus Election Code.
xxx xxx xxx
Sec. 2. Request for authority of the Commission. — Any request for authority to make or cause
any transfer or detail of any officer or employee in the civil service, including public school teachers,
shall be submitted in writing to the Commission indicating therein the office and place to which the
officer or employee is proposed to be transferred or detailed, and stating the reason therefor.
Prescinding from this predicate, two (2) elements must be established to prove a violation of
Section 261 (h) of B.P. Blg. 881, viz: (1) The fact of transfer or detail of a public officer or employee
within the election period as fixed by the COMELEC, and (2) the transfer or detail was effected
without prior approval of the COMELEC in accordance with its implementing rules and regulations.
In the case at bench, respondent Maniego transferred Ebio, then the Customs Operation Chief, MICP
to the Office of the Deputy Collector of Customs for Operations as Special Assistant on January 14,
1992. On this date, January 14, 1992, the election period for the May 11, 1992 synchronized
elections had already been fixed to commence January 12, 1992 until June 10, 1992. As aforestated,
this election period had been determined by the COMELEC in its Resolution No. 2314 dated
November 20, 1991 and Resolution No. 2328 January 2, 1992. Nonetheless, it was only in Resolution
No. 2333 which took effect on January 15, 1992 that COMELEC promulgated the necessary rules on
how to get its approval on the transfer or detail of public officers or employees during the election
period. Before the effectivity of these rules, it cannot be said that Section 261 (h) of B.P. Blg. 881, a
penal provision, was already enforceable. Needless to state, respondent Maniego could not be
charged with failing to secure the approval of the COMELEC when he transferred Ebio on January
14, 1992 as on that day, the rules of the COMELEC on the subject were yet in existent.
IN VIEW WHEREOF, the petition is dismissed and the orders dated September 23, 1993 and January
25, 1995 of the respondent judge in Criminal Case No. 93-120275 are affirmed.

xxx xxx xxx SO ORDERED.

Sec. 6. Effectivity. — This resolution shall take effect on the seventh day after its publication in
two (2) newspapers of general circulation in the Philippines.

xxx xxx xxx

Resolution No. 2333 was published in the January 8, 1992 issues of Malaya and the Manila Standard.
Hence, it took effect on January 15, 1992, the seventh day after its publication.

It is undeniable that the transfer of complainant Ebio on January 14, 1992 was made during the
election period. The question, however, is whether this transfer ipso facto makes respondent
Maniego liable for an election offense under Section 261 (h) of B.P. Blg. 881.

We rule in the negative.

We start with the constitutional injunction that no officer or employee in the civil service shall
engage, directly or indirectly, in any electioneering or partisan political campaign.9 This prohibition
is reiterated in the Administrative Code of 1987. 10 Section 261 (h) of B.P. Blg. 881 implements this
constitutional prohibition.

It ought to be immediately obvious that Section 261 (h) of B.P. Blg. 881 does not per se outlaw the
transfer of a government officer or employee during the election period. To be sure, the transfer or
detail of a public officer or employee is a prerogative of the appointing authority. 11 It is necessary
to meet the exigencies of public service sometimes too difficult to perceive and predict. Without this
inherent prerogative, the appointing authority may not be able to cope with emergencies to the
detriment of public service. Clearly then, the transfer or detail of government officer or employee
will not be penalized by Section 261 (h) of B.P. Blg. 881 if done to promote efficiency in the
government service. Hence, Section 2 of Resolution No. 2333 provides that the COMELEC has to pass
upon the reason for the proposed transfer or detail, viz: "Any request for authority to make or cause
any transfer or detail of any officer or employee in the civil service, including public school teachers,
shall be submitted in writing to the Commission indicating therein the office and place to which the
officer or employee is proposed to be transferred or detailed, and stating the reason therefor. 12

147
[G.R. No. 137250-51. September 13, 2001]
PABLO MARGAREJO, MARTIN PAGADUAN, BERNARD ZAMBALES, VICTOR DULAP, and LOLITO
ALMOITE, petitioner, vs. HON. ADELARDO ESCOSES, in his capacity as Presiding Judge of
Branch 51, RTC, Puerto Princesa City and PEOPLE OF THE PHILIPPINES, respondent.
DECISION
BUENA, J.:
This is a Petition for Certiorari under Rule 65 seeking to annul, on the ground of grave abuse of
discretion, the following:
1) The Order dated September 30, 1998, issued by Judge Adelardo S. Escoses, Branch 51, Regional
Trial Court of Puerto Princesa City, in (a) CRIMINAL CASE NO. 14353 for Violation of Presidential
Decree No. 1866, as amended; and in (b) CRIMINAL CASE NO. 14354 for Violation of COMELEC
Resolution No. 3045 in relation to section 261 of the Omnibus Election Code; denying the
petitioners motions to quash the informations in the above cases;[1] and
2) The Resolution dated November 20, 1998, issued by respondent judge, denying petitioners
motion for reconsideration of the said order.[2]
The antecedents, as found by the Solicitor General, read:
1. At about four oclock in the morning of May 12, 1998, Police Superintendent Feliciano C.
Dimayuga, Sr., the Chief of Police of Puerto Princesa City, together with his Deputy Chief of Police,
Police Chief Inspector Miguel B. Oceo, and four other policemen, namely, Police Senior Inspector
Leopoldo M. Pacaldo, PO3 Jose B. Eleazar, PO3 Joselito R. Golifardo, and PO3 Edwin A. Barona, who
were manning a COMELEC checkpoint at Barangay Sta. Lourdes at Puerto Princesa City, were able to
intercept two vehicles, specifically, a Tamaraw FX vehicle, with Plate Number SDT-389 and driven
by petitioner Martin Pagaduan, and a Toyota Hi-Lux Vehicle which did not have a plate number and
was driven by retired Colonel Romualdo Ragel of Barangay Tinguiban, Puerto Princesa City.
2. Several firearms, with live ammunition, were seen and found in plain view inside the Toyota Hi-
Lux Vehicle. Also seen in plain view were several firearms, with live ammunition, carried by
petitioners and by the other passengers of said intercepted vehicle. Police Superintendent
Dimayuga inquired from petitioners if they had the required licenses and the proper COMELEC
authority for the firearms found in their possession and custody but petitioners could not produce
any. Said firearms, together with live ammunition, were thus taken by the police and the
corresponding receipts issued therefor.
Petitioners and three others were charged with the earlier mentioned crimes under two separate
informations, thus:
CRIMINAL CASE NO. 14353
That on or about the 12th day of May, 1998, more or less 4:00 oclock (sic) in the morning, at Bgy.
Sta. Lourdes, Puerto Princesa City, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring and confederating together, did then and there wilfully,
unlawfully and feloniously have in their possession, custody, and control, the following firearms and
ammunitions, to wit:
1) One (1) piece Uzi Machine Pistol with Serial No. SN-70102 with Three (3) magazines loaded with
Sixty Five (65) live ammunitions
2) One (1) piece Para-Ordinance Caliber .45 Pistol with Serial No. 451529 with Ten (10) live
ammunitions in Magazine
3) One (1) piece Colt Mark IV Gold Cup .45 Pistol with Serial No. 369470 with Six (6) live
ammunitions in Magazine
4) One (1) piece Norinco .45 Caliber Pistol with Serial No. 704800 with Seven (7) live ammunitions
in Magazine
5) One (1) piece .45 Caliber Pistol with Serial No. 957202 (w/o brand name) with Five (5) live
ammunitions in Magazine
6) One (1) piece .357 Magnum Revolver Smith and Wesson with Serial No. SN-AJS-7876 with
Twenty (20) live ammos
7) One (1) piece M16 Baby Armalite Rifle with Serial Number SN 145710
8) Ten (10) pieces M16 magazines loaded with 262 rounds of live ammunitions, without first
securing the necessary permits/licenses to possess the same from the proper authorities concerned.
CONTRARY TO LAW.[3]
and,
CRIMINAL CASE NO. 14354
That on or about the 12th day of May, 1998, more or less 4:00 oclock in the morning, at Bgy. Sta.
Lourdes, City of Puerto Princesa, Philippines, and within the jurisdiction of this Honorable Court, the
said accused, conspiring and confederating together did then and there wilfully, unlawfully and
feloniously have in their possession, custody and control during election period the following
firearms and ammunitions, to wit:
1. One (1) pc. UZI Machine Pistol with SN 70102
2. Three (3) pcs. UZI magazine
3. Sixty Five (65) pcs. UZI live ammos.
4. One (1) pc. 45 cal. Pistol with five (5) live ammos. in magazine
5. One (1) pc. COLT MARK IV .45 cal. Pistol SN 369470 with six (6) live ammos. in magazine
6. One (1) pc. NORINCO .45 caliber pistol SN 704800 with seven (7) live ammos. in magazine
7. One (1) pc. .45 cal. Pistol SN 451529 with ten (10) live ammos. in magazine
8. One (1) pc. .357 Magnum revolver SN-AJS-7876 with twenty (20) live ammos.
9. One (1) pc. M16A1 Baby Armalite Rifle with SN-145710
10. Ten (10) pcs. Magazine for M16 Rifle
11. Two Hundred Sixty Two (262) pc. Live ammos. for M16 Rifle.
without first securing the written permit from the COMELEC to possess the same, which act is in
violation of COMELEC Resolution No. 3064 in relation to Section 261 of the Omnibus Election Code.
148

CONTRARY TO LAW.[4]
Before arraignment, motions to quash the aforequoted informations were filed by petitioners. In the
motion to quash filed in Criminal Case No. 14353, petitioners asserted that, the facts charged in the
Information did not constitute an offense, there being no allegation that `no other crime was
committed, which is an essential element of the offense penalized by PD 1866, as amended by RA
8294.[5] And in the motion to quash filed in Criminal Case No. 14354, petitioners claimed that, " the
City Prosecutor had no authority to file the information in said case since COMELEC, which has the
exclusive authority to investigate and prosecute election offenses, was conducting its own
preliminary investigation for the same act complained of.[6]
As stated in the prefatory statement, the motions to quash were denied in the order dated
September 30, 1998:
WHEREFORE, premised on the foregoing jurisprudential tenets and rational application thereof to
the facts of the instant case, the motion to quash the above-entitled cases is hereby denied. Let the
accused be arraigned on the two Informations at bench at the earliest available calendar of the
court.[7]
The motion for reconsideration of the aforequoted order was likewise denied in the resolution
dated November 20, 1998:
WHEREFORE, premised on the foregoing doctrinal tenets applied to the facts as culled from the
records of these cases, the formal joint and consolidated motion for reconsideration of the
September 30, 1998 order of this Court is hereby denied. Let the arraignment of the accused on the
Informations at bench be set at the earliest available calendar of the court.[8]
The issues raised by petitioners in their Memorandum are as follows:
ISSUES
WHETHER OR NOT THE NON-COMMISSION OF ANOTHER CRIME IS AN ESSENTIAL ELEMENT OF
VIOLATION OF PD 1866 AS AMENDED BY RA 8294, WHICH ELEMENT MUST BE ALLEGED IN THE
INFORMATION.
WHETHER OR NOT THE PENDENCY OF A PRELIMINARY INVESTIGATION CONDUCTED BY THE
COMELEC INVOLVING THE SAME ACT OF PETITIONERS DEPRIVED THE CITY PROSECUTOR OF
THE AUTHORITY TO FILE THE INFORMATION.
WHETHER OR NOT THE WARRANTLESS SEARCH WHICH SUPPOSEDLY RESULTED IN THE
DISCOVERY AND SEIZURE OF FIREARMS FROM PETITIONERS IS LEGAL.
The first issue is resolved against the Petitioners. Their principal argument in support of this issue is
not only amiss but also deceiving. Contrary to what they point out, the amendatory law (Republic
Act No. 8294) does not add to the existing elements of the crime of illegal possession of firearms.
What it does is merely to excuse the accused from prosecution of the same in case another crime is
committed.
In People vs. Valdez,[9] this Court, under the ponencia of Justice Jose A.R. Melo, explained that the
dismissal of the second case against Valdez involving violation of P.D. 1866 did not mean that there
can no longer be any prosecution for the crime of illegal possession of firearm. Consequently, all
pending cases as well as subsequent violations of P.D. 1866, as amended, will continue to be
prosecuted and tried if no other crimes expressly indicated in R.A. 8294[10] concur. Considering
that the other offense charged in Criminal Case No. 14354 for violation of COMELEC Resolution No.
3045 is not one of those enumerated under R.A. 8294, the respondent judge was correct in not
quashing the information in Criminal Case No. 14353.[11]
Still under the first issue, Petitioners argument that the continuation of the two questioned cases
against them violates the Constitutional prohibition on double jeopardy is not only strained but
totally unacceptable. It is manifestly clear from the records that no first jeopardy has yet attached.
Section 7, Rule 117 of the Rules of Court, as amended, provides:
Section 7. Former conviction or acquittal; double jeopardy. When an accused has been convicted or
acquitted, or the case against him dismissed or otherwise terminated without his express consent
by a court of competent jurisdiction, upon a valid complaint or information or other formal charge
sufficient in form and substance to sustain a conviction and after the accused had pleaded to the
charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to
another prosecution for the offense charged, or for any attempt to commit the same or frustration
thereof, or for any offense which necessarily includes or is necessarily included in the offense
charged in the former complaint or information.
Under said Section, the first jeopardy attaches only (1) upon a valid indictment, (2) before a
competent court, (3) after arraignment, (4) when a valid plea has been entered, and (5) when the
defendant was convicted or acquitted, or the case was dismissed or otherwise terminated without
the express consent of the accused.[12] Significantly, the last three requisites are absent in this case,
petitioners not having been arraigned in either case up to this date. Hence, Criminal Case No. 14353
should proceed.
The second issue is likewise resolved against Petitioners. While they are correct in saying that the
Commission on Elections has the exclusive power to investigate and prosecute all election offenses
under the Omnibus Election Code,[13] such authority was subsequently qualified and explained,
thus:
1993 COMELEC RULES OF PROCEDURE
SECTION 1. Authority of the Commission to Prosecute Election Offenses. The Commission shall have
the exclusive power to conduct preliminary investigation of all election offenses punishable under
the election laws and to prosecute the same, except as may otherwise be provided by law.
SEC. 2. Continuing Delegation of Authority to Other Prosecution Arms of the Government. The Chief
State Prosecutor, all Provincial and City Fiscals, and/or their respective assistants are hereby given
continuing authority, as deputies of the Commission, to conduct preliminary investigation of
complaints involving election offenses under the election laws which may be filed directly with
them, or which may be indorsed to them by the Commission or its duly authorized representatives
and to prosecute the same. Such authority may be revoked or withdrawn any time by the
Commission whenever in its judgment such revocation or withdrawal is necessary to protect the
integrity of the Commission, promote the common good, or when it believes that successful
prosecution of the case can be done by the Commission.
In the absence of any revocation of the aforequoted authority by COMELEC, the city prosecutors
continuing delegation to prosecute Criminal Case No. 14354 stays. At this point, we also take notice
that no less than the counsels for the parties manifested that the COMELEC en banc has deferred
further investigation of E.O. No. 98-170.[14] It has also come to our attention that the said election
offense principally involves the disqualification and culpability of the late Gov. Salvador P. Socrates
and does not therefore fall squarely with the one before us.[15] Thus, prosecution of Criminal Case
No. 14354 must likewise continue.
As regards the third and final issue raised, the same may not be resolved without a full blown trial.
Petitioners argue that P/Supt. F.C. Dimayuga, as Chief of Police of Puerto Princesa City, had no
149
authority to set up check points by virtue of COMELEC Resolution No. 2968.[16] Consequently, the
fruits of that allegedly unlawful search are inadmissible.

The Petitioners are wrong. First of all, there is no showing that it was P/Supt. Dimayuga who set up
the COMELEC Checkpoint at Barangay Sta. Lourdes, Puerto Princesa City. What is stated in his
affidavit is that they were conducting a COMELEC Checkpoint. Conducting may very well mean,
manning a duly set up checkpoint. Second, it is hard to make any determination as to whether the
checkpoint in question was sanctioned by either the Commander or the Director of the AFP or the
PNP, respectively. Considering that frantic/emergency calls for assistance were sent to concerned
government agencies and the local media through radio transceivers as early as the previous day,
we cannot discount the possibility that the questioned checkpoint may have been sanctioned by the
proper authorities. Third, the counter affidavit of the Petitioners contradicting the allegations of
P/Supt. Dimayugas affidavit only bolster the need for trial in order to ferret out the truth.

Petitioners are reminded that questions of fact are not permitted under Rule 65, the inquiry being
limited only to the issue of whether or not the public respondent the respondent judge in this case
acted without or in excess of his jurisdiction.[17]

All these considered, no capricious, whimsical, arbitrary or despotic actions equivalent to grave
abuse of discretion amounting to excess or lack of jurisdiction may be validly attributed to the
respondents refusal to quash the informations in question.

WHEREFORE, for lack of merit, the instant petition is DISMISSED.

SO ORDERED.

150
ROBERT P. GUZMAN, CORONA,

Petitioner, CARPIO MORALES,

CHICO-NAZARIO,

VELASCO, JR.,

NACHURA,

LEONARDO-DE CASTRO,

BRION,

PERALTA,

BERSAMIN,

DEL CASTILLO** and

- versus - ABAD**, JJ.

Promulgated:

August 28, 2009

x-----------------------------------------------------------------------------------------x

DECISION

COMMISSION ON ELECTIONS, MAYOR RANDOLPH S. TING AND SALVACION GARCIA,

BERSAMIN, J.:
Respondents.

G.R. No. 182380

Through certiorari under Rule 64, in relation to Rule 65, Rules of Court, the petitioner assails the
February 18, 2008 resolution of the Commission of Elections en banc (COMELEC),[1] dismissing his
criminal complaint against respondents City Mayor Randolph Ting and City Treasurer Salvacion
Present: Garcia, both of Tuguegarao City, charging them with alleged violations of the prohibition against
disbursing public funds and undertaking public works, as embodied in Section 261, paragraphs (v)
and (w), of the Omnibus Election Code, during the 45-day period of the election ban by purchasing
property to be converted into a public cemetery and by issuing the treasury warrant in payment. He
PUNO, C.J., asserts that the COMELEC committed grave abuse of discretion amounting to lack or excess of
jurisdiction in thereby exonerating City Mayor Ting and City Treasurer Garcia based on its finding
QUISUMBING*, that the acquisition of the land for use as a public cemetery did not constitute public works covered
by the ban.
YNARES-SANTIAGO*,

CARPIO,
Antecedents
151

On March 31, 2004, the Sangguniang Panlungsod of Tuguegarao City passed Resolution No. 048-
2004 to authorize City Mayor Ting to acquire two parcels of land for use as a public cemetery of the
City. Pursuant to the resolution, City Mayor Ting purchased the two parcels of land, identified as Lot
Nos. 5860 and 5861 and located at Atulayan Sur, Tuguegarao City, with an aggregate area of 24,816
square meters (covered by Transfer Certificates of Title [TCT] No. T-36942 and TCT No. T-36943 of
the Register of Deeds in Tuguegarao City), from Anselmo Almazan, Angelo Almazan and Anselmo
Almazan III. As payment, City Treasurer Garcia issued and released Treasury Warrant No.
0001534514 dated April 20, 2004 in the sum of P8,486,027.00. On May 5, 2004, the City
Government of Tuguegarao caused the registration of the sale and the issuance of new certificates in
its name (i.e., TCT No. T-144428 and TCT No. T-144429).
Based on the transaction, the petitioner filed a complaint in the Office of the Provincial Election
Supervisor of Cagayan Province against City Mayor Ting and City Treasurer Garcia, charging them
with a violation of Section 261, paragraphs (v) and (w), of the Omnibus Election Code, for having
undertaken to construct a public cemetery and for having released, disbursed and expended public
funds within 45 days prior to the May 9, 2004 election, in disregard of the prohibitions under said
provisions due to the election ban period having commenced on March 26, 2004 and ended on May
9, 2004.
City Mayor Ting denied the accusations in his counter-affidavit but City Treasurer Garcia opted not
to answer.
After investigation, the Acting Provincial Election Supervisor of Cagayan recommended the
dismissal of the complaint by a resolution dated December 13, 2006, to wit:
WHEREFORE, premises considered, the undersigned investigator finds that respondents did not
violate Section 261 subparagraphs (v) and (w) of the Omnibus Election Code and Sections 1 and 2 of
Comelec Resolution No. 6634 and hereby recommends the DISMISSAL of the above-entitled case for
lack of merit.[2]
The COMELEC en banc adopted the foregoing recommendation in its own resolution dated February
18, 2008 issued in E.O. Case No. 06-14[3] and dismissed the complaint for lack of merit, holding that
the acquisition of the two parcels of land for a public cemetery was not considered as within the
term public works; and that, consequently, the issuance of Treasury Warrant No. 0001534514 was
not for public works and was thus in violation of Section 261 (w) of the Omnibus Election Code.
Not satisfied but without first filing a motion for reconsideration, the petitioner has commenced this
special civil action under Rule 64, in relation to Rule 65, Rules of Court, claiming that the COMELEC
committed grave abuse of discretion in thereby dismissing his criminal complaint.
Parties Positions
The petitioner contended that the COMELEC's point of view was unduly restrictive and would defeat
the very purpose of the law; that it could be deduced from the exceptions stated in Section 261 (v)
of the Omnibus Election Code that the disbursement of public funds within the prohibited period
should be limited only to the ordinary prosecution of public administration and for emergency
purposes; and that any expenditure other than such was proscribed by law.
For his part, City Mayor Ting claimed that the mere acquisition of land to be used as a public
cemetery could not be classified as public works; that there would be public works only where and
when there was an actual physical activity being undertaken and after an order to commence work
had been issued by the owner to the contractor.
The COMELEC stated that the petition was premature because the petitioner did not first present a
motion for reconsideration, as required by Section 1(d), Rule 13 of the 1993 COMELEC Rules of
Procedure;[4] and that as the primary body empowered by the Constitution to investigate and
prosecute cases of violations of election laws, including acts or omissions constituting election
frauds, offenses and malpractices,[5] it assumed full discretion and control over determining
whether or not probable cause existed to warrant the prosecution in court of an alleged election
offense committed by any person.
The Office of the Solicitor General (OSG) concurred with the COMELEC to the effect that the
acquisition of the land within the election period for use as a public cemetery was not covered by
the 45-day public works ban under Section 261(v) of the Omnibus Election Code; but differed from
the COMELEC as to the issuance of Treasury Warrant No. 0001534514, opining that there was
probable cause to hold City Mayor Ting and City Treasurer Garcia liable for a violation of Section
261(w), subparagraph (b), of the Omnibus Election Code.
Issues
The issues to be resolved are:
(1) Whether or not the petition was premature;
(2) Whether or not the acquisition of Lots 5860 and 5881 during the period of the election ban was
covered by the term public works as to be in violation of Section 261 (v) of the Omnibus Election
Code; and
152
(3) Whether or not the issuance of Treasury Warrant No. 0001534514 during the period of the
election ban was in violation of Section 261 (w) of the Omnibus Election Code.
Ruling of the Court
The petition is meritorious.
I
The Petition Was Not Premature
The indispensable elements of a petition for certiorari are: (a) that it is directed against a tribunal,
board or officer exercising judicial or quasi-judicial functions; (b) that such tribunal, board or officer
has acted without or in excess of jurisdiction or with grave abuse of discretion; and (c) that there is
no appeal or any plain, speedy and adequate remedy in the ordinary course of law.[6]
The COMELEC asserts that the plain, speedy and adequate remedy available to the petitioner was to
file a motion for reconsideration vis--vis the assailed resolution, as required in the 1993 COMELEC
Rules of Procedure; and that his omission to do so and his immediately invoking the certiorari
jurisdiction of the Supreme Court instead rendered his petition premature.
We do not sustain the COMELEC.
As a rule, it is necessary to file a motion for reconsideration in the court of origin before invoking
the certiorari jurisdiction of a superior court. Hence, a petition for certiorari will not be entertained
unless the public respondent has been given first the opportunity through a motion for
reconsideration to correct the error being imputed to him.[7]
The rule is not a rigid one, however, for a prior motion for reconsideration is not necessary in some
situations, including the following:
a. Where the order is a patent nullity, as where the court a quo has no jurisdiction;
b. Where the questions raised in the certiorari proceedings have been duly raised and passed
upon by the lower court, or are the same as those raised and passed upon in the lower court;
c. Where there is an urgent necessity for the resolution of the question, and any further delay
would prejudice the interests of the Government or of the petitioner, or the subject matter of the
action is perishable;
d. Where, under the circumstances, a motion for reconsideration would be useless;
e. Where the petitioner was deprived of due process and there is extreme urgency for relief;
f. Where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief
by the trial court is improbable;
g. Where the proceedings in the lower court are a nullity for lack of due process;
h. Where the proceedings were ex parte or in which the petitioner had no opportunity to object;
and
i. Where the issue raised is one purely of law or where public interest is involved.[8]
That the situation of the petitioner falls under the last exception is clear enough. The petitioner
challenges only the COMELECs interpretation of Section 261(v) and (w) of the Omnibus Election
Code. Presented here is an issue purely of law, considering that all the facts to which the
interpretation is to be applied have already been established and become undisputed. Accordingly,
he did not need to first seek the reconsideration of the assailed resolution.
The distinctions between a question of law and a question of fact are well known. There is a
question of law when the doubt or difference arises as to what the law is on a certain state of facts.
Such a question does not involve an examination of the probative value of the evidence presented by
the litigants or any of them. But there is a question of fact when the doubt arises as to the truth or
falsehood of the alleged facts or when the query necessarily invites calibration of the whole
evidence, considering mainly the credibility of witnesses, existence and relevancy of specific
surrounding circumstances, their relation to one another and to the whole, and the probabilities of
the situation.[9]
II
Acquisition of Lots 5860 And 5881
During the Period of the Election Ban,
153

Not Considered as Public Works in Violation
of Sec. 261 (v), Omnibus Election Code
The COMELEC held in its resolution dated February 18, 2008 that:
To be liable for violation of Section 261 (v), supra, four (4) essential elements must concur and they
are:
1. A public official or employee releases, disburses, or expends any public funds;
2. The release, disbursement or expenditure of such funds must be within forty-five days before
regular election;
3. The release, disbursement or expenditure of said public funds is for any and all kinds of public
works; and
4. The release, disbursement or expenditure of the public funds should not cover any exceptions
of Section 261 (v). (Underscoring supplied).
Applying the foregoing as guideline, it is clear that what is prohibited by law is the release,
disbursement or expenditure of public funds for any and all kinds of public works. Public works is
defined as fixed works (as schools, highways, docks) constructed for public use or enjoyment esp.
when financed and owned by the government. From this definition, the purchase of the lots
purportedly to be utilized as cemetery by the City Government of Tuguegarao cannot by any stretch
of imagination be considered as public works, hence it could not fall within the proscription as
mandated under the aforementioned section of the Omnibus Election Code. And since the purchase
of the lots is not within the contemplation of the word public works, the third of the elements stated
in the foregoing guideline is not present in this case. Hence since not all the elements concurred, the
respondents are not liable for violation of Section 261 (v) of the Omnibus Election Code.
The foregoing ratiocination of the COMELEC is correct.
Section 261(v) of the Omnibus Election Code provides as follows:
Section 261. Prohibited acts.- The following shall be guilty of an election offense:
xxx
(v) Prohibition against release, disbursement or expenditure of public funds.- Any public official or
employee including barangay officials and those of government-owned or controlled corporations
and their subsidiaries, who, during forty-five days before a regular election and thirty days before a
special election, releases, disburses or expends any public funds:
(1) Any and all kinds of public works, except the following:
(a) Maintenance of existing and/or completed public works project: Provided, that not more than
the average number of laborers or employees already employed therein during the sixth- month
period immediately prior to the beginning of the forty-five day period before election day shall be
permitted to work during such time: Provided, further, That no additional laborer shall be employed
for maintenance work within the said period of forty-five days;
(b) Work undertaken by contract through public bidding held, or negotiated contract awarded,
before the forty-five day period before election: Provided, That work for the purpose of this section
undertaken under the so-called takay or paquiao system shall not be considered as work by
contract;
(c) Payment for the usual cost of preparation for working drawings, specifications, bills of materials
and equipment, and all incidental expenses for wages of watchmen and other laborers employed for
such work in the central office and field storehouses before the beginning of such period: Provided,
That the number of such laborers shall not be increased over the number hired when the project or
projects were commenced; and
(d) Emergency work necessitated by the occurrence of a public calamity, but such work shall be
limited to the restoration of the damaged facility.
No payment shall be made within five days before the date of election to laborers who have
rendered services in projects or works except those falling under subparagraphs (a), (b), (c), and
(d), of this paragraph.
This prohibition shall not apply to ongoing public works projects commenced before the campaign
period or similar projects under foreign agreements. For purposes of this provision, it shall be the
154
duty of the government officials or agencies concerned to report to the Commission the list of all
such projects being undertaken by them.
(2) The Ministry of Social Services and Development and any other office in other ministries of the
government performing functions similar to the said ministry, except for salaries of personnel and
for such other expenses as the Commission may authorize after due and necessary hearing. Should a
calamity or disaster occur, all releases normally or usually coursed through the said ministries shall
be turned over to, and administered and disbursed by, the Philippine National Red Cross, subject to
the supervision of the Commission on Audit or its representatives, and no candidate or his or her
spouse or member of his family within the second civil degree of affinity or consanguinity shall
participate, directly or indirectly, in the distribution of any relief or other goods to the victims of the
calamity or disaster; and
(3) The Ministry of Human Settlements and any other office in any other ministry of the government
performing functions similar to the said ministry, except for salaries of personnel and for such other
necessary administrative or other expenses as the Commission may authorize after due notice and
hearing.
As the legal provision shows, the prohibition of the release, disbursement or expenditure of public
funds for any and all kinds of public works depends on the following elements: (a) a public official
or employee releases, disburses or spends public funds; (b) the release, disbursement and
expenditure is made within 45 days before a regular election or 30 days before a special election;
and (c) the public funds are intended for any and all kinds of public works except the four situations
enumerated in paragraph (v) of Section 261.
It is decisive to determine, therefore, whether the purchase of the lots for use as a public cemetery
constituted public works within the context of the prohibition under the Omnibus Election Code.
We first construe the term public works − which the Omnibus Election Code does not define − with
the aid of extrinsic sources.
The Local Government Code of 1991 considers public works to be the fixed infrastructures and
facilities owned and operated by the government for public use and enjoyment. According to the
Code, cities have the responsibility of providing infrastructure facilities intended primarily to
service the needs of their residents and funded out of city funds, such as, among others, roads and
bridges; school buildings and other facilities for public elementary and secondary schools; and
clinics, health centers and other health facilities necessary to carry out health services.[10]
Likewise, the Department of Public Works and Highways (DPWH), the engineering and construction
arm of the government, associates public works with fixed infrastructures for the public. In the
declaration of policy pertinent to the DPWH, Sec. 1, Chapter 1, Title V, Book IV, Administrative Code
of 1987, states:
Sec. 1. Declaration of Policy. - The State shall maintain an engineering and construction arm and
continuously develop its technology, for the purposes of ensuring the safety of all infrastructure
facilities and securing for all public works and highways the highest efficiency and the most
appropriate quality in construction. The planning, design, construction and maintenance of
infrastructure facilities, especially national highways, flood control and water resources
development systems, and other public works in accordance with national development objectives,
shall be the responsibility of such an engineering and construction arm. However, the exercise of
this responsibility shall be decentralized to the fullest extent feasible.
The enumeration in Sec. 1, supra − infrastructure facilities, especially national highways, flood
control and water resources development systems, and other public works in accordance with
national development objectives − means that only the fixed public infrastructures for use of the
public are regarded as public works. This construction conforms to the rule of ejusdem generis,
which Professor Black has restated thuswise:[11]
It is a general rule of statutory construction that where general words follow an enumeration of
persons or things, by words of a particular and specific meaning, such general words are not to be
construed in their widest extent, but are to be held as applying only to persons or things of the same
general kind or class as those specifically mentioned. But this rule must be discarded where the
legislative intention is plain to the contrary.
Accordingly, absent an indication of any contrary legislative intention, the term public works as
used in Section 261 (v) of the Omnibus Election Code is properly construed to refer to any building
or structure on land or to structures (such as roads or dams) built by the Government for public use
and paid for by public funds. Public works are clearly works, whether of construction or adaptation
undertaken and carried out by the national, state, or municipal authorities, designed to subserve
some purpose of public necessity, use or convenience, such as public buildings, roads, aqueducts,
parks, etc.; or, in other words, all fixed works constructed for public use.[12]
It becomes inevitable to conclude, therefore, that the petitioner's insistence − that the acquisition of
Lots 5860 and 5881 for use as a public cemetery be considered a disbursement of the public funds
for public works in violation of Section 261(v) of the Omnibus Election Code − was unfounded and
unwarranted.
III
Issuance of the Treasury Warrant
During the Period of the Election Ban
Violated Section 261 (w), Omnibus Election Code
Section 261(w) of the Omnibus Election Code reads thus:
155
xxx
(w) Prohibition against construction of public works, delivery of materials for public works and
issuance of treasury warrants and similar devices.- During the period of forty five days preceding a
regular election and thirty days before a special election, any person who: (a) undertakes the
construction of any public works, except for projects or works exempted in the preceding
paragraph; or (b) issues, uses or avails of treasury warrants or any device undertaking future
delivery of money, goods or other things of value chargeable against public funds.
Grave abuse of discretion is present when there is a capricious and whimsical exercise of judgment
as is equivalent to lack of jurisdiction, such as where the power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to
amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at
all in contemplation of law.[18]

xxx WHEREFORE, WE grant the petition for certiorari and set aside the resolution dated February 18,
2008 issued in E.O. Case No. 06-14 by the Commission of Elections en banc.

The OSG posits that the foregoing provision is violated in either of two ways: (a) by any person who,
within 45 days preceding a regular election and 30 days before a special election, undertakes the The Commission on Elections is ordered to file the appropriate criminal information against
construction of any public works except those enumerated in the preceding paragraph; or (b) by respondents City Mayor Randolph S. Ting and City Treasurer Salvacion Garcia of Tuguegarao City
any person who issues, uses or avails of treasury warrants or any device undertaking future for violation of Section 261 (w), subparagraph (b), of the Omnibus Election Code.
delivery of money, goods or other things of value chargeable against public funds within 45 days
preceding a regular election and 30 days before a special election.

Costs of suit to be paid by the private respondents.

We concur with the OSGs position.

SO ORDERED.

Section 261 (w) covers not only one act but two, i.e., the act under subparagraph (a) above and that
under subparagraph (b) above. For purposes of the prohibition, the acts are separate and distinct,
considering that Section 261(w) uses the disjunctive or to separate subparagraphs (a) and (b). In
legal hermeneutics, or is a disjunctive that expresses an alternative or gives a choice of one among
two or more things.[13] The word signifies disassociation and independence of one thing from
another thing in an enumeration. It should be construed, as a rule, in the sense that it ordinarily
implies as a disjunctive word.[14] According to Black,[15] too, the word and can never be read as or,
or vice versa, in criminal and penal statutes, where the rule of strict construction prevails.
Consequently, whether or not the treasury warrant in question was intended for public works was
even of no moment in determining if the legal provision was violated.

There was a probable cause to believe that Section 261(w), subparagraph (b), of the Omnibus
Election Code was violated when City Mayor Ting and City Treasurer Garcia issued Treasury
Warrant No. 0001534514 during the election ban period. For this reason, our conclusion that the
COMELEC en banc gravely abused its discretion in dismissing E.O. Case No. 06-14 for lack of merit is
inevitable and irrefragable.

True, the COMELEC, as the body tasked by no less than the 1987 Constitution to investigate and
prosecute violations of election laws,[16] has the full discretion to determine whether or not an
election case is to be filed against a person and, consequently, its findings as to the existence of
probable cause are not subject to review by courts. Yet, this policy of non-interference does not
apply where the COMELEC, as the prosecuting or investigating body, was acting arbitrarily and
capriciously, like herein, in reaching a different but patently erroneous result.[17] The COMELEC
was plainly guilty of grave abuse of discretion.
156
G.R. No. 199082 July 23, 2013
JOSE MIGUEL T. ARROYO, Petitioner,
vs.
DEPARTMENT OF JUSTICE; COMMISSION ON ELECTIONS; HON. LEILA DE LIMA, in her capacity
as Secretary of the Department of Justice; HON. SIXTO BRILLANTES, JR., in his capacity as
Chairperson of the Commission on Elections; and the JOINT DOJ-COMELEC PRELIMINARY
INVESTIGATION COMMITTEE and FACT-FINDING TEAM, Respondents.
x-----------------------x
G.R. No. 199085
BENJAMIN S. ABALOS, SR., Petitioner,
vs.
HON. LEILA DE LIMA, in capacity as Secretary of Justice; HON. SIXTO S. BRILLANTES, JR., in his
capacity as COMELEC Chairperson; RENE V. SARMIENTO, LUCENITO N. TAGLE, ARMANDO V.
VELASCO, ELIAS R. YUSOPH, CHRISTIAN ROBERT S. LIM AND AUGUSTO C. LAGMAN, in their
capacity as COMELEC COMMISSIONERS; CLARO A. ARELLANO, GEORGE C. DEE, JACINTO G.
ANG, ROMEO B. FORTES AND MICHAEL D. VILLARET, in their capacity as CHAIRPERSON AND
MEMBERS, RESPECTIVELY, OF THE JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION
COMMITTEE ON THE 2004 AND 2007 ELECTION FRAUD, Respondents.
x-----------------------x
G.R. No. 199118
GLORIA MACAPAGAL-ARROYO, Petitioner,
vs.
COMMISSION ON ELECTIONS, represented by Chairperson Sixto S. Brillantes, Jr.,
DEPARTMENT OF JUSTICE, represented by Secretary Leila M. De Lima, JOINT DOJ-COMELEC
PRELIMINARY INVESTIGATION COMMITTEE, SENATOR AQUILINO M. PIMENTEL III, and DOJ-
COMELEC FACT FINDING TEAM, Respondents.
RESOLUTION
PERALTA, J.:
For resolution are the separate motions for reconsideration filed by movants Gloria Macapagal
Arroyo (GMA)1 in G.R. No. 199118 and Jose Miguel T. Arroyo (Mike Arroyo )2 in G.R. No. 199082
praying that the Court take a second look at our September 18, 2012 Decision3 dismissing their
petitions and supplemental petitions against respondents Commission on Elections (Comelec), the
Department of Justice (DOJ), Senator Aquilino M. Pimentel III (Senator Pimentel), Joint DOJ-Comelec
Preliminary Investigation Committee (Joint Committee) and DOJ-Comelec Fact-Finding Team (Fact-
Finding Team), et al.
For a better perspective, we briefly state the relevant factual and procedural antecedents as found
by the Court in the assailed decision, to wit:
On August 15, 2011, the Comelec and the DOJ issued Joint Order No. 001-2011 creating and
constituting a Joint Committee and Fact-Finding Team (referred to as Joint Panel) on the 2004 and
2007 National Elections electoral fraud and manipulation cases. The Joint Committee was mandated
to conduct the necessary preliminary investigation on the basis of the evidence gathered and the
charges recommended by the Fact-Finding Team. The Fact-Finding Team, on the other hand, was
created for the purpose of gathering real, documentary, and testimonial evidence which can be
utilized in the preliminary investigation to be conducted by the Joint Committee. Pursuant to Section
74 of the Joint Order, on August 23, 2011, the Joint Committee promulgated its Rules of Procedure.
In its Initial Report5 dated October 20, 2011, the Fact-Finding Team concluded that manipulation of
the results in the May 14, 2007 senatorial elections in the provinces of North and South Cotabato,
and Maguindanao was indeed perpetrated.6 The Fact-Finding Team recommended, among others,
that petitioner Benjamin S. Abalos, Sr. (Abalos) be subjected to preliminary investigation for
electoral sabotage for conspiring to manipulate the election results in North and South Cotabato;
that GMA and Abalos be subjected to another preliminary investigation for manipulating the
election results in Maguindanao;7 and, that Mike Arroyo be subjected to further investigation.8 The
case was docketed as DOJ-Comelec Case No. 001-2011.
Meanwhile, on October 17, 2011, Senator Pimentel filed a ComplaintAffidavit9 for Electoral
Sabotage against petitioners and twelve others, and several John Does and Jane Does. The case was
docketed as DOJ-Comelec Case No. 002-2011.
On October 24, 2011, the Joint Committee issued two subpoenas against petitioners in DOJ-Comelec
Case Nos. 001-2011 and 002-2011.10 On November 3, 2011, petitioners, through counsel, appeared
before the Joint Committee11 and respondents therein were ordered to submit their Counter-
Affidavits by November 14, 2011.12
Thereafter, petitioners filed before the Court separate Petitions for Certiorari and Prohibition with
Prayer for the Issuance of a Temporary Restraining Order (TRO) and/or Writ of Preliminary
Injunction assailing the creation of the Joint Panel.13 The petitions were eventually consolidated.
On November 14, 2011, Mike Arroyo filed a Motion to Defer Proceedings14 before the Joint
Committee, in view of the pendency of his petition before the Court. On the same day, GMA filed
before the Joint Committee an Omnibus Motion Ad Cautelam15 to require Senator Pimentel to
furnish her with documents referred to in his complaint-affidavit and for the production of election
documents as basis for the charge of electoral sabotage. GMA prayed that she be allowed to file her
counter-affidavit within ten (10) days from receipt of the requested documents.16 Petitioner
Abalos, for his part, filed a Motion to Suspend Proceedings (Ex Abundante Ad Cautelam),17 in view
of the pendency of his petition brought before the Court.
In an Order18 dated November 15, 2011, the Joint Committee denied the aforesaid motions of
petitioners. GMA, subsequently, filed a motion for reconsideration.19
On November 16, 2011, the Joint Committee promulgated a Joint Resolution which was later
indorsed to the Comelec.20 On November 18, 2011, the Comelec en banc issued a Resolution21
approving and adopting the Joint Resolution subject to modifications. The Comelec resolved, among
others, that an information for electoral sabotage be filed against GMA and Abalos, while the charges
against Mike Arroyo be dismissed for insufficiency of evidence.
On even date, pursuant to the above Resolution, the Comelec’s Law Department filed with the
Regional Trial Court (RTC), Pasay City, an Information against petitioner GMA, Governor Andal
Ampatuan, Sr., and Atty. Lintang H. Bedol, for violation of Section 42(b)(3) of Republic Act (RA) No.
9369, amending Section 27 (b) of RA 6646, docketed as Criminal Case No. RPSY-11-04432-CR.22
The case was raffled to Branch 112 and the corresponding Warrant of Arrest was issued which was
served on GMA on the same day.23
On November 18, 2011, GMA filed with the RTC an Urgent Omnibus Motion Ad Cautelam24 with
leave to allow the Joint Committee to resolve the motion for reconsideration filed by GMA, to defer
issuance of a warrant of arrest and a hold departure order, and to proceed to judicial determination
of probable cause. She, likewise, filed with the Comelec a Motion to Vacate Ad Cautelam25 praying
that its Resolution be vacated for being null and void. The RTC, nonetheless, issued a Warrant for
her arrest which was duly served. GMA was later arraigned and she entered a plea of "not guilty."
157
She was, for some time, on hospital arrest but was able to obtain temporary liberty when her
motion for bail was granted. At present, she is again on hospital arrest by virtue of a warrant issued
in another criminal case.
On September 18, 2012, the Court rendered the assailed Decision, the dispositive portion of which
reads:
WHEREFORE, premises considered, the petitions and supplemental petitions are DISMISSED.
Comelec Resolution No. 9266 dated August 2, 2011, Joint Order No. 001-2011 dated August 15,
2011, and the Fact- Finding Team’s Initial Report dated October 20, 2011, are declared VALID.
However, the Rules of Procedure on the Conduct of Preliminary Investigation on the Alleged
Election Fraud in the 2004 and 2007 National Elections is declared INEFFECTIVE for lack of
publication.
In view of the constitutionality of the Joint Panel and the proceedings having been conducted in
accordance with Rule 112 of the Rules on Criminal Procedure and Rule 34 of the Comelec Rules of
Procedure, the conduct of the preliminary investigation is hereby declared VALID.
Let the proceedings in the Regional Trial Court of Pasay City, Branch 112, where the criminal cases
for electoral sabotage against petitioners GMA and Abalos are pending, proceed with dispatch.
SO ORDERED.26
Hence, these motions for reconsideration.
Issues
Mike Arroyo reiterates his arguments on the independence of the Comelec as basis in nullifying the
subject joint DOJ-Comelec resolutions. Echoing Justice Arturo Brion in his Dissenting and
Concurring Opinion,27 Mike Arroyo insists that the creation of the Joint Panel undermines the
decisional independence of the Comelec.28
Mike Arroyo also maintains that the DOJ should conduct preliminary investigation only when
deputized by the Comelec but not exercise concurrent jurisdiction.29 Finally, as has been repeatedly
pointed out in his earlier pleadings before the Court, Mike Arroyo claims that the proceedings
involving the electoral sabotage case were rushed because of pressures from the executive branch
of the government.30
For her part, GMA claims that in availing of the procedural remedies available, she merely exercised
her earnest efforts to defend herself and should not have been deemed by the Court as acts which
purportedly tend to demonstrate that she either waived or forfeited her right to submit her counter-
affidavit and countervailing evidence.31 Citing several cases decided by the Court, she likewise
faults the Court in not upholding her right to ask for additional time within which to submit her
counter-affidavit and countervailing evidence.32 GMA highlights that the subject Comelec
Resolution creating the Joint Panel is different from the previous Comelec resolutions requesting
the DOJ Secretary to assign prosecutors to assist the Comelec, as the latter emphasize the role of the
DOJ as deputized agency in the conduct of preliminary investigation. She maintains that it is the
Comelec and not the Joint Committee that has the primary, if not exclusive, authority to conduct
preliminary investigation of election cases.33
In their Consolidated Comment,34 respondents defend the creation of the Joint Committee and
argue that it does not undermine the independence of the Comelec as a constitutional body because
it is still the Comelec that ultimately determines probable cause.35 As to the conduct of the
preliminary investigation, respondents maintain that no rights were violated as GMA was afforded
the opportunity to defend herself, submit her counter-affidavit and other countervailing
evidence.36 They, thus, consider GMA’s claim of availing of the remedial measures as "delaying
tactics" employed to thwart the investigation of charges against her by the Joint Committee.37
The Court’s Ruling
Clearly from the above discussion, movants raise issues that have been thoroughly explained by the
Court in the assailed decision. The issues were all addressed and the explanation was exhaustive,
thus, we find no reason to disturb the Court’s conclusions.
At any rate, if only to address the motions of the movants herein and to put an end to the questions
attached to the creation of the Joint Panel and, consequently, to the performance of their assigned
tasks, we hereby reiterate our findings and conclusions made in the assailed decision.
This is not the first time that the Court is confronted with the issue of whether the Comelec has the
exclusive power to investigate and prosecute cases of violations of election laws. In Barangay
Association for National Advancement and Transparency (BANAT) Party-List v. Commission on
Elections,38 the constitutionality of Section 4339 of RA 936940 had already been raised by
petitioners therein and addressed by the Court. While recognizing the Comelec’s exclusive power to
investigate and prosecute cases under Batas Pambansa Bilang 881 or the Omnibus Election Code,
the Court pointed out that the framers of the 1987 Constitution did not have such intention. This
exclusivity is thus a legislative enactment that can very well be amended by Section 43 of RA 9369.
Therefore, under the present law, the Comelec and other prosecuting arms of the government, such
as the DOJ, now exercise concurrent jurisdiction in the investigation and prosecution of election
offenses.
Indeed, as aptly pointed out by GMA, there is a discrepancy between Comelec Resolution No.
346741 dated January 12, 2001 and Joint Order No. 001-2011, dated August 15, 2011, creating and
constituting a Joint Committee and Fact-Finding Team on the 2004 and 2007 National Elections
electoral fraud and manipulation cases. However, GMA seemed to miss the date when these two
resolutions were promulgated by the Comelec. It is noteworthy that Comelec Resolution No. 3467
was issued when Section 265 of the Omnibus Election Code was still effective, while Joint Order No.
001-2011 as well as Comelec Resolution Nos. 873342 and 905743 mentioned in the assailed
decision but missed out by GMA in her motion, were issued during the effectivity of Section 43 of RA
9369, giving the Comelec and other prosecuting arms of the government the concurrent jurisdiction
to investigate and prosecute election offenses. This amendment paved the way for the discrepancy.
In Comelec Resolution No. 3467, the Comelec maintained the continuing deputation of prosecutors
and the Comelec Law Department was tasked to supervise the investigatory and prosecutory
functions of the task force pursuant to the mandate of the Omnibus Election Code. However, with
the amendment, the Comelec likewise changed the tenor of the later resolutions to reflect the new
mandate of the Comelec and other prosecuting arms of the government now exercising concurrent
jurisdiction. Thus, the Comelec Law Department and the Office of the Chief State Prosecutor of the
DOJ were tasked to jointly supervise the investigatory and prosecutory functions of the Comelec-
DOJ Task Force. Considering, therefore, that the later resolutions, including Joint Order No. 001-
2011, were issued pursuant to Section 43 of RA 9369 amending Section 265 of BP 881 which was
declared "constitutional" in Banat, there is no reason for us to declare otherwise. To maintain the
previous role of other prosecuting arms of the government as mere deputies despite the
amendment would mean challenging Section 43 of RA 9369 anew which has already been settled in
Banat.
To be sure, the creation of a Joint Committee is not repugnant to the concept of "concurrent
jurisdiction" authorized by the amendatory law. As we explained in our September 18, 2012
Decision:
x x x The doctrine of concurrent jurisdiction means equal jurisdiction to deal with the same subject
matter. Contrary to the contention of the petitioners, there is no prohibition on simultaneous
exercise of power between two coordinate bodies. What is prohibited is the situation where one
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files a complaint against a respondent initially with one office (such as the Comelec) for preliminary
investigation which was immediately acted upon by said office and the re-filing of substantially the
same complaint with another office (such as the DOJ). The subsequent assumption of jurisdiction by
the second office over the cases filed will not be allowed. Indeed, it is a settled rule that the body or
agency that first takes cognizance of the complaint shall exercise jurisdiction to the exclusion of the
others.
xxxx
None of these problems would likely arise in the present case. The Comelec and the DOJ themselves
agreed that they would exercise their concurrent jurisdiction jointly. Although the preliminary
investigation was conducted on the basis of two complaints – the initial report of the Fact-Finding
Team and the complaint of Senator Pimentel – both complaints were filed with the Joint Committee.
Consequently, the complaints were filed with and the preliminary investigation was conducted by
only one investigative body. Thus, we find no reason to disallow the exercise of concurrent
jurisdiction jointly by those given such authority. This is especially true in this case given the
magnitude of the crimes allegedly committed by petitioners. The joint preliminary investigation also
serves to maximize the resources and manpower of both the Comelec and the DOJ for the prompt
disposition of the cases.44
Notwithstanding the grant of concurrent jurisdiction, the Comelec and the DOJ nevertheless
included a provision in the assailed Joint Order whereby the resolutions of the Joint Committee
finding probable cause for election offenses shall still be approved by the Comelec in accordance
with the Comelec Rules of Procedure.45 With more reason, therefore, that we cannot consider the
creation of the Joint Committee as an abdication of the Comelec’s independence enshrined in the
1987 Constitution.
Finally, we focus on the validity of the preliminary investigation conducted by the Joint Committee.
The procedure in conducting the preliminary investigation is governed by Rule 112 of the Revised
Rules on Criminal Procedure and Rule 34 of the Comelec Rules of Procedure. Under both Rules,46
the respondent shall submit his counter-affidavit and that of his witnesses and other supporting
documents relied upon for his defense, within ten (10) days from receipt of the subpoena, with the
complaint and supporting affidavits and documents.47 Also in both Rules, respondent is given the
right to examine evidence, but such right of examination is limited only to the documents or
evidence submitted by complainants which she may not have been furnished and to copy them at
her expense.48
As to the alleged denial of GMA’s right to examine documents, we maintain that no right was
violated in view of the limitation of such right as set forth above. We reiterate our explanation in the
assailed decision, to wit:
While it is true that Senator Pimentel referred to certain election documents which served as bases
in the allegations of significant findings specific to the protested municipalities involved, there were
no annexes or attachments to the complaint filed. As stated in the Joint Committee’s Order dated
November 15, 2011 denying GMA’s Omnibus Motion Ad Cautelam, Senator Pimentel was ordered to
furnish petitioners with all the supporting evidence. However, Senator Pimentel manifested that he
was adopting all the affidavits attached to the Fact-Finding Team’s Initial Report. Therefore, when
GMA was furnished with the documents attached to the Initial Report, she was already granted the
right to examine as guaranteed by the Comelec Rules of Procedure and the Rules on Criminal
Procedure. Those were the only documents submitted by the complainants to the Committee. If
there are other documents that were referred to in Senator Pimentel’s complaint but were not
submitted to the Joint Committee, the latter considered those documents unnecessary at that point
(without foreclosing the relevance of other evidence that may later be presented during the trial) as
the evidence submitted before it were considered adequate to find probable cause against her. x x
x491âwphi1
Neither was GMA’s right violated when her motion for extension of time within which to submit her
counter-affidavit and countervailing evidence was consequently denied. The Rules use the term
"shall" in requiring the respondent to submit counter-affidavit and other countervailing evidence
within ten (10) days from receipt of the subpoena. It is settled that the use of the word "shall" which
is a word of command, underscores the mandatory character of the rule.50 As in any other rule,
though, liberality in the application may be allowed provided that the party is able to present a
compelling justification for the non-observance of the mandatory rules. In the 2008 Revised Manual
for Prosecutors, investigating prosecutors allow or grant motions or requests for extension of time
to submit counter-affidavits when the interest of justice demands that respondent be given
reasonable time or sufficient opportunity to engage the services of counsel; examine voluminous
records submitted in support of the complaint or undertake research on novel, complicated or
technical questions or issues of law and facts of the case.51
In this case, GMA claimed that she could not submit her counteraffidavit within the prescribed
period because she needed to examine documents mentioned in Senator Pimentel’s complaint-
affidavit. It appeared, however, that said documents were not submitted to the Joint Committee and
the only supporting documents available were those attached to the Initial Report of the Fact-
Finding Team. Admittedly, GMA was furnished those documents. Thus, at the time she asked for the
extension of time within which to file her counter-affidavit, she very well knew that the documents
she was asking were not in the record of the case. Obviously, she was not furnished those
documents because they were not submitted to the Joint Committee. Logically, she has no right to
examine said documents. We cannot, therefore, fault the Joint Committee in consequently denying
her motion for extension to file counter-affidavit as there was no compelling justification for the
non-observance of the period she was earlier required to follow.
And as we held in the assailed decision:
There might have been overzealousness on the part of the Joint Committee in terminating the
investigation, endorsing the Joint Resolution to the Comelec for approval, and in filing the
information in court.
However, speed in the conduct of proceedings by a judicial or quasijudicial officer cannot per se be
instantly attributed to an injudicious performance of functions. The orderly administration of justice
remains the paramount consideration with particular regard to the peculiar circumstances of each
case. To be sure, petitioners were given the opportunity to present countervailing evidence. Instead
of complying with the Joint Committee’s directive, several motions were filed but were denied by
the Joint Committee. Consequently, petitioners’ right to submit counter-affidavit and countervailing
evidence was forfeited. Taking into account the constitutional right to speedy disposition of cases
and following the procedures set forth in the Rules on Criminal Procedure and the Comelec Rules of
Procedure, the Joint Committee finally reached its conclusion and referred the case to the Comelec.
The latter, in turn, performed its task and filed the information in court. Indeed, petitioners were
given the opportunity to be heard. They even actively participated in the proceedings and in fact
filed several motions before the Joint Committee. Consistent with the constitutional mandate of
speedy disposition of cases, unnecessary delays should be avoided.52
Finally, in our assailed decision, we already took judicial notice that not only did GMA enter a plea of
"not guilty," she also filed a Motion for Bail and after due hearing, it was granted. Apparently, she
benefited from the RTC Order giving her temporary liberty. In filing the motion before the RTC and
actively participating therein, she has chosen to seek judicial remedy before the RTC where the
electoral sabotage case is pending instead of the executive remedy of going back to the Joint
Committee for the submission of her counter-affidavit and countervailing evidence. Besides, as
thoroughly discussed in the assailed decision, the irregularity or even the absence of preliminary
investigation does not impair the validity of the information filed against her.
WHEREFORE, premises considered, the Motions for Reconsideration are DENIED for lack of merit.
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