Election Laws

SUNGA vs. COMELEC (288 SCRA 76, G.R. No. 125629, March 25, 1998)......................................... 2 PENERA vs. COMELEC (599 SCRA 609, G.R. No. 181613, November 25, 2009) .................................. 5 RULLODA vs. COMELEC (395 SCRA 535, G.R. No. 154198, January 20, 2003) .................................... 10 SULIGUIN vs. COMELEC (485 SCRA 219, G.R. No. 166046, March 23, 2006)....................................... 11 PACANAN vs. COMELEC (G.R. No. 186224, August 25, 2009, 597 SCRA 189) ...................................... 15 AGUILAR vs. COMELEC (G.R. No. 185140, June 30, 2009, 591 SCRA 491) ...................................... 19 TAGUIAM vs. COMELEC (594 SCRA 474, G.R. No. 184801, July 30, 2009) .......................................... 23 BINCE, JR. vs. COMELEC (242 SCRA 273, G.R. Nos. 111624-25, March 9, 1995) ........................... 25 LIBANAN vs. HRET (283 SCRA 520, G.R. No. 129783, December 22, 1997) ................................ 31 MARUHOM vs. COMELEC (331 SCRA 473, G.R. No. 139357, May 5, 2000) ..................................... 36 PEA vs. HRET (270 SCRA 340, G.R. No. 123037, March 21, 1997) .................................................... 42

Election Laws SUNGA vs. COMELEC (288 SCRA 76, G.R. No. 125629, 1 March 25, 1998)

This petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure seeks to annul and set aside, for having been rendered with grave abuse of discretion amounting to lack or excess of jurisdiction, the 17 May 1996 Resolution of the COMELEC 2nd Division in Sunga v. Trinidad, SPA No. 95-213 1 dismissing the petition for disqualification against private respondent Ferdinand B. Trinidad pursuant to COMELEC Resolution No. 2050 promulgated 3 November 1988, as amended by COMELEC Resolution No. 2050-A promulgated 8 August 1990, and 30 July 1996 Resolution of the COMELEC En Banc affirming the 17 May 1996 Resolution of the COMELEC 2nd Division.

any equipment, vehicle owned by the government or any of its political subdivisions. The Law Department likewise recommended to recall and revoke the proclamation of Ferdinand B. Trinidad as the duly elected Mayor of Iguig, Cagayan; proclaim Manuel C. Sunga as the duly elected Mayor; and, direct Sunga to take his oath and assume the duties and functions of the office.

The COMELEC En Banc approved the findings of the Law Department and directed the filing of the corresponding informations in the Regional Trial Court against Trinidad. Accordingly, four (4) informations 7 for various elections offenses were filed in the Regional Trial Court of Tuguegarao, Cagayan. The disqualification case, on the other hand, was referred to the COMELEC 2nd Division for hearing.

Petitioner Manuel C. Sunga was one of the candidates for the position of Mayor in the Municipality of Iguig, Province of Cagayan, in the 8 May 1995 elections. Private respondent Ferdinand B. Trinidad, then incumbent mayor, was a candidate for re-election in the same municipality.

On 2 May 1996 Sunga filed a Second Urgent Motion to Suspend the Effects and Annul the Proclamation with Urgent Motion for Early Resolution of the Petition. But in its 17 May 1996 Resolution, the COMELEC 2nd Division dismissed the petition for disqualification, holding in its Resolution No. 2050 that

On 22 April 1995 Sunga filed with the COMELEC a lettercomplaint 2 for disqualification against Trinidad, accusing him of using three (3) local government vehicles in his campaign, in violation of Sec. 261, par. (o), Art. XXII, of BP Blg. 881 (Omnibus Election Code, as amended). On 7 May 1995, Sunga filed another letter-complaint 3 with the COMELEC charging Trinidad this time with violation of Sec. 261, par. (e) (referring to threats, intimidation, terrorism or other forms of coercion) of the Omnibus Election Code, in addition to the earlier violation imputed to him in the first letter-complaint. This was followed by an Amended Petition 4 for disqualification consolidating the charges in the two (2) letters-complaint, including vote buying, and providing more specific details of the violations committed by Trinidad. The case was docketed as SPA No. 95-213.

1. Any complaint for disqualification of a duly registered candidate based upon any of the grounds specifically enumerated under Sec. 68 of the Omnibus Election Code, filed directly with the Commission before an election in which respondent is a candidate, shall be inquired into by the Commission for the purpose of determining whether the acts complained of have in fact been committed . . . .

In case such complaint was not resolved before the election, the Commission may motu propio, or on motion of any of the parties, refer the complaint to the Law Department of the Commission as the instrument of the latter in the exercise of its exclusive power to conduct a preliminary investigation of all cases involving criminal infractions of the election laws . . . .

In a Minute Resolution dated 25 May 1995, 5 the COMELEC 2nd Division referred the complaint to its Law Department for investigation. Hearings were held wherein Sunga adduced evidence to prove his accusations. Trinidad, on the other hand, opted not to submit any evidence at all.

Meanwhile, the election results showed that Trinidad garnered the highest number of votes, while Sunga trailed second.

2. Any complaint for disqualification based on Sec. 68 of the Omnibus Election Code in relation to Sec. 6 of Republic Act No. 6646 filed after the election against a candidate who has already been proclaimed as a winner shall be dismissed as a disqualification case. However, the complaint shall be referred for preliminary investigation to the Law Department of this Commission.

On 10 May 1995 Sunga moved for the suspension of the proclamation of Trinidad. However, notwithstanding the motion, Trinidad was proclaimed the elected mayor, prompting Sunga to file another motion to suspend the effects of the proclamation. Both motions were not acted upon by the COMELEC 2nd Division.

On 28 June 1995 the COMELEC Law Department submitted its Report 6 to the COMELEC En Banc recommending that Trinidad be charged in court for violation of the following penal provisions of the Omnibus Election Code: (a) Sec. 261, par. (a), on vote buying; (b) Sec. 261, par. (e), on threats, intimidation, terrorism or other forms of coercion; and, (c) Sec. 261, par. (o), on use of
1

Where a similar complaint is filed after election but before proclamation of the respondent candidate, the complaint shall, nevertheless, be dismissed as a disqualification case. However, the complaint shall be referred for preliminary investigation to the Law Department. If, before proclamation, the Law Department makes a prima facie finding of guilt and the corresponding information has been filed with the appropriate trial court, the complainant may file a petition for suspension of the proclamation of the respondent with the court before which the criminal case is pending and said court may order the suspension of the proclamation if the evidence of guilt is strong.

As interpreted in the case of Silvestre v. Duavit, SPA 94-003, Resolution No. 2050 provides for the outright dismissal of the

Election Laws disqualification case in three cases: (1) The disqualification case was filed before the election but remains unresolved until after the election; (2) The disqualification case was filed after the election and before the proclamation of winners; and (3) The disqualification case was filed after election and after proclamation.

The issue in this case is whether the COMELEC committed grave abuse of discretion when it dismissed the disqualification case against private respondent Trinidad.

The petition is partly meritorious.

If the instant case is deemed to have been filed upon receipt by the COMELEC of the letter-complaint on April 26 1995, it nevertheless remained pending until after the election. If it is deemed to have been filed upon filing of the amended petition on 11 May 1995, it was clearly filed after the election. In either case, Resolution No. 2050 mandates the dismissal of the disqualification case.

We find private respondent's arguments on the propriety of the letters-complaint puerile. COMELEC itself impliedly recognized in its Resolution that the petition was filed before the 8 May 1995 election in the form of letters-complaint, thus

His motion for reconsideration having been denied by the COMELEC En Banc, Sunga filed the instant petition contending that the COMELEC committed grave abuse of discretion in dismissing the petition for disqualification in that: first, Sec. 6 of RA No. 6646 requires the COMELEC to resolve the disqualification case even after the election and proclamation, and the proclamation and assumption of office by Trinidad did not deprive the COMELEC of its jurisdiction; second COMELEC Resolution No. 2050 is null and void as it contravenes Sec. 6 of R.A. No. 6646; third, the fact that COMELEC authorized the filing of four (4) informations against private respondent for violation of the penal provisions of the Omnibus Election Code shows more than sufficient and substantial evidence to disqualify Trinidad, and he should have been so disqualified; and fourth, since Trinidad was a disqualified candidate, it is as if petitioner was the only candidate entitled to be proclaimed as the duly elected mayor.

This case originally came to the attention of this Commission on 26 April 1995 in a form of letter from petitioner accusing respondent of utilizing government properties in his campaign and praying for the latter's immediate disqualification. Another letter dated 7 May 1995 and addressed to the COMELEC Regional Director of Region II reiterated petitioner's prayer while alleging that respondent and his men committed acts of terrorism and violated the gun ban. Finally, on 11 May 1995, an Amended Petition was filed with the Clerk of Court of the Commission containing substantially the same allegations as the previous letters but supported by affidavits and other documentary evidence.

In his 17-page Comment and Manifestation dated 3 December 1996, the Solicitor General concurred with petitioner's arguments.

That the Amended Petition was filed only on 11 May 1995, or after the elections, is of no consequence. It was merely a reiteration of the charges filed by petitioner against private respondent on 26 April 1995 and 7 May 1995 or before the elections. Consequently, the Amended Petition retroacted to such earlier dates. An amendment which merely supplements and amplifies facts originally alleged in the complaint relates back to the date of the commencement of the action and is not barred by the statute of limitations which expired after the service of the original complaint. 9

Private respondent, on the other hand, postulates inter alia that Sunga's letters-complaint of 22 April 1995 and 7 May 1995 were not petitions for disqualification because no filing fee was paid by Sunga; the letters-complaint were never docketed by the COMELEC; and, no summons was ever issued by the COMELEC and private respondent was not required to answer the letters-complaint. It was only on 13 May 1995 when petitioner filed the so-called Amended Petition, docketed for the first time as SPA No. 95-213. Thus, the COMELEC correctly dismissed the disqualification case for having been filed only after the 8 May 1995 elections and the proclamation of private respondent on 10 May 1995, pursuant to COMELEC Resolution No. 2050.

COMELEC filed its Comment on 21 April 1997 relying heavily on Resolution No. 2050 and the Silvestre v. Duavit 8 ruling in support of the dismissal of the disqualification case. The COMELEC insisted that the outright dismissal of a disqualification case was warranted under any of the following circumstances: (a) the disqualification case was filed before the election but was still pending (unresolved) after the election; (b) the disqualification case was filed after the election but before the proclamation of the winner; and, (c) the disqualification case was filed after the election and after the proclamation of the winner.

The fact that no docket fee was paid therefor was not a fatal procedural lapse on the part of petitioner. Sec. 18, Rule 42, of the COMELEC Rules of Procedure provides, "If the fees above described are not paid, the Commission may refuse to take action thereon until they are paid and may dismiss the action or proceeding." The use of the word "may" indicates that it is permissive only and operates to confer a discretion on the COMELEC whether to entertain the petition or not in case of non-payment of legal fees. That the COMELEC acted on and did not dismiss the petition outright shows that the non-payment of fees was not considered by it as a legal obstacle to entertaining the same. Be that as it may, the procedural defects have been cured by the subsequent payment of docket fees, and private respondent was served with summons, albeit belatedly, and he submitted his answer to the complaint. Hence, private respondent has no cause to complain that no docket fee was paid, no summons served upon him, or that he was not required to answer.

Neither do we agree with the conclusions of the COMELEC. We discern nothing in COMELEC Resolution No. 2050 declaring, ordering or directing the dismissal of a disqualification case filed before the election but which remained unresolved after the election. What the Resolution mandates in such a case is for the Commission to refer the complaint to its Law Department for investigation to determine whether the acts complained of have in fact been committed by the candidate sought to be

Election Laws disqualified. The findings of the Law Department then become the basis for disqualifying the erring candidate. This is totally different from the other two situations contemplated by Resolution No. 2050, i.e., a disqualification case filed after the election but before the proclamation of winners and that filed after the election and the proclamation of winners, wherein it was specifically directed by the same Resolution to be dismissed as a disqualification case.

disqualification case. In Aguam v. COMELEC 12 this Court held

Moreover, Resolution No. 2050 as interpreted in Silvestre v. Duavit infringes on Sec. 6 of RA No. 6646, 10 which provides:

Sec. 6. Effects 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 (emphasis supplied).

Time and again this Court has given its imprimatur on the principle that COMELEC is with authority to annul any canvass and proclamation which was illegally made. The fact that a candidate proclaimed has assumed office, we have said, is no bar to the exercise of such power. It of course may not be availed of where there has been a valid proclamation. Since private respondent's petition before the COMELEC is precisely directed at the annulment of the canvass and proclamation, we perceive that inquiry into this issue is within the area allocated by the Constitution and law to COMELEC . . . 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 must be emphasized that the purpose of a disqualification proceeding is to prevent the candidate from running or, if elected, from serving, or to prosecute him for violation of the election laws. Obviously, the fact that a candidate has been proclaimed elected does not signify that his disqualification is deemed condoned and may no longer be the subject of a separate investigation.

Clearly, the legislative intent is that the COMELEC should continue the trial and hearing of the disqualification case to its conclusion, i.e., until judgment is rendered thereon. The word "shall" signifies that this requirement of the law is mandatory, operating to impose a positive duty which must be enforced. 11 The implication is that the COMELEC is left with no discretion but to proceed with the disqualification case even after the election. Thus, in providing for the outright dismissal of the disqualification case which remains unresolved after the election, Silvestre v. Duavit in effect disallows what RA No. 6646 imperatively requires. This amounts to a quasi-judicial legislation by the COMELEC which cannot be countenanced and is invalid for having been issued beyond the scope of its authority. Interpretative rulings of quasi-judicial bodies or administrative agencies must always be in perfect harmony with statutes and should be for the sole purpose of carrying their general provisions into effect. By such interpretative or administrative rulings, of course, the scope of the law itself cannot be limited. Indeed, a quasi-judicial body or an administrative agency for that matter cannot amend an act of Congress. Hence, in case of a discrepancy between the basic law and an interpretative or administrative ruling, the basic law prevails.

It is worth to note that an election offense has criminal as well as electoral aspects. Its criminal aspect involves the ascertainment of the guilt or innocence of the accused candidate. Like in any other criminal case, it usually entails a full-blown hearing and the quantum of proof required to secure a conviction is beyond reasonable doubt. Its electoral aspect, on the other hand, is a determination of whether the offender should be disqualified from office. This is done through an administrative proceeding which is summary in character and requires only a clear preponderance of evidence. Thus, under Sec. 4 of the COMELEC Rules of Procedure, petitions for disqualification "shall be heard summarily after due notice." It is the electoral aspect that we are more concerned with, under which an erring candidate may be disqualified even without prior criminal conviction. 13

Besides, the deleterious effect of the Silvestre ruling is not difficult to foresee. A candidate guilty of election offenses would be undeservedly rewarded, instead of punished, by the dismissal of the disqualification case against him simply because the investigating body was unable, for any reason caused upon it, to determine before the election if the offenses were indeed committed by the candidate sought to be disqualified. All that the erring aspirant would need to do is to employ delaying tactics so that the disqualification case based on the commission of election offenses would not be decided before the election. This scenario is productive of more fraud which certainly is not the main intent and purpose of the law.

It is quite puzzling that the COMELEC never acted on Sunga's motion to suspend the proclamation of Trinidad. The last sentence of Sec. 6 of RA No. 6646 categorically declares that the Commission may order the suspension of the proclamation of a candidate sought to be disqualified whenever the evidence of his guilt is strong. And there is not a scintilla of doubt that the evidence of Trinidad's guilt was strong as shown in the Report and Recommendation of the COMELEC Law Department

The fact that Trinidad was already proclaimed and had assumed the position of mayor did not divest the COMELEC of authority and jurisdiction to continue the hearing and eventually decide the

Parenthetically, there is merit to petitioner's petition against the respondent for disqualification for the alleged commission of election offenses under Sec. 68 of the Omnibus Election Code, such as use of armed men and act of terrorism, intimidation and coercion of voters, massive vote-buying and others, duly supported by affidavits of witnesses and other documents. Consequently, the petitioner's evidence supporting the disqualification of respondent remain unrebutted simply because respondent has expressly waived his right to present evidence in SPA No. 95-213 in his Manifestation and objection to the presentation of evidence in SPA No. 95-213 dated 16 June 1995, thus the waiver is the intentional relinquishing of a known right of respondent TRINIDAD.

Election Laws

In fact, on the basis of this Report and Recommendation the COMELEC directed the filing of four (4) criminal informations against Trinidad before the Regional Trial Court, an indication that there was indeed prima facie evidence of violation of election laws.

Governor or Vice-Mayor concerned shall become the Governor or Mayor . . .

However, Sunga's contention that he is entitled to be proclaimed as the duly elected Mayor of the Municipality of Iguig, Province of Cagayan, in the event that Trinidad is disqualified finds no support in law and jurisprudence. The fact that the candidate who obtained the highest number of votes is later disqualified for the office to which he was elected does not entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office. The votes cast for a disqualified person may not be valid to install the winner into office or maintain him there. But in the absence of a statute which clearly asserts a contrary political and legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was qualified, they should not be treated as stray, void or meaningless. 14

For purposes of this chapter, a permanent vacancy arises when an elective local official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns or is otherwise permanently incapacitated to discharge the functions of his office . . . .

This provision is echoed in Art. 83 of the Implementing Rules and Regulations of the Local Government Code of 1991.

The language of the law is clear, explicit and unequivocal, thus admits no room for interpretation but merely application. This is the basic legal precept. Accordingly, in the event that Trinidad is adjudged to be disqualified, a permanent vacancy will be created for failure of the elected mayor to qualify for the said office. In such eventuality, the duly elected vice-mayor shall succeed as provided by law. 19

Sunga totally miscontrued the nature of our democratic electoral process as well as the sociological and psychological elements behind voters' preferences. Election is the process of complete ascertainment of the expression of the popular will. Its ultimate purpose is to give effect to the will of the electorate by giving them direct participation in choosing the men and women who will run their government. Thus, it would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed winner and imposed as the representative of a constituency, the majority of whom have positively declared through their ballots that they do not choose him. 15

WHEREFORE, the petition is PARTIALLY GRANTED. The 17 May 1996 and 30 July 1996 Resolutions of the COMELEC are ANNULLED and SET ASIDE. COMELEC is ordered to REINSTATE SPA No. 95-213, "Manuel C. Sunga v. Ferdinand B. Trinidad," for disqualification, and ACT on the case taking its bearings from the opinion herein expressed. No costs.

SO ORDERED.

PENERA vs. COMELEC (599 SCRA 609, G.R. No. 181613, 2 November 25, 2009)

While Sunga may have garnered the second highest number of votes, the fact remains that he was not the choice of the people of Iguig, Cagayan. "The wreath of victory cannot be transferred from the disqualified winner to the repudiated loser because the law then as now only authorizes a declaration of election in favor of the person who has obtained a plurality of votes and does not entitle a candidate receiving the next highest number of votes to be declared elected." 16 In Aquino v. COMELEC, 17 this Court made the following pronouncement:

We grant Rosalinda A. Peneras (Penera) motion for reconsideration of this Courts Decision of 11 September 2009 (Decision).

To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the voter. The second placer is just that, a second placer. He lost the election. He was repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates because in a field which excludes the disqualified candidate; the conditions would have substantially changed. We are not prepared to extrapolate the results under such circumstances.

The assailed Decision dismissed Peneras petition and affirmed the Resolution dated 30 July 2008 of the COMELEC En Banc as well as the Resolution dated 24 July 2007 of the COMELEC Second Division. The Decision disqualified Penera from running for the office of Mayor in Sta. Monica, Surigao del Norte and declared that the Vice-Mayor should succeed Penera.

In support of her motion for reconsideration, Penera submits the following arguments:

1. Penera was not yet a candidate at the time of the incident under Section 11 of RA 8436 as amended by Section 13 of RA 9369.

Also, what Sunga wants us to do is to disregard the express mandate of Sec. 44, RA No. 7160, 18 which provides in part

Sec. 44. Permanent vacancies in the office of the Governor, Vice-Governor, Mayor, Vice-Mayor. (a) If a permanent vacancy occurs in the office of the Governor or Mayor, the Vice-

Election Laws 2. The petition for disqualification failed to submit convincing and substantial evidence against Penera for violation of Section 80 of the Omnibus Election Code.

3. Penera never admitted the allegations of the petition for disqualification and has consistently disputed the charge of premature campaigning.

The second element requires the existence of a "candidate." Under Section 79(a), a candidate is one who "has filed a certificate of candidacy" to an elective public office. Unless one has filed his certificate of candidacy, he is not a "candidate." The third element requires that the campaign period has not started when the election campaign or partisan political activity is committed.

4. The admission that Penera participated in a motorcade is not the same as admitting she engaged in premature election campaigning.

Section 79(a) of the Omnibus Election Code defines a "candidate" as "any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy x x x." The second sentence, third paragraph, Section 15 of RA 8436, as amended by Section 13 of RA 9369, provides that "[a]ny person who files his certificate of candidacy within [the period for filing] shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy." The immediately succeeding proviso in the same third paragraph states that "unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period." These two provisions determine the resolution of this case.

Assuming that all candidates to a public office file their certificates of candidacy on the last day, which under Section 75 of the Omnibus Election Code is the day before the start of the campaign period, then no one can be prosecuted for violation of Section 80 for acts done prior to such last day. Before such last day, there is no "particular candidate or candidates" to campaign for or against. On the day immediately after the last day of filing, the campaign period starts and Section 80 ceases to apply since Section 80 covers only acts done "outside" the campaign period.

Thus, if all candidates file their certificates of candidacy on the last day, Section 80 may only apply to acts done on such last day, which is before the start of the campaign period and after at least one candidate has filed his certificate of candidacy. This is perhaps the reason why those running for elective public office usually file their certificates of candidacy on the last day or close to the last day.

The Decision states that "[w]hen the campaign period starts and [the person who filed his certificate of candidacy] proceeds with his/her candidacy, his/her intent turning into actuality, we can already consider his/her acts, after the filing of his/her COC and prior to the campaign period, as the promotion of his/her election as a candidate, hence, constituting premature campaigning, for which he/she may be disqualified."1

There is no dispute that Eusebios acts of election campaigning or partisan political activities were committed outside of the campaign period. The only question is whether Eusebio, who filed his certificate of candidacy on 29 December 2003, was a "candidate" when he committed those acts before the start of the campaign period on 24 March 2004.

Under the Decision, a candidate may already be liable for premature campaigning after the filing of the certificate of candidacy but even before the start of the campaign period. From the filing of the certificate of candidacy, even long before the start of the campaign period, the Decision considers the partisan political acts of a person so filing a certificate of candidacy "as the promotion of his/her election as a candidate." Thus, such person can be disqualified for premature campaigning for acts done before the start of the campaign period. In short, the Decision considers a person who files a certificate of candidacy already a "candidate" even before the start of the campaign period. lawphil

Section 11 of Republic Act No. 8436 ("RA 8436") moved the deadline for the filing of certificates of candidacy to 120 days before election day. Thus, the original deadline was moved from 23 March 2004 to 2 January 2004, or 81 days earlier. The crucial question is: did this change in the deadline for filing the certificate of candidacy make one who filed his certificate of candidacy before 2 January 2004 immediately liable for violation of Section 80 if he engaged in election campaign or partisan political activities prior to the start of the campaign period on 24 March 2004?

Section 11 of RA 8436 provides:

The assailed Decision is contrary to the clear intent and letter of the law.

The Decision reverses Lanot v. COMELEC,2 which held that a person who files a certificate of candidacy is not a candidate until the start of the campaign period. In Lanot, this Court explained:

Thus, the essential elements for violation of Section 80 of the Omnibus Election Code are: (1) a person engages in an election campaign or partisan political activity; (2) the act is designed to promote the election or defeat of a particular candidate or candidates; (3) the act is done outside the campaign period.

SECTION 11. Official Ballot. The Commission shall prescribe the size and form of the official ballot which shall contain the titles of the positions to be filled and/or the propositions to be voted upon in an initiative, referendum or plebiscite. Under each position, the names of candidates shall be arranged alphabetically by surname and uniformly printed using the same type size. A fixed space where the chairman of the Board of Election Inspectors shall affix his/her signature to authenticate the official ballot shall be provided.

Both sides of the ballots may be used when necessary.

Election Laws For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/ manifestation to participate in the election shall not be later than one hundred twenty (120) days before the elections: Provided, That, any elective official, whether national or local, running for any office other than the one which he/she is holding in a permanent capacity, except for president and vice-president, shall be deemed resigned only upon the start of the campaign period corresponding to the position for which he/she is running: Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period: Provided, finally, That, for purposes of the May 11, 1998 elections, the deadline for filing of the certificate of candidacy for the positions of President, Vice-President, Senators and candidates under the party-list system as well as petitions for registration and/or manifestation to participate in the party-list system shall be on February 9, 1998 while the deadline for the filing of certificate of candidacy for other positions shall be on March 27, 1998.

SENATOR GONZALES. And you cannot say that the campaign period has not yet began (sic).

THE CHAIRMAN (REP. TANJUATCO). If we dont provide that the filing of the certificate will not bring about ones being a candidate.

SENATOR GONZALES. If thats a fact, the law cannot change a fact.

The official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas at the price comparable with that of private printers under proper security measures which the Commission shall adopt. The Commission may contract the services of private printers upon certification by the National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the printing requirements. Accredited political parties and deputized citizens arms of the Commission may assign watchers in the printing, storage and distribution of official ballots.

THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide that the filing of the certificate of candidacy will not result in that official vacating his position, we can also provide that insofar he is concerned, election period or his being a candidate will not yet commence. Because here, the reason why we are doing an early filing is to afford enough time to prepare this machine readable ballots.

So, with the manifestations from the Commission on Elections, Mr. Chairman, the House Panel will withdraw its proposal and will agree to the 120-day period provided in the Senate version.

THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr. Chairman.

To prevent the use of fake ballots, the Commission through the Committee shall ensure that the serial number on the ballot stub shall be printed in magnetic ink that shall be easily detectable by inexpensive hardware and shall be impossible to reproduce on a photocopying machine, and that identification marks, magnetic strips, bar codes and other technical and security markings, are provided on the ballot.

xxxx

SENATOR GONZALES. How about prohibition against campaigning or doing partisan acts which apply immediately upon being a candidate?

The official ballots shall be printed and distributed to each city/municipality at the rate of one (1) ballot for every registered voter with a provision of additional four (4) ballots per precinct.

Under Section 11 of RA 8436, the only purpose for the early filing of certificates of candidacy is to give ample time for the printing of official ballots. This is clear from the following deliberations of the Bicameral Conference Committee:

THE CHAIRMAN (REP. TANJUATCO). Again, since the intention of this provision is just to afford the Comelec enough time to print the ballots, this provision does not intend to change the campaign periods as presently, or rather election periods as presently fixed by existing law.

THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be subject to the other prohibition.

SENATOR GONZALES. Okay. Then, how about the campaign period, would it be the same[,] uniform for local and national officials?

THE CHAIRMAN (REP. TANJUATCO). Thats right.

THE ACTING CHAIRMAN (SEN. FERNAN). Okay. THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree to retaining it at the present periods.

SENATOR GONZALES. But the moment one files a certificate of candidacy, hes already a candidate, and there are many prohibited acts on the part of candidate.

THE CHAIRMAN (REP. TANJUATCO). In other words, actually, there would be no conflict anymore because we are talking about the 120-day period before election as the last day of filing a certificate of candidacy, election period starts 120 days also. So that is election period already. But he will still not be considered as a candidate.

THE CHAIRMAN (REP. TANJUATCO). Unless we. . . .

Election Laws Thus, because of the early deadline of 2 January 2004 for purposes of printing of official ballots, Eusebio filed his certificate of candidacy on 29 December 2003. Congress, however, never intended the filing of a certificate of candidacy before 2 January 2004 to make the person filing to become immediately a "candidate" for purposes other than the printing of ballots. This legislative intent prevents the immediate application of Section 80 of the Omnibus Election Code to those filing to meet the early deadline. The clear intention of Congress was to preserve the "election periods as x x x fixed by existing law" prior to RA 8436 and that one who files to meet the early deadline "will still not be considered as a candidate."3 (Emphasis in the original)

be annulled by this Court except on the sole ground of its unconstitutionality. The Decision cannot reverse Lanot without repealing this second sentence, because to reverse Lanot would mean repealing this second sentence.

Lanot was decided on the ground that one who files a certificate of candidacy is not a candidate until the start of the campaign period. This ground was based on the deliberations of the legislators who explained the intent of the provisions of RA 8436, which laid the legal framework for an automated election system. There was no express provision in the original RA 8436 stating that one who files a certificate of candidacy is not a candidate until the start of the campaign period.

The assailed Decision, however, in reversing Lanot does not claim that this second sentence or any portion of Section 15 of RA 8436, as amended by RA 9369, is unconstitutional. In fact, the Decision considers the entire Section 15 good law. Thus, the Decision is self-contradictory reversing Lanot but maintaining the constitutionality of the second sentence, which embodies the Lanot doctrine. In so doing, the Decision is irreconcilably in conflict with the clear intent and letter of the second sentence, third paragraph, Section 15 of RA 8436, as amended by RA 9369.

In enacting RA 9369, Congress even further clarified the first proviso in the third paragraph of Section 15 of RA 8436. The original provision in RA 8436 states

When Congress amended RA 8436, Congress decided to expressly incorporate the Lanot doctrine into law, realizing that Lanot merely relied on the deliberations of Congress in holding that

x x x Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period, x x x.

In RA 9369, Congress inserted the word "only" so that the first proviso now reads The clear intention of Congress was to preserve the "election periods as x x x fixed by existing law" prior to RA 8436 and that one who files to meet the early deadline "will still not be considered as a candidate."4 (Emphasis supplied)

x x x Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period x x x. (Emphasis supplied)

Congress wanted to insure that no person filing a certificate of candidacy under the early deadline required by the automated election system would be disqualified or penalized for any partisan political act done before the start of the campaign period. Thus, in enacting RA 9369, Congress expressly wrote the Lanot doctrine into the second sentence, third paragraph of the amended Section 15 of RA 8436, thus:

Thus, Congress not only reiterated but also strengthened its mandatory directive that election offenses can be committed by a candidate "only" upon the start of the campaign period. This clearly means that before the start of the campaign period, such election offenses cannot be so committed.

xxx

For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition for registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers and employees in governmentowned or -controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certificate of candidacy. (Boldfacing and underlining supplied)

When the applicable provisions of RA 8436, as amended by RA 9369, are read together, these provisions of law do not consider Penera a candidate for purposes other than the printing of ballots, until the start of the campaign period. There is absolutely no room for any other interpretation.

We quote with approval the Dissenting Opinion of Justice Antonio T. Carpio:

Congress elevated the Lanot doctrine into a statute by specifically inserting it as the second sentence of the third paragraph of the amended Section 15 of RA 8436, which cannot

x x x The definition of a "candidate" in Section 79(a) of the Omnibus Election Code should be read together with the amended Section 15 of RA 8436. A "candidate refers to any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy by himself or through an accredited political party, aggroupment or coalition of parties." However, it is no longer enough to merely file a certificate of candidacy for a person to be considered a candidate because "any person who files his certificate of candidacy within [the filing] period shall only be considered a candidate at the start of the campaign period for which he filed his certificate of candidacy." Any person may thus file a certificate of candidacy on any day within the prescribed period for filing a certificate of

Election Laws candidacy yet that person shall be considered a candidate, for purposes of determining ones possible violations of election laws, only during the campaign period. Indeed, there is no "election campaign" or "partisan political activity" designed to promote the election or defeat of a particular candidate or candidates to public office simply because there is no "candidate" to speak of prior to the start of the campaign period. Therefore, despite the filing of her certificate of candidacy, the law does not consider Penera a candidate at the time of the questioned motorcade which was conducted a day before the start of the campaign period. x x x

The campaign period for local officials began on 30 March 2007 and ended on 12 May 2007. Penera filed her certificate of candidacy on 29 March 2007. Penera was thus a candidate on 29 March 2009 only for purposes of printing the ballots. On 29 March 2007, the law still did not consider Penera a candidate for purposes other than the printing of ballots. Acts committed by Penera prior to 30 March 2007, the date when she became a "candidate," even if constituting election campaigning or partisan political activities, are not punishable under Section 80 of the Omnibus Election Code. Such acts are within the realm of a citizens protected freedom of expression. Acts committed by Penera within the campaign period are not covered by Section 80 as Section 80 punishes only acts outside the campaign period.5

It is a basic principle of law that any act is lawful unless expressly declared unlawful by law. This is specially true to expression or speech, which Congress cannot outlaw except on very narrow grounds involving clear, present and imminent danger to the State. The mere fact that the law does not declare an act unlawful ipso facto means that the act is lawful. Thus, there is no need for Congress to declare in Section 15 of RA 8436, as amended by RA 9369, that political partisan activities before the start of the campaign period are lawful. It is sufficient for Congress to state that "any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period." The only inescapable and logical result is that the same acts, if done before the start of the campaign period, are lawful.

In laymans language, this means that a candidate is liable for an election offense only for acts done during the campaign period, not before. The law is clear as daylight any election offense that may be committed by a candidate under any election law cannot be committed before the start of the campaign period. In ruling that Penera is liable for premature campaigning for partisan political acts before the start of the campaigning, the assailed Decision ignores the clear and express provision of the law.

The assailed Decision gives a specious reason in explaining away the first proviso in the third paragraph, the amended Section 15 of RA 8436 that election offenses applicable to candidates take effect only upon the start of the campaign period. The Decision states that:

x x x [T]he line in Section 15 of Republic Act No. 8436, as amended, which provides that "any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period," does not mean that the acts constituting premature campaigning can only be committed, for which the offender may be disqualified, during the campaign period. Contrary to the pronouncement in the dissent, nowhere in said proviso was it stated that campaigning before the start of the campaign period is lawful, such that the offender may freely carry out the same with impunity.

The Decision rationalizes that a candidate who commits premature campaigning can be disqualified or prosecuted only after the start of the campaign period. This is not what the law says. What the law says is "any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period." The plain meaning of this provision is that the effective date when partisan political acts become unlawful as to a candidate is when the campaign period starts. Before the start of the campaign period, the same partisan political acts are lawful.

As previously established, a person, after filing his/her COC but prior to his/her becoming a candidate (thus, prior to the start of the campaign period), can already commit the acts described under Section 79(b) of the Omnibus Election Code as election campaign or partisan political activity, However, only after said person officially becomes a candidate, at the beginning of the campaign period, can said acts be given effect as premature campaigning under Section 80 of the Omnibus Election Code. Only after said person officially becomes a candidate, at the start of the campaign period, can his/her disqualification be sought for acts constituting premature campaigning. Obviously, it is only at the start of the campaign period, when the person officially becomes a candidate, that the undue and iniquitous advantages of his/her prior acts, constituting premature campaigning, shall accrue to his/her benefit. Compared to the other candidates who are only about to begin their election campaign, a candidate who had previously engaged in premature campaigning already enjoys an unfair headstart in promoting his/her candidacy.6 (Emphasis supplied)

The law does not state, as the assailed Decision asserts, that partisan political acts done by a candidate before the campaign period are unlawful, but may be prosecuted only upon the start of the campaign period. Neither does the law state that partisan political acts done by a candidate before the campaign period are temporarily lawful, but becomes unlawful upon the start of the campaign period. This is clearly not the language of the law. Besides, such a law as envisioned in the Decision, which defines a criminal act and curtails freedom of expression and speech, would be void for vagueness.

Congress has laid down the law a candidate is liable for election offenses only upon the start of the campaign period. This Court has no power to ignore the clear and express mandate of the law that "any person who files his certificate of candidacy within [the filing] period shall only be considered a candidate at the start of the campaign period for which he filed his certificate of candidacy." Neither can this Court turn a blind eye to the express and clear language of the law that "any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period."

The forum for examining the wisdom of the law, and enacting remedial measures, is not this Court but the Legislature. This Court has no recourse but to apply a law that is as clear, concise and express as the second sentence, and its immediately

Election Laws succeeding proviso, as written in the third paragraph of Section 15 of RA 8436, as amended by RA 9369.

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WHEREFORE, we GRANT petitioner Rosalinda A. Peneras Motion for Reconsideration. We SET ASIDE the Decision of this Court in G.R. No. 181613 promulgated on 11 September 2009, as well as the Resolutions dated 24 July 2007 and 30 January 2008 of the COMELEC Second Division and the COMELEC En Banc, respectively, in SPA No. 07-224. Rosalinda A. Penera shall continue as Mayor of Sta. Monica, Surigao del Norte.

2. To direct the Election Officer of Sta. Rosa, Nueva Ecija and San Jacinto, Pangasinan to delete the name of ANDRES PEREZ MANALAYSAY, candidate for Barangay Chairman in Barangay La Fuente, Sta. Rosa, Nueva Ecija; and the name of PETRONILA S. RULLODA, candidate for Barangay Captain in Barangay Sto. Tomas, San Jacinto, Pangasinan. Let the Law Department implement this resolution. SO ORDERED.7 The above-quoted Resolution cited as authority the COMELECs Resolution No. 4801 dated May 23, 2002, setting forth the guidelines on the filing of certificates of candidacy in connection with the July 15, 2002 synchronized Barangay and Sangguniang Kabataan elections, more particularly Section 9 thereof which reads: Sec. 9. Substitution of candidates. There shall be no substitution of candidates for barangay andsangguniang kabataan officials.8 Hence, petitioner filed the instant petition for certiorari, seeking to annul Section 9 of Resolution No. 4801 and Resolution No. 5217, both of the COMELEC, insofar as they prohibited petitioner from running as substitute candidate in lieu of her deceased husband; to nullify the proclamation of respondent; and to proclaim her as the duly elected Barangay Chairman of Sto. Tomas, San Jacinto, Pangasinan. Private respondent Remegio Placido filed his Comment, arguing that since the barangay election is non-partisan, substitution of candidates is not allowed. Moreover, petitioner did not file any certificate of candidacy; hence, there was only one candidate for Barangay Chairman of Sto. Tomas, namely, respondent Placido.9 Public respondent COMELEC also filed its Comment. It contends that its Resolution No. 4801 was issued not pursuant to its quasijudicial functions but as an incident of its inherent administrative functions over the conduct of the barangay elections. Therefore, the same may not be the subject of review in a petition for certiorari. Further, the COMELEC alleges that it did not commit grave abuse of discretion in denying due course to petitioners certificate of candidacy and in proclaiming respondent considering that he was the only candidate for Barangay Chairman of Sto. Tomas.10 We find merit in the petition. At the outset, there is no dispute that petitioner garnered 516 votes while respondent got only 290 votes. Respondents did not deny this in their respective Comments. In our jurisdiction, an election means the choice or selection of candidates to public office by popular vote through the use of the ballot, and the elected officials which are determined through the will of the electorate. An election is the embodiment of the popular will, the expression of the sovereign power of the people. The winner is the candidate who has obtained a majority or plurality of valid votes cast in the election. Sound policy dictates that public elective offices are filled by those who receive the highest number of votes cast in the election for that office. For, in

SO ORDERED.

RULLODA vs. COMELEC (395 SCRA 535, G.R. No. 154198, 3 January 20, 2003) In the barangay elections of July 15, 2002, Romeo N. Rulloda and Remegio L. Placido were the contending candidates for Barangay Chairman of Sto. Tomas, San Jacinto, Pangasinan. On June 22, 2002, Romeo suffered a heart attack and passed away at the Mandaluyong City Medical Center.1 His widow, petitioner Petronila "Betty" Rulloda, wrote a letter to the Commission on Elections on June 25, 2002 seeking permission to run as candidate for Barangay Chairman of Sto. Tomas in lieu of her late husband.2Petitioners request was supported by the Appeal-Petition containing several signatures of people purporting to be members of the electorate of Barangay Sto. Tomas.3 On July 14, 2002, Election Officer Ludivico L. Asuncion issued a directive to the Chairman and Members of the Barangay Board of Canvassers of Sto. Tomas as follows: Just in case the names "BETTY" or "PETRONILA" or the surname "RULLODA" is written on the ballot, read the same as it is written but add the words "NOT COUNTED" like "BETTY NOT COUNTED" or "RULLODA NOT COUNTED."4 Based on the tally of petitioners watchers who were allowed to witness the canvass of votes during the July 15, 2002 elections, petitioner garnered 516 votes while respondent Remegio Placido received 290 votes.5 Despite this, the Board of Canvassers proclaimed Placido as the Barangay Chairman of Sto. Tomas.6 After the elections, petitioner learned that the COMELEC, acting on the separate requests of Andres Perez Manalaysay and Petronila Rulloda to be substituted as candidates for Barangay Chairman of Barangay La Fuente, Sta. Rosa, Nueva Ecija and Barangay Sto. Tomas, San Jacinto, Pangasinan, respectively, issued Resolution No. 5217 dated July 13, 2002 which states: PREMISES CONSIDERED, the Commission RESOLVED, as it hereby RESOLVES, to ADOPT the recommendation of the Law Department as follows: 1. To deny due course the Certificates of Candidacy of ANDRES PEREZ MANALAYSAY and PETRONILA S. RULLODA; and

Election Laws all republican forms of government the basic idea is that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the election.11 Respondents base their argument that the substitution of candidates is not allowed in barangay elections on Section 77 of the Omnibus Elections Code, which states: Section 77. Candidates in case of death, disqualification or withdrawal of another. If after the last day of the filing of certificates of candidacy, an official candidate of a registered or accredited political party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by the same political party may file a certificate of candidacy to replace the candidate who died, withdrew or was disqualified. The substitute candidate nominated by the political party concerned may file his certificate of candidacy for the office affected in accordance with the preceding sections not later than mid-day of the election. If the death, withdrawal or disqualification should occur between the day before the election and mid-day of election day, said certificate may be filed with any board of election inspectors in the political subdivision where he is a candidate or, in the case of candidates to be voted by the entire electorate of the country, with the Commission. Private respondent argues that inasmuch as the barangay election is non-partisan, there can be no substitution because there is no political party from which to designate the substitute. Such an interpretation, aside from beingnon sequitur, ignores the purpose of election laws which is to give effect to, rather than frustrate, the will of the voters.12 It is a solemn duty to uphold the clear and unmistakable mandate of the people. It is wellsettled that in case of doubt, political laws must be so construed as to give life and spirit to the popular mandate freely expressed through the ballot.13 Contrary to respondents claim, the absence of a specific provision governing substitution of candidates in barangay elections can not be inferred as a prohibition against said substitution. Such a restrictive construction cannot be read into the law where the same is not written. Indeed, there is more reason to allow the substitution of candidates where no political parties are involved than when political considerations or party affiliations reign, a fact that must have been subsumed by law. Private respondent likewise contends that the votes in petitioners favor can not be counted because she did not file any certificate of candidacy. In other words, he was the only candidate for Barangay Chairman. His claim is refuted by the Memorandum of the COMELEC Law Department as well as the assailed Resolution No. 5217, wherein it indubitably appears that petitioners letter-request to be allowed to run as Barangay Chairman of Sto. Tomas in lieu of her late husband was treated as a certificate of candidacy.14 To reiterate, it was petitioner who obtained the plurality of votes in the contested election. Technicalities and procedural niceties in election cases should not be made to stand in the way of the true will of the electorate. Laws governing election contests must be liberally construed to the end that the will of the people in the

11

choice of public officials may not be defeated by mere technical objections.15 Election contests involve public interest, and technicalities and procedural barriers must yield if they constitute an obstacle to the determination of the true will of the electorate in the choice of their elective officials. The Court frowns upon any interpretation of the law that would hinder in any way not only the free and intelligent casting of the votes in an election but also the correct ascertainment of the results.16 WHEREFORE, in view of the foregoing, the instant petition is GRANTED. The assailed Resolution No. 5217 of the Commission on Elections, insofar as it denied due course to petitioners certificate of candidacy, is declared NULL and VOID. The proclamation of respondent Remegio L. Placido as Barangay Chairman of Sto. Tomas, San Jacinto, Pangasinan is SET ASIDE, and the Board of Canvassers of the said Barangay is ORDERED to proclaim petitioner as the duly elected Barangay Chairman thereof. SO ORDERED.

SULIGUIN vs. COMELEC (485 SCRA 219, G.R. No. 166046, 4 March 23, 2006)

This is a Petition for Certiorari under Rule 65 of the Revised Rules of Court seeking to reverse the Resolution1 of the Commission on Elections (Comelec) En Banc in SPC No. 04-209 dated November 18, 2004 which denied petitioner Margarito Suliguins motion for reconsideration of the July 21, 2004 Resolution2 of the Comelecs First Division. The Comelec nullified his proclamation as the 8th Sangguniang Bayan member of Nagcarlan, Laguna.

The antecedents are as follows:

Petitioner Margarito Suliguin was one of the candidates for the Sangguniang Bayan of Nagcarlan, Laguna during the May 10, 2004 elections. At around 6:00 p.m. on said date, respondent Municipal Board of Canvassers (MBOC) convened to canvass the votes for all the candidates. Petitioner received 6,605 votes while respondent Ecelson Sumague received 6,647 votes. However, in the Statement of Votes (SOV) covering Precincts 1A to 19A, Sumague appears to have received only 644 votes when, in fact, he received 844 votes. The MBOC failed to notice the discrepancy and proclaimed the winning candidates at around 7:00 p.m. of May 13, 2004. Petitioner was proclaimed as the 8th Sangguniang Bayan member of Nagcarlan, Laguna, garnering a total of 6,605 votes.3

Thereafter, Sumague requested for a recomputation of the votes received by him and Suliguin in a Letter4 dated May 15, 2004, it appearing that there was a mistake in adding the figures in the Certificate of Canvass of votes. He pointed out that he officially garnered 6,647 votes, as against petitioners 6,605 votes.

Election Laws The MBOC summoned petitioner and respondent Sumague to a conference. Upon review, the MBOC discovered that it had, indeed, failed to credit respondent Sumague his 200 votes from Precincts 1A to 19A, and that with his 6,647 votes, he should have been proclaimed as the 8th Sangguniang Bayan member of Nagcarlan, Laguna, instead of petitioner Suliguin.

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Rules, it should have been filed not later than five (5) days following the date of the proclamation.

Petitioner likewise questions the personality of the MBOC itself to file the petition before the Comelec. He further argues that upon the proclamation of the winning candidates in the election, the MBOC adjourns sine die and becomes functus officio.

On May 26, 2004, the MBOC filed before the Comelec a "Petition to Correct Entries Made in the Statement of Votes" for Councilor. The error was attributed to extreme physical and mental fatigue which the members of the board experienced during the election and the canvassing of votes.

The issue is whether or not respondent Comelec erred in granting the petition of the MBOC to nullify petitioners proclamation as the 8th member of the Sangguniang Bayan in Nagcarlan, Laguna.

In the meantime, on June 9, 2004, petitioner took his oath of office before Judge Renato B. Bercades.5

The petition is bereft of merit.

On July 21, 2004, the Comelec (First Division) issued a Resolution6 granting the petition of the MBOC. The Commission nullified the proclamation of petitioner Suliguin as the 8th Sangguniang Bayan member of Nagcarlan, Laguna during the May 10, 2004 National and Local Elections "for being based on an erroneous computation of votes." It then ordered the MBOC of Nagcarlan, Laguna to reconvene and effect the necessary corrections in the SOV, and forthwith proclaim Sumague as the 8th duly elected Sangguniang Bayan member of Nagcarlan, Laguna.7

Petitioner moved for the reconsideration of the resolution but the Comelec En Banc denied the motion on November 18, 2004; hence, this petition. Petitioner alleges that respondent Commission committed grave abuse of discretion amounting to lack or excess of jurisdiction in ruling against him. In support of his petition, he alleges that:

In an election case, the Comelec is mandated to ascertain by all means within its command who the real candidate elected by the electorate is. The Court frowns upon any interpretation of the law or the rules that would hinder in any way not only the free and intelligent casting of the votes in an election but also the correct ascertainment of the results.11 In the case at bar, the simple mathematical procedure of adding the total number of votes garnered by respondent Sumague as appearing in the Statement of Votes submitted to the Comelec would readily reveal the result that he has forty-two (42) votes more than petitioner. Such result would, in effect, dislodge petitioner from said post, and entitle respondent Sumague to occupy the eighth and last seat of the Sangguniang Bayan of Nagcarlan, Laguna. Petitioner himself never disputed the discrepancy in the total number of votes garnered by respondent Sumague, and instead questioned the personality of the MBOC to file the petition and insisted that such petition was not filed on time.

4.1 THE "PETITION TO CORRECT ENTRIES MADE IN THE STATEMENT OF VOTES FOR COUNCILOR, NAGCARLAN, LAGUNA" WAS UNDISPUTEDLY FILED OUT OF TIME, and

4.2 "THE PETITION TO CORRECT ENTRIES MADE IN THE STATEMENT OF VOTES FOR COUNCILOR, NAGCARLAN, LAGUNA" WAS FILED BY THE MUNICIPAL BOARD OF CANVASSERS IN DEFIANCE OF EXISTING COMELEC RULES AND REGULATIONS AND WAS OBVIOUSLY BIAS IN FAVOR OF PRIVATE RESPONDENT CANDICATE ECELSON C. SUMAGUE.8

Sections 312 and 413 of Rule 1 of the Comelec Rules of Procedure explicitly provide that such rules may be "liberally construed" in the interest of justice. Indeed, the Comelec has the discretion to liberally construe its rules and, at the same time, suspend the rules or any portion thereof in the interest of justice.14 Disputes in the outcome of elections involve public interest; as such, 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. Laws governing such disputes 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.15

Petitioner argues that pursuant to Sections 35,9 36(c) and (f)10 of Comelec Resolution No. 6669 (General Instructions for Municipal/City/Provincial and District Boards of Canvassers in Connection with the May 10, 2004 Elections), the MBOC should not have entertained the letter-request of respondent Sumague as it was filed only on May 17, 2004, or four (4) days after the canvassing of votes was terminated and after he (petitioner) was proclaimed winner as the 8th Sangguniang Bayan member of Nagcarlan, Laguna. Furthermore, respondent Sumague never entered any objection during the proceedings of the canvassing of votes. The MBOC itself filed the "Petition to Correct Entries Made in the Statement of Votes" before the Comelec only on May 26, 2004, 13 days after the canvassing of votes was terminated. Petitioner maintains that the Comelec should have denied the petition, since according to the Revised Comelec

What is involved in the present petition is the correction of a manifest error in reflecting the actual total number of votes for a particular candidate. Section 32, subparagraph 5 of Comelec Resolution No. 6669 includes mistake in the addition of the votes of any candidate as a manifest error.16 As correctly cited by the Comelec,17 a manifest clerical error is "one that is visible to the eye or obvious to the understanding and is apparent from the papers to the eye of the appraiser and collector, and does not include an error which may, by evidence dehors the record be shown to have been committed."

The MBOC sought relief from the Comelec to reflect the true winner elected by the voting public, to occupy the eighth position

Election Laws as member of the Sangguniang Bayan of Nagcarlan, Laguna. In Carlos v. Angeles,18 the Court had the occasion to declare:

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In this jurisdiction, an election means "the choice or selection of candidates to public office by popular vote" through the use of the ballot, and the elected officials of which are determined through the will of the electorate. "An election is the embodiment of the popular will, the expression of the sovereign power of the people." "Specifically, the term election, in the context of the Constitution, may refer to the conduct of the polls, including the listing of voters, the holding of the electoral campaign, and the casting and counting of votes." The winner is the candidate who has obtained a majority or plurality of valid votes cast in the election. "Sound policy dictates that public elective offices are filled by those who receive the highest number of votes cast in the election for that office. For, in all republican forms of government the basic idea is that no one can be declared elected and no measure can de declared carried unless he or it receives a majority or plurality of the legal votes cast in the election."19

contemplation of law." Petitioner MBOC is merely doing its function that is mandated by law to canvass votes in the election returns submitted to it in due form, adding or compiling the votes cast for each candidate as shown in the face of such returns and eventually proclaim the winning candidates. Respondent miserably failed to prove that petitioner exhibited manifest bias thereby thwarting his chances of winning the last slot for Sangguniang Bayan Member. "Absent a strong showing to the contrary, the court must accept the presumption of regularity in the performance of official duty and strong evidence is necessary to rebut this presumption."

Likewise, it cannot be said that petitioner MBOC violated the sanctity of the ballots. Unlike the Board of Election Inspectors which counts the votes from the precinct levels, the MBOC computes the votes as appeared in the election returns.

We quote, with approval, the ruling of the Comelec (First Division) granting the petition of the MBOC:

A careful perusal of the records show that there was, indeed, an honest error committed by petitioner MBOC in the computation of votes for candidate Ecelson Sumague which resulted in the erroneous proclamation of respondent as one of the winners for the said office.

"A manifest clerical error is one that is visible to the eye or obvious to the understanding and is apparent from the papers to the eye of the appraiser and collector, and does not include an error which may, by evidence dehors the record be shown to have been committed."

Finally, a subsequent annulment of the proclamation of the respondent does not constitute a clear violation of his right. In the first place, there is no valid proclamation to speak of. He was not elected by a majority or plurality of voters. His alleged right was based on an erroneous proclamation. By any mathematical formulation, the respondent cannot be construed to have obtained such plurality of votes; otherwise, it would be sheer absurdity to proclaim a repudiated candidate as the choice of the voters. "Where a proclamation is null and void, the proclamation is no proclamation at all and the proclaimed candidates assumption of office cannot deprive the COMELEC of the power to make such declaration a nullity." Respondent also cannot claim that he was denied of his right to due process of law since he was given the opportunity to be heard. He was duly notified by petitioner MBOC of the erroneous computation which resulted in his proclamation and was afforded the opportunity to be heard by this Commission.

The contention of respondent that the instant petition should be dismissed for being filed out of time cannot be given merit because his proclamation was flawed. It must be stressed that "a proclamation based on faulty tabulation of votes is flawed, and a petition to correct errors in tabulation under Section 7, Rule 27 of the COMELEC Rules of Procedure, even if filed out of time, may be considered, so as not to thwart the proper determination and resolution of the case on substantial grounds and to prevent a stamp of validity on a palpably void proclamation based on an erroneous tabulation of votes."

"The COMELEC exercises immediate supervision and control over the members of the Boards of Election Inspectors and Canvassers. Its statutory power of supervision and control includes the power to revise, reverse or set aside the action of the boards, as well as to do what boards should have done, even if questions relative thereto have not been elevated to it by an aggrieved party, for such power includes the authority to initiate motu proprio or by itself steps or actions that may be required pursuant to law."20

Petitioner posits that the Comelecs reliance in the ruling of this Court in Bince, Jr. v. Commission on Elections21 is misplaced since, unlike the present petition, petitioner therein was an affected candidate who filed his petition on time.

Furthermore, "where the proclamation is flawed because it was based on a clerical error or mathematical mistake in the addition of votes and not through the legitimate will of the electorate, there can be no valid proclamation to speak of and the same can be challenged even after the candidate has assumed office."

The argument of petitioner does not persuade. The Court, in Bince, Jr. v. Commission on Elections,22 declared that:

There is no showing that petitioner MBOC acted with manifest bias and committed a grave abuse of discretion. "Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility which must be so patent and gross as to amount to an invasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in

Assuming for the sake of argument that the petition was filed out of time, this incident alone will not thwart the proper determination and resolution of the instant case on substantial grounds. Adherence to a technicality that would put a stamp of validity on a palpably void proclamation, with the inevitable result of frustrating the peoples will cannot be countenanced. In Benito v. COMELEC, we categorically declared that:

Election Laws x x x Adjudication of cases on substantive merits and not on technicalities has been consistently observed by this Court. In the case of Juliano vs. Court of Appeals (20 SCRA 808) cited in Duremdes v. Commission on Elections (178 SCRA 746), this Court had the occasion to declare that:

14

beginning. Having been based on a faulty tabulation, there can be no valid proclamation to speak of insofar as respondent Castillo is concerned. As this Court once said:

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. And also settled is the rule that laws governing election contests must be liberally construed to the end that the will of the people in the choice of public officials may not be defeated by mere technical objections (Gardiner v. Romulo, 26 Phil. 521; Galang v. Miranda, 35 Phil. 269; Jalandoni v. Sarcon, G.R. No. L-6496, January 27, 1962; Macasunding v. Macalaang, G.R. No. L-22779, March 31, 1965; Cauton v. Commission on Elections, G.R. No. L-25467, April 27, 1967). 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. (Ibasco v. Ilao, G.R. No. L-17512, December 29, 1960). x x x (Juliano vs. Court of Appeals, supra, pp. 818819). (Italics ours)

"x x x Time and again, this Court has given its imprimatur on the principle that Comelec is with authority to annul any canvass and proclamation which was illegally made. The fact that a candidate proclaimed has assumed office, we have said, is no bar to the exercise of such power. It, of course, may not be availed of where there has been a valid proclamation. Since private respondents petition before the Comelec is precisely directed at the annulment of the canvass and proclamation, we perceive that inquiry into this issue is within the area allocated by the Constitution and law to Comelec.

xxx

"We have but to reiterate the oft-cited rule that the validity of a proclamation may be challenged even after the irregularly proclaimed candidate has assumed office.

In the later case of Rodriguez v. Commission on Elections (119 SCRA 465), this doctrine was reiterated and the Court went on to state that:

xxx

Since the early case of Gardiner v. Romulo (26 Phil. 521), this Court has made it clear that it frowns upon any interpretation of the law or the rules that would hinder in any way not only the free and intelligent casting of the votes in an election but also the correct ascertainment of the results. This bent or disposition continues to the present. (Id., at p. 474).

"It is, indeed, true that, after proclamation, the usual remedy of any party aggrieved in an election is to be found in an election protest. But that is so only on the assumption that there has been a valid proclamation. Where as in the case at bar the proclamation itself is illegal, the assumption of office cannot in any way affect the basic issues." (Aguam v. Commission on Elections, 23 SCRA 883 [1968]; cited in Agbayani v. Commission on Elections, 186 SCRA 484 [1990]).25

The same principle still holds true today. Technicalities of the legal rules enunciated in the election laws should not frustrate the determination of the popular will.

Undoubtedly therefore, the only issue that remains unresolved is the allowance of the correction of what are purely mathematical and/or mechanical errors in the addition of the votes received by both candidates. It does not involve the opening of ballot boxes; neither does it involve the examination and/or appreciation of ballots. The correction sought by private respondent and respondent MBCs of Tayug and San Manuel is correction of manifest mistakes in mathematical addition. Certainly, this only calls for a mere clerical act of reflecting the true and correct votes received by the candidates by the MBCs involved. In this case, the manifest errors sought to be corrected involve the proper and diligent addition of the votes in the municipalities of Tayug and San Manuel, Pangasinan.23

Thus, the Comelec was correct in annulling the proclamation of petitioner for being based on an erroneous computation of votes. As the Court declared in Espidol v. Commission on Elections,26 where the proclamation is null and void, the proclaimed candidates assumption of office cannot deprive the Commission the power to declare such proclamation a nullity. We emphasized that a defeated candidate cannot be deemed elected to the office.27

The Court made a similar pronouncement in Tatlonghari v. Commission on Elections,24 to wit:

In fine, the Comelec did not commit grave abuse of discretion in annulling the proclamation of petitioner. 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.28

The argument is devoid of merit. For one thing, records indicate that respondents assumption of office was effected by a clerical error or simple mathematical mistake in the addition of votes and not through the legitimate will of the electorate. Thus, respondents proclamation was flawed right from the very

To the credit of the MBOC, when it realized that it made a mistake in computing the total number of votes for respondent Sumague, it took swift action and called the attention of the

Election Laws Comelec by filing the Petition to Correct Entries Made in the Statement of Votes for Councilor.

15

IN LIGHT OF ALL THE FOREGOING, the Resolutions of the Commission on Elections in SPC No. 04-209 dated July 21, 2004 and November 18, 2004 are AFFIRMED. The Status Quo Order issued by the Court dated January 11, 2005 is LIFTED.

On January 7, 2008, the RTC rendered a decision6 in Election Case 07-1, which declared private respondent as the winner in the May 14, 2007 mayoralty race for Motiong, Samar with a plurality of six (6) votes, viz:

SO ORDERED.

PACANAN vs. COMELEC (G.R. No. 186224, August 25, 2009, 5 597 SCRA 189)

Wherefore, in view of the foregoing Protestant Francisco M. Langi, Sr. having obtained the over all total votes of 3,074 and the Protestees 3,068 total and final votes is declared the winner in the Mayoralty contest in Motiong, Samar with a plurality of (6) votes. Therefore the proclamation on May 17, 2007 is hereby annulled and declared Francisco Langi, Sr. y Maceren as the duly elected Mayor of Motiong, Samar. The winner is awarded the amount of P 32,510 as actual damages and no evidence aliunde for damages for the court to award. xxx

Before the Court is a petition for certiorari which seeks to set aside 1) the Order1 dated March 17, 2008 of the Commission on Elections (Comelec) First Division and 2) the Resolution2 dated January 21, 2009 of the Comelec En Banc dismissing petitioner Constancio D. Pacanan, Jr.s appeal from the Decision3 of the Regional Trial Court (RTC), Branch 27, Catbalogan, Samar, in Election Case No. 07-1, which declared private respondent Francisco M. Langi, Sr. as the winning Mayor of Motiong, Samar.

In the Order of March 17, 2008, the Comelec First Division dismissed the appeal for failure to pay the correct appeal fee as prescribed by the Comelec Rules of Procedure within the fiveday reglementary period.

On January 10, 2008, petitioner filed a notice of appeal and paid P3,000.00 appeal fee per Official Receipt No. 6822663 before the RTC, Branch 27, Catbalogan, Samar. He also appealed the RTC decision dated January 7, 2008 to the Comelec which docketed the case as EAC No. A-13-2008. Out of the P3,000.00 appeal fee required by Section 3, Rule 40 of the Comelec Rules of Procedure, petitioner only paid the amount of P1,000.00 (plus P200.00 to cover the legal research/bailiff fees) to the Cash Division of the Comelec, per Official Receipt No. 0510287. The said payment was made on February 14, 2008.7

On March 17, 2008, the Comelec First Division issued an Order8 dismissing the appeal, viz.:

In the assailed Resolution dated January 21, 2009, the Comelec En Banc denied petitioners motion for reconsideration, declaring that the Comelec did not acquire jurisdiction over the appeal because of the non-payment of the appeal fee on time, and that the Comelec First Division was correct in dismissing the said appeal.

The antecedent facts are as follows:

Pursuant to Sections 3 and 4, Rule 40 of the COMELEC Rules of Procedure which provide for the payment of appeal fee in the amount of P3,000.00 within the period to file the notice of appeal, and Section 9 (a), Rule 22 of the same Rules which provides that failure to pay the correct appeal fee is a ground for the dismissal of the appeal, the Commission (First Division) RESOLVED as it hereby RESOLVES to DISMISS the instant case for ProtesteeAppellants failure to pay the correct appeal fee as prescribed by the Comelec Rules of Procedure within the five-(5)-day reglementary period.

Petitioner Constancio D. Pacanan, Jr. and private respondent Francisco M. Langi, Sr. were candidates for mayor in the municipality of Motiong, Samar during the May 14, 2007 elections. After the canvassing of votes, the Municipal Board of Canvassers (MBC) of Motiong, Samar proclaimed petitioner as the duly elected mayor, having garnered a total of 3,069 votes against private respondents 3,066 votes.

SO ORDERED.

Thereafter, private respondent filed with the RTC a Protest4 dated May 25, 2007 which was docketed as Election Case No. 07-1, contesting the results of the elections in ten (10) of the forty-nine (49) precincts in Motiong, Samar, and alleging acts of violence and intimidation and other election irregularities in the appreciation of the votes by the MBC. Thereafter, petitioner filed his Verified Answer with Counter-Protest5 dated June 4, 2007, asserting that private respondents allegations of threat and intimidation, fraud and other irregularities in the conduct of elections were mere allegations unsupported by any documentary evidence. Petitioner also disputed the election results with respect to seven (7) precincts.
5

On March 28, 2008, petitioner filed a Motion for Reconsideration9 which the Comelec En Banc denied in the Resolution10 dated January 21, 2009, declaring that the appeal was not perfected on time for non-payment of the complete amount of appeal fee and for late payment as well. The Comelec En Banc held that the Comelec did not acquire jurisdiction over the appeal because of the non-payment of the appeal fee on time. Thus, the Comelec First Division correctly dismissed the appeal.

Hence, the instant petition for certiorari raising the following grounds:

The respondent COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in holding that the correct appeal fee was not paid on time.

Election Laws

16

The respondent COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in failing to consider that assuming that the correct appeal fee was not paid on time, the alleged non-payment of the correct appeal fee is not in anyway attributable to herein petitioner.

issues presented, it must first be shown that it has acquired the requisite jurisdiction over the subject matter pursuant to the initiatory acts and procedural compliance set as conditions precedent.

The respondent COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in failing to consider that assuming that the correct appeal fee was not paid on time, there are highly justifiable and compelling reasons to resolve the subject case on the merits in the interest of justice and public interest.

Respondent also argues that the negligence and mistakes of petitioners counsel bind petitioner. He then reiterates the cases where this Court held that the non-payment or insufficiency of payment of filing fees is a valid ground for the dismissal of the appeal and that the subsequent full payment thereof does not cure the jurisdictional defect.

We grant the petition.

Petitioner further claims that he paid a total of P4,215.00 for his appeal, as follows:

a. To RTC on January 10, 2008 -----10.00 5.00 TOTAL P3,015.00 b. To Comelec on February 14, 2008 -50.00 150.00 TOTAL P1,200.00

P3,000.00

Section 3, Rule 22 (Appeals from Decisions of Courts in Election Protest Cases) of the Comelec Rules of Procedure mandates that the notice of appeal must be filed within five (5) days after promulgation of the decision, thus:

P1,000.00

SEC. 3. Notice of Appeal. Within five (5) days after promulgation of the decision of the court, the aggrieved party may file with said court a notice of appeal, and serve a copy thereof upon the attorney of record of the adverse party.

Moreover, Sections 3 and 4, Rule 40 of the Comelec rules require the payment of appeal fees in appealed election protest cases, the amended amount of which was set at P3,200.00 in Comelec Minute Resolution No. 02-0130,11 to wit:

Petitioner submits that it is incumbent upon the RTC to transmit to the Comelec the entire P3,000.00 appeal fee that he paid on January 10, 2008. Petitioner also advances another interpretation of the Comelec Rules that the RTC is under obligation to remit to the Comelec the P2,000.00 representing the excess amount of the P1,000.00 appeal fee. Thus, petitioner claims that he must be deemed to have complied, in full or at least substantially, with the Comelec Rules on the payment of appeal fees.

SEC. 3. Appeal Fees. The appellant in election cases shall pay an appeal fee as follows:

(a) For election cases appealed Courts.P3,000.00 (per appellant)

from

Regional

Trial

Petitioner maintains that the alleged non-payment of the correct appeal fee is not due to his own fault or negligence. He claims that the laws on appeals in election protest cases are not yet well-established, thus, he must not be made to suffer for an oversight made in good faith. The Resolution No. 8486 of July 15, 2008 adopted by the Comelec to clarify the rules on compliance with the required appeal fees in election cases should not be applied retroactively to the subject election protest.

(b) For election cases appealed from courts of limited jurisdiction..P3,000.00 (per appellant)

SEC. 4. Where and When to Pay. The fees prescribed in Sections 1, 2 and 3 hereof shall be paid to, and deposited with, the Cash Division of the Commission within a period to file the notice of appeal.

Lastly, petitioner invokes liberality in the application of the election law. He asserts that the popular will of the people expressed in the election of public officers should not be defeated by reason of sheer technicalities. Petitioner argues that the true will of the people of Motiong in the May 14, 2007 elections should be determined by ordering the Comelec to give due course to his appeal and to resolve the same on the merits.

Sections 8 and 9, Rule 14 of A.M. No. 07-4-15-SC12 also provide the procedure for instituting an appeal and the required appeal fees to be paid for the appeal to be given due course, to wit:

In his Comment, respondent Langi, Sr. states that the petition was just a mere rehash of the Motion for Reconsideration that petitioner filed with the Comelec En Banc. Respondent maintains that for the Comelec to exercise its authority to administer proceedings, grant leniency, issue orders, and pass judgment on

SEC. 8. Appeal. An aggrieved party may appeal the decision to the Commission on Elections, within five days after promulgation, by filing a notice of appeal with the court that rendered the decision, with copy served on the adverse counsel or party if not represented by counsel.

Election Laws 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 (P1,000.00), simultaneously with the filing of the notice of appeal.

17

WHEREFORE, in view of the foregoing, the Commission hereby RESOLVES to DIRECT as follows:

A reading of the foregoing provisions reveals that two different tribunals (the trial court that rendered the decision and the Comelec) require the payment of two different appeal fees for the perfection of appeals of election cases. This requirement in the payment of appeal fees had caused much confusion, which the Comelec addressed through the issuance of Comelec Resolution No. 8486.13 Thus, to provide clarity and to erase any ambiguity in the implementation of the procedural rules on the payment of appeal fees for the perfection of appeals of election cases, the resolution provides:

WHEREAS, the Commission on Elections is vested with appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, and those involving elective barangay officials, decided by trial courts of limited jurisdiction;

1. That if the appellant had already paid the amount of P1,000.00 before the Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court or lower courts within the five-day period, pursuant to Section 9, Rule 14 of the Rules of Procedure in Election Cases Before the Courts Involving Elective Municipal and Barangay Officials (Supreme Court Administrative Order No. 07-4-15) and his Appeal was given due course by the Court, said appellant is required to pay the Comelec appeal fee of P3,200.00 at the Commissions Cash Division through the Electoral Contests Adjudication Department (ECAD) or by postal money order payable to the Commission on Elections through ECAD, within a period of fifteen days (15) from the time of the 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, which provides:

Sec. 9. Grounds for Dismissal of Appeal. The appeal may be dismissed upon motion of either party or at the instance of the Commission on any of the following grounds:

WHEREAS, Supreme Court Administrative Order No. 07-4-15 (Rules of Procedure in Election Contests Before the Courts Involving Elective Municipal and Barangay Officials) promulgated on May 15, 2007 provides in Sections 8 and 9, Rule 14 thereof the procedure in instituting the appeal and the required appeal fees to be paid for the appeal to be given due course, to wit:

(a) Failure of the appellant to pay the correct appeal fee; xxx

Section 8. Appeal. An aggrieved party may appeal the decision to the Commission on Elections, within five days after promulgation, by filing a notice of appeal with the court that rendered the decision, with copy served on the adverse counsel or party if not represented by counsel.

2. That if the appellant failed to pay the P1,000.00 appeal fee with the lower court within the five (5) 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 by the Commission, in accordance with the aforestated Section 9(a) of Rule 22 of the Comelec Rules of Procedure.

Section 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 (P1,000.00), simultaneously with the filing of the notice of appeal.

The Education and Information Department is directed to cause the publication of this resolution in two (2) newspapers of general circulation.

This resolution shall take effect on the seventh day following its publication. WHEREAS, payment of appeal fees in appealed election protest cases is also required in Section 3, Rule 40 of the COMELEC Rules of Procedure the amended amount of which was set at P3,200.00 in COMELEC Minute Resolution No. 02-0130 made effective on September 18, 2002.

SO ORDERED.

Our ruling in the very recent case of Aguilar v. Comelec,14 quoted hereunder, squarely applies to the instant case: WHEREAS, the requirement of these two appeal fees by two different jurisdictions had caused confusion in the implementation by the Commission on Elections of its procedural rules on payment of appeal fees for the perfection of appeals of cases brought before it from the Courts of General and Limited Jurisdictions.

Sections 8 and 9, Rule 14 of A.M. No. 07-4-15-SC provide for the following procedure in the appeal to the COMELEC of trial court decisions in election protests involving elective municipal and barangay officials:

WHEREAS, there is a need to clarify the rules on compliance with the required appeal fees for the proper and judicious exercise of the Commissions appellate jurisdiction over election protest cases.

SEC. 8. Appeal. An aggrieved party may appeal the decision to the Commission on Elections, within five days after promulgation, by filing a notice of appeal with the court that rendered the decision, with copy served on the adverse counsel or party if not represented by counsel.

Election Laws 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 (P1,000.00), simultaneously with the filing of the notice of appeal.

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Section 8 was derived from Article IX-C, Section 2(2) of the Constitution and Rule 40, Section 3, par. 1 and Rule 41, Section 2(a) of the Rules of Court. Section 9 was taken from Rule 141, Sections 7(1) and 8(f) of the Rules of Court.

It should be noted from the afore-quoted sections of the Rule that the appeal fee of P1,000.00 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 P1,000.00 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 Electoral Contests Adjudication Department of the COMELEC within 15 days. The trial court may only exercise its residual jurisdiction to resolve pending incidents if the records have not yet been transmitted and before the expiration of the period to appeal.

Be that as it may, the Court finds that the COMELEC First Division gravely abused its discretion in issuing the order dismissing petitioners appeal. The Court notes that the notice of appeal and the P1,000.00 appeal fee were, respectively, filed and paid with the MTC of Kapatagan, Lanao del Norte on April 21, 2008. On that date, the petitioners appeal was deemed perfected. COMELEC issued Resolution No. 8486 clarifying the rule on the payment of appeal fees only on July 15, 2008, or almost three months after the appeal was perfected. Yet, on July 31, 2008, or barely two weeks after the issuance of Resolution No. 8486, the COMELEC First Division dismissed petitioners appeal for non-payment to the COMELEC Cash Division of the additional P3,200.00 appeal fee.1avvphi1

With the promulgation of A.M. No. 07-4-15-SC, the previous rule that the appeal is perfected only upon the full payment of the appeal fee, now pegged at P3,200.00, to the COMELEC Cash Division within the period to appeal, as stated in the COMELEC Rules of Procedure, as amended, no longer applies.

Considering that petitioner filed his appeal months before the clarificatory resolution on appeal fees, petitioners appeal should not be unjustly prejudiced by COMELEC Resolution No. 8486. Fairness and prudence dictate that the COMELEC First Division should have first directed petitioner to pay the additional appeal fee in accordance with the clarificatory resolution, and if the latter should refuse to comply, then, and only then, dismiss the appeal. Instead, the COMELEC First Division hastily dismissed the appeal on the strength of the recently promulgated clarificatory resolution which had taken effect only a few days earlier. This unseemly haste is an invitation to outrage.

It thus became necessary for the COMELEC to clarify the procedural rules on the payment of appeal fees. For this purpose, the COMELEC issued on July 15, 2008, Resolution No. 8486, which the Court takes judicial notice of. The resolution pertinently reads:

The COMELEC First Division should have been more cautious in dismissing petitioners appeal on the mere technicality of nonpayment of the additional P3,200.00 appeal fee given the public interest involved in election cases. This is especially true in this case where only one vote separates the contending parties. The Court stresses once more that election law and rules are to be interpreted and applied in a liberal manner so as to give effect, not to frustrate, the will of the electorate.

xxx

xxx

xxx

The foregoing resolution is consistent with A.M. No. 07-4-15-SC and the COMELEC Rules of Procedure, as amended. 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 P1,000.00 appeal fee to the court that rendered the decision within the five-day reglementary period. The non-payment or the insufficient payment of the additional appeal fee of P3,200.00 to the COMELEC Cash Division, in accordance with Rule 40, Section 3 of the COMELEC Rules of Procedure, as amended, does not affect the perfection of the appeal and does not result in outright or ipso facto dismissal of the appeal. Following, Rule 22, Section 9 (a) of the COMELEC Rules, the appeal may be dismissed. And pursuant to Rule 40, Section 18 of the same rules, if the fees are not paid, the COMELEC may refuse to take action thereon until they are paid and may dismiss the action or the proceeding. In such a situation, the COMELEC is merely given the discretion to dismiss the appeal or not.

WHEREFORE, premises considered, the petition for certiorari is GRANTED. The July 31, September 4 and October 6, 2008 Orders and the October 16 2008 Entry of Judgment issued by the COMELEC First Division in EAC (BRGY) No. 211-2008 are ANNULLED and SET ASIDE. The case is REMANDED to the COMELEC First Division for disposition in accordance with this Decision.

SO ORDERED. (Emphasis supplied)

From the foregoing discussion, it is clear that the appeal from the trial court decision to the Comelec is perfected upon the filing of the notice of appeal and the payment of the P1,000.00 appeal fee to the trial court that rendered the decision. With the promulgation of A.M. No. 07-4-15-SC, the perfection of the appeal no longer depends solely on the full payment of the appeal fee to the Comelec.

Accordingly, in the instant case, the COMELEC First Division, may dismiss petitioners appeal, as it in fact did, for petitioners failure to pay the P3,200.00 appeal fee.

In the instant case, when petitioner filed his Notice of Appeal and paid the appeal fee of P3,015.00 to the RTC on January 10, 2008, his appeal was deemed perfected. However, Comelec Resolution No. 8486 also provides that if the appellant had already paid the amount of P1,000.00 before the trial court that rendered the decision, and his appeal was given due course by the court, said appellant is required to pay the Comelec appeal fee of P3,200.00 to the Comelecs Cash Division through the Electoral Contests Adjudication Department (ECAD) or by postal

Election Laws money order payable to the Comelec, within a period of fifteen (15) days from the time of the filing of the Notice of Appeal with the lower court. However, if no payment is made within the prescribed period, the appeal shall be dismissed pursuant to Section 9 (a), Rule 22 of the Comelec Rules of Procedure, which provides:

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SEC. 9. Grounds for Dismissal of Appeal. The appeal may be dismissed upon motion of either party or at the instance of the Commission on any of the following grounds:

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:

(a) Failure of the appellant to pay the correct appeal fee; xxx

Thus, when petitioners appeal was perfected on January 10, 2008, within five (5) days from promulgation, his non-payment or insufficient payment of the appeal fee to the Comelec Cash Division should not have resulted in the outright dismissal of his appeal. The Comelec Rules provide in Section 9 (a), Rule 22, that for failure to pay the correct appeal fee, the appeal may be dismissed upon motion of either party or at the instance of the Comelec. Likewise, Section 18, Rule 4015 thereof also prescribes that if the fees are not paid, the Comelec may refuse to take action on the appeal until the said fees are paid and may dismiss the action or the proceeding.

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 whose 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.

Here, petitioner paid P1,200.00 to the Comelec on February 14, 2008. Unfortunately, the Comelec First Division dismissed the appeal on March 17, 2008 due to petitioners failure to pay the correct appeal fee within the five-day reglementary period. In denying petitioners motion for reconsideration, the Comelec En Banc, in the Resolution dated January 21, 2009, declared that the Comelec did not acquire jurisdiction over the appeal because of the non-payment of the appeal fee on time.

However, during the pendency of petitioners Motion for Reconsideration dated March 27, 2008, the Comelec promulgated Resolution No. 8486 to clarify the implementation of the Comelec Rules regarding the payment of filing fees. Thus, applying the mandated liberal construction of election laws,16 the Comelec should have initially directed the petitioner to pay the correct appeal fee with the Comelec Cash Division, and should not have dismissed outright petitioners appeal. This would have been more in consonance with the intent of the said resolution which sought to clarify the rules on compliance with the required appeal fees.

WHEREFORE, the petition is granted. The Order dated March 17, 2008 of the Comelec First Division and the Resolution dated January 21, 2009 of the Comelec En Banc in EAC No. A-132008 are ANNULLED and SET ASIDE. Accordingly, let the case be REMANDED to the Comelec First Division for further proceedings, in accordance with the rules and with this disposition. The Regional Trial Court, Branch 27 of Catbalogan, Samar is DIRECTED to refund to petitioner Constancio D. Pacanan, Jr., the amount of Two Thousand Pesos (P2,000.00) as the excess of the appeal fee per Official Receipt No. 6822663 paid on January 10, 2008.

SO ORDERED.

AGUILAR vs. COMELEC (G.R. No. 185140, June 30, 2009, 6 591 SCRA 491)

In Barroso v. Ampig, Jr.,17 we ruled, thus:

This petition for certiorari under Rules 64 and 65, which stems from pertinent facts and proceedings narrated below, assails the issuances of the Commission on Elections (COMELEC) in EAC (BRGY) No. 211-2008.

xxx 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.

In the October 2007 barangay elections, petitioner Aguilar won the chairmanship of Brgy. Bansarvil 1, Kapatagan, Lanao del Norte, over private respondent Insoy by a margin of one vote. Not conceding his defeat, Insoy timely instituted a protest docketed as Election Case No. 516 in the Municipal Trial Court (MTC) of Kapatagan.1 On April 17, 2008, the MTC rendered its Decision2 finding Insoy, who, during the revision garnered 265 votes as against Aguilars 264 votes, as the duly elected punong barangay. The trial court consequently nullified the proclamation of Aguilar and directed him to vacate the office.

Election Laws Aggrieved, Aguilar filed on April 21, 2008 his notice of appeal3 and paid to the trial court the appeal fee of P1,000.004 in accordance with Rule 14, Sections 8 and 9 of the recently promulgated A.M. No. 07-4-15-SC or the Rules of Procedure in Election Contests Before the Courts Involving Elective Municipal and Barangay Officials.5

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hereof the entire records of this case to the court of origin for its proper disposition and return to the protestee-appellant the Postal Money Order representing her motion fee in the amount of one thousand one hundred pesos (P/1,100.00) pesos.

SO ORDERED.12 When the COMELEC received the records elevated by the trial court, its First Division issued on July 31, 2008 the first assailed Order6 which pertinently reads:

On October 16, 2008, the COMELEC First Division issued the Entry of Judgment.13

Pursuant to Sections 3 and 4, Rule 40 of the COMELEC Rules of Procedure which provide for the payment of appeal fee in the amount of P/3,000.00 within the period to file the notice of appeal, and Section 9(a), Rule 22 of the same Rules, which provides that failure to pay the correct appeal fee is a ground for the dismissal of the appeal, the Commission (First Division) RESOLVED as it hereby RESOLVES to DISMISS the instant appeal for Protestant-Appellants (sic) failure to pay the appeal fee as prescribed by the Comelec Rules of Procedure within the five-(5)-day reglementary period.

Faced with imminent ouster from office, petitioner instituted the instant petition to assail the aforementioned issuances of the COMELEC First Division.

SO ORDERED.7

Adversely affected, Aguilar moved for reconsideration, arguing that the newly promulgated A.M. No. 07-4-15-SC only requires the payment of P1,000.00 as appeal fee.8 The COMELEC First Division, however, issued on September 4, 2008 the second assailed Order9 stating

Readily discernable is that the challenged September 4 and October 6, 2008 Orders14 were issued not by the COMELEC en banc but by one of its divisions, the First Division. Settled is the rule that it is the decision, order or ruling of the COMELEC en banc which, in accordance with Article IX-A, Section 715 of the Constitution, may be brought to this Court on certiorari.16 But this rule should not apply when a division of the COMELEC arrogates unto itself, and deprives the en banc of the authority to rule on a motion for reconsideration, as in this case. Further, the rule is not ironclad; it admits of exceptions as when the decision or resolution sought to be set aside, even if it were merely a Division action, is an absolute nullity.17

Acting on the "Motion for Reconsideration" filed by protesteeappellant Jerry B. Aguilar, through registered mail on 13 August 2008 and received by this Commission on 21 August 2008, seeking reconsideration of this Commissions (First Division) Order dated 31 July 2008, this Commission (First Division) RESOLVES to DENY the instant motion for movants (sic) failure to pay the complete P700.00 motion fee.

The invalidity of the September 4 and October 6, 2008 Orders arises from the very fact that they were issued by a division of the COMELEC. The Constitution explicitly establishes, in Article IX-C, Section 3, the procedure for the resolution of election cases by the COMELEC, thus:

SO ORDERED.10

Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc.18

Unperturbed, Aguilar filed another motion for reconsideration, contending, among others, that the order was null and void because it was issued in violation of the rule that motions for reconsideration should be resolved by the COMELEC en banc. On October 6, 2008, the COMELEC First Division issued the third assailed Order,11 which reads in part:

The COMELEC Rules of Procedure,19 complementing the constitutional provision, also details the course of action to be undertaken in the event motions for reconsideration are filed; thus, Rule 19, Sections 5 and 6 provide that

Applying suppletorily Section 2, Rule 52 of the Rules of Court, the second motion for reconsideration filed by protesteeappellant Jerry Aguilar on 25 September 2008 is hereby DENIED for being a prohibited pleading. And considering that the Motion for Reconsideration filed by protestee-appellant was denied per Order dated 4 September 2008 by the Commission (First Division) for movants failure to pay the complete motion fee, the Order dated 31 July 2008 is now final and executory.

Sec. 5. How Motion for Reconsideration Disposed Of.Upon the filing of a motion to reconsider a decision, resolution, order or ruling of a Division, the Clerk of Court concerned shall, within twenty-four (24) hours from the filing thereof, notify the Presiding Commissioner. The latter shall within two (2) days thereafter certify the case to the Commission en banc.

WHEREFORE, let entry of judgment be issued in the instant case. The Judicial Records Division-ECAD, this Commission, is hereby directed to remand within three (3) days from receipt

Sec. 6. Duty of Clerk of Court of Commission to Calendar Motion for Reconsideration.The Clerk of Court concerned shall calendar the motion for reconsideration for the resolution of the Commission en banc within ten (10) days from the certification thereof.20

Election Laws In this case, petitioners motion for reconsideration of the order dismissing his appeal was not resolved by the COMELEC en banc, but by the COMELEC First Division, in obvious violation of the provisions of the Constitution and the COMELEC Rules of Procedure. Stated differently, the division, after dismissing petitioners appeal, arrogated unto itself the en bancs function of resolving petitioners motion for reconsideration. In Soriano, Jr. v. Commission on Elections,21 we emphasized the rule that a motion to reconsider a decision, resolution, order or ruling of a COMELEC division, except with regard to interlocutory orders, shall be elevated to the COMELEC en banc. Here, there is no doubt that the order dismissing the appeal is not merely an interlocutory, but a final order.22 It was, therefore, incumbent upon the Presiding Commissioner of the COMELEC First Division to certify the case to the COMELEC en banc within two days from notification of the filing of the motion.

21

SEC. 8. Appeal. An aggrieved party may appeal the decision to the Commission on Elections, within five days after promulgation, by filing a notice of appeal with the court that rendered the decision, with copy served on the adverse counsel or party if not represented by counsel.

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 (P1,000.00), simultaneously with the filing of the notice of appeal.

Section 8 was derived from Article IX-C, Section 2(2)28 of the Constitution and Rule 40, Section 3, par. 129 and Rule 41, Section 2(a)30 of the Rules of Court.31 Section 9 was taken from Rule 141,32 Sections 7(l)33 and 8(f)34 of the Rules of Court.35

This rule should apply whether the motion fee has been paid or not, as what happened in Olanolan v. Commission on Elections.23 Indeed, Rule 40, Section 1824 of the COMELEC Rules of Procedure gives discretion to the COMELEC, in this case, to the en banc and not to the division, either to refuse to take action until the motion fee is paid, or to dismiss the action or proceeding.25

The COMELEC First Divisions unceremonious departure from this constitutionally mandated procedure in the disposition of election cases must have brought confusion to the parties, so much so, that petitioner filed a second motion for reconsideration raising this issue. Yet, the COMELEC First Division, in the further assailed October 6, 2008 Order, committed another obvious error when it again usurped the en bancs authority to resolve motions for reconsideration.

It should be noted from the afore-quoted sections of the Rule that the appeal fee of P1,000.00 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 P1,000.00 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 Electoral Contests Adjudication Department of the COMELEC within 15 days. The trial court may only exercise its residual jurisdiction to resolve pending incidents if the records have not yet been transmitted and before the expiration of the period to appeal.36

Being a violation of the Constitution and the COMELEC Rules of Procedure, the assailed September 4 and October 6, 2008 Orders are null and void. They were issued by the COMELEC First Division with grave abuse of discretion. By grave abuse of discretion is meant such capricious and whimsical exercise of judgment equivalent to lack of jurisdiction. Mere abuse of discretion is not enough. It must be grave, as when it is exercised arbitrarily or despotically by reason of passion or personal hostility. The abuse 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.26 Clearly, by arrogating unto itself a power constitutionally lodged in the Commission en banc, the COMELEC First Division, in this case, exercised judgment in excess of, or without, jurisdiction.

With the promulgation of A.M. No. 07-4-15-SC, the previous rule that the appeal is perfected only upon the full payment of the appeal fee, now pegged at P3,200.00, to the COMELEC Cash Division within the period to appeal, as stated in the COMELEC Rules of Procedure, as amended,37 no longer applies.

It thus became necessary for the COMELEC to clarify the procedural rules on the payment of appeal fees. For this purpose, the COMELEC issued on July 15, 2008, Resolution No. 8486,38 which the Court takes judicial notice of.1avvphi1 The resolution pertinently reads:

WHEREAS, the Commission on Elections is vested with appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, and those involving elective barangay officials, decided by trial courts of limited jurisdiction;

However, instead of remanding this case to the COMELEC en banc for appropriate action on petitioners motion for reconsideration, we will resolve the propriety of the appeals dismissal, considering the urgent need for the resolution of election cases, and considering that the issue has, after all, been raised in this petition.

WHEREAS, Supreme Court Administrative Order No. 07-4-15 (Rules of Procedure in Election Contests Before the Courts Involving Elective Municipal and Barangay Officials) promulgated on May 15, 2007 provides in Sections 8 and 9, Rule 14 thereof the procedure for instituting the appeal and the required appeal fees to be paid for the appeal to be given due course, to wit:

Sections 8 and 9, Rule 14 of A.M. No. 07-4-15-SC27 provide for the following procedure in the appeal to the COMELEC of trial court decisions in election protests involving elective municipal and barangay officials:

Section 8. Appeal. - An aggrieved party may appeal the decision to the Commission on Elections, within five days after promulgation, by filing a notice of appeal with the court that rendered the decision, with copy served on the adverse counsel or party if not represented by counsel.

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Section 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 (P1,000.00), simultaneously with the filing of the notice of appeal.

The Education and Information Department is directed to cause the publication of this resolution in two (2) newspapers of general circulation. This resolution shall take effect on the seventh day following its publication.

SO ORDERED.39 WHEREAS, payment of appeal fees in appealed election protest cases is also required in Section 3, Rule 40 of the COMELEC Rules of Procedure the amended amount of which was set at P3,200.00 in COMELEC Minute Resolution No. 02-0130 made effective on September 18, 2002.

WHEREAS, the requirement of these two appeal fees by two different jurisdictions had caused confusion in the implementation by the Commission on Elections of its procedural rules on payment of appeal fees for the perfection of appeals of cases brought before it from the Courts of General and Limited Jurisdictions.

WHEREAS, there is a need to clarify the rules on compliance with the required appeal fees for the proper and judicious exercise of the Commission's appellate jurisdiction over election protest cases.

The foregoing resolution is consistent with A.M. No. 07-4-15-SC and the COMELEC Rules of Procedure, as amended. 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 P1,000.00 appeal fee to the court that rendered the decision within the five-day reglementary period. The non-payment or the insufficient payment of the additional appeal fee of P3,200.00 to the COMELEC Cash Division, in accordance with Rule 40, Section 3 of the COMELEC Rules of Procedure, as amended, does not affect the perfection of the appeal and does not result in outright or ipso facto dismissal of the appeal. Following, Rule 22, Section 9(a) of the COMELEC Rules, the appeal may be dismissed. And pursuant to Rule 40, Section 1840 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.41

WHEREFORE, in view of the foregoing, the Commission hereby RESOLVES to DIRECT as follows:

Accordingly, in the instant case, the COMELEC First Division, may dismiss petitioners appeal, as it in fact did, for petitioners failure to pay the P3,200.00 appeal fee.

1. That if the appellant had already paid the amount of P1,000.00 before the Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court or lower courts within the five-day period, pursuant to Section 9, Rule 14 of the Rules of Procedure in Election Contests Before the Courts Involving Elective Municipal and Barangay Officials (Supreme Court Administrative Order No. 07-4-15) and his Appeal was given due course by the Court, said appellant is required to pay the Comelec appeal fee of P3,200.00 at the Commission's Cash Division through the Electoral Contests Adjudication Department (ECAD) or by postal money order payable to the Commission on Elections through ECAD, within a period of fifteen days (15) from the time of the 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, which provides:

Be that as it may, the Court still finds that the COMELEC First Division gravely abused its discretion in issuing the order dismissing petitioners appeal. The Court notes that the notice of appeal and the P1,000.00 appeal fee were, respectively, filed and paid with the MTC of Kapatagan, Lanao del Norte on April 21, 2008. On that date, the petitioners appeal was deemed perfected. COMELEC issued Resolution No. 8486 clarifying the rule on the payment of appeal fees only on July 15, 2008, or almost three months after the appeal was perfected. Yet, on July 31, 2008, or barely two weeks after the issuance of Resolution No. 8486, the COMELEC First Division dismissed petitioners appeal for non-payment to the COMELEC Cash Division of the additional P3,200.00 appeal fee.

Sec. 9. Grounds for Dismissal of Appeal. The appeal may be dismissed upon motion of either party or at the instance of the Commission on any of the following grounds:

(a) Failure of the appellant to pay the correct appeal fee; x x x

2. That if the appellant failed to pay the P1,000.00 - appeal fee with the lower court within the five (5) 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 by the Commission, in accordance with the aforestated Section 9(a) of Rule 22 of the Comelec Rules of Procedure.

Considering that petitioner filed his appeal months before the clarificatory resolution on appeal fees, petitioners appeal should not be unjustly prejudiced by COMELEC Resolution No. 8486. Fairness and prudence dictate that the COMELEC First Division should have first directed petitioner to pay the additional appeal fee in accordance with the clarificatory resolution, and if the latter should refuse to comply, then, and only then, dismiss the appeal. Instead, the COMELEC First Division hastily dismissed the appeal on the strength of the recently promulgated clarificatory resolutionwhich had taken effect only a few days earlier. This unseemly haste is an invitation to outrage.

The COMELEC First Division should have been more cautious in dismissing petitioners appeal on the mere technicality of nonpayment of the additional P3,200.00 appeal fee given the public interest involved in election cases. This is especially true in this case where only one vote separates the contending parties. The Court stresses once more that election law and rules are to be

Election Laws interpreted and applied in a liberal manner so as to give effect, not to frustrate, the will of the electorate.42

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On December 20, 2007, the Second Division of the COMELEC issued the assailed Resolution, to wit: IN VIEW OF THE FOREGOING, the instant Petition filed by Anthony Tuddao for Correction of Manifest Error and Annulment of Proclamation of Jonas Taguiam is hereby GRANTED. ACCORDINGLY, the City Board of Canvassers of Tuguegarao, Cagayan is hereby DIRECTED to (i) RECONVENE after giving due notice to the concerned parties, (ii) CORRECT the errors in the Statement of Votes by Precinct (SOVP), and thereafter proclaim the 12th winning candidate for the Sangguniang Panlungsod of Tuguegarao, Cagayan.1avvphi1 Let the City Board of Canvassers of Tuguegarao, Cagayan implement this Resolution with dispatch. SO ORDERED.10 The COMELEC held that the belated filing of private respondents petition cannot deter its authority to ascertain the true will of the electorate and thereafter affirm such will. Thus, after due proceedings, the COMELEC found private respondents allegations duly substantiated with material evidence and confirmed the following:

WHEREFORE, premises considered, the petition for certiorari is GRANTED. The July 31, September 4 and October 6, 2008 Orders and the October 16, 2008 Entry of Judgment issued by the COMELEC First Division in EAC (BRGY) No. 211-2008 are ANNULLED and SET ASIDE. The case is REMANDED to the COMELEC First Division for disposition in accordance with this Decision.

SO ORDERED.

TAGUIAM vs. COMELEC (594 SCRA 474, G.R. No. 184801, 7 July 30, 2009)

This petition for certiorari with prayer for issuance of a temporary restraining order and writ of preliminary injunction1 assails the December 20, 2007 Resolution2 of the Second Division of the Commission on Elections (COMELEC) in SPC No. 07-171 which granted private respondent Anthony C. Tuddaos Petition for Correction of Manifest Error and Annulment of Proclamation of petitioner Jonas Taguiam as the 12th winning candidate for theSangguniang Panglungsod of Tuguegarao City, Cagayan. Also assailed is the October 9, 2008 Resolution3 of the COMELEC En Banc denying petitioners Motion for Reconsideration.4 Petitioner and private respondent were candidates for the position of Sangguniang Panglungsod of Tuguegarao City in Cagayan during the 2007 National and Local Elections. On May 19, 2007, petitioner was proclaimed by the City Board of Canvassers (CBOC) as the 12th ranking and winning candidate for the said position with 10,981 votes.5 Private respondent obtained 10,971 votes6 and was ranked no. 13. On May 25, 2007, private respondent filed with the COMELEC a petition for correction of manifest errors in the Election Returns and Statement of Votes for 27 clustered precincts7 and for the annulment of the proclamation of the affected winning candidate in Tuguegarao City. He alleged that he was credited with less votes in several Statements of Votes by Precincts (SOVP) as compared with the tally of his votes in the election returns ERs), whereas petitioner was credited with more votes. Private respondent offered evidence in the following nine precincts: 0035A/0036A, 0061A/0063A, 69A/69B, 87A/87B, 192A/192B, 264A/265A, 324A/325B, 326A, and 328B. Petitioner denied the allegations of private respondent and argued that the petition should be dismissed for having been filed late or six days after the proclamation of the winning candidates.8 Meanwhile, the members of the CBOC of Tuguegarao City denied private respondents allegations of manifest errors in the SOVP; maintained that petitioner garnered more votes than those obtained by private respondent; and that they have properly performed their duties and functions.9
7

Election Laws A. With regard to the votes of private respondent: Precinct No. 1 2 3 4 69A/69B 87A/87B 192A/192B 326A SOVP No. 15327 10543 10531 10532 ER No. 9602679 9602699 9602801 9602921 Votes in SOVP 27 13 20 43 Votes in ER 27 13 19 53 Votes Affected 0 0 -1 +10

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TOTAL +9 B. With regard to the votes of petitioner: Precinct No. 1 2 3 4 5 35A/36A 61A/63A 264A/265A 324A/325A 328B SOVP No. 10543 10539 10528 10533 10527 9602647 9602672 9602871 9602920 9602924 ER No. Votes in SOVP 40 55 39 62 33 Votes in ER 33 50 29 61 32 Votes Affected -7 -5 -10 -1 -1

TOTAL -24 The COMELEC concluded that nine votes should be added to the total number of votes garnered by private respondent; while 24 votes should be deducted from the total number of votes obtained by petitioner. Thus, the total number of votes obtained by private respondent was 10,980, while the total number of votes received by petitioner was 10,957. As such, private respondent was rightfully the 12th winning candidate for the Sangguniang Panglungsod of Tuguegarao City, Cagayan. Petitioner filed a motion for reconsideration which was denied by the COMELEC En Banc on October 9, 2008. Hence, this Petition for Certiorari11 raising the issue of whether or not the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction when it took cognizance of private respondents petition for correction of manifest errors in the Election Returns and Statement of Votes despite its late filing. Petitioner avers that private respondents petition for correction of manifest errors should have been dismissed outright for failure to show any justification for its late filing; that, if the petition had been properly dismissed, private respondent had other remedies available, such as an election protest. Rule 27, Section 5 of the 1993 COMELEC Rules of Procedure expressly states that: Pre-proclamation Controversies Which May Be Filed Directly with the Commission (a) The following pre-proclamation controversies may be filed directly with the Commission: xxxx 2) When the issue involves the correction of manifest errors in the tabulation or tallying of the results during the canvassing as where (1) a copy of the election returns or certificate of canvass was tabulated more than once, (2) two or more copies of the election returns of one precinct, or two or more copies of certificate of canvass were tabulated separately, (3) there has been a mistake in the copying of the figures into the statement of votes or into the certificate of canvass, or (4) so-called returns from non-existent precincts were included in the canvass, and such errors could not have been discovered during the canvassing despite the exercise of due diligence and proclamation of the winning candidates had already been made. xxxx If the petition is for correction, it must be filed not later than five (5) days following the date of proclamation and must implead all candidates who may be adversely affected thereby. While the petition was indeed filed beyond the 5-day reglementary period, the COMELEC however has the discretion to suspend its rules of procedure or any portion thereof. Sections 3 and 4 of Rule 1 of the COMELEC Rules of Procedure state, to wit: Sec. 3. Construction. These rules shall be liberally construed in order to promote the effective and efficient implementation of the objectives of ensuring the holding of free, orderly, honest, peaceful and credible elections and to achieve just, expeditious and inexpensive determination and disposition of every action and proceeding brought before the Commission. Sec. 4. Suspension of the Rules. In the interest of justice and in order to obtain speedy disposition of all matters pending before the Commission, these rules or any portion thereof may be suspended by the Commission. Certainly, such rule of suspension is in accordance with the spirit of Section 6, Article IX-A of the Constitution which bestows upon the COMELEC the power to "promulgate its own rules concerning pleadings and practice before it or before any of its

Election Laws offices" to attain justice and the noble purpose of determining the true will of the electorate.12 In Jaramilla v. Commission on Elections13 and Dela Llana v. Commission on Elections,14 the Court affirmed the COMELECs suspension of its rules of procedure regarding the late filing of a petition for correction of manifest error and annulment of proclamation in view of its paramount duty to determine the real will of the electorate. We have consistently employed liberal construction of procedural rules in election cases to the end that

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the will of the people in the choice of public officers may not be defeated by mere technical objections.15 In the instant case, records show that petitioner was declared the 12th winning candidate based on SOVPs containing mathematical and clerical errors. The total number of votes in the SOVPs of the identified precincts are markedly different from the votes tabulated in their respective ERs, i.e., petitioner was given additional votes, while private respondents votes were reduced,

which altered the outcome of the election. Petitioner was declared the last winning candidate for the position of Sangguniang Panglungsod of Tuguegarao City, instead of private respondent. In Torres v. Commission on Elections,16 the Court reiterated that while the remedy of the losing party is an election protest after his opponent has already been proclaimed as winning candidate, such recourse is on the assumption, however, that there has been a valid proclamation. Where a proclamation is null and void, the proclamation is no proclamation at all and the proclaimed candidate's assumption of office cannot deprive the COMELEC of the power to declare such nullity and annul the proclamation.17 It is significant to note that petitioner did not assail the factual findings of the COMELEC of manifest error in the tabulation of votes but only raised issues on the foregoing technicalities. Hence, the COMELECs unrebutted findings of fact are therefore sustained. Grave abuse of discretion arises when a lower court or tribunal violates the Constitution, the law or existing jurisprudence. Grave abuse of discretion means such capricious and whimsical exercise of judgment as would amount to lack of jurisdiction; it contemplates a situation where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, so patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform the duty enjoined by, or to act at all in contemplation of law. In a certiorariproceeding, as in the instant case, it is imperative for petitioner to show caprice and arbitrariness on the part of the court or agency whose exercise of discretion is being assailed.18 For acting pursuant to its Constitutional mandate of determining the true will of the electorate with substantiated evidence, the Court finds no grave abuse of discretion on the part of COMELEC in annulling the proclamation of petitioner. Said proclamation is flawed from the beginning because it did not reflect the true and legitimate will of the electorate. Having been based on a faulty tabulation, there can be no valid proclamation to speak of.19 WHEREFORE, this petition for certiorari is DISMISSED for lack of merit. The December 20, 2007 Resolution of the Second Division of the Commission on Elections (COMELEC) and the October 9, 2008 Resolution of the COMELEC En Banc are hereby AFFIRMED. SO ORDERED.

BINCE, JR. vs. COMELEC (242 SCRA 273, G.R. Nos. 1116248 25, March 9, 1995)

Petitioner Alfonso C. Bince, Jr. and private respondent Emiliano S. Micu were among the candidates in the synchronized elections of May 11, 1992 for a seat in the Sanguniang Panlalawigan of the Province of Pangasinan allotted to its Sixth Legislative District.

Ten (10) municipalities, including San Quintin, Tayug and San Manuel, comprise the said district.

During the canvassing of the Certificates of Canvass (COC's) for these ten (10) municipalities by respondent Provincial Board of Canvassers (PBC) on May 20, 1992, private respondent Micu objected to the inclusion of the COC for San Quintin on the ground that it contained false statements. Accordingly, the COCs for the remaining nine (9) municipalities were included in the canvass. On May 21, 1992, the PBC rules against the objection of private respondent. 1 From the said ruling, private respondent Micu appealed to the Commission on Elections (COMELEC), which docketed the case as SPC No. 92-208.

On June 6, 1992, the COMELEC en banc promulgated a resolution which reads:

Acting on the appeal filed by petitioner-appellant Atty. Emiliano S. Micu to the ruling of the Provincial Board of Canvassers of Pangasinan, dated May 21, 1992, the Commission en banc tabulated the votes obtained by candidates Atty. Emiliano S. Micu and Atty. Alfonso C. Bince for the position of Sangguniang Panlalawigan member of the province of Pangasinan, using as basis thereof the statement of votes by precinct submitted by the municipality of San Quintin, Pangasinan, as (sic) a result of said examination, the Commission rules, as follows:

1. That the actual number of votes obtained by candidate Alfonso C. Bince in the municipality of San Quintin, Pangasinan is 1,055 votes whereas petitioner/appellant Atty. Emiliano S. Micu obtained 1,535 votes for the same municipality.

Accordingly, the Provincial Board of Canvassers for the province of Pangasinan is directed to CREDIT in favor of petitioner/appellant Atty. Emiliano S. Micu with 1,535 votes and
8

Election Laws candidate Alfonso C. Bince with 1,055 votes in the municipality of San Quintin, Pangasinan. 2

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Twenty-one (21) days after the canvass of the COCs for the nine (9) municipalities was completed on May 20, 1992, private respondent Micu together with the Municipal Boards of Canvassers (MBCs) of Tayug and San Manuel filed with the PBC petitions for correction of the Statements of Votes (SOVs) earlier prepared for alledged manifest errors committed in the computation thereof.

parties should be proclaimed" 6 averring that "there were corrections already made in a separate sheet of paper of the Statements of Votes and Certificates of Canvass of Tayug and San Manuel, Pangasinan which corrections if to be considered by the Board in its canvass and proclamation, candidate Emiliano will win by 72 votes. On the other hand, if these corrections will not be considered, candidate Alfonso Bince, Jr. will win by one (1) vote. 7 On even date, the COMELEC promulgated its resolution, the dispositive portion of which reads:

In view of the motion of herein petitioner to implement the Resolution of June 6, 1992 which was alleged to have become final, the PBC, on June 18, 1992, credited in favor of the petitioner and private respondent the votes for each as indicated in the said resolution and on the basis of the COCs for San Quintin and the other nine (9) municipalities, petitioner had a total of 27,370 votes while the private respondent had 27,369 votes. Petitioner who won by a margin of 1 vote was not, however, proclaimed winner because of the absence of authority from the COMELEC.

(1) To RECONVENE immediately and complete the canvass of the Certificates of Votes, as corrected, of the municipalities comprising the 6th District of Pangasinan;

(2) To PROCLAIM the winning candidate for Member of the provincial Board, 6th District of Pangasinan, on the basis of the completed and corrected Certificates of Canvass, aforesaid; in accordance with the law, the rules and guidelines on canvassing and proclamation. 8

Accordingly, petitioner filed a formal motion for such authority.

On June 29, 1992, the COMELEC en banc promulgated a Supplemental Order 3 directing the PBC "to reconvene, continue with the provincial canvass and proclaim the winning candidates for Sangguniang Panlalawigan for the Province of Pangasinan, and other candidates for provincial offices who have not been proclaimed 4 as of that date.

As directed therein, the PBC on July 21, 1992, by a vote of 2-1 with its Chairman Atty. Felimon Asperin dissenting, proclaimed candidate Bince as the duly elected member of the Sangguniang Panlalawigan of Pangasinan. Assailing the proclamation of Bince, private respondent Micu filed an Urgent Motion for Contempt and to Annul Proclamation and Amended Urgent Petition for Contempt and Annul Proclamation on July 22 and 29, 1992, respectively, alleging that the PBC defied the directive of the COMELEC in its resolution of July 9, 1992. Acting thereon, the COMELEC promulgated a resolution on July 29, 1992, the decretal portion of which reads:

In the meantime, on June 24, 1992, the PBC, acting on the petitions for correction of the SOVs of Tayug and San Manuel filed by private respondent and the MBCs of the said municipalities, rules "to allow the Municipal Boards of Canvassers of the municipalities of Tayug and San Manuel, Pangasinan to correct the Statement of Votes and Certificates of Canvass and on the basis of the corrected documents, the Board (PBC) will continue the canvass and thereafter proclaim the winning candidate. 5

The Commission RESOLVED, as it hereby RESOLVES:

On June 25, 1992, petitioner Bince appealed from the above ruling allowing the correction alleging that the PBC had no jurisdiction to entertain the petition. The appeal was docketed as SPC No. 92-384.

1. To direct Prosecutor Jose Antonio Guillermo and Supt. Primo Mina, vice-chairman and secretayr, respectively, of the Provincial Board of Canvassers of Pangasinan, to show cause why they should not be declared in contempt of defying and disobeying the Resolution of this Commission dated 09 July 1992, directing them to RECOVENE immediately and complete the canvass of the Certificates of Votes as corrected, of the Municipal Boards of Canvassers of the Municipalities comprising the 6th District of Pangasinan; and to PROCLAIM the winning candidate of the Provincial Board, 6th District of Pangasinan, on the basis of the completed and corrected Certificates of Canvass, aforesaid; instead they excluded the corrected Certificated of Canvass of the Municipal Boards of Canvassers of Tayug and San Manuel, Pangasinan;

On July 8, 1992, private respondent Micu filed before the COMELEC an urgent motion for the issuance of an order directing the PBC to reconvene and proceed with the canvass. He alleged that the promulgation of COMELEC Resolution No. 2489 on June 29, 1992 affirmed the ruling of the PBC dated June 24, 1992. Similarly, petitioner Bince filed an urgent petition to cite Atty. Felimon Asperin and Supt. Primo. A. Mina, Chairman and Member, respectively, of the PBC, for Contempt with alternative prayer for proclamation as winner and Injunction with prayer for the issuance of Temporary Restraining Order (TRO).

2. To ANNUL the proclamation dated 21 July 1992, by the said Provincial Board of Canvassers (dissented by Chairman Felimon Asperin), of candidate Alfonso Bince;

On July 9, 1992, the PBC Chairman, Atty. Felimon Asperin, filed a petition with the COMELEC seeking a "definitive ruling and a clear directive or order as to who of the two (2) contending

3. To DIRECT the Provincial Board of Canvassers to recovene immediately and proclaim the winning candidate for the second position of the Provincial Board, 6th District of Pangasinan, on the basis of the completed and corrected Certificates of Canvass submitted by the Municipal Boards of Canvassers of all the municipalities in the 6th District of Pangasinan, in accordance with law. 9

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Consequently, petitioner filed a special civil action for certiorari before this Court seeking to set aside the foregoing resolution of the COMELEC, contending that the same was promulgated without prior notice and hearing with respect to SPC No. 92-208 and SPC No. 92-384. The case was docketed as G.R. No. 106291.

On February 9, 1993, the Court en banc 10 granted the petition ratiocinating that:

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 (Section 248, Omnibus Election Code [B.P. Blg. 881]), We had ruled in Farinas vs. Commission on Elections (G.R. No. 81763, 3 March 1988), Reyes vs. Commission on Elections G.R. No. 81856, 3 March 1988) and Gallardo vs. Commission on Elections (G.R. No. 85974, 2 May 1989) that the COMELEC is without power to partially or totally annul a proclamation or suspend the effects of a proclamation without notice and hearing.

Respondent COMELEC acted without jurisdiction or with grave abuse of discretion in annulling the petitioner's proclamation without the requisite due notice and hearing, thereby depriving the latter of due process. Moreover, there was no valid correction of the SOVs and COCs for the municipalities of Tayug and San Manuel to warrant the annullment of the petitioner's proclamation.

xxx

xxx

xxx

1. Petitioner had been proclaimed, had taken his oath of office and had assumed the position of the second elected member of the Sangguniang Panlalawigan of the Province of Pangasinan for its Sixth Legislative District. Such proclamation enjoys the presumption of regularly and validity. The ruling of the majority of the PBC to proclaim the petitioner is based on its interpretation of the 9 July 1992 Resolution of respondent COMELEC which does not expressly single out the corrected COCs of Tayug and San Manuel; since, as of that time, the only corrected COC which existed was that for San Quintin, which was made by the PBC on 18 June 1992, the majority of the PBC cannot be faulted for ruling the way it did. the 9 July 1992 Resolution (Rollo, p. 51) merely directed it:

Furthermore, the said motion to annul proclamation was treated by the respondent COMELEC as a Special Case (SPC) because its ruling therein was made in connection with SPC No. 92-208 and SPC No. 92-384. Special Cases under the COMELEC RULES OF PROCEDURE involve the pre-proclamation controversies (Rule 27 in relation to Section 4(h)l Rule 1, and Section 4, Rule 7). We have categorically declared in Sarmiento vs. Commission on Elections (G.R. No. 105628, and companion cases, 6 August 1992) that pursuant to Section 3, Article IX-C of the 1987 Constitution, . . . the commission en banc does not have jurisdiction to hear and decide pre-proclamation cases at the first instance. Such cases should first be referred to a division

(1) To RECOVENE immediately and complete the canvass of the Certificates of Votes, as corrected, of the Municipal Boards of Canvassers of the municipalities comprising the 6th District of Pangasinan;

Hence, the COMELEC en banc had no jurisdiction to decide on the aforesaid to annul the proclamation; consequently, its 29 July 1992 Resolution is motion is null and void. For this reason too, the COMELEC en banc Resolution of 6 June 1992 in SPC No. 92-2()8 resolving the private respondent's appeal from the ruling of the PBC with respect to the COC of San Quintin is similarly void.

(2) To PROCLAIM the winning candidate for Member of the Provincial Board, 6th District of Pangasinan, on the basis of the completed and corrected Certificates of Canvass, aforesaid; in accordance with the law, the rules and guideline on canvassing and proclamation. (Emphasis supplied)

The PBC thus had every reason to believe that the phrase "completed and corrected" COCs could only refer to the nine 99) COCs for the nine municipalities, canvass for which was completed on 21 May 1992, and that of San Quintin, respectively. Verily, the above resolution is vague and ambiguous.

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 (Article III, 1987 Constitution), and one cannot acquire a vested right to public office (CRUZ, I.A., Constitutional Law, 1991 ed., 101), it is, nevertheless, a protected right (BERNAS J., The Constitution of the Republic of the Philippines, vol. I, 1987 ed., 40, citing Segovia vs. Noel, 47 Phil. 543 [1925] and Borja vs. Agoncillo, 46 Phil. 432 [1924]). Due process in proceedings before the respondent COMELEC,

2. It is to be noted, as correctly stressed by the petitioner, that there are no valid corrected Statements of Votes and Certificates of Canvass for Tayug and San Manuel; thus, any reference to such would be clearly unfounded. While it may be true that on 24 June 1992, the PBC, acting on simultaneous petitions to correct the SOVs and COCs for Tayug and San Manuel ordered the MBCs for these two (2) municipalities to make the appropriate corrections in the said SOVs and their corresponding COCs, none of said Boards convened to the members of actually implement the order. Such failure could have been due to the appeal seasonably interposed by the petitioner to the COMELEC or the fact that said members simply chose not to act thereon. As already adverted to the so-called "corrected" Statements of Votes and Certificates of Canvass consist of sheets of paper signed by the respective Election Registrars of Tayug (Annex "F-l" of Comment of private respondent; Annex "A" of Consolidated Reply of petitioner) and San Manuel (Annex "F-2, Id.; Annex "B", Id.). These are not valid corrections because the Election Registrars, as Chairmen of the MBCs cannot, by themselves, act for their Section 225 of the respective Board. Section 225 of the Omnibus Election Code (B.P. Blg. 881) provides that "[A] majority vote of all the members of the board of canvassers shall be necessary to render a decision." That majority means at least two (2) of the three (3) members constituting the Board (Section 20(c) of the Electoral Reforms Law of 1987 (R.A. No. 6646) provides that the "municipal board of canvassers shall be composed of the election registrar or a representative of the Commission, as

Election Laws chairman, the municipal treasurer, as vice-chairman, and the most senior district school supervisor or in his absence a principal of the school district or the elementary school, as members"). As to why the Election Registrars, in their capacities as Chairmen, were 7th only ones who prepared the so-called correction sheets, is beyond Us. There is no showing that the other members of the Boards were no longer available. Since they are from the Province of Pangasinan, they could have been easily summoned by the PBC to appear before it and effect the corrections on the Statements of Votes and Certificates of Canvass.

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Besides, by no stretch of the imagination can these sheets of paper be considered as the corrected SOVs and COCs. Corrections in a Statement of Vote and a Certificate of Canvass could only be accomplished either by inserting the authorized corrections into the SOV and COC which were originally prepared and submitted by the MBC or by preparing a new SOV and COC incorporating therein the authorized corrections. Thus, the statement in the 29 July 1992 Resolution of the COMELEC referring to "the Certificates of Canvass of the municipal Boards of Canvassers of Tayug and San Manuel" (Last clause, paragraph 1 of the dispositive portion, Annex "A" of Petition: Rollo 15), is palpably unfounded. The Commission could have 7 been misled by Atty. Asperin's ambiguous reference to "corrections already made in separate sheets of paper of the Statements of Votes and Certificate of Canvass of Tayug and San Manuel, Pangasinan" (Quoted in the Resolution of 9 July 1992; Id., 50-51), in his petition asking the COMELEC to rule on who shall be proclaimed. However, if it only took the trouble to carefully examine what was held out to be as the corrected documents, respondent COMELEC should not have been misled.

Resolution because the same was promulgated to resolve the Urgent Motion For Contempt and to Annul Proclamation filed by the private respondent. Furthermore, before the resolution of SPC No. 92-384 on the abovementioned date, no hearing was set or conducted to resolve the pending motion. Therefore, on this ground alone, the 29 July 1992 Resolution, even if it was meant to resolve the appeal, is a patent nullity for having been issued in gross violation of the requirement of notice and hearing mandated by Section 246 of the Omnibus Election Code, in relation to Section 18 of R.A. No. 7166 and Section 6, Rule 27 of the COMELEC Rules of Procedure, and for having been resolved by the COMELEC en banc at the first instance. The case should have been referred first to a division pursuant to Section 3, Article IX-C of the 1987 constitution and Our ruling in Sarmiento vs. Commission on Elections. Moreover, the COMELEC's claim that the questioned resolution affirmed the correction made by the Board is totally baseless. The PBC did not make any corrections. It merely ordered the Municipal Boards of Canvassers of Tayug and San Manuel to make such corrections. As earlier stated, however, the said MBCs did not convene to make these corrections. It was the Chairmen alone who signed the sheets of paper purporting to be corrections.

For being clearly inconsistent with the intention and official stand of respondent COMELEC, private respondent COMELEC private respondent's theory of termination under the second paragraph of Section 16 of R.A. No. 7166, and the consequent affirmance of the ruling of the PBC ordering the correction of the number of votes, must necessarily fail.

The foregoing considered, the proclamation of the private respondent on, 13 August 1992 by the Provincial Board of Canvassers of Pangasinan is null and void.

Even if We are to assume for the sake of argument that these sheets of paper constitute sufficient corrections, they are, nevertheless, void and of no effect. At the time the Election Registrars prepared them on 6 July 1992 respondent COMELEC had not yet acted on the petitioner's appeal (SPC No. 92-384) from the 24 June 1992 ruling of the PBC authorizing the corrections. Petitioner maintains that until now, his appeal has not been resolved. The public respondent, on the other hand, through the Office of the Solicitor General, claims that the same had been:

WHEREFORE, the instant petition is GRANTED. The challenged resolution of the respondent Commission on Elections of 29 July 1992 and the proclamation of the private respondent on 13 August 1992 as the second Member of the Sangguniang Panlalawigan of the Province of Pangasinan, representing its Sixth Legislative District ANNULLED and SET ASIDE and respondent Commission on Elections is DIRECTED to resolve the pending incidents conformably with the foregoing disquisitions and pronouncements.

. . . resolved in the questioned resolution of July 29, 1992, where COMELEC affirmed respondents (sic) Board's correction that petitioner only received 2,415 votes in Tayug and 2,179 in San Manuel (see p. 2, Annex "A", Petition) (Rollo, p. 71)

No costs.

SO ORDERED. 11

On the same matter, the private respondent asserts that:

This SPC-92-384, is however, deemed terminated and the ruling of the PBC is likewise deemed affirmed by virtue of the 2nd par., Sec. 16, R.A. No. 7166, supra and Comelec en banc Resolution No. 2489, supra, dated June 29, 1992 (Id., 36);

On February 23, 1993, private respondent Micu filed an Urgent Omnibus Motion before the COMELEC praying that the latter hear and resolve the pending incidents referred to by this Court. Private respondent was obviously referring to SPC No. 92-208 and SPC No. 92-384, both cases left unresolved by the COMELEC.

If We follow the respondent COMELEC's contention to its logical conclusion, it was only on 29 July 1992 that SPC No. 92-384 was resolved; consequently, the so-called "correction sheets" were still prematurely prepared. In any event, the COMELEC could not have validly ruled on such appeal in its 29 July 1992

Consequently, the First Division of the COMELEC set the cases for hearing on March 8, 1993. During the hearing, both Micu and Bince orally manifested the withdrawal of their respective appeals. Also withdrawn were the petitions to disqualify Atty. Asperin and to cite the Board for contempt. The parties agreed to

Election Laws file their respective memoranda/position papers by March 15, 1993.

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The PBC is likewise ordered to proclaim the second elected member of the Sangguniang Panlalawigan of the Sixth Legislative District of Pangasinan.

Petitioner Bince filed his Position Paper on March 12, 1993 arguing that the withdrawal of SPC No. 92-208 affirmed the ruling of the PBC dated May 21, 1992 and even if it were not withdrawn, Section 16 of R.A. 7166 would have worked to terminate the appeal. Bince likewise asserts that his appeal in SPC No. 92-384 became moot and academic in view of this Court's ruling nullifying the June 24, 1992 order of the PBC granting the petitions for correction of the SOVs and COCs of Tayug and San Manuel aside from being superseded by the PBC ruling proclaiming him on July 21, 1992.

SO ORDERED. 13

This is the resolution assailed in the instant petition for certiorari.

We do not find merit in this petition and accordingly rule against petitioner.

On the other hand, private respondent Micu, in his Position Paper filed on March 15, 1993 postulated that the petitions filed on June 11, 1992 for the correction of the SOVs and COCs of Tayug and San Manuel under Section 6 of Rule 27 of the Comelec Rules of Procedure, as well as the ruling of the PBC of June 24, 1992 granting the same were valid so that the withdrawal of Bince's appeal in SPC No. 92-384 firmly affirmed the PBC ruling of June 24, 1992 allowing the corrections.

Respondent COMELEC did not act without jurisdiction or with grave abuse of discretion in annulling the proclamation of petitioner Alfonso Bince, Jr. and in directing the Provincial Board of Canvassers of Pangasinan to order the Municipal Boards of Canvassers of Tayug and San Manuel to make the necessary corrections in the SOVs and COCs in said municipalities and to proclaim the winner in the sixth legislative district of Pangasinan.

On July 15, 1993, the First Division of the COMELEC promulgated a Resolution, the dispositive portion of which reads:

Viewed from the foregoing considerations, the Commission (First Division) holds that the petitioner Alfonso C. Bince Jr. is entitled to sit as member of the Sangguniang Panlalawigan, Sixth District of Pangasinan.

ACCORDINGLY, the Commission (First Division) RESOLVED, as it hereby RESOLVES, to AFFIRM the proclamation of petitioner Alfonso C. Bince, Jr. by the Provincial Board of Canvassers of Pangasinan on 21 July 1992 as the duly elected member of the Sangguniang Panlalawigan of the Sixth District of the Province of Pangasinan. 12

At the outset, it is worthy to observe that no error was committed by respondent COMELEC when it resolved the "pending incidents" of the instant case pursuant to the decision of this Court in the aforesaid case of Bince, Jr. v. COMELEC on February 9, 1993 Petitioner's contention that his proclamation has long been affirmed and confirmed by this Court in the aforesaid case is baseless. In Bince, we nullified the proclamation of private respondent because the same was done without the requisite due notice and hearing, thereby depriving the petitioner of his right to due process. In so doing, however, we did not affirm nor confirm the proclamation of petitioner, hence, our directive to respondent COMELEC to resolve the pending incidents of the case so as to ascertain the true and lawful winner of the said elections. In effect, petitioner's proclamation only enjoyed the presumption of regularity and validity of an official act. It was not categorically declared valid.

On July 20, 1993, private respondent Micu filed a Motion for reconsideration of the above-quoted resolution.

Neither can the COMELEC be faulted for subsequently annulling the proclamation of petitioner Bince on account of a mathematical error in addition committed by respondent MBCs in the computation of the votes received by both petitioner and private respondent.

On September 9, 1993, the COMELEC en banc granted the private respondentls motion for reconsideration in a resolution which dispositively reads as follows:

WHEREFORE, premises considered, the Motion for Reconsideration filed by respondent Emiliano S. Micu is granted. The Resolution of the Commission First Division is hereby SET ASIDE. The proclamation of petitioner Alfonso Bince, Jr. on July 21, 1992 is hereby declared null and void. Accordingly, the Provincial Board of Canvassers is hereby directed to reconvene, with proper notices, and to order the Municipal Board of Canvassers of San Manuel and Tayug to make the necessary corrections in the SOVs and COCs in the said municipalities. Thereafter, the Provincial Board of Canvassers is directed to include the results in the said municipalities in its canvass.

The petitions to correct manifest errors were filed on time, that is, before the petitioner's proclamation on July 21, 1992. The petition of the MBC of San Manuel was filed on June 4, 1992 while that of still, the MBC of Tayug was filed on June 5, 1992. Still, private respondent's petition was filed with the MBCs of Tayug and San Manuel on June 10, 1992 and June 11, 1992, respectively, definitely well within the period required by Section 6 (now Section 7), Rule 27 of the COMELEC Rules of Procedure. Section 6 clearly provides that the petition for correction may be filed at any time before proclamation of a winner, thus:

Sec. 6. Correction of errors in tabulation or tallying of results by the board of canvassers. (a) Where it is clearly shown before proclamation that manifest errors were committed in the tabulation or tallying of election returns, or certificates of canvass, during the canvassing as where (1) a copy of the election returns of one precinct or two or more copies of a

Election Laws certificate of canvass was tabulated more than once, (2) two copies of the election returns or certificate of canvass were tabulated separately, (3) there had been a mistake in the adding or copying of the figures into the certificate of canvass or into the statement of votes, or (4) so-called election returns from nonexistent precincts were included in the canvass, the board may, motu propio, or upon verified petition by any candidate, political party, organization or coalition of political parties, after due notice and hearing, correct the errors committed.

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their elective officials. And also settled is the rule that laws governing election contests must be liberally construed to the end that the will of the people in the choice of public officials may not be defeated by mere technical objections (Gardiner v. Romulo, 26 Phil. 521; Galang v. Miranda, 35 Phil. 269; Jalandoni v. Sarcon, G.R. No. L-6496, January 27, 1962; Macasunding v. Macalanang, G.R. No. L-22779, March 31, 1965; Cauton v. Commission on Elections, G.R. No. L-25467, April 27, 1967). In an election case the court has an imperative duty to ascertain all means within its command who is the real candidate elected by the electorate (Ibasco v. Ilao, G.R. No. L-17512, December 29, 1960). . . . (Juliano vs. Court of Appeals, supra, pp. 818-819). (Emphasis ours)

(b) The order for correction must be in writing and must be promulgated.

(c) Any candidate, political party, organization or coalition of political parties aggrieved by said order may appeal therefrom to the Commission within twenty-four (24) hours from the promulgation.

In the later case of Rodriguez vs. Commission on Elections (119 SCRA 465), this doctrine was reiterated and the Court went on to state that:

(d) Once an appeal is made, the board of canvassers shall not proclaim the winning candidates, unless their votes are not affected by the appeal.

(e) The appeal must implead as respondents all parties who may be adversely affected thereby.

Since the early case of Gardiner v. Romulo (26 Phil. 521), this Court has made it clear that it frowns upon any interpretation of the law or the rules that would hinder in any way not only the free and intelligent casting of the votes in an election but also the correct ascertainment of the results, This bent or disposition continues to the present. (Id., at p. 474).

(f) Upon receipt of the appeal, the Clerk of Court concerned shall forthwith issue summons, together with a copy of the appeal, to the respondents.

The same principle still holds true today. Technicalities of the legal rules enunciated in the election laws should not frustrate the determination of the popular will.

(g) The Clerk of Court concerned shall immediately set the appeal for hearing.

(h) The appeal shall be heard an decided by he Commission en banc (Emphasis ours).

The rule is plain and simple. It needs no other interpretation contrary to petitioner's protestation.

Assuming for the sake of argument that the petition was filed out of time, this incident alone will not thwart the proper determination and resolution of the instant case on substantial grounds. Adherence to a technicality that would put a stamp of validity on a palpably void proclamation, with the inevitable result of frustrating the people's will cannot be countenanced. In Benito v. COMELEC, 14 categorically declared that:

Undoubtedly therefore, the only issue that remains unresolved is the allowance of the correction of what are purely mathematical and/or mechanical errors in the addition of the votes received by both candidates. It does not involve the opening of ballot boxes; neither does it involve the examination and/or appreciation of ballots. The correction sought by private respondent and respondent MBCs of Tayug and San Manuel is correction of manifest mistakes in mathematical addition. Certainly, this only calls for a mere clerical act of reflecting the true and correct votes received by the candidates by the MBCs involved. In this case, the manifest errors sought to be corrected involve the proper and diligent addition of the votes in the municipalities of Tayug and San Manuel, Pangasinan.

In Tayug, the total votes received by petitioner Bince was erroneously recorded as 2,486 when it should only have been 2,415. Petitioner Bince, in effect, was credited by 71 votes more.

. . . Adjudication of cases on substantive merits and not on technicalities has been consistently observed by this Court. In the case of Juliano vs. Court of Appeals (20 SCRA 808) cited in Duremdes vs. Commission on Elections (178 SCRA 746), this Court had the occasion to declare that:

In San Manuel, petitioner Bince received 2,179 votes but was credited with 6 votes more, hence, the SOV reflected the total number of votes as 2,185. On the other hand, the same SOV indicated that private respondent Micu garnered 2,892 votes but he actually received only 2,888, hence was credited in excess of 4 votes.

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

Consequently, by margin of 72 indisputably won the challenged Panlalawigan of the sixth district proclamation and assumption into

votes, private respondent seat in the Sangguniang of Pangasinan. Petitioner's public office was therefore

Election Laws flawed from the beginning, the same having been based on a faulty tabulation. Hence, respondent COMELEC did not commit grave abuse of discretion in setting aside the illegal proclamation.

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As a parting note, we reiterate' our concern with respect to insignificant disputes plaguing this Court. Trifles such as the one at issue should not, as much as possible, reach this Court, clog its docket, demand precious judicial time and waste valuable taxpayers' money, if they can be settled below without prejudice to any party or to the ends of justice.

In his answer and counter-protest, with a petition for preliminary hearing on the special and affirmative defenses, respondent Ramirez denied the charges. He counter-protested the results of the elections in certain precincts where, he claimed, Libanan engaged in massive vote buying, lansadera, terrorism and tearing of the list of voters to disenfranchise voters therein listed. Accordingly, he prayed, inter alia, for the dismissal of the protest and the confirmation of his election as the duly elected representative of the Lone District of Eastern Samar.

WHEREFORE, the instant petition is hereby DISMISSED with costs against petitioner.

SO ORDERED.

LIBANAN vs. HRET (283 SCRA 520, G.R. No. 129783, 9 December 22, 1997)

After some peripheral issues were settled by the HRET, the revision of ballots in the protested precincts commenced on 20 February 1996. The HRET noted that Libanan contested a total of seventy-nine (79) precincts. It was noted during the revision, however, that six (6) of the contested precincts, namely, Precincts Nos. 14, 15, 16, 18, 19 and 20 of Arteche, were found to have been merged during the 08 May 1995 elections into three (3) precincts, i.e., Precincts Nos. 14 and 19, Precincts Nos. 15 and 16 and Precincts Nos. 18 and 20. Thus, only seventy-six (76) ballot boxes were actually opened for revision, one of which, Precinct No. 4-1 of Guiuan, did not contain any ballot.

The 28th May 1997 decision of the House of Representatives Electoral Tribunal ("HRET"), which affirmed the proclamation of herein private respondent Jose Tan Ramirez declaring him to be the duly elected Representative of Eastern Samar for having obtained the plurality of votes over petitioner Marcelino Libanan, and the 20th June 1997 resolution of the HRET, which denied with finality petitioner's motion for reconsideration, are sought to be annulled in this special civil action for certiorari.

On 22 February 1996, while the revision of the counter-protested precincts was being held, Ramirez filed an "Urgent Motion to Withdraw/Abandon Counter-Protest in Specific Municipalities/Precincts" praying that he be granted leave to withdraw and abandon partially his counter-protest in certain precincts. 1 Libanan filed an opposition thereto but the motion was eventually granted by the Chairman of the HRET and subsequently confirmed in a resolution by the tribunal.

Petitioner Marcelino Libanan and private respondent Jose Ramirez were among the candidates for the lone congressional seat of Eastern Samar in the May 1995 elections. After the canvass of the returns was made on 13 May 1995, the Provincial Board of Canvassers of Eastern Samar proclaimed respondent Ramirez to have been duly elected Representative of the District with a total of forty-one thousand five hundred twenty-three (41,523) votes, compared to petitioner's forty thousand eight hundred sixty-nine (40,869) votes, or a margin of six hundred fifty-four(654) votes over those of petitioner.

On 21 March 1996, the HRET designated a Hearing Commissioner and a Deputy Hearing Commissioner for the reception of evidence. Following that reception, the respective memoranda of Libanan and Ramirez were filed.

Petitioner Libanan seasonably filed an election protest before the HRET claiming, among other things, that the 08th May 1995 elections in Eastern Samar were marred by massive electoral irregularities perpetrated or instigated by respondent Ramirez, as well as his leaders and followers, in the twenty-three (23) municipalities of the lone district of Eastern Samar with the aid, in various instances, of peace officers supposedly charged with maintaining an orderly and honest election. Petitioner contested seventy-nine (79) precincts in five (5) municipalities. He also maintained that the election returns and/or ballots in certain precincts were tampered with, substituted, or systematically marked in favor of respondent Ramirez. Libanan prayed that, after due proceedings, the HRET should issue an order to annul the election and proclamation of Ramirez and to thereafter so proclaim petitioner as the duly elected Representative of the Lone District of Eastern Samar.

The evidence and the issues submitted by the parties for consideration by the HRET related mainly to the proper appreciation of the ballots objected to, or claimed by, the parties during the revision. No evidence was presented in support of the other allegations of the protest (like the alleged tampering of election returns) and of the counter-protest (such as the alleged tearing of some of the pages of the computerized list of voters to disenfranchise legitimate voters and the use of goons to terrorize and compel voters to vote for Libanan), nor were these issues discussed in the memoranda of the parties. The HRET thus concentrated, such as can be rightly expected, its attention to the basic appreciation of ballots. 2

The particular matter focused in this petition deals with what petitioner claims to be spurious ballots; on this score, the HRET has explained:

No spurious ballot was found in this case. For a ballot to be rejected for being spurious, the ballot must not have any of the following authenticating marks: a) the COMELEC watermark; b) the signatures or initial of the BEI Chairman at the back of the ballot; and c) red and blue fibers. In the present case, all the ballots examined by the Tribunal had COMELEC watermarks.

Election Laws The Tribunal did not adopt protestant's submission in his Memorandum that the absence of thumbmark or BEI Chairman's signature at the back of the ballot rendered the ballot spurious. The applicable law on this issue is Sec. 24, R.A. 7166. It reads:

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(30) votes because of the error in the computation of the base figure and rejected twelve (12) ballots for respondent Ramirez. Respondent Ramirez, nevertheless, remained to be the winner with a lead of ninety-nine (99) votes in his favor. As regards the absence of BEI Chairman's signature at the back of the ballots, the HRET stressed:

In every case before delivering an official ballot to the voter, the Chairman of the Board of Election Inspectors shall, in the presence of the voter, affix his signature at the back thereof. Failure to so authenticate shall be noted in the minutes of the board of election offense punishable under Section 263 and 264 of the Omnibus Election Code.

As may be gleaned above, unlike the provision of Section 210 of the Omnibus Election Code where the BEI Chairman was required to affix his right thumbmark at the back of the ballot immediately after it was counted, the present law no longer requires the same.

Anent the BEI Chairman's signature, while Section 24 of R.A. 7166 provides that failure to authenticate the ballot shall constitute an election offense, there is nothing in the said law which provides that ballots not so authenticated shall be considered invalid. In fact, the members of the Committee on Suffrage and Electoral Reforms agreed during their deliberation on the subject that the absence of the BEI Chairman's signature at the back of the ballot will not per se make a ballot spurious.

Fraud is not presumed. It must be sufficiently established. Moreover, Section 211 of the Omnibus Election Code provides in part that "in the reading and appreciation of ballots, every ballot shall be presumed to be valid unless there is clear and good reason to justify its rejection." In the instant case, there is no evidence to support protestant's allegation that the ballots he enumerated in his Motion for Reconsideration are substitute ballots. The absence of the BEI Chairman's signature at the back of the ballot cannot be an indication of ballot switching or substitution. At best, such absence of BEI Chairman's signature is a prima facie evidence that the BEI Chairmen concerned were derelict in their duty of authenticating the ballots. Such omission, as stated in the Decision, is not fatal to the validity of the ballots. 6

Thus, the present recourse.

Moreover, while Rep. Palacol, then Chairman of the Committee on Suffrage and Electoral Reforms, mentioned during his sponsorship speech that one of the salient features of the bill filed was "to require the chairman of the Board of Election Inspectors to authenticate a ballot given to a voter by affixing his signature on (sic) the back thereof and to consider any ballot as spurious," R.A. 7166, as approved, does not contain any provision to that effect. Clearly, therefore, the Congress as a whole (House of Representatives and Senate) failed to adopt the proposal of Rep. Palacol that ballots without the BEI Chairman's signature at the back will be declared spurious. What is clearly provided under the said law is the sanction imposable upon an erring Chairman of the BEI, and not the disenfranchisement of the voter. 3

A perusal of the grounds raised by petitioner to annul the HRET decision and resolution boils down to the issue of whether or not the HRET committed grave abuse of discretion in ruling that the absence of the signature of the Chairman of the BEI in the ballots did not render the ballots spurious.

Petitioner Libanan contends that the three hundred eleven (311) ballots (265 of which have been for private respondent Ramirez) without the signature of the Chairman of the BEI, but which had the COMELEC water-marks and/or colored fibers, should be invalidated. It is the position of petitioner that the purpose of the law in requiring the BEI Chairman to affix his signature at the back of the ballot when he issues it to the voter is "to authenticate" the ballot and, absent that signature, the ballot must be considered spurious.

Prefatorily, the Court touches base on its jurisdiction to review and pass upon decisions or resolutions of the electoral tribunals. In its assailed decision, the HRET ruled in favor of respondent Ramirez; it concluded: The Constitutions mandates that the House of Representatives Electoral Tribunal and the Senate Electoral Tribunal shall each, respectively, be the sole judge of all contests relating to the election, returns and qualifications of their respective members. 7 In Lazatin vs. HRET , 8 the Court has observed that

WHEREFORE, in light of the foregoing, the Tribunal Resolved to DISMISS the instant election protest, including the parties' mutual claims for damages and attorney's fee; AFFIRM the proclamation of Protestee Jose Tan Ramirez; and DECLARE him to be the duly elected Representative of the Lone District of Eastern Samar, for having obtained a plurality of 143 votes over second placer Protestant Marcelino Libanan. 4

Petitioner Libanan moved for a reconsideration of the decision of the HRET arguing, among other grounds, 5 that the absence of the BEI Chairman's signature at the back of the ballots could not but indicate that the ballots were not those issued to the voters during the elections. He averred that the law would require the Chairman of the BEI to authenticate or sign the ballot before issuing it to the voter. Acting on the petitioner's motion for reconsideration, the HRET credited petitioner Libanan with thirty

The use of the word "sole" emphasizes the exclusive character of the jurisdiction conferred. 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." Earlier this grant of power to the legislature was characterized by Justice Malcolm as "full, clear and complete." Under the amended 1935 Constitution, the power was unqualifiedly reposed upon the Electoral Tribunal and it remained as full, clear and complete as that previously granted the Legislature and the Electoral Commission. The same may be said with regard to the jurisdiction of the Electoral Tribunals under the 1987 Constitution. 9

Election Laws

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The Court has stressed that ". . . 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 . . . the power granted to the Electoral Tribunal . . . excludes the exercise of any authority on the part of this Court that would in any wise restrict it or curtail it or even affect the same."

Suffrage and Electoral Reforms agreed during their deliberation on the subject that the absence of the BEI Chairman's signature at the back of the ballot will not per se make a ballot spurious.

The Court did recognize, of course, its power of judicial review in exceptional cases. In Robles vs. HRET , 10 the Court has explained that while the judgments of the Tribunal are beyond judicial interference, the Court may do so, however, but only, "in the exercise of this Court's so-called extraordinary jurisdiction, . . . upon a determination that the Tribunal's decision or resolution was rendered without or in excess of its jurisdiction, or with grave abuse of discretion or paraphrasing Morrero, upon a clear showing of such arbitrary and improvident use by the Tribunal of its power as constitutes a denial of due process of law, or upon a demonstration of a very clear unmitigated error, manifestly constituting such grave abuse of discretion that there has to be remedy for such abuse."

Moreover, while Rep. Palacol, then Chairman of the Committee on Suffrage and Electoral Reforms, mentioned during his sponsorship speech that one of the salient features of the bill filed was "to require the chairman of the Board of Election Inspectors to authenticate a ballot given to a voter by affixing his signature on (sic) the back thereof and to consider any ballot as spurious," R.A. 7166, as approved, does not contain any provision to that effect. Clearly, therefore, the Congress as a whole (House of Representatives and Senate) failed to adopt the proposal of Rep. Palacol that ballots without the BEI Chairman's signature at the back will be declared spurious. What is clearly provided under the said law is the sanction imposable upon an erring Chairman of the BEI, and not the disenfranchisement of the voter. 15

The pertinent provision of the law, Section 24 of R.A. No. 7166, provides:

In the old, but still relevant, case of Morrero vs. Bocar, 11 the Court has ruled that the power of the Electoral Commission "is beyond judicial interference except, in any event, upon a clear showing of such arbitrary and improvident use of power as will constitute a denial of due process." The Court does not, to paraphrase it in Co vs. HRET, 12 venture into the perilous area of the correcting perceived errors of independent branches of the Government; it comes in only when it has to vindicate a denial of due process or correct an abuse of discretion so grave or glaring that no less than the Constitution itself calls for remedial action.

Sec. 24. Signature of Chairman at the back of Every Ballot. In every case before delivering an official ballot to the voter, the Chairman of the Board of Election Inspector shall, in the presence of the voter, affix his signature at the back thereof. Failure to authenticate shall be noted in the minutes of the Board of Election Inspectors and shall constitute an election offense punishable under Section 263 and 264 of the Omnibus Election Code.

In the instant controversy, it would appear that the HRET "reviewed and passed upon the validity of all the ballots in the protested and counter-protested precincts, including those not contested and claimed by the parties." 13 The Tribunal, added, that "(t)his course of action was adopted not only to give effect to the intent of each and every voter, but also to rectify any mistake in appreciation, deliberate or otherwise, committed at the precinct level and overlooked during the revision stage of this case." 14 In holding that the absence of the signature of the Chairman of the BEI at the back of the ballot does not invalidate it, the HRET has ratiocinated in this wise:

There is really nothing in the above law to the effect that a ballot which is not so authenticated shall thereby be deemed spurious. The law merely renders the BEI Chairman accountable for such failure. The courts may not, in the guise of interpretation, enlarge the scope of a statute and embrace situations neither provided nor intended by the lawmakers. Where the words and phrases of a statute are not obscure and ambiguous, the meaning and intention of the legislature should be determined from the language employed, and where there is no ambiguity in the words, there should be no room for construction. 16

No spurious ballot was found in this case. For a ballot to be rejected for being spurious, the ballot must not have any of the following authenticating marks: a) the COMELEC watermark; b) the signatures or initial of the BEI Chairman at the back of the ballot; and c) red and blue fibers. In the present case, all the ballots examined by the Tribunal had COMELEC watermarks.

As so aptly observed by the Solicitor-General, House Bill ("HB") No. 34811 (which later become R.A. No. 7166), approved by the House of Representatives on third reading, was a consolidation of different bills. Two of the bills consolidated and considered in drafting H.B. No. 34811 were H.B. 34639 and H.B. No. 34660. Section 22 of the two latter bills provided that:

In every case before delivering an official ballot to the voter, the chairman of the Board of Election Inspectors shall, in the presence of the voter, affix his signature at the back thereof. Any ballot which is not so authenticated shall be deemed spurious. Failure to so authenticate shall constitute an election offense. 17

xxx

xxx

xxx During the deliberation of the Committee on Suffrage and Electoral Reforms, held on 08 August 1991, the members agreed to delete the phrase "Any ballot which is not so authenticated shall be deemed spurious." Pertinent portions of the transcript of stenographic notes ("TSN") taken during the

Anent the BEI Chairman's signature, while Section 24 of R.A. 7166 provides that failure to authenticate the ballot shall constitute an election offense, there is nothing in the said law which provides that ballots not so authenticated shall be considered invalid. In fact, the members of the Committee on

Election Laws Meeting of the Committee on Suffrage and Electoral Reforms read: THE CHAIRMAN. Yes, Mr. Chairman.

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THE CHAIRMAN. Yes, Congressman Mercado.

MR. MONSOD. Your honor, we're willing to accept that amendment. Take out that sentence spurious, with the introduction of the proposed measure . . . 18

HON. MERCADO. I, think, Section 22, we go to the intent of the provision. I think the intent here is to sanction the inspector so I would propose a compromise. The ballot should not be deemed as spurious. However, it would rather be failure of the inspector to, or the chairman to affix his signature would rather be a circumstance which would aggravate the crime, which would aggravate the election offense, on the part of the inspector, but not to disenfranchise the voter. Because the intention here is to punish the election inspector for not affixing the signature. Why should we punish the voter? So I think the compromise here. . .

The TSN of the proceedings of the Bicameral conference Committee on Election Law, held on 29 October 1991, in turn, would show these exchanges;

CHAIRMAN GONZALEZ: Are there anything more?

HON. ROCO. There is a section in the Senate version about the ballot being signed at the back.

THE CHAIRMAN. A serious election offense.

CHAIRMAN GONZALEZ. Counter side.

HON. MERCADO. Yes, it should be a serious election offense on the part of the chairman for not affixing the signature, but not to make the ballot spurious.

HON. ROCO. If it is not signed then it is being spurious which is a very dangerous, I (think) (it) is a very dangerous provision and so . . .

HON. RONO.

Mr. Chairman.

THE CHAIRMAN. Yes, Congressman Rono.

MR. MONSOD. We agree with the House version that anyway when chairman of BEI doesn't sign subject to an election offense. But it should not be a basis for disenfranchisement of the voter. So, we believe we set this in the hearings in the House that we should strike out that sentence that says that this ballot is automatically spurious. 19

HON. RONO. One thing that we have to guard against is when we deal with the ballot and the right to suffrage, we should not really make law that would prevent the flexibility of the Commission on Elections, and the Supreme Court from getting other extraneous efforts to confirm authenticity or the spuriousness of the ballot, by making a provision that by that single mistake or inadvertence of the chairman we make the ballot automatically spurious is dangerous. It should be . . . what I'm saying is that the Commission or the proper bodies by which this matter will be taken up may consider it as one of the evidences of spuriousness but not per se or ipso facto it becomes; it should look for other extraneous evidence. So what I am suggesting is let us give them this kind of flexibility before we determine or before we say that this ballot is spurious, we give the COMELEC some flexibility in the determination of other extraneous evidence.

Thus the final draft, which was later to become R.A. No. 7166, no longer included the provision "Any ballot not so authenticated shall be deemed spurious." The intention of the legislature even then was quite evident.

The reliance on Bautista vs. Castro 20 by petitioner, is misdirected. It must be stressed that B.P. Blg. 222, 21 otherwise known as the "Barangay Election Act of 1982," approved on 25 March 1982, itself categorically expresses that it shall only be "applicable to the election of barangay officials." Section 14 of B.P. Blg. 222 and its implementing rule in Section 36 of COMELEC Resolution No. 1539 have both provided:

HON. GARCIA.

May I offer a suggestion?

Section 14 of B.P. 222:

THE CHAIRMAN. Yes, Congressman Garcia.

Sec. 14. Official barangay ballots. The official barangay ballots shall be provided by the city or municipality concerned of a size and color to be prescribed by the Commission on Elections.

HON. GARCIA. That the fact that a ballot does not contain the signature, I think, initial will not be sufficient, the signature of the Chairman should be noted in the minutes. Noted in the minutes. So that in case of protest, there is basis.

HON. RONO. OO, may basis na. Iyon lang. I think that would solve our problem.

Such official ballot shall, before it is handed to the voter at the voting center, be authenticated in the presence of the voter, the other Tellers, and the watchers present by the Chairman of the Board of Election Tellers who shall affix his signature at the back thereof.

Election Laws Section 36 of COMELEC Resolution No. 1539:

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Sec. 36. Procedure in the casting of votes. . . .

Sec. 73. Signature of chairman at the back of every ballot. In every case, the chairman of the board shall, in the presence of the voter, authenticate every ballot by affixing his signature at the back thereof before delivering it to the voter. FAILURE TO SO AUTHENTICATE SHALL BE NOTED IN THE MINUTES OF THE BOARD AND SHALL CONSTITUTE AN ELECTION OFFENSE.

b. Delivery of ballot. Before delivering the ballot to the voter, the chairman shall, in the presence of the voter, the other members of the board and the watchers present, affix his signature at the back thereof and write the serial number of the ballot in the space provided in the ballot, beginning with No. "1" for the first ballot issued, and so on consecutively for the succeeding ballots, which serial number shall be entered in the corresponding space of the voting record. He shall the fold the ballot once, and without removing the detachable coupon, deliver it to the voter, together with a ball pen.

Again, in Resolution No. 2738, 23 promulgated by the COMELEC on 03 January 1995, 24 which implemented, among other election laws, R.A. No. 7166 (that governed the election for Members of the House of Representatives held on 08 May 1995), the relevant provision is in Section 13 which itself has only stated:

xxx

xxx

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Sec. 13. Authentication of the ballot. Before delivering a ballot to the voter, the chairman of the board shall, in the presence of the voter, affix his signature at the back thereof.

e. Returning the ballot. (1) In the presence of all the members of the Board, the voter shall affix his right hand thumbmark on the corresponding space in the detachable coupon, and shall give the folded ballot to the chairman. (2) The chairman shall without unfolding the ballot or looking at its contents, and in the presence of the voter and all the members of the Board, verify if it bears his signature and the same serial number recorded in the voting record. (3) If the ballot is found to be authentic, the voter shall then be required to imprint his right hand thumbmark on the proper space in the voting record. (4) The chairman shall then detach the coupon and shall deposit the folded ballot in the compartment for valid ballot and the coupon in the compartment for spoiled ballots. (5) The voter shall then leave the voting center.

It would appear evident that the ruling in Bautista vs. Castro was prompted because of the express declaration in Section 36(f) of COMELEC Resolution No. 1539, implementing Section 14 of B.P. Blg. 222, that: "Any ballot returned to the chairman . . . which does not bear the signature of the chairman . . . shall be considered as spoiled . . . and shall not be counted." This Court thus stated in Bautista:

The law (Sec 14 of B.P. Blg. 222,) and the rules implementing it (Sec. 36 of Comelec Res. No. 1539) leave no room for interpretation. The absence of the signature of the Chairman of the Board of Election Tellers in the ballot given to a voter as a required by law and the rules as proof of the authenticity of said ballot is fatal. This requirement is mandatory for the validity of the said ballot.

f. When ballot may be considered spoiled. Any ballot returned to the chairman with its coupon already detached, or which does not bear the signature of the chairman, or any ballot with a serial number that does not tally with the serial number of the ballot delivered to the voter as recorded in the voting record, shall be considered as spoiled and shall be marked and signed by the members of the board and shall not be counted. 22

It should be noteworthy that in an unsigned 03rd April 1990 resolution, in "Jolly Fernandez vs. COMELEC," 25 the Court en banc had the opportunity to debunk the argument that all ballots not signed at the back thereof by the Chairman and the Poll Clerk were to be considered spurious for non-compliance with Section 15 of R.A. No. 6646, 26 i.e., "The Electoral Reforms Law of 1987," reading as follows:

The difference in the rules may not be too difficult to discern. The stringent requirements in B.P. Blg. 222 should be justifiable considering that the official barangay ballots would be provided by the city or municipality concerned with the COMELEC merely prescribing their size and color. Thus, the official ballots in B.P. Blg. 222, being supplied and furnished by the local government themselves, the possibility of the ballots being easily counterfeited might not have been discounted. The absence of authenticating marks prescribed by law, i.e., the signature of the chairman of the Board of Election Tellers at the back of the ballot, could have well been really thought of to be fatal to the validity of the ballot.

Sec. 15. Signature of Chairman and Poll Clerk at the Back of Every Ballot. In addition to the preliminary acts before the voting as enumerated in Section 191 of Batas Pambansa Blg. 881, the chairman and the poll clerk of the board of election inspector shall affix their signatures at the back of each and every official ballot to be used during the voting. A certification to that effect must be entered in the minutes of the voting.

The Court declared:

Section 24 of R.A. No. 7166, upon the other hand, contains no similar stringent provisions such as that seen in Section 36(f) of COMELEC Resolution No. 1539. The pertinent part in Resolution No. 2676 on the requirement of the signature of the chairman is found in Section 73 thereof which merely provides:

The cardinal objective in the appreciation of the ballots is to discover and give effect to the intention of the voter. That intention would be nullified by the strict interpretation of the said section as suggested by the petitioner for it would result in the invalidation of the ballot even if duly accomplished by the voter, and simply because of an omission not imputable to him but to the election officials. The citizen cannot be deprived of his constitutional right of suffrage on the specious ground that other

Election Laws persons were negligent in performing their own duty, which in the case at bar was purely ministerial and technical, by no means mandatory but a mere antecedent measure intended to authenticate the ballot. A contrary ruling would place a premium on official ineptness and make it possible for a small group of functionaries, by their negligence or, worse, their deliberate inaction to frustrate the will of the electorate. 27

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from voting in the electoral forum on identical questions; because the Constitution, establishing no incompatibility between the two roles, naturally did not contemplate, nor want, justices opining one way here, and thereafter holding otherwise, pari materia, in the electoral tribunal, or vice-versa. 32

Such has thus been, and so it is to be in this petition, as well as in the cases that may yet come before the Court.

Petitioner Libanan suggests that the Court might apply the "ruling" of respondent HRET in the case of Yap vs. Calalay (HRET Case No. 95-026). He states that "it is the HRET itself, ironically, that deals the coup de grace to its ruling HRET Case No. 95-020." The "ruling" cited by petitioner is actually a "Confidential Memorandum," 28 dated 28 April 1997, from a certain Atty. Emmanuel Mapili addressed to "PA Committees in HRET Case No. 95-026 (Yap vs. Calalay)" which has for its subject "(n)ew rulings to be followed in the appreciation of ballots in HRET Case No. 95-026 (Yap vs. Calalay) and other concerns." Petitioner Libanan quotes the pertinent portion of the said Memorandum, viz:

WHEREFORE, the instant petition is DISMISSED.

IT IS SO ORDERED.

MARUHOM vs. COMELEC (331 SCRA 473, G.R. No. 139357, 10 May 5, 2000)

WHEREFORE, the Tribunal Resolved that the following rules and guidelines on the appreciation of ballots shall be given effect in the resolution of this case and shall be applied prospectively to other pending cases:

Whether or not a motion to dismiss, filed after an answer has been filed, is a prohibited pleading in an election protest pending before the Regional Trial Court is the issue posed in this petition for certiorari with prayer for preliminary injunction challenging the Resolution of the Commission on Elections (COMELEC) dated July 6, 19991 dismissing Comelec Case SPR No. 52-98.

1. The absence of the signature of the BEI Chairman at the back of the ballot shall nullify the same and all the votes therein shall not be counted in favor of any candidate. 29

The COMELEC's challenged order summarizes the relevant facts of the controversy thus:

Reliance by petitioner on this alleged "ruling", obviously deserves scant consideration. What should, instead, be given weight is the consistent rule laid down by the HRET that a ballot is considered valid and genuine for as long as it bears any one of these authenticating marks, to wit: (a) the COMELEC watermark, or (b) the signature or initials, or thumbprint of the Chairman of the BEI; and, (c) in those cases where the COMELEC watermarks are blurred or not readily apparent to the naked eye, the presence of red and blue fibers in the ballots. 30 It is only when none of these marks appears extant that the ballot can be considered spurious and subject to rejection.

1. Petitioner and private respondent were both candidates for Mayor in the Municipality of Marogong, Lanao del Sur and voted as such in the last May 11, 1998 national and local election (sic). Petitioner is a re-electionist and a veteran politician;

2. The election in Marogong functioned on May 11, 1998, and after the voting the ballot boxes were transmitted to the Kalimodan Hall, Provincial Capitol of Lanao del Sur at Marawi City where the automated counting of votes and canvass of election returns were centralized;

It is quite clear, in the opinion of the Court, that no grave abuse of discretion has been committed by respondent House of Representatives Electoral Tribunal in its issuance of the assailed decision and resolution.

3. During the counting of votes, serious irregularities, anomalies and electoral frauds were committed at the instance of petitioner or his followers in that votes actually casted (sic) for the private respondent were not counted and credited in his favor thru (sic) the concerted acts, conspiracy and manipulation of the Board of Election Inspectors, military, Election Officer and the Machine Operator who happens to be a nephew of the petitioner;

On other important point. Regarding the membership of certain Justices of this Court in the HRET and their participation in the resolution of the instant petition, the Court sees no conflict at all, and it, therefore, rejects the offer of inhibition by each of the concerned justices. As early as Vera vs. Avelino, 31 this Court, confronted with a like situation, has said unequivocally:

. . . Mulling over this, we experience no qualmish feelings about coincidence. Their designation to the electoral tribunals deducted not a whit from their functions as members of this Supreme Court, and did not disqualify them in this litigation. Nor will their deliverances hereat on a given question operate to prevent them

4. In Precincts Nos. 1A-1A1, 7A1, 8A, 10A-10A1 and 11A about 115 official ballots were refused or rejected by the counting machine which the private respondent's watchers or representatives have requested and insisted to be re-fed to the automated machine for the second and third times pursuant to the provisions of Comelec Resolution No. 3030 but their requests were not heeded by the Election Officer and the Machine Operator, Solaiman Rasad, who is a close kin of the Petitioner, and instead considered the said ballots as finally
10

Election Laws rejected, while in Precincts Nos. 12A, 23A1 and 6A, around 56 ballots were found therein which were not drawn from the official ballots and were included in the counting of votes over the objection of the private respondent's watchers or representatives;

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5. On July 17, 1998, an order was issued by this Honorable Commission, (First Division) granting the private respondent's motion to withdraw petition in SPC No. 98-228 and considered the same withdrawn.6 . . . .

5. Before the termination of the counting of votes and consolidation of the results, the machine operator and Election Officer carried away from the Kalimodan Hall diskette and brought the same to the down town without knowledge of the private respondent's watchers representatives;

the the the the or

6. Upon receipt of a copy of said order, dated July 17, 1998, private respondent filed an urgent motion before the respondent court on July 27, 1998, praying for the issuance of an order directing the proper officials/officers concerned to bring and produce before said court the ballot boxes subjects of the protest and counter-protest and to set the case for hearing as mandated by law.7 . . . .

6. As a result of the foregoing irregularities, anomalies and electoral frauds, the petitioner was illegally proclaimed as winner because he appeared to have obtained 2,020 votes while the private respondent garnered 2,000 votes with a slight margin of only 20 votes;

7. After the counting of votes, the ballot boxes were kept at the Kalimodan Hall, Provincial Capitol, Marawi City guarded and secured by military and PNP personnel together with the watchers/representatives of the petitioner and the private respondent and other candidates or political parties until they were transported and delivered to the respondent court at Malabang, Lanao del Sur sometime on August 13, 1998 by 1Lt. Napisa AG together with the duly authorized representatives of both parties.

7. After the delivery of the ballot boxes involved in the protest and counter-protest, the public respondent issued an order, dated August 17, 1998, setting Election Case No. 11-127 for hearing (a) for the creation of the Committee on Revision and appointment of the Chairman and Members thereof; (b) making of the cash deposit and payment of the revisor's compensation; (c) partial determination of the case, etc. on September 1, 1998, at 8:30 o'clock in the morning.8

8. When the case was called for hearing on September 2, 1998, a Revision Committee was created and its membership were duly appointed in open court which committee was directed by the respondent court to finish the revision of ballots, if possible, within 20 days from the commencement of the revision.9 . . . .

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xxx 9. After the Revision Committee was directed by the respondent to commence the revision of ballots, the petitioner Abdulmadid Maruhom thru counsel orally moved for the dismissal of the protest on the grounds that (1) The ballot boxes containing the ballots in the protested and counter-protested precincts have been violated; (2) Automated counting of ballots does not contemplate a manual recount of the ballots; and (3) Protestant is guilty of forum shopping warranting summary dismissal of the petitioner of the protest.

1. On May 22, 1998, private respondent, knowing that he was cheated and the true winner for Mayor, filed before this Honorable Commission a petition to annul the proclamation of petitioner Abdulmadid Maruhom as the duly elected Mayor of Marogong, Lanao del Sur docketed as SPC No. 98-226.2

2. As precautionary measure to avoid any technicality, private respondent filed on May 25, 1998, an ordinary "Protest ad Cautelam" against the petitioner before the Regional Trial Court, Branch 11, Malabang, Lanao del Sur entitled "Hadji Jamil D. Dimaporo vs. Abdulmadid Maruhom" for election protest (Manual Judicial Recount, revision and reappreciation of ballots) docketed as Election Case No. 11-127.3

3. On June 1, 1998, petitioner Abdulmadid Maruhom filed an answer with counter-protest in Election Case No. 11-127 special and affirmative defenses and counter-protest.4 In his answer petitioner prayed to hold in abeyance further proceedings since the protest is ad cautelam or subject to the petition filed before this Honorable Commission.

4. On July 2, 1998, before SPC No. 98-228 could be set for hearing by this Honorable Commission, the private respondent as petitioner therein, filed a motion to withdraw his petition in said SPC No. 98-228 albeit said case was among those cases the proceedings of which were ordered to be continued beyond June 30, 1998, under Comelec Resolution No. 3049 promulgated on June 29, 1998.5 . . . .

10. The private respondent thru (sic) undersigned counsel, vigorously opposed the said oral motion to dismiss and orally argued that the motion is clearly dilatory having been made only after the Revision Committee has been ordered to commence the revision of ballots on September 1, 1998 and maintained that (1) The motion to dismiss is not allowed in an election protest; (2) The sanctity and integrity of the ballot boxes subject matter of the protest and counter-protest have been preserved and never violated; (3) The automated counting of ballots does not preclude the filing of the election protest for the judicial recount and revision of ballots; and (4) The private respondent is not guilty of forum shopping because his petition of protest is clearly and explicitly a Protest Ad Cautelam in view of the pendency of his petition before this Honorable Commission which was withdrawn by the private respondent before it could be set for hearing or acted upon by this Honorable Commission.

11. After the oral arguments of both parties, the petitioner's counsel asked that he be given ample time to file a written Omnibus Motion to Dismiss and the respondent court thru then Acting Presiding Judge Rasad Balindong, issued an order dated September 2, 1998, giving ten (10) days to Atty. Tingcap T.

Election Laws Mortaba to file an Omnibus Motion in substantiation of all the oral motions he made, furnishing a copy thereof to the undersigned counsel for the private respondent who was likewise given an equal period of time to comment. 10

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on December 14, 15, 16, 17 and 18, 1998, etc. until further order from the court . . . . 20

12. On September 11, 1998, petitioner filed his motion to dismiss 11 and on September 21, 1998, the private respondent filed a vigorous opposition to motion to dismiss. 12

Petitioner alleges that in dismissing the petition the COMELEC acted in excess of, or with grave abuse of discretion, amounting to lack of jurisdiction in

13. During the hearing on the motion to dismiss and the opposition thereto on September 21, 1998, the petitioner's counsel requested for ample time to file a rejoinder to the vigorous opposition to motion to dismiss submitted by the private respondent which was granted by the court and on September 28, 1998, petitioner filed his rejoinder 1 and on October 5, 1998 private respondent filed his comment 14 thereto and thereafter all incidents were submitted for resolution of the court.

1.] holding that a motion to dismiss an election protest case filed in the Regional Trial Court is a prohibited pleading;

2.] holding that the motion to dismiss filed after the answer is not allowed;

14. On November 10, 1998, the respondent court thru Honorable Presiding Judge Moslemen T. Macarambon, issued the assailed order denying the petitioner's motion to dismiss for lack of merit and ordering the Revision Committee to report to the court on November 19, 1998, at 8:30 o'clock in the morning for their oath taking and to receive the instruction of the court in the revision of the ballots and other allied matters. 15

3.] failing to resolve the issues raised in SPR No. 52-98 which are sufficient legal bases to dismiss Election Case No. 11127.

In sum, petitioner insists that in refusing to pass upon the three (3) principal issues raised in COMELEC Case SPR No. 52-98, to wit:

15. On November 18, 1998, the petitioner filed a motion for reconsideration of the order dated November 10, 1998, 16 and on November 23, 1998, private respondent filed a vigorous opposition [to motion] for reconsideration. 17

1. Whether or not public respondent acted in excess of, or with grave abuse of discretion, amounting to lack of jurisdiction in holding that a motion to dismiss an election protest case in the Regional Trial Court is a prohibited pleading;

16. Finding no compelling reason to disturb its order dated November 10, 1998, the respondent court issued the assailed order dated December 1, 1998 which denied the motion for reconsideration for lack of merit. In the same order, the respondent court reiterated its previous order to the members of the Revision Committee to take their oaths before Atty. Raqueza T. Umbaro or Atty. Khalil Laguindab and thereafter to convene and start the revision of ballots on December 14, 15, 16, 17 and 18, 1998, morning and afternoon. 18

2. Whether or not public respondent acted in excess of, or with grave abuse of discretion, amounting to lack of jurisdiction, in holding that a motion to dismiss filed after the answer to an election protest case in the Regional Trial court is not allowed; and

3. Whether or not public respondent gravely abused its discretion amounting to lack of jurisdiction, in failing to resolve the relevant material and substantial issues raised in SPR No. 52-98.

17. As a diabolical scheme to cause further delay of the proceedings of the case more specifically the revision of ballots, the petitioner filed on December 10, 1998, the instant petition for certiorari and prohibition with prayer for preliminary injunction and on December 11, 1998, petitioner filed an urgent motion before the respondent court praying that further proceedings in Election Case No. 11-127 be deferred until after protestee's petition for certiorari and prohibition before this Honorable Commission shall have been finally resolved, copy of which was served upon the undersigned counsel only on December 12, 1998, at 10:50 A.M. 19 . . . .

the COMELEC "abdicated its duty under its own rules of procedure and under the Constitution and the election laws." Such abdication of duty, according to petitioner, amounts to grave abuse of discretion amounting to lack of jurisdiction.

It must be borne in mind that the purpose of governing statutes on the conduct of elections

18. That before the undersigned counsel could file his opposition to said urgent motion on December 14, 1998 and in the absence of a restraining order or writ of preliminary injunction issued by (the COMELEC), the respondent judge already issued an order granting the same motion and ordering the Revision Committee to hold in abeyance the scheduled revision of ballots

. . . [i]s to protect the integrity of elections to suppress all evils that may violate its purity and defeat the will of the voters. The purity of the elections is one of the most fundamental requisites of popular government. The Commission on Elections, by constitutional mandate must do everything in its power to secure a fair and honest canvass of the votes cast in the elections. In the performance of its duties, the Commission must be given a considerable latitude in adopting means and methods that will insure the accomplishment of the great objective for which it was created to promote free, orderly and honest elections. The

Election Laws choice of means taken by the Commission on Elections, unless they are clearly illegal or constitute grave abuse of discretion, should not be interfered with. 21

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to avert the revision ballots. These events, pointed out by private respondent 25 and borne by the record, show that

Sec. 2 (1) of Article IX of the Constitution gives the COMELEC the broad power to "enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall." There can hardly be any doubt that the text and intent of this constitutional provision is to give COMELEC all the necessary and incidental powers for it to achieve the holding of free, orderly, honest, peaceful and credible elections.

In accordance with this intent, the Court has been liberal in defining the parameters of the COMELEC's powers in conducting elections. Sumulong v. COMELEC 22 aptly points out that

1. It was only on September 1, 1999 after the creation of the Revision Committee and the appointment of its Chairman and Members and after the said committee was ordered by the trial court to commence the revision and to render its report within 20 days that the petitioner orally moved for the dismissal of the case on the flimsy grounds that (1) the ballot boxes subject of the protest and counter protest have been violated; (2) the automated counting of ballots does not contemplate a manual recount of ballots; and (3) protestant is guilty of forumshopping warranting summary dismissal of the protest;

Politics is a practical matter, and political questions must be dealt with realistically not from the standpoint of pure theory. The Commission on Elections, because of its fact-finding facilities, its contacts with political strategists, and its knowledge derived from actual experience in dealing with political controversies, is in a peculiarly advantageous position to decide complex political questions . . . . There are no ready made formulas for solving public problems. Time and experience are necessary to evolve patterns that will serve the ends of good government. In the matter of the administration of laws relative to the conduct of election . . . we must not by any excessive zeal take away from the Commission on Elections that initiative which by constitutional and legal mandates properly belongs to it.

2. After the oral arguments on the oral motion to dismiss the petitioner requested for ample time within which to file an Omnibus Motion to Dismiss and over the vigorous opposition of the private respondent the same was granted by the court and the petitioner was given a period of ten (10) days to file the same and the private respondent was likewise given a period of ten (10) days to file his comment;

3. On September 11, 1998, the motion to dismiss 26 and during the hearing on the said motion and the opposition 27 thereto on September 21, 1998, the petitioner again asked for ample time to file a rejoinder to the vigorous opposition to motion to dismiss which was again granted by the court and it was only on September 28, 1998 that said rejoinder was filed;

Succinctly stated, laws and statutes governing election contests especially the appreciation of ballots must be liberally construed to the end that the will of the electorate in the choice of public officials may not be defeated by technical infirmities. 2 An election protest is imbued with public interest so much so that the need to dispel uncertainties which becloud the real choice of the people is imperative, 24 much more so in this case considering that a mere twenty (20) votes separates the winner from the loser of the contested election results.

4. After a denial of the motion to dismiss on November 10, 1998, 28 the petitioner filed a motion for reconsideration on November 18, 1998; 29

The primordial issue to be resolved herein is whether or not the COMELEC gravely abused its discretion in dismissing SPR No. 52-98.

5. When the motion for reconsideration was denied on December 1, 1998, 30 petitioner filed on December 18, 1998 before the Commission on Elections a petition for certiorari and prohibition with prayer for preliminary injunction and asked the trial court to defer the proceedings of Election Case No. 11-27 until after his petition shall have been finally resolved which was granted by the trial court. Hence, the scheduled revision of the ballots on December 14, 15, 16 and 17, 1998 was cancelled and the proceedings of the case held in abeyance; 31

In support of his cause, petitioner insists that there is "nothing irregular or anomalous in the filing of the motion to dismiss" after the filing of the answer because in effect he is merely insisting on a preliminary hearing of his special and affirmative defenses. Thus, he claims that the summary dismissal of his motion to dismiss is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction.

We disagree.

6. As the Comelec En Banc did not give due course to petitioner's prayer for writ of preliminary injunction, the trial court, upon motion of the private respondent, issued an order for the revision of ballots on February 8, 1999. 32 On said day, neither the petitioner's counsel nor his designated revisors appeared, instead the petitioner, assisted by his numerous armed men, numbering around 30 stated (sic) in strategic places, prevented the court personnel to enter the court premises. Were it not for the maximum tolerance exercised by the PNP personnel and the intervention of the local datus/leaders, there would have been bloodshed;

The filing of the motion to dismiss, in fact, appears to be part of a perfidious plot to prevent the early termination of the proceedings in Election Case No. 4847 as evidenced by a confluence of events clearly showing a pattern of delay employed by petitioner

7. On February 9, 1999, the petitioner's counsel filed a withdrawal of appearance with the attached letter-request of the petitioner asking for the deferment of the revision of ballots for at least two (2) weeks to enable him to engage the services of

Election Laws another counsel. Considering that the incident was designed to delay the further the early disposition of the case which would frustrate the ends of justice, the court held in abeyance its ruling on the withdrawal of appearance of and directed petitioner's counsel to handle the case after the appearance of a new counsel; 3

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corpus, and shall, without delay, hear and within thirty (30) days from the date of their submission for decision, but in every case within six (6) months after filing, decide the same. . . . 37 (emphasis and italics supplied).

8. To further delay the proceedings of the case, the petitioner filed a petition for transfer of venue of the trial to from RTC, Branch 11, Malabang, Lanao del Sur to Iligan City or in Metro Manila which the private respondent did not oppose so as not to delay the early resolution of this Honorable Supreme Court on the said petition;

Petitioner further argues that his submissions that a.] the integrity of the ballot boxes has been violated; b.] only rejected ballots or ballots manually counted are the proper subjects of an election protest; and c.] private respondent is guilty of forum-shopping, are enough grounds to dismiss the case.

We remain unconvinced.

9. Again, the proceedings of the case was held in abeyance in view of the pendency of the said petition for transfer of venue;

10. After the dismissal of the petition in Election Case No. 52-98, the petitioner filed the instant petition for certiorari before this Honorable Supreme Court with a prayer for issuance of temporary restraining order;

11. As a diabolical scheme to cause further delay of the proceedings of the case, the petitioner filed an urgent motion before this Honorable Supreme Court praying for the immediate issuance of a TRO directing the Presiding Judge, RTC, Branch III, Iligan City to cease, desist and refrain from conducting any further proceedings of Election Case No. 4847 until the instant case shall have been resolved. This Honorable Supreme Court, without granting the prayer for TRO, directed the RTC, Branch III, Iligan City not to promulgate any decision in the said election case until further order[s] from this most Honorable Court. 34

As aptly observed by the COMELEC in the challenged Resolution, these grounds are "evidentiary in nature and can be best ventilated during the trial of the case." 38 It needs be stressed in this regard that the purpose of an election protest is to ascertain whether the candidate proclaimed elected by the board of canvassers is really the lawful choice of the electorate. 39 In an election contest where the correctness of the number of votes is involved, the best and most conclusive evidence are the ballots themselves; where the ballots can not be produced or are not available, the election returns would be the best evidence. 40 In this case, the counted official ballots are available and there is no evidence, other than the bare allegation of petitioner, that the sanctity of the ballot boxes subject matter of the protest have been violated or the official ballots contained therein impaired. The best way, therefore, to test the truthfulness of petitioner's claim is to open the ballot boxes in the protested precincts followed by the examination, revision, recounting and reappreciation of the official ballots therein contained in accordance with law and pertinent rules on the matter. Needless to state this can only be done through a full-blown trial on the merits, not a peremptory resolution of the motion to dismiss on the basis of the bare and one-sided averments made therein.

It is clear, given the foregoing facts of this case, that the roundabout manner within which petitioner virtually substituted his answer by belatedly filing a motion to dismiss three (3) months later is a frivolous resort to procedure calculated to frustrate the will of the electorate. As pointedly observed by the COMELEC in its challenged Resolution dated July 6, 1999, 35 petitioner only filed his motion to dismiss "when the results of the trial appear[ed] to be adverse to him" 36 or right after the creation of the Revision Committee had been ordered by the trial court. If petitioner truly intended to move for the preliminary hearing of his special and affirmative defenses as he claims, then he should have simultaneously moved for the preliminary hearing of his special and affirmative defenses at the time he filed his answer. Otherwise, he should have filed his motion to dismiss "within the time for but before filing the answer. . ." pursuant to Section 1, Rule 16 of the 1997 Rules of Civil Procedure.

Petitioner's reliance on COMELEC Resolution No. 2868 41 to support his restrictive claim that only rejected ballots or ballots manually counted in case of failure of the automated counting machines are the proper subjects of an election protest, is just as unpersuasive.

There is admittedly a lacuna leges in R.A. No. 8436 which prescribes the adoption of an automated election system. However, while conceding as much, this Court ruled in Tupay Loong v. COMELEC, 42 that the Commission is nevertheless not precluded from conducting a manual count when the automated counting system fails, reasoning thus:

Suffice it to state in this regard that such a whimsical change of mind by petitioner can not be countenanced much more so in election cases where time is of the essence in the resolution thereof. Indeed, the Omnibus Election Code states in no uncertain terms that

Sec. 258. Preferential disposition of contests in courts. The RTC, in their respective cases, shall give preference to election contests over all other cases, except those of habeas

. . . In enacting R.A. No. 8436, Congress obviously failed to provide a remedy where the error in counting is not machine related for human foresight is not all-seeing. We hold, however, that the vacuum in the law cannot prevent the COMELEC from levitating above the problem. Section 2(1) of Article IX (C) of the Constitution gives the COMELEC the broad power "to enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall." Undoubtedly, the text and intent of this provision is to give the COMELEC all the necessary and incidental powers for it to achieve the objective of holding free, orderly, honest, peaceful and credible elections. Congruent to this intent, this Court has not been niggardly in defining the parameters of powers of

Election Laws COMELEC in the conduct of our elections . . . In the case at bar, the COMELEC order for a manual count was not only reasonable. It was the only way to count the decisive local votes . . . The bottom line is that by means of the manual count, the will of the voters of Sulu was honestly determined. We cannot kick away the will of the people by giving a literal interpretation to R.A. 8436. R.A. 8436 did not prohibit manual counting when machine count does not work. Counting is part and parcel of the conduct of an election which is under the control and supervision of the COMELEC . . .

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petition for quo warranto or an election protest but a petition to annul a proclamation; (4) 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) the proclamation was null and void.

Petitioner's argument that the filing of a motion to dismiss in an election contest filed with a regular court is not a prohibited pleading is well taken. As we pointed out in Melendres, Jr. v. COMELEC: 45

. . . Our elections are not conducted under laboratory conditions. In running for public offices, candidates do not follow the rules of Emily Post. Too often, COMELEC has to make snap judgments to meet unforeseen circumstances that threaten to subvert the will of our voters. In the process, the actions of COMELEC may not be impeccable, indeed, may even be debatable. We cannot, however, engage in a swivel chair criticism of these actions often taken under very difficult circumstances.

Neither can petitioner seek refuge behind his argument that the motion to dismiss filed by private respondent is a prohibited pleading under Section 1, Rule 13 of the COMELEC Rules of Procedure because the said provision refers to proceedings filed before the COMELEC. The applicable provisions on the matter are found in Part VI of the Rules of Procedure titled "PROVISIONS GOVERNING ELECTION CONTESTS BEFORE TRIAL COURT" and as this Court pointedly stated in Aruelo v. Court of Appeals 46

Verily, the legal compass from which the COMELEC should take its bearings in acting upon election controversies is the principle that "clean elections control the appropriateness of the remedy." 4

It must be noted that nowhere in Part VI of the COMELEC Rules of Procedure is it provided that motions to dismiss and bill of particulars are not allowed in election protests or quo warranto cases pending before regular courts.

Be that as it may, the fact is the averments in petitioner's counter-protest and private respondent's protest already justified the determination of the issues through a judicial revision and recounting of the ballots pursuant to Section 255 of the Omnibus Election Code which provides that

Constitutionally speaking, the COMELEC cannot adopt a rule prohibiting the filing of a certain pleading in the regular courts. The power to promulgate rules concerning pleadings, practice and procedure in all courts is vested in the Supreme Court. 47

Sec. 255. Judicial counting of votes in election contest. Where allegations in a protest or counter-protest so warrant or whenever in the opinion of the court the interests of justice so require, it shall immediately order the book of voters, ballot boxes and their keys, ballots and other documents used in the election be brought before it and that the ballots be examined and votes recounted. (Emphasis supplied)

So too must fall petitioner's procedural objection that private respondent should be faulted for forum-shopping vis--vis this Court's pronouncement in Samad v. COMELEC 44 which states in no uncertain terms that

The foregoing pronouncement, however, will not extricate petitioner from his predicament because the denial of petitioner's motion to dismiss was based on the fact that the other grounds relied therein was considered unmeritorious and not because the said motion is a prohibited pleading in electoral protest cases. While the challenged COMELEC Resolution may not have been entirely correct in dismissing the petition in this regard, the soundness of its discretion to accord unto the trial court the competence to resolve the factual issues raised in the controversy cannot be doubted. Indeed, as reasoned by the COMELEC, the

As a general rule, the filing of an election protest or a petition for quo warranto precludes the subsequent filing of a preproclamation 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. This procedure will prevent confusion and conflict of authority. Conformably, we have ruled in a number of cases that after a proclamation has been made, a pre-proclamation case before the COMELEC is no longer viable.

. . . Commission assumes the competence of the trial court to handle electoral protest and cannot encroach on its original and exclusive jurisdiction on electoral protest cases involving the contested mayoralty seat. To our mind, the trial court should be allowed to resolve the case on the merits to be able to rule on the factual and legal grounds raised by the petitioner as his defenses in his Answer. Should the petitioner be dissatisfied with the outcome of the case in the lower court, he can still appeal, as his relief, to this Commission within the reglementary period provided by law.

Moreover

The rule admits of exceptions, however, as where: (1) the board of canvassers was improperly constituted; (2) quo warranto was not the proper remedy; (3) what was filed was not really a

At balance, the question really boils down to a choice of philosophy and perception of how to interpret and apply the laws

Election Laws relating to elections; literal or liberal; the letter or the spirit; the naked provision or the ultimate purpose; legal syllogism or substantial justice; in isolation or in the context of social conditions; harshly against or gently in favor of the voter's obvious choice. In applying elections laws, it would be far better to err in favor of popular sovereignty than to be right in complex but little understood legalisms. 48

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would have garnered the highest number of votes for the Office of Member of the House of Representatives in the Second District of Palawan, which was the true expression of the will of the voters of the Province of Palawan.

WHEREFORE, in view of all the foregoing, the petition is hereby DISMISSED for lack of merit.

10. The proclamation by the members of the Provincial Board of Canvassers of Palawan that the protestee was allegedly the duly elected Member of the House of Representatives for the Second District of Palawan is contrary to law and to the true expression of the will of the voters of the Province of Palawan. 2

SO ORDERED. Private respondent-Protestee Abueg filed an Answer With Affirmative Defense, Counterclaim and Counter-Protest 3 on June 5, 1995, to which Pea filed a Reply on June 23, 1995. Subsequent to the filing of his Answer, Abueg filed a Motion to Dismiss 4 the Petition on June 22, 1995, averring that the HRET has not acquired jurisdiction over the petition, the same being insufficient in form and substance. In essence, the motion to dismiss anchors its challenge on the fact that the petition failed to allege the precincts where the massive fraud and disenfranchisement of voters occurred, nor did it point out how many votes would be gained by the protestant as a result of the same.

PEA vs. HRET (270 SCRA 340, G.R. No. 123037, March 21, 11 1997)

Assailed herein is the October 12, 1995 Resolution 1 of the House of Representatives Electoral Tribunal (HRET) dismissing the Petition Ad Cautelam of the Petitioner Teodoro Q. Pea in HRET Case No. 95-014. Petitioner questioned the election of the private respondent Alfredo E. Abueg, Jr. as Member of the House of Representatives representing the Second District of the province of Palawan.

Petitioner and the private respondent were contenders for the said Congressional Office in the May 8, 1995 elections. On May 12, 1995, upon canvassing the votes cast, the Provincial Board of Canvassers of Palawan proclaimed the private respondent as the winner.

Petitioner filed an Opposition to the Motion to Dismiss 5 on July 10, 1995, attaching thereto a Summary of Contested Precincts, naming 700 precincts where election irregularities allegedly occurred.

On May 22, 1995, the instant petition was filed with the HRET, wherein the petitioner, as protestant, averred that:

7. The elections in the precincts of the Second District of Palawan were tainted with massive fraud, widespread votebuying, intimidation and terrorism and other serious irregularities committed before, during and after the voting, and during the counting of votes and the preparation of election returns and certificates of canvass which affected the results of the election. Among the fraudulent acts committed were the massive votebuying and intimidation of voters, disenfranchisement of petitioner's known supporters through systematic deletion of names from the lists of voters, allowing persons to vote in excess of the number of registered voters, misappreciation, misreading and non-reading of protestant's ballots and other irregularities.

In its Resolution of October 12, 1995, the respondent HRET ruled that although it had jurisdiction over the petition, as the sole judge of all contests relating to the election, returns and qualifications of the members of the House of Representatives, the said petition, however, fails to state a cause of action, and is therefore, insufficient in form and substance, meriting its dismissal.

The HRET states pertinently:

8. According to the Statement of Votes by Precinct/Municipality/City, the protestee allegedly obtained 52,967 votes, while the protestant allegedly obtained 46,023 votes, or a difference of 6,944 votes. A copy of said document is attached hereto as Annex "B".

There are 743 precincts in the second congressional district of Palawan which is comprised of Puerto Princesa City and the municipalities of Aborlan, Balabac, Bataraza, Brooke's Point, Narra, Quezon, and Marcos (Ordinance appended to the 1973 Constitution). The Protestant failed to specify which are the 700 precincts, out of the said 743 precincts, that are included in his protest; he even failed to allege the municipalities where the protested precincts are located. Worse, the body of the Petition does not even mention the 700 precincts. Reference to them is made only in the Prayer. These omissions prevent Protestee from being apprised of the issues which he has to meet and make it virtually impossible for the Tribunal to determine which ballot boxes have to be collected.

9. Had the massive fraud, widespread intimidation and terrorism and other serious irregularities not been committed, the result of the elections for Member of the House of Representatives would have been different and the protestant
11

The Supreme Court, in Fernando vs. Pastor M. Endencia, Judge of First Instance of Bulacan, et al. (No. 46099, 66 Phil 148, 150, August 30, 1938) observed that, "[w]hile the election law does not say so directly, it is clearly inferred from its relevant provisions that where the grounds of contest are that legal votes were rejected and illegal votes received, the motion of protest should state in what precincts such irregularities occurred, . . .

Election Laws The specification in the motion of protest of the election precinct or precincts where the alleged irregularities occurred, is required in order to apprise the contestee of the issues which he has to meet. . . .

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to Dismiss and to DISMISS, as it hereby DISMISSES, the instant Petition of Protest. As a logical consequence thereof and also for the same reason, Protestee's Counter-Protest is DISMISSED.

No pronouncements as to costs. In its more recent resolution in Grand Alliance for Democracy (GAD) vs. COMELEC (G.R. No. 78302, May 26, 1987, 150 SCRA 665), the Supreme Court held that the petition therein "could have been dismissed outright as deficient in form and substance, being couched in general terms only, without precise indication of the time, place and manner of the commission of the alleged irregularities."

SO ORDERED. 6

Petitioner's motion for reconsideration of the said resolution was denied by the respondent tribunal on November 14, 1995.

xxx

xxx

xxx

Similarly, this Tribunal, in dismissing an election protest, observed that the protest, in general language, "impugns, contests and protests the illegal, improper and fraudulent electoral practices, acts and deeds" of the protestee and "impugns and contests all the election returns in the lone district of Catanduanes." The tribunal held that this scattershot allegation is not allowed in election contests and that "it is necessary to make a precise indication of the precincts protested and a specification of the claimed offenses to have been committed by the parties." (Alberto vs. Tapia, HRET Case No. 37, January 23, 1989)

In this Petition for Certiorari, filed on December 29, 1995, petitioner argues that the respondent HRET acted with grave abuse of discretion amounting to having acted without or in excess of jurisdiction in dismissing the election protest of petitioner considering that:

THE PETITION AD CAUTELAM DATED 22 MAY 1995 STATED A CAUSE OF ACTION AND IS SUFFICIENT IN FORM AND SUBSTANCE.

While Protestant has attached as Annex "A" to his Opposition to the Motion to Dismiss, filed on 10 July 1995, a Summary of contested Precincts, the defects in his Protest were not cured thereby as the Summary was submitted only after the Motion to Dismiss had been filed. The Opposition and the attached Summary do not amend the original Petition. There is not even a prayer in the Opposition suggesting such amendment.

II

ASSUMING ARGUENDO THAT THE PETITION WAS INITIALLY DEFECTIVE BECAUSE IT FAILED TO SPECIFY THE CONTESTED PRECINCTS, SAID DEFECT WAS CURED WHEN PETITIONER SUBMITTED A SUMMARY OF THE CONTESTED PRECINCTS WHICH FORMS PART OF THE RECORD OF THE RESPONDENT HRET.

Moreover, in a Resolution promulgated on 17 June 1995, the Commission on Elections en banc (COMELEC) dismissed herein Petitioner's Petition (SPA Case No. 95-258) to declare a failure of elections in the second district of Palawan. Copy of said Resolution was sent to Petitioner Pea through registered mail and was received by him on 28 June 1995. Since Petitioner did not appeal from the Resolution, it became final on 3 July 1995 pursuant to Section 13 (b), Rule 18 of the COMELEC Rules of Procedure. Even assuming that SPA Case No. 95-258 had tolled the running of the period to file a protest and Protestant Pea's Petition Ad Cautelam was thus converted into a regular protest (not Ad Cautelam) effective upon the finality of the official COMELEC resolution, thereby providing him an opportunity to amend it to cure the defects cited above, Protestant took no positive and affirmative steps for that purpose.

It is the Petitioner's view that the instant election protest is sufficient in form and substance even while failing to specify the precincts where irregularities allegedly occurred. Nowhere is it provided that the specification of the precincts is a jurisdictional requirement that must be complied with in order that an election protest can be entertained by the HRET. To support his submission, petitioner cites the cases of Yalung vs. Atienza, 52 Phil 781, Arao vs. COMELEC, 210 SCRA 790 and Gallares vs. Casenas, 48 Phil 362, the latter stating that:

From a reading of the allegations of the protest, it may be seen that frauds, irregularities and violations of the law are alleged therein, which, if true, would undoubtedly change the result of the elections.

Protestant alleges in his Opposition that Protestee has likewise failed to specify the 47 precincts he contests in his CounterProtest. This omission merely renders Protestee's CounterProtest defective for insufficiency in form and substance and for failure to state a cause of action. It does not cure the fatal defects in Protestant's Petition.

WHEREFORE, for failure of the Petition (Protest) to state a cause of action because it is fatally insufficient in form and substance, the Tribunal Resolved to GRANT Protestee's Motion

The fact that in the protest the number of votes which would result in favor of the protestant after the judicial counting is not specified, does not affect the right of the protestant, for it being known that said omission is a defect of the protest, the same may be cured by a specification of the votes mentioned in paragraphs 1, 2 and 3 of the protest, without thereby adding new grounds for those already alleged by the protestant.

Election Laws Applying the same principle to the specification of precincts in the instant case, the defect in the petition should have been cured by the opposition to the private respondent's Motion to Dismiss.

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Moreover, the fact that the HRET did not summarily dismiss the Petition Ad Cautelam, and instead, required the private respondent Abueg to file an Answer, the HRET has thus made a prior determination that the petition is sufficient in form and substance.

On his second point of argument, Petitioner likewise fails to impress. The Court has already ruled in Joker P. Arroyo vs. HRET, 7 that substantial amendments to the protest may be allowed only within the same period for filing the election protest, which, under Rule 16 of the HRET Rules of Procedure is ten (10) days after the proclamation of the winner.

We do not agree,

In the first place, in requiring the private respondent to answer the petition, the HRET was not ruling on the formal and substantive sufficiency of the petition. The order to require an answer is but a matter of course, as under the Revised Rules of Procedure of the HRET, it is provided that:

While it is conceded 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 questions, the rule likewise stands, that in an election protest, the protestant 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 filing of the protest. 8

RULE 22. Summons. Upon the filing of the petition, the Clerk of the Tribunal shall forthwith issue the corresponding summons to the protestee or respondent together with a copy of the petition, requiring him within ten (10) days from receipt thereof to file his answer.

Admittedly, the rule is well-established that 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. 9 . . . This is as it should be, for the democratic system is good for the many although abhorred by a few.

As to the adequacy of the protest, we agree with respondent HRET in ruling for the insufficiency of the same.

A perusal of the Petition Ad Cautelam, reveals that Petitioner makes no specific mention of the precincts where widespread election, fraud and irregularities occured. This is a fatal omission, as it goes into the very substance of the protest. Under Section 21 of the Revised Rules of Procedure of HRET, insufficiency in form and substance of the petition constitutes a ground for the immediate dismissal of the Petition.

In sum, this Court's jurisdiction to review decisions and orders of electoral tribunals operates only upon a showing of grave abuse of discretion on the part of the tribunal. Only where such grave abuse of discretion is clearly shown shall the Court interfere with the electoral tribunal's judgment. There is no such showing in the present petition.

IN VIEW OF THE FOREGOING, the Court hereby resolves to DISMISS the present petition for lack of merit. The Resolution of the respondent House of Representatives Electoral Tribunal dated October 12, 1995 is hereby AFFIRMED.

The prescription that the petition must be sufficient in form and substance means that the petition must be more than merely rhetorical. If the allegations contained therein are unsupported by even the faintest whisper of authority in fact and law, then there is no other course than to dismiss the petition, otherwise, the assumption of an elected public official may, and will always be held up by petitions of this sort by the losing candidate.

SO ORDERED,

Notably, the instant petition ad cautelam poses a more serious inadequacy than a mere failure to specify the number of votes which would inure to the protestant, as was the case in Gallares vs. Casenas, or the failure to impugn the validity of some of the ballots cast, as in Yalung vs. Atienza, supra, both of which cases were decided in the 1920s. The defect in the instant case arises from the failure to allege the contested precincts. Only a bare allegation of "massive fraud, widespread intimidation and terrorism and other serious irregularities", without specification, and substantiation, of where and how these occurrences took place, appears in the petition. We cannot allow an election protest based on such flimsy averments to prosper, otherwise, the whole election process will deteriorate into an endless stream of crabs pulling at each other, racing to disembank from the water.