What is a

Pre-proclamation
Controversy?

Sec.
241
of
the
Omnibus
A pre-proclamation controversy refers to any question
pertaining to Code
or affecting the proceedings of the board
Election

of canvassers which may be raised by any candidate or

by any registered political party or coalition of parties
before the board of canvassers or directly with the
Commission, or any matter under Sections 233, 234,
235 and 236 in relation to the preparation, transmission,
receipt, custody and appreciation of the election returns.

Sec. 233 - When the election returns are delayed, lost or destroyed
Sec. 234 Material defects in the election returns
Sec. 235 When election returns appear tampered with or falsified
Sec. 236 Discrepancies in election returns

What is the purpose

of a
Pre-proclamation
controversy?

The purpose of a Pre-proclamation controversy

is to ascertain the winners in the election on
the basis of the election returns duly
authenticated by the board of inspectors and
admitted by the board of canvassers (Abella v.
Larrazabal,180 SCRA 506[1989]).

Nature

Summary; and
Intended to put a stop to the pernicious

practice of unscrupulous candidates of

grabbing the proclamation and prolonging
the protest.

What are the grounds for

a Pre-proclamation
Controversy?

The grounds for Pre-proclamation

controversy
are
the
following:
1. Illegal composition or proceedings of the Board of

Canvassers;
2. The canvassed returns are incomplete, contain
material defects, appear to be tampered with or
falsified, or contain discrepancies in the same
returns or in authentic copies thereof;
3. The election returns were prepared under duress,
threats, coercion, or intimidation, or they are
obviously manufactured or not authentic; and,
4. When substitute or fraudulent returns in
controverted polling places were canvassed, the
results of which materially affect the standing of
the aggrieved candidate or candidates.

For the May 10, 2010 elections,

COMELEC has restricted the grounds or
(a) Illegal composition
of the BOC; and as
pre-proclamation
controversies,
(b) Illegal proceedings of the BOC (COMELEC
follows:
Resolution8804, Rule 3, Section 1).

Illegal composition or
proceedings of the Board of
There is illegal composition of the BOC when,
Canvassers
among other similar circumstances, any of the
members do not possess legal qualifications
and
appointments.
The
information
technology capable person required to assist
the BOC by Republic Act No. 9369 shall be
included as among those whose lack of
qualifications may be questioned (COMELEC
Resolution 8804, Rule 4, Section 1).

Illegal proceedings of
the
There is illegal proceedings of the BOC when the
canvassingof
is aCanvassers
sham or mere ceremony, the
Board

results of which are pre-determined and

manipulated as when any of the following
circumstances are present:
1.precipitate canvassing;
2.terrorism;
3.lack of sufficient notice to the members of the
BOCs;
4.Improper venue
(COMELEC Resolution 8804, Rule 4, Section 2)

REMEMBER:
In the case of Lucman v. COMELEC (462 SCRA

299 [2005]), the Supreme Court explained

that a pre-proclamation controversy is limited
to an examination of the election returns on
their face.

Jurisdiction
The COMELEC has exclusive jurisdiction to hear
and decide pre-proclamation controversies.

Article IX-C, Sec. 2 (3) of the 1987 Constitution

The Commission shall decide, except those
involving the right to vote, all questions
affecting elections.

The Commission
may 3sitofen
banc
or in two
Article
IX-C, Sec.
the
1987
divisions, and shall promulgate its rules of
Constitution
procedure in order to expedite disposition of
election cases, including pre-proclamation
controversies. All such election cases
shall be heard and decided in division,
provided
that
motions
for
reconsideration of decisions shall be
decided by the Commission en banc.

The Divisions of the Commission are vested

with the authority to hear and decide these
special casesand have to be heard and
adjudicated first at this level.

Arbonida vs. Comelec,

G.R. No. 167137,
March 14, 2007

Facts:

Arbonida and Caringal were candidates for the Sangguniang Bayan of

Tanza, Cavite during the May 10, 2004 local elections.

After the canvassing of votes, the Municipal Board of Canvassers of
Tanza (MBOC) proclaimed Arbonida the eighth winning candidate with
14,620 votes as against the 14,552 votes of Caringal.
On June 16, 2004, Caringal filed a petition with the COMELEC seeking
to annul Arbonidas proclamation on the ground of manifest errors in
the statement of votes by precinct (SOVP). Caringal alleged that the
MBOC committed mistakes in the copying of figures from the election
returns to the SOVPs.
Arbonida filed a motion to dismiss arguing that the COMELEC had no
jurisdiction to take cognizance of the petition since dagdag-bawasdid
not constitute manifest error but rather a ground for an election
protest. He also claimed that a pre-proclamation controversy was no
longer viable after the proclamation of the winning candidate.

After an examination and comparison of the subject

election returns and SOVPs, the COMELEC found

that there indeed existed discrepancies in the
number of votes sufficient to have an effect on the
last place for municipal councilor being contested.
Consequently, in its Resolution, the COMELEC First
Division annulled the proclamation of Arbonida and
instead proclaimed Caringal as the duly elected
eighth municipal councilor of Tanza, Cavite.
On appeal, Comelec en banc denied Arnidos
Motion for Reconsideration.

Issues:
Whether the petition filed is a proper subject
of a pre-proclamation controversy; and
Whether the COMELEC First Division is without
jurisdiction to issue the resolution.

Ruling:
The petition filed by Caringal before the COMELEC
involves a pre-proclamation controversy and not an
election contest. Although the petition alleged
fraud, the remedy sought was merely for correction
of erroneous entries in the statements of votes
which were based on the election returns.
The Constitution clearly mandates that preproclamation controversies must be first heard and
decided by a division of the Comelec, and then by
the en banc if a motion for reconsideration were
filed.

The requirement of hearing and decision of

election cases including pre-proclamation

controversies, at the first instance by a
division of the Comelec, and not by it as a
whole, is mandatory and jurisdictional. The
Constitutional provision yields to no other
interpretation other than what its plain
meaning presents.

Exceptions

Rule 27, Sec. 4 Comelec Rules of Procedure

provides that a pre-proclamation controversy

may be filed directly with the Comelec en
banc:

When petition is for correction of manifest

errors in the Statement of Votes or in the

tabulation or tallying of the results; and

When the issue involves the illegal composition or

proceedings of the board of canvassers as when

majority or all of the members do not hold legal
appointments or are in fact usurpers; or when the
canvassing has been a mere ceremony that was predetermined and manipulated to result in nothing but
a ham as where there was convergence of
circumstances of precipitate canvassing, terrorism,
lack of sufficient notice to the members of the board
of
canvassers
and
disregard
of
manifest
irregularities on the face of the questioned returns or
certificates of canvass in appropriate cases.

NOT ALLOWED IN ELECTIONS

FOR PRESIDENT, VICEPRESIDENT, SENATOR AND
MEMBER OF THE HOUSE OF
REPRESENTATIVES
Section 15 of RA 7166 provides:

Sec. 15 Pre-Proclamation Cases Not Allowed In Elections for

President, Vice-President, Senator, and Member of the House of

Representatives- For purposes of the elections for President, VicePresident, Senator and Member of the House of Representatives,
no pre-proclamation cases shall be allowed on matters
relating to the preparation, transmission, receipt, custody
and appreciation of the election returns or the certificates
of canvass, as the case may be. However, this does not
preclude the authority of the appropriate canvassing body motu
propio or upon written complaint of an interested person to
correct manifest errors in the certificate of canvass or election
returns before it.

 The COMELEC has exclusive jurisdiction over all proclamation

controversies. As an exception, however, to the general rule,

Section 15 of RA 7166 prohibits candidates in the presidential,
vice-presidential, senatorial and congressional elections from filing
pre-proclamation cases.
The

law, nonetheless, provides as an exception to the

exception. The second sentence of Section 15 allows the filing of
petitions for correction of manifest errors in the certificate of
canvass or election returns even in elections for president, vicepresident and members of the House of Representatives for the
simple reason that the correction of manifest error will not
prolong the process of canvassing nor delay the proclamation of
the winner in the election. (Chavez v. Comelec, 211 SCRA 315
(1992))

Republic Act 9369 amended Sec.15 and Sec.

30 of RA 7166:
SEC.15. Pre - proclamation Cases in Elections for President, Vice-

President, Senator, and Member of the House of Representatives. - For

purpose of the elections for president, vice - president, senator, and
member of the House of Representatives, no pre-proclamation cases
shall be allowed on matters relating to the preparation, transmission,
receipt, custody and appreciation of election returns or the certificates
of canvass, as the case may be, except as provided for in Section
30 hereof.
SEC. 30.Congress as the National Board of Canvassers for the Election
of President and Vice President: The Commission en banc as the
National Board of Canvassers for the election of senators:
Determination of Authenticity and Due Execution of Certificates of
Canvass.- Congress and the Commissionen bancshall determine the
authenticity and due execution of the certificate of canvas for president
and vice - president and senators, respectively, as accomplished and
transmitted to it by the local boards of canvassers, x x x

The enumeration of issues under Sec. 243 of

OEC is restrictive and exclusive.


What are the issues
that cannot be raised
in a pre-proclamation
controversy?

Cases that require the

appreciation of ballots
The

appreciation of the ballots cast in the

precincts is not a proceeding of the board of
canvassers, but of the boards of election
inspectors who are called upon to count and
appreciate the votes in accordance with the
rules of appreciation provided in Section 211,
OEC.
Appreciation and technical examination of
ballots would be more properly dealt with in
an election protest

Technical examination of
As long as the returns appear to be
and duly accomplished
on their
theauthentic
signatures
and thumb
face, the Board of Canvassers cannot look
beyond of
or behind
them to verify allegations of
marks
voters

irregularities in the casting or counting of

votes.

Loong v. COMELEC,
GR No. 107814-15, May
16,1996
Corollarily, technical examination of voting
paraphernalia
involving
analysis
and
comparison
of
voters
signatures
and
thumbprints thereon is prohibited in preproclamation cases which are mandated by
law to be expeditiously resolved without
involving evidence aliunde examination of
voluminous documents which take up much
time and cause delay underlying the
summary
nature
of
pre-proclamation
controversies.

Re-opening of ballot
It is not a proper issue for a pre-proclamation
boxes
controversy. It should be threshed out in an

election protest. (Alfonso v. COMELEC, GR No.

107847, June 2, 1994)

Padding
of Registry List
It is not among the issues that may be raised in
a pre-proclamation controversy. It is a proper
of Voters
ground for election protest.

Challenges
directed
A pre-proclamation controversy is limited to
challenges directed against the Board of
against
the
Canvassers,
not Board
the Board of
of Election
Inspectors.
Election Inspectors

ALFONSO vs.
COMELEC
GR 107847, June 2,
1997

Facts

In the May 11, 1992 elections, Pedro Alfonso ran for councilor in the

First District of Manila, which is entitled to elect six councilors. On the

eve of the elections, Pedro Alfonso died. His daughter Irma Alfonso,
petitioner herein, filed her certificate of candidacy in substitution for her
deceased father. After the canvassing of the election returns by
respondent City Board of Canvassers, the results of the elections for
councilors for the First District of Manila were announced as follows:
1st - Ernesto Nieva-60101,
2nd - Gonzalo Gonzales-44744,
3rd - Honorio Lopez-35803,
4th - Pedro Alfonso-34648,
5th - Avelino Cailian-32462,
6th - Roberto Ocampo-31264,
7th - Alberto Domingo-28715.

Apparently, the City Board of Canvassers added the votes of

Pedro Alfonso to those of petitioners thereby placing her in

the fourth slot. Consequently, private respondent questioned
such action. He prayed that the votes cast for Pedro Alfonso
be declared as stray votes and that, he be proclaimed as the
sixth winner for councilor. The COMELEC resolved private
respondents petition declaring votes cast in favor of Pedro
Alfonso as stray votes and to CREDIT in favor of respondent
Irma Alfonso only those votes cast with the name
ALFONSO or IRMA ALFONSO. Petitioner thereby questioned
said resolution before this Court, which dismissed the
aforesaid petition in a minute resolution, after finding no
grave abuse of discretion on the part of the COMELEC.


Whether or not the COMELEC acted with
Issue
grave abuse of discretion in denying the
petitioners motion for recount?

Ruling
No. At the outset, petitioners prayer for a reopening of the ballots is not

a proper issue for a pre-proclamation controversy. The issues raised by

petitioner should be threshed out in election protest. Errors in the
appreciation of ballots by the board of inspectors are proper subject for
election protest and not for recount or re-appreciation of ballots.
The appreciation of the ballots cast in the precincts is not a proceeding

of the board of canvassers for purposes of pre-proclamation

proceedings under Section 241, Omnibus Election Code, but of the
boards of election inspectors who are called upon to count and
appreciate the votes in accordance with the rules of appreciation
provided in Section 211, Omnibus Election Code. Otherwise stated, the
appreciation of ballots is not part of the proceedings of the board of
canvassers. The complete election returns whose authenticity is not in
question, must be prima facie considered valid for the purpose of
canvassing the same and proclamation of the winning candidates.

Actions
for
annulment
When Actions for Annulment of Election Returns
may be proper grounds for pre-proclamation
incontroversies:
pre-proclamation
specific irregularities such as:
1.Fraud
controversies
2.Substitution or vote-buying
3.Terrorism

The

COMELEC may conduct technical

examination of election documents and
compare and analyze voters signatures and
fingerprints in order to determine whether or
not the elections had been free, honest, and
clean.

Effect of filing preproclamation

controversy
Sec. 248 provides that the filing with the

Commission of a petition to annul or suspend

the proclamation of any candidate shall
suspend the running of the period within
which to file an election protest or quo
warranto proceedings.

Sec. 242 provides that the Commission shall

have exclusive jurisdiction over all preproclamation controversies. It may motu

proprio or upon written petition, and after due
notice and hearing, order the partial or total
suspension of the proclamation of any
candidate-elect or annul partially or totally
any proclamation, if one has been made as
the evidence shall warrant.

Effect
of proclamation
A pre-proclamation
controversy shall no
longer be viable after the proclamation and
of
winning
candidate
assumption into office by the candidate whose
election is contested.
Should be dismissed and instead, file an
election protest

Procedure

Composition and Proceedings of the Board of Canvassers

Where: Board of Canvassers or directly with the COMELEC
COMELEC Rules require that any such petition must be filed
immediately when the board begins to act as such or at the
time the appointment of the member whose capacity to sit
is objected to. Otherwise, waived.
Within 24 hours, the Board makes a ruling hours w/notice to
the petitioner
Appeal: COMELEC

Within 5 days from filing of appeal, the COMELEC En Banc

shall decide
Appeal: SC (petition for certiorari) within 30d from receipt of copy of

adverse decision

Election
Returns
and
Where: Board
BOC cannot inquire into the manner of the
Certificates
of
Canvass
preparation of the returns by the board of

election inspectors and the defects thereto

must be plainly visible on its face

Lee v. COMELEC:
if the apparent return looks regular on its face

but one can present prima facie evidence that

though apparently regular, is not genuine not
only because it may have been transmitted
from an irregular and unofficial site, the
COEMELC may not be entirely powerless to
find a basis for the exclusion of the contested
return. This requires technical expertise.

Spurious election returns must be objected to

ORALLY before the chairperson of the Board

when it is open presented for inclusion.
Otherwise, waived.
Objections made after canvass are deemed late
Objections must be faithfully recorded, noted

and entered in the minutes of the canvass w/

the date and hour

Objecting party shall also enter his objections

in written form
Within 24 hours from presentation of written
objection, the objector must submit evidence
Adverse party may, 24 hours after this, file a
written and verified opposition
Objections or Oppositions shall be formally
admitted by the Chairman
Chairman then signs the back of every page
of evidence

BOC then summarily, and immediately rules,

signed by the members

Parties wishing to appeal shall inform the

Board. The latter shall then enter such appeal

in the minutes and set aside the contested
returns.

Correction of Manifest
Errors in tabulation

Where (manual): Board of Canvassers or direct to

COMELEC
Obviously, in automated elections, tabulation is done
electronically
If adversely affected, inform BOC of intent to appeal
BOC shall enter the information in the minutes and set
aside the contested returns and meantime, suspend the
canvass.
Within 48 hours, the party affected by the BOCs ruling
may file a written and verified notice of appeal w/ the
BOC

Within 5 days take an appeal to the COMELEC (period

non-extendable)
Appeal must contain all the duly accomplished forms

Immediately after receipt of notice of appeal, the BOC

shall make a report to the COMELEC, elevate the

complete records, and furnish the parties with copies
of the report
COMELEC shall decide the appeal within 7 days from

receipt.

Once the appeal has been duly filed w/ the COMELEC,

BOC shall not proclaim any candidate unless

authorized by the Commission after the latter has ruled
on the appeal. ANY PROCLAMATION MADE IN
VIOLATION OF THIS IS VOID unless the contested
returns will not change the result of the election
The decision of the COMELEC shall be executor after 7

days from its receipt by the losing party.

Appeal from this shall be taken with the SC via petition

for certiorari 30 days from receipt.

PROCEDURE UNDER
THE AUTOMATED
ELECTION SYSTEM
(AES)

If filed directly with the BOC

If filed directly with the COMELEC

Procedure if the
illegality of
proceedings of the
BOC was discovered
after the official
proclamation of the
supposed results

SABDULLAHMACABAG
Ovs. COMMISSION ON
ELECTIONS and
JAMAEL SALACOP

FACTS
Petitioner

Sabdullah
T.Macabagowas
proclaimed
Municipal Mayor ofSaguiran, Lanao del Sur.
Petitioner hadalead of 198 votes over private respondent
JamaelM. Salacop.
Private respondent filed a petition against petitioner and
the proclaimed vice mayorof Saguiran, Lanao del Sur,for
the alleged fact that therewas a massive substitution
of voters, rampant and pervasive irregularities in
votingprocedures in some precincts and afailure of the
Board ofElection Inspectors (BEI) to comply with Sections
28 and29 ofComelec Resolution No. 3743 and Section
193 ofthe Omnibus Election Code, thus rendering the
election process in thoseprecincts a sham and amockery
and the proclamation of the winning candidates anullity.

In support of his petition, private respondent

appended thereto photocopies of random

Voters Registration Records (VRRs) evidencing
the fraud and deceit thatallegedly permeated
the electoral process, as well asaffidavits
tending to prove that serious irregularities
were committed in theconduct of the
elections
in
the
subject
precincts.
Thepetitioner denied the material and averred
that itis a pre-proclamation controversy.

The COMELEC En Banc took cognizance ofthe petition and

issued an order directing the Election OfficerofSaguiran,

Lanao del Sur, to bring to and produce before the
COMELEC Office in Manila the original VRRs of the
questioned precincts for technical examination
After its examination of the evidence submitted by

petitioner, theCOMELEC concluded that there was

convincing proof of massive fraud in the conduct ofthe
elections in the four (4)precincts that necessitated a
technical examination of the original copies of the
VRRsand their comparison with the voters signatures and
fingerprints.

ISSUE
W/N this was a proper ground for a pre-

proclamation controversy

RULING
NO. The fraud and irregularities catalogued by

private respondent required the reception of

evidence aliunde. These grounds are not
proper
bases
for
a
pre-proclamation
controversy but are appropriate for a regular
election contest within the original jurisdiction
of the RTC.