Article VI, Sec.

9 (Special Election)
TOLENTINO v. COMELEC
GR 1488334 (01/21/04)
Facts:
 Pres. GMA, after her succession to the presidency in 2001, nominated Senator Guingona as Vice-
President, thus, leaving a vacancy in the Senate. The Senate passed Res. 84 calling on COMELEC to fill
the said vacancy through a special election to be held SIMULTANEOUSLY with the regular elections
on May the same year. 12 senators each with a 6-yr term were to be elected. Res. 84 provided that
the candidate with the 13th highest number of votes shall serve for the unexpired term of former Sen.
Guingona (3 years).
 Gregorio Honasan ranked 13th in the polls. COMELEC issued Res. 01-005 provisionally proclaiming
the 12 senators (with 6-yr terms) and the 13th senator (for the unexpired term).
 Petitioners (Tolentino and Mojica) filed a petition for prohibition against COMELEC, enjoining them
from the final proclamation the 13th senator, and prayed for the nullification of Res. 01-005.
Issues:
1. Procedural: WON petition is actually for quo warrantoi to be decided by the Senate
Electoral tribunal (and not the SC)
2. On the merits: WON the special election was held validly:
a. WON Comelec’s failure to give notice as to the time of the special election negate the
calling of said election
b. WON Comelec’s failure to give notice of office to be filled and the manner of
determining the winner misled voters
c. WON separate canvassing and documentation for the special election was required
Held:
1. No. The petitioner does not seek to determine Honasan’s right in the exercise of his office in the
Senate. What the petitioners allege is COMELEC’s failure to comply with certain requirements
pertaining to the conduct of the special election. Hence, the court has jurisdiction.
2. Yes. Special election was held validly. Hence, petition has no merit.
a. No. Sec. 2 of RA 6645 (which was passed to implement art 6, sec. 9 of the constitution),
EXPRESSLY PROVIDES that in case of a vacancy in the Senate, the special election shall be held
simultaneously with the next succeeding regular election. In a special election, the rule is that if
a statute expressly provides that an election to fill the vacancy shall be held at the next regular
election, the statute FIXES the date, hence, the election is NOT INVALIDATED by the fact that the
body charged by law with the duty (in this case, COMELEC) failed to do so. (as opposed to if the
law does not fix the time and place but empowers some authority to fix those, the statutory
provision on the giving of notice is considered mandatory and failure to do so will make election
void) The law then charges the voters with knowledge of the statutory notice and COMELEC’s
failure to give additional notice does not negate the election.
b. No. The test in determining the validity of a special election in relation to the failure to give
notice is whether the lack of notice resulted in misleading a sufficient number of voters. The
petitioners were not able to prove that COMELEC’s failure to give the notice misled a sufficient
number of voters as would change the result of the vote.
c. No. No such requirements exist. What is mandatory under RA 6645 is for COMELEC to fix the
date if necessary and state the office/s to be voted for. The method adopted by COMELEC merely
implemented RA No.84 that “the senatorial candidate garnering the 13 th highest number of votes
shall serve only for the unexpired term of former Sen. Guingona” (an amendment introduced by
Sen. Roco)
“WHEREFORE, we DIMISS the petition for lack of merit. So ordered.” (Note however, that SC reminded
COMELEC to comply strictly with all the requirements under applicable laws relative to the conduct of elections)

i
A quo warranto proceeding is one that determines the right of a public officer in the exercise of his office